Every criminal defense attorney gets the question that Wolf Blitzer of CNN asked John Galligan the defense attorney for Major Nidal Hasan. How can you represent that guy? The short answer is because we took an oath to support the Constitution of the United States. Under the Sixth Amendment to the Constitution, everyone who is charged by the government with a crime is guaranteed the assistance of an attorney. Specifically it says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." The first thing you should notice is that the Constitution says "in all criminal prosecutions..." We don't make exceptions for the really guilty or the terrible or even the one who is hate filled. Major Nidal Hasan is accused by the state of 13 counts of murder. Under the Sixth Amendment as a U.S. citizen he gets all of the rights guaranteed to any citizen. The public should not mistake a criminal defense attorney's representation of a particular criminal defendant with an endorsement of any actions he may have taken. The lawyer does not by representing the client thereby agree with the client's motives or actions.
When you stop and consider how difficult it would be to represent someone accused of such an awful crime, the easiest thing to do would be to decline to represent such a defendant. You have to deal with arguments like that made by Blitzer. "I'm sure he will get a much fairer hearing than those 13 Americans who were brutally gunned down the other day. I'm sure he will get all of the rights that are applied by the military code of justice." Yes he will. Denying him the rights guaranteed to U.S. citizens under the Constitution would not change anything to favor the 13 Americans tragically killed. However, it would change things for all of the rest of us. The majority of the 13 killed were active duty military who also took an oath to defend the Constitution. They died defending the very document that gives Major Hasan the rights he now "enjoys". This is where the rubber meets the road on whether we believe what we say about defending the Constitution. How many other brave Americans have died to give you, me, Major Hasan and all Americans the rights guaranteed by the Constitution? So Wolf it would be a disservice to all of our veterans to give Major Hasan anything less than his full Constitutional rights.
Friday, November 13, 2009
Tuesday, September 1, 2009
A lot of dead people
It may seem like everyone in the practical legal blogisphere is talking about this, eg. Simple Justice , Grits for Breakfast, The Matlock Blog , but here is my view. It was bound to happen that one day Texas would execute a man for a crime he did not commit. To be honest that has almost certainly happened many times in the past. However, now it can be established that Texas has executed a man who not only did not commit the crime, but a man for a crime that did not occur!
Cameron Todd Willingham was executed in 2004 for the death of his two twin one year old girls and his two year old daughter. They all died in a house fire on December 23, 1991. Willingham received burns trying to return to the house for his children. (The prosecutor said they were "superficial") A police Chaplin said that Willingham had to be handcuffed and restrained to prevent him returning into the house for his children. The reason this execution has returned to the public's attention is because of a recent report that became known through recent articles in the New York Times and New Yorker Magazine. The article in the New York Times refers to a recent report and quotes one of the authors,
So most people would look at this incident and recoil from the injustice. The reason I have changed my view on the death penalty is because of the inability to remedy injustice in these cases. Once a man is put to death by the state, there is no chance to "do over" if science or other evidence comes to light. The only justification for the death penalty is retribution for the victim's family. To keep the victim's family from "taking the law into their own hands." But what message does that send? Since murder is so horrible, we will kill the murderer for you. Of course if the victim's family did kill the murderer we might only call that manslaughter. What do you call it when the state murders someone under the color of law? And are we the taxpayers now complicit in this murder? The end result is the same. There are a lot of dead people in this case and none were guilty of a crime.
Cameron Todd Willingham was executed in 2004 for the death of his two twin one year old girls and his two year old daughter. They all died in a house fire on December 23, 1991. Willingham received burns trying to return to the house for his children. (The prosecutor said they were "superficial") A police Chaplin said that Willingham had to be handcuffed and restrained to prevent him returning into the house for his children. The reason this execution has returned to the public's attention is because of a recent report that became known through recent articles in the New York Times and New Yorker Magazine. The article in the New York Times refers to a recent report and quotes one of the authors,
a noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence. The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”
So most people would look at this incident and recoil from the injustice. The reason I have changed my view on the death penalty is because of the inability to remedy injustice in these cases. Once a man is put to death by the state, there is no chance to "do over" if science or other evidence comes to light. The only justification for the death penalty is retribution for the victim's family. To keep the victim's family from "taking the law into their own hands." But what message does that send? Since murder is so horrible, we will kill the murderer for you. Of course if the victim's family did kill the murderer we might only call that manslaughter. What do you call it when the state murders someone under the color of law? And are we the taxpayers now complicit in this murder? The end result is the same. There are a lot of dead people in this case and none were guilty of a crime.
Monday, August 24, 2009
The Unrepentant Judge
This past week the State of Texas experienced a rare event. The Chief Justice of the Texas Court of Criminal Appeals was on trial before the Texas Commission on Judicial Conduct. Judge Sharon Keller is the highest ranking judge ever to be tried by the Commission on Judicial Conduct. Judge Keller was charged with five different violations relating to her conduct of closing the clerk's office of the court exactly at 5:00 pm on the day of the execution of Michael Wayne Richard. The attorneys representing the defendant had called the court to notify that they needed to file a last-minute stay of execution due to action by the United States Supreme Court that very day and would not make the 5:00 pm closing. The attorneys asked the judge to allow them to file the pleadings after 5:00 pm and Judge Keller said, "no."
The hearing has provided an interesting glimpse into the judge's reasoning. Judge Keller testified about the Texas Defender Service, "they did have all day." (It should be noted that the pleadings were ready to be filed by 5:45 pm to 5:56 pm according to witnesses at the hearing. Also the Texas Defender Service had computer problems that hampered their ability to meet the closing deadline.) Judge Keller testified about last-minute execution day pleadings in general, that they “tend to be voluminous and meritless.” Then in response to questions about her actions of that day she said, that she was “doing exactly what [she] was supposed to do.” When given the ability to seem less harsh, the judge rejected that chance. She was asked at the hearing if whether, knowing what she knew then, and based on what the attorneys for the defendant said and what they asked, would she do anything different. Judge Keller responded that she would "not do anything different." When questioned about whether she had anything to say to her critics. The judge testified: “I believe they were misled by information that was deliberately provided to them largely by TDS (Texas Defender Service),” and “we wouldn’t be here today if it hadn’t happened.” The judge remains unrepentant for any of her actions. Now the judge who presided at the trial must make findings and present those to the state’s judicial conduct commission, which will have the choice to dismiss the charges, issue a censure or recommend removal from the bench.
On the same day that Judge Keller refused to keep the clerk's office open for 45 to 56 minutes longer, the United States Supreme Court granted review of a Kentucky case that challenged whether the lethal injection procedure in Kentucky violated the 8th Amendment’s prohibition against cruel and unusual punishment. Starting that day, the U. S. Supreme Court stayed all executions using lethal injection during the time they were deciding the case. From that day until the Supreme Court’s final decision on the matter seven months later, only one man on death row was executed in the United States of America. That man was Texas inmate, Michael Wayne Richard who was executed at 8:23 pm.
The hearing has provided an interesting glimpse into the judge's reasoning. Judge Keller testified about the Texas Defender Service, "they did have all day." (It should be noted that the pleadings were ready to be filed by 5:45 pm to 5:56 pm according to witnesses at the hearing. Also the Texas Defender Service had computer problems that hampered their ability to meet the closing deadline.) Judge Keller testified about last-minute execution day pleadings in general, that they “tend to be voluminous and meritless.” Then in response to questions about her actions of that day she said, that she was “doing exactly what [she] was supposed to do.” When given the ability to seem less harsh, the judge rejected that chance. She was asked at the hearing if whether, knowing what she knew then, and based on what the attorneys for the defendant said and what they asked, would she do anything different. Judge Keller responded that she would "not do anything different." When questioned about whether she had anything to say to her critics. The judge testified: “I believe they were misled by information that was deliberately provided to them largely by TDS (Texas Defender Service),” and “we wouldn’t be here today if it hadn’t happened.” The judge remains unrepentant for any of her actions. Now the judge who presided at the trial must make findings and present those to the state’s judicial conduct commission, which will have the choice to dismiss the charges, issue a censure or recommend removal from the bench.
On the same day that Judge Keller refused to keep the clerk's office open for 45 to 56 minutes longer, the United States Supreme Court granted review of a Kentucky case that challenged whether the lethal injection procedure in Kentucky violated the 8th Amendment’s prohibition against cruel and unusual punishment. Starting that day, the U. S. Supreme Court stayed all executions using lethal injection during the time they were deciding the case. From that day until the Supreme Court’s final decision on the matter seven months later, only one man on death row was executed in the United States of America. That man was Texas inmate, Michael Wayne Richard who was executed at 8:23 pm.
Wednesday, July 29, 2009
Thank you so much Mr. President.
President Obama recently inserted himself directly into a disorderly conduct misdemeanor arrest in Massachusettes. I can't remember a President dealing with a misdemeanor before unless you include President Carter and his brother Billy. You may wonder how this would affect a criminal defense lawyer in Fort Worth, Texas. Well...it is the way the President offered to mediate this problem. He gets involved, case dismissed, joint statement of perhaps we lost our cool and then beers on the President at the White House. Now instead of the magical "12.44" being the holy grail of criminal defendants in Texas, it is the "Obama option" that everyone wants.
Now I have to explain to clients why they should not expect the "Obama option" in their case. First you are not a Harvard professor, nationally prominent scholar, friend of the President and we can stop there. However, now before my client wants me to seek the eluisive magical "12.44" I must first offer the "Obama option" of case dismissed, joint statement of perhaps we lost our cool and then beers on the President at the White House. Thus far I have not seen a lot of success with the Obama Option in Tarrant County, Texas. So thank you so much Mr. President now we have a new starting negotiation position.
Now I have to explain to clients why they should not expect the "Obama option" in their case. First you are not a Harvard professor, nationally prominent scholar, friend of the President and we can stop there. However, now before my client wants me to seek the eluisive magical "12.44" I must first offer the "Obama option" of case dismissed, joint statement of perhaps we lost our cool and then beers on the President at the White House. Thus far I have not seen a lot of success with the Obama Option in Tarrant County, Texas. So thank you so much Mr. President now we have a new starting negotiation position.
Tuesday, July 21, 2009
How many crimes do we need?
I was at a statewide conference of criminal defense attorneys recently when I heard a statistic that caused me to look up from my coffee and continental breakfast. The speaker said that in Texas we have over 2,300 ways to commit a felony on the books. These crimes are not all contained in the Texas Penal Code where one would look for crimes. Instead they are strewn in every corner of the Texas statutes. They are in the Business Code, Transportation Code, Government Code, Agriculture Code, Family Code, Health & Safety Code just to name a few. So you would think with 2,300 ways that Texans can commit felonies, the legislature would think that we probably have enough crimes on the books. We do not seem to have excess room at state prisons and severe under crowding problems. Well you would be wrong. Our legislature just recently completed it's once every two year session and guess what? We have new felonies to add to the books.
Don't get me wrong, I appreciate the government working hard to create business for us criminal defense lawyers. However, we are not hurting for clients if they did not add anymore crimes to the books. Among the new ways you can commit a felony in Texas are: Sneaking a cell phone into a correctional facility; Online Harassment; Theft of tubing, rods or water gate stems; Assault by Strangulation; Theft of a Military Grave Marker; Theft of cattle, horses, exotic livestock or fowl; Credit/Debit Card Abuse if the victim is elderly. I am not saying that I am in favor of any of these things being legal, however, some of these already exist as crimes in Texas but were not felonies. All I am asking is how many crimes do we need?
Don't get me wrong, I appreciate the government working hard to create business for us criminal defense lawyers. However, we are not hurting for clients if they did not add anymore crimes to the books. Among the new ways you can commit a felony in Texas are: Sneaking a cell phone into a correctional facility; Online Harassment; Theft of tubing, rods or water gate stems; Assault by Strangulation; Theft of a Military Grave Marker; Theft of cattle, horses, exotic livestock or fowl; Credit/Debit Card Abuse if the victim is elderly. I am not saying that I am in favor of any of these things being legal, however, some of these already exist as crimes in Texas but were not felonies. All I am asking is how many crimes do we need?
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