Tuesday, June 29, 2010

The mid-trial flops

I've not tried a case all year and I'd forgotten how tiring it is. We're most of the way through the State's case, a couple more witnesses tomorrow. And I'm second chair, which means all of the stress and most of the work is being carried by my first chair and court chief, commonly known as EDLF (see Monday's post and figure out why).

The thing is, every moment you have to be paying attention because even when you think you know what a witness is going to say, might say, you have to be prepared that he will say something else. And that happens . . . a lot. People are unpredictable and fallible, as are memories. So, what they think they saw back when the alleged crime occurred may not be quite the same as what they now think they remember seeing.

Which is why I like video evidence.

But I will say one thing, and I think I've said it before: trying a case with professional, respectful, and talented lawyers on the other side make a trial so much easier. The guys on the other side of this one qualify, thank heavens.

I'll check in when I get to the far side of this trial, and maybe even ask them for their opinion and a guest blog. They're very eloquent, so I'm sure they can write pretty well, too.

And now I shall go relax, maybe watch some World Cup. That's a lot less stressful now that my dear Three Lions of England went out of the tournament with a whimper. . . .

Monday, June 28, 2010

Busy jury trial week!

Lots of excitement in the courthouse this week. First, a case that's been in the news a lot:


Defendant: Laura Hall
Offense: Hindering apprehension / Tampering with evidence
Prosecutors: Allison Wetzel, Chris Baugh and Stephanie Mcarland
Defense attorney: Jim Sawyer

And second, I'm in trial finally!

Defendant: Alex Stinnett
Offense: Aggravated assault with deadly weapon
Prosecutors: Efrain De La Fuente and Mark Pryor
Defense attorney: Ryan Deck


Defendant: Leslie Parker Jones
Offense: Aggravated assault / Aggravated assault with deadly weapon
Prosecutors: Amy Meredith and J.D. Castro
Defense attorney: Wayne Meissner


Defendant: Martha Coronado
Offense: Securing execution of a document by deception
Prosecutors: Jason English and Susan Oswalt
Defense attorney: Brian Roark

Friday, June 25, 2010

Some lightness for the weekend

I'v been hesitating about posting this DWI video, just because my fellow blogger Jamison Koehler did recently and it seems, well, like cheating. But for anyone who's not seen it, and has an interest in criminal law (or just funny stuff) it's a must-see.

Best DWI video ever.

Wednesday, June 23, 2010

No "not guilty" verdicts? A question answered...

One of my esteemed readers (not my Mum, the other one) asked a question following my post showing trial verdicts. Here it is:

I have been a reader since early on so do not take out of context but about how often do juries find anyone innocent? Based on my following not very often ! Pay raise for you guys in my next vote for sure.

First of all, you are absolutely right. About the pay raise. Vote twice on that issue, if you can.

Second of all, thanks for the faithful readershipnessalizing. Much appreciated. (You too, Mum.)

Third, about the apparent abundance of guilty verdicts. I should start by being picky about your terminology: juries (and judges) don't find people innocent, they find them not guilty. That's because there is no burden on the defendant to prove anything, its on us to prove his guilt. So, if we fail to do so, the jury returns a "not guilty" verdict, rather than one declaring his innocence.

I should also reassure you that when I report verdicts I don't accidentally leave the "not guilty" ones out. Not a bad idea, though, thanks for giving me the idea . . . .

I think the answer to your question is twofold. One of those folds will make some people roll their eyes, so I'll get it over with. I believe that the vast majority of people who get to the pretrial stage are indeed guilty of the crime charged. By the time the jury files through the door, the defense lawyer has pointed out all weaknesses, the ADA has scoured the evidence for holes, and (one hopes and prays) if the chap charged is truly innocent it would be apparent and a dismissal forthcoming.

The next fold is that very often a trial is less about guilt and more about an appropriate punishment. Remember, a trial is in two parts: the guilt phase, and the punishment phase. So sometimes the issue of guilt is the easy one. The harder issue, and one the lawyers have not been able to agree on during plea negotiations, is what punishment the defendant deserves.

For example, several years ago I tried a theft case. The fellow had stolen two watches from Target. He believed that his punishment should have been a small fine, whereas my position was that he'd been convicted of theft nine times previously, and a small fine would hardly be a deterrent. (I know what you're thinking, but he was neither a kleptomaniac nor a drug addict. He'd just developed a habit of stealing things worth very little, and then saying "But it's only worth a few bucks.")

His case, because of the prior convictions, was a state jail felony, with a punishment range of six months to two years in jail. I think I offered somewhere in the region of a year (roughly what he'd served for the last one). As I said, he disagreed and the most he agreed to was"time served" for his day or two in jail after the arrest.

So, we tried the case to a jury. I played the video of him stealing the watches and the store security manager testified that he'd seen the whole thing. Kind of a slam dunk. In fact, the jury came back after deliberating for six minutes.

In the punishment phase I showed a chart highlighting his thefts, one after the other. Now, you should know he testified during the trial and admitted them, and then lied about stealing the watches. He said he was going to show them to his girlfriend (who was outside the store for some reason) so she could chose which one she wanted to buy him for his birthday.

Anyway, they gave him 21 months, three fewer than the max. Afterwards, they told me they didn't like his lying on the stand, and they didn't like his failure to accept responsibility. One guy was mad that they could not have given him more. Draconian? Some would say so. But I don't, and the fact that 12 members of the community got to decide made me think perhaps it was a fair result.

A long answer to your question, dear Reader, but I hope a satisfactory one.

Tuesday, June 22, 2010

Jury trial - Verdicts from week of June 14


Defendant: Bryan Johnson
Offense: Aggravated assault deadly weapon
Prosecutors: J.D. Castro and Amy Meredith
Defense attorney: Bart Denum
DISPOSITION: Jury found defendant guilty of assault; Jury sentenced to 4 years in prison


Defendant: Wesley Tuton
Offense: Sexual assault of a child
Prosecutors: Allison Benesch and Monica Flores
Defense attorney: Don Morehart
DISPOSITION: Jury found guilty; Judge sentenced to 20 years in prison


Defendant: Terry Bradshaw
Offense: Aggravated sexual assault of a child
Prosecutors: Leslie Booker and Yvonne Patton
Defense attorney: Bobby Taylor
DISPOSITION: Jury found defendant guilty; Jury sentenced to 53 years in prison

Jury trials this week

And for this week, we have:


Defendant: Larry Beltran
Offense: Aggravated sexual assault of a child
Prosecutors: Jackie Wood and Victoria Winkler
Defense attorney: Mark Westenhover


Defendant: Clayton Shoemate
Offense: Count I: Intoxication assault; Count II: Aggravated assault deadly weapon
Prosecutors: Joe Frederick and Leslie Booker
Defense attorney: Jon Evans

Monday, June 21, 2010

Countdown to Trial

I've been a little slack blogging lately, and one of the reasons is that I've been getting ready for a murder trial that begins mid-July. It'll be my first as first chair (i.e. lead) so I'm trying to do plenty in advance, in the hope I can avoid many of those last-minute panics that always seem to happen at trial. I know I can't eliminate them all, I've tried too many cases to know that, so the trick is to minimize them.

I thought I'd share some of the things I've been doing, some of the things that have been taking me away from you. Here's a list, in no particular order:
  • watching videos from APD's car cameras at the scene (five of these, each about an hour long)
  • reading (again) all the written statements to make sure I know who saw what and when (ten or so of these)
  • watching recorded statements taken at APD HQ (three or four of these)
  • making and remaking my witness list, trying to pare it down to the essential witnesses so as to tell a cohesive story in a way that won't bore or frustrate the jury
  • meet with those witnesses in person, talk to them about the process. Right now, it looks like I'll have between 12 and 16 witnesses.
  • draft notices to the defense: I have to give them a list of all the people I intend to call at trial. I also have to let them know in a separate notice if I'm calling any expert witnesses (forensics-type stuff). I also have to give them a list of incidents I might want to bring in at trial relating to the defendant's conduct (a 404b "bad acts" notice).
  • other secretarial duties for the defense. Discovery rules are different in criminal cases to civil ones: as well as telling them who I will call as witnesses, I have to let them look at just about everything I have in terms of evidence. So I make copies of written and recorded statements, medical records, and show them the photos I have from the scene, the autopsy etc.
  • visiting the case detective at homicide and looking through everything he has, to make sure we have it all. I do this to reassure myself I have all the relevant evidence, that he's done all he can on the case (he did!), and to ensure there's nothing I should be showing the defense sitting in his file that I didn't know about.
  • filing notices with the court: if I want to use medical records or cell phone records, for example, I will make their admission as evidence a little more straightforward by filing them with the court in advance -- it's a way of showing they are accurate and reliable and therefore avoiding possible evidentiary objections.
Those are the things I've been doing these past few weeks, and still to come I have jobs like preparing my voir dire, final meetings with witnesses, writing out my direct examinations, and thinking about opening statement.

I've not tried a case all year but don't feel too rusty as I'm in court most days. And, oddly enough, after a "dry" five months I'm helping my chief try an aggravated assault case a week from today, so that will get me back into the swing of things.

Tuesday, June 15, 2010

Lucky I'm not the prosecutor

This news story combines two of my passions, books and criminal law. It's short and to the point:

Cops bust woman, 74, for pouring mayo in book drop

BOISE, Idaho — Police said a 74-year-old woman arrested after pouring mayonnaise in the Ada County library's book drop box is a person of interest in a yearlong spree of condiment-related crimes of the same sort. The woman was arrested Sunday at the library, moments after police said she pulled through the outside drive-through and dumped an open jar of mayonnaise in the box designated for reading materials.

The woman was released from the county jail and faces a misdemeanor charge of malicious injury to property. Police did not disclose a motive.

Boise police said the woman is under investigation for at least 10 similar cases of vandalism since May 2009. Library employees have reported finding books in the drop box covered in corn syrup and ketchup.

Where do I even begin with this?

I know, let me guess the motive: lost or unreturned books resulting in mounting fines, causing disgruntled library patron. If I'm right, though, wouldn't the cost of all those condiments amount to just as much as the fines? Unless they are astronomical. Hmmm... that can't be right.

Let's assume, as any good profiler would do, that her "signature" has something to do with her motive. So if it's unreturned books, they are cook books, right?

No, that's not it either. After all, if she takes out cookbooks then she likes food, which means she wouldn't waste it in a book-drop drive-by.

Hmmm. How about she thinks the library is a giant fridge and she's just storing her mayo? No, then it'd stay in the jar.

Oh, I have it. She's been taking out erotic novels and not returning them. A diligent librarian has told her, "If you don't bring them back, not only will there be a fine but people will know what your choice of reading material is."

So she says: "You want your saucy books? I'll sauce your damn books for you. . . ."

You don't think that's it?

It would have been more fun if she'd been pouring cereal in the book drops. Then we could call her a serial book cerealizer.

Well, do you have any suggestions?!

Monday, June 14, 2010

Jury trials this week

Maybe I can deflect the World Cup flak I'm getting. . . here are the jury trials set this week:


Defendant: Bryan Johnson
Offense: Aggravated assault deadly weapon
Prosecutors: J.D. Castro and Amy Meredith
Defense attorney: Bart Denum


Defendant: Wesley Tuton
Offense: Sexual assault of a child
Prosecutors: Allison Benesch and Monica Flores
Defense attorney: Don Morehart


Defendant: Terry Bradshaw
Offense: Aggravated sexual assault of a child
Prosecutors: Leslie Booker and Yvonne Patton
Defense attorney: Bobby Taylor

I'd like some cream with my humble pie, please.

One mistake. One wee error and a human being is lambasted by 50 million people.

For those who missed it, or the sadists who want to see it again, here's Rob Green's goof:

Now, I predicted an England win and I was wrong. But it's not about me, oh no. It's about the headlines crucifying poor Rob Green back home. "Hand of Clod" was the winner. I liked “God Save our Green” because he's the keeper for my Premier League team West Ham Utd. Another one I liked was “Green Fingers – One Disastrous Spill the Yanks Won’t Complain About”. (Too soon?)

But after crying in my Newcastle Brown Ale for an hour, I remembered that it's just a game. No one will die or even get chicken pox as a result of his error. I mean, think about if I make a huge blunder: maybe an innocent man goes to jail, maybe a guilty one goes free.

Same for a defense attorney who makes a mistake - so easy to do your client a disservice, the responsibility is huge. A policeman, a fireman, either can ruin someone's life if they goof up. Globally speaking, the trash man dumping the recycling by mistake is more harmful than spilling a soccer ball into your own goal.

At least, that's what I'm telling myself.

So what happens next? I predict that England wins its group games, the US wins its group games and whoever has more goals (minus goals conceded) goes through to face Ghana. Originally I thought it would be Australia (who are playing right now without a striker - the first time in history so many Aussies have been together without being highly offensive). But the Germans have put paid to their hopes. And don't get me started on the Germans....

What does all this have to do with criminal law? Well, if England don't qualify, either first or second, I will wear a dress to court. *

* Idle threat that may be retracted at any time unless consideration provided by American prosecutor in the form of him wearing a pretty little frock should the US not qualify. A male American prosecutor. Or defense lawyer. Male defense lawyer.

Thursday, June 10, 2010

It's only funny until someone gets hurt - the World Cup

Oh come now, you knew I had to at least mention it - my two countries, facing off in the World Cup, England v. USA, this Saturday. People trying to make bets with me that England will lose but gambling is illegal, so I don't take those bets. Of course.

But looking back at the last World Cup, I started thinking about connections between the beautiful game and my job.

Didn't really come up with any.

And then I was reminded of this moment:

And you thought the French never fought back!

Anyway. I wondered about all the misdemeanor assault cases we get in the courts, and then thought about all the punches I've seen thrown, the kicks aimed, and the two-footed lunges delivered on the soccer field. 458, by my reckoning.

I wondered, why can I get away with kicking some dude who has a football at his feet, but if I do the same thing in the produce aisle at HEB, I get carted off to jail? It's a deep question, one that has been batted around before and by smarter people than me. And soccer players are hardly the worst offenders. Hockey, anyone? Baseball, too, when the pitcher nuggets a batter, although they punch like girls (and not hockey playing girls).

It's even been known in cricket. Oh yes. Once, Tommy Squat-Bottom took the last of the cucumber sandwiches at the tea break (day four of the game it was, I think) and you should have seen how Reginald Blenkinsop-Danglejohnson reacted! First, he refused to use his coaster or his saucer, thereby scalding the tea table. Then, he dilly-dallied while heading back out to the wicket, and passing his new foe had the temerity to suggest that the chap's mother hadn't ironed the crease in his white trousers properly! I know, shocking stuff.

Yes, you can expect the odd tiff in the weeks to come, and you can expect those involved to deal with it in the field, not trouble the police or us busy lawyers with their squabbles. In fact, we'll probably goad them on from the sidelines, outraged when the ref penalizes our man and lets the cheating hound from the other team (I'm looking at you, Mr. Squat-Bottom) get away with it.

Unless, perhaps, they get as outrageous as our head-butting Frenchman, in which case their actions will be forever memorialized, in one form or another.

I mean seriously, the Austrians are making fun of him? Do Austrians even have a sense of humor? I thought they were basically Germans who take lederhosen seriously.

Anyway. Enjoy the drama, the spectacle, and the punch-ups. Revel at the passion and the late tackles, the glory and the crafty elbows. Cheer for your man and skin the shins of the bugger on the other side. But, please, no nicking the last of the cucumber sandwiches. That would be felonious in the extreme.

England 3 USA 0.
England and the USA qualify for the next round.

Monday, June 7, 2010

The Ultimate Criminal (and not in a good way)

Every profession, or walk of life, has its peak. Its zenith. Its Mount Everest. Or, in the case of crime, its Professor Moriarty.

For me, as a purely theoretical and intellectual matter, it's the serial killer, the movie-created genius a la Hannibal Lecter. Oh, right, you know that already, I've made no secret of my interest in these people.

Someone asked me the other day, a nice young man called James, if I'd ever met one. I haven't. I write about them in my fiction, and I've met a number of convicted murders (by "met" I mean spoken to, one-on-one, even though there's been thick glass between us). Five or six of them, and as I've written before, this one was the creepiest.

But no serial killers, despite my fascination. I need to make more of an effort, obviously.

Anyway, now I have a new outlet for my interest: Dexter. Have you seen it? A brilliant concept, executed flawlessly. To be fair, I've only seen the first three episodes, and I have a tendency to get bored with series and leave them midway through (Weeds, Sopranos, that one about advertising in the '50s, Lost. . .).

I think what has me hooked thus far is that the main character is your traditional sociopath, meaning he exhibits none of the emotions of empathy that you and I have. And yet, he uses his evil to combat evil. He's like a superhero, but . . . well, evil. I'm also very interested in the relationship he had with his father, who recognized his soullessness and tried to train him never to kill people who didn't "deserve" it. I suppose one would call that mitigating one's losses.

You'll know all this if you've seen the series, of course, and if you haven't I recommend it. The first three episodes, anyway. I'll be watching the fourth tonight.

And now I'm wondering have any of my readers met a serial killer? Are any of you serial killers? I promise I won't tell . . . .

Thursday, June 3, 2010

"The Reckless Robber": account closed.

As a former journalist it galls a little to be the first to hear a big story have to hold my tongue. But hear it I did, and hold it I did. Here's what happened:

I had to work a couple of Saturdays ago, driving to north Houston to interview a witness in this cold case. I'm not a huge fan of Houston but the drive down there is very pretty, much nicer than the trip to Dallas which is nothing but freeway and traffic.

Anyway, I went down with the cold case detective who is now assigned to the robbery division, Tom Walsh. He's also in charge of the case involving the bank robber known as the "Reckless Robber," featured last month on America's Most Wanted. We talked about the case as soon as we were out of Austin and Tom was explaining about a new lead that he expected to be able to pounce on the following Monday. I won't detail the lead or how he got it, for obvious reasons, but I was pretty impressed. Not surprising, I've been impressed by Tom Walsh ever since I met him.

Talking of impressed, he told me about some of the people working on the Reckless Robber case, one of whom was an analyst who'd made predictions about when the guy would strike again. Imminent, the analyst had said.

We started talking about something else, our own case probably, when his phone rang. I sat there and listened to a string of "No way," "You're kidding," "Is he okay?" and "Holy #@&*" exclamations.

Clever analyst. The Reckless Robber had just hit in Sugarland, Texas, and some quick-responding deputies had swooped. Sadly, one of them had been shot as the robber and his accomplice tried to escape (hence Tom's concern). We learned later that his injuries were not going to be fatal, which allowed us a little more leeway to be happy about the capture.

Well, the capture of the accomplice, because the Reckless Robber himself won't be facing any earthly justice. Basically, when the cops were chasing his van, he kicked open the back doors and opened up with an assault rifle, giving the police few options when it came to a response. The guy had committed 26 robberies (including the last one), terrorizing bank employees and customers all over Texas. The amazing thing to me is how little money he, and other robbers, ever get. I don't know the exact sums but I think it's safe to say that if he hit every two weeks, he'd actually end up with more cash if he held down a half-decent job. That's how pointless bank robbery is these days.

And for those who do decide to do it, well, they have local cops, crime analysts, and the FBI hunting for them. And Tom Walsh. Not good odds for the robber, certainly not over the long term. Not good at all.

Just ask the Reckless Robber. Oh, right. Maybe ask his accomplice.

P.S. -- One last journalism-related note: I didn't see this story in the Statesman. Did I miss something, or did they?

Wednesday, June 2, 2010

The "Don't-Kill Bill" - those crazy Easterners

This falls under the heading of "storm in a teacup" -- or I hope it does.

The New York Post reported that a bill has been proposed requiring cops to shoot to stop, not shoot to kill, and police officers and their backers have said stuff like. . . . Well, they can say it better than me:

"It's moronic and would create two sets of rules in the streets if there is a gunfight. This legislation would require officers to literally shoot the gun out of someone's hand or shoot to wound them in the leg or arm. I don't know of any criminal who doesn't shoot to kill. They are not bound by any restrictions."

Here's a sample of the language from the bill, Section of Assembly Bill A02952:

“A police officer or peace officer . . . uses such force with the intent to stop, rather than kill . . . and uses only the minimal amount of force necessary to effect such stop.”

I can't seriously think that this will be made law. According to the story, even Joe Biden scoffed at it, calling it the "John Wayne Bill" because it "demands sharp-shooting skills of the kind only seen in movies."

What's interesting is that the legislation was proposed at all. It shows a remarkably poor understanding of the real-life situations cops face sometimes, as well as a disturbing lack of concern for the lives of the officers. Not to mention the bystanders shot when the cop aims for a perp's gun-hand and misses.

If there's a problem with cops shooting to kill too much (which I did not see reported in the story) then surely the solution is threefold: 1. Clear, simple policies and procedures for officers to follow in gun-fight situations; 2. Intensive training consistent with those policies and procedures, and 3. Accountability should an officer intentionally not follow them.

And may I suggest a week long ride-along for the well-intentioned folks who proposed the original legislation?

Tuesday, June 1, 2010

New law enforcement tool

As you may know, I come from England where for many years the police have used horses to aid them in crowd control. The officers get a good vantage point, are highly mobile, and produce much-needed fertilizer for the local communities.

Similarly, police dogs are a huge asset to law enforcement. They sniff out drugs and bombs, and they can find escapees and injured victims.

Law enforcement in Austin, always progressive and sometimes weird, is taking things even further - completely mangling the adage "never work with kids or animals." What's happening now is a combination of all three - kids, horses and dogs.

How? you ask.

Like this: