A fine piece of lawyering

I'm starting a new and occasional segment that acknowledges a particular piece of fine work by someone in the criminal justice arena.

Now, be clear that we all expect high standards from our ADAs, judges, and criminal defense lawyers and by highlighting individual moments of excellence I am not suggesting, implying, or indicating that the person featured or his colleagues customarily engage in sub-standard work or blah blah blah... insert disclaimer here.... blah blah blah

Disclaimer over.

Okay, I'm starting with me, because I am awesome.

Right then, moving on to the next instance of excellence, we have The Case of the Screwed-Up Scram.

It began with an individual being arrested for felony DWI. He bonded out of jail but one of the conditions of his release was that he wear a Scram device. As explained by Austin law firm Sumpter and Gonzalez:

"A SCRAM device is a tool used by courts, probation departments, and sometimes defense attorneys to monitor a client’s blood alcohol content level. It is worn around one’s ankle and takes samples of perspiration every 30 minutes to monitor and report blood alcohol levels. Data from the device is transmitted to the SCRAM company at least once a day. If alcohol consumption is indicated, the data is forwarded to SCRAM technicians who verify the drinking event before alerting court officials."

(Here is the full page on the device, and here is the firm's homepage in case you find yourself wanting one or wearing one. :))

Where was I? Ah yes, the gentleman wearing a Scram. I'll call him Mr. Smith. So his bond was revoked and he was put back in jail when his Scram showed he'd been drinking just before Christmas. He told his lawyer (a young man I checked with today, and who was too modest to allow me to use his name, so I'll call him Mr. Jones*) that he'd not been drinking. Insisted, in fact, that he'd not been drinking. So, doing his duty, Mr. Jones went before the judge and tried to explain that there'd been a mistake. So the judge, wanting to be fair, had the people responsible for the Scram come into court.

They showed him their proof, a print out of a black-and-white graph.

On that graph were two lines, one showing whether the Scram had been tampered with, one showing whether Mr. Smith had been drinking. Both lines spiked. Thank you Scram people, Mr. Smith stays in jail.

But Mr. Jones wasn't satisfied. Presumably because his client was less than satisfied and, oddly in the face of technical and scientific evidence, still claimed to have been at work and not drinking.

So Mr. Jones went back to the Scram office and obtained another copy of the graph. But he made to sure to get a print out in color, not just a photocopy. Lo and behold, the color graph contained three lines (as opposed to two), each a different color:

• one showing whether Mr. Smith used alcohol
• one showing whether Mr. Smith tampered with the Scram
• one showing Mr. Smith's body temperature

The spikes were in the bottom two lines, the ones showing body temp and tampering. The line showing his alcohol use was a flat-line at the bottom of the graph, and had been mistaken by everyone as the baseline, the line you'd draw at the bottom of every graph.

Ooops. Mr. Smith had not, it was now clear, used alcohol.

But that still left the tampering spike. Well, the ever-diligent Mr. Jones obtained the second page of the Scram report, which showed examples of spikes when the Scram had aluminum shoved under it, a wet cloth stuck under it, and when a sock got stuck under it.

Guess which it was? Right, the sock.

Finally, Mr. Jones obtained proof from Mr. Smith's employer that he'd been at work when he said he had. Even better, the hours he'd been at work were almost exactly the hours his sock had messed with the Scram.

Result: the judge commended the defense lawyer on his excellent work and politely requested the presence of the Scram people. I was not privy to all of what he said to them but I do know that they accepted responsibility for the mistake and it, hopefully, won't happen again.

So, Mr. Jones (if that is your real name) as I told you in court, and as the judge said:

Good work, sir.


* 1/12: I just got permission to identify today's hero: Matt Dorsen, who works for lawyer Steve Lee.

Some Monday fun

I'll be in trial this week... or some of it, which is always serious business. So I'll start my week, and yours, with a flit about the globe for some entertaining and amusing news and info.

First, the mandatory dumb criminal story. With a twist. See, the story right now pegs him as brighter than most because he's taunting the British bobbies and getting away with it. However, my bet is that in a week or two there'll be an update to the story in which he's sporting some new jewelry around his wrists. But maybe I"m just an optimist who hates show-offs...

Now then, if you are on the run it seems like you'd need to James Bondify yourself a little. You know, learn some new tricks to stay one step ahead (I'm betting one would be: stay off Facebook). So here are six "badass skills" you can learn in just a few days.

I saw the headline for this story and almost had a fit: the defendant in one of my DWI cases was a hearse driver. Not this one, though, thank heavens.

Crime lord. Fake penis. $43 bail.

And now a truly dumb criminal. Which is surprising considering that he's a "doctoral student in a joint molecular biosciences program at Rutgers University." Maybe he's just a selfish bugger.

Penthouse Magazine. A basic right. Yeah, right.

And I end with a warm and fuzzy thought: if you thought political correctness had gone too far here in the U.S., try sending emails in England. Or, as the case may be, not sending them. I quote the first paragraph of the story:

"A wealthy businessman was arrested at home in front of his wife and young son over an email which council officials deemed ‘offensive’ to gipsies – but which he had not even written."

And from me to the British authorities (read the story before reading on): likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey likey

You do what, again?

Everyone knows we go to trial. No surprise there. But I tried five cases last year, none lasting more than a week. And they paid me for more than five weeks' of work, so I must have been doing something, right?

Right. It's called docket.

Trouble is, when I use that word, eyes glaze over. Docket. It sounds like a boring word, a lawyerly, uninteresting, dry piece of paper with... something on it about... someone. What the hell IS a docket, anyway?

Glad you asked. Because I'm in there, Monday-Friday on non jury weeks, and Monday AND Friday on jury trial weeks.

Overview: docket is when ADAs and defense lawyer meet in court to discuss cases set that day. Some are pled out there and then, some are set for trial (by judge or jury), and some are set for hearings (for example, a motion to suppress evidence).

Take these stats that I compiled (just for you, mind) from a morning docket from earlier this week (bear in mind there are five ADAs assigned just to our court), That morning, the docket consisted of:

55 defendants with 66 cases (probably obvious, but some defendants have more than one case pending against them)

Of these, I am responsible for: 19 defendants with 23 cases

Here's a breakdown of my cases that day, what they were, and what happened to each:

DWI (3rd offense)
1. defense atty didn't show up, reset
2. reset so defense counsel could view police video tape
3. reset for defense counsel to gather evidence
4. reset-- recently indicted case, both sides doing discovery
5. agreement reached, defendant pled guilty

Forgery
1. negotiated with defense counsel, reset
2. as above

Agg Assault with deadly weapon
1. reset so I could contact victim
2. as above
3. as above

Attempted burglary of habitation
1. reset so I could contact victim

Assault causing injury to family member
1. defense lawyer showed up late, case reset

Possession of marijuana
1. plea deal reached, reset for sentencing

Possession of controlled substance
1. case only recently indicted, reset for both sides to conduct discovery
2. agreement reached, defendant pled guilty
3. agreement reached, case reset for probation to prepare report
4. case reset for more discovery
5. case reset for more discovery
6. as above
7. as above

Attempted arson
1. reset for both sides to do discovery/gather evidence

I think I got my math right, and that's all the cases.
Let me know if this is interesting or not, if so I might do it once a month or so. If not, I won't. :)

The Spy Who Got Away

This week I'm recommending an older book, and one I'd not heard of until suggested to me by a colleague in the defense bar. It's non-fiction and it's called THE SPY WHO GOT AWAY by David Wise.

Wise is a writer and journalist who spent a lot of time researching and interviewing for this book, and it shows. The most amazing thing is that the spy who is the subject (who defected to the USSR) cooperated and gave interviews.

Sometimes a tad dry, because a lot of the CIA stuff has to be explained, naturally, it really is an interesting look back into the Cold War tussle between the US and the USSR.

Basically, the story is about Edward Lee who was about to be sent to Moscow as a case officer when he failed a routine polygraph... and it all went downhill from there.

Too harsh? More on enhancements...

After yesterday's post, reader RG asked a couple of very good questions in the comments. They are highlighted and bolded below, and I'll respond as best I can to each in turn:

DAC, how much discretion is there on the part of the judge / jury to impose these types of "enhancements" at sentencing? Or is it completely automatic? It seems almost too harsh to put someone behind bars for 25 years to life for their fifth DWI.

The enhancements themselves come into play when they are alleged in the indictment, and proven at trial. If both of those things happen, the judge or jury has no discretion, no legal ability, to go below the minimums.

Now, what happens in many cases is that we allege the enhancements and make sure we can prove them. Then, during plea negotiation, we have our strongest hand available to help us achieve what we think is, ultimately, the fairest and most appropriate sentence. As an ADA, then, if I have a defendant looking at 25-life for his fifth DWI, I can waive an enhancement and bring the charge back to a second degree, and offer him a plea deal of anywhere between 2-20 years.

Sometimes the hammer of a large sentence is actually useful for getting a defendant with a substance abuse problem into a good, long, in-patient treatment plan. If I can stand there and say, "Hey, you can either do the treatment or go to the pen for X years," then sometimes a good end can be achieved.

As for whether it's too harsh, that depends entirely on one's own personal perspective. What I can tell you is that some of the saddest and most heart-breaking cases I see are those where some innocent person is killed by a drunk driver. If someone has an alcohol problem they simply refuse to address or acknowledge, some people think that at a certain point we have to stop worrying about fixing the culprit and worry more about protecting the community. But it's a tough balance and one that is constantly debated.

Here is one case I had last year, and feel free to comment: it was pretty much as the hypo above, fifth or six DWI plus the defendant had been to the pen for a drug offense. The minimum was 25 years, I offered about a third of that for a guilty plea on the DWI. Three defense lawyers, one after the other, begged him to take the deal. He refused. He even testified that he'd been drinking, taken prescription pain killers, and when stopped was on his way to buy more beer.

As I told the jury, my concern was that he was driving drunk and simply didn't think he was doing anything wrong, which meant he'd do it again... and again. And the kicker, which we weren't able to tell the jury at the time, was that he was on parole for a 25 year sentence for... DWI! (I'm not revealing secrets, by the way, all this is public record.) He ended up being found guilty and punishment was assessed at 25 years, the minimum.


Also, I really have to wonder what the defense attorney told those defendants after their fourth DWI conviction - were they aware of the probable outcome of their continued "diligence?"

I hope some of my friends in the defense bar will answer this one. I can assure you that all the defense lawyers I know will fully explain the consequences of a client's actions to him or her. As in the previous case, all three guys who represented the defendant warned him what he was facing. And clearly he knew himself the penalty for his next DWI, as he'd already been given 25 years for that offense! But I think there is only so much a defense lawyer can do because, in the end, it's their client's decision whether or not to take the deal or go to trial.

From where I stand, I do see frustration on the part of the lawyers sometimes. I think several things can happen. First, you have the proverbial "jailhouse lawyer," another inmate who tells their client what deal he is entitled to, because he knows a guy a couple weeks back who did the same crime and got X deal. Well, no two crimes are alike, and no two defendants are alike. And, of course, no two ADAs are exactly alike. Second, I think sometimes there is a mistrust when a lawyer is appointed by the State, a mistrust that can rise to the level of paranoia in some instances. And third, there can simply be a refusal to accept reality, call it denial or whatever you want. Maybe the defendant doesn't think what he did was that bad, or maybe he thinks his lawyer will really get him off, I don't know.

I do know that this is partly why I respect those guys, the criminal defense lawyers, so much and why I'm glad I have my job and not theirs!

Beware the enhancement (Or: A Life Sentence for a Misdemeanor)

Let's start with a riddle:

How can you commit a class B misdemeanor offense, but get a life sentence for it?

Okay, so now we've finished with the crimes and punishments that make up the various felonies (recap: state jail, third, second, and first) the whole system is thrown out of whack by what are known as "enhancements." These reflect a defendant's criminal history and can bump him up a level or two if his history is bad enough.

Or more. (See where we're going with this?!)

Below are some of the most common examples.

Enhanced to State Jail Felony:

Burglary of a vehicle - normally a Class A misdemeanor, but if you have three prior convictions for that offense, your new one is a state jail felony.

Theft - likewise, if normally a misdemeanor your third will be a state jail felony.

Prostitution - normally a misdemeanor, but if you have three prior convictions for this offense, your new one is a state jail felony.

Enhanced to Third Degree Felony:
If you have two trips to the state jail, any new state jail offense will become a third degree felony.

Enhanced to Second Degree Felony:
If you have two prior felony convictions, for which you went to the penitentiary (known as a "pen trip"), a state jail felony becomes a second degree felony.
Likewise, a third degree felony with a prior "pen trip" becomes a second degree.

Enhanced to First Degree Felony:
A second degree offense, when you have a prior pen trip, becomes a first degree offense.

Furthermore:
A first degree felony, with a usual punishment range of 5-99 years (or life) has the minimum raised from 5 to 15 years if you are charged with a first degree felony and have one prior pen trip.

And the kicker: Habitual
If you are charged with any first, second, or third degree felony, and have two prior pen trips, the punishment range becomes 25-99 years (or life).

So, returning to our riddle:
How can you commit a class B misdemeanor offense, but get a life sentence for it?

Here's how:
You commit your first DWI offense, a class B misdemeanor.
You commit a second, and this time it's a class A misdemeanor.
Your third is a felony, for which you go the penitentiary.
Your fourth, is enhanced up to a second degree, and again, you face a trip to the pen.
Your fifth DWI, then, lands you in felony court facing a minimum of 25 years in the penitentiary, and a maximum sentence of life.

So, as you can see, it takes some diligence on the part of the defendant, but it's perfectly possible to turn a class B misdemeanor into a life sentence.

Think it doesn't happen? Last year, I had two cases that came about pretty much as outlined: DWI defendants that just wouldn't quit.

Happy 2010!! Now for some predictions....

Happy New Year!!

I thought I would kick off the new decade with some predictions, and feel free to hold me to them.

1. I will not lose a jury trial in 2010.
2. Kinky Friedman will not become Governor, Lt. Gov., or the D.A. for Williamson County.
3. I will refuse to participate in a single jury trial in order to satisfy prediction #1.
4. I will move into an office with a window. Seriously, that's a big deal because only 50 percent of offices have them.
5. Some smartass will point out that prediction #4 was satisfied a week before I made this list.
6. I will give up beer, wine, and martinis.
7. I will fail to delete this blog entry in time after the body of some smartass is dragged from Lake Travis.
8. I will be questioned by detectives who catch me attempting to flush my laptop down the toilet. They will stand there and mock me.
9. I will take up beer, wine, and martinis, and possibly invent the beweenie (which, unsurprisingly, will be a blend of ale, merlot, and gin).
10. I will be distracted by one of my kids setting fire to the dog and not fini