Tuesday, August 30, 2011

Say what?!?

My life at home is usually pretty separate from what goes on around me at work. You know, less heroin, fewer aggravated robberies, barely any check forging, and not so much with the driving around the cul-de-sac swigging bourbon.

But just as my court days are filled with nonsense jabbering (yesterday: "I didn't hit her, she must have stumbled into my fists") so are my commutes to school with 6-year-old twins. This morning:

Natalie, pointing to a man on a bicycle: "Gosh, he has weird ears."
Henry: "Maybe he's an elf."
Natalie: "More like an elf who lost his job."
Henry: "What if he lived in Africa?"
Natalie: "Then I think he's going the wrong way."

Also, can I get your help to solve a mystery? It has to do with Henry's homework, which came home yesterday with no instructions. And for all but the last part, even we could figure out what to do. But not the last problem . . .

1. 2 + 5 + 1 =
2. 9 - 4 =
3. 7 + 6 =

Saturday _________
Tuesday __________

So the answers are 8, 5, 13, and . . . ?

Sunday, August 28, 2011

I have reinforcements!

For those of you who have an interest in criminal law, and came across me that way, you will already know that the vast majority of crim law blogs are written by defense lawyers, or defense-minded people. Nothing wrong with that, of course, I like being different.

But I wanted to let you know that I'm not alone out there. Here. Wherever I am. As such, I wanted to post briefly today to point you towards two other prosecutors who are blogging, one kind of a big shot author and commentator type (hi Sarena!) and one who has just started. Both are on the East Coast, in New York State, so their take on prosecution may differ a little from the Texas-style issues I come across.

On the other hand, I'm in Austin so maybe we're more alike than different. :)

So, I refer you to Sarena Straus' Blog: Criminal Minded. Justice Unblinded. Check out her recent post on the Straus-Kahn matter.

The second blog is Prosecutor's Discretion and here's what he says:

There are wonderful people in law enforcement doing their absolute best to uphold the laws of this country and I hope to give the public a forum to understand exactly what we do. I'll use my discretion on here to talk about criminal law issues, the court system, police work, amusing court stories, books, and probably a lot of other issues that may relate to criminal prosecution.

So, visit them early and often. You know, right after you come here.

Thursday, August 25, 2011

Win? Loss? Top Eight Reasons I Don't Keep Count.

There's a common perception, I think, that trial lawyers put a lot of stock in their win/loss record. As competitive people, most of us, one might expect us to.

So, after my trial this week (yes, it went ahead!), I thought I'd present you with a Letterman-style Top Eight list of why win/loss tallies are pointless.

1. This isn't a game. It's about justice for victims, and at stake is often the freedom of defendants. Making it about me winning or losing risks distorting that.
2. What is a win? If I offer a four-year felony sentence and the defendant will only plead to a misdemeanor, how do I tally a guilty verdict (and so a felony conviction) but a sentence of probation?
3. What is a loss? See example in #2.
4. How would one tally the following?: a hung jury, a mistrial, a conviction reversed on appeal...
5. If I'm winning all my cases, I should probably be pleading them out. Winning slam-dunk cases is proof of nothing.
6. If I'm losing all my cases, I might want to try practicing civil law, where they don't try cases.
7. None of us should be afraid to try the hard cases. Sometimes we have cases where we are convinced the person is guilty, but maybe for evidentiary reasons, we also know it'll be hard to prove it. The defense knows it, too, so won't plead. I think sometimes we have to try and convince a jury in those instances, even if the risk of losing is high. It's simply the right thing to do. And, you know, sometimes when we do that, we win.
8. If we were able to objectively tally wins and losses, some might have a better record than me. I would not like that.

Ah, and you're probably wondering how I got along in my trial. See Number 2, above for the answer. Fine, fine work by defense attorney Ray Espersen. I obtained a conviction, yes, but mighty well done, sir.

Monday, August 22, 2011

"Busting" a jury panel

Tomorrow I am scheduled to start a trial in the 167th, though last-minute negotiations might end that. But I've been talking recently to colleagues and defense lawyers about something called a "busted panel." Actually, my friend Johnny Goudie was on a jury panel that got busted last week.

So here's what happens: 60 people come in for the voir dire process. They have to be qualified, so to speak, to sit on the jury. Those who cannot follow the law are excused "for cause" and the State and defense then get their ten peremptory (for any reason we like) strikes.

What do I mean by not being able to follow the law? Well, here are some examples we see are when panel members say:

-- "I understand that marijuana is illegal but, no matter the evidence, I will never convict anyone of a criminal offense related to possessing or using marijuana."
-- "I don't care how many thefts a person has committed, if someone steals a can of beer, I will never sentence him to prison."

The first will have the members struck because they can't follow the law and convict if the evidence proves possession, or use, of marijuana.
The second will also be struck because even though theft of a can of beer is not a prison-able offense, if the offender has two prior theft convictions the punishment range goes up to a felony (6 months to 2 years in state jail).

Sometimes defense lawyers will structure questions to try and bust the panel, to avoid having the trial. Some are good at it. I often wonder what they gain, though, as a trial will happen eventually, and if their client is in jail, what's the benefit?

I am almost certain that tomorrow's panel, should I go to trial, will not be busted. That's because the defense lawyer, Ray Espersen, is always ready to actually try the case, and because there are no complicated or controversial issues (like drugs!) to push people off kilter.

As my time in trial court comes to an end, I realize that it's appropriate I'm trying this against Ray. I've tried more cases to a jury against him than any other defense lawyer -- this will be my fourth. He keeps promising to do an entire voir dire in an English accent and he's just the guy to pull it off. Oh, and I'm sure you'd love to know who's won how many, but I'm not going to get into that here. All I'll say is, let's hope that he doesn't break his 'duck.'*

Happy Monday everyone.

*Cricket reference. Feel free to look it up on Google.

Wednesday, August 17, 2011

A capital question

Excellent, a question from a reader:

DAC, what protocols does your office use in deciding when to seek a death sentence?

Only certain murders qualify as capital cases (more than one victim, for example). Whether or not to seek the death penalty is, of course, a huge deal and something we take very, very seriously here. Here's how it works:

The prosecutor is assigned the case, a capital murder. He meets with the detective, the victim's family, and reviews the file. He then puts together a presentation for a committee. This lays out the facts of the crime, the strength of the evidence, the criminal history of the defendant, any mitigating factors, and the wishes of the family.

The committee then discusses the case, using past capital murders as reference points, of course. That committee, by the way, is made up of senior prosecutors, division chiefs, that sort of thing. These are all people with decades of experience in this field, as you might imagine. Each person then gives his or her opinion. The elected DA listens carefully to each opinion, usually asks some hard questions of the ADA handling the case, and then she ultimately makes the decision.

I hope that answers your question, thanks for asking.

Monday, August 15, 2011

All change: here I come, kids

After two and a half years handling felony cases in the 167th District court, I am being transferred to a different division:


What does this mean? Well, it means I'll be handling cases involving kids aged 10-17, both misdemeanors and felonies. I'm told it's a different pace and that the emphasis, even more so that in adult court, is on getting the kids back on track and avoiding, wherever possible, the stigma of a criminal conviction.

So, it's a new office for me, which means losing my view of the jail. Heart-breaking, I know. No window at all in the new digs, actually. But I'll be at the juvenile court two days a week, back in the office the other three.

The one big downside for me is that I'll probably not get any jury trials for my time there. For whatever reason, they just don't happen there.

But, I do plan on keeping a couple of cases. One is a capital murder case and the other is already set for trial, a sexual assault case. That one goes in October, so hopefully I won't get too rusty.

Overall, I'm very happy because I'm the kind of person who likes change, I like to learn new things and meet new people.

I'm guessing I'll have some good stories to share in the coming months, though as ever I'll have to be super careful about the details and not give to much away.

But join me for the switcheroo, it'll be interesting.

Thursday, August 11, 2011

More genes... mine this time

So my grandfather was one of the coolest dudes you ever could meet. I'm talking about the one who lived in Chapel Hill, North Carolina. He was a minister in the 1940s-1960s, worked with MLK and has (in my eyes) the wonderful privilege of being tried as a heretic.

Yep. A freakin' heretic. Why? Because the Presbyterian Church at the time (1950s) didn't like that he was inviting black people into his church and even *gasp* having mixed-race picnics. His outrageous views even got him mentioned in Time Magazine.

I spent a lot of time with him at the end of his life and we got along famously -- I think I got my sense of humor from him. And he gave me my love of pancakes. And stealing sugar packets from diners. Which I don't do any more, I'm a prosecutor for heaven's sake!

Anyway, I was very proud to see that almost twenty years after his death, he's still being recognized.

Charlie Jones. Grandaddy, to me. And the best thing he ever said to me?

Ah, no, can't repeat it here, now that I think about it. But that's the kind of minister he was. My kind. And I'm embarrassed that I've never mentioned him here before.

Monday, August 8, 2011

A couple of things: in court and in your genes

First, I wanted to relay a snippet of conversation that I had in court with a defense lawyer. Sometimes, when our evidence is just too strong to really contradict, a defense lawyer will come up with an argument that is spur of the moment and patently impotent.

The question is whether or not the attorney recognizes the riducousnessosity of what he's saying. Usually we both have a good laugh, like we did today.

In this case, the lawyer read through the file and came to talk to me. He suggested a few mitigating factors, none of which amounted to much.

"I suppose you're pretty confident of proving your case at trial," he said.
"Well, the offense report does indicate the whole incident was caught on camera. Plus your client confessed. The report was pretty clear, I think."
He nodded, smiling awkwardly. "Yes. That is the way the words are arranged."

The words and the evidence, methinks.

Secondly, I had the honor of being interviewed for the blog of a fellow writer, on the subject of DNA. She's awesome, and I encourage you to pay her a visit. The interview is here. And she has some very cool photos she takes, too.

Thursday, August 4, 2011

The Role of the Judge

This is directed mostly to those who will never read it: inmates awaiting trial.

But it's a situation that we see every week, so I thought I'd share. Here's what happens:

A sexual assault case. The prosecution is seeking prison time because of the nature of the crime and the defendant's history of violence. The defendant, having been to prison and not liking it, wants a probated sentence. There is, then, an impasse in negotiations.

The defense lawyer explains that probation will never happen and that if his client doesn't take the deal, they are headed to trial. The client doesn't want a trial, he thinks he'll lose.

What he does want is to talk to the judge.

So the defense lawyer tells the judge negotiations are failing and his client wants to talk to him directly and won't accept any other course of action. Why? Because he doesn't understand the judge's role. He thinks that a judge, because of the many powers he does have, can also forge a deal.

But he can't. A plea deal can only be reached by a prosecutor and defendant('s lawyer). The judge merely signs off on it.

So what usually happens is that my judge, Mike Lynch, tries to explain that. He'll tell the defendant he's not a party to the negotiations and that if he doesn't like the deal his only other option is to go to trial.

The way inmates talk to each other, spread rumors and give "advice," you might think the role of the judge would be better understood by now. But apparently not.

A long docket this morning, and I bet at least one inmate will ask to speak to the judge, hoping he'll sweeten the deal and take the defendant's side in plea negotiations. The judge won't, of course, he'll give his usual speech.

But think about it the other way around. Imagine if the judge weighed in on our side, pressured the defendant to take our deal. That possibility, I trust, makes it clear why a judge must remain neutral.

Tuesday, August 2, 2011

Now for some spin

I like to report on interesting things people say and do in court, so here's one from a recent plea.

The defendant was about to be sentenced by the judge, who was listening to defense counsel's plea for a shorter prison sentence. I can't repeat his exact words, but here's the gist:

"It's not that my client deserves a shorter prison term, but rather when he goes to prison (which he has done before) he becomes violent and fights. Therefore, to minimize the level of violence he subjects people to, he should get less time."

The attorney in question, let me add, had very little to work with and was offering this as a last resort, and somewhat tongue-in-cheek. Which is to say, he recognized the irony inherent in his argument, to his full credit.

And just so you know, and judging by the sentence, the judge did not find that line of reasoning to be particularly persuasive.

Monday, August 1, 2011

Charging is as charging does.

Cops on the beat have to make a lot of decisions: whether to use lights and sirens, whether to chase or just follow, warn or arrest, go glazed or creme-filled.

I don't envy them because I know there are ranks of senior officers, ADAs and grand jurors waiting behind their (our) desks, ready and willing to second-guess. Much of my job is armchair quarterbacking, in fact, and I always try to remember that it ain't so easy when you're in the moment.

One area of second-guessing that is a constant complaint of defense lawyers is the issue of over-charging. Let me give you an example:

Joe Knickerbocker goes into the pharmacy.
He pockets a tube of toothpaste and starts to leave without paying. A clerk sees him and tries to stop him, standing in the doorway. Joe shoves past him, swinging at the clerk with his prosthetic arm (did I mention the prosthetic arm?).

Here are the charging options:

Theft (class C misdemeanor, based on value of the toothpaste).
Assault (class A misdemeanor, based on the shove that caused pain).
Robbery (2nd degree felony, based on the Theft + Assault).
Aggravated robbery (1st degree felony, based on Robbery + Prosthetic [ a stretch, I grant you])

So once arrested Joe faces anything from a fine (not to exceed $500) to life in prison.

Quite a range, I think you'll agree.

Now, usually the cop on the scene charges what he thinks is appropriate, erring on the side of caution (i.e. public safety) until someone with more experience can double-check his work. And ultimately, the grand jury makes the final decision on the charge when they indict Joe.

So, what I normally see is a charge that allows some room for plea bargaining: if Joe is sorry, hasn't much in the way of a violent criminal history, didn't really hurt the clerk, and the clerk is fine with a more moderate punishment, then there is no way in heckeroony that he'll be convicted of aggravated robbery. Or even robbery.

But every now and again I get a case where the arresting officer didn't have all the relevant information and consequently the charge is much less than I would expect.

Interestingly, on these occasions I get strong-armed by hopeful defense lawyers wanting to plead their guy (or gal) to the crime they were initially charged with, using the patrol officer's decision as evidence of what their client actually did. I have seen this a few times and I always point out that if the cop who arrested Joe believed it to be aggravated robbery, is that evidence that is actually was aggravated robbery?

Course not.

The problem arises at trial, when the poor beat cop gets the,
"If this is such a big deal, why didn't you arrest him on the spot?"
"He's facing this count of double-extra-chocolate-covered felonious badness, but you only charged him with mildly-irritating-misdemeanor-annoyingness."

And that's just me asking the questions.

I object at trial, if I can, because I think it's confusing to a jury who charged what with whom and when, and I certainly don't get to ask a cop's opinion of what he thinks the charge should be.

The evidence, I think, should speak for itself. And at the end of the day, if the defense lawyer and I can't agree we have that wonderful band of folks known as a jury.

They are, indeed, the last word on charging decisions. And who better than our fellow citizens to do that job?