This is neat. Craig Watkins is the Dallas County DA whose “conviction integrity units” have worked with groups like the Innocence Project to ensure that everyone incarcerated in Dallas is actually guilty. (There’s a great Wall Street Journal piece on the man here.)

Anyway, he was on The Colbert Report last night to talk about his work, and it’s funny, as Colbert’s interviews usually are, and Watkins comes off better than most of Colbert’s guests usually do. But he really cuts to the significant point very quickly, which is something I’ve heard debated a lot (in reference to Roman Polanski, most recently, but it hardly began or ended with him) – basically, if we know someone is guilty, why does it matter so much if things are handled by the letter of the law?

And the answer – as most attorneys surely know, but most laymen feel is a subject of worthwhile debate – is that, if you can’t trust that the system is functioning fairly in cases where there’s no real debate regarding innocence, then it’s really, really hard to have faith that it’s functioning properly when there’s a genuine dispute. Watkins uses OJ as his example, but it’s a debate that I had with some fellow non-lawyer friends regarding Polanski a few weeks ago.

(A little background, if you ignored the circus: Roman Polanski, accused of, among other things, raping a teenage girl in the 1970’s, fled the country after he entered his guilty plea in response to a sentence that wasn’t what he expected. The judge in the case has been accused of impropriety, and since Polanski’s re-arrest two months ago, the fairness of the original proceedings have come into question.)

My friends, all of whom are good and moral people who are repulsed by Polanski and the accusations against him, which he’s never disputed, don’t get why it’s such a big deal if the judge inserted himself into the plea bargain process, offered a very light deal, and then started asking reporters and prosecutors if he should maybe up the sentence a bit. “The guy raped a teenager,” they say, “And we all know he did it. Who cares if the judge got a second opinion and then decided to give the guy what he really deserves?”

It’s convincing, because all of that’s true. What Watkins has had the courage – both in his actions as DA, and even on Colbert last night – to point out is that it’s more important that we get it right when someone is guilty. If we (and by we, I mean the people on behalf of whom the state seeks justice) can’t work within the legal framework we’ve established to convict someone whose guilt is never really in doubt, then what hope is there that a person who’s guilt is anything but a foregone conclusion will get treated legally and fairly?

I don’t know a ton about Watkins – just what I’ve read in various media and on the occasional blog, really – but we’re definitely lucky to have him advancing this argument.

Labels: craig watkins, innocence, innocence project, presumption of innocence, public perception, roman polanski, what prosecutors do right, wrongful convictions

posted by Dan   permalink   0 Comments

There’s lots of talk about Tiger Woods right now. After a “minor car accident” on his own property, he’s gone back and forth regarding speaking to the police, and finally hired Orlando criminal defense attorney Mark NeJame, who’s advised him to keep his mouth shut – as any good defense attorney would do.

I thought it was interesting that a lot of the talk about the fact that Woods hired a defense attorney made mention of a 2003 article that described NeJame as “Orlando’s own Johnnie Cochran”. It reminded me of the Chris Rock joke about Cochran and Kobe Bryant – people said that Kobe shouldn’t have hired Cochran because it made him look guilty, and Rock’s joke is that, yeah, maybe, but at least then you get off, and you’re the guilty-looking person who goes free, rather than the innocent-looking guy in jail.

That perception, that by hiring Orlando’s Johnnie Cochran equivalent, Woods must have done something wrong, isn’t an accident, I don’t think. I don’t think that it keeps getting brought up by coincidence – there’s a strong push to suggest here (as in most cases) – that Tiger Woods has something to hide by hiring this guy.

That’s my take on it, anyway, but I am but a guy who works in the office. The office is full of smart attorneys, however, so I talked to Kristi Couvillon, one of those smart attorneys, for her take on it.

“A lot of innocent people haven’t hired attorneys for that reason and some of them have found themselves convicted,” she said. “I think an innocent person has more reason to hire an attorney, not less. Honest statements can be misconstrued and used by law enforcement as statements of guilt, and it would be so much worse, to me, for that to happen if I hadn’t done anything wrong.”

Which makes sense, especially if you’re high in the running for title of “most famous person in the world”, like Tiger Woods, and people would get a thrill out of seeing you brought down. The stakes are pretty low here, for sure – Woods probably faces misdemeanor charges, at most, though that’s just my speculation based on some media reports – but that only makes it more interesting that there’s this rush to tarnish his image (especially considering how squeaky-clean it is) right now, what with the “he hired the equivalent of Johnnie Cochran” bupkis and all. If there’s a clear interest in convicting the guy of something in the court of public opinion right now, that’s probably all the reason he needs to defend himself with an attorney. I wouldn’t be talking to the police right now, either.

Labels: hiring a lawyer, in the news, presumption of innocence, public perception

posted by Dan   permalink   0 Comments

Steven Hirsch is a photographer in New York City. He’s got a blog called Courthouse Confessions where he interviews defendants leaving the courthouse, along with a (really nice, incidentally) photo portrait. It’s a pretty remarkable project for a few reasons, but my favorite thing about it is that it imposes no judgment – he doesn’t inject his own viewpoint or statistics or any of the stuff that you’ll often see with projects like this. The subjects speak for themselves.

I think what I really like about that approach is that it doesn’t treat people like anything other than individual human beings who are fully capable of assessing their own circumstances, and drawing their own conclusions. We talk at Sumpter & Gonzalez often about allowing a client’s integrity to come through, and how we want to represent the good in people. Sometimes it’s the state that doesn’t want to see the client as human, or that wants to deny that they’re all normal people with their own sense of integrity, but that also gets stripped away when you reduce a person to the statistics about incarceration, or a horror story about the conditions in a given facility, or even the way that the state shafted someone. The person becomes incidental, and the system becomes the focus. There’s a place for that, for sure, but it’s good to see a project like Hirsch’s give people the opportunity to stand up for themselves.

Here’s Steven, one of my favorites:

They're definitely a status symbol. Not that that's what I'm going for but they definitely give you the idea that the person was in fact in jail, the person was in fact incarcerated. Definitely. Definitely. As well as the shoes and my lack of a belt also; all of it gives you you know. Someone would see me and it gives you off the jump that I came from jail.

[…]

These are actually jail issued sneakers that you get because when you enter the jail your property is taken and your sneakers are taken. People argue about who has the better sneakers and people are getting hurt and even killed over the issue of sneakers they come in jail with. I might have a $145 pair and you might have a $20 pair and might decide you might want my $145 pair and I might need to fight. The sad thing is as that as time go on I don't want to say it became a fad, it became a style. It became kind of like automatic you might have to fight for your sneakers, which is usually the first thing another inmate might try to take from you. They might ask you nicely first, "let me get those. Let me give you a couple of soups, which only cost 35 cents." Let me give you some of my commissary for your sneakers, you know.Me personally I'm actually happy that you don't have to come in with your own sneakers, that you can have jail issued. It's kind of like a uniform in a way. That's one less thing to argue about. I think it was a good idea.

Labels: public perception, standing up for people

posted by Dan   permalink   0 Comments

I’m reading Jon Krakauer’s Where Men Win Glory, which is sort of a dual biography of Pat Tillman and history of Afghanistan. (Do I know how to party, or what?) Tillman was the Arizona Cardinals safety who left the NFL after September 11th to enlist in the Army. He was killed in Afghanistan by friendly fire while serving as an Army Ranger. Fascinating dude, totally worth reading about.

One thing that you may not know about Tillman is that he was charged with felony assault when he was seventeen. It was a dumb mistake – he was out with some friends, and one of them left the group to try to start a fight with another group of boys. He succeeded, and being a shrimpy fella, proceeded to get a pretty decent beatdown. After a minute, Tillman and his friends returned, and the other boys took off.

Tillman misread the situation, and pounced on the largest of the boys who was running. And he beat the heck out of him, giving him a concussion and shattering his teeth. A few weeks later, he was charged.

He was also offered a scholarship from Arizona State University, which would be retracted if he were to be convicted of a felony. The judge, over the objections of the prosecutor, apparently reduced the charges to a misdemeanor, to which Tillman pled guilty. He was sentenced to 30 days in jail and 250 hours of community service, and he was allowed to keep his scholarship.

The boy that he beat up – one of his friends talked about that in the book. At the time, she had been furious. But when Krakauer found her, she was more reflective, and I thought it summarized very nicely what we believe, and what we do, here at Sumpter & Gonzalez:

She lamented that her only personal knowledge of Tillman revolved around one of the most regrettable incidents in his life. “What I take from Pat Tillman is that you are not who you are at your worst moment. After what Pat did to Darin, it seems like he really turned his life around and became quite an honorable person.”

When dealing with juveniles, this is especially true. But it’s really the case for everyone we deal with. When people ask me if I feel weird working for a firm that represents a lot of people who are guilty, that’s what I remember: They’re not what they’ve been charged with. Even if they did it – there’s more to a person than the worst thing they did in their life. If you reduce them that way, you have fewer opportunities for heroes like Tillman.

Labels: football, holistic advocacy, juveniles, pat tillman, public perception, second chances, standing up for people

posted by Dan   permalink   0 Comments

This post’s bound to be a little more personal than some on the blog, but it’s something I’ve been thinking about pretty much since I started working at Sumpter & Gonzalez.

I’m not a lawyer. As such, I haven’t got a background with thorny constitutional issues, and arguments that are at the core of the criminal defense practice – about everyone having a right to the best possible counsel, about process and procedure needing to be strictly followed – are things that I’ve never had to consider besides in very abstractly until I came onboard here about a year ago.

It seems like most private defense firms, S&G included, are heavy on DWI cases, since it’s certainly the most common arrest in Travis County. I’m guessing that extends to other places, as well. A big part of my job involves keeping up with the dialogue among defense attorneys on blogs, in the news, and elsewhere, and the reaction to DWI is something that I’ve thought a lot about since I started here.

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Two things come to mind, before I go into greater detail:

1. I’ve always been a little bit uncomfortable with the way that DWI attorneys can sometimes talk about the charge like it’s not a significant charge. You’ll see it even from really thoughtful people, like the California lawyer who maintains the DUI Blog, who spends a lot of time talking about the relative safety of driving after drinking compared to driving while texting – and not, presumably, because he wants to see an uptick in DWT arrests and legislation, but because it’s a strong rhetorical way to diminish the dangers of DWI.

2. My first few months here, my main job was to watch and take notes on DWI arrest videos, and I’ve seen a ton of tapes – both of people who I’m convinced are totally innocent and stone-cold sober being arrested, as well as of people I’ve been really grateful to know were scooped up and arrested that night so they didn’t hurt anyone.

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Driving while intoxicated is a very serious thing. It’s dangerous, and it turns people who are otherwise just like you and me into potential killers. It could have been you or me, maybe, on the wrong night. People respond very viscerally to it because a lot of them know someone, or know someone who knows someone, who was hurt by a drunk driver, or they’ve heard powerful stories from people who have been there.

All criminal charges are pretty unpopular, but DWI is especially so, probably because it’s something that many of us have kinda-sorta maybe committed once or twice at some point in our lives, possibly. You think you’re okay to drive, but it’s possible a cop might not agree. And so I think that we respond to crimes that we’re aware we might have once been guilty of in a more visceral way, because demonizing those who are accused of it gives us some distance from our own poor judgment. If we call it out as abhorrent, and are vocal in doing so, then it feels less like something that we’ve done.

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I used the word “we” up there, but I don’t drink. No reason for it, I just don’t. That doesn’t give me a special level of purity – I’ve driven a car under circumstances that were less than ideal, like bleary-eyed and sleep-deprived, and I’ve been guilty of checking a text or two in the past while behind the wheel. But I’ve long been uncomfortable with DWI, and I really wondered when I started working at the firm if that would be something that would pose a problem down the line.

It hasn’t, and I’ve wondered what that means. Because I haven’t got the background in law, I haven’t spent a lot of time making or hearing the arguments about the constitutional right to an attorney. And I read the discussion online, or I listen to the attorneys here talk, and I’m on the side of the accused, almost every time. More to the point, I’m against the police, when it comes to forced blood draws, or sting operations, or sobriety checkpoints, or other dubious things that get announced to popular acclaim in relation to DWI.

And I’ve been trying to figure it out. What’s significant about DWI?

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I read a few articles recently that helped solidify what it is.

There was the forced catheterization of a DWI suspect (innocent, incidentally, not that it matters much) in Lawrenceburg, Indiana.

There was the story of the man charged with DWI for sleeping outside of his car while drunk.

And there’s the “no refusal weekend” thing that happens in Travis County whenever there’s a holiday or an event in town.

And here’s what occurs to me is that DWI: Being that it’s something so many people speak so vehemently about as a great societal ill, and so many people are reluctant to encourage a calmer policy on it, lest they feel guilty for their own likely transgressions, it’s a scenario in which the police and the state are able to abuse their authority, not just with impunity, but while feeling righteous for it.

Add to that the fact that we don’t see people charged with DWI as victims the way that we might see others – they’re not abused or attacked or scapegoated, they made their own choices – and there’s no real impulse to defend them. There’s no outporing of compassion, and so things like the forced catheterization get done by someone who can make a compelling argument that few people will want to contest that they’re keeping us all safer.

DWI is unique in this, I think. We, as a society, disdain people accused of all sorts of crimes, but this one provides some of the easiest targets for casual scorn. It doesn’t take away anything from the seriousness of the charge to note that the response to it, where a scary number of our rights are coughed up, surrounds the political issue of drunk driving, not the actual one.

And the attorneys here and elsewhere, including on all of the blogs I read every day, probably already knew this. But if you’re a non-attorney and you’re wondering, like I’ve been, why there’s an urge to downplay the seriousness of DWI, it’s because the ramifications of the accusation continue to grow in ways that have nothing to do with the charge itself.

Labels: abuse of power, dwi, public perception

posted by Dan   permalink   0 Comments

Imagine being told that you must register as a sex offender for life for something that is not a even a crime in Texas, let alone a registerable offense. Well, that is exactly what happened to a client of mine when he moved from out-of-state to Texas to live near his mother. When I consulted with this young man I thought surely this is a beaurocratic mix-up with Texas Department of Public Safety that can be resolved with a few phone calls right? Wrong. What ensued was a series of Kafka-esque conversations with DPS employees, culminating in a year of litigation after we had to sue DPS to have our client removed from the sex offender registry.

The situation all started when my client was convicted of a misdemeanor in his home state for having consensual sex with his seventeen year old girlfriend when he was twenty-one (the longer back story was that the girlfriend's father was upset so he called the cops to report this "crime"). Unlike Texas, where the age of consent is seventeen, in my client's homestate, the age of consent was eighteen. When he moved to Texas, however, authorities told him that because his "offense" was "substantially similar" (more on that in a second) to the Texas offense of Sexual Assault of a Child, he would have to register as a sex offender for life. Despite the fact that courts have held that sex offender registration is a "collateral consequence," and "non-punitive", having to register as a sex offender is as close as you can get to a lifetime sentence if you ask me.

The legal basis DPS was relying on to make my client register was a provision under Article 62.003 of the Code of Criminal Procedure which allows DPS to make a determination whether an out-of-state offense is "substantially similar" to an offense here in Texas. If they say yes, then you will be forced, with threat of prosecution for the third-degree felony of failure to register as a sex offender, for the rest of your life. Thankfully, 62.003 also contains a provision that allows a person to appeal this determination by DPS. As I mentioned, this is exactly what we had to do in this case.

The result? The Court thankfully sided with us and found that my client's previous offense was not "substantially similar" to any offense in Texas (imagine that, something that is not a crime in Texas is not "substantially similar" to a crime in Texas). Moreover, the Court ordered DPS to immediately remove my client from the sex offender registry and to contact all agencies that they have previously disseminated this information to.

Interestingly, in some logistical discussions with DPS post-hearing, I was told that this was the first case ever brought successfully in Texas under 62.003. What this tells me anecdotally is that my client can't be the only one in this situation. If I had to guess, I would suspect that there must be hundreds, if not thousands, of people in Texas who are currently on the sex offender registry that should not be.

Labels: dps, public perception, sex offender registration

posted by Kristin Etter   permalink   0 Comments

If there is one area of law that has changed more than any other through the years, it is juvenile law. And I don’t mean change in terms of legal definitions or statutes, I’m talking about change in terms of societal perception and treatment.

When I was a kid if someone got into trouble at school they were dealt with by adults entrusted with the power to investigate and respond accordingly - Adults with the wisdom to evaluate a situation and discipline a child if necessary. A coach might order someone in gym class to do pushups, have a student run laps around a field, or even whack a behind with a paddle. Teachers might give additional homework, write a letter to a parent, or send a child to the principal’s office. Principals might reprimand a student, expel them, or send them home to face their parents. Parents might ground their child or levy additional chores. Whatever the response, adults in charge could exercise discretion when deciding what discipline, if any, should be administered. Police interrogations, strip searches, and criminal charges were a last resort. Now, investigative measures and disciplinary actions are, more often than not, pre-determined. Now there is zero tolerance.

On October 8, 2003, thirteen year-old Savana Redding was strip-searched while at school. Savana was an honor student who had never been in trouble before. Even so, because of an unsubstantiated allegation that she had brought drugs to school, authorities felt compelled to search her. First, she was forced to take her outer clothing off. A male vice-principal and female school nurse inspected her jacket, t-shirt, pants, shoes, and socks. When nothing was found she was told to pull her bra to the side, exposing her breasts, and shake it out. Still nothing. Finally, she was made to expose her pelvic area by pulling the crotch of her underwear out to see if any drugs had been hidden there. Nothing was found. During this process Savana continued to express her innocence. She never consented to the search and her parents were not contacted.

What kind of dangerous drug would justify such an evasive search? What were they looking for?

Advil.

Parents need to realize that student behavior, which in the past, would have been handled by the school - or better yet, the parents - is now, more often than not, pursued according to pre-determined directives and turned over to law enforcement. Criminal charges are filed and must be dealt with. One kid pushes another kid and assault charges are filed. A child sprays deodorant in a locker room, sets off a smoke alarm, and is charged with a felony. A kid who writes “bomb” on an empty envelope as a joke then makes the mistake of leaving it on top of a trashcan, is charged with terroristic threat. The list goes on and on. Don’t get me wrong - it’s easy to see how we got here. It’s a frightening new world with kids taking guns to school to exact revenge for perceived persecutions, joining gangs in order to feel tough and protected, self-medicating via prescriptions found at home or drugs purchased on the street. Terrible crimes occur in school these days that shock all of us. We have to do everything possible to ensure the safety of our children.

But aren’t we just taking the easy way out with zero tolerance?

A child’s life is so difficult these days, and I fear we are just making it tougher, albeit in the name of safety and a child’s best interests. A child is given no leeway to exercise poor judgment and make the stupid mistakes of childhood without grave consequences. An adult, meanwhile, can avoid making a mistake of judgment altogether by merely turning to zero tolerance. So much easier than weighing the facts and using common sense! We're saying, "It doesn’t matter that you are a child and do not know better, I will not burden myself with personal judgment regarding the situation and run the risk of making a decision that others might not agree with. Zero tolerance will make my decision for me."

Last week the Supreme Court found the search of Savana Redding to be unconstitutional. “Outrageous” was the term used to describe the school official’s actions. But I fear zero tolerance is here to stay in one form or another. A school official faced with the decision of how far to go when dealing with a child’s apparent misbehavior will almost certainly err on the side of caution and avoid the danger of subjective discretion. Whether violating a child’s constitutional rights in an effort to procure evidence or deciding to press criminal charges, caution will be the driving factor, not tolerance. When in doubt, search the child, call the authorities, and file the charges.

I think about this every time I’m confronted by an upset parent who doesn’t understand why their child has suddenly become involved in the juvenile justice system. Why is my child being treated like an adult criminal? Why have criminal charges been filed just because my child got into a schoolyard fight or had ibuprofen in his pocket? It’s hard to understand. Shouldn’t they, as parents, be given the opportunity to discipline their child without such drastic measures being taken? That’s when I remind them that the world has changed. That there was a time when a kid could act like a kid and be treated like a kid, but unfortunately… those days are long gone.

Labels: juveniles, public perception, taking the easy way, zero tolerance

posted by Dal   permalink   0 Comments