Reflections from the Trenches: “How Can You Defend Criminals?”


In 2004 I was appointed to represent an indigent defendant in Williamson County charged with Theft From Person, a State Jail felony.  We’ll call him “Victor” for this story.  Normally a State Jail felony is not too much to fear because it is the least severe of the felony charges. A 4th degree Felony will carry a minimum 6 month sentence and maximum 2 year day for day sentence.  However, my client’s case was more complicated by his prior Theft From Person conviction.  In fact the prior incident was primarily the reason he had been charged with his current crime of Theft From Person. Although his prior theft from person was almost 2 years old, the facts surrounding that case bore a striking resemblance to the facts in this case.  An African American man approached a woman at night while she was opening the door to her vehicle. The man reached into the car and stole the woman’s purse, then fled the scene before the woman could react or had realized what took place.

The thing that I noticed immediately in this case was just how amazingly weak the evidence was. The evidence was completely circumstantial, except for 1 piece of evidence: the identification of the alleged thief by the victim. One year after the theft, the victim identified Victor as her perpetrator. The victim was a Korean immigrant who picked out my African American client from a line-up after witnessing him for only 1-2 seconds from a seated position in her vehicle as someone snatched her purse from her lap, all this happening at night with bad lighting.

There were no leads on the first case for an entire year, until a police detective in Austin who was searching for leads in his own case, came across the Williamson County cold-case. The Austin detective shared with Williamson County detective’s information on my client’s case, including the facts that the Austin detective had caught, charged and convicted my client one year earlier on facts that were strikingly similar to the open Williamson County case.  So one year after the crime, a Williamson County Detective presented a supposedly non-suggestive line-up of African American males to the Korean victim. The victim who only had a hurried side glance of a black male for 1-2 seconds 1 year earlier identified my client Victor as her perpetrator.

A Williamson County magistrate used the evidence of the stale lineup identification and a prior conviction for a crime with a similar fact scenario from another country to determine there was sufficient evidence to justify probable cause for a warrant for my client. There were no fingerprints, no pawned items, no license plate number or identifying scars or tattoos,…..just the stale identification.

Victor was a Veteran, a former Army Sergeant long since honorably discharged.  He had hit some hard times, got addicted to drugs, and went through a dark 1 year period where his addiction led him to stealing.  He admitted to me that he committed the prior theft, as well as a few others, however he stated that at the time of this theft, he had already started to become sober and was living with his sister.  Victor said he was positive he didn’t commit this crime. He said if he had, he would do his time. However, this time he adamantly denied committing the crime.  His sister would confirm that he was living with her, but she had no proof he was in the house the night of the theft. A full year had passed and she did not recall memories of that night. Unfortunately, no other evidence of Victor’s presence in the house that night was preserved.

Now the Williamson County D.A. at that time was headed by the then-notoriously-tough, later-infamously-known (thanks to his protests to the retests of the DNA samples in the Michael Morton innocence efforts), and now-officially-un-elected John Bradley.  His prosecutors had been given their marching orders and tough sentences were to be dealt. Plea bargaining discussions were a painful and seldom productive affair.  However the hard-nosed prosecutor on this case, who had many times before given me much worse recommendations on much lighter and less serious charges, came out of the gates with an uncommon, and almost unbelievable (in that time and place) minimum sentence (6 months in State Jail) on this repeat felony offender.  I knew right then what the prosecutor knew. This case was a joke from an evidence standpoint.

On top of that my client maintained his innocence.  However neither the D.A, nor Victor wanted to budge, so the case was set for trial.  I began preparations to attack the credibility and legality of the lineup identification. My client’s motions to suppress were filed. After 4 months in jail, the D.A. told me he would offer my client time served (allowing him to do County Jail time on a felony under §12.44(a) of the TCCP). Victor turned it down. Up to this point in time, I had my suspicions that Victor was not being totally honest. However, when an incarcerated man turns down the chance to walk out of jail that same day on a credit-for-time-served plea bargain, because he wants to stay and fight on principle for his innocence, I take notice. In these types of incidents, nine times out of ten, you have yourself a truly innocent man.  This wasn’t a guy with no priors; this was a guy with two felony convictions already. Ninety days jail on a repeat felony offense in Williamson County in 2004 was manna from heaven!  Was this too good to be true?

Emboldened by Victor’s demonstration of character and steadfastness in his proclamation of innocence, I began to prepare harder, and really push the D.A. to dismiss the case.  The D.A. knew the evidence against Victor was weak. He even acknowledged there was a chance the identification of Victor could possibly be incorrect, but he wouldn’t dismiss. He had his marching orders. In fact not only did he not dismiss Victor’s charges, he added that if we did proceed to trial he may try to re-indict on Robbery (for attempted use of force) and reminded me the enhancements available for punishment due to my client’s priors.

The D.A.’s threats did not intimidate me. It was standard for prosecutors to bluster and saber rattle as any good litigator would to provoke a settlement.  But I had to go back and share the conversation with my client as I was obligated to do. However, I really tried to soothe any worries or concerns this new threat might cause him. I reminded Victor to focus on his innocence, the weak evidence, and the high burden of proof that must be met.  But something happened in the following month before trial that I couldn’t appreciate or really understand.  Maybe because it was I was not in jail every day, maybe it was because I had more faith in the justice system than he did, or perhaps I had more faith in my trial skills than my client had in me.  But a few weeks before our trial date, Victor decided to take the State’s offer of back time (that was still on the table, and an offer he could have plead to and been out of jail 2 months ago). He plead guilty to a crime he told me he didn’t commit, and to this day maintains he didn’t commit.

Victor maintained his innocence throughout the whole process. He had a great defense and paltry evidence against him. He had already stayed in jail months longer than he had to because he refused on principle to plea to a lighter sentence. So, why would that guy plead guilty on the eve of trial?

He told me why: Because he was scared to death that a black man in Williamson County with a prior record would not get a fair trial. He was scared to death that he would end up with a jury that looked nothing like him. That someone would slip on the jury with unknown prejudices, stereotypes, preconceived notions, biases, and judge-first-ask-questions-later mentality, that he would be found guilty the moment they saw him, before the 1st witness was called.  He had a little girl, a new sober life he had started, and he didn’t want to risk missing out on it and potentially getting years and years in prison for something he didn’t do.

Inevitably every criminal defense attorney will be asked by a friend or family member: “How can you defend criminals?”  How could I defend Victor?  How could somebody defend a murderer like Michael Morton?  When do you really know someone is guilty?

Fittingly, one of my favorite stories from the Bible is the story of the adulterous woman brought to Jesus for judgment in the gospel of John, Chapter 8.  The story says the woman had already been caught in adultery, and her accusers wanted to see if Jesus would condemn her to death by stoning under the Jewish law.  They were expecting Jesus to act as Judge and jury, but instead, Jesus surprised them by being a defense attorney.  His now famous response of “Let any one of you who is without sin be the first to throw a stone at her” was perhaps the first legal argument by the defense in a sentencing hearing ever recorded.  In the bible, the devil (Hebrew Ha-Satan) has traditionally been translated as “the accuser” or “the adversary.”(Job 1:9-10, 2:4-5; Zechariah 3:1-2;  The Oxford dictionary of the Jewish religion (2nd ed. ed.). New York: Oxford University Press. p. 651.)  In the book of Revelations a vision depicting the defeat of Satan by God’s Angels refers to Satan as “the accuser”.(Revelations 12:7-12).  Prosecutors may not appreciate the ironic twist of titles between what some would deem as clear sides of good and evil, right and wrong, prosecutor and criminal, but I take solace in knowing that I share something in common with Jesus in my profession.

There must be one who stands between the accuser and the accused.  Jesus stood between her accusers and her judgment.  Defense attorneys stand in between the accused and his accusers.  We sometimes pursue acquittal, sometimes mitigate a sentence, but hopefully always help facilitate justice and mercy.  Sometimes justice means acquittal, and sometimes it means a guilty woman gets to live another day, with the hope she will choose a better path.   Sometimes it will mean the woman just looked guilty, but was actually innocent.

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