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The Making of a Litigator

Fifty-five minutes.  That’s the amount of time that I spent on “jury duty” (excluding the fact that I had to get up early, drive downtown and find parking—which as it turns out, is not an issue IF you get there early).

I did have to go through the metal detector and (of course) I ‘dinged’ and so I had to then get wanded.  My laptop and purse went through the x-ray, but there wasn’t a line or even a crowd like I’m used to at the district or criminal court houses I’ve frequented before.  AND, I didn’t have to take off my shoes.   So that’s a plus.

There were 26 of us called and by show time, 24 were present and accounted for.  When I got there and signed in, I noticed that I was “Juror #24.”  At that moment, I knew I was off the hook.  The fact that I am nearly a law school grad, currently work for the DA in Tarrant County, and previously worked for the City of Austin was irrelevant.  Why?  This was a municipal trial requiring only a six person jury.  I was three rows back and knew even if both sides used all their peremptory challenges and there were a handful of additional legitimate challenges for cause, I was way too far back.  So I quickly lost interest. And, sure enough, we were released after a short voir dire.

About all I gleaned from the voir dire on the case was that it was for a speeding ticket and the cop showed up.  A lot of times the Defendants will play the odds that the cop won’t show up and then they can win by default.  Not this time.  As there were no other witnesses, it was he said/she said.  Also, Defendant was appearing pro se and the City was represented by counsel.

During my summer with the City we previously visited Muni court and watched other prosecutors handle speeding cases.  From that experience I know that the APD doesn’t use those old-fashioned radar guns that send out doppler waves to determine the speed of an object.  Instead they use a laser radar gun.  This allows the cop to point the laser at the exact license plate of the car they are trying to clock.  There is no “Maybe it wasn’t MY car speeding.”  Nope…these guns are calibrated before and after every shift so the officer knows they are in working order and they hit the intended target with pin point accuracy.  Although the judge said we could sit and watch the trial after we were dismissed from the panel, I pretty much knew how that was going down.

On one hand I thought of all the time, effort and money spent on a jury trial for this one little ‘ol speeding ticket, but then again, the right to a trial by jury is guaranteed in the United States Constitution and obviously the Founding Fathers thought it important enough to ensure that we Americans would always have this right.  So, more power to Ms. Defendant for making the state meet its burden and exercising her Constitutional right to a jury of her peers.   Besides, how else are new lawyers supposed to get trial experience?

Speaking of, my weeks at the DA’s office are swiftly coming to a close.  After this week, I have two more to go.  I met with the Deputy DA, Jack Strickland this week and we discussed what all I’d been doing since the last meeting and what else I had yet to do.  I asked about getting into a trial, or two, before leaving.  He suggested I try the Misdemeanor section if I really want to get into the courtroom.  So I emailed the division chief, Richard Alpert to see about making that happen.  Fingers crossed!

Meanwhile, I continue to absorb as much as I can every day I’m there.  I have tremendous respect for the Tarrant County DA’s Office and all the attorneys who have shared their time and expertise with us over the course of the semester.  I am now a firm believer that law schools need to provide more clinic opportunities to their students.  Getting in, rolling up your sleeves and working a case is way more valuable than reading about it. Doing the work alongside a great attorney-mentor is even better and this has been my experience in the Criminal Prosecution Clinic.

My only regret is that I didn’t get to spend as much time as I would have liked with one of my supervising attorneys, Christy Jack.   I spent that memorable day back in January when we had that bizarre death penalty voir dire and a few other hours here and there, but I have the distinct feeling that I missed out on a lot by not having her around.   My immediate opinion of her was that she is smart, articulate, and funny.  I soon learned that she is also a courtroom rockstar.  She’s been back almost two weeks from her marathon death penalty trial in Johnson County and the office dynamic is completely different.  There’s no doubt that she’s one of those people to whom others are drawn—a natural leader.

I did one assignment for her on that Johnson County case:  preparing a notebook of testimony offered by the Defense’s expert witness in other cases.   She asked me to go through the testimony and mark when the state made a “point” in the cross.  At first the assignment didn’t make complete sense to me and I asked questions which she patiently answered.  As I started reading the transcripts I saw what she was doing.  She was reviewing past cases and looking at what lines of cross examination worked and didn’t work on this witness.  She was de-constructing his testimony to construct her own cross.  It was brilliant; lots of work, but brilliant.  THAT is how you prepare a case.  I have no doubt she knew that witness inside and out by show time.   Seeing an established attorney put in this level of work on a case does wonders to inspire the others around to work just as hard.  I know I wanted my notebook to be flawless for her and she came back later and said that it had been very helpful.  Knowing that  your boss is putting in as many or more hours than you builds loyalty and support unlike anything else. It’s teaching by modeling.

I would love to learn to be a trial lawyer from Christy.   And if those defendants knew what they were up against, they’d take the offered pleas.  Seriously.   I know I sound like I’m just in awe of her, and well, I guess I am.  Being a DA is hard enough without adding law students to the mix and carving out the time and patience to explain with particularity what’s going on and what we can do to help.  I hope that I can take all of what I’ve learned this semester from this opportunity and make a positive contribution wherever I go.  Clearly, I have been working with the Dream Team.

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Juries Galore

As my last semester of law school is winding down there seems to be more and more to do.  I am going to have to work some extra hours this month to make the 180 hours I need for my Criminal Prosecution Clinic, but that’s fine.  I’ve asked, and my supervising DA has agreed to look for, anything and everything I can do that might give me an opportunity to “speak” in court or in a proceeding.  It’s been difficult to get much court time, because so many cases plea out.  I’d heard that before, but after being at the DA’s for nearly a whole semester, I’ve seen it first hand.

Anyway, I presented twelve more cases to the Grand Jury last Thursday, but didn’t get to stick around for the results because I had to dash out to class.  I think they were pretty straight forward cases:  thefts, drug possession, forgery, fraud and prostitution.  Sigh.  While many may plea out, the cases to prosecute never run out.  I’ll find out Tuesday how we did.

Meanwhile:  tomorrow I have been summoned to report for JURY DUTY at Austin Municipal Court.  I think it’s pretty funny that they would call me at this juncture in my life.   I was originally called to report on a Wednesday and told them that I was out of town on Wednesdays, so they moved me to a day when I am in town.  Thanks for that!

I pretty much know that I’m driving downtown for nothing.  I can’t see a Defense attorney taking me for a case.  Prosecution would likely be fine with me on their jury, so if I were them, I’d make Defense use one of its challenges.  Of course, they make these decisions based on the information they get about you on a questionaire, not on who you are.  Jury picking happens rather rapidly, so I’m thinking alot of the decisions they make are based on balancing risk and gut feelings.  Which man or woman would be “worse” on the jury based on the information you know and anything you can get out of them in voir dire—that’s the game.

Simply based on what I do, where I’ve worked and ahem, where I’m working NOW, my guess is that a Defense attorney would want no part of me on their jury.  But maybe I’ll be wrong.

The plan for tomorrow is to get up early, go by Starbuck’s, and get ahead of the traffic going downtown.  I’ve scoped out the parking situation via Google Maps and I know exactly where I’m going.

I plan to dress professionally, but not like a (future) lawyer.  I’m kinda bummed that I’ll have to go through the regular line, get my stuff x-rayed and have to take off my shoes.  It sure has been great to just breeze into the Tarrant County Courthouse with my DA badge.  Membership has it’s perks!

We’ll see what tomorrow has in store for me…

 

 

 

Slam, Bam…Thank you, Grand Jury

Got some studying to do tonight, but just had to report back:

Presented my two cases to the Grand Jury  today; both were aggravated sexual assaults on children.  (“Aggravated” because of the age of the children at the time of the incidents—5 and 6 years old.)  I reviewed with the Grand Jury all the facts of the case I had pulled together from our records and gave them everything we had.   I sat there in front of 12 strangers and one DA and detailed all the sad, nasty details of what these babies experienced at the hands of grown men.

It occurred to me that these kids have experienced things sexually that some adults haven’t.  Makes me sick.  At the end of my presentation , I asked that they return a true bill  on both cases.

Maybe five minutes after the DA and I walked out, we got our true bills.  All we needed was 9 out of 12 to go forward.  I got all 12.

Guess I know two people whose lives just went from bad to worse.  Can’t say I’m going to lose much sleep.

Nite.

My Small Contribution to Homeland Security

Yesterday, I opened the Sunday paper and discovered that I made the front page.  Ok, if you read the article you won’t see my name anywhere.  BUT, make no mistake: I am very much at the heart of this article.

Spring Break is the time of the year that the media has dubbed as “Sunshine Week.”  More than at any other time of the year the media focuses on advocating increased governmental transparency under federal and state laws.  For the duration of Sunshine Week many different articles about information transparency run in newspapers across the country. The media is ALWAYS going to want more transparency.  For them, there is no reason to withhold ANYTHING from disclosure, even with a valid legal basis.  The media will often claim, in subtle ways, that the government is being disingenuous.

For instance, an article might say that the governmental body “refused to release the requested information,” but it doesn’t go on to explain that the reason the agency refused was because the request sought something that was confidential by law which made it  illegal to release that information.

The devil is in the details, but this is an important distinction:  It is the difference between alluding that the state agency is stone-walling and the reality which is that it was, in fact, merely complying with the law in its handling of the request.  The latter is quite obviously not as savory a story for the media.  Who wants to read an article about a state agency doing its job?

Open government laws (at least in Texas) are double-edged swords that put governmental entities between a rock and a hard place.  Texas’s laws provide both criminal and civil penalties against agencies and their employees that either fail to release “public” information OR mistakenly release confidential information.  This area of the law is indeed a minefield to navigate.  Even four years away from my pre-law school job hasn’t dampened my fervor and advocacy for the importance of using common sense in handling issues of governmental transparency.  I think that this mindset is what made me so successful at my old job.

As this is a topic of great interest to me, I read any Open Government articles in my local newspaper with a critical eye often catching sweeping generalities that the media prints as fact, when the reality is often very different. Sunday’s article was an especially touchy issue for me because work that I did was at the very beginning of this particular debate.  The article focuses on the use of Texas’s Homeland Security Act (“HSA”) as a basis for withholding information related to “critical infrastructure.”

The article begins by highlighting a 2010 open record request by local residents of the Birdville school district (in Tarrant County) who were concerned about athletic spending inequalities among high schools.  The requestor in that case asked to access blueprints of one school’s athletic areas.  The agency sought a determination from the Texas Attorney General (as required by law) and pointed to the HSA and its provisions protecting critical infrastructure.  The Attorney General agreed with Birdville.

Because the documents at issue are blueprints, I know that inroads I paved back in December 2003 are in play.  If my legal brief on this issue wasn’t the first, it was certainly one of the very first in Texas.  I know this because when I was researching how to craft my legal brief to the Attorney General back in 2003, there were exactly two previously issued HSA opinions that offered any insight as to how it should be done:  One was successful and the other was not.  Neither of these dealt specifically with a request for blueprints, so I was on my own with regard to these types of documents; my analysis set the bar.

At that time, the Texas HSA had only been law for a few months, so there were precious few test cases.  We had new words like “critical infrastructure,” “terrorism,” and government “assets” that were as yet undefined or under-defined in state law.  Getting the Attorney General to agree that the Texas HSA applied to a request for “blueprints” meant that I had to show how these documents met the state definition of “critical infrastructure” and also meant proposing that Texas adopt federal definitions for other terms as yet undefined in our state law.  I had my work cut out for me and I gave it all I had.   While the documents requested in my case were definitely worthy of protection, I also saw future implications that rippled way into the future:

Consideration should also be given to the domino effect that will follow if the requested documents are released despite the arguments presented.  Should the University fail in its attempt to secure the [sic] blueprints, it would also compromise its building blueprints, and set a precedent for the release of the blueprints of any other state agency that may have a similar request in the future.

In a recent statement regarding the nation’s current terror alert, U. S. Homeland Security Secretary Tom Ridge stated, “We will not broadcast our plans to the terrorists.  But extensive and considerable protection have been or soon will be in place all across the country.”  By asserting the confidentiality of our [sic] blueprints and our critical infrastructure, the University of Texas at Austin does play a vital part in securing this city and  state from domestic terroristic threats.”

My position, as articulated in my 2003 legal brief above, has not changed.  Clearly, as it is now 2012 and the issue of whether blueprints are protected by the Texas HSA is still a front page debate, I was right.   Thankfully, the Attorney General agreed with me then, and continues, for the most part, to maintain this position even today.

I say, err on the side of caution. Use your common sense when asking the government to release potentially sensitive information.  Most times, the governmental body is not concerned with the originating requestor receiving the information, it’s the fact that once the information is out there, we have no control over how else it’s used or to whom it is disseminated.  This is why you have to pull out all the stops the first time; failure is not an option.

I’m so proud to have had a central role in shaping this area of the law here in Texas.  I know I did an honorable job and that my goal was always to do the best I could for the citizens of this state.  I’d do it all again—the exact same way.

The Good, Bad and Ugly of Domestic Violence

I am so loving my “job” at the DA’s office.  Before getting in and trying it out, I hadn’t ever thought about being a trial lawyer/litigator, but the more I’m there, the more I can see it as a career path that would satisfy every facet of who I am.

Of course, the initial draw for me is that working for a governmental entity is familiar and comfortable.  Including this placement, I’ve worked for multiple state agencies, a municipality and now a county government.  Clearly, I know the environment in which I fit, but what has surprised me is how exciting it’s been for me to be in and around the courthouse and judges and lawyers.  These people roll their sleeves up daily to crank out the work that shapes the legal landscape and resolves societal issues one case at a time.

So far I’ve not done anything too earth-shattering:  drafted certain state’s motions, researched defendants’ criminal histories, drafted enhancement notices to  defense attorneys, sat in on a victim interview, watched plea bargain negotiations and portions of direct and cross examinations of witnesses in court, prepared trial notebooks and grand jury summaries.  But, what I have done a lot is talk to the attorneys and ask questions.  This is by far one of the most valuable aspects of going behind the scenes in the DA’s office.  I know that the goal is to get us to take more active roles in the weeks to come and ultimately getting us into a trial as a student attorney.  I am terrified and exhilarated all at once!

BUT…some of what I’m seeing at the DA’s office does leave me with more questions than answers, though.   I guess they forget that an outsider’s perspective is different from the one they’ve developed over time.   For example, I recently worked on a case we were prepping for trial (domestic violence) and after having read through all the file I had my mind set that this was going forward.  Then, on the day the case shows up on the docket, the IP (injured person) is there in court stating that she wants to drop the charges.   She’s gone to the DEFENDANT’s attorney and signed an affidavit stating as much! 

I am quietly stunned.  I read the reports, more compelling, I saw the pictures–those sad, sad pictures, were burned in my head.  While part of me wants to grab this person by the shoulders and yell, “Why??  Why??”  the only thing I can do is sit back and observe how the ADAs (Assistant District Attorneys) handle this.  Turns out, this is “normal.”  In fact, more often than not, this is the result of many more domestic violence cases than you would think.  That blew my mind.

There must be a point when doing that job you realize that  you can’t save everyone.  Once you accept that, you just have to let it go and not carry that around as your own personal baggage.  This is a painful lesson that I as a baby student lawyer am just realizing.  It’s kind of sad.  There is part of my mind that stubbornly wants to hold onto the fantasy that I can be THE person that makes the IP see the light that nobody has been able to show her  yet.  The other part of my brain, grounded in reality, already sees the writing on the wall.

As I sat there quizzing the ADA’s on this crazy dynamic between IPs and their abusers, that they (the ADAs) see ALL the time, it slowly sank in.   The frustration was evident in their body language and in their voices.  They are trained to right these wrongs and seek justice for the victims and when those they are charged with helping reject that help, what are they supposed to do?

I should point out that Tarrant County has a “No Drop” policy pertaining to domestic violence cases.  This means that just because the IP gives a statement to the defense attorney agreeing to drop the charges, doesn’t mean the State will agree.  If an IP wants to drop domestic violence charges they are required to attend a 4-hour course offered by SafeHaven  and then return to talk to an ADA about why they want the charges dismissed.

First off, I think if I were an IP and had to sit through a 4-hour lecture about the statistics of domestic violence victims I’d not be able get out of there without something “clicking” in my head.  But the IPs happily agree to jump through whatever hoops the State puts in front of them just so the charges get dropped.  They go to SafeHaven and then they show up in the office ready to say whatever it takes to the ADA so that everything will just go away.  I sat there and listened to one IP come up with one illogical reason after another to justify why what she initially reported as domestic violence was anything but that.  She told the police A to cover B because if they wanted to follow-up on B, they’d inevitably ask about C; therefore, D was the obvious choice.  WHAT?!?

At the end of the meeting, the ADA said she’d talk to defense counsel and see what they decided.  But really, if there were no other witnesses to the incident, what kind of case does the ADA have if the IP recants??  You see the dilemma.

After the IP left and I was able to process what happened I sat there shaking my head, incredulous.  One of the ADAs put it so poignantly:  You let these cases go, even when you don’t want to, and you hope and pray that the next time you see the Defendant it isn’t because he killed her.

A word to women:  Value who you are.  Know that you are worthy and that you are a treasure to be handled with care and love.  Define who you are and NEVER let someone tell you that you don’t deserve their best.  

SafeHaven can always use donations of time (volunteers), specific items for its clients, and of course, financial support.  Please consider sharing what you can.  If you want to donate, please do so….HERE.

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