This is Why I Fight....

Just because a judge legally can do something doesn't mean it's the right and/or moral thing to do.  I will continue to give it everything I have to fight for the undereducated, the poor, the oppressed, the forgotten.

It was one of those days.  Granted "those days" usually occur on Mondays, but anyway...

This is Why We Fight

Is It Too Much to Ask for a Level Playing Field?

One of the challenges, to put it very lightly, in representing indigent clients is getting judges to allocate sufficient funds for an expert and/or an investigator.  The State has at least one investigator assigned to each court and on salary.  They work for the prosecutor's 40 hours a week on whatever issues the prosecutors deem necessary of attention.  The prosecutors usually aren't at a loss for experts either as it's usually the medical examiner, detective, or nurse who drew the client's blood who are state's witnesses.

The challenge in representing indigent defendants effectively is convincing the judge to allocate enough money so that we can hire our own expert to contest the findings and conclusions of the state's experts.  When you balance a person's liberty with a a few hundred dollars you'd think that a person's liberty wins out every time.  You might be amazed at how often it does not.

And it doesn't make sense in this system why a person's liberty interest doesn't weigh more heavily than spending some money.  It's not as if the money comes from the judge's pockets.  After all, they are salaried employees who get a check regardless of whether or nor or how much money they authorize for a defense expert and/or investigator.

I can tolerate being underpaid.  What I cannot and will not tolerate is a judge cutting me short on expert and/or investigator funding when I believe it's necessary to an effective defense.  In some cases and with a good lawyer who preserves error, it's a reversible due process violation not to provide sufficient funding.  Therein is the irony of it all.  It's more cost efficient to just allocate sufficient funds for an expert and/or investigator at the outset rather than doing it wrong, having it reversed by the court of appeals, and getting to do it all over again...the right way. 

Latest Argument Before the Second Court of Appeals

I argued an interesting case on Tuesday before the Court of Appeals for the Second Judicial District of Texas in Fort Worth.  It's posted here for your listening pleasure.  It was a driving while intoxicated case with issues regarding the sufficient of the evidence, the trial court's ruling on a motion to suppress evidence, and defining the term "operate" in the jury charge.

Arguing at the Court of Appeals is very different than trial work.  The Court of Appeals is much more formal and structured.  There is not a jury.  Argument takes place in a courtroom behind a podium and in front of three justices.  If you are the appellant, as I was in this case, then by local rule, you have 15 minutes to argue.  There are small green, yellow, and red lights to warn you when you have used up certain amounts of time and when you have to stop speaking (even mid-sentence you have to stop if the red light comes on).  Then, the appellee, the state of Texas in this case, gets 15 minutes to argue.  Finally, the appellant (me) gets 5 minutes for rebuttal argument.  The justices can (and do) interrupt at any time to ask questions about case law, the record, anything really.  One of the most frustrating things for me is that you don't get a ruling right away.  It takes several months for the court of appeals to write and issue an opinion on a case.  

Arguing before the court of appeals is unlike anything I've done.  You have to be on your toes at all times, and it is imperative that you know the pertinent case law and record inside and out.  I believe being an appellate lawyer makes me a better trial lawyer.  I know exactly what to do and how to preserve the record at trial, and I believe being a good appellate lawyer gives me credibility with the trial court judges when I am arguing the law.

Happy listening, and I will be sure to post when the opinion comes out - fingers crossed!