On Character and Suspicion (Harris County ADAs Under Suspicion)

In 63 BCE, during his rise to power, Julius Caesar was appointed to the powerful and sacred office of “Pontifex Maximus,” the chief priest of the Roman state religion. As part of his new role, according to custom, his wife, Pompeia, was required to hostess a religious festival of the “Good Goddess.” The Good Goddess festival was pretty unique, even by strange pagan standards. It was only for women, and was one of the few times women were allowed to drink strong wine, perform animal sacrifices, and stay out late at night. All in all, it was a great, albeit a bit bloody, time.

Problematically if not predictably, a cocky young man named Publius allegedly disguised himself as a woman and snuck into the festivities in order to seduce Pompeia. Rumor spread that Pompeia was having an affair with Publius, and the city was abuzz with the worst kind of gossip. Publius was charged with Sacrilege, a criminal offense back in those pre-separation-of-church-and-state days, and to the credit of the ancient Roman legal system, was entirely acquitted- probably rightfully.

It became apparent that Publius probably didn’t sneak into the festivities at all, and it was certain that he had never had any kind of contact with Pompeia, let alone any conduct that might…besmirch her virtue, so to speak.

Still, Caesar divorced Pompeia immediately, in spite of knowing that she was innocent. When asked why he would divorce his wife for doing nothing wrong, Caesar said, “Caesar’s wife must be beyond suspicion.” (We forgive darling Julius for referring to himself in the third person. Sometimes even your dearest Allison is guilty of such.)

At first, it seems pretty wildly unfair for ol’ Julius to divorce the luckless Pompeia, who was summarily kicked into the ash-heap (or perhaps ash-hole?) of history with this one disappointing little story. But if you think about it, really, shouldn’t she have been beyond suspicion? Don’t we all want to be the kind of people who, when someone whispers a filthy little rumor about us, the listener says, “Wait, actually I know her, and there’s no way she would do that. Don’t come around here spreading lies about the most honest person I know. Good day, sir.”

I think that as attorneys, and especially as attorneys who practice criminal law, we have to be the kind of people who are beyond suspicion. We are ethically bound to be honest to the tribunals before which we appear, and to other officers of the court, including opposing counsel. While we are not obligated to tip our hands to the adversary, we should endeavor to play fair.

While an accused enjoys “innocence until proven guilty beyond a reasonable doubt,” we, as attorneys, from an ethical and moral standpoint at least, do not.

The recent shake-up at the Harris County District Attorney’s Office is an example of the failure of attorneys to be beyond suspicion. The allegations that at least three prosecutors who were recently “asked not to return” to the office under the incoming Ogg administration have contacted crime victims and their families and spread false information and panic are truly horrifying. I hope, for the sake of the victims, for the honor of this profession, and for the future careers of those attorneys, that those allegations are not true. I will not speculate on the professionalism of the three ADA’s named, other than to say that one of them, Nick Socias, was the ADA who recently made news for jailing a rape victim to ensure she testified against an attacker, and was defended by Devon Anderson in an odd and ill-advised YouTube video.

I hope (though I’m afraid that this is hope trumping experience in this case) that these prosecutors have worked hard throughout their careers to develop a shining and honorable reputation. That they will be beyond suspicion, that the allegations are not only false, but that the people who know these individual prosecutors will refuse to believe it anyway.

Unfortunately, the solitary fact that these prosecutors worked under outgoing DA Devon Anderson may make any protestations harder to believe. Anderson has proved herself, time and again, to be untrustworthy and deceptive. Even now, at the twilight of her tenure, rumors are swirling about the odd circumstances of her recent, personally-signed dismissal of a misdemeanor DWI for a prominent Houston attorney who also happens to be a former campaign donor to Anderson. Maybe Anderson’s dismissal was reasoned and just. I hope that it was. But whatever the facts of the situation may be, it’s fair to say that the public doesn’t think her character is above the suspicion that she would engage in such blatant cronyism and a trade-off of favors. Attorneys who worked under Anderson and had her favor, especially those who were promoted by her and were protected by her, have a bit of a fetid tang that is going to be hard to wash off.

Kim Ogg’s recently publicized decision to refuse to renew the contracts of 37 prosecutors, many of them in senior and supervisory roles, has come under a considerable amount of fire in the past days. The continued circus of the Anderson administration and the constant, dripping faucet of indications of a culture of unethical (at best) behavior by attorneys who not only should know better but are obligated to do better shows that Ogg’s massive layoff was not only acceptable but necessary. I have great hope that Ogg will find people to fill the empty positions who have earned reputations that are not only above suspicion but also beyond reproach.

As for Devon Anderson, kick her in the ash-hole.

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.

Lawyering: Now What?: 4 Things to Remember After You’ve Gotten Started

  1. Never Stop Working

The first time you make a bit of money, it may be tempting to shift your focus to other cases, or, actually enjoying what you’ve made up to this point. DON’T. As a young lawyer starting out on your own, you’re at a severe disadvantage when you take on cases. First, you have a lack of experience with not only actually handling the legal issues in the cases, but experience being in front of the particular judges, and dealing with the prosecutors in each particular court you’re in.

From my experience up to this point, never underestimate the importance of relationships in criminal law. It sounds cliché, but your first impression that you give to people you work with is the one that sticks with people, and one that will be extremely difficult to change. If you’re a solo practitioner in criminal law, prosecutors are technically your coworkers for each case. That all goes to say, as a young attorney, you’re going to have to outwork more experienced attorneys, as they’ve got the benefit of time on their side.

 

  1. Take Every Opportunity Given

Just being frank, when you’re a young attorney, you’re going to have to take cases where clients don’t have your full amount of money upfront, or get paid in other ways. While by no means am I saying take cases that you feel uncomfortable about, or are morally opposed to, sometimes you’re going to have to accept alternate forms of payment, or things of the sort. For example, one of my first cases as an attorney involved being paid in the form of a lien on a client’s personal injury settlement. While I needed the money at the the time, I also needed clients, so I accepted the lien, and ended up getting his case dismissed. I thought that I would never end up getting paid on the case, but lo and behold, I received a check in the mail last month for the full amount of my fee, all at once. It made the month a little bit more special.

 

  1. Never stop learning

I think that I briefly covered this in one of my previous articles, but I cannot state it enough. NEVER STOP READING THE LAW. NEVER. STOP. READING. THE. LAW. Law is a fluid practice. Court decisions happen every day that create new precedents, which in turn affects your cases, as well as everyone else’s. Don’t be the one that’s a bit behind.

 

  1. Be Yourself

Above all else, never let an occupation, or passion change who you are at heart. Clients relate to someone that can relate to them. Putting on a fake version of yourself, or thinking you need to act a certain way because you’re an attorney, isn’t what makes you a better attorney, or what makes clients relate to you. My mentor told me to always be myself, and that was probably the single best piece of advice I’ve been given up to this point.

Devil’s Advocate: How Can You Defend Those People

The most common question asked of a criminal defense lawyer is, “How can you defend those people?” Sure, we’re popular at cocktail parties because our stories are much more interesting than any a tax lawyer might tell about complicated tax shelters or IRS audits. This is because most people, in the dark part of their hearts, are vicarious spectators to the seedy underbelly of life, hungry for the gory details of the latest sensational murder or other violent crime. Like spectators at the colosseum, they like the blood sport but not the players. They like the stories but polite society is mostly offended by the very existence of criminal defense lawyers whom they see as no different than the clients they represent. The quick and easy answer to the question is that we defend those people because the constitution says all of us are entitled to due process if the government charges us with a crime. That guarantee can only be manifested through the legal representation provided by criminal defense lawyers.

Though our very existence may be grotesque to some, we become a necessary evil, a life line to the accused. THE lifeline when the son or daughter of the prim and proper gets caught with drugs or is accused of raping their date or committing murder. That’s different, they say, because they’re not one of those people and it was just a mistake and the world would be a lesser place if Austin or Buffy get convicted for committing a crime. I’ll let you self-entitled folks in on a little secret, you know who you are, the ones who look down their noses at us until you need us, though we find your duplicitous self-righteousness offensive and annoying because you think you and yours are more special and deserving than those people because you had more advantages and opportunities than those people, we’ll gladly represent Austin and Buffy, not because of who they are, but because that is the oath we took as lawyers. Because they, like those people, are entitled to a defense.

What I am about to tell you may shock you. Are you ready? Are you sitting down? Ok, here it goes: We are not our clients. That’s right. We don’t encourage murder, rape, robbery or any other crime. Well, some lawyers who grew up in the ‘60’s support smoking weed, but as a general proposition we don’t encourage criminal activity. We don’t have a special affection for people charged with murder or molesting their children or beating their wives or selling dope. We don’t have them over for dinner or ask them to babysit our kids. Many of our clients are overgrown children who have never accepted responsibility for themselves and blame everyone but themselves for their troubles. Some are mean. Many are angry at life. Some are truly evil but these are the minority. Many are lost souls who as children were mercilessly abused physically or sexually or both. Most suffer from some form of mental illness, drug addiction or both. And because of this they are unable to function well in society. We are not our clients but we defend them because there is something in our psyche that compels us, a desire to try to fix what’s broken and so many of the people we represent are broken.

I have another shocker for you. We don’t even – come in closer for this one – we don’t even like some of our clients. It’s true, we don’t. Some clients are just miserable human beings and awful to deal with, incapable of ever being satisfied with what you do for them. Lawyers who do appointed work – lawyers in private practice appointed by the courts to represent those who can’t afford to hire a lawyer – tend to experience more instances of conflict with their clients than hired lawyers. Why? Because the clients see them as part of the system. They don’t differentiate appointed lawyers from the prosecutors and the police. If the county is paying them then they must be part of “the system.” They don’t believe that a “real” lawyer would accept a case for the paltry amount the county pays and that those who do aren’t as good as the retained lawyers who do not take appointed work. Some even believe appointed lawyers are working with the State to convict them. Forget the twisted logic. Forget that to do so would violate every ethical obligation and the rules of professional conduct lawyers live by, not to mention their pride and personal commitment to the profession. This unfortunate thinking is born of ignorance and incubates daily in the jail and the holding tanks, proliferated by self-professed “jailhouse lawyers.” As a result, many appointed clients treat their appointed lawyers as if they were something stuck to the bottom of their shoe. Human nature being what it is, people tend to appreciate what they pay for and don’t appreciate what they get for free. Yet, despite being disparaged by their clients and often criticized and Monday-morning quarterbacked by colleagues who have never handled an appointed case, they continue to work hard in the interests of their clients. Frankly, whether one is retained or appointed, criminal defense work is too often like a bad customer service job where everyone is pissed at you but you are expected to resolve the complaint with grace and a smile.

Sounds pretty awful. Why would anyone want to do this job? Why do we really defend those people if we don’t even like some of them? Why do we defend criminals? The real answer that goes beyond the constitution? Because those people are human beings and it is our humanity that compels us to stand for them when nobody else will. Because when another human being looks at you and says, “please help me,” you can’t turn your back. Defending a human being accused of a crime carries with it a heavy responsibility and nobility. Because by protecting the least of us we protect all of us. Sometimes police get it wrong. Sometimes police do it wrong. Sometimes prosecutors grab hold of a case like a dog with a bone and ignore the fundamental weaknesses of it, the defendant’s rights be damned. The scariest circumstance is the innocent client where innocuous facts can be made to appear as clear evidence of guilt. Real life is not a Law and Order episode. Real life is not black and white, it’s many shades of gray and it’s messy and that is where our work lies. What we do is important. We don’t fight over money or contracts or who should have done what by a certain date. Because fighting for another human being’s life and liberty means something. For those people, it means everything.