Browse Category

Chapter & Verse

Chapter & Verse: Become an Outlaw

/

Dear and Beloved Colleagues,

Last we spoke, we talked about double jeopardy. Today, we move on to maybe my favorite word in the English language: the Outlaw. Article 1.18 of this fat, miserable companion of mine specifies, “No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.”

“Ok, Allison,” you’re saying, “what on earth does that matter?”

And I ask you, in return, does Jesse James matter? Does Wild Bill Hickock matter? Does absolute freedom from tyranny and injustice matter?

The purpose of outlawry is basically banishment. You, as a person, have been deemed to illegally exist in our jurisdiction. You have no legal rights anymore.

It’s interesting because, in a former life in a different country, we frequently resolved cases by making the sole condition of probation that the defendant would “leave the jurisdiction and not return during the pendency of the probated sentence.” It worked pretty well, and I remember recounting this to a salty old DA in New Mexico once. He laughed.

“You know, when I used to practice in Oklahoma, we would kind of do the same thing,” he said. “I’d tell repeat misdemeanor defendants to just not show up to court and we’d bench warrant them. Since misdemeanors weren’t extraditable, it basically meant if they left the county, they’d never have to face charges for it.”

Not in Texas, you wouldn’t, my Salty DA.

Smarter lawyers than I have argued that the outlawry provision effectively prohibits sex offender registration requirements, which I think is a pretty interesting way of turning things. Unfortunately, the 14th COA slapped that down pretty handily in Velez v. State, 2002 Tex. App. LEXIS 1153 at 15, basically saying that registrants don’t give up all their legal rights, and registration is not a punishment, technically, so nyah.

But I just need to tell you, dear friends, that there’s a legal definition of outlawry, which I don’t really care for, and a true definition of outlawry, which I aspire to.

Please turn, if you are able, to one of my favorite authors of all time, Tom Robbins, who is still alive in LaConner, Washington, where I once worked and frequented the same coffee shop (the only coffee shop) in the hopes of catching a glimpse of the Outlaw King himself. My icy, outlaw‑wannabe heart skips a beat when I read this passage from Still Life With Woodpecker:

The difference between a criminal and an outlaw is that while criminals frequently are victims, outlaws never are. Indeed, the first step toward becoming a true outlaw is the refusal to be victimized. All people who live subject to other people’s laws are victims. People who break laws out of greed, frustration, or vengeance are victims. We outlaws, however, live beyond the law. We don’t merely live beyond the letter of the law–many businessmen, most politicians, and all cops do that–we live beyond the spirit of the law. In a sense, then, we live beyond society.

When war turns whole populations into sleepwalkers, outlaws don’t join forces with alarm clocks. Outlaws, like poets, rearrange the nightmare.

The trite mythos of the outlaw; the self-conscious romanticism of the outlaw; the black wardrobe of the outlaw; the fey smile of the outlaw; the tequila of the outlaw and the beans of the outlaw; respectable men sneer and say ‘outlaw’; young women palpitate and say ‘outlaw’. All outlaws are photogenic. ‘When freedom is outlawed, only outlaws will be free.’ Unwilling to wait for mankind to improve, the outlaw lives as if that day were here. Outlaws are can openers in the supermarket of life.

Dear friends, I so encourage you to find your inner outlaw. The outlaw doesn’t listen to the definitions or branding of the State. The outlaw creates the world he wants to live in. But still, you know, wash your hands.

Love always, AJM

Chapter and Verse: Double Jeopardy

/

Dear and Beloved Colleagues,

This month, I write to you from the fog of eternal social distance. Me and my big orange O’Connor’s are snuggled up in bed together with a cup of tea and a burning desire to get to know one another since, you know, we have time on our side. There’s a sink full of dishes I’m ignoring, a toddler in the next room clomping around in my long-neglected high heels, and a feral cat noisily spraying his potent urine all over the outside of my bedroom window since one of the forsaken neighbors literally leaves 50 lb. bags of cat food open on his front porch. But inside my bedroom is a picture of calm, just me and the tea and the Code.

Somehow this thing always knows just what I need to hear. The next section is always exactly on-point. Like dipping into the Bible (ok, not so much the Old Testament with all the begats and the wrath), it always seems weirdly prescient. Today’s reading is §1.10-JEOPARDY. In a time so reminiscent of “Groundhog Day” where each day is the same as the last, jeopardy seems especially poignant. Even more, I am actually struggling with a jeopardy issue in a trial division case in which I seem to have gotten myself entangled recently.

No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.

The rule seems extremely straightforward, but it turns out it comes with a long and bizarre series of asterisks that ensure that almost no one really understands what jeopardy is, except probably our wizened TCDLA presidents. Fortunately, those guys are on our side. Unfortunately, everyone else thinks they know what jeopardy is because the rule looks so deceptively simple.

A long time ago when I was a baby public defender, someone gave me a job for which I was not yet ready. Across the stormy ocean, very far from home, and without access to a legal research database, I hacked (with a blunt machete, dear friends, not a computer) my way into the law.

On that tiny island that used U.S. law and precedent, I represented a man who had lost all hope. He was an expat from the Philippines working for a pittance at a local tourist hotel. The job did not live up to what was promised, and he was homesick, broke, and struggling with undiagnosed mental health problems while living in a filthy, sweltering barracks with other workers. One day he grabbed a knife and threatened to kill himself in front of his only friend there, a fellow countryman who tried to talk him out of it. As the talking seemed to not be working, the friend struggled with my client over the knife, and the client, in the struggle, stabbed the friend in the neck inadvertently. Horrified and shocked, he jumped out of the window of the barracks, hoping to hit the sharp rocks beneath him. Of course, friends, you know what happened. He landed in the water. A local man saw him and quickly rescued him, and then he became my client.

Locked up in the small psychiatric cell at the local hospital, my client grieved and wept. The single psychiatrist in that country was also from the Philippines and she did her best to counsel and comfort him. I could tell she wanted to help him, but she found him competent, and I believed her. The DA offered to dismiss charges if he agreed to deportation. The family of the dead man petitioned the Philippine government to press murder charges and render harsh punishment. I tried to imagine what that was in the Philippines and I decided it was probably more akin to a lynching than a trial.

I sat on my porch with some other American lawyers I knew, drinking lukewarm Asahi beer and smoking harsh Korean cigarettes. “I think we have to prosecute him here, and then jeopardy attaches, and the Philippines can’t do anything to him.” I felt brave. We had double jeopardy protections; the Philippines had double jeopardy protections (I had bothered to check). That’s when I heard, for the first time, about the Separate Sovereigns doctrine. My heart lurched and for the millionth time that week, I realized again how inadequate I was.

Eventually, after a series of negotiations, the Philippine government agreed to confine my client to a mental hospital and not try him again if he were adjudicated of something in the island nation (not the Philippines) where charges were brought. I pleaded him to an involuntary manslaughter charge, and his sentence was suspended for ten years, with the only condition being that he leave the country and not return. Later, the Philippine consul brought me a box of instant coffee packets and a large pineapple. I am still unsure whether that gesture was personal or professional, but it was better received than the melting sack of frozen fish I once found on my coffee table after I woke up from a nap.

This is my round-about way of telling you, dear friends, that double jeopardy is weird. If you catch any sort of indication of it, much like a whiff of seafood coming from your living room on a warm, equatorial afternoon, it is a good idea to investigate immediately.

Stay safe and let me know if you need anything.

Love Always,
AJM

Chapter and Verse: The History of the Bail System

/

Dear and Beloved Colleagues,

I am not sure how it is that the Code knows just what I need to hear. This fat, new baby of mine falls right into the sections that are most applicable right when I need them, it seems. As I turned through the sections we’ve already covered and came across the next section in our read-along, boom, right there, in the middle of page 13: Art. 1.07 Right To Bail.

Any recognizable form of a bail system started with the Anglo Saxons, somewhere around 600 AD. Stay with me, beloved friends. This isn’t as boring as you think it’s going to be. The Anglo Saxons, you’ll remember, were the people who lived about where England is now (Angle-land, get it?) and they left us a lot of their language and some of their culture, and they farmed and fished in relative harmony until about 1066 or so, when something terrible happened, but that’s not what we’re talking about now. The Anglo Saxons developed a system of were-gild. “Were” means “man,” like in “were-wolf,” and “gild” means “gold,” or more generally “money.” So they developed this Man-Money system. There was a whole list of crimes and the corresponding restitution payments: if you cut off someone’s index finger, that was punished by a set amount. If you cut off someone’s pinky finger, there was a lower amount. There were things we might think of as enhancements (You stole a pig? That’s $50. Oh, it was the King’s pig? That’s $100). Then there were things that were mitigating (You stole a wife? That’s $200. You stole her from her second husband? That’s $100 and you have to keep her).  There was an idea that people generally aren’t dangerous to the community as a whole, so expending massive resources to confine someone, or wasting manpower by executing or mutilating people for small offenses, was probably not good for anybody. I tend to agree with them on this point.

Though the law was clear about what the restitution amounts were, trials still had to take place in front of factfinders, and sometimes that took a while. This is where the bail system emerged. People who were charged with a crime had to find someone who would stand as their surety, and if they absconded pre-trial, the surety would agree to pay the were-gild in full. Everyone was satisfied.

But then, as time went on, things changed. The horrible events of 1066 unfurled. Later, Martin Luther would drive a stake into the heart (and door) of the church, and the rift that followed would both lead to the colonization of the US and the rise of capitalism, both of which have everything to do with the current ridiculous money-bail situation we find ourselves in today, my dear coworkers. Now bail amounts are arbitrary and almost entirely discretionary. This is made worse by the predatory practices of commercial bondsmen, and the misinterpretation by judges of how those bondsmen work.

What’s the point of all of this history? I’m not sure. Something about how we can learn from the past, from even older, dead-er white guys who made the law before this current iteration, how the barbarians 1,500 years ago were more humane, somehow, than these barbarians in expensive haircuts and tailored suits who make the law now. Oh, friends who are still with me, I am at a loss this month. How weird it is to write about bail when one has been sheltering in one’s home for months on end.

 But what I will say about this section of this giant tome of sections is that it is short–blessedly, powerfully, impactfully so. In the same vein as “Jesus wept.”

“ALL PRISONERS ARE BAILABLE.” Of course, there’s an asterisk to that–the “death is different” asterisk. But for us, that is all we have to remember, that single promise reaching out to us through history and cronyism and viruses and uncertain futures: All prisoners are bailable. Some are more bailable than others.

Love always.

Chapter & Verse: Defending in the Name of Hope

/

My Dear and Beloved Defenders,

Today I am reading TCCP 1.051, the next nibble in our attempt to eat the law whole. Right to Representation by Counsel. And then 1.051 (c), especially close to my little public defender heart: An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation.

If the interests of justice require… that’s the part I’m thinking the most about today. The “interests of justice” part. Something I wonder about in the minutes of quiet during this quarantine is my role in the interest of justice. Sometimes I struggle with the part we all play as defense counsel to the damned. The further we climb into this system, the more apparent it is that it is rigged, that the game is predetermined, and the dull and powerful will win every time.

Grant Gilmore (who knew a lot about Hell because he was one of the law professors who drafted the Uniform Commercial Code-remember that?) wrote in the New York Times in 1977: “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.”

I wonder if my appearance as counsel helps to legitimize an illegitimate system. If I know that the deck is stacked, why am I playing the game? I’ve thought about this many times in the seven long and strange years I’ve done this job, and more than once I’ve almost walked away because of it. 

When I was in law school, my aunt fought breast cancer. By the time they caught it, it had already metastasized and there was little hope of her survival. She had also struggled for many years with drug addiction, and she was the first person I knew who went to prison. When I was eight years old I visited her there in TDCJ. She wrote me long letters on yellow legal pads and drew the intricate and beautiful designs the women in her cellblock would weave into each other’s hair.  Later, when I was 17, I would bail her out of jail. I would sit up with her and pray that she would not go to prison again. I would try to sneak in stamps and perfume in the pages of letters I mailed her and help her come up with spread recipes from the prison commissary lists.

Later, when I was 29, I sat in a hospital room, trying to chat casually as the doctors dripped slow, thick poison into my tiny aunt’s veins to kill her cancer. I complained about law school. I complained about the idea of being a lawyer. “But at least you… have a chance,” she said, “and I…” she trailed off. That was as close as she ever came to admitting her disease was terminal, that she knew she was mortal. Soon after, as my aunt lay dying in her tiny apartment, my mother would lift her sister’s frail body, hollow-boned and aching, from the shallow bathtub and I heard her rasp, “I’m not going to die in that bed.”

 “I’m not going to let you,” my mother said, firmly, in this voice that I have always believed. “I won’t let you.” And I know she believed it, fervently, they both did, even though they also both knew that my mother, as powerful as she was and is, had no real control over life and death. And though I didn’t see it, I imagine my mother patted my aunt’s narrow arm as she lifted her up into the bed that she would in fact, two days later, die in.

I think of both of those women, and I know that I can’t be a spectator to all of this. That even if I know the result, that I know my client’s fate is sealed, that even if my whole job is palliative care, I have to do it. That as I have faced terrible things in my own life, I have wanted someone by my side to pat my arm and believe fervently that there is hope.

Oh friends, I love you, and I revel in your victories that are healing and restorative, that push past hospice and into recovery. But please know that in your defeats you are just as meaningful, and sometimes more so. And whether or not justice will exist for your client, and whether or not hope is justified, please know that that is why you are there, at the feet of the dying, because if there is hope it is in your advocacy and your representation, and you are called, by the interests of justice, to serve.

Love always and wash your hands.

Chapter & Verse: What Does “Speedy Trial” Mean Anyhow?

/

As I strike out on this venture to read through the TCCP with all of you, my darling colleagues, I realize now, in this second humble installment, what a huge elephant I have promised to eat. For example, the next section I want to dive into is Art. 1.05. “Rights of the Accused.” Oh gosh. That’s a lot. Even in Texas, apparently, the accused have a lot of rights. Even the first sentence has a lot to unpack: “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” We have to pick something to focus on here. I pick the speedy part.

Speedy trials have come to mean something entirely different in Texas than they did when they were first invented. Back in the Day (and by “day” I mean 1166 AD, specifically the Assize of Clarendon), trials had to be held within a few days of the person being arrested. To be totally fair, “trials” were also a bit easier to organize back then, requiring mostly a large vat of boiling water into which the hand of the accused person was plunged, then wrapped in bandages for an additional three days and then examined by a priest who determined if the hand was infected or not. If the wounds were infected, the person was guilty. This is about as fair a system as has ever been invented and, frankly, I’d probably take my chances with the vat of boiling water if I was ever given the option of that or to sit in the county jail for 20 months or so months awaiting trial, but I digress.

Texas actually used to have what most other states have, which is a speedy trial act that required the state to be ready for trial within a set amount of time after “the commencement of a criminal case.” In Texas, this meant that the state had 120 days to get ready for a felony, barring exceptional circumstances. In my humble experience in other jurisdictions with similarly strict day requirements, there are always exceptional circumstances. In Meshell v. State, 739 S.W.2d 246, the CCA declared that the Texas Speedy Trial Act violated the separation of powers doctrine, and that the legislature couldn’t tell the DA how long it would take to get ready for trial. That’s disappointing, especially for Meshell himself, whose lawyers didn’t argue that his case was a federal or state constitutional speedy trial violation. So, when the act was struck down, he hadn’t preserved any error for review and ended up with a conviction (lesson: OMG CONSTITUTIONALIZE YOUR OBJECTIONS).

So now where does that leave us? What do we get when we get a speedy trial? Answer: Not much. We get SCOTUS’s Barker v. Wingo factors for the court to consider once the delay gets long enough to qualify as “presumptively prejudicial” (the length of delay, reason for the delay, assertion of the right, and prejudice to the accused). How long is long enough to be considered “presumptively prejudicial?” Cantu v. State, 253 S.W. 3d 273, tells us that it’s more than four months but definitely 17 months. Everything else is up for interpretation.

So, much like life itself, we are challenged to sift through a morass of meaninglessness and come up with meaning for ourselves. I would contend that it is good practice in appropriate cases to: (1) Demand in writing a speedy trial at the beginning of a case; (2) refuse to agree to resets – make the state request it, write on the reset that you’re signing as to service only, not agreeing, etc; (3) flesh out your prejudice (yeah, it’s prejudicial if a material witness dies, but you can’t show what they would have testified to if you never interviewed them); and (4) move to dismiss for speedy trial violations.