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In the April 2007 issue of  “Voice for the Defense,” the monthly publication of the Texas Criminal Defense Lawyers’ Association, Editor Emmett Harris authored an editorial entitled “why do texans love the death penalty[?]”  He proposes the primary reasons, as he sees it, why most Texans support imposition of capital punishment: retribution, providing “closure”  to the victim’s family, deterrence and submission to biblical authority.  He takes each of these arguments and posts his own rebuttal to prove that each justification is false. 

Harris suggests that an individual’s “gullibility” explains  why anyone would believe, however irrationally, that the execution of the offender might “even out the scales” and provide peace of mind either individually or to an affected family as a whole.  Harris may believe that but I’d be pretty careful about who I call gullible, particularly the next time I’m facing a jury panel  in defense of someone charged with a brutal, heinous crime.  I don’t  think we accomplish much by labelling people with whom we have philosophical or political differences, particularly when it comes to crime and punishment.  The fact is a lot of folks hold these “gullible” beliefs pretty close to the vest.  The defense lawyer’s job is to respect that and strive to reconcile those strong feelings with the competing themes of charity and compassion.  Calling your fact-finder ”gullible” is hardly an auspicious start to the case. (more…)

Narcotics officers assigned to the metro task force arrested a low-level drug dealer one day who told them he could lead them to a house where they would recover a kilogram of cocaine.  He pointed out to  them a modest, green-trimmed house at 933 Neal Street.  Instead of using an informant to try to enter the residence to confirm what they had been told, the officers prepared and presented to a magistrate a search warrant.  They claimed under oath that they had purchased drugs from an informant named “Sam” and also asserted that the house was equipped with surveillance equipment.  These contentions were included in the affidavit accompanying the search warrant in support of a “no-knock” warrant which would permit them to bust down the door instead of knocking and announcing their presence.  The allegations about the informant and the surveillance equipment were sheer fantasy, cooked up by the narcotics officers.

When the task force arrived on Neal Street, they first pried off the burglar bars and began to ram open the door.  There was no cursory announcement identifying themselves as police or that they were there under the authority of a search warrant.  The resident of the house, an 88-year old black woman, fired a single shot, using a .38-calibre handgun, through the door.  The officers fired back, killing her in the exchange.  After the shooting, with the bleeding woman on the floor, they shackled her with handcuffs and searched the entire house.  No drugs were found.  (more…)

The Amarillo Court of Appeals recently issued an opinion, styled Rojas v. State, slip op. no. 07-05-0127-CR in which the appellant claimed trial court error in its failure to conduct an inquiry into his competence to stand trial.  He also argued that his trial counsel was ineffective because he failed to raise the issue of competence.  The opinion is one which, but for the unusual comments made between defense counsel and appellant at trial, makes for a quick read and the trash.  But the exchanges between trial counsel and appellant form the basis of his claim that the trial court should have stopped the show and conducted a competency hearing.  Let’s look at the dialog between counsel and client.  Remember this all transpired before the jury panel or the actual jury.  (more…)

Yesterday, the Court of Criminal Appeals issued an opinion which addressed whether the Corpus Christi Court of Appeals erred in deciding that a police officer’s warrantless intrusion into the appellant’s home was permitted under the theory of exigent circumstances and probable cause.  see Guitierrez v. State, slip opinion no. PD-1633-05, April 25, 2007.  The Court concluded that the appeals court did in fact err in its analysis of the entry into the residence and the scope of the intended search.  However, it affirmed the judgment of that appellate court by concluding, on its own, that the search was justified by the appellant’s consent.  In other words, the Court of Criminal Appeals took it upon themselves to affirm the lower court’s judgment by ruling on an issue that had never been addressed by the Corpus Christi Court of Appeals.  How and why does this happen? (more…)

The Amarillo Court of Appeals reversed an aggravated robbery conviction and sentence of 99 years in a case out of Jefferson County (Beaumont) on Tuesday, April 24.  In a case authored by Justice Pirtle and ordered published, the Court concluded that the trial court erroneously excluded proferred defense expert testimony in the field of psychology pertaining to the reliability of eyewitness identification of a suspect from a photographic lineup. 

There’s no need to go into detail about the facts except to say that the complainant’s eyewitness identification of Appellant, arising from a “questionable” use of a simultaneous photo line-up, was the only evidence which tied the accused to the crime for which he was convicted.  (more…)

Want to know what’s on the minds of the urban youth these days, particularly in light of the controversial “60 Minutes” segment aired last Sunday in which rapper Cam’ron told intrepid, damn-he’s-cool (but he cares!) Anderson Cooper that he would not inform the police even if a serial killer were living next door to him?  (Reason: it would alienate his fan base.)  Well, we know what’s on the mind of this guy but what about the inner city black kid who listens to Cam’run’s product?  Find out for yourself right here and then let me know what you think; I mean what you really think.

I know where I was on that day.  It was a very hot day in Marshall, Texas - humid, a litle windy with lots of intermittent cloud cover.  And why do I remember that day so well forty-one years ago?  That was the day Charles Whitman climbed the tower at UT and killed sixteen people before being gunned down by Austin police.  I bring up Whitman because of what we are seeing with the media’s treatment of the Va Tech tragedy.  Now that the memorials have taken place, the funerals conducted and the families begin their own individual grieving in the months and years to come, the experts, wonks and mavens can begin to take apart Cho Seung-Hui to try to explain why this happened.  Of course, that doesn’t spare the administrators and campus police at Va Tech from grilling in the hot light of TV cameras.  So before we get any more entrenched in the comfort of blaming others for the deaths of so many, it is important to remember that 32 people were gunned down by a person who is wholly, purely responsible for what happened and to realize that he set in motion events which he specifically intended to culminate in the deaths of so many innocents. 

As more and more revelations emerge about the ample warning signs which indicated that Cho was a threat, more and more fingers are being thrust at the various university authorities.  It is the duty of the university in question to investigate and determine if there was some way that responsible people could have connected the dots and pinpointed the threat.  But no one should delude themselves about the uncontroverted facts or ignore the obvious.  Cho, like Charles Whitman, were both fully conscious of what they did.  An article published this very day by The Chronicle of Higher Education by Gary Lavergne puts it all in proper perspective.  Please read it  carefully and deliberately before coming to any conclusions concerning alleged failings on the part of the Va Tech administration or law enforcement.

Remember my April 13th post about the mangled news account in the Amarillo Globe News regarding the trial of George Washington?  How the reporter managed to get everything wrong?  Well, Dave Blount, first assistant criminal district attorney for Randall County, adds even more to the story.  Even after Dave gave him the straight, inside dope, the kid reporter still got it wrong.  Check out Dave’s comments at the article “Kudos - but you’d never know it . . .”  By the way, Dave extends a very nice compliment to James Abbott who defended Mr. Washington, aka Leroy Buggs.

The Iranian Supreme Court has overturned the murder convictions of six members of a prestigious state militia who killed five people they considered “morally corrupt.”  The decision, lauded by Muslim clerics and state-run newspapers, was decried by some courageous lawyers, calling it the height of corruption.

Three lower court rulings had determined that the five defendants had committed cold-blooded murder but their cases were appealed to the Supreme Court which reversed the convictions in a one-page opinion.  The facts, as laid out in the lower court opinions, showed that the killers, members of the Basiji Force, volunteer vigilantes who labor under the auspices of the country’s supreme leader Ayatollah Ali Khamenei and President Ahmadinejad, considered their victims as “morally corrupt” and, according to Islamic teachings and Iran’s Islamic penal code, “their blood can therefore be shed.”  The killers, all in their early 20s, explained to the court that they had taken their victims outside the city after they had identified them as “morally corrupt.”  There they were either stoned to death or drowned in a pond.  Two of the victims were a young couple who were engaged to be married.  Their crime for which they were deemed to be “morally corrupt?”  They were seen walking together in public. (more…)

I think back on many of the violent offenders I have defended and ponder how many of them confessed to their crimes.  And I ask myself why.  Why did they confess?  A rational person will weigh the benefits against the cost of confessing and when baring one’s soul involves admitting to a criminal act, accompanied by a punitive consequence, the costs will normally preponderate against the confessional.  But think back on your own hard cases and consider who confesses.

Intelligent, sane but nonetheless criminal minds will not confess.  Think Alger Hiss, O.J. Simpson, Claus von Bulow, Cullen Davis to name a few.  No, the suspects who confess are usually of low intellectual functioning, uneducated, naive, unsophisticated and mentally unbalanced.  They are not particularly adept at weighing the costs of exposure to criminal liability versus the benefits of “coming clean” in return for mitigation of ultimate punishment.  They may think that the jig is up since the police are permitted to mislead a suspect with disinformation as long as it does not render the resulting confession “involuntary.”  Indeed, the Supreme Court has put its own stamp of approval of such methods.  (more…)