About P. F. McCann

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association. His office can be found online at writlawyer.net.

Why judges should appoint more attorneys on writs

We hear a lot these days about wrongful convictions. There are Innocence Projects at all the law schools in Texas now. There are foundations and projects dedicated to the uncovering of the wrongfully convicted. There are groups dedicated to trying to improve our criminal justice system. Texas itself has established the first of its kind Forensic Science Commission, dedicated to uncovering the junk science that contributes to bad criminal convictions. Finally there are even units within the major prosecuting offices dedicated to verifying the integrity of the convictions in their counties, like Harris and Dallas. Yet in all this hubbub there is a single group of people who have been overlooked, and perhaps given a pass on some of these issues. That group, my friends, are the elected judges of our fair counties, both district and county criminal courts.

The Texas Constitution guarantees that the writ of habeas corpus shall never be suspended under Article I, Sec. 12.

It is a writ of right, available to all. Under the legislature’s guidelines, pursuant to Article 11 and Article 1.051(d)3 and 26 a court may appoint an attorney to a habeas application in the interests of justice. In a time when even our own elected District Attorneys acknowledge that we need conviction review in their own counties, it is well past time to ask for the bench to bear its fair share of helping review convictions. Since they are elected to serve the people, it seems fair that one way to serve those elected is to appoint more lawyers to help the indigent obtain a fair review of their convictions.

Yet all too infrequently do our judges ever appoint attorneys to represent the writ applicants. This may be out of habit. It may be out of some misguided belief that their courts have no issues with wrongful convictions, or that there are no bad lawyers who work in their courts. It could be because of the erroneous belief that no prosecutor would ever hide evidence in their court. or that even good lawyers do not make mistakes out of overwork or overzealousness. I cannot speak to why so few lawyers are appointed on writs out of our courts; I can only ask that judges change their ways.

Habeas law and procedural rules are different than what most dedicated trial attorneys are used to working under. It is the habeas attorney’s job to prove that the conviction was fundamentally flawed in some way, either by the defendant’s incompetence, the lawyer’s bumbling, the State’s misconduct, juror bad acts, or some other problem in due process. Proving facts is not usually possible for inmates or people without money or the ability to ask the court for resources. Thus, appointment of an attorney markedly changes the odds of an indigent man or woman in favor of obtaining a true review.

In an age where our many past injustices are finally coming to light under new science and objective investigation, isn’t it time for judges to pick up their fair share of responsibility for finding out the truth?

Post-Traumatic Stress Disorder in Criminal Defense

Post-traumatic Stress Disorder is a condition that occurs in people who have experienced a frightening or violent event, i.e., trauma.  The condition’s symptoms include nightmares, avoidance of the situations or people that remind the individual of the incident or series of incidents, flashbacks to the incident, trouble sleeping, feelings of being on edge, and they usually continue for over a month, and can normally be traced to a specific indecent or series of incidents.  Some people are familiar with this condition through their readings or experience with veterans who have faced combat or hostile fire, or incidents like the USS Cole bombing. PTSD can manifest within a few months of the incident, or sometimes even months or years later.

However, veterans are not the only ones who experience trauma.  Many of us have had veterans as clients, and I frankly started learning about this disorder because of my attempts to assist veterans in criminal court.  However, if one thinks about it, many of our clients have been exposed to trauma.  People who were physically abused as children, people who were assaulted in prison, women or men who were sexually assaulted, young people who were part of gangs and the violence in their neighborhoods, people who have lost family to suicide, or been in a deadly fire, or were injured in a tragic car accident, all can experience PTSD.  Now, before you get skeptical, think about these questions as they relate to our clients, and see if it is likely our clients could answer “Yes” to any of these questions, regardless of why.

  1. Do you have nightmares?
  2. Do you feel anxious? [cannot sit still, worries, less than calm]
  3. Do certain sounds or smells make you feel anxious?
  4. Are you uncomfortable in crowds?
  5. Are you frightened by sudden loud noises?
  6. Are you uncomfortable if you cannot see the entire room?
  7. Do you ever feel uneasy or threatened? [or, do you have sudden angry outbursts for no apparent reason?]
  8. Do you have trouble sleeping?
  9. Do you avoid noisy areas?
  10. Do you have negative views of yourself, or feelings of guilt or blame?

These questions are not all encompassing, nor are they a surefire way to detect it.  If one takes the risk factors [abusive childhood, for instance, anyone who has been involved in a CPS case, or prior military service in a hazardous area or direct combat, or prior prison time, or prior losses of loved ones in a violent way, for example] and then observes the client [are they hyper-vigilant, keep the their backs to the wall, head on a swivel, or are they complaining of sleeplessness, irritability, bad dreams, taking anti-anxiety medications, do they appear to look for threats or complain about how some guard reminds them of their dad, “that bastard”, etc.], then this is worth following up for several reasons.

First, the circumstances that produce the PTSD are often quite mitigating to juries, judges, and prosecutors.  It will not always help, but if people begin to see your client as the kid who was abused and placed in a foster home instead of the armored car robber, then this can only help.  Second, the PTSD itself is often the root of the actions that got your client here in court in the first place.  Whether it is being caught with controlled substances that they use to anesthetize, or the drinking that led to the DWI, or a flashback that caused an over aggressive reaction that led to an assault charge, a diagnosis of PTSD could mean you have both an explanation for the illegal act and a way forward, i.e. treatment.  This can only help your client.  Last, it can provide, in some instances, a defense, particularly if one can put the fact-finder back in the incident that caused the PTSD and see how it was perceived by the client.  In limited instances, it may even provide a defense against intent if one can prove a flashback occurred or that the circumstances were a misconception.

So, we know to at least look for the presence of this disorder in our all-too often traumatized clients.  Next, since we are lawyers, we need to prove this so we can use it.  If our client is a veteran, often that simply means obtaining his or her medical records if they already have such a diagnosis.  If they are vets but do not have the diagnosis yet, then see if one can arrange for a VA examination and diagnosis.  First though, one may need to obtain the records that support the diagnosis, such as combat awards (a Purple Heart, a Combat Action Badge/Ribbon, commendations with a “V” device for valor under enemy fire, awards for heroism [such as a Bronze Star], or a unit citation) or the discharge papers, called a “DD-214”, which will list the job, deployments, and action history of the service member. If these records are not available, a request can be sent to the VA to obtain a copy. We can also look to the unit history maintained in the archives of the separate services, which will list combat or hazardous actions by the person’s unit.  These can be obtained by an e-archives release form downloaded off the web.

For our civilian folks, the records process is trickier.  Prison and jail discipline or medical records are often a surprising gold mine, even if it looks as if your guy was written up for the fight.  Attacks on your client are often documented in either medical or disciplinary records. The reader may poo poo this, but how many of your friends would respond with calm equanimity to an attempted sexual assault or shanking?  For older cases of sexual or physical abuse to a client during their childhood, one needs a subpoena typically to the Children’s Protective Service agency in the county that handled them, and a release for any medical or counseling records. Juvenile records are often also a good source for this. We may also want affidavits from family [this works for the vets above as well] members as to the client’s waking up at night screaming, increased drinking, increased drug use, or sudden bursts of temper since returning from prison, the service, the fire, or since leaving foster care.

Which brings up a point – PEOPLE DO NOT LIKE TALKING ABOUT TRAUMATIC EVENTS BECAUSE THEY WERE TRAUMATIC.  One needs to get at least some trust, some facts, or some family help to prove this disorder up, because no one likes sharing difficult times from their past with strangers.  Would you?  Keep this in mind and treat the issue with some dignity.  Do not expect immediate help from the client as to the horrible things they had to endure.  This does not happen in a holdover cell meeting; it happens over time and investigative effort.

 

So, look for the PTSD that many of our clients have, find the proof, and use it to lessen their consequence.  Good luck!

The Disabled Among Us And Our Prisons

I want the reader to picture an unkind time in their lives – middle and high school.  A time when most of us were struggling to fit in, or to stand out on our own, in our own way.  A time when, to be charitable, we were not always kind to our fellow students, when we said or did cruel things to those who were singled out by the rest of the insecure and frightened for special abuse.  I am talking about how we, in school and today, in our very cruel, real world, treat the “slow kids.”

 

You remember them:  They were the ones in Special Education, or if you are as old as I am, the ones in the “remedial classes.”  They struggled to read, to understand the rules in school, to hold conversations with the rest of us.  They could not do the simplest of math problems, or diagram a sentence.  Perhaps the school system you were in didn’t label those young children “retarded” or the newer, more generous phrase “intellectually disabled.” Perhaps they were just placed in remedial reading or left to languish in the back row. They could not function in the classroom or on the playground without someone looking out for them, and there were never enough people willing to look out for them.  They weren’t bad kids, they were just dramatically different in the ways their minds worked- but too many times we didn’t really understand that difference.

 

The difference was not a helpful one.  The difference made them an easy target for the other insecure youngsters who needed to feel stronger or smarter than someone else, because they were afraid.  For the rare but occasionally truly cruel young person who simply wanted a human fly from which they could pull the wings, they were a source of evil delight, and only once in a while would the teachers or a good-hearted protective student step in to prevent the ugliness.

 

You remember them now, don’t you? You are thinking, in fact, of at least one little face.   You remember the sick feeling in your stomach when you watched but did not step in when someone picked on her, when the teacher rolled her eyes at him and everyone laughed.  You remember how you turned away, felt ashamed, when she waved to you on the playground?  How you felt when he was pushed to the ground or made a laughingstock by one of the inevitable little sociopaths who tried to rule that small penal colony we sometimes called high school?

 

Those disabled boys and girls grew into disabled adults, at least biologically, and unfortunately our adult world has been no kinder to most of them. Sadly, some of them wound up in our criminal justice system, because no one thought of how those hapless young underdeveloped minds would cope when faced with a criminal charge.

 

Picture those kids dealing with a police officer- not kind and understanding Andy Griffith, but a real street cop with little patience and a suspicious and paranoid mind.  Picture how afraid they would be.  We are all afraid when the police pull us over, at least a little.  Imagine the panic in those simpler eyes, just for a moment.

 

As far back as 1966, in a study of prisons and the population, the numbers of the mentally retarded were at ten percent of prison population.  That number was doubtlessly wildly under-reported, since many prison systems did not test for IQ in those days, and other measures of intellectual disability were yet undeveloped. That was before the explosion in our prisons, before the traumas of concussions were realized by our modern medicine and the traumatic brain injuries of those in our multiple wars in the last five decades. So, let me be very clear: the intellectually disabled exist in significant numbers in our jails and our prisons, largely because, just as when we were kids, we stand by or turn away.

 

Picture how one of those kids would have fared in an interrogation room with an experienced, cynical detective.  Picture how they would have done on the witness stand against an experienced, hardened prosecutor whose only job is to eviscerate even skilled, expert witnesses. Picture how those scared kids from your school would do in a jail awaiting trial.  How afraid would you be if you were in an open bay sleeping area with twenty rough men, accused of assaults, robbery, and addled by drug use? Now see in your mind’s eye how desperate would they be to do anything, even take a plea for something they did not do, just to get away from one more night where they were so scared they could not sleep?

 

Most of the struggling kids from our school days would qualify for a guardianship, for someone else to take care of all their adult decisions, including where to live or what to do with their money.  Most of them could qualify for disability from the Social Security Administration. Most used car dealers would hesitate to have them sign a contract for purchase of a car if they spent more than ten minutes with them.  Yet we continue to arrest them and convict them and sentence them with an alarming frequency for minor crimes, which at some point become major crimes, at least as far as the system is concerned.

 

We on the defense side of things are lucky.  We can, every once in a while, be that kid in school who stood up to the bullies who were hurting the kids who were different.  We can, if we take the time and make the effort, find a way to show that our clients are actually disabled under the law, and that makes a universe of difference once we get there.  Once we can show someone is truly not competent legally due to intellectual disability, we have just changed the world for this one client.  Instead of rotting in jail or prison, they could go home.  Instead of being convicted, they might go free, or they might be placed on community supervision with a diagnosis that could enable them to get the help they need.

 

You readers on the jury side of things are lucky too, at least once in a great while.  When you are called to serve on a jury, and someone provides you evidence of disability, you can take it into account on your verdict.  You can do whatever you want on those verdicts – acquit someone, find them incompetent, convict only of a lesser offense, be merciful in a sentence, or recommend probation.  I envy you that.

 

We do not do this enough on the defense side.  We do not recognize the signs of disability, such as time in special education classes, having a history of having someone else intercede when issues pop up, needing help in writing or reading even as adults, and leaving school at a young age.  We do not ask the follow-up on questions enough.  We do not ask the right questions.

 

I do not do this enough. I wish I did.  I wish I had gotten more testing done by a mental health professional whenever I have had a question about capacity of a client. I wish I had listened to a family more closely when they expressed a concern.  I wish I had fought harder for a client whose disability was masked from me because sometimes people do not ever want to be called or labeled slow or stupid.

 

Most of all, I wish I had done more for those kids back in school.  Maybe today I can. Maybe we all could.

How Much Punishment Is Enough?

 

The topic of punishment came up among my colleagues the other day. Ironically, it was initially about what had happened to the prosecutors who were fired after the recent change of administration.  Elections have consequences, and I have now seen seven changes of administration in the District Attorney’s office here.   Each has caused some disruption as some people were encouraged not to stay.  None in recent memory have had quite so many folks who were told they would not be back.

 

I will be candid that I thought this overhaul at the top was long overdue. I will also be candid that were some folks that were kept whom I would have fired, and that there were some who were fired whom I would have kept. I did not run for that office, so I figure that is not my call.  What has been more within my sphere is that several of these former prosecutors have now become defense attorneys, and have reached out for help and assistance in starting on this side of things. I have given that help, and advocated for some to become members of the local criminal defense bar.  This has met with some resistance by my brethren, and my response to them, and to you, the readers out there who may one day assess punishment in a jury case on the criminal docket, is: “How much punishment is enough?”  When does one stop kicking the person who is down?

 

I have been fired. It is painful and humiliating.  It is more so when you had a position of public trust, and your name is placed in the local paper as among those who were let go.  There is no good story one can give at that point to family and friends.  You were determined to be unwanted. That stings. Period.

 

I have also had days when I worried about the mortgage, and the prospect of losing my house.  There is nothing that makes that better, except work and money in the bank again.  I started in this hunter-gatherer business of defense work, so I at least have had a few decades to get used to the stress.  I cannot imagine what people with mortgages and kids do when they are let go from a good upper-middle class job. What does one tell a child when the tuition bill is due and one cannot pay it?

 

I have also done other things in my life, from laborer to military service to investigations.  If someone were to take my law license tomorrow, I would make do, and get by.  I have had the unique privilege of defending many people who were, well, frankly…damaged.  This unfortunately means they have sometimes filed complaints with the Bar and tried to do just that.   The Bar decided these complaints were without merit, but if I were a prosecutor and had such a complaint filed by a defense attorney, it would threaten the only way to make a living I had ever known, whether it was justified or not.

 

Even if the complaint is justified, that is a frightening place in which to find oneself.

 

Yet I suppose the same point may be made of most of our clients as defense lawyers.  If one has been publicly arrested and charged with a crime, from a DWI to a possession of drug cases to an assault, one has been most likely strip-searched, placed in county holding, taken from home and hearth, and if one has been in jail for more than few weeks [the average time between court settings here] one has lost a job and missed the rent.  So now in addition to having to produce bail that one likely does not have, one is facing homelessness for one’s family.  This is all before one hires a lawyer.

 

If you, the reader, have ever spent a day wondering if you were in trouble at work or at home, then imagine spending months awaiting a decision by a young prosecutor who has likely never known you or your life as to whether you would be facing prison, jail, unemployment, disgrace, humiliation, fines, money costs you can ill afford, and the ongoing stigma against your very ability to earn a living?  Over a hundred Texas licensing agencies and boards factor in criminal history in determining whether or not to “grant” you the privilege of making your daily bread, from commercial truck driving to nursing to barbers.  Take a gander at the occupations code if you do not believe me.

 

Likewise, for the reader, think of how painful it is to be away from those you love, even for a holiday.  For parents, think of how one misses children when they are away at school or at college, or move out of state.  For children, think of how one would like to see a favorite uncle or aunt again, or a grandparent, or a service or college friend. Now imagine having that choice to do so ripped from you, often for years at a time.  That is the consequence of prison, of jail. There are no furloughs or conjugal visits in Texas’ mass incarceration scheme, at least not in reality.

 

So, in our beloved system here, in our citadel of justice, we punish people for years for trying to drown their sorrows in drugs, or for a momentary lapse in judgment.  That punishment includes loss of liberty, when most of us hate to miss our family for even one day or one week.  It includes an almost permanent ban on fruitful employment due to the incredibly byzantine series of regulations that permanently punish past offenses.  It means permanent exile to the underclass for the sentenced and their families, because the children of prisoners face eviction, homelessness, and lack of education at a rate far higher than normal. I will visit that topic again, but for now simply know that is the truth.

 

It may come as a surprise that even those of my colleagues who see so much misery handed down without a thought by arrogant judges and uncaring juries were willing to pile on some of their former colleagues. Do not get me wrong; some of the prosecutors who were fired have abused their power.  I do not begrudge any boss the ability to shape their company or their office.  I do not wish to reward bad behavior.

 

I just have to wonder some days, whether dealing with former prosecutors or current clients, or future juries….how much punishment is enough?

An open letter to the new District Attorney

Dear Ms. Ogg,

You will be getting a great deal of advice in this month and the next. Some of it you will welcome. Some you will wish had not been offered. The following is a request, from someone who has labored in our local factory of injustice for over twenty years. Read it, ignore it, use it to line the bottom of the bird cage, do as you will with it, but please remember that this open letter is from someone who has never asked you for a favor nor said a damn thing against you. Take it as you wish.

1. It is time to leave behind the legacy of Johnny Holmes.
Johnny Holmes left his mark on the Harris County District Attorney’s office as an elected DA who ruled with an iron fist. That legacy was a ruthless, “win at all costs” mentality that has recently resulted in seeing a series of grants and recommendations of relief for prosecutorial misconduct, most of them against senior prosecutors who grew up under Holmes. Now, he may not have been a bigoted buffoon or a pill addict like the fellow he hand-picked to succeed him, but that fellow sure was, so what does that say about his judgment? It is time to sweep out the old notion that convictions at any cost are somehow justice, and get some fresh air in your office.

2. Neither the mentally ill nor addicts benefit from prison.
Your opponent, whatever you may feel about her, believed deeply in treatment courts and diverting the mentally ill and the addicted from prison. This reduces jail over-crowding and recidivism. It is a smart and practical use of scarce county resources to see to it that treatment for the users and the addled is a far more useful boon to society than locking them up and forcing them to take pleas in our current grain mill of a courthouse. Resources you pour into such programs and courts are resources that pay dividends to the taxpayer, to the accused, and to us all.

3. Your assistants will benefit from training far more than more needless, ill-chosen trials.
In every organization, from the armed forces to the police to the county, training is always the easiest thing to cut while being the worst thing to ever skimp on. Docket management is not your job; producing qualified, ethical prosecutors whose only desire is to make certain that the system works fairly is. Training includes making prosecutors familiar with mental illness and the latest in true forensics, not the “junk science” that has been used to convict the innocent so frequently lately. Training includes ethics training from points of view different from one’s own. Invite other groups, citizens, judges, and defense and civic groups in to your training. Make training participation and credits part of your evaluation of your hires. Please, make training a priority.

4. Invest in conviction integrity.
After many years of assuming that what police, forensic lab technicians, and prosecutors did was somehow above reproach, we now know differently. I knew you to be a fair and honest prosecutor, so I hope you will continue to staff and fund the division of conviction integrity in your office. Since their inception they have done yeoman’s work in helping review and correct wrongfully obtained convictions of our fellow citizens on everything from drugs to murder. Let them continue and help you and your office live up to the prosecutor’s obligation to seek justice, not convictions.

5. There are a relative handful of violent offenders who do damage far out of proportion to their numbers. Focus on them.
Many people make mistakes and cause us harm without meaning to injure. They regret their actions and would atone for them if they could. There are others who simply want to watch the world burn. Focusing the efforts of your office on those latte-r individuals in a coordinated, thoughtful way would do a great deal to restore all of our faith in the system in which we work. Expand the divisions for Special crimes and violent offenders. Please encourage your staff to actually work carefully with other agencies to target those who prey on the fringes of society, those who maim and hurt the homeless, the poor, the weak, and the old. When they are safe, so are we.

Ms. Ogg, you do not owe me a response. You do not owe me anything. I am simply someone who has seen enough abuses of power over the years to make any citizen weary of the game. Yet I continue to hope that someone will listen if I tell them the truth. Your old office lost its way over this past decade. That is the truth. You have a chance to truly make positive change in this place, that same place that some of us work within, and all of us depend upon.

Good luck.

Very respectfully, Pat McCann