What exactly IS probation?

It's a term we see in the newspapers all the time. And the majority of successfully prosecuted criminal offenses in Travis County are addressed with some form of probation.

But what does it mean, exactly?

Many things, in reality. The beauty of probation as a resolution to an offense is its inherent flexibility. Basically, fundamentally, it is a prison sentence that is put on hold for a period of time, during which the probationer must follow certain conditions imposed upon him by the court. In the case of a plea deal, these conditions are agreed to by the State, the defense, and the court.

So, for example, if you are convicted of felony DWI you might be given a five year prison sentence, but have that sentence probated for seven years. That means that during that seven-year period you will have to abide by a set of conditions and if you don't, the judge can revoke your probation and sentence you to any term of between two years (the minimum for a felony DWI) and five years (your original sentence).

These are some of the conditions normally associated with probation:

• a number of community service hours (picking up trash, sorting clothes at a charity store, etc.);
• treatment for drug or alcohol addiction (which can be either in-patient or out-patient treatment);
• counseling for other issues (e.g., anger management);
• obtaining education (especially for younger defendants);
• a fine;
• a requirement to stay away or not contact an individual (in cases of assault) or a place (in cases of theft);
• paying restitution to the victim (e.g., in theft cases, or assault cases when medical services needed paying for);
  
• other prohibited activity: owning a weapon, drinking alcohol, driving even;
• testifying truthfully at the trial of a co-defendant;
• jail time. As a condition of probation, a defendant can agree to or be ordered to serve up to six months in the county jail.

I expect I have forgotten some, but you get the idea. Basically, in a plea deal, because the conditions are agreed to by the defendant pretty much anything goes.

Probation, if diligently observed and enforced, can be a great way to get someone back on track. It is dependent on that person working towards law-abidingness (yes, that's a word now).

But probation has another function, as well as being used for rehabilitation: a second chance. Every now and again, someone behaves out of character and does something illegal, perhaps even seriously illegal. In those instances, probation can be a recognition that the act was a one-off and that the person deserves punishment in the form of community supervision instead of time in the penitentiary.

Until recently probation was available for pretty much every offense on the books, but then the legislature decided that one offense never warranted probation: murder. I can see why they might have done that.

And now for something a little different

Being Thursday, it's normally the day I recommend a crime-related book. But today I wanted to post a book trailer. You can't read the book itself, not yet, but it's definitely on-topic: a thriller. I hope you enjoy it.

Those California crazies... or are they?

Gotta love California. Not only do they produce our movies, our wackiest news stories, and some of our avocados, but they have Arnie. And he hit the headlines yesterday while talking about the state's massive budget deficit. His idea is that California could save a billion dollars if 20,000 illegal immigrants currently held in the state were housed across the border in Mexico.

"Think about it -- if California gives Mexico the money. Not 'Hey, you take care of them, these are your citizens'. No. Not at all," Schwarzenegger said. "We pay them to build the prison down in Mexico. And then we have those undocumented immigrants down there in prison. It would half the costs to build the prison and run the prison. We could save a billion dollars right there that could go into higher education."

Oddly enough, one of my friends suggested this exact same thing to me earlier in the week. Seems like if my friends are thinking about this, and if Arnie's thinking about this, maybe I should, too.

First, saving money... I like that idea. Assuming that the cheap costs of labor and materials off-set the loss of local employment (I'm sure Governor Arnie's economists tackled that one, right?), then we can put a check beside "saving money."

What other considerations are there? Well, from a defendant's perspective it could go either way. Many undocumented immigrants have large families here in the U.S., so sending them back "home" to Mexico would be harsher than keeping them in state. Also, what of those from Honduras or elsewhere in South and Latin America, do they go too? On the other hand, many illegals have their families in Mexico, so sending them back would in some ways be better than a long prison sentence in Texas. How many there are of each would require some sort of study, I assume, though good luck finding someone to pay for it.

What about the victims of crime? How would you feel if the man who raped/assaulted/ran over you or your loved one was shipped home to do his time? Hard to say. I bet the prime concern would be ensuring that the sentence given was the sentence served. You have to wonder how it would work out in reality, whether the folks running the prisons would figure they could make good money taking prisoners from the U.S., but make more by releasing them early. After all, parole isn't established up front, there is a good deal of discretion involved. And it's entirely possible that, once on foreign soil, a shift in that country's relations with the U.S. could mean serious criminals released after doing very little time.

And what of parole? Who makes that decision? Is it out of the hands of U.S. authorities? And if we want to retain control of parol, do we then have to train or set up parole boards south of the border to make sure it's done our way? You run the risk not only of someone being released early from their sentence, but essentially not being on supervised parole afterwards. That means, in effect, that an illegal immigrant gets a "break" that a U.S. citizen serving time in his home state doesn't get. In theory, of course.

This seems very much like the privatization of prisons to the next degree. For me the central questions revolve around, as I've said, the control of the release date, supervision after release, and conditions in which inmates are kept. The more I think about it, the more it seems like much of the staffing would have to be by U.S., or U.S.-trained personnel to make sure the "system" ran similarly to its cousin here. And so there go some of your cost savings.

Unfair comparison or not, it makes me think of the old days when we (as in "we the British") shipped our inmates off to Australia. You want to know how that ended up? They got beautiful beaches and month after month of sun, and we got several centuries more of drizzle. Shipper beware.

The truth is, I've only spent about thirty minutes noodling the issue. Which sounds like a great opportunity for a poll, so click away, what do you all think?

Docket follow up

See, this is what I like. Comments. Implied criticism. Even anonymous implied criticism. Here's the comment and, below each point, my response (oh, but click here for the post that prompted the comment):

Not sure if its intentional or not, but you forgot to mention to Steve how the State isn't always "prepared" at each setting.

My omissions are always intentional and designed to cover up my own personal and professional failings, which are many. Seriously, just a reminder that this blog doesn't pretend to speak for every ADA or every court. It's about me (isn't everything?!) and my experiences here. I don't pretend to, and never could, speak for my colleagues or the office as a whole.
Disclaimer over, I will agree with you that prosecutors are not always 100 per cent ready. Sometimes we haven't been able to contact the victim, or obtain judgments, or track down a crucial video. When that happens to me, I apologize profusely and try to see what else I can do to help resolve the case the next time around.

I'm sure DAC is an exception and never asks for continuances, ...

That's more like it! Perfection isn't easy, but I strive to do my best. Actually, I have never asked for a trial continuance. Probably out of luck more than anything, but there you have it.

but in other courts, especially the county courts in the very same building, sometimes its the defendant that's begging for a trial and either: 1) the State's not ready or 2) the court's jury trial calendar is so backed up that three and four year old cases are just now coming up for trial.

See disclaimer above about speaking for myself. And I've never practiced in the county courts, I was lucky enough to hop straight into felonies, so I won't even try to explain what's going on there. I will tell you that not a single one of our 300+ cases is anywhere near three years old. I'd bet good money none are two years old, and if they are it's because the defendant went on the lam and not because we haven't been ready to resolve it, through plea or trial.

In the second scenerio [sic], which is incredibly, and criminally some might think, common, the judge and the chief prosecutor in that court deserve most of the blame, it appears.

This just seems odd to me. I don't doubt you because, as I said, I've not practiced in the county courts. But a three year old case? Where the prosecutor is to blame? I'd be very curious to know more about this because in my limited experience, judges like to move their cases along, and prosecutors know that the older a case is, the harder it is to prove. So I'm very interested to hear that there are such old cases in the county courts.

This week's trials

See, I told you I'd get back to it... here's what's in store in the district courts this week:

147TH JUDICIAL DISTRICT/ JUDGE FLOWERS

DEFENDANT: JOHN BETLISKEY

OFFENSE: AGGRAVATED ASSAULT w/ DEADLY WEAPON

PROSECUTORS: JASON KNUTSON and CHRIS BAUGH

DEF. ATTORNEY: JON EVANS

403RD JUDICIAL DISTRICT/ JUDGE KENNEDY

DEFENDANT: WILLIAM GOODE

OFFENSE: AGGRAVATED ASSAULT w/ DEADLY WEAPON

PROSECUTORS: JUDY SHIPWAY and KATIE SWEETEN

DEF. ATTORNEY: KEITH LAUERMAN

331ST JUDICIAL DISTRICT/ JUDGE PERKINS

*JURY SELECTION BEGAN 1/19/10

DEFENDANT: MILTON GOBERT

OFFENSE: CAPITAL MURDER

PROSECUTORS: ALLISON WETZEL and GARY COBB

DEF. ATTORNEYS: KENT ANSCHUTZ and LEONARD MARTINEZ

The Judge Speaketh (again)

Okay, so he's not that formal. But Judge Mike Lynch did want to respond briefly to a couple of comments that were posted after his interview, which you can find here.

Here's what he has to say:

Response to Anonymous who thought me arrogant: My joke about never being late was, I admit, pretty lame. I also should have realized that in our world today, where there is little trust or faith in public servants, it was an ill-advised comment, and I should have stuck with a serious and factual response. However, I do believe that a little levity in our line of work is important in staying balanced, and I even employ it in the courtroom when appropriate.

My staff and I are available to conduct the public’s business on a timely basis, and we are able to complete approximately 1600 felonies per year. Also the district attorney, police, and defense attorneys have access to my phone number for emergency arrest or search warrants or bond issues that come up after hours.

I do appreciate your strong feelings about public servants earning their pay and will accept your comments as a (never harmful) reminder of who employs me.

Response to Anonymous who wrote about judges being influenced by donations: In my own case, I did receive contributions mostly from defense lawyers. However, since I left the DA’s office to run for judge, many of my strongest supporters and most influential ones were prosecutors, including the DA himself who appeared in two of my TV ads. Today I have close friends on both sides, but every one of them realizes that what goes on in court is separate from any friendship. Truly it’s easier to just rule according to the law, and let the chips fall where they may, than to try to figure out which side I’m most beholden to.

More generally, I do understand that such contributions create at least the appearance of impropriety and this is a legitimate concern for the justice system in Texas. As other writers have pointed out though, finding a solution that doesn’t create worse problems is not an easy proposition. I do support efforts being made to find a system that alleviates this problem and hopefully will increase confidence in our system. It is disheartening to see the level of distrust that apparently exists, especially when I believe most lawyers and judges to be honest and ethical.

Victims speaking out

One of the reasons I write this blog is that I believe that those not involved in the criminal justice system should be able to see a little of what we do here. I also think people are inherently interested in crime and criminal law. But sometimes I know that those who experience a crime first hand are the ones who feel the most left out.

Here in Texas we have a process called allocution. Here's how it works: after a defendant is found guilty or pleads guilty, he is sentenced by the judge. At that point, he remains in the courtroom while a victim, or relative of the victim, has the opportunity to speak directly to him.

The idea is to give the victim a chance to express face-to-face the hurt they have gone through, more to give the victim a sense of closure and involvement than to bring any real understanding to the defendant, I think.

And this topic comes up now because yesterday I had some people come in from out of state to allocute in a very sad case, one in which three people were killed. This is the story. Talking to the family members on the phone over the past months, I could tell they felt distanced from the proceedings, a little too uninvolved. And that, it seemed to me, made them feel powerless and to some degree frustrated. I definitely got the sense that they wanted to be a greater part of the resolution of this case, and I suspect that a full-blown trial, with them watching if not testifying, would have helped assuage the feeling of being outside the process.

Which is where allocution is so good. Sometimes a trial isn't the best resolution, from anyone's perspective. And to bring the families of those killed into court, have them face the man responsible for their pain, is a way to address their needs. Allocutions are hard to sit through, unbearably sad most of the time, but they have become a useful part of our process of justice. These moments are more than just symbolic exorcisms of grief for the families, they are a way to feel a part of justice, a way to empower them and to make the process itself less of a burden and frustration to them.

There were a lot of tears in the courtroom yesterday but there was also a great deal of relief. I know the words of the friends and family got through to the defendant, that was plain for anyone to see. But those words also gave, I am sure, those who had been wronged a sense that they had finally been able to affect the process, take an active role in the application of justice. I try hard to tell families that the length of a prison sentence isn't a proxy for the value of their loved one's life and I saw yesterday that some of those good people realized that it wasn't a huge prison sentence they needed, it was a chance to speak directly, from the heart, to the man who had taken away their son, daughter, and friend.

Murder in Austin (a looong time ago)

For my Thursday book recommendation, and after a recent non-fiction kick, I'm drifting slowly back to fiction, but a via book that is based on real people and real murders.

It's called A TWIST AT THE END and it's by Steven Saylor. The story revolves around a series of murders at the end of the 19th Century, here in Austin. The killer was dubbed "The Servant Girl Annihilator," which is a graphic, if hard to spell, nickname. Rather theatrical, if you ask me. Anyway, the book gives a great account of these murders as well as the city of Austin itself in the late 1800s. One of the main characters is O. Henry, the wonderful short story writer, who was even a suspect at for a time.

There was even talk that Austin's killer, who was never caught, traveled the oceans and became Jack the Ripper. A fascinating subject and a great book.

Docket report

I thought it might be time for another Docket Report, a look at the cases on yesterday's court docket. The previous one, for comparison, is here.

But first a quick response to Steve, who asked this after the first docket report a couple of weeks ago:

What is interesting to me is how many of the cases are "reset". I thought these defendants had to be prepared by the court appearance date. Some of these must drag on for some time until resolved. Most interesting. Quite the workload.

You are right in that most are reset. Resolving a case requires the ADA and the defense lawyer to have a meeting of the minds, so imagine a triangle where the lawyers start at "He's guilty of the crime charged and deserves a prison sentence" and "He's innocent and should be released," respectively.

They share evidence and information and their positions change to something more like, "He's guilty of the crime charged but deserves a long probation" and "He might plead guilty to a lesser charge if he gets a short probation." And so on, until they finally meet at the tip of the triangle. Or go to trial if no agreement can be reached.

As for the defendants being "prepared," they do have to be present at each court setting so when, as you note, cases take a long time to resolve, I have no doubt it can be frustrating.

Now, yesterday's docket, a light one for me as it turned out:

50 defendants with 73 cases (as before some defendants had more than one case pending against them)

Of these, I am responsible for: 7 defendants with 8 cases

Here's a breakdown of my cases, what they were, and what happened to each:

Possession of controlled substance:
1. Reset for my plea offer to be conveyed to defendant
2. Reset for suppression hearing

Aggravated robbery:
1. Reset by defense counsel
2. Pled guilty to robbery, received probation

DWI 3rd:
1. Dismissed (because defendant pled guilty to intoxication assault)

Intoxication assault:
1. Pled guilty, received probation

Theft:
1. Pled guilty, received jail time

This week's trials

I've been slack about posting the cases being tried here, but I'm back to it now! Here goes:

331ST JUDICIAL DISTRICT/ JUDGE PERKINS

*JURY SELECTION BEGINS 1/19/10

DEFENDANT: MILTON GOBERT

OFFENSE: CAPITAL MURDER

PROSECUTORS: ALLISON WETZEL and GARY COBB

DEF. ATTORNEY: KENT ANSCHUTZ and LEONARD MARTINEZ

Here's a news story on the case.

427TH JUDICIAL DISTRICT/ JUDGE CORONADO

DEFENDANT: ALEJANDRO CASTILLO
OFFENSE: SEXUAL ASSAULT
PROSECUTORS: ERIKA SIPIORA and JOHN HUNT

DEF. ATTORNEY: JOHN BUTLER

299TH JUDICIAL DISTRICT/ JUDGE BAIRD

DEFENDANT: KLAUS MEEKS

OFFENSE: ASSAULT FAMILY VIOLENCE and AGGRAVATED ASSAULT

PROSECUTORS: JEREMY SYLESTINE and ALLISON BENESCH

DEF. ATTORNEY: MARK WESTENHOVER

Long weekend round-up

So I've been busy having nothing to do with crime for three days, how about you? I did poke around the internet a little for today's post, though, to see what other people are up to.

First, we have a fellow I'm sure psychologists would say has some kind of guilt complex, and therefore wants to be caught. How else do you explain a serial car burglar who tases himself and puts himself in handcuffs?

In Texas we'd probably be okay, but those crazy New Yorkers need signs to tell them when not to get hit by cars. Trouble starts, though, if those signs start telling people to Walk and Not Walk at the same time....

I hear a lot of excuses in court, a lot. But I've never heard anyone try the "No, it's okay, I'm Batman" defense. Wonder if it'll work.

Here's another "glad I live in Texas" story, because I know it wouldn't happen here: family escorted off their own property after squatters (in Texas: burglars) call the cops. I guess that changes the saying to, "My home is your castle."

And finally, something that reminds me of my kids. No, don't worry, they don't drive. They do, however, hide in very obvious places and giggle like mad because they think we can't see them.

Follow up to Judge Lynch interview

For anyone who missed it, here is the interview I did with Judge Mike Lynch, posted earlier this week. It provoked some great comments, and one person asked a great and very fair question, which I shall try to address (and Judge Lynch himself will respond to at a later date):

"In Texas we have a system that allows defense attornies [sic] to make political contributions to help judges get elected. Tell me how you can be objective when the defense attorney appearing in your court has been instrumental in getting you elected and lives in your neighborhood. As the father of a murder victim I find that very troublesome."

First of all, my condolences on your loss. I have dealt with a number of parents who have lost children to those committing crimes, from murder to DWI. Their pain is real and trying to bring them a measure of justice and some sort of closure is one of the main reasons I do this job.

Second, moving on to your question, I think there are a number of possible responses. No doubt I'll miss some, and feel free to take issue with those I do mention.

1. Most, if not all of the judges I have met do what they do for the same reasons I do my job: they have a deep respect for the law and believe that by its proper implementation wrongs can be righted, to some degree anyway. This means that a donation three years previously, or even a week previously, by one defense lawyer will not alter a fundamental belief that they are on the bench to do the right thing, as best they can. Judges, in my view, simply aren't that malleable.
2. Defense attorneys, like prosecutors, appreciate a fair and knowledgeable judge. We really do. The best thing I can say about the two judges I have practiced in front of here is that they are fair and know the law. Look at it this way: what would happen if a judge sided with the defense lawyer no matter what? First, he'd lose all respect around the courthouse and that does matter. Second, more importantly, he'd find a lot of his cases being bounced back by the court of appeals. And believe me when I say that matters even more! Judges like to get it right and hate to be reversed. And the only way to get it right is to apply the law evenly and fairly.
3. The donating of campaign funds is only one measure of potential influence. Remember, I practice in front of the same judge day in and day out for months, even years. A defense lawyer, or defendant, could counter your concern by saying: "Jeez, those guys know each other and work together every day. Totally unfair."
4. There is also the practical effect of incumbency. No judge I know is ever complacent about their position but it's a truth that a sitting judge is hard to remove in Travis County. I know of only one instance in the criminal district courts in 20 years (coincidentally, Judge Lynch replaced a sitting judge). This means that the potential effect of a campaign contribution is even further diluted - if the defense lawyer doesn't like a ruling and stops contributing, it doesn't matter too much.
5. Prosecutors get to contribute, too. I think. Never done it myself because I have three little kids and don't make enough to be giving it away but as far as I know, we are allowed to make contributions, too.
   

A nice walk in the country

Okay, so "nice" is the wrong word. And by "country" I am referring to someone else's, a place so large and cold it makes Alaska look like Florida. Sort of.

This week's selection is a book that will make you glad to be you, and glad to be wherever the hell you are right now. It's called THE LONG WALK, by Slavomir Rawicz. It's a true story, and here it is in a nutshell:

A Polish Army officer, the author Rawicz, is captured and then tortured in the Soviet prison system and sent to the Gulags. Faced with misery in Siberia and probable death, he and a band of others escape and undertake a two thousand-mile long journey from the snows of Siberia through Mongolia, the Gobi Desert, and across the Himalayas toward British India and freedom.

If you want a book that makes you shake your head at the cruelty of some, and the resilience of others, this is for you. But wear woolly socks when you read it, you'll need them.

Q and A with Judge Mike Lynch

Meet Judge Mike Lynch of the 167th District Court, Travis County, Texas. Or, as I call him, Your Royal Highness.
Judge Lynch is the judge in the court in which I practice every day, and presides over all types of felony cases including theft, DWI, drug cases, robbery, sex crimes, serious assaults, and murder. See below for how long he's been on the bench but I can tell you how good he is: in 1876, after completing sterling service as a Major General for the Union, he was elected "Ye fineste Judgee of the Yeare." Ironically, a few years later on the same date, he was peppered by Teddy Roosevelt in a hunting accident, after the President mistook the bewigged Judge Lynch for a six-foot rabbit. And that, ladies, and gentlemen, is precisely why the American judiciary abandoned the English practice of wearing wigs in court.

Now then, all seriousness aside, Judge Lynch was kind enough to take the time to answer some questions for those who might be interested in his role in the criminal justice system. You should also know that he encourages members of the public to visit his court, to watch trials and ask questions (please wait until the witness leaves the stand).

What is your legal background?

I graduated from U. T. Law School in 1974 and practiced criminal defense law for nine years with my own four man firm. After I sold my interest in the partnership in 1983, I took a couple of years off from the practice of law. I returned in 1985 and worked for two years with the Texas Attorney General’s office. In 1987 I moved to the Travis County Attorney’s Office and was head of the division that made the initial decision on whether or not to prosecute criminal misdemeanor cases. I later moved to the District Attorney’s Office and became Chief of the White Collar Crime and Public Integrity Unit. We prosecuted offenses involving major theft or fraud and public corruption cases involving public officials or employees. In 1992 I ran for, and was elected Judge of, the 167th District Court and took the bench in 1993. This Court has general jurisdiction but by tradition and practice handles solely a felony criminal docket.


Why did you decide to run for office?

I never really thought I would seek to be elected a judge. It was never a goal when I went to law school or was practicing law. I didn’t want to make those tough decisions; I just wanted to be an advocate. However, when many friends and associates (with and against whom I had tried cases for years) urged me to run and agreed to help raise the necessary money, I decided to give it my best effort. With their strong support, I was able to win the election and have been fortunate not to have an opponent since.


What's the best thing about being a judge?

The job of district judge in Texas is one vested with a considerable amount of power and authority. It is satisfying to be able to use the position to resolve difficult issues, foster compromise, and hopefully bring some peace and closure to people dealing with stressful and painful situations. I also enjoy dealing with people--either informally working out cases and problems or overseeing formal felony trials in court. Also, when you run your own court, you get to set the agenda and hours; if you aren’t there, nothing happens, so you’re never really late! That comes in pretty handy sometimes.


What's the worst thing about being a judge?

I do not like sending people to the penitentiary, especially young people with their whole lives in front of them. It may be necessary and appropriate to insure community safety, but I still consider it an overall failure.
I have had to sentence people convicted of capital murder to the death penalty and have had to set their death dates. This is the worst part of the job and the part that troubles me the most.


What makes for a good prosecutor, from your perspective?

A good prosecutor has a good understanding of human nature and an ability to read and understand people. These skills help in all facets of the job: negotiating plea agreements with defense lawyers, determining the credibility of alleged victims and other witnesses, cross-examining defendants and other hostile witnesses, picking juries and assessing jurors’ reactions to evidence during trials, working with egotistical judges who think they know it all, etc. He or she must also have empathy and a sense of compassion that allows for fair resolution of cases even when he or she is holding all the cards.

Great prosecutors have all the above qualities plus great trial skills. They can think on their feet and while in the middle of questioning a witness or arguing a point on a completely different matter. They can anticipate the strategy of their opponent and take action to reduce or negate the effectiveness of that evidence. They can conduct themselves in the courtroom in a professional, open and honest manner and with such confidence that they gain credibility with the jury.


What makes for a good defense lawyer, from your perspective?

A criminal defense attorney, to be really effective, needs essentially the same traits as those set out above. Other qualities are, in my opinion, necessary as well. First, the defense attorney must be able to adapt quickly, be flexible in his approach to a case or trial, and instinctively know when he needs to bluff or play it straight. These are important because often the defense attorney is fighting an uphill battle with fewer resources, fewer professional witnesses, and with the evidence stacked against him. In addition the defense attorney needs confidence and a reasonably healthy ego. Even good lawyers in this business often lose more than they win. They need to be able to take a bad licking one day and come back the next with another client ready to do battle with the State.


Have you seen a shift in the types of crimes being prosecuted in your court over the years?

During my time as a lawyer and judge there has been a substantial increase in certain types of criminal cases being prosecuted. Probably the most significant are child sexual/physical abuse cases and spousal abuse cases. I believe the difference is due more to the special emphasis placed on the investigation and prosecution of these types of crimes than on an actual increase in this type of violence.

A fine piece of lawyering

I'm starting a new and occasional segment that acknowledges a particular piece of fine work by someone in the criminal justice arena.

Now, be clear that we all expect high standards from our ADAs, judges, and criminal defense lawyers and by highlighting individual moments of excellence I am not suggesting, implying, or indicating that the person featured or his colleagues customarily engage in sub-standard work or blah blah blah... insert disclaimer here.... blah blah blah

Disclaimer over.

Okay, I'm starting with me, because I am awesome.

Right then, moving on to the next instance of excellence, we have The Case of the Screwed-Up Scram.

It began with an individual being arrested for felony DWI. He bonded out of jail but one of the conditions of his release was that he wear a Scram device. As explained by Austin law firm Sumpter and Gonzalez:

"A SCRAM device is a tool used by courts, probation departments, and sometimes defense attorneys to monitor a client’s blood alcohol content level. It is worn around one’s ankle and takes samples of perspiration every 30 minutes to monitor and report blood alcohol levels. Data from the device is transmitted to the SCRAM company at least once a day. If alcohol consumption is indicated, the data is forwarded to SCRAM technicians who verify the drinking event before alerting court officials."

(Here is the full page on the device, and here is the firm's homepage in case you find yourself wanting one or wearing one. :))

Where was I? Ah yes, the gentleman wearing a Scram. I'll call him Mr. Smith. So his bond was revoked and he was put back in jail when his Scram showed he'd been drinking just before Christmas. He told his lawyer (a young man I checked with today, and who was too modest to allow me to use his name, so I'll call him Mr. Jones*) that he'd not been drinking. Insisted, in fact, that he'd not been drinking. So, doing his duty, Mr. Jones went before the judge and tried to explain that there'd been a mistake. So the judge, wanting to be fair, had the people responsible for the Scram come into court.

They showed him their proof, a print out of a black-and-white graph.

On that graph were two lines, one showing whether the Scram had been tampered with, one showing whether Mr. Smith had been drinking. Both lines spiked. Thank you Scram people, Mr. Smith stays in jail.

But Mr. Jones wasn't satisfied. Presumably because his client was less than satisfied and, oddly in the face of technical and scientific evidence, still claimed to have been at work and not drinking.

So Mr. Jones went back to the Scram office and obtained another copy of the graph. But he made to sure to get a print out in color, not just a photocopy. Lo and behold, the color graph contained three lines (as opposed to two), each a different color:

• one showing whether Mr. Smith used alcohol
• one showing whether Mr. Smith tampered with the Scram
• one showing Mr. Smith's body temperature

The spikes were in the bottom two lines, the ones showing body temp and tampering. The line showing his alcohol use was a flat-line at the bottom of the graph, and had been mistaken by everyone as the baseline, the line you'd draw at the bottom of every graph.

Ooops. Mr. Smith had not, it was now clear, used alcohol.

But that still left the tampering spike. Well, the ever-diligent Mr. Jones obtained the second page of the Scram report, which showed examples of spikes when the Scram had aluminum shoved under it, a wet cloth stuck under it, and when a sock got stuck under it.

Guess which it was? Right, the sock.

Finally, Mr. Jones obtained proof from Mr. Smith's employer that he'd been at work when he said he had. Even better, the hours he'd been at work were almost exactly the hours his sock had messed with the Scram.

Result: the judge commended the defense lawyer on his excellent work and politely requested the presence of the Scram people. I was not privy to all of what he said to them but I do know that they accepted responsibility for the mistake and it, hopefully, won't happen again.

So, Mr. Jones (if that is your real name) as I told you in court, and as the judge said:

Good work, sir.


* 1/12: I just got permission to identify today's hero: Matt Dorsen, who works for lawyer Steve Lee.

Some Monday fun

I'll be in trial this week... or some of it, which is always serious business. So I'll start my week, and yours, with a flit about the globe for some entertaining and amusing news and info.

First, the mandatory dumb criminal story. With a twist. See, the story right now pegs him as brighter than most because he's taunting the British bobbies and getting away with it. However, my bet is that in a week or two there'll be an update to the story in which he's sporting some new jewelry around his wrists. But maybe I"m just an optimist who hates show-offs...

Now then, if you are on the run it seems like you'd need to James Bondify yourself a little. You know, learn some new tricks to stay one step ahead (I'm betting one would be: stay off Facebook). So here are six "badass skills" you can learn in just a few days.

I saw the headline for this story and almost had a fit: the defendant in one of my DWI cases was a hearse driver. Not this one, though, thank heavens.

Crime lord. Fake penis. $43 bail.

And now a truly dumb criminal. Which is surprising considering that he's a "doctoral student in a joint molecular biosciences program at Rutgers University." Maybe he's just a selfish bugger.

Penthouse Magazine. A basic right. Yeah, right.

And I end with a warm and fuzzy thought: if you thought political correctness had gone too far here in the U.S., try sending emails in England. Or, as the case may be, not sending them. I quote the first paragraph of the story:

"A wealthy businessman was arrested at home in front of his wife and young son over an email which council officials deemed ‘offensive’ to gipsies – but which he had not even written."

And from me to the British authorities (read the story before reading on): likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey

You do what, again?

Everyone knows we go to trial. No surprise there. But I tried five cases last year, none lasting more than a week. And they paid me for more than five weeks' of work, so I must have been doing something, right?

Right. It's called docket.

Trouble is, when I use that word, eyes glaze over. Docket. It sounds like a boring word, a lawyerly, uninteresting, dry piece of paper with... something on it about... someone. What the hell IS a docket, anyway?

Glad you asked. Because I'm in there, Monday-Friday on non jury weeks, and Monday AND Friday on jury trial weeks.

Overview: docket is when ADAs and defense lawyer meet in court to discuss cases set that day. Some are pled out there and then, some are set for trial (by judge or jury), and some are set for hearings (for example, a motion to suppress evidence).

Take these stats that I compiled (just for you, mind) from a morning docket from earlier this week (bear in mind there are five ADAs assigned just to our court), That morning, the docket consisted of:

55 defendants with 66 cases (probably obvious, but some defendants have more than one case pending against them)

Of these, I am responsible for: 19 defendants with 23 cases

Here's a breakdown of my cases that day, what they were, and what happened to each:

DWI (3rd offense)
1. defense atty didn't show up, reset
2. reset so defense counsel could view police video tape
3. reset for defense counsel to gather evidence
4. reset-- recently indicted case, both sides doing discovery
5. agreement reached, defendant pled guilty

Forgery
1. negotiated with defense counsel, reset
2. as above

Agg Assault with deadly weapon
1. reset so I could contact victim
2. as above
3. as above

Attempted burglary of habitation
1. reset so I could contact victim

Assault causing injury to family member
1. defense lawyer showed up late, case reset

Possession of marijuana
1. plea deal reached, reset for sentencing

Possession of controlled substance
1. case only recently indicted, reset for both sides to conduct discovery
2. agreement reached, defendant pled guilty
3. agreement reached, case reset for probation to prepare report
4. case reset for more discovery
5. case reset for more discovery
6. as above
7. as above

Attempted arson
1. reset for both sides to do discovery/gather evidence

I think I got my math right, and that's all the cases.
Let me know if this is interesting or not, if so I might do it once a month or so. If not, I won't. :)

The Spy Who Got Away

This week I'm recommending an older book, and one I'd not heard of until suggested to me by a colleague in the defense bar. It's non-fiction and it's called THE SPY WHO GOT AWAY by David Wise.

Wise is a writer and journalist who spent a lot of time researching and interviewing for this book, and it shows. The most amazing thing is that the spy who is the subject (who defected to the USSR) cooperated and gave interviews.

Sometimes a tad dry, because a lot of the CIA stuff has to be explained, naturally, it really is an interesting look back into the Cold War tussle between the US and the USSR.

Basically, the story is about Edward Lee who was about to be sent to Moscow as a case officer when he failed a routine polygraph... and it all went downhill from there.

Too harsh? More on enhancements...

After yesterday's post, reader RG asked a couple of very good questions in the comments. They are highlighted and bolded below, and I'll respond as best I can to each in turn:

DAC, how much discretion is there on the part of the judge / jury to impose these types of "enhancements" at sentencing? Or is it completely automatic? It seems almost too harsh to put someone behind bars for 25 years to life for their fifth DWI.

The enhancements themselves come into play when they are alleged in the indictment, and proven at trial. If both of those things happen, the judge or jury has no discretion, no legal ability, to go below the minimums.

Now, what happens in many cases is that we allege the enhancements and make sure we can prove them. Then, during plea negotiation, we have our strongest hand available to help us achieve what we think is, ultimately, the fairest and most appropriate sentence. As an ADA, then, if I have a defendant looking at 25-life for his fifth DWI, I can waive an enhancement and bring the charge back to a second degree, and offer him a plea deal of anywhere between 2-20 years.

Sometimes the hammer of a large sentence is actually useful for getting a defendant with a substance abuse problem into a good, long, in-patient treatment plan. If I can stand there and say, "Hey, you can either do the treatment or go to the pen for X years," then sometimes a good end can be achieved.

As for whether it's too harsh, that depends entirely on one's own personal perspective. What I can tell you is that some of the saddest and most heart-breaking cases I see are those where some innocent person is killed by a drunk driver. If someone has an alcohol problem they simply refuse to address or acknowledge, some people think that at a certain point we have to stop worrying about fixing the culprit and worry more about protecting the community. But it's a tough balance and one that is constantly debated.

Here is one case I had last year, and feel free to comment: it was pretty much as the hypo above, fifth or six DWI plus the defendant had been to the pen for a drug offense. The minimum was 25 years, I offered about a third of that for a guilty plea on the DWI. Three defense lawyers, one after the other, begged him to take the deal. He refused. He even testified that he'd been drinking, taken prescription pain killers, and when stopped was on his way to buy more beer.

As I told the jury, my concern was that he was driving drunk and simply didn't think he was doing anything wrong, which meant he'd do it again... and again. And the kicker, which we weren't able to tell the jury at the time, was that he was on parole for a 25 year sentence for... DWI! (I'm not revealing secrets, by the way, all this is public record.) He ended up being found guilty and punishment was assessed at 25 years, the minimum.


Also, I really have to wonder what the defense attorney told those defendants after their fourth DWI conviction - were they aware of the probable outcome of their continued "diligence?"

I hope some of my friends in the defense bar will answer this one. I can assure you that all the defense lawyers I know will fully explain the consequences of a client's actions to him or her. As in the previous case, all three guys who represented the defendant warned him what he was facing. And clearly he knew himself the penalty for his next DWI, as he'd already been given 25 years for that offense! But I think there is only so much a defense lawyer can do because, in the end, it's their client's decision whether or not to take the deal or go to trial.

From where I stand, I do see frustration on the part of the lawyers sometimes. I think several things can happen. First, you have the proverbial "jailhouse lawyer," another inmate who tells their client what deal he is entitled to, because he knows a guy a couple weeks back who did the same crime and got X deal. Well, no two crimes are alike, and no two defendants are alike. And, of course, no two ADAs are exactly alike. Second, I think sometimes there is a mistrust when a lawyer is appointed by the State, a mistrust that can rise to the level of paranoia in some instances. And third, there can simply be a refusal to accept reality, call it denial or whatever you want. Maybe the defendant doesn't think what he did was that bad, or maybe he thinks his lawyer will really get him off, I don't know.

I do know that this is partly why I respect those guys, the criminal defense lawyers, so much and why I'm glad I have my job and not theirs!

Beware the enhancement (Or: A Life Sentence for a Misdemeanor)

Let's start with a riddle:

How can you commit a class B misdemeanor offense, but get a life sentence for it?

Okay, so now we've finished with the crimes and punishments that make up the various felonies (recap: state jail, third, second, and first) the whole system is thrown out of whack by what are known as "enhancements." These reflect a defendant's criminal history and can bump him up a level or two if his history is bad enough.

Or more. (See where we're going with this?!)

Below are some of the most common examples.

Enhanced to State Jail Felony:

Burglary of a vehicle - normally a Class A misdemeanor, but if you have three prior convictions for that offense, your new one is a state jail felony.

Theft - likewise, if normally a misdemeanor your third will be a state jail felony.

Prostitution - normally a misdemeanor, but if you have three prior convictions for this offense, your new one is a state jail felony.

Enhanced to Third Degree Felony:
If you have two trips to the state jail, any new state jail offense will become a third degree felony.

Enhanced to Second Degree Felony:
If you have two prior felony convictions, for which you went to the penitentiary (known as a "pen trip"), a state jail felony becomes a second degree felony.
Likewise, a third degree felony with a prior "pen trip" becomes a second degree.

Enhanced to First Degree Felony:
A second degree offense, when you have a prior pen trip, becomes a first degree offense.

Furthermore:
A first degree felony, with a usual punishment range of 5-99 years (or life) has the minimum raised from 5 to 15 years if you are charged with a first degree felony and have one prior pen trip.

And the kicker: Habitual
If you are charged with any first, second, or third degree felony, and have two prior pen trips, the punishment range becomes 25-99 years (or life).

So, returning to our riddle:
How can you commit a class B misdemeanor offense, but get a life sentence for it?

Here's how:
You commit your first DWI offense, a class B misdemeanor.
You commit a second, and this time it's a class A misdemeanor.
Your third is a felony, for which you go the penitentiary.
Your fourth, is enhanced up to a second degree, and again, you face a trip to the pen.
Your fifth DWI, then, lands you in felony court facing a minimum of 25 years in the penitentiary, and a maximum sentence of life.

So, as you can see, it takes some diligence on the part of the defendant, but it's perfectly possible to turn a class B misdemeanor into a life sentence.

Think it doesn't happen? Last year, I had two cases that came about pretty much as outlined: DWI defendants that just wouldn't quit.

Happy 2010!! Now for some predictions....

Happy New Year!!

I thought I would kick off the new decade with some predictions, and feel free to hold me to them.

1. I will not lose a jury trial in 2010.
2. Kinky Friedman will not become Governor, Lt. Gov., or the D.A. for Williamson County.
3. I will refuse to participate in a single jury trial in order to satisfy prediction #1.
4. I will move into an office with a window. Seriously, that's a big deal because only 50 percent of offices have them.
5. Some smartass will point out that prediction #4 was satisfied a week before I made this list.
6. I will give up beer, wine, and martinis.
7. I will fail to delete this blog entry in time after the body of some smartass is dragged from Lake Travis.
8. I will be questioned by detectives who catch me attempting to flush my laptop down the toilet. They will stand there and mock me.
9. I will take up beer, wine, and martinis, and possibly invent the beweenie (which, unsurprisingly, will be a blend of ale, merlot, and gin).
10. I will be distracted by one of my kids setting fire to the dog and not fini