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.

Thursday, October 8, 2009

Prosecutorial Mindset - "My" Witnesses

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.]

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 . . .

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.)

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? ? ?

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?!

Monday, August 17, 2009

"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 . . .

Who is Jerry K? & why is he dis'ing me?

It started with an e-mail trying to sell me enhanced visibility on Yahoo. Like many lawyers, I have my information listed (although they can't seem to get the address updated - guess it doesn't matter as long as the phone number is correct.) I digress.

The ad gave me an opportunity to look at my "page" - so I did. WHAT THE HELL? I had been rated by 2 people - 1 apparently was just stars & must've been the max (5 stars) but the other was ONE STAR with the comment "she seemed nice, but my misdemeanor case seemed unimportant. By jerry k."

First off, I'm going to tell you that I am AV rated & I am rated 10 - superb - on AVVO. Not tooting my whistle but my clients are usually very, very happy with my work. (I can't say always - just like all lawyers, I do have the occasional client who wants to walk free even though he is guilty & he has a boatload of priors . . . And, I handle appeals & writs - another story.) Anyway, to say I was aggravated is to minimize. It actually pissed me off.

Any time I have a client who is unhappy with something that I've done or that is going on AND I KNOW ABOUT THEIR FEELINGS, I take the extra effort to make them either happy or at least understand why things happen as they do. Many times it is just a misunderstanding. Remember, these are people whose lives are being turned upside down, or at least rattled a great deal.

It made me mad because I have never treated anyone as if their case was "unimportant." I do not even think that way. Every case is important; every case has a consequence. People are affected by having even a "minor" charge against them, and could be affected in their futures. And, who is "jerry k?" I decided to investigate a bit (after raging abt this on twitter to the world.) The results of the investigations - check out my next posting.

Thursday, August 13, 2009

Pat Lykos - tweeting?

I just got followed by "Pat Lykos" on Twitter, and the comments are so funny I can't get any work done cuz I'm laughing. This cannot be THE Pat Lykos, although they are using her photo. Here are some of the tweets:

How many prosecutors does it take to handle a felony court? Not as many as these bums want you to believe. (apparently referring to Murray's blog)

Going to send Hannah to make the rounds and make sure everybody is working hard. These bastards will slack off if you let them.

What's the matter, asshole, you don't like dogs? (again referring to Murray's blog apparently)

Grabbing a smoke before going back to building the best fucking DA's Office in the USA.

These are direct quotes from the Twitter that purports to be Pat Lykos. Is it really her? Surely not. But who would be so bold? Well, it is funny for certain. I wonder what DA Lykos will think when she finds out. (I'm sure she reads Murray's blog regularly because he is always slamming her.)

Monday, August 10, 2009

Mental Health Cases in Misdemeanor Courts

There was a long commentary in the Chronicle a day or so ago written by fellow former HCCLA prez, Robb Fickman. Part of his commentary was regarding those with mental health issues being warehoused in the jail. Galveston County Judge Susan Criss posted the article on her Facebook page, and spoke in favor of the general gist (or is that jist or jest - who knows, who cares) of the article. I want to comment on some experiences I have had regading persons with mental health issues who are locked up for minor offenses.

First, I will acknowledge that businesses have the right to keep their doorways & property clear & free of beggars & others who may interfere with consumers who may feel harassed, afraid, or otherwise uncomfortable. But some times, in fact I believe more times than most people would think, the police end up arresting the accused simply because they do not have anything else they can do with them, and the person, obviously ill, is not following direction to stay off or away.

Anyway, today I had a guy who had been in jail since April for trespassing. The man has some issues, no doubt. It is obvious to anyone who talks to him for more than a few seconds. He was found to be incompetent and ordered sent to Rusk (the State's mental health - loosely used term - facility). But instead, he sat, and sat, and sat, and sat - in jail until finally today "we" or I (but really it was a cooperative effort) decided enough is enough. But is it?

I do not know why the man did not get sent to Rusk, but this happens frequently. I know THAT because I take appointed cases in one misdemeanor court on a somewhat regular basis (love that court & all the staff) & I see quite a few of these cases. It is kind of a joke when you pick up a trespass file that the first thought is - another psych case. (I don't mean that unkind - it is just that is what the mentally unstable tend to be incarcerated for - simply trespassing. For some reason - at least in the cases I have handled - the accused tends to keep going back to the same place over and over. Maybe it is a comfort thing - they feel connected to the place. This, of course, does not make it any better for the property owner.)

[Once I had a lady who swore a particular house was hers. She harassed the true owners frequently - actually entering their house & treating it like her own. The true owners got to know her family & would call them to come get her but then at some point, the house was sold. New owners move in only to come home & find that they are locked out. The client had called a locksmith & convinced him that the house was hers and all the locks needed to be changed! This case was a nightmare as the woman was fairly intelligent & had piles of papers (which made no sense) but which she used to show me and everyone that the house was hers. This was a private hire case, and her family was very supportive & eventually the case was dismissed when the accused was put into mental health treatment program. But I digress. What made it so difficult is she could see her logic and was very good at arguing her point, but she had no logic and her point was not based in fact or law, and it was impossible to get that across to her. And, so she did not think she needed, nor did she want, treatment!]

Jail is not a good place. I wouldn't want to put anyone in there - especially Harris County - unless s/he is a hardened, dangerous criminal. (There are many reasons including (1) it stinks, (2) people get beat up & killed in there by each other & apparently the popo, (3) there are apparently dangerous creatures like brown recluse spiders that visit, (4) disease is apparently pretty rampant, and the list goes on.

Because the jail is SO bad, I especially do not like the way the system works with regard to the mentally ill - they commit an offense & go to jail. They are in jail for at least a couple of days before they see a lawyer who says, "something just ain't right about this guy" and requests that he be "psyched" (aka checked out by a doctor to see if he competent to stand trial.) If he is found to be incompetent, he is sent to a mental health facility to regain competency & then comes back to face the charges. (Let me say here that most of the time when this happens - in fact, every time in my experience - the case gets dismissed.) But the P O I N T is that a sick person is sitting in jail because his sickness caused him to not understand, or to conduct himself in some unlawful (not dangerous in my cases) way.

So, my guy today has been sitting in jail since April, with a court order made about 25 days after his arrest, ordering that he be sent to Rusk. But he has not gone yet! Can you imagine that you have an untreated disease that caused you to act in a way that is unlawful - let's say it is unlawful to puke on the sidewalk. You puke because you are sick. You go to jail because you puked, but instead of treating you to help you get better, you continue to sit in jail sick.

The point is that the system just blows when it comes to the mentally ill. I can complain & make calls & like today, find a sympathetic prosecutor who dismissed the case. (After all, the guy did at least 4.5 months more in jail than he would have done if he had not been sick, and had been capable of understanding the situation. It isn't his fault the system has failed him.) But did I do him a disservice because you know what, he is still sick.

(The man had trespassed on some property - where he had been warned not to go - by going into the port-a-potty. Hhhmmm. I understand he had been told not to go to this property before, but wouldn't it have been worse if he had just "done his business" out in public? In fact, it is a crime to urinate (and probably defecate - though I have not checked it out & don't really care as far as this writing is concerned) in public. And, it is just gross.)

It is a terrible position to be in for the prosecutor on occasion when the facts are worse & they, like the fair prosecutor today, actually care, and a terrible situation for me. Do I fight to get a sick man released because he has been in too long, or do I do what is right for his mental health - and leave him sit while I do what little I can to get him sent to the hospital. (Obviously the person in the worst position is the accused who, I'll say it again, is sick.) If the person does not get help, one can usually assume by their record it is going to happen again. (Not in the case today, but in the majority of cases. The guy today actually was better than he was the last couple of times I saw him.)

As defense lawyers, we are supposed to do what the client wants (within reason - we can't help them commit crimes, etc.) But what do you do when they cannot really tell you what they want? Frankly, my thought is that it is doing the client NO good to sit in jail, and is probably harming him. Even if I think he might be helped in treatment, am I violating my obligation to act in his best interest to have him continue to sit in jail hoping to get that treatment? Where do we draw the time line? And is it fair to the sick person?

We are in dire need of a place to temporarily house those who police believe may be mentally ill, or who the lawyers think need to be assessed, and it should not be the disgusting jail.

Would you want to sit in jail waiting on the liver transplant you need? Somehow, I rather doubt it.

Tuesday, August 4, 2009

Helping the Boston Terrier Rescue Group - Please Donate

Don't just turn off & say you are not interested, please. We are looking for prize bag donations, and larger donations, to use to raise money for our rescue group. We are having mardi gras beads donated, and I am personally donating several new games, dog clothes, collars, etc. If you own or work at a business & can donate something - a facial, a massage, veternarian, any services, banner making (we could use this ourselves); or if you have items you bought meaning to use them but never did (like me); or if you just want to donate money or purchase something to donate, I can assure you it will be thankfully received and gratefully used to raise money for our little doggies. (Our founder & president has donated the garage to one of her houses for a kennel!)

We are strictly a volunteer group, and most of us donate financially constantly. (Most of us are also active in other animal related activities and many of us foster dogs in our homes which means food, medications, etc.)

We are 5013c & donations are tax deductible.

(This is what I do in "real" life - I advocate & help those who cannot speak for themselves.)

If you want to volunteer, we would love to have you. We have volunteers all over including Houston, Austin, Beaumont & many other places. We place dogs all over, including a couple that went to Canada. Contact me about donations, or visit our website at (We also have beautiful dogs to adopt. Check out the website.)

Many thanks (& I know, I need to put up a new legal related blog. As soon as this writ is filed . . . )

Friday, July 24, 2009

Writs & the Law

I'm trying to writ a federal application for writ of habeas corpus on behalf of a guy who got 292 months in prison for carrying money ONE TIME from one person to another in a methamphetamine conspiracy. WOW! It was a huge conspiracy but the problem with the way the system works is that the first to the table (meaning the first snitch in the group that gets to the US Attorney with his/her information) gets the deal of the century. What does this really mean to the general public?

Well John Q., it means that the "big dogs" are getting much shorter sentences many times than say, a one-time mule. One of the reasons is that the one-time mule doesn't have anything to exchange for a lower sentence. (The mules are kept in the dark about Mr. Big & the other higher conspirators. The purpose of having the mules is to help insulate them from knowledge of the lessers like the mules who are more likely to be caught.) The one time mule is held just as responsible as, say the 20 time (5 years worth) mule. (There are some ways to raise sentences but I'm not addressing that.)

So, John Q., you've lost your job & been trying in vain to get a job to support your wife & 5 kids but this economy sucks eggs so it has been hard. You can't work a minimum wage job - that is a joke for a family person. Someone you know just slightly - maybe met him through a couple of buddies you used to play cards with, or a buddy of a former work buddy - sees you around. You get to talking about life & need for work, etc., & he tells you that he has this deal where he just picks up money from one guy and brings it to another guy, and that he thinks he can hook you up. Now, you suspect that this is not good - I mean, who would pay money for such. But, times being what they are, you decide that you will do it.

So, you carry money once & then decide that it just isn't worth it, and you won't do it again. Three years from now, the feds come beating at your door & you find that you are tied into a conspiracy because they had surveillance of you going to the house to get the money, as well as calls from you to the money guy getting directions. That's it. No more.

The Government is looking for someone they want you to tell on. To your knowledge, the person is deceased. They don't believe you so that means trial time. 292 months.

John Q. - do you feel safer now that all your tax dollars are spent locking this guy up for this long? And let me absolutely assure you that the Government acknowledged they had nothing else on this conspiracy but what I've listed. (They have him talking about drugs with other non-co-conspirators but nothing of any big issue.)

Believe me, I understand that you have to get as many as you can - to do something in this "war on drugs" - but seriously - at any cost? 292 months. Wow. I feel much safer - NOT. (Quit wasting my money on such crap is actually how I feel. But hey, when you've got a power hunger, mean spirited person in charge, this is the kind of "justice" you can expect.)

Monday, July 13, 2009

Why the Defense Does Not Share Info with the State

I have been practicing criminal defense for just about 21 years. One of the first lessons taught to defense lawyers is when you get a great piece of evidence or information, you do not share it with the prosecution until trial. Why? Because, especially if it is a problem with something an officer has said in his report (like an impossibility - there is no S curve where he says, etc.), then the State will "fix" it. Similar with other witnesses. If it can be "fixed", it will be - period.

How would this happen you ask? It is called woodshedding. I've already disclosed that I have never been a prosecutor but my understanding is that the prosecutor (person to whom you disclosed your great hose for their fire) talks to the witness & says something like, "hey - did you realize there is no S curve where you said. Could it be you made a mistake & were talking about the S curve a mile away." Witness, "oh yes - that must have been a typographical error when I wrote the mile marker number." . . . or something like that.

My last trial had a great piece of evidence. (Well, it would not have been as great as I thought had the State bothered to disclose Brady / exculpatory evidence because I would have had some impeaching evidence from their own file but, that is another story.) Anyway, my investigator attempted to call the brother of the c/w (complaining witness - girl who was making the accusation) to interview him, only to find that the c/w had the phone. Moreover, she was just happy as a peach to run off at the mouth of what she claimed happened.

Without going into details, her claim to the investigator was NIGHT & DAY different from her prior claims: new manner & means, new location, craziness claiming everyone was in the room right next door & wide awake! YEAHHHHHHHH. Wow.

Normally I would have just gone to trial & stuck it up her nose sideways, but there was a lot at stake here. Not only was my client's freedom at stake, but he loves his family & this was tearing a rift in the entire family. Moreover, there was going to be some graphically, embarassing details about 2 girls that would come out - and I truly did not want to embarass them. (Kids some times do things that no one else knows. There is no need to elaborate but I really do have a heart, and I did not want to cause unnecessarily embarassment.)

I fought with myself about disclosing this. I don't disclose, but there were these other issues. I finally had a talk with the prosecutor who led me to believe that if the girl really said X on the tape, then he felt he could not convince a jury beyond a reasonable doubt. I knew she said X, and took his words to mean he would dismiss. SO, with the client's understanding, I played the audio. (It is always better to get a dismissal than a trial - trials are NEVER a sure thing - especially when the allegation is sexual assault of a child.)

The prosecutor took detailed notes & disappeared for a meeting with c/w. My investigator even let c/w hear the beginning which had her voice. (She had denied to prosecutor having a conversation with investigator WHO FULLY IDENTIFIED HERSELF AS INVESTIGATOR FOR THE ACCUSED.)

He comes back - trial. He cannot explain why but I can - he let the father who is a vindictive jerk, who knew nothing about all the things going to come into play in this case, intimidate him. Rather than "do the right thing" with information I disclosed, suddenly at trial the c/w remembers talking to my investigator & saying the things (that the prosecutor had detailed notes on.)

I got a hung jury 8 to 4 for not guilty. (2 jurors lied - they had family members who had been victims & failed to disclose it although this question was specifically asked.) See, the prosecutor was right when he said that if she says X, then I can't prove the case beyond a reasonable doubt - and he couldn't. (They dismissed after trial.)

But, I re-learned my lesson - I will not share again. Nope. That was it for me. I knew better but I was trying to protect HIS c/w and another witness from massive embarassment but the prosecutor just didn't get it. I get it though - I'm done with sharing after that. From now on, expect to hear my good stuff during the trial. I may be an old fool, but I won't be that foolish again.

Sunday, July 12, 2009

What Is Exculpatory Evidence & When Must It Be Given To The Defense

My recent trial opened my eyes on several levels, the first being that some people do not understand what exculpatory evidence is. It is not quite what you think by definition of the word. In fact, it was interpreted by a Supreme Court case - Brady v. Maryland (which is why many people call exculpatory evidence simply "Brady").

Prosecutor 4 on the case was the first to interview the complainant (to my knowledge.) Before our motions hearing (in which I request evidence & additional hearings outside the presence of the jury), prosecutor 4 & I discussed Brady. He said that conflicts between what the complainant said on the video & what she said to him, if there were conflicts, is not Brady. This is WRONG. In fact, this is the kind of stuff that not guilty verdicts are made of! It impeaches the complainant to tell a different story. (Now, I know that many are thinking little kid - can't remember details. I won't get into that right now but this was an 18 year old whose outrageous claims were during the time period from when she was 14 - 16, depending upon on which story one relied.)

I had the judge admonish prosecutor 4 that conflicts WERE Brady & were to be turned over. His response to me was that he would have to re-watch the video. The case was set for trial and on the trial docket for 2 weeks before the court reset the case. I never heard anything about any Brady information from prosecutor 4 (who later got into trouble for violating Batson - but that's not my case).

Jump ahead three months to prosecutor 5 at the second trial setting. I hear nothing from him despite a couple of requests for Brady. Finally, on the first day of trial, he discloses a conflict that the complainant told him about. What the hell?! Apparently, according to prosecutor 5, it is the same as what she told prosecutor 4.

Now, I was able to use the information but you know, the rules are there to protect the accused. I'm sorry if some don't like that, but it is the law. It is the Constitution. What if it affected my trial strategy?! Moreover, prosecutor 4 had already been admonished (which is RIDICULOUS - as a felony prosecutor he should know the law & the rules. This person is putting people in prison left & right!)

More on this trial but the bottom line gripe, as a division chief in the prosecutor's office told me after I discussed this, and other problems with the trial, is when you think it MIGHT be Brady, turn it over - IMMEDIATELY. Don't you guys see all these DNA not guilty people whose cases are being overturned?! Does anyone give a damn that years of their lives were WASTED in prison?!

If it MIGHT be Brady - disclose it. Yes, you might get it shoved up your nose at trial but that is okay - isn't it? Don't you want justice? Don't you want the truth? Do you REALLY want to put an innocent person in prison? Why would you take that chance?

BTW, I've heard that everyone now has to read the District Attorney's Association book on Brady - what it is & when to disclose it. Shame especially that at a felony stage this is not already known, but at least some of the uppers are concerned enough to take action.

(Also note - this issue does not apply to all prosecutors. Many are quite diligent about turning things over. But, as we learn from the paper every day, some not only turn stuff over late, some cover & hide stuff. Get real. This is just your job, but this is the life of not only the accused but also an entire family - in this case. A family that could have healed much easier, much quicker, if the case had been dismissed - the right thing to do.)

More later.

Sunday, June 21, 2009

Getting a Jury in a Sexual Assault Accusation Case

A quick blogspot about the jury trial I am currently in. I will blogspot about the prosecutor's behavior when the trial is done. I do not have time to get "my panties in a ruffle" about that crap right now, and my guess is that he is not finished pulling BS.

Three panels of 65 jurors each of 3 days in a row - ended up getting 12 to 13 qaulified folks per panel because people answered truthfully - they cannot consider probation in an accusation that someone sexually assaulted a child. Moreover, most people want to hear both sides of the story. It is true. The judge was perturbed that even the lawyers on the panel were saying they could not give the accused the benefit of the 5th Amendment right to remain silent. I understand completely.

If you have the classic broken cookie jar, and two children - you are not going to just get the explanation from #1who is accusing #2; you are going to give #2 the opportunity to explain. Right? And if #2 says, "I exercise my right under the 5th amendment to remain silent" what is the result? #2 gets the punishment. Be real. You know that is how it is.

I read some of the connections the Jury Vox suggests on twitter. I find some of them quite insightful & I have to admit, I used a couple of the suggestions or incorporated some of the thoughts into my voir dire.

I also watched a great video of a guy who asked jurors where they were going to put their feelings if they were "setting them aside". Typically the judge gets the panelists to agree that if they have feelings, that they will "set them aside" & "follow the law." Well HELL YEAH - they aren't going to tell this judge in the black robe sitting beside them that THEY aren't going to follow the law - heck, they don't want to end up in that seat beside me, for goodness sake.

So I asked - where are you going to set those feelings? On the floor? On a table? I got them to agree they have had those feelings a very long time and that their reaction, not considered answer, is that they want to hear both sides.

My client IS going to testify, but that discussion got people talking & it lead to answers on other questions where "follow the law" is generally the hammer used to get people to be dishonest about their feelings.

Got to run - trial to continue preparing for. Lawyers who read - think about asking where the jurors are going to put their feelings when they "set them aside". Get them thinking. I reminded them several times that while they sit out there as a panel, they are sworn only to tell the truth, and that they have constitutional rights including freedom of speech. But once they make it onto the jury, they will be sworn to follow the law so voir dire is the time to let their REAL feelings be known & considered. You might be the very best juror in another case - say a theft - but this in this type of case your feelings are such that you are not the best [& then we have to find the legal reason that can get them struck for cause.]

Regardless of what happens in the finality of this case, I feel that I did the best voir dire I've ever done (especially 1 & 3). [In great part because I did not take notes - I left that completely to Matthew Darby who volunteered in HCCLA's #2 chair program to give his time in exchange for me teaching him. I definitely think he is getting his time's worth. I share it all with him & I listen to his feedback. He is insightful.]

P.S. I know that many of you will think I got stuck with the liars who are still going to be against certain things. This is possible - but I feel that since my client is going to testify, and we are going for broke [not guilty] because I do NOT think he is guilty - that we have a good jury. Hard cases these are, but not absolutely impossible. I pray that I am guided to do that handle the balance of the case in such a way that this man walks. THAT would the rightest thing to happen yet in this case.

Thursday, June 11, 2009

Why Does the U.S. Imprison So Many? It Has to Stop!

According to an article in Parade magazine back in March, one out of every 31 adults in the U.S. is in prison, in jail, or on supervised release. That is astronomical. That number, by the quote, appears not to include those who have been released and are no longer are on any type of supervision. I wonder what those numbers would be.

Further, according to the article, the U.S. has by far the world’s highest incarceration rate at 756 inmates per 100,000 residents which is nearly five times the average worldwide of 158 for every 100,000. THAT number is just those who are currently in jail or prison.

So, what’s up with that? Are Americans really so bad that we have to lock so many up to be safe? To be free? How free is that?

The article also stated that 47.5% of all drug arrests in our country in 2007 were for marijuana offenses. More importantly, nearly 60% - OVER HALF – of people in prisons serving time for drug offenses had no history of violence or significant sales of drugs. In fact, four out of five drug arrests in the U.S. were for possession, while only one out of five were for sales. Clearly we are not slowing the traffickers down by busting the addicted (who many times are the mentally ill trying to self treat.)

What is the answer? Having practiced in Harris County & read about the goings on here, I would bet (I have no numbers) that this county has a greater percentage of the possession arrests per capita. I know that I have read statistics that we have the highest revocation rate in the State of Texas. That is no surprise to me.

At one time, according to a former chief of police, he had encouraged officers to essentially “handle” residue cases but politics, being what they were, resulted not only in that suggestion being ignored, but the chief was indicted (on another matter).

Current DA Lykos has generally proposed a pre-trial diversion method of handling DWIs. Again, I do not know the numbers but I do not think this effort will make any significant difference in the jail & prison populations. (I am not against the idea; I just question what cases might receive such an offer – one that should be dismissed?)

How about having officers issue summons on residue & marijuana cases like they do in other cities & states? How about reviewing the case for a 60 or 90 day reset with a dismissal to be the prize if the party can pass a couple of unscheduled urine tests? How about a contribution to Crimestoppers as a condition, in lieu of posting a bond? (Bondsmen won’t like that suggestion, I am sure.)

We need to get the numbers down. Our citizens are not worse than other countries – no way. Yet, in this home of the “free” – we are locking them up by the numbers. What gives? (I can answer that – your tax dollars give & give & give - to support those incarcerated AND to support those who can't get jobs because of their criminal records.)

Wednesday, June 10, 2009

Fake driver's license in Texas - watch out!

I recently had a client charged for having a fake driver's license which she used to get into a club (which allowed her to buy drinks.) The State, as they do from time to time (to time to time) overcharged her. What do I mean by that? They charged her with a crime higher than they were allowed to charge her by law.

Texas law provides a pari materia rule which says, essentially, that if there is a general charge that can fit an act, and there is a specific charge that also fits, the charge must be the specific one. Sometimes it is a higher charge & sometimes it means a lower charge - but that is the rule. That makes sense, right? Why would the legislature make the specific law if they didn't want it followed - right? (Don't get me started on that. . . )

Unfortunately for this girl, a night on the town ended up much worse than it should have. The girl put money on the bar while she awaited her (illegal - yes) drink. It was quite crowded. A woman down from her reached over & took the money. Apparently the woman was a regular, and she denied the theft. An argument ensued and the bouncers, who knew the thief, decided to recheck client's identification. This act led to the discovery of a flea market i.d. & the calling of the local blue team.

Now, because the girl was under 21 & had not been convicted of this (or any) offense before, she should have been charged with a Class C misdemeanor. (This is the LOWEST level offense in Texas - it like a traffic ticket, for Pete's or Sally's or whoever's sake!) Instead, the officers & whomever was working intake at the district attorney's office did NOT know the law, and she was charged with tampering with a government document - a FELONY.

(You would think that officers working the night shift might run up on this activity on more than a few occasions but in their defense - the prosecutor is supposed to be there [as I understand it - having never been a prosecutor] - to tell the officer what is a good arrest, etc., including what the offense is.)

So, down to the jail she goes. What effect did the lack of knowledge of the law have on this girl? A much, much, much higher bond, & of course there are the attorney fees which are generally higher depending on the case &, for me, the court in which the case fell. [I tend to charge a higher fee to represent clients who are in courts where I know I'll be treated like - uh - crap because I'm not Wal-Mart & I can.]

(I won't disclose the fee but she is LUCKY she found ME.)

I did some research, copied the law & went to take it to the prosecutor in court. He had no idea what the law was and had ALREADY SENT IT TO GRAND JURY to be presented as a felony. WHOA. In fact, he told me that it was going to be presented THAT very day.

SO, I run (literally) down to grand jury where they tell me the case is NOT at the minute unless the ADA "in there with the grand jury" has it - nope, can't interrupt but I can run to another floor (which anyone who knows the Harris County Criminal Courthouse knows means running to wait forever for an elevator to come) & trot to the office of the ADAs who present to the grand jury to see who has it. (Guess they didn't like that I interrupted what appeared to be a chit chat session. They couldn't make a call which would have taken 1/10 of the time it took me to get an elevator . . .)

(As an aside - prosecutors from the court can take their cases to the GJ themselves or turn them over to the GJ prosecutors whose primary job is preparing & presenting to the GJ, or obtaining info the GJ requests. I don't know the exact rules - I've never been a prosecutor.)

Anyway, there were no ADAs around but the nice ladies checked the case number, found who was responsible in their office for the case (thank goodness it was NOT the person up in GJ! but the person was "out") The ladies made me copies of the relevant law I brought (including code & case site - I didn't bring copies because I, stupidly, expected a quick dismissal - no big deal) for the ADA who would present. I do not know who presented, but the case was no-billed. (Seems only fair as this girl had spent several days in jail trying to raise bail when she could have posted it herself if she had been properly charged. So - she is out the money she paid for the bond & she sat in jail WAY TOO LONG - you know, that jail in which people DIE.)

(Another interesting aside was when I spoke with the chief prosecutor in the court after speaking at the #3 & was trying to explain the doctrine before I ran to GJ - I was treated like I was stupid. Seriously. She said she knew what the rule was, but it was obvious she didn't know the application to this type of case. I probably pointed it out a little forcefully or something but hell, you would think that as the chief of a felony court, one would have come across this kind of behavior in this huge city at least a dozen times! And, no - "oh that is terrible. Let me help you ensure a further wrong doesn't happen. Let me call the GJ." Nope, just a glare.)

There are a number of points in this tale that I brought up, but one final, major point is - this is why I can do what I do. Because I do care & this girl did not need to be punished as a felon for what she did - I'll bet there are lots of your kids who have either done it, or will do it when they get to the right age. (In fact, I'll bet there are more than a few of you who know where that booth is at the flea market from your own experience!)

I have another good no-bill story that I'll tell next. It has been a great couple of weeks for me in no-bills & dismissals. No-bills are not very common. I wonder if the GJ prosecutor knew the law before I brought it down to his / her office? . . . . .

Tuesday, June 9, 2009

Cynthia Henley - Defender of those who cannot speak for themselves

One of my passions is helping take care of animals - specifically Boston Terriers - who are abandoned or recovered from a breeding pit. It just amazes me how absolutely cruel people can be. For example . . .

Today there was a call from a girl who was allegedly moving to an apartment & couldn't keep her dog of 11 years! 11 years!!!!! She was threatening to take it to a kill shelter (in an effort to make those who volunteer feel compelled to jump & figure out what to do. We are above capacity - we have a shelter, we have our own kennel & many, many of us foster while the baby waits for their forever home.)

How could someone who has had a dog since it was a puppy just move to an apartment that doesn't take pet - 11 years later - & decide the apartment was more important that the pet. This loyal animal who depended on her - who welcomed her home every day with loving licks & yips of excitement. This BT who thought that his owner was the best of all - because she loved him.

I cannot write more on this because frankly, it makes me so sad I cannot deal. It makes me want to punish (which is weird for me) the offender - to take this girl down to the kill shelter & lock her in the cage & say, "Is she next?" [Actually - that sounds familiarly like what we do to people, especially in Texas.]

I have nothing for this girl - nothing. I don't know her but I'm trying not to hate her, not to wish bad things on her, not to send her bad vibes & kharma. She is not like those who lost their homes & have nothing (which I STILL do not understand abandoning a pet to starve to death which is happening a lot in foreclosures.)

I have a few names I'd like to call her & a couple of things I'd like to do, but instead I'll share with you -

PLEASE - spay, neuter, don't take a pet that you don't intend to keep to the very end. (You don't want to be thrown out when you get old, do you?) Adopt, don't buy. And, take care of your pets - this is heartworm country here in Texas. If you don't want to spend money on them - DON'T GET ONE.

Kripes, I'm pissed.

A Pet's Point of View - a different type of blog from me

I stole this from someone at the BT Rescue group I volunteer with but thought it quite good. If you love your pet, it should bring a tear:


1. My life is likely to last 10-15 years. Separations from you are likely to be painful.

2. Give me time to understand what you want of me.

3. Place your trust in me. It is crucial for my well-being.

4. Don't be angry with me for long and don't lock me up as punishment. You have your work, your friends, your entertainment, but I have only you.

5. Talk to me. Even if I don't understand your words, I do understand your
voice when speaking to me.

6. Be aware that however you treat me, I will never forget it.

7. Before you hit me, before you strike me, remember that I could hurt you, and yet, I choose not to bite you. (Think about this one seriously.)

8. Before you scold me for being lazy or uncooperative, ask yourself if
something might be bothering me. Perhaps I'm not getting the right food, I
have been in the sun too long, or my heart might be getting old or weak.

9. Please take care of me when I grow old. You too, will grow old.

10. On the ultimate difficult journey, go with me please. Never say you can't bear to watch. Don't make me face this alone. Everything is easier for me if you are there, because I love you so. (It may be hard, but you love them & they need comfort.)

So you all know, I adore my babies & am a foster mother to a BT displaced by the Hurricane Ike. He is still waiting for his forever home. I've worked with him to help him overcome many anxieties - and he was definitely a biter. He is SO much better now, and looking for someone who deserves him.

We have many adoptable pets, and there are many rescues. Remember - adopt, don't buy. Check out for all kinds of pets.

Have a great day, & hug your furry loved ones.

Sunday, June 7, 2009

How Can They Prosecute Guys When 14 Looks 24!

On a recent outing I realized that I have no idea how old people are. I mean, I know when they are OLD (like me - clearly above age) but when they are young - how old are they? My 16 y.o. daughter gets mistaken for being in her 20s - A LOT! My just turned 21 y.o. is mistaken for being a lot older. (Well, she is 6'1".)

So, if a girl say - 16 y.o., tells a guy - say 20 - that she is "old enough" or that she is 18 or 20 & they have consensual sex - what the heck?! I mean - too many times it truly is the girl leading the guy down the path. Why did she lie in the first place? It is not her first time, right?

So, guys (especially - I am being sexist but this is a fairly sexist law - although I do know they prosecute teachers for female on male) should be checking i.d.s. But then what about these girls who have fake i.d.s? What about the girls in bars, drink in hand (which indicates 21 or older in Texas) - should a guy be held accountable if he was mistaken in that way? He IS accountable under the Texas law.

Used to be that you could tell a young girl - you could tell by the lack of makeup (or minimal makeup), & you could tell by clothing that covered them. You also knew because they weren't in bars. Today, as a friend noted on FB, girls go around looking like hoochie mamas. (Another said that her husband called them prosti-tots.)

Where are these girls parents? Who buys, lets them buy, or lets them go out, dressed that way?! And why are they in bars acting like adults?

What's the answer to this? It is puzzling, and seemingly not very fair in many circumstances.

Oh, and by the way - I don't want to see the guys with their pants "sagging" halfway down their butts or their underwear showing. What the hell?! Pull your dang pants up. Who is letting their boys go out like that? Every time I see someone dressed like that I wonder (1) how many times their pants have fallen down & (2) how uncomfortable that must be.

[I don't hesitate to tell my clients I, nor the court has any interest in seeing boobs, cracks or underwear - dress appropriately. I have even been known to make that a condition of my contract. ; 0]

Just some food for thought.

Wednesday, April 29, 2009

Team court & prosecutrix v. me - last in the series

First, if you want to read my blog posts about this trial from the beginning, you have to go back to March. There are 10 posts about this trial, and none are that long. : ) (I had someone comment on yesterday's who did not realize there were more. In fact, she helped me in jury deselection - which is really what it is - choosing those we DON'T want v. choosing those we do want.)

Anyway, rarely do we sequester a jury. Sequester means make them stay together until verdict. That is more court t.v.ish - jurors get angry & sometimes rush to a verdict which is not often good for the defense because it is the little things we often rely upon; the judge makes your life hell, etc. But, it is available to us if we think it proper.

It was odd that the judge asked me before this trial if I was going to want the jury sequestered. I said probably not, as I have never done it before & had no expectation of doing it now - this was supposed to be about a week long trial (including starting after daily docket & all). It stretched & stretched & stretched. The judge said we had 7 days of testimony. When I've orally told the story in the past, my memory told me it lasted over the course of 3 weeks. (It actually felt longer.) It was definitely the longest state (non-federal) trial I had ever been involved in!

So, here we are the Tuesday before Thanksgiving. The judge had already said she was taking Wednesday off. It was early afternoon. We finally finished the jury instructions (which took forever - the reason being that limiting instruction I previously talked about. Now that she was trying to put it in writing, she could see the folly in her oral instruction, as could P who called her quote appellate section to be told she was WRONG. The case I provided was not enough - no. Anyway, I digress.)

I express concern about arguing & then letting the jury go FOR SIX DAYS!!! (The timing was so bad, but I just cannot believe that she is going to make us argue & then let them go home. They wouldn't remember anything!)

Remember, my client's freedom is at stake - he could get life in prison for this bunch of hogwash! I have fought, & fought hard against The Team, but the timing I just could not help. (I was trying to think of other witnesses I could call - but I had exhausted all & P who deserves no number had chickened out of calling additional witnesses after I got ahold of her extraneous complainant.)

The Court: ...And I just don't think it's fair to the jurors not to get as far as we can today. (Believe me - she is not kidding. She is thinking voters, not potential conviction & life imprisonment. She doesn't hesitate to send people away on a daily basis.)

Me: I am going to request to sequester the jury if we turn the case over to them.

The Court: (read with utter disbelief & complete disdain for me) You're going to sequester the jury over the Thanksgiving holidays?

Of course, I'm not the one doing it - she will. Now she is M A D, mad! Me: Yes, Judge. Over a six-day-period where all kinds of discussions can take place, yes, ma'am.

Now before you think badly of me - remember - all that I asked was to let the jury go (it was about 2 or 3 in the afternoon) and have them return on the following Monday for argument. SHE wanted us to argue, and then if they did not reach a verdict in about 30 minutes, have them return on Monday. Not much of a difference really but a HUGE one for the client. But, The Court was trying to find some way to make me pay for protecting my client.

So, she brings in the jury. (I'm sure that I reminded her that the jury was not to know who asked for them to be sequestered but that is not in the record for some reason. You, having read the prior posts, know why I would have to ask the Court to follow the law & not snitch me out . . .)

The Court: Members of the jury, the charge is almost ready. We have two minor typographical errors to fix, that won't take too long. However, the jury has been sequestered. (Just a little white lie, I guess.) That means the jury will not be allowed to go home while you're in deliberations. You'll be put up in a hotel. Sequestration is mandatory if either the State or the Defense requests it. So if either the State or the Defense requests, it's not discretionary with the court. (She's trying to put it on somebody but herself when in reality it is her - she is the only one pushing to have argument that day.)

We're willing to work late today; that is, until you reach a verdict. We'll get dinner, one way or the other, and we'll send you to a hotel so you'll have to call somebody down to bring your suitcase and so forth. Potentially, I guess we could work late tonight, all day tomorrow, late the next night and then we'd end up on Thanksgiving day. So I guess potentially we would be down here on Thanksgiving day. (Boy - she is really making this a big deal. HHHHmmmm - and whose fault would that be? All I asked was to wait until Monday to argue. Jurors are eyeing P & me to see if they can figure out who the culprit is. I'm waiting for the client's ex to shout out - it is the fault of that stupid ex husband of mine. All faults in life are his! HA! I had told my client not to make ANY faces whatsoever. I didn't want to give our side away - and you can bet that I was carefully watching The Team to make sure they weren't making googoo eyes or something.)

The Court continues: The staff and I are willing to do that. (Well, another stretch of the truth. SHE is the only one who wanted Wednesday off. None of the jurors had expressed concern about Wednesday.) You've been here so long (I didn't see it but I wouldn't be surprised if I didn't get a look shot my way), we'll be willing to do that if finishing is in the realm of possibility. (You see - I think it really is within the realm of probability IF we don't take off Wednesday - for The Court's cooking convenience. I felt at that time that at a minimum, I had a hung jury. I felt a couple of the jurors weren't buying into the BS, & would make it known pretty quickly.)

The Court continues: The other possibility is to send you home now and then to have final arguments Monday morning. So it's your choice -- would you all like to step into the jury room for just a moment ... (and she tells them only to talk about when they want to hear argument with the constraints she has just listed. But, she looks good now - she is protecting their Thanksgiving holiday from one of us mean lawyers - like she figured out how to get around our little game . . .)

I then get my hiney chewed out because I didn't mention sequestration earlier. Mid-chew, bailiff comes in and says they want to come back Monday. I can't blame her but she asks if I will want the jury sequestered then, and I tell her no - ME: My concern was with the six-day lapse in time. The Court: Are you likely to change you mind on Monday. Me: I am not likely to change my mind on Monday.

I have to tell you that the bailiff and the process server loved this trial. They thought it was funny that I did not let The Team just run right over me like so many lawyers do, and they especially liked the sequestration threat I made. But they told me what a great lawyer I was & how much they respected my work, blah blah. (They still swear I am the most hated lawyer in that court by The Court even though this trial was several years ago.)

I know I have written this in a smartie panties way - for entertainment, really - but I was NEVER disrespectful. I never played outside the rules. I tried my best to be cooperative. But, first and foremost, my client's freedom was at stake and truth and justice just could not be found in that courtroom. And while The Court didn't think I had some special knowledge to know my client was innocent (remember - I had the greater self-righteous attitude as discussed in an earlier post), I had spent MANY, many, many . . . hours with this client, with the family, and I knew - I know - he did not do this.

I also knew that The Court was not letting in ANY of my defense - NONE. All I had was cross - which wasn't bad, I must admit. But, I would have had a not guilty if I got my stuff in, and because the c/w & c/w2 told so many lies, I figured that if there was a retrial after a hung jury, I would just completely kill them.

The moral of my hours of effort in writing up this trial experience was not only for entertainment, but to encourage especially the less experienced lawyers not to let the trial crap get you down; to fight the good fight & keep fighting. Think outside the box.

And, for everyone - be a great juror. Listen closely, and use all your common sense. So many times after a trial, prosecutors run in & tell jurors all the bad stuff that didn't get in - like priors, etc. (which frequently are unrelated & do not mean that the person is necessarily guilty), but it happens to the defense, too, just like it did in this case.

Don't guess about what you are not hearing - but do take a stand, while listening to the discussions among the jurors, and stand for what you believe. If you believe the State has proven every element beyond a reasonable doubt, so be it - it is a guilty verdict. But if something just isn't right - ask yourself if you have a reasonable doubt because of that. Reasonable doubt has no definition but what you apply to it.

Finally - when you get that jury summons - GO. We need good jurors. We need good listeners. We need people with common sense.

HHHhhhhmmmmmm - what shall I blog post next? Suggestions? : )

Thanks for reading.

Tuesday, April 28, 2009

Team court & prosecutrix v. me - trial fun 9 (of 10)

I am crossing the extraneous complainant (about which I had no notice as required by the rules. She admits she talked to my client's ex-wife a couple of weeks before the trial began but just decided she wanted to testify. Client's ex-wife was there every day & hated client. So, uh, yeah, right. I'm believing that. DUH.)

I do not believe her any more than I believed the complainant for numerous reasons. And, I do not have to concede their stories when I am talking - do I? Well apparently the judge thinks I do. P (the PNDL who deserves no number) objects that I am being argumentative in the phrasing of my questions when I ask, ME: And were ya'll on the couch, by your allegation, when he was rubbing himself on you, or on the floor? [For my Northern area readers - I know you are not believing I actually said ya'll - but I did, and I do. That & this Texas accent are how my jurors know I'm from 'round these here parts. Gosh that made me laugh when I was editing. Hope you are, too.]

So, the judge asks to hear the question again - of course, this is impossible for me because my mind races so I get close: ME: Were you on the couch when you claim he sexually assaulted you or were you on the floor. The Court: Thank you. (the ever famous phrase) [to P] You withdraw your objection? P: She's changed the phrasing, yes. [Actually, didn't I make it more argumentative?! Anyway, I'm frequently accused of something regarding my phrasing by the judge in this case, so now P is at it.]

Anyway, I began my next question when I am interrupted. ME: Were you on the couch when you say you were sexually assaulted - - The Court: Excuse me. Anytime you say, quote when you say or quote when you claim, that's an argumentative question. MAN - my hearing must be bad because I did NOT hear an objection. So, I take to use the word alleging. ME: You're alleging that Ralph rubbed his [I'm leaving out the specific word for this body part] on you; correct?. . . And when you are saying that this happened, were ya'll on the couch or on the floor? [Guess they gave up because the second question was just after the first . . .]

I mean - this is the way it is done. I do not have to concede that one word this girl is saying is true! Anyway, just some more crap to try to screw with me and thereby screw my client.

I like a short while later when I am asking her about some things that P represented to me & the Court that c/w2 said. She says she did NOT tell P this, and she did not tell P that. Her objection? P: [now remember - read this in a whiny tone!!!] Objection, she's asked and answered it. The Court: Sustained. HA! HA! HA! Yes, P, go ahead & make sure that everyone is aware that you have at least told me that c/w2 said certain things that she did not!!! My integrity continues to remain intact while hers is - in tatters. HA!

You know the problem here - not enough practice. You know how hard it is to remember a lie. Well, these two just did not have enough time for them to practice back & forth (this is frequently called woodshedding) and the girl wasn't a professional witness. If they had had more time, then they could have perfected the story. As it was, things were just falling apart with every question I asked. I had begun really liking this additional allegation because it was so bogus that everyone in the room could smell it. [And I didn't even throw that skunk in the box! P did by going TOO far.]

Normally when a defense lawyer gets finished cross-examining someone like a sweet girl who has supposedly been sexually assaulted & then has to endure the hateful ole' defense lawyer's insinuations or outright allegations that she is lying [during her horrid embarassment in telling the tale], the State wants to fix any little problems and make that mean defense lawyer really pay for hurting such an innocent c/w. Well, not this time. I tore this girl up so bad not only did the State not redirect (ask additional questions) but she immediately rested & did not call the other witnesses that she had. HA!

Next thing is me putting on one of Client's children to talk about how his mother (Client's ex) has been threatening to get people down to that courthouse and testify against Client to ensure conviction. I'm trying to get in some good stuff quickly because I know, from my experience in THIS trial, that once P objects, the party is over. (I'm not allowed to do anything that might hurt the State's case, ya know. Some special rule made up just for this case apparently.)

The Court calls for the jury to retire so she & P can figure out how to keep any impeachment out when apparently a fight breaks out in the hall between witnesses. This case was the biggest cluster you know what I have ever been involved in! In fact, after the jury fails to convict my client, the judge holds a hearing to determine contempt. (The Court even orders witnesses for one side to use the restroom on one floor, and witnesses on the other side to use the restroom on a separate form! I swear! But, I didn't get my evidence in before the jury so I made a bill with several witnesses. I already told you, if Client got convicted, I was sure this case would be reversed. I made sure the appellate court would know everything that I was put through in trying to get this man a fair trial!)

One final posting on THIS case after this one - my threat to sequester the jury, and the court's response. It is funny. Remember - we have had 7 days of testimony that has lasted over a couple of weeks because of The Court's various personal scheduling. . . You will enjoy my only win in this trial. (Okay - not really my only - I got a hung jury & a dismissal which was most wonderful . . .)

Until next time. . .