About Brian Roberts

Brian M. Roberts is a criminal defense lawyer and former prosecutor. He has prosecuted virtually every type of state case and has an even broader defense background. He participated in the proceedings of the International Criminal Tribunal for the Former Yugoslavia as a member of the defense team for the former president of what was known as the Republic of Serbia – Autonomous Region of Krajina Crisis Staff. He is fluent in Serbo-Croatian and conversant in Spanish. Brian appreciates that people who find themselves facing criminal charges literally come from all walks of life. Additionally, Brian is board certified in criminal law by the Texas Board of Legal Specialization. Connect with him on twitter: @BMRlawyer.

The Business of Criminal Defense

88132860_f4d07a25d7_z

The practice of law is a profession, but it is also very much a business like any for-profit enterprise. The fundamental fact that the practice of law is a business is something ignored by law schools, which are more concerned with teaching impractical, esoteric theories and how to pass the bar exam to ensure their bar passage rates remain high enough year-after-year to attract new applicants and keep the money machine operating at full tilt. Likewise, bar associations like to pretend that the practice of law is a profession not a business, seemingly stuck in the days of powdered wigs and brass-buckled shoes when the law was a profession of privilege, occupied by a small fraternity of the wealthy who had access to higher education. Even then legal services were given in exchange for money or other things of value. Law schools and bar associations have an aversion to the reality that lawyers and law firms can only operate by making a profit and that requires marketing, advertising and sales, a reality that makes law schools and bar associations hold their noses and avert their eyes in disgust. This systemic aversion is evidenced by the absence of courses in building and running a legal practice and shrinking employment rates after graduation. You may be the best lawyer in your city or your state, but if you can’t attract clients, how much you know and how good you are don’t mean anything. Not only will your practice flounder, but people who need your services may not get the help they need because they don’t know you exist. That said, just like any profession or business, there has to be some reasonable rules in place to prevent unethical and predatory practices.

Houston is a highly competitive legal market that gets tighter and more competitive every year with three law schools, all within a short distance of one another, spitting out hundreds of newly minted lawyers every year flooding an already oversaturated market. The white shoe firms will hire the law school grads in the top five or top ten percent of their class to breathe the rarified antiseptic air of Big Law, which leaves hundreds of others looking for work with small and medium-sized firms or to hang their shingles as solos. Congratulations! Here’s your diploma, good luck in your solo practice even though we didn’t teach you one damn thing about running a law practice and no, knowing The Rule in Shelley’s Case won’t help you. For whatever reason, too many brand new shiny lawyers gravitate to either family law, which requires a strong stomach and a love for hand-to-hand combat over furniture and children, or criminal law because there is this flawed belief that any monkey can practice criminal law. As a result, this infestation of new, inexperienced lawyers has diluted the practice, and diminished the quality of representation. Some of it is the result of these lawyers not having a clue as to what they’re doing, but some of it is due to unethical business practices.

The business of law requires that lawyers operate with dignity, credibility and ethics. For people charged with crimes, faced with losing life or freedom, the services of a good, qualified lawyer are invaluable. Over the last five years, many of my colleagues have seen a disturbing negative shift in the business. The influx of new and inexperienced lawyers, desperate for business and clueless to the value of serious cases, have created a Walmart-like market attracting clients as the low cost providers of an inferior product.

I recently spoke with a well-known and well-respected lawyer with many years of experience who told me about meeting with a prospective client who was charged with four aggravated robberies and faced, at minimum, five to 99 years or life in prison. The lawyer quoted the man a fee of $40,000 for all four cases, a substantial fee but not unreasonable given the amount of work the lawyer would have to put into four separate cases and the fact that the client faced life in prison in each case. Prospective clients who meet with one lawyer but hire another rarely call back to tell the first lawyer they hired someone else and why. In this case, the prospective client told the experienced lawyer he first met with that he hired another lawyer, a new lawyer with little experience, because the inexperienced lawyer agreed to take on all four cases for only $4,000.

In another case, a defendant hired a new, inexperienced lawyer to represent him in an aggravated robbery because he charged him $2,500, considerably less than the $15,000 an excellent, experienced lawyer quoted to represent him. No lawyer worth his salt is going to take on a serious case like aggravated robbery for such ridiculously low fees. These “bargains” without fail turn out to be the most expensive decisions bargain-hunting criminal defendants make, paid for on the back end by convictions and lengthy prison sentences.

Highly qualified professionals charge higher fees because their services are valuable. The greater the experience, the greater the success, the higher the fee. You don’t look for a budget doctor if you’re ill. If you need surgery you’re going to select the best and most qualified doctor not the one who gives you a 30% off coupon. Likewise, it doesn’t make sense that a person facing life in prison or an otherwise significant sentence would bargain shop lawyers and hire the lowest bidder, who is usually a new lawyer taking on a case that’s over his head and on the cheap. This in no way benefits the client.

In fairness, some folks who don’t qualify for an appointed lawyer but who also don’t have a lot of money have no choice but to hire the best lawyer they can afford. Even a good, reasonably priced lawyer will charge a fee appropriate to the seriousness of the case. There are, however, many defendants who have the financial means to hire experienced, qualified lawyers. I haven’t seen an empty courtroom yet. Now more than ever, the criminal justice center is teeming with bottom-feeders who charge by the setting and provide little to no value to their clients. They lure in clients with low fees and promises they can’t fulfill.

Another reason for the tightening criminal defense market in Houston is the unethical and illegal relationship between some shady bonding companies and ethically-compromised lawyers. Not all of these lawyers are fresh out of law school, but the new ones are the easiest to hook by dangling the promise of a steady stream of business and money as bait. The bonding company is usually the first point of contact for a criminal defendant and his or her family. Once hired, the shady bonding company will tell the defendant or the family that they have to hire a particular lawyer, a huckleberry on their list. The lawyer will then take the case for a considerably lower fee than the case merits and kick back a percentage of their fee to the bonding company. It’s the Walmart business plan of running a law practice: low prices and high volume. If one of these lawyers has 200 or 300 clients and their fees range from $1,000 to $2,000, let’s say $1,500 on average, that’s an annual revenue of $300,000 to $450,000. If we assume an annual kickback of 10%, that’s $30,000 to $45,000 for guaranteed business. That’s a pretty damn good deal for the shady lawyer and the crooked bondsman but a bad deal for the client because the lawyer cannot possibly give each client’s case the attention required when the lawyer has an unmanageable caseload of 200 to 300 cases. This practice not only hurts the client, it also hurts the profession and the good lawyers who do excellent work for their clients, albeit at a higher fee, and who have the experience and can dedicate the time their client’s cases require. A quality lawyer’s business is not predicated on high volume. A good lawyer is also not willing to hop into bed with crooked bondsmen and compromise their ethics and integrity.

I suspect that the general public isn’t going to feel sorry for a bunch of lawyers who make more money than the average person. But defendants need to know that good representation comes at a higher price because it is valuable, and it is valuable because it can save their life or keep them out of prison. In criminal defense, the old adages of “buyer beware” and “you get what you pay for” are most poignant because the results can be devastating if not heeded. No defendant will be satisfied with the money they saved when poor representation sends them to prison. Every year, the state bar conducts a survey asking lawyers to disclose the percentage of their caseload dedicated to appointed (indigent) defendants because there is a concern that some lawyers may have more clients than they can effectively represent. The state bar has no such inquiry into how many hired cases or total cases a lawyer carries. If the state bar is concerned about maintaining the integrity of the profession, it could pay more attention to how many cases lawyers carry at any given time. If a lawyer has been in practice for many years and employs other lawyers to assist him in his practice, a high caseload is considerably less suspicious. If a lawyer who graduated law school a couple of years ago has 200 to 300 retained cases that raises all sorts of red flags. Perhaps the bar would be interested to know how a new lawyer is able to carry 200 to 300 cases at any given time and where those cases are coming from. Maybe if the bonding board was a little more proactive against the bondsmen steering clients to lawyers for kickbacks, the bottom-feeders — lawyers and bondsmen — who prey on the ignorant and desperate and the stupid and cheap, would get flushed out of the system.

Some who read this article may conclude that this is a rant about money. Well, you’re half right. Neither I nor anyone I know went to law school to be poor. We didn’t endure countless hours of lectures and study and exams and accumulate over $100,000 in student loan debt so we could struggle financially. Any lawyer who says money didn’t factor into their decision to go to law school is either lying or comes from money. Believe it. However, those who went to law school solely for the promise of future riches went for the wrong reason. Practicing criminal law comes with immense responsibility for other people and that has to be the driving force for any criminal defense lawyer. However, in exchange for the hard work and carrying the burdens of our clients, we charge and expect a fee that reflects the value of that service. There are a lot of excellent lawyers in Houston who charge reasonable (not cheap) fees and there is no reason for anyone to have to hire a bottom-feeder or a crooked lawyer. For the bottom-feeders who run their practices on cheap fees and high volume and provide their clients with inferior representation and for those lawyers who pay bondsmen kickbacks for clients, you’re doing your clients and your profession a grave disservice and one day your gravy train will leave the tracks and the state bar will punch your ticket. The good lawyers will gladly watch the carcass of your law career get buried next to your slimy predecessors and maybe even toss a handful of dirt on it for good measure.

Mid-Holiday Musings: Unsocial Media, Gift Horses, and Poor Judgment

The holidays are a mixed bag at the Harris County Criminal Justice Center. By the Time November rolls around, everyone is exhausted – judges, court staff, DA’s, defense lawyers – and ready for a break from the soul-sucking grind of dealing with the business of human depravity. It is the only time of year the pace slows and everyone can take a collective deep breath and relax for a couple of weeks but not before the courts make one last unreasonable push to resolve as many cases as possible before the mass holiday exodus. Ultimately, judges realize their misguided plans to reduce their dockets before the new year, a stupid, meaningless goal, important to nobody but them, will not be realized and they finally give in to the holiday spirit.

Instead of taking Thanksgiving week to relax and unwind and enjoy my family, I used it as an opportunity to catch up on a mountain of work, uninterrupted by phone calls and court dockets. It also, unexpectedly, gave my mind time to wander, to consider the current state of things and the nature of the work to which I have committed myself and, by proxy, my family. Indulge me, if you will, for a few moments.

UNSOCIAL MEDIA

I don’t quite know what to make of our obsession with Facebook, Instagram, Twitter, YouTube and the like. It seems like new social sites pop up every day providing us with a forum to share with the world our vacation pictures, the oh so adorable things our kids say because everyone should know how witty and smart they are and what we ate for breakfast. We share everything on-line while at the same time withdrawing from normal human interaction. We use our smartphones less for making phone calls than we do for texting, tweeting and posting. It’s now almost considered rude to call someone before first texting them to see if they can take a phone call. We are so obsessed with social media that people are dying in car wrecks because they cant wait long enough to get to where they’re going before responding to a text or checking Facebook for the latest posts. Doctors are seeing more patients having accidents because they’re walking with their eyes glued to their smartphones instead of looking where they’re going. You have to feel like a real dumbass explaining to the doctor that you fell in a ditch or broke your ankle falling off a curb because you were too busy looking at your phone.

There once was a time when people called the house and if you weren’t home they’d leave a message. A time when you would invite friends over for dinner and show them vacation photos or slides over coffee. There was a time when we didn’t feel we had to know everything about our friends nor share everything about ourselves. Like our politics. But, the genie’s out of the bottle and there’s no putting it back. I have said before that growing up I was taught to not discuss religion or politics because it leads to arguments that won’t change anyone’s way of thinking and will only lead to sore feelings. Who we are as people and how we treat our friends and the least among us says more about us a human beings than our religion or political leanings. I am guilty of breaking the rule I was taught and posted two articles with my thoughts on the upcoming elections. Ultimately, publishing my thoughts on politics didn’t change anything and served only to make me feel better about the righteousness of my position. In the days before and the days the elections, there were an overwhelming number of political posts on Facebook. I expected to see a lot of political posts after the elections but I was disturbed by the ugliness expressed in so many of them.

It’s easy to be a jackass when you’re sitting behind a computer keyboard in the privacy of your home or office and say things that you would think twice before saying to someone in person because it might earn you a punch in the mouth. That’s part of the culture shift encouraged by social media. Some folks took to Facebook several times a day to spew their toxic thoughts and anger over the election results and insult those who voted differently. Look, I get it, you’re furious and offended that Trump won the election. I didn’t vote for him and I was surprised and disappointed that he won for reasons I won’t repeat again. To do so would be pointless and won’t change the results. However, he didn’t win by military coup, he won by the democratic process that we Americans hold sacrosanct. The democratic process that we have tried and continue to try to shove done the throats of other countries that are not as enlightened as us and are anything but democratic. The candidate we voted for lost. You don’t get to pick up your ball and go home, stomping your feet because your team lost. You don’t get to cry foul on the process because you lost. And the stupidity of declaring “He’s not my president” makes those declaring it look silly and no better than those who rejected Obama as their president when he won. Unless you intend to relinquish your citizenship, Trump is your president. Grow up and deal with it. In four years you get to vote for his challenger and make your voice heard. You are lucky enough to live in a country where you have that right.

While we can disagree with one another as only members of a civil society can, there is no need to be disagreeable. There is a difference between political correctness and being rude and offensive. I, like many folks, am tired of political correctness, which, in my opinion, has weakened us as a society to the point that there is now a call for “safe zones” and sensitivity to “triggering” words or discussions. The world is neither nice nor fair. Life is not fair. Perpetuating weakness over strength only serves to further cripple those it’s meant to protect rather than strengthen them to survive and function successfully in a society that is not always nice or fair. Political correctness demands that we suppress our constitutional right to speak our minds freely because it might offend the overly sensitive. The proponents of political correctness want to wrap the overly sensitive in bubble wrap and protect them from everything in life that might hurt their feelings, expecting the many to accommodate the weaknesses and sensitivities of the few. Those who demand political correctness need to grow a pair and toughen up. That said, I am equally exhausted by those who act like petulant children who feel it is perfectly acceptable to express themselves by insulting those who don’t agree with them and devolve to name-calling and incendiary language. It’s a lack of civility that serves only to create greater division and strife. Some have posted on Facebook advising their friends who voted for Trump to de-friend them because they cannot be friends with someone who has different political beliefs. It is childishly simplistic to believe that every person who voted for Trump is a racist redneck just as it is to believe that everyone who voted for Hilary Clinton is a communist or conversely an enlightened non-racist. The one thing that the politically correct faction has in common with the folks lacking any civility is that they both believe they are right and that the world should operate according to their beliefs.

My response to all the venom and anger has been to stay off of Facebook. I have to tell you that I have regained several hours in a week that I otherwise would have lost to those who feel they can clog my news feed spewing their crap all over me and every other unwilling participant in their one-man show of anger and hate. You are entitled to your opinion, the rest of us are not and we don’t care if that hurts your feelings.

LOOKING A GIFT HORSE IN THE MOUTH

Criminal defense is important work. I don’t say this because it is my profession, I say it because it is the only area of law that authorizes life imprisonment and death as punishment. Your client won’t get the needle if you screw up a contract or cite the wrong section of the tax code. Some criminal defense lawyers handle only retained cases and some take only appointed work but a large number of us have mixed practices of retained and appointed cases. My criminal practice is a mix of retained and appointed work. The most challenging aspect of criminal defense, and I think my colleagues would agree, is without question representing indigent clients.

When the court appoints a lawyer to represent a defendant who cannot afford to hire a lawyer, client and lawyer are forced upon one another without ceremony. There is no initial interview, no feeling out process to see if the lawyer and client are compatible, we skip the foreplay and get straight to the meat and potatoes. The relationship is an uphill challenge from the start because the overwhelming number of indigent defendants do not trust the lawyer appointed to represent them.

There is a pervasive belief that any lawyer willing to take a case for as little as appointments pay is not nearly as good or qualified as a lawyer that does not take appointed cases. Nothing could be further from the truth. I recently watched a hearing where the lawyer who the defendant hired to represent him in a very serious case, had to defend his strategy in representing his client to the court. He explained that not reviewing anything other than the police report was part of his legal strategy before recommending the client accept a plea agreement for prison time. In other words, he did nothing but collect the client’s money, which was a sizable amount, read the police report and recommended his client take a deal to go to prison. Nevertheless, indigent defendants tend to treat their appointed lawyers poorly. They are quick to be rude, disrespectful, scream, yell, cuss and generally treat them as if they were cow dung stuck to the bottom of their shoe. They file grievances when the lawyer refuses to entertain their unreasonable requests. They demand a new lawyer when the lawyer refuses to file their incomprehensible, handwritten motions drafted with their cellmate’s expertise, gleaned from spending a few hours in the law library. “You’re not working for me,” is a popular refrain when the defendant doesn’t get his way. Their family members call after hours and on weekends and holidays, not because they have anything urgent to discuss or important information to provide but to ask for an update on the defendant’s case. They can’t seem to get themselves to the jail to visit the defendant because they are either too lazy or don’t want to or because they have warrants and don’t want to get arrested. They can’t find their way to calling the office during business hours and get upset when they don’t get their phone call returned during dinner or on a Saturday evening or Sunday morning.

I can’t count the number of times an appointed client or their relative has said to me, “I know you’re appointed, but ….. ” the implication being that I won’t really do any work on the case because I was appointed. One of my favorites is a variation of, “If I throw you some money, can you get me a better result?” Most defendants charged with murder, capital murder, aggravated robbery and other similarly serious crimes cannot afford to pay the fee a qualified, experienced lawyer would charge for such cases. These defendants are appointed lawyers who have years of experience handling serious cases like theirs but rather than appreciate the quality of representation they are getting for free, including access to experts they otherwise couldn’t afford, they prefer to look a gift horse in the mouth and then complain the horse isn’t good enough for them. The bottom line is people just don’t appreciate what they don’t pay for.

As I sit here writing this late on a Sunday evening, fighting the depression of getting back to the grind, primarily because appointed clients make the work so damn miserable, here are a few things I would like to say to these clients and their relatives:

  1. I didn’t put you in jail, you did that all on your own. Point the finger at the guy in the mirror, not me.
  2. Don’t tell me how your kids need you home, you should have thought about your kids before you decided to smoke meth, commit an aggravated robbery or stab the guy at the bar.
  3. Don’t lie to me.
  4. Don’t yell or cuss at me. Ever.
  5. You don’t get to demand respect if you don’t give respect.
  6. I get paid to represent you not to take your abuse.
  7. If I give you my cell phone number, don’t call me at 9:00 pm asking for an update. As a matter of fact, just don’t call me.
  8. Don’t call me and ask for an update two days after I gave you the last update.
  9. Get off your high horse and don’t tell me I’m not doing anything for your child when you were a shitty parent who didn’t care if your child attended school or used drugs or robbed people. Don’t look to me to fix what you broke. Better yet, I’m pretty sure you having spent time in prison for your own stupid decisions was a factor in your kid taking the wrong path in life. The apple doesn’t fall far from the tree. Just saying.
  10. Don’t listen to the self-appointed jailhouse lawyer. First, you wouldn’t trust that guy if came up to you on the street, no reason to trust him now just because he’s wearing orange pajamas like you. Second, there are no consequences to him for giving you bad advice. He’s not going to do your time with you or for you. Third, if he is so damn smart, why is he sitting on your side of the glass and not mine? Give that some thought.
  11. Maybe you should consider taking my advice since relying on your own decision-making process hasn’t worked out very well for you.

Here’s a final thought for you to ponder. The reason I worked this Thanksgiving holiday instead of putting my feet up and enjoying my family is because I was working on your appointed case.

POOR JUDGMENT

The loss of four outstanding judges in the recent election has given me more heartburn than anything else. Two of the incoming judges previously won benches in 2008 and lost them in 2012. Neither had the distinction of being a great legal mind nor was either respected as a great or even average jurist. They rode the wave of political dissatisfaction and straight ticket voting back to the bench in 2016, ousting two judges who were considerably better qualified and better suited for the demands of the job. One of the newly-elected judges is frankly a danger to himself and and the justice system. He is a loose cannon. He has a propensity to say things that are not befitting of his position and he is overly impressed with himself, and will tell anyone who will listen how impressive is his ability to speak five languages, though I have heard him mercilessly abuse the Spanish language to a degree that no native Spanish-speaker can understand. And his German sucks, too. I was amazed that he escaped his first four years without ever appearing before the State Commission on Judicial Conduct but something tells me he will comport himself in a manner that will get him there the second time around.

The moral of this story is that judges should not be aligned with political parties. Political partisanship has no place in the criminal justice system. Judges take oaths to follow and apply the law not to legislate from the bench. The unfortunate result of politics in judicial races is that we lost tremendous judges and the ones who will suffer most in their absence are the defendants.

If You’re in a Pickle, Take the Nickel: You Have the Right to Remain Silent. Use It.

nicklePolice dramas have been a staple of American television for more than five decades. The interrogation is high drama, the dogged cop matching wits with the street-smart criminal. There is little evidence in the case and the cop needs a confession to make his case. The cop reads the suspect his Miranda warnings, “You have the right to remain silent, etc.,” the words most all of us could recite by memory after years of watching police shows. The suspect says he understands and agrees to talk. The tough, righteous cop and the wily criminal engage in a game of cat and mouse and when the cop cuts too close to the bone, the criminal stares him dead in the eye and says, “I want my lawyer” and just like that it’s over. The suspect invokes his Fifth Amendment right and all police questioning comes to a stop. Now the cop has to figure out a different way to get his man.

Another show, another scenario. A game of good cop, bad cop. The “bad” cop feigning frustration, storms out of the interrogation room for a smoke, leaving the “good” cop with the scared suspect. The “good” cop tells the suspect it’s ok, everything will be all right, he can help himself by telling the cop what happened and confessing to the crime. “Help yourself. I’ll go to bat for you with the DA.” Breaking down the suspect pukes up every piece of information he has and then goes to prison for a really long time.

Since the 1966 Supreme Court decision in Miranda v. Arizona, police are required to Mirandize or read Miranda warnings, which we have all become familiar with, to suspects before custodial questioning. In Texas, we refer to the Texas version of Miranda as the legal warning. This requirement is so important that most officers in Houston carry a small blue card imprinted with the warning. If an officer fails to read the warning and get a knowing, voluntary waiver from the suspect before questioning, the suspect’s statement is inadmissible at trial. Most of the time, police get this step right but what is most surprising is how often suspects give up their Fifth Amendment right and effectively eviscerate any potential defense before they get the benefit of sound legal advice.

It’s a “C’mon, man! Don’t you watch tv?” moment.

Suspects seem to forget that they (1) [have] the right to have a lawyer present to advise [them] prior to and during any questioning and (2) if [they] [are] unable to employ a lawyer, [they] [have] the right to have a lawyer appointed to advise [them] prior to and during any questioning. My first piece of advice is don’t commit a crime. My second piece of advice is if you just can’t help yourself and find yourself on the wrong side of the law and on the inside of an interrogation room, you might want to consider the following information.

MIRANDA NOT REQUIRED UPON ARREST

Clients often complain to me that police didn’t read them their legal warning when they were arrested in the hope that this failure is a “get out of jail free card.” It is not. My first question is always, “Did they ask you any questions?” In the vast majority of cases the answer is “no.” Criminal defendants tend to equate Miranda warnings with arrest. Police do not have to read the legal warning to a suspect upon arrest. Miranda is triggered only when there is a custodial interrogation. Custody does not always mean arrest either but that is the most common circumstance for interrogation. Custodial interrogation is questioning initiated by law enforcement officers — this includes prosecutors — with the intent to elicit incriminating information or a confession after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, the freedom to leave being the most common restraint. Custodial interrogation does not include questioning necessary for public safety, standard booking questions, if the police have a jailhouse informant talking with the suspect or questions asked during routine traffic stops for traffic violations.

CUSTODY+MIRANDA = ASK FOR A LAWYER

Nothing good happens in an interrogation room. Not for suspects, anyway. Pay close attention to what I am about to tell you. You ready? Ok, here it is — THE POLICE ARE NOT HERE TO HELP YOU. EVER. Did you get that? I don’t care how many times the police officer tells you that confessing will help you — seriously? Who buys that line anyway? — it will not. I assure you, nothing good comes from confessing, not for the suspect. But the police officer’s case just got a lot better. I recently represented a young man, a kid really, charged with a very serious crime. He was originally arrested for a misdemeanor but during videotaped questioning police learned that he was associated with a group of teens suspected in a number of serious crimes, the same crime my client was charged with ultimately. Police showed him surveillance stills from one of those crimes and asked if he recognized anyone. He named each of the people in the photos, each one already suspected by police and then he named the one unknown suspect. He said, “That’s me.” Game over. The police did not have any evidence against him for that crime until he waived his Fifth Amendment right and talked. With that statement everything else fell into place in their investigation. I can also assure you that when the officer called the DA’s office to file charges he did not tell the ADA on the phone to cut my client a break for confessing. A confession makes a bad state’s case good and a good state’s case great.

POLICE OFFICERS CAN’T MAKE DEALS

Police officers do not have authority to make deals with suspects. They cannot promise probation or a light jail or prison sentence. Only a prosecutor can make deals. Period.

POLICE OFFICERS CAN LIE TO SUSPECTS

In 1969, the Supreme Court decided in Frazier v. Cupp that police can use deception to elicit confessions. This does not mean police have carte blanche; there are certain limitations. For example, in Wilson v. State, a case decided by the Texas Court of Criminal Appeals in 2010, the Court distinguished between deception that involved lying and deception that violated the law. The Court threw out Wilson’s confession because the interrogating officer showed the defendant a faked crime lab report identifying Wilson’s fingerprints on crime scene evidence. If the officer had only told Wilson he had a lab report that his fingerprints were on crime scene evidence, there wouldn’t have been a problem. However, creating a fake crime lab report went beyond simple deception because it violated a Texas law that makes it illegal to tamper with evidence. Bottom line, if the officer has evidence of your guilt — fingerprints, DNA, a co-defendant’s statement — your confession isn’t necessary, is it? So, don’t give one because you never know when the officer is running a bluff.

DON’T TRY TO TALK YOUR WAY OUT OF IT

It never ceases to amaze me how many clients think they can tell a believable lie. Some statements are so ridiculous that anyone who hears such a statement is left with the impression that the person is guilty. Let’s be real with each other for a moment. If you haven’t made it past the 9th grade, you’re not going to outsmart a police officer or a prosecutor and you’re certainly not going to outsmart a jury. Do yourself and your lawyer a favor and keep quiet. Silence is preferable to a story that anyone with a spec of common sense can see through.

YOUR LAWYER IS NOT A MIRACLE WORKER

Good lawyers can be of great service to their clients. We can get your case dismissed if we can convince the ADA or the judge that there was no probable cause for a traffic stop or that evidence was obtained by a bad search in violation of your Fourth Amendment right, we can even get your statement thrown out if it was obtained by violating your Constitutional rights. What we cannot do is undo your bad decisions that have no legal remedy. We cannot file a Motion to Change the Facts. You are the only one who can waive your rights. Officers often make mistakes in search warrants so make them get a warrant if they want to search your house. A mistake in the search warrant may result in the evidence being suppressed. When you freely, knowingly and voluntarily waive your Fourth Amendment right and allow the police to search without a warrant it is unassailable and absolute. When you freely, knowingly and voluntarily waive your Fifth Amendment right and confess, that too is unassailable and absolute. If the police have done it right and you gave them the ammunition to use against you, you just made your lawyer’s job infinitely more difficult and in some cases impossible. If you have something useful for the police or if you are not guilty of the offense, let your lawyer negotiate those treacherous waters for you but don’t sabotage your case and then ask for a miracle. That’s like tying a boxer’s hands behind his back and then telling him to knock out his opponent.

Our legal system has flaws and shortcomings but it nevertheless provides us with certain important rights that were created to protect us from government intrusion and we should absolutely take advantage of those rights. So, if you find yourself in trouble and a police officer wants to have a chat with you, you may want to remember this simple phrase, “if you’re in a pickle, take the nickel.” Then get a lawyer.

 

 

Divided We Fall: How Anger Has Become The National Emotion

Despite my best efforts to stay away from politics I find I am unable to pull myself out of the fray. I watched a video the other day of an elderly man in Henderson, Nevada, a suburb located a few miles south of Las Vegas, confront a group of Hispanic construction workers and berate them, calling them wetbacks and demanding to see their immigration papers. The video went viral. When a local reporter went to the man’s home to interview him, the man said he hopes that Trump deports them all when he becomes president. Here are just some of the things the man said:

“Just by looking at him you know goddamn well they’re illegals.”

“I think this asshole is illegal.”

“They’re wetbacks, they’re illegals. Get them the fuck out of this country.”

I can’t explain how angry it made me to see that video. I was shocked and saddened but mostly I was angry. It awakened the inner barbarian. I had an overwhelming desire to punch him in the face. Repeatedly. Until I beat the toxic, racist, hateful meanness out of him. This man’s behavior, and similar behavior by so many others, has been labeled the “Trump Effect.” Trump is an elitist, racist, misogynist and all-around worthless human being with no redeeming value. However, Trump did not create this man’s racist behavior, it was always there Trump just awakened it and blessed it with his vile rhetoric. Trump has tapped into a national vein of anger and what we are seeing today has nothing to do with politics and everything to do with exploiting the human condition.

The middle-class is angry because they feel that they are being over-taxed on the money they have worked hard to earn so that it can be distributed to those who don’t work and who milk the system for benefits they don’t deserve. The rich, Like Trump, want to keep more of their money and resent any attempt to increase the amount of tax they have to pay, regardless that the middle-class and those less able to afford higher taxes bear the burden. Black folks are tired of being harassed, profiled and beaten or killed by police or discriminated against in other ways. The law enforcement community is angry for being targeted because of the bad behavior of a few rotten apples that has put all of their lives in jeopardy. White folks feel they are being held responsible for the past transgressions of their ancestors and have to bow to the wants and desires of minority rule. Many Americans feel disenfranchised and believe the American dream no longer exists, or at least not for them. We now have movements such as Black Lives Matter, Police Lives Matter, White Lives Matter, All Lives Matter, deport the illegals, build a wall and on and on and on.

I have to admit that until this election, I believed America had finally moved away from racism. We elected our first black president in 2008, which seemed to me at the time to be not only an incredible achievement but a statement on how racism was withering into a distant memory of how we once were and what we have overcome. That we had become better as a people. That the disease of racism had been eradicated like polio and smallpox. After all, our skin color is only 1.5 millimeters (.059 inch) deep. That is all that separates us biologically and racially. Do you hate your spouse or your child or your parent because they differ from you by 1.5 millimeters? Surely not. We are much more alike than we are different. We should all realize this and embrace it but too many of us don’t. So, it is with great sadness that I must report that racism is alive and well. Like the virus that resists the vaccine and comes back stronger than before.

Why do we have to have any movements about which lives or whose lives matter? Every life matters. Every single life is unique and precious and there is no one life that matters more or less than another. Our Constitution states that we are all created equal. If you are a religious person, then you know that Jesus hung out with thieves, prostitutes, tax collectors and murderers because they were more than their transgressions. They were human beings deserving of compassion and forgiveness not condemnation. If you are Jewish, Muslim or any other religion, you will find similar teachings to love and respect your fellow man. I’m not preaching liberal mumbo jumbo but basic human compassion, love and respect. For those of you who are disciples of Trump’s platform of hate and division, explain to me what is so awful about illegal immigrants? Can you tell me why you feel justified at looking at them as less than human beings who differ from you by only 1.5 millimeters? Is it illegal immigrants you hate or all immigrants?

Webster’s Dictionary defines an illegal immigrant as “a foreign person who is living in a country without having official permission to live there.” Hmm. It doesn’t say anything about being rapists, murderers and drug dealers. I hate to tell you this but we are all temporary residents of this planet. The borders we have are man-made. Whether you believe in the Big Bang Theory or the Big Man Upstairs, the earth was not created with borders. We put them there. And every so often we move them around through war, invasion, occupation, good old dictatorship. See Russia. See also Americans Steeling America from Native Americans. Those who live in glass houses and all but you get the point. So, the fact that a person from another country — let’s be honest, you folks really mean Mexicans, Arabs and anyone brown — doesn’t have a piece of paper that legally transforms them from illegal to legal, they should be shipped back from whence they came. Families should be torn apart, parents separated from children, you get the picture. You’re cool with that. Those of us who were so damn fortunate to be members of the lucky sperm club, to be born in this great country and have all the incredible opportunities we are blessed to have should know best why so many people are so desperate to come to the United States any way they can, even illegally. YOU didn’t DO anything special to be born in America. YOU weren’t chosen to be here because you are more special than anyone else. You just got lucky. Likewise, nobody chooses to be born into poverty or war. And when drug cartels, despots, dictators, warlords and other bad actors tear a country and its people apart, what do you want them to do? Mexicans want to raise their children where they will have the opportunity to get an education and become anything they want to become. Syrians want to raise their children in a country where they don’t have to worry about an artillery shell dropping through their roof. How do you tell these people to get out, we don’t want you? What happened to showing compassion to those in need? The only difference between you and “them” is 1.5 millimeters and a piece of paper. Try wrapping your shriveled little mind around that fact.

Poverty is created by bad politics not lazy people. This may come as a shock to some of you Trump-ettes but most people don’t like to be poor. They like to eat and have clean clothes and healthy environments. People come to America looking for work and opportunity because they don’t have either in their home country. To those who argue that illegal immigrants are taking “our” jobs I say you’re idiots. Truly, you are. Embrace the fact that you’re stupid and then do what you can to fix it. Try turning off the TV and reading a book, one with out pictures. Because I don’t see you people lining up to pick fruit and vegetables. I don’t see you people lining up outside of Home Depot looking for work as day laborers. I don’t see you working as cooks in Chinese restaurants, or cleaning offices or public bathrooms or working at any of the unpleasant hard jobs that illegal immigrants are happy to have because these jobs allow them to give their families something they could never give them in their country of birth — a life. And, according to a March 1, 2016, U.S. News & World Report article by Andrew Serge, illegal immigrants pay $12 billion per year in state and federal taxes, which is $12 billion more than Trump has paid in taxes in the last 20 years.

We have lost our way. We have embraced bad behavior. We have forgotten civility. We celebrate the worst of humanity. Do I need to say more than the Kardashians and The Batchelor? We have become an international joke. So it is no wonder that so many Trump-ettes gleefully embrace Trump’s racism and hate and are not the least bit troubled by a recently released recording of Trump talking about sexually abusing women. Let’s be honest, if there was a tape of Obama saying exactly what Trump said, the outrage would have been something of a different quality. It would be a racist’s wet dream. Are you Trump-ettes ok with your son grabbing a woman’s vagina against her will? Would you be ok with a man grabbing your wife’s or daughter’s or sister’s or mother’s vagina against her will? That would be ok, right? Are you ok with other men referring to your daughter as a “piece of ass” as Trump said to Howard Stern? That’s just locker room jocularity. And don’t give me any nonsense about Hillary’s emails or Benghazi as a defense to Trump’s racism and sexually abusive behavior. You didn’t have a problem with George Bush’s bullshit reason for invading Iraq that claimed the lives of thousands of American soldiers. What weapons of mass destruction? It didn’t bother you when in 2007 it was revealed that the Bush administration and staffers used a private email server run by the Republican National Committee. Hillary Clinton was investigated for using a private email server and the FBI did not bring any criminal charges. I know, I know, it’s a conspiracy. But here’s the reality, it doesn’t matter what party you’re with, you’re going to raise this garbage about the other side. If an investigation results in charges then it’s a witchhunt. If an investigation finds no evidence of criminal wrongdoing then it’s a cover-up. Even that freak show Trey Gowdy couldn’t come up with anything meaningful after investigating Clinton on Benghazi but that hasn’t stopped the Republicans from politicizing the deaths of four Americans.

One final thought. In his October 13, 2016, National Review article, Charles Krauthammer said the following about Trump’s statement the day after the last debate that Clinton should be put in jail:

Such incendiary talk is an affront to elementary democratic decency and a breach of the boundaries of American political discourse. In democracies, the electoral process is a subtle and elaborate substitute for combat, the age-old way of settling struggles for power. But that sublimation works only if there is mutual agreement to accept both the legitimacy of the result (which Trump keeps undermining with charges that the very process is “rigged”) and the boundaries of the contest. The prize for the winner is temporary accession to limited political power, not the satisfaction of vendettas. Vladimir Putin, Hugo Chávez, and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t.

The threat of imprisoning a political opponent may score points with his political supporters but it is the language of dictators and political thugs and it should concern anyone who cares about freedom, the Constitution and the rule of law for which Trump has shown very little use.

Trump is stirring the pot and bringing it to a dangerous boil. He will say and do anything to win the presidency and he doesn’t care about the cost. The cost is national divisiveness. Do you Trump-ettes really think America will be better off under a man who fosters racism and division? After all the hard work to heal old wounds and come together not as black, white or brown but as Americans. As human beings. Are we going to let 1.5 millimeters of color separate us again? Are we going to tell someone they don’t have a right to make a life because they didn’t get a piece of paper? What would you do for your children? How far would you go for your family? What are “they” any different or less deserving? We need to see each other as human beings. We need to have compassion and stop making it “us” against “them.” There is no “them,” there’s just people. Anger and hate have no place in this great country and if we give into that we won’t be a great country for long.

The Politics of Criminal Justice

politicsMy mother taught me many years ago to never discuss religion or politics with friends because it can only lead to discord and animosity. Religious and political convictions run deep. We are raised with these beliefs that often shape us, define us and form the core of who we are. An attack on these beliefs is often felt to be an attack on who we are as people. These beliefs can change with time as we travel through life, shaped by our experiences and our new beliefs become as firmly rooted as the old and reflect who we are today.

I don’t recall a political or religious climate more contentious, more divisive or angry than today. We are a country divided on nearly everything, especially immigration, the economy, social benefits and the war on terror. Political events have devolved into brawls and visceral screaming matches. Instead of celebrating our differences, that which has always distinguished America as a beacon of individual respect and personal freedom, we now debase each other for the very differences that make us unique. Racial and religious intolerance is justified by ignorance. We have denigrated ourselves in front of the world and become a joke. There is not a day that goes by that someone does not express their political views on social media. These are beliefs that years ago were kept private. It was as rude to ask someone who they voted for as it was to ask them how much money they made. Today, there is no such stricture.

The Constitution guarantees religious freedom and freedom of expression. That does not mean you have the right to insult me for what I believe or to try to shove your beliefs down my throat. Somewhere along the way we have lost the ability to show one another respect for who we are and what we believe. Too many of us are afflicted with a sense of “If you don’t believe what I believe you are less than me.” Too many folks believe the rest of us are entitled to their political opinions and it has become entirely personal. Some posts are smart and thought-provoking while others are demeaning and stupid. Last week a friend of mine posted on Facebook that if any of his friends vote for a particular candidate they should un-friend him because anyone who can vote for that candidate and share his or her beliefs cannot possibly be his friend. I understand where he’s coming from and why, but it also shows how fragile relationships have become and how willing we are to walk away from those relationships because of political differences.

The one place politics does not belong is in the courtroom but we cannot ignore that it exists. The courtroom is no place to be a standard-bearer for any particular political party but all Texas state court judges run for election as Republican or Democrat or other political party. With the elections quickly approaching, courtroom politics is the ugly baby that can’t be ignored. Judicial and district attorney races traditionally have small voter turnout and the majority of the voting public has no idea who stands for what so they vote along party lines. The voters most interested in these races are those of us who work in the criminal justice system. Judges want to keep their fiefdoms and prosecutors want to keep their jobs. Defense attorneys and their clients just want to be treated reasonably and fairly, which is a pipe dream in some courts. Justice is supposed to be blind not political. The only agenda a criminal court judge should have is to ensure the just administration and due process of law and not to propound a particular political ideology. Any judge who runs on a “law and order” or “tough on crime” platform shouldn’t be a judge. That’s not a judge’s job. It is not the judge’s job to be the reserve prosecutor or to hamstring the accused from presenting a vigorous defense. The judge is a referee whose job is to call balls and strikes, not to determine the outcome of the game.

Unlike the judge, the prosecutor has a dog in the fight but it is the prosecutor’s job to ensure that justice is done, not to convict at all cost. Not to justify the ends by the means. Every Harris County prosecutor takes an oath that they will preserve, protect and defend the Constitution and the laws of Texas and of the United States.

I, (name), do solemnly swear (or affirm), that I will faithfully execute the duties of the office of District Attorney of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.
Article 16, Section 1(a) of the Texas Constitution. (emphasis added)

The importance of this oath is that each and every prosecutor swears to protect and defend the very laws that were established for the protection of those accused of committing a crime. Justice Sutherland best described a prosecutor’s duty in his opinion in in Berger v. United States, 295 U.S. 78 (1935).

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. (emphasis added)

That “guilt shall not escape or innocence suffer” is a prosecutor’s paramount function and should be his or her only consideration. In Texas, a prosecutor has sole authority to file and dismiss charges. Judge’s cannot dismiss charges except on motion of the state. That is a tremendous amount of authority concentrated in a single office, which brings me to the point of this article, the race for Harris County District Attorney. The Harris County District Attorney’s Office is one of the largest and most powerful prosecutor’s offices in the country. Recently, this office has demonstrated a shocking lack of common sense and good decision-making. From jailing a rape victim to secure her testimony to waiting seven months before disclosing that the Precinct 4 Constable’s office destroyed evidence that supposedly affected only 1,600 cases and allowing defendants to plead guilty and go to prison even though the evidence in their cases was destroyed.

What I found most disappointing and the only thing truly transparent about the DA’s office is the leadership’s attitude towards the duties it swore to uphold and the defense bar. In her debate against Kim Ogg last week, Devon Anderson made the following statement:

[Kim Ogg] is clearly not fit to be the Harris County District Attorney. She has not been a prosecutor for twenty-two years. For twenty-two years she has not been a prosecutor. She has the mindset of a defense attorney and a politician … For the last ten years she’s been representing people that we put in prison every day. Child molesters, dope dealers, murderers, even human smugglers. (emphasis added)

For what it’s worth, I’ll give you my two cents on the topic in spite of my mother’s advice.

This statement is chickenshit politics. Pandering to political supporters, the well-heeled set that don’t give a damn about defendant rights. The kind of folks who don’t want to hear about defendant rights. The kind who would like to see defendants buried underneath the courthouse.

And Devon’s message to the Yee Haw! Hang ‘em high crowd? By God, I’m your girl because Kim Ogg is a criminal defense attorney and I spent twenty-two years as a prosecutor! Oh, except for the four years I didn’t. The four years I spent representing criminal defendants all of whom were innocent, salt-of-the-earth folks, the kind you see in Norman Rockwell paintings! But forget that and vote for me!

For those of you who need a reminder of this apparently dark and shameful period in her legal career, go to Anderson’s bio on the Harris County District Attorney’s Office website, which states, “In 2009, Anderson left the bench and started her own criminal defense firm. Her firm’s focus was on the representation of citizens accused of state and federal criminal offenses.” That’s a cute turn of phrase, “citizens accused of state and federal criminal offenses.” I guess she thinks it sounds more wholesome than child molesters, drug dealers, murders and human smugglers. By her own statement she should be disqualified from seeking the office of district attorney but, apparently, thank the Lord, she recovered from this brief period of poor judgment. That’s politics, folks.

Anderson’s statement not only shows a clear disdain for those of us who represent criminal defendants but a desperation to distance herself from the four years she was a criminal defense lawyer. Worse, her handling of the recent Precinct 4 debacle and how it affected defendant rights and jailing a rape victim to ensure her testimony at trial, shows a disconnect from the oath she took as a prosecutor.

The implication that defense lawyers are somehow incapable of doing what is right and just or following the law is unmitigated bullshit. It is an arrogant mindset demonstrated by so many prosecutors who run for judge or district attorney, that they are somehow uniquely qualified for these positions solely because they are prosecutors. They are not. They are, in fact, by a large margin and with few exceptions, not the most qualified. Lawyers are taught in law school to argue both sides of a legal issue. To passionately advocate for both sides before making an argument for the right or best outcome based on the law. Most prosecutors have never seen the law from both sides. Most have never represented criminal defendants, much less took the time to see them as human beings. Many just don’t get it when they negotiate pleas or seek punishment from juries. Many don’t understand the true value of a case or how much of a defendant’s life they are seeking to take away. To them, it is just a number with no context. A two-dimensional perspective. Some crimes and some defendants demand harsh punishment. So many others do not.

I am not beating the drum for Kim Ogg. I don’t know her, never met her. And I don’t have a political agenda. I firmly believe that politics shouldn’t have a seat at the table in the criminal courthouse. My only “agenda” is to represent my clients vigorously and ensure that they are treated fairly by the prosecutors handling their cases and the judges tasked with ensuring they receive due process as guaranteed by the Constitution. If we want a just system, we have to demand that those who run for judge or district attorney give their loyalty to the Constitution, not to their political constituents. Until then, we will have to not only fight for our clients’ constitutional rights but against the political ideologies of the powers with the hope that justice be done and innocence not suffer.