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

Jeffrey Deutsch responds to my post “Execution is Proof of Guilt in Texas”:

Hello,

I'm a staunch pro-death penalty advocate. I can't speak for others, but I for one support every effort to follow up innocence possibilities for any convict, even one who has already been executed.

Among other considerations, how can people be expected to trust prosecutors, police or other officials who cover up evidence showing that someone who was executed wrongly?

I care about innocent people being convicted, whether of a traffic infraction, misdemeanor, felony or capital crime. Of course, I care in direct proportion to the severity of the potential punishment.

Furthermore, capital punishment especially requires a degree of public confidence that it will be applied to as few innocent people as humanly possible. Zero innocent victims is not compatible with any human, and necessarily imperfect, institution, but we need to do our best - and be seen to do our best - to save as many innocent people as possible. Otherwise, we jeopardize capital punishment itself.

Last but not least, I also care about the truth. Only in rare circumstances should officials lie or suppress the truth. To the contrary, investigation of the possibility that someone who was convicted and executed for a murder really was innocent is every reason to find the truth and proclaim it - whatever it may be - from the rooftops.

Jeff Deutsch

Jeff, I disagree with your conclusions, but I appreciate the comment, as well as the lack of anonymity. Too many use anonymous commenting on blogs as a way to vent without opening themselves up to any scrutiny or critical response.

Actually, your post fascinates me in some ways. When I say I disagree, I mean more precisely, that I agree with almost everything you write except for the first sentence about being staunchly pro-death penalty. Especially given the rest of it.

We know that police and prosecutors have indeed covered up or hidden Brady material, i.e., evidence that tends to exonerate a defendant. Yes, it may be rare, but you point out that it makes us distrust ‘the system’.

You care “in direct proportion to the severity of the punishment”. Me too. Frankly, I can’t make myself get all worked up when someone is wrongly accused of speeding. It shouldn’t happen, and it’s a shame, but frankly, you were probably speeding five minutes before you got the ticket, or yesterday, and even if you’re the one person on earth who has never sped, it’s ‘only a traffic ticket’.

But then, if you care in direct proportion to the punishment, you have to care the most about capital punishment.

From a logical perspective, I appreciate that you acknowledged that support of the death penalty means accepting that some innocent accused will be put to death or perhaps more fairly ‘murdered by the state’. I’m not being a smart-alec here. Many death penalty supporters insist the innocent have never been executed.

That’s a ludicrous position and you don’t try to make it. Humans err, death penalty trials are abundantly human; death penalty advocates should accept that there is an error rate, even if the exact rate is unknowable. That doesn’t make it 0%.

I just don’t understand, given the premises, how someone with your views can be staunchly pro-death.

Why is it so important to put people to death in the first place?

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I get a lot of hits** from people who Google “Marijuana Laws Austin Texas,” or some other variation of that phrase.

I know that in Austin, we pride ourselves on being weird, but, unfortunately the marijuana laws are the same here as they are all across Texas. Perhaps people are thinking that the laws on this vary from county to county, but they don’t.

For more info on Texas Marijuana Laws, you can try my Topics pages on Marijuana and Controlled Substances and/or the War on Drugs.

[** No pun intended.The folks at LexBlog, who designed the look of this page and host my blog include in their services a stat tracking package called Mint. It’s great. It lets me see what phrases people typed into Google when they reach my page. I recommend it highly.]

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Excellent article by Christopher Shea who writes the ‘Critical Faculties’ column in this weekend’s Boston Globe, “Life Sentence”:

What if America launched a new New Deal and no one noticed? And what if, instead of lifting the unemployed out of poverty, this multibillion-dollar project steadily drove poor communities further and further out of the American mainstream?

That's how America should think about its growing prison system, some leading social scientists are saying, in research that suggests prisons have a far deeper impact on the nation than simply punishing criminals.

Fueled by the war on drugs, "three-strike" laws, and mandatory minimum sentences, America's prisons and jails now house some 2.2 million inmates - roughly seven times the figure of the early 1970s. And Americans are investing vast resources to keep the system running: The cost to maintain American correctional institutions is some $60 billion a year.

The article makes many good points.

One is the problem that most of the general public is completely unaware that America is the Land of Incarceration (5% of the world’s population, almost 25% of the world’s prisoners). Most folks that aren’t in the ‘criminal justice’ industry are shocked by those numbers.

Shea argues that the pendulum is perhaps swinging in the other direction. He points to Glenn Loury and Bruce Western’s upcoming testimony at next week’s congressional hearings. The Joint Economic Committee will focus at least in part on the economic costs of our current ‘lock the door, and throw away the key’ approach to punishing drug crimes.

Shea believes that prison reform will take off as books are being released and sociologists focus on the problem.

Speaking of pendulums, also see One-Way Street’s analysis of the article:

The incipient prison reform movement may have less to do with genuine concern for the unfortunate than a consequence of a long economic expansion finally running out of gas. Citing Foucault's Discipline and Punish is irresistible in this context, and Foucault points out that prison reform is most likely to occur in affluent times, when criminality tends to turn toward crimes against property, causing in turn a broad harshening of penalties.

Rather than just simply throwing every crack head burglar in jail for the rest of his life, as we're essentially doing now, reformers wanted not to soften the law but to lessen (or sometimes merely to hide) the arbitrariness of justice.

Foucault himself was a member of the Groupe d'information sur les Prisons (GIP), a prison reform group, but that didn't prevent him from being suspicious of prison reform movements in general, which he regarded as agents in the redistribution of power.

On a personal note, I believe that in the centuries to come, societies will see the War on Drugs as a great moral failing on the part of the United States; that is, incarcerating drug addicts for substantial periods for doing what we know they do will be unthinkable. Don’t forget, at one point most folks didn’t question the morality of slavery.

But I have also argued in the past that drug war reformers will initially prevail, and in baby steps at that, by making cogent economic arguments. Give me fifteen minutes to have a serious back and forth conversation with anyone, anyone who is pro-Drug War, and I’ll have them at least halfway converted when they hear how much 25 to Life costs them, for non-violent drug users. The most hard headed will at least concede that the really high sentences shouldn’t be handed out for any marijuana offense, or for anyone that ‘only uses’ drugs. I think many of them think I am stretching the truth when I tell them the horror stories.

[Hat Tip: Oregon marijuana lawyer Lee Berger. Thanks for sending this article out on the NORML Legal Committee ListServ. Also see Pat Rogers.]

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Anne Reed of Deliberations writes this week’s edition of Blawg Review: “The 17 Best Tips for Voir Dire”.

Sure, it’s a way to theme an excellent Blawg Review, but here are some of my favorites, renumbered, and in no particular order:

1. Assume Nothing
2. Watch for Points of View
3. Notice How They Process Information
4. Pay Attention to the Quiet Ones
5. Some Just Want To Get Back to Work

Paying attention to the quiet ones in jury selection really hits home. How many times do you realize that after you and the prosecutor have fought over challenges for cause, then submitted your preemptory challenges, and the panel is called to be seated that… up to half the jury consists of those that managed to keep their mouths shut most of the time?

I guess that’s because the ones that weren’t quiet managed to put fear into one side or the other.

Next week’s Blawg Review host is Lex Ferenda, and Anne has set a high bar.

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Radley Balko on why Texas might try to prevent anti-death penalty groups, as well as the rest of the world, from finding out whether Texas executed an innocent man:

Now, I can think of some reasons why a prosecutor would want to destroy a piece of physical evidence that could prove that the state executed an innocent man. But none of them are compatible with...um...being a human being.

Perhaps, for example, the prosecutor was one of the prosecutors who worked on the case, and doesn't want the stain on his career that might come with a wrongful execution. Perhaps he wants to avoid the inevitable stain on Texas' already execution-happy reputation that would come with proof that the state executed an innocent man. Perhaps he knows that proof of a wrongful execution will make it much more difficult for him to win death penalty cases in the future.

But here's the thing: While I can perhaps see a prosecutor harboring such sentiment deep down inside, I can't possibly conceive of anyone actually making these sorts of arguments publicly. Or with a straight face.

Claude Jones was executed in 2000 for the robbery/murder of a liquor store owner. During trial, the State’s expert proclaimed that a hair found at the scene ‘matched’ that of the defendant. The Texas Court of Criminal Appeals cited the ‘matching hair’ as the corroboration necessary to affirm Jones’ death sentence.

Blogs have recently been covering the story of Texas’ attempt to block finding out whether this ‘crucial’ hair evidence would have actually exonerated Jones. See: StandDown Texas Project, the Innocence Project, Jeralyn Merritt, the Texas Moratorium Project, Capital Defense Weekly, DeathWatch, Grits for Breakfast, PWC Consulting, and finally, a tie for my two favorite blog post titles about this story, from Amnesty International USA “Hair Today, Not Gone Tomorrow” and from Yank in London ‘We’ll expect a retraction and an apology”.

Speaking of retractions/apologies, let’s get to the title of this post “Execution is Proof of Guilt”. There are definitely folks that need Jones to not be found innocent after the fact: death penalty supporters. Because he has already been executed, he is and will remain guilty.

I make this prediction. There will be 1 of 2 possible reactions to the results of the DNA test.

#1) The DNA test proves that indeed it was Jones’ hair at the scene of the crime. The reaction will be, basically “Ha Ha Ha,” and “See, we told you that the anti-death penalty crowd is just a bunch of murder lovers”.

#2) The DNA test proves that it was not Jones hair at the scene. The reaction from the pro-death penalty folks? Will it be, good grief an innocent man was executed? No. We will see all sorts of rationalizations that “just because the hair follicle wasn’t his, doesn’t mean he didn’t do it,” and “they didn’t prove his innocence”.

I’ll follow up on this when the results are in. In the meantime, anyone want to predict other possible reactions from the pro-Death crowd?

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Houston criminal defense lawyer Mark Bennett has been writing recently about lawyers who promise or guarantee good or great (or impossible?) results in criminal cases.

His example was one where the unethical lawyer promised a jail release in a federal drug case where the potential sentence could be more than 10 years (triggering presumptions of flight risk, danger to community and no bond). Mark’s point was not that he mourned the loss of a client but that:

This case illustrates why it's not "stealing clients" but "stealing from clients" -- the client was not an asset to me, but a liability. I don't mind losing the client, but that doesn't make the lawyer's lies any less repugnant.

I wrote in a comment to his post:

The other half of this equation is that the client wants to believe the lawyer that tells him "I can get you out".

I think all of us have heard from clients over the years all the variations of unreasonable promises made and outright lies told to clients; perhaps I should add, especially to those in jail.

I've always wondered what those conversations are like, you know the ones... the 'coming clean' conversations where the lawyer 'explains' that everything he said up until now was somewhere between 95 and 100% wrong.

I understand folks in desperate situations wanting to believe the person that comes to tell them the good news, even if that good news can easily be rephrased as ‘I want you to pay me money’. And people in jail are indeed desperate, and have less access to information than those out of jail. If their choice is between the lawyer who says he will get them out, and the lawyer that says it will be difficult if not impossible, then they are likely to choose the first. 

But we see this situation (the lawyer who overpromises/lies) in other familiar situations as well: most commonly, the “I will get your case dismissed’ lawyer. The lawyer that says that at the initial client meeting. Without reading the police report. Or talking to the prosecutor. Just… “I will get your case dismissed”.

Here’s what I don’t understand about that. I meet with people who have been arrested in Austin, Texas on a regular basis. Some of them hire me, some don’t. My goals in the initial office visit include

• listen to what the client has to say happened
• explain the law
• explain the range of possibilities
• narrow that down to the reasonable range of possibilities
• give my client ‘homework’; i.e., things they can do that will help me help them get the best possible results

When I narrow that range of outcomes from the possible (outright dismissal to maximum jail time) to the likely range of outcomes (dismissal if we do X, Y and Z to probation, or whatever the case may be) I always say:

“It’s unethical for me to promise a particular result in an individual case, but based on my experience…”

Of course, the potential client knows that it’s not possible for me to look into that crystal ball and tell them exactly how the case is going to turn out, and on occasion, they chime in something like, “I wouldn’t believe someone who told me they knew exactly how it would turn out…” or something similar.

That’s because I’m stating the obvious: I don’t have that crystal ball and I can’t guarantee or promise results. Why then would you believe a lawyer that does?

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Drug War propaganda has infiltrated our lives to such an extreme that we no longer notice ridiculous logical fallacies applied to everyday situations.

Today I picked up a copy of AustinFit Magazine and leafed through it while my wife was shopping. In the Diet section they ask:

Is there a Caffeine Catch?

We all have those moments when we find ourselves in need. Whether seeking a pick-me-up, a buzz, warmth or companionship, turning to caffeine is a habit many of us have embraced. Are we getting off scot-free, or is this stimulant actually bringing us down?

OK. Looks interesting. It’s an article that attempts to address whether or not caffeine is addictive.

The long line at Starbucks seems to support this theory; coffee drinkers themselves even perpetuate the idea that the magical ingredient in that morning cup of Jo exerts some kind of mind control.

I’m one of those coffee drinkers. Just this morning I was standing in line at the elevator at the Travis County Courthouse, joking with a fellow defense attorney that I would whine about the heat outside, but perhaps I forfeited the right to complain because I was holding a cup of hot coffee in my hand. I’ve wondered myself, in those situations, whether caffeine is addictive. The article continues:

Scientists say otherwise, however. The World Health Organization as well as the Diagnostic and Statistical Manual for Mental Disorders both scoff at the notion that caffeine should be grouped in the same category as illicit drugs, pointing out the modern tendency to overuse the word “addiction.”

Here’s where the rabbit trail begins. Illicit drugs aren’t all addictive (think marijuana), and some of the most lethal drugs are addictive and legal (think, most obviously, tobacco and alcohol).

A mug of coffee cuts through the morning fog and gives us something to chat over before trudging off to our cubicles, but the habit is more social and psychological than it is physical. Cutting caffeine out of your diet may throw you a little off kilter, but it won’t inspire you to lie, cheat or steal.

Marijuana use doesn’t ‘inspire’ lying cheating or stealing either, but see how easy it is for the writer to automatically assume we should categorize all illegal controlled substances as ‘bad’, while ignoring legal drugs that actually are ‘bad’ for us?

Talk about jumping to unreasonable conclusions. Or perhaps it’s just begging the question. But I find this line of ‘thought’ annoying for its lack of intellectual rigor.

There’s no relationship between the drugs we criminalize and addiction; and there’s certainly no logical argument that addiction can be defined by what the legislature decides to send folks to jail or prison for.

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If you don’t count hosting Blog Review, or my Criminal Law Blog Poll, it’s been awhile since I’ve done one of these, so here goes:

Shawn Matlock writes about the ‘Business of Winning’ criminal cases, and Stephen Gustitis follows up with ‘Adjusting Client Expectations’. Jon Katz’ philosophy of winning is all about t’ai chi.

Robert Guest posts on DWI propaganda and what prosecutors are taught about DWI. Hunter Biederman reports on CMI’s refusal (so far) to comply with court orders that they turn over the source code for the mysterious Intoxilyzer 5000. And Steven Eversole asks us whether there’s a presumption of innocence or guilt in DUI cases.

Mark Bennett writes related posts on ‘Managing the Risk of Child Sex Abuse’ and ‘We Predators’.

Ed Chernoff tells us about a late Friday phone call he got. You know the kind: the Friday before trial the prosecutor calls to tell you that every single co-defendant has reached a last minute plea agreement to testify against your client in a massive Federal drug conspiracy case.

 Brian Tannebaum lists some failures in the criminal defense system.

Mark Jakubik chimes in on the recent blawgosphere debate about whether criminal defense lawyers can be ‘conservatives’.

Overcriminalized, which has plenty of grist from Texas to talk about, notes that other states are not immune from overreacting to non-criminal situations.

Scott Greenfield talks about the Dream Team phenomenon.

And White Collar Crime Prof Blog predicts that shenanigans involving Iraq rebuilding contracts will become the new goldmine for Federal white collar criminal defense attorneys.

[Let me add: the ‘full’ results of the Criminal Law Blog Poll have not yet been posted, inasmuch as I still need to complete the task by adding a few more posts with links to all responders. Fear not, it’s in the proverbial ‘to do’ list.]

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I’m late with the shout out on this one, but we have another Texas lawyer hosting Blawg Review.   Another Austin lawyer at that (although, dear readers, he's clearly of the civil, not the criminal defense variety).

And you’ve got to love appellate law specialist D. Todd Smith’s title for this week’s edition:

IN THE SUPREME COURT OF THE BLAWGOSPHERE
_________
No. 07-123
 _________
In re Blawg Review

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