I know that for the most part people think that I simply use this blog to rant and rave about various things. After all, according to one prosecutor, "All he does is complain about things and talk about himself." Maybe that's true, and maybe it's not. I don't think I complain that much. But this is beside the point.
While I don't typically read the San Diego newspapers, this was particularly important for me.
When I was in law school, one of my best friends in the whole world had his brother-in-law in town. His brother-in-law, a young Marine officer, came to see his young nephew and decompress from being a Marine. We met. We hung out. We had a good time. We drank, a lot. We had various run-ins with the locals. It was a good time.
Over the last several years, he has continued in his Marine career. Now, he is no longer a Second Lieutenant, but a Major. No longer simply stationed at San Diego, but now commanding a Force Reconnaissance Company.
Knowing his sister the way I do, she has absolutely no desire for him to be in Iraq, or Afghanistan or Oklahoma for that matter. (Of course, in all fairness, who would want to be in Oklahoma?) But I also know she is immensely proud of him. As is everyone that knows him.
Yesterday at Camp Pendleton in San Diego, young Daniel Strelkauskas was awarded the Silver Star. This is one of the most significant awards a Marine can be awarded. It seems that Major Strelkauskas, during a four-hour firefight in Afghanistan, was injured and yet still managed to drag a wounded comrade out of harm's way and call in an airstrike to save his men.
He did the things his men expected he would do. He did the things those that know him knew he would do. He was, in a word, a hero.
Although knowing him, we all know he would never say that about himself.
Thanks Danny. God bless. Watch out for those heal clicks!
Happy Holidays
Who says I don't like the holidays? Enjoy, and be safe.
Boy, that didn't take long, did it? Within only a couple of weeks of me writing this, we have news of a primary contest for the Republican candidate for the 432nd District Court.
Local Fort Worth attorney Tom Zachry has now thrown his hat into the ring for the Republican nomination for the 432nd District Court. While I have no idea if it had anything to do with this recent ridiculous sentence imposed by Judge Gonzalez, it's interesting that there is already an opponent for a bench that hasn't been filled for two months yet.
I will be honest. I don't know Tom Zachry. I know who he is, and he seems like a very nice, affable gentleman. But I don't know him personally, so I can't speak to what he's like. But I have some help.
Today I received a letter from Mr. Zachry asking to support him for the bench. To be honest, it's really just a campaign flier. Mr. Zachry apparently doesn't realize that here at the Matlock Blog, we are fair and balanced, and will happily post information about candidates and their campaigns if they will just let us know. Yeah, I have a mouse in my pocket.
According to the flier, Mr. Zachry has 43 years of experience in criminal law and is Board Certified in Criminal Law. Apparently, also from the flier, Judge Gonzalez has but 13 years of experience and is not Board Certified.
At first glance, this seems like an impressive comparison. I mean, an extra 30 years is a long time. It's practically my entire lifetime. But, how much of that is really in criminal law?
You see, when you check out Mr. Zachry's website, it claims that he began his career in 1967 as an Assistant District Attorney. Interestingly however, while in the D.A.'s office, he developed his own family law practice. (You could do that? Really? WTF?)
He developed this practice to such an extent that he left the D.A.'s office to start his own family law practice. It doesn't say what percentage of his practice is devoted to criminal law. But it does say that since 1970 he has represented hundreds of people accused of crimes. Even assuming that is 999 people, over 39 years that's only about 25 criminal cases per year. Is that enough experience to be a felony court judge?
Mr. Zachry also points out that he is AV rated by Martindale-Hubbard where as Judge Gonzalez is not rated at all. Too bad for Mr. Zachary that he didn't notice that it's really Martindale-Hubbell. But despite that glaring error, it's still impressive. But I don't know that it's that big of a deal. I mean Mr. Zachry is not rated at all by avvo.com, whereas Judge Gonzalez was rated something like an 8.0 before being appointed to the bench. Decisive? No. (At least not until you're rated something like a 9.7.)
There were some that believed Judge Gonzalez was appointed because of his connections within the local Republican party, and that he had made it known that he was interested in running for District Attorney to replace the late Tim Curry. My sources within the party told me they had their eye set on former judge Bob Gill as the heir apparent. So in exchange, the party impressed upon His Excellency the Hair the governor to appoint Judge Gonzalez. I don't know. I like to think it was because I told him to. In any event, I think the judge has done well so far, 75 years notwithstanding.
But now it seems there are those looking to dethrone Judge Gonzalez. Will there be more Republicans doing this? Where are the Democrats on this? J.R. Molina? Maureen Tolbert? Random prosecutor? Mr. Zachry is the first, but something tells me he won't be the last.
But what the hell do I know?
No, this has nothing to do with law or elections or anything like that. This is being written because this blog receives an average of 1400 hits per week, and with any luck, someone somewhere will pick it up and send it to Mr. Ilitch.
Dear Mr. Ilitch,
I know being the owner of a professional sports team in Detroit in this economy can't be that easy. (Well actually, I don't know that for sure, but I'm just guessing.) And before I go any further, I have to commend you for your persistence in trying to field a World Series caliber team despite the economic downturn. I really do.
But I recently heard through the grapevine from those at the GM meeting in Chicago this week that you're looking to dump salaries. I can understand the temptation I suppose. But considering this year's team was one game away from the playoffs, and is only a few years removed from the World Series, I can only muster up one question.
WTF? (Pardon my Gaelic)
Seriously. Now I'm not talking in terms of a lifelong Detroit native who lost his job at the plans and has only the Tigers as an outlet for any hope of existence. I'm coming from the lifelong Tigers fan who still considers 1984 the greatest year ever. The kid who played Little League for the Tigers. The adult whose dream job is already your job; owner of the Detroit Tigers.
There have been any number of decisions of your's that I haven't agreed with over the years. First and foremost, the building of Comerica Park. Awful. Really, awful. You should have done what the Yankees did recently by simply building a new version of old Tigers Stadium. I know I'm not the only one that considers Tigers Stadium to have been one of the greatest cathedrals of baseball. I totally agree with my law school professor, a lifelong Tiger's fan from Michigan, in saying way to screw that up.
But an even bigger catastrophe would be to dismantle this Tigers team. Why would you want to move Curtis Granderson, Edwin Jackson, or the heart-and-soul of the team, Brandon Inge? These are guys that bleed for the Tigers. Not unlike their fans. And you want to screw them all.
I will give you that Granderson is undisciplined at the plate at times. He swings at the first pitch far too often, especially with runners in scoring position and less than two outs. But my god, man. Have you not seen his potential? The kid makes Griffey-like plays in center, and when he's good at the plate, he's wicked good. And you want to give that up?
And Edwin Jackson? A kid you traded for last year, who oh by the way, turns out to be one of the best off-season trades, who comes in and turns into a dominant All-Star? Did you see the way he shut down teams this year? I bought DirectTv's Extra Innings this year. I loved Rod Allen constantly heaping praise on Jackson for becoming just an absolute workhorse. He is.
Finally, there is Brandon Inge. Again, I have to simply ask WTF? Are you even listening to Dombrowski? Because I can't believe he's telling you to dump Inge. He is a ballplayer. He's not the most athletic. He's not the most skilled. But he gives everything he has out there. On two bad knees for most of the season, too. I suppose you would have dumped Kirk Gibson or Lance Parrish back in the day, too.
The point I'm making is this team is too close to blow up. If you really felt this way, why did you let Ordonez's option vest this year? The answer is you knew this team can win the Series. It's that simple. What happened at the end of this year shouldn't be taken as a sign of decline, but rather a learning experience. This is a good young team. They have the talent to win the Series.
If you don't keep this team together, then you will have sacrificed all the good will bestowed upon you by the fine people of Detroit and Tigers' fans around the globe. You'll just become another greedy sports owner looking to make a buck with a professional team. The good you've done will forever be forgotten. That you put millions back into not only a team, but a city that desperately needed it, will be written off. You'll be a cliche.
This is a good team. Listen to your baseball people. Listen to Leyland and Dombrowski. This team can win. And they can win now.
The only question is will you give them a chance?
To the judge or to the jury, that is the question. This is not so much a legalistic interpretation of Hamlet’s preeminent line, but rather the conundrum of the modern day criminal defense attorney.
You see, in Texas, prior to trial, a defendant must choose from whom he wishes to receive his punishment. Before he knows he will be punished. You choose either sentencing from the judge or from the jury.
And while there is certainly a number of legal issues involved, this is one of those decisions in a criminal trial that is far less legalistic than pragmatic. The decision is one made based more upon experience than scholarship. Instinct than knowledge. Gut than cognition.
Ultimately, it can be the difference between life an death.
“I recently served on a Tarrant County criminal jury where the defendant was a middle-aged repeat offender who was found guilty of robbery. The minimum sentence was 25 years; Judge Ruben Gonzalez sentenced him to 75 years. Now, no one was injured, there was no evidence of a weapon, a small amount of cash and a cellphone were stolen, and the perp was stupid enough to return the cellphone hoping for a $50 reward. He got 75 years, a virtual life sentence.
So what sentence do we give to the criminal who rapes, maims or kills another? Why do I keep reading about killers who get five- to 10-year sentences? Where is the justice?”
This was a recent letter to the editor in the Fort Worth Star-Telegram, entitled Where's the Justice?. This is not from a defense attorney, or a liberal activist, or any one like that. But from one of the actual jurors who convicted the defendant. In Texas. In Tarrant County. Not a hotbed for rights of the criminal defendant, to be frank.
I can’t imagine it’s a good thing for a juror here to question the justice in a judge’s sentencing. If a juror who sits through the entire trial thinks the sentence handed out by the judge is unjust, is it? And here in lies the problem.
We elect our judges. They aren’t appointed. Now personally, I’ve never been a fan of appointing judges because after all, they’re just being appointed by those that were elected. So it’s really just the second cousin of electing judges.
But the fact that judges are elected clearly plays a part in how they do their job.
Now I’m a lifetime Republican. And as such, I know that they teach us that we are all about law and order, public safety, being tough on crime. So if you’re a Republican judge, and you want to continue being a Republican judge, it’s pretty clear you need to be able show the voters you are all about law and order, public safety, and being tough on crime.
But at what cost? You see in this case, one has to wonder whether the newly-appointed Judge Gonzalez of the newly-created 432nd District Court isn’t flexing his judicial muscles. Does he feel he has to show the voters of Tarrant County that will be going to the poll within a year that he’s all about law and order, public safety, and being tough on crime? Did he overcompensate?
Now I have it on good authority that the State’s offer on this case pretrial was 25 years. The defendant was a Repeat Offender. But the fact that the State offered the defense 25 sort of has to tell you what that case was worth from the State’s perspective. Not only that, but the case was originally charged as an Aggravated Robbery, but the jury found the defendant guilty of only Robbery. Of a cell phone.
As the letter indicated, no one was hurt. There was no dead body. So if Judge Gonzales feels this kind of case warrants a 75 year sentence, one has to wonder what will happen after the first murder trial. Sexual Assault trial. Kidnapping trial.
Within the courthouse, it’s no secret which judges are considered “hanging judges.” If you, as a defense attorney can avoiding having one of those judges from being involved in the sentencing of your client, you’re probably always playing the odds to your benefit. And the reverse is true also. There are those that are more willing to sentence a defendant lighter, and if you can get to them, it might be in your client’s best interest.
It’s all part of the system. It’s not perfect. It’s human after all. Any time you have humans imposing sentence on each other, there will likely be issues.
But this was one of the first trials ever held in the 432nd District Court, and presumably the defense felt that by going to a new judge who only weeks before had been a defense attorney himself, was a good bet. From a poker perspective, it looked like a damn good flop for the defense.
But clearly the defense forgot about the politics of the situation. Judge Gonzalez is a newly-appointed Republican judge, who presumably would like to continue being a Republican judge. Perhaps Judge Gonzalez saw this as an opportunity to show the voters of Tarrant County that he was what they hoped for in a judge. And that by imposing such a sentence was a surefire way to avoid having an opponent in the upcoming election.
But if one of those voters just took the time to write that letter, has it backfired?
Such a harsh sentence in an effort to avoid an opponent next year may have resulted in just the opposite. The question remains, will anyone seize upon this to run against Judge Gonzalez. Clearly the case could be made for it.
But what the hell do I know?
It sounds too ridiculous to be true. If anyone should know what crimes the police can charge you with, it should be the police, right? I mean am I asking too much for the cops to know what the hell they are doing? Really?
Well, apparently not so much with the Dallas Police Department. The DPD decided to give a number of drivers some tickets for not speaking English. Yep, you read that correctly. Not. Speaking. English.
According to a number of stories over the last several days, the DPD has ticketed almost 40 different drivers over the last three years for being a non-English speaking driver. The problem is that's not against the law. Now admittedly, there is a federal law for commercial drivers dealing with this, and there is the infamous 287(g) federal program that deputizes some local law enforcement to enforce federal immigration law. But that's not what this is.
It seems the poor police officers were confused by there pesky in-car computer. According to the officers, the pull-down menu allows them to issue a citation to a driver for not only speeding, illegal U-turn, improper turn, but also "non-English speaking driver."
They were confused. By their computer. Really? Are these cops so out of touch with reality that they thought this was proper?
The bigger problem with this is the response from the cops themselves. According to the CBS 11 story, Glenn White of the Dallas Police Association thinks its unfair to blame the cops for making the mistake. We should really be blaming the computer makers and the officers' superiors. Really?
According to White, it would be unfair to label these officers as being racially insensitive. "It's wrong. It's absolutely wrong." White fears the officers will face future scrutiny in court cases involving minorities. Ya think?
Let's see. I have a client charged and convicted in a drug conspiracy of a relatively small amount of drugs actually found on him. But then witness after witness comes into court for sentencing and talks about all the times they've seen my client possess drugs. No one seems to have a problem with that "relevant conduct." Why shouldn't it cut both ways?
Now, honestly, I don't know if these officers are so naive as to think they can just scroll through their little pull-down menu searching for any and all crimes to cite, or they are just not bright enough to figure things out on their own. And I hate to give them the benefit of the doubt, but I guess I will. I mean the world is full of morons.
But you made a mistake, guys. It's not like you shot a guy who was pulling out a cell phone, or conducted a no-knock on the wrong house causing the elderly owner to have a heart attack, or anything crazy like that. But you screwed up.
To honestly argue that you shouldn't be punished is inane. By the way, that's English for stupid.
But what the hell do I know?
You think you want to be a lawyer, huh? You don't. Trust me. I say that as someone that not only is a lawyer, but someone who hates lawyers. Do something else.
Let me guess. You want to be a lawyer because you don't like math class, but you don't want to be a teacher, and you haven't figured out there are other things to do with your Bachelor of Arts degree?
Or maybe you want to go to grad school, but why waste time and money going for a business degree when you're just going to be in the mailroom to begin with anyway, right? I mean, you're too smart for that.
Of course there is always the classic reason. You like to argue. Your momma/ daddy/ girlfriend/ boyfriend/ P.E. teacher/ priest all say you're really good at arguing. So is my ex-wife. She's no lawyer.
The truth is you want to be a lawyer because it looks cool on TV and you think you can make a lot of money. Well, you're right. It does look good on TV and you can make a lot of money.
Of course, let's consider this for a second. Let's look at what looks good on TV. Lawyers do. Doctors do. Naval Criminal Investigative Service Agents do. Professional lie detector guys do. Strippers do. Mafia bosses do. A guy from another planet who has super powers and wears a red cape does except when he's around that strange green rock. You get the picture.
The truth is if you base your career on what looks good on TV, you're either too stupid or too smart to be a lawyer. You figure out which it is.
So you think you can make a lot of money? Yes. Or, no. You see a lot is relative and it also depends on what you lose to get it. Some people only lose time to gain money. You spend eight hours completely screwing up my order at Burger King, you still gain about $50 bucks that day. You spend 2500 billable hours of your life in a year as a lawyer, maybe you lose more, and maybe your gain something.
If money is what you're seeking, no amount of money will gain you what you really want. I can't begin to tell you what you want, but I can tell you that you won't find it in your paycheck.
There are those that do this for the love and those that do it for the money. Which do you want to be? There are also various ways in which you can accomplish your goals in this lofty little notion we call "the law." What will you choose?
Gone are the days of Atticus Finch. The general practitioner is laughed at nowadays. He doesn't have the skill to handle this case or that case because he doesn't spend every waking hour learning the intricacies of this area of law.
So you have to pick the exact kind of law you think you want to practice. Which shall it be, my lady? Civil litigation? Family? Wills and Estates? Criminal? Something more specialized? They all have their costs and they all have their benefits.
May I offer a modicum of advice? If you do anything, don't practice Family law. Never on the landscape of this planet has there existed a more foul stench than that of the divorce attorney. There is a special place in hell for Family Law attorneys.
People always complain about criminal defense attorneys, and rightfully so (after all, we suck), but at least we have the scratchy blanket of the constitution to pretend to wrap ourselves in. Family law attorneys don't. They don't even pretend to. From carcass to carcass they go, tirelessly looking for that last ounce of blood to suck.
Criminal defense attorneys are generally about ego. We fight the government. It's what we do. Usually we lose, but sometimes we win, and when we do, we usually look good doing it. But maybe that's just me.
As for civil attorneys, well, they are strange. It's all about the billable hour. They rarely set foot in the courtroom and when they do, they try cases with questions to which they already know the answer. It's as exciting as watching a TiVo'ed episode of L.A. Law. For the eighteenth time. And on top of that, none of them are really that bright.
Don't get me wrong. You have to be relatively intelligent to be a lawyer. And the better ones are smarter than the others. But strike up a conversation with a lawyer that doesn't want to talk about himself, and I'll show you someone who made a bad career choice.
You say you want to be a lawyer? I ask why. The years of studying, they never end. The stress of school continues into practice. And oh by the way? You're never as smart as you think you are. Take it from the kid who grew up knowing he was always going to be a lawyer.
But what the hell do I know?
Words matter.
They do. Whether they are the simple ones we like to hear like, “You’re hot” or “I love you” or they are the ones we don’t want to hear, “It’s not you, it’s me” or “I don’t love you anymore.” Or the words that can be the greatest to hear, “Tigers win the pennant!” (Ok, maybe that’s just me.) The point is that what we say, and how we say it matter. Usually.
There are few places where words can have as lasting an impact as in a courtroom. Whether it be a defendant pleading “guilty” or a jury returning a verdict, what is said in a courtroom, pretty much by definition, affects people tremendously and does so for life.
Unless of course your a “monster.” It turns out a prosecutor can refer to a criminal defendant during the course of a trial, and in front of the jury, as a monster and that will result in two more words being uttered by the appellate court; “harmless error.”
It seems that a prosecutor in Ector County, which is way out in west Texas, decided to refer to a defendant charged with sexual assault as a monster. In front of the jury. On the record. Yikes! That can’t be good, right? Well maybe no so much.
As it turns out, the 11th Court of Appeals has decided that while the jury argument of this bush-league prosecutor violated every rule set for both jury argument and referencing a defendant, the error was harmless. In other words, the court thought he must have been guilty, so why bother holding the State to the same rules as the defense. God forbid I refer to the State’s sole witness as a “whore” and get away with it.
You see, jury argument in Texas is limited to only four areas; summation of the evidence, a reasonable deduction from the evidence, answer to argument of opposing counsel, and the proverbial plea for law enforcement. Not only that, but there is actually case law that says a prosecutor should not refer to a defendant by any name other than his given name or nickname, and it is improper to refer to a defendant by a derogatory term designed to subject him to personal abuse.
Ever been called a monster in a good way? Me either.
But apparently words don’t matter that much. You say monster, I say defendant entitled to the rule of law. You say less, but I know you mean fewer.
What you say?
You see, we are now playing to the lowest common denominator. No one can actually speak correctly. Not only are wannabe prosecutors in sh*tsville Odessa (which will never be as good as Midland by the way) allowed to speak improperly in court where it matters, but now we have gotten to a point where those that try to sell us all of the unnecessary things we buy can’t even do it correctly.
For example: Less Calories.
I like Gatorade. I do. But for crying out loud. It should be “Fewer Calories” not less. It’s not that hard. I mean say it out loud and it doesn’t even sound right, does it?
Ok, for those that apparently went to a fourth tier state school for college, the reason it is fewer and not less is because it deals with something you can count. Such as fewer M&M’s and less candy. Fewer ounces of vodka, and less alcohol. Fewer IQ points, less intelligence. Is it really that hard? Come on, try and keep up.
But I digress. You’re right. This really just an opportunity for me to vent about those that can’t properly use the King’s Queen's English.
But it doesn’t stop with the written word. It reaches into the realm of the spoken word as well. The most recent example occurred last night during game number 163 between the Minnesota Twins and my Detroit Tigers.
Anyone that knows anything about baseball knows that a base hit occurs only when someone has reached base. It ain’t rocket science. A fly ball out is not such an occurrence. And if anyone in the world should know this, you would expect a national sportscaster to know this. Not so much with Chip Caray.
I paid quite a bit to have DirectTv Extra Innings so that I could watch virtually every Tigers game this year. I love the local Fox Sports Detroit broadcasters. But after 162 games, the Tigers and Twins were tied for the A.L. Central title. It came to a tie-breaker game. Called by...TBS?
Much to my chagrin, Chip Caray and Ron Daling called the game. I’d never experienced a game called by this duo. I’d rather kick my own ass than hear another. I would rather shove at pine cone up..., well, you get the picture.
There are so many instances of abject stupidity on the behalf of this dynamic broadcasting duo, but I decided to use just this one to make my point.
I know this post is all over the place, but it’s been a while since I posted anything, and I feel like getting some things off my chest. Perhaps this will be the new purpose of this little blog of mine. Maybe I can use it to spread the gossip of the North Texas legal community. That probably wouldn’t be too popular, right? Maybe I'll just talk about how things suck. Maybe, oh, who the hell knows.
The point is this blog is at a crossroads. Much like I find myself. Certainly it is a professional blog in the sense that it is associated with this firm. Yet given certain changes in life, I wonder if perhaps everything shouldn’t change.
We live in a cynical world. A world determined to find the worst in people and destroy those that try to do the right thing. Maybe it's time to embrace that. Maybe it's time to call out those in this world that suck.
But what the hell do I know?
Perhaps we have become accustomed to picking up the morning newspaper and reading another story of a wrongfully convicted person freed because DNA proved the person did not commit the crime in question. As a general rule, there is no question a crime was committed, but rather the issue is who was responsible for its commission. Until now.
I told you so. Call me Captain Clairvoyant. But just as I speculated about over a month ago will come to fruition. Tarrant County is getting its first Hispanic felony court judge.