http://www.statesman.com/blogs/content/shared-gen/blogs/austin/courts/entries/2012/02/01/former_austin_officer_acquitte.html

I had three “Not Guilty” verdicts:

• 1) I successfully defended a fellow criminal defense lawyer who kicked his girlfriend in the face and shattered her cheekbone by arguing he did so in self-defense.
• 2) I successfully defended a woman accused of slapping and choking a neighbor in front of eyewitnesses by aggressively cross-examining those witnesses and getting them to tell stories that didn’t match.
• 3) I successfully defended a man accused of sexual assault by a female acquaintance, again by way of a solid and persistent cross-examination. I cornered her into admitting she’d had consensual sex with my client on previous occasions and that she’d crawled back into bed with him (both of them naked) after she had supposedly just “gotten away from him” and said “no.”

I had two felony trials that resulted in guilty verdicts but yielded substantially better punishment than the district attorney offered before trial. One case involved a client accused of shooting at his girlfriend and her friends, and the other involved a young man who drove drunk and had a single car accident that ejected his friend from the car and almost killed him.

I tried two misdemeanor DWI cases both involving “good videos” but really high breath tests. In both cases, I was able to negotiate a post-verdict agreement on punishment that was the same or similar to that offered before trial, effectively giving my clients a “free shot” at an acquittal.

Finally, I had two felony trials involving clients who rejected plea offers of 4 and 10 years and who ended up with 7 and 12 years, respectively. Which probably isn’t too bad since they were both facing the potential of life in prison.

Happy New Year!

Starting in April, I came out swinging in 3 nasty felony jury trials…

In the first trial, I represented a fellow criminal defense lawyer accused of aggravated assault for choking his girlfriend and kicking her in the face, breaking her cheekbone. It’s a different ballgame when the DA prosecutes a lawyer, but it’s even worse when they have a chance to prosecute a lawyer who opposes them in court on a daily basis. This was one of the most personally hostile cases, and most bizarre trials, I have ever taken part in. We made our case for self-defense, and the jury found my client NOT GUILTY on all counts.

In the second trial, another one of my clients was accused of shooting at a car full of women and children at an apartment complex during a domestic dispute with his girlfriend–(he was accused of shooting at the girlfriend, too, as she got out of the car and walked up a flight of stairs. Then he fled, forced his way into an apartment in a different complex, and engaged police in a stand-off until he finally surrendered peacefully.

In a nutshell, this is how the whole thing played out…

Prosecutor: “If your guy pleads to 15 years for shooting at the girlfriend, we’ll dismiss the rest of the charges for shooting at the car.”

Bristol: “My client’s not as bad a guy as he seems on paper. Besides, he’s already serving 8 years flat (no parole) in the federal system just for possessing the gun. Isn’t that enough?”

Prosecutor: “He shot at women and children. I think 15 more years is a gift.”"

Bristol: “Let’s see what a jury thinks.”

After trial, the jury found my client guilty and sentenced him to six-and-a-half years and a $6000 fine, far less than the 15 years the DA wanted.

Juror: (to Bristol) “Regardless of how dangerous your client was that day, I could just tell he is not an evil person at heart.”

My last client stood trial for attempted burglary of a habitation with the intent to commit sexual assault. He was accused of jumping the fence of a local battered women’s shelter and attempting to force his way into two rooms, all while he was masturbating. If he pled guilty, the DA would agree to 4 years in prison. We opted to let a jury decide whether he was guilty or not. The testimony of the women at trial did not hold up well under my cross-examination, and the jury ended up returning a verdict of guilty on a lesser charge. And while the judge sentenced my client to 7 years in prison, my client will NOT have to register as a sex offender for the rest of his life, thanks to the jury’s verdict.

Bear in mind that every case is different, and just because I was able to get these results in these cases, it does not mean I can do the same in other cases.

But at least you have a sense of what I do when I’m not blogging.

This is a common question for potential clients to ask. Because our criminal justice system is an adversarial one, the question seems natural. After all, when two sports teams compete, there’s usually a clear winner and a clear loser. Why should lawyers butting heads in a courtroom be any different?

My most recent jury trial illustrates why it’s difficult for attorneys to reduce their trial outcomes to a simple win-loss record. Take a look at the video evidence…

This 90-second brawl left my client facing 6 felony charges: 2 counts of Assault on a Public Servant, 2 counts of Taking or Attempting to Take a Weapon from a Peace Officer, Possession of a Controlled Substance (cocaine), and Tampering with Physical Evidence (for trying to toss the cocaine on top of the convenience store).

The District Attorney’s offer to settle the case was for my client to plead guilty to the 2 counts of Assault on a Public Servant and take a 5-year prison sentence in exchange for a dismissal of the remaining charges. We opted to let a jury decide. There wasn’t anything I could do about the cocaine in my client’s pocket, so he pled guilty to that in front of the jury at the outset of the trial. This move sent a signal to the jurors that they could trust me to tell them the truth about the case, even if the truth was painful. Then the prosecutors told the jury that my client was detained in front of the convenience store for the heinous offense of…jaywalking.

On cross-examination, I was able to get the officers to concede that the way my client crossed the street didn’t really meet the legal definition of jaywalking. The officers also had trouble remembering what happened to the first Taser after they shot my client with it.

The end result was that the jury found my client guilty of misdemeanor Assault and the Possession of a Controlled Substance, just like I asked them to. The jury also found him NOT GUILTY of the remaining charges, just like I asked them to. And my client and his family were thrilled with the outcome.

Doesn’t that sound like a “win” to you?

As of last year, out of all the 80,000 or so attorneys (that’s ALL lawyers, not just criminal) in the State of Texas, only 841 were Board Certified in Criminal Law. That’s about one percent, and a large number of that one percent are prosecutors now or have spent some portion of their careers prosecuting, sending people to jail and prison.

That’s no surprise. Prosecutors get to spend plenty of time in the courtroom. But it’s difficult to garner the trial and appellate experience required to even take the exam if you’ve spent your entire career on the side of defending the accused, as I have…unless you’re as tenacious as I am in the defense of my clients.

Non-board-certified lawyers, when asked, will tell you there’s no difference beyond “taking a test” and “doing some extra continuing education.” Really? If it’s so easy, why haven’t they gotten certified? Perhaps they lack the experience to sit for the exam or the knowledge to pass it. But even worse, maybe those lawyers don’t care enough–about themselves, their careers, the criminal law, or their clients to take the time to do what it takes to get certified.

For me, board certification reflects a deep and ongoing commitment to the study and practice of criminal law. If prosecutors are doing what it takes to get certified, why would you even think about coming to court with a defense lawyer who hasn’t?

This article from Texas Lawyer writer, Miriam Rozen, reinforces the point that the life you’re exposing to all your “friends” can and will be used against you in a court of law. Sadly, the article points out that some lawyers, who should know better, can’t seem to avoid getting caught up in the mix.

One of the first things I do in cases where there is a person claiming to be a “victim” of a crime is a little light cyberstalking. It is amazing what you can find out about a person online, but nothing is better than having a victim or hostile witness in a criminal trial confess the entirety of their sordid life on a social media site.

Case in point: A couple of years ago, when MySpace was the hottest thing, a client came to me charged with Aggravated Assault with a Deadly Weapon. A bar fight broke out involving several female acquaintances of the members of a local collegiate athletic team.

During the melee, one of the ladies sustained a deep cut which she attributed to my client smashing a beer bottle on the table and using the jagged remains to slash her. Using information we gleaned from her MySpace page, we were able to show that the “victim” (who listed her employment as “Grade A Bitch” and who repeatedly referred to herself as a “thug”) in fact had a considerable axe to grind against my client.

This, in combination with certain physical evidence, supported our position that the “victim” cut herself on broken glass while fighting on the floor.

The difference? As originally charged, my client faced 2-20 years in prison for aggravated assault. Thanks to MySpace, she paid a small fine on a ticket for Disorderly Conduct-Fighting in Public.

The remainder of this father’s life will be lived as an apology to his son. What is gained by prosecuting him? Will branding this man a criminal make you a more conscientious parent? The Williamson County District Attorney seems to think so.

He’s apparently dissatisfied with the fact that the Austin Police Department took time to investigate the case before referring it for prosecution. He thinks getting Mr. Hu charged immediately would “send a message” about child safety.

Do we really need parenting tips from the Wilco DA? And is it fair that his grand message comes at the price of imperiling this poor father’s freedom?

At some point every one of us has been just as culpable as Mr. Hu. Parenting is no easy task, and the risk of harm is everywhere. A baby gate left unlatched at the top of the stairs while hauling down a load of laundry, an electric socket without an outlet cap, visiting the un-baby-proofed home of a friend or relative–all it takes is a split second for the worst to happen.

Our law says the job of Texas prosecutors is to seek justice, not convictions. Justice in this case should be tempered with mercy, and this father should be left to grieve in peace.

It is yet another example of over-criminalization of our laws and over-federalization of our criminal jurisprudence. Granted, Exxon has a bad environmental track record and makes an easy target in light of the Valdez spill. But more shocking is the side note that a power company was shaken down by the feds for birds killed on its power lines. How in the world is an electric company supposed to keep birds from sitting on its power lines?!

If I were the defense lawyer for PacifiCorp, I’d have considered cutting power to all govermental customers during the plea negotiations. Maybe toss in a few rolling blackouts to rile up the electorate while we’re at it. But I digress…

To be fair, the MTBA (the law at issue) should require some culpable mental state. In these cases, there is no evidence that either company did anything wrong. Nor is there evidence that either company intended any harm to the birds. Strangely, the law doesn’t require any real wrongdoing. You are strictly liable for the death of a migratory bird.

Strict liability has no place in criminal law. As this law is written, even the most zealous animal lover could be prosecuted for a federal crime should the family pet happen to drag home a migratory bird.

It was just about the worst kind of DWI: the client wrecked into a pole and blew over twice the legal limit. The airbags had deployed, so I figured I might be able to argue the high breath score was from particulate matter inhaled by my client during the collision.

“I heard you got a 20-minute Not Guilty verdict from a jury on a DWI with a .17 blood test,” the client said. “Yes,” I replied, “but every case is different.”

Indeed, the cases are different. Before, I had a client who looked perfect on the video, and now I had a client who, according to the police, failed the field sobriety tests miserably. And there was no car accident in the other case. What to do?

I filed a motion to suppress the breath test and the field sobriety tests and set it for a hearing. At best, I figured that the hearing would be a good warm-up for trial: a chance to see how the cops acted on the witness stand. Then the unexpected occurred.

The first officer on the scene testified that he didn’t notice any signs of intoxication in my client. He said my client just seemed shaken up from the accident. The second officer, the one who said my client failed his field tests so badly, well, he fell apart under my cross-examination.

Did my client appear obviously intoxicated at first glance? No. Did the officer see any signs of intoxication before administering the field tests? No. Had he talked to EMS about my client’s possible injuries? No. Did it ever occur to him that my client might be injured and not drunk? No. And so it went–until the judge granted my motion to suppress: no field tests, no breath tests. The prosecution now has no evidence to use at trial, and the case will have to be dismissed.

The lesson? Every case is different. This “bad DWI” was different from most other collision/high breath test cases I’ve handled. The difference came from the witness stand, and it would have never been discovered had my client pled out and denied me permission to be aggressive.

First, check your conditions of probation. Most Texas counties require that you report your arrest to your probation officer within 48-72 hours. Consuming alcohol and getting arrested are two violations. Don’t add a third by not picking up the phone. If your conditions require it, call your P.O., report your arrest, but DO NOT admit drinking or otherwise discuss the details of your case with your P.O.

Second, understand that a motion to revoke your probation and a warrant for your arrest are inevtiable, at least initially. Most adult probation departments in Texas automatically move to revoke for a new arrest. However, unless you are on felony probation, you are likely entitled to a bond on the motion to revoke. Your lawyer can help you navigate the bonding process.

Finally, clean up any outstanding “technical” violations. If you are behind on supervision fees, fines or court costs, pay them up. If you lack community service hours, get caught up. Finish any classes or counseling that you can.

These simple steps will have you and your lawyer well-positioned to argue for reinstatement on probation (or at least some intermediate sanction short of revocation), particularly if the new DWI case is weak.