The Burden

By: Jacquelyn Carpenter

It was about 11 o'clock on Saturday night when the phone rang. The name on the caller identification was familiar, Brent. My curiosity was piqued. After all, it was unusual for Brent to call this time of night, especially on a Saturday. I had known him close to six years, and I knew him to be a person of immensely good character. Over the years, I came to think highly of him. He had been a loving husband to his wife, a God-fearing Christian, a good listener, and a family man. All in all, a good man. But why was he calling now?

Too curious not to answer, I picked up the phone, trying to sound nonchalant in my greeting. Much to my surprise, Brent, who had called me, was cautious. Within seconds, I discovered the reason. The words are burned in my memory, "Jackie, I think I need to hire you." There was no mistake here. Some people buy a crappy car and want to sue, calling the only lawyer they know. Some get a traffic ticket and want to fight it as though it were a murder charge. But Brent knew the nature of the cases I handle. I closed my eyes and responded; my response hinted that I understood I wasn't going to like the answer to my question. "Brent, what is wrong?" His response was more unthinkable than him being the subject of a criminal investigation. "Melissa called the police and said I was molesting Alyssa (5 years old) and Adrianna (3 years old)."

Shock and disbelief were immediate. I knew without him saying it that he was not just not guilty, but rather innocent. I stalled, my mind needed to accept the circumstances. So I asked him to repeat himself. In the meantime, I told myself to put on my invisible hat that says "LAWYER" and get to work. A man's life and liberty were at stake.

Throwing on clothes, I did what I've never been able to do before. I met the client and went to the scene while it was still a scene. (I called to verify the police were still present so there would be no problems.) I was so nervous I was shaking; I couldn't mess this up. With my bar card and driver's license in tow, I approached a bulky sheriff standing guard outside the house. I had no script, and, because of the hour, I had sought no counsel of my own. I was out here winging it off the basics. And my friend Brent would reap the repercussions. I explained to the officer, and later the detective, that I was an attorney representing the husband. I stated we were not there to impede their investigation, in fact, we welcomed it. However, we could all agree he would need to be out of the house in the meantime, and he needed some basic things from the house. He had literally left with nothing but the clothes he was wearing and his car keys.

That night, the girls were medically checked - no injuries of any sort would be noted. That night, the police would validly have concerns about the statements and demeanor of the wife. Days later, the detective would question whether drug use and/or psychiatric issues were to blame. The forensic interview would have no outcry. A case that opened for CPS would be closed in less than a week. The police would do the same. Me? I would breathe a sigh of relief, in part because I didn't screw up, but mostly because Brent would never be handcuffed and have to risk a jury getting it right. Notably, the police got it right, which was a relief as well.

With every client we take, there is a burden on a criminal defense attorney. When that client is a friend, the burden is greatly amplified.

Civil lawyers are not civil

By: Jacquelyn Carpenter

The vast majority of the law I practice is criminal. Every so often, I slip in a civil case here and there. The prosecutors on criminal cases tend to be civil (with some exception on occasion), and I expect that civil lawyers, who are not fighting for victims of heinous crimes or the liberty of a defendant, should manage to be polite as well.

Much to my disgust, I found myself in a deposition. The accusations in the lawsuit amount to gender-based discrimination. My client, a white female, was also the subject of retaliation based on her fighting against race discrimination while employed by the defendant/ex-employer.

Entering the deposition, I was my usual courteous self. I expect that the attorneys can be polite to one another because we were not the ones accused of discrimination or having to work in an environment of discrimination. Apparently, I expected too much.

I could have dealt with a bad attitude, but, ironically, these people retained a lawyer with the same gender and race overtones that they shared. It became apparent that the opposing counsel thought little of me as an attorney when he attempted to chide me during the deposition in a patronizing manner. It was equally apparent that he had major problems with women, including my client whom he harassed unduly. His wife, also in the deposition as a legal assistant, appeared rather meek and mild, as though she had been whipped into submissiveness. Neither my client nor I have been whipped into submission so we kept fighting our way through the deposition. I only garnered more sneers and narrowed evil eyes when I asked for my copy of the document he was handing to my client. Reluctantly, he began to throw each and every exhibit across the table. Despite throwing them, he would purposely cause it to land outside of my reach causing me to have to reach for the document if I wanted it.

I work with prosecutors on a daily basis. When prosecutors hand over an offense report, a 9-1-1 tape, or a statement by the defendant, there is no extra attitude or rudeness involved. Why is it that civil lawyers cannot adopt the same level of civility toward opposing lawyers?

Politics & PR Bonds

By: Eric J. Davis

This weekend I found myself in Los Angeles visiting a prospective client. The prospective client is in a United States Penitentiary (USP) serving a lengthy sentence for a number of serious violent offenses. I have visited numerous clients in Federal Prison, but never one in a USP. I had always heard that United States Penitentiaries are the most dangerous facilities in America.... I had no idea how true that was. The client told me that they average about nine murders a year. He also told me that there were fights nearly everyday. Many of the murders were for trivial things (disputes about card games, disputes about drugs, disputes about sports,etc.). Many of the inmates were in custody for violent offenses and had prior convictions for other unrelated violent offenses. The client said people's perception of federal prison is incorrect if you consider USPs. Inmates segregate themselves and associate in groups (whites, blacks, latinos, christians, muslims, people from Washington, D.C., etc.). Much of the violence is group related.

He told me that there was religious discrimination. And a systematic effort to deny inmates the ability to investigate their cases for purposes of appeal. But most of the problems in USPs, are inmate initiated. It is a dangerous place because inmates are committing violence against each other. Crabs in a barrel are ultimately killed by the boiling water, but they are all too willing to make sure that they don't die alone. Apparently, the United States Supreme Court hasn't yet applied the eight amendment to policies (or practices) initiated by inmates which constitute cruel and unusual punishment even though the U.S. Bureau of Prisons is charged with the responsibility of insuring inmate safety.

The USPs are unique in that they bring together violent offenders from all over the country. It is understandable why conditions in such an environment would be tough. However, facilities like Harris County's Pretrial Detention Centers, which generally houses people who are accused of committing crimes in Harris County should not mirror the feds. Not all of the detainees / inmates are violent offenders. Most are poor and suffer from mental illness or addictions. Given the population, there should be less civil rights violations and less violence. But this isn't the case. Much of the County's problems stem from its size. Harris County's jail houses more inmates than the entire prison systems in a score of states - more than 9,000 at the jail, and another 600 housed in private contract facilities in Louisiana. The problem was so bad that the United States Department of Justice (DOJ) started an investigation of the County's jail system in 2008. DOJ commenced its investigation in part based on concerns for inmate safety. Some inmates were being required to sleep on the floor due to overcrowding. This was reported a few years ago in a blog post on Grits for Breakfast. The DOJ's objections to the conditions at the Harris County Jails were SUSTAINED! when Harris County was forced to publicly admit that it needed to review this issue in depth. It is still reviewing the issue.

But the Eight Amendment to the United States Constitution covers more than just cruel and unusal punishment. And many of the county's problems could be solved with a few simple changes in policy which put in effect the other provision of the eight amendment. County Courts granting Personal Recognicance (PR) bonds in all non-violent misdemeanor offenses would substantially cut the jail populations. But judges are far from putting such a policy in practice. Currently, PR bonds are very infrequently granted. Judges are more concerned with their dockets, than avoiding being a party to extorting a plea from a poor defendant held hostage by his inability to post bail. Without such extortion, far more people would go to trial instead of ransoming their futures by taking a quick conviction to hear their cell door open. Some attorneys have shouted about the injustice of the system, but Harris County judges have not listened. Additionally, instead of instructing police officers to make an arrest in non-violent misdemeanor cases, the District Attorney's Office could systematically instruct them to issue a summons in such cases. This would free untold resources. Officers would not have to be pulled off the street to transport a suspect to jail. Fewer bailiff's would be needed to process inmates and fewer deputies would be pulled away from more important duties to supervise inmates being escorted to court.

Why has no one implemented any of these changes or anything close to it? It's politically more expedient to build more jails. Judges and the DA want statistics to appear tough on crime. Also, no one is willing to try to find innovative solutions to this problem. Judges in Texas after all are politicians. And Politicians, like runway models concerned with maintaining their good looks, are very concerned with maintaining their images. They have been running things for a long time. A call for change would be some acknowledgment that they have not been running things well. For many in office, most of whom in Texas are elected because of party affiliation, improving their performance and practices are not as important as maintaining the status quo. And given the state of things, it is a status quo that we cannot afford to maintain.