Copy This...

By: Jacquelyn Carpenter

As criminal defense attorneys, we are responsible for our own cases, not the county. We accept cases and we know that some of them will be paper intensive. I once bought a whole box of paper that I wheeled into the Harris County District Attorney’s Office to replace the paper it took to make a copy of all the evidence they intended to use against a client. I did not complain. All the time, we request copies of video and audio; there are no complaints that we should provide our own CDs and DVDs. In March of 2009, the Harris County District Attorney’s Office started making copies of redacted offense reports for our convenience. Prior to that, I used to spend 45 minutes in court writing the report by hand. Every time we get an item of convenience, we get greedier and greedier. Now, the defense bar is in an uproar about copy machines.

In this time of economic recession, the County, like everyone else, is looking to cut costs. I would prefer they cut simple costs like paper rather than personnel. In an attempt to save money, Harris County has lessened the amount of air conditioning in the building. Now it is perpetually hot, especially if you are a criminal defense attorney who must run around the building the entire morning. To add insult to injury, Harris County has decided to lock out the attorneys from the copy machine. I think . . . no, I know that I would be offended if the prosecutors still had access to the copy machine, but they do not so I find myself rather unoffended.

However, I feel as though I am the only one. By not being able to use the copy machine, what have I lost? I have lost the convenience of a prosecutor making a copy of the offense report and redacting it in court to give me at the time of the request. I have lost the ability to get a certified copy from the clerk without having to go to the third floor. I have lost the ability to make a copy of a client’s dismissal for my file before handing the yellow copy to the client never to be seen again. In the grand scheme of things, I do not know what the big fuss is about.

Okay, so now I have to make copies of motions in triplicate at the office . . . wait, was I not supposed to be doing that anyway? Okay, well, I cannot meet the client in court and take a copy of the dismissal-earning affidavit the client brought to court. So what? Can I not meet with my own client in advance of the court date to retrieve the copy. If the document was that important, wouldn’t the client have seen fit to get it to me in advance? Oh, I cannot make a copy of the medical records on file with the clerk to make my job easier. Really? I don’t do that anyway, except in one case where the records were not attached to that file because of a transfer and no motion to transfer the motions was ever filed. So, what is the big deal about not having access to the copiers? I bet the Houston taxpayers will be happier about it. If it means that much to you, carry around a portable printer. What is the big deal?

Near Tears

By Eric J. Davis

I did a revocation hearing a few weeks ago here in Houston, Texas. And for those that do not know, revocation hearings occur when someone is on probation and is accused of violating their probation. The hearing functions much like a trial. But the trial is before the Judge on the alleged violations. That means the judge is the one who decides whether or not the person's probation should be revoked. The Judge, and the Judge alone, decides whether or not someone is guilty. The burden of proof is less than a reasonable doubt. The state only needs to show that there is more credible evidence to suggest that it is more likely than not that you violated your probation. The standard of proof is the same as that used in civil cases - Preponderance of the Evidence.

Each state takes a different approach to this situation. For example California applies the same standard as Texas, but Florida requires proof beyond a reasonable doubt. The distinction appears to be drawn when dealing with the guilty. A person who is on probation is presumed to be guilty of the offense for which he or she was placed on probation. Thus, they have waived some of their constitutional protections.

My client was scheduled to have his hearing before a Judge for whom I have the utmost respect. I tried a case in her court years ago and she gave my client a fair trial even though the allegations against that client were very distasteful. In my opinion, she is one of the toughest Judges in Harris County. But the more exposure I have had with her, I have been forced to reevaluate my perception of her being merely a tough Judge. Throughout my dealings with her, the Judge has proven to be wise and compassionate. Yet she is tough when she needs to be tough. No doubt, this client was guilty of the offense for which he was placed on probation. As I learned, they were not easy allegations to look past. But I doubted his guilt for the allegations regarding the violation of his probation. Throughout the hearing, we poked holes in the State's case. But every time we did, the Judge would redirect or cross-examine witnesses after the state.

But like any person aware of the allegations for which my client was placed on probation, she had difficulty looking past them. And given the fact that he was a probationer being supervised by the Judge, I am not certain she should have looked past them. After all, a defendant on probation should not be allowed to re-victimize someone while a ward of the system. But the Judge appeared to be prosecuting the case from the bench. It got to the point that it was debilitating. But my client insisted on testifying and he did well when the State cross examined him. But with the Judge it was a different story. She cross-examined him so hard that he admitted that he had lied on direct examination. I had never seen a Judge go after a client that aggressively during questioning. And I had never seen a client fold so fast. It was like a house of cards built on a foundation of lies, folding to the wrecking ball of truth.

My client was on probation for retaliation (allegedly he was trying to force a girl into prostitution to pay off a debt). The Judge said she did not want to put him on probation initially, because he had lied about the nature of the conversations with the previous complainant. But she showed him lenience. Now he had lied again. And he was alleged to have been pressuring another girl into prostitution while he was on probation. That second girl was someone who was a prostitute who had just gotten out of jail and admitted that she had lied to the police when they asked her about my client harassing her. We had good evidence to refute her claims, but the Judge didn't think lightening striking in the same place twice was a coincidence. My clients involvement with this girl while on probation was questionable.

He was a college student who was a few credits short of graduating. Holding odd jobs through college, he demonstrated that he was a hard worker and was generally very intelligent. He was brash and cocky; had charisma, charm and was concerned about his future. Raised by a single mother, this young man had never been in trouble before the time period he got in trouble with his initial case. He had the world of potential. The ladies loved him. And he loved the ladies. It was their love that was his passion and his poison. All of his cases involved women. Now here he was in court and it was a woman who had power over his liberty. The irony could not escape me. And it certainly did not escape my client. Here he had a Judge that saw through his charm and charisma. What was appealing to other women, was repulsive to the Judge. What he used to pull himself out of pits of tough situations, only got him stuck deeper with the Judge.

Throughout the hearing, I felt so powerless to help him. On the last day of the hearing, we called our final witness to impeach the state's primary witness. After both sides finished, the Judge began cross examining our witness and I stood and politely objected to some of the Judge's questions. But it only seemed to make her more intent on sending my client to prison. She ended her questioning by taking a tone as if she had caught the witness in a lie (the witness appeared to have testified inconsistently with an event that occurred earlier). I politely pointed out to her that she was mistaken that the witness was being truthful. But she was convinced that she had caught the witness in a lie.

We went immediately into closing arguments.... Just before my argument, the Judge told me that I was correct. She remembered what had occurred and she acknowledged that the witness was being truthful. I broke down and nearly cried. I gave most of my closing argument in near tears. I had to stop myself repeatedly to prevent myself from crying. During the first five to ten minutes of my closing, I spoke solely from my heart. I told the Judge (who was the fact-finder) of the unfairness of the hearing. I told her how I felt powerless to help my client because she, the judge, was cross-examining him more aggressively than the prosecution. I told her that I thought too much potential was lost in this building. I emptied the contents of my heart until it felt like I had nothing left.

The Judge, who was set on revoking my client, called us to the bench after arguments. She was rationalizing and speaking only to me. It seemed to me that she was asking me to let her violate my client. I told her "Don't throw him away." My inclinations about the Judge were right. Throughout the hearing I was upset because I thought I was wrong. But my notion that she was wise and compassionate yet tough were SUSTAINED! She did not revoke my client. Ignoring the prosecutor's protests, She told me, "Lets bring him back in few weeks so I can fashion something to keep him on probation that makes me feel comfortable." Well, today she reinstated the client after sentencing him to 45 additional days in jail and placing him on a much more intensive form of supervision. At least he won't be thrown away.

American Vengeance

By: Jacquelyn Carpenter

I confess: I did not vote for George W. Bush in the 2000 election. For nine (9) months, I walked around in defiance that his title was “President”, after all, the majority of Americans had not voted for him. Every time he opened his mouth ignorance spewed from it.

Then, it happened: the morning of a day that will live in infamy, September 11, 2001. I was a student in law school. That morning I had Wills & Trusts with Professor Carrington. I listened to the radio on the drive, it was tuned to 97.9 The Box. The Mad Hatta Morning Show was on and they were their usual bubbly selves, certainly not reporters. Then everything stopped. A somber Mad Hatta began to relate that a plane had flown into one of the Twin Towers in New York. Confusion followed. At this time, there was uncertainty as to why the plane flew into the building. I sat there listening and awaiting more details. Apparently, Mad Hatta was watching a television as he expressed horror when he saw a second plane. Needless to say, he was soon reporting that a second plane was flying into the other tower. America was under attack.

Although I attended class that day, I could not focus. Luckily, it was a short day for me. I finished that class and went home. I needed more information. At home, I watched the images in paralytic silence. People, Americans, were faced with jumping or burning to death. It was all so unbelievable. How could this happen to us?

In the wake of this tragedy George W. Bush, President of the United States, became President, touching my soul with his words of unification. In that moment, all that mattered was that I was “American”, it was of no consequence that I happened to be Black. In the days following 9-11, I could feel people’s eyes on me, and they, too, knew that I was American, not even Caucasians cared that I was Black.

Time passed, we lost sight of our feelings of unification. To my shock, America had managed to live through two terms of George W. Bush and elected a Black man, Barack Hussein Obama, President. On May 1, 2011, I watched Celebrity Apprentice despite the fact that Donald Trump is involved in the show. I had laughed at “The Donald” the day before when President Barack Obama and Seth Meyers chewed him up and spit him out at the White House Correspondent’s Dinner. Here we are, one day later, and there is breaking news from the White House. As much as I respect my president, Barack Hussein Obama, I hoped that his important statement could wait for 10 o’clock. What was so important that Celebrity Apprentice should be interrupted? After all, we were in the boardroom watching Nene Leakes try to drag Star Jones in to the mud. As it were, the interruption came during the last 15 minutes of the show. And, guess what? President Obama was not even ready to speak. Why did the news interrupt the show? Well, lo and behold, Osama Bin Laden was dead due to military action endorsed by President Barack Obama and executed by an elite group of Navy SEALS.

With boldness, President Obama had authorized a mission to kill Osama bin Laden that involved blatantly walking into his mansion/compound and, very simply, shooting him, twice in the left eye and once in the chest, fatal wounds to bring about death immediately.

To prove death, the heroes that brought about the death of bin Laden took custody of his remains, drowning them (just in case he thought about surviving he would be drowned, I suppose) in a burial at sea.

Initially, the reaction was one of celebration. I jokingly posted on Facebook that Donald Trump would demand a long form death certificate to prove the death of Osama bin Laden. I was horrified that FoxNews (a.k.a. FauxNews, in my personal animus) had put that “Obama bin Laden” was dead instead of “OSAMA bin Laden”. Many pundits that do not know how to enjoy the moment began to question whether the death of bin Laden was a good thing because NOW the U.S. may really be targeted (as though we weren’t on 9/11/01). Even Republicans on Facebook and Twitter, who generally had nothing good to say about President Obama, acknowledged this was a good thing and he gave an incredible speech.

Could it be that America was once again united? Well, apparently not. I saw a Facebook status that, and I paraphrase, said it was the military that killed Osama, not President Obama. Technically, that statement is true on it’s face, but let’s look a little deeper. President Obama had four options as to how to bring about the death of Osama Bin Laden. Of course, he could have done like his predecessor and said that getting Osama was not a priority. However, President Obama, a man of action (look at his first 90 days in office), acted on actionable intelligence. Although the military executed the plan, President Obama chose the plan to execute and gave the order. Otherwise, our military would have down nothing.

Don’t misunderstand me: I applaud the military, I would give those gentlemen a standing ovation and buy a round of drinks if I could. I just do not discount the actions of President Obama while praising the military. I give credit to the military AND the Commander-in-Chief who led them into battle and sat in the Situation Room monitoring operation. I give credit to the Commander-in-Chief who also decided that this was best left as a unilateral operation. I give credit to the Commander-in-Chief who said to take two helicopters instead of one in case one went down. I also give credit to the courageous men, who will remain unknown, that executed such a well thought out plan.

[On a side note: there has been some discussion about whether to release photos/video of the dead Osama Bin Laden and/or his burial at sea. I would look at the photos, if released, but if the photos are not released, I will not be upset.]