Friday, September 15, 2023

I didn't realize it would be like this! (Or, Why I stopped drinking and am learning to be kinder )

I'm still learning this criminal defense stuff.

People often ask me how I like the switch, how it's going, and what I usually tell them is that I've been surprised by the many things I didn't know, or put more positively the many things I'm learning. In the early days, I meant by that the practical and procedural aspects of the job -- how to get someone out of jail, what motions to file and when, that kind of thing.

But these days I mean more that that, I'm talking about the biggest thing that I didn't know coming into this defense role: The emotional stress that the job entails.

When I was a felony prosecutor, people said all the time, "Wow, that must be stressful!" Sometimes it was, usually when I prepared for and tried a big case, or when I was dealing with a victim or their family who were not (in my view) exhibiting reasonable expectations. But most of the time it really wasn't. Once you know how to try a case, once you learn how to navigate the system as a prosecutor, the job is fairly straight-forward. Yeah, I know, sorry to burst that mystical balloon...!

But one thing's for sure, looking back, I can safely say that being a prosecutor was way less stressful for me than being a defense lawyer. Here are the main the reasons why:

(1) The lack of control:

As a prosecutor, the degree of discretion you're able to exercise is startlingly wide. A prosecutor has latitude to choose the path a case takes, from taking it to trial and seeking prison to dismissing it entirely, and everything in between.

A defense lawyer doesn't have any power. Well, the power of persuasion but if you're talking to someone who's not listening, that's no power at all. So if I have a case where it's clear the client is innocent, I have to rely on someone else (prosecutor or jury) to do the right thing. After 15 years being the one to wield that power and discretion, it's very stressful having to rely on others to do the right thing.

(2) The responsibility:

If a prosecutor screws up a case, everyone goes home to their own bed that night. If a defense lawyer screws up, someone can go to jail, prison, or otherwise have their life ruined by a criminal conviction. Every one of my 40+ clients looks to me to restore the natural order of their lives. Almost every single one of them has never had any trouble with the law before, and is facing a life-altering outcome unless I do good work. 

And that responsibility doesn't disappear after 5pm. People call in the evenings and weekends wanting help, wanting answers, wanting reassurance. So I can't turn off the stress button come sundown, and almost every morning there's an email or voicemail from someone who needs me, stat.

(3) The things I'm not trained for:

It will be no surprise to anyone that some of our clients have mental health challenges. MH care in this country is hopeless and all too often acts born of mental illness dump a person into the criminal justice system. Some jurisdictions are getting better at recognizing that and providing a path for cases to be dismissed, which is great.

But others aren't, which means we're left dealing with individuals who have clear mental health problems and who are also facing the added albatross of a criminal conviction.

And guess who can be less than easy to deal with? Yep, someone with a mental health condition looking at a criminal conviction. Completely and utterly understandable. And very common. But I'm not trained in counseling or any facet of MH treatment so talking to, and sometimes just listening to, some folks in this situation is hard.

Recently a client sat in my office and talked for almost 90 minutes, haranguing me for not addressing their every need, some case related and some not. Raising their voice in anger at the lack of communication, when I've called and emailed and they've not checked voicemail or read their emails. I don't know how to deal with that, and so it's stressful and exhausting. I was lucky that my colleague Liz Duggan was in the room with me, her calming and kind responses to the client saved me from... I don't know what. Walking out? Melting down? Shouting back? Probably none of those because none of those are in my nature, but I suppose that's my point - I didn't know what or how to respond.

I had some wins this week, though. Some felony cases dismissed and some very happy clients as a result. I wish those moments would last a little longer, the victories, but the reality is (another stressor) that my win for one client doesn't help the next one, even a little bit. And so the battle continues.

And yes, I've stopped drinking altogether. I'm not making a big deal of it (except here!?) but the stress of the job has had a somewhat ironic result: I'm now 100 percent sober and just joined a gym. Maybe that's me reasserting power over the things I can control, proactively taking on the stress that comes with this job. 

But it's not just my liver sand my muscles I'm tuning up, it's my empathy. I'm trying to be kinder, to understand the stress that my clients are under, and relieve that the best I can. Maybe by improving my body I can improve my mind and, Jupiter willing, provide a little more comfort to the people who are even more stressed than I am: my clients.

Wednesday, August 9, 2023

One allegation, two prosecutors - and a startling disparity.

How much does justice, or the outcome of a case, depend on what amounts to a roll of the dice?

You see, the thing about being a prosecutor that some folks don't realize is the broad discretion assistant district and county attorneys have with their cases. Everyone's busy, everyone's overworked so generally speaking unless a line prosecutor screws up, their work doesn't get too much scrutiny.

That's especially true with the "smaller" cases - the ones that don't make the headlines, or maybe just the crimes that don't have a specific victim (I'm thinking drugs cases, possession of firearms etc).

I was always acutely aware of the power that this discretion vested in me, and lord knows I hope I used it wisely and with mercy and compassion. And I say that because I'm seeing that some prosecutors do not. 

I know, I know, a horde of defense attorneys are welcome to pile on with "we know, you idiot," or "welcome to our world," but look - I always knew there was a disparity between the way I'd look at a case and the way a prosecutor in, say, Lubbock would. But it's worse than I realized, I'm more than willing to admit that.

Recently I found myself in a situation that made me wonder what kind of system we're working under. Here's what happened (names, unimportant details, and other minor facts changed to protect the innocent/guilty).

Facts of my case: young African American man pulled over for driving in the left (passing) lane. Not speeding, but he wasn't passing anyone so the cop decided to pull him over. I didn't like that, and the phrase "'driving while black" immediately rang in my head.

Cops smells marijuana, and searches the car. Finds a bag of MJ, some THC carts, and a gun.

  • MJ = Class A misdemeanor; 
  • Carts = Felony 2; 
  • Gun (he was allowed to have it but not if committing another offense) = Class A misdemeanor.
I ran this by one prosecutor who liked everything about the case, wanted him to plead to having the carts, and be on felony probation. Second degree felony probation, for five years. Pretty damn harsh.

I ran this by a different prosecutor hoping for a different perspective, even wondering if I was missing something. She didn't like the stop, didn't much care that a kid had THC carts, but wasn't thrilled about the gun. However, she also wasn't thrilled about tagging a young kid with a criminal record for, essentially, having weed. She proposed some classes in exchange for a dismissal.

The difference between these two prosecutors? One in Lubbock and one in Travis? Maybe one in Blanco and one in Hays?

Nope. About four feet. Both in the same jurisdiction (which will remain nameless), working in the same court, just at different tables in the same room.

Naturally, I did business with Prosecutor #2.

I couldn't, and still can't, get my head around one ADA wanting the kid to have a felony record and the other wanting to dismiss. And the scary thing is, both can be right. Both have the power to be right. If Prosecutor #1 hadn't been out that week and I'd not spoken to Prosecutor #2, my client would be at risk of losing everything.

And, of course, thank heavens for the level head, compassion, and decency of Prosecutor #2.

What's to be done about this? Nothing. At all. I share this only to let you all see the minefield that is the criminal justice system, and how the whims of just one person can destroy or salvage someone's career, even life.

Scary, huh?

Friday, July 28, 2023

Thanks for the praise - maybe leave out the advice?!

 With my thirteenth novel about to be published, and you know I'll be posting about that soon enough, I still enjoy hearing from readers of my other books. And, 95% of the time, when people email me it's either to say nice things or to ask when the next Hugo Marston book will be out. Or written. 

You'll notice that if 95% of the emails are lovely, that leaves 5% that are... less so. And I'm endlessly fascinated by the psychology of the 5 percenters.

Let me start by reassuring you - I'm no snowflake and I'm well aware that not all books are for all people. I've put down books that others rave about, and so I know not everyone will enjoy all of mine.

But the person who does like them, yet wants me to know their very specific criticisms... what's that about? Let us break down the email I got this morning:

Here it is in full:

I am an avid reader. Non-fiction, fiction and preferably mysteries. I am so pleased to have found your Hugo Marston series. All the elements I like—location specifics, “bloodless” murders, reasonably short chapters, interesting protagonists. Very enjoyable. But, here comes the but. With the thousands of names available to you, why, in The Book Artist for example, have detectives or characters named Marston and Marchand? Why two women named Camille and Claudia? Just to irritate readers who may get confused as to who is who? Please stop it. Everything else is great. Thanks

Right, now let's analyze this, shall we?

I am an avid reader. Non-fiction, fiction and preferably mysteries. I am so pleased to have found your Hugo Marston series. 

Lovely! Wonderful! I'm so pleased too!

All the elements I like—location specifics, “bloodless” murders, reasonably short chapters, interesting protagonists. Very enjoyable. 

Great - specific reasons he likes them, very rewarding!

But, here comes the but. 


With the thousands of names available to you, why, in The Book Artist for example, have detectives or characters named Marston and Marchand? Why two women named Camille and Claudia? Just to irritate readers who may get confused as to who is who? 

Now, I will conceded that the names "Marston" and "Marchand" are quite similar in sound and appearance. I would, however, point out that "Marston" is the name of the protagonist, which means if you're confusing him with other characters after reading seven of the novels he stars in, well, the problem might not be the appearance of a character named "Marchand."

Similarly, if you are confusing Hugo's leading love interest (Claudia), with a black transgender detective (Camille), your bar for confusion might be unduly low.

And look at this line again: Just to irritate readers who may get confused as to who is who? 

What? Obviously, no writer would intentionally irritate their readers. Even me, and I've been known to intentionally irritate pretty much anyone and everyone. So this line is asking me... what? It's not really a serious question at all, is it? It's pure snark. Snark, I might wonder, included... just to irritate me!

So what's next? This line: 

Please stop it.

Stop what? I mean, do you want me to go back in time and change characters' names? Or just not do the subjectively annoying thing (to you, not one of my other thousands, nay trillions, of readers has complained about) in the future? Maybe I can email you and run my name choices past you...?

Look, I know I'm the one being snarky now but to presume to tell an author to stop doing something that only you in the entire world don't like is... well, presumptuous at best. One might even venture to use the word "rude."

And so we end with:

Everything else is great. Thanks

First, please know that he did not end with a "." I feel like I deserve a "." at the end of an email, just saying.

So here's what I'm wondering - how much of this would he say to my face at a book event? I would be chill if he did but I can imagine others cringing. I might politely dress him down, very politely, but I suspect he'd not say this to me directly. Maybe I'm wrong.

And here's the takeaway: this email will change nothing about my books, and it makes me want to not meet a human being who actually likes them. What did he achieve by taking the time to write to me? Irritation on my part? Indeed. A sense of disappointment that a nice start to an email was a disguise for his complaints? Definitely. It certainly won't result in a reply because I don't want to encourage this type of approach to an author. Anything else?

Well, this blog post I suppose. 💅


**Edited to add: he's now sent me the exact same email three times in 24 hours.

Saturday, July 15, 2023

Think you could never be arrested? Oh, so wrong.

One thing that has really surprised me as a defense lawyer is the number of "normal" people who get arrested.

Let me back up a moment - yes, there are many people in the criminal justice system who are dropped into it (often by their own actions) and never get out. Their criminal histories are pages long, and any damage to their reputations or job opportunities has long since happened.

In fact, in some ways these cases are (I imagine) easier to handle, because another misdemeanor plea doesn't change the trajectory of that person's life much. 

At Cofer & Connelly, where I work, we see very few of these folks indeed because we are lucky enough to be in a position where we don't need to take cases appointed to us by the courts (a whole other issue: how terrible the pay is for lawyers taking appointed cases).

So what does that mean? It means the vast majority of our clients have never been in trouble before.

I recently took a call from a prospective client who'd been arrested for a misdemeanor crime. He freely admitted to me that, before his arrest, he'd not cared much for the movement to improve jails and prisons. "You do bad," he said, "then you go to a bad place."

And then it happened to him. He spent two nights in the Travis County jail, where he said the guards treated the inmates like animals, where there was feces on the floor and walls, and where he saw literal rats running around. He was horrified, traumatized even, by that experience.

For his case, his main concern was that he never go back there, no matter the outcome, he could not go back. Fortunately, his alleged offense was such that I was able to give him a large degree of comfort that he would remain in the free.

The thing is, it doesn't take much to land a formerly law-abiding citizen behind bars. I had this conversation with my teenage son recently, because I wanted him to understand that actual innocence was no barrier to jail.

"But if I do nothing wrong, how can that be?" he insisted.

I sighed, because he's right. That's how it should be. And as a prosecutor the truth mattered more to me than almost anything. But as a defense lawyer, the truth doesn't enter the equation until long after you've been handcuff, stuffed into a police car, stripped naked at the jail, and sat in a cold, lonely (if you're lucky) cell in jail scrubs, fed undercooked fake chicken and baloney sandwiches.

"If someone tells a cop you hit them, or touched them without consent," I said. "You will go to jail."

"Even if I didn't?"


And that's the truth, as I'm seeing it. The fact is, and people will not like to hear this, but people call the police too often because they can't handle the situation they are in. They can't control it. And the way they reestablish control is to have the person they are in conflict with, they are angry with, arrested.

I realize that as a felony prosecutor I didn't get to witness this phenomenon, because it does mostly happen with allegations of assault, which is a misdemeanor. Or, in one case we got dismissed for a client, an allegation that she stole a dog. What she'd done was rescue a dog abandoned and abused by her ex, and when he saw how happy they were together he filed a theft complaint.

Yes, it's that easy.

So what's my point here? Maybe it's just to bring awareness where I can, to let people know that the criminal justice system is closer than they imagine. And, relatedly, to consider showing more empathy to those caught up in it. 

Because not all of them are guilty. 

Not by a long shot.

Monday, July 3, 2023

Jail v. Prison - writers, producers, and anyone else who uses words, please take note.

Here's a short post to address an issue (pet peeve?!) that I feel like I've discussed before. Somehow, shockingly, the entire world hasn't read and absorbed. 

I constantly see the terms "jail" and "prison" used interchangeably. In books, TV shows, and in general conversation.

But they are different.

You don't want to be in jail, but you definitely don't want to be in prison.

JAIL : this is where you go for short periods of time, either after being arrested or as punishment for a misdemeanor crime. Jails are usually run by the county, operated by the sheriff's department. 

There are exceptions, sure, some people spend years in jail waiting for trial or other case resolution, but generally speaking jail is for short-term incarceration.

PRISON : this is where you go after you've been convicted of a crime. These are state-run facilities and generally less pleasant places than your county jail.

Try to avoid prison, if you can.

Saturday, May 27, 2023

Why I changed hats: prosecutor to defense lawyer

I could never remember which side supposedly had the black hat or the white hat. 

I suspect, whichever side you are on you purport to be white-hatted. I'm good with that, except it means I swapped a white hat for a... white hat?!

Enough about hats.

Just over a year ago, two mates took me out for dinner. Rick Cofer and Geoffrey Puryear, former prosecutors with me. Good people who I knew and who I liked, and who asked me to join their criminal defense firm and have a little fun trying cases and helping people.

Could I say no to all that?!

This is Rick, he puts the Cofer in Cofer & Connelly. Some have said he looks like a giant man-baby, or an inflated infant, or a super-sized toddler, or a... anyway, I'd never say those things, I just report stuff.

And this is Geoffrey - we tried a case together many years ago and stacked the jury with women, on the theory that with his looks and my accent we couldn't lose. We didn't lose.

On a hot day you could fry an egg on that chin, after he shaved it, of course. Magnificent. 

Here I am now:

Anyway, the why of it.

As you may or may not know about me, I have always been somewhat defense-oriented. In those moments when ADAs are high-fiving each other after getting a 70-year prison sentence I used to cringe. I'm sure I've written before about how I hated sending people to prison, almost regardless of what they did, because.... well, it's prison. I got satisfaction for getting a verdict yes, but not so much from a prison sentence.

Anyway, over martinis and a delicious steak these lads made me an attractive offer. At the time I was in the juvenile division at the DA's office, my second stint there and was feeling like I might be there a while. And guess what never happens in juvie? Jury trials. It felt like an endless loop of unchallenging hearings, low-level crime (mostly, although I did have five... yes FIVE murder cases on my plate). 

Bottom line: I needed a change. A challenge. And these boys were offering me one.

I started May 1, 2022, and now I handle cases in Travis County and a fair few in Williamson County, everything from low-level drugs cases to murder. We take a team approach at C&C, especially on the bigger cases, and I think we have five or six clients charged with homicide, and several more with manslaughter. 

One of those cases is quite famous, actually, but I can't talk about it here... 

I plan to write a whole post about how jurisdictions, and prosecutors, are different depending on where they are. It's kind of crazy, to be honest, what's considered an easy dismissal one place is prosecuted to the max somewhere else. Anyway, more on that later.

For now, I'll tell you that I'm working harder than ever before, getting to know some very interesting people, and loving the folks I work with.

I've even become an occasional guest legal analyst on CourtTV!

And hey, if you need a lawyer from the best criminal defense firm in Austin (facts, see below), let me know. We got you.

Thursday, May 25, 2023

Making a comeback!

I've been thinking about resurrecting the blog for a while now, I used to enjoy sharing my thoughts and experiences as a prosecutor and getting feedback from folks. So I'm back.

For those who don't know me outside of the blog, well, I'm now a criminal defense attorney - a partner with the fabulous law firm of Cofer & Connelly. I'll write a post about why I made the change in a week or two, but I wanted this first one to be a brief catch-up.

So, what else is new with me? After all it's been almost seven years since I last posted here!

  • Big job change, obvs.
  • I'm seven years older, which means a new author photo was needed. Obvs.

    • The second in the series is out in August but pre-orderable now:
  • I have a son who's now stronger and faster than me. We've gone from this:

  • To this:

  • I have a writing companion:


OK, those are the highlights. I don't think anything else important happened in the world between 2016 and now, or did I miss something?!

Didn't think so.

Stay tuned for upcoming posts, to include:
  • Why I Made the Change
    • speaks for itself
  • Who My Most Famous Client Is, And Why I Can't Tell You
    • Google it, maybe?
  • When It's Just A Slap
    • about how differing jurisdictions... differ
  • When Good People Do Bad Things
    • speaks for itself
... and many many more to come!