Thursday, December 31, 2009

Interview with true crime author Kathryn Casey

A couple of weeks ago I recommended one of true crime author Kathryn Casey's books, in this post. I thought it might be fun and interesting to follow this up by asking her a few questions about what she does and how she does it.

So, for a special edition of Thriller Thursday, here is a brief interview with Ms. Casey:

Where did your interest in crime come from?

To be honest, the crime angle came as a surprise. I always knew I wanted to be a writer, but I never planned to specialize in writing about murder. For about twenty years, I wrote for national magazines. In the mid-Eighties, I covered the murders of Texas folksinger John Vandiver and his girlfriend for Rolling Stone. The article is on my Web site, Anyway, from that point forward, magazine editors frequently asked me to cover different cases. It just kind of snowballed. Although, I have to admit that I must have some interest, or I would have tried to cultivate another arena, don’t you think?

Roughly how many people do you interview for a book?

Somewhere around one hundred for each true crime book, along with attending the trials and reviewing the exhibits and documents.

I'm curious about how cooperative the different sides are - e.g., prosecutors, defendants, family members. Is there one group that is usually more amenable to working with you?

The attorneys on both sides and victims’ families are usually pretty good about talking to me. Like me, I think, they want to know how and why the crime happened, really understand what led to it. Since I spend up to a year on each book, I’m able to devote enough time to answer a lot of their questions. Not always, but often, the defendants and their families do talk to me. I’m always glad when they do. There’s nothing like sitting across from people to get a feel for who they are. Plus, they’re able to tell me face to face about any other theories in the case. I do investigate any leads they give me. I mean, let’s face it: our justice system is good, but it’s not foolproof. Mistakes happen.

How long does a book take to write? Do you try and get it done before the story is forgotten?

Each true crime book takes up to a year to research and write, then nine months for the publisher to turn into a book. I’m not too worried that a case will lose interest. I chose them because they’re fascinating cases, so they stand the test of time.

Do you have to beat other true-crime authors to a story? Especially in Texas, seems like there are a few...

Sometimes, I do. But, sadly, there are usually more than enough sensational cases to go around. I sometimes fantasize that folks will stop killing each other and put me out of the true crime business. Wouldn’t that be heavenly?

What essential elements make up every good true crime story? I look for a case involving people one wouldn’t expect to be involved in a murder: professors, attorneys, teachers, ministers, millionaires and socialites. It helps if the investigations also have a lot of twists and turns.

Now you are writing mysteries - do you find writing fiction easier or harder than true crime? More fun?

I don’t know that it’s easier, but it does take less research. And it’s a lot more fun to make it all up. The biggest difference is that I’m delighted to write about imaginary bad guys, who don’t exist and can’t really hurt anyone. That is outstanding. Of course, my family does wonder what rattles around in my imagination, but maybe we’d better not go there?

Will you return to writing true crime?

I’ve just finished a new true crime book, SHATTERED, on Houston’s David Temple case. It’ll be out in June. I also have a new mystery, THE KILLING STORM, coming out next fall. In January, I’ll be on the move again. I’m heading to Waco to cover the Matt Baker trial. Matt is a Baptist minister accused of murdering his wife then staging it to look like a suicide.

Who are your favorite authors?

True crime: Ann Rule, Carlton Stowers, and Vincent Bugliosi.

Fiction: many, many authors. Kathy Reichs, C.J. Box, Michael Connelly, James Lee Burke. And the list could go on. I do love to read.

Wednesday, December 30, 2009

What crime gets what sentence? - Part IV

And finally we get to the big one, the first degree felony.

For previous installments, see state jail felonies right here, third degree right here, and second degree felonies here.

So, the punishment range for a first degree felony: life in prison or confinement of between five and 99 years, and an optional fine not to exceed $10,000.

Your first question, before we move on, is probably "Huh?" Am I right? You are wondering what's with the "99 years or life" thing, yes?

Can't really say, to be honest. One is a specific number the other isn't. Maybe I'll look into it and post a better explanation (as if that was an explanation at all!).

Let's move on to some of the crimes that will earn you a first degree felony:
  • Aggravated assault of a public servant

  • Aggravated kidnapping

  • Aggravated robbery (i.e. with a gun)

  • Aggravated sexual assault of a child

  • Attempted capital murder

  • Arson (of habitation or place of worship)

  • Bigamy (if the victim is under 16y.o--okay, don't see that one often!)

  • Murder

  • Tampering with electronic voting machine

  • Theft involving more than $200,000

  • Trafficking of persons (if under age 14, or death occurs)
You will see that a lot of first degrees are dependent on the offense being "aggravated." The definition of aggravated depends on the specific offense being committed but usually involves a deadly weapon being used or some other "aggravating" factor (age of victim, number of victims etc.).

Another question you may have: how much of a sentence will someone serve?

For that, I will ask you to check back soon. Very soon. It'll be interesting, I promise.

Tuesday, December 29, 2009

I won!. Okay, okay... I came fifth!!

Giving myself and my colleague from the defense bar Gene Anthes a little recognition for our abject silliness (he started it!):

His motion to stop me using my English accent, and my response, placed fifth in The Five Best Motions of the Year, says AboveTheLaw blog.

It had to happen sooner or later...

We joke in our court about our probation officer, Ben, who always seems to be in the right place at the right time to spot one of his probationers doing something they shouldn't -- shoplifting, getting drunk, driving when they don't have a license. It helps that he apparently has a photographic memory for people's faces and their crimes, but it's still uncanny the way he's always Johnny-on-the-spot. (Hmmm... maybe a little too uncanny...)

Anyway, I've always known that it would happen to me, too: I'd be out and about minding my own business and I'd run into someone who will recognize me from the courtroom. My only hope was that I'd recognize them first, but not having Ben's memory that was never likely.

And so it was, on Saturday, I was at a public playscape with my wife and kids when a man, there with his young daughter, looks over and says, "Excuse me, but do you recognize me?"

My first thought was to adopt a lisp and a Texan accent, or act lost and start speaking in French. But I didn't want my wife to have me committed, so I just said, "No, sorry."

Well, turns out the man was a juror on my first trial of 2009, back in April. All the way back in April. Long time ago, April. Plus he had grown a beard, so no way I could be expected to recognize him. But as our kids played, we had a nice chat about the case, about his memories of it and how the experience was for him. It had been eye-opening, he said, and while it wasn't something he'd initially been thrilled about doing, I got the impression he was very happy to have served on that jury.

For me, I was very interested to know that he and the other jurors saw the evidence and witnesses much the way we did. For example, there were four or five witnesses who one might say had credibility issues. And I'm talking about witnesses for the defense and prosecution - as a lawyer, you don't get to pick and choose your witnesses. If the person was there and saw something relevant, they have to testify. We trust our jurors to sort the wheat from the chaff and in my view, this juror was extremely astute in his analysis. I was also pleased that the jurors put so much stock in the hard work on an investigator who explained (in exceptional detail) his work. I told him afterwards he talked too much, didn't wait for my questions, but the jurors felt like he was explaining his work to them. Shows what I know.

During our chat the juror started asking me questions about the job generally. So I pointed him, of course, to this blog.

I tell you all this to back up what I've said before: it may not be your first choice,spending the week with a bunch of strangers, deciding matters of guilt and innocence, but it's a hugely rewarding experience when you do get the label of "Juror" thrust upon you. Kind of like when you're at the store and an old guy, one who smokes two packs a day and hasn't brushed his teeth in three weeks, collapses and you're the only one who knows CPR. It's not like you want to put your mouth on his but, well, people are watching. You have to.

Imagine, then, how you feel when that old man coughs and splutters his way back to life. Pretty good, right? Sure you do, and once you've rinsed your mouth out with gasoline you're going to look back on the experience and recommend it. Or, at the very least, be proud that you did your best at that moment.

And when you meet that old man at a public playscape and shake his hand, you won't mind that he says, "No, sorry, I don't remember you" you won't even mind that much. After all, he was unconscious while your mouth was on him. Hopefully. And at the end of the day, because it's what you did that matters, not whether he remembers who did it.

That said, if you do run into him at that playscape, your next duty will be to keep an eye on him. Not only may he keel over again, you gotta wonder why an old man is lurking around a playscape.

Thursday, December 24, 2009

A dash of Yuletide news

For your perusal over Christmas, I present the New York Times, Yuletide Special, Austin edition.

Merry Christmas all!

(Programming note: I will be back blogging again on Tuesday, December 28.)

Wednesday, December 23, 2009

A Merry Christmas Poll

There are two schools of thought on jailing defendants around the Christmas holidays, at least as far as I have noticed.

The first is that judges and prosecutors should cut defendants a little slack, give them the benefit of any doubt and send them home to be with their families if it remains within the appropriate punishment range to do so. Call it what you will, an application of positive reinforcement, the holiday spirit, whatever.

The second is that the defendant put himself in this position so doesn't deserve a break, and it's better to keep criminals off the streets at Christmas time to keep them from buggering up the holidays for the rest of us.

So think about it.

A little harder.

Okay, now you are the judge, what are you going to do? You have someone convicted of a non-violent, drug/theft type case who wants out on bond for the holidays. Legally you are justified in going either way, you could release him now, after Christmas, (or not at all).

Which philosophy would you follow?

Tuesday, December 22, 2009

Q and A follow up: CSI pt. 2

Following yesterday's interview with Stacey Wells, faithful reader Bill said:

"Fascinating. Great info for my crime writing. Thanks for sharing this interview with us. Like all police work this individual obviously works hard and long stressful hours. Please pass on my thanks to him for letting us into his world." (Emphasis mine.)

In thanking Stacey Bill echoes all our sentiments, of course, and I am loathe to correct such a fine reader in a public forum but I know he won't mind (right, Bill?!), and Im sure he'd agree that the good women of APD need the recognition as much as the men.

So, this is Stacey (off-duty, but about to dust an ocean for fingerprints):

Relatedly, and more seriously, another writer asked an interesting question that I forgot to ask her: What do Crime Scene Specialists wear on the job?

Here is Stacey's response:

"I wear a police type uniform. It says Forensics on the patch instead of Police like the officers wear. The officers have blue uniform shirts but ours are gray. I also wear BDU pants with black work boots. I have a web-belt that I have my flashlight, pager, gloves, city issued OC (pepperspray), radio and a knife."

No picture of her, or any other APD CSS in uniform, but here is their patch:

Monday, December 21, 2009

Question and Answer : Crime Scene Specialist

Introduce yourself:

I am Stacey Wells, a Crime Scene Specialist (CSS) with the Austin Police Department (APD).
I have been working for APD for over 3 years. I worked crime scenes in south Florida for over a year before APD and been doing internships in the field since 2000 (started in college.).

What kinds of cases do you work?

I work all major crimes involving persons but not property crimes (burglaries, etc.) Here is a list to give you an idea:


Assaults (shootings, stabbings)

Sexual assault

Traffic fatality/serious injury collision

Officer involved shooting (or incidents)


Injury to children

Death scenes (suicide, natural if of an unusual age for death, accidental)

Arson death scenes


Bomb Threats

What kind of training and education do you need to be a Crime Scene Specialist?

To be a crime scene specialist with most police departments you need a Bachelors degree in a related field or a science field. Of course with this being said, it varies according to the department. Some departments want more advanced degrees where others feel a Bachelors degree is sufficient. I currently have a B.S and Masters in forensic science.

Most departments have civilians working crime scene, but there are still a few departments which have police officers working the crime scenes. The majority of the departments are trying to go to civilians because of our training and education (most officers typically don’t have advanced science degrees).

What types of evidence do you collect?

I collect anything and everything! It always depends according to the scenes that I come across. Here are some examples:

If it’s a robbery scene, I will collect the robbery note, blood, DNA, the firearm, etc…and will process the scene and evidence for fingerprints.

At a sexual assault, I will collect the bedding, swabs from unknown stains (found using the alternate light source ALS/UV), fingerprints, cuttings from floor where stains were found, penile swabs from suspect if found, etc.

Death scene (natural, accidental)…I usually will take photographs and collect any item pertinent to the case (cell phone, etc). At a suicide, I will collect the suicide note, weapon, ligature, etc.

At a homicide, I will collect anything and everything even if it may not look like evidence. I have collected items such as broken glass found (which might match to a suspect vehicle), gum (which could lead to DNA), fired cartridge casings, weapons, projectiles, swabs, fingerprints, everything. Usually on these scenes we can have the minimum of 10 items of evidence up to 100 or more items of evidence. I will collect the major items (the items you can’t miss as being pertinent), and then the smaller items like casting a shoe impression from a possible suspect’s shoe outside of a door.

Take us through the steps you take at a crime scene.

Obviously, this varies a little according to what type of call comes in. Here are a few examples:

Robbery-Respond to the scene, meet with officers or detectives on scene. Find out details relating the case. Take photographs of the scene. Overall, midrange and close-ups of the items of evidence. Photograph the entry and exit, and the direction of travel the suspect fled in. Then collect evidence (if any), swab for potential DNA (door handles, glasses, cash register, etc). Then process (use black powder) to collect fingerprints.

Sexual Assault- Respond to the scene, meet with officers or detectives on scene. Take photographs of overall scene, etc. Use Alternate light source (ALS or UV) to illuminate the scene for possible biological material (semen, bodily fluids, hairs/fibers). Either collect those items (if bedding) or cut it (from floor, carpet, car). Then process for fingerprints and collect any other items of evidence

Traffic Fatalities- Most of the time these are just photographs depicting the scene. Very detailed photographs since we go to court on a lot of these which are DWI related.

Homicide- Respond to the scene, meet with officers or detectives on scene. Find out details relating the case. I start off by photographing the scene after the detectives, myself and my supervisor walk the scene. Then my supervisor will videotape the scene. Then I will lay down tent numbers (DAC: she is referring to these evidence "tents") and rephotograph the entire scene. Then my supervisor will re-videotape the scene again. Then detectives will go through the scene and see what is pertinent and what needs to be done (at this point we will be already on hour 4-6). Then I will begin collecting the evidence. I will then process for fingerprints, collect DNA, use the ALS to find biological evidence, use any chemical reagent to search for blood, etc.

Then we will do another thorough search, sketch, etc….by the time we leave it could have been 8-20 hours after we arrived on scene….and this could be after an 8 hour shift already. The longest homicide scene I worked was 26 hours total time on scene.

How long after a murder does the crime scene tape stay up?

It varies according to the case, but most times we take down the tape when crime scene unit leaves the scene. For outdoor scenes, once we are finished collecting evidence the crime scene tape will be removed. If there is a chance that other items will be needed or the scene will be jeopardized, then the tape can stay up for a while.

On scenes inside of a residence, we will usually close up the doors once we leave and leave a POLICE sticker on the door. That way we will know if anyone tampered with the door while we were away.

Alternatively we will have the tape up, and an officer stand by for a while until we are completely finished with the scene.

Usually we got everything we need first time around but after interviewing suspects and victims friends and families we may find out more information and go back for follow-ups.

Any vehicles related to a homicide investigation are towed and stored at our secure forensic science bay at a towing company. These could be stored here for anywhere from a month to a year plus.

Who holds the key to the house if the occupants are dead and/or jailed?

After a crime scene, the police will hold onto a key until they locate the next of kin or owner of the property.

When a scene is discovered, apartment complexes have keys that the office keeps. The office can give the key to officers or detectives. Family members also have keys and will allow us access.

If we are able to see a body through the window but the door is locked, then we are able to gain entry due to a check welfare type status (Officers/Fire/EMS will kick in the door).

How do you decide where to dust for prints at a murder scene?

Usually you will start with the points of entry and exit (door handles, door jams, entire area of door that could have been touched and same with windows). If things were obviously moved around you will process those also. Then if a suspect touched an item (like a bottle) you will process those, or if a chair was moved, etc.

Most of the time you process, then process again, then process again…this way you covered all of your bases. On a homicide a while back I processed the wall near where the decedent was found. A little “out there” to process this but I did it to cover my bases. And guess what? A print!

How many cases do you work on in an average week?

During the summer months we usually get pretty busy. For some reason July is a busy month. This July I had four homicides in one week.

Usually I can work anywhere between 1-10 -- this week I worked 10 calls. Our other CSU was busy so I worked a lot of calls, which ranged from car-jackings, business robberies, bomb calls, rapes, kidnappings, and shootings/stabbings.

During the Christmas season, our robbery and suicide calls go through the roof so we stay pretty busy.

All that said, some months we can go days without a call!

What's the best part about your job?

The feeling I get when I walk out of that courtroom knowing that suspect will never hurt that person or someone else again. Had a father who raped his daughter for years. He got 37 years and so won’t see the light of day again. That’s rewarding. I also love the feeling I get when I see results of my work, like when I get that hit on my fingerprint or DNA giving us the identity of a suspect.

What's the worst part about your job?

The hours are long, and can be hard, hot, and miserable sometimes. I can be on a homicide for hours without eating, drinking (or even using the bathroom!), and on my feet. No sitting down…just working for all of those hours. The quickest homicide scene I worked was 7 hours. That’s still 7 hours without food, water, bathroom break, or sitting down!

I also work a lot of unsociable hours, which is hardly surprising since crimes are most often committed in the evening or at night. So I put in lots and lots of late nights and late evenings. I can be at a scene thinking I’m about to be done, then find myself there until the next morning.

I suppose, like most people, I would like a pay increase to reflect some of these hardships, and the level of training and education we have. But wouldn't we all?!

That said, the rewards definitely outweigh the negatives. There is nothing like waking up and loving your job, and I do: I want to go to work. I strive for perfection and love to do my job well. I love knowing that I will make a difference in someone’s life even though they will never know I participated, or even know my name. Being a behind-the-scenes person who happened to catch the person that killed their family member… then testifying against them is worth all of it!

Saturday, December 19, 2009

Question and Answer Series - starts Monday!

Last week I mentioned a new series I am starting. It will kick of on Monday with a Q&A session with the glamorous, bright, and talented Stacey Wells.

Stacey is a Crime Scene Specialist for the Austin Police Department, which means she is sent out to pick up, capture on film, bag, dust, contain, and otherwise account for evidence from the scene of a crime. (These crimes include all crimes against the person but not property crimes, full list on Monday.)

Friday, December 18, 2009

Murder across the pond

Sounds like the title of a novel, doesn't it?

T'ain't. Now, being from across the Pond, I spend much of my life either consciously or subconsciously comparing my life now with the place where I grew up. And, being in the field of criminal law, I suppose it's natural that I would compare the two systems.

Now, a disclaimer, I was not a lawyer in England (though I was a newspaper reporter and I covered the crime beat) so I do not profess to be any kind of expert. Nor am I an academic (you've probably noticed) so you won't be getting an in-depth and flawless comparative study.

Rather, I wanted to share something I stumbled across while doing research for my new novel, which is set in England. It's a paper called "Minimum Terms in Murder Cases." Trust me, when you read my second novel (I predict publication to hugely popular and critical acclaim in 2011) you will see why I was looking at this.

Anyway, some interesting tidbits about the England/Wales murders themselves:
  • Reconviction rates for murderers are lower than for other offenders. (Perhaps obvious, and one wonders if it's because murderers tend to get out of prison when they are too old to murder. But there you have it.).
  • Typically, two thirds of the victims of homicide know the perpetrator before the
    offense takes place, and in two thirds of these cases the circumstances were a 'quarrel,
    revenge, or loss of temper'.
  • Across homicides as a whole, in only about 4-5% of cases does the perpetrator appear to have been mentally disturbed.
  • The most common method of killing is by use of a sharp instrument (around 30% of cases). Most other homicides are committed by hitting or kicking (around 15%) or use of a blunt
    instrument (around 12%), with the use of a gun being somewhat more rare (typically 8-
  • As far as victims are concerned, the age group most at risk is children under one
    year of age (82 victims per million of the population in 2000/01). After the first year of
    life children are rarely the victims of homicide, but for men aged between 16 and 30
    there are 33 victims per million, and for men aged between 30 and 50 there are 25
    victims per million. Persons aged over 50 are at low risk of becoming victims of a
So once the murders are solved and the buggers are caught, what then?

First, there is no death penalty in England and there hasn't been one since 1965.

Second, when a person aged 21 or over is convicted of murder, the only sentence available to a court in England and Wales is one of life imprisonment.

I will point out that most offenders sentenced to life imprisonment for murder in the UK do not actually remain in custody for life. There's a shock.

Anyway, here's how it works: in the case of an adult offender the trial judge will recommend the appropriate minimum term (aka the "tariff"), which is the minimum period necessary to meet the requirements of retribution and deterrence in the case. The trial judge's report goes to the Lord Chief Justice, who in turn makes a recommendation to the Home Secretary, with whom the final decision rests.

The Prison Service provided data on the 119 adult offenders who were released from mandatory life sentences during the year 2000. This information includes the minimum terms and the dates of conviction, sentence and release.
  • The lowest minimum term was 7 years (this offender was released 10 years after sentence);
  • The highest was 30 years (this offender was released 31 years after sentence);
  • The average minimum term was 12.6 years;
  • And the average time served from date of sentence was 14.3 years.
14.3 years. For murder.

Oh and between March 2002 and March 2003 there were 876 murders in England (60 million people).

How does the murder rate compare here? Well, in 2003 we have:
  • U.S.: 14,408 (population 291 million)
  • 9,638 by firearm
  • Texas: 1,422 (population 22.5 million)
And the average sentence served? Setting aside the death penalty, and seeing no hard and fast figure, it looks like it is roughly 17 years.

A little surprising, don't you think?

Thursday, December 17, 2009

It's like a snowball...

Fiction this week, a novel I picked up while on a Michael Connelly kick. This one started out good and then, suddenly, I couldn't put it down. Not that I minded but the family was ignored for a few hours one evening.

Still, my wife is reading it now, so I expect to be washing dishes and cooking solo one night soon.

The book is THE LINCON LAWYER and is selling for a measly five bucks right now!

Publisher's Weekly gave it a starred review and said: "After Connelly spends the book's first half involving the reader in Mickey's complex world, he thrusts his hero in the middle of two high-stakes duels, against the state and his own client, for heart-stopping twists and topflight storytelling."

Edited to add: I just received responses to an interview I did with true crime author Kathryn Casey. I will probably not post a Thriller Thursday next week (Xmas Eve and all) but will run it the following week.

Wednesday, December 16, 2009

New segment: Q & A with the experts

I am planning on putting together a series of blog posts that feature questions to and answers from experts in the field of criminal law. The experts I have in mind so far include:
  • homicide detective
  • criminal defense attorney
  • fire investigator
  • medical examiner
  • district court judge
  • crime scene specialist (aka evidence tech)
If you have suggestions for someone I have missed, or have specific questions you would like asked to one of the above, please let me know in the comments section.

Kill me? Just try it.... (and other tales)

Okay, with all this serious talk we've been doing lately about juries, the pros and cons, the various alternatives, it's time for me to flip you around the internet and entertain you with tales of high humor and, maybe, low hilarity.

And because we are nearing Christmas, we don't need to dwell on the death and destruction that still stalks our planet. No, instead we should go backwards in time and look at some people who died, sure, and yes, horribly, but they went down swinging. Now, I always knew Rasputin was an absolute bugger to knock off but it turns out he wasn't the only one to make his killers work for it. Check this out for pirates, priests, and other peeps who were absurdly hard to kill.

True story: one of our prosecutors is handling a theft case in which the defendant is alleged to have stolen some laundry detergent. I suggested to my colleague he was hoping for a clean getaway (yes, she groaned). But maybe it's the season: this thief in Tyler was actually in the bath when nabbed. I picture the cop walking into the bathroom and giving him a tap on the shoulder. Tap. On the shoulder. Geddit?!

Finally, some helpful advice (non-legal) from your friendly prosecutor -- you may have won The War all those years ago, and you may have dumped a few bags of the Good Stuff into some harbor somewhere. But we Brits do know something: tea can help prevent diabetes (okay, coffee can too). Now to find a good reason to keep buttering those crumpets.

Tuesday, December 15, 2009

I cannot tell a lie...

Following my post on third degree felonies, a commenter asked this:

Greatly appreciate the education! Question though, on the word "aggravated" - I understand that for assaults it can mean assault with a weapon, but aggravated perjury? Would that be waving a knife around on the witness stand yelling, "I didn't do it! I didn't do it! Well, okay, I really did..."?

Correct. If you tell a lie while under oath and you are carrying a gun, driving a car, or pouring poison into someone's mouth, that makes it aggravated.


Great question, and one that actually comes up occasionally here at the office, so here's the difference between "regular" and aggravated perjury:

"Regular' perjury is when a person, "with intent to deceive and with knowledge of the statement's meaning," makes a false statement under oath or swears to the truth of a false statement previously made and "the statement is required or authorized by law to be made under oath." Penal Code 37.02.

Example: swearing to the truth of your tax form or college application.

Aggravated perjury is when you give a false statement while under oath during an official proceeding and that false statement is material. "Material" means "it could have affected the course or outcome of the official proceeding." Penal Code 37.04.

Example: lying while under oath in a trial, or while giving grand jury testimony. But note that if you lie about your age and it's not relevant to the case, this would not be aggravated perjury because it's not "material."

Monday, December 14, 2009

What crime gets what sentence? - Part III

I've written about the crimes that make up state jail and third degree felonies. Now we move on up to the next level, second degree felonies.
The penalty range for these offenses is between two and twenty years in prison, and an optional fine of up to $10,000.

Some second degree offenses we handle (with the five most common bolded) include:
  • Aggravated assault
  • Arson (if not a house or place of worship)
  • Burglary of a habitation
  • Escape (by causing bodily injury to someone)
  • Improper relationship (student/teacher)
  • Indecency with a child (by contact)
  • Intoxication manslaughter
  • Manslaughter (recklessly)
  • Murder (with sudden passion)
  • Robbery (without a weapon)
  • Sexual assault (aka rape)
  • Trafficking of persons

Friday, December 11, 2009

Twelve Texans, good and true - some Q & A.

A new reader to the blog asked some insightful questions about juries, specifically my thoughts and opinions. Since Friday is typically my day to discuss such matters, here goes:

You undoubtedly have more jury experience than I do, so my sample size is considerably smaller, but I've not been impressed as a general matter.

Go on....

Juries seem to fixate on small, unimportant details in making their decisions.

I shall quibble with you here, just a little. You are right that individual jurors can fixate on irrelevant details, I have spoken to every jury I have tried a case in front of, and there's no doubt that's true. But, my experience has been that in almost every instance, the one juror who is going off the reservation gets pulled back in by the other eleven. That's the beauty of having a dozen of 'em. You see, judges can fixate too. All of us can, and I'd argue that the more professional or experienced or knowledgeable we are in a field, the more entrenched we become in our fixations. But when you have twelve lay people who are not sure of the law, not masters of forensic science, they can bend and sway with the input of other people, i.e. their fellow jurors. Ever tried telling a judge he's wrong about something? No, me neither, and for good reason.

I would also argue that if a jury gets so hung up on an irrelevant point that a decision is not reached, or a wrong one reached, then that's our failing as lawyers. Throughout the trial we need to be explaining what matters and what doesn't, and we can do this explicitly in opening statements (to a great degree) and most definitely in closing argument.

Here's something else, too, and relates to your (one?) trial experience. And for all of you reading this, I know the gentleman poster and he and I tried that case together. He does relate the facts correctly but think about it from a juror's point of view, and in the back of your mind think about what we want jurors to do (hint: a. Follow the law, and b. Justice). We put on evidence that:
  • a convicted and currently incarcerated drug dealer
  • kidnapped his girlfriend and held her hostage
  • that in clearing the house after she was let go, some SWAT officers in all their gear broke about $300 worth of stuff
  • and that dealer wanted one cop to pay him for that stuff (which was his mother's)
  • and that one cop never went into the house and wasn't calling the shots.
Now, I don't know what the jury focused on but when they came back after.. what was it? Six minutes? When they came back we knew they would reject the claim for damages, and so they did. Was justice served in that case? Hmmmm? Methinks yes.

Jury instructions seem to confuse the issue as frequently as they enlighten it (if not more frequently).

I agree that jury instructions can seem like gobbledygook at first. But in a recent murder trial, jurors afterwards told me that the instructions were key to keeping them on track. They had gone off and explored all kinds of things, raised all manner of questions about the facts and evidence but in the end they sat around the table and said, "Hey, we've been told to discuss what's in here, and only what's in here." So they did. And reached a decision accordingly.

So while I can see how instructions might, in some cases, be confusing, my experience has been that they are more likely to be of great help. And, again, it's our job as lawyers to know the instructions that are being given and, if we think they need clarification, we should discuss them during closing argument.

Does it not cause you some unease to know that the interests of the State of Texas are in the hands of twelve (or however many) registered voters?

Nope. Twenty-four hands, technically. I make a point of picking jurors I think are intelligent, and it's not hard to tell who those people are. I'm not practicing rocket science, either, so the intellect side of the issue is not a concern, or at least can be dealt with. For the rest of my answer, see below....

Particularly when most people don't want to serve in the first place?

You are right that reluctance to serve is commonly expressed. But I also know from experience that once selected, jurors are diligent and attentive. They are reluctant, in some cases, because they don't want the responsibility but the flip side of that is that once given the responsibility they work extra hard to ensure they carry it out properly. They don't want to do it because they don't want to get it wrong, but once doing it they make sure they do it right. I like that.

I'm also not sure of a better way to do it. One judge always deciding? Three judges? Roving panels of professional jurors?

Thursday, December 10, 2009

Into the depths of hell...

This week's literary selection qualifies as a classic "high-concept" novel, a wonderful mixture of death and terror that features real historical figures of great intellect: Henry Wadsworth Longfellow, Oliver Wendell Holmes, and James Russell Lowell.

The book is called THE DANTE CLUB and is by Matthew Pearl. The premise is great: a group of 19th-century Bostonians gather to translate Dante's Inferno for an American audience and soon find themselves on the trail of a serial killer who tortures his victims in ways that seem to be taken straight out of the pages of Inferno.

The research and historical aspects of the novel are impressive and captivating, as is the story itself. It is a great thriller/mystery for those looking for something a little different, something more in-depth than your average crime novel.

Wednesday, December 9, 2009

In other news....

I've been posting my own stuff rather than feeding on the work of others for a week or two. But some things are just too tempting to resist.

By now, my faithful reader will know that assaulting a family member can rise to the level of a felony. Serious business. But what happens when one spouse is okay with the other practicing her kung-fu on him? Not just okay with it, but contracts for it? I know, it reminds me of Cato in the Pink Panther movies, the chappie who'd spring up at the most awkward moments to attack Peter Sellers. I guess this is the real life version.

When I was working as a reporter in England, I remember one of the county police forces adopting a positive reinforcement technique to encourage good driving. Basically, the officer would see someone driving well, follow them for a bit to make sure, then pull them over. Instead of a ticket, the driver would get a certificate signed by some muckity-muck high up the chain that thanked them for being a safe driver. I have no idea whether it worked, but they are trying something similar in New Zealand, apparently. Using liqorice.

Talking of New Zealand, my recommendation as a friend, rather than a prosecutor, is that if you are smuggling animals into a country you should not take a long-haul flight. Especially when those animals are slithery. And in your undies.

Now a moment of silence for a 146-year-old who just passed, someone famous for his romantic endeavors. And yes, he was French.

A colleague and I recently consulted a psychiatrist when we were preparing to try a murder case. I frequently talk to fingerprint analysts, DNA specialists, and occasionally hand-writing experts. What I obviously need to do, if I want to remain a prepared prosecutor, is add one more category of expert to my rolodex: the warlock. Anyone know where I can find one?

And to end with, a sketch done by our own, hugely talented, Donna Crosby. Now, remember that the sketchpad adds ten pounds and that she purposefully made me less handsome than I really am. It's very clever artistic technique known as "charcoal irony," as if to say, "He's too handsome to be portrayed as he really is. He doesn't really have a big nose."
No, it's true. Quite brilliant, really.

Tuesday, December 8, 2009

What crime gets what sentence? - Part II

Last week I started at the bottom of the felony rung, with state jail felonies. Moving up one step we arrive at the third degree felony.

First, the penalty range:
  1. confinement in prison for not less than two years, and not more than ten years; and
  2. an optional fine not to exceed $10,000.
Second, some of the offenses we see that are third degree felonies. I have highlighted the three that I see the most in my practice:
  • Aggravated perjury
  • Assault of a family member/spouse
  • Deadly conduct (with a firearm)
  • DWI (3rd offense)
  • Indecency with a child by exposure
  • Possession of a firearm by a felon
  • Tampering with evidence
  • Assault of a public servant or peace officer
  • Injury to elderly/child/disabled person
  • Escape (when underlying offense is a felony)
  • Stalking
  • Intoxication assault (i.e. injury someone while committing a DWI)
  • Bail jumping

Monday, December 7, 2009

Jury trials this week