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.