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Recent Blog Posts
God Bless Judge David Hittner (Updated)
If you know me well, you might think that I would find no pleasure in a law-and-order federal judge smiting a college student for contempt, bringing her court in short-shorts and chains (Mary Flood, Houston Chronicle). You might think that any pleasure I took from such an event would be alloyed with guilt.
You would be wrong.
Judge David Hittner does not suffer fools gladly. In 1998 he dragged Joel Pippert, president of UTEX Industries, into court and browbeat him into paying his employee while she was serving on a jury. Yesterday he had the federal marshalls drag 19-year-old Kelsey Gloston into court in chains (cuffs, waist chain, shackles) because, after being chosen for a jury panel, she failed to appear. (Interesting fact: Dan Cogdell represented defendants both in the 1998 case and in this week's case.)
Ask Avvo
Seen on Avvo:
I am a resident physician in Houston, TX. A charge of indecent exposure has been brought against me by a complaining witness- no other witnesses or evidence involved. I had a warrant for my arrest, for which I went it for booking and was released on bail. Pretrial hearing is set for next month. I don't know what to expect. My attorney believes I might be offered deferment. Should I take this? How will having deferment affect my professional licensing? If not, how can I contact the ADA for plea bargaining? at what stage is plea bargaining done? I would settle for a reduced offer but I don't know how to go about it. OR should I just take my chances with a trial by jury? Thank you for your time.
Dear Physician:
I've got a sharp pain in my chest. If I take some Tums, will I die? If I'm having a heart attack, where should I start cutting when I do my bypass? Thank you for your time.
Rethinking Peeler
Rick Casey thinks we Texas criminal-defense lawyers are "coddled" (Paul Kennedy) because the Texas Supreme Court declared in 1995 in Peeler v. Hughes and Luce that, unless a criminal defendant is acquitted, his criminal acts are-as a matter of law-the sole proximate cause of his conviction and punishment.
Andrew Winters commented from New Hampshire:
Don't be so quick to assume you can't get sued. Take a look at this case here in New Hampshire: Hilario v. Reardon, 960 A. 2d 337 (2008). We have always had the traditional rule that actual innocence is a requirement for a criminal defendant to sue his lawyer for malpractice. In this case, however, the Court made an exception for *sentencing* related claims. A criminal defendant who acknowledges his guilt can still sue his lawyer for sentencing related errors. This stands to reason. Imagine a situation, for example, where a criminal defendant, because of his lawyer's negligence, serves more than the statutory maximum. Should he not be allowed to sue for damages? Perhaps your courts will agree if faced with the right example.
Judge Susan Brown: Praise the Lord and Bring Your Toothbrush [Updated]
Last week Houston judge Susan Brown jailed a woman for thanking God for her husband's acquittal (Rick Casey, Chronicle).
"It wasn't an angry thing," she said of the wife's outburst. "Every black preacher teaches us to thank the Lord."
Um, okay, that justifies 36 hours in jail? [Update: According to criminal-defense lawyer Vivian King, who is running as a Democrat for the bench that Brown holds at the moment, those quotes are hers. I hadn't noticed Casey switching subjects mid-paragraph.]
Brown, running for reelection, is clearly willing to throw over the God vote in favor of the authoritah vote.
Insurance [updated]
Criminal defense lawyers in Texas are all but immune from liability for malpractice. In Peeler v. Hughes and Luce the Texas Supreme Court held that a convicted defendant's crime is the sole proximate cause of any injury he suffers as a result of the prosecution; in order to sue a criminal-defense lawyer for negligence, he has to reopen the case and win.
Many criminal-defense lawyers have no liability insurance because they don't need it. If you know that you most likely will never be sued for malpractice and will most likely win if you are, it makes sense not to spend any money to protect yourself against a possible judgment-especially if paying for the protection makes it more likely that you will be sued. Insurance causes lawsuits. Plaintiffs' lawyers generally leave potential defendants without deep pockets alone; insurance coverage adds to pocket depth. A lawyer who has malpractice (errors & omissions, or E&O) insurance is more likely to get sued.
The New Kids on the Blawck
One of the highlights of the year, in my itinerant childhood overseas, was the end of summer, when the new kids arrived-in high school at AES in New Delhi, maybe 20% of the 150 students were new each year. It was an exciting time, full of possibility for new friends, and it never disappointed.
I got good at making new friends fast.
I feel a little of the same excitement when a new blog pops up in my little criminal-law neighborhood of the practical blawgosphere. The most recent two are D.C. criminal-defense lawyer Mirriam Seddiq's Not Guilty and Orange County criminal-defense lawyer Brian Gurwitz's In Your Defense.
Mirriam has actually been blogging since 2004 (I started blogging back about then too, and kept at it for maybe three or four posts), was quiet from 2007 to 2009, and is back with a vengeance now. Read Why is that Panda eating a Lion? And Chicks and their moral dilemmas – what? And F Criminal Defense Attorney ISO Same for Friendship and More. Hell, read it all. Mirriam's a sharp criminal-defense philosopher and an excellent writer.
Use Immunity and Perjury
It is commonly said among criminal lawyers of all stripes that "there can be no immunity for perjury" or "you can't take the Fifth for perjury."
What does it mean?
Clearly, a witness can't use immunity as cover for lying on the stand. So false testimony given under a grant of immunity is and should be admissible in a perjury prosecution.
But what if the witness had perjured herself last year? Can the State compel her to admit it this year and then use the compelled testimony against her?
In other words, is truthful testimony given under immunity admissible in a prosecution for an earlier perjury?
While that's a common understanding of the state of the law among prosecutors, judges, and criminal-defense lawyers, I see no authority for, nor sense in, that position.
As far as policy is concerned, there are no better reasons to permit immunized testimony to be used to prosecute the witness for a past perjury than a past murder. In fact, there's a good reason for truthful immunized testimony not to be used to prosecute the witness for a past murder: the immunized witness who fears that telling the truth will subject him to prosecution for a past perjury has a strong reason to continue perjuring himself, and as much as the system has an interest in past perjury being prosecuted, it has a greater interest in past perjury not being perpetuated.
Clearing Criminal Records in Texas
(The reason for this post is that nondisclosure and expunction are simple enough that lawyers, at least, should get the facts right, and they don't. I do not seek more clients who want to clear their criminal records, so I will probably regret posting this-lookie-loos and wannabe clients will ignore this disclaimer and call me with their record-clearing questions. If you call me with such questions, please have a credit card handy.)
There are four tools for clearing a person's record in Texas:
Expunction, which removes records of the arrest from all governmental agencies' records;
Nondisclosure, which removes records of the case from public view;
What's Wrong With This Picture?
From an offense report:
On this date investigator spoke to [prosecutor] and asked him if it was still okay to speak to the suspect at the county jail even if his attorney had faxed over a letter reminding investigators that he is representing the suspect and reminding investigators not to speak to the suspect without him being present. [Prosecutor] informed investigator that investigators could speak to the suspect unless the suspect himself asked for his attorney.
Violation of Texas Disciplinary Rule 3.09?:
The prosecutor in a criminal case shall... refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.
Of 4.02?:
in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
The Presumption of Innocence in Harris County
But the issue of the defendant's innocence must be resolved at the guilt stage of trial, not by the trial judge at a pretrial hearing. Judge Fine has demonstrated his favoritism toward the defendant in this case by implicitly making that determination prior to trial.
And he reiterated his assumption that the defendant was innocent by noting that society is not "willing to let our own be the sacrificial lambs."
These are quotes from the State's Motion to Recuse Judge Kevin Fine from the John Edward Green case.
The defendant's innocence is not an "issue" to be resolved at the culpability stage of the trial. "Innocence" won't enter into it. And while you may argue that a guilty verdict is proof that a defendant is not factually innocent, we know that this is not so. Lots of factually innocent people are found guilty; some of them go to death row. In fact, the point of Judge Fine's inquiry (as I understand it) is to determine whether the process by which we convict people of capital murder and sentence them to death is accurate enough for us to rely on it.
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