Wednesday, February 25, 2015

Appellate Specialists and Indigent Criminal Trial Defense

I do a fair amount of state court appellate work. Enough of it to have racked up north of sixty appeals decided by appellate courts from around the state, including two published appeals from the Texas Court of Criminal Appeals. I have also made a few unsuccessful runs for discretionary review at the Texas Supreme Court.

I consider myself a trial lawyer. A trial lawyer, however, with enough appellate experience in both civil and criminal contexts to see disparities that bother me

A few days ago I was bothered more than most days. 

First I read something from civil appellate specialist Todd Smith. He has produced a series of podcast videos entitled "Appellate Practice and Procedure". The second in the series is a entitled "How Appellate Lawyers Bring Value to Trial Courts". The series is available in several places, one of which is at Smith's Texas Appellate Blog.

The video is about an hour long. The introduction from the blog post contains the following:
Not every case justifies the expense, but trial lawyers and their clients should consider retaining an appellate lawyer skilled in these areas to sit second or third chair at trial. In this role, appellate counsel can focus on protecting the client’s interests several steps down the line, while trial counsel concentrates on getting the most favorable testimony from witnesses and delivering an effective closing argument.
Second of third chair? The video is well done and well thought out. It is, however, marketable to an extremely narrow group of clientele: civil clients with lots of money. Perhaps a few institutional or independently wealthy criminal clients would be in the market, but you get my drift.

This is not meant to criticize Smith. He is in private practice. So am I. We have to generate business to pay the bills. If a wealthy client hits my front door and desires my particular skill set, I am more than happy to oblige.

It was something else that really made me think. Grits for Breakfast posted briefly about an infographic from the Texas Office of Court Administration (OCA) website. I have recently posted, using OCA statistics about how large a percentage of State and local misdemeanor dockets are taken up by DWI, Possession of Marijuana and Driving With License Invalid cases. The OCA has many useful and informative statistics derived by reporting from District and County clerks from around the state.

The infographic from the OCA revealed that in fiscal year 2014 (FY 2014), 71% of felony cases in Texas were handled by indigent counsel. Basically that means in FY 2014, 3 out of every 4 cases indicted in Texas were handled by either court appointed counsel or a public defender.

These two published items made me think about the likelihood a court appointed lawyer at the trial stage could convince a state district court judge that the county should pay for a second or third chair appellate specialist.

My bet? Probably slim to none.

Capital Murder with the Death Penalty in play? The ABA guidelines require at least two qualified lawyers be appointed. Second chair in these unique cases are trial counsel, not necessarily an appellate specialist. However, most Capital defense lawyers are asking now for third chair funding for an appellate lawyer of the type Smith advocates. Not all are getting them.

Capital Murder with the Death Penalty waived by the state? A harder sell to a state district judge. No punishment phase if the defendant is convicted, instead automatic life without the possibility of parole.

An example is a high publicized trial that concluded yesterday. The so called "American Sniper" trial in Erath County was a Capital Murder with Death Penalty waived. There were three court appointed defense lawyers on the case, including a law school acquaintance of mine, Tim Moore.

The American Sniper case is different for reasons obvious. Not many cases of any kind are being tried in the midst of a feted movie with a buffo $300 million box office, Oscar nominations and red carpet television appearance by the wife of the victim. On the merits, the case involved the insanity defense, which can be sometimes tricky. None of the three appointed lawyers are criminal appellate specialist. Two of the three, including Tim, are from Fort Worth. The third lawyer is from Stephenville, where the case is being tried. I have no independent knowledge, but I bet his presence was primarily attributable to local knowledge of the jury pool. If I am wrong, apologies.

 What about serious felonies other than murder? By this I mean first and second degree prosecutions, often aggravated, where defendants are facing multiple count and paragraph indictments, often with enhancements coupled with collateral consequences like sex offender registration. These folks almost never get approval for second chair funding, though in many cases these cases present more technical and nuanced legal issues than any murder case.

Cases like these illustrate the need of an appellate specialist focusing on the law and preservation of appellate error at the trial stage, even in "downstream" felony prosecutions. I get that there will always be disparity when money is involved and the state is footing the bill for criminal defense. Nevertheless, I think times have changed. With many of the changes in the law and technical preservation of error requirements enforced by state appellate courts, indigent defense trial counsel in many felony cases are in need of just the kind of court appointed appellate specialist advocated for by Smith in his blog.

The legislature has provided tools which give prosecutors an extreme amount of discretion. These tools take the form of enhancements, drug free zones and various penal code punishment upgrades (DWI  >.15 for example). Law Profs have come around to a theory they call provocative: District Attorney offices around the country have been too aggressively using these tools. This is not news to those in the trenches. This, according to the law profs, has led to the country's (and Texas) quantum leap in incarceration in the past twenty years.

 Further there is the phenomenon of the vanishing civil jury trial and the derivative fact most appellate dockets are taken up with criminal and not civil cases. Or, finally, that although available, most trial courts refuse to appoint appellate specialists to collateral state habeas claims except when state law requires in collateral habeas proceedings. That would only be in Capital Murder Death Penalty cases.

This will be the subject of a separate post.

Okay, venting concluded for the day. Appellate lawyers - go forth and do some trial work.

Sunday, February 22, 2015

The Free State of Galveston, Circa 1955

My father and mother spent the late 1950's living on Galveston Island. He came to the island because he was in medical school at University at Texas Medical Branch - Galveston (UTMB). He and my mother were newly married and living in a garage apartment near UTMB.

What has fascinated me in the more than 60 years since is what they took away from life on the island. Ironically, my father's most vivid memories are not so much his grind at medical school. Nor is it for my mother, then a 21 year old teaching English to Ball High School seniors who, in some cases, were almost her age.

Instead, they talk most about the gambling houses, the celebrity entertainers in venues there and the vibe from a place both still call the "Free State of Galveston." It has stayed with my mother so profoundly that when we were last in Galveston, she pointed out a building and without prompting remarked: "That pink one there - just before the causeway? It was a big gambling place."

My father has been even more forthcoming about gambling on the island and the control he saw exerted by the Maceo brothers and Carlos Marcello, the crime boss who pretty much ran New Orleans during that time. I know my father and his UTMB friends spent time blowing off steam in Marcello controlled gaming houses. He still says his Louisiana surname and background helped him to get booze and chips.

Since I was old enough to understand and ask questions about such things, my father has made the case that Marcello was a cog in the assassination of John F. Kennedy. He maintains to this day that it was a mafia hit, in some measure the product of a loose confederation of many, but certainly involving both Marcello and Sam Giancana of Chicago.

"Lane," he would tell me, "...there was millions in cash pouring into those nightclubs and casinos. They were the only places west of New Orleans and east of Las Vegas with high stakes gambling and celebrities that in those days no one in Texas ever saw. Guys with money brought their wives mistresses and girlfriends down from Houston just to throw money away. It was just accepted on the island, and for good reason."

Dad would stop and level a conspiratorial gaze at me. "Then it all just stopped. The Texas Rangers swooped in and it all stopped. You think Carlos Marcello would've just let that pass?"

He would lower his voice and then confide in me with a hint of Cajun drawl lost somewhere in his past but summoned to entreat the forbearance of a apparition taken leave from a French Quarter afterlife:

 "Oswald grew up in New Orleans and passed back there from Russia. Hard now to understand their reach and power then, It was something they would've pulled off."

Ah, my father. Physician, Gambler, Cajun. And JFK Conspiracy theorist.

All Hail the Free State of Galveston.

Saturday, February 21, 2015

The Gay Place

When the Texas legislature is in biennial session, I always think of Billy Lee Brammer and The Gay Place, the Texas political cult classic novel.

The title is from a F. Scott Fitzgerald poem, Thousand and first Ship, published as part of the appropriately titled (for both Fitzgerald and Brammer) The Crack-Up:
In the fall of sixteen
In the cool fo the afternoon
I saw Helena
Under a white moon-
I heard Helena
In a haunted doze
Say: 'I know a gay place
Nobody knows.'
The Gay Place is three interlocking novellas of characters wrestling with inner demons and the machinations of political infighting surrounding them. The book's personality comes form the cast of well meaning liberals who by different measure lose themselves in a slough of booze, drugs and licentiousness in a 1950's era Austin. 

The most fascinating thing about The Gay Place was reading later about Brammer himself. A gifted speechwriter, the demands of working for Lyndon Baines Johnson seemed to ultimately doom him to a cycle of alcohol, depression and amphetamine. He never produced another novel, and barely anything publishable after The Gay Place

He died of a drug overdose in 1978 in Austin. 

There are so many good things about The Gay Place, so many complicated, interesting and recognizable characters. Brammer worked at the Texas Observer in the mid-1950's as an editor. A story written by Michael May for The Observer in 2010 tells the story of Brammer covering a 1950's political event: 
One Brammer story, 'Hit ’Em Where They Live,' [tells the story of] Barefoot Sanders, a young, liberal legislator giving a speech when someone in the audience calls him a commie. Enraged, Sanders challenges the heckler to a fistfight, then and there.
In the great tradition of journalists turned novelist (Charles Portis [True Grit]; Tom Wolfe [Bonfire of the Vanities]), Brammer repackaged and retold this story, utilizing stunning metaphor, in the second of the three novellas ("Room Enough to Caper") in The Gay Place. Again from Michael May's Observer article
 In The Gay Place, the fictional Sen. Neil Christiansen energizes his lackluster campaign by grabbing his red-baiting accuser by the collar and marching him out of an event, 'feeling like a dim, flickering comedian’s image stumbling around in slow motion.'
My oldest son asked me recently the question of who was the most famous person I ever met. I thought a bit and replied to his non-plussed look, "Barefoot Sanders". It was then, of course, necessary to explain who Barefoot Sanders was. This is never a good sign in the "most famous person you met" inquiry.

Undaunted, I marched onward.

I told my son of the Barefoot Sanders of Brammer's real, and, sort of, fictional story. My son heard of Sander's later unsuccessful stint as Democratic nominee for the U.S. Senate from Texas, and his loss of that election to a Republican named John Tower. I told him it was an important election that pre-cursed not only the Republican take-over of Texas politics, but the use of the successful, and the completely legitimate tactic of linking a political opponent to another unpopular candidate, in Sanders case to George McGovern, then running for President.

Barefoot Sanders was later nominated and confirmed as a Federal District Court Judge. He swore me in to the Bar of the United States District Court, Northern District of Texas in Dallas at his chambers in 1989. I asked specifically for Judge Sanders to swear me in because of his background. To my everlasting appreciation, he obliged. When he took me back into his chambers, I saw a massive office, with walls covered by photographs of every significant political figure and event in the 50 years before. I was transfixed. After administering the oath, he patiently answered a bevy of questions from a wet behind the ears lawyer about those events.

My son's reaction after finishing with my back story on the most famous person I ever met?


Oh well.

Judge Harold "Barefoot" Sanders died in 2008. My appreciation for his role in Texas politics and contribution to the best book written on my state's political order will remain alive in me. Now, hopefully, in some measure, it will also live on in my son.

Rest in peace Billy Lee Brammer. I hope you have found the gay place in death that eluded you so in life.

Wednesday, February 18, 2015

State and County: How Large A Percentage of Misdemeanors Filing in Texas Are Marijuana and DWLI?

The Office of Court Administration (OCA) gathers statistics on the Texas courts, and the resulting information can be intimidating. With a little time and crunching, however, the numbers yield insight into criminal docket priorities both on the state and county level. Once identified, a more complete policy discussion can ensue on those priorities in both venues.

One of the "reveals" these numbers give is the resources state and county government is pouring into prosecuting three categories of misdemeanors:  Driving While Intoxicated (DWI), Possession of Marijuana (POM) and Driving While License Invalid (DWLI).

DWI cases are really a different category of crime. Although it is included here to illustrate how DWI contributes to existing misdemeanor dockets, there is no real legislative initiative to reform them.

POM and DWLI, however, are a different ball of legislative wax. I have written about Rep.Joe Moody's proposed legislation to make possession of less than an once of marijuana subject to a civil penalty. Grits for Breakfast has posted on the possible legislative changes to the Drivers Responsibility Law which inevitably cause the cycle of arrest, conviction, re-suspension and re-arrest for DWLI.

The last complete compilation from the OCA is fiscal year 2013 (FY 2013), running from September 1, 2013 through August 31, 2014. The full OCA Report for FY 2013 is here. I have concentrated on misdemeanor cases in Statutory County Courts (CCL) and the numbers related to new cases added during the periods analyzed.

A couple of notes on the statistics. The statewide numbers are applicable to CCLs and exclude counties with Constitutional County Courts. To reduce the sheer amount of information, I have not used DWI - 2nd in the statistics (In other words, DWI-1st only). Additionally,The OCA has an Explanation of Case Categories. The POM category used by the OCA  includes all misdemeanor marijuana cases, including Misdemeanor Delivery of Marijuana and POM in a Drug Free Zone. Finally, the numbers do not include new filings for motions to revoke probation or motions to adjudicate on existing cases. The numbers are new original case filings only.(1)

Now to the statistics. The numbers below reflect new cases filed in  FY 2013 in the applicable categories along with a total number of all misdemeanor cases filed during the same period.
Texas Statutory County Court at Laws (FY 2013)
New Cases Filed: DWI: 56,985 POM: 58,178 DWLI: 25,774    
Total of All New Cases Filed: 402,072
Translated, statewide during FY 2013 DWI, POM and DWLI consisted of 35% of all new misdemeanor filings. Excluding DWI filings, POM and DWLI constituted a full 21% of new filings in the period.

 Put another way, 1 of 5 new filings statewide in Texas County Court at Laws during FY 2013 involved either POM or DWLI.

Fiscal hawks looking for places to save money should look no further than these category of cases for reform. The savings to counties in court appointed attorney fees alone should be enough for legislators interested in savings married to palatable policy change to get behind the legislation.

Further, a look at individual counties illustrate the costs in prosecuting these two criminal offenses (POM and DWLI). In analyzing these more micro numbers for counties, I favored recency. The statistics below are for calendar year 2014 (CY 2014). I used my home county, Brazos, and compared it to the two next two larger counties by population, Smith (Tyler, TX), and McLennan Counties (Waco, TX).

First respective county populations.The parenthetical shows how much more population, as a percentage,McLennan and Smith Counties have as they both relate to Brazos County.
Brazos County:        203,000
McLennan County:   241,500 (+20%);
Smith County:          216,000 (+8%);
In other words, McLennan County has 20% more and Smith County 8% more in population than Brazos County. Here are the applicable stats:
Brazos County Jan. 1, 2014-Dec. 31, 2014:
New Cases Filed: DWI: 600 POM: 954 DWLI: 1033
Total of All New Cases Filed: 4,622
McLennan County, Jan. 1, 2014-Dec. 31, 2014
New Cases Filed: DWI: 583 POM: 621 DWLI: 814                                          
Total of All New Cases Filed: 4,474
Smith County, Jan. 1, 2014-Dec. 31 , 2014
New Cases Filed: DWI: 543 POM:599 DWLI: 169                                          
Total of All New Cases Filed: 3,410
During CY 2014, DWI, POM and DWLI made up a jaw dropping 55% of new filings in Brazos County. By comparison, in McLennan County the percentage was 45%. Again controlling for POM and DWLI, these two misdemeanor offenses alone comprised 43% of new filings in Brazos County during this period as compared to 32% for McLennan County.

Smith County mirrored the statewide statistics from FY 2013 with 38% (DWI, POM and DWLI) and 22% (POM and DWLI), respectively. Note the discrepancy in DWLI filings. Brazos County filed almost 10 times the number of DWLI cases than Smith County despite having 8% less in population.

Just to make sure CY 2014 was not an outlier, I checked the same statistics for Brazos County for the calendar year (CY) 2013. The numbers were similar to 2014:
Brazos County, Jan. 1, 2013-Dec.31, 2013
New Cases Filed: DWI: 644 POM: 811 DWLI: 875                                            
Total of All New Cases Filed: 4,381
Using the same breakdown, DWI, POM and DWLI cases comprised 53% of all misdemeanor filings in Brazos County in CY 2013, while POM and DWLI cases accounted for a little less than 2014, 38% of new filings. This number is still well above the statewide FY 2013 figure of 21%.

For grins, I ran the numbers for CY 2013 for the Texas largest county by population, Harris County (4.3 M). Here are the numbers:
Harris County, Jan. 1- 2013-Dec 31, 2013
New Cases Filed: DWI: 8811 POM: 10,611 DWLI: 4239
Total of All New Cases Filed: 65,927
Harris County (like Smith County) mirrors the statewide averages from FY 2013 with 35% of new case filings being accounted for from DWI/POM/DWLI and 22.5% from POM/DWLI.

There are other issues that these numbers reveal, but the focus of this post is the percentage of misdemeanor filings involving POM and DWLI that comprise misdemeanor dockets. Many of the policy reasons for reforming these laws have been vetted elsewhere, but theses statistics show tangibly the cost saving that could exist if these laws were significantly reformed.

If my number crunching withstands scrutiny, in Brazos County somewhere around 35-40% of the misdemeanor docket could evaporate with meaningful reform of POM/DWLI laws. County Commissioners should be thinking about the savings in court appointed attorney's fees, housing and general sunk costs of prosecutor time if even half of that figure was realized.

(1) I called and emailed OCA about the data not reflecting any "new filings" for MTRs and MTPs  in either CY 2013 or 2014 for Brazos County. I received a very prompt response.The OCA wrote they rely on district and county clerks to supply the data to them. They do not audit or in any way vouch for the completeness of the information provided. Their mission is to simply collate and publish the information provided.

Saturday, February 7, 2015

Pre-trial Diversion: Why Not, Brazos County?

UPDATE 09/20/2015 Read "Ranting About Pre-Trial Diversion in Brazos County" with updated statistics on why a pre-trial diversion program for Possession of Marijuana less than 2 oz is good public policy idea in Brazos County.

ORIGINAL POST: I recently bemoaned the non-use of "cite and release" laws, particularly in prosecutions for possession of marijuana (POM) cases in my home (Brazos County). The solace for me is most counties in Texas are not using this legislative grant. This small comfort is absent in my home county's failure to utilize another, widely successful legislative grant in POM cases: Pretrial Intervention or Diversion (PTD) programs. PTD programs in one form or another are in use virtually all over the state of Texas - but not Brazos County.

PTD programs "divert" individuals who qualify into a program that if successfully completed result in dismissal of the criminal proceedings against them. This kind of program is ideally suited for Brazos County. There are tens of thousands of college students, primarily from Texas A&M and the Bryan campus of Blinn College who live here. Many partake in marijuana. The typical college defendant arrested for POM is found in possession of less than 5 grams. It happens here almost nightly.

A POM can impact anyone, but for the subset of defendants arrested for POM who are under 25 years of age, a PTD  program seems ideally suited.

Section 76.011 of the Texas Government Code grants authority to Community Supervision (Probation) Departments to establish these programs. Brazos County has none.

Our Probation Department, and the judges who are in charge of it have been in the news lately for reason unrelated to this post. The lack of a PTD program and the resulting loss of benefits for both the community and the defendant, at least in my view, is newsworthy.

In fairness, it is not the Probation Department that ultimately places defendants into such a program. Instead, it would fall to the prosecutors as well as the Probation Department to define eligibility and placement. In Brazos County, in misdemeanor marijuana cases, that means the Brazos County Attorney.

The neat thing about a PTD program is the flexibility. It can be used for some offenses, but not others. A pilot program would be the place to start. Defining who would be eligible is always the key, but  these issues have been confronted by other Texas counties using PTD programs. Find a county whose program has been successful and copy it.

The Texas juvenile system has had a form of PTD for many years. Section 53.03 of the Texas Family Code (The Juvenile Justice Code) labels it Deferred Prosecution, but it is nothing more than a PTD program for juveniles defendants. There are practical and legal differences, but the fact is Brazos County has been using PTD in juvenile settings for years. It is not a huge leap to implement such a program, already used by the Brazos County Juvenile Services Department, into the adult system.

Why not launch a pilot program applicable to an adult defendant with no prior criminal arrest record, and found in possession of misdemeanor amounts of marijuana? Currently, lawyers like me start testing our POM clients for marijuana every 30 days for around 6 months, put together a "Good Boy (Girl) Package" and lobby the prosecutors for dismissal of the POM and re-filing as a Class "C" Possession of Drug Paraphernalia, or Class "C" Attempted Possession of Marijuana.

This is a de facto PTD program, is it not? Unfortunately, it is a matter of getting to a lawyer who knows how to work the existing system instead of a defined set of eligibility requirements within the system itself. It should be available to all. If such a pilot program is as successful as I think it would be, it could be expanded. If it is the failure I cannot imagine, then it can be scrapped.

As a side note, Brazos County has a Drug Court Program which from my admittedly limited vantage point has exceeded expectations. Is it unreasonable to think a PTD program would not do the same?

The result? The community has rehabilitated citizens, the defendant can say the case was dismissed, and, if otherwise eligible, expunge the arrest if they chose. Prosecutors spend less time on cases diverted, revenues from the program flow and court time is more efficiently utilized.

It works. Why not, Brazos County?