Always Talk To Mama

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October 28, 2016

I was recently appointed to represent a young man we can call Andrew. He was charged with a violent felony offense and has been convicted of several prior violent felony offenses. Andrew has been in prison or in custody for most of the past nine years. When I first met him, Andrew was very angry. He was mad he was in jail, he was mad his family was not able to bond him out, and he was mad at the police for arresting him. Andrew was unable or unwilling to offer me much assistance as to what happened the night he was arrested. I was unsure if he was blinded by rage, could not remember because of intoxication that night, of if he just didn’t want to tell me.

For several reasons, I had a feeling from the beginning this would be a trial case. There was very little evidence against Andrew and, perhaps only because of his prior criminal history, the State was making a very high offer to him. Andrew told me he was only interested in a plea bargain on a misdemeanor. Both sides were digging in their heels.

I asked him towards the end of our first conversation that day in court if he wanted me to talk to anyone in his family about his case or if I could answer any questions for them. Andrew told me that he didn’t know anybody’s phone number, but he wanted me to get in touch with his mother Deborah. I filed a motion to get funds for an investigator later that week, both to help secure witnesses and also to help gather mitigation evidence for trial, and, if necessary, punishment.

The investigator was able to get in touch with Andrew’s mother as well as many other family members quickly. I met with Deborah and was provided with a wealth of information. Despite meeting with Andrew in jail and in court several times during the next few months, he was still unable or unwilling to help me. Even though the case was set for trial only three months after being filed, Andrew wanted things to move faster and faster but was still unable or unwilling to help me.

His mother, however, was a different story. Not only was she an eloquent and intelligent woman, she had a lot to say. She was able to give me a lot of background information about her son Andrew. She told me he had a college degree and used to have a small business in the Houston area. She told me that she thought Andrew’s issues were related to the death of his father and his subsequent drug abuse. The timeline certainly made sense. Deborah’s husband passed away less than one year before Andrew’s first arrest in his late 20’s.

After learning these facts about Andrew, I went back to the county jail to meet with him. I was slightly apprehensive as our last meeting a few weeks earlier in court ended with him yelling a string of profanities at me and all those around him. I talked to Andrew about the things his mother told me. I could sense a change in him. He confirmed a lot of the things his mother told me and was able to give me and my investigator more leads to chase down. We had a lot of good information to use to humanize Andrew as well as defend him in court.

Maybe he started to trust me a little bit more, but Andrew was also able to remember much more about what happened the night he was arrested. He was able to point to specific details in his relationship with the complaining witness . With the new information, I was able to find several inconsistencies in her statements as well as discover major biases and reasons for her to lie. After pointing these out to the prosecutor, Andrew’s case was dismissed on trial day. When I have him a copy of the Motion to Dismiss, he told me I alright in his book. I told him to thank his mother. Without talking to her, I would have had a much smaller chance of learning anything about Andrew and later enough information to secure his release.

Preparing for Punishment

Let’s establish a few ground rules before we jump in to this topic. In Texas, criminal trials are bifurcated. The first phase is often called Guilt/Innocence. Simply put, the only issue to be determined here is whether the State of Texas is able to prove beyond a reasonable doubt the guilt of the citizen accused. If, and only if, this happens, trial proceeds to the second phase: punishment. During this stage of trial, much more evidence can be submitted to the jury (or judge). The State is allowed to present evidence of any potential prior criminal acts and the defense can put on evidence to “complete the story” about the citizen accused. At this stage, the punishment is handed down after hearing all the evidence.

For a criminal defense attorney, this phase of trial can be just as important as the first phase of trial. Securing friends, family members, and co-workers as well as gathering any mitigation evidence is essential. Sometimes, despite the wishes of the lawyer and the client, the facts of the case are incredibly challenging to combat. Evidence such as video surveillance, confessions, DNA and fingerprint evidence can sometimes be very difficult to overcome after careful and thorough analysis. In cases such as this, where the guilt of the client appears to be evident, the second stage of trial is where the lawyer can do much more work.

Recently, I had such a case. My client, a young father who we will call Danny, lost his job after he was laid off. His wife was pregnant with their second child. He was feeling a lot of pressure to provide for his family, and in a rash decision, decided to rob a convenience store. He took an unloaded gun to a store and demanded the money in the register from the clerk. He ran back to his car and sped off. Danny, who had never so much as gotten a traffic ticket before, was in over his head. He did not wear a hat or mask or attempt to disguise his appearance in any way. His body and face were seen on surveillance video. So was his car and the license plate.

The next day, Danny went to the local police department with the money he took and confessed to the aggravated robbery. He was arrested and sent to the county jail. The police gathered all the evidence and sent the case to the District Attorney’s Office. Shortly thereafter, I was hired to represent Danny. After a few months, his friends and family were able to gather money to bond him out of the county jail.

I started working on Danny’s case. To say the evidence was strong would be a massive understatement. Danny knew he would be found guilty if we went to trial. I knew it. The State of Texas knew it. His family knew it. Rather than throw in the towel, we set out to fight in the second stage of trial. I filed an Ake motion, requesting the judge to authorize funds to pay for a mitigation expert to either help secure a favorable plea or help in the second stage of trial. The judge quickly signed off on this request.

We spent the next few months interviewing Danny’s wife, parents, friends and family, former employer and his new boss. Danny was able to get a new job doing lawn care and also did weekly community service while he was on bond. He took drug tests on his own and was always drug free. His friends and family, as well as co-workers, were able to help paint a picture of a young family man who made a catastrophic mistake and was truly sorry for his actions. All of us felt we had a very strong chance of getting deferred adjudication from the judge in a PSI.

Despite our best efforts, this story does not have a happy ending. In the week before we were set for our hearing, Danny inexplicably got into an argument with his boss at work, beat him up in front of the rest of the work crew (and more surveillance cameras) and stole some lawn equipment. He was quickly arrested and charged with robbery. Once again, the State had a very strong case against Danny. Due to the work we had done preparing for punishment, we were able to secure a plea for five years in prison, the minimum for aggravated robbery.

Of course, nobody wants to go to prison. That’s obvious. But Danny, and his family, knew that pleading to the minimum was much safer than risking much more (potentially ninety-nine years or life in prison) in front of a judge or jury at trial. In the few days between the second arrest and our court date, I sent a paper written by William Habern, David O’Neill, and Debra Bone to my client and his family. This is available on their website and is incredibly helpful. This paper explains basic things such as what to bring, as well as parole eligibility criteria and provides a thorough explanation of what to expect upon entering prison in Texas.

No criminal defense lawyer wants a client to go to prison, but not preparing for that eventuality is both naive and malpractice. We must gather evidence and interview witnesses to be prepared for the punishment phase of trial. We must also prepare our clients and their families for prison. I have saved Mr. Habern’s paper and send it to clients before they go to prison. The paper answers countless questions and helps ease anxiety. It’s a big part of preparing for an actual punishment for any lawyer, client or family.

 

Protecting Those Who Protect Us?

Fate whispers to the warrior, you cannot withstand the storm. The warrior whispers back, I am the storm.” -Unknown

There can be no doubt of the sacrifices made by those who protect our way of life as Americans by serving in the armed forces. These brave men and women put their lives on the line every day so that we can enjoy the rights, freedoms and privileges that we as Americans often take for granted. But what do we do, and what do we owe on a moral level, to those who fight? What do we owe those who are the storm so that we can bask in the sunshine?

In early 2016, I was in a district court in a county near Houston. I overheard a conversation between a man with a crew cut and the judge and staff. The man, let’s call him David, was being told that he did not qualify for a court appointed attorney, yet the man told the judge and staff he was on Veteran’s Affairs disability and could not afford an attorney to help him fight his felony charge. I stopped to listen, and a few moments later, David left the courtroom with a dejected and defeated look on his face.

I walked up to David in the hallway and stuck out my hand to shake his. I introduced myself, handed him my business card and told him to look me up and if he wanted me to represent him, I would at no charge. He looked at me with incredulous eyes. David told me he wanted to pay something, but I told him I only wanted a handshake at the end of the case, no matter the outcome.

Over the next several months, I learned about the case and about David. He told me that he was hurt in Iraq while serving in the United States Army. An explosion did severe damage to his leg. He was also involved in multiple firefights and had seen horrible things. David explained he had been working with the benefits coordinators at the VA and was hopeful he would be approved for more benefits. He had been diagnosed with Post Traumatic Stress Disorder and was seeing doctors and therapists.

I also learned he had a wife and a young family. Perhaps due to his PTSD or his injuries, David had been unable to hold down a meaningful job for very long. His doctors had prescribed him several pain medications, but David was also charged with possession of a controlled substance and was potentially facing up to twenty years in prison. The prosecutors had a strong case against my client. I worked with a specialty prosecutor on this case who was an Army Veteran himself. We got records from the Department of Defense and the VA, worked with David’s counselor and benefits coordinator for months.

A few weeks ago, David entered into a veteran’s diversion program and can avoid having charges on his record after a twelve-month program. He’s substance free and while on bond, he earned a job and is making a good living for his family. We walked out of court together, and David was so excited for his future and potentially not having any sort of record. We shook hands on the courthouse steps and I told him it was my honor and privilege to represent him.

This case seems like it’s destined for a happy ending, but it brings some ugly truth to light. Besides the obvious issues of mental health problems, substance abuse and a lack of a social safety net, there are issues in the legal field as well. Why did a man who fought for our country not even know about Veteran’s Court before his case was months old? Why was there such a roadblock to getting an appointed attorney to protect his rights? Why did it take so long for David’s case to get to court? Does the State have a duty to identify impacted veterans? What do we owe those who protect us?

Ask and Ye Shall (more often than before) Receive

I’ll admit it. I’m one of (if not THE) first people to complain when something is wrong. Whether it’s something shallow and pedantic or of real substance, I’m not the type to sit idly by and let things go to pot. Sometimes, if it is on the trivial side, I’ll make what I consider to be a pithy comment. If it’s more important, I will try to do something about it. It’s part of what makes me who I am as a person and has served me well so far in my defense career. It’s often beneficial to our clients for us to be critical (hyper-critical?). Sometimes this critical nature can lead us to see probable cause issues or weaknesses is cases resulting in dismissals or favorable plea outcomes.

With that being said, we should also be just as quick to praise people when things go well. Countless lawyers in and around Harris County have complained (rightfully so) about the paltry numbers of our clients who get PR bonds. Harris County judges, in particular, had been woefully reluctant to grant PR bonds in felony cases was a common refrain in the past. I can only speak for my practice and my clients, but this is changing. And changing for the better.

In one court I routinely appear in, the practice is for a citizen who is going to enter a plea for probation or deferred adjudication (I will call them both probation throughout this piece for brevity’s sake [I don’t want anyone to complain]) to have an assessment done before they plea. The idea is to gather enough information to try and tailor a program on the probation for each individual citizen.

Often, one person who is charged with the same offense as countless others may have vastly different needs. Some may have psychological issues. Some may have substance abuse issues of varying severity. There are many other variables, but the idea behind the assessment is to gather that information before the citizen starts probation and to give them the tools they need to complete that probation. This process can take several weeks, and, if the citizen is in custody, that can be devastating. Jobs, apartments, and families often hang in the balance.

Recently, I was in that felony court and my client agreed to enter a plea for probation. Time was needed to have the assessment done and report sent to the judge. I asked the judge if my young client, who had never been in trouble before, could be released on a PR bond while the assessment was done. The judge very quickly agreed and my client was released on a PR bond that day. He called me and told me he still has his job and is very thankful the judge granted the PR bond. Now, he can wait for the assessment to be done and not worry about losing his job in the meantime.

In that same court, I represented a young woman who was already on probation for a first degree felony. She was accused of several technical violations, including two positive drug screens, and had been in custody for a few days. She told me that she had a prescription that would explain away one of the failed drug tests. She also told me that she had been working two full time jobs to catch up on her fees, court costs, and restitution.

The judge, who had placed this young woman on probation over the objection of the prosecution, was not happy that she had violated her probation. He was inclined, however, to leave her on probation but to send her to out-patient rehab. He wanted to review some paperwork from when she first went on probation. He asked me to return the next day and ask for a PR bond. I returned the next day, asked for a PR bond, and he granted one. She was able to keep both of her jobs and is currently still on probation and doing well in rehab.

In another case in another court, my client was accused of a low level theft. The amount alleged to have been stolen would ordinarily be a misdemeanor, but because of my client’s lengthy criminal history, the case was enhanced to a felony. As such, his bond was high and beyond his reach. I reached out to his family and friends, but was unable to find anyone who could or would bond him out. On the second setting, a key piece of evidence was not available, despite a request by the prosecutor and a subpoena I had issued. I asked the judge for a PR bond and the judge very quickly granted one. My client is still on bond for this case, several months later. He was able to get his vehicle out of impound before it was cost prohibitive to do so.

I was in a court in which I do not routinely practice. My client was charged with a low-level drug felony. The probable cause for the search was questionable in my eyes and I really needed to see the video. On the first setting, not only was the video not available, the police report had not been submitted. I called my client’s family but was unable to get anyone to bond him out. On the next setting, again, nothing was available for me to review. I asked the judge for a PR bond and he immediately said yes. This case is still pending and has been for months. We are still waiting on a lab report. My client has come to every court setting (he was late once, but did appear before too long that morning) over the past six months.

Again, I can only speak for my clients and my practice, but more and more judges are granting PR bonds. They are granting them more and more often. This is not to say that I’m always successful in getting PR bonds for my clients because that’s just not true. I have a client currently charged with Bail Jumping. I know he’s not going to get a PR bond.

I know several lawyers that are so frustrated by not getting PR bonds on their client’s cases that they have stopped asking. If you never ask, of course the answer is always no. I had a conversation with a District Court judge recently about lawyers just not asking for PR bonds. The judge told me he would always consider a PR bond in the right circumstances, but was so infrequently asked. Judges aren’t going to grant PR bonds on Aggravated Robbery or Murder cases just because you ask them nicely. But, ask anyway. Ask when you think it’s appropriate. Ask when your client requests one. Ask when there are delays in discovery. Ask when there are delays in getting assessments done. Just ask and ye shall receive.

The Real Human Cost of the War on Drugs

In my criminal defense practice, I travel to four different and distinct counties in the Houston area. I get to see how first-hand how different judges, prosecutors and juries feel about the war on drugs. Those reactions are often quite varied from court to court, as well as county to county. There are certain costs associated with the prosecution, as well as defense, of those that find themselves in the criminal justice system on drug cases. These costs can be quantified. For example, in 2016, the United States spent nearly $30 billion dollars on the War on Drugs on the Federal level. Fox News estimates that nearly one trillion dollars has been spent on the War on Drugs over the past forty years.

I also get to see the effect the war on drugs has on those accused of drug related crimes. That human cost is not as easily quantified and is, often, impossible.

In one smaller county near Houston, I represented a woman we will call Tonya. She had been charged and convicted in the 1990’s with low-level felony drug cases and was charged again with state jail felony possession case. Tonya was charged with possession of less than a gram of a controlled substance in late 2015. For comparison’s sake, a gram weighs roughly the same as an average paper clip. Before she was arrested, Tonya was working in the service industry and earning an honest wage. She lived with multiple members of her extended family.

Due to Tonya’s prior felony history, her penalty range was enhanced from six to twenty four months in the state jail division to two to twenty years in prison. Her bond was set in accordance with the local bond schedule but was still beyond her financial ability. I spoke to multiple members of her family, including her daughter, and they consistently told me that they just couldn’t afford the bond. Her bond was eventually reduced, yet, sadly, was still beyond their reach. Tonya sat in jail waiting for the Department of Public Safety’s Drug Lab to share the results of the drug analysis for more than six months. During that time, while she sat in jail on a less than a gram possession case, her daughter and her family were forced to leave their home. They were barely scraping by with Tonya’s help, but with the matriarch of the family in jail, things crumbled.

I tried, as did Tonya, to keep in touch with the family, but soon, the phone calls were not returned and eventually the phones were “no longer accepting incoming calls.” The lab report came back after nearly seven months and showed that Tonya was in possession of one-tenth of one gram of a controlled substance. For such a tiny amount, a nearly unquantifiable amount of drugs, Tonya lost touch with her daughter and family, lost her home, lost her job and almost seven months of her life.

In another county near Houston, I represented an older man we will call Jimmy who was charged with possession of one to four grams of a controlled substance, a third degree felony. Unfortunately, there was more to the story as he also had several prior felony convictions. Jimmy was enhanced to a potential range of punishment of twenty-five years to life in prison. I met with Jimmy in the county jail shortly after he was arrested and he told me that he was in the wrong place at the wrong time. I thought to myself that I had heard that same song and dance about some other dude’s pants, or car, or hotel room so many times. But I still dug into his case. I discovered that he really was at the wrong place at the wrong time and that there was virtually nothing tying Jimmy to the drugs found at the scene. Other than, of course, his mere presence.

It took more than four months for Jimmy’s case to get to court the first time. Jimmy, like Tonya, could not afford to bond out, and was brought to a cattle-call docket along with nearly sixty other citizens accused of crimes. His family could afford to bond Jimmy out, but chose not to. Whether it was frustration or tough love I don’t know, but Jimmy stayed in jail throughout this process. Despite a timely request months earlier, not all the discovery was ready at the first docket call. Jimmy’ s case was reset for several months. The judge did grant Jimmy a personal recognizance, or PR, bond due to the lack of discovery.

Jimmy made bond and got back to work. While he was in jail, he worked for the local county Sheriff’s Office doing skilled maintenance work. After his release, he picked up work at a local mechanic shop. After a few months, Jimmy’s case was dismissed by the District Attorney’s Office. He got back in the good graces of his family. Everything seemed like it was trending upwards. We kept in touch for a few weeks. Then one day, Jimmy stopped answering my calls. His phone went to the all too familiar “not taking incoming calls” refrain I hear entirely too often.

I feared he was back in jail, and I was right. This time, there was no happy ending. Jimmy was pulled over for speeding and the police found a sizeable amount of a controlled substance in his lap. This time, Jimmy was back in jail and began the months long process all over again. Eventually, the lab report was positive and Jimmy accepted a plea offer for several years in prison. He lost his job. His father, a local religious leader, was ashamed and eventually quit returning my calls.

I represented a third man that we can call Esteban in a larger county. Esteban had been in and out of trouble for years. He’d been convicted of felony offenses since I was in grade school. He appeared to be, and later confirmed, a drug addict. He had been convicted of possession cases. He had been convicted of theft cases that he said were the fuel to his addiction. He had been on probation, he had been to jail, and he had been to prison. His sister, Elena, was at her wit’s end. She had bonded him out of jail countless times. She had left him in jail a myriad of times. She had hired several lawyers and sent her older brother to rehab twice. She didn’t know what to do and was distraught.

The judge in Esteban’s court offered him only a few months in jail, which, considering his criminal history, was a fair resolution of his case. She also told him that if he was serious about getting clean, she would consider putting him on probation and sending him to an intense rehab facility for a minimum of six months. Esteban, to his sister’s surprise, chose rehab. He’s still in rehab but his sister keeps in touch with me. She told me a few weeks ago that he’s an entirely different person even after only a few months in rehab.

What’s the Answer?

Is it a viable solution to continue imprisoning addicts for low level drug offenses? Does it make sense? Is it justice? More than 143,000 Texans are currently in prison. This figure does not include those in county jail awaiting trial or serving sentences, those on probation, or those in the Federal system. Of that figure, more than 20% are there for possession of less than one gram of a controlled substance such as cocaine or heroin. Is imprisoning so many of our citizens the best use of Texas’ finite financial resources?

So, what’s the point you may be asking yourself? Ask yourself how much of the money spent on the war on drugs is spent on education? Less than $70 million dollars. A mere drop in the bucket of the $30 billion. Shouldn’t much more money be spent on education? If we change or reduce demand, won’t there be a change in supply? I would also propose a long-term study on recidivism rates after intense rehab programs as compared to the status quo of locking people away for such minor transgressions?

Are we winning the war on drugs? Or are we losing the war on drugs?