Court Appointed Attorneys

I’m a little notorious about customs so if it bothers you, I’ll apologize in the beginning. I’ve had a landmark in my life! I started drawing social security this year and as you get older you have situations where you look back and you think; what in the world did I ever do that for! My favorite story about getting old had to do with my grandmother, who was in a nursing home. She was 96 years old and had Alzheimer and she confused me with my father a lot! And so her name was Naomi, but we called her in West Texas Nomi. And I said, “Nomi do you know who I am?” And she said,” no sir, but if you’ll go over to that desk they’ll not only tell you your name, they’ll tell you what room you’re in”.

And I kind of get that way! You can tell what TCDI thinks of my practice because they always ask me to speak about court appointments. Court Appointments are good and bad and, my paper you can just sit here and listen. There’s some stuff in the paper that you may be interested in you may not! But, you can listen and also included if you got the thumb drive, there are over 100 pages of motions, letters, forms that you can use! Allowing word format they are yours to use, they’re free to use. You don’t have to, no copy write violations. There’s stuff that I’ve used through the years in handling court appointments! And what I’m going to talk to you all about this morning is; how to handle court appointments and not have a just totally devastate your practice. It is so. Court appointments you know that every jurisdiction, every county is different and if you live in my county which is Taylor county! We were the last and still are today! The last County where the district attorney has a closed file policy. And I’m sorry, our district attorney is an asshole. Ok?

Its trial by ambush! It’s horrible, and you can’t imagine the elation that we had out in Taylor County with the passage of the discovery bill and I’ll just show you how our district attorney is. I’m not complying with it till January the 1st 2014.

He’d been there too long! But I’m going not going to take to you about court appointments because, you know when I started over 40 years ago if you had a law license you got a appointed! And you know I made a district judgment mad there in Taylor county because I was fairly aggressive and you know if we a had somebody that rapped our granddaughter on the 50 yard line of Abilene High Copper high school football game, during the appointment of the homecoming queen, I got appointed and unknowingly that judge who hated me with a passion bit my law practice because back then you could draw a burglar of a building case you’d be on the first page of the Evelyn reporter news walking into the court house with you, crying! So the good things and bad things about court appointments. And let’s just kind of take in a step at a time and then I’m going to tell you how to handle some special situations the way that I’ve handled em’. May work for you may not! Pardon me.

On the day I receive an appointment, the first thing that I do is I send a letter out to the client whether he’s in jail or whether he’s add on bond. Along with that I send an interview sheet and asking be fill it out. Now I’ve been practicing long enough, back when we used to, you only got a court appointed lawyer is if you’re locked up! And I kind of liked that, because it didn’t give in a lot of incentive to these people that are add on bond to, you know get righteous with you and tell you what’s going to happen longer then you put it off, they’re out on the streets. But I also send out the clients telling him I’ve been appointed and I send along within, an interview if he’s add on bond, I if don’t have a response with him in about 6 or 7 days, I send a second letter saying you haven’t responded to my first and what I do then is I send a copy of that to the judge! And to the bond company! Just to Cc and these letters are in these forms, you’ll see these letter’s in these forms that you’re provided. Then the next thing I do especially if they’re in custody, is I try to interview them.

Now I don’t go rushing in to the Taylor county jail at 9:30 in the morning or 2:30 in the afternoon. Let me tell you when I go see my clients that i get appointed on. I go see em’ on the way home from work, on the way to work in the morning, during the lunch hour and more often than not, I go on Saturday mornings. They’re sleepy, when you go out there to see em’ on Saturday mornings they’ve been up playing cards, dominoes, grab butt what had you all night long and plus there are plenty of interview rooms ready at Saturday mornings because very few lawyers do it.
But then you taking time away from you being in the office and if you practice law as long as I have then what you understand is; if you’re not in the office, you’re not making any money! You gotta be there to see the person, talk to him on the telephone so long and so forth. Let’s talk about the initial interview with the client. Because I think this is really important. So, many times when you get appointed on a case, this ain’t that it’s your client’s first rode, he’s been there before. He kind of lacked court appointed lawyers. His last one sold him out da dada da da da.

You have to understand what you need to do is not only represent your client but also cover your own butt. So every time I meet with a client at the jail or I meet with a client in my office, that’s out of bond, disappointed! I follow it up with a letter! So this confirms our interview at Taylor county jail on such a, such a day put a little blurb in there on what we talked about and ship it off, costs 45 cents. But it’s good 45 cents and it’s in your file documenting what you do. You have to understand that some of these guys that you get appointed on, some of em’ are going to try to set you up for ineffective case and I’ve testified several times in ineffective assistance of counsel writs, testifying as an expert what is effective and what isn’t. And I’m telling you that there are those clients that you’ll get appointed on that will try set you up for it. So you document everything that you do with that particular client.

One of these that I always do on a court appointment, when I get to the point that it has come to time to file pretrial motions, which in Abilene is every damn case you get because you’re still not going to get much, I’ll have my client sign off on it. I had another client the paying client in jail, told me one time that you know, you know and so and so is in my pod and I said, ”oh really?” He said you know he thinks the world to you. He said you get, you get mail from you all the time and he gets all these motions that he’s cosigned with you and I said, “That’s impressive!” You have to remember these guys are locked up and many times mail is kind of a status symbol, especially from a lawyer! How many times have you ever talked to a potential client, who you’re a lot worthy and he said you know I couldn’t get my other lawyer on telephone! Wouldn’t return my calls and ever only way I saw him was on the day I went to court. And by the way we got those kinds of lawyers in Abilene too. They’re there.

But so I always try to do is instill some trust between me and the court appointed client. Show some compassion. One of things that I would suggest that you would do with this new discovery bill that’s just been passed is in every case that you’re appointed that you file a notice of appearance! And contain within that notice of appearance, I don’t have a form on this because I’m in the process of drawing one, in that you track that discovery bill where you make a specific request in your appearance of compliance by the prosecution and law enforcement to furnish these all items that you’re entitled to! Two reasons, number 1 you’re covering your butt, number 2 it then becomes an official part of the courts record, where a letter to the DEA requesting same would not be! It dates what you’re doing, you’re requesting this. Getting back to talking about trust. One of things I do when talking about trust is I just don’t talk to him about the criminal law offence, I talk to him about his history, about his family. Where he’s from! what he’s done, so on and so for. One thing that I see court appointed lawyers doing more and more and more off is overlooking the punishment phase of the trial.

You know most of the time that you are talking with your client for the first time; he’s already given a guided tour of the crime scene and 14 confessions. So you’re, often times in the situations where you can only do, what I call is damage control! And we’re so fortunate in Texas to have a punishment phase of the trial and so many lawyers not just young lawyers, not just lawyers that do court appointments, so many of em’ overlook the punishment face of the trial. You may not always win the battle but if you walk out of the court room with your client because he’s on probation or you walk out of court because the judge gave him a differed or the DAE has asked 60 years and you walked out with 12, you’ve done hell of a job. So don’t overlook punishment, and punishment’s a whole different section that nobody spends a whole lot of time talking about! They work on all of these interactions concerning the guilt and innocence, forensics the whole 9 yards. So don’t overlook punishment. Punishment can be very viable tool to the criminal defense lawyer. Down in the initial interview I then also set out, the rules. For instance, I tell the client I say; Look I have neither the time nor the desire to come out here and hold your hand, it’s not going to happen! I’ll come to the jail when I’ve got something to talk to you about. Here I’m giving you five self-addressed stamped envelopes, addressed to me. If you like to speak with me, write it on anything from a piece of a notebook paper to a piece of toilet paper, put it in the envelope and I’ll come see you.

The other thing that I do is that I tell them that I don’t accept collect calls from the jail. I’ll be damned if I’m going to make $4 of phone calls for the share of Taylor county because that’s what he gets, of the charge is 4 bucks! I also tell him, tell my client that he will receive copies of everything that I file and everything that I file, he’ll sign off on. Then I take a long discussion with him about keeping his damn mouth shut. Not talking to his fellow inmates, writing letters, not talking on the telephone. We have video conference visitation with inmates, Sherriff monitor’s sees all of it. They record it. The judge too, the judge is unavailing set up video conferencing between the court house, and the jai from between court appointed lawyers and their clients. So far I think it’s been used twice in over past 2 years! We just won’t do it. Its nuts! I’m not going to discuss something electronically that can be monitored and violate attorney client privilege. Then I also tell the client at this point, and I think this is probably one of the most important things. I said there are 2 types of decisions that have to be made in representing you. The first one is the strategy. Strategy is my decision.

The other one is called ultimate decision. Ultimate decision is whether we have a trail to a jury or trial to a judge or we cut a deal. Those are you decisions. Now if you don’t want or fear hesitant to try a case, then don’t do court appointments! Ever! Just get in another field. DAE’s are not stupid! DAE’s know the lawyers that will try cases and they know the ones that are cop out lawyers. And they take advantage of em’. The problem is obviously, is that when you try a case you make a little more money but not much. Well let me tell you come to Taylor County, if you try a case you make four hundred and fifty dollars. It goes one day, 2 days, 3 days or 4. If you plead them, and I’m talking about family cases you get two hundred and fifty. Even though we have a plan our judges don’t follow it and we have a whole cutlery of they’re probably 7-8 lawyers there in Abilene, the judges know they can pick up the phone and call these court appointed will come over and just plead the guys out. They just need a warm body there so that they can move the case. Happens a lot! We have one in Abilene that made over eighty thousand dollars and never tried a case. Don’t be one of those lawyers! It’s not your, it doesn’t make, shouldn’t make you any difference what so ever whether the person that pleads guilty or has a jury trial. It’s not your decision! It’s his liberty that’s at risk not yours! As long as he understands what that risk is, and what its consequences are.

I mean it’s the decision that he makes, then it shouldn’t make any difference to you. The way I do it, it’s not the only way, I say; Mr. Jones, you got this option, you got option A, you got option B and option C. Option A; if you do that, this is what I think this will happen. Option B, if you take the plea bargain I can guarantee you that’s what’s going to happen. And number 3 options C, it’s anybody’s guess. 9 out of 10 will say what do you think I ought to do? And I’m going to say; I cannot give you a legal opinion as to what you ought to do. That’s your decision! All I can tell you is what your consequences are. If you want you to gamble, I’ll get in there and give you a fight. Well do you think I can win? I say; who knows if I could tell what 12 people sitting on a jury would do. I wouldn’t be in Abilene! I’d be in Caribbean on 75 foot yacht with 6 or 8, 18 years old bimbos because I’d have more money than God, if I could predict what jury’s going to do! And, you have to understand that they’re trying to get you to commit.

The next thing they’ll talk while you’re talking, I’m kind out of order here but they’ll talk to you well they’ve offered 7 to do. Well how’ll it take me to make parole? You don’t know! You don’t know! The only thing if you’re talking to a client about paroled I think you owe him is if it’s a 3G offense or my favorite continuous sexual assault of a child offense, you bet you need to tell him about that. And if you’re not familiar with those 2 or 3G means you go to do half of your time flat, continuous sexual assault is 25 years and up with no parole! And your response should always be when you’re client attempts to talk to you about parole, that’s what I’m going to says; I have no control over that, nobody knows. Well I know so and so got 10 years he only did 16 months. Maybe so I don’t know but I have no control over what you might parole.
Now, another thing that can help you in representing court appointed client because I’m sure most of you will need experts or investigators at some point in time. Let me tell where I found just a plethora of experts! College professors. We have 3 colleges in Abilene and, turns out college professor’s credentials generally will blow away the states experts. Give you an example, I had a case involving cocaine and a chemist in Abilene had a master’s degree from DPS and he testified and what I was fighting over was the dilatants and how they flatted up and so on and so for. So I called the head of the chemistry department of one of the local colleges. PHD and this is the kind of thing you might run into. Now Doctor Smith, you know the, are you acquainted with Mr. Steve Jones, who was the chemist for the Texas department of public safety? Oh yes then I know who he is. Well how do you know him? He flocked two of my courses.

I mean that’s the kind of stuff you get off into and you know what happen? A college professor leads of somewhat mundane life! And some of em’ really get in to it. I mean they amateur [inaudible] gums shoes and want to help you out and you just tell em’ you’re court appointed can’t pay em’ anything would you be interested in helping out? And it’s amazing how quickly they’ll jump onboard. Another thing you might consider doing where you’ve got a confession, and a written confession.

I’ve actually had 2 or 3 occasions where I’ve gotten my client tested for his intelligence caution and also his ability to understand. And I’ve gotten 2 confessions knocked out! About using because every college has teaching and almost every one of em’ have a teaching program and they do testing and they, they can test his intelligence, ability to understand so on and so forth. And they’re pretty viable witnesses.
You’ve got to spend some time with them, teach em’ how to testify but it’s a very, very viable way to find inexpensive experts. You know our judges in Abilene; well I’m going to let you have five hundred dollars well Lord in a baby shaking case! You know that’s one appointment with the pediatrician.

So you have to, kind of be, just thinking outside the envelope. Talking about getting an expert! I mean an investigator, excuse me! If you can get your judge to do it, you ought to get one if you need some investigation done and let me give some tips, do we have any judges in here, okay. Let me give you some tips, on the way that you can show the judge what it costs for the prosecution and when that judge only wanting to give you five hundred dollars for an investigator. And I’ve done this. I filed a formal motion request for an appointment of an investigator! And I subpoena the district attorney, I subpoena the chief of police, I subpoena the sheriff depending on where the offense is being investigated. I also subpoena the chief detective and I also subpoena the prosecutor attorney that has the case and I prove up how many hours they’ve worked on the case as opposed to, what they’ve been paid! What is their salary? And what that figures out in money. It’s nothing in a case when they figure the man hours in to it. Just a metal of the road type of felony…

It’s nothing for them to have twelve fifteen thousand dollars’ worth of tax dollars that they’ve expanded and you know they’re trying to put a limit on to what you need. I don’t think you should abuse it! But you know, the plain field ought to be leveled. Let’s say that you’ve completed your investigation. After you’ve completed your investigation, you need go talk to your client or have your client come in. And at that point of time, this is a very very important time to talk with your client.

At that point of time you confront that client with the things that hurt him. If you’re forcing enough to have the statements, you go through the statements with him, show him where he is, what he’s got! And, but don’t hesitate to point out his good points as well. Sometimes you don’t have any, sometimes there aren’t any, at all. So you point out the good thing you point out the bad things.

This is the point, is generally the first place that I leave and talk to the client about a plea bargain. And I’ll ask him at this point, you know; what do you want me to do with this? You want a trial; you want me to cut a deal, what? But I want to get out of the jail? Well, so everybody wants to come out of the jail, that’s not my question. What do you want to do with this case? Well you know I might take a deal and I’ll say okay fine. Well, you know, I’ve already talked to him the first time about the range of punishment. This is secondary felony 2 to 20; you’re not eligible for probation, what kind of range can i work in. well if you have been doing this as long as I have, you know the prosecutors, you know about what you’ll get on the case and you know if he’s unrealistic what you try to do is get him a range. The minimum he would accept, the maximum he would accept! And, I always kind of talk to him, let’s say it’s the case where I know the DEA’s going to want 8-10 years on it. And, so I just tell him, you know when the guy comes in; well I want the minimum 2 years. Well you’ve been to the pin, 1 time and you did 6! It’s going to be hard to get that. So, what I would suggest that you do is that, you know, you know you’re going to get 8-10 probably. What I would suggest you do is give me a range, the minimum. If he tells me he’ll take 6 up to maximum of 12. Try to get a range that you can work in. And you know you already got a good chance of get 8 or 10. You come back and say ; look you know I was worried that we might get at highest 12 but I got them down 8. Oh! Hey! You’re a hell of lawyer! But it’s psychology! It’s just psychology working with them! Preparing them! If he says you know; I ain’t pleading to nothing, I want a trial. Give it to him! give it to him! Go ahead get your wreck, and they’re form in here that you can use. Get your recommendation and if he won’t take the, if he doesn’t want to take the plea bargain, that’s okay! Have him sign off.

“I’m not signing off that damn thing! You’re just trying to trick me.” Okay! Fine! Not a problem. I’ll go back to the office, write a letter to him in the jail or to his house;

“Dear Mr. Jones this will confirm our conversation of such and such a day in Taylor county jail wherein you refused to accept the offer of the persecutor which was Baa Baa Baap and I explained to you that the range of punishments to the 20 and the punishment could assessed anywhere in that range!”

Send it to him. Keep a copy in your file. He’s been advised of what his range is. Sometimes in that usually with what I call problem clients! I leave em’ put em’ on the witness stand, on hearing outside before we go to trial. Say to prosecutor’s and put him up there and say; Mr. Jones the prosecutors offered you 8 years to do and you not wish to accept that is that correct? Yes it is! Have you been advised by me what the, what the range of punishment is that you go to up to 20? Yes! And knowing that risk you wish to go ahead precede the trial today? Yes! Never ever ever ever ever recommend that you’re client ought to take it. Take the deal! Don’t ever do that! I see it all the time in the halls of our own court house. The lawyers at their say; well you’re damn fool if you don’t take this deal. I’m thinking you know, that’s not your job! You explain what the risks are and let him go! You don’t have to do the time and if you’re afraid to go in a trial I tell you what , I’ll trade places with you because on the 24 I’ve got a trial; continuous sexual assault case where my client won’t plead! And there’s a four and a half hour video confession by my client. You’ve just got to go in and do what you got to do! And to me trying the unwinnable case is more fun than anything I do! And I’m going to tell you a war story.

Several years ago I had a client 2 times loser to the penitentiary, he’s passenger in a car they are going on the wrong way on a one way street with the lights off about 3 o clock in the morning. They get pulled over. They find some crack, little bitty small amount of crack in the console of the car. I mean I had nothing; this guy was a scumbag I’m sorry he was. He’s been to the joint twice, nobody could even testify for him. So, but he didn’t wanted to plead because the minimum was 20. And so, I came up with this idea. There’s a small amount of crack that was found and they had to use a large portion of it to test it. Well, so the morning before we started trial I got to the court house early and underneath every chair in the jurers in the jury box I tapped a package of sweet n low sweetener. We picked the jury we bought the, I guess the morning of the second day of the trial. They bring the chemist in and the chemist comes in, they have that kind of little table in front of it where he sits there. He proves of his stuff I mean, the stuff he left in the bag, he just could barely see it.

Of course he admit they’d use some of it in the testing and so on and so forth and I forget what it was but let’s say 0.0025 of a gram or something like that. Anyways long story is I take the chemist on to cross! And I say to him; Mr. Smith, I, I don’t, I was raised on ounces, pounds! I don’t understand grams milligrams. I just don’t have the concept and you have used some of this to test and the jury can’t really see it, so I reach into my pocket and get out the packet of sweet n low walk up to the court porters and mark it as defense exhibit # 1 and they mark it and I says Mr. Smith I show you defense exhibit # 1 and I say; Can you identify that? And he says,” yes I can” and he says,” It appears to be a package of artificial sweetener”. I said; does it have net wait on it. “Yes it does its 1 gram” and i said; okay! I’d like you to tear that open and pour it out there on that table in front of you! And then take my pocket knife and I can’t remember at what point, I think it was like 0.4 gram or 0.04 gram that my client was charged with. And I said; I want you take my pocket knife and just kind of show us approximately. He said, “Well, it won’t be exact”. I said I do understand but just so, you know some of it has been destroyed in your testing so what I want you to do is kind of show us how much do you think it would’ve been before you tested, so he does and the DEA’s wondering what the heck is going on but he does so and I say thank you very much and that’s all I ask you.

Well I got the judge to charge us on possession and of course you’re well aware I’m sure, that under possession you either exercise care custody and control over the object or it had been there for sufficient time that you should’ve known! It was there! And you know, I proved up through cross examination that the car was not one of my guys car, it was his buddy’s sister’s car or Da Da Da Daa. And they had just, you know they were arrested that night! Anyways long story short, the DEA gets up and makes kind of preferential argument and I get up and argue the charge! And I said; now, you each promise me it ruled out that you make the government follow the law and prove every element. Now the court has taken their time to define, possession. Either [inaudible] was there or it had been there for a sufficient time that he should have known. Well show me the evidence where they, where my client knew it was there! They didn’t have any. Ok, so then we thought back on the other aspect that he knew or should have known it had been there for sufficient time. I said; if you follow that. If each one of you in the jury box reaches under your chair, each one of you has been in possession of 1 gram of sweet n low for the past day and a half. And they each did and you know you could you know, I said; we each were there for day and half.
[Audio Ends]

Francisco Hernandez

Author Francisco Hernandez

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