Dallas Criminal Defense Lawyer Blog

I had a DWI jury trial for most of last week. I don't blog about trials or cases in detail, and I'm not going to start here. But I would like to talk about the experience of trial stress and what it's like to represent a defendant in front of a jury of her peers.

I usually start feeling trial anxiety the weekend before. That is when my thought process becomes dominated by visions of voir dire and opening statements.

If my mind isn't occupied with other matters then mentally I'm in trial. I often visualize the scene, projecting myself into the trial. I can see the jury, the prosecutor, and the courtroom.

There can be some spill over into real life. For example, I'll be driving and start gesturing with my hands to emphasis a point in front of the jury that's in my mind. My wife is getting used to this but still asks me what I am doing some time. I'm going through the motions, literally.

Trial Sleep
Sleep patterns are grealty affected by trial stress. I expect to wake up at least an hour earlier than usual during a jury trial. My usual sleep pattern is waking up between 4-6, going back to bed until 7 then starting my day. On trial days the first time I wake up is the last time. Whether it's 4 or 6 am I can't go back to sleep. Adrenaline and anxiety combine to form a substance with more kick than coffee.

I'm ready to get to the office and tackle that day's trial challenge. Not that I haven't already prepped the case. I work a case up well before trial. Usually by the pre trial hearing I've spotted the legal and factual issues and decided what my angle is. But that's never enough to get me through trial without more prep work. Why?

Criminal jury trials are never completely predictable and unexpected issues are to be expected. Stories change on the stand, the state has their own objections, the judge may ask you to research an issue before he rules etc. It's a rare jury trial that does not include a few moments of research panic.

S L O W D O W N
The trial adrenaline/stress have led to my strict no coffee/soda on trial day policy. Stimulants are not needed when you feel like a hummingbird on meth. Relax, take deep breaths, and exercise whenever possible.

I'm not embarrassed to admit that sometimes I exhibit the tell tale signs of jury trial adrenaline- shaking hands, nervous pen clicking, rocking back and forth in my chair etc. By far my worst bad trial habit is talking too fast.

These get better with each trial, but have not completely disappeared. The first day of trial is usually the worst, by day 3 of trial most of the adrenaline is gone.

Why so serious?
What is the source of trial anxiety? The defense lawyer/freedom fighter/Constitution protecting patriot in me interprets trial stress as a sign that I fully appreciate the awesome responsibility of defending the liberty of the accused. If you are nonchalant about your client who is facing incarceration, you shouldn't try criminal cases.

Further, our pro conviction appellate courts have created a situation where you must make a perfect objection every time in trial. If not, if you cite the wrong subsection of a statute or can't instantly think of the right case to argue, you have just waived your client's rights forever. Fun.

Every time a bell rings....
A great deal of pre trial anxiety is the theater/public speaking aspect. I was a thespian in high school and vividly remember the adrenaline inherent with live performance. My awesome skills as a player were rewarded with the lead in It's A Wonderful Life. I easily speak more lines in a criminal trial than George Bailey ever said on stage. Back then if I was off or forgot Zuzu's name no one went to jail. Trial is a high wire act, a solo performance in front of the public with your client's freedom on the line.

I enjoy trials after they are over. I learn something new every time- about myself, the prosecutor, jurors, the judge. Trial is often the best CLE, with unique lessons and costs. Emotionally draining, mentally exhausting work these jury trials are. And that's how it should be-

You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.

—Clarence Darrow, Closing argument in "Communist Trial

Well my trial ended so now I've got some time to blog. Here is roundup of sorts I was working on last week.

Want to be on Penn and Teller Bullshit?
I got a call from a producer with Penn and Teller looking for an interview on sexting. I wrote a general post on the laws in Texas but BS is looking for an attorney or defendant who have been involved in a sexting case. Particulary for defendants who have had their lives ruined by overzealous puritanical prosecutors. BS will be in Dallas in February to film. Email me if you are interested.

Austin Police Chief Calls
Got a call from Austin Police Chief Acevedo today. Art wanted to know if I wrote some article about him on the Ellis County Observer. I informed Art that I did not in fact pen this article, but I did write this piece on his warrantless electricity snooping program.

Netroots Nation
Finally, I'm working on a panel for Netroots Nation. The topic? Guess. I've got a speaker from LEAP and NORML lined up, should be fun. If you want to speak to a room full of uber liberal activists about the end of the drug war let me know. Did I mention it's in Vegas?

What is the National Criminal Justice Act? It's a commission proposed by Jim Webb (D) to evaluate the shortcoming in our criminal justice system. From Senator Webb.

The National Criminal Justice Commission Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process. This legislation has already garnered wide bipartisan support in Congress and from interest groups representing a range of backgrounds and political viewpoints.

Why We Urgently Need this Legislation:

With 5% of the world's population, our country now houses 25% of the world's reported prisoners.
Incarcerated drug offenders have soared 1200% since 1980.
Four times as many mentally ill people are in prisons than in mental health hospitals.
Approximately 1 million gang members reside in the U.S., many of them foreign-based; and Mexican cartels operate in 230+ communities across the country.
Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society.

America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous. We are wasting billions of dollars and diminishing millions of lives.

We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration.

Being a concerned citizen I emailed KBH and asked her to support this measure. As a former prosecutor I have seen the destruction caused by overzealous law enforcement. Arrest, prosecution, probation, and a criminal conviction are especially devastating on the thousands of young adults we prosecute annually.

It's about time we evaluated the investment of our tax dollars and the forfeiture of our liberty. I'm pretty sure we can find a better way forward than the status quo. A blue ribbon panel is a great way to start the conversation.

One thing I can say about KBH is that she responds fairly quickly to my emails. I really appreciate a prompt and courteous Senator. My only criticism is that the response says nothing about her position, but she seems eager to listen to my views on criminal justice reform. I'll be sure and forward those ideas to her post haste.

From KBH-

Dear Friend:

Thank you for contacting me regarding the National Criminal Justice Act of 2009. I welcome your thoughts and comments.

On March 26, 2009, Senator Jim Webb (D-VA) introduced S. 714, the National Criminal Justice Act of 2009. This act would establish the National Criminal Justice Commission, which would undertake a comprehensive review of the criminal justice system. The Commission would focus on incarceration policies, prison violence, and prison administration. After examining the current system, the Commission would be required to submit a public report to Congress and the President.

S. 714 has been referred to the Senate Committee on the Judiciary, on which I do not serve. Should this legislation come before the full Senate, you may be certain I will keep your views in mind.

I appreciate hearing from you, and I hope that you will not hesitate to keep in touch on any issue that is important to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

Senator Cornyn hasn't gotten back to me yet. I'll post his response when available.

Recently, Shelby County District Attorney Linda K. Russell, found herself on the working end of a civil rights lawsuit for allegedly supervising a highway robbery (asset forfeiture) scheme in which casino bound minorities where pulled over for traffic violations and then threatened with prosecution if they didn't sign over whatever cash they had to the State.

Linda wanted to use tax dollars (and forfeiture cash) to defend her case. Fortunately, the Attorney General put Linda in the same position as the victim of asset forfeiture- Linda will have to pay for her own defense sans government funds.

What happened in Shelby county is indicative of the problems with Texas AF laws. When you combine government greed, racism, and a lack of protection/due process for defendants you get malfeasance and corruption every time.

From DMN-

James Morrow was driving to Houston to visit his cousin when he was pulled over in the East Texas town of Tenaha for "driving too close to the white line."

The officer, Barry Washington, searched the vehicle and asked Morrow if he had any money, according to court records. Morrow, who is black, had $3,900. He said the officer took the cash and drove him to the Shelby County Jail.

That's where authorities threatened to prosecute him for money laundering unless he agreed to forfeit the money, Morrow said. He was never charged with a crime in the 2007 incident, and when he pursued legal action, he got the money back.

Driving too close to the white line isn't a crime in Texas. Still, James was detained and robbed by local police for alleged "money loaundering". Nice.

It gets worse.

Tenaha is a town of 1,112 along a U.S. highway that links Houston with several gambling destinations in Louisiana. Several motorists had large amounts of cash because they were en route to or returning from Shreveport casinos, Guillory said.

Other plaintiffs include an elderly black woman from Ohio who said that after being threatened with money laundering charges, she signed a document authorizing the seizure of $4,000; and an interracial couple from Houston who alleged that authorities said they would place their two children in foster care if they didn't hand over $6,000

What's the law on asset forfeiture in Texas?
Texas government theft/asset forfeiture laws are found in Chapter 59 of the code of criminal procedure. Basically the state can seize "contraband" or property used in the commission of, or property that is the profits from a crime.

Wouldn't that require an actual conviction for a criminal offense? Not so fast. No conviction is required to steal your property. In fact, the State doesn't even have to actually charge you with a crime to file an AF case.

Worse, even if you are later acquitted (found not guilty), the State can still try and steal your property. Forfeiture hearings are civil, and the State need only show by a preponderance of the evidence that your property is contraband.

Most asset forfeiture cases are unopposed. AF victims are mostly poor and can not afford an attorney to fight the seizure. These defendants find themselves alone against the awesome power of the State's forfeiture machine. In civil cases when you don't show up the Plaintiff gets a summary or default judgment. In my experience many, if not most, forfeiture cases end this way.

A portion of the money, cars, and property seized become part of a DA slush fund for Xmas parties etc.

This monetary incentive, combined with the lack of court appointed counsel for the victims of AF, create the perfect environment for malfeasance.

The Sharon Keller findings of fact were issued today. Basically, Judge Keller failed to act as an "exemplary" public servant, failed to foster the open communication we should expect from judges, and even failed to learn anything for her mistakes; but ultimately the blame lies with the defense. Nice.

Judge Keller's conduct, however, was not exemplary of a public servant. She should have been more open and helpful about the way in which the TDS could present the lethal injection claim to the TCCA. She should have directed the TDS's communication to Judge Johnson. Although she says that if she could do it all over again she would not change any of her actions, this cannot be true. Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice. Further, her judgment in not keeping the clerk's office open past 5:00 to allow the TDS to file was highly questionable. In sum, there is a valid reason why many in the legal community are not proud of Judge Keller's actions.

Judge Keller's silence on several occasions conflicts with the ideal that courts
should foster open communication among court staff and litigants. But Judge
Keller's omission did not cause the TDS to be late in its filin,& to forget the other
available avenues, or to fail to have any of its experienced lawyers contact the TCCA.
She did not violate any written or unwritten rules or laws. Of course, that does not
absolve her of the responsibility to ensure that the courts remain fair and just. Her
conduct, however, does not warrant removal from office, or even further reprimand
beyond the public humiliation she has surely suffered.

In the end, perhaps this entire ordeal can have positive consequences for the
future. The TCCA has reduced its oral tradition for its execution day procedure to
written form, which will provide clarity and certainty moving forward. Appellate
counsel. including death penalty lawyers, certainly now know of all of the available
avenues to present a claim, even after the clerk's office has closed. Finally, we
should all be reminded of the responsibilities a public servant has to ensure and
promote fairness in the criminal justice system.

I take issue with the last sentence. How can we be reminded of the responsibilities of a public servant when we absolve a public servant of her blatant unfairness and bias?

This ruling is mind numbingly frustrating and reminds me of the hyper technical arguments the State often uses to challenge defense arguments on appeal. The rule in Texas seems to be that the police, prosecutor, and judge can make mistakes but the defense lawyers must constantly pursue perfection less our objections be waived. In this case the defense lawyer had another possible way to file his case and since he didn't do that Judge Keller's outrageous conduct is given tacit approval and immediately forgiven. This was an opportunity to stand up to a biased judge, instead we pile on defense counsel.

The Kaufman County Bar Association is conducting our soon to be annual judicial evaluations. If you are a member of the Kaufman Bar, or a lawyer who practices in Kaufman county and interested in becoming a member shoot me an email and I'll send you the forms.

These forms are, of course, completely confidential. We hope to have the results in the next few weeks.

Just got this in last week. It includes the testing procedures for controlled substances. In your typical dope case the DPS lab sends a short one page summary of the results of their testing. ADA's never think to question the veracity of these results. The assumption is that the lab did everything right, and the dope is dope. If you want to even try to second guess DPS lab work here is the place to start.

Texas DPS Controlled Substance Testing Manual