Even Criminal Lawyers Tire of Violent Crime

TexasBarToday_TopTen_Badge_VectorGraphic

August 5, 2016

Early Sunday morning, at the end of a typical night of partying on Austin’s 6th street, shots rang out into the night. One person was killed and another four wounded. Maybe you heard about it. Odds are you didn’t. Last week in Houston a married couple was killed—police think by their 16-year-old boy. It made the nightly news and we all moved on.

The truth is that most of us in American society don’t think much about violent crime unless it reaches a threshold for our outrage: Newtown, Orlando, Dallas, Baton Rouge. How could we? We would live our lives in constant heartbreak for our fellow man, wouldn’t we?

If this were true of most Americans, one would think it goes double for the criminal lawyer. Like the doctor whose workplace surrounds her with death and dying, we lawyers who practice criminal law (defense and prosecution) daily ride elevators with heartbroken crime victims—and more often the suffering families of criminally accused who find themselves separated from their loved ones by long stretches of incarceration. And like doctors, many criminal lawyers develop dark senses of humor to cope. The criminal lawyers reading now have in their heads an image of the lawyers who most famously cope this way.

How could you possibly give yourself over to feeling the pain of others every day? And yet, the best lawyers I know are the ones who do. The ones who every day put on their humanity; who allow themselves to be vulnerable; who let their clients in.

We criminal defense lawyers are called sometimes to defend the innocent in these violent situations. Nothing could be much more stressful than holding the fate of an innocent person in your hands facing the potential judgement of twelve strangers. Still other times, we defend the guilty. This presents a whole other set of challenges, and it’s probably not the ones you’re thinking of.

I remember early after I left my job as a prosecutor with the Harris County District Attorney’s Office and became a criminal defense attorney; I tried a capital murder case with a more senior lawyer. Our client, 19 years old, call him Jose, was accused of shooting a homeless man in the course of an aggravated robbery. It was a bad crime to be sure. And he had done it. In fact, still high on Xanax pills, he’d confessed to the police.

Like the old Paul Harvey radio show, it was our job to tell the rest of the story. And the rest of the story was this: that when she was young, Jose’s mother had been brought by her father illegally from Mexico. He had sold Jose’s mom, essentially, into slavery to a cruel master who daily raped her. And it was as a result of one of these rapes that Jose was conceived.

Jose’s mother testified that she hated him from the day he was born. That she’d always hated him. That she told him she hated him every day of his life. Jose’s more seasoned lawyer, who I was assisting as co-counsel asked the most poignant question I’ve ever heard in trial. It’s stuck with me, and affected me indelibly.

He asked: “Can you identify one single, solitary act of love you ever showed this young man growing up?”

“No.” she replied.

No.

At age 13, Jose had become such a problem for his mother that she couldn’t control him (who could imagine why?). So she sent him back to his father to live. It was there that Jose faced physical abuse in addition to the psychological abuse he’d already endured.

At school, Jose met a girl. This girl showed him the first genuine affection he’d ever experienced. And her home was free of the abuse of his own. Unfortunately, it was also full of guns and drugs. His girlfriend’s older brother taught them both to abuse Xanax pills and to rob people for money.

It was on one of these nights of intoxication and violence that Jose’s life changed forever. He set out with his girlfriend’s .22 caliber pistol with a pink handle. As he encountered a homeless man, the trio demanded whatever he may have had of value. As he told the police in his confession, the homeless man, defending himself, bravely charged Jose. Scared and high, Jose pointed the pistol at the man’s feet and fired two shots, missing the man. Then, in an instant, Jose shot at the man’s shoulder. But as the man charged to spring at Jose, the perfect shot rattled out of his gun. The tiny bullet traveled into the man’s heart, through his lungs, and killed him nearly instantly.

Although Jose killed the man in the course of the robbery, it wasn’t a Capital Murder, as the state had charged, we argued. You see, under Texas law, Capital Murder under those circumstances requires that Jose specifically intended to kill the man. But even his confession indicates that Jose didn’t mean to kill the man. He was armed and scared. He’d started a robbery and found himself terrified. He’d fired warning shots and finally an attempt to wound the man. No question he was a murderer. Just not a Capital Murderer.

In case you’re wondering, the jury convicted Jose of murder and sentenced him to life in prison. Truthfully, it’s the best we were hoping for. He’ll have the chance now, if he shows promise of peacefulness, to leave prison on parole before he’s 50.

When I think about these violent crimes and the people who perpetrated them, I often think about Jose. I think about how every night as we’d walk with him and the bailiff back into his jail cell my co-counsel would smile and in a gravely voice of a man who’d smoked cigarettes since childhood would tell Jose, “G’night man. I love you.” And Jose would smile from ear to ear like he’d never heard those words before. Because truth-be-told, he probably hadn’t.

I think about Jose when I think about those other killers because before I met Jose, to me he would have been a demon: the kind of awful person who shoots a homeless man down in cold blood. He would have been my enemy. If I had ever given him a second thought. He might have just been another news story I missed.

But as I reflect tonight on the shooting late Saturday night in Austin, and last week here in Houston—on Jose, and all of the killings that have lately grabbed the national headlines—I’m heartbroken. While keeping it just together enough to do my job every day, I try to let my heart be just tender enough to mourn the deaths of those killed. I even try to remember the humanity of the perpetrators who, like Jose, have their own story of how they came to do the awful things they’ve done. That’s what the lawyers who I respect most do too.