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? ? ?
Showing posts with label lies. Show all posts
Showing posts with label lies. Show all posts
Tuesday, September 22, 2009
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.
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.
Monday, April 6, 2009
How Can You Defend Those People?!
Throughout my almost 21 years of representing people accused of criminal offenses, I have had people ask me how I can do it. (I am certain most, if not all lawyers are on the defense side of the criminal bar have heard this question many times.) I have many thoughts on this, and many reasons, but I want to share one with you from today.
Former DPS Trooper Damien Cauley who was assigned to the Montgomery County area decided that he should abuse the position that had been given to him (or earned, at least initially) by stealing. How did he do it?
According to the news reports, this man, in full uniform, and in his patrol car, would target illegal aliens and suspected intoxicated drivers for alleged traffic stops, and then he would steal from them. (Heck, the purported traffic violations were probably lies.)
What could they do? If they are illegal, they cannot complain (you don't need details-you understand), and if they were drinking, they could easily decide that having to pay a little money to the trooper was better than the alternative even if they were not guilty - being arrested, posting bond, hiring a lawyer, going to court - you know - what we call THE RIDE. (You might beat the rap but you can't beat the ride . . .)
So, what you will rarely hear from me is KUDOS to the Rangers & whoever decided to report this guy. KUDOS to the DA for following up and not just walking the case into a no-bill. KUDOS to the Ranger who testified essentially how this trooper was an embarassment - a black mark on all law enforcement. KUDOS to Judge Michael Mayes who sentenced this guy to the maximum for his offense. (He will serve 2 years, day for day - no parole, in state jail.)
But, let me add - it is guys like this and others with whose opinions I do not agree, with whose conclusions I do not agree, and for many other reasons (like protecting citizens against false accusations of other citizens) that I CAN DO WHAT I DO & sleep very easily at night. If it were not for me and the hundreds of other lawyers who do what I do, many of you could not sleep so easily at night. Think about it.
Former DPS Trooper Damien Cauley who was assigned to the Montgomery County area decided that he should abuse the position that had been given to him (or earned, at least initially) by stealing. How did he do it?
According to the news reports, this man, in full uniform, and in his patrol car, would target illegal aliens and suspected intoxicated drivers for alleged traffic stops, and then he would steal from them. (Heck, the purported traffic violations were probably lies.)
What could they do? If they are illegal, they cannot complain (you don't need details-you understand), and if they were drinking, they could easily decide that having to pay a little money to the trooper was better than the alternative even if they were not guilty - being arrested, posting bond, hiring a lawyer, going to court - you know - what we call THE RIDE. (You might beat the rap but you can't beat the ride . . .)
So, what you will rarely hear from me is KUDOS to the Rangers & whoever decided to report this guy. KUDOS to the DA for following up and not just walking the case into a no-bill. KUDOS to the Ranger who testified essentially how this trooper was an embarassment - a black mark on all law enforcement. KUDOS to Judge Michael Mayes who sentenced this guy to the maximum for his offense. (He will serve 2 years, day for day - no parole, in state jail.)
But, let me add - it is guys like this and others with whose opinions I do not agree, with whose conclusions I do not agree, and for many other reasons (like protecting citizens against false accusations of other citizens) that I CAN DO WHAT I DO & sleep very easily at night. If it were not for me and the hundreds of other lawyers who do what I do, many of you could not sleep so easily at night. Think about it.
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