Jim Leitner, currently one of the head honchos of the Harris County District Attorney's office, attended the DIVO presentation yesterday just long enough to be on a panel. He did not listen to the presentation, and to my knowledge, has not attended a presentation to learn about the program. But, he had been told about it at least somewhat and was there to represent the view of the DA's office.
As he related, the DA's office is completely against the idea. I cannot quote verbatim what he said about the program but generally it was that the defense would abuse the situation in some way.
First the rules - a defense lawyer must make at least an effort to talk to all witnesses in a case. The definition of witness can vary, and does not necessarily mean "eye witness", especially in a capital case.
Witnesses are just that - people who know something about the offense, the complainant (victim), the defendant, etc. They belong to no one, and in fact, if my memory serves correctly, it is unethical for one side (defense or prosecution) to advise a witness not to talk to the other side. (They can tell them that they do not have to talk to the other side but they cannot tell them they cannot.) Indeed, what fairness is it if you can't determine what the witnesses are going to say so that you can (1) make a decision how to proceed - you might advise the client to plead guilty, (2) prepare for trial, etc.
So, when Jim Leitner was talking about the position of the DA's office, the most interesting thing he said was to refer to the survivors of the victims of capital murder as "my witnesses." MY witnesses. (Of course, I had to correct him & remind him that they are "the" witnesses & do not belong to either side.)
What makes this assertion of particular interest is that Jim used to be a defense lawyer, and he was widely known for his work on capital cases.
If the leadership in the DA's office opening takes such a position of "ownership" of witnesses knowingly in my presence as well as distinguished defense lawyer Kathryn Kase (there were probably about 20 people in the room including the presenters), what can we expect they are teaching their underlings? What can the defense expect is being related to those against whom we try cases? Was it just a mistake? Or, as I believe is more likely given my experiences in trial of late, was the mistake only that he said publicly what he believes and how the trial prosecutors are being taught?
[Read my last post about what DIVO is for additional information.]
Thursday, October 8, 2009
Defense Initiated Victim Outreach - DIVO - capital murder defense to reach out to victims?
I attended an interesting continuing legal education seminar (CLE) yesterday. From 8:30 to 5:00 less lunch & 2 breaks, we learned from those involved in the defense, some involved in prosecutors' offices, families who had a member murdered, and psychology related experts,about a new program that being promoted. It is called DIVO - defense initiated victim outreach. (I point out the length of time to emphasis that after a full day, I still have tons of hmmms so you won't get all the answers here for sure.)
Right now (a year into the grant period), the group is focusing on capital murder cases. The thought is that there are the - I don't know another word to use - "residual" victims - of murder? Those who are affected by the murder but who did not die. The family members, other loved ones, etc. Those who often are kind of forgotten in the process. (That will be the topic of another blog.)
The result is not defense oriented, although it originates from the defense. The speakers talked about the discomfort most lawyers feel when it comes to dealing in and outside of court with those left behind. (For purposes of this writing, I'll will simply call them victims. I am not attempting in any manner to minimize their hurt or loss - just trying to put a term to a list for this posting.)
A couple of therapists attended - one who had conducted a study and as she was giving her results, she had tears in her eyes. It was quite apparent that in working on the study with the victims, she had grown to know the them and sympathize with them. She told us that when she first learned of the program, she was quite suspicious that it was an effort by the defense to try to get something from the victims - to act in a manner that would cause further harm to the victims. However, after learning about it and seeing it in practice, she is now an advocate for the program.
The plan is that a Victim Outreach Specialist (VOS) who has been specially trained (not certified just because there is no avenue for certification at this time) will be requested by the defense (funding requested by the defense) for the purpose of communicating with the victims & trying to meet their "judicial needs" - any questions they have about the process. (I came to understand how complicated it is for them yesterday. I'll write separately about that.) The VOS CANNOT share with the defense, unless the victim wants them to do so. The VOS will work with the victim (possibly in the victim witness office of the DAs' office) to help the victim through the process, and help the victim obtain answers to their questions.
I'm trying to narrow down to posting the bottom lines, but I know defense lawyers, prosecutors, judges, & others who read this will have many questions including (1) what is in it for the defense; and (2) the prosecutors' offices have victim rights people so why can't they fill this need. The whole idea is very complicated.
First - there is often going to be nothing in it for the defense. Remember, the defense only gets information from the VOS IF the victims agree. The VOS signs a contract with the defense so advising them. The defense MIGHT find that the victims are more willing to talk with the defense team. And, some times the defense might find that the DA's office is pursuing an end against the wishes of the victims.
The thought conveyed to attempt to get the defense interested in the program is that the defense is making an effort to reach out to the victims so that very weird wall that arises during trial, during victims' testimony, is at least not so high. As was stated, "how can the defense ask for compassion while showing none to the victims?"
It is a hard sell to the defense in my view for such reasons as (1) we have a duty to attempt to interview every witness so we may still have to try to interview those same victims with an investigator or mitigation specialist; (2) there are already limited funds for the defense in attempting to obtain evidence that is helpful & this would probably encroach on those funds & our client would likely not receive much from it; (3) I still have a hard time understanding why the defense is to make this effort. The State has people to do the job - apparently, though, they are not doing a satisfactory job. (It is likely they do not have enough funding & have too many cases. This would vary by office. Could be a training issue. Could be a personnel issue. So many things.); (4) Why can't the trial court appoint someone instead of the defense asking? And the list goes on . . .
The bottom line answer for why it must be the defense is apparently this (in a nutshell): victims have questions that only the defense can answer. In the healing process (which never ends & continues for the victims' entire lifetime), there is the need for answers and the need does not fit with the schedule of the trial. The healing process is hindered because the victims cannot get answers & are left in the dark for so much of the process (despite the efforts of the prosecution - which cannot provide many answers.) An example? Did the deceased see it coming? Was s/he asleep? Did they suffer? Did s/he know you? Where are you from? Did you have one or both or neither of your parents raise you? Did you have a good childhood? Were you abused? What were you thinking when you killed my love one? Why would the lawyer take a case like this? The list goes on. (You can imagine all the thoughts that go through a person's head from the time right after the death, throughout possibly the rest of their lives.)
So - the explanation of why it must be the defense who requests it starts with the fact that there must not be a question of guilt. Then, the defense must be in agreement to participate - even if it means that the answer is "I cannot answer that at this time." The hope is that the VOS obtains at least some answers that help the victims gather knowledge that they "need". (Need meaning whatever the victim feels because every victim handles the situation different. Every victim has different feelings.)
It is definitely innovative. It starts with a good premise - people helping people. It has potential for abuse - by the defense (if the the VOS is not properly trained.). It has little potential for helping the defense (without the abuse.) It has great potential for damaging the defense - the State is not prohibited from learning what the VOS has discovered. AND, it is being flat rejected by the Harris County District Attorney's Officer per one of the top leaders in that office. (More on that in my next blogspot.) Surprised? Not me. The most offensive part to the prosecution is that it has been proposed as by a well respected DEFENSE lawyer - Dick Burr & is supported by another well known & respected DEFENSE lawyer - John Niland, AND - I think this is the biggest problem - it is entitled DEFENSE Initiated Victims Outreach. More on this in the next spot.
But, leave this knowing that defense lawyers are not all bottom dwelling scum suckers who care nothing about anyone (including victims) and want to win at all costs. We are people, and there are many interested in the human, humane side of the law, too. (And, there are bottom dwelling scum suckers in the prosecutors' offices, too. I have dealt with some personally.)
Think about the DIVO program. Comment if you like. It is in the infancy stages, and I am positive I don't totally understand it because my initial reaction was "hell no" and my continued feeling is uh - why would we as zealous advocates for our clients - which we must be - it is the rules, the law, & the only way the system can work. But then again, we are all people (& most of us care, in general, about other people. . . )
As the saying goes, it is complicated . . .
Right now (a year into the grant period), the group is focusing on capital murder cases. The thought is that there are the - I don't know another word to use - "residual" victims - of murder? Those who are affected by the murder but who did not die. The family members, other loved ones, etc. Those who often are kind of forgotten in the process. (That will be the topic of another blog.)
The result is not defense oriented, although it originates from the defense. The speakers talked about the discomfort most lawyers feel when it comes to dealing in and outside of court with those left behind. (For purposes of this writing, I'll will simply call them victims. I am not attempting in any manner to minimize their hurt or loss - just trying to put a term to a list for this posting.)
A couple of therapists attended - one who had conducted a study and as she was giving her results, she had tears in her eyes. It was quite apparent that in working on the study with the victims, she had grown to know the them and sympathize with them. She told us that when she first learned of the program, she was quite suspicious that it was an effort by the defense to try to get something from the victims - to act in a manner that would cause further harm to the victims. However, after learning about it and seeing it in practice, she is now an advocate for the program.
The plan is that a Victim Outreach Specialist (VOS) who has been specially trained (not certified just because there is no avenue for certification at this time) will be requested by the defense (funding requested by the defense) for the purpose of communicating with the victims & trying to meet their "judicial needs" - any questions they have about the process. (I came to understand how complicated it is for them yesterday. I'll write separately about that.) The VOS CANNOT share with the defense, unless the victim wants them to do so. The VOS will work with the victim (possibly in the victim witness office of the DAs' office) to help the victim through the process, and help the victim obtain answers to their questions.
I'm trying to narrow down to posting the bottom lines, but I know defense lawyers, prosecutors, judges, & others who read this will have many questions including (1) what is in it for the defense; and (2) the prosecutors' offices have victim rights people so why can't they fill this need. The whole idea is very complicated.
First - there is often going to be nothing in it for the defense. Remember, the defense only gets information from the VOS IF the victims agree. The VOS signs a contract with the defense so advising them. The defense MIGHT find that the victims are more willing to talk with the defense team. And, some times the defense might find that the DA's office is pursuing an end against the wishes of the victims.
The thought conveyed to attempt to get the defense interested in the program is that the defense is making an effort to reach out to the victims so that very weird wall that arises during trial, during victims' testimony, is at least not so high. As was stated, "how can the defense ask for compassion while showing none to the victims?"
It is a hard sell to the defense in my view for such reasons as (1) we have a duty to attempt to interview every witness so we may still have to try to interview those same victims with an investigator or mitigation specialist; (2) there are already limited funds for the defense in attempting to obtain evidence that is helpful & this would probably encroach on those funds & our client would likely not receive much from it; (3) I still have a hard time understanding why the defense is to make this effort. The State has people to do the job - apparently, though, they are not doing a satisfactory job. (It is likely they do not have enough funding & have too many cases. This would vary by office. Could be a training issue. Could be a personnel issue. So many things.); (4) Why can't the trial court appoint someone instead of the defense asking? And the list goes on . . .
The bottom line answer for why it must be the defense is apparently this (in a nutshell): victims have questions that only the defense can answer. In the healing process (which never ends & continues for the victims' entire lifetime), there is the need for answers and the need does not fit with the schedule of the trial. The healing process is hindered because the victims cannot get answers & are left in the dark for so much of the process (despite the efforts of the prosecution - which cannot provide many answers.) An example? Did the deceased see it coming? Was s/he asleep? Did they suffer? Did s/he know you? Where are you from? Did you have one or both or neither of your parents raise you? Did you have a good childhood? Were you abused? What were you thinking when you killed my love one? Why would the lawyer take a case like this? The list goes on. (You can imagine all the thoughts that go through a person's head from the time right after the death, throughout possibly the rest of their lives.)
So - the explanation of why it must be the defense who requests it starts with the fact that there must not be a question of guilt. Then, the defense must be in agreement to participate - even if it means that the answer is "I cannot answer that at this time." The hope is that the VOS obtains at least some answers that help the victims gather knowledge that they "need". (Need meaning whatever the victim feels because every victim handles the situation different. Every victim has different feelings.)
It is definitely innovative. It starts with a good premise - people helping people. It has potential for abuse - by the defense (if the the VOS is not properly trained.). It has little potential for helping the defense (without the abuse.) It has great potential for damaging the defense - the State is not prohibited from learning what the VOS has discovered. AND, it is being flat rejected by the Harris County District Attorney's Officer per one of the top leaders in that office. (More on that in my next blogspot.) Surprised? Not me. The most offensive part to the prosecution is that it has been proposed as by a well respected DEFENSE lawyer - Dick Burr & is supported by another well known & respected DEFENSE lawyer - John Niland, AND - I think this is the biggest problem - it is entitled DEFENSE Initiated Victims Outreach. More on this in the next spot.
But, leave this knowing that defense lawyers are not all bottom dwelling scum suckers who care nothing about anyone (including victims) and want to win at all costs. We are people, and there are many interested in the human, humane side of the law, too. (And, there are bottom dwelling scum suckers in the prosecutors' offices, too. I have dealt with some personally.)
Think about the DIVO program. Comment if you like. It is in the infancy stages, and I am positive I don't totally understand it because my initial reaction was "hell no" and my continued feeling is uh - why would we as zealous advocates for our clients - which we must be - it is the rules, the law, & the only way the system can work. But then again, we are all people (& most of us care, in general, about other people. . . )
As the saying goes, it is complicated . . .
Thursday, September 24, 2009
CNN Story on Dog Sniff Line-ups
http://ht-mobile. cdn.turner. com/cnn/big/ crime/2009/ 09/24/lavandera. scent.dogs. cnn_cw_NX05. 3gp
This story includes quotes from a man accused of murdering his next door neighbor based on Ft. Bend County Deputy Pickett. Pickett, who claims that his dogs are almost never wrong, refused comment so CNN used prior comments. As it goes with junk, bullcrap science, more than one convicted and other accused persons' cases have proven Pickett's dogs, and thus Pickett's claims, to be WRONG.
How many more people need to lose their freedom because of this proven liar?!
(He has proven a liar in at least once instance where he testified he had a masters degree which he does not have. Guess he did not think that anyone would check out not only his bogus dog claims but also his pompous testimony.)
This story includes quotes from a man accused of murdering his next door neighbor based on Ft. Bend County Deputy Pickett. Pickett, who claims that his dogs are almost never wrong, refused comment so CNN used prior comments. As it goes with junk, bullcrap science, more than one convicted and other accused persons' cases have proven Pickett's dogs, and thus Pickett's claims, to be WRONG.
How many more people need to lose their freedom because of this proven liar?!
(He has proven a liar in at least once instance where he testified he had a masters degree which he does not have. Guess he did not think that anyone would check out not only his bogus dog claims but also his pompous testimony.)
Tuesday, September 22, 2009
Why Lie To Get Convictions?
What kind of a person would lie, knowing that their lies will be depended upon by others in assessing judgment? That their lies will be used by those of us who do not specialize in their field, to determine whether someone is the perpetrator of some crime? Who would make up garbage, call it science, and swear it is dependable, knowing that another person's freedom is at stake?
Think about the junk science you have heard about over the years, that people have depended on because someone claimed that it was reliable. I remember the days when lab techs would come to court and testify that two hairs were microscopically the same or at least so similar that they could be relied upon to prove that they came from the same person. This kind of crap testimony occurred in many, many trials for years to connect suspected persons to rape, murder, and other crime scenes. Jurors relied on it. Hell, so did many lawyers. But what did we find out - it was bunk. A bunch of crap.
[I try to imagine what went through these "experts'" minds as they looked at the hairs and KNEW they could not rely on such science because it was not true? when they lied after swearing to tell the truth and looked jurors, judges, and lawyers in the eyes swearing they were correct. What did they think when the accused was convicted, in many cases, in heavy reliance on their lies? when we lay people finally figured out they were doing a "David Copperfield" on us? when they lay in their bed at night knowing someone sits in prison in large part because of their lies? What they will tell their maker. They had good intentions when they lied? Are they sorry? I mean do they feel sorry about what they did because they are DEFINITELY sorry.]
Dog sniffs. Does anyone really believe that a dog can smell a rock of cocaine inside a baggie, inside a box, inside a safe, in the closet in the back bedroom by sniffing at the front door? Seriously? I've had a case with similar facts & just cannot believe that we have to sit there & take it because some idiot says it is so. (I'll agree that dogs can smell some things that humans cannot but come on. Be a little realistic.) Yet here we are in 2009 and judges, and intelligent jurors, buy that crap just like they bought the hair lies.
Now we have scent lineups. A dog is allowed to smell some object from a crime scene, then he is taken to a lineup of persons & sniffs to tell his handler which is the perpetrator. There is, in fact, a cop who is famous (and soon to be infamous) who testifies that he does not keep records on his dog, but that he knows that his 3 dogs have made only 3 mistakes in almost 10,000 efforts. Wow.
However, the real evidence in some of those cases (including some that were dismissed without trial - AFTER the accused smellee sat in jail for at least some period of time) - exonerates the individuals. DNA says SODDI (some other dude done it).
The perpetrator of the falsehoods continues to testify but now the tides are turning. He and his law enforcement group have been sued. Moreover, private dog handlers as well as criminal defense attorneys have gathered the testimony of this proven liar as well as dissected his bunk claims, and are now demonstrating for juries through elaborate cross examination the falsity of the supposed science. In fact, in June of this year, a lawyer in San Jacinto county (where prosecutors proclaimed scent lineups to be as reliable as DNA) handed this liar his butt in cross examination. Her client was found not guilty of murder in 13 minutes.
The losses are mounting for Officer One Sniff Will Do Ya. But one thing that has not changed is this - until they are told essentially DO NOT USE THIS LIAR by an appellate court, the prosecution will continue to present to juries this emboldened witness and his majic dogs to help obtain convictions. Why? Because it is easy. Because no one is stopping them. Because they don't care about the truth.
[And, those real prosecutors who can smell dog crap when it is placed before them - like Vic Wisner formerly of Harris County - will refuse to engage in seeking a conviction for the numbers and will refuse to use Officer One Sniff Will Do Ya. Not only do they prosecute with what they believe is real evidence, many of them actually care to seek justice. What about the rest of them? Never mind. This was about why people lie.]
There are many reasons Officer One Sniff Will Do Ya might lie. We can all guess some nasty little explanations (or at least I can. And by nasty, I mean ugly & mean.) But heck, who cares? The fact is, his lies have resulted in convictions for some people who have since been exonerated. So what shall we do about the other convictions in which he was involved? ? ?
Think about the junk science you have heard about over the years, that people have depended on because someone claimed that it was reliable. I remember the days when lab techs would come to court and testify that two hairs were microscopically the same or at least so similar that they could be relied upon to prove that they came from the same person. This kind of crap testimony occurred in many, many trials for years to connect suspected persons to rape, murder, and other crime scenes. Jurors relied on it. Hell, so did many lawyers. But what did we find out - it was bunk. A bunch of crap.
[I try to imagine what went through these "experts'" minds as they looked at the hairs and KNEW they could not rely on such science because it was not true? when they lied after swearing to tell the truth and looked jurors, judges, and lawyers in the eyes swearing they were correct. What did they think when the accused was convicted, in many cases, in heavy reliance on their lies? when we lay people finally figured out they were doing a "David Copperfield" on us? when they lay in their bed at night knowing someone sits in prison in large part because of their lies? What they will tell their maker. They had good intentions when they lied? Are they sorry? I mean do they feel sorry about what they did because they are DEFINITELY sorry.]
Dog sniffs. Does anyone really believe that a dog can smell a rock of cocaine inside a baggie, inside a box, inside a safe, in the closet in the back bedroom by sniffing at the front door? Seriously? I've had a case with similar facts & just cannot believe that we have to sit there & take it because some idiot says it is so. (I'll agree that dogs can smell some things that humans cannot but come on. Be a little realistic.) Yet here we are in 2009 and judges, and intelligent jurors, buy that crap just like they bought the hair lies.
Now we have scent lineups. A dog is allowed to smell some object from a crime scene, then he is taken to a lineup of persons & sniffs to tell his handler which is the perpetrator. There is, in fact, a cop who is famous (and soon to be infamous) who testifies that he does not keep records on his dog, but that he knows that his 3 dogs have made only 3 mistakes in almost 10,000 efforts. Wow.
However, the real evidence in some of those cases (including some that were dismissed without trial - AFTER the accused smellee sat in jail for at least some period of time) - exonerates the individuals. DNA says SODDI (some other dude done it).
The perpetrator of the falsehoods continues to testify but now the tides are turning. He and his law enforcement group have been sued. Moreover, private dog handlers as well as criminal defense attorneys have gathered the testimony of this proven liar as well as dissected his bunk claims, and are now demonstrating for juries through elaborate cross examination the falsity of the supposed science. In fact, in June of this year, a lawyer in San Jacinto county (where prosecutors proclaimed scent lineups to be as reliable as DNA) handed this liar his butt in cross examination. Her client was found not guilty of murder in 13 minutes.
The losses are mounting for Officer One Sniff Will Do Ya. But one thing that has not changed is this - until they are told essentially DO NOT USE THIS LIAR by an appellate court, the prosecution will continue to present to juries this emboldened witness and his majic dogs to help obtain convictions. Why? Because it is easy. Because no one is stopping them. Because they don't care about the truth.
[And, those real prosecutors who can smell dog crap when it is placed before them - like Vic Wisner formerly of Harris County - will refuse to engage in seeking a conviction for the numbers and will refuse to use Officer One Sniff Will Do Ya. Not only do they prosecute with what they believe is real evidence, many of them actually care to seek justice. What about the rest of them? Never mind. This was about why people lie.]
There are many reasons Officer One Sniff Will Do Ya might lie. We can all guess some nasty little explanations (or at least I can. And by nasty, I mean ugly & mean.) But heck, who cares? The fact is, his lies have resulted in convictions for some people who have since been exonerated. So what shall we do about the other convictions in which he was involved? ? ?
Friday, August 28, 2009
DIVERT - the early fallout - complete BS
So, you've read about the DIVERT program as written by others here in Harris County. I won't go into great detail about the program - suffice it to say that presumably DA Pat Lykos & her entourage have come up with this program to "help" first offenders who find themselves charged with DWI. I'll refer you to the blawgs written by Troy McKinney (very detailed), Murray Newman, Paul Kennedy, probably Mark Bennett - and likely others to find out their thoughts on the problems. But today, I want to tell you what I face in two cases.
Case one - client had an issue with drugs - while on bond for PCS (possession of a controlled substance), he is arrested for DWI. It is his second one. He finally "gets it" & puts himself in locked down rehab in a far away state for 6 months. SIX MONTHS! He gets out - clean & sober. He has gained weight & looks great. Well, already because it is his second - no drivers license for refusing the breath test. But, you see, driving is a privilege - not a right. Did you know that?! It is a privilege that can be taken away with little protection. But that is a different story.
I ask for pre-trial diversion on the felony - no because there is nothing exceptional about him or the situation. (I disagree - I have NEVER had a client put himself in rehab because he WANTS to be rehabilitated before he was left with a choice of rehab or jail.) But, he is offered deferred adjudication. (Well - another story) He plans on taking deferred.
On to the misdemeanor. This story has nothing to do with what may or may not happen with the misdemeanor DWI. This story is about the DIVERT program - which fails to do what the legislature has wisely done - leave sentencing to be decided on a case-by-case basis. Frankly, I cannot think of a legal argument against the policies, but it just is ridiculous. Let me illustrate.
This client, who was in rehab for 6 months, is offered 90 days. Well, I'm advised that I can negotiate - down to 75 days! That is the minimum. Let's get this straight - he did 180 days flat in rehab & is now clean & sober. His license will shortly come up for reinstatement but the rules say he gets 75 days (or set it for a trial - maybe a plea before the judge) & his license will get suspended AGAIN for 2 likely 2 years.
(Think this way - no drivy, no worky, no schooly, no nothing. What's the incentive to better oneself? What the hell?)
But, here's an even better example. Client gets arrested for a plain vanilla DWI - speeding by 20 miles over but nothing particularly bad about the tests, etc. No accident & no breath test. He will be suspended for 6 months for refusing the breath test. BUT, guess what the DIVERT program offer will be for this guy? Well, he has a prior - 25 YEARS AGO - when he was 21 so under the law & rules of DA Lykos, he is a 2nd offender - no exceptions. What offer have they made to this man? The required minimum of 60 days. SIXTY DAYS!!!! (In Harris County, 60 days means 30 days flat time.)
Seriously - this is ridiculous. It is not the assistants' fault. Their hands are tied to this offer. I may be able to go to the judge without a recommendation - if they can waive a jury. Or, I have to waste time & tax dollar because I can tell you this - I will strongly urge this client NOT to take 60 days. THIS is the crap of which these ridiculous rules are made of. These are your tax dollars being WASTED! This man should get a normal probation. They got his attention, and he is going to lose his driver's license. But 30 flat days in the jail - with rapists, robbers, murderers?!
Case one - client had an issue with drugs - while on bond for PCS (possession of a controlled substance), he is arrested for DWI. It is his second one. He finally "gets it" & puts himself in locked down rehab in a far away state for 6 months. SIX MONTHS! He gets out - clean & sober. He has gained weight & looks great. Well, already because it is his second - no drivers license for refusing the breath test. But, you see, driving is a privilege - not a right. Did you know that?! It is a privilege that can be taken away with little protection. But that is a different story.
I ask for pre-trial diversion on the felony - no because there is nothing exceptional about him or the situation. (I disagree - I have NEVER had a client put himself in rehab because he WANTS to be rehabilitated before he was left with a choice of rehab or jail.) But, he is offered deferred adjudication. (Well - another story) He plans on taking deferred.
On to the misdemeanor. This story has nothing to do with what may or may not happen with the misdemeanor DWI. This story is about the DIVERT program - which fails to do what the legislature has wisely done - leave sentencing to be decided on a case-by-case basis. Frankly, I cannot think of a legal argument against the policies, but it just is ridiculous. Let me illustrate.
This client, who was in rehab for 6 months, is offered 90 days. Well, I'm advised that I can negotiate - down to 75 days! That is the minimum. Let's get this straight - he did 180 days flat in rehab & is now clean & sober. His license will shortly come up for reinstatement but the rules say he gets 75 days (or set it for a trial - maybe a plea before the judge) & his license will get suspended AGAIN for 2 likely 2 years.
(Think this way - no drivy, no worky, no schooly, no nothing. What's the incentive to better oneself? What the hell?)
But, here's an even better example. Client gets arrested for a plain vanilla DWI - speeding by 20 miles over but nothing particularly bad about the tests, etc. No accident & no breath test. He will be suspended for 6 months for refusing the breath test. BUT, guess what the DIVERT program offer will be for this guy? Well, he has a prior - 25 YEARS AGO - when he was 21 so under the law & rules of DA Lykos, he is a 2nd offender - no exceptions. What offer have they made to this man? The required minimum of 60 days. SIXTY DAYS!!!! (In Harris County, 60 days means 30 days flat time.)
Seriously - this is ridiculous. It is not the assistants' fault. Their hands are tied to this offer. I may be able to go to the judge without a recommendation - if they can waive a jury. Or, I have to waste time & tax dollar because I can tell you this - I will strongly urge this client NOT to take 60 days. THIS is the crap of which these ridiculous rules are made of. These are your tax dollars being WASTED! This man should get a normal probation. They got his attention, and he is going to lose his driver's license. But 30 flat days in the jail - with rapists, robbers, murderers?!
Monday, August 17, 2009
Thinking about hiring Andy Nolen - let's put it this way - you better shop around . . .
Following up on the 2 prior spots in the series . . .So, who might be trying to ruin the postive, hard-earned reputations that most of these lawyers have? Would you suspect the only one who got the positive comments? Would you suspect the one who, among the lawyers reviewed, has the worst reputation? I would, I did, I do, and I will continue to do so.
Ya know, the thing about him for me is this - I think he is a strange duck - he acts weird in court & I know he has been in trouble with the State Bar. In the past, I've wondered what people are thinking when they hire him (and some others. . . ) But I have never been rude to him. Until yesterday when I discovered his crap acts, I had never spoken of him in any way.
It is curious the wording with which he wrote about me - "she seems nice" - I was nice to him when he spoke to me in court some time this past summer (and the negative review I got is dated in July). Moreover, to my knowledge he knows nothing about my representation of clients - how hard I work (or don't), how much I care (or don't), and what being a lawyer, especially coming from my background, means to me (or not). In fact, the asshat knows nothing about me. So WTH?
This I know - the lawyers who have written about him today - Mark Bennett, Paul Kennedy, Brian Tannenbaum - enjoy well earned, wonderful reputations. I've worked hard to have a good, respected in my field reputation. It takes a real asshat, like Andy Nolen to work to tarnish other good lawyers rather than work to earn the reputations that we enjoy. I can imagine what it is like to be a client of his. My guess is that he knew what negative comments clients were likely to make, because they have been said about HIM.
Ya know, the thing about him for me is this - I think he is a strange duck - he acts weird in court & I know he has been in trouble with the State Bar. In the past, I've wondered what people are thinking when they hire him (and some others. . . ) But I have never been rude to him. Until yesterday when I discovered his crap acts, I had never spoken of him in any way.
It is curious the wording with which he wrote about me - "she seems nice" - I was nice to him when he spoke to me in court some time this past summer (and the negative review I got is dated in July). Moreover, to my knowledge he knows nothing about my representation of clients - how hard I work (or don't), how much I care (or don't), and what being a lawyer, especially coming from my background, means to me (or not). In fact, the asshat knows nothing about me. So WTH?
This I know - the lawyers who have written about him today - Mark Bennett, Paul Kennedy, Brian Tannenbaum - enjoy well earned, wonderful reputations. I've worked hard to have a good, respected in my field reputation. It takes a real asshat, like Andy Nolen to work to tarnish other good lawyers rather than work to earn the reputations that we enjoy. I can imagine what it is like to be a client of his. My guess is that he knew what negative comments clients were likely to make, because they have been said about HIM.
"jerry k." - an imposter!
So, after I "get over myself" being so aggravated abt a negative posting, I think - I've never represented a "jerry". I have had 1 client whose father is named "jerry" & the father gave me a wonderful review on AVVO (and his last name didn't start with a "k".) I peruse the comments on some of my fellow CDLs (criminal defense lawyers) & there are some really good lawyers on there but guess what, they have similar negative comments "all she cared about was the money" "never returned my calls", etc. NO WAY. That's it - there is just no way that so many people for whom I have respect had provided bad representation or inattention to so many cases. But, guess what - many of them are rated by none other than "jerry k." I can assure you that if "jerry k." had had experience in hiring or interviewing with this many lawyers, he would have a tons of cases - and no time (and probably no place) to be writing about all these lawyers because he would be in the joint - likely on a lifer.
No, this asshat (to use Mark Bennett's term which I love) must be a competitor. I have known lawyers to make negative remarks about other lawyers - and the speakers were all BAD lawyers. My training in this area began with the great Wendell Odom who told me to never, ever speak badly about another lawyer. You might not say anything about the lawyer because you have nothing good to say, but do not be negative. (I have heard Wendell praise other lawyers whom the potential client was going to visit - and Wendell got hired.) It felt right then, and it feels right now.
I make it a practice to ask what other lawyers the client is talking to about the case. If asked, I will say, "s/he is a really good lawyer" or has a good reputation. If I think the lawyer is crap, I might say something like, "I do not know if I would hire that lawyer for this type of case, but you should definitely interview her/him." You know what - I find that if they interview with a crap lawyer, I look even better (more knowledgeable and able) & I didn't lose respect by being an asshat myself. (As an example, I had a DWI client call me last week who was going to see a well-known DWI lawyer. He asked me what I thought & I told him that he was going to visit a very good, very respected lawyer who would do a fine job if hired. (Sometimes the difference is the amount of the fee.)
So I get back to - who is "jerry k.", and why is he disrespecting lawyers like Todd Leffler, Doug Durham, Dane and Leslie Johnson, Dennis Slate, Larry Douglas, Dan Gerson, Jeff Purvis, Mekisha Murray, David Breston, Paul B. Kennedy, Joe Salhab, Paul Kennedy, John Floyd & others.
Want to guess why? Want to guess who?
Next edition . . .
No, this asshat (to use Mark Bennett's term which I love) must be a competitor. I have known lawyers to make negative remarks about other lawyers - and the speakers were all BAD lawyers. My training in this area began with the great Wendell Odom who told me to never, ever speak badly about another lawyer. You might not say anything about the lawyer because you have nothing good to say, but do not be negative. (I have heard Wendell praise other lawyers whom the potential client was going to visit - and Wendell got hired.) It felt right then, and it feels right now.
I make it a practice to ask what other lawyers the client is talking to about the case. If asked, I will say, "s/he is a really good lawyer" or has a good reputation. If I think the lawyer is crap, I might say something like, "I do not know if I would hire that lawyer for this type of case, but you should definitely interview her/him." You know what - I find that if they interview with a crap lawyer, I look even better (more knowledgeable and able) & I didn't lose respect by being an asshat myself. (As an example, I had a DWI client call me last week who was going to see a well-known DWI lawyer. He asked me what I thought & I told him that he was going to visit a very good, very respected lawyer who would do a fine job if hired. (Sometimes the difference is the amount of the fee.)
So I get back to - who is "jerry k.", and why is he disrespecting lawyers like Todd Leffler, Doug Durham, Dane and Leslie Johnson, Dennis Slate, Larry Douglas, Dan Gerson, Jeff Purvis, Mekisha Murray, David Breston, Paul B. Kennedy, Joe Salhab, Paul Kennedy, John Floyd & others.
Want to guess why? Want to guess who?
Next edition . . .
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