Monthly archive

February 2013

Ethics and the Law: Hung by Mistake


George Johnson was buried in Boot Hill graveyard in Tombstone, Arizona, in 1882. His tombstone reads:


In 1882, justice was swift, but was not always fair. George Johnson had the misfortune of being hung after he was accused of stealing a horse. The good citizens of Tombstone learned too late that George unknowingly purchased the horse from the actual thief.

From the onset, it is imperative to have an investigator involved immediately to interview potential witnesses. Friend and former HCCLA and TCDLA President Ed Mallett reminded me of the very important case Stearnes v. Clinton, 780 S.W.2d 216, which chronicles defense counsel’s quandary when interviewing so-called “witnesses for the State.” As a defender, it is your responsibility to seek out and interview potential witnesses. Failure to do so is a one-way ticket to the writ, grievance, and malpractice dance.

According to Tony Freemantle in an article he wrote for the Houston Chronicle:

False convictions occur for a number of reasons: Victims identify the wrong person; prosecutors withhold exculpatory evidence from the accused; false or misleading forensic evidence points to the wrong person; defendants receive inadequate legal representation; witnesses perjure themselves.

        In May, the National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, released its first report analyzing 873 exonerations between January 1989 and February 2012. (Since then, the number of identified exonerations in the registry has grown to 1,050, and more are added almost daily.)

        In the 873 cases that were studied, the registry found the most common reasons for wrongful conviction were perjury or false accusation, mistaken witness identification, and official misconduct.

        Ninety-three percent of those exonerated were men, 50 percent were black, 38 percent were white, and 11 percent were Hispanic. DNA evidence helped clear 37 percent of them.

        In total they spent more than 10,000 years in prison for crimes they did not commit.

(Tony Freemantle, “Exonerees: The numbers are small, but the toll is immense—and growing,” Houston Chronicle, January 22, 2013)

To ethically represent a defendant, a lawyer must: 1) find all witnesses; 2) interview or attempt to interview all witnesses; 3) not rely on the state’s witness list or the witnesses listed in the offense report; 4) make a record if a witness refuses to talk to you because this can be used at trial to show the witness may not be truthful or may be hiding something; and 5) always go to the scene of the alleged crime and to all the places the client was taken to do any testing, such as a field sobriety test on a DWI case, and take scene photos or videos. Remember you can ethically tape-record witnesses. TCDLA has many resources and many good people willing to help you. The like-minded 1882 Good Citizens are still among us. We must be vigilant to make sure our clients do not get “Hung by Mistake.”