Recent Blog Posts

Destination Unknown?

Q. Tate Williams — Fri, 10 May 2013 22:16:00 GMT

One of my earliest posts on this blog was about knowing when you've won. However, if you don't know how you want something to end, then you don't know how to begin - and neither may your lawyer and the seeds of a bad attorney-client relationship are sown. In other words every case needs to have clear goals.

One of the first questions I ask any potential client is "what do you want to happen?" And then we talk about what it would take to get there and develop a plan to do so. And this is important because it allows the client to understand what has to be done in their case and allows them to monitor progress.

Clients don't see 99% of what we do. As a result, they think we do nothing (and some lawyers do nothing, but I'll save that for another post). But if everyone is on the same page and understands the goals as well as what it takes to get there (tangible and intangible), then intelligent discussions about where things stand can be had and intelligent decisions can be made - and many disappointments and disagreements avoided.

If this sounds like a lawyerly description of simple communication, it is. But as lawyers, especially trial lawyers - who may be very effective at communicating with judges, jurors, and other lawyers- we often aren't worth a damn at keeping the most important party in the room in the know - our own clients. While I'm not qualified to put the bar on the couch, I will haphazard a guess that this tendency comes from the same place as most lawyers' divorces - narcissism.

Egos aside, there is a fundamental difference between a goal and a promise. As Yogi Berra said, "predicting is hard, especially when it's about the future." Lawyers who over-promise convert goals into expectations and may be setting their clients up for disappointment and themselves for a disagreement. Worse is the client who thinks everything is going along fine towards the predicted result until the last moment when the lawyer gives bad news and bad choices that have to be acted upon immediately. Sometimes quick descisions have to be made, but surprises that involve jail time are often about as welcome as ants at a picnic.

Open lines of communication, timely responses to electronic messages, phone calls, and questions can help avoid rude surprises. But most importantly, a mutual understanding of the goals of the representation from the beginning are the foundation upon which all later communication is built. The only thing a lawyer can ethically promise is hard work and to keep the client informed. Whether the client wants to be informed, is, however, another matter.

Once Again, Backpage Bust is Front Page News

Q. Tate Williams — Wed, 08 May 2013 21:15:00 GMT

The Wall Street Journal recently reported that Houston led the nation in new manufacturing jobs, and it seems the Harris County Sheriff's Office, eager to do its part, has manufactured another round of sex crimes through prostitution stings.

Continuing a recent streak of highly publicized arrests, Adrian Garcia's boys and girls apparrently posted fake ads for non-sexual services (we know this because the sites they target do NOT allow ads for prostitution) and probably set up their voyeur room in yet another local motel waiting for unsuspecting men to call the numbers for these non-sexual services only to be greeted at the door by an attractive undercover officer who then typically turns the conversation towards sex at rediculously low or NO prices.

The Houston Chronicle, lazy again, failed to challeng the HCSO about what the ads actually were, who offered and agreed to what or whether the officers' conduct is even legal. But that would involve reporting - much harder and more time consuming than simply repeating a press release and dragging their fellow citizens names, faces, and reputations through the mud for a few mouse clicks.

Don't Call It DIVERT

Q. Tate Williams — Sun, 05 May 2013 23:36:00 GMT

As per local news reports, the Harris County District Attorney's Office began a new DWI pre-trial intervention (PTI) program in April for first time defendants. This program was established to replace the controversial DIVERT program which ended with the election of Mike Anderson as District Attorney. To the lay person, the two programs may appear identical, but they're not.

While the aftual agreement has not been finalized yet, the eligiblity requirements (See "Eligibility Information for the DWI Pre-Trial Intervention (PTI) Program for Defense Attorneys") appear clear cut. The most clear is that the "HCDA reserves the right ability to deny PTI to any defendant on the circumstances of the DWI or any reason deemed relevant." In other words we don't have to take you if we don't want you for any reason or no reason at all (your breath test result is too high, there was an accident, or its an easy case for the state).

To some local attorneys, this confirms what was previously known about DIVERT. However, the PTI application process is significantly different in one BIG way. Applicants are required to write their version of events (confess) and why they should be admitted into the program. If they don't confess, they likely won't be admitted. If they do confess, but still aren't admitted for whatever reason - they can't take the witness stand in a trial and contradict this sworn statement without opening themselves up for impeachment and potential prosecution for perjury.

In other words, for many Defendants, it's a trap. This is why it's critical to have an experienced DWI Defense lawyer review the case and advise one before applying for PTI - you may be giving up a lot more than the few hundred dollars application fee.

Targeting Charities

Q. Tate Williams — Wed, 01 May 2013 23:23:00 GMT

I haven't seen many of these used on the range, but this was the only box left at Gander Mountain.

On a related note, my all criminal-lawyer team in the personal injury lawyers' recent charity Allied Advocates Foundation 2013 "Clays on the Brazos" sporting clays tournament made a respectable showing and might have made a better run for the title if it wasn't for...ummm... well.... me. The only thing I can say in my defense is that we each finished in a place directly proportional to the fair market value of our shotguns. Coincidence? Of course, a bad workman always blames his tools. In all seriousness, I invited these gentlemen because I knew they were better than me and I'll take my Daddy's old Browning over those Italian jobs any day.

Genius?

Q. Tate Williams — Mon, 22 Apr 2013 23:50:00 GMT

Courthouse regulars are familiar with this sight. For a handicapped person, the gullwing doors are probably a godsend. And, then, there's the whole time machine thing....

The Kaufman County Rewind

Q. Tate Williams — Wed, 17 Apr 2013 19:34:00 GMT

In the first few days after the murder of the Kaufman County District Attorney it was widely reported that the Aryan Brotherhood of Texas was suspected. With the arrest of a disgruntled former justice of the peace previously prosecuted by the victims who has no apparrent connection to the ABT, that theory seems dubious, at best.

Why was this reported initially, at all? Were any actual facts connecting the notorious prison gang to the murders were ever presented by authorities? Was this theory ever challenged by journalists?

Many people familiar with the wide federal prosecution of the ABT believe that the focus of any reprisals by that gang would likely be at a much higher level than a rural Texas county official who played a relatively small role in the crackdown. Some even theorized that the gang would have known better than to engage in that type of activity because of the additional heat that it would bring upon them. In the end, it doesn't appear to have been the prison gang at all. But these voices were few compared to the apparrently erroneous reports that the white supremacist prison gang was likely behind the killings.

Unfortunately for the alleged AB defendants soon to stand trial in federal courts, some potential jurors may believe that they were linked to the assasination of those public servants in Kaufman County and improperly hold that against them instead of judging them on the very serious charges actually brought against them. In other words, the trials of all AB defendants may be unfairly prejudiced by the early reports about Kaufman County. The courts and attorneys will have to be extra vigilant during voir dire. This will consume the limited time available to them that might be better spent on other topics. As a general rule, attorneys have no right to examine the jury panel federal criminal trials. Local rules and individual judges may allow attorneys to question the panel as they do in Texas state courts, but it is usually for a much shorter period of time - time that now must be consumed, in part, by discussing this story.

This is not meant as a defense of the ABT. It is a critique of the media repeaters who widely blasted unsubstantiated rumors without putting them into appropriate context, challenging their sources, or conducting even rudimentary analysis to distinguish fact from fiction or even suspicion from probable cause. No one seems to mind when its a notorious racist prison gang on trial in the Court of public opinion. But often, its just an ordinary American, tried and convicted on little evidence in the press before even being charged with a crime.

Reduced Punishments for Repeat Prostitutes? (Updated)

Q. Tate Williams — Tue, 16 Apr 2013 22:00:00 GMT

I try to avoid writing about pending bills because I want to focus on actual laws rather than potential ones, but the Texas Tribune has an interesting post about about a bill rolling back felony punishments for repeat offender prostitututes and focusing, instead, on diversion, education, and treatment that would be more effective (cost and otherwise) than incarceration.

Update: The bills referenced in the report, HB 2801 and SB 1712 may be dead in committee.

In the Image of God or the Tradition of Pilate

Q. Tate Williams — Sun, 14 Apr 2013 23:13:00 GMT

I was on a panel this morning with other professionals who work in criminal justice to discuss this from my perspective as a defense attorney.

My introduction was that all of us will have the opportunity at some point in our lives through jury service to sit in judgment of another and that the challenge is to do so as a human being created in the image of God, truth-seeking, with compassioin and mercy for both the accuser and the accused, rather than in the tradition of Pilate, a citizen seeking to placate the passions of the crowd against our own better judgment and washing our hands of our role upon its completion - and that challenge is no less to the other participants in the system, particularly persons of faith, as there is a tendency, among all, to silo our religious and professional, and public lives so that they rarely, if ever, intersect when it matters most.

Now that's a fancy way of saying not to check your faith at the courthouse door, and something I've written about before, but I think it's something that's worth saying because that's where the rubber really hits the road hard.

Travis County DA Arrested for DWI (Updated)

Q. Tate Williams — Sat, 13 Apr 2013 21:02:00 GMT

Rosemary Lehmberg, the duly elected District Attorney of Travis County, Texas, (Austin) was arrested for Driving While Intoxicated late Friday night near the intersection of RM 2222 and FM 620, near the lake.

According to the Austin American Statesman, the

63 year old admitted two vodka drinks earlier in the evening;
a citizen called 911 and said someone was driving in the bike lane for at least a mile;
she was weaving in and out of traffic.
she crossed into oncoming traffic;
she performed a field sobriety test;
she was either “excited, insulting and cocky.” or
she was “cooperative, polite;”
her speech was slurred and mumbled, her balance was wobbly;
her walking was “staggering and unsure;”
she was polite, that
she had a moderate odor of alcohol on her breath;
her eyes were red, watery, and glassy

or basically everything every DWI arrest report I've ever read says, even the ones that were later dismissed or resulted in a not guilty verdict.

Ms. Lehmbeg is presumed innocent and these facts tell us nothing other than that Travis County Sheriff deputies are as adept at "checking boxes" and repitition as any other law enforcement officer in the state of Texas. They are doing what we, as citizens, expect of them. If they think someone might be intoxicated, rather than put a motorist who might cause a collision or injury back on the road, they arrest them and let our courts, particularly our juries,decide if that evidence rises to proof beyond a resonable doubt.

Update: Ms. Lehmberg has reportedly pleaded guilty without an agreed reccomendation to the judge, who sentenced her to 45 days in the Travis County Jail, a $4,000.00 fine and a six month driver's license suspension. Wow! For a first time DWI without a wreck, even under those facts, that's a pretty harsh sentence in my experience.

Sign of the Times

Q. Tate Williams — Fri, 12 Apr 2013 21:20:00 GMT

This sign was seen on Pierce street near downtown. All I can say is, I don't know the backstory here, but none of them can, as this blog has written many times.

DPS Ignored Bad Lab Work Too Long

Q. Tate Williams — Tue, 09 Apr 2013 21:25:00 GMT

If anyone is looking for yet another reason not to take a crime lab's word for it, comes a report from the Texas Forensic Sciience Commission that supervisors at the Texas Department of Public Safety's Houston crime lab knew of some problems with work done by Jonathan Salvador before any corrective action was taken.

The bottom line is that up to 5,000 cases across 36 counties may be affected and a dozen or so have already been overturned. The human and financial costs of this sloppiness may be inestimable as people who were wrongfully convicted or incarcerated will seek damages and countless other cases will result in re-examination by forensic scientists, attorneys and judges. This will take years to sort out and involve thousands of hours and millions of dollars - at public expense.

Bad forensic science, like bad police work, and bad prosecutorial ethics, hurts everyone. It hurts the innocent, it denies victims justice, and it simply costs more money in the long run.

And yet, again and again police, prosecutors, defense lawyers, and analysts take so-called "short-cuts," not anticipating that in the long run, we all lose.

16 Can Get You 20!

Q. Tate Williams — Mon, 01 Apr 2013 17:48:00 GMT

Rarely the week goes by that I do not receive a call or two about Texas Statutory Rape law. This can be confusing because Texas doesn't call it Statutory Rape. We call it "Sexual Assault of a Child." The meaning, however is the same.

The Age of Consent in Texas is 17.

It is against the law in the State of Texas to have sexual relations or touching of any kind with a child who is under 17 years of age if you are more than three years older than the child or not the spouse of the child. A child under 14 cannot ever consent to sexual activity of any kind with anyone.

It is No Defense that:

You didn't know how old the person was;
They lied to you;
Y'all are in love;
They consented;
Their parents don't mind;
They don't want you prosecuted.

Sexual Assault of a Child is a 2nd Degree Felony which carries a potential range of punishment of 2 - 20 years in prison, up to a $10,000 fine, or up to ten years of community supervision and, in most cases, lifetime registration as a sex offender.

Scared yet?

The simplest way to avoid conviction for Sexual Assault of a Child is not to have sex with people who might be under 17. If you have or are accused of it, it is almost always unwise to discuss the accusation with anyone other than your lawyer, especially investigators from CPS or law enforcement.

More people (usually men) are charged with sexual assault of a child in Texas because they told someone about it or discussed it with law enforcement than any other reason.

Which reminds me of another blog post.

Prostitution Bluff Catches Poker Star

Q. Tate Williams — Tue, 26 Mar 2013 02:58:00 GMT

Using tactics similar to those of Houston area police agencies, a North Carolina backpage.com prostiution sting caught an attorney from a recent high profile case and former World Series of Poker champion in its web.

According to the Durham Herald Sun, officers of the Wake Forest Police Department the men responded to an ad investigators placed on the website and were arrested at a local hotel "when the solicited an undercover officer." Reports of poker star Greg “Fossilman” Raymer's arrest spread quickly across the internet, including false rumors that the pretend prostitute was a man. He has been released on bail and is due to appear in court early next month.

What has not been widely reported, however, is whether the investigation was recorded and whether those recordings support the allegations. As this blog has noted before, the publicity accompanying prostitution arrests typically fails to scrutinize allegations or follow up and report whether people arrested are actually convicted or plea guilty. As a result, the damage to their reputations done by these sensational arrest stories and the shame, embarrassment, and humiliation suffered by the accused and their families can outlive any criminal prosecution. This is in part, because the incentives to various stakeholders are the buzz from the arrest, not the disposition of the case.

For police, a high profile arrest gives the appearance of competence and may deter others from engaging in similar conduct. For media, a celebrity sex scandal drives ratings and web traffic and thereby advertising dollars. In an era of declining newsroom budgets, the shoe leather journalism necesary to dig into a story and follow the various court proceedings over months or even years may not be worth it unless the subect is an "A-List" celebrity. Similarly, law enforcement agencies are unlikely to issue public statements on cases that don't result in convictions unless the amount of media attention demands it.

The losers of this arrest intensive attention are consumers and, ultimately, all other defendants as incomplete reporting turns the presumption of innocence on its head. Not all accusations are true and not all arrests result in convictions. But without a vigilant local press that follows cases to their conclusion, casual news consumers only hear half the story, presume guilt, and after years upon years of news consumption internalize the presumption and bring it with them the next time they are called to jury duty and sit in judgment of another accused.

Whether Mr. Raymer, the attorney, or any of the other suspects arrested in the backpage.com sting will be convicted remains to be seen. Experience has demonstrated that prostitution stings aren't always as advertised - and in Texas, may not even be legal.

Pope Named Francis A Novel Idea?

Q. Tate Williams — Wed, 13 Mar 2013 21:19:00 GMT

In 1979, American Lawyer and author Walter Murphy's novel, The Vicar of Christ became a best seller. It is the fictional story of an American lawyer and marine who wins the Congressional Medal of Honor in Korea, later becomes Chief Justice of the U.S. Supreme Court, loses his wife, joins a reliigious order, and is alter becomes pope, taking the name Francis I. As pope, he leads an ecumenical evangelical movement to renew the Church in the developing world and youth, embracing some progressive ideas and sells Vatican treasurers to finance the renewal all the while battling a scandal ridden inefficient Vatican bureaucracy hampered by conservative resistance to change inside the Vatican and South American capitals.

Sound a little bit familiar?

Should've Been a Banker

Q. Tate Williams — Fri, 08 Mar 2013 23:43:00 GMT

Late last year, Marco Antonio Delgado, an El Paso lawyer accused of laundering $600 million dollars of drug money was denied bail by a federal court in El Paso, Texas. A few weeks later, the same Department of Justice prosecuting the attorney announced that it had settled with mega-bank HSBC for a deferred prosecution agreement and almost two billion dollars in civil penalties for laundering $881 million dollars in drug money. The settlement and the disparity between the way ordinary Americans are handled by the criminal justice system have not gone unnoticed by elected officials concerned about the apparrent immunity of the financial services industry.

In a U.S. Senate Banking Committee hearing yesterday, former local law professor and newly elected Senator Elizabeth Warren (D-MA) scolded regulators, as reported (including video) by many media outlets,

"If you're caught with an ounce of cocaine, the chances are good you'll go to jail. If you're caught repeatedly, you can go to jail for life. Evidently, if you launder nearly $1 billion for drug cartels and violate our government's sanctions, your company pays a fine and you go home and sleep in your own bed at night. I think that's fundamentally wrong."

According to the IRS's own statistics, In Fiscal Year 2012 alone, there were 1663 money laundering investigations initiated, 1411 prosecution reccomendations, 1325 charges filed, 803 sentences imposed with 84.7% receiving prison time for an average of 64 months. In other words, most targets of money laundering investigations are not only prosecuted but sent to prison for an average of 5.3 years. And yet, perhaps the largest money laundering operation of all-time was not even charged and none of its employees were either - despite laundering almost a billion dollars for a profit over a period of years after repeated warnings. Why?

Several days ago, U.S. Attorney General Eric Holder and Senator Chuck Grassley had an exchange about whether some banks have become "too big to jail." In response to the question, Attorney General Holder said, in part,

"I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if we do prosecute, if we do bring a criminal charge it will have a negative impact on the national economy perhaps even the world economy. I think that is a function of the fact that some of these institutions have become too large."

He shouldn't be. Almost a century's worth of experience in prosecuting the mafia and other criminal organizations has taught many in criminal justice that there are always people willing to step up and take over when leaders are jailed. The banks won't crash if guilty parties are punished; they'll just promote and hire replacements. Is there really a shortage of people lining up to make six figure salaries and rake in seven figure bonuses? The truth may, instead, be that it is easier to proescute an individual who does not have the strength and the resources of a transnational corporation to protect him or representative executives from his own industry in the White House and on Capitol Hill.

A little more than a week ago, the El Paso attorney, who remains behind bars, was finally indicted for allegedly laundering only $32 million, not the six hundred originally alleged, which is only 3.5% of HSBC's activity. He faces up to twenty years in a federal prison. That's a long time to regret not going into banking.