Uncle Pete

My great-uncle, Pete Newman, passed away last week at the age of 86.  He was the youngest brother of my paternal grandfather, Louis Newman.  I didn't know Uncle Pete all that well, but I always enjoyed talking to him whenever I got the chance, because he was wildly entertaining.  The last time I saw him was a couple of years ago, at his brother, Jim's, funeral.  He was sitting on his walker, smoking a cigarette and talking about grabbing a beer.

The reason I'm writing this post is because I thought his obituary in the local paper was pretty entertaining, as well.  So I thought I would just pass it along.

He was a damn good man.

Congratulations, Ms. Falkenberg

Congratulations to my friend, Lisa Falkenberg, for winning the freaking Pulitzer Prize for her series of articles on the Harris County Grand Jury system and the Alfred Dewayne Brown case.

Lisa and I didn't exactly get off to the best start.  She pointed out to me the first time that I met her in person that I had once referred to her as Pippi Longstocking in an early blog post.  Um, oops.

I don't always agree with her columns.  Hell, I usually don't agree with her columns.

But Lisa's columns always make me think and take stock of philosophical positions that I held in the past, philosophical positions I hold in the present, and those I may hold in the future.

In short, regardless of whether I agree with her or not, the way Lisa writes makes me think.  And that's the trademark of an excellent writer.

I'm very glad to see the folks over at Pulitzer recognize her talent.

Jamie Brooks

I was very saddened to learn this morning about the passing of my friend, Jamie Brooks.

Jamie was a fixture of the Harris County Defense Bar and a friend that I had known since I first started work at the D.A.'s Office in 1999.  He was one of the nicest people and truest friends that one could have at the Criminal Justice Center.

Jamie was generally a very soft-spoken attorney during docket, but he was also a strong advocate who was not afraid to go to trial and fight for his clients.  More importantly, Jamie was one of the first people to volunteer to lend a hand when a colleague needed help.  Any time a lawyer fell ill or passed away, you could always count on Jamie to be there to do whatever he could to assist.

Jamie was a good lawyer, a good friend, and a good person.  I am terribly sad to lose him.

My thoughts and prayers go out to his family.

Letting Go

"I believe your client, but you are still going to need to present something to the Grand Jury on it."

"I'll give you a probation on a lesser charge, but your guy is going to need to plead on all three cases.  I've been told that my court has too many dismissals."

"I don't know why the Grand Jury indicted your client, but I can't dismiss it unless the co-defendant pleads to something."

"I would never dismiss that case.  It's a First Degree!"

What do the above four phrases have in common?

They have all been said to me by a prosecutor as justification for not dismissing a case in the past year.

Now, before I go too much further down the road of angering every prosecutor who reads this blog, let me be clear:  Prosecutors and Defense Attorney disagree every freaking day over whether or not a case should be dismissed.  As Defense Attorneys, we are obligated to seek out the best resolution for our clients and we wouldn't be doing our jobs if we did not (at least) see if we can talk the prosecutor into a dismissal.

As you can imagine, the strength of a Defense Attorney's argument for dismissal can vary drastically from case to case.  Many of these "dismissal discussions" are very brief and the vast majority of them obviously don't end in dismissal.

The issue that I have here is absolutely NOT with the prosecutor who doesn't agree with my interpretation of the evidence.  My argument is NOT with the prosecutor who finds their witness' statements to be more credible than I do or the evidence more compelling than I see it.  I get that.  I don't always agree with it, but I get that.

My issue is with the prosecutor who will actually state to me that the reason they won't let go of a case is because of something that has absolutely nothing to do with the facts of that case.

Statistics should never be a consideration in whether or not a prosecutor dismisses a case.   I firmly believe that nothing adversely affects the Criminal Justice System more than statistics -- i.e. the police get recognized for how many felony arrests they make, so why not go hunt down jaywalkers who might be carrying crack pipes with residue?  The same applies to prosecutors when they start being judged on how many dismissals they may or may not have signed off on.

Statistics are for politicians.  Not prosecutors.

The standard of whether or not a prosecutor should dismiss a case is simple:  if you don't believe it can be proven beyond a reasonable doubt, or (God forbid) you believe the person is (gasp!) factually innocent, you shouldn't be freaking prosecuting it.  Period.  Take all the time you need to thoroughly investigate the facts of the case, but if you can't prove it beyond a Reasonable Doubt, you need to be signing a dismissal.

When I was chief of the 339th District Court, I was observing Brent Mayr try an Aggravated Robbery case (which is a First Degree charge).  For those of you who don't know Brent, he's a fantastic trial lawyer and he's also very competitive.  In the middle of his trial, a witness testified to something that caused Brent to have hesitation over whether or not the Defendant was guilty.  I was his supervisor, so he came to me because he wanted to dismiss it in the middle of trial.

"I think he probably did it," Brent told me, "but I don't believe that beyond a Reasonable Doubt anymore."

So, we dismissed it immediately.  Nobody ever questioned either my judgment or Brent's.  A dismissal in the middle of a trial isn't exactly a positive statistic for a prosecutor's record, but that didn't dissuade him from doing the right thing.  I was proud of Brent.

Dismissals on First Degree cases do still happen, obviously.  I am still very appreciative of when Lance Long and Greg Houlton dismissed this murder case after carefully reviewing the evidence.

My point here is that a dismissal should ALWAYS happen based on the evidence and not ulterior concerns.  When I was a prosecutor, nothing offended me more than hearing a defense attorney say something like "all prosecutors care about is getting their conviction."  I didn't believe that then and I don't believe that now.

But statements like the four that begin this post should give you some insight into why defense attorneys sometimes feel that way.

If you believe my client's version of events when she explains that she isn't guilty, then dismiss the case.  Don't make her and her family have to experience the overwhelming stress of being charged with a felony if you don't think she did it.  We shouldn't have to wait for the Grand Jury to No Bill the case because you don't want to be the one who signs your name to a dismissal.

If you think that my client is worthy of being on probation on a lesser charge, then why make him technically be on three probations for statistics' sake?  It literally changes nothing about what his punishment will be like.

If you think that a Grand Jury shouldn't have indicted a case and that your links to my client aren't strong enough for trial, don't make her wait until the co-defendant pleads on something before you are willing to dismiss it.  The facts are either there or they are not.

And, finally, the inspiration for this entire post --

Just because the case is a serious, First Degree case, that doesn't mean that it can't be dismissed if the facts aren't there.  A First Degree felony case can sometimes be as weak as a questionable speeding ticket.  The same standard of proof applies regardless of degree.

If a prosecutor wants to tell me that, in their opinion, the case is strong enough to convince a jury Beyond a Reasonable Doubt, then that's fine.  I respect that.  But when even your own lead investigator states on the record that they aren't even sure a crime was committed at all, that might be a sign that you are wrong in your opinion.  That's when words like "I wouldn't dismiss that case.  It's a First Degree!" start becoming really really offensive.

When a juror flags me down in the lobby of the CJC (after an acquittal) and asks me to extend her apology to my client and his family for having to go through the trial, you might want to start evaluating your judgment on that policy.

Many moons ago, when I was working in another county, I heard a prosecutor on a DWI case say "I know we aren't going to win, but this kid needs a good trial."  I found the statement to be strange then.  Now I find it to be mortifying.

Unlike the private sector where one has to worry about economic trends and supply and demand, the Criminal Justice System will never run out of cases to try and people to prosecute.  It is a continuous growth industry.  There are plenty of cases where a prosecutor has more than ample evidence to prosecute and convict without hesitation.

But when the evidence isn't there, the case needs to be let go.

Forced Empathy

As I've noted here and there on blog posts since becoming a Defense Attorney six years ago, one of the things that I think I've gained on this side of the bench is a better grasp of empathy towards those accused of crimes.  When I was a prosecutor, I never got Mark Bennett's frequent assertion on his blog that every prosecutor should have to spend some time in jail to gain a full appreciation for what criminal defendants go through.  I still think Mark's position is a little extreme, but I understand his point.

Too often those who enforce the law and the punishment associated with breaking the law don't quite get the human effect that comes along with punishment.

And then something like this happens that kind of makes those who enforce the law have to feel the consequences of breaking the law . . .

Oops.

(H/T & Photo Credit to Mark Thering)

An Unworkable Drug Policy

Yesterday, the Harris County District Attorney's Office made a radical change to their Operations Manual addressing how prosecutors will deal with Controlled Substances cases.

The change, which takes effect immediately, prohibits prosecutors from making a recommendation (or agreeing to go to a judge without a recommendation) on any controlled substance case, unless there is a lab report confirming that controlled substance.  The only possible exception to this rule would be if a prosecutor were to recommend that "a defendant housed in jail receive a term of community supervision with no additional jail confinement as a condition of the community supervision."

The idea behind this change in policy was doubtlessly a noble one.  Too many defendants were entering into plea bargain agreements on drug cases only to later find out that the drugs in question were not controlled substances after all.  In situations where a lab report revealed a substance not to be a controlled substance, a Writ would have to be filed to correct the error of an innocent person who was currently serving prison time for a non-crime.

So, one might wonder why exactly a person would ever plead guilty to a drug case, if the drugs were not a controlled substance.  The answer is simple -- the people who plead to drug cases usually believe that they actually were possessing a controlled substance.  It should not be too shocking to discover, however, that there are some less-than-honest drug dealers out there who sometimes rip off their clientele with fake dope AKA "turkey dope." A client who is brought back from prison early to have his conviction and sentence set aside usually finds himself feeling mixed emotions.  On the one hand, he's very excited to be going home earlier than expected.  On the other hand, he's pretty ticked that he got ripped off on the streets.

The District Attorney's Office wants to stop wrongful convictions based on negative lab findings from happening in the future, which is a laudable goal.  Unfortunately, the Office's solution is filled with problems.

By declaring that the Office "shall not make a recommendation nor agree to entry of a plea of guilty or no contest" in a controlled substance case, they put all drug cases in limbo until the lab results are available.  Depending on the lab, that can be anywhere from three weeks to three months as an accused person sits in jail with literally nothing happening on his case.   A Defendant who wants to work out his case won't be allowed to.

Here's where it gets a little more interesting.  By stating that that their prosecutors may not "agree to entry of a plea of guilty or no contest," the Office is stating that they will block Defendants from entering a plea to the Judge of the Court without an agreed recommendation from the State.  Going to the Court without an agreed recommendation from the State is a very common practice in Harris County which allows Defendants to sidestep the prevailing policies of the D.A.'s Office.  Pleading without an agreed recommendation to the Judge/Court on low level drug offenses can often end up with a 12.44(a) sentence.

Now, for those of you who don't practice criminal law, 12.44(a) is a provision in the Penal Code that allows a person who is convicted of a State Jail Felony to be punished with a Misdemeanor sentence.  The person is still convicted of the felony offense, but rather than being sentenced to 6 months to 2 years in a State Jail Facility, the Defendant is sentenced to serve his or her sentence in the county jail.  What makes this an attractive option to Defendants is that "county time" a) gives them three days of credit for every day that they serve; and b) maxes out at a year (which is actually 4 months because of two-for-one credit).  Generally, the District Attorney's Office frowns upon agreeing to a 12.44(a) sentence.

NOTE:  Not all Courts do these types of "without an agreed recommendation" pleas, but many do.

Controlled Substance cases that are classified as State Jail Felonies are (generally) those where the weight of the controlled substance is less than 1 gram.  This covers the multitude of "crack pipe cases" that are often prosecuted despite only a residue of crack cocaine being detected on the pipe.  It is a routine practice on these "crack pipe cases" for the Defendant to plead guilty to the Judge/Court without an agreed recommendation so that the Judge can sentence under 12.44(a).

This practice of going to the Court without an agreed recommendation from the State is what will be coming to a screeching halt under the new change in the operations manual.  The State has to agree to waive its right to a jury trial before such a plea can proceed, and the new policy forbids prosecutors from doing so.  In essence, a Defendant who is charged with a crack pipe case that lands in a Court that is willing to sentence under 12.44(a) is going to be out of luck.

Now, let's look at some of the implications of that for a moment.  Given the fact that most low level drug offenders don't exactly have a lot of cash on hand, they are probably not going to be able to bond out.  A compassionate judge may be willing to give a Defendant 30 days in the county jail under 12.44(a), but the D.A.'s Office is now going to block that from happening.

Why are they going to block that from happening?  Because they aren't sure that the controlled substance alleged is actually a controlled substance until they get an official lab report in.  So, basically, the D.A.'s Office seems to be confident enough to deprive the Accused of his freedom for as long as a lab needs, but not confident enough to sign its name to a plea bargain.  In this scheme of things, sitting on your butt in jail is worth the price of them avoiding having to do a Writ, should a substance turn out to be turkey dope.

Nice.

It is also kind of a slap in the face of the Judiciary.  If the State of Texas is saying they won't waive a jury (and thus allow a plea without an agreed recommendation), they are, in essence, saying that they don't trust the Judge of the Court to do the right thing.  That's an interesting and awkward statement to make.  Seeing as how both District Attorney Devon Anderson and 1st Assistant Belinda Hill are both former judges, I'm somewhat surprised with this message being sent.  I can't imagine either of them being happy with this policy change if they were still on the Bench.

The new policy does allow for prosecutors to agree to a Deferred Adjudication, as long as there is no jail time assessed as a condition.  Well, that's nice and all, but the prosecutors don't have control over what conditions a Judge assesses on community supervision.  They can say it all they want in their policy manual, but if a Judge has a plea entered for a Deferred, that Defendant is now at the Court's mercy.  The State can't regulate that away.

So, what is the end result for this?  My prediction is docket numbers shooting through the roof.  If the State suddenly can't work out low-level drug cases, then the dockets are going to get clogged.  I highly doubt that the D.A.'s Office will be agreeing to personal recognizance bonds while labs get sorted out.  I also highly doubt that they will tell cops to get a warrant for these defendants only after getting their lab results in.  They don't want to inconvenience the cops, after all.

In a discussion with some friends yesterday, someone a lot smarter than me came up with a pretty simple solution:  waive your right to indictment and immediately ask for a jury trial on the first setting.  Not all judges will give you a two week trial setting, but they should.  After all, if the State of Texas by and through her District Attorney is saying that it won't waive a jury trial on these types of cases, shouldn't the Court accommodate them by providing a jury trial as soon as humanly possible?

Just a thought.

I know that the D.A.'s Office's heart was probably in the right place when they came up with this policy, but I just don't see it working out for very long.

When the Ax Falls

Harris County Criminal Justice Center regulars were shocked over the past several days as the District Attorney's Office conducted a mass firing of prosecutors and other personnel.  The Office firing so many employees at one time hasn't been seen since . . . well, since the incoming Lykos Administration decided to fire me and several other prosecutors, investigators and secretaries at the end of 2008.

As I can attest, getting fired isn't much fun.  In addition to being embarrassing, it also fills your life with a level of uncertainty that you weren't expecting to address at this stage of the game.  (I'm not going to post the name of anyone who got fired here, nor will I publish the names in the comments.)

Some of those who lost their jobs were already at the Office when I started back in 1999.  Others started while I was still there and some started after I was gone.  I think I knew almost all of them.

And for the life of me, I'm not real sure why they were fired.  Especially not all at once.  I agree with Mark Bennett that there doesn't seem to be any rhyme or reason to it.

I realize that there may be some things I'm not privy to.  I've been gone for over six years now, after all.  The prosecutors I knew that lost their jobs didn't seem to deserve it from what I saw during my time as a prosecutor or as a defense attorney.  I believe one of them was arguably the best trial lawyer they had -- and an even better Chief.

It makes me sad.

So, here are a few words of advice from someone who has been there:

1.  The idea of life after HCDA is scary, but it isn't as hard as you think.

2.  Remember that everything happens for a reason.

3.  If you want to be a defense attorney, ask for help from those of us in the Defense Bar.  The Defense Bar in Harris County is not only amazing inside the courtroom -- they are even more amazing outside.  You will be overwhelmed at the kindness and generosity of time they will provide -- even that Mark Bennett guy that everybody gets so pissed off at.

4.  Get an accountant if you are going to hang out a shingle.

5.  Call me if you need anything.

6.  This, too, shall pass.

Hang in there, guys.  It isn't nearly as bad as you think.

If Your Doctor was Your Lawyer

Back in 2013, when I was going through a round of chemotherapy for leukemia, my wife remarked, "You know, one thing I will give you credit for is that you do listen to your doctors."

She meant that when the doctors prescribed a regimen for me, I followed their instructions to the most minute detail.  

"Why wouldn't I?"  I asked.  "They are professionals.  I went to them with a problem and they told me the best way to handle it.  Why would I disregard that advice?"

I went on to tell her that sometimes, by analogy, lawyers have a similar job to doctors.  They go to school and train so that they can help others.  (NOTE: Yes, I know that is a very sterilized and idyllic way of viewing the job of the lawyer, but go with it for the sake of the blog post.)  I told her that despite my legal advice, some clients often think they know better.  If they heard some news or advice from me that they didn't want to hear, they immediately cited something they had seen on the news.  My years of law school coupled with practicing exclusively criminal law for over 15 years was nothing compared to something they saw on the news, heard from a cellmate, read in the law "liberry" or, my personal favorite, watched on Law & Order.  

Seriously, you have no idea how many times lawyers get confronted by clients who saw something different on Law & Order.  The bottom line is that it is a very frustrating experience when you give solid legal advice to a client and that client either argues with you or simply ignores your advice.  I don't enjoy it when my clients do it to me and I don't do it to professionals I ask to help me -- especially not my doctors. 

When I first got sick last year, my doctor, Sam Siegler, suggested that I stay away from doing my own Internet research.  He was sending me to a great oncologist and knew the oncologist would give me the real information that I needed to know.  I think Sam's warning was more directed towards my wife -- who firmly believes that no matter the problem, there is information on the World Wide Web that can solve it.

Earlier this week, I had to go to a dermatologist to take care of a small basal cell carcinoma spot near my left temple.  His advice was that he needed to perform a quick surgical procedure to cut the spot out.  It would leave a nasty scar and there was a small chance that it could cut the nerve that raises my left eyebrow.  His clear advice was to do the surgery, and, of course, I agreed.

Later on, I started thinking about what it would have been like if the conversation between me and my doctor had been more like conversations with me and some of my (more meth-addicted-type) clients.  It would go something like this:

DOCTOR:  Well, Mr. Newman, it looks like you have a small bit of basal cell carcinoma.

ME:  Carci-what?  What does that mean?

DOCTOR:  It's a type of low-grade skin cancer that . . .

ME:  Cancer?!  I'm not trying to have cancer!

DOCTOR:  Um, okay, well the fact of the matter is that you do have it and we have to do something about it.

ME:  I don't see any cancer.

DOCTOR:  It's that little spot on your left cheek.

ME:  Man, that's a zit.  I've been having zits all my life.  It's not cancer.

DOCTOR:  Sir, I've been a dermatologist for fifteen years and I can assure you that it is a basal cell carci -- 

ME:  Why are you trying to put this on me?

DOCTOR:  Nobody is trying to "put" anything on you.

ME:  I've been watching ER for twenty years and Grey's Anatomy for ten years.  This ain't cancer.

DOCTOR:  Yes, it is and we need to do a small surgery.

ME:  Surgery?!  What the hell are you talking about surgery? You don't know anything about cancer.  You do that chemodiation stuff for cancer.

DOCTOR:  I think you mean either chemotherapy or radiation, Mr. Newman.

ME:  Whatever.  My cousin's girlfriend's brother got cancer and he got that chemodiation and I'm not going to be doing that.

DOCTOR:  No one is asking you to do that, sir.  It is just a small surgical procedure that will leave a small scar.

ME:  A scar?!  I don't need anymore scars.  I've already been married three times, man!  Don't tell me about scars.

DOCTOR:  Well, the bottom line is that you have a basal cell carcinoma and it has to be dealt with one way or the other.  This is my best medical advice to you, sir.

ME:  This is bullsh*t, man.  I'm going to go get a Free World Doctor.

DOCTOR:  A what?

ME:  You ain't working for me, man.

Hey, I Won Something!

Shortly after I wrote my post this morning about my goal of writing more in 2015, I got an e-mail from my Uncle John congratulating me on winning Scott Greenfield's 2014 Jdog Memorial Best Blog Post Award.

I didn't even know that I had been nominated, much less that I had won anything.

To say that I'm happy about the award is an understatement.  Scott is a friend that I met through blogging.  He's an amazing writer with a mind that works overtime.  To win a blogging award coming from somebody who writes like he does means quite a bit to me.

I was also very flattered to learn that I had been nominated by Harris County Public Defender Alex Bunin, which is also an honor.  Alex is also a friend that I have a tremendous amount of respect for.

You guys made my day and I can't thank you enough.  It was a great way to start out the New Year.

P.S.  I also have to thank my wife who edits my posts and catches the vast majority of my grammatical train wrecks.

Happy 2015!

At the end of 2013, I found myself looking very forward to the idea of 2014 being a much less eventful year.  Having fought a small battle with a very curable strain of leukemia and then rolling straight into the birth of my youngest son, I was a little exhausted this time last year.

Luckily, 2014 was a much less eventful year.  My family and I moved into a new house, but compared to the events of the preceding year, that was a walk in the park.

I did stay pretty busy all year -- both at work and on the home front.  That aforementioned youngest son didn't start sleeping through the night until after he celebrated his first birthday in October.  Sleep around the house was a precious commodity.

I'm writing all of that as a lame way of explaining why I haven't been writing much at all lately.  For the few remaining readers of this blog, I'm going to try to step it up a notch.  I like writing and I miss it.

My goal for 2015 is to write at least a post a day a week.  Not necessarily long and thoughtful posts like my friend Scott "Don't Call Me Prolific" Greenfield is able to write everyday, but hopefully something.  There has obviously been plenty to talk about in the Criminal Justice World lately, I just haven't managed to find the time to do so.

Here's to a good 2015 with plenty to talk about.

Happy New Year, everyone!