To fight or plea

While I was at the Harris County Criminal (In)justice Center this morning I ran into a colleague who used to have an office in the same building I'm in. He asked me if it was considered malpractice to plead out a client on a DWI case.

I told him no, I didn't think so, because sometimes the circumstances surrounding a case require you to negotiate a plea. For instance, suppose you have a client who picks up a DWI - but no one realizes there was a prior DWI conviction because it couldn't be confirmed at the time of the arrest. Now let's suppose it's a defensible case (not necessarily a winner, but a case that is winnable). Now what happens when the prosecutor offers your client a deal that doesn't take the prior conviction into account. What do you do?

If you believe that every DWI case should be fought to the bitter end, you run the risk that the prosecutor will uncover the prior conviction and muster his evidence to prove up the conviction at trial. Now, instead of time served and a fine, your client is looking at jail time or a long stretch on probation.

Were your client's interests served by refusing to entertain a plea offer? If you've increased your client's exposure without discussing the consequences with him - the answer is no. Entering into a plea might have been the best way to dispose of the case - but you refused even to consider it.

Throw in the DIVERT program (no matter how flawed) and there may be additional reasons to plead out that case rather than go to trial. If keeping that record clean is your client's most important concern then there are reasons to consider the program (just make sure your client is fully informed of both the benefits and risks of the program). Not allowing your client to make the decision whether to plead or go to trial is the worst mistake you can make.

Now, pleading out a DWI case on the first setting or before you've conducted any discovery is committing malpractice. The collateral consequences of a DWI conviction are too vast to plead out a client without investigating the case.

In our world, very little is black and white. We live in a world of grey. Always doing something or never doing something are equally harmful to our clients.

To the victor go the spoils

Brian Tannebaum writes today about the shifting sands of truth regarding the killing of Osama Bin Laden. Was the intent of the mission to capture Bin Laden or was it to kill him? Was Bin Laden armed or wasn't he? Did he resist or not?

The more the government says about the operation, the less clear it becomes what really happened. What ever happened to just telling the truth? If you don't know the answer to a question, just say "I don't know" or "I don't recall." People get tripped up all the time trying to keep their lies straight.

Of course it's not just our clients who get tripped up. We've all read offense reports in which it's abundantly clear that the officer is lying fabricating a scenario by which he gets to stop the driver or search the car. And everyone consents to any request by a police officer to search their car or home. Right.

Just remember that history tends to be written by the victors. The textbooks will never mention that Bin Laden was unarmed at the time he was shot and killed. That will only appear in an "alternative" history that will be discredited because the "losing side" has an ax to grind.

After all, why would an officer just lie and say that someone was resisting if they weren't? Why would an officer claim that a suspect attacked him if he didn't? The officer's account is swallowed hook, line and sinker by prosecutors and (most) judges and the defendant's account of the incident is ignored because he has a motive to lie.

Scott Greenfield wrote about the case of Richard Rosario - a man convicted of a murder in the Bronx back in 1996. The damning evidence that led to Mr. Rosario's conviction was the testimony of two witnesses who picked Mr. Rosario's photo out of a police book. In a state habeas proceeding, the court found that two alibi witnesses who could testify that Mr. Rosario was in Florida at the time of the murder were "questionable" and "not persuasive."

But the state's witnesses? They were strong. The state's case was unimpeachable.

What makes either set of witnesses any more reliable than the other? Two people testified they saw a man who looked like a dude in a book of photos while two other people testified that Mr. Rosario was with them in Florida when the cops say he was in the Bronx.

But we know who writes the history.

Buck Files to head the State Bar

Congratulations are in order for the new President-Elect of the State Bar of Texas Buck Files of Tyler. Mr. Files will be the first criminal defense attorney to lead the State Bar.

Mr. Files won the election by a mere 481 votes out of the 21,210 votes cast. The win is another victory for the criminal defense bar and solo practitioners across the state following the defeat of the proposed ethics rules amendments earlier this year.

It is a cliche, but in an election like this, every vote counts. Thank you to everyone that voted (and campaigned) for Mr. Files.

Yes, Virginia, a bolo is a tie

I ran into a colleague of mine on the 7th floor of the Harris County Criminal (In)justice Center yesterday while I was voting for the attorney representative on the Harris County Bail Bond Board. My colleague and I have a couple of things in common: we both graduated from South Texas College of Law and we both wear bolo ties.

He saw mine and told me not to go near County Court No. 4 because the judge, John Clinton (who has appeared before on these pages) did not care for his choice of neck wear. Apparently the judge felt it was an affront to the court to walk into the courtroom wearing a bolo tie not pulled up to the adam's apple.

The judge went so far as to claim that the bolo wasn't a tie.

Well, maybe it's time for some legislative history on this matter because on June 15, 2007, the Good Haired One, Governor Rick Perry, signed House Concurrent Resolution 12 making the bolo tie the official tie of Texas.

According to the text of the resolution, the bolo tie is:

A fashion accessory that can be personalized to reflect the wearer's taste and interests, the bolo tie is well matched to the individualism that is so much a part of the Texan identity; in selecting or designing a clasp, bolo tie wearers are able to express their personal flair; moreover, the selection of a bolo over a standard tie can suggest that the wearer refuses to be bound by convention and relishes the freedom to exhibit a distinctive sense of style even as they maintain a dignified, formal appearance.

The bolo tie symbolizes both the state's iconic western culture and the originality of its residents, and it is indeed appropriate that this handsome and unique apparel receive special legislative recognition...

I tend not to agree with much of what Gov. Perry does, but in this case, Gov. Goodhair got it right. So Judge Clinton just needs to get on board; after all, he and Perry bat for the same team.

Bowling for beer

Hmmm. Silly me, I always thought pints just came in one size on this side of the pond.

One lump or two?

Oh, the hypocrisy of those limited government folks never ceases to amaze. As Grits for Breakfast reports, Teabaggers in Smith County (that would be northeast Texas, for those of y'all not in the know), have come out in favor of (yet another) referendum to build a new jail.

Nevermind the fact that voters in Smith County (hardly a liberal stronghold) have said "thanks, but no thanks" on four previous occasions. Nevermind the debt the construction project would impose on county coffers.  Nevermind the fact that it costs Smith County less to house a few inmates in other counties than it would to pay for a new jail. Nevermind that the majority of folks being housed in jails across this state are being held for nonviolent crimes.

In other words, nevermind the fact that the Teabaggers proclaim themselves to be champions of limited government. The same folks that tell the world we need less government, not more, have no compunction about lobbying for restrictions to be placed on the constitutional rights of those accused of criminal activity. The same folks that tell the world we need less government, not more, have no compunction about creating new crimes or harsher penalties because of one bad incident that occurred. The same folks that tell the world we need less government, not more, have no compunction about allowing the police to intrude more and more into the lives of ordinary citizens -- whether it be through "back-dooring" our e-mail or cell phone communications or fondling people boarding planes.

You want to reduce the cost of incarcerating our fellow citizens? How about personal bonds for folks charged with minor nonviolent offenses who have no prior criminal record? How about allowing police officers to issue tickets for possession of trace amounts of marijuana instead of hauling someone off to jail? How about more pretrial diversion programs for folks without criminal records? How about reducing bonds so that defendants don't have to sit around in jail until their cases are disposed of?

The problem with those ideas, though, is that they're logical.

Looking for the next bogeyman

Yesterday's bogeyman is dead.

Today Scott Greenfield asks whether the death of Osama Bin Laden will change anything. Now that the mastermind of the 9/11 attacks is lying at the bottom of the sea, will the apparatus of the security state be dismantled?

Will the Patriot Act be repealed? Will the government cease efforts to do away with the Great Writ? Will the concentration camp prison at Guantanamo Bay be closed? Will the metal detectors at small town courthouses across the country be dismantled? Will los federales stop trying to force cellphone providers to give the state backdoor access to our communications? Will the airport gropers be forced to look for other employment? Will we finally stop flushing money down the toilet building more and more tools of death for the military? Will our young people be brought home from the Middle East?

I doubt it.

Already the government is warning us that the world might be a more dangerous place because of the death of Osama Bin Laden.

That's what the security state needs -- an enemy. Knock one down and put another in its place. After all, the government must justify the permanence of every "temporary" security measure.

The world is a dangerous place. It was a dangerous place before 9/11. It will be a dangerous place long after I'm dead and gone.

The goal of the security state is to do away with those pesky little protections afforded to us under the Bill of Rights. We can't allow the death of one bogeyman to get in the way of the eradication of our civil liberties. There will always be another threat just around the corner. And, because of that threat, the apparatus of the security state must remain in place. In fact, I'm certain that someone will stand up and call for more draconian security measures in the wake of Osama Bin Laden's death.

Where are those advocates for limited government when you need them?