One of the comments I got the most from people during the just-concluded year of the Great Recession,  when I mentioned that I was a criminal defense lawyer, went something along the lines of: “The economy’s bad.  The amount of crime must have shot through the roof.”  People assume that, when the economy is in the toilet, civilization instantly devolves into anarchy and crime soars.  This, however, is a myth, or at least it was in Comal and Guadalupe Counties, where the number of criminal case filings were actually down significantly over the previous year.

According to the Texas Office of Court Administration, the number of Class A and B misdemeanors and felonies filed in Comal and Guadalupe County courts combined in 2009 fell by 16.3 percent from 2008.  Case filings were down 20.5 percent in Comal County.  In Guadalupe County, case filings were down 12.2 percent.

The decline in case filings can actually be tied to the bad economy.  Remember that the the housing bubble burst in late 2007, and the ensuing recession began at the end of that same year.  It just so happens that criminal case filings in Comal County peaked in 2006 and are down 23.8 percent since then.  Guadalupe criminal case filings peaked in 2007 and are down 25.5 percent since then.  Criminal case filings are down across the board, both misdemeanors and felony filings plunging in both counties.

But why?  I don’t know for sure, but I suspect it has something to do with our love of automobiles and how we change how we use them when the economy goes sour.  The majority of cases that come through our office are somehow related to traffic stops.   A cop stops someone for a routine traffic violation, or approaches someone whose car is parked in a suspicious place, and winds up stumbling across some other offense — a DWI, illegal drugs sitting in the  console, an illegal weapon in the driver’s door pouch, etc.  When the economy is bad, people tend to hunker down and drive less.  They are then far less likely to have an unfortunate encounter with a police officer.  Bad economy = less driving.  Less driving = fewer contacts with cops.  Fewer police contacts = fewer arrests.  Fewer arrests = fewer jail-time cases filed in court.

On behalf of all criminal defense lawyers everywhere, here’s hoping for a robust economic recovery in 2010.  Let’s get out there and drive, people. The economy is depending on you.

Am I the only one who thought that the timing of the arrests was curiously and coincidentally timed to coincide with the end of the semester at TLU?

I’ve spent most of today getting ready for jury selection in a trial in Comal County Court-at-Law. We’re picking a jury in a Deadly Conduct case. This one’s interesting. Keep you posted on the twists and turns and the results.

It seems like the number of jury trial settings that we have had over the past 3-4 years has exploded. Our clients have been much more willing to set cases for jury trials in the past few years than when I started in private practice, particularly in misdemeanor cases. I’d like to think that it’s because we engender awe-inspiring confidence in our representation, but I think there’s some more practical reasons.

First, clients have grown more sophisticated. When I first started in this business, clients had very little exposure to jury trials. Most of what they knew about trials is what they saw on the evening news or read in the newspaper. Now you can watch condensed versions of criminal jury trials practically every day either on cable television or the internet. There’s also just a great deal more info available about trial procedure out there, mainly online; so much so that courts have started having problems with jurors in trials trying to do outside research on their own while hearing a case. Trials are just less mysterious now, and, as a result, less scary to clients.

Also, clients now have more at stake in misdemeanor cases than in the past. We now live in the age of the full-blown criminal background check for everything (getting a job, finding a place to live, keeping a professional license, etc.), and there are more other types of collateral consequences to a misdemeanor conviction than before (such as driver’s license suspensions or surcharges). Clients simply have more to lose by having a misdemeanor conviction than before, so they are more likely to take a case all the way to trial.

This is having a big impact on the way that criminal law is practiced at the state court misdemeanor level. Years ago, the lion’s share of continuing education for criminal lawyers, for example, focused on pretrial procedure and appellate law. Now, there’s much more of an emphasis on mastering jury selection and trial technique, not to mention the rise of burgeoning cottage industries in the area of trial consulting and expert witnesses.

Although the stakes for clients have risen in misdemeanor cases, I think the trend towards more trials is to their benefit. It forces the state to look at their cases more critically, and makes the State jump through more hoops to attempt to obtain convictions. This ultimately leads to more weak cases getting poured out before they even reach the trial stage.

A prospective client asked me today whether or not I accept court-appointed criminal cases and was relieved to find that I don’t.  This is a question I get at least once a month. People facing the prospect of going through the criminal justice system are suspicious of court appointed lawyers and are surprised and disconcerted to find out that so many lawyers accept criminal cases on a court-appointed basis. I think that they are right to feel uneasy.

In case you don’t know, here’s how the court-appointed system works, or is supposed to work, in criminal cases in both Comal and Guadalupe Counties:

First, a person shows up to court and tells a judge or court coordinator that he can’t afford to hire a lawyer.  It’s not automatic that he gets a lawyer.  He’s then usually required to fill out some paperwork describing his financial situation in order to see if he “qualifies” to have a lawyer appointed (why the courts think anyone would ask to have a lawyer appointed when he could afford to hire his own is beyond me).  By the way, don’t ask me what the financial guidelines are for qualifying for a court-appointed lawyer.  There is no set formula under Texas law.  I have asked judges and court coordinators what the official cut-off is, and have never gotten a straight answer.  And I have repeatedly seen people on Social Security disability denied the appointment of an attorney.

But let’s say the person qualifies.  The court then selects a name of an attorney from a list of attorneys that have told the court that they will accept court appointed criminal cases.  In theory, the attorney is supposed to be whoever is next on the list.  Often, the attorney is just whoever happens to be handy.  Lawyers who hang around courthouse waiting to get appointments are sometimes referred to as “courthouse vultures.”  The defendant has no say in who is appointed to him; it’s the luck of the draw.  The attorney appointed may be the second coming of Johnny Cochran, or he may be Elmer Fudd.  If the defendant does not like his attorney, it is rare that a court will allow him to fire the attorney and replace him with another court-appointed attorney.

The attorney then goes to work on the case.  Typically, in most courts, a court-appointed attorney will not be paid fees until the case is finished.  Thus, the attorney has a strong incentive to finish the case as quickly as possible.  Needless to say, it is rarely in the best interest of the defendant for the case to go as quickly as possible.  The other questionable feature of the court-appointed system is that the lawyer gets paid by the same court that may wind up punishing his client.  Keep in mind that judges reserve the right to kick lawyers off of the court-appointed list if the lawyer displeases them.  Again, there is more of an incentive to please the court by moving cases quickly through the system than there is to look after the best interests of the client.

Finally, it should be noted that the court-appointed lawyer is not “free.”  If a person is convicted or placed on probation, he is required to reimburse the court for the fees it gave to the attorney.

As I said, it doesn’t surprise me at all that defendants think that this system is rigged against them.  The most curious thing I have seen over the years is the number of indignant lawyers (always court-appointed) who have approached me asking why I refuse to participate in the system.  The answer is easy:  it’s an unjust, dysfunctional system, and I’m not a codependent enabler.

Do I think indigent defendants deserve representation?  Of course.  I also believe that, if the State of Texas cared about defendants’ rights, it would join most of the rest of the civilized world and create a state-wide system of public defenders offices staffed by lawyers who specialized in criminal defense.  Why won’t Texas do this?  For the same reason it let’s child abuse go on relatively unchecked, doesn’t provide adequate care for the mentally ill, and maintains one of the worst performing school systems in the country.  The present system is cheap.  Doing things right would cost money.  And the State doesn’t care enough to spend money.

And that’s why I don’t accept court-appointed criminal cases.

In a bad economy, a criminal history sets off alarm bells and sirens in a job interview.  Have any doubts?  Check out CNN’s website today for their list entitled “43 Weird Things.”  The list is a compendium of horror stories from corporate human resource directors about the strange things that people have volunteered about themselves during job interviews.  A common thread throughout the list is people trying to explain away their criminal records — such as the person who stated “I didn’t steal it; I borrowed it” and the one who told a job interviewer:  “I’m not wanted in this state.”  As I’ve said many times in this blog, if you don’t want to become a war story that a personnel director tells to his colleagues, you might want to expunge or seal that criminal record before you walk into the job interview.  To avoid making the CNN website, check out of website for further information on Texas expunctions and orders of nondisclosure.

If you are going through the criminal justice system, you should learn some of the lingo. Some words and phrases for the day:

CATCH A CHAIN: Getting transported to prison.

PAPER READY: A defendant’s felony case is completed, and he is ready to be transported to prison.

GETTING PSYCHED: For most of the world, getting excited, enthused, or mentally prepared. In the criminal justice system, submitting to a psychological evaluation to
determine if you are mentally competent to stand trial.

TWO BRAIN CELLS SHY OF A COMPETENCY HEARING: Crazy. Okay, this one’s not common, but I heard it recently and liked it.

ROCKET DOCKET: In some counties, a regularly-scheduled court docket on which a court tries to cram an unusually large number of cases through the system in a
single day. In other counties, a case calendar that make cases go from zero to jury trial setting in under sixty seconds.

RESET: Normal people reschedule. Criminal lawyers reset.

WARRANT ROUND-UP. The Sheriff and County Attorney are up for reelection, so it’s time to arrest a few truckloads full of people on ten year old Class C misdemeanors.

Sometimes people accused of a crime aren’t thinking quite clearly when they come to court.  Here is my personal top ten list of stupid things I have witnessed people do in court (please don’t make the next list):

1. Wearing a huge marijuana leaf belt buckle to a sentencing hearing in a possession of marijuana case (The judge busted the deal);

2.  Wearing a blue shirt, blue sweater, and blue pants to a jury trial in gang-related stabbing case where the defendant said his defense was “It couldn’t have been me — I’m a blood, not crip.” (He was convicted.);

3.  Absconding five minutes before the the punishment phase of a felony jury trial (The jury foreman told me afterwards that they would have given probation if he hadn’t run off.  Instead the jury gave him seven years prison.  The cops caught him two weeks after the trial.);

4.  Showing up to a pretrial hearing in a Resisting Arrest case and calling a male bailiff a “bitch” in open court because he asked the defendant to turn off her cellphone (She was taken into custody for contempt of court);

5.  Showing up drunk to a driver’s license suspension hearing in a DWI case;

6.  Making out in the back of the courtroom during court;

7.  Sneaking out of the courthouse during a jury trial announcement docket in order to go down the street to Sonic (“Mr. Friesenhahn, sometimes you just gotta have a strawberry shake.”);

8.  Confessing to me five minutes before I was to put him on the stand in his jury trial, “I forgot to tell you that I’m really guilty”;

9.   Accidentally dropping a condom on the courtroom floor in front of the bench while a female judge was presiding;

10.  Whispering in my ear, after turning down a deferred adjudication (against my advice) in a possession of controlled substance case where he was accused of vomiting up a balloon full of heroin onto the floor of an emergency room, “Let’s make ‘em sweat.”

OUT OF COURT HONORABLE MENTION

1.  The guy who called me on the phone and told me that he needed his case rescheduled because he and his wife had had a fight the night before, she had kicked him in the groin, and now his balls were so swollen that he was unable to walk (The court rescheduled his case.)

“They didn’t read me my rights!”  I hear this from clients at least half a dozen times a month.  A lot of people hold two mistaken beliefs when it comes to Miranda rights.  First, they believe that if the cop didn’t read you a Miranda warning, a court has to dismiss your case.  Second, they believe that you can say anything you want to a cop and it can’t be used against you if the cop didn’t read you your rights first.  Not true, and not true.  Everybody gets read Miranda warnings on TV cop shows:  “You have the right to remain silent, anything you say . . . blah, blah, blah. . .”  It sounds cool.  The reality is that cops rarely have to read you a Miranda warning.  I don’t care what they told you in your Texas State intro to criminal justice class.  Miranda only applies when:  (1) you’re in custody, and (2) a cop then asks you incriminating questions about the crime for which you are in custody.  Most of the time, people get arrested after the fact.  A cop thinks he has seen more than enough evidence to arrest someone, and he doesn’t think he needs to ask any questions, so he doesn’t bother.  Miranda never comes into play.  The more dangerous situation for the unsuspecting, however, is when a person is questioned without being “in custody.”  Believe it or not, just because a cop detains you does not mean that you are “in custody.”  A person is “in custody” when a  person is in detention under circumstances where the person would reasonably believe that he will not be  free to leave.  There are no magic words to spell this out.  And a cop does not have to tell you whether or not you are “in custody.”  What usually happens is something like this:  a cop detains someone and decides that he has enough evidence to arrest him.  The cop, however, does not tell the detained person this fact.  The cop does not cuff the person or tell the person that he is under arrest.   Instead, the cop plays dumb and acts as if he just wants to get a little more information from the person he has detained in order to find out what’s really going on.  The detained person, not realizing he is going to jail anyway, decides that he will talk his way out of the situation, and unwittingly makes incriminating statements.   These statements often wind up being the last nails in the coffin when the case finally goes to court.   If questioned in court, the cop will protest with sincerity worthy of an Oscar that he had not yet decided to take the defendant into custody prior to questioning him.  The judge, who runs for reelection, will normally agree with the cop and the statements come into evidence.  Moral of the story:  if a cop even implies that you might be guilty of something, throw your TV cop show and criminal justice class schooling out the window and just shut up (other than to truthfully give your name and date of birth).  Telling your lawyer “They didn’t read me my rights!” probably isn’t going to make your case go away.

Thanks,
–David

Absolutely not.  That’s the response I have given to two different clients this week who had been asked by law enforcement to give statements in their cases.  It is rare that I will ever advise a client to give a statement, regardless of whether it is written or spoken, to a cop or a prosecutor.  Doing so is rarely helpful, and can be very harmful to a case.  This advice is hard for some clients to understand.  These clients want to believe that giving a self-serving statement to the police will somehow clear their names or, at the very least, get them a more lenient deal.  It often works like that on TV, but rarely in real life.  It boils down to this:  if the State  has a good case against you, it doesn’t need your statement.  The State only wants your statement to make it’s job easier, and nothing you say will make the case go away.  No matter what king of innocent-sounding statements you give, law enforcement will simply assume that you are lying in order to save your own skin.  If the State has a shaky case against you, it wants you to give a statement in the hopes that you will accidentally fill in the holes in its case.  At the very least, the State is hoping to get a sneak peek at what your defense will possibly be so that it can better prepare against you.  And remember, what you put down in writing or say in a recording is frozen.  Once you say the statement, it’s almost impossible to take back later.  You will have tied the hands of your defense lawyer.   He is now stuck with what you told law enforcement.  He cannot raise any other defense.  Should you give a statement to law enforcement?  Absolutely not.

–David