Texas Criminal Lawyer Blog

Recently, the Texas Court of Criminal Appeals denied a request for additional DNA testing from Ruben Gutierrez, a death row inmate from Brownsville. He was convicted in 1999 for stabbing a trailer park manager to death 14 times with a screwdriver. Gutierrez denies that he was responsible. He claims that there was no evidence that he was ever at the scene of the crime and also that he was coerced into making several statements in violation of his Fourteenth Amendment rights.

The question that comes to mind is "Who was that man's attorney?" The article notes that Gutierrez requested a court-appointed attorney to file a motion for more DNA evidence. Did he have one to represent him at trial, but could not afford one for the appeals? Was his attorney ineffective for failing to request DNA testing at the point in the proceedings when it would have made the greatest impact? It's unfortunate, because a savvy state or federal criminal defense attorney would have known when seek DNA evidence. He also would have advised Gutierrez on his rights during a police interrogation.

Far from "muddying the waters," DNA evidence could reveal Gutierrez's role in the crime, if any. DNA evidence was first tested for criminal cases in the 1980s, and has been critical to trial and post-conviction exoneration ever since. It has a remarkably high success rate -- a 350 million to one chance of an incorrect match. Therefore, it has proven conclusively time and again that a criminal defendant was not at the scene of the crime, resulting in the defendant's release.

DNA testing is not just for death row cases. It can be used to exonerate someone facing a life sentence for drug trafficking or another serious state or federal crime. It's just a matter of whether someone was at the scene of the crime. A strand of hair on the floor, saliva on a toothpick, sweat on a mask... all of these can serve as DNA evidence to convict or exonerate. Though the testing process can take several weeks, it is worth it if someone wrongly convicted of a crime goes free. It is especially worth it in death row cases: 17 death row inmates have been released due to DNA evidence since 1989.

The Court of Criminal Appeals would lose little by granting Gutierrez the right to conduct additional DNA testing. Better they find out now that Gutierrez is definitely guilty than learn of his innocence after he has been executed. Right now, Gutierrez's next step is unknown. It may be too late to save him from death row. But for another defendant out there with a seasoned criminal attorney, DNA evidence may provide a second chance.

Suppose you were convicted of drug possession in federal court. The Border Patrol found marijuana in your trunk, enough to put you away for a long time based on the Federal Sentencing Guidelines. Yet what if that the Border Patrol did not have probable cause to search your truck? What if they forced you to confess without first reading you your Miranda rights? A seasoned federal defense attorney could claim that this evidence is "fruit of the poisonous tree" and get it thrown out in federal district court. Unfortunately, too many suspects lack even an adequate defense attorney. The result is a prison sentence.

A defendant's last hope in that situation is to appeal. A federal or state appeal is serious business. You need to show that an error of law took place, such as if the judge gave an incorrect legal instruction to the jury. If the panel on the appeals court agrees, your conviction is overturned. More than ever, the defendant needs an attorney who has paid close attention to his case, knows the latest developments in the law, and can make sophisticated arguments.

A skilled private attorney can do those things. But what if you can't afford to hire an attorney? Then you would be entitled to a public defender. A public defender has the same role at federal or state level, which is to represent "indigents," or those unable to afford representation. Public defenders can represent indigents in trial and at appeal, though at the state level, they are restricted to just the first appeal. They are also extremely busy. By some accounts, up to 90 percent of criminal defendants at the state level rely on public defenders. This recent article underscores Texas's struggle to maintain adequate funding for legal aid. Because of insufficient resources, no matter how skilled and dedicated a public defender may be, he is often overwhelmed by cases. This is a problem, because then he cannot give adequate time to each case. As a result, important details could get missed that mean the difference between freedom and incarceration.

Many people charged with a federal or state crime might qualify for a public defender but really want to hire their own attorney. Even if it is a strain, if you can possibly afford to, hire a private attorney. First, a private criminal defense attorney can devote more time to your case. He or she can pursue all possible defenses, move to suppress evidence, and preserve error for appeal or even a post-conviction writ. Second, it gives the public defenders more time to devote to those totally indigent folks who really need their services. With more time, a public defender can provide more effective representation, and everyone gets a fair day in court.

If you work for a bank, or public institution, and you wrongfully use money or other assets entrusted to you, you can get arrested and face charges under Title 18, Chapter 31 of the US Code.

The definition of this crime of embezzlement -- which is essentially the intentional misuse of funds, assets, or other property put under an employee's trust -- can be quite broad. According to Section 656 of the US Code, different kinds of embezzlement carry different penalties. Federal, state, and local authorities can all pursue action against you and your associates.

Most embezzlement cases (approximately 4 out of 5, according to some surveys) involve the misuse of money, supplies, or inventory. But you can get charged for embezzlement for doing other things. For instance, if you steal letters or packages entrusted to your care by the bank or public agency or institution, that can be classified as embezzlement.

Embezzlement almost always charged as a felony , and punishment can be severe. Depending on what you did and how you misappropriated funds, you could face fines in the million of dollars and many months in prison, followed by a period of supervised release and mandatory restitution to the victim banks or institutions.

If convicted, the Court will look at (among other factors):

* criminal history
* the amount embezzled
* role in the offense, whether a leader or organizer
* whether you have a criminal record

If you've been accused of embezzlement or appropriating funds from a business, public institution, private charity, or other organization, whose funds are insured by the Federal Government, you may need a Texas Federal Criminal Attorney who is familiar with White Collar crime defense. Given the potential consequences for your freedom, bank account, and professional reputation, you want the highest quality defense possible.

There is a big ruckus being raised in Austin against Texas Court of Criminal Appeals Chief Judge Sharon Keller's refusal to hear the last-minute appeal of Death Row inmate Michael Richard which was filed 15 minutes late because of computer problems. Four hours later, Richard was executed by lethal injection--the exact method of execution the United States Supreme Court had agreed to review that same day.

"We close at Five," said Judge Keller.

The furor over her actions continues to rage in Austin. Demonstrators picket her house every day at 5:15 pm, and the Court of Criminal Appeals has a large gathering of protesters every week day. Many judges and hundreds of criminal defense lawyers have spoken out vigorously against her actions. Some of these same lawyers and judges have filed complaints with the State Commission on Judicial Conduct demanding that she be disciplined and removed from the bench. Editorials in the Texas Monthly, Austin American Statesman, and Austin Chronicle have called for her impeachment.

This is hardly the first time Judge Keller has turned a mean eye on fairness; she is already infamous for ignoring DNA evidence in cases which showed conclusively that the defendant was innocent of the crime for which he spent many years in prison. Some are now calling for her impeachment. I think this is a dim hope; the Texas Legislature must decide on such an issue, and most of these members are "law and order" types who are responsive mostly to the District Attorney and Police lobbies. Nevertheless, it is heartening to see people get involved in the process who have been silent until now.

How did we get this woman? We elected her. And she's not up for reelection until 2012.