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7 Ye a A RST 'B cD) stm B) a 2) y UG TTT (OG Rigatues) Seminar NEWS ROUND UP aXe av) READ ABOUT CURRENT WINNING WARRIORS ON PAGE 6 eS Pee Ea Ua ea col Cree ee Cee ee eee occa) Free Appetizers/Cash Bar @ 5:00 pm :: CLE starts at 5:30 pm :: Last Wednesday of each month April 16-17 :: Winning Warriors: Training Day :: cea RATT DWI WEEK WITH TCDLA eee oe aC Coy Instructor :: Jim Medley =: Pe ed August 21 :: 13th Annual TCDLA Top Gun DWI Nemec Oe mr ea CY Sa a CHECK OUT THE LATEST @ HCCLA.ORG Donnas Nar) En ens esa ( 0 N | E N S acai EN Sen Moa DOTS eee :CLE Events Pr 5 :A Word from our President Christina Appett by Carmen Roe sue 6 ::Winning Warirs el es 8 ::HCCLA News Round Up ee 8: Welcome New Members ‘Bil Hawkins 8:: The Donald Davis Seminar ee 8: Vetran’s Day Drawing Winner ie 9:: 2014 Fall Family Festival Halen 10: Returning the Constitution to the Halls of Justice by Christina Appelt . 12:: Winning Warriors Seminar settee, 15: :Strategy: Donald Rumsfeld & the Unknown eA by Joseph W. Varela 18: :Practice Pointers Hee A on ‘A Running QBA by Mark Bennett, Nicole DeBorde, Pat McCann, & JoAnne Musick ebb races 18:: Juvenile & Felony Sentencing ahr ey by Steven Halpert, PDO Juvenile Chief, guest writer eee ON 22 :: What the Welder Taught Me net by Pat McCann 24: Want vs. Need in Solo IT Set-Up by Pat McCann Monae) 26: :Kent Schaffer: A Profile Pe by Thuy Le Stanly 6, Scheie 28: :How Do You Do It All? cia by Lisa Shapiro Strauss Paha é 29: :Reflections of Gideon's & More eee aie by Allison Jackson ren ery Sed 32:: Mediation? ...In My Criminal Case? by Jason Truitt Ce 37::Chess Corner : Control the Middle of the Board! Cin Or...A study of Houston Lawyer, Dan Cogdell OU ese by Tyler Flood Dee ec resy : reeapead 39: :HCCLA Extras ‘Ad Rates / New Member Application Family owned and operated since 1971 Bilingual staff with over 100 years of experience License # 74346 %* We advocate a paid in full attorney is a defendant’s best defense Non-Arrest Bonds - we accompany your client to the jail or from the courtroom 609 Houston Avenue 713.227.3400 Houston, Texas 77007 Z Interlock An Automobile Ignition Interlock Provider & John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 ‘As criminal defense lawyers, we hold che important roles of protecting the innocent and ensuring prosecucors follow their oath co seek justice. A seasoned trial atcorney in our community said ie best: “Our only job is to provect the Constitution. That's it!” Of course, this is often easier said than done, After listening to Michael Morton, and Anthony Graves at our recent seminar, I found myself borh inspired and discouraged. Inspired because these men have been chrough more injustice than mast will endure in a lifetime and yet, they are relentless in their uphill battles, finding extraordinary steengch from the hope of bringing about even the smallest change. Talso found myself discouraged as I considered the taxing natute of our criminal justice system, beating down even the most determined. Working in the holdover, I've seen all too often lawyers yell a¢ clients, encourage a plea just to move to their next case, and simply lack che strength co keep pushing forward, seemingly patalyzed by the daily grind of churning out the seme clients with the same bad cases. We must acknowledge chat our system is hard. It pushes everyone too fat. It is designed co herd cases like cattle instead of giving each one the attention it deserves Despite these obstacles, Anthony, Michael and John attest to the notion chat whether participant's will breaks under our justice system is not a matter of “when”, but "if". Anthony Graves, for instance, refused a plea deal that offered freedom in exchange for confessing to a crime he did not commit. Anchony remained unwavering in his principles, Michael Morton was offered parole more than once, provided he showed remorse for the crime of another. He refused. John Raley, not even a criminal lawyer at the time, spent six years fighting for Michael Morton’s freedom. With litele experience in criminal law and a d heavily stacked against him, he persevered and prevail a a word from our president Comer mM Ke ‘Through their stories, each of these men demonstrates a frame of mind that is necessary for success in our profession: Never, ever give up. They fought and fought until they could not fight any more, Then they got up and. fought again. As a criminal defense attorney, I have pushed beyond exhaustion, pouring myself into whae 1 believed, only to see it fail, time and cime again. For what? For who? Does it really matter in the end Ic always matters, and the mere thought of the trials and tribulations endured by these men inspire me to continue fighting, to keep pushing forward. Ie is for this reason, among many others, we need co interact with chem, leat, from their struggles, and remind ourselves that they not only survived, but also prevailed. These men give every citizen-accused, criminal defense lawyer, and prosecutors alike a reason to dig a litele deeper and go that extra mile, While we are all obliged co assise the legal system in “getting it right", criminal defense attorneys alone have the inctedible obligation co protect the accused and Consticution from an overreaching government. Clients confused, scared and frustrated by our legal system encrust criminal defense lewyers to zealously fight for them. Having been trained for the profession, we excel in this tough environment, relentlessly pursuing the interests of those less able to fight. When we are pushed, we never stop pushing back. This is the crue benchmark of a criminal defense attorney. Anthony, Michael, and Joho also exhibit these characteristics and for thae reason, we have much to learn from them. I hope as defense attorneys we never, ever lose our will to fight for the Constitution or our clients. Thus, in spite of the flaws ‘and inequities riddled throughout ous legal system, it is essential we, as criminal defense lawyers, zealously mea (5 biwu tue: For 3 years, Kurt Hopke has been fighting for a client ", where the teenager posed online jin toa B charged with ASAC, as an adult, Kurt scored a trial day plea bary misdemeanor, Now that’s perseverance! Missing witnesses and evidence could not keep Russell Webb from getting the 2 word verdict in the 180th for an ex-con charged with an aggravated assault that left the complaining witness paralyzed after a pot deal went sour. Mark Metzger and Mark Thiessen came away with a not guilty in a DWI trial CCL 15. Client blew a .14, but the ‘Marky Marks showed the jury the flaws in the outdated Intoxilyzer 5000 and the jury did the right thing. Not to let the Funky Bunch have all the fun, Tad Nelson and Amber Spurlock teamed up in Galveston CCL 3 to score another DWI breath test victory. Client blew .11, hit a parked car, and was a weepy basket case on video. ‘Tad and Amber showed the jury that none of this proved intoxication at the time of driving. Brett Podolsky and Matt Sharp never let a DW1.16 blood. ‘ease get to the jury in CCL 9, convineing the court to suppress the evidence based on the outrageous police ‘conduct. Police never sce Client driving, pound on his door for over 2 minutes after 2AM, and tell Client he must move his ear because itis illegally parked. Jackie Carpenter and Juanita Jackson put it to the State 7th, beating a trace case and giving their 40 year old client with no criminal history her life back. Ithas been a 5 year battle in Waller County, but Robb Fickman finally prevailed for his Client on $ counts of ASAC. Robb got a mistrial on the 3rd day of trial, and a dismissal of all charges 3 weeks later. Juan Guerra and Brent Mayr teamed up for a .10 blood test DWI in CCL 12, and walked the Client. @® wesc Despite 3 eyewitnesses, Brett Podolsky and Matt Sharp heard the 2 word verdict in 183rd, Client charged with aggravated assault for biting off the finger of CW in a fight. Brett’s investigation paid off, as he was able to expose the eyewitnesses for what they are on cross examination, Alvin Nunnery obtained a dismissal of capital murder charges for his client in 228th in a convenience store robbery gone wrong. The State had a paid informant and, homeless addict, but finally did justice when Alvin and, his Client refused all offers. Natalie Schultz and Chris Morton scored 2 not guilty verdicts in 2 different courts for the same client out of the same incident on FPW and misdemeanor assaull-fv. Brent Mayr got a directed verdict in CCCL 4 before the State rested in a.12 blood test DWI with an accident. The State had presented all its evidence on a certain point, and rather than spend 2 more days on the blood test, the court followed the law and ended the case. Josh Zeintek got a trial day dismissal in Montgomery CCL 4 on a .10 breath test DWI, Seems the State finally Tooked at the dash cam, and decided their officer had some serious credibility issues. In a published opinion reversing a 50 year sentence, Frances Bourliot got a new punishment trial in the 174th. The courtroom had been closed during the punishment phase of the trial, in violation of the right to a public trial Frances gives kudos to trial counsel Rick Oliver and Alan Cohen for beautifully preserving the error. ‘Sam Cammack was the 4th lawyer for a Client accused of ‘murdering a drunk driver who killed his children in Brazoria, County, Sam’s Client walked out of the 149th a free man, after the NG, in a case widely covered in the media. In another media case, Brian Wice prevailed again for Tom DeLay at the CCA, which affirmed the court of appeals and vacated the conviction. The jury took less than 30 minutes to find Joaquin Jiminez’ Client not guilty of interference with public duties in CCCL 9. JJ's Client was beaten by 3 assailants but the cops decided it was mutual combat. When Client protested, he was arrested. Andrew Wright got a NG on PCS in Fort Bend CCL 4. Gang Task Force guys admitted it was a slow night and were looking for something to do. Cop claims he saw Client throw something into a trash can and detained him, to see what it was. The jury said afterward, they followed their oath, After 3 days of trial in a no test, no accident DWI, Sam Adamo Jr. got a 10 minute not guilty in CCL 8 Quinon Brooker got a hung jury on Burglary of a Habitation in Collin County. Quinon’s Client has mental health issues and complaining witness could not ID. Kate Shipman walked her Client on ASAC in Montgomery County. Kate discovered DPS left out a profile in its DNA analysis, and the rest of the State's investigation was literally 15 minutes, Norm Silverman tried a first degree cocaine case to the bench in the 179th and got a not guilty based on inadequate affirmative links. Norm credits the judge with following the law. Troy McKinney, Armen Merjanian, and David Ryan teamed up for a no test DWI with an accident in Fort Bend, CCL 2. Troy did a masterful job on cross examination, Dut the case was won in voir dire, as every juror had a different reason for reasonable doubt. Troy McKinney and Armen Merjanian teamed up again for a DWI in Fort Bend CCL 1, Same team, same result, = not guilty. David McClure and Annie Scott gota directed verdict in Fort Bend CCL 3 on a DWI. The State’s wheel witness could not identify the Client Tami Pierce and Josh Zeintek got the 2 word verdict on 21 blood draw in Montgomery CCL 5. Tami actually went and examined the blood vials, which tuned out 10 be vital to defending a Marine home on leave. Not all wins are not guilty verdicts, and Sylvia Escobedo, proved that with a 30 year sentence for an ugly aggravated robbery. Client had multiple pen trips for violent crimes and the State never offered less than 50 years. Jay Cohen won a motion to suppress in Montgomery CCL 4 ona DWI, prompting the State to offer a plea bargain where the DWI was dismissed and deferred was given on PDD. Bob Loper and Gerald Bourque beat Capital Murder in Jefferson County, when the jury came back with the lesser included of Felony Murder. The killing was all captured on video. Pat McCann and Lisa Gonzalez. got a directed verdict in 268th on aggravated assault Joaquin Jimenez got aNG in CCL 9 on assault. 911 calls, pictures, medical records, and cycle of violence testimony could not shake JJ from focusing the jury on the facts and rendering a true verdict. Ed Cheroff got a not guilty in a contentious Brazoria, County DWI, despite a .26 blood draw being admitted into evidence, The cross examination of the lab tech proved crucial, ‘caso @) HCCLA Welcomes The Following New Members: Sa alae) NEW PARALEGAL / ee OO AFFILIATE MEMBERS Hugh S. Brasher _F. Andino Reynal Ce SULA aL Peer lain BO CUCL UC Jill Lansden DMs See Ped SOC CLL G? CSS Ae UE Veterans Day Sketch Honoring “Women Serving in the Military” DE Ist Place Award to Annstee Pelton, Yo Student at Cy-Fair Elementary School & Granddaughter JE of HCCLA Past President Robert Pelton @® wesc @ weston Returning the Constitution to the Halls of Sustice by Christina Appelt, Exéeutive Director In Harris County, certain "courthouses" have been renaméd “justice centers”. How ironic ‘when at the Haris County Criminal Justice Center, "justice" is as confused and elusive as the stairwell where tardy defendants are routinely punished for a faulty building design, Much lke our nation's Founding Fathers, members ofthe defense bar fight everyday for liberty and individual rights against an opprossive government. Sal, the scales of justice are tipped against the defense from the grouné floor up. Upon eniering these Halls of Justi we are greeted by angry security staf barking at us todisrobe. We pass by five wall plagues displaying names of parents of murdered children ‘meant to taint the hears and minds of every juror in Harris County to “do justice”. We then ‘walk down the allway and wait 20 minutes to life to catch an elevator. Once finally paroled off the first floor, we pass a window display of abused women or some other “victim of the day” artwork om the second floor. On another floor we find a Mathers Against Drunk Drivers plague prominently displayed behind a judge's bench, no doubt meant to influence every juror ina DWI tral against the defendant ‘These digplays define what “Justice” means to those it power al the “Justice Center" It is no wonder our county has the highest eonviction rate in the state, possibly the nation, with the way the walls are adored in our Halls of Justice, They have been sending the ‘wrong message for years to everyone who passes through the building, Sueh images poison potential jurors into a prosecutotial mindset before they even make it up to the courtrooms, They serve to strike fear into the hears of presumably innocent citizens, and to encourage judges, prosecutors and police officers to engage in acts of tyranny and coercion. Mostly, they remind defense lawyers of the anti-justice system they fight against daly. ‘There are no plaques showing names of the wrongfully convicted, no images of the presumption of innocence anywhere, Up until 2006 the building was missing any symbols ‘of Freedom, Liberty or Individual Rights, Robb Fickman was determined to do something about it as, President of HCCLA. He recognized the need for the courts, to reflect the fair and balanced justice system our Founding Fathers had intended. During his presideney in 2006, he urged the Board to join him in this long overdue effort, He asked them fo consider donating framed replicas of the Declaration ff Independence, the United States Constitution, and the Bill, ‘of Rights to display in the criminal courthouse. The Board ‘wholeheartedly agreed it was time for the defense bar to step, up and neutralize the negative impact of the existing (and. blatantly) suggestive artwork, Robb then urged Commissioner's Court for approval to display the historic documents at 1201 Franklin, JoAnne Musick and Earl Musick found the artwork and had each picce beautifully framed to museum-style perfection. Robb continued to coordinate with the county until finally the documents were ‘unveiled in 2007 CIC visitors are now reminded of the individual rights and freedoms contained in these sacred documents. This was the first step toward returning the principles these documents, represent to the Harris County courthouses, Robb, JoAnne and Earl continued this effort with Mark Bennett in 2008 with a second set of famed replicas at the Juvenile Justice Center. Chris Tritico joined them in 2012 to ensure additional sets found permanent homes in the Jury Assembly Plaza, and then the Civil Courthouse This year on September 17, 2014 (Constitution Day), HCCLA, held its fifth dedication ceremony when another set! was unveiled at the historic 1910 Courthouse, home of the First and Fourteenth Courts of Appeals. This majestic courthouse ‘was restored to its original glory and declared a Texas Historic, Landmark in 2011, Efforts to display the documents took, awhile longer due to compliance issues related to its historic, preservation. As no artwork is allowed on the walls, HCCLA, agreed to mount the pieces on easels. These historie replicas, will remain on permanent display to be viewed by visitors from all over the world on guided tours Special thanks for this year’s event to: HCCLA members Earl Musick, JoAnne Musick, Steve Halper, iris Tritico and Todd Dupont; Dan Rei who acted as liaison between the county’ and the Texas Historical Commission; Jim Lemond, former Director of Harris County Facilities & Property Management, and Mary Edwards, Customer Service Manager; Chief Justice Kem Thompson Frost and Justice Mare Brown of the Ith ‘Court of Appeals; and Christopher Prine, Chief Clerk of the Courts of Appeals Thanks to the vision and leadership of Robb Fickman and the hhard work of dedicated HCCLA members, the wisdom of our Founding Fathers is now in every major courthouse (or justice center") in Harris County, and in the Jury Assembly Room ‘This was a huge and successful effort, HCCLA has proudly led the way in bringing these symbols ‘of Liberty to the places they belong most. When faced with plaques of murdered children, abused women and drunk drivers, it can be easy to forget what "Justice" truly means ‘These constitutional documents remind us there would be no justice without them. They guarantee us inalienable rights and. protection from tyranny by a government that persecutes us, So as you pass through these Halls of Justice, whatever they ‘may be called, please take a moment to pause and reflect on these framed displays. May all who enter understand their ‘meaning and purpose, and disregard the harmful images designed to bias them. If you see Robb Fickman, take a ‘moment to thank him as well, It was his vision that brought this meaningful view of justice to the courts in returning the Constitution to the Halls of Justice. ‘cas i) ALEXANDRE AFANASSIEV Foster Quan (713) 625-9225 Day one ofthe Winning Warriors seminar began with Alexandre ‘Afanassiev who spoke on immigration consequences of pleas in criminal cases. Alex's presentation was ric with information every criminal lawyer should be aware of when representing clients that are not United State's citizens. Alex spoke on who can be deported, Inadmissibiity and Removabilty, Conviction and Sentence, and finally Effective Assistance of Counsel. it was an eye opening experience to lear about allo the diferent factors of convictions and sentences that will and will nt affect a client's immigration status. Alex graciously offered his assistance to any attorney with question. CHRIS DOWNEY Chris Downey delivered an information filled lecture regarding jury charges. Chris cautioned against using the cours charge which is always riddled with mistakes due to copying and pasting by the court reporters from previous charges. The State Bar of Texas now publishes a book that contains jury instructions covering the following subjects: crimes. against persons, Intoxication and Controled Substances, Defenses and Property Crimes. @ wesc ADVANCED TRIAL TECHNIQUES Con ab core eenrie Soneles} Crees eriey NICOLE DEBORDE Nicole DeBorde spoke about the importance of preparing for the punishment phase of every trial. The DA's Office throws 10 ‘years at the jury like it's nothing. Nicole suggests making the jury think about the time they are considering for your client. “Have the jury think about where they were 5 years ago, 10 years ago, 15 years ago. Have the jury think about how they celebrated Christmas 15 year ago. Most important, you have to humanize your client.” BRIAN WICE In the midst of the media frenzy surrounding the Adrian Peterson case in Montgomery County, it was the perfect time to hear tips from Brian Wice regarding how to handle the media. Brian wams against teling the media you have no Comment. Instead be prepared to speak with the media at all times, think before giving an interview. There is nothing wrong with asking a reporter if you can return their call to allow you time to prepare a quote. Always have the reporter read back your quote. Any comments or interviews given to the media will be out there forever so make sure you fix a misstatement if printed incorrectly. Stat with the reporter and if that doesn't get ‘you anywhere stating working your way up the chain of Command. Finally, speak to the media in shor statements. The media wants sound bites. JOHN RALEY The most moving and emotional presentation of the day with Michael Morton sitting inthe front row, John Raley discussed the battle to free Michael Morton. John Raley took us step by step through the ups and downs, the battles against an overzealous prosecutor and judge, the exoneration of Michael Morton and the journey that lead to the Michael Morton Act. Michael Morton ended his introduction of John Raley with this, “I am here telling my story because this could happen to any one of you sitting in this room today.” John spoke about the day he received a call from Michael explaining that Michael was up for parole but would have to show remorse ‘or killing his wife, John explained at that point he had no idea how to advise his client warning him that if he wasn't paroled that he may be stuck in prison for if. John said there was a short period of silence before Michael told John that the only thing in the world that he had left was his innocence and was prepared to die in prison before giving that up. Michael was denied parole. John spoke about a time that he spoke with Michael ater they received the news that the bandanna found close to the murder scene contained DNA from Christine and an unidentified male excluding Michael Morton as Christine's kille. DA Ken Anderson offered to agree to an order that Would immediately release Michael Morton it Michael agreed not to pursue any more DNA testing to try and find a match to the DNA found on the bandana. John explained to Michael that if he agreed to this, they will never know who killed Christine. Again, a shor silence before Michael told John that he had been in prison over 2 decades and 6 more months was nothing. John Raley’s face was unforgettable, Finally and probably most impactful was John Raley's account of Michael Morton's brevity when requesting that our legistature pass the Michael Morton Act. After finding out at one point that there was a split vote, Michael “looked at th representative opposed tothe bill wth his piercing blue eyes” and asked them to please explain to him their reason for opposition. Shortly aftr, the Bill was passed unanimously. NEAL DAVIS Neal Davis presented a gfeat lecture on pretrial motions practice providing motions deadlines and the importance of having writen mations on fle withthe court Neal also provided riumerous templates of pretrial mations that should be fled in all cases set for trial JIM MOUNT Day one ended with information regarding grand juries and rand jury packets. Everyone operates under the assumption that all Grand Jury proceedings are secret but there is an exception. Defense Counsel can petton the judge of the court where the case is pending for disclosure of testimony, upon showing of particular need KENT SHAFFER Day 2 started off with the master of cross-examination, Kent Shaffer. Kent suggests that you should always stand and move around the courtroom during your cross-examination. You have ta let @ witness know right away who's in charge. Don't ever let a witness get away with not answering a question that you are matter how many times you have to repeat the question, Maintain control ofall witness during tial ROBERT SWAFFORD Conducting a mock voir dire throughout his presentation suggesting multiple ways to get juror struck for cause and avoiding the dreaded rehabilitation by the judge. He suggested a variety of ways to ask questions that will lead to important information trom your prospective panel cose la KOTa TTC | ae HONORABLE MARC BROWN Justice Brown detailed the law when it comes to obtaining warrants for search and seizures. As everybody listens intently tothe way Justice Brown explains all the components of a solid probable cause atfidavit and warrant nobody really expects what's coming next. Justice Brown changes slides while he reaches into his pocket to pull out his cell phone. He shows the audience his screen saver that reads..."Get a Warrant.” HONORABLE KELLY CASE Unfortunately, because of the issues currently pending in his court, Judge Case had to change his presentation topic Judge Case did, however, provide insight from the bench on what distinguishes a good lawyer from a great lawyer. | don't think any one will be showing up for tral in the Sth District Court without a binder full of pleading and case law for the court ever again, JOSH SHAFFER ‘There are very limited circumstances in which the defense has the right to file a pretrial appeal. Josh Shaffer provided an intriguing prospective on those instances and explained how the defense may even be able to bar prosecution in certain instances through pretrial appeal, Josh provided a step-by-step guide to properly fling writs and mandamus’ with the trial courts and the Court of Appeal. STAN SCHNEIDER Stan Schneider called an attorney up to the front of the room and used the details of her case to layout the proper way to use impacttul words to open your case. Stan tumed an opening statement that one would hear around the courthouse on daily basis into an opening statement that had us hooked and ‘wondering how law enforcement arrested the wrong person. @ wesc KATE SHIPMAN Kate Shipman illustrated the advantages of using a power point presentation during closing argument. In some cases, power point presentations are very effective in helping the jury tie together important evidence that may have been forgotten through a long trial. Emphasizing evidence postive to the defense may help in securing an acquittal. Don't forget to end your presentation with “NOT GUILTY” in the biggest, boldest font avaiable TYRONE MONCRIFFE ‘Tyrone’ abilty to deliver a story that you can feelin your soul is incredible, Tyrone spoke about the importance of your opening statement. tis the only ime you get o tel your client's story in most cases. You have to capture your jury and make them want to help your cient. A great lawyer wil tll stories that, ‘make each juror use all of the their senses as if they were there as a witness. Tyrone suggests short opening statements that capture your jury's attention fast. ANTHONY GRAVES "My biggest piece of advice is NEVER go looking for the police!” Anthony Graves jokes. Day two concluded as Mr. Anthony Graves shared the heartfelt and scary story that lead Up to his exoneration. Anthony describes Kelly Siegler as his blessing in disguise. Kelly Siegler was hired as special prosecutor by Washington-Burleson County District Attorney Bill Parham to try the case and “make sure that this execution date stuck.” AS Kelly started investigating the case and interviewing witness, she made a chiling discovery. Former District Attorney, Charies Sebesta, withheld two witness statements from the defense and elicited false testimony during trial..Anthony Grave's was innocent Strategy: Donald Rumsfeld & the Unknown by Joseph W, Varela 6¢There are more things in heaven and earth, Horatio, ‘Than are dreamt of in your philosophy.?? “Hamlet! Donald Rumsfeld was Sceretary of Defense during the administration of the younger Bush. In 2002, during the run-up to the invasion of Irag, he gave a briefing to reporters ‘about the alleged existence of weapons of mass destruction. In answer to a question about supposed links between Baghdad and terrorists, he offered this: Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns ~ the ones we don't know wwe don't know? This utterance was widely hooted as yet another example of Rumsfeldian bureaucratese in a sea of Bush ‘Administration doublespeak. Itwon him a “Foot in Mouth Award” from something called the British Plain English ‘Campaign.’ Rumsfeld's crities accused him of linguistic incompetence or, worse, obfuscation of the kind that bespeaks deliberate falschood,* Secretary Rumsfeld left) with Russian Defense Minister ‘Sergei Ivanov, 2002. (Department of Defense) I disagree with the Secretary's critics and contend that his comment was a succinct restatement of a pervasive epistemological problem, and that a close reading of it repays the trial lawyer's attention, 1 Rumsfeld identifies three situations of the four that are logically possible. First, there are the “known knowns.” Rumsfeld defines these as things we know that we know. This category presents no special difficulties, If we know that we know something, that implies that we knew which questions ‘to ask, and got those questions answered. (Of course my argument assumes the subject matter is relevant to the problem, and that the answers obtained are true), Next, there are the “known unknowns.” These are things that we do not know, but we know that we do not know them, The fact that’ we know that an unknown exists implies that it is possible to make that unknown a known; therefore, the next inquiry is, How can we know? This in tum prompts an appraisal of why we do not know. We might not know because we have asked the right questions, but have not (yet) obtained answers. Alternatively, we might not know because we do not (yet) know which questions to ask, but we know that if we find the right questions, those questions will lead us to the answer, Another possibility is that we know which questions to ask, but obtaining the answer is either not possible with available techniques, or the cost of obtaining the answer outweighs any reasonable estimate of its benefit. Finally, we may know that there is a finite mumber of possible outcomes to ant event, and although we cannot control or predict which outcome will ‘occur, we can at least plan for each contingency; possibly ‘we can even estimate the probability of each outcome. What distinguishes the professional from the amateur confronted by known unknowns is that the professional knows which questions to ask. caso CONTINUED «: Donald Rumsfeld & the Unknown ‘Then there are the “unknown unknowns.” These are “the ‘ones we don’t know we don’t know.” We do not know which questions we should ask, or more precisely, we do not know that we should be asking questions at all. We do not know we should be asking a question because we ‘cannot imagine, even in principle, the subject about which ‘we should be inquiring. Simply put, if we cannot conceive thata thing could exist, we will not look for it. An unknown ‘unknown is the product of a conceptual failure, Our failure could be attributed to honest inexperience, to hubris, or to ‘what is sometimes called “failure of imagination.” It is impossible to give an example; but we ean infer the ‘existence of unknown unknowns by observing how people ‘conduct themselves in their presence. Tl. ‘The more we know, the less certain we are’ This paradoxical condition is nowhere more true than in that most consequential ficld of military matters ‘There never was a more serious awareness of unknown unknowns than in discussions of nuclear war during the Cold War era. The topic dominated the military-intellectual complexes of both blocs. Humanity has so far spared itself from thermonuclear devastation, but one camp of serious analysts: made predictions concerning the course and the outcomes of such a war. The most famous attempt is that by a RAND Corporation thinker, Herman Khan.‘ Khan posits numerous scenarios short of “mutual assured destruction” and purports to calculate, with great precision, the effects of “limited” thermonuclear exchange. Khan weighs variables, among them military, cconomic, medical, cultural and psychological, and concludes that one side could win or, a he puts it “prevail” in an intercontinental thermonuclear conflict. Morcover, in a RAND study on the feasibility of preparing for such a war, far from assuming the apocalyptic destruction usually envisioned in the aftermath of an H-bomb shootout, We concluded that for at least the next decade or so [the 1960s], any assumption of total world annihilation appears to be wrong, irrespective of the military course of events, Equally important, the assumption of total disaster is not likely to apply even to the two antagonists. Barring an extraordinary course for the war, or technical developments not yet foreseen, one and perhaps both of the antagonists should be able to restore a reasonable semblance of prewar conditions quite rapidly. @ wos ‘Typical estimates run between one and ten years for a well-prepared and reasonably successful attacker and somewhat more for the defender, depending mainly. ‘on the tactics of the attacker and the preparations of the defender. In the RAND study we shied away from optimistic assumptions,” car woupon tes, (Ever had til that looked like this?) WS. drm). A competing faction cautions that “There has never been anuclear war, and nobody knows what nuclear war would mean.*” As one of Khan’s contemporaries at the RAND Corporation observes, ‘There is no base of combat experience with nuclear weapons, so we work out our predictions to two significant figures, We have about sixty-five years of experience with tactical air, so we get one significant figure. There are about four thousand years of history of land combat, and you can’t even tell which side will win a given engagement. It makes you think that the more you know about a situation, the less confident you are about predicting its outcome” Every aspect of nuclear conflict is fraught with unknown unknowns. As one nuclear physicist said, speaking of first-strike capability, Every factor you can think of has been accommodated. Itis the things you don’t think of that cause the trouble. The central point is that we could not fire with total confidence against the Soviet ICBMs, and they could not fire against ours... Khan's outcomes are based on numerous assumptions, each of | them quite reasonable; but together they add up to a lot of ifs" that have to coincide in order to make a thermonuclear war anything but an unprecedented and indeed unimaginable disaster, for the human race," As Khan himself admits, in a moment of pellucid uncertainty, ‘A modern thermonuclear war is, after all, a completely hypothetical operation. There will always be chilling uncertainties —some of them completely unexpected."= ‘The unknown unknowns prevent rational political leaders from calculating uclear conflict, It is noteworthy that in the five decades since these words were written, there has never been & nuclear war Cold-war politicians treated the unknown unknowns of thermonuclear warfare with greater cireumspection than did academics. Wenow know that atthe height ofthe Cuban Missile Crisis, Soviet Premier Khrushchev and President Kennedy ‘exchanged personal letters which struck a different tone from the diplomatic posturing and the military maneuvering. In one such letter Khrushchev wrote to Kennedy: if war should indeed break out, then it would not be in ‘our power to stop it, for such is the logic of war. I have participated in two wars and know that war ends when it has rolled through cities and villages, everywhere sowing death and destruction.” Reading the recollections ofthe participants on both sides, and their contemporary correspondence, there is no evidence they ‘considered Khanian calculations. The apocalyptic outcome was an unspoken assumption of all partis. Ml. Lawyers dealin the realms of the known knowns and the known unknowns. Converting known unknowns into known knowns is ‘a major part of the lawyer’s working day. Indeed, a definition of “preparation” would largely describe this conversion process, Going into a tral, or negotiating a plea-bargain, the more known Kmowns we have, and the fewer known unknowns remain, the better will our position be. We can read the siatement of « ‘witness oF interview him, and we know what he is saying in the Statement. Less ceriain is how he will come across on the stand; ‘the experienced trial lawyer understands that its difficult to know how witness will come off in court until he is there, Thus, the performance of a witness atthe trial is a known unknown, That itis an unknown does not excuse the lawyer fom considering it; indeed, he has a duty to anticipate a range of possibilities and try to influence the performance to the client's benefit. Tis is but one ‘example of the known unknown which conffont lawyers every day, and which present orthodox difficulties. But Secretary Rumsfeld was right. Unknown unimowns do exis, and they re tenible limits to men’s plans. They await us like land How is the lawyer to deal with that which he eannol, even in principle, prepare for? One partial answer may lie in observation of soldiers, and particularly those in special-frees units, These picked troops train constantly for all sorts of missions, and their training incorporates realistic elements of intelligent. opposition and chance events. The training emphasizes flexibility and improvisation rather than execution of planned tasks, The Army puts its special-ops trainees through the “Robin Sage" qualification course, which they must pass before becoming Green Berets. This is rigorous test in guerilla warfare that takes place over thousands of square miles of North Carolina forest. To add realism, the “guerillas” are North Carolina civilians who know every foot of those hills and whose behavior is unpredictable. There is no set mission, and the would-be Green Berets find themselves dumped into a complex political and military milieu where nothing is as it seems. Anyone they encounter could be a potential ally or an enemy, and could switch sides without notice, There is no way to rehearse for this test. Candidates must rely on their abilities, inherent and acquired, to prevail inthe face of unknown unknowns. Similarly, the lawyer best prepares for that which he cannot anticipate, by soaking up all the knowledge he can, and by Keeping his skills sharp. Assumptions must be kept a minimum, and it must not be forgotten that every ease is unique. When an unknown unknown threatens to blow up in his face, he has something to fall back on, | Wiliam Shakespeare, The Tragedy of Hamlet, rine of Denmark. 16 2. A ransriptofthe biting can be ound hy searching defense gov ‘Video canbe found by searching 3. BRC News, December 2, 2003, oe hase tin our ly ve? Thote wi the onidene bor of ‘eneance dock dogmatic steel fon banger sche, Thowe of ‘usd wpa econ fs les ety a ak mae gun, (6 On Thermoniclar War, Pineton Univesity Pree (1960) This book was ‘one ofthe aor itspiations for tale Kabticks fin Dr Srangelove (196, The fl incorporates some of the concepts nd ined pus some of Kaas phrases inthe speaker mouths, 7 Khan, op. cit p21 Jame Fallows, National Defense, Random Hote (1981) 9 Ivan Solin uot Fallows op ot 11 ‘The bubonic lagu andes of rope and he Mid East (A.D. S10 se 1347 klled at ea th ofthe population i acted res, ‘Some avn tok centre wo reover, obs Kelly, The Great Mortal, Harper Calis (2005), Nuclear conflict could equal or enced the pig’ toll o whic it ha been compared, Jck Hier, Diaster and Recovery. The Black Death it Westra Europe, BAND Corpaatin (1968). 12 Khan op. itp 191 3 Quod in Michael Dobbs, One Mim to Midnight, Alife A. Knopf, 2008 — | have often repeated to many of my juvenile % clients’ parents, "Be thankful. If little Johnny was going to be charged with a criminal offense, at least it happened while he's still a juvenile.” Why is that? Because in Texas, ita juvenile is charged with a criminal offense (Class B misdemeanor or higher), the most exposure that juvenile faces in the Juvenile Justice system is a probation until the age of 18 years' or incarceration in juvenile prison known as the Texas Juvenile Justice Department (TJJD) until the age of 19 years.” And this brush with the Juvenile Justice system can never morph. into an adult case. And regardless of the offense, a juvenile has the opportunity to seal, or expunge, his criminal history information, thus preventing both private and governmental entities from ever seeing the juvenile’s past history. Most of the time! ‘SO WHAT HAPPENS THOSE OTHER TIMES? Suppose you get appointed or hired to represent a 13-year old charged with Murder, or a 14-year old charged with Aggravated Robbery, or a 15-year old charged with Robbery. Because of the severity of the offense and the age of the juvenile at the time of the commission of the offense, the state of Texas can seek to enhance the punishment scheme available to juveniles in the Juvenile Justice system, or worse, seek to have the juvenile’s case transferred to criminal court where adult punishment ranges apply. The former scenario falls under the Texas Determinate Sentencing statute,* and the latter occurs when a judge grants the state's Motion to Waive Jurisdiction, more commonly known as Certification « CERTIFICATION Texas is one of 46 states with a discretionary certification scheme. In other words, regardless of the severity of the alleged offense, a juvenile always begins and remains in the Juvenile Justice system uniess and unti he is removed to a criminal court by order of the Juvenile court The earliest age for certification in Texas is fourteen, as long as the alleged offense committed is capital murder, "a first degree felony, or an aggravated controlled ~ substance felony.* For all other felonies (including “state jail felonies), the juvenile must be at least "fifteen years of age at the time of the commission , >) al of the offense.’ To be eligible for certification, the juvenile cannot have been adjudicated for the offense prior to the certification. The process begins with the state filing a Motion to ‘Waive Jurisdiction with the trial court After the juvenile receives the required notice of the state's intention to certify, the court will set a non-jury hearing designed solely to determine certification,’ The timeframe from the filing of the motion to the actual hearing falls within the court's discretion There must be enough time to allow the juvenile to undergo a complete diagnostic evaluation study 50 that the court can review any documents pertinent to the juvenile’s social history. In Texas, the juvenile court is required to order the diagnostic study be performed, but there is no requirement for a juvenile to participate in the evaluation."® There are basically two prongs to the certification hearing, First, a judge must determine that probable cause exists that the juvenile committed the charge in question. A typical scenario will involve the state calling as their sole witness a law enforcement agent to testify to the facts of the offense. The juvenile’s right to confrontation is generally not provided for in a certification hearing, as the court can consider written materials from probation officers, consultants and other court employees.” Thus hearsay testimony is not considered inadmissible, although a juvenile must be provided in advance any written materials the court intends to rely upon during the hearing.’? Once a judge has determined probable cause exists, the cout next looks at statutory factors to determine if certification is appropriate mm Whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person; m2 The sophistication and maturity of the child; mS. The record and previous history of the child; and mast The prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities ‘currently available to the juvenile court." ~~ JoAnne Musick Again, the court can hear live testimony as well as review written materials prepared by probation officers and other court personnel to determine which factors lean for or against cerlification. This part of the hearing will most closely resemble a defendant's presentation of character evidence during the punishment phase of a criminal trial. While the state has the burden of convincing the court to certify, in reality the defense will need to provide altemative evidence as to why the juvenile should remain in the juvenile system and avail himself of services there. In July, 2013, the First Court of Appeals of Texas reversed a murder conviction after ruling that the case should not have been transferred to criminal court because the juvenile court abused its discretion when it waived jurisdiction." In Moon, the court of appeals emphasized that certification hearings are not supposed to be mere rubber-stamp proceedings. The appellate court criticized the juvenile courts boilerplate certification order for placing almost exclusive emphasis on the seriousness of the alleged offense to the exclusion of the other statutory factors.'* ‘case almost identical to Moon is currently before the Fourteenth Court of Appeals, challenging the same type of boilerplate checklist for the statutory factors used by the juvenile court as factually and legally insufficient to support certification." if the juvenile court grants the motion to waive jurisdiction, the juvenile is then transferred to the adult county jail, although a county juvenile board can establish local policy to allow a certified juvenile under 17 years of age to remain in a certified juvenile detention facility.” A transferred juvenile will be eligible for bail and to have an indictment returned against him just as any adult offender is afforded when charged with a felony offense. Once certified, a juvenile is treated as an adult for all purposes of criminal court.” What happens if a juvenile judge denies the state's motion to waive jurisdiction? The juvenile is in the exact same position he was in just before the state sought certification. His case remains an indeterminate juvenile case with limited punishment ranges discussed earlier. ‘wc orenoek Pasa Eas CONTINUED =: But if the state felt the offense alleged was serious enough to warrant screening for certification, the state will almost always take the next route available to them to secure an enhanced punishment scheme against your client—determinate sentencing. There is no legal impediment to the state seeking determinate sentencing after having a certification denied by a juvenile court. In other words, your client is not out of hot water yet! DETERMINATE SENTENCING When a juvenile is charged with any one of seventeen enumerated categories of offenses in the Texas Family Code,® the state can present the charging petition to a grand jury for approval for determinate sentencing, ‘This decision to present to the grand jury is in the sole discretion of the prosecutor. Onea the grand jury approves the petition for determinate sentencing, the case retums to juvenile court with one caveat: the juvenile punishment scheme discussed above for most juvenile cases no longer applies. A first-degree felony” will now carry a maximum punishment of 40 years in TJUD, a second-degree felony carries a 20-year maximum, and a third-degree felony a 10-year maximum. Each sentence carries with it a possible transfer at a later date to the Texas Department of Criminal Justice (TDC), depending on the juvenile's, age and conduct at TJJD. Note that state jail felonies and misdemeanors are not among the enumerated offenses eligible for determinate sentencing, thus this enhanced ‘sentencing scheme is relegated to only the most serious penal code offenses.” Oddly, or intentionally, however, Robbery and certain classes of Sexual Assault are Noticeably missing from the enumerated offenses, But there is no minimum age requirement to be eligible for determinate sentencing. Unlike minimum age requirements to certify a juvenile, a ten-year old child is eligible for determinate sentencing. And unlike every other juvenile, or indeterminate, case, a juvenile who sets his determinate case for trial is always entitled to a twelve-person jury pane! and may select the jury to assess punishment following an adjudication of gu. we ere Now imagine after a jury tial in Juvenile court, your 13-year tld charged with Murder has been found to have Engaged in Delinquent Conduct (Juvenile Justice terminology for Guilty) and sentenced to 35 years in TJJD. How can a 13-year old serve 35 years in juvenile prison? On a first-degree felony such as Murder, your juvenile will be sent to a TJUD facility to begin his sentence, with a three-year minimum length of say (MLOS) required before he becomes eligible for parole.” Had the offense been Aggravated Assault with a Deadly Weapon, a second-degree felony, the MLOS is two years. Third-degree felonies cary a one-year MLOS. The sole discretion to grant parole rests with TJD. ‘And if Johnny does not avail himself ofthe services TJJD has to offer, a representative of TUJD can request the trial court judge to transfer the remainder of Johnny's sentence to the DCJ.” In order to be transferred to adult prison, a juvenile must be at least 18 years of age, and have either violated his, parole or have served atleast 6 months in a TWD facility while hot conforming to specific behavior criteria The decision to transfer to TDCY rests solely with the committing juvenile court?" Once transferred, all the rules involving good time credit and parole that apply to adult inmates also apply to transferred juvenile inmates, What if Johnny received a probated sentence instead of TJD. incarceration? He wil intialy be supervised by his county's. juvenile probation department. Assuming his probation term would exceed his 19th birthday, the state of Texas can request a hearing in the trial court prior to his 19th birthday to ‘ask the judge to transfer that portion ofthe probated sentence that would extend beyond the 19th birthday to a criminal court to be supervised by the adult probation department The trial ‘court has the discretion to terminate the probation rather than transfer any remaining portion to a criminal court. (One unfortunate consequence of a determinate adjudication, regardless i probation or incarceration is ordered, is thal your lent is forever prohibited from sealing, or expunging, his criminal history information * CONCLUSION While the Juvenile Justice system was designed to insulate juveniles from the “taint of criminality’ inherent in the adult system, prosecutors have unfettered discretion to seek a transfer or punishment scheme that will likely remove the juvenile from the protection of the juvenile courts and thrust him into the punishment-oriented adult criminal justice system, The role of defense counsel in certification and determinate proceedings is a crucial one. You are Conceivably the last bastion of hope for your juvenile client to allow him to become rehabilitated within the Juvenile Justice system and avoid life-long consequences consistent with an adult criminal history. A Runnin ‘Texas Family Code §54 04() ‘Texas Human Resources Code §246.151(¢) ‘See gonorally Texas Famiy Codo §53.045, ‘Sve generally Texas Fanly Code §54.02 In ation o discretionary transfer, some states have @ mandatory transfer scheme as well hat comes in play when a vende isa certain ‘298 ore alaged to have commited corn offenses, Soms states wih thes scheme alow vitualy no defense to defeating atrensfr as long as the courts satsed the juvenile mooi the slatuorly mandated requirements, Texas oes allow for mandatory ranfer, but onl in ‘he speci instance when a juvenile has prevcusly been cored and nas somehow commited analnercertiable offense while sb 8 kvenie. Soo Texas Family Code §54,02(m). Texas alsa has & provision ins caticaion salute where a juverle as young as ten {years of age can be cere’ as an adult forthe eimes of capita mutir or murder, bul this scenario only occurs wien an individuals ‘over the age of eightoan when the slate so0Ks corieation fr one of those eflenses and oer salon roquoments are met ‘See Texas Family Code §54 024). 8 Texas Family Code §54.0212\A) 7. Texas Family Code §54.0212)8) 8 In Haris County, ator the fing ofa serous flory, the distict attomey’s offen bogins a sezeonng process whore the assigned prosecutor wiles an extensive summary of the ‘ase and makes a recommendation as o ertiaton This sereening is then sent on to a umber af more senior prosecutors who review and make recommendations for certeation 9. Texas Family Code §64.02(c) 10 Texas Family Code §64.02(4) 11 Texas Famiy Cade §64.02(e). Fora thorough dscussion on he History ofthe right of confrontation in certfeaion proceedings, 866 21'S. Tex. LJ. 80, 91-95 (1980-7961), Analysis ofthe Juvenie Courts Dseretonary Power in Walver of Juedition Hearings, An, Ot, Jo Ann. LJ. (1980-1981Power in Waiver of Junsacton 12 Texas Family Code §54.02(e) 13 Texas Family Code §64.02() 44 Moon v, State, 410 S.W.te (Tex App Houston et pending) 15. AS of January 1, 1996 ll appeals of crifctions ar heard ulimately by the Texas Court of Criminal Appeals athe conclusion ofthe crminal cout proceedings. Texas Code of Criminal Procedure, Arlo 4447(a(b). Moon curenty before the Texas Court of Chmial ‘Appeals ater the slate'sPeiion for Diseroionary Review wa granted 16. Brit of Appoint, Guero v. Stato, No. 1419-00101-CR (Tox App Houston ~ itn Dist Doe 31, 2013), A copy of Appellants Dil, prepared by Cheri Duncan of the Hams County Puble Defenders ‘Oe, attached to ths anil, 17 Human Rasourest Code §152.0015 ‘tis, 2013, ett, Nicole DeB JoAnne Musick 18 While adult punishment ranges apply toa vanstered juve, ‘ane punishment thats ierent volves the charge of Capa! Murder. An indidva! under te age of 18 wheter ceried toermnal cour as a juvenie or charged in eximinal cour as 217 yar 0) who fs convicted of eaptal murder must serve a sontencs 8 Life in the Texas Deparment of Criminal Justce (TCM) win the possibty of parole aftr foty years. An individual who commited {he same offense ater tne age of 18 yeas, where the sates not seeking the death penalty, must serve Life without the possibly of parle upan conviction. Texas Penal Code §12:31(a) ‘Texas Goverment Code §508.145() 20 Fora complete list of offenses, 00 Texas Famiy Code §53.085(aK1}(17) + This includes a capita felony, a felony ofthe fst dogres, or an aggravated controled Substance felony 22 Texas Famiy Code §54,04(6}(3)A}(C) 23. Whon tho Determinato Sontoncing Act was fst onacted in 1986, ant sh enumeratod ofenses (Captal Murder, Attempted Capital Murer Murder, Aggravated Kidnapping, Aggravated Sexual ‘Assault, and Deadly Assault ona Law Erfercement Officer) 24 Texas Family Code §53,045(6), 8 long asthe ven s no more ‘than thre years older than the complainant 25 Texas Family Code §54.03(c) 26 Texas Family Code §54.04(a) 27. Texas Human Resources Code §245.051(¢) 28 See generally 37 Texas Administative Code §380.8559, ‘A juvenie wil be released to TJJD parole upon discharge unless has within two months prior ois Toth Btheay in whieh case | willbe transferred othe TOCL parce division. 29, Texas Human Resources Code §244.014(a) [The department may refer the cto te juvenile cour that ‘entered the order of commitmant for approval ofthe chie's transfert the Texas Department of Criminal Juste for confnement (1) the eld has not completed the sentence; ana (2) the ohil's conduct, garda of whether the ‘ld was rleased under supervision under Section 245.05, indicates thatthe welfare ofthe ‘community requires the ranser 20 87 Texas Administrative Code §280.8585(0)(1}(2) 31 57 Texas Administrative Code §380.8585((9) 32 Texas Family Code §58,003(0) 33, Texas Family Code §51.01(1)6) ‘coco @) , >) al My father was a lot of things in his life. He was a pipefitter for the Navy, and welding helped pay his way through engineering college after the service. He worked for Cabot Corp in the oll and gas industry, and later became an attorney to understand oil and gas leases. He took a summer two-cradit course as a criminal defense attorney and he was hooked, He left his business after selling out to his other partners and set up a criminal practice. He died in 2009, but even when | was a kid following him around he was always stil welding. He had kept his tools and stil helped others on projects lke building racecars and cutting pipe. The things he taught me about this practice are many, but much of what he taught me he actually leamed as a ‘tradesman and a sailor. For what its worth, | hope you find these things useful SHOW Ub, SHAT UP, AND DO YOUR DAMA JOB. Perhaps the single most important lesson he ever gave me, and one | believe he fervently wished most lawyers ‘would learn. A good welder is known by his work, and the ‘work speaks for itself. Did you ever see a good tradesman, bricklayer, plumber, electrician, or welder, that needed to tell you how good they were? Laypeople can see a bad job a mile off, and the more time spent leaming one's craft and the less time bragging about how much one knows, the better. Plus, no one wants to listen to you anyway. YOU WORK WITH HOT METAL AND LAME: YOLe WILL GET BURNED, CET USED TO THE PAIN, 62 FIND A DIFFERENT OCCUPATION, This actually came about when | was helping him. | get bumed holding a stick of flux - he looked at me and said ‘Get used to it, shrugged, and | went back to holding the stick while | got showered with sparks, He always made me wear the mask and eye protection and the gloves, but forearms were simply something God had created to absorb ‘embers. So, as a metaphor, this job has a lot of pain that comes with it, sometimes other peoples, sometimes ours Get used to it figure out a way to handle it without cocaine or sleeping with your partner's wife, or find another job, A MASTER If AN APPRENTICE WHO HAS LIVED LONGER THAN YOU You quit leaning on any job, and you become THAT guy or gal, the one who tells stories and does not work anymore, Not really. Talent does not replace effort and work, ..ever. Knowledge is fleeting, and often becomes outdated. As soon ‘as someone calls you a damn master, get back to the shop and start practicing how to draw a steady bead on the weld. ~~ JoAnne Musick GO HOMEAT THE END OF THE SHIFT | never leamed this, to be truthful. As | become somewhat less of an ass as | get older [itis frankly a journey, and it has lots of side paths] this makes better and better sense. It seems the most simple way to avoid some of the ridiculous things we lawyers get ourselves into, but as I said, | am still working on this one. Hell,| am still working on all of them. THE JOB MATTERS, NOT THE BULLEHET The quality of your work is the only thing you actually control in’ this world, whatever one's self-delusions otherwise. The effort matters, the heart you pour into what you do matters. You will have bad bosses, drunken co-workers, miserable warking conditions [keep in mind that his definition of that was cutting pipe in a water-filled ditch in the winter in New England or in a sea-tossed destroyer in the middle of the Atlantic in a storm] and all of, that is bullshit. None of it keeps you from doing your best work; only you do. THE JOB MATTERS, NOTTHE BULLIPET.. AGAIN He worked on pipes that had to carry explosive gas; if he screwed up people got hurt, That was a simple and Powerful lesson - the job, every job, matters. The clerk who gets your voucher through and gets you paid, the investigator who finds the one good witness for your case, the mechanic who fixes your brakes, and yes, you, the lawyer who makes the difference between a kid with a clean record and one who gets deported... matter. Remember that, and remember that people count on you to help them recover and repair their lives. If you remember that, then maybe you too could be a welders lawyer. €=9=9 {n creinal or el itgaton @ foreign language wiress, document oF ausiaMideo recording may come into pay. we have an ‘experienced and certified interpretation team who can ‘liably provide accurate transcriptions, tansations ‘4nd in-courtiterpretation, Fees published at website, tteanstaTion ‘teanscrrion 936/499 0093 ‘casio @) Want vs. Need in Solo IT Set-Up by Patrick F. McCann | am a luddite, defined as a person who opposes technology, | am not opposed to all things, just mostly to the need to obsess over the latest gadget or app [such as a "Fitbit” for instance; do you really need a wrist band to tell you that you are getting fat and lazy? That is what spouses and sarcastic friends are for! The zombie apps come to mind, although they are at least funny.) | liked the wheel, for example. It seemed a good idea, ike baked bread, and dogs, So, | believe | am uniquely suited to help you young smarty-pants phone toting new lawyers the difference between what you need, and what you want when it comes to starting up your IT suite. Here goes! Let me start with an example - you want a BMW M3 series, You need a good reliable car, or a BUS pass. See the difference? For a young solo starting out, who wants to work within the incredibly debt-plagued, shoe-string, ramen-eating existence you all appear to inhabit, here is what you want vs. what you need in your home-office to help you get started @ wens ‘You want an Ipad with Skype. You need a PC laptop or desktop with a decent monitor, and bundled with MS Office. ‘You want a multi-function scanner-printer-fax machine that will communicate with the International Space Station and make espresso. You need a good laser jet printer ike an HP1022, one that functions reliably and flawlessly and does not cost $0 much for toner, and an e-fax account that goes to your email ‘You want the IPhone 6. You need a good reliable phone that can give you some of the more useful apps like One Note, Dragon Dictation, or Fast Case. 4 You want cloud storage. You need a good portable hard-drive with a huge amount of storage for backing up your inevitable lost data or laptop failure. You want a sophisticated online management solution for your practice, like Clio or Abacus. You need Outlook, which by the way comes with MS Office. It has contacts for your client info, task manager for keeping you on top of your deadlines and projects, journal and notes for detailed online memos or tracking your biling activites, a calendar function that frankly, despite all the hype, no one has actually beaten, and a mail management system that, while itis a bit of a pain, can do some pretty cool things in terms of helping ‘organize your research and make your day flow smoothly. You want Westlaw. You need to leam to use the free search engine provided by the State Bar or Google Scholar advanced search, or, god forbid, use the free county law library or the one at the local law school down the street, land make time to go there. Total cost for what you want - 4k For what you need? About $700.00. Want vs. Need Everyone clear now? don't always-send incompete Floyd L. Jennings, J.D., Ph.D. Harris County Public Defender’s Office Scenario ‘A. defendant, having a long history of mental health treatment and admissions, picks up another case, Counsel is appointed and quickly realizes that @ competency evaluation is needed. The standard order is issued and the examiner opines the defendant is incompetent, ‘The State and counsel for defense appear before the bench and there isan agreed order for restoration treatment under Tex. Code im, Proc. art, 468.073, However, the facility determines that the defendant is not only incompetent but unlikely to bee restored, As the State does not wish to dismiss, a Tex. Code Crim, Proc. art, 468.102 commitment ensues and the dofendant is sent to Rusk for @ year. A year later, Rusk also opines thatthe defendant is not competent and unlikely to be restored, but also does not meet criteria for inpatient ‘mental health services, Comment: Upon reviewing the facts in the foregoing, the following. was discovered: In 2012, the defendant was found incompetent, unlikely to be restored and ultimately found to be permanently incompetent. Jn 2013, the very next case was that described in the scenario, but the prior incompetency was not discovered. What's wrong with this picture? First, upon a finding that a defendant is incompetent and unlikely to be restored, then in the next charge, the defendant has an unvacated adjudication of incompetency. By Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987), there is both a change in the presumption of competency anda burden shift. The defendant is presumed to be incompetent, And, the State has the burden 10 prove that the defendant is competent — and to a beyond a reasonable doubt standard. See also Arnold v. State, 873 S.W.2d 27 (Tex. Crim, App. 1993); Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996). t restoration: Second, the competency examiner must examine such a defendant from an entirely different perspective. That is, rather than look for evidence of incompetency that might rise to a preponderance level, the examiner must instead look for evidence of competency, and to a beyond a reasonable doubt standard, Third, failure on the part of an examiner to opine on the issue of the likelihood of restoration in the foreseeable future (ie, the time frame available to the court in the ‘matter, 60-120 days with a possible 60 day extension), coupled with the failure of the court to ask for such an opinion, sets up the condition wherein a defendant is improperly sent for restoration — costing the county and additional $30-S40k ~ inasmuch as Tex. Code Crim. Proc. art 46B.071(b) would prohibit such a commitment. Not to say that the person was hospitalized for almost 18 months, and at least a portion of that time was prohibited by statute Suggestions: It is important upon accepting an appointment to do a ook-back to ascertain if the defendant most prior case was dismissed with a finding of incompetency (and lack of restorabilty), as the person is ineligible for an additional restoration commitment unless the State can establish — beyond a reasonable doubt ~ that the person has regained competency. In short, don’t always send an incompetent for restoration without such a look-back As well, it is important to craft an oder, or add an addendum to any competency order, such that an examiner will be advised of the unvacated adjudication of incompetency, that the person is presumed to be incompetent and the examiner's task isto look for evidence ‘of competency ~ and that beyond a reasonable doubt. Kent Schaffer was a drama college major at the University, of Texas when he saw Richard “Racehorse” Haynes cross-examine a Texas Ranger. For the next four days, Schaffer would skip his classes to attend the trial, At the end of the trial, Haynes offered Schaffer a job. Schaffer showed up at the job the day after classes ended and for the next three summers he would continue working as an investigator for Haynes until he decided to be a lawyer. He graduated from the University of Houston Law School in 1981. ‘Schaffer has represented high profile clients such as Farrah Faweett, Congressman Craig Washington, and R. Allen Stanford. He's most recently been in the Tom Sizemore short film “Pieces” and was one of the producers of the Michael Morton story. Q: It seemed like you enjoyed being an investigator for Haynes. Why law school? A: Iwas always in and out of trouble as a kid. I'd often get in trouble for saying things that were on my mind, So it was always one of those ‘it takes one to know one...” I always enjoyed trying to find out something about someone that ‘they didn’t want me to find out Q: Did being a drama major in school help you with being a lawyer? ‘A: Being in trial is similar to a dramatic production. You have to get their attention and interest and you have to learn to make things interesting to someone, In drama you learn the tools to make people want to listen and pay aitention. 1 don’t get stage fright. I enjoy the performance. Q: How has going to trial changed from when you were first practicing? A: Now, it's a lot harder to take cases to trial, There's not ‘that many cases that get to trial. The federal sentencing guidelines are insanely high, When I first practiced, there ‘was no talking tothe police. Now a lot of people are snitches. A lot of people want to cooperate to get that probation or year instead of going to tral. The [State] threatens to hammer you if you go to trial so there aren’t a lot of lawyers willing to go to tral. Q: How have you seen the jury system change over the years? A: Now it’s an ADD generation, You can't be too emotional and jurors have more mistrust ofthe lawyers, Jurors are more skeptical and conservative. They know the police lie, they know there’s an inherent racism in the system. They've seen. CSI and in a case where there’s an absence of forensics, it ccan seem as though there's no evidence. Lawyers need to be cognizant of their audience and pick members [of the jury] that are closer to the defendant. You have to adapt to a jury and [ have to frame a case to that audience. : How are judges different now than when you first started?” A: It scoms a lot of people are in a hurry. You have to take the time to get your story out there; you can’t speed up the trial for the sake of brevity. Now we're being told you have to speed things along. Judges compare the size oftheir docket as though that matters. Why does that make a quality judge? The quality of a judge is where justice is meted out ‘and not how quickly they proceed through a case. Federal judges are different. Q@ ‘A: There’s a lot of people who are in the criminal justice system who should not be there, We criminalize things we should not, When I went to St John’s, I would get five pops for talking in class. Then when I got home, my parents would spank me for getting in trouble in school. I got spanked so much that I thought it was an S&M movie. We need ‘more accountability from the family. In Aspen, the Sheriff recommends milder forms of marijuana, The deputies will protect the marijuana growers. The police there protect people unlike here where they're kicking in the door to get a bag of weed. We will be the one of the last states to legalize ‘marijuana. The electorate is not an intelligent group because wwe have a lat of people from West and East Texas. Vhat about the system itself. How has that changed? : Is there a lawyer who you admire? A: Gerry Goldstein. He enjoys life everyday. A lot of lawyers’ lives revolve around work. I don’t have a lot of passions but I enjoy photography, art, film, travel, and people. I’m not a good loner. Being @ good lawyer is knowing people. You need a real appreciation for people. Q: What advice do you have for the younger lawyers out there? ‘A: Always keep your word even though you don’t want to, People come to you and trust you. You made them that promise that you will give them a hundred percent of your time and talent. We're like surgeons. People are on the table. You take the shortcut: that’s inexcusable because you want to go play golf. You can't have it all It's hard to be all things to all people, When you have a profession instead of a job, you have to putin the time and keep your word. No shortcuts Q: You'll be 60 years old on August 22. What would you be doing if you weren't a lawyer? A; I'ma Jew; we've always wandered the desert, If I'm not practicing law, I'd want to own the Bellagio. “how do you aS Every working Mom has heard this question, from either our friends who are not working or those without children. This is one of the greatest challenges young women face. Just a generation ago, most women did not work outside the home Tull time. While some of these apply to men as well, there are issues that are uniquely facing Moms at home (whether single Moms or married Moms), Fortunately, I had @ fantastic role model. My Mom was a small business owner, politician and community volunteer. On top of that, she raised 3 children, ran carpools, cooked meals and ‘made it all look easy! However, she was probably unraveling undemeath the surface and hanging on by a thread at times. She didn’t have many friends in her similar circumstances to can on in stressful moments. Talk to your peers - go out for a glass of wine, unwind and vent your frustrations! In our generation, things have gotten better as men take more responsibility at home with children and housework. However, Tine item in my budget is to pay someone else to do the housework and laundry for my family of five, There are too ‘many people looking for work that can take these jobs off your plate. I never want to feel guilty abotut spending quality time with my kids because there isa sink full of dirty dishes staring at me. Your time per hour is so much more valuable speat ‘working or with your family. Prioritize your extra-curricular activities. When my children were babies, I gave up volunteer opportunities and was nat available for evening meetings. There were a few volunteer positions I wanted to hold onto, but realized I wasn’t helping anyone if | coulda’t fulfill my coramitments. The time comes when you ean take on more activities, but it needs to be once you are ready and your family can handle having you away ‘rom home. @ wesc do it all?” by Lisa Shapiro Strauss, Attorney at Law, Mother of 3, & Rabbi's Wife You have to spend time every single day taking eare of yourself, both physically and mentally. Get up early to take a spin class ‘or break out of your routine carly and go to yoga or for a walk. love being done with my exercise by 6:00am before my kids get up, so I can make lunches and get them out the door. However, ‘you have to get enough sleep so you don't run your body down, ‘You know what works for you, but you need io add it on your permanent schedule. ‘Ona practical note, I could not live without my iPad, scanner and Dropbox. [have all my contracts, offense reports, photos, ‘witness statements and other evidence scanned into Dropbox. Each Client has a folder in my Dropbox. I upload their videos ‘and photos. Ihave access to my entire ease file no matter where Tmay be in the world. [have done business on vacation (sadly), ‘but more importantly, in my home, Any client that calls or issue that arses, [have the whole file at my fingertips 24/7. This is a lifesaver for a Mom on the go, driving carpool and siting at baseball games. You cannot be the best lawyer, best Mom, best wife, bestfriend and best volunteer. Something, has to give and you need to ddecide which ofthese you value the most. Superwoman doesn't exist and don't fool yourself into thinking you are the first who will be able to do it all, ‘At the end of the day, tun off your ringer and enjoy your family. Our children’s well-being affects us and ours affects theirs, We are inexplicably connected. The quality of the ime ‘we spend with them matters, We cannot hear our children while we are face booking, texting and watching the news at the same time. Spend time unplugged! We all need to stop and enjoy the fruits of our labor (no pun intended)! Before we blink, our babies will be gone and all those clients will be a faded memory. Cherish every moment you have with your kids so you don't regret this time later. The kids will remember your presence and it does make an impact ‘on their future, : ee GIDEON'S Sze PT NS OF GIDEON'S AO) LSE ee ene Oe Rg strangers and in a hotel conference room in Birmingham, NES ee tees SR iy SoS a meee ees aT Sen Pere rena a ed een eee ee rem ny practicing law for less than a year, and though Nick and Thad been able to do fairly well for our first months in practice finding piecemeal gigs working for other rare Sere emia etn an caro Deere ei ea enn ene tests about as long as I had but had handled hundreds of cases Brenner oa oct Nick and I were both agreed about Gideon's Promise. We both really wanted to do it, but we weren’t there to, make fifty-nine new friends. Nick and I were our own SO cu cece Sees eens We had heard about some of the kum-bai-ya-ing and the See arc Or eee L RCS Reeesereniren Tene nC ar ot Pea ottne? ‘The assignment that first day was to stand up and give a short introductory talk, about who we were and how we came to be in this room in Birmingham on this August afternoon. I had waited until the very end to go, outof fear Pertenece een aeRO oa met to Gideon’s Promise. A brother was hooked on drugs and, sent to prison for way too long instead of being offered help. A wrongful conviction. The death of a parent who, Phone ior ec eee eee ee Portree LTR niece Rs te en ea ee a eae eae ea eT eee ee eran tee sa ea ean rea eae oe it like this before. Pen a ce eee Perea Smee ihn creeks eee enn aa opinion you don’t care about is intimidating enough, but, janding in front of a group of strangers whose approval Seon Mes ern crn) CONTINUED. tag meet AO) ee cee ee Ta Ee ae aren eR Cries remembered this one specific day the summer of my IL year, and the words started coming out of my mouth like a confession to this group of strangers, Uhm...1’m Allison, I'm from Houston...And, uhm. I PN CM ae ge where I'm from, there's this guy named Rick. Rick sells peanut M&M's and hope. From 8 am to 2 pm he stands ree ee ea em Lee SOT ae LO Non eee eae aed ago when I was in law school and interning for the eee eee eed eee ts wanted to be a prosecutor, Iwas told that was what you Pg eae eee ere The attorney I was working under was one of the aa Se Sa eT a ae ene ga re age eee Ee ae ee so loudly that they couldn't do their work. Every day ere Oe a aE ogee Cee eerie a ee ate ae Pen a ee ee ee mn ee Re mee eer eee Ne ea ee aa as “emotional outbursts” but I would have called, Sn eae eee pare a renee eee ae walked outside to the front of the courthouse and didn’t en een re a eae ee Ree cmt ears eer ee ‘again. Or go to the movies. Or have a girlfriend. And I thought of a Christopher Hitchens quote I read once, Be es een ee ee that was all I had seen during my internship there. I Neen ae nL have to do something about it, or at least try. Dd VAMC saa RTO ae ee a everything started coming into focus. Across the street was a man busking with his guitar, and Rick, on the ee ee ne eee ec aR ea ee ee ee ne COR al a Be goo A Preemie SURELY aa een ecco US first in a long line of things I would be compelled to do at that two-week training that made me uncomfortable and caused me to share more of myself than I thought I wanted to, It was also the first in a long line of things that I did that gave me considerably more confidence SS eo ee oe RSLs cen Pere ek cna Oe re rte aa Se Srna ae am a would not be the word I would use to describe those two weeks. It was work. And exhaustion, And stupid team-building activities that I hated. And bonding with Pres ee ets estas in arte ree sg hated, too. And frustration and deep embarrassment and exceptional pride, and a few crises of self. The days went on and the team-building exercises abated, because we were becoming an actual team eer asm era ese ra day where we told stories- our own and each other's, Pee aera areca es et Ine Se acne Sere eee een Cy VC CCTM CT Cem Coan Peer smears relationships in the short time we had left. Of course, the relationships you make in two weeks, even an intense two weeks, are not the same as RN See cate eRe SL between our first session with Gideon's Promise and ‘our second session, some of those relationships started PON tsi Sa GIDEON'S PROMISE It was during theJanuary session in Atlanta that my life changed completely. One-night, someone pointed out that an attorney on the Gideon's Promise-email listserve posted about a job for an Assistant Public Der ea ae Ne Reel aT cer cMe Nene rene a ees CRU Tee ahaa ate ete the group, the conversation shified from teasing to The application required three references, so that SN Se ee ae eee McCann, and Bob Wicoff, asking if they would be will mm el ae suc Cen one errs not serious. 3. Yes, Actually, that’s what McCann and Wicof? responded with, Bennett (I assume jokingly) RTC Meson eM a aR MET Pesan re te eae eer a ene Rec eens Ce ena LRT Pre eee ea ee een eee Une En uence) then, a month later, I boarded an airplane to fly 8,000 Cresco Nn Reet Cree eee Onn eee ee eas SSN eNOS Gideon”s Promise who work in severely underfunded public defender offices in the Southern US area huge eee CRC nee) Pru tenor ais Cena err ea touch with me and have kept me a part of the group Cesar ee ees ena ae Though the advice and guidance are amazing gifts, the ‘most important things I took out of Gideon's Promise and FACT are the things I thought I didn’t need as Ets eee MS ea would be without: the priceless relationships with incredible people that I hope to have for the rest of my ee Renin ae eee ae ed with knowing you have a group of warrior advocates standing behind you at all times, even when you are in renee en eee ao tas BURNS INSURANCE SOLUTIONS family owned and operated Liz and John Burns look forward to offering your clients a new service OMIM eR eRe OUI COR UES) Liz has 25 years experience in the insurance business, providing clients with superior service and products, ORDERED TODAY INSURED TODAY PERSONAL SERVICE & FREE QUOTES COPIES OF SR22 CERTIFICATES SIMULTANEOUSLY SENT TO YOU & THE STATE OF TEXAS 713 - 224 - SR22 INFO@BURNSSR22.COM It’s kind of like chocolate in your peanut butter. At some point someone did it, and it timed out to be a pretty good thing. Will mediation ever be quite that good? Of course not, Will it solve the problems this organization has taken upon itselfto lead the charge against, such as the lack of PR bonds, the long lines headed into the CIC, or the multiple needless client appearances at the courthouse? Nope. But as part of a comprehensive plan, it ean help make a difference in the number of cases flooding the courthouse on a daily basis by limiting the number of times a defendant has to return for settings in the same case. It can certainly make a difference to an individual defendant, and even a victim’ Mediation can embody some of the best parts of what we know of as Restorative Justice. We don’t see that term in action much, and most examples of it that are mentioned on the listserv usually have to do with some other state fa from, Texas in miles, and certainly in mentality. We hear stories of families of a murder victim praying for the defendant, something I saw in person not too fong ago while helping try a murder case. But here in Harris County, mediation is still a new idea to a lot of people even if we've mediated criminal cases" in the past. But since it's going to be thought of as a new thing, let's examine it from start to finish, @ wesc BY TASON TRUE TT Clearly the defendant and the victim both have to be there. Although the victim (or their family, in a case involving a death) participates, they cannot contest any sentence eventually handed down (§56.02(13)(@)), which is hopefully more lenient than it otherwise would have been without mediation In some places, such as Nueces County, the prosecutor attends. Nueces County has a program where several cases are mediated on a single day, with mediated plea bargains reached, I view the Nueces County model as the Wal-Mart of criminal mediations and as litle more than an accelerated plea mill It does not appear to take individual eases in to account and from what I can tell is probably a mediation version of the Harris County bond schedule where “crime X” gets “mediation deal Y” in almost every instance, In most venues the prosecutors do not participate, and the state is even exempt from attending mediation pursuant to §26.13(0." ‘The court does not participate, other than ordering and/or considering the result of mediation. ‘The court is not bound by the results of mediation any more than it is a recommendation on sentencing from the State in any other plea agreement. ae D eee 2 Sure we do, or at least have. For years the Harris County Dispute Resolution Center (“DRC”) has mediated cases that are collateral to the criminal system, such as truancy cases, and, to a lesser extent, mediated juvenile cases. A couple of decades ago there was a criminal mediation program that ‘was discontinued for political “tough on crime” reasons. Regardless of whether or not mediation in criminal cases ig currently used in Harris County, it has for some time been an option. The Texas Crime Victims’ Bill of Rights, which is found at §56,02(12), states that a vietim has the right to request vietim-offender mediation. A vietim’s right to mediation is conspicuously absent (as are several other provisions) from the "Bill of Rights” listed on the Galveston County District Attomey's website." It did, however, make it on the websites for the Harris County District Attomey” and the Texas Department of Criminal Justice." Most notably, mediation is specifically listed in §42.12 See, 11(a)(16) as one of the factors a judge may consider when sentencing a defendant for Title 7 crimes. Title 7 includes property crimes, a huge category of offenses that contribute to the daily influx of defendants in Harris County. §42.12 pertains to community supervision, and also places squarely within the court's discretion the ability to end supervision early. Elsewhere, at §26.13(g), the code states that a court may assist in coordinating victim-offender mediation before accepting a guilty plea, By “assis” the legislature certainly ‘means “order”, Article 26 applies to arraignment in all cases punishable by imprisonment, greatly expanding mediation’ potential use, So, for some time mediation has been within the judge’s discretion both when imposing a sentence in some ccases (property crimes or any other crime punishable by imprisonment), and in ending supervision early in all cases that fall under §42.12, To be sure, these provisions are there to be used if the vietim requests it, so a starting point to using mediation in your particular case would be to suggest it to the complaining witness—which should most likely be done through victim's services. On a broader scale implementing a county-wide system for mediating criminal cases would require the cooperation of not only the judges, but various pre-trial services and vietim’s rights groups (MADD hhas endorsed mediation programs in ofher Texas counties), $0 that they can mention mediation as an option to cach complaining witness ‘And of course, in a case where you are able to interview the complaining witness in your case, you could certainly do the same and suggest mediation. Riera ae If you take appointments, or even if you don't, you may be wondering what's init for you. First of all, it presents another billing opportunity. If those in charge of setting the rules for payment of appointed counsel realize that a cease can be pled after one setting and one mediation (those that don’t plead out en masse, anyway), as opposed to after several settings, maybe they'll sec it as a cost savings. Certainly ifthe court orders mediation it will be approved asa billable event. If you need to change your billing structure to include it, that's easily accomplished. If you're charging by the hour you're already there, but it’s no great difficulty to increase fa flat fee or add a rider to a flat fee contract that increases the fee if mediation is scheduled. So, from a purely selfish perspective, if a lawyer is getting paid there is litle else he or she needs to consider from their ‘own perspective, seat Paes If-you look at the study referenced in endnote 8, at page 9 yo can sce an excellent summary of case dispositions from ‘mediation programs around the state. If you wonder what's in it for your client, you can look and See that within the study period Travis County placed a full third of participants ‘on deferred prosecution. Dallas County placed 84% of the defendants who mediated on probation, while Tarrant ‘County used mediation to refer defendants out of the system and terminate supervision, which occurred in over 70% of all cases, While the study involves juveniles, the fact is that mediation can be used in cases involving adults, too, although my guess would be that because adulis are held ‘more accountable than juveniles there will be fewer adults offered deferred prosccution and probation, though the sentences will most likely be lower overall. So, what's in it for your client? Based on known events in other counties, they could receive lighter sentences, deferred sentences, or early termination from supervision, All of which can be good results given the facts of a particular case, rweoctmcr i) CONTINUED =: MEDLtAT ION? Opinions differ here. Certainly if you have a case with a client who insists on tial, or you are certain is factually innocent, mediation is not appropriate Should you mediate cases involving violent crimes? When discussing this issue with my wife, who generally serves, fas my reality check, she mentioned that she would not ‘want to ever mediate a case with a violent crime. The ‘TDCI program has been developed with an eye toward ‘mediating cases of all types, although most states exclude violent crimes. Interestingly enough, a 2009 study by the ‘Texas Juvenile Probation Commission cited two schools of thought—one that all criminal cases should be mediated, and the other that only the more serious crimes should be. 1 was surprised that “only non-violent offenses” didn’t ‘make up a third school, since it has certainly been the direction in which most people I talk to in Harris County lean, Table 1 on p4 ofthe study shows the known victim-offender mediation programs in Texas (Harris Coumty is conspicuously absent from the list). Truthfully, the Haris County DRC's free criminal and juvenile mediation program is ttle more than a memory, but the infrastructure stil exists. ‘And for clients with the money to pay fori, you can always find a mediator who knows what they're doing when it comes to criminal mediations (another way to sell mediation toa judge is to assure them that it wll be fee of charge to the county—and their budget) @ wea IN MY CREMINAL cAsE? Dallas County has a mediation program that takes violent offenses, They feel that the vietims can air their pain, heal more quickly, and move on with their lives if they've been able to confront their attacker. I can see it, with the right touch, but some people can’t. The University of Texas’s school of social work has a program that gocs into prisons and solicits certain inmates for mediation in cases where the families of murder victims want to know more about ‘what happened to the victim, primarily for closure, The Nueces County program mentioned above deals primarily with misdemeanors and results in a plea that they call a “mediated plea bargain”, which is an oddly accurate ‘way to phrase one particular use of mediation in this setting, The Nucces County program boasts that 73% of the cases were resolved through mediation, and those mediated pleas were accepted by the judge 99% of the time, I cannot verify those statistics, which appear on a for-profit mediator’s web page, so they are included here only anecdotally. Other counties, like Jefferson, limit their intake to non-violent property offenses under the guise of “victim restitution” cases. I've heard stories from those mediators about little old ladies helping kids who tagged their fences or keyed their car do their homework and stay in school after they learn more about the kids during mediation, While that’s an unusual result, certainly the promise of restitution or repairs can be a regular offer by a defendant in order to show remorse and receive a lighter sentence, If you have @ DWI case in a court that has previously denied pre-trial diversion for cases involving an accident or igh blood alcohol content, maybe you can take a stab at ‘mediation and get approved, with the consent of the vitim, T'msure a serious injury or fatality won't make it under any circumstance, buta minor wreck with promise of restitution may get over the hump in these or other cases where the “policy” in Harris County may be that certain crimes are treated more harshly (employee theft, for example). Certainly every case where your clint is seeking to be released from supervision early is appropriate for mediation. Those cases involve clients who have already pleaded or been found guilty, so they have nothing to lose by a show of remorse. If you have asked for early release but the judge isn’t going for it or is on the fence, offer to go to mediation and seo if that changes the judge's mind. Tt may work, or it ‘may make them smirk at you and still say no, in which ease you haven't lost anything, anyway. A fact-specific analysis of just about any case may lead you to think that mediation is appropriate. The reasons to ‘mediate and types of cases to mediate are as varied as the cases themselves, [oat nmehaeae ‘Over the years, I've heard alot of reasons why lawyers don't ‘want to mediate a eriminal case, I won’t bother to talk about ‘why prosecutors have said they don’t want to doit, but from defense lawyers, these seem to be the most popular: “My client isn’t guilty, and we can prove ithe state will never make its case.” That's a great reason. Don’t mediate those cases. “I don’t want my client to waive his Sth Amendment rights,” This may be a very good reason as well, Mediation in civil cases is confidential, and certainly plea negotiations in criminal cases are supposed to be, but we all know there are judges who will allow various statements made in plea negotiations into evidence, And because criminal ‘mediations are still somewhat of a gray area, those same judges may very well allow admissions made during, ‘mediation into evidence—in most cases the prosecutors will not be in attendance, so this would not fall squarely into the realm of “plea negotiations,” anyway. This may be one reason why Nueces County calls its program ‘mediated plea agreements’, which may keep the process inadmissible, even if not confidential But again, knowing that there are judges who will err on the side of allowing the iniroduction of certain statements, I'd say that if you're worried about an admission of guilt, don't mediate that case. Mediation should only occur in cases where your client has nothing to lose by admitting guilt, “I'm not sure what my client will get out of i.” If you've investigated something and you're truly not sure if it will be good or bad for your elient, my opinion is that you shouldn’t do it absent some sort of Hail Mary situation (while also getting the client to agree in writing after he’s been advised of the risks), But if you're not sure how mediation will affect your client simply because you haven't made an effort to find out, that’s not such a great reason. In fact, it's a bad reason. “L'm a trial lawyer. I don’t believe in mediation.” T hear this sort of chest-thumping quite a bit. It is always BS. My practice has traditionally been civil litigation, a profession notorious for settling cases without trial, full of lawyers who have tried almost no cases at all. I mediated more civil cases than I can remember as a party, even more as ‘a mediator, and I never found myself at a loss for cases to take to trial (tried two in the month prior to writing this, in fact.) Even the most prolific trial lawyer has cases that should not go to trial and has resolved cases outside of the ‘courthouse, “I'm a trial lawyer” is never a reason to refuse to mediate the appropriate case. 1 think of criminal mediations like 1 think of my Neti Pot (Google it, if you've never heard of one). At first it's downright weird, It will always be foreign to some, and ‘others simply won't have a need for it. My wife certainly can't wrap her mind around it. But with my bistory ‘of broken noses, car wrecks, and facial reconstructive surgery (no jokes, please), it works perfectly for me. The sudephedrine industry will miss the borderline meth-head | used to be, But [ haven't had a sinus infection or a ruptured car drum in over a year, and I hadn’t gone more than two ‘months without one or the other in the last 25 years before I started using it Maybe mediation will have a similar effect on criminal cases. I's not for every case, I's not even for the majority fof cases. But here and there maybe it can help someone, and maybe they get a lighter sentence out of it. Or maybe they come to terms with what they did just alittle bit beter than they otherwise would have, and decide to change their bbchavior for the better. That's not great for our business ‘model, but it’s great for our clients rweoctosr i) EZ Lg Armee lia Owned & Operated ORDERED TODAY ype yl) \ GPS & RF Paty ‘ NSE SC ea » Inclusion and/or exclusion zones Eee cy ete ee ee eae ce »No phone line required Peta) pageant Control the Middle of the Board! Or...A Study of Houston Lawyer, Dan Cogdell “It’s just you and your opponent at the board and you're trying to prove something” Oma Chess Masters often teach to control the middle of the board to gain advantage over your opponent, Ifyou control the middle of the board then you create a comfort zone around your pieces and you have many options of defense and attack at your disposal. If you are not controlling the ER ee Renae atta! ‘The chess board is like the courtroom, You move around. the courtroom as does your opponent. You make different, eT ninemsn rcs sag eye eeu utonr Rea oe eee eg ges ag Se ee aS eee ents 11 was watching Dan Cogdell trying the Patti LaBelle, body ‘guard assault case in court several months ago and at one point right in the middle of the State’s questioning of a witness, Dan, rose from his seat, walked over to one of the eee Oa CR een gaecLt cece De ee Coe Peon eu eters een gee ony the prosecutor and the witness on the stand. The bailiff was not one of the regular bailiffs in the court PRIS aeons Roan yas for that day. I would not be surprised at all if Dan had never ‘met that bailiff before that moment. It was most likely a orchestrated action to show comfort in and control of the courtroom, It was a brilliant little display. CONTINUED :: Chess COLPNETN vier ser rcs Control the Middle of the Board! Or...A Study of Houston Lawyer, Dan Cogdell Control the middle of the board! Command attention! Stand up and walk around when you can, Ask questions oe ane meen a esc have been there before and you know what you arc doing. Be friendly with your opponent when you can, Be friendly with the court staff (all the time), The jury watches everything. The jury will notice when you are standing in the middle of the courtroom grabbing their attention, The jury will notice when you walk over to talk to your opponent during the middle of trial and the jury will definitely notice if you act intimidated and it appears Nec ere een ec ea appearance of control is how you react to discussions at Rese rors es ty In the same case with Cogdell, he and Paul Doyle would Pe cat ce ener oe eee sme entra ruling but it never failed, Dan would still smile big and say Serotec cr eeam cts ony course watched and heard him so as faras they knew, Dan PR nsec Me ee ECR ermecn ica Se etna s SunTzu said “Appear weak when you are strong and Se en aS Pe RO OCS er Ree aT self-deprecating humor, appearing weak and humble, then Seer ee ane Som a ear ed figured out ways to control the room and to appear strong, ens eee ea Secret teams Peg ee eRe ree eci Ta cee See acres did battle a few years ago when he was a prosecutor, Chris controlled the middle of the board that day. On Thad purchased a flat screen TV to use in trial (pre new Ce ean coco seem Nats on his counsel table to show the jury my powerpoint slides T wanted to use in my closing. In hindsight, it probably wasn't a very effective closing to begin with but the thing that made the biggest impact in front of the jury was what recent As we walked by cach other in the well, he grabbed my eoeeet aetna cr cet secrecy Cree Ee cone cues ee Renter hstgemrtare te eet teres ty Pere ee ear ee ae ea ect eeet off guard and didn’t know whether to sit there and suffer while he used my technology against me or to object and Ree one ance lunconfident in front of the jury. 1 just couldn't bear it any longer and I finally objected and politely asked the judge if I could remove my exhibits from counsel table, Damage done. Chris had effectively taken over control of, the courtroom and control over my presentation. He and I Ponte ta neces ees ts PENS SBroa Tiny As tril lawyers we need to use our voices and our bodies to emphasize points we want to make. Ifyou try to come up Ser eee eae ncaa can Ey trial you will come across as more confident and persuasive, Soiree Rees enna tg ed confidence in you that you know what you arc doing. Go Sere er serea tani tenes sen hee Peres mer eons hen nen) the middle of the board and control the game, Good verdicts toall! 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