Emotion and the presumption of innocence

So the Harris County DA's Office has egg on its face because a woman charged with six counts of reckless injury to a child and three counts of child abandonment up and flew back to Nigeria before she could be arrested. Jessica Tata is accused of leaving a household of children in her "day care" center unattended while she ran errands. During her absence a fire broke out and four of the children died.

It's a tragedy. There's no other way to describe it. And, if the allegations are true, Ms. Tata's conduct was beyond inexcusable.

But, she's only been charged. She's not been convicted.

That means that Ms. Tata is innocent unless the state proves her guilty beyond all reasonable doubt. She wasn't charged with anything at the time she boarded that plane back to Nigeria. She had every right to leave.

You see, sometimes the presumption of innocence can be hard to swallow.

Unless the police could muster probable cause to believe she committed a crime, they couldn't place her under arrest. Everyone seems to want to blame Pat Lykos or the fire marshall or someone for allowing Ms. Tata to leave the country. I don't think anyone's to "blame" for it because I don't think there's anything that you can blame on anyone in this case.

What should we do? Lower the standard of proof needed to arrest someone? Lower the standard just for suspects who aren't citizens of these United States? What about if a child is injured? Just what bad law do you propose we enact because something distasteful happened?

Maybe, just maybe, the "system" worked in this case. Maybe, just maybe, law enforcement dotted their i's and crossed their t's before trying to make an arrest. Maybe, just maybe, someone did not allow the emotion of children dying cloud their judgment when it came time to decide how to proceed.

Maybe this case is the perfect test of how deeply ingrained our belief in the presumption of innocence is. Is it better than one guilty person go free than that one innocent person is punished? How about ten guilty people going free? One hundred?

Jessica Tata is not guilty of anything. In fact, right now, she's innocent.

Jack's back?

My brain is mush. I'm completely unmotivated. I'd rather be lounging in the backyard with a book a glass of iced tea.

Four days in trial will do that. For four days (plus the weekend) I was focused on one thing. I was listening, writing, consulting, counseling and doing a lot of arguing. I got up at 3:30 Tuesday morning to prep for the final day of trial. I didn't have anything to eat for twelve hours.

Phone messages stacked up. Emails backed up.

On the way home from the island last night I decided to get back in touch with my Irish roots. I needed sustenance of the type found in my ancestral homeland. So I stopped off at that bastion of Gaelic gastronomy -- McDonalds -- and this is what I saw.

There are no balancing tests in criminal defense

This past Thursday I began a trial in a DWI case that I expected to take two days. I was a little bit off. We're not even close to being done. The state has yet to rest its case. We have new evidentiary matters to litigate. I spent most of the weekend holed up at my office researching case law, drafting briefs and reworking my cross examinations of the officers involved.

A friend of mine thought I was spending too much time working and not enough time playing and he posted the following comment on my Facebook page:

Work/Life = balance?

It made me think. Now I know that both Brian Tannebaum and Scott Greenfield have written about this on numerous occasions but I figured I'd add my two cents to the conversation.

In a perfect world there would be much to gain by balancing work and fun. But we don't live in a perfect world. If you've got a 9-to-5 job working for someone else then you can probably leave your work at the office and get to it the next day you show up to work. Hell, if you're a transactional lawyer you can get away with it.

I know it's a strain at home when I'm spending my weekends and nights at the office. It's not an easy task to raise two girls by yourself because your husband is working 60+ hours a week. Today would've been a great day to fire up the smoker and do a rack of ribs or a couple of chickens. It was a beautiful morning to cut the grass - or to till up the soil for this spring's garden.

But, if you found yourself before a jury facing criminal charges, would you want a lawyer defending you who is working with his life coach on how to balance the demands of work and home or would you want the lawyer who will spend every waking minute looking for the best way to handle every situation that might arise during trial?

I can be a real bear while I'm in trial. I'm short with people, I'm distant and I don't have any patience. Don't try to get between my client and me during trial. There's no room there and it's going to end badly.

No, I don't even attempt to balance work and home when I'm in trial. Does that make me a lousy husband and a bad father for a few days here and there? Probably.

Defending your constitutional rights and civil rights is not a 9-to-5 job. It's a commitment that takes a lot of time, a lot of energy and, in the end, doesn't always pay all that well. It's what I do and I'm damn proud of it.

Next weekend I can fire up the smoker and work in the yard. Right now I've got more important things to do.

Holy piece of junk, Batman!

There were some folks who thought I was a bit off the mark when I dared to criticize HPD's BATmobiles. Turns out I was right.

We've got vans with wiring problems that renders the breath test machines inoperable. The air conditioning doesn't work in one van and that's not good for a machine that's temperature sensitive. Yep, that's how we take care of our "instruments" here in Space City.



The police won't even acknowledge the problems to the Harris County District Attorney's Office -- of course that cat's out the bag by now. Heaven forbid folks find out that the money used to purchase and maintain (sort of) the BATmobiles might as well have been used to light the charcoal in the grill.

The lieutenant was worried about having to, quote, "explain what these problems can do to pending court cases."


"The lieutenant may think there's a problem, but I don't see that there's a problem," Driskell said.


And the DA's office has never been told of any of the maintenance problems we've uncovered.

"It's not that we're trying to hide it, but I don't see a need in telling them that. If they wanna know that, we'd be glad to share that information," Driskell said.

It's not about getting drunks off the streets. It's about raking in that grant money. We're churning and burning, baby, just send the check. The DPS is in on the scam, too, charging motorists $3,000 for a DWI conviction. Budget shortfalls -- let's just increase the user fees on our roadways. Just think of all that fine money and surcharge payments.

But it's all right because it's all in the name of public safety. Isn't it?

Taking a stroll down by the stream of consciousness

So here I sit at my wife's computer in her study because I'm tired of going back to the office every night. I'm working on my opening statement for tomorrow morning. After being gone for over 12 hours today, the last thing I wanted to do was drive back to the office after I put my girls to sleep. So I did my research on my phone while sitting at the dinner table after cleaning the dishes.

It's amazing to me that my little smartphone has more computing power than the first Apple IIe my dad bought 26 years ago -- and for a fraction of the price. My phone doubles as my calendar and scanner. I can look up any provision in the Texas Penal Code, the Transportation Code or the Code of Criminal Procedure in an instant. Need some quick legal research? There's always Google Scholar in my bookmarks.

It hurts my brain to think about how attorneys practiced law before computers. I can't imagine having to have type every motion or pleading -- even those you used in most cases (the "throwdowns" as we say). Of course, as Brian Tannebaum and Scott Greenfield are wont to point out -- it's not the technology that makes the lawyer. A good lawyer still has to know what the hell he's doing in the first place. If you don't understand the 4th Amendment then it doesn't matter how many toys you have...

It's all in how you use it. Why did that guy buy a Porsche and then proceed to drive the speed limit down Memorial Drive? If you're going to drive it like that, you should've saved your money and bought a Malibu or a Focus.

At the end of voir dire this afternoon I had a lady in the panel ask me why I kept referring to the prosecutor as the "gummint lawyer." It was all I could do to keep a straight face. I mean, I can't reveal all my secrets, can I? I eventually explained to the lady that it was because she was a lawyer for the government.

I love what I do. The challenge of finding any escape from a hopeless case appeals to me. But it carries a heavy burden. We like to sit down and tell war stories over a few cold ones - the more outrageous, the better. It seems like a game at times. But then you suddenly realize that the client sitting next to you at the defense table is a real person and the consequences of a conviction are very real. It's sobering to look into your client's eyes and see the fear of what might happen.

And no little gadget can make that feeling go away.

Now it's time to get back to work. My client's depending on me.

The return of the boys of summer

The crack of the bat. The smell of the grass. The sights and sounds of summer have returned. The one sport that faithfully follows the ebb and flow of our lives is back. Sure, the young kids are ignoring it and fewer people are watching it - but baseball is still America's game.

Just as we have black letter law and the common law; baseball has its rulebook and its "unwritten rules" governing everything from stealing signs to celebrating a home run to lighting your teammate's shoes on fire. Just remember that it's okay to steal signs if you're standing on second base, but never, ever turn around and look at the catcher if you're standing in the batter's box. If you do, the next one is coming at your head.

This spring is a little sadder than the past because the great Duke Snider passed away this past weekend. For those of y'all unfamiliar with Mr. Snider - he was the centerfielder for the Brooklyn Dodgers in the 1940's and 50's. As great a ball player as he was, he was never better than the third best centerfielder in the Big Apple behind Willie Mays of the Giants and Mickey Mantle of the Mets.

Pull up a chair and lend an ear to "Talking Baseball" and get yourself ready for the Boys of Summer.

Lone Star State turns 175

In a sleepy little town on the banks of the Brazos River, while Santa Ana's forces laid siege to the Alamo, 59 men met and declared Texas independent. On March 2, 1836, the Republic of Texas was born.

The Texas Declaration of Independence was modeled after Thomas Jefferson's declaration - spelling out the role of government and listing the grievances the Texans had with Mexico. George Childress is generally credited as being the author of the document.

Mr. Childress was born in Tennessee in 1804 and crossed the Red River into God's country in December of 1835. In 1841, after several unsuccessful attempts to establish a law practice, Mr. Childress killed himself by slashing his abdomen with a bowie knife.

So, raise a glass of iced tea and wish Texas a happy birthday.