What have you done for anyone lately?

I often wonder in this line of lawyerly work whether what we do matters. We all face these thoughts and moments, I suppose. One looks around and tries to find meaning in the work that one does. I used to envy my uncle, who was a teacher and a bricklayer [which was the trade he taught young people at the vocational school near my home] for this reason. I saw one of the fireplaces he built in a friend’s basement once – it was a work of art. It had a small oven on one side, followed the curve of the rock wall against which it lay, had small outcroppings for placing drinks and candles, a covered cubbyhole for the kindling and wood to sit neatly within, and an inlaid mantle. One could look at it once and immediately know that people would gather around it for decades, feeling its warmth and comfort. I envied him that feeling of pride in workmanship, more than once.

In this line of criminal work one sometimes has to search a bit harder for that inspiration. One can look to spiritual guidance for a sort of metaphorical lighthouse on the rocky shores of our daily workload of prison, mental illness, and human pain. In Isiah 61:1 it says, “The Spirit of the Lord GOD [is] upon me; because the LORD hath anointed me to preach good tidings unto the meek; he hath sent me to bind up the brokenhearted, to proclaim liberty to the captives, and the opening of the prison to [them that are] bound.

In the Hadith, the companion to the Koran in Islam that helps the follower perform in a way that is true to God, the holy man Milak said, “Beware of the supplication of the oppressed, even if he is an unbeliever, for there is no screen between it and Allah”. Dogen, the Zen philosopher of the 13th century, spoke of the capacity for all men and women to act with “rigyo,” or the kindness and compassion that allows all of us to take care of each other immediately, in the here and now.

So, whatever path you the reader follow, whether you are a lawyer or a judge, a baker or fireman, a mother or a grandfather or a child, allow me to pose you a question today – if you ran into Dogen, or Jesus, or Mohammed, and one of these figures asked you “What have you done for me lately?”……what would your answer be?

Have you urged mercy for anyone? Visited a prisoner to teach them to read? Helped an addict?

Spoken out for the bullied or the oppressed? Fed a neighbor? Given shelter to a soul who lost their home?

The best and most noble part of all of our everyday lives is the simple opportunity, each and every day, to do something that helps someone else. All of our faiths and philosophies call us to do this, from the Talmud to the Tao. As lawyers, we often have the chance to ask for better and more decent justice, but we fail to grab the chance when it comes before us. So, as a lawyer who appears in front of criminal courts each week, let me say it first….I have often failed. I have failed to keep tirelessly seeking a more just result for my client because it just seemed too hopeless – the facts were too gruesome, the judge too angry, the prosecutor too busy. I have failed, too many times, and those failures weigh on me some days.

Yet each day in this hall of injustice, this factory that passes for a court system in our county, I, you, WE have a chance as criminal defense lawyers to find justice, to seek a better result, to free the prisoner, to comfort the lost, and to keep fighting. Every day is a chance to do one decent thing, to end one man or woman’s confinement, to ease one addict’s misery, to convince one overworked and underpaid prosecutor that they can make a difference to a traumatized veteran or a mentally woman, to persuade one harried and overburdened judge to grant mercy. Every day is a chance to do something for the higher powers we follow, albeit often blindly, to make a difference here, and to do justice now.  

This job has a price somedays. That is the truth. Yet every day in this job is a chance to do something for someone else, in a way that, I like to think, might make my uncle envy me, just a little.  It is one of the few callings on this earth that lets one do that, and somedays I am profoundly grateful for the privilege it gives all of us who do this work. So, maybe, someday, if I run into St. Peter or Buddha, and they ask me what I did for others in my walk on this place, I will look them in the eye, and say, “Well, for a little while, I was a criminal defense lawyer in Texas.”  

Being a Grateful Mentor

No one does this job alone, or any job, really. Parents had parents; rookies in every field had people who taught them things. Even one’s opponents teach one things if one but pays attention. So when I say I am a grateful mentor, which perhaps seems a bit backwards at first glance, let me explain.

I had two parents who were in this business of criminal law, though a bit later in their adult lives. They were on opposite sides, so they were my first mentors in the profession even before I chose it after the Navy.

I was fortunate because I was lucky enough to clerk for and set up shop with some very smart criminal defense lawyers and one civil attorney who taught me a great deal. They showed me everything from how to conduct myself in court, to how to deal with clients, to how to argue before a jury. So I was actually given a wonderful leg up in this work, and I have, in gratitude, been trying to pay it forward since those days two decades ago. Paying it back seems an inadequate phrase since I never truly could repay those lessons I got to the people who gave them so freely; I can just do a woefully inadequate job of paying it forward as long as I am able.

I still find myself quoting the people who taught me. My friend and mentor Jon Munier, who passed from this vale of tears some time ago, used to say things such as,

“This job is a three-dimensional chess game in which you play the law, the facts, and the people against each other for the benefit of your client.”

My father once consoled me over one client’s ingratitude with the phrase,

“Son, if you needed love, you should have been a fireman.”

He also stated once that the difference between a man and a dog was that, if one was nice to the dog, it normally would not bite you. I suspect that one was actually passed from my grandfather, who was a difficult, hard, and skeptical man, but it was nonetheless true. So were those other bits of wisdom, hard-earned and prized, and I have tried my best to pass them on.

I am not sure I have done that as well as I could. I still genuinely think I learn much more from the young lawyers I mentor than they receive from me. The law changes all the time, and perhaps one of the few things I learned that I have tried to pass on is that this work requires a commitment to learning the same as a soldier’s life requires a commitment to physical readiness. Daily reading is as important in our job as daily pushups and ruck marches are in the soldier’s life. If one is not reading cases, criminal or evidence codes, or forensics each day then one is not meeting the standard, as the saying goes in the service. Yet my young lawyers are constantly inspiring me with their fearlessness, their drive, and their constant joy in this work.

I think one of the best things they give me is a perspective on this work. I have been doing this a long time, and I some days feel as if I may have lost my capacity for outrage. Then along will come one of these young lawyers, full of fire, and steaming mad at the racism, the unfairness, and the indifference our clients deal with every day in a system that only values them to fill a prison bed on contract to a corrupt county sheriff. In that moment, I am suddenly a real lawyer again, someone who is standing up, even if only alongside them, for someone who cannot do it for themselves. That is why I became an attorney. Hell, at some level, isn’t that why all of us did? The day I cannot recapture that is the day I will take down my shingle, quite simply.

So, to all those who went before me and passed on what they had learned, and to those who continue to teach me each day, thank you. I am a better lawyer because of you, my mentors and my mentees. I hope I have made you proud.

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.

The Casual, Horrible Traffic in Years and Lives

I do death penalty work. I started doing it when I was a foolish and arrogant young lawyer. Now that I am simply a foolish and older lawyer I still do it. What this means, aside from the fact that I will never own a fancy sports car, is that one gets an unintended and unexpected benefit from doing this work. The benefit, unrealized and often unremarked but true nonetheless, is that little else in this legal jungle holds much terror for one.

No longer do crooked police, arrogant judges, and self-serving young ADAs seeking to become arrogant judges, hold any terror for me; nor do crazed clients, or the special joys of families who seek to blame you for the years of abuse and neglect and bad choices inflicted by them on their son [usually it is a son] which brought us together for the happy event of a capital murder trial. Nope, if one does a few of these cases, maybe a writ or two and some appeals, your colleagues will recognize that you have lost much of the fear of any trial, because you have done it for months and often years. One even gains a newfound respect for the good judges, cops and prosecutors, and a gratitude for their existence, which makes mercy possible, even in this place.

The prize in capital death penalty work is an ugly term of years for one’s client. When the State of Texas, or any state or governmental body, brings a good death case they expect to win on guilt. And, in Texas they most often win on the issue of life or death at trial. It is later that we appellate and writ lawyers get to overturn that verdict and send it back for more drainage of the taxpayers’ good money. [It may surprise the reader to learn that it costs far more to try and execute someone for a crime than it does to simply try them and imprison them for life once you add in the multiple appeals and lawyers and the costs of separate housing for death row.] What that means is that if one can get a sentence done through negotiations for a lengthy term of years [think 40 or 45] that is, in my world, the brass ring, and one grabs for it and then one runs as fast as you can before someone snatches it away. So, since the other penalties in my world are life in prison or death, it saddens me more than I can say to hear casual discussions in court about long terms of years for so many young men and women, mostly due to our “habitual offender” statutes. Those parts of our penal code, under Section 12, give us the ability to send ordinary people, not much different from many of us or people we know by blood or bonds of friendship, to decades of prison horror.

Allow me to illustrate by asking the reader about time. How fast does the time go when you consider how quickly your children have grown up?

Which among you would willingly miss ten years or even five of that miraculous time while they grow and learn and become a tiny foretelling of the men and women they will be? So, why then, do our penal codes for “habitual offenders” start out at twenty-five years as a minimum? Twenty-five years ago I had not even started law school. What were you doing twenty-five years ago?

It is even more ironic when one considers that most of the young prosecutors who offer a “fair” deal of the minimum term, twenty-five years, on say, three successive drug cases, were in kindergarten if one took them back in time that same amount of years. Which of their parents would have agreed to be parted from them for two and a half decades? Which of their current friends would be wiling to spend even a weekend in the local county jail for a principle, let alone a mistake in judgment?

Most of our crimes in Texas and elsewhere are crimes against what was once called “morals” or “public vice”. We can enhance and eventually sentence thieves, prostitutes, drug addicts and drunks to lengthy terms of prison, where they will rot and never see their families for decades, and never, ever, receive treatment or help to change their life. Nor will they get any mental health counseling, which is often the root of their problems to start with. So, for these lost souls, and for us as human beings, it is far more soul sucking to hear the horrible callousness of the “life-bargaining” that is done every day over the courtroom counsel tables. Our clients lives and their years are all too often sadly viewed as commodities to trade, and if one actually listens to the bargains, it can chill one’s heart. Permit me to illustrate how the sausage is made:

State: Well, Pat, your guy has five prior possession charges. We cannot abandon the enhancements by policy, they are all good, so the minimum offer today is 25.

Pat: But he has never had treatment, not once in those times…

State: Well, he was given it as a condition once, but then he tested positive and the judge revoked him and put him in prison, sooo…

Pat: He has been clean and sober and working for seven years, he will lose his job and his kids will get no support…

State: I know, I hate to do it, he really seems to be trying, but you know I cannot abandon these enhancements or I will get fired…

Pat: Well, this enhancement on the indictment actually does not have a fingerprint on the judgment, and there is no middle initial on the name that matches his, and the birth date looks reversed….think you can toss that one?

State: hhmm, yeah, that is true, ok, I hate to see this guy get so much time…I will bust it down to fifteen, but only for today.

Pat: Done!

It is this sad trade in years, and other lives, that can break one’s heart. We are all willing traders in this market. It is the unfortunate nature of how we as a society have decided to deal with so many of our problems; not with thought, but with bars and walls. These years are often just arbitrary figures we use in order to have an agreed currency with which to bargain. They are the criminal justice system’s yen or Swiss franc. Yet they should really be measured in resentful, devastated children, elder parents with no one to care for them, young wives with no money who are suddenly homeless and on assistance because their man’s habit crept back up upon him. These years have ripple effects, from children who will grow up to become incarcerated, to increased costs for taxpayers, to lost lives because they can never catch back up after all the time spent in prison. They are more appropriately listed as scars, not the monetary units they have become.

In my part of this criminal justice jungle, long terms of years are a prize prey because the alternatives are dying in prison of natural causes or dying in prison by the state filling you with poison. In the rest of this system, where the vast majority of the victims and the defendants are one and the same, we ought not to have enhancements or lengthy terms of years as a punishment for treating oneself poorly with drugs, or being mentally ill, or for being a drunk. We ought to find a better way, one that helps them get better and permits us to let some light back into our society’s collective soul.

Judge Not, Lest Ye Create Stupid Law

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There is nothing dumber than outlawing prostitution.

Whether one simply notes that this approach has never worked in all of recorded history, or takes the stance as a libertarian that it is none of the government’s business what consenting adults do in their private lives, or that doing so unfairly punishes the provider and not the user, or that it actually increases human trafficking across the globe as a practical matter, there is simply nothing that is a greater waste of time or human effort. I would note that it is also contrary to the teachings of the New Testament, wherein that scrappy little freedom fighter of forgiveness we all call Jesus took in and cared for a woman named Mary Magdalene who, according to some scholars, followed the world’s oldest profession as a pagan temple priestess prior to meeting Jesus.

So, when we look at how Texas treats this particular crime, it is clearly time to bring our somewhat quirky state into line with practical, compassionate conservative thought. First, as good conservators of our Texas tax dollars, what does making prostitution a crime gain us as a society? Well, as it turns out, not much.

Texas treats this particular crime as one that is enhanced by prior convictions and as a crime of moral turpitude. This has a double-edged effect. As a crime of moral turpitude it means that almost no employer or state licensing agency will permit any person, often women, from getting a job or skill [nurse, for example] that could lead to a job. So, by convicting this person of such a crime, one pretty much guarantees that they will never rise above a minimum wage job. This leads to thousands of unemployable, non-productive citizens who cannot climb up the ladder of decent work or pay taxes or buy a home. Since they often have children to support [that is sadly how many of them got into this line of work to start with, if they were not kidnapped from Mexico or Moldavia or Vietnam] this creates another burden for the system. Worse, we enhance the punishment range with each subsequent offense, and on the third such charge a person can be made a felon. A felon. We make people, mostly women, felons for providing a moment of comfort with the most basic human act to other people, mostly men, who bear little scrutiny for such acts, though recently some District Attorneys, in an “enlightened change of policy,” have been arresting the users of such services and releasing their photos to publicly shame them.

Felons also have a difficult time pursuing work, as our readers may have noticed. There is little one can do to alleviate a past criminal record in this state for these issues, since a bill to permit victims of human trafficking to get pardons died in the legislature this past season. Based upon our new governor’s lack of compassion as shown in the past pardon season, they had little hope anyway. However, to continue to pay tax dollars to jail, feed and care for women who most likely would choose another line of work if possible seems, well, either a foolish waste of tax dollars, or a stupid waste of jail space for actual offenders who rob and shoot people.

crazy horseDo not even get me started on how our police “enforce” our morality laws on prostitutes. These poor dedicated officers must, on taxpayer dime, go and drink at houses of ill repute [massage parlors and strip joints] posing “undercover” as potential clients and force themselves to endure such horrors as lap dances, oiled massages with or without a happy ending, and must do so over…and over. One shudders at the sacrifices they make, sometimes for year after year on the same vice squad. Yes, our boys in blue do indeed suffer in our name, all with taxpayer money. Lord knows I would not want them chasing an armed robber; what good could come from that?

So, we spend taxpayer money to punish one gender for trying to live, even though many are doing this against their will. We criminalize and fine and jail them. We make it impossible for them to leave the life and get different jobs because we give them, not just criminal convictions, but felony and morally dark convictions that stay with them forever. We actually encourage human trafficking when we do this because it is the potential illegal profit that motivates those cold bastards who smuggle these women and often children into our ports. We do this to achieve the public goal of…what, exactly? Eradication? Hmm, that has not worked. Moral order? Any system that punishes the weak and the helpless for an act that men have paid for since the time of the pharaohs serves no moral order, and in fact is against the very teachings of every faith from that of the Prophet to the words of Christianity to the kindness of Buddhism. Nor does it make the act safer when we drive it into the shadows. Making pompous politicians proudly puff and say they are helping bring back family values whilst lying through their teeth? Ahhh, now there is something that we as Texans could hang our collective policy hats on.

I have a friend who wears a bracelet reminding her to be a good Christian, and it asks, in acronym format, “What would Jesus do?” Frankly, I am afraid he would treat most of us like the moneychangers in the temple, kick our ass, and tell us to get back to the drawing board when it comes to the laws on prostitution in this state. It would be the only sensible thing to do.