JUSTICE FOR ALL STILL DRIVES SOME

A defense lawyer who is a former Harris County assistant district
attorney said he changed sides because of a quip he heard one day at
work.

One of the other prosecutors commented that convicting the guilty
people is easy; the real challenge is in convicting someone who is
innocent.

This apparently is a common wisecrack among the folks who gauge
success by the number of guilty pleas and verdicts they can win. I had
already heard about it from other lawyers. However, when the
protagonist of this tale thought about it on that particular day, it
didn't seem much like a joke. It seemed to have become more of a motto
or slogan.

This lawyer had seen and experienced enough in several years as a
prosecutor to know that the public has many misconceptions about the
criminal justice system. Take, for example, that old line about a
person being presumed innocent until proven guilty.

It had grown increasingly obvious that "the defendant has to prove
innocence," said the lawyer, and increasingly obvious that too many
fellow prosecutors believe that justice and conviction are synonymous.

Money Makes The Difference

And so a letter of resignation went to the DA's office and a new
career path was embarked upon -- the one that leads to trying to keep
people out of the system instead of vice versa.

Oh, this lawyer said that you still can encounter prosecutors who
believe in the traditional definition of justice. For example, there
was a case where a 19-year-old man faced a long term in prison because
of having sex with an underaged girl.

After talking with both the young man in trouble and the girl
involved, it was apparent to the prosecutor that the girl, who looked
older than she was, had been the one who instigated the entanglement.
One of the first things the girl asked was, "When is he going to get
out so I can see him again?"

It would have been an easy conviction for the prosecutor, another
point on his scorecard, another feather in his cap. But it wouldn't
have been justice. He got the case dismissed.

The lucky 19-year-old beat the odds by drawing that
prosecutor.

"If they were all like that," said the lawyer who changed sides, "I'd
have stayed."

Sadly, at least nine out of 10 prosecutors would have gone for the
conviction.

Since becoming a defense attorney, most of the cases in the workload
-- some 85 percent of them -- are related to substance abuse. And
almost all the clients come from the city's poor neighborhoods.

The lawyer claims to have known "many, many" wealthy people --
including some fellow attorneys -- who use cocaine in their homes. But
such folks rarely become drug war prisoners.

Money buys a different set of circumstances in the system. People who
have it can make bond and be free while waiting for a trial. They can
hire topnotch lawyers and make it so difficult to win convictions that
prosecutors are reluctant to pursue them.

Poor people who are charged with a crime can't afford to bond out.
They can expect to be held in jail for months and months if they want
a trial, which the prosecution tries to avoid by offering probation
and quick release for a guilty plea.

Even if a person is innocent, the deal may seem hard to turn down. But
the problem is that probations are quite often and quite easily revoked.

Best Probation Advice: Get Out

One fellow wrote from jail that there is a little jingle about this
system that is popular among inmates: "Take probation, go home on
vacation, and come back on violation."

The lawyer who changed sides makes the same recommendation to all
clients who get out of jail on a probation deal: Leave Harris County.

"I tell them if they have family somewhere else and they can get the
permission, they should move. Because once the system gets you ..."

The lawyer asked not to be named here, knowing the system does not
like critics. And it is tough enough to defend clients with the way
things are: With so many prosecutors who believe justice equals
conviction. With so many judges who are former prosecutors. With so
many citizens who still believe the system is working and anyone who
winds up in jail belongs there ever after.

"I get so frustrated," said the lawyer who changed sides, "I can only
help one by one."

Thom Marshall's e-mail address is thom.marshall@chron.com