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Sunday, June 15, 2014

TCDLA Rusty Duncan seminar, Michael Morton

I attended the Texas Criminal Defense Lawyers Association’s (TCDLA) annual Rusty Duncan seminar in San Antonio last week. It’s in the top five of all the seminars I’ve been to in my 34 years as a lawyer. The speakers were all excellent and informative, and the papers are top notch. They saved the best for last, when Michael Morton spoke yesterday morning. 
Fittingly, Gerry Goldstein introduced him. Goldstein spent untold thousands of hours, along with John Raley, a Houston civil trial lawyer, fighting the corrupt, vicious powers that ran the Williamson County district attorney’s office under John Bradley, thankfully, the former DA.  Goldstein introduced Morton as his “hero,” and it is justified. Here’s the blurb on Amazon for Morton’s soon to be published book:

“He spent twenty-five years in prison for a crime he did not commit. He lost his wife, his son, and his freedom. This is the story of how Michael Morton finally got justice—and a second chance at life.

“On August 13, 1986, just one day after his thirty-second birthday, Michael Morton went to work at his usual time. By the end of the day, his wife Christine had been savagely bludgeoned to death in the couple’s bed—and the Williamson County Sherriff’s office in Texas wasted no time in pinning her murder on Michael, despite an absolute lack of physical evidence. Michael was swiftly sentenced to life in prison for a crime he had not committed.

“He mourned his wife from a prison cell. He lost all contact with their son. Life, as he knew it, was over.

“It would take twenty-five years—and thousands of hours of effort on the part of Michael’s lawyers, including the team at the New York-based Innocence Project—before DNA evidence was brought to light that would ultimately set Michael free. The evidence had been collected only days after the murder—but was never investigated.

“Drawing on his recollections, court transcripts, and more than one thousand pages of personal journals he wrote in prison, Michael recounts the hidden police reports about an unidentified van parked near his house that were never pursued; the treasure trove of evidence, including a bandana with the killer’s DNA on it, that was never introduced in court; the call from a neighboring county reporting the attempted use of his wife’s credit card (a message that was received, recorded, and never returned by local police); and ultimately, how he battled his way through the darkness to become a free man once again.

Getting Life is an extraordinary story of unfathomable tragedy, grave injustice, and the strength and courage it takes to find forgiveness.”

Now, if I had been framed for murder and spent 25 years in prison, and knew that the murderer of my wife killed at least two more women while I was in prison, I’d be bitter and want to get some payback. From what I saw of Morton, he doesn’t seem to be bitter at all. 
He talked about how people with their own agendas tried to use him, particularly the ACLU in California, who invited him to a closed meeting and discussed an unlikely alliance with Libertarians and conservative Republicans to abolish the death penalty. Then they proceeded to mock and ridicule their allies for being ignorant and stupid. 

He also said that the prosecutors and police are supposed to be the “good guys,” and that we need them and need to work with them. He described some of his fellow prisoners in TDCJ salivating when they saw on television where there was a county fair or rodeo, saying, “I love those things.” What they meant was, they were good hunting grounds. Or as Morton said, “They know you’ve got cash, and they’re waiting in the parking lot to take it from you.” He also said that someday we may be the victims of crime - your house may be broken into, your wife murdered, or your daughter assaulted.”

Morton worked with a lobbyist to get the “Michael Morton” act passed in the last legislative session. The lobbyist took him around to meet legislators who were against the bill. When they saw him and talked to him - he says some were surprised that he didn’t have a shaved head, fu manchu, and tattoos - and he asked why they opposed the bill, they changed their positions. The bill passed unanimously in both houses.

Morton could be any of us. He appears to be about 5’8’’, medium build, gray hair, and is, of course, white. I don’t know if I could survive a year in prison, much less 25. Nice, white, middle class people don’t get in trouble with the law, right? Morton quoted from the Bible:

I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.

The Hill Country defense lawyers were well represented at the conference. Tammy Keener from Fredericksburg and Wallace Ferguson from Boerne put together a nice luncheon and about 20 people showed up. Tammy has done a great job of getting the Hill Country Defense Lawyers Assoc. resurrected. We have some very good lawyers here, both defense and prosecutors, and high quality, fair minded judges too. 


  1. I don’t know enough about the criminal justice process to criticize the local defense lawyers, but after watching the system for some time, I do have some questions. As a non-lawyer, my general impression is that the 216th is a well-oiled machine, designed to process hundreds of felonies per year as a plea bargain mill. This cannot happen without the cooperation of defense lawyers. Plea bargains avoid trials, the prosecutors work load is vastly reduced, the defense lawyers’ workload is vastly reduced, the prosecutor gets a conviction and the defense lawyer gets a fat payday, assuming the poor sap was dumb enough to pony up $10,000 in advance for a defense which is not properly defined, which seems to be the going rate for a possession PG 1 second degree felony. I have chosen this offense for discussion purposes because there are so many of these offenses in Kerr County, and this category may represent the single largest class of felonies. As a layman, it looks to me like some of these cases could be won in the pretrial phase by filing motions in order to understand the true facts of case, such as:

    1) Test the controlled substance – I don’t see this happening regularly here, and I am under the impression defense lawyers do not file motions on point as a standard part of a defense. This is troubling because the State Crime Lab has a much checkered history and is known to out and out fabricate results.

    Do you consider this an important part of the pretrial defense work?

    2) Verify the chain of custody – The proper chain of custody related to evidence is violated from time to time. We have seen this in spades in Bandera County.

    Do you consider this an important part of the pretrial defense work?

    3) File motions to insure any potential exculpatory evidence is disclosed to the defense. I understand the local prosecutors advertise they adhere to an open file policy.

    Are you convinced the prosecutor’s policy is sufficient to prevent the withholding of potential evidence, or do you think motions should be filed on point?

    My guess is there are about 200 of these types of cases per year in the 216th. There could be more or less. If half of these cases gets a vigorous pretrial defense, I can see that this will jam up the system, but the prosecutors and court staff may need to work a little harder or hire some more people. The Sheriff wants a bigger jail, the DA has recently upgraded into fanciest offices in the county, so maybe we need to up the ante up on the defense work.

    Again, I don’t understand the system, and these comments are just my initial impressions. One could imagine there are some unwritten rules that inure to the benefit of the DA and the defense lawyer, but don't work so well for the client. If you could answer the three (3) questions posed herein, it would help me understand how things really work here.

    Thank you very much

  2. Richard, I am fan of yours. In fact, if I (a former prosecutor and later a criminal defense lawyer) were to get in a jam in a criminal case or in a personal injury case, there is little question that I would go to you first. I think that the previous commenter has asked some very good questions. Would you answer them, or will a real answer open the door to the other "criminal defense lawyers" having a brand new version of what their job is in relation to accused criminal defense clients? When I was a young lawyer, we had street fights with prosecutors over cases. We won because of our client’s life was in our hands – and because of pride. Now it seems like it is “get the money and run”.

  3. I have a question related to the first post as follows: In a Poss PG1 second degree, perhaps the most common felony in the 216th, is there a relationship between the magnitude of the pretrial defense work and the severity of the offered plea bargain? One may wonder if there is an unwritten rule that the DA will offer a lighter plea deal if the defense attorney rolls over and fails to file the pretrial motoins listed in the first comment, as well as persuing other defenses? Have you observed this pattern in the 216th?

  4. An important feedstock for local defense lawyers, obviously, are the nearby rehab centers. Many of the people that leave these centers stay in the local area and immediatly relapse and wind up on the doorstep of local lawyers with a felony case. Most of these people are young, from affluent families and can afford legal fees.

    Would a competent defense lawyer explain to the client the array of potential defenses in a drug case, which may include attacking the warrant, reliability of the CI, and the other defenses listed in other comments?

  5. Since none of the local lawyers were willing to comment or answer any of the questions, I will pretend I am a composite of all local defense lawyers and answer my own questions. Bear in mind I am not a lawyer and do not have a technical grasp of the situation, but more importantly I am beginning to get a grasp of the local defense lawyer culture.

    Dear Mr. Anonymous;

    The answer to all your questions is yes, but you must understand several things about practicing law in this county before you criticize me. The first thing you must understand is that I did not come here to practice law. I came here for lifestyle reasons. I have had my fill of “street fights”, and slowing things down and reducing stress is something I have decided to do. The second thing is that it is very difficult to make a living as a lawyer here, in order to keep the doors open I must be a jack of all trades, and take any case that comes through the front door. It is true I have very little trial experience, but 95% of the cases I handle will not go to trial, (in my mind).

    If I file multiple pretrial motions and put the police and others under the microscope, the light plea bargain will be withdrawn, and that is for sure. You have to understand that the prosecutors and judges have lives too. They have tee times, bible study….etc. The plea bargains are offered are at the discretion of the prosecutor, and there is nothing illegal about this situation. The prosecutor has no obligation to offer ANY bargain. On the other hand, we have very punitive juries here and if I take a dope case to trial the client may get 20 years in jail. This is the reality, so in a way, being a lazy lawyer benefits the client. You also must remember that the prosecutor is married to a policeman and if I put her husband or any of his friends under the microscope she could be especially combative, withdrawing any plea and putting all of her efforts into this case.

    I don’t discuss any of this with my clients, as it just confuses things, and in the end I know what is best. Many of these young drug users are totally screwed up and they don’t want to pay me what I am worth. They are entitled, and most continue to use drugs while they are out on bond awaiting trial. Most of them disgust me, and if you want the real truth, most NEED to go to jail.

    As one could imagine, many of my clients are now in the penitentiary. Through the grapevine, I have heard that they talk about me and have nicknamed me Mr. Bojangels, because it is a well-known fact I tap dance for the police and prosecutor for small change. This really makes me angry, so angry that I am now grinding up nails and I am going to eat them for breakfast and get mean and motivated. I now want to be the “go to” lawyer in this county when a client wants a REAL defense, understanding the realities and risks that come with this. If I jam up the docket and double the workload for the prosecutor, so be it. When the prosecutors see my name on a case, they know they are in for long drawn out battle. They also know most of the cases have multiple mistakes buried within, and they can be sure I will find each and every one of them. When the case goes to trial, I will be prepared and I will be the dominant force in the courtroom. If and when the prosecutor opens to door by testifying to the jury about how honest the police are, when the case is based on the cop’s honesty, she can be sure I will jam the Jaws of Life in that opening and tear it to shreds.

    Going down this road will be tough, but it is the only path for me. I am in the Autumn of my career and I don’t want to go out as just another milk toast hill country defense lawyer. The “in clique” at the courthouse will hate me, but when their kids get in trouble, who do you think they will come to?

  6. Grits for Breakfast today:

    Part A

    Jonathan Salvador fallout: Two cases bookend range of options
    A pair of notable cases related to the Jonathan Salvador DPS-Houston crime-lab fallout demonstrate the range of options for how thousands of affected drug cases might go. Salvador, readers will recall, was caught and fired for engaging in "drylabbing," or recording results without having performed the underlying testing.

    On June 4th, the Texas Court of Criminal Appeals (CCA) delivered a brief, 5-page opinion in Ex Parte Coty denying habeas corpus relief after re-testing of the evidence confirmed it was cocaine. Important case. Former DPS crime lab worker Jonathan Salvador worked on just fewer than 5,000 cases while he worked there. So, as of the Coty case, and contrary to the court's prior ruling, all those cases aren't automatically jeopardized. If evidence is available for retesting and the results confirm Salvador's findings, or if prosecutors possess other material evidence of guilt, convictions may be sustained by the CCA. At their weekly case summary, the prosecutors' association was clearly pleased:
    With this decision, the State now clearly has hope when confronted with a case in which the conduct of a bad scientist has threatened to ruin a conviction. Back in January in this case, the court gave us a new set of rules to follow in “bad scientist” cases that backed away from a “defendant always wins” approach. Now with this decision and with the new rules put into practice, the State has a clear roadmap to save an otherwise valid conviction. Thank goodness. The prospect of the finding of an automatic due process violation would have been devastating. The State is still going to have to do some work, as evidenced by this case, but at least now there is some hope.
    Ah, hope springs eternal. Meanwhile, Fox-26 in Houston this week (June 12) reported on a Conroe man soon to be freed because of the Jonathan Salvador mess. According to that short piece by Isiah Carey:
    It could be a matter of days before a Conroe man is free after being convicted on what prosecutors call shoddy crime lab work.

    This comes two years after a Department of Public Safety crime lab employee was fired for falsifying drug test results.

    Defense attorney Rick Brass says his client Diedrik Cavil was sentenced to 45 years on the evidence prepared by the now former worker.

    Brass says there are at least 5000 cases affected in the two year old investigation. ...

    Montgomery County prosecutors say they have about two hundred cases affected but they don't believe all of them will be dismissed like the Cavil case. [Ed note: See the CCA's May 7 opinion in that case.]
    So, some convictions sustained from the Salvador debacle, some dismissed, what's the difference? What's happening here?

    Partly, it's that drug evidence in Coty's case was still available in an evidence locker somewhere for re-testing. The state went through that process and the results confirmed Salvador's original findings. But that's not always the situation. The Texas Forensic Science Commission (FSC) estimated that evidence has been destroyed and is thus unavailable for retesting in a quarter to half of all cases, or approximately 1,250 to 2,500.

  7. Part B

    So you've got three categories of cases: Those where evidence exists and retesting confirmed Salvador's findings, those where evidence has been destroyed or is unavailable for retesting, and those where Salvador actually engaged in misconduct. (There's also a fourth group in some counties where no one has bothered to check or even notify the defendant about what happened and retesting may or more-likely may not occur.)

    If all the defendants were notified and provided access to habeas counsel, one would expect 1,200 to 2,500 successful habeas claims, at a minimum, where evidence was destroyed, plus however many cases of actual misconduct are discovered. In reality, though, most defendants eligible for relief may not know about Mr. Salvador or, if they do, be able to afford a lawyer to pursue the case. They may or may not, for a variety of reasons, file pro se (on their own, without a lawyer) from their prison cell, much less while they're on probation or parole. In a few counties like Galveston, Montgomery, and Harris, defendants may be notified and, if eligible, promptly appointed counsel. But in other jurisdictions it's been much more hit and miss.

    This is why Mary Ann Wiley, the new general counsel at the governor's office (congrats MAW, btw!), a few weeks ago suggested creating a public defender office for forensic writs. The Salvador episode should be a wake up call. The example offers the strongest possible argument in favor of such a post: The habeas corpus process isn't designed to carry such weight, especially if it's all done haphazardly via often imprisoned, pro se inmates. With many more Salvador-fallout cases likely to soon be filed (now that the case law is clear) and hair-and-fiber cases waiting in the wings, the Lege would do well to create a process in 2015 for handling this and similar situations. This won't be the last.

    UPDATE: Just as a reminder, here's the distribution of Salvador's ~5,000 cases scattered across 36 Texas counties:
    More than 250 cases: Montgomery, Galveston, Fort Bend, Harris, and Liberty
    101-250 cases: Brazoria, Chambers, Grimes, Hardin, Jasper, Matagorda, Polk, Walker, Waller, Wharton
    10-100 cases: Austin, Jefferson, Newton, Orange, San Jacinto, Trinity, Tyler, Washington
    Fewer than 10 cases: Angelina, Brazos, Burleson, Colorado, Hidalgo, Houston, Jackson, Leon, Madison, Nacogdoches, Sabine, San Augustine, Shelby

  8. Anonymous June 21, 2014 at 9:24 AM

    You talk a big game, Anonymous. The fact of the matter is most criminals are broke. Do defense attorneys generally file for retesting of evidence in drug cases? No, because their clients generally can't afford / won't pay for a retest. And then when it comes to trial, that same client won't have the funds to pay for the expert testimony needed to get those results in front of a jury.

    You sound like someone who has either been to the pen, or had a relative who went. Probably for drugs. I'd say there's a better than average chance that the attorney in said case was court appointed as well......at which point of course individuals such as yourself sit back and whine that the lawyer getting paid a whopping $800 for the entire case aren't bringing in CSI to help.

    Criminal defense means being outgunned, outmanned, and outspent most of the time. It also means having to up against a side that has the default favor of the citizens that make up the jury pool. To fight all this you have your wits, whatever cheap / free resources you can muster, and the miracle that is "cross examination".

    At the end of the day only the defendant himself knows whether he's guilty or not. That's where the plea bargaining comes in. The individual may show his a$$ and profess his innocence to kingdom come......but in my experience that resolve melts away real quick when facing 20 years in the can.

    Take a plea bargain to get five years in jail and be out after two......or.......risk a jury trial and possibly get an acquittal, or get a decade or two. If you're truly innocent, the choice is clear. If you're guilty, it is as well.