By Ronnie Yeates
From The Defender – Vol 1, 2022
(Reprinted from The Defender, Winter 2006)
$300 million is a lot of money. So maybe, just maybe, we ought to think about this expenditure.
First of all, why do we need to lock up more people? Are we about to have a sudden crime wave? No. Maybe this need for more jail space is necessitated by the need to keep up the local trend of misusing the jail space we already have. What do I mean by that?
There are two kinds of people in jail: Those that belong there and those that don’t. I would argue that many of the 9,000 people currently in jail do not need to be there. Restated, the taxpayers are paying to house a lot of people the taxpayers should not be paying to house.
Who is in jail? People who are charged and not convicted and people who have been convicted who are serving a sentence.
There are far too many people in jail who arc charged and not convicted.
There are far too many presumably innocent people in jail with cases pending. If you really want to free up some jail space give these people bond. Bond is not supposed to be used as a form of punishment, but it is. Far too often people arc stuck in jail because they simply cannot afford bond. If you don’t believe me, go to any of our fifteen county courts or our twenty-two district courts on a Monday morning and start counting heads of those who didn’t make bond.
Why are these people still in jail on Monday, when anybody with any sense and money would have bonded out? The answer is simple: They are still in jail because they are too poor to make bond.
If you cannot afford to make a $500 misdemeanor bond by definition you are poor. So we keep presumably innocent people in jail in this county because they arc poor. This is wrong. Supposedly we got rid of debtors’ prison a long time ago. Truth is, we still have it.
Since poor folks cannot afford to make misdemeanor bonds or state jail bonds, they arc cluttering up the jails. Why then aren’t they getting PR Bonds or Pre-trial Release Bonds? Can anybody answer that? I haven’t heard a good answer yet, and they are not all homeless.
Let me suggest a two-part answer: First, the judges, while well-intentioned, are still elected by voters who don’t know who they are. The judges worry about the “nightmare case” where they give a guy a Pre-trial Release Bond and he goes out and kills someone. So what do the judges do? They don’t grant Pre-trial Release Bonds. It’s safer for the judge to leave the presumably innocent person in jail then to release him on Pretrial Release Bond. While it may be politically safer for the judge, it is far more dangerous to the fundamental tenets of our system for the judge to keep the presumably innocent locked up for political reasons.
What is the second reason judges don’t grant Pre-trial Release Bonds? Well, the Pre-trial Release folks are simply overworked. A long time ago Pre-trial Release was created, at least in part, to provide an avenue to allow judges to release presumably innocent indigents on bond. I remember it actually happening at the old courthouse. Now, though, the same Pretrial service people are bogged down with their new job: Supervising bond conditions for those people lucky enough to actually make bond. If you don’t believe me, just go to the twelfth floor and watch.
As the years have worn on, the judges for a number of reasons have added more and more conditions to even the most mundane bonds. It has gotten to the point that bond conditions in some courts virtually mirror conditions of probation. Walk into any court and listen as bond conditions are set and you will swear the person has just pled guilty and is being sentenced. Nope. He is just getting bond conditions set. Once those conditions are set someone has to supervise them. Guess who? You got it, the good folks in Pre-trial Services.
So why are our jails overcrowded with presumably innocent folks?
Because, the courts refuse to utilize Pre-trial Services for its proper purpose.
What is the net effect? Defendants who are presumably innocent remain in custody. What happens to all these poor people who are denied Pretrial Release Bond? How is all this resolved for them?
The answer is simple and revolting to any sense of justice: Mass pleas of guilty.
Everyone reading this knows what I am talking about. Every Monday morning the lawyer for the day appears. He is assigned to represent 6-8 people. He goes back, says “Hi” to all his spanking new clients and then the District Attorney’s office extends offers. If “Joe” pleads guilty he gets thirty days, or if he wants to go to trial he can tee it up in sixty to ninety days. “Joe” takes the thirty. The system is set up to keep poor people in jail and to encourage pleas of guilty. If you have a choice of pleading guilty and getting out in ten days or pleading not guilty and maybe getting out in ninety days which choice would YOU take?
People who are presumably innocent are kept in jail and they plead guilty and they fill up our jails. It’s been our system far too long. A lot of people will probably not like my criticism of the system. Undoubtedly, I am painting with a broad stroke. But it is all true.
We don’t need to spend $300 million to build more jails; we need to let people out on Pre-trial Release Bonds and our jail problem will be solved. While we are at it, the courts need to stop illegally revoking bonds. When clients show up without an attorney that is no basis to revoke bond. Having an attorney is a right, not an obligation of bond.
In the meantime we can use that $300 million to support education and employment opportunities in the inner city. We can use that money to pay for drug rehabilitation and to support drug court. We have enough people in jail in Harris County.
Let’s take a hard look at our system and institute some long overdue changes. The solutions are as evident as the problems. All we need is the willingness to be honest with ourselves and the desire to do better.
When villains threaten Gotham, Commission Gordan initializes the Bat Signal and superheroes spring into action. When judges bully defenders, Mark Bennett initiates our Bat Signal and leads his fellow superheroes into battle.
Superheroes represent positive values by being responsible. While this may seem simple enough, responsibility is an ongoing internal struggle for superheroes. Simply put, power corrupts. Responsibility is the essential quality that distinguishes superheroes from regular villains. Being responsible, no matter the personal cost, is the superhero’s only defense against being corrupted by power. Superheroes are thus defined, limited, and restrained by their struggle to be responsible, to exercise their abilities and power with restraint. Supervillains’ lack of restraint and utter irresponsibility are a threat to the superhero, and to the people the superhero protects.
Superheroes Need Superior Villains by Stanford W. Carpenter
Being responsible, no matter the personal cost, Mark Bennett leads a top-quality HCCLA strike force of superheroes to combat the supervillains in our midst who threaten our defenders and thus the people we protect. He truly embodies the superhero who maintains responsibility against those who exercise irresponsibility and lack of restraint. Though his skirmishes are numerous, one in particular warrants review.
Super Defender Cheryl Irvin was threatened in the zealous defense of her client. Her zealousness was met with an improper order of incarceration. This judge wasn’t “patient, dignified and courteous” as required by the Texas Canons of Judicial Conduct. She ordered Cheryl into the holdover to wait. She demanded an apology. Within minutes the bat signal was initiated and Mark and others rushed to aid our super-defender in her contest with the supervillain.
While he assessed the situation, more superheroes assembled to investigate and research the facts and options. Mark proceeded to assemble a resolution. After much to-do about nothing, the resolution consisted of Cheryl going about her own business, leaving the holdover, and ultimately filing a grievance.
Super-defenders provided affidavits discussing the facts and circumstances. Slowly, yet surely, the State Commission on Judicial Conduct issued its decision: a private sanction.
The villain retreated. But, like all villains, returns at a whim.
After the death of colleague, Mark took over a case in the judge’s court. Mark requested a short two-day reset to consult an immigration attorney before his new client could take a sweet deal. “No good deed goes unpunished,” she warned. After all, the supervillains’ lack of restraint and utter irresponsibility are a threat to the superhero, and to the people the superhero protects. The ongoing struggle continues.
As for Mark, he will “look for more opportunities to do the right thing the same way.” And the CJC is a safer place for all his efforts.
What a Year!
These last few months have been exciting to say the least. It seems we have had our hands in just about everything going on in and around the Criminal Justice Center. We’ve participated behind the scenes and in group studies to give the defense a voice. We’ve met with prosecutors and judges to make sure they hear our concerns. In short, we have made a difference! Thank you all for the help and support you have given to our board which made this possible.
We received word that our complaint against Judge Bill Harmon was sustained with a private reprimand. The Judicial Commission agreed that his display of the M.A.D.D. plaque in a public courtroom was inappropriate. Thank you to Tyler Flood and all others who brought this issue to light and helped set the stage for our successful complaint.
If you missed it, we also had some spectacular CLE events: Maneuvering Search and Seizure and our Judge Wendell Odom Appellate Seminar were highly attended and received rave reviews. If you missed Appellate, you missed live oral arguments in the Court of Appeals and a frank roundtable discussion of the arguments immediately following. We’ve also had some amazing happy hour CLE events on DWI, electronic devices, and interrogation among others. Under the direction of David Ryan, our CLE chair, we have offered more variety and lower cost CLE to benefit our members and surrounding local bars. When you see him, give him your thanks!
Our strike force, fearlessly led by Mark Bennett, continues to aid our members faced with bullying, indifference, and injustices. For a quick read and example of his work, see Bat Signal: Superheroes Called to Action in this issue.
We have a tremendous resource in our web and social media presence that spun off from our Reasonable Doubt television show. We have a host of writers commenting on current issues, providing legal experience and insight, and educating our public. With your help, we can continue to grow our audience. Don’t forget to tweet and Facebook us! Our websites alone are garnering approximately 15,000 hits a month!
Great things are in store for our future, and I can’t wait to see where this next year takes us with Tyler at the helm. I am humbled and honored to have once again worked with you all to better our bar and elevate the defense voice in Harris County. Together we have made a difference.
Together we will continue to stand against the injustices. Together we will stand and fight. Together we will stand for what is right.
A man dies when he refuses to stand up for that which is right.
A man dies when he refuses to stand up for justice.
A man dies when he refuses to take a stand for that which is true.
– Rev. Martin Luther King, Jr. on courage, March 8, 1965
It has been my pleasure to serve the criminal defense bar.
By: Rick Oliver
HCCLA Member and Defender Contributor
The presumption of innocence is commonly understood to be a legal term of art. If that be the case, then, the question becomes whether art really does imitate life in this business.
In theory, the presumption of innocence is indeed a term of art in the sense that it has a specific meaning within the legal field and amongst its practitioners. The presumption is more than just a phrase connoting a specified meaning, though. It is the foundation upon which our niche in this profession has been built. It is the keystone principle that maintains the integrity of our system of justice. It is the fiber in the connective tissue that binds us all to whatever construct we perceive of as our social contract.
In reality, the presumption of innocence is the Alpha and the Omega. Without it there is no justice. Without it, no trust. Without it there is no reason to honor the terms of any social contract; real or imagined.
But, the juxtaposition of the presumption of innocence with other legal terms of art brings a sad reality into focus. The “State” is a good and telling example. The truth is there is no “State.” It has no address. No postal zip code. There are no pearly gates that separate the “State’s” lushly manicured grounds and towering white spires from the citizen and his shanty town. There is no lone figurehead reminiscent of Reagan or Stalin or Margaret Thatcher or Thor. It only exists insofar as society allows it to exist. The “State” is a legal term of art, just like the presumption of innocence.
Except, it is nothing like the presumption of innocence. The “State” is an illusory fable penned by our Founding Fathers and passed from one generation of white-hatted do-gooders to the next. It is drafter and signatory to the social contract to which each of us is bound. It is the aggrieved party and the enforcer whose job it is to redress perceived contractual transgressions. The “State” implies more than it says. The “State” has a long and ranging arm. The “State” wields a big and often wretched stick. The “State,” by and through its agents, has within it the power to chuckle at Oppenheimer’s quip: “Now I am become Death, the Destroyer of Worlds.” In short, the “State” has within its dominion the propensity for a self-righteous and trembling gravitas.
By way of contrast, there is the presumption of innocence. There can be little doubt the presumption of innocence has been turned on its head. It has been eulogized as a dead letter; its demise feted in the halls of the “State.” It has been heckled and jeered and burned in effigy. In truth, the presumption of innocence is at odds with its maker, and because of that, no longer exists.
Our citizens accused are more likely to enjoy unicorns and leprechauns and purple rhinos than they are the presumption of innocence. It has been reduced to a sad and consensual hallucination; the artifice of sophistries. But, what is profoundly more disheartening than its demise is the reality that we—the defense bar—have helped to kill it.
Not affirmatively, of course. We haven’t exercised the audacity the “State” so often has when it, for example, hides exculpatory evidence. We haven’t plotted—with maniacal attention to detail—the murder of the presumption of innocence, intentionally or knowingly, or with malice aforethought. Not even death by a thousand pricks is to blame for its demise, at least insofar as those pricks are we.
Instead, we have sharpened the guillotine of the “State” with our neglect. Ironically, all we have neglected is but a single word. But, as Mark Twain once remarked, “The difference between a word and the right word is like the difference between lighting and a lighting bug.”
As codified, the presumption of innocence, that useless ramble, suggests that: “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”[i]
Close your eyes and say it aloud. Now, imagine yourself standing tall before the venire, sweating and preaching and rambling for the fifteen minutes the court has conferred upon you like a soiled gift. Look down at your imaginary outline to where the presumption of innocence necessarily precedes the burden of proof. Ask a pretend person to re-state the presumption of innocence in the shorthand we all so often hear.
“Innocent [fill in the blank] proven guilty.”
If your febrile imagination inserted the word “until” between the brackets, then you, like so many of us, have the blood of the presumption of innocence on your hands, too.
Resist the temptation to roll your eyes and consider the following: the word “until” is a conjunction that is used to refer to the time that took place or passed before an event or incident. It means “up to the time” or “till the time.” It is also used to show one’s aim of finishing a job or task even if there are things that make accomplishing it difficult.
The word “unless,” on the other hand, is a conjunction that is used to refer to a condition which makes the event or incident that precedes it impossible. It has the same connotation as the words “if” and “except.[ii]”
If your instinctual response can be summarized by resort to the familiar refrain that a comparison of unless and until yields a difference without a distinction, you are, in my humble opinion, out of your goddamned mind. The words unless and until are not tautological. They do not mean the same thing. They should only be used together when the situation calls for both a context of time and a precondition[iii]. Using the word “until” suggests the result is an eventuality. Using the word “unless” suggests there is some condition precedent that must be satisfied before that result may occur.
Imagine you’re watching an old black and white docuseries memorializing the great Clarence Darrow and one of his magnificent rites of defense. Imagine further he is engaged in a heated exchange with a corrupt prosecutor regarding the rights of the accused. Imagine Darrow’s impassioned plea in support of a vigorous and competent defense:
“He is presumed to be innocent UNLESS proven guilty,” Darrow might shout.
“Until, Mr. Darrow. Until he’s proven guilty.”
Now tell me you don’t feel the difference. In the example, the prosecutor says a lot without saying much. An economy of words does not necessarily imply an economy of meaning. And, it should not be difficult to divine which of these incarnations ought to be championed by those whose job it is to ensure that justice is done according to the law of the land, as it is written, and as it was intended.
It is also important to highlight the obvious. This business we have chosen is an adversarial one. We are competitors, in fact and in theory. We work with the same facts in an attempt to deliver different products. Woe befall the lawyer who fails to appreciate the reality that an aspect of what we do includes the idea of a sales pitch. Even worse is the thought that some lawyer mistakenly assume his or her pitch is limited by what they believe the facts have or have not proven. We incorporate the pitch in the way we dress and the way we dress our clients. We incorporate the pitch in the way we address the courts and the way we address its juries. We organize and pander to the rightful pageantry of the presumption of innocence, forgetting somehow that the devil is almost always in the details. The end result is that we are allowing the “State” to capitalize on our neglect. We are conceding the sale before either side utters so much as a single word.
WE are UNLESS and THEY are UNTIL.
The challenge of the defense is to convince the venire that the determination of guilt has yet to be made. In other words, we want them to understand and believe that the accused is presumed to be innocent unless the facts prove otherwise. The challenge of the “State” is to convince those same people that they wouldn’t be wasting their time if the guilt of the accused were not already assured. In other words, they want them to believe that all that is required of them is that they wait until the end of the “State’s” presentation before properly returning a verdict of guilt.
Our challenge is consonant with the spirit of the law. Theirs reflects the aim of those engaged in adversarial competition where the results are almost always zero sum. Whether the conflation is the result of intentional complicity or mutual negligence is irrelevant. The point is it is happening. It is diminishing the “State’s” burden of proof (another term of art). It is poisoning our juries. It is dooming the prospects of our citizens accused. Make no mistake, with a single word we have allowed the “State” to stack the deck against us.
In marketing circles the terms is referred to as “presupposition.” Presupposition is often utilized by using words and language that indicate your assumption that your offer has already been accepted. It is a technique that is used both consciously and subconsciously[iv]. In the context of the legal field, it is, quite simply, tradecraft. And, what is truly disturbing is that we’re not just allowing this to happen. We are perpetuating its dissemination and wide-spread acceptance. We act like it’s no big deal.
The impact of word choice is not limited by the ability of the audience to consciously discern subtle differences, either. Researchers have long known that expectations influence cognitions and behaviors[v]. When we expect a particular outcome, we automatically set in motion a chain of cognitions and behaviors to produce that outcome—and misattribute its cause[vi]. Although expectancies can develop in many ways, they are often the product of suggestion. Suggestions can come from other people or from the environment; they can be cultivated in the present or drawn from the past; and they can be deliberate or not deliberate[vii]. Suggestion can influence implicit learning and lead to the enhancement or impairment of memory[viii]. Further, suggestion can also influence evaluations of a product above and beyond its intrinsic features[ix]. Suggestions, particularly those that people do not realize they are communicating, can transmit expectations to others and thereby influence their thoughts and behaviors[x].
Clearly, the “State” has not taken a chainsaw to our beloved presumption of innocence. Rather, it appears the instrument used were more likely a scalpel. Its aim was specific and its incision precise. The product is a facelift that has altered the fundamental character of the presumption of innocence. A single word has undermined its promise. Now, there is a presumption of guilt and that presumption is a self-fulfilling prophecy.
What the literature suggests is that when the inaccurate beliefs of different perceivers about a given idea are similar, their individual self-fulfilling effects can accumulate such that their combined self-fulfilling influences may be more powerful than any of their individual self-fulfilling influences. That is, the similar and inaccurate beliefs held by multiple perceivers may potentiate one another’s self-fulfilling effects, a process referred to as synergistic accumulation[xi]. So, if even one of your potential jurors internalizes the conflation to encourage a presumption of guilt, the die may have already been cast.
Fortunately, the literature also suggests that members of stereotyped groups may be shielded from confirming negative stereotypes if they are also exposed to positive beliefs. In this example the “stereotyped group” is the citizen accused. The negative stereotype is that a citizen wouldn’t be accused unless he was guilty. The positive belief is the assertion that there is a more redeeming and legally correct definition of the presumption of innocence. To paraphrase Miracle Max, what this ultimately means is that the presumption of innocence is only mostly dead. There’s a difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there’s usually only one thing you can do[xii].
What we can do—what we must do—is right the ship. The presumption of innocence is the ballast that brings balance to the system. For some time now, the ship has been taking on water. As its designated stewards, it is time we all started bailing that water.
The remedy is simple: object. Object on the basis that the conflation of unless with until with respect to the presumption of innocence is a misstatement of the law. It is. Object on the basis that use of the word until is a comment on the weight of the evidence. It is. Object on the basis that use of the word until effectively reduces (if not eliminates) the “State’s” burden of proof. It does.
Currently, it appears we are unwittingly content to go down the ship. A simple natural language search for the phrase “innocent until proven guilty” returned only 99 Texas cases. A non-exhaustive review of those cases revealed almost nothing directly on-point. One of them was, and its analysis was telling. In Randolph v. State, the appellant complained that the trial judge violated his due process rights when it suggested to the venire that he was “innocent until proven guilty[xiii].” The COA noted that “[t]he Texas Court of Criminal Appeals…has not drawn a distinction between “unless” and “until” when those terms are used in connection with the presumption of innocence[xiv]. Then, the COA basically shrugged its collective shoulders and, in effect, said, “Look, we all do it all the time; what’s the big deal!?!”[xv] After all, trial counsel did not object to it when he had the chance[xvi]. And, the COA observed that “nothing in the record indicates that the venire meaningfully distinguished “unless” from “until” in the context in which the trial court used it during voir dire such that the use of “until” negatively affected [appellant’s] presumption of innocence.”[xvii] Nothing in the record, huh? With all due respect to the First Court of Appeals: no shit it’s not in the record.
The issue is not what is being put on the record while the venire is attentively seated. The issue is what the venire is bringing with them—subconsciously or otherwise—as they file in to the room. When we allow the law to be misquoted in the manner it currently is we effectively endorse a subliminal message that is broadcast to the entire world. The message we send is that trials are but a mere formality. The message we send is that trials are not a search for the truth. The message we send is that trial is simply the final wait to be endured before the accused can be rent asunder. The message we send is that convictions are an ultimate imperative. In an adversarial system such as ours, it is hard to fathom how we can expect to prevail over the “State” when we allow them to start the race at the finish line. That is the difference between unless and until.
We are the purveyors of the presumption of innocence. We are its stewards. We have to do better.
We are unless…until we’re not.
[i] Tex. Code Crim. Proc. art. 38.03; Tex. Pen. Code §2.01
[ii] M., Emelda (2011). Difference Between Until and Unless. Retrieved from http://www.differencebetween.net/language/grammar-language/difference-between-until-and-unless/
[iii] Unless vs. Until. Retrieved from http://www.diffen.com/difference/Unless_vs_Until
[iv] The Rule of Expectations—The Impact of Suggestion. Retrieved from http://westsidetoastmasters.com/resources/laws_persuasion/chap10.html.
[v] Michael, R.B., Garry, M., Kirsch, I. (2012). Suggestion, Cognition, and Behavior. Current Directions in Psychological Science, 21(3) 151-156.
[vi] Id. (citing Kirsch, I. (1997). Response expectancy theory and application: A decennial review. Applied & Preventive Psychology, 6, 69-79. Doi: 10.1016/S0962-1849(05)80012-5; Kirsch, I. (2004). Conditioning, expectancy, and the placebo effect: Comment on Stewart-Williams and Podd (2004). Psychological Bulletin, 130, 341-343. Doi: 10.1037/0033-2909.130.2.341)
[vii] Id. (citing Stewart-Williams, S., & Podd, J. (2004). The placebo effect: Dissolving the expectancy versus conditioning debate. Psychological Bulletin, 130, 324-340. Doi: 10.1037/0033-2909.130.2.341)
[xi] Madon, S., Guyll, M., Spoth, R., Willard, J. (2004). Self-Fulfilling Prophecies: the Synergistic Accumulative Effect of Parents’ Beliefs on Children’s Drinking Behavior. Psychological Science, Vol. 15—No. 12, 837-845
[xii] The Princess Bride. Dir. Rob Reiner. Twentieth Century Fox Film Corporation, et al, 1987. Film.
[xiii] Randolph v. State, 2008 Tex. App. LEXIS 9192, No. 01-08-00266-CR, *1 (Tex. App.—Houston [1st Dist.] 2008, unpub.)
[xiv] Id. at *8
[xv] Walters v. State, 247 S.W.3d 204, 210 (Tex. Crim. App. 2007); Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998); Hill v. State, 955 S.W.2d 96, 100 (Tex. Crim. App. 1997); Mays v. State, 726 S.W.2d 937, 951 (Tex. Crim. App. 1986); Wiseman v. State, 223 S.W.3d 45, 50 (Tex .App.—Houston [1st Dist.] 2006, pet ref’d); Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005); Wynn v. State, 219 S.W.3d 54, 59 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
[xvi] See Randolph, 2008 Tex. App. at *6.
[xvii] Id. at *8
Chess Corner: Winter 2015-2016
by Tyler Flood, HCCLA president-elect and attorney
There is a French Proverb that says “You Cannot play at Chess if you are kind-hearted.” Don’t let fear stand in the way of success.
You have to have the fighting spirit. You have to force moves and take chances…
This job we signed up for requires a deep down passion for righting the wrongs we see happening every day in the criminal justice system. If we don’t fight to protect our rights, who will? Nobody. We are the rebellion against the First Order. Grab your light saber and go to battle.
Recently, a young-ish trial lawyer found himself in a tough spot that required him to do some soul searching. He was in trial when the State’s key officer, who was 3 months pregnant, was rushed to the hospital due to complications with the baby. She had miscarried before and she thought it was happening again. The witness became unavailable after the jury was sworn. The Court did not declare a mistrial sua sponte but instead urged the defense lawyer to request a mistrial on his own. A difficult position to be put in. The lawyer had the night to weigh his options. The Court and the State were putting a tremendous amount of pressure on the defense lawyer. The State even made terrible comments to the lawyer, among other things, threatening him that they would never agree to any continuances from him ever again in the future for anything and they tried to guilt him into putting the police officer’s interests before his client’s.
Being a reasonable and compassionate man, the lawyer was deeply torn. As much as he wanted to help the officer with her medical situation he decided that the right thing to do would be to remain loyal to his client. He politely and sincerely conveyed his sympathy to the Court and to the State but told them he just could not agree to a mistrial and would not be requesting one. The Court granted a continuance request from the State from Wednesday to Friday to see if the officer would be available so the trial could proceed. The officer saved the baby and recovered well enough to appear on Friday and testify. At 9:30 pm on that Friday night, the jury came back with a Not Guilty verdict.
Being a trial attorney is not for the weak at heart. It takes strength and courage to do this job the right way. We often find ourselves in frightening situations and we have to hold our chin up and face our fears head on. Sometimes we are put in positions where there is great pressure to compromise our ethics and our integrity. These are the moments that define who we are. Our decisions set examples for lawyers young and old. In the face of adversity, be strong and stand up for what is right. You can make lasting impressions on others that will empower them to be strong when the time comes. Most importantly, do the hard things and fight the tough battles for the one who matters the most…You!
The only real lawyers are trial lawyers, and trial lawyers try cases to juries…Clarence Darrow.
My Client Says He is Innocent But He Wants to Take a Deal to Get Out of Jail, What Do I Do?
by JoAnne Musick, HCCLA President and lawyer
So, your client who maintains his innocence wants to “take a deal” in order to get out of jail. Can you allow your client to enter a plea of guilty, even though he maintains his innocence? Let’s start with the Texas Disciplinary Rules of Professional Conduct.
Rule 1.01(b)(1): A lawyer shall not neglect a matter entrusted to him or frequently fail to carry out completely the obligations that the lawyer owes the client.
Rule 1.02: A lawyer shall abide by a client’s decisions in a criminal case, after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.
Rule 1.02 Comment 2: A lawyer shall disclose offers to settle (proposed plea bargain offers in criminal cases).
Rule 1.03: A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer shall explain a matter to a client so that the client can make informed decisions about representation.
First, you have an obligation and a duty to your client. If the prosecutor has made an offer, you must relay that offer to your client. You must also explain the offer sufficiently for your client to determine whether or not to proceed to trial or accept a plea offer. It is imperative that you not only convey offers and discuss whether to proceed to trial but also consult with the client the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted.
Secondly, you must remember that it is the client who decides what plea is to be entered. He may plead guilty or not guilty. That decision is his and his alone. You should advise him as to the consequences of his plea, but the decision to enter a plea rests solely with the informed client.
Outside the Rules, you must consider the plea itself. Remember, the client maintains his innocence, yet he wishes to enter a guilty plea and take advantage of a plea-bargain. While a judge does not have to accept any plea of guilty (thereby forcing a trial wherein the client could plead guilty to the jury), the judge can accept a plea even where the defendant asserts innocence.
The Supreme Court held in North Carolina v. Alford, 400 U.S. 25 (1970) that there is no constitutional bar preventing a judge from accepting a plea where a defendant maintains his innocence while admitting that the prosecution has enough evidence to convince a jury beyond a reasonable doubt that he is guilty. Thus, his plea stands regardless of his stance that he is innocent. This is typically referred to as an “Alford plea.”
So to answer our original question, the answer is simply you can most likely allow your client to enter a plea of guilty (to a judge or jury) despite the fact he maintains his innocence. Once the client is fully informed, the decision of the plea to enter (guilty or not guilty) rests solely with the client.
by Rick Oliver, HCCLA member and attorney
“Back in the day I was a lifeguard, if you can believe that.”
After a hesitant pause, she said, “Not as easy as it looks, is it?”
He shrugged to himself. His eyes drifted up and as they did the phone slid down his chin a bit. He could have heard her if she were talking. But she wasn’t; she was waiting for him. He took a deep breath and gently probed the darkness. It was too complete to discern the shapes on the wall, but he wasn’t scared. It was his office, after all; had been for the last twenty years. He could smell his smell in it. Everything he touched was warm and familiar. He could move confidently in the darkness without offending a shin. This place symbolized his place in the world. Every stick and scrap was evidence of or a testament to the career he’d conjured virtually out of nothing. Still, he knew, pride isn’t enough to light what’s dark.
His was the same sort of crap you see adorning the walls of nearly every defense attorney’s office. Certificates of accomplishment, laurels earned and laurels bought, tokens of appreciation, historical hubris, and the scalps of fallen enemies. He knew what they were. He knew they were there. He’d spent what felt like a lifetime among these baubles. He knew he would recognize them immediately, if only the lights were on. He sighed and mumbled, “I can only see it when I close my eyes.”
Gently, she said, “What was that, John?”
He shook his head like he was warding off a fly, readjusted the phone and said, “Nothing.”
“Did you ever save anyone?”
John’s eyes were drawn to the black corner where the inky dark loomed heavy and substantial. His filing cabinets were a mausoleum of old voices and the stories that had brought them here. Of course he had saved some of them. Some he saved from themselves. Others he plucked from circumstance and the conclusion it suggested. For those victimized at the altar of leverage he had found the fulcrum and turned the tide. Too many had been spared the wrath of political guile masquerading as adversarial zeal. Of course, some of them were just as guilty as Hell. He saved some of them, too. But, he hadn’t been able to save them all. There were just too many.
“When you were a lifeguard, I mean.”
John chuckled quietly and said, “Once. But mostly, I worked on my tan. I remember by the end of that summer the sun had bleached the hair on my arms and legs white.” Instinctively, he reached for his forearm and could remember the soft blonde fuzz of that summer despite the coarse salt and pepper of this winter. “My Mother used to boast that the contrast of those tiny white hairs against golden skin made me seem almost angelic.”
“I’m sure it was just a trick of the light.”
His laugh was almost a foreign sound. He said, “No doubt.”
“Tell me about the one you saved.”
He took a deep breath and leaned his chair back, anticipating the soft nasally squeal of rusty spring. He pressed his head into the rough leather and felt the cold knot of tension that always seemed to play at the base of his skull.
“You ever notice how so much of life is metaphor?”
“I have to be honest,” she said. “More often I find it to be allegorical.”
John cleared his throat and said, “I suspect secular dogma is mostly to blame, for that.”
“How do you figure,” she asked.
“You want to talk about that or you want to talk about the pool?”
“Good point,” she said. “Let’s talk about John the Life-Saver.”
“That’s probably a bit ambitious, but I’ll tell you anyway. I was in my stand, rigidly observing that 10/20 principle they drilled into your head back then.”
“Ten seconds to scan your area; twenty seconds to get to and rescue anyone in it?”
“Very good,” John said. “She was across the pool from me.”
“Tell me about her, if you remember.”
“She was Hispanic. She was there with a few other women and a gaggle of kids who all bore at least the slightest resemblance to her. At the time she seemed old, to me. Looking back, I assume she was in her mid-thirties; a baby. Her hair was twisted with one of those thick green rubber bands they use to package broccoli at the grocery store. It didn’t matter, though. She had the kind of hair whose vibrant simplicity makes other women jealous.”
“The rubber band is kind of an obscure thing to remember. Why do you think you focused on that?”
“I was scanning my area when she eased into the pool. You could tell right away the water made her nervous. The kids all hollered and cajoled and the adults even clapped as she went in. The kind of thing that would piss you off, if they weren’t her family. Some of the kids splashed her and you could tell she didn’t like that; not because of what the water could do, but because of what it was. I don’t think any of those kids could understand her fear. I know I didn’t, then. Anyway, she put on a brave face and started bouncing up and down a little. But, she was careful not to let her head go under. She was white-knuckling the concrete with one hand and waving the other around in circles under the surface—a pitiful attempt to float. That was the start of it. She would bounce a few times and then float into deeper water, all the time testing her footing. Bounce and float, bounce and float. Check for ground. Deeper and deeper. By then no one was paying attention to her anymore.”
“Except for you,” she said.
In the dark, John shook his head. He looked up at the ceiling and slowly exhaled a shuddering breath. “Not me either,” he said.
“On my next pass I got to the spot I’d last seen her but she was gone. It took me a second or two to realize she’d gone under. Got too deep and lost her grip on the firmament, I suppose. I hadn’t realized how short she was until she went under. All I could see were two little hands reaching heavenward, either side of that beautiful brown hair.”
“She didn’t panic when she went under?”
“Maybe that’s why I didn’t keep as good an eye on her as I maybe should have. I figured if she got into trouble she’d start thrashing about and get everybody’s attention. Surely, I thought, her family would go in after her and she’d be out of the pool before I could get out of my stand. But, that’s not how it happened. I guess not everybody drowns the same way.”
“Would it be easier if everyone did?”
“I think you’re asking a tougher question than you realize.”
After a pause she asked, “Did she make it?”
“I don’t remember blowing my whistle but I can still feel those three sharp blasts in my chest and in my bones, silencing the din like gunshots as I fell from the stand like a stone in to water. I hunched over my rescue tube and swam to her as fast as my arms would carry me. When I got there I jabbed an arm in the water and grabbed ahold of her just above the spot where that thick rubber band was binding her hair.”
“So,” she asked.
“I pulled her up and she coughed a gout of urine-laced pool water, but the important thing is she was coughing. Anyone with kids will tell you that’s a good sign.”
“So, you pulled her up by her hair and saved her?”
“My Father always told me to never confuse safety and comfort. I figure she learned that lesson the hard way, that day.”
When she didn’t respond John stood up with the phone. He stepped around the open desk drawer and walked to where he knew the sideboard was. He jiggled the stopper and set it next to the decanter. It rolled on its side and settled with a pleasant clink. He groped for a high ball and when he got it added three fingers of Scotch. It was reduced to a bony finger by the time he regained his seat.
“Can I ask you something, John?”
“What was it that reminded you of your lifeguarding days?”
John set the high ball atop his desk and leaned his chair back again. Slowly, he let his head roll forward and loll side to side, trying to work out a kink. He said, “Before you could get hired as a lifeguard you had to pass a couple tests; prove you were a strong enough swimmer for the job. The first was easy enough. It was a timed five hundred meter swim. I hadn’t yet learned how to swim with my head under water, but they gave us plenty of time to finish and I did it without too much trouble.”
“What was the other?”
John leaned forward and put his elbow on the desk. He exhaled a breath that came out in a dry fetid rush. He swallowed the last of his drink. He said, “There was a separate pool by the diving boards where the water was deepest; so deep you couldn’t make out the bottom. They took us over there and we saw something odd. Cinder blocks were spaced out along the edge of the pool; one for every applicant. They didn’t mention the blocks and we didn’t ask. We got in the water and they told us all they wanted us to do was tread water. We started and did that for what seemed like forever. It wasn’t a problem for any one of us and I think that made us all a bit cocky. I remember a joke or two coming at the expense of the strength of the application process.”
“You forgot about the blocks.”
“We did. After a while we thought surely they must be satisfied. They told us to swim to the side of the pool. We thought it was over and we’d passed their test. It wasn’t and we hadn’t. They told us to each grab a cinder block and wade back out to the center. Once we were out there a stop watch was produced. They told us to hold the cinder blocks above our heads and tread water until they told us to stop. If we dropped the block we were out.”
“You passed the test.”
John nodded and in his solace a single tear tracked his cheek and settled with a mournful tickle along the base of his jaw. “I was a young man, then. The cinder block weighed fifteen, maybe twenty pounds at the most. At the start, I held it up in one hand and with a smirk on my face. Obviously, I was showing my ass. But, pretty soon it felt as though I was holding a goddamn elephant above my head and I wasn’t smirking anymore. My arms and legs and lungs were burning like fire, but I was determined not to let that cinder block beat me. I wanted to impress the ones who were there who’d already passed the test. And I wanted to wipe the smug look of satisfaction off the face of the man holding that stupid stop watch, too. Pretty soon two of my fellow applicants dropped their blocks and kicked for the side where they clung to it, defeated. Still, I kept kicking and thrashing. In the beginning I was high and strong and able to keep my chin clear of the water. As time passed I could feel myself beginning to sink. It was such an odd sensation feeling your strength flag in such tiny but meaningful increments.”
“What do you mean?”
“I was drowning; that’s what I mean. I was just doing it slowly and against my will. I realized it when I felt the water on my cheeks. It tickled a little and forced me to blow air out my nose so I could breath. I had to kick hard every so often to get clear of the water so I could take a full breath. The water didn’t care. It was ready to accept me dead or alive; docile or thrashing. And then it was tickling my earlobes. I could barely force a kick hard enough to clear the water for air. Still, I kept kicking and sinking. When it started to sting my eyes I cried out of frustration. I set my jaw and stared blurry lasers at the man counting the time. I believe I would have gone right down to the bottom holding that block over my head, if it had come to that.”
“But it didn’t.”
“What do you think gave you the strength to endure?”
“I knew I could drop the block.”
“What’s so different now, John?”
John lowered his head until it was touching the desktop. He whispered, “I can’t drop the block. Not anymore. No matter how heavy it gets or how far under I go. There’s no rest and no break. No stop watch and no end. I can only see one way to get out from under it, anymore.” He started to cry; silent and wracking sobs. Blindly, he reached inside the open desk drawer and gripped his pistol. Like everything else in his office it felt comfortable and familiar. It felt easy and light, and with it the promise of a dream. With his eyes closed, he could see it perfectly.
He clamped his mouth shut to stifle a sob and didn’t trust himself to speak. He thought about ending the call. He wondered whether it had been a mistake to begin with.
“John? Are you still with me?”
John was able to manage a confirmatory squawk.
“Get up and turn on the lights, John.” The hardened edge to her palliative tone caught him off guard. He looked up and wondered through tears how she knew he was sitting in darkness.
“How did you know the lights were off?”
“Turn them on, John.”
Confused, but obedient, John pushed himself back from his desk and went to the wall switch. Light bathed his office and he winced. As his eyes adjusted the frames on the walls returned slowly to focus.
“The block is your life and it’s heavy because it’s meaningful. You don’t have to drop it, John. You don’t have to drop the block and you don’t have to carry it alone. Are the lights on?”
Tetchily, John said, “It’s my office. I know what’s here.”
“I think you’ve forgotten, John. Look around. Look around and remember what all you’ve accomplished; who all you’ve helped. Take things down or pick them up and dust them off; examine the details. Re-experience them, John. Those things add weight to the block, too. And those are things you shouldn’t want to let go of. You’re lonely; not alone. When you lose contact with the faces and the places and the love, of course it’s just you holding a cinder block overhead in a big dirty pool of hungry water. Once you realize that, the block will start to feel lighter and lighter. You may even feel strong enough to show your ass, a little.”
He hung on every word, trying not to fall victim to what he so often accused others of: not listening. He wanted her help. That’s why he had called. He breathed deep and steadying breaths. He looked around his office. Somehow, it felt both familiar and new. He saw faces and could hear their voices. It wasn’t all laughter. There was pain, too. But it filled him up and for the first time he began to feel grounded and whole. Emotion welled up and he wondered how he could have ever considered escape. He moved from picture to picture; bauble to bauble. He had no idea how much time had passed; another welcome feeling. He realized she was still on the other end, waiting for him to come back.
For the first time in as long a time as he could remember, he smiled a smile of genuine appreciation. Not just for her voice, but for the voices she helped awaken. “Thank you, Hope.”
“I’m glad you called, John.”
John started to drop the phone but stopped. “Hope?”
“I’m still here, John.”
“That’s not your real name, is it?”
He smiled as she giggled from the other end. “Have a good night, John.”
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