Wednesday, June 24, 2015

Picking a Jury in Harris County on Resisting Arrest Charges as a Second Chair

The adage is that you win trial in jury selection.

I meandering into Harris County Court 14 the other day expecting to pick a jury for my client's case. It was the ninth trial setting, after all.  Instead, the court chose to go with an a resisting arrest case on its first trial setting. 

No Rhyme.  No Reason.

I just so happened to know the lawyer who was defending the young Puerto Rican accused of resisting arrest.  The poor kid was jumped by a cop and sent to the hospital for some stitches and bruised ribs before he was booked in jail.  Of note, the 5'5 cop who was clearly inflicted by Napoleon Syndrome, was working an extra job at twin peaks.  Knowing the lawyer, and having helped him before in a DWI trial, I helped him pick the jury.

I knew nothing about the case until about 15 minutes before jury selection, but what I did know was my obligation as a second chair.  For any new lawyers that may stumble upon my blog, a second chair is a lawyer who assists another lawyer during trial.  Sometime second chairs take the role of observer and whisperer of ideas.  Other times, second chairs may have the opportunity to conduct examinations and arguments.  I have second chaired murders and sexual assaults to DWIs and simple assaults.  

No matter what, when second chairing, you have to be actively participating by seeing what there is to be seen, hearing what there is to be heard, and sharing your observations and ideas with the first chair.

In this particular resisting trial, my job was to determine who in the jury panel was ineligible to serve on the jury due to a bias or prejudice I identified two issues early on.  First, officer credibility. Second, how might an officer act after he worked a long shift on the job for HPD, then immediately worked a second shift as security.  The first chair, Paul Kendall, had the rest set up perfectly.  

I took tabs on who could not serve on the jury, and the judge agreed that I got them all correct.

As Paul was about to finish his voir dire, he asked me if there was anything else he needs to cover. I said, "Yes, ask the jury how an officer might feel after working his main job then going directly to his extra job.  Ask the jury what might effect the cop's judgment."  He asked and the answers followed. In fact, the first juror to speak said the exact word I was looking for, "cranky."  It was all gravy from there.

We got the 6 jurors we wanted on the panel.  Hell, we even got the guy who was previously convicted of resisting arrest on jury!

It certainly helped that Napoleon Dynamite testified it was as if his commands (to leave the parking lot) fell on deaf ears, because, well, the client was partially deaf.

Two Words:  Not Guilty.  

Congrats, Paul.

Sunday, June 21, 2015

When You Try To Help A Cop And...

He is a total jerk.

I was driving down a dark highway in Cypress when I noticed a bunch of flashing emergency lights.  I slowed down, but I couldn't tell if the center lane was open, and I have bright Xenon headlights.   As I get close to the flashing lights I see some flashlights.  It was two cops.  They were telling me to turn around.

I kindly say, "Officer, I think the Sheriff's car in the center lane needs to be parked in the lane like the others, not parallel. I could not see the car at all."

Cop replies,  "We're just a a bunch of dumb ass cops.  Get the hell out of here!"

What prick.

All I was trying to do was keep the officer's safe, their cars safe, and the public safe.

Cops, if you can't handle the stress of your job, make the world a safer place and quite.

Thursday, June 18, 2015

Assault Family Violence Case Dismissed

While I'm in the groove, I might as well share my latest dismissal with you.   I don't want to get into the details, but the allegations are that it starts with your typical booze-filled evening and ends with a few hits to the face of the driver.  While the car was moving.

The complainant, which is the legally accurate term for a "victim,"  pulls off the highways.  Client allegedly take the car keys and chunks them over a fence.  Complainant flags down officers who slap cuffs on my client and throw her in the slammer, and leave her there for WAY TOO LONG.

So, this is your typical misdemeanor assault case.  There are some relatively bad allegations, o independent witnesses, no eye witnesses, and bad presumptively bad police work.  

What does a criminal defense lawyer do in this scenario.  First, I have a thorough interview with my client at my office, which sometimes includes a scene reenactment so I can see first hand, as good as possible, what went down.   Next, I get and review the offense report.  I don't just skim it an make a recommendation like many lawyers.  I go through with a fine tomb comb.  No mistake, error, or misstatement is to small to matter, at least not as a starting point.  Next, I reach out to the complainant and attempt to speak to him or her.  

If possible, I will get a sworn affidavit recounting the events. Why go through the trouble of getting a sworn affidavit?  Well, the rules of evidence determine how a case can be tried.  A sworn affidavit is made under oath and threat of perjury.  That means that if the person lies under oath when giving the affidavit, that person may be subject to criminal charges for perjury.  The promise to tell the truth and threat of criminal charges makes the document more credible.  Finally, if the witness gets on the stand and testifies differently, I am able to impeach the witness.  What does it mean to impeach a witness?  Impeaching a witness is attacking the credibility of a witness.  Being able to properly impeach a witness is a very important skill that most lawyers do not actually know how to do. Properly.   I do plenty more than this when preparing for a case, but I will leave it here for now.

The good news is that my client's case was dismissed, and she can move on with her life, which includes getting an expunction and clearing her record.

Wednesday, June 17, 2015

The Ballad of Marijuana Defendant

The Dope Defense Attorney

This case has become unreal.  Just unreal. My client was charged with possession of marijuana.  I don't want to give away too much here because I know the prosecutor, who I believe to be lovely and reasonable in her soul, has at the very least looked up body cameras in the local news.  In fact, I think she was kind of impressed that I was quoted in the Houston Chronicle about this particular case

Note:  The Pic Is Not Me Or My Client

Credit where credit is due.  She researched the matter, and dare I say me (although I doubt it), and then tried to get any reference to the article excluded from trial through a motion in limine.  

So, just why has this case become unreal.  Harris County Court 14 works in a peculiar way.  Clients only have three or four court dates, spread out over about 6-9 months before their first trial setting.   Personally, I like this set up.  Your client doesn't get pointlessly dragged into court, and I don't find going to court every month for the same case a useful exercise for attorneys either.  In theory, there should be more cases being dismissed in Court 14, and also more cases going to trial due to the scheduling.  The problem is that cases are not actually being dismissed at the rate they should be.

Well I can tell you what, a whole ton of cases are set for trial in that Honorable Court everyday. While I'm not important enough for court staff to read my blog, I still take a risk by saying that showing up for trial TEN TIMES is inexcusable. It is a war of attrition to get the defendant to plead guilty by tearing away at their finances, will power, and soul.  

My client is innocent and she will not plead guilty for something she did not do.  Hell, there are defendants who may be guilty that want to go to trial, but feel like the government can't make there case, and that is their constitutional right.

Back to the topic.  At my client's 9th trial setting, yes ninth, my client was told to return the next day (third day in a row), only if the judge called her case to trial.  In other words, she didn't have to be at court like the rest of the defendants.  So, I showed up in her stead. Judge Fields, who is truly a likable and well thought judge, calls my client's case to trial.

Ok, so I don't announce that I am ready.  I don't have witnesses and I don't have my co-counsel with me at that exact moment.  The was kind enough to say,  "Counselor, you are great.  You know what you are doing and know the facts of your case very well.  You don't need co-counsel.  You don't even need to go get your file."  As flattering as his statement may be,  commercial pilots don't fly solo, and neither do I.  He reaffirms that my case is going to trial, so I run outside and call my client.   Like the rest of Houston, she had trouble getting downtown in the tail end of a tropical storm.  Too much trouble.

Meanwhile, we have a GREAT jury panel.  I am talking about young and diverse.  It was a beautiful thing.  Two hours later, the judge tells the jury to go home. Judge Fields even proclaimed he had never seen such a good looking jury for the defense and jokingly said he wanted to take a picture with them. The times, they are a changing.  However, My client finally arrives and Judge Fields graciously and justly did not revoke my client's bond because she had been on time the previous 9 trial settings. 

I was so ready to try this case.  Witnesses would have been great, but I won a good couple of battles during pretrial motions, not least including getting a spoliation instruction granted, should I present evidence warranting the instruction, which was likely to happen.  I saw Mike DeGuerin in the elevator and got some words of advice from that legend, and I had some great attorney''s helping me at trial.  The stars were aligning.  It's a shame my client wasn't on time.  

Lesson learned, don't give your client's the chance to mess things up, because they will, and at the worse of times.

Tuesday, June 16, 2015

The Life of Young Criminal Defense Lawyer

It sucks.  Sometimes.  Well, most of the time.  One second you are driving to court in a tropical storm in you 1999 Miata, roof somewhat secured.  The next millisecond, your roof flies off, your arms nearly goes with with it, and you are surprised at how well your car handles under those conditions.
Before (sorta)


"1999 Mazda Miata?! Yeah right!  You're a lawyer!  You're rich!"  No.  No, I am, not.  You see, I try to charge prices that are fair for me and fair for my clients.  The prices I try to charge won't make me rich.  The problem with this game is that my potential clients are always lying to me about their ability to pay, and there is always some asshole skeezbag baby lawyer or older lawyer undercutting me.

It's a fucking race to the bottom 'round here.

Let's talk about one of those skeezbag lawyers for a second.  This particular young lawyer does not appear to do any of his own work.  Anytime he has a question, he asks it on the listserve.  It's as if he has no idea what he's doing, and even worse, he has no idea how to find the answers for himself and be a real fucking lawyer.  The sad thing, the sad thing is that all the numbnuts on the listserve are praising him as some sort of great lawyer.

Let me ask you this, my friends.  How in the WORLD does this baby lawyer who just started his own practice have so many fucking clients?!  Not just clients, but client's already in jail?  Clients just getting out of jail?  Felony clients?  There is only ONE fucking way, and its that he's up to some shady shit, other than wearing fucking jeans to court every day.  Not even nice jeans.  This guy has an inside man.  Someone inside jail and prison getting him clients.  FTMF.

For the record, I think he has been licensed two years but just started criminal defense.  Also,  I used to smash his fiance.

So, back to what I intended to write about.  The type of shit that directly effects me, other than the undercutting skeezbags in the profession.  But before I get there, it's sad that your success rate doesn't necessarily determine your income.

So, I represent a girl charged with prostitution.  Apparently every girl between 17-25 who is charged with prostitution is assigned a special SAFE court prosecutor.  My particular girl was a suspected victim of human trafficking.  So the big problem with SAFE court is that it exists only in Court 7, but the girls are not all assigned to court 7.  In fact, probably 90% of the girls are assigned to the other 14 Harris County Courts.  But wait, there's more.  It get's worse.  There is only one prosecutor that handles all these cases.  Mind you, that Houston is the human trafficking capital of the United States, and one of the prostitution capitals of the world.  ONE FUCKING PROSECUTOR.   But wait, there's more!  The courts on on different floors, and the elevators in the courthouse are horrible.

So if that nonsense isn't enough NO ONE KNOWS FUCKING ANYTHING ABOUT SAFE COURT.  The normal prosecutors know absolutely nothing.  But, I mean, of course the ACT like the know everything!  All they know how to do is hand you a blue pamphlete and misdirect you.   Let's continue.  The court coordinators know nothing.  The probation officers know nothing.  The judges probably know nothing.

So let's think about this.  There is one prosecutor, 14 courts, 5 floors of courts, and dozens of clients each day.  The OBVIOUS SIMPLE SOLUTION is assign all girls charged with prostitution to the freaking prostitution court.  But that would be to easy.  Well, let's think about this.  Maybe the prosecutor would go to the oldest case first.  Nope, can't do that.

So, my client was charged 6 months ago.  We have been to court 6 times.  Each time, has been a pain in the ass.  First the case with with human trafficking.  Then it was transferred to the proseuctors of the court it was actually in.  And back and forth over and over again.  So finally, my girl gets in to the SAFE program which requires her to take an eligibility interview.

So, I arrange the interview, my client shows up on time and does what she needs to do.  Which brings us to my last court setting on this case.  I am not stupid or niave.  I don't show up early.  So I show up when I show up, around 9 930.  My client shows up at 8 when she is supposed to.  I arrive and check in to see if the human trafficking prostitutor had arrived.  Naturally, she hadn't, so I email her.  Or at least the prosecutor from the last 5 times.  You see, these pains in the ass at the district attorney rotate all the fucking time.  So there was a new prosecutor on the case.  Does anyone care to tell me that? No.  Does any one care to let me know how my client did at the interview?  No.

So when I find out who the new prostitutor is, I email her.  I kindly let her know we're in court waiting, and to email me when she arrives.  She tells me she is in court 4, and will be up soon.  I email back saying thank you.  An hour and a half later I email her again.

This is the exact email.
I really can't wait two-three hours every time I have a "human trafficking" case.  This case is six months old and its been played like a yo-yo. I have literally waited over 10 hours just for prosecutors to show up to court. This is beyond disrespectful to both me and my client. 
 This email is not an exaggeration.   Meanwhile, I am across the hall doing some recognizance for an upcoming trial.  When I cross the hall to go back to the court where my alleged prostitute is, I see the human trafficking prosecutor talking to one of her 'girlfriends' all casual and shit in the hallway, while I have been WAITING FOR OVER TWO FUCKING HOURS!

She walks into court a few MINUTES later and sits at counsel table.  Defense counsel table.  She plops down in a big leather chair, then swings around, turning AWAY from me.  So I say "good morning, can we please get to work on this case?"  She swings around like like a bat out of hell and at the top of her lungs, like all female prosecutors, says, "That was the nastiest, rudest thing any defense lawyer has ever said to me!  You don't know me.  You have never done any work with me.  You are completely ridiclous.....blah blah blah."  The second I open my mouth to defense myself to say I have been waiting over two hours she bitches about her job.  I suggest that she be a little repsectful and try to resolve old cases first.  At this point gaggle of geese co-prosecutors who are the normal prosecutors in this particular court jump in and gang up on me.

They were so effective that a defense attorney jumped in and started patronizing me.  To her I said, "You are a court appointed lawyer, basically one of them.  Don't talk to me."  She said no I'm not and tried to talk me down for 10 minutes.  I looked this prosecutor up.  She is one of the top 20 attorneys in the county.. in the sense that she is plea mill lawyer of the day extraordinare.  To her credit, when I showed her the nasty rude email I sent to dea prostitutor she spoke to the the prostitutor.

So, finally to the business.   The prostitutor tells me, "You're client did not go to the interview.  She didn't do what she's supposed to do.  She's not getting in the program."   To which I called out her lie and said, "See, I was right,  you have not worked on this case at all."  She steps outside comes back a few minutes later, without appolizing for lying, which is the least she could do and also the least likely thing she could do, and tells me ok your client has her orientation on whatever date.

It sucks being a young criminal defense attorney at times.  It doesn't matter if your dismissal rate is way above average.  It doesn't matter if you win all your trials and hearings such as I have.  It doesn't matter if your clients are all happy.  One day I will figure it out.