TRIALS: Overreaching by a long shot.

Yes, the jury in my case this week in the 147th District Court was hung. The final tally was 11-1 in favor of not guilty.

The charge was a constructive Delivery of a Controlled Substance-Cocaine. The State alleged the transaction was within a school zone, elevating the charge to a 3rd Degree Felony, enhanced by three prior trips to the big house. This made his initial range of punishment 25-life. After some discussion with the state, the school zone enhancement was struck, making the punishment range at trial 2-20.

My client (Let's call him Billy for convenience) was alleged to have been part of an elaborate scheme to distribute cocaine in the night club district of Austin. He essentially knew a man, who knew a man, who had supplied a pipe with cocaine in it to an undercover policeman. The alleged transaction was recorded on video taken from the parking garage across the street. The undercover officer supposedly gave Billy a $20 bill during this transaction which the police claimed they recovered from him immediately afterward.

So you ask: How can the transaction be recorded, buy money recovered, and yet a jury not convict? Easy, they didn't believe the officer and the state provided insufficient additional proof.

The undercover officer made some incredible claims. First, the transaction began with a head nod, followed by the officer turning around and walking in unison with Billy followed by Billy stating; "What do you want?" This was taken by the officer as an acknowledgment of a desire for a transaction and a follow-up question of how much crack he wanted. This was followed by Billy talking to another man which the officer then supposedly followed to meet with the connection. He eventually was given a pipe with .1 grams of crack. No crack was ever recovered from Billy or the second man. The Officer's testimony then continued to map an elaborate, sophisticated, and complicated web of crack dealing on 6th Street in Austin. One problem. The jury didn't buy the story. In addition, the video which was purported to show the transaction was muddled, out-of-focus, and hard to follow. Of course the undercover neglected to point out where and when he gave Billy the money.

The State's next witness testified as to the recovered money. However, the officer couldn't show the log with the recorded serial number, couldn't explain why his supplement to the offense report was entered two weeks after the supposed transaction, and finally, HE DIDN'T PRODUCE THE ACTUAL TWENTY DOLLAR BILL after testifying he filed it as evidence.

The clincher for the jury was the only witness for the defense, the last person in the sequence who actually supplied the supposed cocaine to the cop. This person was a pathetic, homeless addict. This poor guy could hardly make it to the stand. He denied knowing my client, never saw any money, and denied any scheme. When asked if he was the one responsible for supplying the officer with the pipe with cocaine, he stated: "Ma'am I probably gave him the pipe, but if there was any cocaine in it, I would have smoked it!"

The jury deliberated from 9:30 am to 4:00 pm. With the jury deadlocked, we reached an agreement for back time in State Jail. It was the first time I'd seen my client smile.

POLICE: How many more false arrests?

Recently, I filed a Habeas Corpus to have one of my client's drug conviction vacated. It was one of those rare moments when justice came a bit later than expected.

Last September, my client pled guilty to felony drug possession. At the time, he was on a dual probation for possession and a stolen vehicle. The odds were that he was going to be revoked on his probation because of the new pending charge. Thanks to support from fellow veterans and some leg work to arrange for drug treatment, the Court agreed to probation on the new case to go along with his current probation. At the time, my client neglected to tell me some key points about his arrest, opting to accept any plea to remain on probation.

About two months later, I was contacted by the District Attorney's office about my client. Apparently, he had been writing letters to Internal Affairs of the police department and was raising some issues on the police stop and detention prior to his plea. The officer allegedly lied and confiscated some evidence. When an investigation was referred to the District Attorney as credible, I was contacted and then filed the Habeas.

Why my client didn't raise these questions with me prior to his plea other than to avoid jeapardizing probation, I'll never know. But, I do give the District Attorney much credit for wanting to right a wrong. The troubling question is: How many more wrongful convictions are there out there and will bad cops ever be purged from the ranks of the respected?

http://www.kxan.com/Global/story.asp?S=5789939&nav=menu73_1

PLEADING GUILTY: Sometimes it pays to balk

Some lawyers say that the best results are often in the deals we cut, not the trial results. But what about the plea bargain our clients agree to, but back out on at the last moment? Two experiences of mine illustrate that some clients can really get lucky.

One client of mine a couple of years ago was on trial for Burglary. He was enhanced from a prior conviction and he was facing substantial prison time if convicted. At trial, the prosecution had a difficult time matching his driver's license signature with the pawn slip signature on the stolen goods that were pawned 30 minutes after the burglary. After 5 hours of jury deliberation, the prosecution offered a misdemeanor sentence which would have meant 2 more months in the county jail. The client hesitantly accepted, and I completed the paperwork.

Upon appearing in front of the judge, he couldn't bring himself to speak the word guilty. The judge voided the deal and sent the inmate back to the holding cell. After a discussion with my client on the merits of completing his agreement, he was allowed to re-emerge and began the process again. However, the alleged victim, wanting to be present, was off having a cigarette. We waited 20 minutes. When the victim arrived, the plea began.

After the admonishments and his plea of guilty, the judge began the sentencing. At that moment, the bailiff informed the judge the jury had reached a verdict. The prosecution requested the plea cease and the verdict be read. At that moment, I thought my client had wasted an opportunity to resolve his case and was facing anywhere from 5-20 years in prison. The jury came back Not Guilty.

About the same time, I had represented a man accused with his 3rd DWI along with enhancements making him habitual offender with a punishment range of 25-life. After doing the discovery, including video tapes, I negotiated an 8 year TDC sentence with his permission. He accepted and I completed the paperwork.

Upon appearing in front of the Judge, he then renounced the agreement and requested a jury trial. He was then placed on the jury docket. Meanwhile, the Court of Criminal Appeals interpreted the 10-year rule (abolished since) to mean that each DWI conviction had to fall within 10 years of each other used for enhancement. Because my client's first DWI was 17 years before the second, the DWI charged was effectively a Class A Misdemeanor. He appeared for trial and he plead to the Misdemeanor and went home. Had he not hesitated to agree to the deal, he may still in prison.

Lucky? Perhaps. But it just shows you, justice comes in various forms.