Thursday, September 30, 2010

Story time: a tale of burglary and hubris

This is the second in an occasional series in which I actually break (okay, bend) my rule about not talking about cases. Be sure to read my standard disclaimer so you see why and how I'm doing it:

Disclaimer: In the same way I tell my kids about my cases, I share this story with you. But I will tell it in the same way I tell my kids, thus I'll be leaving out analysis, legal discussion, names, dates, and, well, facts.

Once upon a time, a year ago to be exact, a colleague had a burglary case. The evidence was a little thin, consisting of an eye-witness identification (by a stranger about thirty yards away) and the defendant's car being at the scene (he didn't live there).

The defense lawyer, I'll call him Chip, was emphatic that the defendant (I'll call him Rob), was innocent.

"He'd loaned his car to his cousin, Abe, and look at this picture: Abe and Rob look very much alike."

My colleague looked at the pictures and there was indeed a good resemblance, but the witness was adamant.

"Also," Chip went on, "my client has no criminal history at all, and his cousin is not just a burglar but has just been sentenced to life for sexual assault."

An easy fall guy. Nice touch.

And then my colleague got transferred out of this court into another. Her replacement took on the case and got the same story. At one point, the defendant was offered a misdemeanor with time served, but he turned it down, insisting that he was innocent.

Then, when this prosecutor left the court, I got the case. And the same insistence of innocence.

"In fact," Chip said, "my client is willing to take a polygraph test. That, by itself, should convince you of his innocence."

And it gave me pause. Why would a guilty man volunteer for a lie-detector test? I hummed and hawwed and finally picked up the phone to call the Department of Public Safety polygraph division. I got bounced around a few times but finally talked to a polygrapher. I laid out the facts and asked if he thought he could help.

"Sure," he said. "Be happy to."
"Well, great. But how much will this cost the county?"
"Nothing. Absolutely free," he said.

So I made an appointment on the spot, called Chip and told him where to be and when.

The afternoon of the polygraph I was driving home when I got a text (I checked it at home, not while driving, of course), from Chip:

"Polly wanna cracker?"

What could this mean? Did his man pass or fail? It sounded a little gloating but I wasn't sure so I checked my work email. There sat a message from the polygrapher:

"Rob failed the polygraph."

Wow. But that's not admissible, I thought to myself, let me just read the rest of this email. . .

"Not only did he fail it, but he confessed to being the driver, entering the apartment, and getting money from the proceeds of what was stolen."

Double wow. From a misdemeanor, with time served, to a second degree felony, and all because he thought he could get away with it.

That evening I called the prosecutors who had handled the case before me and both had the same reaction: "No way! I knew there was something about that case!"

I saw Chip the next morning and felt bad for him. He'd believed his client and fought hard for him, did everything in his power to convince us the guy was not guilty.

And so I didn't gloat.

After all, hadn't I just learned a valuable lesson about hubris?

Tuesday, September 28, 2010

Murder case closed

If you've been reading this blog in the last few weeks you'll know I've been first-chairing a very emotional murder case. The jury voted a guilty verdict on September 15 and today we closed the case with the sentencing phase: the judge assessed punishment at 35 years.

Here's the news story.

Not happy, this couldn't possibly be a happy occasion, but I do feel like justice has been served. And I'm ready to turn my attention to the files that have been piling up in my office for the past three weeks.

Edited to add: I recently found an article about this incident written by a neighbor of the victim. It's about the effect of something like this on a neighborhood, very well-written and interesting.

Monday, September 27, 2010

Fresh and ready (and an immigration agent who rocks)

Like a new loaf of bread I am fresh and ready to go.

Oh, right, I forgot to mention my little sojourn to Cancun. Just four days but well-deserved (says I) after a difficult murder trial and the fracas within.

Here's where I spent my time:

And here I am on the blacony of our room:

Oh, I don't mean to gloat, really I don't. And I do have an amusing law-enforcement story for you.

We were coming through immigration on the way home, a huge hall in Houston filled with weary travelers, all of us snaking back and forth through those interminable alleys of tape, waiting for one of the five immigration guys/gals to do whatever they do with our passports (and by the time I got to the front of the line, I had a few suggestions).

So one couple is ahead of us and the immigration agent stands up and shouts to the whole group, all four plane-loads of us, seemingly irritated:

"We need wives and boyfriends to be in the same line, please. If you go in different ones we'll send you to the back of the line."
My wife and I looked at each other. "Wives and boyfriends?!"
So then we go up together, a little timid because the chap seemed grumpy, and we didn't want to get (a) sent to the back of a 45-minute line or (b) arrested and sent to Gitmo.

The agent looks up and says to my wife: "Wait, this isn't your boyfriend."
"Huh?" she says.
"You were here two days ago, right in that line, with a different boyfriend."
My wife isn't sure what to say but, being an appreciator of deadpan humor, I pipe up: "Oh, her boyfriend's in a different line. Maybe you should send her to the back for that."
He laughs and says, "Yeah, right to the back. But seriously, two days ago, you and a different boyfriend."
We all laugh and then he points to our customs form. "Says here, $60 worth of toys. They for you or the children?" Then, without letting us answer, he waves us through, grinning playfully. "I don't want to know," he says, "I don't want to know."

So, dear readers, I give you an immigration agent with a dry and somewhat naughty sense of humor.

I only wish I could give his name, but no doubt he'd get fired.

Wednesday, September 22, 2010

Rules? What rules? (aka blogging for prosecutors)

Some kind reader used my suggestion box to ask if I'd post about legal and ethical challenges I face blogging, a topic I've brushed up against previously but not (if memory serves) addressed directly.

As you might imagine, when I began blogging I looked for written guidance as to what was and was not acceptable. I even called the State Bar ethics hotline to see if there were any rules I could follow.

Seems not.

Most constraints on legal blogging seem to focus around issues of advertising (not a problem for me, I have new "clients" streaming in every day) and client confidentiality (okay, so I don't actually have "clients," so this doesn't apply either).

I then looked around for other prosecutor blogs to see what they were doing, I thought I'd contact the writers and get some tips. But I couldn't find any.

Which left me somewhat out in the cold.

Essentially, I had to set my own guidelines and I did this by asking two questions every time I blogged:

1. What did I see as ethically appropriate?
2. What would get me fired?

I follow some simple rules, flexible ones, that attempt to keep me on the right side of those questions. The main ones are:
  • Do not write about ongoing cases. If I want to draw attention to one of my cases, say it's going to trial, then I let people know it's going to trial and I post a link to a news story about the case, without commenting on the facts myself. This cane be tough because I'd love to blog about what happened last week, I've been asked to do so, but I'm going to put some time between the event and my account of it.
  • Do not generate, encourage, or participate in topics of controversy. Thus you won't find discussions about the death penalty, immigration, drug policy, or the Dallas Cowboys here.
  • Treat everyone with respect. If I have a funny case where someone did something silly, or said something amusing, I will never tell you about it to humiliate that person and so won't identify them. We see so many funny things in court it's tempting to give every last detail but I try to be more respectful than that. The one time I will name someone is if they have done a really good job and warrant some attention.
I think those are pretty much my guiding principles. I sometimes wish there were more prosecutors out there blogging, or some legal scholars drafting guidelines for bloggers, but on the other hand a little freedom is nice.

Monday, September 20, 2010

Story time: the bank teller's surprise

So I'm always loathe to talk specifically about my cases, careful maybe, but some just beg to appear on the blog. So, in the same way I tell my family about what goes on I plan to share stories with you. Thing is, you're going to get them the way I explain them to my family. And by "family," I mean my kids. This means I'll be leaving out analysis, legal discussion and, well, facts.

But you should still enjoy them.

"So, guess what kids?"
Putting down crayons and beaming. "You brought us presents?"
"No, just a story."
"From work?"
Picking up crayons. "Will it be more interesting than the last one?"
"Oh. I hope so."
Muttering. "So do we."
"So there's this man--"
"A bad guy?"
"No, more of a . . . silly guy. Anyway, he goes to the bank, the drive-through."
"Like where you put money in the sucking tube?"
"Exactly! Anyway, he puts his money in the sucking tube and away it goes, up the pipe and into the bank. And the man behind the window takes his money out of the tube like he's supposed to. But tucked inside the money is a little bag."
"Like a grocery bag?"
"No, even smaller. Like a sandwich bag you take to school. But inside isn't a sandwich, it's some of that nasty powder that I told you about, that makes people act silly and hurts their brains."
"Why did he do that?"
"I don't know. Maybe his brain was hurting."
"Did you put him in jail?"
"No. We're trying to fix his brain instead, make it all better and make it so he doesn't use that stuff any more."
"That was silly of him."
"Yes, it was."
"So next time," thoughtful looks, "will he send a sandwich through like he meant to?"

Friday, September 17, 2010

The most exhausting week ever

Well, professionally speaking.

The jury returned a guilty verdict today, on both charges. A sad day because we're reminded that one young man is dead and another is going to prison. On days like this I feel utterly drained and a little despondent, but justice is always going to have a rough edge.

As ever, my sympathies to the family of the victim. Also, my gratitude to the Travis County Sheriffs Office who kept us all safe and sound throughout a very emotional trial.

And now excuse me while I sleep for twelve hours.

Wednesday, September 15, 2010

Never a dull moment

As some of you may have read, we had a disturbance during trial. I meant to post this yesterday but what with being in a murder trial, and after this happened, I had too much else to do.

We've almost finished putting our case on, will do so tomorrow (Thursday). I anticipate closing arguments will start sometime in the afternoon.

Tuesday, September 14, 2010

In trial . . . at last!

It's going to be quiet from me this week, as I'm in trial. We picked the jury yesterday afternoon and will start evidence presentation today. If you're in the neighborhood, come by and watch. If you're not, I'll try and fill you in afterwards.

This is the case.

And if you want something more to read, check out Jamison Koehler's blog entry on talking to kids about what we do. He's a criminal defense lawyer in DC so, naturally, his take is different from mine. Fascinating and thoughtful, as always.

Friday, September 10, 2010

Good guys and bad guys

When I started this job my kids were young. Heck, they're still way too young to understand what a "lawyer" is, what "law" means. So how do I explain what I, a prosecuting attorney, do for a living?

At first it was easy. And I got the idea from my son. He saw a cop (another father) at his day care center, walked up to him and said:
"Are you a policeman?"
"Yes," said the cop. "As a matter of fact, I am."
"Well," said my son, "my dad's a super hero."

And yes, that about made me cry.

But now that they are older I'm less comfortable with their nightly question: "How many bad guys did you get today? Did you put them in jail?"

I like that in their minds I'm always the good guy, always saving people and on the side of right and justice (the truth, right?!). But such a black-and-white take on the criminal justice system seems, even for almost-six-year-olds, just a little too simplistic for my liking.

And so, not more than a couple of weeks ago, I came up with a nuance. Here's how it came out:
"Did you put any bad guys in jail today, daddy?"
"Actually, no."
"Why not?"
"Well, you know, not all people who do bad things are bad guys."
Stunned silence.
"Okay," I say. "Sometimes we put bad guys in jail. But most of the time we try to change bad guys into good guys."
"Well, it's better to have more good guys and fewer bad guys, isn't it?"
"Sure." Pause for thought. "Because with more good guys you can catch more bad guys and put them in jail?"

Still, it seemed like progress.

Tuesday, September 7, 2010

The prosecutor / defense lawyer disconnect

Continuing the wee series that explains how we work in Venn diagram form, today we have the negotiation process between defense counsel and prosecutors.
(Previously I covered the lawyer/client disconnect, and the lawyer/witness disconnect.)

Friday, September 3, 2010

The lawyer / witness disconnect

Continuing the Venn diagram analysis of our profession, (see yesterday's), here's one of my own invention:

Thursday, September 2, 2010

The lawyer / client disconnect

We bloggers are a light-fingered bunch, but I had to steal it and put it here because, well, it's funny AND true. It's a diagram of what lawyers put in their biographies and what clients actually look for in a lawyer.

It comes courtesy of Matt Homann of the [non]billable hour, via fellow blawgger Jamison Koehler.

Enjoy while I devise my own.