Greg Westfall

Greg Westfall graduated in 1993 from Texas Tech School of Law, where he was Editor-in-Chief of the Law Review. Board certified in Criminal Law since 2000, Greg practices criminal and civil trial law at Westfall Sellers in Fort Worth, Texas. Greg has regularly published and spoken at seminars since 1994 and has served as Editor of the Voice for the Defense. Greg is married to Mollee Westfall and has two children. Greg can be reached at .

Editor’s Comment: Out to Pasture – By Greg Westfall


I grow old …
I grow old …
I shall wear the bottoms of my trousers rolled.
Shall I part my hair behind?
Do I dare eat a peach?
I shall wear white flannel trousers, and walk upon the beach.

T. S. Eliot, The Love Song of J. Alfred Prufrock

Well, I guess it’s not as dire and depressing as all that. I really am turning over the reins of the Voice for the Defense after four years. But, the fact is, I just turned 50 and am feeling rather sorry for myself.

As of Rusty this year, I have retired and Michael Gross and Grant Scheiner have taken over as Editor-in-Chief for the Voice and Editor of the Voice Online, respectively. I am going to hang around and I think do some blogging on the Voice Online. The thought of writing 100–200 words in a given session really appeals to me right now. I think as I have grown older, my ADD has actually gotten worse.

I am extremely proud of the Voice, though, and look forward to seeing it progress in others’ hands.

Like I said at Rusty, if I am remembered for anything, it will probably be the Voice Online, which we launched during my term as Editor. The truth, though, is that I came up with the idea (which was not altogether original in 2009 when I came up with it). Then, Melissa Schank and Craig Hattersley (and then our web designer, Stacy Clifford) shouldered the work. Melissa, in particular, oversaw scanning every issue of the Voice from inception to the present day for our archives and did some work on the code. I had the idea and an outline of what I envisioned. An idea, however, no matter how great, is pretty much DOA without execution, and Melissa and Craig provided that. The Board provided the seed money to get it done. It was a team effort and the end product reflects that.

If I could choose what I am to be remembered for, it would be making the Voice more accessible to our members. I wanted (and persevered) to take personality completely out of publication decisions. If I could help it, no decision to publish or not publish would ever be based upon whom the prospective author’s friends (or enemies) were. That, in my opinion, is as it should be. Now, with the Voice Online and blog, one doesn’t even need to be a member to join in. No debate is benefited through restricting the number of voices allowed to participate. And the Voice for the Defense ought to be a forum for debate.

I hope in the future more members will take part in this debate. A number of members have their own blogs, but have never once offered a blog entry in the Voice Online. This utter lack of participation is my only gripe from my term. The listserve, on the other hand, is an extremely active forum for commentary. I hope in the future that some of you will take a chance and turn some of those discussions outward. It would benefit the organization.

I believe that all board members ought to have a requirement to author just four blog posts per year. And rather than just scold all the board on a quarterly basis for not doing them, they should be tracked as attendance at board meetings is now tracked. If a board member fails to fulfill the quota, he or she will be kicked off the board. If we had a vibrant blog, our stats would go through the roof and our organization would become more visible as a result. Higher visibility means more members and more legitimacy at the Legislature, among other things. Simple as that. Weigh these benefits against the ridiculously small amount of effort to simply put together 200 words of commentary about some recent event, and I feel perfectly justified in suggesting that the board member should go.

One thing I would have liked to have floated would have been an alternative to the listserve, at least as to substantive matters. I have just recently seen yet another call for some kind of knowledge base created from substantive conversations on the listserve, of which there are many. I am no tech guru, but to my mind, a listserve is not even capable of such a thing. There is no way to really search a listserve, and to the extent that a knowledge base is created, it is only because you aren’t in the habit of deleting your emails. I don’t care how dedicated and smart the members of a listserve are, if you want a knowledge base, the listserve concept is just not going to support that.

Instead, I hope that this organization will one day establish a forum. A forum stores information topically under headings and is fully searchable. If a year ago some member posted a bunch of great stuff about scientific evidence in sexual abuse cases, you could find that in a forum through a keyword search, and unlike emails, this knowledge base is located on the web, not in the inbox on your computer. It would be a rational alternative to the listserve and something that I hope will one day get a fair, clear-eyed look.

More than anything, I would just like to say thank you to the Texas Criminal Defense Lawyers Association for letting me be Editor of the Voice. The Voice, like TCDLA, has a rich heritage and I am extremely proud to have spent four years at the helm. You are my brothers and sisters and I love you all.

Editor’s Comment: Help Wanted – By Greg Westfall


When I started as editor of the Voice with the July/August issue in 2009, we were a print-only magazine running 10 issues per year to our members plus the Texas judges. We are still that. But we are also a lot more now.

Thanks to the insanely hard work of Craig Hattersley, Melissa Schank, and Stacy Clifford, we now have an impressive online magazine as well. Our monthly unique users roughly equal our printed circulation. Thus, for all intents and purposes, our readership has doubled since 2009. Last year, we had over 30,000 unique visitors who visited the Voice Online approximately 55,000 times, looking at around 140,000 pages. We now have readers around the world.

After February 2011, when the Voice Online was born, really working the Voice became a much bigger job than it had been as just a print magazine. Before, we just had to find articles (no small feat, at times) and get them edited, laid out, and published. As an online magazine, we have many more things that ought to be done.

I am writing this because I need help with our magazine.

In October 2010, after a minor heart attack (my words, not my wife’s), I left my law firm of 9 years and joined a medium-sized civil firm in Arlington. I now do about 50/50 criminal and civil litigation. And I’m crazy busy. I’ve also been really distracted, absorbed in trying to build a new practice after almost 20 years. So, honestly, for the last year, I have not been pushing the Voice as much as it needs to be pushed. While the job of the Voice editor has more than doubled in size, I have been increasingly unavailable.

Here is what needs to be done and what I envision for the future.

First of all, I think that we should always have editors drawn from our membership. We should not give in to the temptation to try to find professional editorial staff for the Voice. It has been my distinct honor to be the editor of the Voice. The line of editors in TCDLA is filled with people I have been proud to follow.

Second, I believe we need an editor to just run the Voice Online and the blog. That editor could guide the online content and try to find bloggers (hopefully with more luck than I have had in doing so). Active blogging would cause the Voice Online to take off. The constantly changing content would raise our rankings in the search engines and the blogging would increase our readership.

Our online editor could also be in charge of updating our Facebook page, which could be done at least once a week with just the features from the Voice Online. We could also start a Twitter account, or, more likely, send out tweets on TCDLA’s account with links to the Voice Online.

Finally, our online editor would be in charge of preparing the email blasts for Melissa to send to the membership. Every time Melissa sends one of these, we experience a spike in visits to the site. They are great. Blasts can also be conducted on the listserve, and I used to do this.

The editor of the print magazine could do what the editor has always had to do—hustle articles and edit. Getting articles is easier when the Voice Online is going strong, as the online presence generates authors. But the quantity of good articles always ebbs and flows. The print editor could help the online editor on an as-needed basis and should be willing to do blog work.

The blog could stand to have several active authors. In the beginning, I was able to convince a few authors to blog. Tony Vitz contributed, as did Mark Griffith and Emily DeToto. But we need regulars. There is a lot of chatter on the listserve that would be great blogging material, but to date nobody had taken up the challenge to do it.

So, for the editors, one of the challenges would be to find articles, the other would be to find regular bloggers.

I can think of one thing that might help. We in TCDLA have a “rule” that everyone on the board is supposed to write two articles for the Voice. Of course, nobody does. But what if the rule were to write two or three 500-word blog posts?

There is no set term limit for the Voice editor. That said, I expected to do it for three years. I am coming up on four. At this point, I have done just about all that I set out to do. It is time for some new blood.

One thought that has occurred to me is to have staggered terms for two editors. That way, there would always be overlap and nobody would ever start out cold. Thankfully, as long as we have Craig and Melissa, we don’t need to worry so much about a ramp-up period training a new editor. But there is still an adjustment period and staggered terms would take care of that.

So what say you all? I will stay on for another year if someone wants to step up and be a co-editor. Or not. If two folks step up and want to just take it over, that’s fine also. But we need someone.

Apply within.

Trial Lawyer, Songwriter

“Every truly successful song expresses a universally understood meaning.”

—Sheila Davis, The Craft of Lyric Writing, 1985, at 2.

Ever since I wanted to be anything, I wanted to be a professional musician—a rock star, actually. Even before I started playing the guitar at 13, I had pictured myself on a stage somewhere. I played in bands all the way through high school and into college. I played guitar through the Army. Upon discharge from the Army in 1987, I had been accepted into the Guitar Institute of Technology in Hollywood, California, and the Army was going to pay for it. But a couple of months after getting out of the Army, I just changed my mind. I don’t know why, but after wanting to do that all my life, when I was just about to cross the threshold, I turned around.

But the music didn’t go away. I still practiced. I still played in bands. Two years later, I was on my way to becoming a lawyer.

I guess I wrote my first song when I was 15 or so. I wrote a lot of songs in high school, a lot of poems, too. After high school, I didn’t write so much, but I would still write a little. Frankly, though, it never occurred to me to try to approach songwriting as a craft. Every once in a while a song would come to me and I wrote it down, but nothing beyond that. I figured either you had it or you didn’t and I kind of didn’t.

Then I went to Trial Lawyers College.

One thing that settled in on me at the Ranch was story telling. Finding the emotion in stories was a true revelation for me. I had never even been aware of that. One Saturday not long after I had returned home, I got out my guitar and a pen and some paper. Within an hour or so, I had written “The Hill.” That would ultimately become the first song on my first CD, “Texas Theater,” issued in December 2003, 16 years after I “gave up the dream.”

More and more I started telling stories with songs. I then took my acoustic guitar and went to open mic nights to play them. They were generally well received. I am still not a prolific writer by any means, but I now have a deeper understanding of how to write songs—and what makes a good song—than I would have ever had without doing all the personal work I have done, which began in that summer of 2002. For what it’s worth, I am now a songwriter, published, earning royalties every day. How ironic that once I stopped chasing the dream, it kind of came true.

Since 2002, though, I have really studied songwriting as a craft as opposed to just writing words on paper that rhyme. Songwriting is not divine inspiration—it is a discipline that can be learned by anyone who is willing to work hard and practice. Mainly, this means writing and editing songs, over and over. The constraints of rhythm and rhyme create a structure that requires creativity and imagination to convey the writer’s intent. The discipline is really pretty demanding. The craft, like any other fine art form, takes years to learn and master and you get better at it as you practice. There is much more to successful songwriting than just the lyrics. But the good news is you really don’t have to be particularly good at songwriting to learn a lot from it.

The three greatest things I have learned from songwriting are (1) conveying emotion through words and images; (2) using language to describe moods, things, and places metaphorically, which itself evokes emotion; and (3) learning to communicate universal themes. Of the three, I would say the last one is the most fundamentally important:

Songs embody experiences common to everyone: the adventure of first love, the frustration of misunderstanding, the anguish of jealousy, the wistfulness of goodbye. A singer does not offer a sermon we must heed, or a code we must decipher, but rather a universal truth we already know: “Harper Valley P.T.A.” dramatizes the maxim “people in glass houses shouldn’t throw stones”; “She’s Not Really Cheatin’ (She’s Just Gettin’ Even)” illustrates that what’s sauce for the goose is sauce for the gander; the materialist values of “Mr. Businessman” remind us that it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of heaven. Such songs vivify, and thereby reaffirm, the fundamental tenets of our common experiences.

Sheila Davis, The Craft of Lyric Writing, 1985, at 2.

Whether you are writing a song or getting a case ready for a jury, the first thing you need to identify is the universal theme—something we all share and have experienced. There will usually be more than one. If you need help with ideas, just Google “universal themes” and you will get plenty of help. They are things like hope, abandonment, love, overcoming obstacles, helping others, etc. It would be good to have clear themes going into a trial. Songwriting too. Remember, universal themes are just that—universal. We want the largest audience possible. In songwriting, there is a process referred to as “going from the particular to the general.” This is how we broaden themes to become as universal as possible.

For instance, let’s say the story I want to tell is about a person recovering from a methamphetamine addiction. I could just talk about what it’s like to hit bottom from meth, to first seek recovery and then recover, which would be a story that people could really identify with—if you tell it in a Narcotics Anonymous meeting. How can we broaden it up? Well, for starters, “addiction” is way broader than “methamphetamine addiction.” In fact, we can even use “addiction” as a metaphor as so many have done. But addiction is a term with a lot of baggage and still narrower than we would like, so we are still not communicating like we want to. So think, what is recovery? Isn’t recovery, in the end, just overcoming an obstacle? Everybody has overcome obstacles in their lives. “Overcoming obstacles” is a universal theme.

Once we have that universal theme, how do we convey it? That is the more difficult part of songwriting—conveying that universal theme through language that evokes emotions and within the constraints of rhythm and rhyme. This means we can’t just literally say something. We don’t say, “I have overcome obstacles.” We must speak in terms that evoke images and emotion. Here are some examples:

My theme = regret.

I want to say:
“I have made choices I am not proud of and lost things dear to me.”

I write:              In the mirror, the ghosts in my eyes
                        betray the fears and the compromise of
                        the things I had for the things I had to do.

My theme = grieving.

I want to say:
“We miss you and think of you often.”

I write:              The wind is blowing cold. The sky is grey.
                        It’s been like this since you went away.
                        It’s a way of knowing that you’re still around.

These are both small parts of songs I have written. Here is a full song that came from my first CD. I wrote this as I hit 40 years old. One theme is self-examination at midlife, kind of like “A Pirate Looks at 40” by Jimmy Buffett. Another theme would be “coming home.”

© 2003 by Greg Westfall, Blue Mule

The first thing I remember as a child
Are the red brick streets to the highway going out
Through the cotton and red ground that surrounded our West Texas town
Just inside the Jones County Line
And the rodeo that came every year
And the cowboys riding bulls and drinkin’ beer
And all the boys and me would chase those calves and talk and dream
’Bout one day, gettin’ far away from here


This town was home when my home was an easy place to come home to
This town was all that I dreamed and all I dreamed there’d ever be
But this town was a small town and life moved pretty slow
For a young cowboy with a hunger for the road
And this town was the last thing that I had on my mind
When I crossed that Jones County Line

Now I wonder where 20 years have gone
I’ve been on this lonely road for so long
All that I could see were the little things that anchored me
To a place I didn’t want to stay
I left a trail of dust and loose ends
I made and lost a lifetime of friends
I claimed that I was free but this empty place inside of me
Brought me to Jones County again


How often have we read stories or seen movies where someone at midlife returns to the town of their childhood? Maybe the protagonist doesn’t even remember why he left. The strands of longing and regret wind their way through to hit us on a plainly emotional level. We all have felt them, because regret and longing are universal themes.

Lyrics that resonate with universally felt emotions foster strong identification between the performer and the audience. A song is successful when an audience responds with a recognition that says: “Me, too . . . I’ve felt that . . . I’ve seen what you’ve seen . . . I know what you mean.” That is what our applause says. The performer is singing not so much to us as for us.

Sheila Davis, The Craft of Lyric Writing, 1985, at 3

Isn’t that what we as trial lawyers want to do? We want the jury to have a strong identification with us and with our clients. We all want to sing for the jury rather than to the jury. So how can it be done? Same way in both arenas—by communicating on an emotional level.

So singing a song and talking to a jury are not so different from each other. In either case, if you are not emotionally honest, you are not going to connect. Your audience will abandon you and ignore your message. But if you are honest, and if you search for a way to connect with your audience, they will stay.

And they will applaud.

This article was previously published in The Warrior, the magazine of Trial Lawyers College, Dubois, Wyoming.

Editor’s Comment: Long Live Pussy Riot – By Greg Westfall


This summer, we spent our family vacation in Moscow, Russia. We got there at the end of June. By then, Pussy Riot had been in jail over three months awaiting trial on charges of “hooliganism,” which apparently carries up to seven years in Russia.1

Pussy Riot is an anti-Putin punk group of women who perform in face-covering balaclavas, which makes them all look like brightly colored bank robbers. And if you read any of their songs, you will pretty quickly see why they have a tendency to rub Putin the wrong way. Here are a few lines from their song “Virgin Mary, Put Putin Away”:

The Church’s praise of rotten dictators
The cross-bearer procession of black limousines
A teacher-preacher will meet you at school
Go to class—bring him money!

Patriarch Gundyaev believes in Putin
Bitch, better believe in God instead
The belt of the Virgin can’t replace mass-meetings
Mary, Mother of God, is with us in protest!

Virgin Mary, Mother of God, put Putin away
Рut Putin away, put Putin away

“Patriarch Gundyaev,” by the way, is officially known as “Patriarch Kirill of Moscow and All Russia,” the head of the Russian Orthodox Church. The ROC has become extremely powerful in Russia since the collapse of the Soviet Union. This is owing, in no small part, to the patronage of Vladimir Putin, who has found the relationship quite useful.

What Pussy Riot did in February of this year was essentially pull off a flash mob in the Cathedral of Christ the Savior, Gundayev’s home church in Moscow (which Putin had built, by the way). For weeks thereafter, Gundayev performed rites intended to erase the sin of Pussy Riot from inside the church. Gundayev has been one of the chief agitators for prosecution, which has been pretty handy for Putin. Putin, of course, is only too willing to do his part in return.

Interestingly, I had already heard of Pussy Riot on NPR last year, probably when all the protesting was going on in Russia in the lead up to Putin’s “re-election” as President of Russia. So when I was actually in Moscow and the English language newspapers covered the arrests and upcoming trial, it was really gripping. I followed the story every day. It really is bigger news outside of our borders than it is around here. If you would like to learn more about them, I promise it is safe to Google “Pussy Riot.”

Since we left Moscow, both the Red Hot Chili Peppers and Madonna have performed there, and both gave a nod to Pussy Riot. Madonna even wore a balaclava. A deputy prime minister reacted by calling her a “moralizing slut.”3 Does it get any better than that?

I have to say I am jealous. As a lawyer, I am jealous. What a joy it would be to do battle with a government trying to put your client away for seven years for something as simply wrong as a charge of “hooliganism.” It would be a nice break from trying to convince our government not to kill its own citizens, right?

There might be some people (probably not criminal defense lawyers) who would read this and breathe a sigh of relief that they were born in America rather than Russia. I will tell you there is not much difference between the two countries—just a few decades of evolution. Make these women black and put them in a white American church in the 1930s or ’40s and they would have gone to prison for trying to start a riot, if they didn’t get killed first. Oh, we definitely have our own BS charges that are leveled as instruments of oppression. An offense like “material support of terrorism” that makes no distinction between bullets and bandages is a good example.

The United States has the highest incarceration rate in the entire world. With roughly 5 percent of the world’s population, we have roughly 25 percent of the world’s incarcerated. We currently house 2.3 million in our prisons. Per capita, that’s higher than Russia and China combined.4

So yippee, our government doesn’t try to send its outspoken citizens to prison for hooliganism. Or does it?

By the time you read this, the Russian courts will have handed down their verdict on Pussy Riot. I’ve got my fingers crossed.

2. Not sure if this is copyrighted as such, but let’s just assume it is. Here is where you can find this and some other songs:

Editor’s Comment: A Little Death Penalty Math, Part 2 – By Greg Westfall


How much education could one death penalty case buy?

By the most recent numbers I have seen, it costs a county $500,000 to try the average death penalty case and, all things considered, approximately $2 to $3 million from investigation to execution.[1]

Even before our Governor and Legislature fleeced the school system this last session, Texas was already behind in how much we spent per pupil per year. In the 2009-10 school year, Texas spent $9,227 per student, which was $1,359 below the national average.[2] God only knows what it is now, but let’s just go with the $9,227 figure.

So let’s see, instead of trying to kill one, single person, a county could immediately pay for 54 children to go to school for a year. At the $3,000,000 dollar level, those same 54 children could go all the way through primary school.

What if we hired teachers instead?

Well, according to the Texas Education Agency, a public school teacher with 10 years of experience should cost approximately $37,000 per year,[3] and according to the figures recently released by the Texas Association of School Boards (TASB) and Texas Association of School Administrators (TASA), the average annual public school teacher salary is around $48,000.[4]

Thus, for the same initial outlay of half a million bucks, we could pay at least 10 public school teachers for a year. For three million dollars, we could keep them all around for six years. Maybe even give ’em a little raise.

When you throw in for good measure the fact that as of 2009, close to 60 percent of police chiefs polled agreed that the death penalty is not even an effective deterrent to crime,[5] it makes you kind of wonder why we still have it, doesn’t it?


1. “Life or Death,” Cleburne Times-Review, January 9, 2012, found at

2. “Texas slips in per-pupil education spending among states,” Dallas Morning News, Jan. 28, 2011, found at


4. “Survey shows average teacher salary at $48K per year,” Your Humble News, January 29, 2012, found at

5. Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis, Death Penalty Information Center, Oct. 2009, found at

Editor’s Comment: 100,000 Views – By Greg Westfall


Well, it’s the last issue of Voice for the Defense for 2011. I wanted to update you all on what the year has brought.

A year ago, we were a print-only publication with a circulation of between three and four thousand. We sent a free copy to all judges. Otherwise, our members were our readership. We struggled for articles.

What a difference a year makes.

February 10, 2011, the Voice Online started. The idea for the Voice Online was born in Huntsville during the 2009 Texas Criminal Trial College. Over the course of the next several months, we worked on the idea. We wanted all the archives to be online. We wanted the site searchable. We wanted a blog. We wanted a much broader audience. We have done all those things and more.

We still have a print publication that has the same circulation. But we are much bigger than that now. We have reached a point where Voice Online averages over 2,000 unique visitors per month. Since February 10, Voice Online has had over 100,000 page views and we are closing in on a half a million hits. A “unique visitor” is only counted once per month, so that means over 2,000 different people currently look at over 10,000 pages each month. If you search “Voice for the Defense” in Google or Yahoo, we come up in the number one position. We have a Facebook page that has 198 fans so far that also comes up in the number three slot on Google. Note that we have not done anything to increase our visibility on the search engines. It has taken care of itself because of the number of users. We are off to a great start. I would like to recognize and thank Melissa Schank and Craig Hattersley for keeping us on track and sweating me each month for my column. Stacy Clifford has done a great job with the site and he is extremely responsive, which I deeply appreciate.

I would also like to thank Joseph Martinez and our Board of Directors for trusting us enough to give us the money to get it all done. We came in pretty well under our budget of $10,000, but still, that’s a bunch of money these days.

I would like to give a special thanks to the authors and columnists who have taken the time to contribute to our publication.

I also wanted to note a curious side-effect. It used to be that each month we scrounged for articles. We have converted more than one seminar paper to an article in our days. But we now have a surplus of articles—great articles, by and large—and we get more all the time. It is hard to know exactly what the reason for that is. Gary Trichter has been able to convince several people to submit articles, and they are always good. By the way, Gary, I appreciate that. But that can’t explain all of it, I don’t think. And I don’t believe it will stop anytime soon.

Finally, I would like to share with you all what I would like for Christmas—bloggers. If we could have an active blogger or two, our exposure would go up exponentially, which would bring still more authors. Perhaps that is what is in store for 2012.

Everyone have a great holiday.

Editor’s Comment: What Life Is – By Greg Westfall


Yes, I am a pirate
Two hundred years too late.
The cannons don’t thunder, there’s nothin’ to plunder.
I’m an over forty victim of fate;
arriving too late, arriving too late.

          Jimmy Buffett, “A Pirate Looks at Forty”

In seven months, I will turn 49. Which means in a year and seven months, I will turn 50. Which really means that in what will seem like about three weeks, I will be 50 years old. That’s how fast everything goes these days. And the older I get the more I come to believe that youth really is wasted on the young.

I have been told many times that life is a marathon, not a sprint. What does that even mean? Life is long? You have to be in really good shape? You have to pace yourself? This doesn’t work for me. And besides, I hate running.

I have also been told that life is a journey, not a destination. That fits me a little better. No running at least. But if life is a journey, then death would, I guess, be a destination. So we are on a journey to death. Well, that’s kind of depressing.

Two years ago this December, our family bought a little ranch just outside of Dublin, Texas, and for the last two years I have participated in an activity that could loosely be referred to as “deer hunting.” I sit in a blind twice a day and watch for deer to come to my feeders. Or not. Mostly not.

I never hunted deer before 2 years ago. But I remember 15 or so years ago I had some buddies I regularly played cards with. They were all big deer hunters. They wore camouflage shirts in the off-season and had those big “Trophy Hunters” stickers on the back windows of their pickup trucks. I used to rib them that they had set up a petting zoo with their feeders and their blinds and one day they show up at the petting zoo with a .45.

Well, this must have gravely upset the karmic balance in the world—like walking around the courthouse the week before a trial talking about how you are going to kick some prosecutor butt. I have now spent so many days in a blind staring at an empty feeder that I want to call those guys and apologize to them. The only thing that keeps me from doing it is the firm belief they would just think I was an idiot all over again.

I wonder, given that the “days hunting” versus “days getting” ratio is so bad, why in the world it even appeals to me. In the city, I think the only thing that could come close to that palpable frustration might be a round of golf. Most times after leaving the blind never having laid eyes on a deer, I am really pissed. I swear I’ll never do it again. But then it gets to be late afternoon, and there I am, in the blind, silently watching while birds carry off the corn I spread on the ground until it gets dark enough for the raccoons to take over.

The truth is I am beset with an affliction that causes me to expect success when failure is the norm. The upshot is that I focus almost entirely on results. And that, I am beginning to realize, is no way to enjoy life.

So my thought is that life is a process, not a result. Everything that is important really kind of is a process. Friendship. Love. Marriage. Relationships. They are all processes. And I spend a hell of a lot more time in the process than realizing the result—if indeed I realize it at all. So the process is the thing. The point of the exercise is the exercise itself. Wow.

Now, when I am sitting in the blind this weekend with my son, I am going to try not to focus so much on results and try to enjoy the process. You might call it a journey without a destination. But, hopefully, not another damned hunt without a deer. (No, really, I’m very zen about this now. Really.)

Everybody have a great holiday and thank you for supporting TCDLA and Voice for the Defense this year.

Editor’s Comment: A Little Death Penalty Math – By Greg Westfall


I watch presidential debates for the same reason I suspect some others watch NASCAR races—to see the crashes. And so it was as I settled in to watch the September 7, 2011, debate between the current Republican presidential hopefuls moderated by Brian Williams. I knew, of course, that unless he backed out or otherwise refused, Rick Perry would be in this debate, so I thought my chances were good. I had not been watching for long when this exchange occurred:

williams: Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you . . .

[Interrupted by vigorous applause from the audience]

Have you struggled to sleep at night with the idea that any one of those might have been innocent?

perry: No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which—when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required. But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.

williams: What do you make of . . .

[Interrupted again by applause from the audience]

What do you make of that dynamic that just happened here, the mention of the execution of 234 people drew applause?

perry: I think Americans understand justice. I think Americans are clearly, in the vast majority of—of cases, supportive of capital punishment. When you have committed heinous crimes against our citizens—and it’s a state-by-state issue, but in the state of Texas, our citizens have made that decision, and they made it clear, and they don’t want you to commit those crimes against our citizens. And if you do, you will face the ultimate justice.

While I wasn’t just floored—after all, you have to consider the audience might not perfectly represent the public at large—I was a little taken aback. I mean, Perry just about got a standing ovation for essentially proclaiming that capital punishment—of which he shares ultimate administrative control—does not even appear on his moral radar. Never has he questioned a decision he has made. And he’s proud of it. And a lot of people in the audience agreed.

Intrigued as I was baffled and slightly nauseous, I started to look around for the real state of opinions about the death penalty today. Along the way, I found some interesting data.

A Gallup Poll from October 2010 of 1,025 adults nationwide found 64% favored the death penalty for a person convicted of murder, 29% opposed, and 6% were unsure (for some reason, this all adds up to 99%). Sixty-four% support for capital punishment is the lowest level ever demonstrated in the poll, although it has gone that low several times since 1991, when the poll was first conducted. At the other extreme, the level of support has gone as high as 80%. (All of these polls may be viewed at and have margins of between 4% and 5%.)

A question Gallup didn’t ask in 2010 (but had asked in 2003, 2005, 2006, and 2009) was:

“How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with? Do you think this has happened in the past five years, or not?”

In 2009, 59% believe that it indeed had. In years past, the%age believing we had executed an innocent man has run as high as 73%.

Thus, the numbers shake out like this: As of last October, 64% of Americans favor the death penalty. At the same time, and using data from 2009, 59% of Americans believe we have executed an innocent man in the last five years. Now. Let’s do some math.

If we take 1,000 people (a valid sample for polling purposes), we can assume that roughly 640 (64%) will support the death penalty. In those same thousand people will be 590 (59%) who believe we have executed an innocent person in the last five years. The question is to what extent these two populations overlap, thus giving us people who (1) believe in the death penalty, and (2) believe we have executed an innocent man in the last five years. The populations would look like this:

(a)640 (64%) of people are for the death penalty, 360 (36%) of people are against or unsure;

(b)590 (59%) of people believe we have killed an innocent person in last 5 years.

Let’s assume that concern about killing an innocent person actually caused the 360 people who do not support the death penalty to be against it or unsure. Then, subtract all of them from the 590 who believe we have executed an innocent in the last five years. That would leave 230 people who support the death penalty while at the same time believing that we have executed an innocent person within the last 5 years.

Folks, that’s 23% of our population. Nearly one juror in four begins from the position of believing that our capital punishment system kills innocent people but doesn’t care.

That should give us something to talk about in voir dire.

Editor’s Comment: It’s Sausage Time! – By Greg Westfall


Well, as September 1 rapidly approaches, carrying with it the product of our duly elected representatives, I am reminded of some words by Grant Gilmore:

Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In Heaven, there will be no law and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.

Gilmore, The Ages of American Law, 110–11 (1977)

Editor’s Comment: Why I Do What I Do (A Work in Progress) – By Greg Westfall


You know you’ve been around a while when you get tapped to give the “Why We Do What We Do” speech. It would seem that once a criminal defense lawyer achieves the right mix of experience and age, he or she gets that figured out. Maybe. I don’t pretend to have it completely figured out yet, but I have been thinking about it lately.

I have a confession to make—I hate going into the jail. It’s not that I have some kind of irrational belief that if I go in I won’t be able to get out. It’s just that it is such a massive logistical pain in the butt. In Tarrant County, you can go from front door to face to face with your client in about 10 minutes, if all goes right. But rarely does all go right. I have sat for 45 minutes in a holdover waiting for a client who never comes. I’ve been sent to wrong floors. Your chances of falling into these black holes increase dramatically within an hour before and an hour after shift changes. You also have to worry about “feeding time” and the occasional lockdown. Anyway, you get the picture.

Once outside, you dutifully make your bill for your time, which will surely get cut. For me, the only predictable thing about the whole experience is that I’ll soon be repeating it.

Then there’s the issue of not just defending your clients, but defending your profession (a/k/a answering the “Have you ever represented someone you knew was guilty” question). Both my wife and I started out in civil law, but both of us were in criminal law inside of a year—I was a criminal defense lawyer, she was a prosecutor. It was a long time ago. We were at some kind of a family gathering and a relative (one of mine) approached us and first spoke to me:

So, are you still defending criminals?


Then he turned to my wife.

[Broad smile and twinkle in his eye] So tell me about some of your cases!

I then stood there and basically listened to an episode of Law and Order as he excitedly asked about every “criminal” she had sent up the river. Ultimately, he turned back to me and asked, “What do you think is going to happen to OJ?” “I hope he walks,” I said. He looked horrified. I guess I got the last laugh on that one.

Over time, my answer to the “Have you ever represented someone who you knew was guilty” question has gotten shorter and shorter, until now I just say “yes” or “no” depending on my mood.

I have friends who are doctors. Never heard one of them suspiciously asked, “Have you ever treated someone who you knew was sick?” In fact, it seems that none of my non-criminal-defense-lawyer friends ever gets confronted with this perceived moral liability.

So why do we do this again?

Last week I had a 19-year-old kid who, right now, is a total screw-up. He is one of those who I got a fantastic result for on an earlier case and within a year had three new misdemeanor cases—one of which was a stupid theft case. Of course, what he really has is a bad drug problem. I got his mom hooked up with an addiction specialist and he got a bed open at a treatment center. I had recommended to his mom that he stay in jail until treatment just so he couldn’t screw up anymore. Once the bed came open, I ran in to plead him (his cases were in no way triable) so he could get to treatment. Credit for time served on the non-theft cases, dismiss the theft case, right? Not much reason to hang a crime of moral turpitude around a 19-year-old kid’s neck, is there? Not so fast. The prosecutor insisted that he take a conviction on the theft case. I couldn’t do that. But he’s going to treatment! We can make it so he doesn’t have to do this again! Too bad. The office policy is a conviction for a theft case and, as I was informed, “My policies are more important than your client.”

I once saw John Hardin—a great lawyer and human being—give the “Why We Do What We Do” speech and his ultimate conclusion was simple: “We do what we do because we are who we are.” To this day, that’s the best answer I’ve ever heard. In any event it’s the only one that explains why the thought of an arbitrary policy being more important than a 19-year-old kid’s future made me want to vomit. We took a deferred.