When The System Doesn’t Work

I am currently representing a man, a really good man, who is sitting in a Texas prison. He’s been there for a couple of years now.  I’m trying to make sure that he receives a favorable parole decision from the TDCJ Board of Pardons and Paroles, at the earliest possible date.

If my efforts are successful, I will feel really, really good about it. However, the wrong that has already been done to him will always follow him.  His story demonstrates the  danger of prosecutorial abuse of power in our criminal justice system, and the dangers of selecting an unethical criminal defense lawyer.

I’ll call my client “Al”.  Although Al is incarcerated, it is my humble belief that the prosecutor and the defense lawyers who were responsible for making sure that Al is now in prison are much more deserving of prison.

The improper prosecution of Al took place right here in San Antonio, Texas, a few years ago.

If you are one of those people who thinks that prison only happens to other people, other “bad” people, you really ought to read the story of how Al ended up becoming a convicted felon, who is now living as a prisoner in one of TDCJ’s 120 prisons.  Moreover, if you’re one of those people who thinks the prosecutor always wears the white hat, and the defense lawyer wears the black one, you really need to keep reading.  There weren’t many white hats to be found in Al’s criminal prosecution.

Al is in his late forties.  Until a few years ago, he’d never been arrested or convicted of any crime, ever.  He also swears that he’s never used any illegal drugs.  When he was younger, Al served our country by being an active duty member of  the United States Army.  He joined after he graduated from high school.

As a Staff Sargeant, Al was deployed to Kuwait/Iraq, twice.  After more than 20 years of dedicated service, and plenty of sacrifice, Al left the Army.  He didn’t really want to leave, but he had developed some problems as a result of some of the things he had experienced in combat, and he’d reached the point where it just made better financial sense for him to retire from the military.  He was honorably discharged, and he left the military diagnosed with post traumatic stress disorder, or PTSD.

Al’s PTSD has nothing to do with why he is in prison.  Instead, Al’s love, his honor, and his sense of loyalty is really to blame.  Oh, and the prosecutor, who I hope and pray is no longer a prosecutor.

I mention the PTSD only because Al’s PTSD is pretty severe, and the VA provided counseling and medical treatment for Al’s PTSD prior to Al being incarcerated.  As you might guess, Al isn’t getting any treatment for his PTSD in the Texas Department of Criminal Justice, even though they have a copy of his medical records from the VA, and Al has asked for help, particularly the medications he used to be prescribed so that he could sleep.  But that’s not the point of this story.  Perhaps a future blog post will highlight the, umm, excellent medical care given to Texas prison inmates.  Anyway, back to Al’s sad story.

After he left the military, Al settled in San Antonio.  Eventually, he met a woman and married her.   She had 3 sons, and an ex-husband who didn’t really embrace the concept of paying child support to one’s ex spouse.  The older two boys were already teens when Al came into their lives, and the youngest boy was in elementary school.

Al did his best to help raise the boys.  He bought a house with as many bedrooms as he could afford using his VA loan eligibility, and he used his paychecks to support his wife and 3 step children.  But, as Al describes the situation, the older boys were pretty much delinquents by the time he entered their lives.  Whenever he’d try to instill a sense of morals, or pride, or discipline, the older ones disregarded or mocked their step father and thoroughly defied him on a regular basis.

Needless to say, the bond Al developed with the older boys was not particularly strong.  He had to be content with being a father figure and a positive role model to the youngest boy, who seemed much more malleable.  He grew to love the boy, even as his relationship with the other two boys grew worse and worse.

When the oldest boy moved out of the house, Al’s house, Al admits that he was actually somewhat relieved.  The pretty criminal behavior and the rotten attitude of the older 2 boys had been a constant source of friction between Al and his wife.  According to Al, she was one of those mothers who never seemed to think her kid did anything wrong.  You know the ones I’m talking about.  It’s always someone else’s fault that their son is in trouble or is screwing up his life.

I call those moms enablers.  There are quite a few guys in prison who have moms like that, which is yet another interesting topic for a future blog posting.  Anyway, back to Al.

Al was hoping that, with delinquent #1 out, and the upcoming departure of delinquent #2 from the house, there just might be hope for a restored  sense of peace in Al’s home, and his strained marriage.

THE CRIME THAT LANDED AL IN A TEXAS PRISON

On Al’s wedding anniversary, he had made a reservation at a really nice restaurant and he’d bought his wife flowers.  He couldn’t wait for her to get home from work so that they could have a special night together.  They had a rocky marriage, and Al was really trying to get their marriage to a better and happier place.

In the late afternoon on the day of Al’s date with his wife, Al was playing a video game with the youngest boy, who was now 13.  All of a sudden, the oldest boy unlocked the front door with the key he wasn’t supposed to have, ran into the house, went straight upstairs, and closed the bedroom door in the room in which he used to live.

Al thought this was very strange.  There was no good reason for the unexpected visit by the oldest boy, and his behavior just seemed suspicious.  Within a couple of minutes after Al’s step son arrived at the house, he was gone again.  Out the door, into his car, then vrrrroooom, away he drove.  Not even a “Hi” or “Bye”.

Al went upstairs, opened the door to the room, and looked carefully at the room.  He noticed that the closet door was open, and he peeked inside.  There was a trash bag with some dirty clothes.  Al was pretty sure that the bag was not there earlier.

He inspected the bag of dirty clothes and found a bag of cocaine inside.  It wasn’t a small bag either.  Al was really angry, but he didn’t know exactly what to do about the situation.  However, he knew that he wanted to wait until the next day to show his wife what he had found and to confront his step son at that time.  After all, it was their anniversary, and he did have a special evening planned.  Why ruin it over yet another instance of the step son’s improper delinquent behaviors?

Al reasoned that his wife was in so much denial about her eldest son that he needed to show her the evidence rather than simply allege that he’d found drugs.  He also feared that if he flushed the drugs down the toilet, his step son might be at risk of being hurt or killed if whoever gave him the drugs had done so on credit.  So, he took the bag of cocaine out of the step son’s former bedroom, and placed it in the top drawer of his own dresser, under some socks.

His wife came home soon thereafter, and the couple soon went out to the nice restaurant for their anniversary dinner. Unfortunately, they never even got to enjoy their meal.  As they were waiting for the food to arrive at their table, Al’s mobile phone rang.  It was the police calling, telling Al that he needed to get home immediately.

When Al and his wife arrived, the police had all 3 of Al’s step sons handcuffed, laying face down on the living room floor.  His front door was broken off the hinges.  The police battering ram was on Al’s front porch, and there were cops everywhere.  The police were already executing a search warrant of the premises.  Al asked why they had a search warrant, and the police officer told him that they had strong evidence that Al’s stepson was selling drugs, that they’d been following him, and that they believed he was using Al’s house to store his drugs.

A little while later, the bag of cocaine was found.  Of course, the delinquent stepson denied any knowledge of the drugs.  He then invoked his constitutional right to remain silent  Al decided to remain silent also, since he didn’t want to get the son into any more trouble than he already was in.  So, the police decided to arrest the stepson AND Al.  The police detective told Al’s wife that she was lucky that they didn’t arrest her too.

Al’s wife hired a lawyer, but she couldn’t afford two lawyers.  Despite a blatantly obvious conflict of interest, the lawyer went forward representing Al and the stepson.  Al told the lawyer everything about the stepson being the owner of the drugs, and the lawyer knew that the police got the search warrant because of the stepson in the first place, which supports Al’s claims 100%.

After months of “work”, the lawyer advised Al that he should plead guilty and that the Judge would give him probation.  Al’s wife,  soon to be his “ex-wife” begged him not to say anything to the Judge about the stepson being the true owner of the drugs.

The lawyer hired by Al’s wife got his “friend”, another lawyer, to go to court and get Al his probation plea agreement.  Al didn’t understand why a different lawyer went in to get him probation, but he was mad at both of them.

Al felt, rightly so, that the prosecutor ought to drop the charges against him, and that the prosecutor and the police had plenty of evidence about who was really responsible for the drugs being in the house.  He also asked his lawyer why the prosecutor wasn’t interested in the truth.  He was told that he was NOT to speak to the Judge or the prosecutor, lest he make his situation worse.

Unfortunately, the prosecutor was hung up on the fact that the drugs were found in Al’s dresser, rather than on how the drugs got into the house or even who the suspected criminal was in the first place.

The lawyer scared Al into taking a plea deal, allegedly a plea deal for probation.  He told Al that if he went to trial and lost, he’d likely get much worse than probation.  Al was scared, angry, and he reluctantly trusted in his lawyer’s advice and counsel.  Big mistake.

The plea deal that was supposed to be for probation was signed by Al, but much to his shock, horror, disgust, etc., the Judge refused to give probation, based on the amount of the stepson’s drugs.  Al was told he could not withdraw his plea, and the Judge sentenced him to 4 years in TDCJ.

The Judge angrily said that nobody gets probation for having that much cocaine in their house.  Hmmm, I sure hope the Judge doesn’t have a step son like Al had.

Meanwhile, the prosecutor, scalp in hand, dismissed the charges against Al’s stepson.  Wow.  All the police work, the search warrant, all of it, was based on a 19 year old delinquent selling drugs. Yet, all that really mattered in the end to the prosecutor (and the judge?)was that someone conveniently paid the price for the existence of drugs in Al’s house.

In the end, the 19 year old walked away without any penalty whatsoever.  The stepfather, a decorated U.S. Army veteran with no history of criminal behavior, ever, went up the river, and the defense lawyers moved on to the next case.

Al is understandably distrustful of lawyers, judges, and cops.  He served his country honorably, and Al always tried to be the best husband and father figure he could be.  Now, he simply tries to be the model inmate.

What a sad and unfortunate story!

11 thoughts on “When The System Doesn’t Work

  1. You are always guilty by association. This is what you would tell your children and As you know is the law. If I’m in the group when a bank robbery occurs I’m just as guilty as the actual robbers.

    1. Lucinda, “the law of parties” has the potential for prosecutorial abuse, and it is a very controversial topic. I see both sides of the argument. It is a great topic for a future blog post.

  2. I’ve learned more about the injustice in the justice system then I ever want to know.
    Being informed is frighting, but my brother needs my support and I’m here for him.
    Being a public educator for 33 years I helped save many children, not just by teaching them to read and write. That was easy once I was able to help them lay down all that baggage heaped on them by adults in their lives.
    Being in the justice system is like being on an assembly line. Just take a number, and pay, pay, pay and move on. Some of the power hungry, bullies in the probation office,
    the failure of supervision department to work with the D.A., or the concerned family just looking for resources to get treatment for the loved one, and the apathy toward human beings who need the help most of all. Did my brother offend, yes…and I am making no excuses for his responsibility in his circumstances. His possession charge was his doing, but sitting in the county jail for a month waiting for his hearing and now in a TDC unit, receiving no treatment for his substance abuse, no counseling to help him put his baggage down, just punishment. Oh, he is eligible for parole after only 3 months of his sentence, and I should be relieved, for his sake I am. I just keep thinking of the waste of the many others who the system is failing.
    Let’s tighten up supervision, but don’t kick a man harder when he is down. Every step my brother took toward sobriety, was criticized and denied my his probation officer. Then when he was to be heard by the judge, his paid attorney said we should be grateful he only got 3 years, and he’d be out by Christmas, Easter for sure. No mention of his progress, his treatment success, his turning him self in, no one even allowed to speak in his behalf. Hearing was over before I even sat down. The deal was made before we ever entered the room. Just keep shaking my head and wondering what am I suppose to be learning here.

  3. I ran across your blog on my phone on the way to a Treatment Associates meeting mandated by my parole officer. I’ve been an activist in the criminal justice/prison reform movement since the 70’s when I was in the TDC during the Ruiz Suit. While there were building tenders, etc. I’ve emailed J. Whitmire, K. Hutchinson, and C. Gonzales regarding introducing an amendment to the parole laws similar to that in Florida. That an offender be released off of parole after 5 years, no matter the length of the sentence, if there is a clean record. This would not, at first, include violent or sex offenders. This would save money and free up the parole caseloads. TX Gov’t Code 508.1555 is close but an offender would have to do half of his time on parole to be eligible. I’m 61 and have a 75 year sentence which means I’d be around 80 or 90 years old before I’d be eligible. As it is I discharge my parole in 2070…I should be around 120. I did 7 years in prison, paroled in 1991 and was out 12 years before being revoked on a technical violation for use of marijuana. I re-paroled 4 1/2 years later and have been out since. I’ve been looking or any blogs related to parole issues and yours is the first I’ve found that makes sense. It’s bookmarked on my system and phone.

    1. Allyn,

      Thank you for taking a look at my blog, and thank you also for the compliment! I congratulate you on your success since getting out of TDCJ (or TDC as it was called back then).

      You raise a very good point about the length of parole being set in stone for the entire duration of the sentence. Probation terms can be terminated early, but parole has no such mechanism available. One idea that might make sense is to have long term parolees with exemplary parole records eligible for some sort of monthly phone or even email reporting process, and then have just one meeting annually. Incidentally, the annual cost of a parolee is about 10% of the cost to keep a person locked up.

      1. At present there are different levels of parole reporting. Quarterly (every three months), Semi-annual (every six months) and Annual (once a year). But I want off of parole. I’m planning on taking a paralegal course to refresh what I know about the law to possibly reopen my case. I’ve done 1107 stat habeas cases for myself and others, 2254 federal habeas, a 1984 federal civil rights suits. My brother-in-law is Gordon Hartman (Morgan’s Wonderland) and I’ve been trying to get him to get my sister, his wife, to loan me the money for this. So far no such luck.

  4. Kevin, This is a great blog and I am glad I found it and you. I am impressed with your compassion and sense of justice. I am personally appalled at the lack of justice that is dispensed to most of these so called offenders. It all seems to be a numbers game for them, merely to say they “Won” caring little to nothing about justice or right or wrong.

    It might be fun to chat with you some time about all of this to see what side of the fence you come down on. Or if it would even be possible to implement some things I am sure are more factual than not about what is going on or at from where the so called justice comes from.

    This story is so sad it makes me want to cry and I know it is not an isolated case by and means.

    Thank you for the work you do for those who have been abused by the system. I call it cruel and unusual punishment.

    God Bless.

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