This is a common question for potential clients to ask.  Because our criminal justice system is an adversarial one, the question seems natural.  After all, when two sports teams compete, there’s usually a clear winner and a clear loser.  Why should lawyers butting heads in a courtroom be any different?

My most recent jury trial illustrates why it’s difficult for attorneys to reduce their trial outcomes to a simple win-loss record.  Take a look at the video evidence…

This 90-second brawl left my client facing 6 felony charges: 2 counts of Assault on a Public Servant, 2 counts of Taking or Attempting to Take a Weapon from a Peace Officer, Possession of a Controlled Substance (cocaine), and Tampering with Physical Evidence (for trying to toss the cocaine on top of the convenience store).

The District Attorney’s offer to settle the case was for my client to plead guilty to the 2 counts of Assault on a Public Servant and take a 5-year prison sentence in exchange for a dismissal of the remaining charges.  We opted to let a jury decide.

There wasn’t anything I could do about the cocaine in my client’s pocket, so he pled guilty to that in front of the jury at the outset of the trial.  This move sent a signal to the jurors that they could trust me to tell them the truth about the case, even if the truth was painful.  Then the prosecutors told the jury that my client was detained in front of the convenience store for the heinous offense of…jaywalking.

On cross-examination, I was able to get the officers to concede that the way my client crossed the street didn’t really meet the legal definition of jaywalking.  The officers also had trouble remembering what happened to the first Taser after they shot my client with it.

The end result was that the jury found my client guilty of misdemeanor Assault and the Possession of a Controlled Substance, just like I asked them to.  The jury also found him NOT GUILTY of the remaining charges, just like I asked them to.  And my client and his family were thrilled with the outcome.

Doesn’t that sound like a “win” to you?

This article from Texas Lawyer writer Miriam Rozen reinforces the point that the life you’re exposing to all your “friends” can and will be used against you in a court of law.  Sadly, the article points out that some lawyers (who should know better) can’t seem to avoid getting caught up in the mix.

One of the first things I do in cases where there is a person claiming to be a “victim” of a crime is a little light cyberstalking.  It is amazing what you can find out about a person online, but nothing is better than having a victim or hostile witness in a criminal trial confess the entirety of their sordid life on a social media site.

Case in point:  A couple of years ago, when MySpace was the hottest thing, a client came to me charged with Aggravated Assault with a Deadly Weapon.  A bar fight broke out involving several female acquaintances of the members of a local collegiate athletic team.  During the melee, one of the ladies sustained a deep cut which she attributed to my client smashing a beer bottle on the table and using the jagged remains to slash her.  Using information we gleaned from her MySpace page, we were able to show that the “victim” (who listed her employment as “Grade A Bitch” and who repeatedly referred to herself as a “thug”) in fact had a considerable axe to grind against my client.  This, in combination with certain physical evidence, supported our position that the “victim” cut herself on broken glass while fighting on the floor.

The difference?  As originally charged, my client faced 2-20 years in prison for aggravated assault.  Thanks to MySpace, she paid a small fine on a ticket for Disorderly Conduct-Fighting in Public.

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Bristol Myers is a Criminal Lawyer in Austin, Texas, and is Board Ceritifed in Criminal Law by the Texas Board of Legal Specialization.

 The remainder of this father’s life will be lived as an apology to his son.  What is gained by prosecuting him?  Will branding this man a criminal make you a more conscientious parent?  The Williamson County District Attorney seems to think so.  He’s apparently dissatisfied with the fact that the Austin Police Department took time to investigate the case before referring it for prosecution.  He thinks getting Mr. Hu charged immediately would “send a message” about child safety.

Do we really need parenting tips from the Wilco DA?  And is it fair that his grand message comes at the price of imperiling this poor father’s freedom?

At some point every one of us has been just as culpable as Mr. Hu.  Parenting is no easy task, and the risk of harm is everywhere.  A baby gate left unlatched at the top of the stairs while hauling down a load of laundry, an electric socket without an outlet cap, visiting the un-baby-proofed home of a friend or relative…all it takes is a split second for the worst to happen.

Our law says the job of Texas prosecutors is to seek justice, not convictions.  Justice in this case should be tempered with mercy, and this father should be left to grieve in peace.

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Bristol Myers is an Austin Criminal Defense Lawyer.  He is Board Certified as a Criminal Law Specialist by the Texas Board of Legal Specialization.

It was just about the worst kind of DWI: the client wrecked into a pole and blew over twice the legal limit.  The airbags had deployed, so I figured I might be able to argue the high breath score was from particulate matter inhaled by my client during the collision.

“I heard you got a 20-minute Not Guilty verdict from a jury on a DWI with a .17 blood test,” the client said.  “Yes,” I replied, “but every case is different.”

Indeed, the cases are different.  Before, I had a client who looked perfect on the video, and now I had a client who (according to the police) failed the field sobriety tests miserably.  And there was no car accident in the other case.  What to do?

I filed a motion to suppress the breath test and the field sobriety tests and set it for a hearing. At best, I figured that the hearing would be  a good warm-up for trial: a chance to see how the cops acted on the witness stand.  Then the unexpected occurred.

The first officer on the scene testified that he didn’t notice any signs of intoxication in my client.  He said my client just seemed shaken up from the accident.  The second officer (the one who said my client failed his field tests so badly), well, he fell apart under my cross-examination.  Did my client appear obviously intoxicated at first glance?  No.  Did the officer see any signs of intoxication before administering the field tests?  No.  Had he talked to EMS about my client’s possible injuries? No.  Did it ever occur to him that my client might be injured and not drunk?  No.  And so it went…until the judge granted my motion to suppress: no field tests, no breath tests.  The proseuction now has no evidence to use at trial, and the case will have to be dismissed.

The lesson?  Every case is different.  This “bad DWI” was different from most other collision/high breath test cases I’ve handled.  The difference came from the witness stand, and it would have never been discovered had my client pled out and denied me permission to be aggressive.

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Bristol Myers is an Austin Criminal Lawyer and is Board Certified as a specialist in Criminal Law by the Texas Board of Legal Specialization.