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Recent Blog Posts
The Anthony Graves Retrial Pregame Show
In Anthony Graves's first trial, prosecutor Charles Sebesta had to cheat to win, hiding exculpatory evidence and eliciting perjured testimony (Graves v. Dretke, Fifth Circuit opinion, PDF on Scribd).
Now, not only has the evidence that Sebesta suppressed in violation of Brady v. Maryland been revealed so that the next prosecutor trying the case can't continue hiding it, but also the State has killed Robert Carter, its star witness-but not before he could say one last time that Anthony Graves is innocent.
Interesting evidentiary question number 1: Can the State, at the next trial, offer Carter's testimony from the first trial into evidence?
Texas Rule of Evidence 804(b)(1) says that former testimony of an unavailable witness is admissible if the opposing party had an opportunity and similar motive to develop the testimony by cross-examination.
Punishing the Prosecutor to Fit the Crime
A Harris County felony prosecutor, in closing argument, says (PDF on Scribd):
You-all heard some evidence, which I would have loved to brought you more people, but I couldn't. This case is, does Harris County find what he did okay? And I still don't know what he did, because he won't even say it.
We all say dumb things in the heat of trial. This particular dumb thing was a bush-league rookie mistake, stupid and costly (mistrial material, though this trial ended in a hung jury), a violation of two constitutions and a mandatory statute, but not the worst ever. I once had a felony prosecutor refer three times to my client's silence at trial:
"So in this case, I could get up here and argue, ‘Well, we didn't hear from the defendant. So we don't know what he was thinking.'" (Objection sustained [?]).
"We didn't get to hear anything from the defendant or get into his mind either from what anybody testified about or anything. So we take circumstances and –" (Objection sustained. Jury instructed to disregard. Mistrial denied.)
Lawyer David DeCosta Cleared
Yesterday the State of Arizona, represented by the Pinal County Attorney's Office (to avoid the appearance of conflict of interest-are you listening, Pat Lykos?) moved to dismiss the case against DeCosta for lack of evidence, because there was "no reasonable likelihood of conviction."
I don't know why DeCosta was targeted. He may just have been convenient, the criminal-defense lawyer who was nearest when the time came to show that being a criminal-defense lawyer in Maricopa County is dangerous.
It's also possible that the Phoenix cops are so incompetent that they can't even successfully frame a guilty man.
Accidental DIVERT Coercion
Houston criminal-defense lawyers Herman Martinez and Dane Johnson report separately on the state of the Harris County DA's DWI DIVERT program. Here's Herman:
This week the HCDAO decided that a defendant needs to decide if they want to be considered for the DIVERT program by their second court setting. This is patently unfair and lends itself to the biggest complaint against the program, that is coercive.
And Dane:
The new policy mandates that a person arrested for a Harris County DWI must make a decision about his/her case within a month of the DWI arrest. Mind you, no person charged with any other offense in Harris County has to make a decision within the first month – only those that may or may not want to participate in the DIVERT Program will be required to make that life altering decision this quickly.
If Halle Smith Had Been White, Would She Be Alive Today?
I had a client recently-call him Sam-who got in the law's bad graces for some conduct involving alcohol and the brandishing of a firearm in his garage while his young daughter slept upstairs. The daughter-well-fed, well-loved, well-adjusted and well-cared-for-was never in any danger and never even knew what had happened.
Only a total idiot would think it was a good idea to take that child out of that home, but CPS was all over Sam's case, questioning his daughter at school, filing suit against him, threatening to take her away from him and his wife. By spending a bunch of money on lawyers, Sam and his wife were able to fend off CPS and keep their very lucky child in their home.
Sam commented to me at the time that he thought the CPS bureaucrats were racists; if he had been the same race as them, he said, he would not have had to fight so hard to keep his child. I shrugged and ascribed his view to bitterness at a terrible experience with a stupid bureaucracy; surely, I thought, CPS overreacts to everyone regardless of race.
If He's an Expert, Then So Is My Dog
Yesterday at the ABA Journal Blogs, Debra Cassens Weiss asked, Are Ghostwritten Blogs Unethical.
In the comments, "defunct big law associate" (in other words, my Rhodesian Ridgebacks have spent more time in law offices than he has) BL1Y writes,
The fact that this is even a question shows a fundamental flaw in understanding how law firms operate. Legal opinions are largely derived from treatises and best practice memos published by other firms. Documents are mostly taken from form books. None of this matters. It doesn't matter if your attorney is independently brilliant, or just happens to be resourceful in finding what you need. If we were dealing with writing novels or poetry, then original work would be important, but that's not what law is. It's a practical enterprise and all that matters is the final product.
Anonymous Comment Reminder
Dan Hull (What About Clients) writes (again-it's a recurring theme on his blog) about anonymous blogging and commenting:
This blog does not publish anonymous comments. Absent compelling reasons, nameless blogosphere participants, in our view, are rarely worth anyone's time, thought, or respect–even when they think and say brilliant things. Anonymous writers have already "discounted" themselves. They are second-class citizens. And they generally say third-rate things; they have no incentive to exceed below-average.
When the Founders declared, "We hold these truths to be self-evident," it was an act of intellectual honesty, a signal of the basis of the logical argument that followed. They were not claiming some inside knowledge of the working of the world; they were not asking their readers to believe them because of who they were. They explained their premises, described the conduct of the King, and explained how, because of those premises, that conduct justified revolution.
Even If or Especially Since
After Rosa Villegas-Vatres ran a red light and hit and killed Steve Morrison, she was arrested and charged with criminally negligent homicide (John Nova Lomax, Houston Press; easier to read all-on-one-page print version).
Villegas-Vatres wanted to plead guilty to misdemeanor deadly conduct. The prosecutor, Brent Mayr told Steve Morrison's family that, and warned them that it was a difficult case and that the chance of a guilty verdict was not very high.
The Morrisons were undaunted. After discussing the matter in a family meeting, the Morrisons voted and it was unanimous. Frank Morrison told Mayr they wanted Villegas-Vatres to be prosecuted to the hilt, even if that meant she would be deported back to a potentially dangerous situation in El Salvador. "That way at least if she was found not guilty, she would have gone through the judicial system and had a fair trial," he says. "We would rather have seen that than to have her plead down to a misdemeanor and pay a fine or something. And we all felt that she was trying hard to get that plea bargain, because that T-visa would have been revoked if she had been convicted of a felony. They would have deported her. And my niece and nephew and both my sisters and I decided we would go for it all."
Roeder, Padilla, Terry, Mohammed Part 1:Roeder
On April 16th, 1995 (three days before the highly-significant-to-militias April 19th anniversary of the Oklahoma City Bombing and the burning of the Branch Davidian Compound in Waco), Scott Roeder was arrested with bomb-making materials.
Roeder claimed association with the "Freemen" movement, yet another batch of personal sovereignty kooks.
On May 31, 2009, Scott Roeder shot down abortion doctor George Tiller in church in Wichita, Kansas.
There are thousands like Roeder, ignorant and disaffected, looking for an opportunity to make their mark on the world with a grand gesture like blowing up a federal building or killing a doctor. Thousands. This is the nondescript face of domestic terrorism.
After his arrest, Roeder was not spirited away for three and a half years to a navy brig in South Carolina and deprived of counsel; nor was he tried by a made-up "tribunal" or commission. Instead, he was appointed a lawyer and provided with resources for his defense and last week in Wichita, Kansas, Roeder was tried publicly before a jury of his peers for the murder of Dr. Tiller.
Read This Today
In this morning's Houston Chronicle, criminal-defense lawyer (and HCCLA ex-president, and former U.S. Navy officer) Pat McCann asks, Since When are Americans Afraid of Trials?
Those who are caught in the act of a crime or afterward and can be prosecuted in our justice system, however, should be prosecuted. There is no simpler way to reveal these people for what they truly are, and no better way to show the world who we are. That is how the battle gets won, not by hysterical fear of a trial, nor by making these men out to be somehow too powerful for our system to deal with. They are not. It actually helps them to think our politicians and pundits are pandering to panic and fear when they read that they are too dangerous to hold in the United States. They do not deserve such mythic status, and our cowering pundits and public figures should not give it to them.
(Most of the comments are the usual anonymous ignorant "this is war, they are enemy combatants, the Constitution is not a suicide pact, and furthermore yer a damn liberal" ranting.)
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