Many thanks to Keith Lauerman for naming me WARRIOR OF THE MONTH on his blog.

Per Keith this was a unanimous decision which is heartwarming for me.  Although I think the committee consists of Keith.

At any rate, I do handle a significant number of very serious cases involving allegations of Capital Murder, Murder, Aggravated Robbery and Aggravated Assault.  

But I know that every client's case is as important to that client as the most serious possible case and I strive to obtain the best possible outcome for each and  every client I represent.

Thanks again to Keith and I will keep battling for my clients every day,

Russ

A word of praise for the Williamson County Attorney's office in their implementation of an email discovery program.  Essentially, it enables me to skip one step in my usual process so that I get my discovery more quickly than I normally would.

I handle a significant number of misdemeanor cases in Williamson county.  The normal discovery procedure in Wilco has always been convenient for me–I walk the two blocks to the County Attorney's office to pick up my paper copies of discovery.   Easy.

Then, when I return to the office either I or Leslie always scan the offense report into the computer system so that I will have an electronic copy.  I also use a document synchronization program called SugarSync which mirrors the contents of my documents folders in various locations–at the office, at the home office, on the laptops, on my smartphone.  In this way the documents are immediately available to me wherever I am.   Even if I am in an out of town courtroom without my laptop computer, I can retrieve the contents of my documents folders and read them on my smartphone screen.

The new process is fast and convenient for the State and the defense.  As before, I fill out a discovery request form, but now a few days later the County Attorney's office will send me a copy of the offense report directly to my email box.  This enables me to make fast and thorough case evaluation.  The process will also certainly save the County the significant expense of making a huge volume of paper copies which then have to be physically distributed to their intended recipients which itself takes valuable time away from the support staff in the prosecutor's office.

This process will benefit out-of-town lawyers even more because they will not have to make the trip to Georgetown to get their discovery–it will come to them. 

A side benefit to the county if they decide to use it is that they will be able to greatly cut down on physical storage needs for closed files.  As the County Attorney's office is a government law office which handles huge volumes of paper, a move to reduce paper in this environment can bring significant savings in paper, time and long-term storage costs.

The DPS has finally released details of their driver's license surcharge amnesty program.  

It is imperative that folks follow up immediately to ensure that they can benefit from the program since all payments must be made by April 17th, 2011.

Per the DPS, "the goal of the Amnesty period is to bring drivers into compliance with the surcharge law, and allow them to become licensed and insured drivers."

Here are some quick links and details to help people get on board:

The program will be offered from January 17 to April 17, 2011, and applies to surcharges currently in default that were assessed  between September 30, 2004 and December 31, 2008. 

Surcharges will be reduced to 10% of the assessed amount up to a maximum of $250.00.

The application is available online HERE or by telephone at 1 (877) 207-3170.

An anonymous Travis county assistant DA has a blog called "DA Confidential" that commonly has insightful commentary from a prosecutor's perspective.  The latest posting is a hilarious video made with "Xtranormal", a tool that creates animated web videos with computer-generated voices speaking whatever script the author has created.

The video explores themes seen too often at the courthouse.  Every criminal defender would be well advised to watch the short video and ask himself whether he has ever fallen victim to the common pitfalls depicted in the animation:

• Defense lawyer's woeful unfamiliarity with the police report's version of the case: despite the fact that prosecutor has a caseload of hundreds of cases, prosecutor is far more familiar with the provable facts in the offense report;
• Defense lawyer's too-obviously "flexible" version of the facts: in response to being called on each of his factual misstatements, the defense lawyer apologizes for his faulty memory then launches into another equally improbable version of the facts which is equally disprovable;
• Defense lawyer's lack of any reasonable suggestion for disposition of the case: begins with request for dismissal and has no response to prosecutor's obvious, generous offer of probated sentence.

One of the best advantage defense attorneys should have is an intimate familiarity with the facts of their cases.  Defense attorneys have been hired and paid good money to handle a matter for their clients.  Even if she is court-appointed, a defender's job is to speak for her client.  Given the built-in advantage to the defender (in open-file discovery jurisdictions) of knowing both the Government's and the Defendant's versions of the facts, a defender must begin her representation by attempting to fully flesh out the case against her client.  It is impossible to defend against the unknown accusation.

The criminal defender's job is to humanize and individualize the client's case.  Prosecutors have caseloads in the hundreds and have to learn to quickly identify and categorize fact patterns, case weaknesses and defense arguments.  Most defenders have caseloads in the dozens; even the busiest defender should have far fewer cases than the least-busy prosecutor.  Without a close familiarity with the operative facts, the defender is at a huge disadvantage in representing her client.

Another advantage easily built but once lost, lost forever is the defender's reputation as a truth-teller.  I certainly know well-established and successful defense lawyers (and prosecutors) who have reputations for being liars and cheaters.  There are distinct disadvantages to having such a reputation: limitations on access to discovery, prosecutors' never taking the lawyer's word for basic factual representations, general suspicion and distrust in interpersonal dealings and negotiations.  These are the most obvious practical reasons for a criminal defender to preserve his reputation as a truth-teller, but there are a myriad of other moral and less tangible reasons as well.

It is important to remember that a criminal defense lawyer always has the option not to tell the prosecutor anything about the client's professed version of the facts.  It is almost always advisable to test that version of the facts against known, quantifiable facts like independent witness statements, hard forensic evidence, and other corroborating facts, prior to pitching the client's version of the facts to the prosecutor.  If a defender tries to sell an obviously false story to the prosecutor, the prosecutor will think either that she is a liar, that the client is lying to her, or that she is so lazy that she didn't bother to check the DA's file before speaking about the facts of the case.

Every lawyer should have an objective in mind when negotiating their cases with a prosecutor.  I have heard prosecutors complain about certain defense lawyers that their only suggested outcome in every case they handle is to ask over and over for dismissal.  Let's face it–90%+ of cases are disposed with plea bargains of some type, and most dismissals result from evidentiary problems, police overreaching or misconduct, or extremely exemplary behavior on the part of the client.  If the evidence clearly establishes the client's guilt, and there is no other reason for dismissal, it's going to be a hard sell and the defense lawyer will seem like he is not a good-faith negotiator if his only proposal is dismissal.  Prosecutors are often open to creative alternatives, but the defender is tasked with being creative in seeking the best possible resolution of a difficult situation for the client–that's the central challenge for the good criminal defender.

The CCA today handed down its opinion on a capital murder punishment retrial that Alex Calhoun and I tried 2 years ago in Waco.  Click here for link to opinion.

In 2009, TCDLA published an article of mine dealing with inventory searches that I wrote after the Supreme Court's decision in Arizona v. Gant, 129 S.Ct. 1710 (2009). 

In Gant, the Supreme Court said that police could no longer automatically search a vehicle whenever they had arrested an occupant of that vehicle. The theory that had been used to justify these blanket searches was that even if the arrestee was arrested and secured in the police car, that person could somehow magically escape to their own car and find a weapon to use against the police.  The Gant court recognized that despite the protestations of police, offier safety is really not compromised by disallowing these "searches incident to arrest," and that there was really no valid justification for the blanket rule.

Some commentators wrote that it was unclear how much the Gant ruling would actuallly change police behavior in a way that would help criminal defendants, for two reasons. First, inventory searches are still permitted providing the police follow the proper protocols.  Second, because Gant contains an internal exception: when it is reasonable to believe that evidence related to the offense for which the arrest was made might be found in the vehicle." 

This exception only makes sense–essentially, if the cops have probable cause to arrest, that same probable cause extends to a reasonable belief that there might be evidence relating to the arrest in the arrestee's immediate vicinity.  So, if a person is being arrested for failing to wear a seat belt, the police have no justification for searching the vehicle.  But if a person is being arrested for some other offense, the police might be able to justify a search to look for evidence of that crime. 

The Eastland court of appeals recently wrote on this issue in an amusing case styled Daves v. State.  Thanks to B.W. Barnett's Liberty and Justice for Y'all blog for finding this case.  In Daves, the driver was pulled over for running a stop sign, and due to the odor of alcohol on his breath the officer asked him to perform sobriety tests.  Then the hilarity ensued:

During the ensuing field sobriety tests, the driver, Cody Large, decided to prove to Officer Welch that he was not intoxicated, and he devised his own field sobriety test: he tried to walk on his hands. As Large was attempting to perform that task, various items began to fall from his pockets. One of those items was a purple marihuana pipe.

The Eastland court agreed with the trial court that the paraphernalia possession provided sufficient probable cause to search the vehicle including passenger's purse which contained various controlled substances.  I would argue that this is a pretty thin basis for PC to search the whole vehicle, but PC itself is a pretty weak standard.

Fortunately, thus far, the Gant exception does not seem to be an exception that has swallowed the rule. 

This week I tried a non-death capital murder charge in Falls county .  My client was a prison inmate serving a sentence for murder who had the misfortune of causing the death of her [purportedly shy, retiring, mentally ill] cellmate.  The state had waived the death penalty so the only possible sentence was life without parole, to be stacked on the 40-year sentence she is already serving.

So I was particularly interested in this story in today's New York Times which discusses the high societal cost of murders.  Columnist Charles Blow relates that according to researchers at Iowa State University, it is a whopping $17.25 million for each murder that occurs in this country.

The most interesting tidbit from my perspective is that each murder results in indirect costs like making folks more afraid of crime in general which leads to increased security spending, prison building, and a generalized greater willingness to "pay to prevent future violence."  I had never thought about quantifying these indirect costs to society of violent crime.

In these times of economic hardhsip, we need mature leaders who recognize that the best deterrent to future violent crime is to invest in the education of our children now.  Blow writes:

By their estimates, more than 18,000 homicides that the Centers for Disease Control and Prevention recorded in 2007 alone will cost us roughly $300 billion. That’s about as much as we’ve spent over nine years fighting the war in Afghanistan. That’s more than the 2010 federal budget for the Departments of Education, Justice, Housing and Urban Development, Health and Human Services, Labor and Homeland Security combined. Does anyone else see a problem here?

I have great concern that in the coming $18 billion biennial budget shortfall coming next year to Texas, lawmakers will do what they too often do in times of budget difficulty–cut education budgets.  Isn't the only truly prudent approach to invest in our children's education?  If we continue to over-incarcerate and under-educate, our competitive decline is inevitable.

All Texans should contact their legislators and express the importance of improving our educational system.  Our children are truly our future.

*UPDATE*  Interesting post from Scott Greenfield in which he argues that trying to value violent crime in this manner is so silly as to be laughable, and that in so doing, actually damages the worthy cause of trying to reasonably and cost-effectively assess punishment for criminal offenses.  

While I don't agree with Greenfield, he does have a point in that there is unquestionably a body of people who see any such commentary as being knee-jerk-lefty-liberal-prisoner-coddling.  But any op-ed in the NYT is certainly not going to appeal to this audience at any rate.

10/21/10 Update: CrimProf Blog has a quick comment on the study with link to FindLaw story

I have long felt that to a great extent we in this country have wasted the potential of a generation of motivated, entrepreneurial black males through the overcriminalization of crack cocaine.  I represented young black men in the mid '90's who could have sold ice to eskimos (can I say that?), but who were caught up in the federal crack cocaine dragnet and were sent to federal prison for over a decade as a result.  Instead of redirecting these young men with great potential and enabling them to give back to our country, we sent them to waste their youthful energy and creativity on a taxpayer sponsored $35,000.00 per year vacation.

Now that there is a possibility of some of these young men being resentenced, I would love to say that I see a wave of popular support for retroactive application of the new "crack" cocaine sentencing guidelines.  I am not sure I see that wave yet, but I am hearing a growing chorus of cries for relief.  Here is a sampling of articles calling for retroactive reform.  Feel free to add more links in comments.

Time magazine asks Will Crack-Cocaine Sentencing Reform Help Current Cons? by Theo Emery, August 7th, 2009.

From the Huffington Post article by Julie Stewart, president of Families against Mandatory Minimums, August 3rd, 2010:

When a manufacturer issues a defective product, they don't just fix the problem going forward; they do a total recall. Recalling the defective 100-to-1 disparity for everyone will bring relief to thousands of families and increase respect for the justice system. 

The Sentencing Project wrote a letter to the United States Sentencing Commission urging that they use their power to make the amendments retroactive:

Despite sensationalized warnings of administrative burden and increases in crime, these concerns have not been borne out. This success should encourage the Commission to continue on its path towards increased sentencing fairness by applying the Fair Sentencing Act to persons sentenced before its enactment.

Austin Chronicle write Jordan Smith urged the USSC to make the amendments retroactive on August 20th, 2010:

 The next step? Get Congress to make the new crack sentencing law retroactive, as the USSC did with the guidelines.

Blogger and Attorney Chad VanCleave in Cameron, Texas  and Dallas lawyer and blogger Cint Broden discuss possible remedies for any retroactive crack cocaine sentences on August 25th, 2010.

While the new act has returned some element of fairness to an issue  that had been clouded by the rush to punishment fueled by the “law and order”  anxieties of the 1980s, the injustice arguably continues.

From the National Law Journal opinion piece by Harlan Protass and Mark D. Harris, September 28th, 2010:

…permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less.

This week I had a close brush with the Anders standard.  An Anders brief is a "no-merit" brief in which the appellate lawyer informs the court of appeals that he cannot find any meritorious issue in the case to support an appeal.

My friend Jamie Spencer recently wrote an interesting post about a case in which a Texas lawyer wrote a very sloppy Anders brief.  In  preparation for the posting, Jamie actually went and read the Anders case (RTFM?), which has a happy ending–Appellant Anders actually had meritorious issues in his case that his original counsel had missed, and his case was reversed and remanded.  A rare win on appeal for the defense.

I had visited with the trial counsel and he had told me of the one possibly meritorious sentencing issue which I had duly briefed and was writing about.  I didn't recall any mention from him of any particular problems with filing an appeal.  Then I noticed the big problem–Appellant had plead guilty with a plea agreement in which he waived his right to appeal.  Whenever I had dealt with this situation in the past, the Government had always chosen to enforce the appeal waiver. And I had never had any strong argument about why they shouldn't.  But in this case I really felt like my client had gotten the short end of the stick.  

What to do?  There is no manual for this situation.  So I did some instant research–I called my friend Stan Schweiger who is an excellent appellate lawyer.  Stan suggested that I call up the head of the US Attorney's office appellate section.  Stan assured me that he was a reasonable guy who might just choose not to enforce the appeal waiver.

Anders averted: I spoke with AUSA Joseph Gay, head of the appellate section, and he turned out to be an eminently reasonable guy.  He said that the Government would actually read my brief and take a look at the merits of my case before deciding whether to exercise the appeal waiver provision of the plea agreement. 

I must say that I was somewhat surprised and very impressed.  In the past I have never had a prosecutor tell me that they might just overlook the appeal waiver if they agree that the client got a raw deal.  It is too easy for a prosecutor to lose track of the fact that their goal is not to rack up wins but to see that justice is done.  Which is exactly what not enforcing the appeal waiver in this situation would do.

Will I win this appeal?  I don't know, but at least I have a shot at making an argument for my client.  And as an added bonus, I didn't have to write the dreaded and detestable Anders brief.

Earlier this month I wrote about the United States Sentencing Commission taking "emergency" action to translate the new "Fair Sentencing Act" into workable sentencing rules for folks charged with federal crack cocaine offenses.  So now we have the United States' Legislative and Judicial branches working toward decreasing the grossly excessive sentences that have been imposed for federal crack cocaine cases.

Last I checked, though, we have three branches to our federal government.  And last I checked with a federal prosecutor they had received no guidance on how to deal with crack cocaine cases.  Which means that without the bosses at DOJ telling them to advocate in favor of the new legislation or proposed USSG amendments they'll largely carry on as before until the new Guidelines are finally adopted.  

Doug Berman's excellent blog Sentencing Law and Policy is a fantastic source for news and analysis of developments in many areas of sentencing law.   Doug found some promising comments made by AG Eric Holder on September 21st, which seem to suggest that the Executive branch may take action sooner rather than later:

Over the past year, we have also been reevaluating federal sentencing and corrections policies to ensure that the proper balance is struck in promoting public safety, punishing criminals, avoiding unwarranted sentencing disparities, and reducing recidivism.  Recommendations are currently in development and will be released later this year, but we were – and we all should be – heartened by the recent passage of the Fair Sentencing Act.  The crack/powder sentencing disparity was a symbol of unfairness in our system and, though there’s more work to be done, its reduction is an encouraging step forward.

My concern is that these "recommendations" the AG refers to may not be any executive-branch-DOJ guidance, but that he might simply be referring to the prospective emergency amendments to the USSG's.  I wish that Eric Holder would take a firm stand and urge that his prosecutors actively advocate for sentencing judges to use the new/proposed crack cocaine guidelines, rather than waiting until their final adoption.  

If Holder is sincere about the crack/powder disparity being a "symbol of unfairness in our system," then allowing his prosecutors to stand silent on this matter is a tacit adoption of that unfairness.  Rather than relying on individual defense attorneys advocating with individual prosecutors on individual cases before individual judges, AG Holder needs to instruct all federal prosecutors to advocate in favor of the proposed guidelines in all courts for all cases.