Only Results Matter

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As Rick James said, “cocaine’s a helluva drug.” Federal crack-cocaine defendants can tell you it is much more dangerous than even Rick knows.

Crack-cocaine is the most harshly treated drug in the Federal criminal system. However, the Fair Sentencing Act of 2010Cocaine.jpg modified the super-unjust 100-1 crack-to-powder ratio for Federal guidelines and mandatory minimum sentencing purposes. Under the old law, drafted in the 80s during the so-called “crack cocaine epidemic,” the drug known as the cheap inner-city minority drug was punished by law 100 times more harshly than powder cocaine, known as a white, upscale drug. So, a person possessing or delivering 5 grams of crack-cocaine would face the same 5 year mandatory minimum sentence as a defendant possessing or delivering 500 grams of powder cocaine.

However, the new law reduces the crack-to-powder ratio from 100-1 to 28-1, so only about a fourth as racist as before. There is no evidence to my knowledge, and I cannot conceive, that crack is 28 times as addicting as powder. Twice, maybe three times is possible because Crack is a more pure form of the drug. But, crack cocaine defendants in the Eastern District of Texas, primarily minorities forum-shopped from the Dallas Division to the very Conservative Sherman Division, can sleep slightly better at night. The act was silent on whether it applies retroactively, i.e. to people already sentenced under the old laws.

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Giffords.jpgWith the horrific news of the shooting of a United States Congresswoman and other innocent bystanders, many are asking whether and when her shooter will get the death penalty. The Federal Death penalty, although rarely carried out, is available for many types of crimes. As explained on the USDOJ website, these crimes generally include crimes in which “(1) the defendant is charged with a crime for which the death penalty is a legally authorized sanction, (2) the defendant intended or had a high degree of culpability with respect to the death of the victim, and (3) one or more aggravating factors specified in a statutory list are present in the case. The statutory aggravating factors include such factors as the commission of a killing in the course of another serious offense, the defendant’s having a prior criminal history involving serious violent offenses, the commission of a killing after substantial planning and premeditation, killing multiple victims, or endangering the lives of other persons (in addition to the person killed) in committing the crime. 18 U.S.C. 3591-93.(1)”
If US Representative Gabrielle Giffords does not survive, her shooter will be prosecuted under 18 U.S.C. 351 (murder of a member of Congress, an important executive official, or a Supreme Court Justice). However, since multiple federal employees were killed at the scene according to reports, if any were engaged in their duties (such as a congressional staffer assisting the representative in official business), the shooter can be death-penalty prosecuted under 18 U.S.C. 1114 (Protection of officers and employees of the United States). The general federal murder statute, 18. U.S.C. 1111, can also lead to the death penalty if the “death qualification factors” are proven.

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Suprised.jpgI was sitting at court last week when I overhead a non-lawyer assistant at a district attorney’s office giving someone charged in a criminal case (a case that would be very hard to prove) advice about their case. Apparently, the person had somehow “waived” their right to an attorney and wanted to speak with the prosecutor’s office. She was getting advice on how long she would sit in jail when she “booked in and booked out” on her charges, which prompted me to ask why she didn’t have a lawyer. Texas law now requires courts to inquire as to waivers of attorneys and the court should ensure that the waiver is voluntarily, and the prosecutor’s office is not to encourage people to waive counsel. However, these new rules don’t mean much when citizens accused are afraid to ask for a lawyer to talk about their case.

If you are facing actual jail time, the Constitution GUARANTEES you the right to an attorney to not only talk to you about your case, but to defend your rights and to competently represent you at trial if you so choose. While some people might not take this right very seriously, if you are facing jail time, and YES, probation on a jail time case means jail time if you violate probation, YOU NEED A LAWYER. A court appointed lawyer has much more legal training and ability than a non-lawyer. Most courts seek to have competent counsel on their appointment lists because they do not want to have to re-try a case if a lawyer is found to have committed malpractice.

Thus, it is YOUR RIGHT and you should say NO to waiving your right to counsel. I have talked to many bailiffs who agree that they would not be found NEAR a courtroom without a lawyer. If you cannot afford a lawyer, the court must appoint one FREE OF CHARGE. Also, most attorneys give FREE initial consultations for criminal clients, so why not talk to one about what possible defenses you might have to a case? Pleading guilty is usually permanent, so why go in blind when our government guarantees you a right to counsel? Either hire one or see if you qualify for an appointed lawyer!

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Fireworks.jpgLast week I had the pleasure of defending one of the finest young men I have ever represented. He was falsely accused of a horrible act and we were fortunate to have a wise jury who listened very attentively to our evidence and came to the correct conclusion. I am very glad this young man will forever have this accusation removed from his name and it never be spoken of again except by those who unlawfully attempted to do him a grave harm. He was very brave in insisting on his day in court in face of a very long potential sentence if convicted. Much thanks to all who helped me brainstorm our case.

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1250281_wild_turkey.jpgI have much to be thankful for this Thanksgiving in Sherman, Texas. I am most thankful that I have such a good family support network in all I do, and that my family understands what I do for a living. It is sacrifice to work all the time to be a better lawyer and do the best job possible in each case, but it puts strains and distance on your relationships. However, the relationships with those you work for and work with grow and improve and it makes a difference in the long run. I heard a lawyer the other day say how hard they work NOT to get close to their clients, and I believe this is the opposite of what it takes to win as a lawyer, especially with clients facing horrible accusations. If you truly care for your client, that caring can become contagious in the courtroom. Jurors and judges can tell when a lawyer believes in what he is talking about and when he is just going through the motions.

I am very thankful for those who have helped my practice become what it is, and helped me become the lawyer I am. I am better able to serve people because of those who gave their time and effort to improving me as a person and a lawyer, and I cannot say how thankful I am for that. As iron sharpens iron, one man sharpens another.

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Graves.jpgInnocent Texas death-row inmate Anthony Graves was released earlier this week from the Burleson County Jail. Mr. Graves was wrongly imprisoned for 18 years, most of it on death row, due to the horrendous behavior of dishonest and unethical prosecutors. As KHOU noted,
“The only evidence tying Graves to the killings was Carter’s testimony, and Carter recanted just before his 1998 execution. The 5th U.S. Circuit Court of Appeals in New Orleans overturned Graves’ conviction in 2006, ruling that prosecutors withheld evidence and elicited false testimony.”
Mr. Graves can take little comfort that he will get a pittance in compensation from the State of Texas for his time on death row due to suborning of perjury and hiding of evidence by those who swore an oath to “seek justice.” He does have a great civil rights claim under 42 U.S.C 1983 and 1985 for violation of civil rights and conspiracy to violate civil rights against those involved. Such claims cannot be brought until a criminal prosecution ends successfully for the defendant, so he is well within the statute of limitations. Hopefully those who prosecuted him are no longer lawyers, and certainly no longer criminal lawyers.

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Willingham4.jpgTexan Cameron Todd Willingham was tried, convicted of killing his children and sentenced to death based on bogus arson junk science and a jailhouse snitch in 1992. The tragic death of Willingham’s children was made more tragic by the unnecessary killing of their father will little regard for due process, the rights of citizens accused, or ethics.

I thought the State’s position on this tragedy, including the kangaroo process of appointing a “forensic science commission” whose leader appears to be a State hack, reminded me of a Brittany Spears song. So without further ado, here it is:

[Sung by the State of Texas to Cameron Todd Willingham, to the tune of “Oops I Did It Again” by Brittany Spears]

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A reported sixth grand jury empanelled on the matter in Collin County finally rubber-stamped a criminal prosecution of elected 380th District Judge Suzanne Wooten, who had the gall to run against and beat incumbent judge Charles Sandoval in 2008. Previous recent crazy goings on in Collin County include CollinCounty.jpginclude 1) the State somehow obtaining a search warrant for a well respected defense lawyer’s offices looking for evidence against his client in a capital case , 2) lawyers being indicted for clerical mistakes in their court filings, and 3) rumors of an investigation of the Repubican frontrunner and current nominee for DIstrict Attorney, who is well known to be squeaky clean. This all came on the heels of postconviction proceedings revealing that a former elected district attorney and elected judge presiding over a death penalty case were doing the naughty with each other during the trial of a capital murder case. Of course, this news is overshadowed by the scandal regarding District Clerk time management skills.

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dumpster.jpgI have been at a conference and hadn’t had time to chime in on Sherman Dumpster Baby Lady. After leaving her newborn in a dumpster behind a restaurant, she finds herself in quite a legal pickle.

Abandoning a child or conduct endangering a child can get you in serious doo doo quickly. If the State wanted to hit her as hard as possible, they could ask the grand jury to indict her for attempted capital murder. The grand jury would only have to find probable cause that she intended to kill a child under six years old and attempted to do so.

However, the easiest charge against her would be second degree (two to twenty years TDCJ) abandoning or endangering a child, a violation of 22.041 of the Penal Code:

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48557_the_crooked_e.jpgThe Supreme Court finally chimed in this summer on the appropriateness of having the criminal trial of Enron badboys Ken Lay and Jeffrey Skilling in Houston, Texas, where most of the population had been effected by the collapse of the corporate giant. We all knew what happened to Enron, and we all blamed Lay and Skilling for its demise. After all, they were in charge when it went from boom to bust, right?

I moved to Houston shortly after Enron fell, and its demise was the talk and tragedy of the town. The media coverage saturated the city and Lay and Skilling were public enemy numbers 1 and 1A. Prior to their criminal trial, their lawyers spent around $1 million on surveys of Houstonians which revealed that Lay and Skilling ranked somewhere below Satan in the minds of most people in the prospective jury pool.

Nonetheless, the lynch mob/jury panel was brought into Federal Court in Houston so they could tell the Federal judge whether or not they could be “fair and impartial” enough to sit on their trial. Even though they thought Lay and Skilling guilty as hell, they could “set aside those feelings” and judge the case on the evidence. As jury consultant Robert Hirschorn said, the judge in that case spent 5 hours rehabilitating the jurors (getting presumptively disqualified jurors to correct their views on the record).

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Texas Board of Legal Especialization
Sherman, Texas
711 N Travis St
Sherman, TX 75090
Phone: (903) 744-4252
(Principal Office)
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101 E Park Blvd #600/41
Plano, TX 75074
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