About P. F. McCann

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association. His office can be found online at writlawyer.net.

The Disabled Among Us And Our Prisons

I want the reader to picture an unkind time in their lives – middle and high school.  A time when most of us were struggling to fit in, or to stand out on our own, in our own way.  A time when, to be charitable, we were not always kind to our fellow students, when we said or did cruel things to those who were singled out by the rest of the insecure and frightened for special abuse.  I am talking about how we, in school and today, in our very cruel, real world, treat the “slow kids.”

 

You remember them:  They were the ones in Special Education, or if you are as old as I am, the ones in the “remedial classes.”  They struggled to read, to understand the rules in school, to hold conversations with the rest of us.  They could not do the simplest of math problems, or diagram a sentence.  Perhaps the school system you were in didn’t label those young children “retarded” or the newer, more generous phrase “intellectually disabled.” Perhaps they were just placed in remedial reading or left to languish in the back row. They could not function in the classroom or on the playground without someone looking out for them, and there were never enough people willing to look out for them.  They weren’t bad kids, they were just dramatically different in the ways their minds worked- but too many times we didn’t really understand that difference.

 

The difference was not a helpful one.  The difference made them an easy target for the other insecure youngsters who needed to feel stronger or smarter than someone else, because they were afraid.  For the rare but occasionally truly cruel young person who simply wanted a human fly from which they could pull the wings, they were a source of evil delight, and only once in a while would the teachers or a good-hearted protective student step in to prevent the ugliness.

 

You remember them now, don’t you? You are thinking, in fact, of at least one little face.   You remember the sick feeling in your stomach when you watched but did not step in when someone picked on her, when the teacher rolled her eyes at him and everyone laughed.  You remember how you turned away, felt ashamed, when she waved to you on the playground?  How you felt when he was pushed to the ground or made a laughingstock by one of the inevitable little sociopaths who tried to rule that small penal colony we sometimes called high school?

 

Those disabled boys and girls grew into disabled adults, at least biologically, and unfortunately our adult world has been no kinder to most of them. Sadly, some of them wound up in our criminal justice system, because no one thought of how those hapless young underdeveloped minds would cope when faced with a criminal charge.

 

Picture those kids dealing with a police officer- not kind and understanding Andy Griffith, but a real street cop with little patience and a suspicious and paranoid mind.  Picture how afraid they would be.  We are all afraid when the police pull us over, at least a little.  Imagine the panic in those simpler eyes, just for a moment.

 

As far back as 1966, in a study of prisons and the population, the numbers of the mentally retarded were at ten percent of prison population.  That number was doubtlessly wildly under-reported, since many prison systems did not test for IQ in those days, and other measures of intellectual disability were yet undeveloped. That was before the explosion in our prisons, before the traumas of concussions were realized by our modern medicine and the traumatic brain injuries of those in our multiple wars in the last five decades. So, let me be very clear: the intellectually disabled exist in significant numbers in our jails and our prisons, largely because, just as when we were kids, we stand by or turn away.

 

Picture how one of those kids would have fared in an interrogation room with an experienced, cynical detective.  Picture how they would have done on the witness stand against an experienced, hardened prosecutor whose only job is to eviscerate even skilled, expert witnesses. Picture how those scared kids from your school would do in a jail awaiting trial.  How afraid would you be if you were in an open bay sleeping area with twenty rough men, accused of assaults, robbery, and addled by drug use? Now see in your mind’s eye how desperate would they be to do anything, even take a plea for something they did not do, just to get away from one more night where they were so scared they could not sleep?

 

Most of the struggling kids from our school days would qualify for a guardianship, for someone else to take care of all their adult decisions, including where to live or what to do with their money.  Most of them could qualify for disability from the Social Security Administration. Most used car dealers would hesitate to have them sign a contract for purchase of a car if they spent more than ten minutes with them.  Yet we continue to arrest them and convict them and sentence them with an alarming frequency for minor crimes, which at some point become major crimes, at least as far as the system is concerned.

 

We on the defense side of things are lucky.  We can, every once in a while, be that kid in school who stood up to the bullies who were hurting the kids who were different.  We can, if we take the time and make the effort, find a way to show that our clients are actually disabled under the law, and that makes a universe of difference once we get there.  Once we can show someone is truly not competent legally due to intellectual disability, we have just changed the world for this one client.  Instead of rotting in jail or prison, they could go home.  Instead of being convicted, they might go free, or they might be placed on community supervision with a diagnosis that could enable them to get the help they need.

 

You readers on the jury side of things are lucky too, at least once in a great while.  When you are called to serve on a jury, and someone provides you evidence of disability, you can take it into account on your verdict.  You can do whatever you want on those verdicts – acquit someone, find them incompetent, convict only of a lesser offense, be merciful in a sentence, or recommend probation.  I envy you that.

 

We do not do this enough on the defense side.  We do not recognize the signs of disability, such as time in special education classes, having a history of having someone else intercede when issues pop up, needing help in writing or reading even as adults, and leaving school at a young age.  We do not ask the follow-up on questions enough.  We do not ask the right questions.

 

I do not do this enough. I wish I did.  I wish I had gotten more testing done by a mental health professional whenever I have had a question about capacity of a client. I wish I had listened to a family more closely when they expressed a concern.  I wish I had fought harder for a client whose disability was masked from me because sometimes people do not ever want to be called or labeled slow or stupid.

 

Most of all, I wish I had done more for those kids back in school.  Maybe today I can. Maybe we all could.

How Much Punishment Is Enough?

 

The topic of punishment came up among my colleagues the other day. Ironically, it was initially about what had happened to the prosecutors who were fired after the recent change of administration.  Elections have consequences, and I have now seen seven changes of administration in the District Attorney’s office here.   Each has caused some disruption as some people were encouraged not to stay.  None in recent memory have had quite so many folks who were told they would not be back.

 

I will be candid that I thought this overhaul at the top was long overdue. I will also be candid that were some folks that were kept whom I would have fired, and that there were some who were fired whom I would have kept. I did not run for that office, so I figure that is not my call.  What has been more within my sphere is that several of these former prosecutors have now become defense attorneys, and have reached out for help and assistance in starting on this side of things. I have given that help, and advocated for some to become members of the local criminal defense bar.  This has met with some resistance by my brethren, and my response to them, and to you, the readers out there who may one day assess punishment in a jury case on the criminal docket, is: “How much punishment is enough?”  When does one stop kicking the person who is down?

 

I have been fired. It is painful and humiliating.  It is more so when you had a position of public trust, and your name is placed in the local paper as among those who were let go.  There is no good story one can give at that point to family and friends.  You were determined to be unwanted. That stings. Period.

 

I have also had days when I worried about the mortgage, and the prospect of losing my house.  There is nothing that makes that better, except work and money in the bank again.  I started in this hunter-gatherer business of defense work, so I at least have had a few decades to get used to the stress.  I cannot imagine what people with mortgages and kids do when they are let go from a good upper-middle class job. What does one tell a child when the tuition bill is due and one cannot pay it?

 

I have also done other things in my life, from laborer to military service to investigations.  If someone were to take my law license tomorrow, I would make do, and get by.  I have had the unique privilege of defending many people who were, well, frankly…damaged.  This unfortunately means they have sometimes filed complaints with the Bar and tried to do just that.   The Bar decided these complaints were without merit, but if I were a prosecutor and had such a complaint filed by a defense attorney, it would threaten the only way to make a living I had ever known, whether it was justified or not.

 

Even if the complaint is justified, that is a frightening place in which to find oneself.

 

Yet I suppose the same point may be made of most of our clients as defense lawyers.  If one has been publicly arrested and charged with a crime, from a DWI to a possession of drug cases to an assault, one has been most likely strip-searched, placed in county holding, taken from home and hearth, and if one has been in jail for more than few weeks [the average time between court settings here] one has lost a job and missed the rent.  So now in addition to having to produce bail that one likely does not have, one is facing homelessness for one’s family.  This is all before one hires a lawyer.

 

If you, the reader, have ever spent a day wondering if you were in trouble at work or at home, then imagine spending months awaiting a decision by a young prosecutor who has likely never known you or your life as to whether you would be facing prison, jail, unemployment, disgrace, humiliation, fines, money costs you can ill afford, and the ongoing stigma against your very ability to earn a living?  Over a hundred Texas licensing agencies and boards factor in criminal history in determining whether or not to “grant” you the privilege of making your daily bread, from commercial truck driving to nursing to barbers.  Take a gander at the occupations code if you do not believe me.

 

Likewise, for the reader, think of how painful it is to be away from those you love, even for a holiday.  For parents, think of how one misses children when they are away at school or at college, or move out of state.  For children, think of how one would like to see a favorite uncle or aunt again, or a grandparent, or a service or college friend. Now imagine having that choice to do so ripped from you, often for years at a time.  That is the consequence of prison, of jail. There are no furloughs or conjugal visits in Texas’ mass incarceration scheme, at least not in reality.

 

So, in our beloved system here, in our citadel of justice, we punish people for years for trying to drown their sorrows in drugs, or for a momentary lapse in judgment.  That punishment includes loss of liberty, when most of us hate to miss our family for even one day or one week.  It includes an almost permanent ban on fruitful employment due to the incredibly byzantine series of regulations that permanently punish past offenses.  It means permanent exile to the underclass for the sentenced and their families, because the children of prisoners face eviction, homelessness, and lack of education at a rate far higher than normal. I will visit that topic again, but for now simply know that is the truth.

 

It may come as a surprise that even those of my colleagues who see so much misery handed down without a thought by arrogant judges and uncaring juries were willing to pile on some of their former colleagues. Do not get me wrong; some of the prosecutors who were fired have abused their power.  I do not begrudge any boss the ability to shape their company or their office.  I do not wish to reward bad behavior.

 

I just have to wonder some days, whether dealing with former prosecutors or current clients, or future juries….how much punishment is enough?

An open letter to the new District Attorney

Dear Ms. Ogg,

You will be getting a great deal of advice in this month and the next. Some of it you will welcome. Some you will wish had not been offered. The following is a request, from someone who has labored in our local factory of injustice for over twenty years. Read it, ignore it, use it to line the bottom of the bird cage, do as you will with it, but please remember that this open letter is from someone who has never asked you for a favor nor said a damn thing against you. Take it as you wish.

1. It is time to leave behind the legacy of Johnny Holmes.
Johnny Holmes left his mark on the Harris County District Attorney’s office as an elected DA who ruled with an iron fist. That legacy was a ruthless, “win at all costs” mentality that has recently resulted in seeing a series of grants and recommendations of relief for prosecutorial misconduct, most of them against senior prosecutors who grew up under Holmes. Now, he may not have been a bigoted buffoon or a pill addict like the fellow he hand-picked to succeed him, but that fellow sure was, so what does that say about his judgment? It is time to sweep out the old notion that convictions at any cost are somehow justice, and get some fresh air in your office.

2. Neither the mentally ill nor addicts benefit from prison.
Your opponent, whatever you may feel about her, believed deeply in treatment courts and diverting the mentally ill and the addicted from prison. This reduces jail over-crowding and recidivism. It is a smart and practical use of scarce county resources to see to it that treatment for the users and the addled is a far more useful boon to society than locking them up and forcing them to take pleas in our current grain mill of a courthouse. Resources you pour into such programs and courts are resources that pay dividends to the taxpayer, to the accused, and to us all.

3. Your assistants will benefit from training far more than more needless, ill-chosen trials.
In every organization, from the armed forces to the police to the county, training is always the easiest thing to cut while being the worst thing to ever skimp on. Docket management is not your job; producing qualified, ethical prosecutors whose only desire is to make certain that the system works fairly is. Training includes making prosecutors familiar with mental illness and the latest in true forensics, not the “junk science” that has been used to convict the innocent so frequently lately. Training includes ethics training from points of view different from one’s own. Invite other groups, citizens, judges, and defense and civic groups in to your training. Make training participation and credits part of your evaluation of your hires. Please, make training a priority.

4. Invest in conviction integrity.
After many years of assuming that what police, forensic lab technicians, and prosecutors did was somehow above reproach, we now know differently. I knew you to be a fair and honest prosecutor, so I hope you will continue to staff and fund the division of conviction integrity in your office. Since their inception they have done yeoman’s work in helping review and correct wrongfully obtained convictions of our fellow citizens on everything from drugs to murder. Let them continue and help you and your office live up to the prosecutor’s obligation to seek justice, not convictions.

5. There are a relative handful of violent offenders who do damage far out of proportion to their numbers. Focus on them.
Many people make mistakes and cause us harm without meaning to injure. They regret their actions and would atone for them if they could. There are others who simply want to watch the world burn. Focusing the efforts of your office on those latte-r individuals in a coordinated, thoughtful way would do a great deal to restore all of our faith in the system in which we work. Expand the divisions for Special crimes and violent offenders. Please encourage your staff to actually work carefully with other agencies to target those who prey on the fringes of society, those who maim and hurt the homeless, the poor, the weak, and the old. When they are safe, so are we.

Ms. Ogg, you do not owe me a response. You do not owe me anything. I am simply someone who has seen enough abuses of power over the years to make any citizen weary of the game. Yet I continue to hope that someone will listen if I tell them the truth. Your old office lost its way over this past decade. That is the truth. You have a chance to truly make positive change in this place, that same place that some of us work within, and all of us depend upon.

Good luck.

Very respectfully, Pat McCann

What have you done for anyone lately?

I often wonder in this line of lawyerly work whether what we do matters. We all face these thoughts and moments, I suppose. One looks around and tries to find meaning in the work that one does. I used to envy my uncle, who was a teacher and a bricklayer [which was the trade he taught young people at the vocational school near my home] for this reason. I saw one of the fireplaces he built in a friend’s basement once – it was a work of art. It had a small oven on one side, followed the curve of the rock wall against which it lay, had small outcroppings for placing drinks and candles, a covered cubbyhole for the kindling and wood to sit neatly within, and an inlaid mantle. One could look at it once and immediately know that people would gather around it for decades, feeling its warmth and comfort. I envied him that feeling of pride in workmanship, more than once.

In this line of criminal work one sometimes has to search a bit harder for that inspiration. One can look to spiritual guidance for a sort of metaphorical lighthouse on the rocky shores of our daily workload of prison, mental illness, and human pain. In Isiah 61:1 it says, “The Spirit of the Lord GOD [is] upon me; because the LORD hath anointed me to preach good tidings unto the meek; he hath sent me to bind up the brokenhearted, to proclaim liberty to the captives, and the opening of the prison to [them that are] bound.

In the Hadith, the companion to the Koran in Islam that helps the follower perform in a way that is true to God, the holy man Milak said, “Beware of the supplication of the oppressed, even if he is an unbeliever, for there is no screen between it and Allah”. Dogen, the Zen philosopher of the 13th century, spoke of the capacity for all men and women to act with “rigyo,” or the kindness and compassion that allows all of us to take care of each other immediately, in the here and now.

So, whatever path you the reader follow, whether you are a lawyer or a judge, a baker or fireman, a mother or a grandfather or a child, allow me to pose you a question today – if you ran into Dogen, or Jesus, or Mohammed, and one of these figures asked you “What have you done for me lately?”……what would your answer be?

Have you urged mercy for anyone? Visited a prisoner to teach them to read? Helped an addict?

Spoken out for the bullied or the oppressed? Fed a neighbor? Given shelter to a soul who lost their home?

The best and most noble part of all of our everyday lives is the simple opportunity, each and every day, to do something that helps someone else. All of our faiths and philosophies call us to do this, from the Talmud to the Tao. As lawyers, we often have the chance to ask for better and more decent justice, but we fail to grab the chance when it comes before us. So, as a lawyer who appears in front of criminal courts each week, let me say it first….I have often failed. I have failed to keep tirelessly seeking a more just result for my client because it just seemed too hopeless – the facts were too gruesome, the judge too angry, the prosecutor too busy. I have failed, too many times, and those failures weigh on me some days.

Yet each day in this hall of injustice, this factory that passes for a court system in our county, I, you, WE have a chance as criminal defense lawyers to find justice, to seek a better result, to free the prisoner, to comfort the lost, and to keep fighting. Every day is a chance to do one decent thing, to end one man or woman’s confinement, to ease one addict’s misery, to convince one overworked and underpaid prosecutor that they can make a difference to a traumatized veteran or a mentally woman, to persuade one harried and overburdened judge to grant mercy. Every day is a chance to do something for the higher powers we follow, albeit often blindly, to make a difference here, and to do justice now.  

This job has a price somedays. That is the truth. Yet every day in this job is a chance to do something for someone else, in a way that, I like to think, might make my uncle envy me, just a little.  It is one of the few callings on this earth that lets one do that, and somedays I am profoundly grateful for the privilege it gives all of us who do this work. So, maybe, someday, if I run into St. Peter or Buddha, and they ask me what I did for others in my walk on this place, I will look them in the eye, and say, “Well, for a little while, I was a criminal defense lawyer in Texas.”  

Being a Grateful Mentor

No one does this job alone, or any job, really. Parents had parents; rookies in every field had people who taught them things. Even one’s opponents teach one things if one but pays attention. So when I say I am a grateful mentor, which perhaps seems a bit backwards at first glance, let me explain.

I had two parents who were in this business of criminal law, though a bit later in their adult lives. They were on opposite sides, so they were my first mentors in the profession even before I chose it after the Navy.

I was fortunate because I was lucky enough to clerk for and set up shop with some very smart criminal defense lawyers and one civil attorney who taught me a great deal. They showed me everything from how to conduct myself in court, to how to deal with clients, to how to argue before a jury. So I was actually given a wonderful leg up in this work, and I have, in gratitude, been trying to pay it forward since those days two decades ago. Paying it back seems an inadequate phrase since I never truly could repay those lessons I got to the people who gave them so freely; I can just do a woefully inadequate job of paying it forward as long as I am able.

I still find myself quoting the people who taught me. My friend and mentor Jon Munier, who passed from this vale of tears some time ago, used to say things such as,

“This job is a three-dimensional chess game in which you play the law, the facts, and the people against each other for the benefit of your client.”

My father once consoled me over one client’s ingratitude with the phrase,

“Son, if you needed love, you should have been a fireman.”

He also stated once that the difference between a man and a dog was that, if one was nice to the dog, it normally would not bite you. I suspect that one was actually passed from my grandfather, who was a difficult, hard, and skeptical man, but it was nonetheless true. So were those other bits of wisdom, hard-earned and prized, and I have tried my best to pass them on.

I am not sure I have done that as well as I could. I still genuinely think I learn much more from the young lawyers I mentor than they receive from me. The law changes all the time, and perhaps one of the few things I learned that I have tried to pass on is that this work requires a commitment to learning the same as a soldier’s life requires a commitment to physical readiness. Daily reading is as important in our job as daily pushups and ruck marches are in the soldier’s life. If one is not reading cases, criminal or evidence codes, or forensics each day then one is not meeting the standard, as the saying goes in the service. Yet my young lawyers are constantly inspiring me with their fearlessness, their drive, and their constant joy in this work.

I think one of the best things they give me is a perspective on this work. I have been doing this a long time, and I some days feel as if I may have lost my capacity for outrage. Then along will come one of these young lawyers, full of fire, and steaming mad at the racism, the unfairness, and the indifference our clients deal with every day in a system that only values them to fill a prison bed on contract to a corrupt county sheriff. In that moment, I am suddenly a real lawyer again, someone who is standing up, even if only alongside them, for someone who cannot do it for themselves. That is why I became an attorney. Hell, at some level, isn’t that why all of us did? The day I cannot recapture that is the day I will take down my shingle, quite simply.

So, to all those who went before me and passed on what they had learned, and to those who continue to teach me each day, thank you. I am a better lawyer because of you, my mentors and my mentees. I hope I have made you proud.