The truth is not polite.

I’ve been on my soapbox again lately about the unpleasant topic of police misconduct.

The fact is that some cops are bullies who lie, cheat, and oppress citizens in the name of upholding the law. This bad behavior isn’t particularly rare and it isn’t even a secret.

recent change in Texas law is giving criminal defense attorneys even greater access to evidence and information gathered in the course of criminal investigations than we had before. Unfortunately, the deeper we dig into the behavior of law enforcement, the more problems we uncover.

Prosecutors share the blame for this type of police misconduct because they allow it to continue. They are in the best position to identify the bad behavior and they have the tools to correct it. But many prosecutors seem more inclined to ignore it or even cover it up. The problem is, like most people, prosecutors would rather not think about the problem. They convince themselves that police officers are more honest and fair than ordinary humans.

I’m pretty outspoken about police misconduct and sometimes get the feeling that my audience doesn’t appreciate my insights. It leaves me with the same vaguely uncomfortable feeling that one gets after committing a faux pas. And I suppose that I have.

Speaking the truth is frequently impolite. But I find this truth impossible to ignore.

Representing the Wretched

I’ve written about representing the guilty. Now, via Defending People and from Preaching to the Choir, I’ve come across a wonderful treatment of representing the wretched:

So I was perusing an internet comment board this afternoon. (I know, I know. Stay away, those internet message boards are filled with crazies. Nothing good comes from reading, etc. I know. Meryl’s staging an intervention, but in the meantime, I learn interesting things about the general populace.)

Anyway, I found this comment on an article about a capital murder case:

The Constitution does a lot to protect fools, the undeserving, and pieces of human trash.

Reading that made me grin. I felt all warm and fuzzy inside. And I said with pride, “Hell, yeah, it does!”

I’m willing to wager that’s not the reaction the writer was expecting. Based on context, I’m fairly confident the writer wrote those words with a rueful shake of the head and a sense of outrage that the Constitution does protect those folks. I suspect the writer would think it not such a bad thing if we added an asterisk to the Bill of Rights indicating these rights do not apply to fools, the undeserving, and pieces of human trash.

But, me, I think it’s awesome. (Yes, I’m a lawyer with an extensive vocabulary and that is the word I choose.) It’s easy to respect the rights of the pretty people, the popular ones, the charming folk, the nice guys. No one’s going to run roughshod over Mr. Rogers’ rights. We probably don’t need a Constitution to protect the Prom Queen. It’s the assholes we need to write the rules for. It’s harder to treat them well, to be fair to them, to refrain from punching them. So 200-some years ago, we wrote a contract with ourselves to make sure we would always respect the rights of the worst among us.

It’s easy to treat the good people well. But the true measure of our character is how we treat the bad ones. We choose to treat them fairly and with respect. And I think it’s awesome.

Here’s that link again from Preaching to the Choir, in case you think this is as “awesome” as I do.

Mismanagement results in new police commander position.

Earlier this month, I posted a Police Notebook entry about APD’s Lt. Wayne Demoss, who was appealing a decision by Chief Art Acevedo to deny Demoss a promotion to the rank of commander because he had visited a brothel during a December 2007 trip to Panama, where prostitution is legal.

Demoss didn’t deny that he’d visited the brothel but claimed that the purpose of the visit was merely to satisfy his curiosity about such establishments and that he didn’t actually pay for sex (okay, Clinton). Whatever the truth is, he won his appeal.

Meanwhile, Patrick Ockletree was promoted to fill the open commander position. Loathe to make Demoss wait for another opening or demote Ockletree through no fault on his part, the city council decided that the only logical thing to do was create a new police commander position just for Demoss.

In case you were wondering, the typical annual salary for an Austin police commanders is $113,000.

For more, see these Statesman articles:

Police Notebook

I’ve decided to try keeping a “notebook” here for documenting incidents of local police misconduct that I come across.  Each entry will be assigned to the “Police Notebook” category and contain the following information:

Alleged Misconduct: 
Disciplinary Action: 

For anybody interested in contributing, I’m looking for news reports, disciplinary reports, and cases that are otherwise documented, as opposed to just war stories. Historical cases are fine, especially if they deal with cops who are still on the force. Please submit the above information by email ( or by comment to this post.

Representing the Guilty

While catching up on my blog reading recently, I came across a recurring topic in my field that I’ve yet to address here.

In this instance, Keyana, a self-described aspiring criminal defense attorney, explores her apparent belief that there is something inherently wrong with representing people who are “guilty as charged.” The solution, she exposits, is to cast one’s role in terms of seeking justice. Then one is free to fulfill the role of criminal defense attorney “in good conscience.”

Her essay ran afoul of Scott Greenfield, a New York criminal defense attorney whose sharp wit is generally on-target but who pulls no punches when it comes to his subjects’ feelings. Unlike Greenfield, who lambasted the baby lawyer for her ignorance, I’m not particularly offended by Keyana’s essay. She’s merely expanding on a viewpoint that I’ve encountered  over cocktails for more than a decade. But I agree that she’s dead wrong. She’s also missing the big picture.

In the first place, the criminal defense attorney’s role is NOT to seek justice—that’s the prosecutor’s job. The criminal defense attorney must be a zealous advocate for her client’s interests within the bounds of the law and the rules of professional responsibility. PERIOD. Trying to spin that into a mandate to seek justice runs the serious risk of undermining your client’s interests when they run counter to the common good. That could actually get you disbarred, and rightly so.

Having worked both sides of the docket, I can comfortably say that prosecuting is easier. One reason is that a prosecutor rarely has to see the big picture in order to understand why what she’s doing is good and important—that’s obvious.  But for criminal defense, one may have to grasp the bigger picture to see the nobility of the profession. That can be difficult for newbies, particularly in those cases where they represent the “wretched refuse of [our] teeming shore.”

The bigger picture is that, in doing our jobs to the best of our abilities, criminal defense attorneys protect the innocent by policing the police. Believe it or not (and this can be a very hard truth for newbies), some cops lie, cheat, and, yes, even arrest and hurt innocent people. Some prosecutors and judges let them get away with it and some even participate.  More often, they simply don’t know about it and have neither the time nor the inclination to investigate the complaints of the accused.

But the point is that, if defense attorneys aren’t doing their jobs and getting cases thrown out when they suck or the cops break the law, then nothing will keep bad cops in line, which is a very scary prospect. Bad cops are worse than ordinary criminals because they have the full force of the government behind them to oppress the people (yes, even innocent people) who can bring their criminal activities and other misconduct to light.

A final point that bears mentioning…There is a huge range of punishment for most offenses. Sometimes a person is guilty of a criminal offense but nonetheless undeserving of the relatively harsh punishment the prosecutor seeks. The prosecutor may be unaware of the mitigating circumstances, disinclined to believe the defendant, or biased against someone accused of this type of offense, regardless of the circumstances. Such a dendant is “guilty as charged” but nonetheless entitled to a fair punishment, i.e., a punishment that accounts for the mitigating circumstances. That’s unlikely to happen without the assistance of a criminal defense attorney.

Police Misconduct is Not Shocking, Ms. Montford

In not-so-recent news, former Travis County District Attorney candidate, Mindy Montford, was arrested for public intoxication. The charges were subsequently dropped due to insufficient evidence (see here and here for coverage).

What I found interesting is that Montford found it “shocking” that she was arrested for public intoxication just because she was attempting to advise her friend about his rights during a DWI investigation. Sadly, I don’t find it shocking at all. Over the course of my career–including my time as a prosecutor–I’ve seen cops routinely lie and abuse their power. The only truly surprising thing about Montford’s experience is that they thought they could get away with abusing such a well-connected person. Only a career prosecutor (or perhaps our dear governer) would expect to be treated fairly when defying the police.

DWI Investigation–What should I do?

I just reviewed a DWI video that showed the most extreme example of badgering and deception that I’ve ever seen perpetrated by a (DWI task force) cop against a detainee when the latter attempted to exercise his right not to submit to field sobriety tests.

As soon as you realize that a cop is investigating you for DWI, you should stop talking. You don’t have to think you’re intoxicated–you don’t even have to be intoxicated. Do not answer his questions. Do not perform his tests. Do not buy into his story that he just needs to make sure you’re safe to drive home. The fact that he’s asking these questions means that he’s already decided you’re intoxicated. His job now is to build a case against you and he’s very good at what he does. He’s not an impartial investigator and, contrary to common belief, the tests can and will be slanted. Everything you say and do will be filtered through the lens of his belief that you’re intoxicated and his skill in manipulating your responses and the perceptions of the viewer.

So, when that light bulb goes off in your head, if you don’t want to help him with his goal, you need to use the magic words: “I want a lawyer and I want to remain silent.” Then, stop talking!! Do not perform any tests. Do not answer any more questions. Do not believe anything he says about why you should explain yourself or cooperate with him.

Believe it or not, some cops will lie to your face while they knowingly attempt to violate your constitutional rights. They’re allowed to lie to you. They’re allowed to badger you. They’re not supposed to violate your rights but they’re frequently allowed to trick you into giving them up. Unfortunately, there’s not a comfortable way to cope with that. Just remember that once you’ve drawn the line by asking for a lawyer, the cop is the one breaking the law if he continues to interrogate you. If you feel the need to respond to anything he says after that, just repeat, “I want a lawyer.”

Prosecuting a “Bullshit Case”

Upon commencement of his employment, every prosecutor in Texas takes an oath to uphold his “primary duty…not to convict, but to see that justice is done.” Lest there be any doubt that this duty encompasses justice for the accused, the law goes on to explain that prosecutors “shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (see Texas CCP 2.01.)

The way I read it, the duty necessarily means that a prosecutor should also refrain from prosecuting cases that lack merit. I took that duty very seriously during the short time that I was a prosecutor. But not everybody sees it that way, as I was reminded last week.

The incident involved a felony case in which my client, “John,” who’s in his 40s and has no prior criminal history, claims that he was framed.  He was arrested along with another man, “Roger,” who was a stranger to John until the night in question. According to John, Roger approached him at a convenience store, offered him $20 for a ride, then talked his way behind the wheel. After driving to the area where he supposedly needed a ride, Roger suddenly started driving like a bat out of hell until he attracted the attention of law enforcement and was stopped for a traffic violation. As Roger pulled the car over, he threw a bag of weed at John, saying “I have a felony warrant–I can’t have this on me!”

During the stop, Roger was arrested on the warrant and John’s car was searched. In addition to the bag of weed, the cops found drugs in Roger’s backback, which he had stashed in the trunk before the two men left the convenience store. The backpack contained a small amount of crack cocaine and no ID. Roger claimed to know nothing of the backpack or the drugs. John was arrested for possession of a controlled substance and possession of marijuana.

After listening to my client’s tale and noting his lack of criminal history (unusual for a crack user at his age), I decided to get an investigator involved. His investigation revealed that Roger may actually be a confidential informant. CI involvement in a drug case is a red flag to a criminal defense attorney because it means a key part of the state’s “investigation” team may have had motive to frame or entrap people to earn some kind of reward (some notorious Texas cases in which this issue came up were Hearne, Palestine, and the Dallas fake drug case; for more depth on the topic, see this Grits for Breakfast article and this academic paper). Such information is also clearly exculpatory, aka “Brady” material, which means that the state is required to turn it over…in a perfect world.

In the real world, however, you’re lucky if a prosecutor agrees that material he doesn’t want to disclose is exculpatory (by definition, it tends to hurt his case) and he’s unlikely to suffer any real consequence for failing to turn it over. Even so, the Travis County D.A.’s office is (hopefully) still smarting from a recent scandal involving a prosecutor who failed to disclose Brady material (see the Statesman coverage for additional detail), so I was thinking that its prosecutors may be a little more sensitive to the issue for a short time at least.

So before I spent a bunch of time trying to get discovery through formal procedures, I decided to see if the felony prosecutor, “Ted,” would cooperate with me. I broached the issue at our scheduled pretrial conference last week and asked him to make inquiries. He initially resisted, so I pointed out that a CI arrangement would be exculpatory and must be disclosed. Rather than respond to my request at this point, however, Ted offered to reduce the charge to a misdemeanor with a sentence of however much jail time my client already had credit for (not much because John had no trouble qualifying for personal bond). Ted stated that if John didn’t accept the new offer, Ted would “have to think about” my request.

Most felony defendants, innocent or guilty, would be tempted by that offer because they could walk away with no jail or probation time while taking a mere misdemeanor conviction, versus a felony conviction and possible prison time if they’re convicted at trial. I’d certainly be tempted if it were me, which is why I was glad the decision wasn’t mine to make. No matter how innocent you are, trial is risky, particularly if someone has done a decent job of framing you. I had explained that to John before and I repeated the warning when I communicated the new offer but he still refused to plead guilty.

When I notified the prosecutor that his offer had been rejected, I expected him to ask for a reset so that he could think about my original request. Instead, he suddenly announced that he was dismissing the case. When I expressed my surprise at the turnabout, he stated that it’s a “bullshit case.”  I probably should have just accepted my client’s good fortune and moved on–I did do the necessary paperwork, use it to persuade the misdemeanor prosecutor to dismiss as well, and send my client happily on his way–but to tell you the truth, the whole thing made me kind of angry.

Don’t get me wrong–dismissal was the right result for my client and I’m glad this ordeal is over for him–but why is a prosecutor trying to get someone to plead guilty to anything when he knows it’s a “bullshit case?” How does he reconcile that with his primary duty “not to convict, but to see that justice is done?” All I can figure is that he’s rationalized away his duty when it comes to defendants.

Whatever his rationale, the real injustice in this situation lies not with my client but with unknown individuals who have already fallen prey to this scam or who will do so in the future. It was too smooth to be the first time and it’s unlikely to be the last.