August 14, 2025 • 30 mins
Welcome back to So You Got Arrested, the podcast that helps you understand the complex world of the criminal justice system. In this episode, we're joined by veteran prosecutor Scott Simpson, who pulls back the curtain on the courtroom's inner workings. He shares his incredible insights on the factors that influence a case's outcome—from plea bargains to sentencing. Scott reveals who gets a second chance and who faces the harshest penalties, shedding light on the disparities and difficult decisions made every day. Scott's decades of experience provide a unique perspective you won't hear anywhere else. Watch this episode to learn: Why some people get a "break" while others don't. How prosecutors decide who to charge and what plea deals to offer. The behind-the-scenes factors that influence a judge's sentencing. How race, socioeconomic status, and jurisdiction can impact a case. Don't miss this eye-opening conversation that will change how you view the justice system.
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Transcript
Episode Transcript
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Speaker 1 (00:01):
The Texas justice system is messy, so let's break
it down.
You're listening to so you GotArrested the podcast that tells
you what really happens after anarrest, Hosted by BRIC criminal
defense attorneys.
We talk to the people who'velived it, worked in it and been
shaped by it, Whether you'refacing charges or just want to
understand your rights, youroptions and the smart moves that
(00:23):
could change everything, We'vegot your back.
Speaker 2 (00:25):
Hi, welcome to.
So you Got Arrested.
This is a podcast thatdiscusses what happens from
cuffs to courts as you gothrough the criminal justice
system.
I want to remind you that ifyou have questions or topics
that you want discussed, you canemail us at justarrestedpodcast
at gmailcom.
That's justarrestedpodcast atgmailcom.
That's justarrestedpodcast atgmailcom.
(00:45):
Now, scott, I know you're adefense attorney, but in a
former life you used to dosomething else.
Speaker 3 (00:51):
I was a prosecutor for 21 years, In and out.
I was a prosecutor for 15 years, then went into private
practice.
Then, when Nico LaHood becamethe DA, I came back to the DA's
office.
Then when he lost the election,I retired.
And then I also was asked tocome out and help out and
prosecute out in Medina Countywith my good friend Mark Habe,
who I went to law school with.
Speaker 2 (01:12):
And I'll say, scott, before you came to work with us,
you and I had met a few times,but I was aware of your
reputation because you'veprosecuted some very high
profile cases, quite a fewmurders.
At one time you'd given me thenumber of murders you had
prosecuted.
Speaker 3 (01:28):
It was Well, I prosecuted hundreds, but I've
probably tried like maybe 30 to50 murders.
I don't really keep track ofthem, but I've tried probably a
couple hundred felonies.
And then as a defense attorney,I've tried federal cases.
Yeah, I've tried a lot of stuff.
Speaker 2 (01:44):
That's what I wanted to discuss today.
I want to discuss when, whatthe prosecutor is looking at
when they get a case.
Ok, and so let's take ascenario.
Somebody is accused of a crimelet's say it's possession of
cocaine, right.
So they get arrested, they postbail, they're out on bail and
(02:07):
the report.
How does all that get to theDA's office?
Speaker 3 (02:11):
So the initial magistrate report like the
offense reports that the officerwrites when they arrest you
that's in there off the bat.
That's uploaded into the system.
We can see it right away.
What's supposed to happen,though, is that a follow-up
detective on all felonies issupposed to gather up the rest
of the evidence, which, in adrug case, is just going to be.
You're waiting for the labreport, right, okay, and so, if
(02:34):
you're in custody, you'reentitled to be indicted within
90 days from the time that youwere arrested, and we're not
going to have that lab reportback within 90 days, so you're
probably going to get out onwhat we call a PR bond, which is
just a small 3% bond that youdon't have to go through a
bondsman to make, but so, onthose drug cases, there's not a
(02:56):
lot for the detective to dobesides submit the drugs.
They're the ones that submitthe drugs off to the crime lab,
and then they file the case withus, and then we get the results
back at the DA's office.
Speaker 2 (03:07):
And so because it's a felony and we've kind of
discussed this before, but for afelony to make its way into
court as an officially filedcase, it has to go to the grand-
jury Right.
Speaker 3 (03:19):
So in Bexar County we have two different grand juries
running at all times.
There's a grand jury that meetsMonday and Tuesday and there's
a grand jury that meetsWednesday and Thursday.
And what's a grand jury, if youcould just describe it.
So the grand jury is the samething as a regular jury, but
they're coming, instead of beingcalled down for your jury duty
to hear a trial, you're calleddown for grand jury.
You don't necessarily knowyou're being called down for
(03:40):
grand jury, but so they callless people, so they may only
call like 50 people and say 30people show up.
It's very different frompicking a jury where attorneys
talk to you the 30 people whoshow up for grand jury duty, the
judge sits there and says whowants to volunteer?
It's for two months.
So for two months you'recommitting to come into the
(04:01):
grand jury room every Monday andTuesday, but we usually have
you out of there by noon.
Speaker 2 (04:05):
Are you finding people guilty or what are you
doing in grand jury?
Speaker 3 (04:08):
So if I'm presenting cases to the grand jury.
I may come in say I'm doingdrug case.
I may present 10 cases to thegrand jury all at once and then
I leave the room when they voteand nine out of the 12 have to
vote that there's probable causeto proceed with the case.
In other words, there's enoughthat we think this case should
(04:29):
be filed in court and if youcan't get nine out of the 12
people to vote for a true bill,then the case is no bill and the
case is dismissed and the caseis over at that point.
Speaker 2 (04:38):
Yeah.
Now if the grand jury takes alook at your case and says, hey,
there's not enough here to goforward, Is it possible for a
prosecutor like yourself tobring that case to the grand
jury again?
Speaker 3 (04:50):
It is.
So sometimes a grand juryno-bills a case that shouldn't
be no-billed, there's nothingpreventing us from taking it to
another grand jury.
I'll give you an example.
A long time ago this is backwhen two famous prosecutors
presented this murder case tothe grand jury, where a guy had
threatened a doctor's daughter,said you're not gonna be able to
(05:10):
watch her all the time andwe'll get her eventually.
And so the doctor went out andshot him in the head.
Oh wow, ok, and that's notself-defense, right.
But the grand jury didn't likethey.
All.
The grand jurors said I'dprobably do that too.
So we presented to one grandjury they know about it.
There was a lot of outrage fromthe family of the deceased.
And then they presented to asecond grand jury and they also
(05:33):
know about it, and that at thatpoint we're like we're not
pursuing this case.
Speaker 2 (05:36):
Right, because that kind of gives you an indication
as to, hey, this is what aregular jury as to hey, this is
what a regular jury.
Speaker 3 (05:45):
If I can't get probable cause from nine out of
12 people without a defenseattorney arguing the other side,
I'm never going to get 12people to agree guilty beyond a
reasonable doubt.
Speaker 2 (05:51):
So when these cases come in to the prosecutor's
office and officers are turningin their reports, are there
cases that you can look at andsay no, this doesn't pass the
muster.
Speaker 3 (06:04):
So I probably shouldn't say this.
So when I was a prosecutorbefore, most of the time I was a
prosecutor I was in familyviolence unit handling child
victim cases, family violencecases.
But I also was in regularcriminal trial division and a
lot of those drug cases thatwere under 0.2 grams I was
rejecting those.
Speaker 2 (06:22):
OK, cases that were under 0.2 grams, I was rejecting
those Okay.
So this is where somebody getscaught and they might have just
a minimal amount.
I think that the way that Iused to talk to clients about it
is sometimes it might even be asituation where somebody may
have used and tossed the emptybag down, you know, in the car
and there there's residue, theresidue cases.
Speaker 3 (06:41):
Because, remember so, a gram is a sweet and low
packet.
So now imagine 0.2 of a sweetand low packet, right, okay?
So now that's one of thosethings I was just doing.
If I told my supervisors they'dprobably say stop doing that.
Now, mind you, I'm not saying Iwas rejecting those.
If they had flushed a bunchdown the toilet and all we had
left was 0.2.
Right, or they shoved a bunchin their mouth, don't do that,
(07:03):
because you can die.
It's not worth dying over adrug case where you're going to
get probation because you ateall your drugs.
Because I had a friend when Iwas in high school who ate all
the drugs and died of a heartattack.
Speaker 2 (07:15):
Well, and that's a you know, if I mean, if you
don't die or nothing bad happensto you, you may pick up another
felony Right the tamper withevidence, tampering with
evidence.
Speaker 3 (07:26):
Some of those cases are bullshit, but that's a
recent development that they'retrying to get you now for
tampering for the drugs Right Ithink a lot.
In the old days they used tosay it's punishment enough that
you ate the drugs and survived.
Speaker 2 (07:38):
But but anyway.
So when you're looking at thesecases and they're coming into
you, let me ask you does thecriminal background of the
accused play a role?
Yeah, how so.
Speaker 3 (07:49):
So now I don't look at the criminal background of
the accused when I'm firstlooking at the case.
Ok, but why is?
That Because I don't want it totaint what I think about the
case.
If the case sucks, it doesn'tbecome better just because you
have a bad criminal history.
Speaker 2 (08:04):
Okay Now it's fair to say, maybe not all prosecutors
do that.
Speaker 3 (08:08):
That may be true.
I eventually have to look atthe criminal history because if
I decide, oh, this is a goodcase, I'm going to indict it.
Now I have to see if they'rewhat we're called.
If you've been to prison before, you're now a repeater, so it
elevates your crime one level.
And if you've been to prisontwice before, you're now
habitual, which means your rangeof punishment is 25 to 99.
So I got to look at thatbecause I have to add that to
(08:30):
the indictment.
Speaker 2 (08:53):
Or because of like a DWI.
Thirds, you have to look.
The reason I ask that questionis I've had cases where you know
, let's say, somebody is chargedwith a misdemeanor, family
violence, and maybe the caseitself isn't all that great.
But I've had situations whereprosecutors tell me well, we
looked at your guy's criminalhistory and he's had three prior
family violence cases that wereall dismissed, but that shows
that there's something going on.
What I mean?
What are your thoughts on that?
Speaker 3 (09:09):
I, I feel a lot of times.
I feel the same way.
If you've been, if you've beenbeating three different women,
you've gotten away with thethree different times, you may
have to buy a trial on thisfourth one.
So so, in that circumstance itnot probable cause, we can't do
that.
But but if it's a black eye andthe woman is calling us
constantly saying I want thesecases dismissed, I'm not going
to dismiss that case.
Speaker 2 (09:30):
OK, ok.
And so that's a circumstancewhere criminal history, even
though you know from the outside, looking in, you may have a
defendant or his family saying,hey, wait a minute, all those
cases were dismissed, they maystill come into play, right.
Speaker 3 (09:45):
And so it particularly happens in family
violence cases and it'sparticular.
So it makes a difference if youhave prior family violence
cases dismissed involvingdifferent people, because then
it's not just the problems thesetwo people, the problems this
guy OK, OK, All right and so,but remember, I'm still looking
at it and and the initial.
(10:05):
So I have a 911 call that'ssaying he's beating me up and I
have a photograph of a black eye, and so the fact that somebody
is now saying she doesn't wantto pursue the case, I'm never
going to dismiss the casebecause I have a good case that
I can prove without her Right.
Speaker 2 (10:20):
And and that's a question that comes up a lot
People want to know well, look,if the person on the other side
of the case, you know, in afamily violence case maybe it's
a spouse, or you know asignificant other, but you know,
sometimes maybe it's a theftcase, or and they're saying, hey
look, the person on the otherside of the case does not want
this case to go forward.
Speaker 3 (10:48):
Does that mean that a prosecutor has to get rid of
that case?
No, it doesn't.
So what I like to say whenpeople are calling us up saying
they don't want to pursuecharges, it's not going to be
the prevailing factor in what wedo with the case.
It's going to be a factor, sureOkay.
So in the end I'm still goingto look at the evidence.
So if I have good evidence onthe case and a reluctant victim,
then I'm still going toprobably go forward in the case.
But then sometimes I haveadamant victims and the case
(11:08):
stinks and I'm going to stilldismiss the case.
Because the flip side is truetoo.
You have some victims who wantus to pursue on something and
you realize this is somebody outwith a vendetta.
This case is no good, I'm goingto reject it.
This case is no good, I'm goingto reject it.
And that's where sometimesweaker DA's offices don't have
the intestinal fortitude to tella victim complaining that no,
we're not going to go forward onthis case because they'd rather
(11:30):
file it and lose in a trialthan have the fallout of the
person calling and complainingabout them.
Speaker 2 (11:38):
And that was my other question is if you have a
victim on the other side let'ssay it's an estranged family
member who, once you buriedunder the prison, is the DA's
office obligated to seek theirapproval for everything?
Speaker 3 (11:51):
Okay, not their approval, but they're obligated
to let them know what they'redoing, sure, okay.
So one of the things I alwaysused to tell all my advocates
and my younger prosecutors don'tcall up, say you got an
aggravated assault with a deadlyweapon, okay.
But so if you call the victimup and say what do you want to
see happen on the case, they'regoing to say we want the max.
(12:11):
That's not how you do it.
You call them up and say I'vebeen doing this for 10 years,
this is what I'm going to offeron the case.
I wanted to let you know, okay,okay, and then that's how you
control that kind of thing,right, and it's not to say that
we don't care what the victimthinks, but I still, everything
that we do as prosecutors shouldbe based on what we think is
(12:32):
going to happen in a jury trial.
Sure, okay, and I've triedenough of them that I kind of
have a good sense.
Now that still doesn't meanthat I couldn't try a case three
different times in front ofthree different juries and get
three different results.
But I do have the experiencethat I kind of know how a jury
is going to look at this and I'msupposed to utilize that
experience to decide what is afair resolution for this case.
Speaker 2 (12:52):
Well, and you hit on that, a fair resolution to this
case, because a prosecutor'sobligation in court is different
from a defense attorney'sobligation in court right
Completely different.
What is defense attorney'sobligation in court right?
Completely different.
What is the?
Speaker 3 (13:03):
prosecutor's obligation.
So prosecutor's obligation iswritten out in the Code of
Criminal Procedure, section 2.01.
Prosecutor's duty is to seethat justice is done.
Speaker 2 (13:13):
And seeing that justice is done.
Does that include the defendant?
Speaker 3 (13:18):
Yes, so justice for everybody Right.
Speaker 2 (13:21):
So it may be a case that you see that you know, you
say, okay, I think this guy diddo something, but I don't know
if this is worth prison, or Idon't know if this is worth the
max, and then you handle itaccordingly.
Speaker 3 (13:32):
Which that's a great point.
So if I have a family violencecase and I have a wife who's
calling up and saying I want todismiss the case, I get on the
phone with them a lot of timesand I say I'm not going to
dismiss the case.
But what's happening is thedefendant and the defendant's
lawyer is telling her they'retrying to send him in prison.
And then you're going to losethe house.
And I say I'm offering himthree years deferred
(13:54):
adjudication, which is a form ofprobation, form of probation
where you don't show as a felonyconviction.
And then and I'm offering themso is the problem is when he's
drinking, right, well, I canmake sure he takes alcohol
treatment and I can make sure hedoes a batter's intervention,
and I, and then she says, well,he should take that.
And then so I've worked out.
I said, well, that's, I alreadyoffered it to him and they
(14:15):
refused.
Speaker 2 (14:15):
And then next thing I know I get a call from the
defense attorney saying we wantto come in to take that plea
offer that we rejected lastmonth, right, right.
And that's where clients maysometimes get frustrated saying,
hey, I know my wife hasindicated this or my loved one's
indicated this, why isn't thecase going away, right?
Speaker 3 (14:31):
And so it's important for everybody to know that,
just because your loved one istrying to get the charges
dropped, it's evidence-basedprosecution.
We're going to make thedecision based on what the
evidence tells us, not based onwhat the person wants to do with
it after the fact.
Speaker 2 (14:44):
I appreciate that, and so that is our first segment
here on.
So you Got Arrested and we'llbe back.
Speaker 4 (14:49):
The attorneys of Brick Criminal Defense have
helped over 5000 clients move onwith their lives.
When an arrest or accusationturns your life upside down, we
have the knowledge, experienceand integrity to get your life
back on track.
Traditional legal ethics,modern legal tactics the best
defense possible to get youthrough the criminal justice
system.
Search Brick Criminal Defenseto see our reviews and find out
(15:10):
why so many of our clients havetrusted us to fight for them.
Speaker 2 (15:14):
Brick Criminal Defense helping our clients move
on with their lives so Scott,an issue that comes up quite a
bit is there's times where andkeep in mind I've only ever
really done defense work and sothere are times where families
will come to me and say, well,why won't the prosecutor offer
this?
Can a defense attorney make aprosecutor offer a specific plea
(15:40):
bargain offer?
Speaker 3 (15:41):
They never can make us do a specific plea offer.
But I will say this mostprosecutors will entertain a
reasonable counteroffer.
But here's the thing I've hadthis happen multiple times.
So say, my offer is five yearsprison for this family violence
assault okay, because he's he'shad two or three priors and and
(16:04):
there's particularly goodpictures of injuries.
Okay, um, and if you come asdefense attorney, come to me and
say, would you offer meprobation on this case?
And I sit there and say, ok, letme go back and look at it.
And then I go and I make surethat the victim is OK with it
and of course she's been tryingto drop the charges anyway.
And so I look at the evidenceagain, I look at his history,
(16:27):
and then I call you Steve.
Ok, I'll do five yearsprobation instead of five years
prison.
And then you tell me well,we're not going to take that
either.
Now I'm pissed off.
Don't make a counter unlessyour client is going to take the
counter.
The idea behind a counter isyou're telling me that if I do
this, you'll take it.
Speaker 2 (16:47):
Right, and I've had that situation before on the
defense side where a clientasked me well, would they give
me five years of probation?
I said, well, let me work onthat.
And then I get back and say,hey, good news, they'll give you
the five years probation.
And the client says, okay, letme think about it.
And then you're stuck.
Speaker 3 (17:03):
And so I'm very clear with our clients at Brick the
ones I handle like.
If I'm going to make thiscounter, if they accept it,
you're taking it.
You need to understand that.
Speaker 2 (17:12):
Now let me ask you this you know, when you're
sitting in that role as aprosecutor and that defense
attorney is coming to you andthey're saying, Scott, you're
offering five years in prison onthis case, you know, I'd like
you to consider probation for myclient.
Are there things that thedefendant can do to help in that
that cause?
Speaker 3 (17:31):
Yeah, and so I.
So I may say to you okay, firstof all, are you saying he'll
take the probation if I offer it, because I don't want to
agonize over it if he's notgoing to take it?
And secondly, is there somethings, what we call a
mitigation packet, is there somethings you can show me that I
can put in the file to helpjustify why I'm giving him
probation in a case that maybe,on his face, doesn't deserve
(17:52):
probation?
Speaker 2 (17:53):
And what kind of things would those be?
Speaker 3 (17:54):
Well, say he's got some mental health issues but
now he's getting help Okay.
Or say and this is important sothe idea of the criminal
justice system is we want you tonot re-offend.
So if you have a good job, areally good job, and pleading to
this will make you lose yourjob, or rather, if you get
deferred, you can keep your job.
I'm going to seriously weighthat, because my gal is still
(18:19):
with him and they have kidstogether and things aren't going
to get better for thatrelationship if he's now out of
work and they get evicted fromtheir house.
So as prosecutors we got toworry about all that stuff.
Sure, okay, because we careabout the people.
I try to tell all the DAs andthe and the advocates don't tell
victims how to live their lives.
So don't sit there and say youneed to leave this guy.
(18:40):
That's not our business.
Our business is the law wasviolated, the police were called
and there has to be ajustification, there has to be
some consequences for their act.
What that consequence can be,we can talk about till the cows
come home.
Speaker 2 (18:53):
Well, and you know, a lot of times I'll explain to
clients that the prosecutor hasno idea who you are other than
what's on that offense reportand what's in your criminal
history.
So to the extent that somebodycan help me show who they are,
you know, whether it's throughtranscripts from a school, some
(19:17):
letters from a job, there's eventimes where I've submitted
photos of the family, you know,just to, hey, this is a loving
husband, he's got a family,things like that, just to kind
of show the prosecutor that, hey, this guy is more than just a
criminal defendant on yourreport.
Speaker 3 (19:33):
Right, and I've had a case where it turns out this
guy, who's had a run of criminalhistory, his brother was
murdered when he was 17 yearsold.
I have no way of knowing that,okay, but then I can look it up
once you tell me, but I have tolook it up by the defendant's
name, but I can sometimes lookit up by the victim, but I
wouldn't know that because it'snot linked like that.
(19:53):
So then I see, oh shit, he wasa good kid and he went off the
rails when his brother wasmurdered.
Maybe he found the Bible,whatever.
And I'm like, okay, well, thatchanges my opinion of this.
He needs help more than heneeds prison.
Right, right, right.
Speaker 2 (20:08):
Now going through that plea bargain process again.
I know there's times wherepeople get frustrated and say,
well, can't you make the statedo this or that?
There's times where we can helpgetting the state there and
there's times where we can't.
But the defense attorney thatyou have, how important is that
during that process?
Speaker 3 (20:29):
It's very it's important that you have a
defense attorney who's everybodyknows is credible.
A what does that mean?
That that you're not just comeup and bullshit me, okay, like
there's for defense attorneys Ihad.
I don't.
I hope I didn't tell this storybefore.
Let's not name names, but Okay,I had a defense attorney when I
was in family violence courtand it was and and and.
There's a defense attorney cameup to me and said he never
(20:51):
touched this woman.
He went over there and they gotinto argument, but he never
laid his hands on her.
And this is a bullshit case.
And I said it's not an assaultcase, it's a violation of
protective order.
And he stopped for a second.
He said well, he was neverthere.
And we both started laughing.
That's a problem, ok, but itwas funny at the time.
But you have to be credible.
(21:12):
And so if you're a defenseattorney and you don't know for
sure, I always say my clienttells me this and this about the
victim, sure, and then that wayI don't look like I'm lying to
the, to the prosecutor, if theylook it up and say that's
completely not true.
Speaker 2 (21:26):
And does the attorney's reputation make a
difference?
Speaker 3 (21:35):
Huge, huge, how so?
Because I'm going to listen toyou more when you come up to me
and I respect that you come andyou're always reasonable in what
you're doing.
If you ask if there's anattorney, he's always asking.
Like there's some attorneysdefense attorneys out there who
think every one of their clientsis innocent and they want every
case dismissed.
Well, they don't have anycredibility anymore.
Okay, so I don't really carewhat their opinion is, I care
what the file says.
But the other part about thatis we also we need to as
(22:00):
prosecutors.
If we know you're a defenseattorney, you will never take a
case to trial.
You ain't going to get as gooda deal.
Why is that?
Because we know that you'reeventually going to take what we
give you because you're notgoing to take the case to trial.
Speaker 2 (22:16):
Okay, and so do prosecutors talk among
themselves over?
Hey, you know, maybe you'resitting in that prosecutor chair
.
I come up to you, I've neverdealt with you, but I've dealt
with other prosecutors in youroffice.
Do they ever talk about?
Speaker 3 (22:24):
Oh yeah, we talk about all the defense attorneys
all the time, just like thedefense attorneys talk about the
prosecutors like thisprosecutor is unreasonable, I
hate being in this court, orthere's certain counties where
we don't like to practice in.
We won't mention any namesbecause the prosecutors can be
unreasonable.
Both sides talk about eachother, and both the defense bar
and the prosecution have friendson each side.
(22:45):
We go break bread together too.
Speaker 2 (22:46):
At the same, time Right, and so during this plea
bargain negotiation that goes on, the defense attorney can make
a difference.
Yes, in terms of the pleabargain.
Yes, let me ask you this.
I get this question from timeto time Can I make the
prosecutor dismiss a case?
Speaker 3 (23:04):
No, you can never make it.
Prosecutors miss a case.
Speaker 2 (23:07):
OK, explain that.
Speaker 3 (23:09):
Well, the only way I'm going to dismiss it is if I
feel like it's justified todismiss it.
And so sometimes we get like,say, file a motion to have it
dismissed.
Well, the judge can't dismissit.
The only person who can dismissit is the prosecution.
And the only way the judge candismiss it is we go to trial and
either the judge finds somebodynot guilty or the jury finds
somebody not guilty.
(23:29):
So that's the way it has to go.
So the defense attorney alwayshas to approach the prosecutor
hat in hand.
We're used to as defenseattorneys we're always asking
for because a lot of our clientsthe case is very good for the
state.
You know he was pulled overbecause he had a bunch of
warrants attached to thatdriver's license and then he's
(23:50):
got a kilo of cocaine in thefront seat next to him.
There's not a lot to work withon that case.
So all we're doing is coming inand begging for a good deal
from the process, sure.
Speaker 2 (24:00):
And you know, possibly with the threat of hey
at trial, we're going to makethis difficult, even in cases
where maybe you know, you knowwe may not win, but we're going
to make it difficult if you takethis thing to trial, we're
going to, we're going to kick upsome dust and, you know, have
some good objections and thingslike that.
Speaker 3 (24:19):
But you've got to be careful about the making it
difficult versus the kind oflike a macho contest, like screw
you, because if it's achallenge I'm like OK, all right
, let's see it up there?
Speaker 2 (24:32):
Absolutely, yeah, absolutely.
So let me ask you this Withregard to these issues of going
to trial, do prosecutors makedecisions, maybe based on the
defense attorney's reputationabout his abilities as a trial
attorney?
That's a hard one.
Speaker 3 (24:52):
So we shouldn't, because it should be your
concern about what might happenin trial, about what might
happen in trial.
But when you are voicing inyour head, when you're voicing
the concern about what mayhappen in trial, you can't
ignore the fact that you knowwhat the defense attorney is
going to make hay out of thisand this.
So, like every good prosecutorlooks at a case and thinks,
(25:12):
here's how the defense attorneyis going to attack it, every
good defense attorney looks atthe case and says, here's how
the prosecutor is going to proveit.
Okay, that's what good trialattorneys do on both sides of
the aisle.
Okay, and so what you know.
When you have somebody good onthe other side, that cause.
I've been surprised when I was aprosecutor, when I'm like, oh,
I have this and this weakness inthe case and we go to trial and
(25:33):
none of those weaknesses arebrought out, right, okay, right.
I'm like, oh geez, they didn't.
I would have, I would havebrought that stuff up.
But then when you have a gooddefense attorney on their side,
you know that stuff's going tobe brought up, right?
That's the difference.
Speaker 2 (25:43):
Right, right, and so what you've just talked about,
that can impact the plea bargainnegotiations, of course.
Okay, yeah, yeah.
Let me ask you this regard tothe prosecutor handling the case
from the time that it's filedthrough a trial, does the
(26:05):
defendant's conduct while thecase is pending make a
difference?
Speaker 3 (26:17):
Yeah, it's the difference between getting a
good.
So a couple of things If you'rein custody and you're
committing violations,disciplinaries at the jail,
we're going to get that stuffand that's going to be like, ok,
well, what I was thinkingbefore, now that's off the table
.
Also, there's jail calls wheresomebody is calling up their,
their spouse and saying youbetter get down there and get
those charges dropped.
You know, do you guys get?
Speaker 2 (26:35):
those.
Yeah, you get copies of those,yeah, so if somebody is on a
jail call and they're talking tobecause I've had this come up
where a family member says, hey,what happened?
And they give an account of it,yes, now you're essentially
making a confession.
Speaker 3 (26:50):
It's all coming in and it's not only as a
confession, but it's aconfession that's completely
admissible because it's notsubject to 3822.
3822 being the section thatcontrols confessions.
When police officers talk toyou, they have to read your
rights on the video, not on jailcalls.
Speaker 2 (27:05):
But if you're talking , to mama.
Speaker 3 (27:07):
That's not.
That's not part of 3822.
Speaker 2 (27:09):
In other words, that's just you making a
spouting off and all thatstuff's coming in and I have you
know, I've talked to people whoget frustrated, who say you
know, I'm talking to my lovedone at the jail and they won't
talk to me about the offense andI tell them what's the first
thing we tell them Don't talkabout the offense on the jail
call.
Speaker 3 (27:24):
That's the first thing we tell a client.
Speaker 2 (27:26):
Right, and it's natural, because the family
member wants to know, hey, whathappened that night?
How did it happen, you know?
And they get frustrated and say, well, they won't talk to me
about it.
Yeah, they should not be.
What about?
Speaker 3 (27:36):
letters.
Those letters are reviewedbefore they go out and before
they come in.
Ok, the only time they're notis if I sent if you sent me an
attorney, when you're yourattorney a letter and say legal
mail, they're not supposed toopen that Sure.
However, there's been somepeople in prison who have used
that and sent had their friendssend them fake legal mail that
(28:00):
had drugs in it.
So now they kind of open itanyway.
Okay, they just make sure itreally is legal mail.
I've gotten calls from theprison saying did you send
so-and-so a letter, did you?
Speaker 2 (28:11):
send so-and-so cocaine and fentanyl.
So so let me ask you know, as adefense attorney, I can
honestly say that nothingworries me more than when I'm
getting prepared for the trialand then the state hands me a
hard drive and it's 100 jailcalls.
Because now I'm worried.
(28:32):
Oh Lord, what did my client say?
Speaker 3 (28:35):
So we don't always pull all the jail calls, because
there might be a lot, but weusually pull them like right
after you're arrested, and weusually pulled what like right
after you're arrested.
And we usually pull whathappens right before trial,
because right before trialeverybody starts talking to
their family and friends aboutthe case.
So then, yes, we pull thosejail calls and we find out, oh
geez, he's talking about this.
And then we make copies, wepresent them to the defense and
say, hey, that case you thoughtyou were going to kick our ass
(28:56):
on, maybe not so much anymoreour ass on.
Speaker 2 (29:02):
Maybe not so much anymore.
Now, is there anything that youwould say that somebody charged
with a crime could do thatwould make a difference to a
prosecutor, Like when you were aprosecutor?
Something that you would seeand say, hey, I'm on the fence
about this, but this guy didthis or that.
Speaker 3 (29:16):
Really think outside the box on those kinds of issues
.
It's anything you can do wellto show you're a productive
member of society.
So I'm taking classes.
I haven't gotten in any moretrouble.
I haven't had any positive UA,I haven't peed dirty while I've
been on pretrial and I've turnedmy life around since this.
Now we all are a little bitsuspect.
It's like atheists in a foxholekind of thing.
(29:37):
You know there's chargespending, so you're on your best
behavior, but when you continuebut there's a lot of people who
aren't on their best behaviorwhen they have charges pending.
So when we're trying on thosecases where we're on the fence
about what to do and then theperson has made some positive
gains in their life and you canshow that to me as a defense
attorney, we're going to, we'regoing to take that consideration
.
Speaker 2 (29:54):
It's going to help you yeah absolutely, and so we
hope that this advice helpsthose of you navigating your way
through the criminal justicesystem.
Speaker 1 (30:09):
Thank you for listening.
This is so you Got Arrested,sponsored by Brick Criminal
Defense.
Thanks for listening to so youGot Arrested.
If you found this podcasthelpful, share it with someone
who needs to hear it.
For more legal insights andreal talk from the front lines
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The Texas justice system is messy, so let's break
it down.
You're listening to so you GotArrested the podcast that tells
you what really happens after anarrest, Hosted by BRIC criminal
defense attorneys.
We talk to the people who'velived it, worked in it and been
shaped by it, Whether you'refacing charges or just want to
understand your rights, youroptions and the smart moves that
(00:23):
could change everything, We'vegot your back.
Speaker 2 (00:25):
Hi, welcome to.
So you Got Arrested.
This is a podcast thatdiscusses what happens from
cuffs to courts as you gothrough the criminal justice
system.
I want to remind you that ifyou have questions or topics
that you want discussed, you canemail us at justarrestedpodcast
at gmailcom.
That's justarrestedpodcast atgmailcom.
That's justarrestedpodcast atgmailcom.
(00:45):
Now, scott, I know you're adefense attorney, but in a
former life you used to dosomething else.
Speaker 3 (00:51):
I was a prosecutor for 21 years, In and out.
I was a prosecutor for 15 years, then went into private
practice.
Then, when Nico LaHood becamethe DA, I came back to the DA's
office.
Then when he lost the election,I retired.
And then I also was asked tocome out and help out and
prosecute out in Medina Countywith my good friend Mark Habe,
who I went to law school with.
Speaker 2 (01:12):
And I'll say, scott, before you came to work with us,
you and I had met a few times,but I was aware of your
reputation because you'veprosecuted some very high
profile cases, quite a fewmurders.
At one time you'd given me thenumber of murders you had
prosecuted.
Speaker 3 (01:28):
It was Well, I prosecuted hundreds, but I've
probably tried like maybe 30 to50 murders.
I don't really keep track ofthem, but I've tried probably a
couple hundred felonies.
And then as a defense attorney,I've tried federal cases.
Yeah, I've tried a lot of stuff.
Speaker 2 (01:44):
That's what I wanted to discuss today.
I want to discuss when, whatthe prosecutor is looking at
when they get a case.
Ok, and so let's take ascenario.
Somebody is accused of a crimelet's say it's possession of
cocaine, right.
So they get arrested, they postbail, they're out on bail and
(02:07):
the report.
How does all that get to theDA's office?
Speaker 3 (02:11):
So the initial magistrate report like the
offense reports that the officerwrites when they arrest you
that's in there off the bat.
That's uploaded into the system.
We can see it right away.
What's supposed to happen,though, is that a follow-up
detective on all felonies issupposed to gather up the rest
of the evidence, which, in adrug case, is just going to be.
You're waiting for the labreport, right, okay, and so, if
(02:34):
you're in custody, you'reentitled to be indicted within
90 days from the time that youwere arrested, and we're not
going to have that lab reportback within 90 days, so you're
probably going to get out onwhat we call a PR bond, which is
just a small 3% bond that youdon't have to go through a
bondsman to make, but so, onthose drug cases, there's not a
(02:56):
lot for the detective to dobesides submit the drugs.
They're the ones that submitthe drugs off to the crime lab,
and then they file the case withus, and then we get the results
back at the DA's office.
Speaker 2 (03:07):
And so because it's a felony and we've kind of
discussed this before, but for afelony to make its way into
court as an officially filedcase, it has to go to the grand-
jury Right.
Speaker 3 (03:19):
So in Bexar County we have two different grand juries
running at all times.
There's a grand jury that meetsMonday and Tuesday and there's
a grand jury that meetsWednesday and Thursday.
And what's a grand jury, if youcould just describe it.
So the grand jury is the samething as a regular jury, but
they're coming, instead of beingcalled down for your jury duty
to hear a trial, you're calleddown for grand jury.
You don't necessarily knowyou're being called down for
(03:40):
grand jury, but so they callless people, so they may only
call like 50 people and say 30people show up.
It's very different frompicking a jury where attorneys
talk to you the 30 people whoshow up for grand jury duty, the
judge sits there and says whowants to volunteer?
It's for two months.
So for two months you'recommitting to come into the
(04:01):
grand jury room every Monday andTuesday, but we usually have
you out of there by noon.
Speaker 2 (04:05):
Are you finding people guilty or what are you
doing in grand jury?
Speaker 3 (04:08):
So if I'm presenting cases to the grand jury.
I may come in say I'm doingdrug case.
I may present 10 cases to thegrand jury all at once and then
I leave the room when they voteand nine out of the 12 have to
vote that there's probable causeto proceed with the case.
In other words, there's enoughthat we think this case should
(04:29):
be filed in court and if youcan't get nine out of the 12
people to vote for a true bill,then the case is no bill and the
case is dismissed and the caseis over at that point.
Speaker 2 (04:38):
Yeah.
Now if the grand jury takes alook at your case and says, hey,
there's not enough here to goforward, Is it possible for a
prosecutor like yourself tobring that case to the grand
jury again?
Speaker 3 (04:50):
It is.
So sometimes a grand juryno-bills a case that shouldn't
be no-billed, there's nothingpreventing us from taking it to
another grand jury.
I'll give you an example.
A long time ago this is backwhen two famous prosecutors
presented this murder case tothe grand jury, where a guy had
threatened a doctor's daughter,said you're not gonna be able to
(05:10):
watch her all the time andwe'll get her eventually.
And so the doctor went out andshot him in the head.
Oh wow, ok, and that's notself-defense, right.
But the grand jury didn't likethey.
All.
The grand jurors said I'dprobably do that too.
So we presented to one grandjury they know about it.
There was a lot of outrage fromthe family of the deceased.
And then they presented to asecond grand jury and they also
(05:33):
know about it, and that at thatpoint we're like we're not
pursuing this case.
Speaker 2 (05:36):
Right, because that kind of gives you an indication
as to, hey, this is what aregular jury as to hey, this is
what a regular jury.
Speaker 3 (05:45):
If I can't get probable cause from nine out of
12 people without a defenseattorney arguing the other side,
I'm never going to get 12people to agree guilty beyond a
reasonable doubt.
Speaker 2 (05:51):
So when these cases come in to the prosecutor's
office and officers are turningin their reports, are there
cases that you can look at andsay no, this doesn't pass the
muster.
Speaker 3 (06:04):
So I probably shouldn't say this.
So when I was a prosecutorbefore, most of the time I was a
prosecutor I was in familyviolence unit handling child
victim cases, family violencecases.
But I also was in regularcriminal trial division and a
lot of those drug cases thatwere under 0.2 grams I was
rejecting those.
Speaker 2 (06:22):
OK, cases that were under 0.2 grams, I was rejecting
those Okay.
So this is where somebody getscaught and they might have just
a minimal amount.
I think that the way that Iused to talk to clients about it
is sometimes it might even be asituation where somebody may
have used and tossed the emptybag down, you know, in the car
and there there's residue, theresidue cases.
Speaker 3 (06:41):
Because, remember so, a gram is a sweet and low
packet.
So now imagine 0.2 of a sweetand low packet, right, okay?
So now that's one of thosethings I was just doing.
If I told my supervisors they'dprobably say stop doing that.
Now, mind you, I'm not saying Iwas rejecting those.
If they had flushed a bunchdown the toilet and all we had
left was 0.2.
Right, or they shoved a bunchin their mouth, don't do that,
(07:03):
because you can die.
It's not worth dying over adrug case where you're going to
get probation because you ateall your drugs.
Because I had a friend when Iwas in high school who ate all
the drugs and died of a heartattack.
Speaker 2 (07:15):
Well, and that's a you know, if I mean, if you
don't die or nothing bad happensto you, you may pick up another
felony Right the tamper withevidence, tampering with
evidence.
Speaker 3 (07:26):
Some of those cases are bullshit, but that's a
recent development that they'retrying to get you now for
tampering for the drugs Right Ithink a lot.
In the old days they used tosay it's punishment enough that
you ate the drugs and survived.
Speaker 2 (07:38):
But but anyway.
So when you're looking at thesecases and they're coming into
you, let me ask you does thecriminal background of the
accused play a role?
Yeah, how so.
Speaker 3 (07:49):
So now I don't look at the criminal background of
the accused when I'm firstlooking at the case.
Ok, but why is?
That Because I don't want it totaint what I think about the
case.
If the case sucks, it doesn'tbecome better just because you
have a bad criminal history.
Speaker 2 (08:04):
Okay Now it's fair to say, maybe not all prosecutors
do that.
Speaker 3 (08:08):
That may be true.
I eventually have to look atthe criminal history because if
I decide, oh, this is a goodcase, I'm going to indict it.
Now I have to see if they'rewhat we're called.
If you've been to prison before, you're now a repeater, so it
elevates your crime one level.
And if you've been to prisontwice before, you're now
habitual, which means your rangeof punishment is 25 to 99.
So I got to look at thatbecause I have to add that to
(08:30):
the indictment.
Speaker 2 (08:53):
Or because of like a DWI.
Thirds, you have to look.
The reason I ask that questionis I've had cases where you know
, let's say, somebody is chargedwith a misdemeanor, family
violence, and maybe the caseitself isn't all that great.
But I've had situations whereprosecutors tell me well, we
looked at your guy's criminalhistory and he's had three prior
family violence cases that wereall dismissed, but that shows
that there's something going on.
What I mean?
What are your thoughts on that?
Speaker 3 (09:09):
I, I feel a lot of times.
I feel the same way.
If you've been, if you've beenbeating three different women,
you've gotten away with thethree different times, you may
have to buy a trial on thisfourth one.
So so, in that circumstance itnot probable cause, we can't do
that.
But but if it's a black eye andthe woman is calling us
constantly saying I want thesecases dismissed, I'm not going
to dismiss that case.
Speaker 2 (09:30):
OK, ok.
And so that's a circumstancewhere criminal history, even
though you know from the outside, looking in, you may have a
defendant or his family saying,hey, wait a minute, all those
cases were dismissed, they maystill come into play, right.
Speaker 3 (09:45):
And so it particularly happens in family
violence cases and it'sparticular.
So it makes a difference if youhave prior family violence
cases dismissed involvingdifferent people, because then
it's not just the problems thesetwo people, the problems this
guy OK, OK, All right and so,but remember, I'm still looking
at it and and the initial.
(10:05):
So I have a 911 call that'ssaying he's beating me up and I
have a photograph of a black eye, and so the fact that somebody
is now saying she doesn't wantto pursue the case, I'm never
going to dismiss the casebecause I have a good case that
I can prove without her Right.
Speaker 2 (10:20):
And and that's a question that comes up a lot
People want to know well, look,if the person on the other side
of the case, you know, in afamily violence case maybe it's
a spouse, or you know asignificant other, but you know,
sometimes maybe it's a theftcase, or and they're saying, hey
look, the person on the otherside of the case does not want
this case to go forward.
Speaker 3 (10:48):
Does that mean that a prosecutor has to get rid of
that case?
No, it doesn't.
So what I like to say whenpeople are calling us up saying
they don't want to pursuecharges, it's not going to be
the prevailing factor in what wedo with the case.
It's going to be a factor, sureOkay.
So in the end I'm still goingto look at the evidence.
So if I have good evidence onthe case and a reluctant victim,
then I'm still going toprobably go forward in the case.
But then sometimes I haveadamant victims and the case
(11:08):
stinks and I'm going to stilldismiss the case.
Because the flip side is truetoo.
You have some victims who wantus to pursue on something and
you realize this is somebody outwith a vendetta.
This case is no good, I'm goingto reject it.
This case is no good, I'm goingto reject it.
And that's where sometimesweaker DA's offices don't have
the intestinal fortitude to tella victim complaining that no,
we're not going to go forward onthis case because they'd rather
(11:30):
file it and lose in a trialthan have the fallout of the
person calling and complainingabout them.
Speaker 2 (11:38):
And that was my other question is if you have a
victim on the other side let'ssay it's an estranged family
member who, once you buriedunder the prison, is the DA's
office obligated to seek theirapproval for everything?
Speaker 3 (11:51):
Okay, not their approval, but they're obligated
to let them know what they'redoing, sure, okay.
So one of the things I alwaysused to tell all my advocates
and my younger prosecutors don'tcall up, say you got an
aggravated assault with a deadlyweapon, okay.
But so if you call the victimup and say what do you want to
see happen on the case, they'regoing to say we want the max.
(12:11):
That's not how you do it.
You call them up and say I'vebeen doing this for 10 years,
this is what I'm going to offeron the case.
I wanted to let you know, okay,okay, and then that's how you
control that kind of thing,right, and it's not to say that
we don't care what the victimthinks, but I still, everything
that we do as prosecutors shouldbe based on what we think is
(12:32):
going to happen in a jury trial.
Sure, okay, and I've triedenough of them that I kind of
have a good sense.
Now that still doesn't meanthat I couldn't try a case three
different times in front ofthree different juries and get
three different results.
But I do have the experiencethat I kind of know how a jury
is going to look at this and I'msupposed to utilize that
experience to decide what is afair resolution for this case.
Speaker 2 (12:52):
Well, and you hit on that, a fair resolution to this
case, because a prosecutor'sobligation in court is different
from a defense attorney'sobligation in court right
Completely different.
What is defense attorney'sobligation in court right?
Completely different.
What is the?
Speaker 3 (13:03):
prosecutor's obligation.
So prosecutor's obligation iswritten out in the Code of
Criminal Procedure, section 2.01.
Prosecutor's duty is to seethat justice is done.
Speaker 2 (13:13):
And seeing that justice is done.
Does that include the defendant?
Speaker 3 (13:18):
Yes, so justice for everybody Right.
Speaker 2 (13:21):
So it may be a case that you see that you know, you
say, okay, I think this guy diddo something, but I don't know
if this is worth prison, or Idon't know if this is worth the
max, and then you handle itaccordingly.
Speaker 3 (13:32):
Which that's a great point.
So if I have a family violencecase and I have a wife who's
calling up and saying I want todismiss the case, I get on the
phone with them a lot of timesand I say I'm not going to
dismiss the case.
But what's happening is thedefendant and the defendant's
lawyer is telling her they'retrying to send him in prison.
And then you're going to losethe house.
And I say I'm offering himthree years deferred
(13:54):
adjudication, which is a form ofprobation, form of probation
where you don't show as a felonyconviction.
And then and I'm offering themso is the problem is when he's
drinking, right, well, I canmake sure he takes alcohol
treatment and I can make sure hedoes a batter's intervention,
and I, and then she says, well,he should take that.
And then so I've worked out.
I said, well, that's, I alreadyoffered it to him and they
(14:15):
refused.
Speaker 2 (14:15):
And then next thing I know I get a call from the
defense attorney saying we wantto come in to take that plea
offer that we rejected lastmonth, right, right.
And that's where clients maysometimes get frustrated saying,
hey, I know my wife hasindicated this or my loved one's
indicated this, why isn't thecase going away, right?
Speaker 3 (14:31):
And so it's important for everybody to know that,
just because your loved one istrying to get the charges
dropped, it's evidence-basedprosecution.
We're going to make thedecision based on what the
evidence tells us, not based onwhat the person wants to do with
it after the fact.
Speaker 2 (14:44):
I appreciate that, and so that is our first segment
here on.
So you Got Arrested and we'llbe back.
Speaker 4 (14:49):
The attorneys of Brick Criminal Defense have
helped over 5000 clients move onwith their lives.
When an arrest or accusationturns your life upside down, we
have the knowledge, experienceand integrity to get your life
back on track.
Traditional legal ethics,modern legal tactics the best
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Search Brick Criminal Defenseto see our reviews and find out
(15:10):
why so many of our clients havetrusted us to fight for them.
Speaker 2 (15:14):
Brick Criminal Defense helping our clients move
on with their lives so Scott,an issue that comes up quite a
bit is there's times where andkeep in mind I've only ever
really done defense work and sothere are times where families
will come to me and say, well,why won't the prosecutor offer
this?
Can a defense attorney make aprosecutor offer a specific plea
(15:40):
bargain offer?
Speaker 3 (15:41):
They never can make us do a specific plea offer.
But I will say this mostprosecutors will entertain a
reasonable counteroffer.
But here's the thing I've hadthis happen multiple times.
So say, my offer is five yearsprison for this family violence
assault okay, because he's he'shad two or three priors and and
(16:04):
there's particularly goodpictures of injuries.
Okay, um, and if you come asdefense attorney, come to me and
say, would you offer meprobation on this case?
And I sit there and say, ok, letme go back and look at it.
And then I go and I make surethat the victim is OK with it
and of course she's been tryingto drop the charges anyway.
And so I look at the evidenceagain, I look at his history,
(16:27):
and then I call you Steve.
Ok, I'll do five yearsprobation instead of five years
prison.
And then you tell me well,we're not going to take that
either.
Now I'm pissed off.
Don't make a counter unlessyour client is going to take the
counter.
The idea behind a counter isyou're telling me that if I do
this, you'll take it.
Speaker 2 (16:47):
Right, and I've had that situation before on the
defense side where a clientasked me well, would they give
me five years of probation?
I said, well, let me work onthat.
And then I get back and say,hey, good news, they'll give you
the five years probation.
And the client says, okay, letme think about it.
And then you're stuck.
Speaker 3 (17:03):
And so I'm very clear with our clients at Brick the
ones I handle like.
If I'm going to make thiscounter, if they accept it,
you're taking it.
You need to understand that.
Speaker 2 (17:12):
Now let me ask you this you know, when you're
sitting in that role as aprosecutor and that defense
attorney is coming to you andthey're saying, Scott, you're
offering five years in prison onthis case, you know, I'd like
you to consider probation for myclient.
Are there things that thedefendant can do to help in that
that cause?
Speaker 3 (17:31):
Yeah, and so I.
So I may say to you okay, firstof all, are you saying he'll
take the probation if I offer it, because I don't want to
agonize over it if he's notgoing to take it?
And secondly, is there somethings, what we call a
mitigation packet, is there somethings you can show me that I
can put in the file to helpjustify why I'm giving him
probation in a case that maybe,on his face, doesn't deserve
(17:52):
probation?
Speaker 2 (17:53):
And what kind of things would those be?
Speaker 3 (17:54):
Well, say he's got some mental health issues but
now he's getting help Okay.
Or say and this is important sothe idea of the criminal
justice system is we want you tonot re-offend.
So if you have a good job, areally good job, and pleading to
this will make you lose yourjob, or rather, if you get
deferred, you can keep your job.
I'm going to seriously weighthat, because my gal is still
(18:19):
with him and they have kidstogether and things aren't going
to get better for thatrelationship if he's now out of
work and they get evicted fromtheir house.
So as prosecutors we got toworry about all that stuff.
Sure, okay, because we careabout the people.
I try to tell all the DAs andthe and the advocates don't tell
victims how to live their lives.
So don't sit there and say youneed to leave this guy.
(18:40):
That's not our business.
Our business is the law wasviolated, the police were called
and there has to be ajustification, there has to be
some consequences for their act.
What that consequence can be,we can talk about till the cows
come home.
Speaker 2 (18:53):
Well, and you know, a lot of times I'll explain to
clients that the prosecutor hasno idea who you are other than
what's on that offense reportand what's in your criminal
history.
So to the extent that somebodycan help me show who they are,
you know, whether it's throughtranscripts from a school, some
(19:17):
letters from a job, there's eventimes where I've submitted
photos of the family, you know,just to, hey, this is a loving
husband, he's got a family,things like that, just to kind
of show the prosecutor that, hey, this guy is more than just a
criminal defendant on yourreport.
Speaker 3 (19:33):
Right, and I've had a case where it turns out this
guy, who's had a run of criminalhistory, his brother was
murdered when he was 17 yearsold.
I have no way of knowing that,okay, but then I can look it up
once you tell me, but I have tolook it up by the defendant's
name, but I can sometimes lookit up by the victim, but I
wouldn't know that because it'snot linked like that.
(19:53):
So then I see, oh shit, he wasa good kid and he went off the
rails when his brother wasmurdered.
Maybe he found the Bible,whatever.
And I'm like, okay, well, thatchanges my opinion of this.
He needs help more than heneeds prison.
Right, right, right.
Speaker 2 (20:08):
Now going through that plea bargain process again.
I know there's times wherepeople get frustrated and say,
well, can't you make the statedo this or that?
There's times where we can helpgetting the state there and
there's times where we can't.
But the defense attorney thatyou have, how important is that
during that process?
Speaker 3 (20:29):
It's very it's important that you have a
defense attorney who's everybodyknows is credible.
A what does that mean?
That that you're not just comeup and bullshit me, okay, like
there's for defense attorneys Ihad.
I don't.
I hope I didn't tell this storybefore.
Let's not name names, but Okay,I had a defense attorney when I
was in family violence courtand it was and and and.
There's a defense attorney cameup to me and said he never
(20:51):
touched this woman.
He went over there and they gotinto argument, but he never
laid his hands on her.
And this is a bullshit case.
And I said it's not an assaultcase, it's a violation of
protective order.
And he stopped for a second.
He said well, he was neverthere.
And we both started laughing.
That's a problem, ok, but itwas funny at the time.
But you have to be credible.
(21:12):
And so if you're a defenseattorney and you don't know for
sure, I always say my clienttells me this and this about the
victim, sure, and then that wayI don't look like I'm lying to
the, to the prosecutor, if theylook it up and say that's
completely not true.
Speaker 2 (21:26):
And does the attorney's reputation make a
difference?
Speaker 3 (21:35):
Huge, huge, how so?
Because I'm going to listen toyou more when you come up to me
and I respect that you come andyou're always reasonable in what
you're doing.
If you ask if there's anattorney, he's always asking.
Like there's some attorneysdefense attorneys out there who
think every one of their clientsis innocent and they want every
case dismissed.
Well, they don't have anycredibility anymore.
Okay, so I don't really carewhat their opinion is, I care
what the file says.
But the other part about thatis we also we need to as
(22:00):
prosecutors.
If we know you're a defenseattorney, you will never take a
case to trial.
You ain't going to get as gooda deal.
Why is that?
Because we know that you'reeventually going to take what we
give you because you're notgoing to take the case to trial.
Speaker 2 (22:16):
Okay, and so do prosecutors talk among
themselves over?
Hey, you know, maybe you'resitting in that prosecutor chair
.
I come up to you, I've neverdealt with you, but I've dealt
with other prosecutors in youroffice.
Do they ever talk about?
Speaker 3 (22:24):
Oh yeah, we talk about all the defense attorneys
all the time, just like thedefense attorneys talk about the
prosecutors like thisprosecutor is unreasonable, I
hate being in this court, orthere's certain counties where
we don't like to practice in.
We won't mention any namesbecause the prosecutors can be
unreasonable.
Both sides talk about eachother, and both the defense bar
and the prosecution have friendson each side.
(22:45):
We go break bread together too.
Speaker 2 (22:46):
At the same, time Right, and so during this plea
bargain negotiation that goes on, the defense attorney can make
a difference.
Yes, in terms of the pleabargain.
Yes, let me ask you this.
I get this question from timeto time Can I make the
prosecutor dismiss a case?
Speaker 3 (23:04):
No, you can never make it.
Prosecutors miss a case.
Speaker 2 (23:07):
OK, explain that.
Speaker 3 (23:09):
Well, the only way I'm going to dismiss it is if I
feel like it's justified todismiss it.
And so sometimes we get like,say, file a motion to have it
dismissed.
Well, the judge can't dismissit.
The only person who can dismissit is the prosecution.
And the only way the judge candismiss it is we go to trial and
either the judge finds somebodynot guilty or the jury finds
somebody not guilty.
(23:29):
So that's the way it has to go.
So the defense attorney alwayshas to approach the prosecutor
hat in hand.
We're used to as defenseattorneys we're always asking
for because a lot of our clientsthe case is very good for the
state.
You know he was pulled overbecause he had a bunch of
warrants attached to thatdriver's license and then he's
(23:50):
got a kilo of cocaine in thefront seat next to him.
There's not a lot to work withon that case.
So all we're doing is coming inand begging for a good deal
from the process, sure.
Speaker 2 (24:00):
And you know, possibly with the threat of hey
at trial, we're going to makethis difficult, even in cases
where maybe you know, you knowwe may not win, but we're going
to make it difficult if you takethis thing to trial, we're
going to, we're going to kick upsome dust and, you know, have
some good objections and thingslike that.
Speaker 3 (24:19):
But you've got to be careful about the making it
difficult versus the kind oflike a macho contest, like screw
you, because if it's achallenge I'm like OK, all right
, let's see it up there?
Speaker 2 (24:32):
Absolutely, yeah, absolutely.
So let me ask you this Withregard to these issues of going
to trial, do prosecutors makedecisions, maybe based on the
defense attorney's reputationabout his abilities as a trial
attorney?
That's a hard one.
Speaker 3 (24:52):
So we shouldn't, because it should be your
concern about what might happenin trial, about what might
happen in trial.
But when you are voicing inyour head, when you're voicing
the concern about what mayhappen in trial, you can't
ignore the fact that you knowwhat the defense attorney is
going to make hay out of thisand this.
So, like every good prosecutorlooks at a case and thinks,
(25:12):
here's how the defense attorneyis going to attack it, every
good defense attorney looks atthe case and says, here's how
the prosecutor is going to proveit.
Okay, that's what good trialattorneys do on both sides of
the aisle.
Okay, and so what you know.
When you have somebody good onthe other side, that cause.
I've been surprised when I was aprosecutor, when I'm like, oh,
I have this and this weakness inthe case and we go to trial and
(25:33):
none of those weaknesses arebrought out, right, okay, right.
I'm like, oh geez, they didn't.
I would have, I would havebrought that stuff up.
But then when you have a gooddefense attorney on their side,
you know that stuff's going tobe brought up, right?
That's the difference.
Speaker 2 (25:43):
Right, right, and so what you've just talked about,
that can impact the plea bargainnegotiations, of course.
Okay, yeah, yeah.
Let me ask you this regard tothe prosecutor handling the case
from the time that it's filedthrough a trial, does the
(26:05):
defendant's conduct while thecase is pending make a
difference?
Speaker 3 (26:17):
Yeah, it's the difference between getting a
good.
So a couple of things If you'rein custody and you're
committing violations,disciplinaries at the jail,
we're going to get that stuffand that's going to be like, ok,
well, what I was thinkingbefore, now that's off the table
.
Also, there's jail calls wheresomebody is calling up their,
their spouse and saying youbetter get down there and get
those charges dropped.
You know, do you guys get?
Speaker 2 (26:35):
those.
Yeah, you get copies of those,yeah, so if somebody is on a
jail call and they're talking tobecause I've had this come up
where a family member says, hey,what happened?
And they give an account of it,yes, now you're essentially
making a confession.
Speaker 3 (26:50):
It's all coming in and it's not only as a
confession, but it's aconfession that's completely
admissible because it's notsubject to 3822.
3822 being the section thatcontrols confessions.
When police officers talk toyou, they have to read your
rights on the video, not on jailcalls.
Speaker 2 (27:05):
But if you're talking , to mama.
Speaker 3 (27:07):
That's not.
That's not part of 3822.
Speaker 2 (27:09):
In other words, that's just you making a
spouting off and all thatstuff's coming in and I have you
know, I've talked to people whoget frustrated, who say you
know, I'm talking to my lovedone at the jail and they won't
talk to me about the offense andI tell them what's the first
thing we tell them Don't talkabout the offense on the jail
call.
Speaker 3 (27:24):
That's the first thing we tell a client.
Speaker 2 (27:26):
Right, and it's natural, because the family
member wants to know, hey, whathappened that night?
How did it happen, you know?
And they get frustrated and say, well, they won't talk to me
about it.
Yeah, they should not be.
What about?
Speaker 3 (27:36):
letters.
Those letters are reviewedbefore they go out and before
they come in.
Ok, the only time they're notis if I sent if you sent me an
attorney, when you're yourattorney a letter and say legal
mail, they're not supposed toopen that Sure.
However, there's been somepeople in prison who have used
that and sent had their friendssend them fake legal mail that
(28:00):
had drugs in it.
So now they kind of open itanyway.
Okay, they just make sure itreally is legal mail.
I've gotten calls from theprison saying did you send
so-and-so a letter, did you?
Speaker 2 (28:11):
send so-and-so cocaine and fentanyl.
So so let me ask you know, as adefense attorney, I can
honestly say that nothingworries me more than when I'm
getting prepared for the trialand then the state hands me a
hard drive and it's 100 jailcalls.
Because now I'm worried.
(28:32):
Oh Lord, what did my client say?
Speaker 3 (28:35):
So we don't always pull all the jail calls, because
there might be a lot, but weusually pull them like right
after you're arrested, and weusually pulled what like right
after you're arrested.
And we usually pull whathappens right before trial,
because right before trialeverybody starts talking to
their family and friends aboutthe case.
So then, yes, we pull thosejail calls and we find out, oh
geez, he's talking about this.
And then we make copies, wepresent them to the defense and
say, hey, that case you thoughtyou were going to kick our ass
(28:56):
on, maybe not so much anymoreour ass on.
Speaker 2 (29:02):
Maybe not so much anymore.
Now, is there anything that youwould say that somebody charged
with a crime could do thatwould make a difference to a
prosecutor, Like when you were aprosecutor?
Something that you would seeand say, hey, I'm on the fence
about this, but this guy didthis or that.
Speaker 3 (29:16):
Really think outside the box on those kinds of issues
.
It's anything you can do wellto show you're a productive
member of society.
So I'm taking classes.
I haven't gotten in any moretrouble.
I haven't had any positive UA,I haven't peed dirty while I've
been on pretrial and I've turnedmy life around since this.
Now we all are a little bitsuspect.
It's like atheists in a foxholekind of thing.
(29:37):
You know there's chargespending, so you're on your best
behavior, but when you continuebut there's a lot of people who
aren't on their best behaviorwhen they have charges pending.
So when we're trying on thosecases where we're on the fence
about what to do and then theperson has made some positive
gains in their life and you canshow that to me as a defense
attorney, we're going to, we'regoing to take that consideration
.
Speaker 2 (29:54):
It's going to help you yeah absolutely, and so we
hope that this advice helpsthose of you navigating your way
through the criminal justicesystem.
Speaker 1 (30:09):
Thank you for listening.
This is so you Got Arrested,sponsored by Brick Criminal
Defense.
Thanks for listening to so youGot Arrested.
If you found this podcasthelpful, share it with someone
who needs to hear it.
For more legal insights andreal talk from the front lines
of the Texas justice system,follow us and subscribe, and
remember BRIC Criminal Defensehas your back.
For more information, visit usat brckdefensecom.
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