Dean Watts

Dean Watts earned his B.A. from George Washington University, and his J.D. from the Southern Methodist University School of Law. He has been a TCDLA member since 1998. He was been board certified in criminal law since 2004. He was recently selected to Super Lawyers as a Top Rated Criminal Defense Attorney. He lives and practices in Nacogdoches, Texas.

From the Front Porch: 50 Years of Rural Practice in Criminal Law

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It’s impressive that TCDLA is celebrating its 50th year. It is incredible how far this organization has come. Although I have not been practicing for all of its 50 years (although some days it feels like it!), as a tribute to this special anniversary, I will try to give some insight into where we have been, where we are, and where we will be in the next 50 years insofar as the rural practice of law is concerned.

Although TCDLA was born in the late sixties, the rural practice of criminal law was somewhat unfazed by the 60’s counterculture. Most rural communities looked upon all that hippie hype and culture with contempt. Sure, there were glimmers here and there of awakenings of the rights of the individual. However, law enforcement usually subscribed to their own brand of rural justice. I have heard stories of a local sheriff taking a suspect to an open grave and telling him to spill the beans or else. I remember one old Texas sheriff telling me about his technique for getting a Defendant to confess. He would handcuff them to a chair, then slide a glass jar with a snake in front of them. He cautioned that the snake would need to be kept unfed for a few days to get it sleepy and docile in order to stay in the jar. He said it was remarkably effective for getting confessions but lamented the one time it did not work as expected. The snake was too fresh and perky, so when the Sheriff slid over to the handcuffed defendant, it leaped out onto the guy’s lap. He screamed and jumped up so high he hit the ceiling. He crashed down, breaking the chair as the snake slithered off and hid in the jail. The Sheriff was really upset that it took so long to hunt down the snake and get it back in the jar. When I asked how he could get away with this stuff, he said, “Hell, no one ever complained.”

Trial advocacy was also quite primitive. You did not have NITA, the Trial Lawyers College, or the National Criminal Defense College. Instead, a young lawyer went to court and watched old-timers practice their craft. Their strategy often involved doing things to distract the jury so they would ignore the state’s damaging evidence. To do so, criminal defense lawyers might wear different colored socks and shoes. One might blow smoke rings or use the old Clarance Darrow technique of fixing your cigar so that the ash would be distractingly long. You might bring large boxes with eye-catching, intriguing labels to distract the jury. The boxes were, in fact, often empty.  You would hear things from lawyers like, “Calling your attention to the night of February 25th, what, if anything, unusual occurred?”

During this time, prosecutors were usually placed in office by the local powers that be. There were usually two types of justice, giving breaks to the haves and giving the shaft to the have-nots. Rural criminal defense attorneys did not usually put too much time or thought into practicing criminal law. This was usually a sideline, something to avoid unless it was a bad month, and the light bill was due. Rural lawyers were also expected to have drinks at lunch with the local movers and shakers to maintain their position at the feeding trough. Driving back to the office half-drunk was understandable. Few women practiced law in those days. Tristes with the secretaries were common without many repercussions.

This process more or less trucked along until the 1980s. Suddenly, the war on drugs ramped up the time, energy, and money spent on the criminal justice system. Cops started to shy away from giving teenagers a break by throwing their marijuana away and calling their parents as punishment. They needed convictions and photo ops to show their progress on the war on drugs, which in turn led to federal funding to keep up the good fight. Fighting communism was replaced by fighting drugs. Even the federal system was structurally changed so that citizens accused of violating federal drug laws could be uniformly hammered. In Texas, trial by ambush was the norm. Hiding exculpatory evidence to get convictions got DA’s awards and speaking engagements.

By the 90s, jurors looked like angry villagers with torches. The OJ Simpson trial was exhibit A in the public perception that the criminal justice system was broken and needed to be tougher. Judges and DA’s often followed this train of thought to keep their jobs. Asking for discovery in open court was like getting a root canal. No elected official wanted to be seen as being soft on crime. The upside was that criminal defense attorneys were forced to up their game to deal with these challenges. Trial advocacy schools and seminars started springing up. Actual trial techniques replaced criminal defense attorney gimmicks and tricks. Blowing smoke rings in court was replaced by storytelling and humanizing the citizen accused. More and more dedicated criminal defense attorneys got on board with these ideas. But huge sentences for drug cases were becoming more common and were celebrated by the press and society.

Then along came 9/11. It did not per se replace the war on drugs but gave another dimension to the fear and loathing of criminal defendants. Trial by ambush was still accepted policy. An open file policy was a gift that could be taken away by filing too many motions or giving the DA’s office a hard time at trial. You had paper files in which things could be taken out of without your knowledge. You had to put on your Sherlock Holmes hat to figure out precisely what happened with your case. This was probably when public sentiment against criminal defendants was at its highest.

But as is often the case in life, things change. Once the war of terrorism simmered down, you started hearing about cases of people wrongfully convicted of violent crimes being cleared by DNA evidence. The notion that prosecutors were angels began to crack. You would watch the news and see people freed after decades of imprisonment for crimes they did not commit. Even to a tough-skinned rural Texan, this struck a nerve. Occasionally, someone might say, “Well, maybe criminal defense attorneys aren’t all bad.” You would have been tarred and feathered if you said that a couple of years ago.

Michael Morton truly busted the cap off the unethical mindset held by so many old-school rural prosecutors. Suddenly, hiding evidence did not get you awards and a speech at a banquet. It got you sanctioned or disbarred. Once seen as a tremendous gift to the defense bar, prosecutors replaced their open file policy with free zip drives of everything in the file! Instead of hiding exculpatory evidence, prosecutors made sure they told you about it, then sent emails to make sure you got it! A complete 180 degrees from days past.

While this was going on, society started figuring out that all its problems were not being fixed by billions of dollars spent on the war against drugs. Of course, it all started in California, but as the years rolled by, this train of thought crept its way into our rural areas. Suddenly, 50 years in TDCJ for possession started to seem a harsh.

Then Covid hit. I do not need to preach to the choir about what happened then. Jury trials were as realistic as a pardon from the governor. You now had court hearings in your living room wearing flip-flops.  Extraordinary times. Before Covid, you were required to file a motion for a continuance if you wanted to postpone a hearing. Now, all you had to do was cough in a zoom hearing. Instead of the Judge saying, “Please rise for the jury!” now we heard, “Counselor, your device is muted!”.

So, what now? What is the future for the rural practitioner? Hell, I have no idea! Well, maybe some. The playing field has been leveled a little bit more. Gone are the days of trial by ambush. Technology has made it easier to handle our cases effectively. I believe that prosecutors now worry more about doing the right thing.

I am hopeful that as our profession progresses, the citizen accused is treated with greater respect and humanity. Drug laws need to be revamped, for everyone’s sake. As for our profession, we have now been promoted from being detrimental to society to being necessary instruments in the pursuit of justice. One day, we may even be knighted like barristers are in England, but don’t hold your breath! If you look like you have breathing problems, you may get tossed out of the courthouse. Wait a minute, that gives me an idea…

Tips for Avoiding Lawyer Burnout

Having practiced criminal law for over 20 years, I am sometimes asked, “Have you ever felt burned out?” My response is, “it’s not if, but when, and how many times?” If you are going to make the practice of law a lifelong career, I guarantee that you’ll be burned out more than once in your practice. Traditional advice is usually something along the lines of taking a vacation, spending time with your family, investing time in a hobby, exercise, and so forth. The problem with this advice is that it does not deal with the core problem of why you are feeling burned out. You may have a fantastic vacation only to come back to work and feel worse than you felt when you left! You may spend time with your family, but if you are in a horrible mood from work, they may want away from you! You may take up golf, but you may lose your IRA in broken clubs thrown into the water hazard! As we all know, depression can be a significant struggle in our profession. So, what can you do? Here are three tips that have helped me over the years, and I hope they will help you.

Tip #1: Avoid situations that you hate.

This may sound easier said than done… especially when the mortgage is due. However, the cumulative effect of going to court with clients/issues/judges that you despise takes its toll on you over the years. Try your best to flow around these situations. If you hate defending sex crimes, don’t take them. If you’re on the appointment list, ask not to be appointed to these types of cases. If you hate a judge, avoid going to his/her court if possible. If you despise writing appeals, don’t be on the appellate list or take appeals.

Tip #2: Become an authority on cases you like.

This is the flip side to #1. If you enjoy helping first-time offenders getting cases sealed/expunged, try to get your name out as the expungement guru. If you love the science behind determining alcohol concentrations in breath or blood, get the word out in the legal community that this your thing. Write a paper for TCDLA. Give a lecture at a college/bar meeting. Make a YouTube video and add the link to your website.

Tip #3: Seek out help.

I mean seek out legal help. If you have a horrible trial you just can’t get out of, ask a colleague you trust to sit second chair or ask a college/law student to be your assistant. He/she may only be responsible for being a buffer between you and your client. But the emotional support from having a friendly face that is on your side cannot be overemphasized. Feeling like the world is against you when the judge, jury, prosecutor, and sometimes your client can be demoralizing. If you have a legal problem that has you stumped, reach out to a friend, colleague, or TCDLA. If you have a challenging federal case, call the federal defenders in your area. Most people are flattered when you ask them for advice. It makes them feel like you trust their opinion. We all need that from time to time.

In conclusion, I hope these tips have been of some help. We are all comrades in arms and deal with the same type of problems: Austin, Houston, Dallas, Nacogdoches, and everywhere in between. Take care, good luck, and have fun!

Ethics and the Law: Nuts, the Judge Wants to See You!

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It all starts innocently enough. You are in court (pre-pandemic), doing your usual thing when the court coordinator tells you the Judge wants to see you. For those of you who got in trouble in school (I’ll plead the 5th!), you know it’s never a good sign when an authority figure wants to speak with you. You walk into chambers, and the Judge says, “So what’s going on with the Smith case?” What do you do?

Well, first, here are the rules you as a lawyer must follow: Rule 3.05 of the Texas Rules of Professional Conduct states A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure.

And here are the rules a Judge must follow: Canon 3A of the Texas Code of Judicial Ethics states that a judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the Judge outside the presence of the parties between the Judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the Judge’s direction and control. This subsection does not prohibit: (a) all communications concerning uncontested administrative or uncontested procedural matters.

In my experience, 99% of the time a Judge inquires in this fashion, it is a harmless attempt to administratively figure out what is going on in the case; is this going to be a plea or a trial. This is allowed, but you are skating on thin ice. You can fall right through unless you are careful. So what should you do? You really have three options:

You could tell the Judge everything you know about the case, including your strategies, the state’s weaknesses, etc.

You could reprimand the Judge for unethical conduct, explaining that he is on the brink of breaking the law, and if he does, you must report him to the panel judge.

You could use some common sense, don’t break any rules, and gracefully get out of the situation.

Option #1 will lead you to possible sanctions with the state bar. Pursuing Option #1 allows you to play Russian roulette with your law license. This is not a good option. Option #2 doesn’t work either because there is a good chance that you will be dealing with this Judge for many, many years. In my experience, judges have long memories, and you will make an indelible negative imprint on the Judge’s memory for as long as he remains on the bench. This leads us to Option #3: common sense.

As mentioned, 99% of the time, when a Judge asks you this question, it’s a harmless attempt to figure out procedurally where this case is going. That arguably falls under an exception to rules against ex parte communications. Treat it as such. But, to be on the safe side, bring the prosecutor into the discussion. Answers such as “Thanks for asking Judge, let me get my file and the Prosecutor,” “I was just speaking with the DA about this, let me go get him/her,” or “There are two sides to this, so you probably want to hear the DA’s side too. Let me go get him/her”. This way, there is no rule violation, you haven’t pissed anyone off, and you may make some headway on your case.

What happens in the 1% of cases where ex parte communications are not so innocent? We will address that in future articles.

Good luck, and have fun!

From the Front Porch: Is Opening Up the Courts Good for the Rural Practitioner?

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After Governor Abbot announced that he was lifting regulations involving mask‑wearing and social distancing, it was not long before the OCA put their two cents in on the issue. Their recent opinion can be summarized by the lyrics of that old Mamas and Papas song. Now courts can go where they want to go and do what they want to do. The OCA left it up to each county to be restrictive or not, continue Zoom hearings or not, or go back to 2019 procedurally speaking. The question is, is opening up the court system good for the rural practitioner? The answer is… it depends!

Positives:

COVID rules put the brakes on jury trials. This can be good. If you have someone out on bond, time usually works on the Defendant’s side. The backlog makes more minor state jail felony cases and third‑degrees look even smaller to the judges and DAs. When there is a huge backlog, do you really want to go to court on a mandatory probation state jail felony case, or give them a 12.44 (b) and move it down the road? Opening up the court system to the good old days may lurch the criminal justice machine back to the days when these cases were taken much more seriously.

COVID made courts shift to Zoom hearings. This can be also good for the criminal practitioner. You can do court hearings and jail visits in your pajamas and slippers. Just wearing a dress shirt and tie over them, or move the camera, so it only shows your face! This makes these standard time‑wasting activities a snap. This has allowed the rural criminal defense attorney to be much more efficient, sometimes allowing them to be working on one case while in the Zoom waiting room on another. This is especially so when you practice in numerous counties. Opening up the court system could make our jobs move from being a quasi stay‑cation to having to dress up and go to court again like the old days.

Negatives:

COVID rules put the brakes on jury trials. This can be very bad. If you have some languishing in jail, the possibility of a jury trial looks very remote. Your client will probably wait years, if they have not already been, to have their day in court. The most heartbreaking scenario is a person accused of serious crime, has a high bond that they can’t make, and claim to be innocent. If the powers that be wont lower the bond, they’re stuck. If they genuinely are innocent, that’s an enormous injustice. Hopefully, you have gotten a good investigator to get some exculpatory information to grease the wheels of justice somehow. But if not, this is a horrible nightmare. Opening up the court system could really help these people get their day in court.

COVID has made courts shift to Zoom hearings. This can also be very bad. As we all know, getting into court, meeting the prosecutor face to face, seeing your client face to face, and having the judge pressure both parties to get things done can help resolve or get cases dismissed. When dealing with everyone in an impersonal zoom hearing, the immediacy and intimacy of in‑person contact are lost. These intangibles fuel the process. Opening up the court system can make innocent defendants get off the hook, and guilty ones gain a better result. Opening up the court system, in this case, would be positive.

In conclusion, COVID has been a double‑edged sword for the rural practitioner. Guilty folks on bond have enjoyed a long continuance, perhaps using the time to gain employment, get help for their addictions, and build a resume for a better resolution down the road. Zoom hearings have allowed the criminal practitioner to be more efficient, and it has made it easier logistically to practice in other counties. On the flip side, COVID has caused innocent folks may be languishing in jails for months or years before a trial. The lack of in‑person hearings has caused an enormous backlog, which hurts anyone trying to resolve a case.

Long story short, we will have to roll with whatever happens, just like we did a year ago when the system was upended.

Note: In the March edition, From the Front Porch was actually written by Dean Watts, not Clay Steadman. The appropriate person has been properly flogged.

From the Front Porch: Mending Fences

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If you practice in a small town, sooner or later, you’re going to tear your britches with the prosecutor or the judge. Sometimes, you tear your britches with both. Me? I’ll take the 5th (as always). In a big city, this is not so much of a problem. Prosecutors come and go, and your cases are probably so spread out that you may not see that pesky judge for awhile. In the big city, things can cool off organically. The conveyor belt of problems will often quickly remove yesterday’s problem with today’s, then tomorrow’s. And as a learned attorney in Nacogdoches once said, “Time is a soothing balm.”

However, in a small town, time’s soothing balm may not always be so soothing. You may be dealing with that judge or prosecutor for the next 20 years or more. Literally! In my experience, rural practitioners seem to have a long memory. So, what do you do when you get crossways with the powers that be? Telling them to just go to hell doesn’t work in the long run. Unfortunately, and inextricably, they hold the keys to what ultimately happens to your clients. In my experience, there are three things that you can do to mend fences when things go south.

If you are wrong, admit it. No one likes to admit when they have made a mistake. But, hey, we’re all human. You may perceive that admitting when you made an error bruises your public perception. On the contrary, it enhances it. The worst thing you can do is wrongfully blame someone else, make excuses, etc. This makes you look far weaker in the long run. If you make a mistake, own up to it.

If they are wrong, don’t rub it in. Just as the rationale for #1, we are all human. If they don’t realize their mistake, you can point it out gracefully without making them lose face. If they own up to it, don’t rub it in. As stated before, you may be dealing with these people for a long, long time. Be graceful and dignified about their mistakes, just as you should be with yours.

Whether it is 1 or 2, don’t let your emotions dictate how you respond. This is probably the toughest advice to follow. Whether it’s extreme anger or fear, it is best not to show this to the other side. When I first started practicing, I often needed to leave the courthouse and drive around the block to cool off. One time, I almost hit my colleague driving around doing the same thing (I’m not kidding). With today’s zoom hearings, it’s even easier. Just mute your app, turn off the video, and let loose. Compose yourself and boogie on.

We are all going to be in this position sooner or later. Avoid the temptation to act like a jackass. Because our jobs inherently involve conflict, at some point in time, some fences will need mending. But our actions determine whether we need a small repair or if we need to fix the whole damn fence! If you practice in a small town, you probably are doing so to avoid the big-city headaches. I’ll take our unique rural problems over the big city headaches any day! I hope this helps you a little when you suit up and take on the state – even if only from the waist up in our current age of Zoom. Take care, good luck, and have fun!

Small-Town Advice for the Big-City Lawyer

As a solo practitioner in Nacogdoches, I always enjoy seeing fellow criminal defense lawyers from out of town travel to the courthouse and defend the innocent accused (and occasionally a few guilty ones). It can also be quite entertaining to see how they handle practicing in a small town. In the twenty-odd years I’ve been practicing here, I’ve noticed that many make the same mistakes over and over, which although entertaining to us locals, do not serve their clients well. With that in mind, I wanted to share with you six common mistakes I see when city attorneys come to smaller towns.

Mistake #1: They overdress. While it’s good to dress for success, I often see attorneys from big cities wearing custom-made suits, matching socks, handkerchief, and tie, Rolexes, fancy briefcases, etc. The local prosecutor understands you are successful because your client must be paying a big fee to have you come up here. But looking dressed to the nines will often be counterproductive, as I’ve seen what are normally reasonable prosecutors dig in their heels against someone they think is trying to visually intimidate them.

Mistake #2: Don’t talk down to prosecutors. This is very common. An out-of-town lawyer treating a small-town prosecutor like an idiot will not get the desired result. A case that might ordinarily be dismissed because of a bad stop may need a few more settings so that the local prosecutor can casually “look up” all that complicated law so haughtily thrust upon them. They live here, but you have to drive here. Sometimes, over and over again . . . You don’t need to be a kiss-ass; just don’t be a smart ass.

Mistake #3: Don’t threaten prosecutors. This is closely associated with Mistake #2—especially when combined with Mistake #1. Threatening to file a suppression hearing, threatening to go to trial after the first setting, etc., will probably result in you coming back up here many more times than if you’d just acted like a rational human being. When threatening a prosecutor, you will just motivate them to figure out how to hammer you and your client. If you have a good case and the state has a bad one, great. Point it out in a non-threatening way and see what happens. Your result will usually be better than aggressively firing an opening legal salvo right off the bat.

Mistake #4: Don’t aggravate the court staff. If you tick off the prosecutor, that’s bad enough. But you really don’t want to make the court staff mad. They live nearby and go to that courthouse daily. You may have made your point that you want a jury trial, but you could be at the bottom of the list for many dates down the road. And, you may find yourself angrily driving back and forth indefinitely if you make the wrong court coordinator mad.

Mistake #5: Don’t pick a jury without consulting local counsel. This one may be obvious, but it’s worth noting. The smaller the jurisdiction, the more likely local counsel is going to know a lot about the folks on the jury panel. They may have kids that go to school with jurors’ kids or may have gotten one of their family members out of trouble. If you don’t have the resources to hire local counsel as a jury consultant, at least ask a fellow TCDLA member to give a once-over on the jury list.

Mistake #6: Don’t go to the judge for important issues without consulting local counsel. Every judge is different, and some judges are good with probation and some generally are not. Local counsel is going to know which ones are good about that, as well as suppression hearings, continuances, etc. They will probably have some entertaining war stories to punctuate their opinion.

I hope this will help you the next time you practice in smaller towns. You can always consult the TCDLA directory and find fellow members to help you fill in the gaps if you find yourself in over your head. Good luck and have fun!