Tuesday, November 30, 2010

Can I kiss your baby?

Anyone who knows me will tell you I'm the shy, retiring sort. Not one for making speeches or blowing my own trumpet. Never been known for tooting my own horn. No, not me.

But I wouldn't be offended if a couple of you popped over to the ABA Journal's website and threw a vote my way.

See, I've been selected as one of the Journal's top 100 blogs (they call them "blawgs" because they are law-related, but for some reason that word looks stupid and annoys me). Here's the badge to prove it:

Just click on the badge. Go on, I dare you. You may have to log in, but it's very easy and I'd be ever so grateful. (Not because I want to win, but because I'm running last as of this post. That's just embarrassing!)

Thank you.

P.S. If I come anywhere but last, I promise to post a video of my judge having his back scratched. You'll have to vote to find out whether I'm talking literally or figuratively. . .

Monday, November 29, 2010

Jury trials this week

After the busy few weeks, just two jury trials in the district courts this week:


Defendant: Cedric Smith
Offense: Possession of a controlled substance
Prosecutors: Chris Baugh and Allison Wetzel
Defense attorney : Mark Sampson


Defendant: Adrian Perez
Offense: Aggravated sexual assault of a child
Prosecutors: Yvonne Patten and Joe Frederick
Defense attorney: Kent Anschutz

Wednesday, November 24, 2010

Prosecuting in domestic violence cases

A reader asked the following question (and I paraphrase a little):

In a domestic violence case why can't the victim be charged if she was really the assailant?

Well, the quick answer is "she can be."

It's kind of the long answer, too.

The issue is at the investigation level, so this may be a better question for the cops. Essentially, in a domestic violence (DV) scenario they will do their best to figure out who the assailant is and charge the right person. I think you might be thinking either that the man always gets charged, or whoever calls the cops first gets the other person charged. Those two things are usually what we see, but only because that's what (in my experience) happens.

Sometimes, though, investigation shows that the person who called 911 is the assailant and, one hopes, the investigators can figure that out pretty quickly (by looking at injuries, talking to witnesses, etc.).

Perhaps not a very satisfying answer so let me know if I can elaborate further.

Sunday, November 21, 2010

Bond . . . (but not James)

Interesting article by Steven Kreytak of the Statesman on the issue of those accused of crimes bonding out of jail.

A companion article here.

Be sure to read the comments, plenty of opinions shared.

Thursday, November 18, 2010

Done . . . for now.

Just to close off the circle, for those interested:


Defendant: Tony Brewer
Offense: Aggravated assault with a deadly weapon (two counts)
Prosecutors: Mark Pryor and Kelsey McKay
Defense attorney: Bill Browning
Verdict: Jury found defendant guilty and the judge assessed punishment at 35 years in prison.

The victim was very pleased that this is now all over for her. As are the State's attorneys, to be honest. :)

Wednesday, November 17, 2010

Trial result today

The jury in my trial returned a verdict of guilty this afternoon, on both counts. The essentials:


Defendant: Tony Brewer
Offense: Aggravated assault with a deadly weapon (two counts)
Prosecutors: Mark Pryor and Kelsey McKay
Defense attorney: Bill Browning

I wanted to say congrats to my co-counsel, Kelsey, for her fine mix of diligence (super prepared, as ever) and flair. Also to defense counsel Bill Browning, who was professional and did a great job, especially considering the facts of the case. (The jury was also very complimentary of Bill's work.)

And finally, our thanks to the jury. Talking to them afterwards was fascinating, as it always is. I was very impressed with the close attention they'd paid to the evidence, to making sure they held us to the very high standard of proof. You might be surprised to hear me say this, but as a prosecutor it's actually quite reassuring. I was grateful, too, for the pointers on how we could make things better in future cases and I'm glad it was a positive experience for them all.

So, a tiring week and a just little more to go: tomorrow morning we have the punishment phase, the hearing starts at 9 A.M. and will be over well before lunch.

Tuesday, November 16, 2010

Trial this week

Well, we the chimney got cleaned today, so hopefully no more incidents like we had over the weekend.

And I'll be looking forward to feet up by the fire tonight because I'm back in trial this week:


Defendant: Tony Brewer
Offense: Aggravated assault with a deadly weapon (two counts)
Prosecutors: Mark Pryor and Kelsey McKay
Defense attorney: Bill Browning

Also up and running in the courthouse:


Defendant: Frank Rodriguez
Offense: Failure to stop and render aid
Prosecutors: Craig Moore and Jim Young
Defense attorney: Nick Duncan


Defendant: Samuel Shaw
Offense: Aggravated sexual assault of a child / Indecency with child
Prosecutors: Yvonne Patten and Leslie Booker
Defense attorney: Craig Sandling


Defendant: Tom Delay
Offense: Criminal conspiracy / Money laundering
Prosecutors: Gary Cobb, Beverly Matthews, Holly Taylor, and Steve Brand
Defense attorney: Dick Deguerin


Defendant: Martha Hernandez
Offense: Murder
Prosecutors: Amy Meredith and John Hunt
Defense attorney: Alex Calhoun

Sunday, November 14, 2010

Clean your chimney!

That is, if you're planning to use it this winter. We had a half-cord of firewood delivered yesterday and with the first cold threads of winter drifting over Austin we decided to celebrate with a nice fire.

Ten minutes later, a stranger knocked on the door. "Your chimney is on fire." Flames were coming out the top, he said, and it looked like a jet engine up there.



"We'll take the fire option, please."

Can't have been five minutes and three engines arrived in the cul-de-sac, lights and sirens, men in masks and heavy-duty gear.
"You ordered strippers?" I asked my wife. "They're here."

They were calm, these boys, checked the house inside and out, got on the roof and took the top off the chimney to make sure it wasn't a bird's nest on fire. It wasn't, just a build up of creosote because my wife had been too lazy to order in a chimney sweep. Shocking, I know.

On the plus side, the firemen found Santa's left boot. He'll be glad to get that back.

But seriously, thanks to those guys for being so fast, so thorough, and so friendly. Also for the reminder to check our smoke alarms (which I did. They all worked.).

And the kids, as you can imagine, loved all the action.

So, if you have a chimney, and plan to use it, I strongly suggest you avoid the jet-engine effect by calling your local chimney sweep. It'll help the economy and Santa will thank you.

Tuesday, November 9, 2010

Discovery before trial

I've mentioned this issue before, in passing, that as prosecutors we have a duty to share a lot of information with defense counsel before trial (a process called "discovery"). That mention was here, when I was checking off my pre-trial tasks.

But a defense lawyer in Virginia just posted about the same issue, saying how state's-oriented the system is there. And reading his blog entry I was very surprised because here we do things very differently.

Check his post out here and then read on.

We have what we call an open-file policy, which isn't 100 percent true but almost is. I'll list out the major pieces of information and show how (or if) we provide these to the defense. Also, bear in mind that unlike Jamison's jurisdiction, we provide this info well before trial: weeks usually, and in some cases months before:

Police report -- defense counsel fills out a form and we provide a complete copy of the offense report (we do redact out sensitive information). Usually the first thing they ask for and get.

Defendant's statement -- any written or recorded statement is usually the second thing defense counsel asks for, and gets.

Videos -- this would be in-car videos, or store surveillance tapes. I have my investigator make a copy and provide it to defense counsel. Some ADAs don't like to give out copies, instead making the tapes available for viewing at our offices.

Criminal histories -- my investigator will run the CH of the defendant and I'll provide a copy to the defense. Same goes for copies of CHs for witnesses (though not until we are sure they are actually going to testify).

Photos -- if there are not many, I will provide copies. If I have a lot, like in a murder case, I'll invite defense counsel to my office to look through them, and I'll try to let them know which ones I intend to offer at trial.

Forensic reports -- I usually provide copies of these when asked to. I always make them available for inspection.

Notices -- we provide a list of potential witnesses, as well as a list of experts we intend to call at trial. We also send out a notice listing all the offenses and "bad acts" we believe the defendant has committed that we'll seek to have admitted at trial, either during the guilt phase or the punishment phase.

Exculpatory/mitigating information -- under the Constitution we are required to share with the defense any information that (put simply) could help the defense.

And what do we get in return?


Diddly squat.

Yep, that's right, in Austin we do not have "reciprocal discovery," which is to say the defense doesn't have to share with us any witnesses, any evidence they might come across, or anything else.

In fact, I've tried several cases where the defense calls a witness and I'll look at my co-counsel and say, "Who?" On the one hand it's frustrating because no one likes to have to ask questions completely unprepared, but on the other hand it does make life interesting. And interesting is good.

Oh, and just to be clear: the State has the burden of proof. We're trying to convict someone of a felony, so it's right and proper that any inequities in the discovery process tilt in his/her favor and against us. I think a system where the defense has last-minute or restricted discovery isn't particularly fair and I'd feel very uncomfortable limiting a defense lawyer's access to basic information.

Thursday, November 4, 2010

Who gets to be an ADA?

Great question on my little Skribit device:

What determines who gets an ADA job -- highest civil service or bar exam scores? Or is it political?

The thing I love the most about this question is its underlying assumption: that an ADA job is a desirable one.

And I love that so much because, in my view, it's absolutely true. Best job I ever had.

But to answer your question, the hiring process is pretty much like other jobs: a vacancy arises, people apply, some get interviewed, and the lucky winners get hired. I believe we have a hiring committee, but I think the final decision is always down to the elected DA.

What does she base her decision on? Hard for me to say. I'm pretty sure it's not based on bar exam scores, simply because no one hires based on those. There's also no civil service exam (was my anonymous questioner from Canada or the UK?!). As for whether it's political, I think not. I say that because my politics were not inquired into, nor did I overtly campaign for either of the DAs that hired me.

And my own experience is most of what I have to go on. The one question I got, over and over in my interview, was whether I wanted to be in court a lot. Some people like the idea of it, but not the practice. And, of course, some people become lawyers and never want to set foot in a courtroom. I assured those interviewing me that being in trial was the reason I became a lawyer, and that I absolutely wanted to spend time in the courtroom. I guess I convinced them because they gave me the job.

Now, my own hiring was a little unusual because my previous experience was all at a civil firm. That means the hiring committee could be assured I had good research and writing skills, but not any experience in trial. That meant sticking me in a courtroom was a bit of a gamble (one I'm very glad they made).

The hiring procedure I usually see is lawyers starting off at the county attorney's office, where they handle misdemeanors, and then, after a few years, graduate over here to try felony cases.

The one thing I've never seen is a brand new lawyer get hired at the DA's office. The reason being that there are many applicants for each spot so there's no real reason to take on someone who's new to practice. They might be good, sure, and very smart. But so are those wanting to work here who already have experience.

I hope that's answered the question fully, if not please follow up in the comments, I'll be glad to elaborate.

Wednesday, November 3, 2010

Not ALL of us are pigs...

And I know that because this guy says so. My colleague Joe Frederick came across this gentleman outside the courthouse this morning.

Anyone know what his beef is with lawyers? Did some defense lawyer fail to save his bacon? Did someone squeal to the cops about him? Okay, okay, I'll stop. . .

Priceless moment in trial

As I mentioned, I'm back in trial this week. We will wrap it up today with closing arguments (evidence already presented) and I wanted to share a moment of levity we all enjoyed yesterday.

A witness was testifying, I'll call her Mary, about what happened leading up to the alleged assault. She testified that she was in a bedroom talking to the defendant when the victim and his son came in. The defendant got up to leave and Mary handed him his shirt.

I handled the cross-examination of this witness (below is a paraphrase, of course):

Me: "So, Mary, you said you handed him his shirt as he left the room."
Mary: "Yes."
Me: "Why was he shirtless?"
Mary; "What?"
Me: "Why was the defendant not wearing a shirt in the bedroom?"
Mary (indignant): "How would I know? Why not? Why anything? Why aren't you wearing any underwear?"

I was, for once, momentarily speechless, though the rest of the courtroom dissolved into laughter (including the defendant).

I then, as gracefully as I could, objected (with tongue in cheek) to her unfounded assumption.

When she finished testifying she left the stand and walked past me towards the door. As she passed by, and as the defense lawyer was calling his next witness, I whispered to her: "Just for the record, I am." She left the courtroom laughing.

Monday, November 1, 2010

Jury trials this week

Here's the line up for this week. And yes, I'm in trial again:

Defendant: James Brown
Offense: Injury to an elderly individual
Prosecutors: Mark Pryor and Jackie Wood
Defense attorneys: Bart Denum and Jon Evans


Defendant: Philip Byrd
Offense: Theft
Prosecutors: Ali Crowley and Sandra Avila Ramirez


Defendant: Tom Delay
Offense: Criminal conspiracy / Money laundering
Prosecutors: Gary Cobb, Beverly Matthews, Holly Taylor, and Steve Brand
Defense attorney: Dick Deguerin