By Joseph W. Varela
2022, Vol 2
From The Defender – Vol 2, 2022
Strategy: Force Disparity
My Client Says He is Innocent But He Wants to Plea
TOP10 March 18, 2016
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.
Practice Pointer: Free Legal Resources
Free Legal Resources for the Attorney
by Thuy Le
A simple tablet with a few apps can help an attorney walk into a courtroom with confidence knowing that they have the facts of their client’s case and the law at their fingertips. Following are the top FREE apps that are available for both iOS and Android that can help keep an attorney organized and prepared for court. I’ve excluded the free apps that require a subscription (e.g. Westlaw/Lexis).
Dropbox:
One of the easiest ways to access your clients’ file in court is not to carry around a folder but to have it uploaded to Dropbox. With Dropbox, you can upload pictures, audio files, and documents and access them anywhere in the world. Want to remind the prosecutor that your client’s 911 call is completely different than what is written in the offense report? You can link the file to an email to the prosecutor for them to listen or you can pull up the relevant portion on your tablet and show them in court. Dropbox allows you to link large files and email the link. This is perfect for files that are too large to attach to an email. If you want added security, I suggest using an encryption service for your files before upload.
Evernote:
This award-winning app allows you to capture recordings, notes, and website links and organizes everything into a searchable database. This is perfect for when you’re doing research and want to keep everything organized. Evernote at its most basic allows you to write down notes and reminders and then lets you later pull it up in a searchable database. However, some of the most useful features of Evernote is the email forwarding, the photo capture, and the geocache function. Email forwarding allows you to forward your emails from one of your server accounts to Evernote to keep it organized. For example, your client Keanu Reeves is sending you emails asking about his court date for his aggravated assault charge. Instead of keeping track of the emails in your email server, you can forward it to Evernote and it’ll organize all your emails, documents, invoices, and John Wick pictures into a searchable Keanu Reeves file. The photo capture feature allows you to turn pictures into documents and converts business cards into a format that you can later search. The geocache function allows you to pull up notes based on where you created the note. Can’t remember which file or memo you were working on in Austin? Pull up the geocache location function on Evernote and it’ll pull up all the notes created in Austin. Evernote will also let you dictate your notes for those who can’t or don’t like to type. Evernote is perfect in keeping everything organized by keywords, dates, or location. Best of all, you can still access your notes, emails, and files when offline.
Fastcase/Casemaker:
These are two different free apps that pulls up caselaw. Casemaker is available for free for Texas attorneys. Fastcase uses a boolean search field to pull up caselaw by search criteria. Does the judge during trial want caselaw about whether an officer can enter a home where he receives a noise complaint? Enter those search terms into the search bar and it’ll pull up the cases most relevant to the search terms. You can also sort the results by most relevant or date or even specific courts. I’ve used it to find specific rulings by certain judges to see how likely they would rule on a certain issue. Fastcase will highlight the search terms so you can scan to see if the case is relevant. Of course the more specific the search terms, the better the results.
LawStack:
This free reference allows you to access the U.S. Constitution, the Federal Rules of Procedure and Evidence, the Texas Penal Code, the Texas Code of Criminal Procedure and about a hundred other codes, statutes, and documents statewide and federally. This database is searchable and is most helpful when you can’t quite remember the specific sections of the code. Want to know how the issue of self defense is raised? You can type in “self defense” in the search bar and it will pull up all the sections in the Texas penal code, Texas code of criminal procedure and any other database you specify to search for those teams. This has been a quick way for me to look up the law without having to carry around a codebook or read one of the outdated prosecutor’s codebook left in the courtroom.
ISCOTUSNOW:
The Oyez Project has teamed up with the Chicago-Kent College of Law to create this app to help you understand the Supreme Court and its rulings. This app has the most recent Supreme Court rulings and visually organizes it in a way that’s easy to understand. Pictures of the justices who voted for or against a case, who wrote the majority and minority opinions, and who joined whom in the opinions are laid out graphically so it’s easy to follow. There’s also the transcript and the briefs available for the cases. But the best feature is the audio of the oral arguments for the cases. The audio can be downloaded or streamed and is laid out Twitter-like with the Justices’ and attorneys’ pictures next to the transcript of the argument. The app also tells you what cases are pending before SCOTUS and the constitutional arguments made the parties. The search bar allows you to quickly pull up Supreme Court cases based on topic. This is useful if you can’t remember, but want to find the case, that dealt with whether one has an expectation of privacy in a phone booth. I’ve wasted hours reading and listening to the audio of the arguments on the most recent major Supreme Court rulings. Overall, one of the best apps in helping you understand and learn about the Supreme Court.
Controlling Chaos
Practice Pointer: Controlling Chaos
by JoAnne Musick
If your practice is like mine, chaos can easily take over. Each client’s question is the most important question in the world…to him. Sure it’s important to you as well, from a representation perspective, but you must manage the chaos before it takes over.
-
Set Priorities
Do you really need to read every email as it comes in? Not likely. Turn off email alerts on your phone! Every alert draws your attention away from the task at hand. Minimize the alerts and minimize the distractions. Email can be a priority, but set a time for it to be the priority rather than all day and all night.
-
Calendar
Follow a calendar: paper or electronic. Make sure every appointment and appearance is recorded. Schedule time for emails. Schedule time for phone calls. Schedule time for research and case review. The more you schedule the more you realize just how busy you are and how productive you can be.
-
Electronic Files?
Paper is just fine. Create a file for every client. Keep track of everything you do. Make notes about conversations with prosecutors and clients. Keep a running list of things to do. Follow a checklist to make sure you aren’t forgetting something. Do you need a paperless office? Maybe, maybe not. If you have time, scan everything. Get a Dropbox or similar online storage and place only current files in it. Then you will have access from your smartphone or tablet anywhere, anytime. Once a file is closed, consider scanning its entire contents for storage. Electronic storage is must easier than warehouse space; just make sure you have adequate backup systems in place so you don’t lose your electronic file.
-
Face the Music
Clients get mad. Clients get aggravated. Clients blame you when they don’t get the plea offer they want. Instead of becoming defensive or avoiding, call the client or schedule a meeting. Review the process and options. Before speaking though, give the client an opportunity to talk or even vent. Sometimes they just want to be heard.
-
Make a List
Keeping a “to do” list is simple and effective. It can be written or electronic. I’m currently using Evernote to keep a master list of general items plus categorized lists for specific projects. Having a list helps you set goals for getting tasks done and helps you visualize the priorities. Anything not done today gets done tomorrow!
Basic Traffic Stop Reconstruction
Practice Pointer: Basic Traffic Stop Reconstruction
by: Tate Williams
Justice Ginsburg’s April 21, 2015, opinion for the majority Rodriguez v. the United States immediately states, “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.[i]
Whether a traffic stop takes too long, absent reasonable suspicion of another crime, is suddenly of paramount importance when other evidence is discovered as a result of the detention. This is not every case, but it is many cases where, as in Rodriguez, a stop is prolonged for the arrival of a narcotics detector canine or some other purpose.
Litigating this issue requires not only a familiarity with 4th Amendment jurisprudence, but the ability of the defense lawyer to re-construct and present the encounter between the accused and law enforcement to the Court. That exercise is one that is easily learned and will improve the attorney’s practice in all cases.
Gathering the Evidence
Information commonly available in Harris County criminal cases, if obtained, allows the counsel, a judge and a jury to begin to evaluate the reasonableness of the detention. In addition to any officer’s report, the three most frequently available sources of evidence in local traffic stops are:
- Mobile Data Terminal Logs,
- In-Car Videos,
- Dispatch Audio.
Obtaining these materials requires diligence shortly after the arrest as many agencies only preserved them for a limited period of time. Sample subpoenas are on the HCCLA site. One may also make a Michael Morton Act request, but it is frequently better to know what they contain before you alert the prosecution to their contents.
If the agency moves to quash a subpoena, then one might determine it necessary to file a written motion stating exactly what is sought, what it is expected to show, why it is relevant, and cite the statutes and the accused’s constitutional rights to confrontation, counsel, and to present a defense.
If an agency denies the existence of the information, verification may be required via a subpoena, Public Information Act, or other form of request for information related to that denial:
The maintenance records on the relevant patrol vehicle;
- A complete list of all vehicles with recording equipment;
- A complete list of officers with body cameras;
- Video use and preservation policies.
The General Orders, Standard Operating Procedures, and lists of patrol units with recording equipment are items that HCCLA has previously obtained in admissible form and shared in the member’s section of the web site and may do so again in the future.
The Types of Evidence
Police Reports are generally not admissible as evidence in criminal cases. They may be used for impeachment purposes or to refresh an officer’s memory, but almost no local judge will allow it to be entered into the record. The following materials, though, may be obtained and offered pursuant to the business records exception.[ii]
MDT logs (sometimes referred to as call slips) are useful because their time stamps are reflected to the second as to when data was sent and received. After one learns how to read them, they are a reliable source of when the stop was made, when the officer requested additional information about client’s vehicle or criminal history, what else may have been communicated and when it was completed.
Any video recording should be watched and transcribed. Personally transcribing it word for word allows the attorney to learn the video. Time stamps should be made every few lines and at key events for later reference. Non-verbal conduct may be placed into parentheticals.
Dispatch tapes are also helpful but may be difficult to understand. They often contain statements from officers not contained in the MDT logs or reports such as a request for assistance by specialized units. Unfortunately, they do not contain time stamps but can be compared against the MDT logs to determine the identities of the speakers and relative timing of events.
Using the Evidence
Timelines are often helpful for case investigation and presentation to place consistent or conflicting evidence into an easily digestible format. Each of these discovery materials may be placed into their own timeline or combined into one indicating the source of the event.
Some lawyers construct timelines using columns on flip charts or chalkboards, spreadsheets in Microsoft Excel, or even foam story boards with actual still shots, document shots, audio clips etc., or a combination. The preference is personal may depend on whether it is in preparation or for use at trial with witnesses, pleadings, or argument.
However presented, it has to tell the tale of the stop accurately and effectively. These materials may sometimes be offered into evidence as a shorthand rendition of testimony if presented through witnesses or possibly as a summary of voluminous records.
Regardless, beginning to construct a with the paper materials to (report and MDT logs) allows one to quickly construct a skeletal timeline that one can more easily place events from the recordings into as they are reviewed in preparation or before the Court.
The purpose of the timeline is to show what actually happened. However, to illustrate unreasonableness for a judge or a jury it is sometimes necessary to show what should have happened.
Setting the Standard
In much criminal or civil litigation there is an appropriate standard of care against which a party’s conduct or a witness’s testimony is measured. Police conduct is no different.
Whether required by statute or the standards of an accrediting body such as CALEA (which both the Houston Police Department and Harris County Sheriff’s Office aspire to adhere to) almost every law enforcement agency has enacted “General Orders” or “Standard Operating Procedures.” These are written directives by which they operate internally and against which they evaluate their own performance. In the Houston Police Department, these are formulated and promulgated by the Inspections Division’s Policy Development Unit (PDU).[iii] The Sheriff’s Department has a similar process.
Traffic stops and other investigations are often governed by these policies and may articulate standards against which the officer in a particular case should be judged. They should be reviewed to at least understand how the officer is trained to perform his duties and respect the rights of citizens. They frequently include not only what an officer is required to do, but in what order and reference other relevant policies.
These policies may be used to make a rough outline as to how an investigation should proceed for reference to what the evidence actually shows. They can be placed into the timeline to show what should have occurred and actually did or did not. If there is a violation of policy or a variance between what should have happened and what did happen, it could be argued that this is evidence of unreasonableness in prolonging the detention.
The Exercise is Good for You
Not every detention is unreasonable and not every investigation will yield evidence supporting suppression. But a large portion of criminal cases result from traffic stops and reconstruction of events with reference to source materials is easy to perform with materials easily and readily available. Once mastered, it is a skill that easily translates to any other type of case.
Knowing what the evidence is and isn’t is the foundation of any representation and the lawyer’s ability to properly advise a client.
If for no other reason, timeline reconstruction is valuable because it forces the lawyer to review the evidence in detail and reduce it to a format that can be easily referenced with the client, investigators, and at trial.
[i] United States v. Rodriguez, No. 13-9972, slip. op. at 1 (April 21, 2015) citing Illinois v. Caballes, 543 U. S. 405 (2005).
[ii] See Tex. R. Evid. 613, 803(6), (8)(B), and 902(10).
[iii] HPD Command Overview Manual, 2014, http://www.houstontx.gov/police/department_reports/command_overview/Command_Overview_Manual_2014.pdf
Cross Exam by Terry MacCarthy
Learn Cross Examination from the Master, Terry MacCarthy — in the privacy of your home, car, or office.
“There are absolutely no judges and very few lawyers whom I respect so much. I have long been an admirer and a fan of Terry MacCarthy. I think that all of the things that can be said about a lawyer would not be enough to say about Terry MacCarthy.” — Richard “Racehorse” Haynes
Purchase and Download Your Own Copy Here
If you try cases, you must master cross examination!
Want vs. Need in Solo IT Set-Up
I am a luddite, defined as a person who opposes technology. I am not opposed to all things, just mostly to the need to obsess over the latest gadget or app [such as a “Fitbit” for instance; do you really need a wrist band to tell you that you are getting fat and lazy? That is what spouses and sarcastic friends are for! The zombie apps come to mind, although they are at least funny.] I liked the wheel, for example. It seemed a good idea, like baked bread, and dogs. So, I believe I am uniquely suited to help you young smarty-pants phone toting new lawyers the difference between what you need, and what you want when it comes to starting up your IT suite. Here goes!
Let me start with an example – you want a BMW M3 series. You need a good reliable car, or a bus pass. See the difference?
For a young solo starting out, who wants to work within the incredibly debt-plagued, shoe-string, ramen-eating existence you all appear to inhabit, here is what you want vs. what you need in your home-office to help you get started:
- You want an Ipad with Skype. You need a PC laptop or desktop with a decent monitor, and bundled with MS Office.
- You want a multi-function scanner-printer-fax machine that will communicate with the International Space Station and make espresso. You need a good laser jet printer like an HP1022, one that functions reliably and flawlessly and does not cost so much for toner, and an e-fax account that goes to your email.
- You want the IPhone 6. You need a good reliable phone that can give you some of the more useful apps like One Note, Dragon Dictation, or Fast Case.
- You want cloud storage. You need a good portable hard-drive with a huge amount of storage for backing up your inevitable lost data or laptop failure.
- You want a sophisticated online management solution for your practice, like Clio or Abacus. You need Outlook, which by the way comes with MS Office. It has contacts for your client info, task manager for keeping you on top of your deadlines and projects, journal and notes for detailed online memos or tracking your billing activities, a calendar function that frankly, despite all the hype, no one has actually beaten, and a mail management system that, while it is a bit of a pain, can do some pretty cool things in terms of helping organize your research and make your day flow smoothly.
- You want Westlaw. You need to learn to use the free search engine provided by the State Bar or Google Scholar advanced search, or, god forbid, use the free county law library or the one at the local law school down the street, and make time to go there.
Total cost for what you want – 4k. For what you need? About $700.00. Want vs. Need.
Everyone clear now?
Practice Pointer: Reinforce Information for Your Client
Client communication is key! You must communicate with your client regularly so that they will know what is happening and so that you can answer any questions they have. Because criminal lawyers spend a great deal of time communicating in person (with frequent court settings, visits at the jail, telephone calls, etc.) you end up sharing a great deal of information verbally with your clients. Often, clients become confused about what you have relayed or they simply cannot remember it all due to the stress of the situation and the volume of information they must process. The question becomes how do you reinforce the information for your client?
Simply, you do so with written correspondence. It is important to provide your client with as much information as possible so that your client can make appropriate and informed choices about his or her case. Think about all the information you share with your client in a typical case: the offense as charged, the punishment range, possible enhancements, possible defenses, summaries of evidence, witness information, collateral consequences (ALR, occupational licenses, ability to seal or expunge, sex offender conditions, immigration consequences, family consequences, employment consequences, firearm possession rules, and so much more). How can your client remember and process all of this information following that 30 minute jail visit? How can your client explain some of these to family when they seek family advice on how to proceed?
Provide your client with written guidelines. Cheat sheets if you will. You can create a general “how to” page on getting an occupational license and/or reinstating a suspended license. You can create a general “informational” page on the ability to seal or expunge records. You can create a general “how to protect attorney-client privileged information” guideline to warn your client about talking to others, especially in the jail. There are many general information categories that apply. Create “cheat sheets” or general information sheets to hand out to your clients to reinforce some of this common information. Think of it like FAQs. You know the questions clients routinely ask you. Start a list, create a handout or two, and get these into your client’s hands.
Additionally, when you convey important information about your client’s case directly to him or her, follow that up with a written letter that summarizes your conversation. Yes, it takes time, but it’s about helping a client. When there is a plea bargain on the table and a timeline for accepting or rejecting it, send a letter to your client reminding him or her. When you need a list of witnesses for guilt/innocence or punishment/mitigation, send a letter reminding your client to get that information to you timely. And, most importantly, when your client disregards your advice, send a letter stating what your advice is and that he or she has declined to follow that advice which could result in certain consequences. This is about keeping the client informed and making sure you have a file of what you have or have not shared with your client.
Add correspondence to your case “checklist” and make sure you are providing information to your client. The correspondence might even include a “welcome letter” and a “closure letter”. Send your client a welcome letter upon representation, something that spells out your scope of representation, how they can best contact you, your typical schedule for returning calls or letters. Send a follow up when you have the details of the charge explaining the offense and its range of punishment. Send plea offers. And finally send a closure letter to let them know where to go from here, i.e. when they might be eligible to seal or non-disclose their records, how to proceed on probation, what to do if they encounter problems or have questions, and thank them for entrusting you.
Anyway, you get the point. There are many things you can do to reinforce the information you provide to your client. Just start with the basics and get in the habit of providing more information to your client.
Practice Pointer: Eyewitness Effects
By Mark Bennett
Scientific research and practical experience have shown that eyewitness testimony is often unreliable and a leading factor in wrongful convictions. Still, jurors tend to put a great deal of faith in the testimony of an eyewitness.
Eyewitness testimony can go bad because of bias, because of flawed memory, or because of flawed perception. We all think that we see things correctly and remember them accurately. The Internet recently gave us a tool to demonstrate to jurors that we are our perception of very simple things, such as the color of a dress, can be mistaken.
Some people see the dress in this picture as blue and black. Some see it as white and gold. Put the image up on the screen (test it first to make sure that the effect works on the courthouse equipment) and your jurors will disagree on what color it is. (An informal Buzzfeed poll found that 70% of people saw it as white and gold, rather than blue and black. I got about the same results at home.)
Use this to demonstrate that people of good faith, with no biases, can perceive things wrong and believe beyond any doubt that they are correct. Also use it to make the point that how sure we are about things is not a reflection about how correct we are: those who are 100% sure that the dress is white and gold are 100% wrong.
Practice Pointer: Ethical 8
By: Jason Truitt
- Don’t refuse to accept a plea because your client hasn’t finished paying you—your business model should not cost your client her liberty and it most likely violates the Texas Disciplinary Rules of Professional Conduct. A few hundred dollars isn’t worth a grievance;
- Corollary to No. 1: If the representation has concluded and the client has defaulted on payments—forgive the debt. A few hundred dollars isn’t worth a grievance;
- No snitching; [i.e. don’t reveal your colleagues confidences]
- Don’t ex parte a judge;
- If you see unethical conduct by a lawyer or a judge, confront it appropriately—this may mean throwing bombs, or it may mean showing some tact, but it requires action;
- Don’t represent co-defendants;
- Read the charge and punishment ranges to your client;
- Don’t give immigration advice unless you know what you’re talking about; most of all never advise that a plea “won’t affect your status at all” in order to get the plea done.
