State and Federal Criminal Accusations & Trials

Over 30 years, my practice has taken me to 14 different states in the United States, and Washington, D.C. I was voted "Best Criminal Defense Lawyer" by "D" Magazine.

A handful of the notable accomplishments that I have achieved in recent criminal cases are briefly described as follows:

Avoided federal indictment for no tax payment for five years, totaling $1 million

I recently represented a medical doctor in Houston (both undergraduate and medical degrees from Ivy League schools) who had not paid his personal income taxes for five years because he had been persuaded that he was not legally obligated to do so. I put a team together of a very experienced forensic accountant (with whom I have worked for 15 years) and a bankruptcy lawyer (with whom I have worked for 20 years). Among other things, I catalogued all of my client's outstanding achievements in the medical field, including two U.S. patents. Despite that the case was pending in the federal grand jury, we avoided a federal indictment for tax evasion and we were able to move the million dollar past due tax payment from the criminal to the civil side for collection.

Avoided federal indictment for misapplication of Medicare rules totaling $1.5 million

Again in Houston, I showed the U.S. Attorney's Office that there was a confusing similarity between the prior State regulations of Medicare and the current federal regulations. My client was following the prior State regulations, which had been abandoned several years earlier. I argued that my client was in good faith and had simply made an honest mistake by not following the current federal regulations. We avoided a federal indictment, and the disgruntled prosecutor said to me, in what might be described as an acidic tone, "I know your client is guilty."

Avoided federal indictment in alleged stock fraud case

I converted the allegations of intentional fraud by my client to civil misrepresentation in connection with the issuance of unregistered securities, where the private placement memorandum stated facts which were not true. However, the erroneous statements had been updated through a website, despite the SEC requirement for a written supplement to be mailed to each investor. Based on my careful analysis of all the evidence, together with the use of polygraphs, which are admissible in federal court (United States v. Posado, 57 F.3dd 428 (5th Cir. 1995); Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000)), the SEC backed off their earlier position of criminal fraud, and we resolved the case with a civil fine only.

Freeing an innocent man with consecutive life sentences without DNA

Recently, in Denton County, over the time period of a year and a half, I showed the State District Court that my client had received ineffective counsel, and I also got the State to agree that my client was "probably" not guilty. The State did not oppose relief being granted by the trial court, which was affirmed by the Texas Court of Criminal Appeals. My client walked out of jail, a free man, and without the previous requirement to register for life as a sex offender. With consecutive life sentences, my client would never have been released from prison. His parents and grandparents mortgaged their houses and sold ranch land to finance my representation.

Fingerprints are not conclusive – Get the expert to admit that

In a federal cocaine case with my first-offender client, who was being denied bail in a hearing in Austin, Texas, I proved through the fingerprint examiner that fingerprints are not always accurately identified, and even the FBI's computer selects six "candidates" to compare to the unknown fingerprints, because the computer cannot distinguish among them. With that record, I was able to rebut the presumption of no bond in a federal narcotics case. Having my client on bond while the case was pending, rather than locked up, was a tremendous help in resolving the case in a manner very favorable to the client.

Intoxication manslaughter – Probation, despite the client telling the arresting officer, "I just drank a case of beer"

For the last 30 years, I have always gone to the scene of the alleged crime. Almost inevitably, I see things that the police investigator does not, because I am looking at the evidence "with the eye of the advocate." In this case, I used an experienced accident reconstruction expert, whom I had used several times before. We both went to the scene during the day and at 2:00 a.m. in the morning when the accident occurred. I saw something that even the expert had missed which was a brief, optical illusion. In addition, there were dips in the road which had the effect of making a car, at night, suddenly "pop out" of the dip with very little warning. Additionally, because there were no brake marks from my client's car, I argued that my client had reasonably thought that he was going to pass the car of the deceased, going in the opposite direction, though he was actually in the same lane. Therefore, despite the death of the victim, I was able to get probation. I successfully argued that, although there was clear evidence of intoxication, it must be the cause of death; and, here, intoxication was only a contributing factor to the fatal accident, which likely would have occurred anyway.

Exposing the handler of a police "drug dog" coaching a "dirty" dog to falsely alert

By using two ex-police officers to surreptitiously audiotape and videotape police officers who were illegally stopping automobiles and having dogs falsely "alert" upon the secret command of the dog handler, I exposed, in a county north of Dallas, this illegal police practice, and I obtained a dismissal of a major marijuana case.

Capital murder indictment dismissed by fundamental impeachment of Complainant

This story, entitled "The Wrong Man," can be found on my blog, and was written by Jim Schutze for the Dallas Observer.

Persuaded the U.S. Army, against their policy, to take my client, even though he had a felony pending against him

The U.S. Army has long had a policy against allowing someone to enlist in the Army as a way of resolving a pending criminal case. However, I arranged with the prosecutors in this felony case to not arrest my client, so that there was no public record that the felony drug case was ever "pending." Accordingly, the client was able to go into the Army, per my agreement with the prosecution. The Army recruiter needed his statistic, and though he was vaguely aware that something was going on, there was no public record of the pending criminal case, which was all he needed to approve the enlistment.

Obtained probation in consensual, statutory rape case (I showed that the girl looked 16 and was the aggressor, which she admitted)

In this case, there was consensual sexual intercourse between my 17-year-old client (an "adult" for purposes of Texas criminal law) and an underage girl. I hired two adult female investigators, with whom I had worked before, to spend two and a half hours with the Complainant and her mother in their home, at the conclusion of which they obtained an affidavit of non-prosecution, executed by the Complainant as well as by her mother. As a result, I obtained a deferred adjudication probation (no conviction) for my client. The law and order judge accepted the plea, but was not happy about it.

Felony assault of a police officer – "No Action" by the Grand Jury

A resolution by the Grand Jury of "No action" is the third Grand Jury option of which most lawyers are unaware. The other two, of course, are an indictment and a No-bill; but, the third one, a "No action," allows there to be an agreement between the prosecutor and the defense in a "politically sensitive" case. As a result of a "No Action" agreement, the matter just remains pending in the Grand Jury and then, essentially, "dies on the vine" at the end of the Grand Jury term.

Winning my DWI trials

I always conduct a Motion to Suppress in advance of the trial, which is the equivalent of a "deposition" in a civil suit. I also use a toxicologist to explain about the relative differences in human behavior and coordination after having ingested certain amounts of alcohol. I also use a former FBI instructor for my investigator and, often, a jury consultant in the selection of a jury. The result of this combination of techniques and strategies is that I am usually able to show that my client appeared to have normal control over his mental and physical faculties, which is the legal test to show a reasonable doubt about whether the client was intoxicated.

Prior to federal sentencing, I have reduced my client's criminal history points by "undoing" some of his convictions in the past

On three occasions, prior to sentencing in federal court, I have obtained a continuance in the sentencing and, thereafter, done the following, which has lowered my client's criminal history category: I have gone to various Texas counties; hired local counsel; prepared and filed writs of habeas corpus in those Texas counties; and got the State conviction set aside and expunged for a variety of reasons. In each case, the result was a lower criminal history and a substantially lower sentence in federal court.

My unique Motion that does not exist in any book or CLE course – Motion to Remand to Grand Jury

This Motion, which I created several years ago, does not exist in any form book or CLE course. I have never seen it filed by any other lawyer. However, I have filed it successfully four times: Once in Ohio, once in Maryland and twice in Texas. It is appropriate when there is an indicted case which the prosecutor is not too keen about, but is "stuck" with; or, where there is a broken agreement between the prosecutor and the defense lawyer to allow the defense lawyer to present exculpatory evidence to the Grand Jury; or, where there was no such agreement, but there is a significant amount of exculpatory evidence which was "accessible" to the prosecution, but not presented to the Grand Jury. The legal requirement that all "accessible" evidence shall be presented to the Grand Jury prior to a vote, is a requirement in Texas and in most state Grand Jury statutes throughout the country. One effective argument to the prosecutor to agree to remand a case to the Grand Jury is that the prosecution will be able to see in advance the salient parts of the defense, so it is a no-lose situation for the State. Moreover, after seeing the defense evidence, the prosecution can avoid an acquittal by deciding not to re-indict, if it so chooses. In three of the four cases where I filed this Motion, the prosecution chose not to re-indict.

Judges use my book

My book, written by me since 1983, catalogues reversible errors in both Texas and federal criminal cases; and, it is dedicated to the proposition that, "It is usually easier to get an error on the Court than a friend on the jury." (After Judge Erisman died in 1983, the publishers asked me to take over the writing of the book, Erisman's Reversible Errors in Texas Criminal Cases.) As noted, the book cites many U.S. Supreme Court cases which, of course, control both state and federal law.

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