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.

Unlawful Carrying Of A Weapon Motion To Suppress Post-Rodriguez

I was almost there.  I was so close that I could feel it.  I could touch it.  I could see it.  I could see the Montgomery County Judge saying, "Motion To Suppress Granted," and the State of Texas saying "Judge we will file this Motion to Dismiss."  However, it wasn't to be.  It wasn't to be because we worked the case us so good that the Montgomery County prosecutor dismissed both cases in exchange for my client forfeiting his handgun.

For the record, I would not have taken that deal under the circumstances, that's how confident I was in the facts of the case, my legal research, and that I would not let the government steal my gun (if I had one).  However, as a client-centered lawyer, my job, my obligation is to inform my clients about the procedure, the potential courses of action, and the potential consequences of each course of action.  In this case, the dismissals were all he wanted.

So, let's rewind to May of 2014, in a little speed-trap of a town called Patton Village.  My client was driving a car his mother bought him for graduation north on highway 59 to visit his mother in Mississippi.  He was traveling in the left lane, allegedly, without passing other vehicles.  A Patton Village Cop followed him for, according to the cop, three miles.  The cop turns on his dashboard camera as the cars approach the Liberty County Line (where liberty goes to die).  In the video, you can see that my client's car is getting further from the white car in the right hand lane, and closer to the semi in front of him, thus appearing to be passing traffic and nullifying the reason for the stop.

The officer turns on his overhead emergency lights and pulls my client over.  My client turns on his signal and makes safe lane changes until he comes to a safe stop on the shoulder, at which point he turns on his hazard lights.  The Patton Village Cop calls in my client's Mississippi license plate number, exits his vehicle and goes to the driver door.  The cop talks to my African American client for a full minute with his window down.  My client gives the cop his license, insurance and registration, just as he's supposed to, and the cop orders my client out of the car.  The cop waits for a another cop to arrive (not in the offense report as it should be) then returns to the squad car and runs my client's driver license. 

About 15 minutes later, the cop learns that there are no arrest warrants for my client, he has no criminal history, he has only been pulled over once before, and that his car is coming back as stolen.  The cop places my client under arrest and puts him in the back of the squad car.  My client tells the officer that there must be a mistake, I mean, after all, the his registration and insurance are for that car, they have his name on it along with his mother's name, who shares the same last name and is registered to her address in Mississippi which is the address on my client's driver's license.

The officer agrees to call my client's mother.  To be fair, he could have been a real big jerk and not done that, but on the other side of the token, the evidence before him was that the car was not stolen.  His story made sense.  So, the cop calls my client's mother who answers.  The cop says hes in a stolen car.  She asks what he's driving.  She cuts him off,  "is it a black 2006 chevy hhr?"  Indeed it was.  She assures the cop that the car was not stolen.  The cop sayd he would let her son go in a few moments.

The cop then tells my client he is letting him go, but requests consent to search his vehicle.  My client exercises his Fourth Amendment right to deny the officer consent to search.  At this point, under a new Supreme Court Case called Rodriguez v. United States, the cop had a duty to let my client go.  Instead, the cop called a K9 to search the outside of my client's car.  The K9 arrives 15 minutes later (after more than an hour had already passed where the officer could have called the K9, or actually just searched the car since he had probable cause to believe a crime had been committed).  The K9 made two hits, and the cops recovered some weed and pistol.

We argued that the fruit of the search, were fruits of the poisonous tree, and must be suppressed.  In layman's terms, the cops illegally searched my client's car.

So quick rundown on searches and seizures.  A cop can search a person or a place if there is a valid search warrant.  IF there is not a valid search warrant, the search is presumed to be unlawful.  An officer can search for contraband if he has probable cause."  Probable cause is exists where facts and circumstances are sufficiently strong to justify a prudent and cautious person's belief that certain facts (that a person committed a crime) are probably true.  Probable cause to search exists if the cop sees the person commit the crime, the contraband is in plain view, the officer's smells the weed... so on and so forth.

Here, the cop did not see and dope in plain view. The law holds that an officer must diligently pursue all reasonable avenues to confirm or dispel a belief, and that they must execute the ordinary tasks of a traffic stop in a diligent manner.  So, an officer may not prolong a traffic stop to call a dog or conduct a search without probable cause. 

What are the ordinary tasks of a traffic stop, you may ask?  Investigating and issuing a ticket, running a warrant check to see if the driver if the driver is wanted for arrest, and do a license plate check to see if the car is stolen.  In this case, the officer did a reasonable diligent job in doing the above, and he did a pretty great job at investigating once the car was stolen.  However, once he determined the car was stolen, he did not have the right to detain my client any longer, unless he had developed a reasonable suspicion to believe my client was engaged in or was about to be engaged in criminal activity. FYI, all you officers out there, a HUNCH IS NOT ENOUGH TO DETAIN A MOTORIST!!!  

In this case, the officer did not have an articulable  reasonable suspicion to continue detaining my client and it was his right, as it is yours, dear reader, to DENY CONSENT TO SEARCH his vehicle.  My client did not make incriminating statement, there was nothing in plain view, the car was not stolen, he was not a known drug dealer, he did not come from a known drug house, he was not intoxicated, his story made sense, he was calm, cooperative, honest, did not attempt to flee... I could continue, but you get the point.

There are a litany of cases that define what a cop can and cannot do in regard to a traffic stop.  Rodriguez is great because it affirms absent a reasonable suspicion, the extension of a traffic stop a.k.a. prolonged detention is an unreasonable seizure, and that calling a K9 is not an ordinary or traditional aspect of a traffic stop.

If you have been arrested you need to hire a lawyer who loves to investigate unlawful searches and seizures.  You need a lawyer who can read an offense report and smell something fishy.  You need a lawyer who enjoys researching to protect your liberties.  

Appeals Filed and Trials Postponed

What an exhausting week!

First, I was set for a possession of marijuana trial in Harris County on 4/20.  I was so eager to try that case and hopefully get a NOT GUILTY on the marijauna holiday, but it wasn't to be.  For the second time.  The first time the case was set for trial it was reset because the district attorney thought that the day of trial would be a good time to turn over BRADY bodycam video.  I am sure glass I did not push forward without it ;).

This time, the case was reset because the judge wanted to get a two day trial out of the way, whereas mine would only take one day  Although I was disappointed to not try this case, it gave me time to finish up an appeal.  My appeal client was sentenced to life in prison for aggravated sexual assault of a child, which is the legal term for "rape" in Texas.  You'd think that a trial for this type of charge might take quite a while, but this trial only lasted two days and they sent my guy to the slammer for the long haul.

I was not the trial lawyer.  The trial lawyer was a guy who is infamous for being found ineffective multiple times, yet for some reason, the courts keep appointing this guy to cases (in my opinion it is because they way certain defendants locked up for life, and this guy's representation almost guarantees it).  I don't want to get into the details of the case, but I'll tell you what's important.

The complainant (what you might naturally as the victim) claimed my client diddled her.  The complainant also claimed that three boys raped her at a party in another county that were no-billed. Mind you, a prosecutor could indict a ham sandwich.  The prosecutors sent the trial lawyer a motion in limine that indicated the girl made accusations in the other county. (P.S.  This crappy notice is going to be a huge issue and a potential Brady violation if there is a writ filed.)  The trial lawyer didn't read the notice/motion and didn't request a continuance to investigate the allegations to see if they were false, which would be necessary to cross-examine/impeach the complainant at trial.

You might not think her prior false allegations of abuse are all that important, but they are huge, and particularly huge in this case.  Why?  Because the complainant claimed my client penetrated her, and touched her elsewhere.  Well, the nurse recovered my client's DNA everywhere the complainant said my client touched her, except in her vagina, AND the nurse testified that if he really did penetrate her vagina, his DNA should be there under the circumstances.  PHEW!  It's uncomfortable talking about this.  I don't like sex offenders and pedophiles, but if I'm not protecting their rights, your rights wont be protected.

So the point here is that if my client did not penetrate the girl, he is not guilty of aggravated sexual assault, which brings me to my second point, the court committed error by not including a jury charge for the lesser offense of indecency with a child.  

I don't know if my client is guilty, and it wouldn't effect my representation if I did or he was.  I never in a million years thought I would be an appellate lawyer in Texas, but it can be fun at times.  Now it is time to wait and see what happens.

Why Judges Tilt To The Right - A Follow Up

Judges tilt to the Right.  You heard it hear first.  Well, no, you didn't, because the New York Times published an article on Super Bowl Sunday that investigated a Harvard study  that determined that judges lean to the right.  The article attempted to go one step further, and figure out why judges lean to the right.  The article failed to reach that conclusion, other than stating the higher up the judicial ladder a judge gets, the more right leaning he or she tends to be because the judge has less discretion. 

The study determined that lawyers are more liberal, more left leaning than the rest of society, and that judges are more conservative than lawyers.  This raises the question: should judges proportionally represent the ideology of lawyers, or some other group?  Back to the statistics:  the study evaluated the liberalness of different people and types of lawyers.  It found, to my great surprise, that prosecutors, Big Law Lawyers, and law firm partners are more conservative than liberal, and even more liberal than judges.   They are all the left of Jeb Bush, who is my bet to be the next President, regrettably.   Also unsurprisingly, Government Lawyers and Public Defenders are more liberal than just about most in politics and the legal profession.  I would like to no that also unsurpisingly, but someone confusingly, and certainly agonizingly, lawyers that graduated from schools outside the Top 100 are the most conservative group of lawyers.  That is a real damn shame, considering they (we) make up the vast number of lawyers that have the greatest connection to everyday people, because we are every day people.  Damn Fox News.

Professor Eric Posner is quoted in this article as saying that Republicans should be congratulated for being able to bring much-needed ideological balance to the judiciary.  This guy is highly regarded as one of the top legal minds, like his father, who is also quoted.  Now, I know I am in Texas.  I know I am Harris County.  I know I am in Houston.  Trust me, the Republicans don't need any congratulations. They have done a mighty fine job at controlling the ideology and course of the judicial system, and the judiciary is way too conservative from sea to shining sea!

Reagan started the War on Drugs in the 80's.   Since then, prison populations have boomed.  USA incarcerated more people than any other country in the world.  We have only 5% of the world's population, but 25% of the world's prisoners!  This is a direct result of the conservative War on Drugs, and it comes at your expense. Another "recent" conservative phenomenon is tort reform, which is the result of Carl Rove and his cronies.  All tort reform has done is harmed the average man, the blue collared hard worker.  Both policies were accepted by the judiciary, and what both do is keep the rich rich and the poor poor.   This begs the question: Is being tough on crime even a conservative value?  Is not allowing the a person to sue a corporation a conservative value?  Makes you think twice, doesn't it?

Is a republican judiciary really good for you?  Is a republican judiciary good for society? Think of what has been good for members of our community and communities across the country and they are undeniably liberal and undeniably successful:  Drug Court, Veterans Court, Mental Health Court and Prostitution Court.  These are proven, effective, and liberal.  Most importantly, it is up to the judiciary, by and large, to create and support these courts. 

I intended to write more about the article, namely how lawyers contribute more to political campaigns than laymen, and how future judges contribute more than lawyers who do not become judges.  Judges are supposed to be neutral, but it is hard to do that when you are accountable to voters every few years, and the only people voting are grassroots hardliners. 

Finally, to tie this in to trial lawyering:  If judges are are still, on the whole, more liberal than society, should we go to judges more often for punishment?  I think not.  It has to remain a case by case judge by judge decision.  That being said,  wouldn't that make for a grerat capstone project for a graduate student at Rice University or University of Houston, to do a statistical analysis to determine whether judges or juries give better sentences. 

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. 

 

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.