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Good morning.
How many are actually thinking about going to law school?
Just considering it. I majored in Political Science and quite honestly when I got
out
I had no aptitude for math no aptitude for science and there wasn't that much
left
to look into. I went to Millsaps College in Jackson Mississippi. Got out
1971.
Came out here to SMU law school. Graduated in 74.
Went to work for the district attorney's office in the fall of 74.
Stayed there 8 1/2 years.
in September this year I would've been practicing law for forty
years and it's hard for me to imagine.
I've lost count somewhere along the way but it's somewhere
at or near 518
criminal jury trials that
I've had over the course of that time and that includes
death penalty cases I am
not going to give an anti-
law school lecture
but I am gonna be realistic about it. When I started in 1974 we were told
there were too many lawyers.
Studies printed periodically in the New York Times I think it was an article
here about two years ago that said
that would have been I guess 2011
that that year they figured out there were 44,000
law school graduates
and 26 thousand-plus
got jobs.
It used to be at least from an economic standpoint if you had a law school
degree
you were going to make a really really really good living.
Nowadays the landscape out there has somewhat changed.
If you graduate in the top half the top of your class and was like top
I'm talking about top 10 percent Law Review
there are still wonderful opportunities out there.
One of my son's
roommate's girlfriend just graduated from the top of her class at Baylor
and I think her starting salary with one of the big firms downtown was a hundred and
sixty-five thousand dollars to start
But for every one person that gets out of law school that starts at that level
there are eight others that are
struggling to get by.
It's not like you see on television.
Not everybody has a corner office on the sixty eighth floor
with unlimited expense account and investigators and paralegals at every
turn. It's not all glamorous.
But on the other hand
if you make the grind. If you get out
even if you don't want to practice law it teaches you to think
and makes you wonderfully attractive to all kind of business
opportunities. My
neither one of my two older children
one is 28, one 26 and one is 22
about to graduate. Neither one of the older two professed
any interest in going to law school. My youngest one broached the subject with
me once.
I didn't encourage him.
I didn't discourage him. I just know that
those of us that are my age when we get together and talk
say to ourselves I wouldn't want to be starting
now. When
I started there was, it was a profession.
Everybody treated everybody fairly decently.
It's now a business and I think one of the
reasons that it is is because
of advertising. When I got out of law school advertising was
taboo. Nobody would consider doing it was beneath
a lawyer to advertise. Nowadays if you aren't advertising and you haven't
mastered the business
in the practice of law you are dying on the vine.
I mean you hear ads on radio. You see billboards,
internet. People have to spend a lot of money and I'm talking about the big law
firms
spend a lot of money have people that do nothing but monitor the market.
You know produce web sites, update web sites.
Throw money at search engines.
I got out the DA's office in April of 83
and started private practice representing
people that were accused of crimes. I
started a partnership with a law school buddy of mine about 1989.
He was the first
person to advertise. He was the first person
in Dallas to do a yellow page ad.
He was the first person in Dallas to do direct mailings
to people that were arrested. Got the jail printout list and send out letters.
And for a while he was making probably a while say probably
25 years.
He was making you know four hundred, five hundred thousand dollars a year
off advertising. Now you've got a factor in
to get that phone ringing you've got a spend money.
to the make that happen and yellow page ads
are not inexpensive. Go look at a yellow page
phone book now and look at the number of lawyers
advertising that you know they don't just put their name and their phone
number. There's no shortage of time that goes in or experience
that goes in on making them marketable making them
appealing are and it has deluded
the affect the advertising quite honestly unless you are staying ahead
of the curve with internet, with search engines and things of that nature.
The big law firms and I have regularly
or friends hunt, play golf, vacation
with guys that are now senior partners in some of the big firms down there.
I never had, I was solidly entrenched in the mediocrity
of my law school class. I wasn't law review. I wasn't top
and you know those guys were.
And back when you go visit them when they were young
right at a law school everybody had the Big Walnut panelled offices
Oriental rugs you know artwork on the walls
you know just lavish. Nowadays you go in one of those same law firms
and its cubicles, its
you know they have downsized.
You aren't producing you're gone. You could be a 30-year partner
and if you're area of the law takes the downturn because the economy
they will jettison you like bad garbage. Not a lot of lawyer fees, you either produce
or you're gone.
And getting a start in some of those firms is
there's a direct correlation between how high you are in your law school class and
whether or not you're
ever gonna get an interview.
So if if
you can produce at that level intellectually
then you're not going to have a problem. If your dad or your
father-in-law mother-in-law is CEO of some fortune 500 company.
You're not going to have a problem. But if you're a Joe Smith
and you're in the middle of the bottom half of your class
and your dad doesn't run some one-horse town somewhere
it's it's gonna be a struggle to get out there
and make make it. The advertising my partner I told you that was making all
that money for
that length of time it started steadily decline in about the last
eight to ten years of his practice. Got down to the last year
the amount of money he was spending to try to get in the business basically
equal to the amount of money he was bringing in. It was down around 50
fifty to sixty thousand dollars so it's basically a wash he was working for free
and he finally decided hey I've had enough educated his kids.
Didn't need a whole lot to live. Be just as happy running a bait shop in Port
Aransas.
He just walked out turned out the lights said bye.
Great guy but
its things come and things go.
Another thing you need to consider
law school when I was there
fortunately my dad's federal pension was still paying for my
education. But and so I never saw the check but I don't think it was
it was much over eighteen hundred dollars a semester. We weren't charged by
the hour.
So you know I could take 18 to 21 hours a semester knowing I was going to drop two
courses at exam time.
Because I didn't, you know you couldn't keep that case load up. But you needed to
have those courses because you knew that will be on the bar exam three years
from the then.
So I had the luxury of being able to do that. Now it's not that way they charge
by the hour and it's a lot more difficult to
spread yourself where you'd like to, to be in a better position to to take the bar
exam. But the debt
I mean it's a hundred thousand plus I think to go to SMU law school now.
And again if you've got that guarantee that you're gonna be editor of the Law Review
and you're going to get one of those jobs
it's worth it. If not I mean
economic reality needs to set in and you need to figure out can I tote that note
and how long is it going to take me to to to make that up
and pay it off. Again it's not a pretty sight the
the business or profession whatever you want to call it but it's a
reality that you need to
consider. And I'll just tell you honestly, I play golf regularly with a bunch of doctors there
they would if they were giving you a lecture on going to med school you would
be hearing a lot
of the same stuff that I'm telling you now about med school and the grind and
the red tape and the paperwork and the government taking all your money.
Something else that's changed dramatically and I think
if i sat down and thought about it. There probably would of been at least three or four phases
or changes that
clearly are delineated in the length of time that I've been practicing. One of them
clearly is is social change.
When I started down at the DA's office you start off as a misdemeanor
prosecutor your trying DWI's.
You know back then your jury panels were pretty much
all white. The lawyers were pretty much
all male. You go down there now and there is a
major marketed diversity as well as it should be.
At least half the lawyers that you run into the DA's office are practicing
are female. And the jury panels now
to a large extent look like a United Nations
meeting. And the diversity is done wonders for the system.
By and large that that's all
regarded quite honestly as positive. For the education for the opportunities it
provides for everybody.
But in 1974 when I started picking juries and trying cases down there.
Let's just take
one thing that we're all familiar with DWI's.
K the biggest problem I had as a prosecutor
trying to select a jury in a DWI case
was the, you know a lot of times it's
younger college-age young professionals
and half a year jury panel would be sittin' out there going gosh
isn't he or she cute. Look his feet barely hit the floor. I bet he could get in the movies
for half price.
You know they didn't want anything bad to happen to
somebody accused of DWI because the other half of them were thinking but for the grace of
God go I.
And so we had a burden to prove beyond a reasonable doubt and then we had a
social burden of proof that was sort of ingrained in society back then.
That you know DWI as they didn't intend it they didn't want it to happen.
Gosh couldn't they just follow him home type mentality.
And what's caused all that to change? MADD
And I'm not saying that negatively but that's what's caused it to change.
Society's tolerance, society's
view of drinking and driving
has done a one eighty.
In
1978 when I started
trying some of the heavier felony cases down there and you were trying
intox manslaughter.
A jury panel, because you get to talk to them and you get to ask them what
their thoughts were about certain aspects of the procedure in law. So you
could more intelligently make your strikes
as to who you wanted on your jury and who you didn't want on your jury.
You would get questions like this. Well gosh if they didn't really intend to do
this
and they didn't mean it. You're really trying to send them to the penitentiary?
And that was markedly different from if you're trying to case down there with a
guy that walks in on a video camera
and lays a 7-eleven employee down behind the counter
and pumped two rounds in the back of his head.
A jury same jury would see a big difference
in those two scenarios. Guy or girl has one or two drinks too many.
Has an accident that they didn't intend. The unfortunate result of that is somebody died.
And the person that goes in a 7-eleven store and shoots somebody in the back of the head.
You go down there today representing
a citizen accused of involuntary manslaughter
or intoxication assault and
you start asking those same questions as a defense lawyer trying to defend that
citizen accused.
And you ask this question. How many have you
yourself, a loved one, or a close personal friend has been the victim
of a drunk driver. And if you've got a panel
the 75 people out there I can promise you
twenty or more are gonna raise their hand.
And they have no sympathy. Some of them are extremely bitter.
It has caused a lot of pain. The tolerance for that that existed back in
the late sixties
seventies is gone. And the gap that existed between a
good ol boy, one for the road, didn't mean it, didn't intend it,
productive citizen, pays taxes, young kid, bright future, from a good family,
all the reasons that we had problems with back in the
mid to late seventies, those are gone.
There is no gap between the person that goes out and kills somebody
while impaired and the person that goes in
7-eleven and shoots somebody in the back of the head
as far as most jurors
are concerned. There was a time
back about five or six years ago
I don't think anybody has tried more of these
cases to juries than I have in the last
twenty years. And I had
a just is it worked out at that particular time
5 people that were accused of
intoxication assault or intoxication manslaughter.
And three of them were females
under the age of 23 and I had two males that were
just barely 22.
Money was no object
with any these people that I had represented.
One of them was a paralegal at a big downtown law firm.
One of them was a senior
at SMU.
One of them was a waitress. She was an alcoholic.
The other killed her best friend driving home
one evening. Hit a telephone pole.
Every one of those people
went to the pen except one.
Except one and if I rolled out
and had time to roll out all the facts, situations you'd be asking yourself
how did he avoid it? And sometimes
stars align but if you want to look at
social evolution and social change you don't need to look any further than that
one
offense that one category of
offense to see how things have changed. And
another sort of what to us in the industry is laughable
in 1984 January 1, 1984
was you could not get deferred adjudication. Which is a non conviction
type of disposition
for a DWI. Because the Legislature's down there decided that we're gonna get tough
on crime particularly tough on DWI's.
So we're gonna make it where everybody gets a conviction.
It stays on everybody's record for ever. Because that's the way that will deter
it. The message will go out and that will stop people from going to bars and drinking
and stop them from thereafter getting in their cars
and driving home. We'll just make it painful.
We'll make it so it's like a scarlet a on their forehead
in having to deal with. And
what it has done and what it is finally dawned on people
is that is created a major league all-pro Hall of Fame
glut in the system. Because now if you are
somebody comes in your office in any given time I probably have between 50
and 70
active pending DWI cases.
And you ask a client I do everyone that comes in my office I say wave a
wand.
Have this matter over. How do you want it to end?
I do that because their answer to that question will tell me how realistic
their appreciation is for the circumstances that they're in.
And everybody I almost stopped asking it for DWI's
because the answer is always the same. I don't want it on my record.
I don't want it on my record. Now what have judges found out? Judges have found out that
their dockets are all backed up because
everybody's setting the DWI for trial.
And the DA's are finding out that what they're doing is they're trying
there least aggravated cases. Because if you've got somebody that
you know that now they got in car videos
and and so if you've got somebody that Ray Charles can clearly see is drunk.
You know falls out of their car. Throws up in the police car.
Gotta gin bottle in his back pocket. Those cases don't get tried.
It's the you know college kid.
It's the young professional. Those cases get tried. Those people have
money and their daddies' have money to hire a good lawyer. So
the DA's office is getting their brains beat in because they've got some young kid
six months out of law school trying a case against somebody's been doing it for
thirty years
and they're not winning. If they're winning fifty percent of the cases they're doing
good.
And so what they decided several years ago is okay let's get a bill through the
legislature
that allows us basically to de-criminalize
some of the DWI cases. That is if somebody gets a DWI
they go through a certain program then it would be kinda like deferred
adjudication. You could avoid having the conviction on your record.
And the convictions huge. I used to tell people all the time avoiding a DWI conviction is
about a fifty thousand dollar
you know benefit for you. Because you're, you know Ross Perot all have a hard time
paying your automobile liability premiums for the next seven or eight
years.
Fine, court costs, surcharges, legal fees, probation fees it it adds up
real quickly. So
they decided that what they'd do to eliminate the backlog
and sorta give people an opportunity to help themselves and I'll get to the war
on drugs versus rehab in just a minute.
But they decided that they would give people some incentive.
They would try to get people that weren't gonna be hardcore offenders just had a
one-time bad night
and give them some incentive to get treatment to get education and to
decriminalize it so it would be on the record forever.
They tried to get that through the legislature. Now
let me tell you what the legislative thinking is. Okay you're on a committee
that's gonna vote that bill out to be voted on.
If you vote that out then what you have guaranteed yourself is you will have an
opponent
in the next election because somebody is gonna say.
Ha! Legislature so-and-so is soft on crime. Look what he does.
He's for people to drink and drive. You know he's against tough
enforcement of DWI laws. So no legislature
was gonna vote that out even though
the you know the the criminal community when I say criminal community I'm talking
judges
prosecutors and defense lawyers were all saying this is a good
good idea this is a good plan this will benefit everybody/
Legislatures aren't thinking about what benefits everybody all their thinking
about it what benefits them.
You know survival is the number one instinct for all living
organisms and survival for legislature is
re-election. So
the people that were trying to get this through thought better about it. So what
did they do?
They went and encouraged MADD.
They educated MADD on the problem.
And they got MADD behind the concept of hey legislators, we want this.
We want this to get through. We want this to be passed. It will benefit
us and our agenda.
Never made it out of committee.
Because of the same factor. They don't want to put
their name on passing something that's gonna be used against them.
So you know you don't watch sausage being made. You don't watch legislation
being made.
Because they don't do the right thing for the right reasons.
I mean how many of you, anybody in this room think the war on drugs is working?
K, but what did people want to hear
back in the seventies back in the eighties? We're gonna be tough on drugs.
And and juries were the same way. I can remember trying a case not particularly
proud of it looking back on it but I can remember trying a case probably back in the
late
seventies where a guy
got caught possessing one cap of ***.
Ninety-nine years is what a jury gave him, ninety-nine years.
Now and years now I'm sure he had some criminal history
but nothing that would warrant ninety-nine years for a cap of ***.
But that's what the people wanted to hear.
Maybe in your lifetime but I doubt it
there will be a politician that will get elected on
hey vote for me I want to reabilitate
everybody. People don't want to hear it.
They do not want to hear it. But you go down the court system today
and while I'm thinking about this I will make this offer. I make this offer every
time a speak to a high school group. I make this offer every time I speak to
young adults. If you wanna figure out, find out what really goes on down there
that courthouse on a day-to-day basis
and you've got the time
then I want you to call me. Just about every semester I have some high school
kid from Richardson that gets assigned to me as an intern. Somebody's thinking
about going to law school. So people down at that courthouse
are used to seeing me walk those halls with somebody tagging along.
So if you wanna go down to the courthouse for a day,
for a week, however long you want to do it and follow me around
walk where I walk. Listen to conversations I have
back hallways, courtrooms with judges, prosecutors, probation officers, other
defense lawyers.
See what really goes on down there on a day-to-day basis. Give me a call. All you'll
have to do is meet me in my office at 7:30
and and we're off and I'll tell you right now
I'm sorry yes yes
and I'll tell you right now where tennis shoes.
Because it'll be a track meet down there in the morning on any given morning I've
probably got
25 to 40 things I'm doing trying to get done between
8:30 and noon.
Getting back to this war on drugs
and the rehab.
They have finally figured out in studies have finally showed them that it's
cheaper
and more effective to take a person that's got a drug or alcohol problem and try
to cure them of
the problem than it is to put them in jail.
Now the the ante on that has changed
if somebody is injured in the process.
Like the DWI intox assault. But if you just got a guy that's a drunk
and he's not injuring anybody or you've got a guy girl that's an addict
and they're not robbing somebody. Then there is a large
amount up sympathy. There is a large amount
of resources available
to attempt to deal with them. The problem that you've got is
they can't tax you enough
to generate all the funds that will be necessary to rehabilitate all the people
that need rehabilitation.
There's a substance abuse treatment facility inside the penitentiary system
and if you've got somebody that needs to do that
in Dallas for example. Now it's not the same for every county.
But in Dallas if you were to send your client when this call safe P.
Which is a six-month program
inside the penitentiary, but your unit you go to is one where everybody is
there for drug treatment. They're not putting you in with murderers, rapists, and robbers.
You're there for drug treatment and you'll stay there as long as you're working
the program.
If you get down there and you have a to hell with you attitude. Then they'll just role
you into the general population. But as long as you're down there working the
program. It's a six-month program.
After you get out it's a six months sober living halfway house type of environment
in attempt to deal with your addiction. Because what is patently
obvious to everybody that works the program that works the system
is if you take somebody that's addicted
and you give them a jail sentence. They're still going to be addicted when
they get out.
And so you haven't helped yourself you've just delayed the problem
you know for whatever time period that they're gonna be in jail
and a lot of the courts down there now the judges they have programs special
courts for prostitutes,
drug addicts, alcoholics
you name whatever mental conditions they are they've got programs for that
but the bed spaces are so limited. Dallas it's a four month wait to get into safe P.
Four months so you sit
in jail for four months waiting for that bed space
to open up. But you know those programs I've seen them work
where parents that had money to send their kids to Hazleton, to Betty Ford.
These year-long wilderness programs. Money was no object.
Kids weren't getting it, you know they weren't ready. And so the little darling finally does
something that
they can't write a check big enough to cover. And they end up sending them safe P
and I don't know whether it's the you know in psychiatric circles they refer
to it as
aversion therapy. And I don't know whether the aspect of sitting in jail for four
months and then being in the pen for six months
makes it where they don't want to go back or gives them some outside incentive
to change,
but that appears to be working by and large where no other programs and
certainly the
war on drugs tough-on-crime
just wasn't working.
At the courthouse we have an adversarial
process. That is the district attorney's office represents
the citizens accused and they're there basically to take the bad guys off the
street.
Those of us that on my side
you know we are trying to
one see that the laws are followed and followed correctly and then defend
somebody
to the extent they have a defense either as a matter of fact or or matter of law.
Where is the balance?
And I'm gonna tell your there's no bright line balance.
There are some counties that it's very easy to practice law in.
They understand it. They get it. They don't sweat the small stuff.
You've got a crime you know for a script case. They view it like a
your guys got an addiction problem. Let's see what we need to do about that.
Not like he's the Son of Sam a prescription crime and
and try you know put them in in the pen forever. But you go to other
counties with the exact same fact situation
and something that's treated as a minor problem here is treated as a death
penalty case
in that particular county.
And you you need to understand that
probably ninety
lower 90 percent of all the cases that get filed down there get resolved
some other way than by trial. They either get pled out
to what their charged with. They get pled out to something that's reduced
or the case gets dismissed. You know so
seven percent of the cases actually go to trial and out of that
in Dallas County quite honestly there at least 50 percent of the cases that go to
trial shouldn't be going to trial.
You've got poorly trained poorly
supervised people that make poor judgments about what's serious and what's
a crime and what isn't.
And sometimes you get stuck having it to try those cases.
Judges down there are supposed to follow the law.
That's what you'd like to think that they're there for. They're there to call balls
and strikes.
Why we still have in 2014
political affiliation attached to a person who's running for a judge is
beyond me.
But it's you know they're probably outlaw deer hunting with dogs before
they'll you know get around to changing that.
Political process I mean the court system really has no place for the
political process.
You whether you're democrat or republican you ought to be interpreting and
in you know following the same law.
But you got a judge down there for example
I've got some matters that need to be addressed with the judge or
judges down there right now. I am no more and haven't been for the last two or
three months thinking about going to a judge
prior to March the fourth and asking them to do something that would benefit
my client. For example
you've got a guy in jail that really needs a bond reduction
for pretty obvious reasons and
you know March fifth may be a good time to go in and broach the issue subject
with the judge.
Today ain't the day to go do that because they don't
want to read about themselves on the front page of the metro section.
Again so you're a lot of times caught between
okay are you gonna do the right thing
or are you gonna do the politically safe thing?
And unfortunately there are a lot of those people down there
will do the
politically safe thing time after time
after time. They've got no spine. They've got no balls. They are just there to
draw a paycheck and hopefully get re-elected.
And these are the same judges that will go out and ask for campaign contributions
from lawyers that practice
in their court. What's wrong with that picture?
And another talk about
problem with the system
is you've got you know when I was
coming through and I was looking for a job. That job application had one line on it.
Have you ever been convicted of a felony?
And if the answer to that question was no and you didn't have active ***
warrants out of Butte, Montana then you are probably gonna get that job.
Nowadays you've got I think I file an expunction probably once a week for
somebody. An expunction is desired
designed to clean somebody's criminal record and put them back in the same
position
that they were in prior to getting arrested. That is they've been found not
guilty
the case was dismissed for some reason and the legislature says well this
person shouldn't have the burden of having to deal with this criminal issue
or problem for the rest of their lives
so we're going provide a legal means by which they can get it
expunged off their record, erased. Well at last
count my paralegal told me there 28 companies
out there like public data dot com.
That market themselves to Fortune 500 companies and others as
Hey hire us we will farret out anything
in your prospective employees background that there is.
Because for example Dallas County, you get taken to the Dallas County Jail
they sell their arrest records to public data dot com
and when the people in the legislature wrote the expunction statute it didn't
cover
private entities. So
you could get the police agency that arrested, you the District Clerk's Office,
the DA's office, the Sheriff's Department, DPS
to erase all their stuff. And if somebody can Google you up
and it's on the internet somewhere. You paid for an expunction and it's gotten you no
where.
It's gotten you nowhere so just be aware of the fact that again that's one of those
things in society where you've got competing interests.
You know somebody wants the right to know. You want the right to keep things
where they should have been or you think the law entitles you.
I'm going to give you two more examples and then I'm going to shut up and let y'all ask whatever
questions y'all might think important. Because what I'm telling you something
you may or may not consider it to be important.
Jury selection is extremely
important down there. And you know you can put all kind of
explanations on what it is and what it isn't, but the reality of what it is it's
what you're doing.You're the Assistant DA you've got the burden of proof. You get
to go first.
What you're trying to do is psychologically manipulate
that panel out there to your philosophical perspective on a given
case.
And it's the same thing for us on this side. We're trying to do the same thing.
Now if you're down there trying a case let's just make something it's gonna be
really
unpopular. You've got a client that's accused of
*** assault of a child. Now what happens on a given day is a jury panel comes up
they come in the jury room they may if you've got a judge that's
good person and he lets you do a
Voir Dire Questionnaire, juror questionnaire so that you get their
unfiltered thoughts before the psychological manipulation begins.
So that you can find out what they're really thinking and their biases and
prejudices are.
Then they are in effect informed by the type of questions you're asking as to what the
subject matter the case is gonna be.
Otherwise they are going to get called into court and the judge is going to say ladies and gentlemen we
appreciate y'all coming out here today.
Y'all are going to be hearing a case style the State of Texas versus Billy Bob.
Billy Bob is accused of *** assault of a child.
And you can just see the eyes go from listening to the judge
to your client going you low-life S.O.B.
And so right then and there you've got the burden of proof.
You've got the burden of proof which is beyond a reasonable doubt
as a legal standard. But what else that you just infused into the matter?
You've got their bias and prejudice.
Thats
in inset. So what you gotta do is you've got as a defense lawyer
you've got to acknowledge and you've got to set these people up by saying hey it's
a problem you can't ignore
the fact that it's a problem. You can't
go home in the evening and turn on the news. You can't pick up a newspaper in the
morning.
You can't listen to the radio where some child's not being snatched off some
fourth-grade soccer yard. And you know they find her four days later in a ditch
somewhere in West Texas and she's been killed she been ***.
So if you don't address the weaknesses
in your case. That is it's a serious social problem.
It is a nobody's for it. I'm not standing here because I am for child abuse.
You know they're against child abuse. That doesn't mean I'm for child abuse.
What I'm here for is to make sure that the laws are followed
and that Billy Bob gets a fair trial.
And if your ability to be objective about the facts and circumstances of the case
is gonna be clouded because you have a bias
against this then. If your gonna really be honest
and you can take the oath.
You know and you consider the oath important. And your biased
then you ought to raise your hand and say I couldn't be fair.
I could not be fair in the frame of mind I am in. So you've got, I've got a spin
an
inordinate amount of my time addressing the issue.
The fact that it's a serious social problem doesn't mean that somebody
that's merely accused of that
should be denied a fair trial. I mean just think about your mindset
if yesterday evening you'd gotten home
and your front door had been kicked open and your house had been ransacked and
burglarized.
And the next morning you've got jury duty and you're called in on a panel and the
judge says folks thanks for being here. We're going try Billy Bob over here
and he's accused the burglary.
You know how fair are you going to be to Billy Bob that week?
Yeah and so that's what you're dealing with and by same
token you know the DA's office has some issues and problems.
I'm not going to encourage y'all to go out and buy a dime bag but you know getting a
conviction down there on marijuana cases is a problem for them down there.
There are a lot of people don't see it as a crime
and so they've got they've got to you know twist this around.
You know to to be able to find a jury that's going to be fair to
to them. And by and large here's what they're trying to do.
They can y'all I don't know if you can see this in the back. I am going to read it to you. It's dark.
A convicted felon runs into a convenience store take some items and
then dashes out without paying for them.
Okay how many of y'all think that's a theft offense?
Is there anybody that doesn't think that's a theft offense?
Convicted felon goes into a place. Takes items doesn't pay for it runs out.
It's a theft, right?
John a 50-year-old medical doctor
is an emergency room surgeon. One night on his way home from the hospital he
witnessed an accident involving a kid on a bicycle in a delivery truck.
He stops and attempts to comfort the child. He realizes he needs to stabilize a
child with the cold pack and a tourniquet.
He sprints into a nearby 7-eleven grabs a bag of ice and a bandana and
dashes back to the child
without paying for those items. As a seventeen year old John had a felony
criminal mischief conviction for spray painting his initials
and those with his girlfriend on a water tower.
So what do we have here? We've got a convicted felon
who goes into an establishment takes items
and doesn't pay for it? How many y'all think John is guilty of theft?
A *** show of hands.
Okay I do this all the time in a lot of my cases where I know the DA's going try to
present one version of facts, situation. And my thinking is that a more full view of
it will totally
render it. Anybody that would raise their hand on that I would automatically cut.
Because if you seriously think that this guy out to be charged with theft
then
I got a problem with your thought process just generally.
And let me just read you what the law would be. There is a defense called
necessity.
Which basically says if
let's see if I left it in my truck. If the good
that you're trying to accomplish outweighs
the bad that you did then it's it what you did is justified.
That is trying to save the life of a child allows you to go in and take a
bag ice and a bandana. So you're not gonna get charged with this offense
in Dallas County or Tarrant County. Now if you're in Ellis County, you're in Denton,
you're in Collin County, you're in Smith County
you may get charge but by and large you're not. But again it goes to show
that people have a frame of reference. People have a mindset and what you're
trying to do on the defense side as you're trying to fill in
the skeletal facts with enough information that will make them see the case
in the light that you want it seen in. And a lot of times you know
how upset would you be if the DA's office just presented that fact
situation
and kept these facts from ya. That's another thing I'm subtly trying to
to set up and suggest. All right one other thing and I'm going to shut up.
I represented a guy about
a year and a half ago. I got a call from
a golfing buddy. It seems like I get a lot on my business from there thank goodness
but
he had a friend who
had just been arrested and charged with injury to a child.
And the facts are basically this
the guy's name is Andrew. Andrew and his wife
college-educated, really good jobs. Young couple struggled to get pregnant.
Finally had their first child and Andrew through the whole process had been
really supportive.
We got a ton of letters from nurses and doctors offices that they visited.
Visits that he had because his wife worked.
He was a hands on Dad and they'd had this child. Child was about three and a half
months old
and wife was fixing to take her first business trip
since the birth of the child. So
she got up that morning getting ready. He got up devoted his time to the child.
She left. He's bathing the child and he notices
some discomfort in the child's leg.
And you know calls the wife and says hey I think he was in the process of doing a
video tape
of the child to be able to transmit to his wife so she would have it.
Kinda guy he was. Nice guy and you know calls his wife hey I think we've got
this issue with the child's leg.
So he calls a hospital says hey I'm bringing the child and I think there's an
issue or problem here.
Do y'all have x-ray equipment that will take care with three and a half month old
child. And they assured him that they did so
he packs up the kid and tries to get to the hospital as quickly as he can.
So he roles in there. They do an x-ray of the child and the next thing he knows
he's been shuffled down to Children's Medical Center.
Where they are more x-rays and pretty soon it starts raining
police and child protective services workers.
And he subsequently finds out that
they have these X-rays that have been diagnosed with
corner fractures of both wrists. Corner fractures of both
ankles. A broken right leg, broken ribs
and a collarbone.
That was, you know in the healing process and
corner fractures
are a medical term
that indicates a doctor would testify that corner fractures you you'd have to
take a child's
limb and twist it in order to be able to get the kind a break
that that they diagnosed. And I think we pretty much can all agree
that somebody that would do that to a child pretty much needs to be just taking
out, put in a ditch and shot.
So the police now have a problem
because the three and a half month old child can't talk to them and say who did
this.
So they gotta start interviewing everybody that had
access to the child. Well they start out with Andrew
and Andrew had a rather irreverent attitude toward the cops.
You know once he figured out that they were looking at him as a suspect.
And he basically told them to kiss his rear end and
you know I wasn't involved then. He had a
civil lawyer and they wanted him take a polygraph and he told them
no. And they
subsequently got some doctor to make some statement that they interpreted as being
able to put him
with the child alone during that time frame where the child's leg was
injured. Because they had to have somebody in exclusive possession of the
child
at the time injury occurred in order to be able to legally get there.
So they arrest him for
injury to a child and
thereafter shortly thereafter I get I get a phone call.
Well the guy comes in and tells me that pretty much a story that I told you.
We get the wife in and interview her separately. Believe me
if she thought for a nano second that her husband had done that
that child. She'd killed him.
And so it is a pretty good indication
where you've got a non B type personality
wife that is standing by a husband.
Under those circumstances but what did I do. Well I wanted to figure out what the
deal was. So I sent him out to my polygraph operator to figure out if he had anything
to do
with intentionally knowingly injuring a child or
was present when somebody else injured the child.
My polygraph guy is best in the country. Past president American polygraph
Association, past president Texas polygraph Association
does most to the law enforcement polygraphs here in this area
and I've probably had at least 200 cases dismissed
on the strength of his polygraph alone. I am talking ***, ***, robbery, federal drug
conspiracies. He's that good
and that well respected. And flunks
nearly everybody I send over to him. But he calls me after this said this guy had
nothing to do with this.
I sent him to that polygraph operator a) because I know
he's good he's the only I use and b)
this was another county that will remain nameless.
I knew that that's who they use for their polygraph work.
So I take the polygraph up to the assistant DA who has a case to
I'd never met before. I'd been told that he was fair,
compassionate and all his cards would be face up on the table. And genuinely
I found him to be that way. I gave him the polygraph
and I could instantly see a markedly troubled
look on his face because they had just gotten through using that polygraph
operator to solve a rather serious matter
they had a new we had a lot of respect for the guy.
We, we continued talking and he has a statement from the doctor a doctor at
Children's Medical that says hey
I don't know that I can state with a reasonable degree
medical certainty that the injury occurred to that child during the time
frame
that you know Andrew had the child.
So, I mean he's disclosing this to me. Trust me they're a lot of prosecutors that
wouldn't. So I basically looked back at him and said Michael what are we doing?
You can't get past a directed verdict. You know why aren't we dismissing this
case?
Well he might be guilty and you know.
It might snow, you know seven feet in the middle of June but that's not the standard we use
here. He might be guilty what we doing here?
It took me another fourteen months
and that wife flying that child. Fortunately we had a deal with CPS
didn't jerk the child out of the home.
They let the in-laws and the mother
all of whom were suspects that were never interviewed by the police officers.
Basically have the child. So we had access to the child so she flew that
child to Houston,
New Orleans, Philadelphia, Boston
seeing every expert in the country
with regards to what was wrong with that child. And the reports all came back the
same.
We do not believe these are corner fractures we believe this is yet some
undiagnosed metabolical abnormality.
And finally they found the right Expert who
mama had some disease I can't pronounce Ellers Daniels
syndrome or something that's hereditary and that causes
rickets type situations and basically these people Children's Medical just misread
misdiagnosed the child. Misread the X-rays.
We had five sets of people that looked at the x-rays that were
you know oober qualified saying they are not corner fractures.
But I wanna tell you, if this guy had gotten
wrong lawyer or hadn't had money he'd be doing twenty years
in the pen right now. He'd be doing twenty years
in the pen because he would've gone to trial. They wouldn't had the X, they would
have had the child being seen by these experts
and he'd have gotten convicted like that. And so
the system's not perfect. And you're really all the media wants to put in the
papers
those that are you most horrific examples above failing and not working.
I guess to keep us all on our toes.
But I could sit here until it got dark and give you example after
example after example both good things that have happened and bad things that have
happened.
So I'm going to shut up and answer whatever questions anybody might have for the time we've got left.
yep
the most costly batter to somebody called on the files around for a day or
two
so it's not it's it's not terribly difficult for me to
find some body or find a situation if you wanted to take several days off and
just go down and watch a particularly interesting trial
you know I can introduce you to the judge in both sides and say hey
you know let this kid in on what's knowing what's going on
and and you know they would be help
up
up
well i I certainly believe that cuz I graduate in the bottom half my law
school class as a base to turn in college so certainly I'd like to think
that
those of us that low solidly entrenched in that way can can produce and do well
I again its at a lot
love what you do and you'll find his personality driven
its work ethic driven
are and you know if you you only have one opportunity to
to make a first impression and you know you hit the right
interviewer on the right day at the right time in in in they perceive you as
a go-getter
what you need understanding as that person is looking at you
in their thinking to themselves is this person gonna make me money
is this person gonna be value to
me and mock company or michael looked like an idiot
hiring him or her simply because I got a letter of recommendation from
somebody
I'm sure those studies are done and I'm sure they're out there and published I'm
sure you can go the woman I'm sure what they would show
is that there is no correlation
between necessarily being in the top 10 percent and how successful you gone
baywatch can tell you're
is it will open doors on your initial
interview and get you job
offers an options debt the those of us
mainstream or not gonna get so
I you need to figure out that that's gonna happen on their forget the
most irritated I got when I was in law school is I interviewed for summer
internship at the attorney general's office
and at the into the process you gala to me said you know
we would love to hire you but you're in the bottom half your class we're trying
to make this an
Honors Program and so forget
and you know you don't have to hear that more than once or twice to
get really pissed off entrada you know I've showed a more than once or twice in
my career I'm just a that since that time
but just you know be aware the fact that you're not gonna get
if you're in law school when I the
major firms come an interview you're not getting an interview
so you don't have to find something else that distinguishes you
from that person you know you had to be bilingual you have to have a joint JD
MBA
you have to go out and get an internship somewhere that really makes you look
good on paper
I but he's right you know I can't remember
the last time somebody asks me where I went to law school what my class rank
was
or you know they just care it whether or not they've got a good deal
reference could you help you know once and chairs out
you know six months ago on his federal felon with the
arm possession case or something so
I saw that on the news last night up
what you have
idea it does its thing that that makes people mad
but the legislature drabs a law
and if the conduct that is committed
didn't fit with in what's prescribed in that statute
it's not a crime out a some males that did you know I have probably head
40 airport
gun cases in my career where somebody
is car at DFW or Love feel with gone
in there in their luggage or in their purse
how many those forty people do you think you've been convicted
0
0 everyone I'm has been
not filed no bill
or dismissed at some point I'm because the statute is
they have to show that you knowingly or intentionally
are trying to bring the gun through the security checkpoint these are people
that have all for
gotten didn't inadvertent you know it been in a bag that they hadn't grabbed
in
you know two years most amor CHL holders
ahead doctors lawyers nurses
retired people schoolteachers law students
state legislator yours you know do this
in they they will they will change the law and saw you this
are you basically do is put together two page letter the grand jury with the
catcher clients resume to it put up
blue blazer repair khakis on a min send them in there and and they don't get no
bill every time because
they came out ahead I've had cops come in and test for
well what happen well they go into the metal detector we look at the login is
all gone
and what was the expression on my clients faced he was shocked
he was surprised did it appear to you that he was intentionally trying to get
the gun to know it paired me that it was a
an accident so until they change that make it a bigger guys a crime that don't
require a culpable mental state you don't have to know
you're intoxicated you have 10 tend to be intoxicated
its no mental state until they make a
up dance where you know if you're at the airport with a gun you're guilty
that all those cases we don't get thrown out they will somebody will draft
a bill in the next legislature to cover that
but it just again most to the legislative
statutes that are passed down there they never bother
to call up a prosecutor
a judge why defense lawyer and say hey Can we meet in room
we've got this concept this idea about this law we wanna pass
and get your feedback get your input on what might work what might not work what
language may need to be included
they pass things down there for political reasons
not for legal reasons that's why you had the result that just
drives people crazy like the kid in Fort Worth that
kill four people in an automobile accident and not doing any time in jail
you know the public's outrage you know they'll be somebody that will be filing
something
to limit a judge's ability to do what that judge did with that kid
because the outrage
up
up
well but then you would get a charge on the Saturday and hopefully you would
read that and say
you know
world
well let me let me give you another example let's just assume that I'm
walkin my dog down the street
and I walk by house and I look up in on notice that the house is on fire
and i notice as a child in a bedroom upstairs crying to get out
and I go and kick that front door and go on to say that job committed a burglary
coordinate you know
yeah not obviously no you know
anybody else
alright
me
or
yeah
it's that easy
act but I prefer right now I
I could call 911 and
a you in our living together and say you assaulted me
and and go hit myself in the head
against the wall and when a cop show up
if I'm injured and I made that call you're gonna go to jail
yeah I understand what you're saying on stay with your dad now you you're gonna
have to
now there there are procedures cuz this happens all the time this happens all
the time somebody's cuz no give some other cousins name
and so there is a procedure at least in Dallas County where they will allow you
to
purge expunge your record in the Shareef will give you a letter that you can
carry around with you
ok I that is probably as good as it gets viewed
yup
now now I'm sorry but they're they're just some there some problems that
there's not a solution for unfortunately yep
what his described yeah it does well it's not perfectly okay it's just I
don't know if
they arrest its
they're gonna put in some data back all the information that they can
yet that they think mater may later be used to help
the arm get back to where they're trying to get to go and if you've given a
different name
or I then they're gonna soon that if they've come across that name again in
the future there some databases they can use to link it back up to you where they
could
do fingerprints or DNA and the fact that it's somebody else's name they're
totally innocent I
there is going to trample okay
rear up