LAWYERS: A Capital Performance

There are many kudos that should be spread to lawyers who take on the tough tasks. One such task is that of representing those accused of the most egregious of crimes, namely the fatal abuse of children.

Ray Espersen took on that task last week. In a spirited performance and one that shifted the focus and blame onto the co-defendant (my client), Ray articulated a seemingly rational explanation to an irrational act. However, the jury thought otherwise.

Lawyers who take these cases on often find themselves in a tough spot. Caught between the reality of their own emotions and the acts of others, one can only vigorously defend their client at the same time realizing the inner conflict of their own reactions to the acts defended.

Some Lawyers fare better than others in separating these conflicts. To those that don't (or won't) separate their emotions in these types of trials, it is no blot on them. It proves them human and caring, but vulnerable to a charge of inability to represent effectively. To those that do separate their emotions, it shows either emotional control or emotional deficit.

I do not know what emotions Ray experienced last week, but he represented his client with style, competiveness, and the will to win. And in the end, that's what counts.

CLIENTS: Redemption

UPDATE: Kurtiss Colvin has been earned the right to participate on the USA National Boxing Team. Click here for more details.

One of my most interesting and dramatic cases was that of my trial last October 2008, in defense of Kurtiss Colvin. While the case involved intricate medical testimony, various eyewitness accounts, and a wide amount of publicity, the aftermath is what has proved to be just as remarkable.

Not very often does the aftermath of a particular case creep into public view in a positive way. Too many times, the aftermath consists of another offense or wasted life. Not this time.

I am proud to have represented this man.

Click here for the story.

TRIALS: Snatching Defeat From the Jaws of Victory (Almost)

Last week, Bill Hines was responsible for a victory for his client. Bill didn't give the opening or the closing. In fact, Bill didn't ask a single question during the entire trial. What did Bill do? He picked the jury. In the end, it was what saved his client.

How could this happen you ask? Fasten your seatbelts.

Bill picked a jury on the Monday preceding the Monday of trial. The case was a sexual assault between adults which occurred in May of 2007. From the beginning, the case had some difficulties for the state. As a result, Bill negotiated an impressive plea bargain of back time to a Class A Misdemeanor. Unbeknownst to Bill, the client was consulting with another lawyer who allegedly told him erroneously that he would have to register as a sex offender (that part is in dispute from the lawyer). As a result, the client turned down the offer. The case preceded to trial.

In the interim time (the Court had two juries picked the preceding week), the client hired the other lawyer with whom he had been consulting with, to try the case after Bill picked the jury. He in turn enlisted the services of an additional lawyer to help him try the case. After a Motion for Continuance by the two substituting lawyers was denied, the case proceeded with Bill as the "stand-by" counsel. What followed was, in my opinion, one of the worst performances by two attorneys I have ever seen in a court of law. I sat in the trial for 2 hours each day, the second and third days.

Without going into the specifics of their follies, let me say that it appeared that the strategy was to demean the victim as much as possible (she did a pretty good job of demeaning herself, however), offend the jury with unprofessional conduct (words and actions), break every rule of standard cross-examination (open-ended questions...not knowing basic answers to their own questions...ending at a negative for their case...etc.), re-enactments which bolstered the state's case, and generally provided an atmosphere that reminded me of the days as a kid when I went to the circus--pure amusement.

The jury came back not guilty. But rumor has it that they were so unimpressed with the work of the two lawyers that they wondered how these two people could ever be issued a license to practice law. But the jury did their duty. They found justice despite the unimpressive tactics of the defendant's lawyers. A jury the client can thank Bill Hines for picking.

CRIME: The Ones That Got Away

Every so often I'm faced with conflicting loyalties. One belief is that I think that there are way too many criminal laws on the books, many counter-productive and overreaching, but some are not. As a taxpayer and simply not just a defense lawyer, there is one law in particular that our local law enforcement institutions have just plain ignored. That is, one of which involves the greatest crime sprees in our history. The culprits? Predatory borrowers of mortgage loans who gamed the system and picked our pockets.

Take for example this New York Times tidbit some time ago:

There has been plenty of talk about “predatory lending,” but “predatory borrowing” may have been the bigger problem. As much as 70 percent of recent early payment defaults had fraudulent misrepresentations on their original loan applications, according to one recent study. The research was done by BasePoint Analytics, which helps banks and lenders identify fraudulent transactions; the study looked at more than three million loans from 1997 to 2006, with a majority from 2005 to 2006. Applications with misrepresentations were also five times as likely to go into default.

Many of the frauds were simple rather than ingenious. In some cases, borrowers who were asked to state their incomes just lied, sometimes reporting five times actual income; other borrowers falsified income documents by using computers. Too often, mortgage originators and middlemen looked the other way rather than slowing down the process or insisting on adequate documentation of income and assets. As long as housing prices kept rising, it didn’t seem to matter. In other words, many of the people now losing their homes committed fraud. And when a mortgage goes into default in its first year, the chance is high that there was fraud in the initial application, especially because unemployment in general has been low during the last two years.

Prominently featured in the Texas Penal Code is the following. I have highlighted some of the relevant portions:

Sec. 32.32. FALSE STATEMENT TO OBTAIN PROPERTY OR CREDIT.

(a) For purposes of this section, "credit" includes:
....................................................

(7) a mortgage loan

(b) A person commits an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit, including a mortgage loan.

(c) An offense under this section is:
.....................................................................
(6) a felony of the second degree if the value of the property or the amount of credit is $100,000 or more but less than $200,000;
or
(7) a felony of the first degree if the value of the property or the amount of credit is $200,000 or more.

(d) The following agencies shall assist a prosecuting attorney of the United States or of a county or judicial district of this state, a county or state law enforcement agency of this state, or a federal law enforcement agency in the investigation of an offense under this section involving a mortgage loan:
(1) the office of the attorney general;
(2) the Department of Public Safety;
(3) the Texas Department of Insurance;
(4) the Office of Consumer Credit Commissioner;
(5) the Texas Department of Banking;
(6) the credit union department;
(7) the Department of Savings and Mortgage Lending;
(8) the Texas Real Estate Commission; and
(9) the Texas Appraiser Licensing and Certification Board.

(e) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under this section that involves a mortgage loan.

This statute is the favored statute among local prosecutors for prosecuting those who merely pawn stolen items in a pawn shop. But, I'm hard-pressed to find any evidence that this statute is being utilized to track down those who lit the fuse to our current economic woes. And why is that? Is it resources? Time? Lack of know-how? Lack of interest? Lack of courage?

I think its about time our local District Attorneys answered some questions as to why the perpetrators of the greatest scam in our lifetime escaped. Meanwhile, the rest of us have to deal with the havoc these thieves have wrought.

TRIALS: Habitual Problem

Many times during the course of the year I get appointed to the client who is charged with a felony which puts him/her in a more difficult position than usual. That is the habitual offender. Don't worry, I'm not asking for your sympathy for someone who has gone to the penitentiary at least twice already.

If a client is risking a sentence of 25-life on his current felony, what analysis should he/she be making in deciding to go to trial or plead guilty. That's tough, because juries are unpredictable, and the consequences devestating if the client doesn't prevail.

I have always tried to explain the consequences as thoroghly as I could to all of my clients faced with this dilema. Some heeded my warnings, some did not. Some were convicted and received moderate to lengthy sentences. Another was found not guilty. Even more resolved the case without a trial.

Of course it is ALWAYS the client's call whether to roll the dice at trial. But consider this: if you were offered 10 years versus the minimum 25 if you didn't prevail what would you do even if there was some question as to your guilt?

Consider two outcomes of previous clients: One client maintained his innocence in spite of a lengthy criminal record (including an acquittal for Capital Murder) and identification by the victim at the scene. With his record and the immediate charge of Aggravated Robbery of a Disabled Person, it was not outside the realm of possibility that this man could receive the upper end of the range. Yet, it was his call to go to trial and take the chance. The jury found him not guilty after the victim could not identify his booking photo as the man that attacked her. Did he do it? I don't know.

Another client consistently maintained his innocence against a six-year-old charge of sexual assault despite the overwhelming DNA evidence. He agreed to a sentence far less than the minimum which included 5 years of backtime in prison. Did he do it? I don't know.

There are others. A couple clients took their case to a jury and did not fare well. I won't discuss those here because they may be on appeal. Nevertheless, when a client is faced with those odds, they encounter a risk analysis none of us would envy. With the law resembling a three-strikes-and-your-out mentality, it pays for clients to learn their lesson early on that you really don't get rid of your past no matter how hard you try.

TRIALS: The Trial Dogs of Travis County 2008

Yes, it is that time again. That time of Christmas cheer, holiday parties, and the annual Trial Dog Awards. What follows is the top six with a few Honorable Mentions. These are the fearless defense lawyers of our flock. They are the up-and-comers, the veterans, and the hopefuls. What they have in common is the urge to practice what is preached and to strive to advocate to the highest level. In no particular order, let's raise a toast:

Ray Espersen: Yes, Ray had an uncanny 12 felony jury trials before the halfway mark this year. Representing those charged with the most serious of sexual and violent crimes, Ray charged into court in both Travis and Williamson Counties. Armed with the charm, Ray once again proved his competence and endurance.

Tom Weber: Another repeater from last year, Tom plodded forward with a double-digit number of jury trials including murders, sexual crimes, and other violent crimes. While this year marked a year in which he was not involved with a physical altercation with any clients, he maintained his reputation as one of the toughest lawyers in Travis County. No small feat.

Jon Evans: Evans represented some of the most notorious defendants in Travis County. From death penalty defendants to the gammit of violent offenses, Jon tried numerous cases to juries. Our hats should be off to him.

Amanda McDaniel: With cases in Hays and Travis, Amanda will mix it up with anyone. She has no fear. She is a symbol of focus and determination. She has tried numerous cases this year and there is more to come. Good job.

Amber Bode: With the enthusiasm award all but assured, Amber has taken on some formidable opponents in the City of Austin, Williamson County D.A., Hays D.A. and anyone in between. With high-profile cases to her credit, next year will be assured as a leap in opportunity.

Jim Sawyer: Every list should have the best-dressed and most veteran defense lawyer. With some of the most notorious cases to his credit (this year-Laura Hall), Jim Sawyer represents what many of the criminal defense lawyers aspire to be: the right mix of suave, style, and abilities. The perfect mix.

HONORABLE MENTION

Bill Hines
Todd Dudley
Adam Reposa
Tamara Needles
Linda Icenhauer-Ramirez