The Carving Doctrine and the Case of ‘Joe’ Friday

Every lawyer who has ever made a living defending criminal cases has been asked, not once but very often, how he or she is able to represent people who are known to be guilty. Most civil lawyers and virtually all non-lawyers are shocked to learn that criminal lawyers find representing people they believe to be guilty far easier than representing those whom they believe to be innocent.

That probably deserves a little explaining.

Let’s start with the admittedly technical but very important point that “guilty,” under our system, means either that a jury of one’s peers, having heard the evidence and been instructed on the law by the judge, has found one to be guilty or (a jury having been waived), a judge has so found.

Then, let’s recognize that for good or ill (for good, I think), we have adopted an adversarial system of justice. Such a system presumes that there will be a competent advocate on each side of the case, doing what he can to put the best face possible on his side of the case and to point to the deficiencies in the other fellow’s case.

In such a system, though, the advocate owes a great deal to the system itself (of which more presently). He is certainly not supposed to seek the truth (that is the function of the judge and jury) but is, rather, to serve the cause of his client, within the bounds of propriety and candor with the Court.

Thus, much as a professional debater might on any given day take the affirmative or the negative and argue with equal vigor, an advocate in a criminal case, whether prosecutor or defender, must be prepared to present his case and advocate against the case presented by his adversary, in order to ensure that a just result is reached by those charged with the responsibility of determining the matter—the jury or, in the absence of a jury, the judge.

Indeed, since the system presumes vigorous advocacy on each side of the case, the system fails, if it does fail, precisely to the degree to which one side or the other lacks a vigorous and capable advocate (or to the degree that a ca­pa­ble judge and/or a fair-minded jury may be lacking).

We inherited the adversarial system from England, and most countries of the world do not follow that system. Most countries employ the inquisitorial method, which places much greater reliance upon the police stationhouse statements of witnesses and defendants than does our system. Juries play no part in such a system, and the lawyers have the very dif­ferent function of assisting the judge in finding the truth, rather than advocating for either side. (Indeed, in Eastern Europe and the USSR in the 1970s, a so-called defense lawyer was under obligation to denounce his own client as an enemy of the state and publicly urge him to confess his guilt if the lawyer believed his client’s actions or thoughts to be contrary to the best interests of the state.)

Under our adversarial system, a lawyer may not present false evidence, nor may he knowingly allow his client to do so. Since his arguments to the jury must be based on the evidence that has been presented, the lawyer cannot argue untruths. It is absolutely forbidden that the lawyer on either side of the case express his personal belief as to the guilt or innocence of the accused, primarily because the lawyer’s personal belief is irrelevant but also because the lawyer’s personal belief may result from matters as to which no evidence has been presented, including confidential disclosures of his client.

The lawyer’s job, then, turns out to be precisely the same, whether his client is guilty or innocent. The reason it is so much harder to represent a client thought to be innocent is that the lawyer lives in fear that something which he, the lawyer, does or does not do will cause an innocent person to be convicted. On the other hand, if one has done one’s best and the client is nonetheless convicted, little sleep is lost over a guilty man being found so.

Though it doubtless does occur that guilty persons are found not guilty after a trial, our society has always deemed that to be an acceptable cost of the presumption of innocence and the guarantee of a fair trial. “Better that ten guilty men are freed than that one innocent man is convicted” has been our usual way of expressing the sentiment.

It is, of course, absolutely forbidden for a criminal defense attorney to become involved in representation of people charged with crime before the crime is committed. While we guarantee the right of counsel to all who have been criminally accused, we do not allow lawyers to counsel people on how to violate the law and get away with it.

This can become a real problem for a lawyer who regularly represents people engaged in ongoing criminal enterprises. A client who continues in his involvement in criminal activity after retaining a lawyer to represent him in a pending case will not see so clearly or so readily as the lawyer the impropriety of seeking or obtaining advice with regard to ongoing activity.

There was not a lot of organized criminal activity in San Antonio when I was in practice, and so this particular problem seldom arose for me. I did represent a number of defendants who had prior convictions, but most were small-time burglars and thieves with no organizational connections.

Interestingly, in retrospect, very few of these clients wanted or got a trial. Most were caught red-handed, had no defense, and simply wanted competent representation in negotiating a plea of guilty.

A client I will call Friday Meadows, though a drug dealer rather than a burglar or thief, exemplifies the type rather well. He had previously been to the federal penitentiary on a marijuana case when I first met him and had come to see me about representing him on some newly pending drug cases in a small community near San Antonio.

The police had come to his home with a search warrant and found quantities of methamphetamine, cocaine, and marijuana, along with about $25,000 in cash. By the time I saw him, he had been indicted in separate indictments for possession of the methamphetamine and the cocaine—and so had his wife.

Friday made no bones about the fact that he had long since decided he could not do as well at anything else as he could at dealing drugs and had no intention of trying to. By his strange lights, a periodic trip to the penitentiary was part of the cost of doing business, and it was worth spending a lot of his time in custody so long as he could live as well as he did when he was “on the street.”

He respected law enforcement officers who went about their work properly, without fabricating evidence or manhandling people. In his view, they were professionals and he was a professional, and as long as they all played by the rules, he had no complaints.

Friday’s major concern when he came to see me, and throughout my representation of him, was his wife. He made it clear to me that if the search warrant was “righteous” (and it was), he was willing to do whatever time he had to, but any deal had to include dropping the charges against his wife.

She knew what he was doing of course, but she was not involved, and he wanted her to walk away from the cases with the charges dismissed.

I told him I would see what I could do.

We had a unique rule in Texas at the time called the “Carving Doctrine.” It was a sort of Texas special rule on double jeopardy, and it provided that while the prosecutor could carve as large an offense as he might from the conduct of a defendant in a single “course of conduct,” he could only carve once.

In Friday’s case, this meant that since he had simultaneously possessed three different drugs, possession of each of which was a violation of the same statute (the Controlled Substances Act), he could be convicted of possessing only one. (This is, by the way, no longer Texas law, and today he could be charged with possession of all three.)

It had been several weeks since Friday’s arrest, during which time he had been ably represented by the lawyer who associated me in the case, Joe Cumpian of San Antonio.

Had the prosecution moved a little faster, they quite likely could have forfeited Friday’s $25,000 as being ill-gotten proceeds of his dirty business. They had not, however, and the time for doing so had passed under the applicable statutes.

This, too, figured in Friday’s plans, as that money would go a long way toward the support of his wife while he was off at the pen.

I went to see the district attorney of the county where Friday was charged, and we agreed immediately that he had only one prosecutable case against Friday, and that he really was not after Friday’s wife.

However, he explained, he could not negotiate a plea agreement with me that included a term of years, because his judge would not honor any such agreement.

That surprised me more than a little, because Texas law at the time (and to this day) provides that while a judge is not required to honor a plea bargain agreement between a defendant and a prosecutor that includes a recommendation by the prosecutor as to the defendant’s punishment, the judge is required to give the defendant an opportunity to withdraw his guilty plea and stand trial if he does not honor the agreement.

If this happens, the law specifically provides that the fact that the defendant offered to and did once plead guilty is not admissible against him on trial of the case.

This part of the rule is, of course, for the defendant’s protection.

The gain to the prosecution if the judge honors the agreement is that the defendant is then not generally allowed to appeal his conviction or sentence, so the prosecutor can close that file and get on to other matters.

“Where do we go from here, then?” I asked, and he explained that it would be necessary to secure the judge’s advance approval of any proposed plea bargain agreement.

He and I then agreed that under all the circumstances, if Friday would agree to accept a seven-year sentence and not even apply for probation, the cases against his wife would be dismissed.

I suggested we go see the judge. He told me to go on to see the judge without him. (This is a strict matter of professional protocol; it is forbidden to either counsel in the case to discuss the case with the judge without the other lawyer being present, unless the other lawyer gives his consent.)

I went to see the judge alone, as authorized.

After I set the matter forth for His Honor, he agreed that the proposition agreed upon by the prosecutor and me was a reasonable one.

Later that morning, Friday entered his guilty plea.

At that time, a defendant was allowed ten days after pleading guilty before being sentenced—ostensibly to allow for the filing of a motion for new trial, but in practice most often simply to give him ten days to put his affairs in order before going to the pen. We asked for our ten days, in accordance with pretty standard practice at the time. This time, however, we should not have done it.

When we returned ten days later for sentencing, the judge sentenced Friday to seven years and added a $10,000 fine, not previously discussed.

“Your Honor,” I said, “in my opinion you have just rejected my client’s plea bargain agreement, and he is entitled to withdraw his plea.”

“I agree with you, Mr. Priest. Would you like to have a moment to discuss the matter with your client?”

“If your Honor pleases.”

What had happened, of course, was that the judge had become aware of the $25,000 cash and the fact that it was too late to forfeit it. This was his way of at least getting $10,000 for his county.

I took Friday back in an adjoining room to talk. We both knew that he could not withdraw his plea because if he did, the prosecutor could and likely would press forward, not only with the prosecution of Friday but also with Friday’s wife.

I told him I would go see the judge in chambers (the prosecutor having again authorized me to do so) and see if I could get a reduction in the fine.

The judge bade me come in when I knocked on his chamber door.

“Judge,” I said, “is there any way we could talk about a fine of, say, $5,000?”

“Don’t bargain with me, Priest,” he said.” I understand you’re the Democratic nominee for a district bench in Bexar County, and unless the politics have changed a lot over there [remember, this was in the ’70s], that should mean you will be a district judge in a couple of months. I just wanted to give you a lesson in how to be chickenshit.”

“Judge,” I said, “you’re doing a real good job.” And he was.

Friday paid the money and did the time; I still haven’t passed along his lesson.

Judge Wayne Patrick Priest
Judge Wayne Patrick Priest
Judge Wayne Patrick “Pat” Priest was a founding director of TCDLA. He received his JD from St. Mary’s University, where he served as an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at its School of Law from 1979 through 1999. He has been on the bench since November 1980. As the senior District Judge of Bexar County in semi-retired status, he is called upon to preside over some big cases—including the Tom DeLay campaign finance trial, among others.

Judge Wayne Patrick “Pat” Priest was a founding director of TCDLA. He received his JD from St. Mary’s University, where he served as an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at its School of Law from 1979 through 1999. He has been on the bench since November 1980. As the senior District Judge of Bexar County in semi-retired status, he is called upon to preside over some big cases—including the Tom DeLay campaign finance trial, among others.

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