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.

Old School Way

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September 30, 2016

A former basketball player has come and gone from the nearby office. Once a tough kid living in unforgiving circumstances, he was shown an alternative way, one that doesn’t end in prison or death. The visitor is just one of many that drop by weekly to say hello, seek advice, or give thanks to the person responsible for saving their life. Inside the office, the décor mirrors the resident, the result of removing an Italian from New York into the heart of the South fifty years ago. If the main course is spaghetti, the dessert is apple pie. Nearly forty-five years of devotion to criminal law spill over the edge of the Texas-sized desk in the form of statutes, files, and ineligible yellow legal pads.

With each blog deadline approaching, I walk next door and ask,Old School Criminal Lawyering in Houston, Texas

“Want to write a blog this month?”

I know the answer. He has much to tell, but the old school in him won’t allow it.

“I don’t blog.”

Since joining his practice nine years ago, I have been fortunate to soak up seven years experience as an Assistant District Attorney during the Johnny Holmes era. I can smell the cigar smoke on Judge Jimmy Duncan’s breath as he denies another objection. I can hear the former client’s voice seeking advice on entering witness protection. The lawyer had acquitted him of one murder; the government was willing to pardon him of fifteen. I can feel the emotional argument in front of the Texas Court of Criminal Appeals. Yes, I am fortuitous to share offices with someone who constantly reminds me “he has forgotten more than I know.”

True to his word Sam Adamo (Sr.) has not blogged, nor do I expect a blog anytime soon. However, if you were a young (or older) attorney seeking advice, here are some things he would tell you.

I. “You can’t lose a client you never had.”

I remember one of the first cases I brought in. A consultation was scheduled, and the potential client was on his way. The contract was as good as signed. Toward the end of the meeting, the potential client said, “I plan on retaining your firm, but am meeting with two other attorneys. I’ll call you later tonight.” That call never came. The next day, I slammed open his office door, “Can you believe I lost that client.” Staring down at the Texas Penal Code he said, “You can’t lose a client, you never had.”

II. “That’s the Old School Way.”

We had just finished a two-week trial on an accusation carrying a punishment range of twenty-five to life. The jury acquitted our client, found him guilty of a lesser-included offense and assessed the minimum. For any criminal defense attorney, this was a victory, but our client’s family was still reeling from the one-word verdict. Standing in the elevator, another old-school attorney entered. He watched a portion of the trial and was no stranger to defending citizens accused of serious crimes. Unprovoked, he looked to the family and said, “Now that is why you hire those guys.” Sr. looked at me and said, “that’s the old-school way.”

Before social media and the Law Hawk. Before Google and Lexis Nexus, there were lawyers on the ground, front and center, paving the road for the next generation. Influential groups like the Harris County Criminal Lawyers Association didn’t exist, and when they eventually formed carried little weight with government officials.

Whatever your niche is criminal, family, civil, there is another lawyer available at the click of a mouse. You will have consultations where the potential client has met or will meet with other attorneys. You will also field phone calls from potential clients looking for new representation. In short, there will be opportunities to voice your opinion about other attorneys. Keep it positive and keep it brief. Focus on what you can do, as opposed to what you feel the other lawyer cannot. The “other lawyer” has likely done more for you than you will ever know. “That’s the old-school way.”

III. “You can’t buy trust.”

Trust takes seconds to break and forever to repair. Be honest with judges and honest with district attorneys. It isn’t necessary to reveal all your cards but don’t tell the district attorney the sky is green when the dash-cam shows it is blue. Doing so will damage your credibility, hurt your case, and harm future cases.

Earn your client’s trust by communicating (and getting results). Tell them email is the best way to reach you (it typically is). Not only does email provide an effective means of communication, but also serves as useful evidence should the need arise. Gain your client’s trust by understanding their overall goal. You can’t provide a solution if you don’t know the problem.

Bonus: “Find one thing.”

People are different. Some we get along with better than others. In your practice, you have come across (or will come across) a client you have difficulty tolerating. When that happens, you need to find one thing you like about them and hold on to it. At trial, that “thing” will act as your guide while delivering a genuine message to the jury.

IV. “Win as if you’re used to it.”

If you have ever watched a sporting event, it is clear when the winner doesn’t win much. As a criminal defense lawyer, it is easy to get lost in fighting for the underdog. You’ve taken on the system, won, and now want to let the world know. No problem there, but do so with class. The district attorney you just humiliated on social media will be handling another one of your client’s cases shortly.

V. “Trust yourself.”

Watch other attorneys in trial. Go to CLEs. Pour over court transcripts. Ask questions. Learn. Get involved. Investigate. Over prepare, be confident, trust your instincts and above all trust yourself.

With many outstanding lawyers in Houston, this list will grow. Add on.

Family

I often describe the Harris County courthouse like a high school. I don’t know how big yours was, but my graduating class was around 400. At any given time there were something like 2,000 students enrolled. And, as a student, you saw the same teachers, students, and staff every day, day-in and day-out, for years.

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September 9, 2016

The courthouse is similar.

The Harris County District Attorney’s office currently employs around 300 prosecutors. About half of those can be found daily in the 38 district and county courts. Others, assigned to specialty divisions or in supervisory and administrative roles, ride the elevators every day to their offices on the 2nd, 4th, 5th, and 6th floors—mostly out of sight.

Similarly, the Harris County Criminal Lawyer’s Association (HCCLA)—Houston’s criminal defense bar organization (and the largest local defense bar in the nation)—boasts over 700 members. Some of the lawyers who specialize in criminal defense in Harris County are not members (though not many). And others are members—frequently ballyhooed as interlopers—who dabble in criminal law but are primarily practicing in family law, estate planning, or some other unrelated field. But by and large, the whole of HCCLA’s membership represents the lawyers who show up every day to 1201 Franklin and ride the elevators up to the various courts in defense of the rights of their clients.

So, you have about 1,000 lawyers, plus clerks, bailiff’s and other court staff walking through the same doors and riding the same elevators to the same courtrooms 52 weeks a year. Just like high school, there are rumors, and plenty of gossip, if you choose to partake.

Recently, I heard someone describe the courthouse differently: not like a high school, but rather like a dysfunctional family. The “dysfunctional” part grated on me as pejorative. But the “family” part rang true. Sure, there are disagreements (some heated) and gossip. But there’s also tremendous support and encouragement.

For example, a couple of months ago I needed help. I was in day two of a trial in Harris County, but on the same morning I was expected to be in court in Fort Bend County to help two clients there. I sent a quick message over HCCLA’s email listserv and within minutes a colleague had volunteered to help. He showed up in my place and reset my cases—freeing me up to be fully present in trial.

And it’s like that all the time. Three years ago, when I flew out to California to be with my father in his final days, a colleague, in one motion, referred a client to me, interviewed him on my behalf, helped the client sign a contract with me, and attended his court setting—ensuring that my practice didn’t wither while I attended to my family.

Ask almost anyone in the courthouse. Cancer. Divorce. Death of a loved one. Where a member of the family has been courageous enough to share a need, I can almost guarantee that there’s a corresponding story about the way the bar responded by stepping in to meet that need with kindness and generosity.

We’re not a perfect bunch. We all have our own individual flaws. Certainly egos abound. And we don’t always get along. But where the rubber meets the road, we step up and we help each other. Because that’s what family is about.

And I’m darn proud to be a member of this family.

Even Criminal Lawyers Tire of Violent Crime

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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.

AS YOU TREAT THE LEAST AMONG YOU

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August 5, 2016

I never paid much attention as a child to religious lessons. I was always bored, hoping something would happen that would cause class to stop, and perhaps give us a chance to escape and go outside. Yet, even I remembered the lesson, if not the exact words of Matthew 25:40. I spent time every day for a year reading the King James version of the Bible; the language struck me as sweeping, even poetic, so I suppose it has stuck with me.

And the King shall answer and say unto them, ‘Verily I say unto you, inasmuch as ye have done it unto one of the least of these My brethren, ye have done it unto Me.’

Beautiful, isn’t it?

Yet when I look around at our criminal courts, I feel as if I may not have done justice to that bit of wisdom. There are few places where one sees the least among us more often than at the daily docket call at 1201 Franklin. The deranged, the damaged, the drug addicted, the lost and the loathsome all wash up onto the floors and the agenda of our Harris County criminal court system, Monday through Friday. It is as regular as the tide washing up the ocean’s flotsam.

One can wander by and see for oneself, every morning at 9am, just like watching the tide come in and go out. The same orange line of desperate and often deluded men and women are swept in and out each morning. They are the very definition of the least among us. They have no money, often no family, no resources, no influence in the world whatsoever. In terms of how we in middle class America measure our happiness, they have no future, no degrees from impressive schools, no children that are the captains of their soccer teams, no career hopes, no lovely homes to drive to after work, no work, and nothing to drive half the time.

These men and women are the clients we who take appointments serve. They are not glamorous cases. They are filled with unpleasant facts, such as what our disturbed clientele often do to others, facts that include assaults and abuse. Like a bucket of perversely twisted crabs that keep attacking each other, they inflict most of their damage on those closest to themselves and those who love them. Thus, they ensure that the cycle can continue, and the folks who continue to go in and out with the tide.

Yet, every once in awhile, one gets a chance to stand against the tide, and on an even more rare occasion, send it back out. We, as lawyers who take on the least well paid cases for the most horribly demanding, stressful, and often guiltiest clients among us, will find a way to get the sick the help they need, rather than prison. We find a way to acquit the innocent despite the odds, and the odds are always against people in the system, no matter what fairy tales they told us in civics class. We find a way to get life for those facing the ultimate punishment. We find a way to send even hardened men home to their families after many years in prison, to reverse an unjust jury verdict that came from police or state misconduct, or to get an uncaring politician to grant a pardon.

I have a friend who is one of the better people I know: kind, good-humored, and honest. She makes fun of the cases we handle, sarcastically saying we do it for “all the glory,” knowing there is very little of that in these cases. We certainly do not do it for all the barrels full of gold the county provides. Appointed cases and those who we represent are not the type of work that gets one on national television, or contracts commenting for cable. They do not get one a book deal.

Yet they are the most challenging and rewarding of cases, and they are worth our best efforts. As a people and a political society we have chosen to provide legal representation for the least among us. That is an example of our best selves. It is something we should support with money and votes. When we as lawyers give our best efforts on those cases, we are doing what it is most of us dreamed about in law school – fighting against the odds, for an unpopular person, and feeling like what we are doing is…just. It is right. It is something to place on the ledger when the universe comes for a reckoning.

So, the next time you hear someone talk about the “shyster” or “slick” lawyers who got a good result for a person demonized in the press, remember that old line from Matthew. Remember that somewhere, in a courtroom not far from where you live, there are men and women trying to live up to that directive from on high. We may not always make it. Like most people, we fail sometimes. Sometimes we are simply tired and we defeat ourselves. Yet every day, for the appointed cases, lawyers walk into that pit on Franklin St. and fight for the very least among us. They fight for the lost, for the forgotten, for the forsaken and the damned. That is the job. Some days, it may be a little more.