We have moved our New Braunfels office.  We are now located at 542 Comal Ave., Ste. B.  Don’t freak out if you come visit us.  We really do have furniture, it’s just not all moved yet.  Phone numbers are still the same.

–David

“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

Subject of the day:  Avoiding Irritable Momma Syndrome.   I just received a heap of verbal abuse from a client’s irate mother.  The client, who is a college student and is charged with Minor Driving Under the Influence, came into our office on this own and hired us on his own.  When the client retained us, he did not specifically give us permission to speak with others about the case.  Now mom and dad are upset because my office won’t discuss the case with them.  Keep this in mind:  even though the charge may be “minor” driving under the influence, the client is an adult, and we are required to treat him like one.  That means, under the rules of professional responsibility and confidentiality that we have to live by, we can’t discuss the case with others, even relatives, unless the client gives us permission.  Beyond that, it’s also just a simple matter of respect to the client as an adult. In addition, many of our client’s don’t want their relatives (parents included) to even know that they have a criminal case.  And as I have had to explain to many a mom, no, it doesn’t matter who really “paid” the bill.  We only have one client — that’s the guy who’s charged, and that’s who we listen to.  When you hire us, be crystal clear.  If you want us to discuss the case with other people, let us know.

Six times is the charm. Six times. That’s how many times my mentally retarded client (IQ of 62) had to go through the criminal justice system before a court decided it needed to ask whether or not his mental health issues might be contributing to him getting in trouble. My client (I’ll call him “Joe’) was charged in Comal County with misdemeanor Possession of Marijuana. Joe had five prior marijuana convictions. In all five of the previous cases, he had court-appointed lawyers who pled him guilty without bothering to inquire into his mental health issues, even though having a conversation with Joe is like speaking with a child. In one case, Joe managed to get through a few months of probation in Bexar County (Bexar County Adult Probation never directed him to, or offered him any mental health services) before the probation was revoked and he was sent to jail. In his last case, his court-appointed lawyer in Seguin pled him to a 30 day sentence at the first court setting. While in Guadalupe County Jail, other inmates repeatedly intimidated him and threatened him with assault. Joe’s mother, who works a menial job at HEB, has no health insurance that will cover Joe’s mental health needs and cannot supervise him 24/7 while she’s trying to make ends meet. When she tried to navigate through the maze of MHMR in Bexar County, the only response she could get was that Joe wasn’t suicidal and in need of emergency services. Although I am on the complete opposite end of the political spectrum from Judge Charles Stephens of the Comal County Court-at-Law No. 2, I give him a ton of credit for being the first judge to take the time deal with Joe’s mental health issues. Judge Stephens ordered a psychological evaluation of Joe, which confirmed that he is mentally retarded. The judge also ordered that he be placed on the Comal County Adult Probation Department’s mental health caseload, and that the probation not be transferred out-of-county, to make sure that Joe could receive much-needed treatment and to make sure that Joe’s case would not fall through the cracks. Hopefully, Joe will get the help he needs so that he never returns to the criminal justice system. If anybody asked me “How can you represent those people?”, one one of the answers I would give is that, after 19 years of doing this, I still have the capacity to get pissed off when I see both criminal courts and my so-called “colleagues” screw over the Joes of the world. If the Legislature can’t see fit to provide help to the mentally retarded, instead of using the criminal justice system as dumping ground, maybe at least the Lege can reform the criminal justice system by requiring court-appointed counsel to have an IQ higher than 62.

You may notice a large gap in the blog posts. We have been busy moving our Seguin office to nicer digs. Our landlord is a professional landscape photographer (when he isn’t helping to run the local bowling alley) so there are lot of cool pictures in the building to check out. We are now at 314 N. Austin, Ste. 104, here in Seguin. Our phone numbers are still the same. We soon will be getting a newer crib in New Braunfels, as well. I know of some of our clients are fond of our funky old law shack, so it’s sort of the end of an era. Don’t know if we can convince Edna the friendly office poltergeist to move with down the street with us. Keep you posted.