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Wednesday, October 19, 2011

When Lawyers Jump the Shark

I'm glad I'm not convicted murderer Hector Rolando Medina or his victim or his former habeas lawyer Robin Norris. Norris took the idea of being a maverick a little too far when he waited until the last day to file a habeas proceeding and failed to plead any factual basis for relief.The Court of Criminal Appeals, in a scathing opinion, ex parte Hector Rolando Medina, No. WR-75,835-01 held him in contempt, writing:

"Because counsel waited until the last possible day to file this document, a dismissal, even though not on the merits, would foreclose the opportunity to file a new pleading, bringing those same claims. Similarly, a denial on the merits of the conclusory allegations would foreclose any opportunity to raise those same claims again. By all appearances, counsel has thrown his client under the bus. Therefore, we issued an order to counsel to appear before the Court on Wednesday, June 15, 2011, to explain his conduct....

"Mr. Norris duly appeared and began his explanation: "Since I did file a pleading designated as a writ of habeas corpus on time-I think perhaps that the Court regarded it as not being a writ of habeas corpus." Indeed, that is so. However, Mr. Norris maintained that he had a "good faith" belief that his document "sufficiently pleads cognizable grounds for habeas corpus relief" even though he did not set out specific facts to support his legal allegations. He agreed that "[t]he suggestion that I want to change the law is close to being right, at least in my view. But not exactly right. I'm not trying to change the law. I'm trying to get some law." He admitted that he had "frequently" discussed the situation with his client "[a]nd he's not happy about it. But he's a lay person." Mr. Norris maintained that it is "in the best interests of [his] client, Mr. Medina, and similarly situated death-row inmates not to plead evidence in briefing in the initial application because it promotes disposition without evidentiary hearings." He largely agreed that he did not want to plead facts that might support his allegations because he did not want the State to know what his evidence was.

"Mr. Norris stated that he had been a practicing lawyer in Texas for some thirty-five years, had worked for a number of years at this Court, and had represented somewhere between ten and twenty death-row inmates on their post-conviction habeas-corpus applications. He admitted that, prior to this case, he had always included exhibits and stated facts that would support his legal contentions, but he did not do so in this case because he did not think the law was settled that a habeas application must contain facts. He stated that he had thoroughly investigated the facts underlying his claims, but that he intentionally did not include them in his client's pleading, and that he intentionally filed his pleading on the last possible day and refused the State's offer to give him more time to replead and add those crucial facts. It is abundantly clear that counsel's actions were not the result of mistake, inadvertence, negligence, or a lack of legal expertise. It is also abundantly clear that counsel is intentionally jeopardizing applicant's "one very well represented run at a habeas corpus proceeding."

In ex parte Kerr, (29) we held that a death-penalty "writ application" that did not "challenge the validity of the underlying judgment" was no writ application at all. The rule in Kerr is as follows: "To constitute a document worthy of the title 'writ application' filed pursuant to article 11.071, the writ must seek 'relief from a judgment imposing a penalty of death.' A death penalty 'writ' that does not challenge the validity of the underlying judgment and which, even if meritorious, would not result in immediate relief from his capital-murder conviction or death sentence, is not an 'initial application' for purposes of art. 11.071, § 5 . . . ." (31) As Judge Overstreet stated in his dissent to the dismissal of a stay of execution for Ricky Kerr, such a "non-application" is a farce and travesty of applicant's legal right to apply for habeas relief. It appears that this Court, in approving such a charade, is punishing applicant, rewarding the State, and perhaps even encouraging other attorneys to file perfunctory "non-applications." Such a "non-application" certainly makes it easier on everyone--no need for the attorney, the State, or this Court to consider any potential challenges to anything that happened at trial. Nevertheless, the Legislature has provided convicted capital defendants with the right to make such challenges by habeas corpus application."

Wow - to be charged by the top criminal court in the state of perpetrating a farce and travesty and charade when a person's life is at stake is brutal, but it's accurate. Norris was playing Russian roulette with his client's life. You have to wonder if the lawyer has dementia, traumatic brain damage, or is addled from drug abuse.

Tuesday, October 18, 2011

Philosophy of Criminal Defense

Pat Riley's Philosphy
Just remember, somewhere, sompleplace, sometime, you're going to have to plant your feet, make a stand, and kick some ass. When that time comes, do it.
Pat Riley, Coach, Los Angeles Lakers

I found a great article by David Redfearn entitled Philosophy of Criminal Defense on the website of The Tate Firm, PLLC, a leading Florida law firm. If you have been charged with a crime I encourage you to read the whole article, which makes several succinct, accurate observations about the criminal justice system, such as:
- the client's innocence is not a guarantee of a favorable outcome, and as the wheels of justice grind on, innocence becomes progressively less relevant.
- a criminal defendant's only friend in the courtroom is his lawyer.
- you have to decide - do you want to be defended by someone who will "go along to get along" and not rock the boat, or one who sees the role of trial lawyer as a gladiatorial combatant who will fight for you?

I like the section captioned "why the defense lawyer has to be a maverick" so much I will reproduce it in full here:

"The defense lawyer recognizes the criminal justice system at its worst resembles a confidence game set up by the Establishment (the state prosecutor, the police, the courts, probation officers, the private bail bondsmen, the pre-trial services programs run by county governments, the county jail, the private prison industry, the psychologists, the social workers, the security guards, etc.) for the purpose of justifying their existence to the taxpayers, while controlling individuals, extracting fees and fines, ushering the accused towards conviction, punishing non-conformists, and crushing in its path all who dare to challenge the government – the innocent and guilty alike.

The system rarely concedes error and the State plays to win. The defense lawyer is a maverick because he is usually the only one in the courtroom that is willing to stand up and tell the truth about the shortcomings of system. We like to build our courtrooms so they look powerful and dignified – so they appear authoritative and worthy of handing down justice, like the Greek Gods on Mount Olympus, or like Moses coming down from Mt. Sinai with the 10 Commandments. The promise of our nation’s ideals is that all men are created equal and we are therefore all equal in the eyes of the law. We even engrave “Equal Justice Under the Law” into the marble and granite in our courthouses. That’s why you often see depictions of Lady Justice blindfolded. Lady Justice is a personification of the moral force of the court system. The idea is that the courts dispense justice objectively and without prejudice, regardless of how much money a person has, the color of their skin, or who their daddy knows. That’s the ideal, at least. But the courts do not work like the ideal, and everyone who works in the court system knows it.

"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." - Supreme Court Justice Hugo Black, Griffin v. Illinois, 351 U.S. 12 (1956).

In 1923, a time when it was not uncommon for black defendants to be convicted by racist juries without hard evidence, the American poet Langston Hughes wrote:

That Justice is a blind goddess
Is a thing to which we blacks are wise.
Her bandage hides two festering sores
That once perhaps were eyes.

When the defense lawyer tells the truth about the gap between the ideal of “equal justice under the law” and how the system really works, he’s branded a renegade.

The proper role of the defense lawyer.

"[O]ur so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. ... [A]s part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth."
—Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)

Upon recognizing that the courts do not administer justice blindly and objectively by punishing only the guilty and freeing the innocent, the defense lawyer is now ready to embrace his proper role in the courtroom. The objective comes into focus: the defense lawyer exists to fight and his objective is to win, period. The concept of what a "win" is depends on the facts and circumstance of each unique case - it could be a dismissal of charges, a jury verdict of Not Guilty, a verdict of a lesser included offense, a successful motion to suppress evidence illegally obtained by the government, or a better plea offer from the government. No matter what the end result, when the defense lawyer fully embraces his role as his client's champion, the client will have been served with dignity either in victory or in defeat. There can be no dignity to the process if the defense lawyer is unwilling or unable to fight to protect his client.

When you hire a criminal defense lawyer, you are hiring not just a maverick (hopefully for you) but a prize fighter, a paid gladiator to walk into the theater of conflict – the courtroom - and do battle against the government prosecutor. The prosecutor will be trying to take away your liberty in some form, be it imprisonment, supervision, or a permanent branding of "convicted." Set against that grim backdrop, the defense lawyer’s sole duty is to protect his client, whether he is innocent or guilty and prevent the government from imposing its will and harming the client.

Now in our gladiatorial role in civilized society we’ve traded in our swords and clubs for more refined weapons like our intelligence, our wit, our passion, empathy, creativity, our knowledge of the law and reverence for the Constitution, our ability to communicate, and perhaps most importantly our courage to stand up for unpopular clients or unpopular causes even when everyone else thinks we’re wrong."


Wednesday, October 5, 2011

Bandera County Drug Cartel Deputy?

From the San Antonio Express News -
A Bandera County deputy is accused of providing sensitive law enforcement information to the Texas Syndicate prison gang, whose members in Uvalde and Hondo were swept up last week in a federal racketeering investigation.
U.S. Attorney Robert Pitman announced the new details Tuesday, after his prosecutors in Del Rio obtained two indictments against more than 20 members or associates of the gang.
One alleges 11 members participated in a racketeering and drug-trafficking conspiracy that included four murders. The second indictment alleges 15 other people were involved in trafficking drugs — including Thomas Cuellar, a deputy with the Bandera County Sheriff's Office for about five years.
Besides conspiracy to possess with intent to distribute cocaine, Cuellar, 41, of Hondo, was also charged with unlawful use of a government computer for allegedly giving criminal background information and other sensitive law enforcement intelligence to the gang.

Read more: http://www.mysanantonio.com/news/local_news/article/Bandera-deputy-indicted-in-federal-drug-sweep-2202400.php#ixzz1ZrycNQ3K