Tuesday, May 25, 2010

Some courthouse myths exposed

Looking through past blogs and encountering questions from friends who don't enjoy the criminal lifestyle, I often come across questions or comments that make me think, "Huh, don't people know that . . .?"

Here are a few random answers to questions that no one has asked in recent days. But they have in the past, and they will in the future.

1. Trial Transcripts. This comes up mostly from jurors during trial, actually. "Can we see the transcript please?" Or, if they aren't feeling greedy, "Can we see the part of the transcript dealing with Witness X's testimony?"

No. No, you may not.

There is, in fact, no such thing as a transcript. Oh sure, there's a gifted court reporter taking down everything word for word, but it all gets sucked into her (hi Joni!) little machine and stays there, a million tiny words all jostling together nonsensically and in no way accessible to jurors or anyone else.

A trial transcript is a typed document that said court reporter (hi again Joni!) puts together Lordy-knows-how in the weeks after trial, so the defense and prosecution can have it for the appeals process. She can't just hit a button and have it all spew out for immediate consumption, her stenotypinggraphicalrecordinator just doesn't work that way.

2. Appeals. Here's the question I get: "So, if you lose a case, do you handle the appeal or does someone else do that?"

First of all, I don't lose.

Very much.

Second of all, no. Nope. Non. Nein. Niet. If the prosecution loses at trial, it's over. We do not get to appeal a not-guilty verdict, no how, no way.

Heaven knows, I've tried.

3. Public defenders. And the question this time: "Is it true that the public defenders are all overworked and hopeless?"

The misconception here is that we have a public defenders' office at all. We don't. Fifteen counties in Texas have one version or another and they operate like the flip side of the DA's office - housed in the courthouse and paid by the county, on a salary.

What we have in Austin (Travis and Williamson counties, technically) is a system whereby private defense attorneys get appointed to cases by the courts. So local defense lawyer Jamie Spencer (for example) may be in court representing a fee-paying client, the Prince of Thieves, and a court-appointed one, the Pauper, at the same time.

I've not studied the fee forms, but I think they get paid on a set schedule according to what they do - so a plea would be so much, a trial so much more. I am pretty sure that no one gets rich this way. Right Jamie?!

4. Trial duration. I surprise people with this one a lot because many often think or assume that a jury trial automatically lasts several weeks. They also think that jury selection is a days-long process.

Now, I guarantee that listening to windbag lawyers as they try and assess a jury panel feels like it lasts days but, except for capital murder cases, jury selection usually lasts just one afternoon.

As for trials, the vast majority are over in one week. In fact, the vast vast majority are over in two or three days. A DWI trial, for example, might consist of a single police officer witness, and that's it. Even murder cases tend to last a week or less -- very often people kill people at night, in the dark, away from witnesses. Which makes calling hundreds of witnesses rather hard.

Any other burning questions / conceptions you want answered / challenged?!


  1. Most counties in Texas have public defender offices? You just created a myth larger than any of those you stated. I'm guessing five counties max.

  2. Barry: thanks for the correction, I checked on the actual number and deleted my "most" assessment.

  3. Yes I do have a question. Two of them, in fact.

    1. Why do my clients and I have to keep showing up in district courts on unindicted felony cases just to smile and wave at everybody and come back a month later and do the same thing all over again? Why can't you (meaning your office, not you in particular) at least bring the files to court so maybe we can talk about these cases and maybe even waive indictment and move them along?

    2. Why is it that prosecutors will almost universally decline to meet with a defendant and his lawyer even though the lawyer believes that an informal chat might help to inform the prosecutor's view of the case?

    I guess that was actually three questions. If I wished that they were three wishes, I guess I'd have two wishes left.

  4. Donald, I'll try to answer.

    1. The files are put together by the trial court secretaries, who don't have access to the files in the grand jury division. Those are on a different floor - a different floor, I tells ya! I don't know when, how, or why cases get put on the docket (especially unindicted cases) but I always encourage lawyers to talk to our GJ attorney to prod the process along, or at least find out what the hold up is.
    Plus, we like to see the smiling faces of our defense counsel friends in court.
    Plus, one of these days you should tell me who you are. You know, all private like. After all, you know who I am. :)

    2. I must say I have never been asked to meet with a lawyer's client. I think there are very many cases where that would help and I've actually asked to do it on several occasions. The times that I've spoken to defendants themselves (always with permission of their lawyer) it's been productive in terms of resolving the case and, I hope, making the defendant realize the state isn't out to get them, but to make sure they don't offend again.
    So, I'm a little surprised to hear you say that prosecutors "almost universally decline" to meet with you and your clients. I'd do it, on smaller cases absolutely, almost whenever asked.

  5. You autographed a reset form for me yesterday - on an unindicted case - but I was in a hurry to get to another court to conduct actual business. :-) But next time I'll surely introduce myself. Maybe I'll introduce my client as well. LOL

  6. Regarding "Trial Transcripts", if Joni's fingers and technology were able to produce a transcript in time for Jury deliberations, would the jury be allowed access to it, and if not, why not?

  7. Anon: My understanding of the law is that it allows for read-backs of the transcript if the jurors have a specific disagreement about the testimony. I don't think that would change if the technology of transcripts changed.
    My sense is that courts are worried jurors would spend hours and hours pouring over transcripts and second-guessing themselves and each other if words on paper (the transcript) were permitted in the jury room. One of the things we need juries for is to evaluate the witness, his credibility based on the way he answers, his attitude and demeanor, that doesn't come across in a transcript. Those intangibles would risk being lost if a jury could spend hours merely considering the black and white words.
    Does that make sense?

  8. Wow, I've been out of blogging for a while, and didn't notice the question til now (going back and reading older posts of the blogs I follow...)

    Easy answer: no one gets rich off of court appointments. It starts off with a set schedule, but that can be adjusted upwards, if you can show the court you had to put "extra extra" time in on a case, whatever that means.


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