Sometimes When You Win. . . Exonerations and Criminal Defense.
In the 1992 basketball film White Men Can’t Jump, it was explained:
Sometimes when you win, you really lose and sometimes when you lose, you really win and sometimes when you win or lose, you actually tie, and sometimes when you tie, you actually win or lose.
Neither does the state of our Criminal Justice System.
Sometimes When You Win…
The National Registry of Exonerations Report revealed a record (get used to this word) number of United States exonerations in 2015: 149 exonerations in fact, with five exonerations coming straight outta death row. Of the 149 exonerations, wrongfully convicted persons served on average about 14-and-a-half years in prison.
Homicide: 58 or 39 % (new record)
Drug Cases: 51 or 34% (42 or 82% of the drug exonerations came from Clutch City, Texas)
Sexual Assault: 15 or 10%
…You Actually Lose:
Why are there so many exonerations? Why are people averaging 14 ½ years in prison for something they did not do? Why since 2011 have exonerations nearly doubled? Is it the criminal defense attorneys? The prosecutors? The judges?
The answer lies in the disconcerting reasons below (exonerations were based on either one or a combination of).
Official Misconduct: 65 or 44% (a new record)
Guilty Pleas 65 or 44% (another new record)
False Confessions 27 or 18% (and another new record)
No-Crime Cases: 75 or 50%
DNA: 26 or 17%
Note: Not accounted for, but an often cited reason for wrongful convictions is mistaken identity.
There’s gonna be some stuff you gonna see
that’s gonna make it hard to smile in the future.
With nearly half of the exonerations coming from Houston, you don’t have to look very far to find shattered oaths littered by those sworn to protect and serve.
Look at the court’s findings in the David Temple case listing 36 instances of prosecutorial misconduct. Check out the Joseph Salazar case accused of attempting to disarm a peace officer, before criminal defense attorneys subpoenaed video that proved otherwise. Official misconduct isn’t just Houston’s problem, wrongdoing can be found across the country. Official misconduct is particularly troubling given the role authority figures play in the system. These are the very people at the heart of justice. The very people who have the power and authority to ensure the truth is revealed. Yet, with at least three exonerations per week it is clear some officials have lost sight of their professional duties.
Why would someone plead guilty to a crime he didn’t commit? From the outside, it seems impossible. From the inside, it is a different story. Especially, for example, from the inside of jail under FBI Investigation. The justice system is a money system. If you don’t have the bank roll to bond out of jail or defend your case, a “deal” can put you back on the job and with your family. While the intentions at this stage may not be as malicious as above, innocent people are still stuck in prisons and with permanent convictions.
How could someone be convicted of something that is not a crime?
A quick guilty plea for a low-level drug cases where subsequent lab results reveal otherwise is such an example. 51 wrongfully convicted drug cases were exonerated last year in Houston alone.
Convictions secured by “junk science” like Cameron Willingham’s arson accusation is another. Overall jurors want to do the right things. They see a well-dressed, well-spoken, so-called government expert explaining “junk science” and it sounds believable. The experts of the unsinkable ship, Titanic, sounded believable too. “Junk science” has become a “fly in the ear” for many types of criminal offenses.
People often find it difficult to believe someone would admit to a crime they did not commit. Unfortunately false confession can and do happen. Police “tunnel vision”, trained interrogation techniques, twisted words, lengthy interviews, and overmatched suspects are some of the many reasons false confessions occur. One exonerated case even involved police torture.
Still Work To Be Done
While a few major cities, including Houston, have deployed Conviction Integrity Units designed to prevent, identify and correct false convictions, there is still much work to be done. The growing number of exonerations fail to account for low-level offenders lacking the means, determination or desperation to prove their innocence. While they may not be facing death or lengthy prison sentences, the collateral consequences of a conviction carry a heavy weight. Until those with the ability to make changes for the betterment of the system do so, these flaws will remain. Criminal defense attorneys, prosecutors, and judges must demand better. So sure, it is a great that falsely accused persons are being freed at a record rate, but they shouldn’t have been there in the first place. In other words, sometimes when you win, you really lose.
DWI – Collateral Consequences
A DWI arrest and conviction can carry stiff repercussions and harsh financial penalties. That’s the bad news, the good news is you can fight the DWI!
DWI – Breath Test Machines
If you have been arrested for DWI and submitted to a breath test, there are many factors that may have caused an elevated result.
Texas Gun Laws – Open Carry
Effective Jan. 1, 2016
We will frequently update relevant laws and policies as they are interpreted and released (see below video).
Update 01/08/2016: Guns permitted in state owned psychiatric hospitals:
Texas Gun Laws
Are you an advocate for 2nd Amendment or an activist for gun control?
Do you agree “guns don’t kill people…” or do you agree with Chris Rock’s “bullet control” theory?
Regardless of where you fall on this hotly contested issue, regardless of your beliefs, if you reside in Texas you reside in a pro-gun state.
What follows is an explanation of Texas gun laws as of today’s writing, including amendments that will go into effect for 2016.
Legal Definitions to Know
“Firearm” means what you think it means. A “Handgun” means what you think it means.
Who Can’t Own A Gun?
Federal Law is more restrictive than Texas Law. You should be aware of both.
Under Federal Law you cannot own a gun if you:
- have been convicted of a crime punishable by imprisonment for a term exceeding one year (lifetime ban, unless released from this provision by a court order or pardon);
- have been convicted of domestic violence;
- are a fugitive (i.e. on the run);
- are an unlawful alien or renounced U.S. Citizenship;
- received dishonorable discharge from the armed forces;
- are subject to a restraining order/protective order against an intimate partner or child of an intimate partner;
- have been adjudicated as a mental defective, been committed to a mental institution or are an unlawful user of, or addicted to any controlled substance.
Under Texas Law you cannot own a gun if you:
- have been previously convicted of a felony (exception for deferred adjudication and the ban extends for five years from the latest of your prison release date or release from community supervision);
- have a domestic violence conviction (same five year eligibility requirement as above);
- are subject to a restraining order or protective order.
If you passed the first section and are legally allowed to own a gun, then…
Do: Carry a handgun on your person if you are licensed to carry and the handgun is concealed or in a holster (beginning 2016).
Do: Transport a handgun in your car if you are licensed and it is in your holster.
Do: Carry or transport a shotgun or rifle.
Texas law permits most persons to carry or transport shotguns or rifles regardless of whether the firearm is concealed or in plain view.
Do: Keep your gun in a locked container or on “safety” at home.
Tex. Pen. Code. Section 46.13 makes it a crime if a child under the age of 17 is able to gain access to a firearm at your home.
Do: Feel safe to bring your weapon with you on a hunting or fishing trip. So long as the weapon is one commonly used in that activity.
Do: Bring your gun on a road trip (but keep your road trip in Texas).
Do: Bring your handgun with you to and from work (as long as it is not done habitually and you have permission from the owner of the premises).
The Do Nots (excluding some of the obvious)
Do Not: Transport a handgun in your car or someone else’s car in plain view (license or not).
Do Not: Carry while intoxicated (license or not).
Do Not: Carry into Six Flags, Sea World, or any amusement park (license or not).
Do Not: Carry into church (license or not).
Do Not: Carry into a liquor store, bar, restaurant, convenience store, or any licensed to sell alcohol or with a sign like that looks like this…
Do Not: Sell, rent, loan, or give a handgun to a child.
There is a provision allowing a person to sell, rent, loan, or give a handgun to a child, if you have written consent from the parents. The safer practice is to stay clear.
Do Not: Carry into a racetrack.
Do Not: Carry into a sporting event.
Do Not: Carry into a school or school sponsored event.
An exception is discussed below regarding public and private colleges.
Public and Private Universities:
Beginning in 2016 licensed handgun owners may carry concealed handguns in permitted areas of universities. Public universities are required to implement regulations and notices for such areas. Private institutions may opt out all together prohibiting handguns. Displaying your handgun or showing off your handgun is not allowed.
Defending your home and property:
A popular question for any defense attorneys.
You can stand your ground and defend your home and property with force, even deadly force, provided you believe deadly force is immediately necessary to protect yourself or someone has broken into your home.
In certain circumstances this law extends to your neighbor’s property as well.
The above is the “cliff-notes” edition of general gun rights in Texas. Rights, duties, and responsibilities under both Federal Law and Texas Law may change at any time. Staying on top of current gun laws is necessary to ensure you are responsibly carrying.
WANTED – dealing with an active warrant
We have a received a lot of phone calls recently from individuals that have active warrants for their arrest and want to know what the next step is.
While most charges are filed at the time of arrest, in some instances a crime is investigated, then presented to a district attorney (state crimes) or U.S. attorney (federal crimes) who files charges. Because you are not yet in custody a warrant is issued.
Typically you learn of the warrant because your mailbox gets stuffed with solicitation from bonding companies and attorneys. Other times you may learn an officer has come around your home or place of business. Your attorney may be in contact with the lead detective who will notify him/her of the warrant. Lastly, you may actually get picked up by an officer. If you are arrested, go peacefully and respectfully. You will have your time to fight the allegations, but that time is not when the officer is attempting to arrest you. If you are interrogated, simply state, “You would be happy to cooperate with your attorney present (and request your attorney).”
If you have an active warrant and are not yet under arrest the next step is turning yourself in. An attorney can assist you in this process. If a bond has already been set, and the crime is eligible for what is known as a “walk through” and you will spend very little time in custody before being bonded out. If a bond is not set, you will have to turn yourself in and have your attorney approach the judge who has jurisdiction over the case to ask for a reasonable bond. Once a bond is set the bonding process can begin. If a bond is set, but the alleged crime is not eligible for a “walk through” you will have to appear before a judge or magistrate to receive your admonishments (crimes not eligible for a “walk through” include assault, domestic violence, sexual assault, etc.)
Expected wait times:
- Walk through – approximately 1 hour
- Bond, but not eligible for walk through – 8 – 24 hours (depending on when you are able to get in front of a magistrate/judge)
- No Bond – 24 hours +
It is important to know that ignoring the warrant will not result in the charges going away. Turning yourself in with adequate legal representation is the first step towards the path of freedom.
What Happens in the Law Firm, Stays in the Law Firm: Attorney-Client Privilege
The Attorney-Client Privilege
The attorney-client privilege allows lawyers and clients to communicate freely. The attorney-client relationship hinges on communication. Communication helps the lawyer avoid surprises, obtain a quality result, and keep their client’s mind at ease.
More specifically, the attorney-client privilege protects confidential information learned by an attorney before and after being retained. So, most communications you have while looking for an attorney to hire will be protected. For the privilege to apply the communication must be made for the purpose of helping a lawyer provide legal services to the client and the communication must be confidential. See Texas Rules of Evidence 503 and Federal Rules of Evidence 501. This privilege extends to the attorney’s employees (e.g. paralegal) as well.
The attorney-client privilege belongs to you, the client, and certain safeguards must be implemented to ensure it is not waived.
How can the Attorney-Client Privilege can be waived?
Two examples of how the attorney-client privilege can be waived are:
- Client relays to the attorney they are ABOUT TO COMMIT an act that will likely end in death or substantial bodily harm to another person. Under these circumstances the attorney is required, under the law, to disclose the confidential communication.
- 3rd party waiver – “Loose Lips, Sink Ships.” Confidential information relayed to someone other than your attorney can waive the attorney-client privilege. This includes family members, friends, co-workers, partners, etc. For example, sending an email discussing facts of the case to someone other than your attorney can waive the privilege and later be used against you in court.
The attorney-client privilege is an important tool necessary for effective representation. As the client, you should feel comfortable and confident that communications with your lawyer will remain confidential. Understanding the privilege can help you rest easy knowing what happens in the law firm, stays in the law firm.
Disclaimer: This information is for informative purposes and does not establish a legal relationship. Every case is different and you should contact a qualified attorney to assist you.