Take that **** to Trial! Crash the System!

Crash the System

End the Plea Mill
A Response of Michelle Alexander's Opinion Piece in the New York Times

     What happens when you throw a wrench in into the gears?  The machine stops working!   The criminal justice system we have is a machine.  The police over police impoverished and minority areas.  Prosecutors charge the suspects under laws that criminalize addictions.  Then the judges set unreasonable bonds.  Finally, most poor defendants are given court appointed lawyers, and about 90% of the time, defendants plead.

    When I was at Gideon's Promise Summer Institute we heard from a man that is revolutionizing the criminal justice system in North Carolina that suggested taking just 5% more of our cases to trial would crash the system.  Sean Maher, the former Bronx Public Defender ingrained a saying our minds "Take That Shit To Trial.  Take That Shit To Trial."  Now we have Michelle Alexander, one of the foremost experts on the civil rights problem of mass incarceration joining the crowd.  The time is now.  The time is now to put a wrench into the gears of the criminal justice system.

     Before we can do that, there needs to be a few major changes.  First, judges need to set reasonable bond.  Here in Harris County, there is a standard bond schedule, and we as lawyers need to make sure it is followed.  I get sick when I speak to a potential client who has a $30,000 bond for his first offense, when the schedule says his bond must be set at $5,000.  Second, there needs to be a statistical analysis of every lawyer who takes court appointments. What does their record look like? Is Lawyer A feeding the plea mill as if the mill needed a plea to stay alive?  What percentage of Lawyer A's clients are pleading on their first setting?  The plea mill lawyers needed to be weeded out. Once that happens, defendants will start to gain confidence and respect for their court appointed lawyers.   Third, prosecutor's need to cut out the "first offer, one day only" crap, as if they are furniture salesmen.   First, it puts me in an ethical dilemma as as a defense lawyer, because I have an obligation to conduct an independent investigation, and I have no ability to do that after only briefly looking at an offense report shown to me moment before the offer.  Second, a decision to plea, even a decision to plea time serviced and a $400.00 fine on a misdemeanor possession of marijuana charge can have life-lasting effects. 

     My motto is "Client Centered | Trial Ready."  I want my clients to know that if I take their case, I will be ready to take it to trial.  I expect my clients to take their cases to trial.  I am bitterly disappointed when they take a plea offer.  We should all be client centered. As lawyers, it is our duty to inform clients, appointed and retained, of what the process looks like and the consequences of every potential play.  I understand that most defendants want to plea guilty, do their days-months-years, and move on with their lives.  Its time for this generation of lawyers; its time for this generation of (non) citizens  accused to challenge the system. We can break the system. We will break the system.  Before long, the police, courts, prosecutors and legislatures will reevaluate and change their practices.  We will end Mass Incarceration. 

 

Houston Hit-And-Run Cyclist Killer Convicted

Bike Killer Convicted – Pedestrian Killer No BilledTwo Justice Systems in Harris CountyDo Minority Lives Matter?The Harris County Grand Jury Says Not.

            Many in Houston have been following the front page worthy trial of Margaret Mayer, the Houston woman accused of killing a cyclist in Montrose on December 1, 2013.  Ms. Mayer was not charged with intoxicated manslaughter because she was not caught soon enough after the crash.  The Harris County District Attorney’s Office instead charged her with Leaving the Scene of an Accident that Caused Death.  In other words, they did not over charge the defendant and she was charged with hit and run.  Ms. Mayer was convicted and sentenced to 15 years in prison.  Was justice served?  Yes, but this again highlights that we have two different justice systems in America and Harris County, Texas.  The system for the white privileged, and the system for everyone else.

ANOTHER CASE OF LEAVING THE SCENE OF AN ACCIDENT

            I want to tell you about another news worthy case, however, this particular case was not prosecution worthy.  I worked for a big time Houston personal injury law firm while I was in law school.  During that enlightening time, I had to opportunity to work on a civil wrongful death case where a nineteen year old wealthy Memorial area girl, Rebecca Bowman, killed a pedestrian and left the scene.
             Ms. Bowman was in town visiting from college. She decided to go to a bar on Washington Avenue.  That would be fine, you know, if she was of legal age, but she wasn't.  So, she used a fake I.D. to get into the bar.  She didn't just go inside the bar, she also drank.  I mean she got absolutely sloshed, or as the college girls used to say, "wastey facey."  After downing maybe a copious amount of alcohol, the privileged little girl decides to hop in her “4,000 pound killing machine” as prosecutors so frequently define cars, when that's the story they want to tell (hint: the D.A. did not tell tell that story).  Ms. Bowman is driving her Suburban down the busy bar and pedestrian lined street with a friend in the passenger seat when Ms. Bowman hits a pedestrian.
             This poor (in both senses of the word) young man, Mr. Dorantes (to show how much disrespect the D.A. had for Mr. Dorantes, she couldn't even get his name right on the complaint, which is just despicable) is sent flying dozens of feet, leaving his shoes where he was hit.  Just like in the movies.  I will never forget the picture of him lying in the middle of Washington Ave., and his skull looking like someone took the tool used to kill cattle and put it in the center of Mr. Dorantes’ skull.  His brains and blood were spewed about the street.  Ms. Bowman continued drive several blocks until she was pulled over, despite, if I remember correctly, her passenger telling her to stop because she hit a person.  If I recall correctly, Ms. Bowman also told police she thought she may have hit a car.

            Ms. Bowman’s blood sample reflected that her blood alcohol level was over a .15.  Here is where it gets interesting, and where we have to scrutinize the Harris County D.A., and question, YET AGAIN, is whether there are two systems of justice:  One for White Privilege and One for Everyone Else?  The D.A. "presented" Ms. Bowman’s case to the Harris County Grand Jury.  The D.A. was “interested” in pressing charges against Ms. Bowman for Leaving the Scene of An Accident Involving Injury or Death, and Intoxicated Manslaughter.   

GRAND JURY NO BILL

            GUESS WHAT!?  SURPRISE! SURPRISE!  The Grand Jury returned a NO BILL!  In layman’s terms, Ms. Bowman was not charged with either felony.  Instead, she was charged with DWI > .15 BAC, a class A misdemeanor.  Curiously, the Harris County District Clerk’s website does not say how her case was disposed of, fishy fishy.  I have never seen that before.  Just read this Houston Chronicle article, and you will learn that the Assistant District Attorney refused to discuss the case, I wonder why?  NOT.  Because it was a miscarriage of a justice! For heaven’s sake, the defense attorney is quoted as saying, “It was a horrible, unavoidable accident.”  Well, um, the law is called leaving the scene of an accident…. AM I MISSING SOMETHING!?  I mean, that is an admission of guilt, right?

            We have heard this a thousand times in the last month, A PROSECUTOR CAN GET A GRAND JURY TO INDICT A HAM SANDWICH, but the prosecutor could not get the Grand Jury to indict a 19 year old girl who used an illegal fake I.D. to get absolutely wasted at a bar then drove and killed a man, then left the scene even though her passenger told her she hit a man!  You are telling me that there was not probable cause to bring charges and turn this incident into a formal, adversarial matter?! ARE YOU FREAKING KIDDING ME!?  IT IS CLEAR, there are two justice systems in this county.  Let’s review.

            Case A: Rich 19 year old girl uses illegal fake I.D. to enter bar on Washington, get wasted, and hops in Suburban to drive off.  She kills a pedestrian and continues driving without returning to scene.  She is caught mere blocks away with blood alcohol level is well over .15, a Class A Misdemeanor. (Caught red handed, yet not prosecuted).

            Case B:  Woman leaves bar in truck, allegedly hits biker who is not wearing proper clothing or helmet and continues driving.  She fixes damage to her truck that may have been caused by another accident.  Found several days later and charged with leaving scene of accident causing death. Convicted and Sentenced to 15 years in prison. Bicycle lobby pushes hard for conviction.  (Charged. Convicted. Public Enemy #1). 

            There are a few reasons that led to these different results:

1)    The “bike lobby” aggressively pushed for the defendant in case B to be charged and convicted
(front page of the Houston Chronicle has a picture of a cyclist hugging the victim’s father.) Would
this case have been so news worthy but for the cyclist lobby?  Do minority communities need to
demand equal justice from credible sources, instead of the Quanell X’s of the world?

2)    The deceased in case A is a poor Mexican.  Does the  District Attorney not value the life of a poor Mexican the same as American, white and wealthy girl?

3)    The deceased in case B is a white American girl.

4)    The suspect in case A is a rich white girl.  I mean, aren't rich white girls allowed to make fatal mistakes and not be punished?

5)    The suspect in case A was represented by a former Harris County Chief Assistant Attorney (a certain amount of nepotism perhaps) (note that the defendant in case B is represented by the self-proclaimed best lawyer in the world).

            Look at the facts, and you can see there are two different justice systems in Harris County, Texas.  There is one for wealthy white girls, and one for poor Mexicans.  Isn't it ironic that when the white girl is the victim, the poor Mexican gets crucified, yet when the poor Mexican is the victim, the white girl gets vindicated? (Note: no poor Hispanics involved in the Mayer case.) It makes me sick.  Let’s bring more light to this troubling problem.  Let’s change the way the system works.  

Cory Roth
713-864-3400
CoryRothJD@gmail.com

Time for a REVOLUTION: If a Cop is a Suspect, an Independent Special Prosecutor MUST Be Assigned to Prosecutor

The police have run wild.  They are the American Gestapo.  All harm, never a foul.  The police are the biggest, most well-founded, best organized gang in These United State of America, and they have bought the law.  The police have bought the law with their money, their unions, their lobbyist, their connections, and their relationships with every prosecutor in the nation. The police are above the law in These United States of America in 2014.  It is time for a change! It is time to take back the reigns of justice from the crooked cops and prosecutors and place them in the hands of an unbiased and independent Special Prosecutor in EVERY SINGLE CASE involving a police officer.  That is the revolution.  That is the solution. That is the only way that lady liberty can even dare remain a beacon of hope for justice.  

Police are rarely charged for their abhorrent and illegal conduct.  When they are, they receive sweetheart deals that no one else gets. Think about it why criminal cops have it made on easy street:

• Prosecutors rely on police for everything.
• Without police there is no arrest.
• Without police, there is no investigation.
• Without police, there is no evidence.
• Without police, there is no confession.
• Without police, the prosecutor does not have an easy job.
• Without police, the prosecutor does not have a job.
• Prosecutors mistakenly think any given cop on any given case is her client.
• Prosecutors mistakenly think that any given cop is part of her prosecution team.
• How many times has a prosecutor ever cross-examined a cop? NEVER
• How many times has a prosecutor questioned the quality of a cop’s work to his or her face? NEVER
• How many times does a prosecutor attempt to clean up crap police work and justify not following procedure in any given trial? NEVER
• How many times has a prosecutor had to treat a cop as a hostile witness? How many times has a prosecutor impeached a cop? NEVER
• The exact opposite is true: prosecutors make a living by cleaning up the messes cops create.
• Prosecutors make a living by trying to rehabilitate a cop after he was caught in a lie on the stand.

Think, just think about the relationship between cop and prosecutor.  The police have a large strong union and a pack mentality.  If you piss off one cop, you likely piss off the whole bunch.  All of a sudden, the police community stops doing what you wanted it to do.  All a sudden, the police make the prosecutors job a hell of a lot more difficult.  All of a sudden the police start following the law and stop coercing confessions and witness statements.  All of a sudden the prosecutor’s best friend is now its enemy!

What is the best possible way for the prosecutor to piss of the police? Do her job when the cop is a suspect.  That’s right, the best way to alienate and piss off the police is to indict them.   You know the old saying that a prosecutor could indict a ham sandwich?  Well, it’s true.  All that is required to indict someone for a crime is a probable cause to believe they committed a crime.  That means there must be a sufficient articulable reason to believe a crime was committed based on facts and circumstances.

If a client walked into my door right now and said “Listen, Cory, I went up to this guy and bothered him even though he didn’t do anything to me, or anyone really.  He was just minding his own business. But I decided to come up to him from behind and perform a choke hold and I killed him while like 5 other friends were jumping in and helping me take him to the ground.  You know, I’m trained in martial arts and hand to hand combat and I know that a choke hold can kill someone, especially if they have health problems.  And get this, the guy I was choking to death, he was telling me “I can’t breath” over and over again, but I didn’t let go, even after my gang subdued him.  Do you think I’ll be indicted?”  I’d say, “Yes, and you need to call the best lawyer in town.”

Now if a cop walks into my office and says the same thing, I honestly say, “No, you are a cop.  Cops never get indicted.  You’d think it would be a potential hazard of the job, but it’s really not.  You see, you already have a lawyer.  It is the prosecutor, and she is going to present case to the grand jury and do everything in her power to make sure you are not indicted.  You are in safe hands.”

This blog post is not about black lives. It clear that a black life is not worth as much as a white life in These United States of America, but listen up my white and otherwise privileged friends and acquaintances.  Poor black Americans are not the only people brutally murdered by the police without justification, the police kill people from all walks of life, although they are often poor and have mental and psychological issues.

Those in power, those hiding behind the shield of a badge and job duties MUST be held accountable.  They MUST be held to the highest standard. There is no way that police can be prosecuted by a person employed as a prosecutor.  There are problems inherent with a prosecutor prosecuting a cop.  Not only is the prosecutor put in an awkward position but there are ethical dilemmas also.  Shouldn’t a prosecutor recuse himself?  Doesn’t he have a personal relationship with police?  Doesn’t his office rely on the police?  Aren’t they both employed sometimes by the same city, county or state? Aren’t the police and the prosecutor’s office considered to be the law enforcement branch of the government?  Don’t the prosecutors even consider the police to be part of their team?  THERE IS A CLEAR AND UNETHICAL CONFLICT OF INTEREST THAT MUST REQUIRE THE PROSECUTOR TO RECUSE HIMSELF IN ALL CASES WHERE A OFFICER IS A SUSPECT.

For example, consider the Texas Constitution, Article 5 as a guidepost for whether a prosecutor should withdraw from a case where a cop is a defendant.  It concerns judges.  Section 11 states that a judge is disqualified if:

• (1) the judge has a financial interest
• (2) the judge is connected to the party by affinity or consanguinity

Before I continue, remember that a judge is supposed to be impartial, while clearly the prosecutor is an advocate, but she MUST advocate for the position that the suspect committed a crime.  Allow the defense attorney to defend the suspect.  So here it is, prosecutors have a financial interest in all cases involving police suspects: police arrest people.  If there is no arrest there is no case. If there are fewer cases, there is not a need for as many prosecutors.  Prosecutors are financially interested.  Second, as said above, prosecutors are friends with the police and rely on their union and support.

We need an independent special prosecutor for every case in which a cop is accused of committing a crime.  Join me in support of this demand.

Cory

Winning a Felony Motion to Suppress in Houston County, Texas

LISTENING IS KEY...AND GAMBLE

My luck continues with another win.  This time, it was a motion to suppress.

I took the relatively scenic drive north from Houston to Crockett, Texas in Houston County, Texas, color changing leaves and one stop light towns and all.

I was asked by a fellow lawyer to conduct the examinations and argument in a motion to suppress into what was clearly a race based traffic stop that resulted in felony charges of tampering with a government document.

Mexican client was driving down a two lane highway in a pickup truck with aftermarket tail lights. Local Trooper was driving in the opposite direction when he claims he sees that wire was obstructing client's license plate.  Trooper pulls my client over, who is driving between two trucks, each towing trailers without license plates (Trooper doesn't pull them over, obviously).

Trooper immediately takes client out of the truck and asks him a barrage of questions. Client gives a false name in tattered English and cannot provide a license.  Insurance does have his name on it. Trooper tells client to stand near the back of his truck on the driver's side and immediately searches the cabin of the truck.  I am talking about everywhere: seats, under seats, behind seats, map pockets, and glove compartments. Trooper testifies he is conducting this search for his own safety. Trooper then cuffs client and leaves him in the same spot before going to the passenger sides of the truck to continue his warrantless and search.  Finally, Trooper finds pay stubs for several different people.  Trooper then calls client's employer and dutifully brings the social security card my client used to get his job several years ago.

This cop was your typical trooper/former trooper near the end of retirement.  He was smart, but he was too smart for his own good.  He spoke too much for his own good.  On direct by the state, he babbled and babbled and babbled.  I had to come up with a strategy. Do I try and control this seasoned cop in this rural courthouse?  Or do I risk letting him get himself into trouble by speaking too much?  Well, I did a little bit of both.

My opening question poked fun at him for thinking my client may have been a terrorist.  After pissing him off, I sort of let him go because he was now hell-bent on beating me.  He was so focused on talking and his elaborate story that when I asked him in a leading manner if my client was under arrest when he was cuffed, he just said "yes, he was absolutely under arrest."

A moment later, he asked to correct something he said, and there was no way in hell I'd let him do that.  I simply confirmed that he continued to search the truck after my client was placed under arrest, and that during the continuation of the search is when he found the evidence that caused my client to be charged with a serious deportable felony.

The Honorable Judge up there did the right thing and granted my motion to suppress, not on the stop, but based on the search, which I take greater pride in.  It sure was a breath of fresh air to see a district attorney not make frivolous arguments based solely on her desire to make quota or one up his cohort in the office.

All in all, it was a good way to end a week.  I hope I can get the hat-trick.  Keep the opportunities coming.

Not Guilty - Solicitation of a Minor to Commit Sexual Assault - Montgomery County, Texas

First Trial = First Not Guilty Verdict!

Now that the dust has settled, I can reflect on my first trial and first not guilty verdict.

I was called up just days before trial to sit second on a Felony Solicitation of a Child to Commit Sexual Assault trial in Montgomery County.  Only around 1% of cases in Montgomery County get a not guilty verdict.

The Government had a good story going for it: Beautiful, intelligent girl asked by deaf Mexican in creepy truck for a blowjob in exchange for money, then creeper chases her down dark street after she says no.

The problem with that story is that it was not supported by the evidence.  Sure, my client offered the girl a ride, not knowing she was a girl or having any idea of her age.  Sure, his truck came to a stop on a dark dirt road in near the woods.  Sure, the girl had reason to be spooked when she saw his truck roll to stop.

BUT HE WAS NOT A PREDATOR AND I ADMITTED THE BAD FACTS FROM THE GET-GO!

You have to admit the bad facts.  You never know, your bad fact may be supported by your theory of innocence.  For example, our client said his truck ran out of gas and the battery died.  Well, we admit the bad fact and what do we learn in trial that supports out theory of the facts: (1) A 911 caller testifies that my client comminicated that his batter died and he needed a charge; and (2) Pictures ther sheriff took of the bed of my client's truck showed, you guessed it, a tow rope and jumper cables.

BOOM -- a fact beyond change turned into a fact that supports the theory of innocence.

A few words of advice from this attorney who is now in his terrible twos:

1. Get the venirepersons to educate each other during voir dire.  
2. Because solicitation of a minor requires the government to prove the specific intent to solicit and the specific intent to engage in the solicited conduct, ask the jury what type of evidence the would expect to see.  NOTE: a sharp prosecutor will object as an improper commitment question, but it is not so be prepared.
1. You are looking for jurors that want: Money, Condoms, Clothing on, Nudity, Exposed Penis, Fingerprints, Corroborating Witnesses, Eye Witnesses.  You want objective pieces of evidence that support the specific intent.
3. Ask questions that support your theory.
4. Listen for answers that might alter your theme in closing and support your theory of innocence.
5. MOST IMPORTANTLY: in a conservative jurisdiction you MUST spend time harping on how great of a nation, state and even jurisdiction we live in.  It is cheesy but it is the truth:
1. this is not China, North Korea or Iran.
2. We are presumed innocent/ cloak of innocence.
3. We expect the best from our officers. They must exclude suspects/charges before charging/Best technology is a must.
4. I thing this is the most important part of every closing, especially in a sex case, because the government is preying on each juror's fear that the complainant could be their daughter, niece, granddaughter, neighbor, cousin.  When you passionately argue the law, you are subconsciously reminding them that the person sitting next to you at counsel table could be their son, nephew, grandson, or self.