Wednesday, December 8, 2010

Texas Governor's Pardon Stats - It Is Overwhelmingly Unlikely To Receive A Pardon From Perry

I occasionally have people contact me about pardons. In the simplest explanation, a pardon is an application by a person with a criminal conviction (or deferred adjudication probation) to request that the governor pardon him / her for the crime, and it restores all the rights which one has lost and allows one's record to be essentially cleared. The application is provided to the Parole Board which makes a recommendation to the governor. As you can see by the numbers below, far more than 1/2 the time, the board recommends not to grant the pardon. But even more interesting is the number of times that, despite the board's positive recommendations, that Perry denied the applications.

Most of the folks who have contacted me about pardons have been people who were very young when they got into trouble (remember that criminal laws treat 17 year olds as adults), were often experimenting with drugs, committed a non-violent crime (often drug possession), and have lived life as a law-abiding citizen since their law trouble. Over the years, several people have contacted me whose convictions were 25 to 30 years old. I have told them all the sad truth about pardons with the current governor - no matter what the factual circumstances, it is not likely one will receive a pardon. (You can bet that there are many people who apply who circumstances are similar to those I have spoken with.) I feel that taking a fee, and it would be a large fee because of the amount of time involved, would almost be like stealing from the client. Check out the numbers below (and I apologize about the formatting. I could not get the layout correct.)

Year # considered # recommended # granted

2001 76 30 2

2002 410 66 3

2003 285 90 73

2004 259 42 9

2005 221 44 0

2006 183 48 11

2007 148 24 12

2008 176 27 6

2009 158 52 8

Wednesday, October 13, 2010

Why I Do What I Do

Though I made the decision not to intervene in the situation I reported, and I told mother of my decision, she wrote me this wonderful e-mail. I hope that I deserve her kind words, and that I do make a difference for people - even when I do not personally represent them. I believe in what my colleagues and I do in defending people. It is not just the way I make a living, but it is the way I try to live my life. Helping. Here is a portion of her e-mail:

"Thank you for your kindness in answering me. Though not the answer I prayed for, I appreciate your attention and perspective . . . I was hoping so much from your initial response (I realize now the misunderstanding) that there was a break in the exhaustion and frustration in trying to defend [son] . . .

So I will soldier on in my fight for his representation, but a bit wiser from your words and my belief in humanity lifted being reminded that there are still people who care about right or wrong even when it doesn't pertain exclusively to them. I so respect the warrior in you and your keeping your eye and having the courage to call BS when you have come to the conclusion something must be done. I wish a lawyer not doing anything at all equalled a lawyer doing something wrong.

. . . Should I be successful [in getting another lawyer appointed], I would ask for you to be appointed. . . . Should I win the lottery or break down and take a loan against my home, I will contact you.

Whatever this challenge brings, I want you to know that people like you are rare and that you do make a positive difference. Thank you for championing me when you thought it right and for having honor. . . ." [signed mother]

This note made my year.

Tuesday, October 12, 2010

I Don't Get Involved

So an update. After several e-mails back and forth between me and concerned mother, I was finally able to get a quote from the recording. It was, in essence, that if mother had the ability to pay for a in-patient drug rehab facility, the lawyer thought that the judge might consider it. The implication was that in the lawyer's opinion, the court would not waste county resources on the kid to give him another shot, and that the court would not consider the free program being proposed by mother.

THIS is a completely different situation than the one I think was first presented to me. I'm glad that I hesitated and got the quote. While one might disagree with the manner in which the lawyer is proceeding (many details left out), one cannot find that lawyer is being unethical with mother or kid. Lawyer is just trying to figure out how to get around the judge's general rules to help kid.

It truly is a matter of misunderstanding, and the situation will continue to be misunderstood, I'm afraid. Mother, while a loving and caring person, is likely an enabler because she has every excuse in the world for kid and his problems. (He committed at least one burglary of a habitation while out for the day from his rehab program. One of those situations that make it hard to justify giving him another chance at rehab.)

So, I guess I got involved enough to determine that this is not an unusual situation, and that the lawyer has probably not done anything wrong. My "super hero" cape shall go back into the closet and I will, once again, mind my own business.

Sunday, October 10, 2010

Do I Get Involved?

Today I received an e-mail from a concerned mother. Her son has some kind of felony charge - the type not relevant - and has been appointed an lawyer. Her concern is real and legitimate. She has a recording from this lawyer saying that IF the mother pays the lawyer some money, then the lawyer will approach the judge about putting the defendant son in the Cenikor program. If mother does not pay, then the lawyer will not approach the judge about the program.

My response? What the hell?! Not only is this just morally wrong, but it is unethical (and if she were to be paid and still filed a voucher, it would be illegal.)

Mother contacted me after reading some of my old posts (sorry chums and fans for being away so long) because she didn't know what to do to help her son. You know what? Neither do I really.

Of course, I advised mother that she and son should file a grievance against lawyer when it is all said and done. The lawyer is stupid enough that she left a voice mail of her proposal. Mother needs to be involved in the grievance process because she is a witness and the target of the solicitation of money.

But what can be done for the defendant now? Of course, it is not really my problem. I have no connection to the case except the e-mail I just received, and I have no obligation to help them. Or do I now that I am aware of the unethical behavior? And even if I do have an obligation, my obligation is to report it to the State Bar - not to the district judge. But again, how does that help defendant because his case will be long settled before the State Bar grievance board even looks at the case?

I asked some questions of mother and will await the answers while I contemplate how to proceed. I am considering obtaining a copy of the recording and going to the judge of the district court where the case is pending and report it myself. (Too many times judges have little patience with defendants who complain about their appointed attorneys for many reasons - including that the complaints are often ridiculous and lie.)

I really do not have time to get involved, but if I don't, what does that say about me and my concern about people in general getting a fair shake? And, I am concerned about that.

What to do, what to do . . .

Thursday, December 10, 2009

Don't EVEN Try to Defend Yourself if You are Accused of a Crime

Twice in two days I was appointed to represent accused folks on misdemeanor cases in which they insisted they wanted to represent themselves. In both situations, the cases had been reset numerous times; both accuseds previously had lawyers but for different reasons, they no longer had their lawyer.

While a person has the constitutional right to represent oneself, I and at least most of my colleagues, STRONGLY recommend against self representation. For one thing, if you do not have a law degree, you do not know what you are doing. Period. (Many with law degrees do not know what they are doing - but that is another topic.)

Second, the prosecutors look at the accused, in general, with contempt (even the nicer prosecutors.) They assume that the police have righteously arrested someone and that when the charges were accepted by another assistant district attorney, the filing was done with at least some consideration of the law and the facts. Therefore, as is common, they eye the accused with suspicion.

Third, when you are the one wrongfully accused, you tend to also be emotional - sometimes over the top and directing the emotions at the wrong people. You are involved. It is hard to step back from the situation and explain in a rational, unemotional manner, what you see as the problem. This is just human nature. Yet no one, especially in the prosecutors' situation as explained in the second reason above, cares to be talked to aggressively by an accused.

I could go on with reasons but they are not the point. Just don't represent yourself - especially when the judge is about to appoint a lawyer to you. At least see what that lawyer can do for you.

Both of these women were indigent, and rightfully deserved to have an attorney appointed. The judge appointed me (as I was already working in that court for the day.) Both of these women got aggressive towards me as I began to explain that the court had found them indigent, and had appointed me to represent them. (One of them would not be quiet until I abruptly told her to sign the appointment sheet and if she was not satisfied with what I got done for her, then she could hire another lawyer. I had already read the file and I had a good idea what was going to happen.)

The second woman was deaf and did not speak. I'm not being ugly in this representation of her actions but it was clear by the way she was signing and the faces she was making that she was very angry. She signed the appoint form, albeit unhappily - at least in the beginning.

In both of these cases, I read the file and felt that there was cause for concern regarding the prosecution. I approached the prosecutor, discussed the situation. In one, a call was made to the complainant. In both, a lower ranked prosecutor consulted with the chief and in both - the cases were dismissed.

Of course, upon presentation of the dismissals, it is all smiles & nods & thank yous. With the second woman who suffered from a disability, I accept that she lives in a world that is already difficult, particularly when it comes to understanding her and her understanding others. She was much nicer. I shook her hand and wished her well.

The first woman, whose mouth got her into the situation at least to a certain degree in the first place, had made all kinds of comments as I tried to get her to sign the appointment sheet about all the lawyers she had talked to, who she was going to sue, blah, blah, blah. When I handed her the dismissal, she thanked me and reached out as if to hug me. Uh, I don't think so. You know, I was happy to get the righteous ending of that case. But, I was not happy for her. In fact, at that minute, I did not care about her. I cared about justice. I cared that the prosecutors were fair and not blinded by her outbursts, and I cared that the judge in that court is always concerned about doing the right thing in my experience. But for that person who was rude, obnoxious, and essentially talked her way into an arrest - I was just glad to get that case off MY docket.

The point is while she may have gotten to the same conclusion some time in the future - maybe - she did much better to have an attorney represent her than she would have done to defend herself. I got done in less than 20 minutes (most of it convincing her to sign the dang appointment form), what probably would have taken many settings to do - if she ever could.

You have a constitutional right to represent yourself but as the saying goes, "only a fool has him or herself as their lawyer." Lawyer up.

Wednesday, December 9, 2009

Dealing with PoDunk Clerks

Continuing yesterday's blogspot, I now move to my dealings with "Cyndi" the clerk with extraordinary powers of persuasion (& an even more surly disposition than stretchpants, the assistant district attorney.)

I approach the clerk's window - you know the glass with the little hole protecting the side from riffraff on the other side - namely us. I first question the situation from D's case - asking if the case is "final", explaining that I have some problems with the charge & the way D handled it. (Of course, I carefully assign blame to D, rather than accept D & bf's description of the attitude of the clerk.)

"Cyndi" tells me that that case is final, and that D needs to have her money to pay for the $22 for the inspection sticker (and proof the car was inspected), as well as the payment on the open container. I say something to the effect that we will deal with that in a minute, let's go ahead with the case at hand.

I hand her the documents stretchpants gave me. She glares at me. I'm figuring she is angry because she had told bf the day before that if he didn't plead guilty immediately, there would be no deferred on the alcohol case (and here I was holding the deferred offer) and that he would be required to pay $500 in full immediately (and here I was with a $240 offer & 45 days to pay.) She looks through the papers, huffs, then says that I did not file a notice of representation. I said that if she had a form (like they do in real courts where people are facing jail or prison), then I would sign it. Otherwise, I would write a notice on a piece of paper & attach a business card. I write up the document and hand it to her. She instructs me to sit down; I do. (D & bf inform me that as I walk away, "Cyndi" is smirking, laughing, & shaking her head.)

A few minutes later, another woman comes out from the clerk's area into the hallway and starts berating bf about coming without a letter of representation. I'm sitting right beside him & she knows it. I tell her that he told me about the letter but I did not have time to prepare one given the short time period between 2 yesterday when he was in court and 1 today, given that I had to appear in Harris county criminal courts that morning. She starts in on a bunch of bunk on why it is required. I tell her I wrote one which I gave to the other clerk. She then tells me that it has to be faxed, but she "went back and talked to the judge" and he okayed it this time, but I better do it properly in the future. (FUTURE?! She MUST be kidding! There is NO future for me at that hell hole!)

But then the telling sign - she speaks with very old man about his situation and, in the course of the conversation, says that the judge is not there!!!! but she will talk with the judge about the man's situation tomorrow and call the man. (EXCUUUUUUSSSSEEEE ME! Okay, I wanted so badly to jump up & ask to speak to the judge but I held my tongue. I still had hopes of working out D's situation. . . . Damn liar.)

Anyway, I get called by up by "Cyndi", and she gives us the documents for the classes bf has to take. I then inquire about D's situation. She tells me it is "too late", and that D has to pay the money. D is standing beside me. I instruct her to pay the $22 for the inspection sticker violation (while I explain to "Cyndi" that the wrong person was ticketed for the offense.) I then inform "Cyndi" that I will be filing a motion for a trial de novo (a new trial - because this is not a court of record one can appeal to the county court and get a real trial - start completely over. I figure that someone with a brain might work there.) Anyway, I ask her about if D pays the $125 toward her open container fine, how does it work to get it back. She questions what I mean. I explain that I am POSITIVE that when I file for a new trial that D will NOT be paying a $500 fine, if she is even found guilty. "Cyndi" confers with the other clerk whose name tag cannot be seen; she says just forget about collecting on that fine for now. Since we are filing an appeal, they don't want to deal with refunds. (Ha ha. Guess they've been down that road before.)

Last bit - I didn't think to get the fax number to send the appeal (which must be done within 10 days of the no contest plea) so I send D back in. I also tell her to get the name of the other clerk. She gets the number & the other clerk's first name - which I have forgotten, but the clerk refuses to give her last name (as does "Cyndi".)

It is clear that this is nothing but a railroad situation. These clerks have been instructed or trained by someone to push, push, push to get guilty pleas, and to LIE about what the consequences of demanding the right to a jury trial will be. In addition, they are rude, and dead wrong about the law. I'm considering filing a complaint but I'm not sure where I would do that. Suggestions? There really is just no excuse for their treating people that way.

One last bit - a very nice lawyer who practices in Brazoria & Galveston counties - volunteered to handled D's appeal. He posted an attorney bond (which meant no $ for the bond) & will handle the appeal, which he feels will either be dismissed or, at most, court costs and an alcohol related class will be assessed (both of which I think would be fair.)

So, what is the purpose of this "story." Multifold: 1) to entertain readers - I enjoy casual writing; 2) to call out lying, rude simpletons, 3) to let you know that if you get treated like crap by some clerical type - you aren't the only one, and 4) to tell you that if you get a ticket in LaMarque, you definitely will be better served (and save $ I feel certain), to "lawyer up."

Tuesday, December 8, 2009

I Get to Deal with a Little Hometown (non) Courtesy in LaMarque (Galveston County), Texas

Leaning on the unaware. That could easily be the title of this spot. Lawyer up or pony up. Another fitting title.

My daughter (D)- age 21, her boyfriend (bf) - age 19, and his brother (bro)-age 18 were on their way back from Galveston one beautiful day when the weather was still warm. Bf was driving; D was in the front passenger seat; bro was in the back seat.

In their ignorance of the law (no excuse), they had a partially consumed bottle of rum in an otherwise empty ice chest sitting on the back seat. They did not bother to put it in the trunk (which would have met the requirements of the law) because they thought that the lid was on the bottle as well as the ice chest, no one was consuming any alcohol, therefore there was no issue of open container. (That does seem kind of logical - but it is not the law.)

Bf gets stopped for speeding. The long and the short of the interaction between the state trooper and these young people was bf received a ticket for speeding and for being a "minor in consumption" (meaning the officer believed he had consumed alcohol illegally. Note - a parent can allow to be served or serve their under age child. I won't get off on a tangent of potential other charges such as injury to a child, etc. Also, if a person is married to a person of legal age, that person can drink.) Suffice it to say, the trooper had (1) no evidence of when alcohol was consumed or how it was obtained, and (2) if he had REAL concerns, he could have arrested bf for driving under the influence of alcohol (DUI). [Persons under 21 cannot consume ANY alcohol and drive - a much stricter standard than DWI - and when the time cutoff ends is outside the topic here.] Now, if the officer had concern about bf driving under the influence, rest assured he would have arrested bf.

D, who is NOT driving, gets a ticket for expired inspection sticker (which should have gone to bf - the driver - as drivers are responsible for the vehicle they operate even if it is not theirs), AND open container. (Yes - that container in the back seat.)

Bro - gets nothing. He is sitting right next to the ice chest containing the previously opened bottle of alcohol and he gets nothing (but the chance to drive the car. Trooper could not give bf a ticket for consuming alcohol AND let him continue to drive, could he?!)

So, bf tells me the story (but they leave out the bit about the tickets that D got.) I explain the law to them, & express how lucky they were not to get ticketed for open container & how bf was lucky not to be arrested for DUI. I research applicable law about the container (because they both argued with me about what open container means - gotta love 'em.)

"Court" date comes. The two go to the courthouse telling me that they are going to get a reset for bf because I was busy that day and could not help. (Remember, I do not know about D's tickets.)

Instead of a reset, they come back all upset. There was no "court" and they had to deal with a clerk named "Cyndi". I am told about D's tickets & how D was railroaded into pleading nolo that day so that she could have a payment plan to pay off the $500 fine on the open container. CAN YOU BELIEVE THAT?! She was told that if she did not plead guilty or no contest and she requested a real court, that she would have to come back the very next day for court and she had to bring the entire $500 (and they would not dismiss the inspection ticket even if the car had been inspected.) So, she signed up & pled no contest. (I cannot tell you how much this bothers me. Where has she been during my past 22 years of practice?!!!)

On the other hand, bf was told that he had to immediately pay $500 for his tickets, as well as be put on a payment plan for the balance. He assured "Cyndi" that he did not have that kind of money and requested to talk with the judge. After "Cyndi's" repeated attempts to badger this kid into signing a guilty plea and waiving his right to a jury, she told him he had to be back the NEXT DAY at a 1:30 court appearance with a lawyer (and that the lawyer had to bring a letter of representation.)

I hear the story (and after berating D for being less than forthcoming as well as playing in a field that I am somewhat knowledgeable - I know about rights though I know little about traffic court), and I agree to accompany them to the courthouse the next day.

We arrive to this little shack looking building near LaMarque High School. Although it has the name of a different judge on the sign, the paperwork shows that "Sonny James" is the presiding justice of the peace there. We go in.

The courtroom is VERY small, and we sit among about 10 others. I go to the restroom in which I encounter a woman & her small child discussing why the approximately 5 year old child does not have to wash her hands. (The soap dispenser was too high.) I return to the courtroom to see the woman & child seated at a table in front of the bench where the judge would sit. The woman starts calling out names. From this activity, based on my past experience, I believe that she is a clerk. (She is dressed in some stretch-type pants, has on a shirt that does not match - no suit or even an approximation of professional clothing.) I answer for bf; she looks at me then sets aside the envelope holding the ticket copy.

After calling the rest of the names, she calls bf's name again. I approach & stand next to her (even though there is a seat across from her. I assumed that was used for discussions between the prosecutor & the lawyers or the accuseds.) She instructs me to sit down. (She was a bit abrupt but I assumed I was not complying with the usual course of conduct due to ignorance so my bad.) She does not introduce herself; I do. She tells me that bf is guilty of the two charges then asks what I want to do. Hhmm. I ask if she is the prosecutor; she says yes. (Thank goodness I didn't have if she was the clerk. Can you imagine?! Given what followed, I can only guess I would have gotten out of there with my life.)

I proceed to tell her "the story", including what had occurred the prior day with D's case (but, of course, assuming she is an insider there I tempered it with "misunderstanding", etc.) She then gets loud & tells me what (she thinks) is the law of possession. She is going on & on so I interrupt, tell her I understand, but that . . . and I talk about relevant issues regarding possession that I won't bore you with. I mention D again. She says something to the effect that I need to just get over that and deal with the case I'm there in court on. As I try to explain the relevance, she interrupts and gets even louder asking me, "can we talk about the case on the docket today? Do you want to talk about this case?", etc.

Your mama told you that when asking for something – a favor, cooperation or whatever - that employing honey as opposed to vinegar is generally the better way to go. But at some point in her effort to try to humiliate me in front of D, bf, and the rest of the courtroom, I had had enough. I proceed to tell her that I will not tolerate her tone of voice, her surly attitude, and that I had been practicing 22 years and sincerely doubted that there was any aspect of criminal law of which she would have more knowledge than me. I admit that my tone made it very clear, if my words did not, that I was done with her berating me.

She held my eyes a few seconds & I felt mine narrow. I started to push back my chair when she suggested that she could dismiss the alcohol related charge upon bf's completion of an alcohol related course within 45 days, and that she would give a deferred probation for 45 days with a $240 fine / court cost that required completion of the driver safety school. I sat back down. This is generally what I what I wanted from the start - just sans the attitude.

So, the deal is set but we have yet to finalize the agreements because now we must return to the clerk of the day before's bull@#$* - the topic of my next post.