Death In Vegas

By Brian Roberts

This morning, like every morning, as I was getting ready for work, I grabbed my cell phone off the charger to check messages, emails, social media updates and news stories. The first thing I saw was a CNN banner announcing that fifty people were murdered in a mass shooting in Las Vegas. I adjusted my glasses and lifted my phone closer to my face to make sure I saw it correctly. Though I knew better intellectually, my first thought was this had to be some kind of bad joke. The unfortunate present state of our world made me think that this had to be a terrorist attack after I realized this was not a bad joke after all. As the story evolved I went from shocked to infuriated because Las Vegas is my hometown.

I was born and raised in Las Vegas. I came into the world at Southern Nevada Memorial Hospital (after 42 hours of labor as my mother often likes to remind me), which is now known as University Medical Center and is where the most seriously wounded in last night’s attack are being treated. I graduated from Las Vegas High School and earned my undergraduate degree at UNLV. My uncle attended UNLV when it was Southern Nevada University. My mother worked as a waitress in the Las Vegas Hilton Steakhouse for thirty-eight years, lugged heavy trays and served countless movie stars, athletes and regular folk living it up in Las Vegas. I remember the night she called me when she was serving Muhammad Ali and told me to come by the hotel to meet him. I will never forget that moment, shaking his hand and his kindness to a starstruck fan who grew up with a love for boxing in the boxing capital of the world. I grew up in probably the most unique city in the world and while I look back on my childhood with fondness and a deep sense of longing for days long since passed, I didn’t always appreciate Las Vegas.

Sometime in my late teens I got the hair brained idea that I wanted to leave Las Vegas for a more “metropolitan” city with “regular seasons” and “culture.” Whatever the hell that means. I look back now and think man, I was a dumbshit. I moved to Dallas when I was twenty-six, leaving behind year-round great weather, crystal blue, cloudless skies, low-cost of living and the most diverse entertainment options anywhere for tornadoes, ice in the winter, rain and, worst of all, withering humidity. I never watched the weather channel until I moved to the South because I never had to check what the weather was going to be like in Las Vegas so I could plan my day. But, living in the South, it’s a whole different ball game.  Check the weather. Go out, don’t go out, grab an umbrella. Tornado? Torrential rains? Sunny weather? All possibilities in the same day. And the weather was not the only thing. The first time I went grocery shopping I circled the store twice looking for the alcohol aisle before asking the girl at the register who gave me an odd look and said it was a dry county and I would have to go across the county border to get booze. Are you kidding me? What kind of uncivilized backwater is this? Can we get out of our lease? Needless to say, my desire to live in a “metropolitan” city with “regular seasons” and “culture” quickly evaporated and I moved back to Las Vegas nearly three years after moving to Dallas.

Two years later I moved to Houston to attend law school. I attribute my decision to temporary brain damage but that’s a discussion for another day. Las Vegas opened a law school the same year I decided to go to law school, the William S. Boyd School of Law, but it was not ABA accredited and for that reason I would not be able to practice outside the state of Nevada so I opted to go to an ABA accredited law school in Houston to have more options to practice law. As it turns out, the William S. Boyd School of Law obtained ABA accreditation in time for its first graduating class. Three years after I graduated from South Texas College of Law, not sure what name it goes by these days, and taking a job as an assistant district attorney for Harris County, I sat for the Nevada Bar and passed. For reasons I will not get into here my dream of moving back to Las Vegas to practice law died a slow, merciless death and I remain here in Houston (which, by the way, has the  worst weather and traffic on the planet and is a natural disaster magnet – hurricanes, tornadoes, floods, you pick it) because my new wife and children live here. Were it not for them, I would be in Las Vegas now. No question in my mind.

I feel more than just a hometown connection to Las Vegas. It is part of my heart and my soul. It is in my DNA. It is as much a part of me as a family member and has been a constant leading character in the story of my life. When I moved away I watched CSI not because it was a great show but because it would give me a small glimpse of Vegas every week. One of my favorite movies is Ocean’s 11, again, not because it was worthy of an Academy Award, but because it is a two-hour Vegas getaway. Homesick? You bet. Pathetic? Probably. But this is why what happened last night hurts me and angers me so much.

It is hard to fathom the sociopathic mentality of a person who can senselessly murder 58 people and injure more than five hundred. I am glad he is dead. I am only sorry that he pulled the trigger himself. I hope he felt every centimeter that bullet travelled. I hope he burns in hell for the rest of eternity and I hope he saw that fate as the bullet spun on its path to turning out his lights. He does not deserve to have his name repeated nor his life to be remembered in any way. Whatever good he did in his life, if he ever did anything good, was wiped out when he decided to take out as many people as he could before punching his own ticket. He is a diaper stain on the world and mankind is better without him as a living member. I don’t care what his reasons were for his rampage. I don’t care if his mommy never hugged him and that it made him feel bad. I don’t care if he was mentally ill. I don’t care who he was mad at or why.  He was the typical coward. I have never been able to understand these pathetic wastes of flesh that feel the need to take others with them on their missions to kill themselves. You’re pissed off at the world and want to kill yourself? Go ahead. Put a bullet in your head but leave innocent people who’ve done nothing to you out of your sick plan.

I am tired of seeing so many senseless mass shootings. CNN published a list of deadly shootings in the United States from 1949 to the present, from Columbine to Sandy Hook to Virginia Tech, with last night’s Las Vegas attack topping the list as the deadliest in U.S. history. Any normal, rational human being would have thought that the cold-blooded murder of 20 children in a Connecticut elementary school would have been more than enough to push every politician with even the most feeble conscience to say enough is enough and work to enact effective gun control measures. This is not a political issue but a human issue. I do not advocate eliminating all guns because it is not realistic nor do I advocate denying citizens the right to possess firearms if they are legally eligible. Those who pound the table and scream the NRA slogan, “I’ll give you my gun when you pry  it from my cold, dead hands“, have twisted the Second Amendment to read as an absolute right to possess any gun and as many guns as they want as if it came from God himself as the 11th Commandment and have done much to stifle a national conversation on gun control. The Second Amendment to the United States Constitution states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (emphasis added)

Miriam Webster’s dictionary defines “militia” as:

1. a) a part of the organized armed forces of a country liable to call only in emergency 
   b) a body of citizens organized for military service
2. the whole body of able-bodied male citizens declared by law as being subject to call to military service

The Second Amendment was drafted at a time when America was a young country with a scattered population and had to rely upon the citizen soldier at a time when it could not muster a military of sufficient size to present a national defense. Can someone please tell me where the hell it says that Americans have the inalienable right to own assault rifles? Or as many guns as they can carry? Or high-capacity magazines? Constitutional rights are not absolute, Con Law 101. For example, you do not have an unfettered right to say whatever the hell you want under the First Amendment. You can’t yell “fire” in a crowded movie theater or threaten the president. Try it some time and see what happens if you don’t believe me. Likewise, firearms rights are not and should not be unfettered. If you are a convicted felon you lose your Second Amendment right to possess a firearm. If you are charged with a crime of family violence and the court imposes a protective order, you are not allowed to possess a firearm. These should not be the only restrictions. Nobody needs an AK-47 or an AR-15 to protect their home and certainly not for hunting deer or any other animal except the human animal. They are called assault rifles for a reason, because that is their intended design. Somehow the NRA and the Second Amendment folks have hijacked the meaning and purpose of arming the citizenry. Last I checked, the only active militias in the United States are made up of dim witted wing nuts the government recognizes as potential criminal threats and the officially recognized citizen soldiers are national guardsman. Can someone cite for me a time in the last century when an armed militia – outside the National Guard – was mustered for the security of the United States or any one state for that matter?

It has been reported that police found twenty rifles in the shooter’s Las Vegas hotel room, including AR-15 style assault rifles, at least some of which were fully automatic, along with a cache of ammunition. The sound of rapid fire can be heard on videos taken at the time of the shooting. Anyone who thinks now is not the time to discuss gun control is numb from the neck up. If you’re cool with 20 school children being murdered in their school or 59 innocent people being murdered at a concert as long as nobody infringes on your Second Amendment right, then you are as mentally defective and as devoid of conscience as the people who committed these atrocities. Our national mores are completely out of whack. When Janet Jackson’s boob popped out of her top during the Super Bowl, the FCC – a government agency – launched an investigation before the second half even started. But, you can rest assured the government will not do anything to address gun violence after 59 people were slaughtered. If 20 dead kids doesn’t get the government to act, nothing well. The best the families of the innocents lost to gun violence can expect from the government is lip service, condolences for their loss and inaction to prevent the next mass shooting. Our country deserves better than this. The people we lost deserve better than this.

 

Judge Kristin Guiney Appointed to the 232nd Criminal District Court

By Brian M. Roberts

The sun is shining, the birds are singing and baby unicorns are jumping over rainbows. Today, I got the best news I have heard in a long time; former 179th District Court Judge Kristin Guiney was appointed to the 232nd District Court bench, which has been vacant since Judge Mary Lou Keel was elected to the Texas Court of Criminal Appeals in November 2016. For the last nine and a half months, the 232nd was presided over by a number of rotating retired judges. Why? Politics, but that is another story for another day.

For those of you who do not know her, Judge Guiney defeated Judge Randy Roll, who served only one-term from 2008 – 2012, for the 179th District Court bench. Judge Guiney brought fairness, civility, respect and justice tempered with mercy to the 179th. Judge Guiney cared about crime victims and was unquestionably tough on serious crimes and dangerous offenders but she also recognized defendants who needed help, not prison and was very innovative in her approach to justice. She was more concerned about what was right than she was about her docket numbers, a meaningless statistic too many judges fixate upon. That justice be done in her courtroom, whatever that meant for each case. Her loss to Judge Roll in the November 2016 election was a tremendous loss to the people of Harris County.

As a defense lawyer, you expect, but mostly hope, that your client will get a fair shake from the judge, especially in trial, but you don’t always get that. Any lawyer who practiced before Judge Guiney knew that whatever the outcome, she was going to hear and consider every argument and make the call demanded by the facts and evidence. In the interest of full disclosure, Judge Guiney is a friend. We worked together in the Harris County DA’s Office and were colleagues in the defense bar. She is a Republican and I am a Democrat. Not that party affiliation has any relevance in the criminal justice system but it is an unfortunate condition of Texas politics. Despite our friendship, she is not going to do me or any of her other friends in the defense bar any favors, she will do what she thinks is right and what the law demands in each case. That’s a good thing. It’s the right thing.

I remember watching an indigent defendant plead guilty before her a couple of years ago. The prosecutor added a fine as part of the plea deal. Judge Guiney questioned the fine because the defendant didn’t have any money and was represented by a court-appointed lawyer and I will never forget what she said because it says a lot about her as a judge and as a person. She eliminated the fine and said, “The criminal justice system will not be funded on the backs of the poor.” It’s easy to become cynical in this line of work but that was a powerful statement, unplanned and unrehearsed and it has stayed with me.

Judge Guiney will take the bench on Monday, September 18, 2017. I look forward to her picking up where she left off nine and a half months ago. It’s good to have her back.

THE CIRCUS IS IN TOWN

By Brian M. Roberts

Today was the first day of business for the Harris County Criminal courts after Hurricane Harvey and, oh boy was it something! I have heard some people describe what is to be our journey for the next six to eight months as the CJC is repaired (translated: year to eighteen months) as the “new normal” but I wouldn’t use the word “normal” to describe the atmosphere in the civil courthouse today. Shock and horror, yes. Normal, no. The civil folks are having to share their Taj Mahal (it’s actually a county building but not if you ask them) with the unwashed masses. You know, criminal defense lawyers and their clients. The looks on the faces of the civil lawyers and court staff as we took over their little fiefdom was priceless. Like they were in danger of being molested or worse, talked to by one of “those people.”

Only two elevators for the upper floors were working, which is par for the course at the CJC everyday, but the civil folks were beside themselves at the sea of humanity trying to catch a ride to court. They stomped around and grumbled, “This is bullshit.” People were lining up like cash was being given away on the upper floors. Except for the one lady who was screaming to get off the elevator an nobody moved because nobody wanted to lose their spot.

When I finally got to court via the freight elevator, I searched the empty hallways for my client. You see, the civil courthouse is considerably bigger than the CJC even though on any given day you could fire a cannon in the hallway of the civil courthouse and not hit a lawyer. Makes perfect sense to design a small building for use and occupation by the most people (CJC) and a big one where there isn’t a fraction of the traffic and use (civil courthouse). I think this genius design came from the same brain trust that thought it would be a great idea to put flood doors underground and build the jury assembly room underground with an atrium to street level. So flood waters could come in through the open ceiling. Kind of like designing a submarine with a convertible top, but I digress. Anyway, when I got to the courtroom, folks with criminal cases were seated on one side and the folks who had civil business were sitting on the other  and generally bewildered by the frenzied activity we brought into their world.

But, we showed the civil folks we’re just as good as they are. Yes sir, we sure did! Like when one criminal district court judge threatened to have another criminal district court judge arrested for refusing to get off the bench when it was his court’s turn to use the courtroom. That was really cool. I don’t know what the civil folks are so worked up about.

And this was just day one. Three hundred sixty four to go. Or so. Give or take.

BEASTS OF BURDEN

I received an email from a friend last week.

He is a criminal defense lawyer, a damn good one. He told me that he was just barely getting over the PTSD (his word) of having shepherded an otherwise good human being to fifteen years in prison in a very serious case that, had it gone to trial, a jury would have surely given him a life sentence. Adding salt to the wound, the client’s family sees my friend as the enemy, despite the fact it was the client who committed a terrible crime that left him with the Hobson’s Choice of accepting a deal for fifteen years in prison over a life sentence.

It is often the case that the client or the client’s family blames the lawyer for the situation the client got himself or herself into or the sentence they get as a result. Failure to accept responsibility for their circumstances is the hallmark trait of most defendants and their families – the families are oftentimes enablers of the client’s behavior and the stories clients tell their families about their cases don’t even remotely resemble the facts or the truth. The lawyer is left looking like an inept moron and is powerless to correct any misconceptions because of attorney-client privilege.

My friend is no rookie. He’s not going through first-time battle trauma. This is a man with a distinguished twenty-six-year career in criminal practice who has defended numerous clients charged with serious crimes, many of them high-profile media cases. The mental and emotional fatigue, the second-guessing and self-doubt, running and re-running everything you’ve done on an endless mental loop, questioning if you did it right or if you could have done more is the burden we bear in this line of work.

I have often joked that criminal defense lawyers must have been abused children because we are drawn to a line of work where we get abused daily. We deal with people with whom we wouldn’t otherwise associate and manage daily crises and varying levels of abuse by the courts, the State or our clients. Every day is a fight. It got me thinking about “normal” people and “normal” lines of work. For example, I think of my friends who are in real estate. They have the pressure of starting every month at zero. They have to get new listings and sign new buyers. They deal with regular folks, people with education and manners. People with jobs. They walk clients through homes and pitch the vision of what the client’s life would be like in that home, the dream, family togetherness. The greatest stressors are losing a sale, a listing, or a client or finding new business. Very different from a typical criminal defense lawyer’s day.

Almost all of our clients are people with whom we have nothing in common. Our clients come to court in orange jumpsuits and handcuffs or on a chain with several other defendants. Some are poor, many are uneducated and many are unemployed. Their manners are limited to calling you “sir” or “ma’am” which often devolves into calling you names not heard in polite society when you give them news they don’t want to hear. They are often charged with serious crimes. Prosecutors read probable cause to the judge that goes from the comical to the macabre. As you stand next to your client you are hit by the surrealism of listening to how a defendant sexually assaulted a child or committed murder or aggravated robbery. The daily horror show of criminal work. Every day we take on the burden of defending these people. And it is a burden.

When you take a case, you take on the responsibility of putting everything to the side and representing that client zealously. You learn the client’s family history, mental health history, and criminal history. You review the facts and evidence. You pore over statutes and cases. The ultimate goal is to pull your client out of the hole they dug for themselves and get the best result possible, whether that be by dismissal, plea agreement or through trial. Throughout the process you build a relationship with your client. You deal with their anger and their fears. You live the case. When you take on a case, you consume and carry with you everything the client is accused of and that includes everything that happened to the victim. Your mind absorbs all the ugliness and over time it becomes a soul-crushing exercise to see and hear what people do to one another. Watching a three-year-old child’s videotaped statement describing how she was sexually abused or looking through the scene photos and autopsy photos of a murder case leaves a mark. All of this takes its toll. None of it can be un-seen or un-heard, it stays with you forever. Over time, each case will work its way to the back of your mind where it usually remains quietly but leaves a permanent residue. The only way to successfully defend your client is to force these things to the side and look solely to defending your client because nobody else will. Nobody else gives a damn.

And nobody gave a damn when it mattered. Oh, the families will bang the drum and make noise about helping and supporting their loved one but the truth is that in the majority of cases they weren’t around when they should have been and didn’t do what they should have done as parents so their son or daughter wouldn’t be in their current position in the first place. Like, teaching them not to take drugs, not to steal or rob, to go to school; the things that form productive human beings. But they want the lawyer to quickly fix what they broke over many years and that is just not possible.

Despite our best efforts and the countless hours and sweat we invest in a case, in our client, despite the arguments with prosecutors and arguments we make to the court, we are sometimes unable to pull our clients unscathed from the mangled messes in which they’ve put themselves. Sometimes you have to make the Hobson’s Choice. Sometimes you have to tell your client that fifteen years in prison is better than a life sentence. That giving up a chunk of their life is necessary to save the rest of their life.

The recriminations come immediately. “This is my life” or “You’re playing with my life” are common refrains. Forget that they didn’t think about their life when they made the decision that led them to face prison. The client hates you. The client’s family hates you. They tell you they wouldn’t be going to prison if they had a better lawyer. They accuse you of not working on their case. Sometime down the road you may get a call from a lawyer who represents the client on appeal or a writ, claiming you didn’t represent your client effectively. In this profession we are often derided and rarely appreciated. It defies description how it feels to bust your ass for a client only to be told you didn’t do enough, weren’t good enough.

I don’t think any of us anticipated what we were getting ourselves into when we chose criminal law as our calling, and I don’t know how many of us would have continued forward had we known what awaited. Not because we don’t believe in what we do and the fundamental right of every human being to a vigorous defense when charged with a crime, regardless of the crime. But because too often the work we do is not appreciated and often criticized. Like my friend who was vilified by his client’s family after doing everything he could do for his client. I didn’t write this piece in the hope that regular folks would feel sympathy for criminal lawyers. Frankly, we don’t expect it. I wrote it for my friend and my colleagues and for myself as a reminder that if we have done everything that could be done for our client, if we have truly fought for them, if we left it all out on the field, we have carried the burden required of us. We don’t have to carry the burden of the client’s unrealistic expectations or disappointment.

By Brian M. Roberts

First published August 22, 2016, on the Reasonable Doubt blog Click here.