Share It Fairly, But Don’t Take A Slice Of My Pie

In case you’ve ever wondered what the number one priority of the Texas Department of Public Safety is, the San Antonio Express-News has the answer. (H/T to Grits).

“I’m not going to look for dope. … I’m not going to look for anything else because if I do, I’m not going to get enough speeding tickets, I’m not going to get enough seat-belt tickets, and I’m not going to get DWI arrests,” said the North Texas trooper.

More complicated violations resulting in arrests means “you don’t have the magic number of speeders and you get hammered (by superiors),” the trooper said.

This is what DPS values?  Speeding, seat belts, and DWI arrests?

A professor of mine in undergrad, who was a practicing lawyer gave me a piece of practical advice which was more valuable than most stuff I learned in law school.  Always follow the money.  Not exactly earth-shattering advice there, but valuable nonetheless.

The three apparent DPS priorities are all cash grabs and all easy money, relatively speaking.  It would be naive to think that every agency and government organization isn’t doing their best to bilk the public, but it would be nice if we didn’t have to hear it.

The rest of the article is worth reading, it doesn’t paint a pretty picture of morale at DPS.  Like Grits said, the next head of DPS is going to have quite a job on their hands.

Hide and Seek

My practice takes me to three different counties on a fairly regular basis, giving me six different offices to deal with.  Three County Attorneys and three District Attorneys.  And each one has a different interpretation on just how much information they have to give me.  One of the offices will basically let me come in, grab the file I need from the filing cabinet and make copies of whatever I need.  On the other hand, I’ll ask another office if I can see a file, not even make copies - just read it for myself, and instead they’ll just give me an executive summary.  Great, I’m getting a biased summary of an already biased police report.  Sadly, most of the offices are more like the latter.

This refusal to share frustrates me to no end for a couple reasons.  First, I came to Texas from a state with a much more liberal interpretation of Brady, where the DA’s were basically forced to hand over everything at the start of a case.  Oh no, not Texas.  It was a bit of a shock for me when I got down here.

Second, to me it seems like an incredibly inefficient way to operate.  One office will let me look at the file, but instead of making copies, I’m only allowed to take notes.  So rather than having a complete picture of the case that I can read at my convienence, I have to spend my time trying to decide what’s important enough to write down, and then having to read my own writing a week later when I look at the file.  And if I decide I might want more information, I have to go back to the DA’s office (at a time that’s convenient for them) and make more notes.  Wouldn’t it be a better use of everyone’s time to just let me make a copy of what I need?

So why do the prosecutors make getting information as tough as they can?  I really can’t think of any better reason for them besides, under the law, they can.  Which is a pretty crappy reason.

Winner Winner, Chicken Dinner

Since my beloved Detroit Tigers have started the season by going 0 - 7, it’s up to me to pick up the slack and get some wins.  I got my first win at a jury trial.  Only it was as a prosecutor. And it was against a Pro Se Defendant.

Occasionally, I get asked to be a special prosecutor on Class C cases. This one was a trucker who got clocked going way to fast, and decided that even after a very reasonable offer he wanted to take it to trial and represent himself.

I’m not sure why he didn’t hire an attorney if he wanted to fight the ticket. He’s a trucker, he’s got a CDL, and having a ticket on your CDL, as I’ve been lead to understand, is not a good thing for your insurance or your employment. But whatever reason, he should have had one. The trial didn’t go well for him at all.

It could be a lesson for all the non-lawyers who think that just because they watch Law & Order, they can be an attorney. Its not that the defendant here wasn’t a smart guy. I spoke with him in pre-trial and before the trial started, and he seemed like he’s at least average intelligence. But without legal training, he didn’t know what to do. He didn’t know how to conduct an effective cross, he didn’t know how to introduce evidence. Its not rocket science, but without a legal education and some on-the-job training, most people wouldn’t know how to do it.

I’m happy with the win, its kind of fun to be the prosecutor, for a change of pace. Even though it was my first win, I decided to hold off on any celebration. I’m saving that for my first ‘not guilty.’

What I Didn’t Learn In Law School, Pt 1

I’m pre-emptively labeling this as part one, because things I’ve learned on the job, that I never learned in law school will be revisited again.

Over at The Defense Perspective, Stephen Gustitis had a post about using a polygraph as a method of client control. His reasoning goes, criminal clients often refuse to face the facts, even if the prosecution has a mountain of evidence against them. Since they won’t face reality, the client will insist on a course of action where the only outcome is the client spending time in prison, when they could have taken an offer and received less time or probation. If you give the client a polygraph, there’s two potentially positive outcomes for the attorney. The client passes and you can go to the prosecutor with that tidbit of information. Or, the client fails and will (hopefully) decide to face reality.

Where am I going with this? Client control. Extremely important and a subject that was never covered during my law school education. Even in my “practical law” classes when we’d have to roll-play being a client, no one was even the client who wouldn’t take the great deal you worked out for him. Or the client with mental illness. Or the client that just flat out ignores you. Everyone would behave like an attorney talking to another attorney. That’s not the fault of the students, they don’t know how else to behave.

My first experience with an out of control client came at my first trial. Up until then, pretty much all my clients just wanted me to get them a deal. The ones that were trouble, my boss would handle, since he has a lot more experience than I do. But, this one was a misdemeanor, and should have been a pretty easy case for the defense. The first time meeting the defendant was right after I was appointed to him. I asked him how he wanted to handle the case, if he wanted me to work something out with the County Attorney or if we needed to set it for trial. His response was something along the lines of, “I don’t want to hear nothing about a deal, we’re taking this thing to trial.” He probably also used a fair amount of profanity for that one sentence as well.

Whenever I’d meet with or talk to the defendant, we’ll call him Billy, he tended to have a lot of trouble staying on topic. I’d ask him a question and he’d give me a long rambling answer, and I use the word “answer” in the loosest sense of the word.  It was usually a jumble of semi-coherent thoughts about how the county was out to get him, or how the state of Texas was out to get him, or that I wasn’t doing my job, and so on.  He’d always end his diatribe by saying, “We’ve got to get this information out at trial, so the jury knows the truth.”  I’d repeatedly tell him that we had a very simple, and winnable case, and if we started talking about how the state of Texas is screwing him over, the jury would think we’re trying to bullshit them, and wouldn’t appricate that.  He’d agree with me, and then go right back to ignoring whatever I said.

Quite frankly, I had no idea what to do with this guy.  There was nothing in any of my law school classes that even remotely prepared me for dealing with a guy like this.  Stephen’s above suggestion of giving him a polygraph wouldn’t apply since A) Billy had no means to afford a polygraph; and B) our defense was that he had legal authority to commit the acts, not that he didn’t do it.  I couldn’t remind him that going to trial costs extra, since he was a court appointee.  In short, I was stuck.  All I could do was keep telling him that its very easy to talk your way into jail.

The trial was an unmitigated disaster.  Even though the prosecutor, the judge, and my fiancee said I did a good job, I felt like I had snatched defeat from the jaws of victory.  Billy took the stand, with my blessing.  I told him to testify for two reasons.  First off, he had been waiting five months to tell his side of the story.  There was no way in hell he wasn’t going to get up there and testify about how the county, the judge, the prosecutor, and the great state of Texas were out to get him.  This was going to be his moment in the sun.  It was like Festivus came early for him, he got to air all his grievances.  After the prosecutor got done with Billy, I just wanted to lay my head on the table and wave the white flag.  The second reason I told him to testify was that we’d get two extra defenses if he took the stand.  If I had to do it again, I’d probably tell him not to take the stand, but I know he wouldn’t listen to me.

Was there anything I could have done to keep Billy under control?   I’m not entirely sure.  But I do know that law school does a poor job of preparing people for difficult clients.  I know the rebuttal.  You’re a criminal defense attorney in a rural county.  You’re not exactly dealing with the best and the brightest who are going to listen.  And that’s true, but a class on client management would be very beneficial to new attorneys.