Criminal Defense in Travis & Williamson County, Texas: Fact and Fiction

TRIALS: Yearly Round-up

2011-12-13T18:45:00.000-08:00

This year was an amazing year of trials. Dating to December of last year, I participated as first chair in 6 serious Felony jury trials. Three of these trials were in Travis County, three in Williamson County. All currently are on appeal. While I will share a few aspects of these trials with you, I will not share privileged information nor any issue which may affect the appeal(s).

STATE v HERNANDEZ [Murder]

Travis County/Second Chair- Lucio Del Toro
One aspect of this trial which was different from others, was the extent of the involvement of the Fire Marshall (FM). Since a fire was alleged to be involved in this case, the FM was extensively involved in retrieving videos from the convenience stores (tracking my client), crime scene processing, and overall investigation.
Another unique aspect of the investigation was to what extent my client (and the rest of the public for that matter) could be tracked. Between convenience store videos, toll booth photos and video, and the fact that a Sheriff ran the plate of the auto used by my client at some point and entered it into the system, it goes to show to what extent the public's moves can be tracked.

STATE v GUTIERREZ [Aggravated Assault with a Deadly Weapon Habitual]

Travis County/Second Chair- Lucio Del Toro
This case featured my client's mother and two sisters as the primary witnesses against him. Nevertheless, the greatest challenge was to keep the 85 extraneous offenses and bad acts out of the Guilt/Innocence phase in light of the Bass v State case a few years ago. I was successful, but only after avoiding those pitfalls to admissibility in jury selection, opening, and cross-examination. If there was some way I could have devised a way to keep those 4 women from testifying against him in the punishment phase, he may have fared a bit better.

STATE v WILLIAMS [Aggravated Assault with a Deadly Weapon x 2]

Williamson County
This particular trial involved a neighborly dispute which escalated in an alleged weapon being pointed at two people. While there is much more to this story than I care to write, suffice to say that this had some extraneous offenses that were hard to keep from admission and with my client insisting on testifying, it made for a tough road.

STATE v RODRIGUEZ [Driving While Intoxicated 3 or more-Habitual]

Travis County/Second Chair- Richard Collins
My client was on parole (he received 25 years last time for Driving While Intoxicated-Habitual), there was an accident, and his blood draw was .25 BAC (there were 2, one from the DPS and one from the hospital). He didn't testify, but he did disrupt jury selection because he had to use the restroom really, really bad.

STATE v ORTEGA [Driving While Intoxicated 3 or more-Habitual]

Williamson County/Second Chair- Ryan Deck
This trial featured another client on parole, charged with his 7th DWI, and another blood draw of .25 BAC. While the officer completely botched the field sobriety tests, the jail phlebotomist admitted that an occasional mopping by the inmate was their version of sanitation, the video of my client narrowly missing that police car proved crucial.

STATE v MEDELLIN [Super-Aggravated Assault of a Child x 2]

Travis County/Second Chair- Lucio Del Toro
This was the first case in which my preparation went out the window with the very first question, a denial and recantation of a child witness. It was also the first time that a witness was found incompetent to testify. These aspects as well as the modified testimony of the expert (he then had to testify about recantation) made this trial the most unpredictable of all.

Trials/Cases on my docket coming up next Spring: Agg Assault Habitual/Driving While Intoxicated Habitual/Agg Assault Habitual/Sexual Assault/Murder/Murder/Capital Murder

NEWS FROM THE FRONT

2011-11-26T09:30:00.000-08:00

SOME INVESTIGATORS AND PROSECUTORS often have tunnel vision even after the DNA evidence shows they have the wrong guy. Whether it's ego or intransience to the obvious, these folks are roadblocks to justice. Read the article in the New York Times on this and you will understand. It just might remind you of someone you've dealt with in this profession.

THE MICHAEL MORTON SAGA continues with scathing editorials in papers from San Marcos to Dallas. Another local blog has compiled some stories worth reading here in it's entry from Nov. 25th.

MONEY LAUNDERING: Hiding in Plain Sight

2011-11-13T20:13:00.000-08:00

Some years ago, it was an annual ritual to participate in a road trip to Laredo/Nuevo Laredo. Stocking up on fake rolexes, drinking cheap margaritas, and eating authentic Mexican food was standard fare. Generally, it was courthouse personnel, lawyers, and a sprinkling of an occasional judge in attendance. Those days are gone.

Last time we all traversed to that part of the country, our usual trek to the Mexican side of the border was met with the sight of young Federales with AK-47s on nearly every other corner. It was a sign that events were unfolding unknown to us under the radar. Our fears were eventually realized in the ensuing months in the form of some highly publicized (and some not so publicized) kidnappings and robberies.

Now the New York Times has reported in this article, that even more activity was taking place in plain sight under the guise of normal business activity (a perfume salesman making millions!). Whether stings like this make a difference in the big picture, I don't know. But time will tell whether I can ever buy another fake rolex again from my favorite Mexican border town.

[NOTE: You might be interested to know, that according to the official TXDPS statistics, Laredo (pop. 231,000) had 9 homicides reported in 2010, El Paso (pop. 625,000) had 5, and Austin (pop. 796,310) had 38. El Paso had one of the lowest murder rates in the country per capita for cities over 250,000.]

CUBA: Getting a Little Closer

2011-11-07T05:29:00.000-08:00

A quiet revolution is taking shape less than a hundred miles from our border. As some of you may know, I've traveled to Cuba (with permission of our government, of course), and it was the most intriguing experience ever. The novelty of traveling to a place like Cuba is the feeling that you have stepped back in time. With the deteriorating buildings, mostly built before 1959, and the classic automobiles which fill the street, it is a place like no other.

Each time I returned (I've been twice), I felt deeply patriotic for my country. To have the freedoms we have, including the right to buy and sell our own private property, is something we simply take for granted. This week, the Cuban people have been given the right by their government for the first time in 50 years to buy and sell their homes and those cars. The New York Times reported here on this incredible development.

Maybe Fidel's influence is finally waning. Just last year, the government of Cuba announced that they were laying off 500,000 government workers, a stunning development.

I know this is not the typical fare from this blog, but freedom lovers everywhere should take note: we take some of our freedoms for granted in this country, in other places the quest is still a work in progress.

NEWS FROM THE FRONT

2011-10-22T21:41:00.000-07:00

MORTON CASE CONTINUES

“People are all over the world telling their one dramatic story and how their life has turned into getting over this one event. Now their lives are more about the past than their future.”― Chuck Palahniuk, Invisible Monsters

A lot has happened since my last post. The Michael Morton story continues. As of this writing, we don't quite know how the aftermath of his release will be finally resolved. See the Austin American Statesman updates here. One thing the case illustrates clearly though, is the human factor and judgement that permeates the process at every level. It begins with a crime scene always open to interpretation (Even the crime scene experts will tell you it's an art, not a science.), progresses to the judgment of the investigators and law enforcement, yet more judgment calls by the medical examiners, on to the prosecutors for the development of a "theory", opposed by defense attorneys with sometimes minimal resources and lack of information, and then to a jury limited to the rules and trappings of a jury trial.

Don't get me wrong. Our system is the best. But we must recognize it for what it is: a system built on the varied human experience at all levels which in and of itself breeds inconsistency, vulnerabilities, and an occasional error with grave consequences

IN MEMORY

Congratulations to those who walked as a show of support of NAMI and their efforts in the mental health arena. A special thanks to Judge Nancy Hohengarten and the staff of the Mental Health Public Defenders Office. The memory of Dan Calamia and Kristi Couvillon will always be with us.

WARRIOR OF THE MONTH

Russ Hunt Jr., gets our Warrior of the Month award. Russ consistently takes on the most serious cases (currently a mix of Capital Murder and Murder cases in Travis/Williamson Counties), and a mix of venues stretching from the Federal Court in Austin, all the way to Waco. Russ is consistently on the Trial Dog List, and was a unanimous pick of the committee this month. Nowhere in Central Texas can anyone boast of a tougher case load and bigger challenges. Go get 'em Russ.

ELECTION RACES ABOUND

Yes, tis the season for commitments and contributions. From Judicial races to District Attorney, you have your chance to open your wallets and be active in shaping your workplace. Join the fray. Make enemies and new friends. But if you have any questions what constitutes a legal contribution, you better consult the Texas Ethics Commission. Don't break the rules!

RAY ESPERSEN VOIR DIRE

Recently, the transcript of the terrific Ray Espersen voir dire in the 368th District Court in Williamson County was released to the membership of the Austin Criminal Defense Lawyers Association. If you would like the transcript and you are a local practitioner of criminal law, drop a line to this blog.

CHARLIE ROADMAN INTERVIEWS

Recently, our own criminal law practitioner Charlie Roadman sat down with 10 of our colleagues for one-on-one interviews. Those interviews are available here and on the sidebar of this blog. Please take the time to listen to the one hour stories of these colleagues. You may learn something you didn't know.

TAX CREDIT: HIRE AN EX-FELON

If you want more information on tax credits up to $2000, contact the Texas Workforce Commission and see if you can put those ex-clients to work.

TRIAL COUNT: Since last Thanksgiving- 1 murder trial, 3 Habitual trials, 1 Agg Assault x 2, 1 Super-Aggravated Sexual Assault of a Child. Coming up on the docket: 3 Habitual Offender Trials.

LAWYERS: TIDBITS and APPLAUSE

2011-04-13T20:13:00.000-07:00

Note: While we are awaiting the final touches to the epic Ray Espersen interview, here is some overdue applause to some of the notable players in our courthouse(s). The following were chosen unanimously by the committee:

Most Unexpected Jury Verdict- Jeremiah Williams [Sablatura and Williams]
While his client pled guilty to 27 counts of Possession of Child Pornography, the jury saw fit to give him 2 years TDC and probated the remaining 26 counts (Williamson County).

Workhorse of the Year- Robert Smith [Law Office of David Chambers]
The man is everywhere in both Travis and Williamson Counties. He's in all District and County Courts, everyday, every week, all year, sometimes at the same time. He waits for the doors to open and is the last man out. He takes no vacations and no prisoners.

Best Dressed List (Men) - Chris Baugh [Travis County District Attorney], Brad Urrutia [Law Office of Brad Urrutia], Novert Morales [Morales and Alderete], Todd Dudley [Law Office of Todd Dudley], Russ Sablatura [Sablatura and Williams], Jim Sawyer [Law Office of Jim Sawyer], Marc Ranc [Hines, Ranc, and Holub], Lucio Del Toro [Law Office of Lucio Del Toro], Geoffrey Puryear [Travis County District Attorney], Jeff Peek [Peek & Toland], Kyle Lowe [The Law Office of Kyle Lowe]. Women to come later.

Best Name for a Defense Lawyer - Curtis Woodcock [Law office of Curtis Woodcock], Lucio Del Toro (repeat winner) [Law Office of Lucio Del Toro], Rhett Braniff (repeat) [Braniff and Tillman] Ryan Deck [Law Office of Ryan Deck] Amber Vasquez-Bode [Law office of Amber Vasquez-Bode].

Del Valle Visitation Award - Charles Popper [Law Office of Charles Popper]
Charles Popper spends every spare moment talking to clients at the Del Valle Correctional Complex. He holds their hand and feels their pain. He is a man who socializes with the down and out. Kudos.

Since my last post some time ago, I've had 4 serious jury trials in the last four months. December (Murder), January (Habitual Agg Assault), February (Agg Assault x 2), and March (Habitual DWI). I am now set for three more in the next three months (Super Aggravated Sexual Assault of a Child x 2, Habitual Family Violence, and Habitual DWI). Each one of these past trials was a learning experience in different ways, worthy of a seminar. While I feel I should update this more often, time has been devoted to other causes lately, as you might understand. When time permits, I hope to share my collective experience with you in the future. Trial Dogs soon! Until then, ONWARD!

COMING SOON--INTERVIEW WITH RAY ESPERSEN

2010-10-21T21:28:00.000-07:00

Coming soon, an in-depth interview with Travis County Defense lawyer Ray Espersen--unplugged (or is that uncorked?)

A SAD DAY

2010-10-05T19:45:00.000-07:00

I post on this blog after a long hiatus. It comes on a sad day where here in Austin we buried a fellow defense lawyer at the young age of 36.

I didn't know Kristi Couvillon Wise very well. I can easily recall seeing her in the courthouse on many occasions and may have spoken to her in passing. But whenever the death of anyone in our workplace happens, it lends a bit more perspective to who we are, what we are, and how quickly it could end in a breath.

Rest in Peace.

KUDOS AND CONGRATS

2010-05-10T11:31:00.000-07:00

Every once and a while, I try to pass on some recognition of those lawyers who have earned a special place on our radar for their efforts. This time, I am recognizing various efforts for a variety of reasons:

Capital Cases-The most challenging of all cases.

Ira Davis
Ariel Payan
Jon Evans
Bill White
Leonard Martinez
Kent Anchutz
Karyl Krug
Tom Weber
Jim Erickson

Continuing Trial Dog Award (in addition to the above candidates)

Ray Espersen

Best Dressed Male Lawyers

Jim Sawyer
Novert Morales
Jorge Sanchez
Russ Sablatura
Clint Butler new (after considerable lobbying)
Chris Baugh new
Jeremy Sylestine
Todd Dudley
Caesar Rodriguez new
Adam Reposa
Marc Ranc new
Bristol Myers new

Best Dressed Female Lawyers

Yvonne Patton
Tamara Needles
Eloisa Ontiveros
Jana Ortega
Ashley Caldwell
Eve Schatelowitz-Alcantar
HONORABLE MENTION-Too many to list

Best Name for a Defense Lawyer

Lucio Del Toro
Rhett Braniff

Best Accent for a Prosecutor

Mark Pryor (like the Geico Gecko)

MENTAL HEALTH: Only the Beginning

2010-03-23T11:29:00.000-07:00

In recent months we have seen people pushed to their personal limitations. One person took the extreme measure by steering an airplane into the offices of the local IRS. What causes people to go to such great extremes? Are we the public missing something?

Because I am on the mental health appointment list, I am seeing more and more folks coming into our criminal justice system with a combination of problems resulting not only from substance abuse, but from the epidemic nobody wants to talk about--mental illness. I currently have more people on my docket that are incompetent than ever. What can be causing such an upsurge and should we have expected it.

I started watching a show recently called House. While it is a medical drama (somewhat fictional I'm told), there was a profound quote that hasn't left my thoughts. The quote was basically that dying was easy and it was living that was the challenge. In most ways I agree.

Think about all of the daily and weekly tasks that we have to do just to maintain our life from maintenance on our vehicles (registration, inspection, etc.) to home maintenance (too many to list), to ourselves and family (health, food, clothing, and shelter), our work (paying or getting paid) and all the other pressures unique to all of us (not to mention the most stressful thing called relationships). Everyday, all of us try our best just to keep our head above water in this raging sea called life.

Adding to the mix of this pressure is the losing of one's job, which creates the domino effect on everything else, or a criminal case, or a divorce/breakup, and what is left is the overwhelming stress of everyday life which only the most steady among us can survive.

Is it a wonder that some rather stable people crack under pressure? What about those with a mental illness to begin with?

I think that there are already some on the edge. The longer the economy stumbles and people are waging the war to keep things in their life together, the more we as a community will have to deal with a greater onslaught of dramatic occurrences of people going over the edge. The question is just how many more and when they will happen.

2010-02-19T15:12:00.001-08:00

http://www.youtube.com/watch?v=ZMXTbjK3ltk

2009-12-16T19:06:00.000-08:00

Welcome!

My campaign has officially begun and I would like to share with you why I want to be your judge. I am a criminal trial lawyer and the 331st District Court is a criminal trial court.

The 331st District Court handles the most serious Felony cases. The cases range from State Jail Felonies with a minimum of 6 months to First Degree Felonies with a maximum of 99 years, Life Sentence, or the Death Penalty.

As a trial lawyer, I have defended hundreds of Felony cases, including Capital Murder, Murder, Manslaughter, Sexual Assault, Burglary, and Drug Possession. Nearly 20 of my cases have gone to trial in just the last 5 years. I have practiced in both Travis and Williamson Counties and have been approved by the judges in both counties to handle the most complicated and serious cases.

I have been approved by the current District Judges to represent mental health defendants charged with the most serious of crimes. These cases have been proven to be both challenging and rewarding. I have received training on the current mental health issues as provided by local mental health professionals.

I am a member of the State Bar College. Membership in the State Bar College requires twice the minimum required Continuing Legal Education hours. Some of the courses included: crime scene reconstruction, blood spatter, DNA, computer forensics, and many more. I have been a member for several years.

I am a former member of the United Steelworkers Union and I am a former 8th grade school teacher. I teach Business Law at Austin Community College in Fall semesters. I am an avid hiker, camper, and a fan of the outdoors. I am physically active in sports and enjoy this great city where I reside.

I am the most qualified candidate in this race. In addition to my extensive courtroom experience, I have the dedication, desire, and reputation to represent the citizens of Travis County.

Please contact my campaign with any questions, comments, or feedback. I can't do this campaign without you and I look forward to your support.

www.keithforjudge.com

Yours truly,
Keith Lauerman

Pol. Adv. Campaign to Elect Keith Lauerman, William H. Hines, Treasurer, in compliance with the voluntary limits of the Judicial Campaign Fairness Act.

ACCUSED: What Are they Thinking?

2009-11-09T21:45:00.000-08:00

[Note: I have represented and continue to represent those clients who are falsely accused and those whose charges are inflated, concocted, or exaggerated. These comments are not relective of them.]

I got into a short but interesting conversation today. The two lawyers were laughing at me. I think they missed the point.

When a person is contemplating committing a crime (many of course don't contemplate, they just do it), what goes through their head? Many say that someone who is going to commit a crime never do it with the idea they will get caught. I have a limited belief in this.

Consider this. Repeat offenders such as those convicted of theft or burglary have been caught before. They know they are vulnerable in some way to being apprehended and convicted just like the last time, yet they do it again and again. They continue to take the risk and prior to committing their actions, I believe, make a risk assessment. That is, whether its worth the chance on getting caught given the opportunity that presents itself and its perceived benefits.

What goes into a risk assessment? Whether conciously or unconciously, you can't help but think that whatever downside is associated with their potential actions, i.e. whatever happened last time they got caught, weighs in. Now, I don't think that most of my repeat-offender clients calculate the enhancements or keep up with the legislature on emerging trends. But I do believe that in the back of their mind, they are recalling their last experience at Del Valle, Travis County Jail, or prison. That experience will play in the risk assessment either way: either give them pause or comfort.

What about where the action is contemplated (This is where some of my colleagues and I really differ). I truly believe that the location of the contemplated action makes a difference. Of course it is one of many factors that one may consider. If a person is wavering on whether to take a chance on robbing a bank in Round Rock, for example, isn't that much-publicized 55 year sentence that was handed down in Williamson County some time ago going to play some role in the decision-making? To some folks not, but for some it will.

Some folks don't think any criminals think so sophisticated. I think those folks are naive. I do not profess to be an expert in this area beyond my experiences with my many clients of 16 years. But I have represented those that have planned extensively, were impulsive, or thought they were bulletproof and would never get caught. Believe me, there is a level of risk-taking, it just varies with the individual. And to those risk-takers, I'm always available for the aftermath.

My buddies wanted to be firemen, farmers or policemen, something like that. Not me, I just wanted to steal people's money! --John Dillinger

PRACTICE: Amazing World

2009-10-18T21:33:00.000-07:00

[NOTE: Yes, it's been a while since I've posted. No more. I plan to be updating this blog weekly starting tonight.]

I recently watched an internet video of a Conan O'Brien guest. The jist of this clip was that things are amazing and nobody is happy. The guest talked about how technology has made our lives amazingly easier and we have just taken so many things for granted.

Practicing Criminal law in Travis County is amazingly efficient compared to just a decade ago. When I started practicing here, I would show up to misdemeanor jail call hoping that the appointments would get to my name. Sometimes I came up short by just a name or two. Then, to make it somewhat easier, there was the jail call phone line.

Technology then evolved eventually to what we have today, the online docket, email, etc. Along the way during this evolution were internet sights where we could check for inmate location with bonding information, back time calculation, warrants, appellate information, documents from the courts, and free legal research (many are listed on the right column of this blog). I can practice law completely on my laptop or phone anywhere, anytime, complete with my updated calendar. No more paper calendars or having to call court administration for dates. It's truly an amazing time to practice law, especially as a solo practitioner.

But there are a few things that technology can't make better. We still have to travel great distances up and down the building merely to talk to clients, lengthy waits in certain courts to get our business done, taking the stairs because the elevators are slow, and scheduling conflicts that even the most efficient technolgy can't fix. But taken as a whole, practicing law in Travis is a whole lot easier than it was which has led to better time management and more profitability for many of us.

But make no mistake, the practice of law will never truly be easy. Technology will never mitigate the pain victims and their families feel. Technology will never calm the anxiety of the accused. Nor will technology ever lessen the pain of children/spouses separated from parents/loved ones by the bars of prison. These human aspects of practicing law deserve our attention, skill, and judgment constantly. Technology will never be able to lessen what is a life-changing experience for many. And while technology may make parts of our day a little easier to take, it will ultimately be up to our individual approach, style, and patience that will earn our reputation and respect. I think that is a good thing.

LAWYERS: Healthy Attitude

2009-08-03T19:14:00.000-07:00

There is alot of of healthcare debate these days. How does this debate impacts my practice and colleagues is hard to say. Most of my cohorts are self-employed. Some have associates, most have legal assistants. Some purchase health insurance for their employees, some don't even have insurance for themselves.

I have been trying for years to talk many of my colleagues into participating in one of the best ideas ever, Health Savings Accounts (HSA's). Passed during the Bush administration, an HSA is a tax-free savings account designed to defray costs, instill some control, and place personal responsibilty for one's health.

An HSA is simple: If a self-employed or otherwise qualified person has a policy with a relatively high deductible (mine is $2500), they can open an account with a qualified institution (I have mine with a bank that is federally insured), and deposit up to nearly $3000 per year. The best qualities of this plan are 1.) that deposits into the account amount to a tax credit (like an IRA) where you can invest it anyway you like; and 2.) the account accumulates from year to year. This means that if one deposited money into this account on a regular basis, there would be perhaps enough money to pay the deductible or put the account holder in a position to increase the deductible and drive premiums lower, all with tax-free money.

The downside? There are none. Why don't more of my colleagues have HSAs? No clue.

The only thing worse than not taking advantage of the options available is the fateful decision not to get an annual physical to begin with. What is at stake by not taking care of oneself is far greater than losing a tax credit.

LAWYERS: A Capital Performance

2009-06-18T15:06:00.000-07:00

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

2009-04-20T15:25:00.000-07:00

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.

CRIME: The Ones That Got Away

2009-02-23T19:56:00.000-08:00

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

2009-01-29T14:49:00.000-08:00

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

2008-12-08T14:04:00.000-08:00

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

TRIALS: Discovery Does Matter

2008-11-24T19:15:00.000-08:00

[Note: I hope to post some of the unique aspects of the trial earlier of Kurtiss Colvin who was found not guilty of Manslaughter in October.]

One aspect of trial preparation I learned from my short stint in civil practice some years ago was the need to speak to key witnesses before trial. This never was so evident than this last trial.

One such witness was the Travis County Medical Examiner. A few months prior to this trial, I sat down with the doctor who signed the autopsy. With the report in hand, I went line by line with the Doctor and reviewed terminolgy, the meaning of certain diagnosis, and what conclusions that may be drawn. Without a doubt, this discussion shaped my entire cross-examination and the the conclusions that were eventually drawn by the jury, namely, who may have been responsible for this crime.

Lawyers are often told that they should never ask a question that they don't know the answer to. In a cross-examination of any expert or person with special knowledge, I find it is crucial to set a road map for cross ahead of time. This was no exception.

Make no mistake, the doctor gave me only an interpretation of a report and was extremely neutral in his explanations and diagnosis. The discussion was focused solely on the report and offered no insight that was not otherwise available to the prosecution.

While some cases demand that the lawyer gain some additional knowledge in a field beyond the law, nothing aids an attorney representing the life of a defendant than the wide-ranging body of knowledge associated with forensics and medical conclusions. I have interviewed experts on ballistics, domestic violence, audiotape analysis, and have read an entire book by the state's blood-spatter expert. Nothing beats this type of preparation.

While the attorney should make those judgments according to time constraints and availability of resources, make no mistake: it makes a difference. My conversation with the doctor made a difference in the search for truth. I would urge all lawyers in whatever case you may have to seek the truth ahead of time.

Don't have to hesitate to ask the question you don't know the answer to simply because you were too shy to find out the answer before hand. Often it is the difference between a one or two word verdict.

TRIALS: The Anatomy of a Trial

2008-10-22T12:28:00.000-07:00

[Stay tuned for an extended series of blog entries on my trial in the 147th District Court. Sentencing is set for Nov. 3rd, 2008. My Defendant is Kurtiss Colvin. Mr. Colvin was charged with Manslaughter. The jury convicted him of a lesser charge of Aggravated Assault and assessed probation.]

COURTS: Disorder in the Court

2008-10-13T15:31:00.001-07:00

I missed the melee that was in the 147th District Court last week. In short, the victim's family was not quite satisfied with the plea agreement and decided to voice their opinion by rushing the bench and disrupting the proceedings. Only the quick thinking bailiff and a little pepper spray averted what could have been an uglier scene.

I have to give the prosecution some credit. The range of possibilities of what could happen in a trial are best evaluated by the professionals in charge and not the sometimes irrational reactions by the victim's family members.

Don't get me wrong, victim's family members have every right to grieve and express their disgust with the perpetrators of these inexcuseable actions. But that is separate from the evaluation of a case and an eventual decision by people without an emotional attachment to the victim.

Some of my clients are equally unrealistic in evaluating their cases in the opposite direction. Some don't like what I have to tell them and try to take it out on me. Client control in many ways is akin to victim control. Both require patience and frankness. In the end, the final say goes to twelve strangers in the jury box. When this happens, reality can be a bitter pill to swallow for somebody.

LAWS: Register my Dog?

2008-09-23T17:32:00.000-07:00

With the legislature on their way back, it's time to give a quick look at some of my favorite crimes on the books. These are still in effect, and I just can't wait for the legislature to tell us what else we can't do. Here, in no particular order, are some of the highlights:

Alcohol and Beverage Code
101.63 Selling to a Habitual Drunkard or Intoxicated or Insane Person
106.15 Inducing a minor (younger than 18) to dance with another in exchange for a benefit of alcoholic beverage permittee

Election Code
66.060 Relinquishing custody of key for Ballot Box No. 3
162.014 Participating in 2 conventions or primaries in the same year

Finance Code
59.002 Slandering or libeling a bank
89.101 Slandering a savings and loan

Government Code
3101.010 Thrashing Pecans

Health and Safety Code
146.0124 Body piercing an intoxicated person
146.0125 Body piercing a minor without parental consent
146.0126 Tongue splitting
365.016 Disposing of litter in a cave
463.001 Contributing to the delinquency of habitual drunkard
822.045 Failing to register a dangerous dog
826.034 Failing to register a dog or cat

Natural Resources Code
201.011 Defacing a public cave without a permit
201.042 Unauthorized sale of speleothems

Parks and Wildlife Code
49.002 Capturing raptors without a permit
63.103 Selling or possessing a live Armadillo
66.004 Taking fish by electric shock
66.008 Fishing from a bridge
66.011 Leaving fish to die
76.107 Selling sport oysters

Vernon's Statutues
9010 Peddling of printed material by deaf or mute people
9007 Selling of merchandise made by convicts or prisoners

Of course, there are more. With the legislature nearly upon us, expect a few more laws to make the hit parade. I can't wait.

LAWYER: Every Client's Crazy About a Sharp Dressed Man

2008-09-01T18:55:00.000-07:00

What pleases clients more than to see their lawyer looking like a true stylemaster in the court? Above all, it commands respect and shows a true taste in threads that compliment. Below is the current list of style experts in the Travis County Courthouse. If you disagree, shoot me an e-mail. Otherwise, in no particular order are the magnificent seven and why they are on the list:

Todd Dudley- Trademark pinstripes
Russ Sablatura-Italian suits
Jorge Sanchez-Tayloring
Novert Morales-Testing the limits
Jeremy Sylestine-Color coordination
Adam Reposa-Use of pink
Jim Sawyer-top to bottom

LAWYERS: Queens of the Court

2008-08-14T12:32:00.000-07:00

2008 has shown us that some of the women lawyers of our courthouse are no wimps. It has been a year so far that in a profession dominated by the male gender, some of our female colleagues have stepped up to the plate and taken a swing. They are models of dedication and focus, advocacy and perseverence. These are women who take on the hard cases, often with difficult clients, and tow the line with grace. They are the Charlie's Angels of our workplace who draw the line in the sand and don't try to merely get along with just a smile. In no particular order, here are the Queens of the Court:

LINDA ICENHAUER-RAMIREZ With three (3) serious jury trials so far this year, Linda sets the standard yet again for her experience and dedication to trying the hard cases. Whether its in Travis or Williamson County, Linda takes on those mountains to climb without hesitation.

AMANDA McDANIEL Believe it or not, Amanda has six (6) jury trials already. An up and comer with no hesitation to push the right case, Amanda is another walking resource of valuable experience. My hat is off to her.

TAMARA NEEDLES One of the greatest tests of a lawyer is plodding through a lengthy jury trial. After a three week jury trial in Hays County (with Will Holgate), Tamara turned right around a tried another serious felony. With three (3) serious felonies under her belt so far, the year promises to be busy, yet prosperous in experience.

MARGIE JOHNSON With a well publicized not-guilty recently, Margie has leap-frogged into the class of those trial lawyers that will take on a case at any time or any place. Margie has tried at least three (3) seious felony cases this year with more to come. Practicing in two counties, Margie has put the prosecution on notice that she knows what she is doing.

AMBER BODE With the recent not guilty on a case which the prosecution thought was a slam dunk, Amber has taken on highly publicized cases as well as those in which the indigent deserved competent representation. I know of her abilities as she second-chaired me this January. She deserves our recognition for her tenacity.

So there is my current list. I'm sure there are more. But for now, when you think of females willing to take cases to trial, these should come to mind. The prosecution has taken note, so should you.

CLIENTS: Sexual Healing

2008-08-04T12:54:00.000-07:00

Yes, I was the lawyer for 19-year-old Jean Carlo Ponzanelli who was recently featured on KXAN. Jean recently received a sentence of 3 years in the Institutional Division of the Texas Department of Corrections for violations of his deferred adjudication probation received for a plea of guilty to Attempted Sexual Assault last year in Williamson County. He was 17 years old at the time of his alleged offense, and the alleged female victim was 13. I did not represent him on this plea. After the plea and after his arrest for his alleged probation violations, it was found he was not a citizen. He did not know this because his mother brought him over as a very young child. He is now facing deportation.

While I am not permitted to discuss the priviledged commuication between us, I can say this: Jean did not have many good choices in the matter.

Under the law, Jean most likely would face deportation under any of the possible scenarios: continued deferred adjudication, continued regular probation, or receiving a sentence within the range of 2-10 years in prison.

The one scenario that Mr. Ponzanelli would have been able to stay in this country would have been if his original plea of guilty had been allowed by the Court to be withdrawn, the case went to trial (the original charge with a potential range of 5-99 years), and he prevailed with a not-guilty verdict.

Mr. Ponzanelli considered these possibilities and made his decision.

The main focus of his supporters now should be on amending the law to provide some defense to those young men caught in situations because of deception, lies, and entrapment. Young women these days have the ability to lie and mislead by the likes of MySpace and other social outlets not available just a few years ago. But in addition, schools should start educating their students in the impact of the criminal statutes. If the students knew the consequences of their actions, maybe they would think twice before putting themselves in such situations.

I did my best for Jean, I just wish the law would have been a bit kinder. It's up to the Legislature now.

CLIENTS: Jailhouse Lawyering Run Amok

2008-07-24T21:49:00.000-07:00

Often I have found that one of the greatest obstacles to resolving cases is dispelling of the myths that permeate the correctional complex and prolong the negotiation process. On a regular basis, I have found myself doing extra counseling to those new to the system because of erroneous information circulating the jail. This information regularly casts doubt on the competence of the lawyer for no good reason.

Below I have outlined my new attachment to all newly appointed inmates at the correctional complex. I'm hoping this will clarify from the beginning to my clients who they should be listening to. I have left out the paragraph for each one that explains in more detail, but I think you get the message:

1. You are not automatically entitled to a 12:44(a);
2. Court-Appointed Lawyers are paid at a flat rate;
3. Calling your lawyer everyday is excessive and doesn't help your case;
4. The Felony process takes time;
5. Angry family members/friends do not help your case;
6. TDC has their own system of calculating your release;
7. Don't file your own motions;
8. If you don't have any money to make bond, don't ask your lawyer to file a bond reduction;
9. Don't expect your lawyer to visit you every week; and
10. If you have important information for your lawyer, send it by letter.

Of course every lawyer has had other distractions and myths that they have had to shatter. But these are but a few of the obstacles that take up alot of an attorney's time for no reason. We'll see if they work and maybe my time can be spent bit more productively.

TRIALS: Throwing a Curve

2008-06-29T09:23:00.000-07:00

I always viewed a trial as the milestone in my profession. As one local veteran attorney put it: "It is the juice of what we do". Why is it then, that so many attorneys never try cases? Is the juice in short supply or is it that they simply refuse a taste?

My theory is that cases could be ranked in sort of a sliding scale with some cases on one end that should be dismissed outright, and the other extreme where the client better plea and take responsibility without delay. But what about that mass of cases between where there is some doubt (for example, intoxication) as to whether the state should or could make a case against them?

Recently, one of our colleagues successfully defended a client with a .12 breath test. Great job. How many more challenges could have been taken up on behalf of clients with similar circumstances? And why is it that lawyers with substantial case loads never seem to get to trial but cut a deal constantly. Is that lawyering? Maybe, maybe not.

The ingredients must be there for a trial. Here they are:
1. A willing client who is appointed or who will pay if retained and understands the risks; and
2. A willing lawyer who is not afraid to put in the effort and time and has explained the risks to the client;
3. A unreasonable offer from the prosecutor (optional).

If someone gets great offers because they seem to get along with prosecutors and have a good reputation for moving cases, I wonder if that is truly a function of the adversary system. It would be much more preferable to get good offers because one has the respect of one's abilities and willingness to let the public decide.

Lawyers should always eye their cases for trial from the beginning. In the end, if their client is willing, they should show their client they are truly a full-service lawyer, not afraid to take the plunge into the pinnacle of our profession. Only then, will the juice be shared.

PRACTICE: Give me a Break

2008-06-13T14:07:00.000-07:00

I'm off to Peru tomorrow for some rafting, horseback riding, and the like. What I have waiting for me will not be on my mind.

What do I have waiting for me? How about a possible one to two week manslaughter trial, Writ of Habeaus Corpus filing, Agg Sexual Assault Habitual trial, Injury to a Child (death) case, Agg Assault Habitual trial (caught on tape), Indecency with a Child, Client Competency Hearing, etc., etc...

I am looking forward to coming back to dive into each and every case. I learn something every time, and I feel myself getting more competent and knowlegeable every time there is a challenge. Of course, there are several lawyers with equally challenging cases and I applaud them for it. But for me, this year has been especially both challenging and rewarding.

The trip to Peru will be long overdue. But with the cases coming down the line with the year only half over, a breath of Andean air might be just what I need before the havoc and mayhem take over.

CLIENTS: Hand Me a Broom

2008-06-03T09:39:00.000-07:00

I do everything I can to resolve cases in my client's best interest. I investigate their claims, get investigators involved, and dive into discovery the best I can. But one thing gets in the way the most..the facts.

Sometimes I feel like that man at the end of the parade who sweeps up the confetti and scoops up the poop after everyone has partied and made a mess of things.

Don't get me wrong--I have represented clients who were found not guilty at trial who clearly were wrongly accused and I believed in them. But often some of my clients are in need of a magician more than a lawyer. For them, it's a difficult ride.

What about that hypothetical situation where a person is on a second degree deferred adjudication and then involves themself in an aggravated robbery where a person is shot? Can they realistically believe they should get continued on probation and then probation on the new case? The prosecution has two bites at the apple to send them to prison by revoking their probation and then pursuing the new case (and of course stacking). Complicating this is the judge setting the probation revocation first so if there is a trial and the client had been revoked, they won't be eligible for probation.

Explaining this parade of horribles is the most difficult of tasks to the client and/or family. All of a sudden, I am supposed to fix everything by virtue of my few short months on the case, when the underpinnings of this conduct of the client has been brewing for decades. In short, there is a complete disconnect by the client and/or family between actions and consequences. When the consequences play out, they attempt to justify the actions or blame the lawyer.

Every case is different, but when we get the feeling that we are that man at the end of the parade, we should at least thank goodness we are not the ones who eventually pay for the mess that they themselves created.

BLOGS: Leaping to a Conclusion

2008-05-30T05:13:00.000-07:00

Once again, to my many colleagues that have asked me, I am NOT Dennis Toad. The interesting web blog (http://austinlawnews.blogspot.com/) that sarcastically has written about some of the personalities in Travis and Williamson counties is no doubt the work of someone who practices in both counties. While I fit the bill, it's just not me.

I will say, I rarely criticize fellow lawyers. If I did, I would not do it anonymously and use their names. That is a bit gutless.

In the end, Dennis Toad will come to light. And when he/she does, it will be him/her that faces the music. Not me.

TRIALS: A Family Affair

2008-05-13T11:01:00.000-07:00

Two weeks ago, my client was found guilty by a jury in Williamson County, Texas, of Burglary of a Habitation, a second degree Felony.

He allegedly entered the residence of his own mother, took many of his own belongings, but left with a safe containing important documents and other assorted valuables that were not his. The main witnesses for the prosecution were his own mother and sister. There was a recorded statement, pictures of the pawned valuables, and some circumstantial evidence of entry.

The main question in this trial was whether he had consent to be on the premises. The mother said that had he gathered his own things and left, that it would have been okay. She repeated this three times under questioning. That was at least some evidence that he may have had consent to enter the residence, but not take her stuff.

It's pretty tough to make an argument for a client when his family is aligned against him and he is a rather unsympathetic figure. But the legal argument was there, however, it was rejected by the jury. It was the first time that I argued my client was guilty, but not of what they said. I argued a theft conviction was fair (of course, it would have been a class "C").

For three days I thought I was practicing that dreaded area of Family Law, mediating a family feud that pitted mother and family against son. The result was 10 years in the Texas Department of Corrections for the son, a tough ending for a man who messed with mom.

LAWYERS: Who Are YOU pulling for?

2008-04-21T14:22:00.000-07:00

Now that the dust has somewhat settled in the contempt flareup last week, I think it only appropriate to assess the winners and losers of the spectacle that was the Reposa contempt hearing.

As I sat in the courtroom during the hearing, I couldn't help but think that I was watching a rerun of the movie Animal House, where the unconventional fraternity was placed on "double secret probation" and subjected to a "discipinary hearing" presided over by Dean Wormer and prosecuted by a preppy Greg Marmalard and fascist-in-training Doug Needlemeyer. I'll let you decide what characters fit who the best. The only missing scene was the persecuted subjects leaving the room humming the national anthem. With that in mind, here in my opinion, are the winners and losers of this latest fiasco:

LOSERS

THE COUNTY ATTORNEY'S OFFICE: Never have I witnessed a proceeding that demeaned the process and so many people in one fell swoop. The exaggerated formality of a hearing that could have been over in 45 minutes was stretched to a galling 5 hours due mostly to the irrelevant droning on subjects unconnected to a charge of contempt. From the introduction of "ads", to the State Bar website information, to the cross-examination of witnesses whose only contribution was a steady diet of hearsay, it resembled a sham. If that was a good use of county resources, Lord help us.

ADAM REPOSA: Reposa succeeded in rallying the Defense Bar against his behavior with the sheer acts of defiance and arrogance which mark his style. He is a lone wolf in his tactics and his peers reject him because of it. He made matters worse by overruling his lawyer and testifying. He proved the theory that a lawyer who represents himself has a fool for a client. He made his bed and some would agree that it was time to sleep in it.

THE CRIMINAL DEFENSE BAR: Nowhere was the hypocrisy screaming out more than the behavior of the Association. In an organization that penned its name to a letter protesting the ICE office in the jail and other various endeavors, it couldn't bring itself to protest the absence of due process to one of its own. As many of our violent clients walked out of jail on probation with treatment and counseling as recommended, a criminal defense lawyer was looking at enough jail time to ruin his practice. Had you substituted another lawyer for Reposa, the Association probably would have acted. It was an exercise in picking and choosing support depending on who was popular, and looking the other way on the principles involved.

WINNERS:

THE COUNTY ATTORNEY'S OFFICE: In the public's eyes, the CA was only doing what had to be done. Criminal Defense lawyers are generally not popular, especially those accused of lewd acts in public. It was a publicity coup for the County Attorney's Office. And for an elective office, nothing brings home the votes more than a victory over an unruly lawyer.

ADAM REPOSA: They say that any publicity is good publicity for people in this business and Reposa has made the best of this. In addition, an astounding 90 day sentence could not have rallied more people in his corner if he tried. Even if people rejected his behavior in the Court, the 90 day banishment was over the top by any standard. The sympathy factor prompted by the sentence overshadowed the contempt finding itself. He could not have scripted it better.

THE CRIMINAL DEFENSE BAR: While inconsistent in its efforts, the Bar has no obligation to support every cause. First and foremost is the preservation of the image and integrity of its membership. While Reposa was not even a member, some argued that the Bar should have at least protested the sentence. I was in the minority that the Bar should have taken some stance on this issue, but I was out-voted. If time passes and interest fades, the passive attitude of the Bar will have proven right. But if another crisis involving a lawyer surfaces, the passiveness may not prove to be the right formula and this sets a dangerous precedent. But for now, no action may prove to be the right action.

While discussions will continue about the merits of having a civil judge decide the standard of behavior of a criminal lawyer (don't they just argue about money and the occasional child custody case over there?), the real focus eventually should be on due process, violations, and what is an appropriate remedy. Ensuring consistency in enforcing the law and application of punishment is fundamental to what we do. When the rules of Animal House apply, we reject the axiom that we are a nation of laws, not of men. And at that point, we are all guilty of contempt in the eyes of the public.

CLIENTS: Continuing Human Tragedy

2008-04-16T15:51:00.000-07:00

[NOTE: Look for my comments on today's contempt hearing in one week, after the dust settles]

I experienced a moment of mixed feelings today. On the one hand I worked out a plea arrangement for prison for a man who robbed a local department store. He used a fake gun, creating an immense amount of anxiety for the young cashier. This was not the first time for this defendant. He had two prior convictions for armed robbery and spent 11 years in prison for his last offense.

Here's the rub. Those prior convictions were 35 years ago. He was now 73 years of age, the oldest inmate in our local system. He had received a Bachelor's Degree from Northwestern. He was honorably discharged from the Air Force in the 1950's. He held jobs of eight years, then twelve in length. He had no drug or alcohol addictions that were noted and exibited no signs of mental illness. He was a father and grandfather. He was displaced by Katrina and used a toy gun in desperation because his daughter was in financial hardship.

A jury could not have given him probation. The punishment range was 2-20 years in prison. The prosecutor would not lower the charge.

Every day is an witness to irreversible human tragedy. People often appear to be perfect citizens, act with dignity, and follow the rules. Nevertheless, some of these folks veer off in unexplainable directions either from impulse that has been suppressed or a new found expression of frustration or value deficit. Thus the mystery of the human mind.

I don't know what happen to my aging client in making him decide this was an action worth taking, but the result of a two year sentence in prison will give him time to think about it.

CLIENTS: Losing a Client

2008-03-19T22:08:00.000-07:00

My client died the other day while in custody. His name was Donald Wayne Booth. He was charged in the August 2007 murder of a woman on the Southeast side of Austin. He was a caregiver by trade. She had been a former patient. I never thought my representation of this man would end amidst the confusion and indifference I was about to experience.

I met and talked to Mr. Booth periodically since I was first appointed to represent him last fall. His case investigation was ongoing by the Austin Police Department until sometime in December when I first received discovery. His case presented some interesting aspects. Among other things, this was the first case I had been appointed where the investigation relied, in part, of the tracing of Mr. Booth's whereabouts through the location of his cell phone calls on the night of the murder.

Booth was a large man. He stood approximately 5'5", hovering around 300 pounds. The last time I saw him, he was manuevering in a wheelchair at the Travis County Correctional Complex (TCCC). His health appeared to be deteriorating.

Since this last meeting, I had continued the discovery process, reading the various statements by witnesses and his statements to police. It was at this point that I needed some clarification of his story, along with a timeline of his whereabouts on that night. I never had that chance.

I had received word from his family toward the end of February that Mr. Booth had been transferred to the Austin State Hospital (ASH) mental facility. After receiving that information, I embarked on a mission to locate Mr. Booth and find out why I hadn't been notified and how the transfer could take place without an evaluation (that I knew of) or court order.

I contacted the medical staff at TCCC by telephone and email with no luck in finding Mr. Booth. My further inquiries led me to information that he in fact had gone to Brackenridge Hospital (medical facility). Upon contacting Brackenridge, I was told no patient by that name was admitted. I directed my legal assistant to follow up on this and try to find him. After a two hour search in which she called the various facilities associated with Brackenridge, she reported to me that all Brackenridge facilities denied to her Mr. Booth's whereabouts. The jail continued to say Booth was at Brackenridge. However, Booth was shown to be in the TCCC on the online search site of the Travis County Sherrif (TCSO).

I physically went to Brackenridge two weekends ago to find Mr. Booth. Again, I was told that he was not a patient at this facility. In the following days, I contacted admissions office at Brackenridge who directed me to the patient liason. I left a message and received no return call. I then contacted the medical staff at the Travis County Jail, and the personnel informed me that he was at Brackenridge under a fictious name. I was told not to worry because he was coming back that day (last Thursday). Until this moment, I was unaware of the policy to admit inmates under fictitious names.

I went to the Travis County Jail (TCJ) downtown that next day, only to be told he was sent to TCCC that morning. The next day, Saturday, I went to TCCC and was told he had been transferred yet again to the hospital. This time a guard at the complex gave me a telephone number to call and receive his assumed name. I received an email from his family that he died overnight before I could call or see him. He had never been to ASH as the jail had told his family.

For two weeks, my mission to merely locate my client was infected with deception, wrongful invocations of HIPPA, and a blatant disregard of my responsibilties as his counsel by officials charged with his care. A small consolation was that his brother saw him at TCCC the Thursday he came back. He reported to me that he had lost substantial weight and had tubes protruding from his chest.

I do not profess to know whether Mr. Booth was guilty or not of the crime charged. Because of the charge against him, he may not garner much sympathy from strangers. Additionally, I understand the arguments for security and certain restrictions in a public hospital. This is not the point. I don't believe there are ANY valid arguments for the kind of deception perpetrated on his family and attorney. He died alone in a hospital room under another name. For that, there are no excuses or legitimate policy considerations, and nobody should think otherwise.

TRIALS: Acquittals-The Aftermath

2008-03-03T18:58:00.000-08:00

Raymond Donovan, who was secretary of Labor in the Reagan administration, famously asked after his 1987 acquittal on 100 counts of racketeering charges: "Which office do I go to, to get my reputation back?" Thus, one of the many continuing battles in the aftermath of an acquittal.

How often do we hear of the tremendous results the defense attorneys achieve after acquittals in our courthouse (see more congrats at the end of this article)? Rarely. The acquittal is somewhat of a phenomenom in our workplace, yet who can guess the continuing effects on our client's reputation even after a successful battle against the accusing forces. Even with exoneration, the system and our clients are often continually perceived with suspicion. The stigma of experiencing this process often goes unrepaired to these clients and members of the public, even with the automatic expunction.

Of course, the state would argue that the system is imperfect and many in fact did commit the crime they were accused of doing. However, are those same advocates willing to also concede the corollary, that is, the innocent are sometimes convicted? Doubtful.

Being acquitted carries the perception by many that they must have got away with something or beat the system. But, odds are they were acquitted precisely because the system worked as designed. There should be no shame associated with this outcome to anyone. The obstacle is simply public relations and perception.

The public seems to thirst for news of the big verdicts, fueled by the news releases of prosecutor "victories", and aided by the never ending television programs of how the bad guys are brought to justice. However, if the public was aware that every year Defendants in our very courthouse are found innocent and false charges are exposed, would they feel the same way? Over time I bet the tide would change.

Publicizing these hard fought victories, like the sample I write of on occasion, are the key to changing the tide. There should be no shame in holding one's head up after a victory. Margie Johnson and Linda Icenhouer-Ramirez should be proud of their representation and acquittal of their client in the 167th District Court last week for Aggravated Assault. We need more warriors like them in our ranks and we need to increase public awareness.

Is it possible for our clients get their reputation back? Of course. But make no mistake, that's not easy. The late Richard Jewell, who was falsely accused of planting the Olympic Park bomb in 1996 and who later received an apology from the FBI once said: ''There will not only always be a shadow, but I think there's going to be a deep hole and river to cross everywhere I go.''

TRIALS: Dudley Do-Right and Rambo Ray

2008-01-24T15:57:00.000-08:00

Yes, there has been the first not guilty of the year courtesy of Todd Dudley. A County Court #4 Assault, Todd kept the jury out for an extended period of time before his victory in the first week of the new year. Congrats.

And who can second-guess the recent victory(s) of Trial Dog Ray Espersen. In the 427th District Court, Ray represented a defendant charged with 9, (yes, count 'em, 9) counts of charges ranging from agg sex assault of a child to indecency by contact. Result? 8 not guilty verdicts and probation on the remaining count! It may hurt you to do it, but tell Ray good job next time you see him.

Addendum: While the reaction to the Trial Dog article (see below) was generally positive, I did receive some additional well-deserved suggestions for recognition and kudos. Linda Icenhauer-Ramirez, Jon Evans, and Bill Browning certainly deserve some well-deserved praise for their trials. Linda has been a warrior for many years at both the trial and appellate areas, practicing at the highest level in the criminal and juvenile law areas. Jon and Bill have consistently tried the most difficult of cases. I will continue to recognize lawyers who put forth these efforts.

While there were some comments in which I agree (see the one posted on the previous article), I should be clear about a couple of things: The article was not commenting on any particular trial tactics, strategies, or even the wisdom of going to trial on any particular case. The criteria was merely the willingness, types of cases, and quantity of cases. In a profession where we sometimes feel like a fire hydrant in a neighborhood of dogs, the article was merely an observation of those who do not shrink from the idea of practicing their craft in front of a live jury and often empty galleries. They deserve a well-deserved pat on the back for their effort. The relationships of those lawyers and their clients are not of my particular concern although one could always speculate that some of those trials could have been resolved prior to trial. We'll never know. Lastly, we certainly do have those in our ranks who are the opposite, that is, are unwilling or unable to go to trial. However, they are not the subject of my observations at this time.

TRIALS: The Trial Dogs of Travis County 2007

2007-12-09T16:18:00.000-08:00

There are some lawyers who deserve to receive special recognition in our business. These are the ones who go to battle in trial, stand on the front line, make the hard decisions (often in an instant), are often reviled by the public, lose sleep, expend immeasureable emotion, and fight for the future of their clients again and again.

These are the lawyers who carry our mantle and regard their profession more as an art than a business. These are the lawyers who represent the clients accused of the most egregious of accusations, most often appointed, and hardly receive their just compensation. Often habitual offenders or others accused of a crime for the first time, their clients place their future in the hands of these Trial Dogs. These are the lawyers who act, not merely talk. These lawyers make the good fight and dedicate their weeks and weekends, often away from their family, to prepare their strategies and game plans. These are the lawyers who make their arguments to real juries, not captive CLE audiences.

What follows is my personal list of those lawyers who made a mark in 2007 for their dedication, effort, and sacrifice. Like 'em or not, they are the Rambos of our flock, in no particular order:

TRIAL DOGS 2007

LEONARD MARTINEZ Nobody can question the sacrifice, dedication, and endurance of Leonard Martinez. Leonard represented over a dozen defendants in trials this year involving Murder, Capital Murder, Injury to a Child, Aggravated Assault, and many others. His pure sacrifice and emotion is a lesson for us all. We should all salute his drive.

TOM WEBER Tom Weber is the toughest criminal defense lawyer in Travis County. Who of us would have reacted in the cool, collected manner after being struck by a client in the middle of trial? This year, with well over a dozen serious Felony trials under his belt, including Sexual Assault, Murder, Burglaries, with some notable not guilty verdicts no less, Tom is the ultimate low-key, soft spoken, results oriented Trial Dog. We owe him our admiration.

RUSS HUNT No lawyer spreads his experience over such a large swath of Central Texas like Russ Hunt. With trials in McClennan, Williamson, and Travis Counties, plus Federal Court, Russ handled accused Murderers and other assorted defendants in 2007. This included a recent hung jury on a Capital Murder case. Russ has dozens upon dozens of trials under his belt, and 2008 is looking like another active year. Touche to another savvy trial dog.

RAY ESPERSEN Year after year Ray handles one of the most diverse and extensive case loads in the criminal justice building. This year, Ray handled well over a dozen trials. In one notable case, his client was acquitted in an Aggravated Sexual Assault of a Child case. His case load includes various sexual and violent crimes. As funny as you may think Ray is, he doesn't hesitate to tee it up.

CARLOS BARRERA With a slower year than in the past, Carlos still managed about eight Felony jury trials this year, between Travis and Williamson Counties. Carlos, being on the top court-appointed lists in each county, managed to represent serious Felony cases in both counties with the drive and organization most attorneys can only hope to experience. I take my hat off to him.

HONORABLE MENTION

ADAM REPOSA Whether or not you like his pink shirts or fancy shoes, one thing is for sure: Adam Reposa is not afraid to go to trial. With over a dozen Misdemeanor trials and several not guilty verdicts, Adam is one of those with a unique style, approach, and execution. Whether they work or not is another story. In my opinion, his latest stunt in County Court #6 was a travesty. Love him or hate him, he's not a trial dog anymore.

BILL HINES Nobody in the last 3-5 years has handled as many controversial or factually hopeless cases as Bill. With cases involving novel issues as DWI Murder or sex cases with terrible facts, Bill has pursued these cases with vigor. While 2007 was a break in the action as far as the quantity, he deserves our recognition for his continued dedication and innovation.

THE ELITE

Just because you didn't have the numerous trials as the Trial Dogs, it doesn't mean you are not one of the talented trial lawyers of our county. My list below represents some of the most respected, most notorious, and well-established trial lawyers in Travis and Williamson Counties.

Jim Sawyer
Steve Brittain
Alan Williams
Gerry Morris
Chris Gunter
Joe Turner
Roy Minton
Bob Phillips
David Sheppard

I'm sure I left some folks off the list that deserve to be on it. Please make some comments if you think I'm wrong or you would add somebody. On to 2008!

TRIALS: That's not the man!

2007-10-07T19:49:00.000-07:00

On September 27th, my client, Gregory Wayne Steen, was found not guilty in the 299th District Court.

Steen was charged as a habitual criminal (25-life) with Aggravated Robbery of a Disabled Person. It was alleged that in April of this year, the victim stepped off a bus in East Austin and was accosted by a black male with shoulder length curly hair, wearing a white T-shirt and blue jeans. The assailant ripped a backpack off her back and took off. The backpack contained a stun gun, address book, and other personal papers.

Some 15 minutes later, Steen was seen running out of an abandoned house away from the police wearing a tan checkered shirt and green pants. He was wearing a beige colored muscle shirt underneath his shirt (I think it was once white). The police apprehended Steen after he hid under a house, and the victim identified him on the spot, despite the descrepancies in the description.

In trial, the police testified that while the victim told them the person ran towards a particular establishment down the street, the police never went inside. The backpack and items were never recovered in the house Steen ran from either. Besides running away from them and avoiding detention, they had no other reason to stop him. However, after a few moments, the victim did ID Steen again in the courtroom as the man who attacked her. For a fleeting moment, we thought she might ID Skip Davis sitting next to me.

On cross, the victim admitted the T-shirt of the assailant had regular sleeves, the assailant had no facial hair (Steen had plenty after waiting for trial), and reaffirmed the original description. When I decided to challenge the notion of shoulder-length curly hair, I asked the State for the booking photo. The booking photo had Steen wearing the clothes just admitted into evidence. Before I could inquire very specifically into the hair and maybe thinking I was trying to trick her, the victim blurted out "That's not him! That's not the man who attacked me!" Needless to say, after the state stipulated to the authenticity of the booking photo, I rested. My closing was less than 10 minutes. The verdict was back in 45 minutes.

What would I have done if she said "That's the man! That's the man!" I don't know. Or, what if he was convicted and I had never put an expert on eyewitness identification, I don't know either. But I learned one thing all over again. No matter how hard you prepare, you can never anticipate many moments like that.

Steen is the same person acquitted of Capital Murder 10 years ago and was shot by police some years before that. What a life.

BEHAVIOR: Do YOU need a Psychological?

2007-07-05T19:08:00.000-07:00

There is a book on the bookstore shelves entitled "The Lucifer Effect: Understanding How Good People Turn Evil". This book documents several experiments of human beings in different situations and while appearing to be normal and/or typical people, are nonetheless prone to nasty and sometimes sadistic behavior given a particular situation. For example, the book documents the notorious behavior of 50 male students in a 1971 Stanford University experiment where 25 were randomly selected to be guards and the others prisoners. With what began as a two week experiment ended in a week because of the sadistic behavior of the "guards" and the breaking of some of the "prisoners". We see current verification of this theory more recently in the Abu Ghraib prison controversy.

Does this theory apply to our Travis County Criminal Justice system? Maybe. But whatever the effects of this theory on our everyday existence in the Blackwell-Thurman Justice Center, I doubt they will be as noticeable as a pile of naked Iraqi prisoners. But consider this: Everyday in our courthouse, felony probationers are subjected to an extensive pre-sentence investigation where references are interviewed, mental health is examined, substance abuse factors are considered, family and employment history scrutinized, and a host of other factors that attempt to predict the success of a term of probation. Why is it then that no comparable tool exist to predict the success or failure of the key players who actually implement the system and hold most of the cards?

Let's take the prosecution. It is not uncommon for a new Assistant County Attorney candidate to arrive fresh out of law school or from another area of law. These folks usually take part in the standard interview process, have references checked, and proceed to be thrust into intake and the right of passage to the trial court. Is that enough? Shouldn't a closer examination of their pyschological makeup be warranted? Are we to trust the future of people's lives to someone who may have the same underlying issues as the people they judge? Worst yet, is it helpful to have a prosecutor with such built-in hostility that their personal relief is gained by taking it out on the accused? What if their hostility is a bit more personal and is directed towards the defense attorney? I do remember a prosecutor not too long ago that prosecuted family violence cases while being featured in the Metro Section as a sexual assault victim. It's hard to believe her experiences did not taint her judgment. Therefore, I propose this: I believe that all incoming and new prosecutors (less than two years is new) receive a psychological evaluation. This would not be the cursory competency exam, but a full-blown examination of all of the axis' that would somewhat predict both good and bad behavior. In this way, maybe some problems can be avoided or remedied. Of course I don't mention the District Attorney's Office because they can detect these problems earlier based on the previous experience of the applicant and another interview.

Defense attorneys don't get completely off the hook. With the occasional incoherent ranting which often pops up on the listserve, is't it a wonder that more of our colleagues aren't enrolled in anger management seminars or stress clinics? How does it affect their practice? Here the solution is not so easy. As private attorneys, we are under no mandate to seek psychological help except voluntarily or as required as part of a disciplinary order (after something has already happened). But what about that defense lawyer that has his own agenda, has a poor relationship with the prosecution (or judge), or, worst yet, doesn't like or care about his clients? Does it really help your clients to antagonize a judge? Are these examples not a subversion of purpose and an undermining of the representation? Is this something psychological that can be detected and predicted ahead of time? I don't know. A limited remedy might be if we passed a psycholocical review prior to being put on a court-appointment list. However, this is unlikely to be implemented and it raises certain legal issues which may be discussed at a later date. Nevertheless, in my opinion, defense attorneys are just as likely to commit bad acts given the particular situation and combination of factors. The acts are a bit more subtle, the effects can be devastating.

Judges to me are least likely to commit bad acts because they are directly accountable to the public. If, for example, they send a crippled old woman to TDC for several years, if this does not match the community norms they invite an opponent and possible defeat. If, on the other hand, they sentence within the community norms, they're job is generally secure (that's assuming the convicted picks the judge for punishment). Other, more subtle acts may be evidentiary rulings, but most defense and prosecution lawyers have a fairly good radar on this and adjust accordingly. And while the lawyers may accuse the judges of being a bit obsessive with their dockets, none of the behavior rises to the level of bad acts created by the circumstances unless it leads the lawyers to commit bad acts themselves.

In sum, the issue revolves around power and how we use it. Yes, the lawyers involved in plea bargaing and trials on both sides usually mean well. But they mean well in different worlds influenced by many different factors and experiences. Some experiences influence the reasoning, approaches, personalities, styles, and perspectives. However, some of these experiences and influences undermine the ethical underpinninings of our system. Is justice achieved? I hope it is. But more importantly, what happens when the accused bears the consequences when it's because of the bad acts of those who should know better?

PRACTICING LAW: A Rose and a Thorn

2007-05-29T21:05:00.001-07:00

14 years ago this month I started practicing law. I received my bar results on a Friday, talked to then Court Administration chief Rod Gustafson on Monday, and was appointed my first client the next day. I had no computer, just a pad and pencil. The judge had a pony-tail and earring. Welcome to practicing law in Austin, Texas.

I realize today how little I really knew about practicing law back then. Today's decisions I make and the advice I give, is truly a compilation of the advice and guidance I've received from all of the helpful, hard-working, collegial colleagues that practice in our courthouse.

One of those colleagues helped me out in those initial days of stress and confusion. He helped me out by giving me a understandable explanation for what a deferred adjudication was and how to explain it to the client. I have used it ever since--14 years. He simply explained it to me as a rose and a thorn: a rose for the benefit of a non-conviction among other things, and the thorn of the ramifications of not following the rules of probation and possibly facing the max.

This example crept into my lexicon of language where I continue to use it to this day. It's a very simple part of my client explanations, but one I'll always use. I wish I'd thanked Thad Son for giving that example when I had the chance.

COURT APPOINTED FEES: Market Rate or Garage Sale?

2007-05-22T19:32:00.000-07:00

The other day, I was faxed a great deal on a State Jail Felony. The person was clearly guilty and I saw no legal issues to contest. I am going to plead her out on the first setting and receive the approved fee. What is that worth. The going rate is $350 per case. Between the letter I sent, visitation with the client, reviewing the offense report, negotiating a bit more (or calling the SHORT Program), and then the plea, I have spent an amount of time that many may call reasonable in relation to the fee.

Is that where the reasonableness ends?

I handle a variety of 3rd and 2nd degree Felonies where there is no indictment for generally 2-4 settings, victims have to be notified, we have to handwrite the offense reports, the bus doesn't come in, taped statements have to be located, lab reports ordered etc., etc., etc. These cases can take anywhere from 2-5 months to resolve, in part, because of delays beyond my control. Of course, that is assuming that the case is resolved with a plea. Now the question-Is THAT reasonable? $350 for THIS plea? When you do the math, assuming 15 hours were expended (that's conservative), its the equivalent wage of some contruction workers.

It gets even more interesting.

First Degree Felonies often involve additional time-consuming factors. The cases often involve multiple victims, much more difficult clients, habitual offenders, more time in handwriting those offense reports, more egregious circumstances, appointments to see pictures, etc., and worse yet, the tremendous amount of time expended before your client accepts a deal the day of trial. These First Degree clients are usually the ones who know the system and will milk the clock any way they can. And of course, the Prosecutor doesn't help when you work ALL WEEKEND on your case, only to have a deal offered the day of trial your client would have accepted months before. Granted, some of our judges will recognize this and add a bonus. But in the end, many of these cases monopolize our time at the expense of our other clients that we are compensated the same.

And consider this: Is a UUMV or POCS trial comparable to a trial of an Aggravated Assault, Murder, or Habitual offender? These latter cases often involve experts, other specialized knowledge, intense investigation involving interviews, and many sleepless nights. Is it reasonable to pay the same trial rate for these cases? And shouldn't we be paid for the differences in preparation and discovery?

I think it is time to propose a more graduated scale of compensation. This is not to say it takes less talent to plea or try a State Jail case versus a First Degree case, but as lawyers we offer our time and expertise to our clients. Should we be paid more when a case involves more expertise and more time? I would hope so.

How about if we paid State Jail Felonies fairly, but increased the 3rd & 2nd Degree cases to a higher rate, and the First Degree cases a bit higher yet. Would that make sense? I know some of my colleagues have dropped off the A list because the cases were simply not worth it in time and compensation. As for trial, its time to recognize the difference in cases and preparation. There's no escaping the fact that some of the serious cases take a toll on the physical and mental health of our colleagues, involve much more expertise, and have greater stakes to the client. Most would agree that these cases deserve more compensation.

Others will conclude that I write this in self interest. I'm not. The lists fluctuate, change, and evolve. A sliding scale may create incentive to hone skills and strive for improvement. I hope so. We're all worth our time.

TRIALS: No Lesser included

2007-04-25T12:07:00.000-07:00

A few weeks ago, I represented Michael Costello in a murder case in the 403rd District Court. The case involved the death of Costello's roommate caused by a crushed larnyx due to blunt force to the throat.

The essence of the defense was that yes, Costello struck the victim, but that the blow was entirely a reaction to the roommate grabbing his shoulder as he was leaving the apartment. What made the defense especially challenging was that Costello did not call 911, the victim lay in the apartment for nearly 24 hours before the police were called, and that Costello gave arguably various versions of the events. The jury perceived him as dangerous given the testimony, in part, of albeit questionable characters, during the course of the guilt and punishment phases.

The jury concluded that Costello was a violent man, prone to abusing the victim and taking the victim's money and medication. However, even some family members of the victim could not recall seeing abusive markings on their son in the weeks leading up to the death. The apartment supervisor didn't recall anything as well. What seemed to sway the jury was testimony from another apartment employee who noticed some markings, and Costello's own admission that on occasion they would have some physical altercations. Additionally, there were some vague memories from people Costello allegedly used to smoke pot with.

Did Michael Costello really intend to cause the death of this victim? I think not. I feel bad for the family of the victim as well as the family of Michael Costello. The collateral damage of this tragedy will never be fully measured. But this case was defended as a manslaughter case, not murder. Unfortunately, the jury didn't see things that way and thought 60 years would give Costello time to think about it.

BLOOD DRAWS: The Sequel

2007-03-27T20:48:00.000-07:00

Ok, Ok, I know. I've advocated for blood draws under a higher standard under certain conditions and stopping there. But who would have thought that shortly thereafter, I would be rear-ended by an apparent intoxicated driver on Route 79 in Round Rock coming home from my office today.

I was driving westbound on 79. As I slowed for the light on Sunrise, I glanced in my rear-view mirror to see a van going a bit too fast to stop. As I eased up on the brake to absorb the impact, the van struck me. I departed from my vehicle to see a somewhat disoriented person behind the wheel. Motioning to a nearby parking lot, he followed me into the lot and proceeded to ramble some incoherent blather. Interestingly, a women in a white van followed us in, motioned me over and proceeded to inform me she was on the phone with the police about his erratic driving prior to the accident.

After I exchanged insurance info with him (with the help of the police), I left. As I was leaving, the police were beginning the SFST's. I didn't stick around. The policeman called me later and informed me that the driver was arrested for DWI 2nd. I was told he admitted to 3 beers and an undisclosed amount of Xanax.

So, is this an appropriate scenario for a blood draw? Under the current APD policy, it is if there is a total refusal. Is that appropriate--collision, prior DWI, and total refusal (I don't know if he refused on this, but let's say he did)? I feel the public's pain (literally). I can see no powerful legal argument to counter the public opinion to get tougher on drivers like these, even if we suggest a higher standard for warrants.

If we as lawyers are going to try to limit the use of blood draws, we had better find an argument that is going to jolt the public to action at least as hard as I was jolted out of my seat today. To this end it will be no small task.

Am I still advocating the policy in my previous post? Hey, I'll get back to you on that.

BLOOD TESTS: Sticking it to us all.

2007-03-15T21:26:00.000-07:00

[Note: This has been modified since the original post]

Everytime I go to the doctor, I dread one thing: getting stuck with that pesky needle to find out if I have to cut down on those steaks and fries once again because of high cholesterol. Aside from the rubber-gloved finger checking me out, it's the most intrusive aspect of staying healthy. I pay for it, I consent to it, yet there are strict disclosure laws and people get sued for telling some unauthorized person about it.

Why then, are the police seeking to stick needles in more and more citizens based on refusing a breath test and then making the disclosure to various agencies of law enforcement and the state?

I might understand the public's concern if a collision occurred, people were hurt, and the implied possibility of losing evidence under strict circumstances. But why would anybody ever think that refusing to blow into an intoxilyser (in and of itself a mystery of technology) even with other reasons would ever justify the ultimate intrusion based only on probable cause? Consider how many of our cases are dismissed or reduced because of the lack of valid claims with probable cause based on the intoxilyser results and SFST's. Why on earth would a judge sanction this practice with nothing more than the same standard as a regular search warrant. Is searching your fluids the same as searching your garage? Hardly.

Consider this modest solution: A higher standard for blood test warrants. For example, one of the standards of proof in our civil system is the clear and convincing evidence standard. Utilized in family law cases involving child termination and parental rights, this standard resides somewhere between preponderance (more likely than not) and the much higher reasonable doubt standard (if preponderance is 51%, then clear & convincing might be anywhere from 60-75% proof).

What types of observations and circumstances would justify a clear & convincing finding? How about "refusal plus". If a person refuses a breath test, there should at least be some significant factors coupled with this higher standard indicating a need to wake a judge to sign a warrant. There must be observable, compelling, and incriminating observations present to reach this higher standard. While past history may be a less important factor, the present state of the accused should be given the greater weight and any intrusion should be based on firm reasoning unique to the detention. There may be numerous factors, but you get the idea.

There is nothing in our culture that justifies a stab in the arm because you make a decision to refuse a test. With nothing more than that, judges need to stand between the public and the needle. Even with additional factors, a higher standard is in order. Of course, a presumption in favor of protecting the public's civil liberties would be nice as well.

TRIALS: Overreaching by a long shot.

2007-02-23T19:39:00.000-08:00

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?

2007-02-17T20:34:00.000-08:00

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?

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PLEADING GUILTY: Sometimes it pays to balk

2007-02-02T21:45:00.000-08:00

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.

PUNISHMENT: Where do they get that number from?

2007-01-30T14:03:00.000-08:00

The Colton Pitonyak trial has passed. The jury assessed 55 years for his actions. While the circumstances of that trial will never disappear for the family and friends of the victim, is the result that which one would call "justice"? I have found there is no easy answer for why a number seems appropriate.

A few years ago, a jury assessed a 15 year sentence on my poor black male client for shooting one of his best friends (another black male) to death. They convicted him of murder, yet gave him a sentence in the manslaughter range.

Recently, a jury assessed a 30 year sentence on my middle class white female client for shooting her husband a total of 4 times. The jury concluded that she shot him twice and then waited for up to a minute to shoot him two more times. Why the difference in punishment for these same crimes?

Should the status of the victim make a difference? Should the gender of the convicted impact the punishment? Is class and race a factor to be considered? Should it matter whether the deceased was a good person or a bastard? Consider this scenario: Should an honor student who beats a homeless person to death any less culpable than the homeless person who beats an honor student to death? Often the homeless person would receive a stiffer sentence based on extensive testimony on behalf of the more affluent victim. But, is the act of the beating and the intent involved any different between the perpetrators? Obviously not, but does it make sense that one should receive more time than the other with all other factors being equal except for their position in life?

Maybe juries are more methodical and deep thinking than I think. Do juries take into consideration the convicted one's age, parole eligibility, the crowded state of our prisons, or the cost of incarceration? Maybe, but should they? Lawyers strive to distinguish between the reckless, accidental, or premeditated killing because the state of mind is different in each of these. However, why do crimes where the state of mind is identical and the resulting crime equally heinous, extract vastly different penalties from court to court or county to county?

Consider this possible starting point: Sentencing guidelines for Murder. How about 5 years for formation of the intent; 10-25 years for the method (some may argue that killing a victim by torturious means deserves more time and that some distinctions should be made i.e. the number of shots or a multiple stabbing); 10 years for each dependent of the victim; 5 years for each immediate family member of the deceased; 10 years if another felony was proven such as Robbery or Sexual Assault; 15 years for any of the other Capital factors in today's Penal Code (killing of an Officer, elderly, child, etc.); and/or 0-15 years for actions after the crime (calling 911 versus flight). Some may argue for some mitigating factors such as a reduction of the sentence for certain mental illnesses or genetic defects. Of course, there can be more or less factors. There could be a cap on the years or merely call it a life sentence after a certain point. Probation would still be an option in some special circumstances. The numbers are debatable. I think you get the idea.

And what about the effect on plea bargaining. Wouldn't it be easier for a client to assess the risk of going to trial if he knew a range other than 5-99 like say, 10-35, or 30-55? Prosecutors would be able to offer a resolution in the same manner as they do now under the habitual statute, somewhat less than the potential sentence but fair.

Would Pitonyak have received more or less time under a scheme like this? We'll never know. Would my past clients have received more time under this scheme? Gosh, I hope not. Putting an exact number on the cost of human life takes away from the jury the very discretion that lawyers like myself fight for in the name of our clients. We argue that some need a second chance or are "salvageable". But don't they do that already in the Worker's Compensation area, putting a value on a death on the job or a value for a lost finger?

Of course none of this discussion would affect the ability to vigorously defend our clients in the guilt/innocence stage of the trial and a resulting not guilty verdict. But under a punishment sentencing scheme, at least "justice" will have a notion of some consistency and not merely depend in what county you are prosecuted or what side of the tracks you happen to reside.

WHAT TO EXPECT

2007-01-29T20:46:00.001-08:00

Welcome to what I hope will become a regular sharing of my experiences in what has become an exciting, stressful, fulfilling, disappointing, emotional, and honorable profession.

I practice Criminal Law Defense in Travis and Williamson Counties in Texas. These counties encompass Austin and Georgetown, Texas. I am a solo practitioner with only the help of my part-time secretary, Courtney. My office is located in Round Rock, Texas, between Austin and Georgetown.

I practice exclusively Criminal Law Defense. I am currently on the judge-approved "A" appointment lists in both counties. What that means is that the judges in both counties have the confidence in my abilities to have the most serious crimes assigned to me from a rotating list of attorneys for those who can't afford a lawyer. I am not a "Public Defender" as that term is often used. However, by virtue of being on these lists, I am court-appointed and compensated by the county. These cases include murder, sexual assault, large-quantity drug cases, and other first-degree offenses.

My current caseload includes 3 murder cases, 4 sexual assault cases, and a variety of drug and burglary cases. I am also hired on a variety of cases as well, receiving cases through referrals and various advertising. I also practice Juvenile Law in both counties. I am on the "A" list in Juvenile appointments in Williamson County.

So why would I do such a thing for a living? That will be the constant purpose of this blog. This blog will educate you on realities of our justice system. Some of the realities will enrage you, make you laugh, make you cry, and distinguish between reality and the misperceptions created by shows like Law and Order, and CSI.

So sit back and gain some insight. I will never reveal privileged information or compromise the rights of my clients. But I will educate you to the challenges which face every practioner in this area. I hope you will visit often.