Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

I’ve been thinking about posting about Mike Nifong’s disbarment, but before I got around to it, I ran across this excellent piece from an Austin prosecutor:

I don't believe in punishment for prosecutors who are simply wrong (the job inherently requires people to make important decisions, sometimes based upon limited information), but Nifong ignored crucial evidence while seeking indictments, withheld exculpatory evidence from the defense (a huge no no for prosecutors), and may have even perjured himself regarding the availability of certain evidence when responding to inquiries by the court…

The only thing that I find remarkable about the case is how much retribution is being heaped upon Nifong for his overzealous prosecution. I say this not because he is undeserving of it, but because this is probably not an entirely isolated incident in which prosecutors are aggressively and unethically prosecuting defendants whose guilt they have very good reason to doubt…

Even if overzealous, unjust prosecutions result in a correct verdict and exonerate some wrongly accused defendants, the typical low income defendant is unlikely to see the kind of justice meted out against an overzealous prosecutor on their case the way that it is currently being delivered to Mike Nifong.

Jason is exactly right, of course. Let’s not miss the point of the disbarment. Yes, these defendant’s were incorrectly charged, but it was the District Attorney’s grossly unethical behavior that got him in trouble. As well it should have.

It is neither unusual nor unethical for a prosecutor to indict an innocent person. They have no real way of knowing whether the person is actually factually 100% guilty. As they like to say in voir dire, only witnesses know the truth (and sometimes not even then), and jurors and lawyers involved can’t be witnesses in a case.

Nifong’s unethical behavior was hiding facts and evidence from the defense that showed that they were not guilty, and then lying to the Court about it. I suspect that it was the dishonesty with the judge that truly hung Nifong, rather than not turning over what we lawyers call Brady material.

As they say, it’s usually the cover up that gets folks in trouble.

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Being on deferred adjudication probation for a Class B misdemeanor or higher will feel exactly the same to a defendant as being on “regular” probation.

Now, a County or District Court judge has the option of making any probation, whether regular-conviction or deferred a non-reporting probation. But it’s unusual.

In fact, in Austin/Travis County, it is extraordinarily rare. It’s more likely that I can get a case dismissed, or perhaps a fine only, than that I can work out a “probation by mail.”

I do know, however, that in some counties, probations where you report by mail are common, or even the norm.

But other than that, deferred adjudication means reporting to a probation officer, turning in proof of community service, fines, court costs, U/As, and all the other bells and whistles that come with regular probation.

[Question sent to me via email]

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Question:  I recently received a citation with a violation of "theft under $50'.

The police officer advised me to go to court and appear before the judge and pay the fine.  However I am not sure if I pay my fine, will my background check always reveal this offense?

How can I go about getting this erased from my records? Should I plead Not Guilty?

Answer: I feel obligated to mention that the police officer should not be giving advice of this sort to people he writes citations (or anyone else for that matter). Nothing will come of that though, so on to your real questions…

Should I plead ‘Not Guilty’? Absolutely. “Just” paying the fine, as the officer advised you, is a plea of guilty or no contest, and will result in a permanent criminal conviction for theft on your record forever.

A conviction for theft is a ‘crime involving moral turpitude’…meaning basically that you are being convicted of something that labels you as either (1) a bad person or (2) a person who did a bad thing, depending on who is doing the defining. (I, however, am a criminal defense attorney, and not one given to making moral judgments about other people, so you’re going to have to try a lot harder than Class C Theft to offend me.)

If you enter a plea of Not Guilty, however, you will probably be given the opportunity to enter into a deferred disposition, jump through some hoops, and get the case dismissed. Successful completion of a Class C deferred will then entitle you to expunge the offense from your record - although, recent caselaw indicates that you may have to wait 2 years to do so. Still, no conviction, and an expunction in two years is better than a theft conviction on your record for life.

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A “blogversation” has broken out. It started when Simple Justice responded to my post about Expunction/Expungement, noting that is not available to New Yorkers:

Personally, I think it’s a bit bizarre when Texas law is a step ahead of New York when it comes to something like expungement.  Remember, this is the state that puts defendants to death when their lawyer is fast asleep at trial. 

But the point of this post is that there are significant differences in the law and practice from place to place.  Having tried cases as far away as Anchorage, Alaska, I've come to realize and appreciate that understanding local practice matters. 

Then from Mark Bennett, a laundry list of the ways criminal justice is better in Texas. Next Gideon jumps into the fray, analyzing similarities and differences in Connecticut. Noticing that Mark has listed “You have a right to a jury trial. No ifs or buts.” he comments:

I had no idea that in some states, you didn’t have the right to a trial by jury.

Well, apparently New Jersey, Hawaii, Nevada and Arizona are OK denying the right to jury trial in DWI/DUI cases. (Perhaps I’ll comment on the Duncan v. Louisiana Supreme Court decision that layed the groundwork for that sometime.)  So I’m siding with Mark in saying, thank goodness Texas defendant’s get that old jury trial in “just a misdemeanor” DWI cases.

So how about it folks? Let’s hear from criminal defense attorneys in other states about regional differences in the practice of law…

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Someone called and asked me this today: Why did my deferred prosecution show up on a criminal background check?

They had successfully completed a Travis County Deferred Prosecution agreement for a shoplifting (theft) charge. The terms of the agreement were:

• Complete 50 hours of community service
• Attend a Theft/Shoplifting Class
• Stay out of trouble for 1 year

Like all Austin Deferred Prosecution agreements, the case had been dismissed “up front”; meaning that the State dismissed the Theft charge when the agreement was signed, and came back and checked after a year to see whether the defendant had lived up to their end of the bargain.

The defendant had already turned in proof of the community service, and the certificate for completing the class, and had not gotten into any trouble.

Unfortunately for them, during a routine criminal background check by their employer, the arrest “showed up”. Why?

Because they had not gone back after the year was up and expunged the arrest.

Here’s the deal. Let’s say you were arrested in Austin and charged with [DWI, or Assault Family Violence, or Theft, etc.]

An officer with the Austin Police Department arrested you. You were booked into the Travis County Jail and turned over to the custody of the Travis County Sheriff’s Office (the folks in the brown uniforms). You were interviewed by Pre-Trial Services for a Personal Bond. You were magistrated by an Austin Municipal Court Judge.

(This next part of my hypothetical never happens, but I’m using it to prove a point…) As you are walking out the door of the jail, the prosecutor meets you at the door with a dismissal, and admits that a mistake was made: you should never have been arrested. You are free to go. You are no longer on bond. You don’t have ot go to court (or hire a lawyer).

Well…is that the end of the story? No!

All those agencies I mentioned will have a record that you were arrested in Austin, Texas on [a certain date] and charged with [whatever criminal offense]. Several more agencies, such as D.P.S., the County and/or District Attorney’s Offices, TCIC, NCIC (Texas & National Crime Information Centers) will have a that same record of your arrest in a matter of days or weeks.

Same thing when you hire a lawyer and get your case dismissed. There is still a record of your arrest. And that’s what expungement is for.

An Expunction is simply a civil lawsuit against all the government agencies that have a record of your dismissed or acquitted case, demanding that they destroy the records of the arrest.

Why is that necessary? Because, unfortunately, folks think that where there’s smoke, there’s fire. If they see that you were arrested, they very well may assume that you were guilty, even if you weren’t convicted.

Bottom Line? Getting a dismissal is not the same as “getting the arrest off your record.”

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Criminal Defense Attorney Stephen Gustitis emailed me awhile back and asked:

I'm a defense lawyer in Bryan, Texas and I started a blog for clients entitled "The Defense Perspective." I see how successful you have been getting backlinks to your blog from other bloggers. I am not sure how to go about doing that. Can you help me? Thanks.

My reply:

There are 2 main ways:

• Content, Content, Content. Looks like you are already starting to put good content on your blog, so that will help.
• Link out to other people who are writing on similar topics. Basically, to get them to notice that you exist in the first place, the easiest thing to do is to cut and paste from something they wrote (while, of course, acknowledging them and linking back to them), and then comment on what they wrote.

I'd be happy to chat with you about blogging some time if you want. My number is (512) 472 9909.

Nothing, and I mean nothing will beat good content. I can already tell that Steve’s blog is going to succeed, because in the 45 days (or so) that he has been blogging, he has covered topics such as Habeas Corpus, expunctions, search warrants, DWI, Field Sobriety Tests…just to name a few.

It’s clear to me from the content of Steve’s posts that he knows what he’s talking about. Likewise, it will be clear to prospective clients that if they are charged with [DWI, Theft, Assault, Possession of Marijuana] in Bryan/College Station, they should probably call him…for the same reason: he knows what he is talking about.

That’s the great thing about blogging. It’s very personal, in its own way. I have been really surprised that folks arrested in Austin will call me up and tell me they have spent a good deal of time reading my blog. It sparked their interest, and now they want to set up a consultation. Many times, I haven’t talked about their exact situation…but they can tell from what I’ve written that I just might be the lawyer for them.

But, and this is an important “but”… but starting a new blog can be a classic case of “the chicken or the egg”.

It’s great to have good content, content that everyone will read and appreciate…but what good does it do if Google doesn’t know your blog exists?

That’s where part 2 of my answer comes in: Link out to other bloggers.

Already established bloggers frequently check services like Technorati to see who is linking back to them. For example, I currently see 157 other blogs linking to this one, and 108 bloggers linking to my newer DWI Blog.

If some new lawyer blog writes a post commenting on something I have written, you can bet I will find out about it, and then... what…?

I’ll add them to my RSS reader, keep track of their blog, and eventually link back to them. 

That’s it for now…more on this topic at a later date.

In the meantime, if you are a lawyer starting a new blog, wanting links back to you, please feel free to email me at jamie@austindefense.com. I’ll find a way to help get you started. Also, if you’re considering starting a “lawyer blog” (AKA “blawg”), feel free to email me. I’m always happy to chat about it.

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The second batch of criminal law blogs receiving the most votes, and not necessarily in any particular order:

Wretched of the Earth – fellow Texas criminal defense lawyer, an anonymous PD blogging from (and about) Dallas.

Underdog Blog – Maryland, DC and Virginia criminal lawyer Jon Katz spends loads of time on this excellent blog. I can’t remember the last time he went a day without posting.

Criminal Appeal – focusing on post-conviction practice in the Ninth Circuit, and California state courts, Jonathan Soglin, Jeremy Price and Michael Romano all contribute to this blog, now in its 5^th year.

The Volokh Conspiracy – speaking of group blogs, there are no less than 17 regular contributors to one of the oldest and most respected in the blogosphere. Talks about a lot more than just criminal law, but gets enough to votes to come in the second group.

TexasCriminalLaw.com – Houston, Texas firm Stradley, Chernoff & Alford mostly posts about trials and jury selection (some of my favorite blawg topics).

Burnt Orange Report – current and former University of Texas students blogging (mostly) about National and Texas politics.

CrimLaw – one of the first criminal defense blogs out there…until the author Ken Lammers went to work for the State. (Still a good blog, though, and now the highest ranking prosecutor blog in the poll.)

Eyewitness Identification Reform Blog – the name says it all, and the most “niche blog” yet named.

The Confrontation Blog – speaking of niche blogs, Michigan Law School Professor Richard Friedman started his after the U.S. Supreme Court 2004 ruling in Crawford v. Washington, and he’s been following relevant developments ever since.

FourthAmendment.com – Search and Seizure issues are often the bread and butter of criminal defense practice…here’s a blog with frequent and substantive updates on the subject.

As the Island Floats – Texas State District Court Judge Susan Criss’ blog (so named because her court is in Galveston).

Jury Deliberations – another new blogger (started in March of this year) rising to the top with daily quality posts.

That’s it for the second batch. There were approximately 60+ other blogs receiving votes; I will do my best to get all of them linked to over the next week or so. In the meantime, go update your RSS readers with the above.

(I suppose I may as well add… feel free to subscribe to either of my blogs: the one you are reading now, or the DWI Blog.)

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Commenting on a recent New York Times article about the “recent” popularity of cocaine, Maia Szalavitz hits the nail on the head with her latest entry at the Huffington Post, “So Long Crystal Meth, Hello Cocaine”:

This is the problem with having a demon drug of the moment: all of them can't possibly be "the worst" and "most addictive" and "most dangerous," but if you look at the news coverage of each new scare, that's exactly what the coverage claims. When crack came out, it was "more addictive than heroin," (the previous worst drug ever), now meth allegedly makes crack look like "child's play."

Of course, this is always the tactic that the ONDCP uses. Again, and again, and with no real effect…other than increasing our prison population.

Szalavitz is the co-author of Recovery Options: The Complete Guide: How You and Your Loved Ones Can Understand and Treat Alcohol and Other Drug Problems.  

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Well, my spur of the moment Top 10 Criminal Defense Blogs survey/poll turned out to be quite a project. I appreciate everyone’s patience. Let me briefly explain how I will interpret the results.

First, this was never scientific. I asked folks to send in their favorite blogs relating to criminal defense or criminal justice. Some responders voted for themselves (among others) while some did not. I decided to count a response to the poll as a vote for your own blog, whether you included yourself or not.

I also did not include this blog, Austin Criminal Defense Lawyer, or my other blog, Austin DWI Lawyer, in the results although several folks were kind enough to mention them.

I’m going to break this down into three categories: a few blogs received an overwhelming number of votes, several others received quite a few, and this is meant to be inclusive, so I’m going to include an Honorable Mention category as well. 

A total of 11 blogs received the most votes, so I’m bumping this to Top 11 Criminal Law Blogs:

SCOTUS Blog – the most votes hands down. Covering the Supreme Court more thoroughly than any other blog out there, obviously has non criminal law posts…but it got the most votes by far, so I list it #1.

A Public Defender – written by “Gideon,” and protecting the right to effective assistance of counsel.

Sentencing Law & Policy – Ohio State Professor Doug Berman’s blog. Covers all things sentencing related. Much of a criminal defense lawyer’s job involves begging for appropriate sentences for guilty clients, so this one is a must on anyone’s RSS reader.

Blonde Justice – Anonymous public defender blog. Also gets my personal vote for “best sense of humor in a criminal defense blog”.

Defending People – Mark Bennett’s blog is the youngest entry in the top 11. Quite an accomplishment. I suspect it’s due to a lethal combination of high quality and frequent postings.

Grits For Breakfast – Covering the Texas Legislature like no one else can…also, the only non-lawyer to break into the Top 11. For those non-Texans out there, this one is still worth adding to your RSS reader.

Injustice Anywhere – Public Defender in Washington (transplanted from Texas).

Crime & Federalism – Daily commentary on criminal law, civil rights, and what’s new and outrageous in the Law.

TalkLeft – Actually, it’s one of the biggest baddest political blogs out there…but the Denver criminal defense attorney certainly deserves to be on this list.

Capital Defense Weekly – The name says it all. Anyone looking for the capital defense news needs to come here first.

Simple Justice – Criminal Defense lawyer Scott Greenfield’s take on matters involving the court system, popular culture, American history, and, well, everything in between.

That’s the Top 11. As promised before, all entries will be listed, more coming tomorrow. 

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