Happy New Year?

happy-new-year-clock-1450033854gbk2016 certainly left a bitter taste in many people’s mouths. Of course, many people remain upset about the presidential election. Locally, the District Attorney lost her bid for re-election as did many judges. In the aftermath of the election, nearly 40 high level prosecutors were told their services would no longer be required under incoming District Attorney Kim Ogg. Some of our comrades have gotten sick, passed away and divorced. We also lost courthouse fixture Rick Johnson. Even this week between Christmas and New Year’s Day, celebrities Carrie Fisher and George Michael died, adding to a list that has already gotten too long.

The look of the Criminal Justice Center is unquestionably going to be very different on January 2, 2017. Some of the changes, I hope, will be for the better. Others are not as optimistic. Don’t worry, I won’t name names, pessimists. But what are the changes we are hoping to see? What attributes are we looking for in our new prosecutors and judges?

Assuredly, there are certain characteristics and traits we hope to see. First, prosecutors must seek justice not only convictions. All too many times, under prior regimes in Harris County, has there been a win-at-all-costs mentality, or at least perception. Making secret deals with witnesses, sponsoring dubious or worse testimony, protecting bad acting police officers, hiding evidence, and seeking convictions without evidence are not the hallmarks of an honorable prosecutor, or office.

Quite the opposite, in fact, should be true. I was recently appointed to represent a young man charged with theft. Due to his numerous prior theft convictions, he was facing a felony, and because of other convictions, he was looking at an enhanced penalty range of two to twenty years in prison. I spoke with the chief prosecutor on the case after reviewing the police report and watching the surveillance video. The evidence was quite clear; my homeless client had stolen a premade sandwich, yogurt and juice from a convenience store.

I prepared to argue about my client only stealing bread and the desperation many homeless people feel but before I could open my mouth the prosecutor said he would offer time served to my client. No argument, no back and forth, but time served. Justice in this case was time served. My client knew he had broken the law ad was prepared to face the consequences. He was so surprised he was getting out that day that he began to tear up. I told him the prosecutor on his case was seeking justice and not merely seeking convictions and was one of the good ones in the courthouse.

This is the model that should be strived towards. Justice, not hammering a desperate homeless man for stealing food by sending him to prison for years. I am hopeful that the new prosecutors or those taking new positions in the administration and office follow this model and avoid becoming a Javert, only seeking punishment and prison.

In regards to the judges, both new and old, we hope for three characteristics primarily. First, neutrality. A judge should be like an umpire in baseball. Call the balls and the strikes; don’t play shortstop. In my practice, I travel to four counties in the Houston area and have been in front of numerous judges. Some are incredibly fair to both sides, allowing both sides to put on a case. Some are tough on both sides. Some clearly have their favorite side, or lawyer, and make things difficult for all others involved. Having to combat the prosecutor during the trial is often cumbersome on its own accord, adding a judge to the mix is fundamentally contradictory to justice.

The second is fairness, which I admit is closely related to the first topic. Being “tough on crime” is both a topic previously discussed on this blog and exactly not what judges are supposed to do. Call the balls and strikes, but, if you want to play, pick a side: open a law office or apply for a job with the District Attorney’s Office of your choosing. In some courts, electing the judge for punishment can be considered malpractice because some judges want to be “tough on crime.” Sometimes, people deserve to be punished and punished severely for their crimes and there is a time and a place for that. But that is not the case in every trial.

Third, and also related to the first two topics, is consistency. I recall being a young prosecutor practicing in front of a judge who had a pet peeve for burglary cases. This judge wanted people to take classes as part of any probation for burglary, but was consistent in this regard. I recall another judge who simply would not allow the District Attorney to ask potential jurors about the One Witness Rule, whether it was germane or not. Other judges, depending on the day, can swing wildly from side to side in punishment, or what areas could be discussed in front of the jury. This makes practicing in front of those judges akin to walking through a minefield. If you know where not to step, you’ll be ok but if you don’t know which step could be your last, it’s nearly impossible.

I am hopeful that the new judges will be neutral, and fair and consistent.

Happy New Year.

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.