Tuesday, August 31, 2010

In-court shenanigans

Did I spell that right?

Anyway, you know what I mean. So did you see about the Texas man who apparently slit his own throat after he was given 40 years? Wow.

Our own courtroom can be pretty interesting, fortunately I've never seen anything like that. On Monday we did have one defendant, charged with theft, who had a pretty busy pair of gums. It was my case, but one of my colleagues handled it while I was on vacation. And this week we have a visiting judge. So when he came out to discuss taking a plea or going to trial, he made a few unpleasant remarks about the switch in prosecutors and judge, as if we were taking turns to conspire against him.

It was actually pretty good-natured, I think his comments came from surprise at the apparent shift-change rather than anything else. But I do have to bite my own, ready-to-retort tongue at times. He may not have to maintain a professional attitude, but I do. That's the problem with being a grown-up, I guess.

Most of my time right now, though, is being taken up getting ready for a murder trial, the trial of this case. I hope to blog more about it afterwards, it's a very interesting (and exhausting) process.

Friday, August 27, 2010

What says the defense? (Part Four)

Welcome to the the last in my four-part look at what I see as the primary stances taken by defense counsel in criminal cases.

As a final reminder, and click on the links to review, they are:

1. My client is innocent.

2. I'm not saying my client is innocent, I'm saying you can't prove he's guilty.

3. Maybe my client is guilty, but he has good reasons for what he did.

Which leaves us with:

4. Fine, my client is guilty, has no real excuse, but here's why you should be lenient.

When all else fails, defense counsel have but one option: to throw their client on the mercy of the State and/or the Court.

Which is where defense lawyers love to be able to forum shop, and I don't blame them: Judges have differing levels of leniency/mercy, as do prosecutors. Some take Shakespeare's view that "Nothing emboldens sin so much as mercy." I tend to agree with that fine bearded fellow Abe Lincoln, in that "I have always found that mercy bears richer fruits than strict justice."

So in what kinds of cases do we see pleas for mercy?

All of them. Absolutely all of them.

The most generic plea for mercy goes like this:

Defense: "Look, my guy says he can't take a felony. If he does, he'll lose his job."
Prosecutor: "Oh, wow, that wouldn't be good. How come he didn't think of that before?"
Defense: "Well, you know. Rush of blood or something. But he has a wife and kids, man, how's he going to feed them?"
Prosecutor: "Seems like everyone in the world can make that argument, right? Do we stop prosecuting felonies because felons will lose their jobs?"
Defense: "I'm just talking about my client, why you should care about him."
Prosecutor: "I know. I just don't see why I should care more about him losing his job than he does."

So, all in all not a strong argument. It's tough as an ADA to remember that, even if it's presented to us that way, we're not the ones responsible for a guilty defendant's predicament. My feeling is that mercy, whatever that truly means, is based on more individual factors: the defendant's health comes up sometimes. Maybe he's the sole caregiver for his mother.

Believe me, we get a lot of stories and I always ask for proof - medical paperwork to back up claims of terminal kleptomania, letter from a doctor (on letterhead please, and no pencil scribblings accepted).

Another common one is that a conviction will result in deportation. I've discussed that here before, so won't reopen that can of worms. :)

Here are some other, more crime-specific, examples:

Possession of drugs - "He's an addict, have mercy on the poor guy."
DWI - "She's an alcoholic, it's a disease, have mercy on the poor gal."
Assault - "He was under a lot of pressure/stress from work/mother-in-law."
Theft - "She was trying to feed her kids." Or, I really did hear this once: "She had to steal. She can't get a job because of her criminal record."

So who are you with? Shakespeare or Lincoln? I think a nice middle ground, since I'm throwing out quotations here, is something Thomas Adams said, which defendants would do well to remember, too:

"He who demands mercy and shows none burns the bridges over which he himself must later pass."

Thursday, August 26, 2010

Caught in the act

There's been a lot of debate about how effective surveillance cameras are in both deterring crime and helping prosecute criminals. But how often does a thief get his mug snapped by chance?

Here's a neat story of a family photo that should help convict a guy.

I do wonder, though: if the person taking the picture was a friend of the family, how come he didn't see the bad guy rummaging in the bag?

And while we're dipping into the news, I do not know any of the details of this case but the courthouse has been abuzz with excitement regarding the DeLay case, now set for trial on October 26. I need to remember to take a(nother) vacation that week to avoid being run over by media trucks.

Tuesday, August 24, 2010

What says the defense? (Part Three)

Welcome back to my four-part look at what I see as the primary stances taken by defense counsel in criminal cases.

As a refresher, they are:

1. My client is innocent.
2. I'm not saying my client is innocent, I'm saying you can't prove he's guilty.
3. Maybe my client is guilty, but he has good reasons for what he did.
4. Fine, my client is guilty, has no real excuse, but here's why you should be lenient.

The first one I covered was: "My client is innocent."

The second was: "I'm not saying my client is innocent, I'm saying you can't prove he's guilty"

And so today we have:
"Maybe my client is guilty, but he has good reasons for what he did."

The most common, and therefore best, example of this is addiction.

Drugs: "My client possessed that crack rock but he's an addict, he needs help, not punishment."

This can be an easy call if the defendant has never been arrested (or rarely). There are numerous programs to help addicts kick the habit and, like most prosecutors, I'm much, much happier sending someone to treatment than I am sending them to jail.
The problem comes when the defendant has multiple arrests, multiple convictions, and has had numerous runs at treatment. Unfortunately, and maybe it's hard to believe if you don't see it every day, but there are many people who simply don't want to give up drugs. People who, for whatever reason, would rather do a stint in jail (or even prison) that go through rehab.

DWI: "My client is an alcoholic, and now sees that she needs treatment."

I like hearing this. It can take a life-altering even (like an arrest for a soccer mom) for someone to see they have a problem, and I like it when they do see it and start to work towards addressing it. The problem is, while alcoholism may be an addiction, driving isn't. As I've heard a judge say plenty of times, "You can sit home and drink all the Budweiser you want. Just stay off the road."
I agree with this.
That said, if someone is willing to take responsibility and go for treatment, prosecutors are generally far more inclined to look at the punishment side of the case more leniently. That's just common sense, and common decency.

Evading the police:
This doesn't happen often, and I hope my colleague from the defense bar doesn't mind me sharing the example. It's just kind of amusing, and the way the lawyer told me did nothing to undermine or harm her client's position. Frankly, I appreciate honesty because if the lawyer indicates something negative about her side of the case, it means I can trust her when she tells me something positive.

This lawyer was trying to explain why her otherwise arrest-free client didn't stop when the police tried to pull him over (and I paraphrase): "He'd been knocking back martinis after work and didn't want to get arrested for DWI." Of course, from the client's perspective the logic is flawed because instead of a Class B DWI, he's now facing a state jail felony Evading charge!

Murder or aggravated assault:
Yes, believe it or not, this is the next most common offense for this line of defense. You may be able to guess its form, too: "My client shot/stabbed that person, but he did it in self-defense."

And these cases are very very hard to prove. In the example of a murder trial, usually only one of the two people who were present at the scene of the alleged crime is around to testify, and so it can be hard to refute his (and he's the defendant, of course) version of events. Even if crime scene, forensic, and other evidence point to his guilt, juries can be reluctant to convict someone of such a serious offense when they feel that maybe, perhaps, the victim was indeed trying to hurt the defendant. And given the State's high level of proof, that's as it should be, of course.

Defense lawyers, am I missing any examples for this category?

Sunday, August 22, 2010

A wonderful way to start the week

I plan to continue with my look at the stances taken by defense lawyers, started here and here, I'll post later today. But I wanted to share the art of a fellow ADA that I spotted over the weekend, I just love this painting. Reminds me of Van Gogh.

Ahh, to have talent... :)

Feel free to click on the link to her site and enjoy the rest of her work.

Friday, August 20, 2010

What says the defense? (Part Two)

This is the second installment of a four-part look at what I perceive to be the stances taken by defense counsel in criminal cases.

As a reminder, they are:

1. My client is innocent.
2. I'm not saying my client is innocent, I'm saying you can't prove he's guilty.
3. Maybe my client is guilty, but he has good reasons for what he did.
4. Fine, my client is guilty, has no real excuse, but here's why you should be lenient.

The first one I covered was : "My client is innocent."

Today, I'll write about the second one:

"I'm not saying my client is innocent, I'm saying you can't prove he's guilty."

This defense can arise in multiple ways, of course, but three that immediately spring to mind are:

-- DWI cases, where the defendant has refused to do any tests and there is no blood or breath evidence.

-- assault cases, where the complaining witness/victim no longer wants to testify or has changed his/her story.

-- drug cases, where the drugs were not found on the defendant but nearby, and others may have had access to the area.

My initial response to this defensive posture depends on how the "I'm-not-saying-my-client-is-innocent,-I'm-saying-you-can't-prove-he's-guilty" defense is presented. If accompanied by a smug grin and a sneer, I immediately (a) take a deep breath and remind myself to act like a professional, and (b) assume he's probably right.

This might be one of the harder parts of my job, looking at a case that has less-than-perfect evidence, and deciding what a jury might do with it. Taking each of the above examples, here are some options:

DWI case, where the defendant has refused to do any tests and there is no blood or breath evidence:

I will, quite likely, have a video from the patrol car. If the defendant looks/acts/sounds drunk on the video, I usually remain pretty confident. After all, the law allows me to argue to a jury that we have no field tests or blood/breath because the defendant declined to provide them. "And why," I can say in my most insinuating tone, "do you think he would refuse to provide evidence as to his innocence? Because he's guilty!" I think someone stumbling and slurring on video is very persuasive, and juries don't hesitate to convict when they can see for themselves the state the defendant was in.

Of course, if there's no in-car video then my view changes dramatically...

assault cases, where the complaining witness/victim no longer wants to testify or has changed his/her story:

This is tough, because we've all heard of Battered Women's Syndrome, and we see it time and again where a person repeatedly assaults the same person, and repeatedly gets their case dismissed or reduced. It can very frustrating but, as I don't do many family violence cases, I am lucky in that I don't have to make those calls often.

The thing we can do, that I always do, is make sure the victim really doesn't want to proceed, by getting our victim counselors to talk to them. If that is the case we try to get them help in other ways, in the form of counseling, for example. I should also point out that, even when the victim is unwilling, we can and will prosecute cases where we believe the evidence is strong, and the defendant needs to be held accountable. While victim input is crucial to all cases, not just assaults, we as prosecutors make the final call on the disposition of a case.

drug cases, where the drugs were not found on the defendant but nearby, and others may have had access to the area.

Here, I'll look at who owned the car or apartment that the drugs were found in. The defendant? Okay, then I imagine making a "common sense" argument to the jury, asking them if it's reasonable to think the defendant had no knowledge of the drugs in his dresser drawer, even though he has a roommate and was not in the apartment when it was searched. Sometimes evidence can seem weak or flawed, but when you apply the "oh-come-on,-you-think-a-jury-will-buy-that?' test, opinions change.

These are all judgment calls and, almost always, we discuss these cases in depth with defense counsel and our colleagues to get their input. And if this particular defense is presented smugly, we might just discuss them in more depth with colleagues than defense counsel...

Thursday, August 19, 2010

A good man, and brave

Instead of the usual serving of crime and despair there is occasionally a story of crime and cheer.

A man is mugged, and as his knife-wirlding attacker is walking away, the victim says: "Hey, wait a minute. You forgot something. If you're going to be robbing people for the rest of the night, you might as well take my coat to keep you warm."

Neat story, read it here.

Wednesday, August 18, 2010

What says the defense? (Part I)

I thought I would do a series of four entries on what I perceive as the stances taken by defense counsel in cases. I'd love some input from them (Donald, Jamie, I'm talking to you) to comment on what I have, and what I'm missing. Roughly speaking, here they are:

1. My client is innocent.
2. I'm not saying my client is innocent, I'm saying you can't prove he's guilty.
3. Maybe my client is guilty, but he has good reasons for what he did.
4. Fine, my client is guilty, has no real excuse, but here's why you should be lenient.

I'll address each in separate posts, giving some examples and some typical responses from me. Today, we'll take it from the top:

"My client is innocent."

As you might imagine, this statement is the one that gets my attention the fastest. I've said it before and I'll say it again: it's my worst nightmare to convict someone of a crime they didn't commit. So when I get an immediate and emphatic claim of innocence, not only do I scrutinize every detail of my file, I do it quickly.

Now, I start with the position that the police have better things to do than frame innocent people and fake evidence. Sure, it happens once in a blue moon but I've never had a case where I suspect that's happened and the reason you read about it in the press is that it's so rare, those cases stick out. Given that stance, when I have a police officer telling me one thing and a defendant telling me the complete opposite, I'm not going to just dismiss the case. I mean, imagine if all a suspect had to do to escape felony charges is say, "I didn't do it, the cop is lying."

What this means in practice is cooperation from the defense, both the lawyer and the defendant. I usually don't expect a defendant's lawyer to share anything with me at all, not his witnesses, not his theory of the case, nothing. BUT, if his client is claiming innocence I will want to put my evidence before him and see what he has to say.

For example, let's imagine I have an arson case in which the defendant had a grudge against a business, threatened to burn it down, the business burned down that night, and the next day the defendant is in hospital with burns on his hands and arms. He was also caught on surveillance camera at the scene, running from the flames.

Looks pretty guilty, right?

But his lawyer might tell me: "He made the threats, sure, but they were made to get money from the owner, who owed him. It was the building owner who set fire to the place and I have a witness who'll say the owner told him, 'I'll frame that SOB and keep the insurance money.' The owner called my client to come over, started the fire, and my client actually tried to put it out, knowing he'd be a suspect. Hence the burns. He swears up and down he didn't do it."

A plausible story. But I'll want corroboration - so I'll ask for the defendant's cell phone records to show the call. Maybe proof of the debt. Then have the detective go talk to the owner, find out where he was exactly that night, and get his phone records too. And, of course, talk to the witness who heard the owner admit his evil scheme.

None of that could be done without me working with the defendant's lawyer, sharing information in what's normally a one-way street.

So, a claim of innocence: the most serious, challenging, and concerning defense someone can make? Probably. But sometimes the easiest to resolve, too.

Check back for:

"I'm not saying my client is innocent, I'm saying you can't prove he's guilty."

Monday, August 16, 2010

I'm sure there's a good headline here somewhere...

But I can't think of it. I'm posting this for the benefit of my non-Austin readers, assuming they didn't get this story in their daily diet of news.

Summary: "a package containing a cow’s tongue embedded with nails, a note and a photograph" was found between railroad tracks this morning.

Here's the whole story. Well, not the whole story because we've not found the cow missing its tongue, nor do we (read, "I") know what the heck it's about.

Plenty of amusing suggestions in the comments section below the newspaper's story, though.

Although is it funny or is it creepy? I'm trying hard not to find it creepy.

This week's jury trials:

Here's the rundown for this week. Okay, just two so not that much of a rundown. I've added a link to the relevant news story.


Defendant: Joseph Lee
Offense: Murder
Prosecutors: Sandra Avila Ramirez and Chris Baugh
Defense attorney: Rhett Braniff

ongoing from last week:
(on 9th floor in the Magistrate's Courtroom)

Defendant: Scott Michael Lando
Offense: Delivery of a controlled substance
Prosecutors: Gail van Winkle and John Neal
Defense attorney: Travis Williamson

Friday, August 13, 2010

Those poor defense attorneys

I often lament with them, or just for them, when I can see their clients are being difficult.

Have a look at this post from DC defense lawyer Jamison Koehler, collating a bunch of quotations on the subject.

Before we start, there's one I heard this week, client to defense lawyer discussing probation conditions:

"Dude, I don't want to go to rehab. Can't you tell the judge to give me out-house treatment?"

Tuesday, August 10, 2010

Roll the In-car cameras

Several news sources, including our local paper, have reported that the Austin City Council has approved 15.5 million for new digital cameras to be installed in APD's cars. And several people have asked me what I think about this.


Seriously, I think this is a great plan and the cameras will serve the community well, in the sense that they will hopefully reduce some of the anti-police sentiment and skepticism I see (too often, frankly) and make the criminal justice system more transparent.

The press has covered this by citing high-profile incidents where cameras were not activated -- important, of course, but my concern is at the day-to-day level, the changes we'll see in the courthouse. And it will make a difference, I think we as prosecutors will see some distinct advantages, as will defense lawyers. To illustrate this, here's a scenario that happened last year:

Suspect is weaving about the road, can't stay in his lane. A cop sees him and thinks, "Maybe this guy has been drinking." He starts to tail him, maybe even activate his lights to pull him over (and right now, this is one of the things that starts the cops' videos). Well, at this point the suspect sees the cop in his mirror and concentrates extra hard on driving in a straight line.

We get to trial, and the cop testifies about the swerving, and we play the video. The defense lawyer then stands up and makes him replay the part where the defendant is not swerving at all. A little misleading and a little unfair on the cop.

The bottom line, then, is that while removing an angle of attack for defense counsel it will help us nail down the truth, and I don't think anyone can argue against that.

Also, my understanding is that the new cameras (due out in 2012) will be high-tech digital doo-dads and will actually capture images from some period of time before the camera is activated. Don't ask me, I have no idea how that works. I do know that the debate between defense counsel and the cop in the trial I had last year, where the above scenario played out in court, won't happen. If the cop was making it up about the swerving, we'll know. If he's telling the truth, we'll know that, too.

I'm also looking forward to better quality images. Now that jurors expect to see video, when we present them with crackling, fuzzy, line-filled shots they are less than satisfied. Unsurprisingly.

The automatic activation they are talking about also leaves the officers to focus more on the policing aspect of their jobs, rather than evidence collection or self-accountability. Those have to be good things, too.

And, finally, my understanding is that because they are digital and those crummy VHS tapes will no longer be used, we may be able to download videos directly from some central database. That means our investigators won't have to take time to record them, and we can get them into the hands of the defense counsel faster.

Down sides? Other than the large amount they are costing, I don't see any. Do you?

Monday, August 9, 2010

Jury trials this week - 8/9/10

Okay, back in the flow so here are the jury trials going on in the district courts this week.


Defendant: Scott Michael Lando
Offense: Delivery of a controlled substance
Prosecutors: Gail van Winkle and John Neal
Defense attorney: Travis Williamson


Defendant: Mark Green
Offense: Evading arrest
Prosecutors: Jason Knutson and Jeremy Sylestine
Defense attorney: Eric Rosen
Disposition: Defendant pled guilty, to the jury for punishment


Defendant: Mathew Skotnicki
Offense: Sexual assault
Prosecutors: Bill Bishop and Erika Sipiora
Defense attorney: Charles Dorbandt

Saturday, August 7, 2010

Legal advice

I took a guilty plea on Friday, a fair run-of-the-mill drug case in which the defendant received a short stint in the county jail (I hadn't negotiated the deal, I just happened to be the ADA there to handle the plea itself).

After the papers were signed, the defendant was brought out and the judge made sure all was proper and correct. At the end, as always, the judge wished the defendant good luck at which point the defense lawyer (who shall remain nameless) turned to the client and said:

"Okay then. Next time, don't get caught."

Good advice from lawyer to client? Or just realism?

Wednesday, August 4, 2010

Before we get criminal...

I'm still unwrapping my mind, trying to get into work mode, but before I do I wanted to share this unrelated series of drawings/cartoons from a NYT artist/cartoonist who recently made an international trip. He documents his flight's stages in pictures, and they are wonderful.

By the way, word to anyone planning a trip: take time to leave an "I on vacation" message on your voicemail. I did, and had just two messages when I got back. TWO! And one of those was a hang-up!!

It didn't work so well for email, I had about a hundred waiting for me.

And a few files to read before the end of the week. (I wonder what's in the envelopes, I don't get many of those...):

Tuesday, August 3, 2010

And. . . I'm back!

Here I am, in the flesh, back from vacation. Two weeks of crime-free wonder, no thought of good guys, bad guys, or those (like most of us) stuck somewhere in between.

But now it's back into the fray. Three pages of emails, some of which I'd love to share but can't, most of which got binned immediately. None titled "You Screwed Up," which was a relief.

I thought I'd ease myself back in here with a couple of replies to comments left while I was away.

First, and several people have asked this, someone asked how to find out about trials other than the bare details I post. The truth is, "With difficulty." If the media cover the case, you can get info there. If it's more than idle curiosity, you could always try calling the defense lawyer or the prosecutor to see if they will answer your question(s). We're pretty good about being open and accessible, though you'll have to understand that there are some things we can't answer or provide. But we're friendly folks, so no harm in asking if you need to.

Second, this comment after my guest blogger Mackie's post about being on a jury:

I have also served several times on a jury, with similar sentiments afterward. Important duty, and interesting to be involved. Financial impact for others, though, is extreme and a six or seven month trial would destroy, or at least completely rearrange, anyone's life. Would be interested in DAC's opinions on this.

Well, my opinion is that I agree. It can be a huge imposition on people. Which is why we see people bucking to get out of it, and rolling their eyes when picked. But I think it's important to point out that most trials (certainly criminal ones) last less than one week. And you get a whole $60 a day!!I've wondered about having professional jurors who travel around hearing cases. But there's something wonderful (not to mention Constitutional) about having twelve people from the very community in which the crime was committed as the judges of the facts in a case.

I'm also trying to remember one single juror who has said they regret serving, and I can't come up with one. Yes, it's an inconvenience and, sometimes, pretty boring. But (not to sound like a Communist) when we live in a society we sometimes have to sacrifice our immediate best interests for those in our community. Like helping an old lady across the street when you weren't planning to cross. Okay, so it's a very large street and takes a few days to cross. (Hmmm, I wonder if that chicken could do it -- help the old lady, not be a juror -- you know, the one that's always crossing the road.)

So, bottom line, I agree it's an imposition. But it's almost always a brief one and one that is so important to our society I wouldn't advocate changing it. I might increase the remuneration a little but that might mean a tax increase, and we sure as heck know how people feel about that!
Third of all, some pics from where I was recently.

Now, just because it's my blog and I can: first, my parents' house, where we spent the first week.Next, the second house we stayed at, and its view:And no trip to France is complete without seeing the most wonderful city in the world, Paris:
And I just love this picture, the curious look on his face, the fact that he's covering up my triple chins... (yes, he's the lad in the picture at the top of the blog, growing up, isn't he?!)