The Campaign For DA


Random Thursday Morning Thoughts

  • The Sexual Assault Lottery Trial in Wichita Falls ended with a guilty verdict yesterday. His lawyers, reportedly paid $600,000, intentionally did nothing. They didn't ask a question, didn't object, and made no opening statement or closing argument.  As reported, his lawyers "have remained silent for most of the trial, pursuing a no-defense defense in hopes of winning on appeal." Today he faces life in prison. I'm struggling to figure out what is going on. 
    Defendant in foreground. Not sure who that is in the background.
    • This doesn't seem to be a case where the lawyers strategy is: "We don't have to ask any questions or call any witnesses, because even if you believe everything the State brings you, you're still going to have a reasonable doubt about the defendant's guilt."  If that's the case, you use voir dire, opening statements, and closing arguments to pound that strategy home. (And you still ask questions on cross even if you think you don't need to.)  Here, according to the story, they didn't do anything
    • So what's going to be the basis of appeal? Cases can be reversed on appeal for "ineffective assistance of counsel." It happens pretty frequently, relatively speaking, as far as reasons for a reversal are concerned.
    • However, it's normally because a lawyer unintentionally screwed up -- big time. Examples include telling a client he's eligible for probation from a jury when he's not, letting an avalanche of inadmissible evidence in without objection, failing to request certain jury instructions, etc. (Heck, I've been tracking cases reversed on appeal in Texas for over twenty years, and I've got a huge collection of ineffective assistance counsel cases here.)
    • But this case is weird because it is the lawyers choosing to provide ineffective assistance. (Disclaimer: This is based upon the newspaper reporting and my best guess. Maybe there's something going on that hasn't been revealed. I'm not the one being paid the big bucks.) 
    • Will this guy's conviction and punishment be reversed on appeal for ineffective assistance? I think so. We can't hold the decision of his lawyers against him, right? And it shouldn't matter if he consented to the strategy -- he's not the expert. He's hired people for this. (But he will experience some immediate consequences. His bond will no longer be in effect and he'll be incarcerated during the appeal.)
    • Have I ever heard of this happening before? That is, intentionally not providing effective assistance as a strategy? That's really been bugging me. I think I remember a case in the news over a decade ago like this. And it seems like it was in Collin County, but I could be wrong. Yet I remember back then completely understanding what the lawyer was doing.
    • In that other case, it seems like it was something like the State disclosing jaw-dropping evidence to the lawyer on the first day of trial when the prosecutors were supposed to provide it months earlier. The defense lawyer moved for a continuance so he could prepare a decent defense, but the judge, amazingly, denied the request. So the lawyer, who was royally pissed off because there was no way he could adequately defend his client in light of the surprise evidence, decided to provide no defense at at all. It was an "If I you won't let me adequately defend him by granting a continuance, then I'm not going to defend him at all." He caught a lot of heat  about whether that was the ethical thing to do, but most of the defense bar wholeheartedly supported him. I think it worked out for him. 
    • (I acknowledge my contradiction in not remembering that case but somehow providing lots of details about it.)
    • But back to the Wichita Falls case. The lawyers tried to get the DA's office disqualified at the last minute but, after a 48 hour brief victory, failed.  But once they lost, they just stopped providing a defense. Did they feel, "We are 100% right that the DA's office should have been recused, and we will ultimately prevail on that issue so why provide a defense when the case will be reversed? And, if were wrong, the case will still get reversed for ineffective assistance."  I guess that's possible, but "That's a bold strategy, Cotton." 
    • Once again, maybe there's is something I'm missing. (If any of my lawyer buddies have any ideas, email me and I'll talk about them tomorrow. I'm always open to learning something.)
  • This might only interest the lawyers or those interested in bizarre lawyer things, but yesterday there was probably the most Wheels Off three minute and thirty-seven second oral argument before a federal appellate court ever. Listen here. People discussing it on Twitter here
  • Bad deputy. (Allegedly.) It's in Bexar County.
  • I'll admit that I absolutely hate Junior.  A sheep. The guy is hunting sheep in Mongolia. 
  • Everyone still comfortable with this? 
  • That case was in the news the last few days because the defense lawyer claimed the state's investigator, A.P. Merillat, provided false testimony.  That name rang a bell with me and then I remembered he used to post on the TDCAA message board (which was one of the first message boards I remember on the Internet.)  I wonder if any of his 751 posts (still archived here and dating back to 2001) provided any help to the defense? I wonder if they knew about them?
  • Weird memory I had yesterday: The song, "Butterfly Kisses" that Kidd Kraddick played about a million times but I had never heard, or thought about, in over two decades.
  • Sometimes a murder occurs and we just don't know who did it. Responsible police don't arrest who they think is the best possible suspect.