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.
Monday, August 17, 2009
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? http://bit.ly/vxHTG (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.)
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? http://bit.ly/vxHTG (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.
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 http://www.houstonbostonrescue.org/main.php. (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 . . . )
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 http://www.houstonbostonrescue.org/main.php. (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.)
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.
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.
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.
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