Threading a Needle

A few weeks ago, I resolved a murder case. This took about 14-15 months to accomplish. The prosecutor, based on the evidence he had at the time, all of which was provided to him by the local police, indicted the defendant for first-degree murder. The range of punishment was 5-99 years or life. It did not help things one bit that at the time of the alleged murder, the defendant was on probation for two burglaries of a habitation convictions–each punishable by 2-20 years in prison. It also did not help that he fled the scene and that a certain deadly weapon vanished into the wind.

So when I took on the case, the situation for the defendant looked bleak, as in bad.

However, we–“we,” meaning my defense team–did our own investigation. This is a State Bar requirement, but more important than that, it is a vital step the defense must undertake in every critical, high-stakes case. Deep digging occasionally turns up evidence the police missed, or ignored, or improperly disregarded.

Hence a common problem and too often occurrence in major felony cases:

(1) someone is dead, or something terrible has happened;

(2) the police are under intense pressure to arrest a bad guy or bad guys as suspects for the crime;

(3) there’s a potential bad guy or bad guys with records;

(4) the police, instead of strictly following the evidence–and only the evidence–unconsciously or, far worse, negligently or even deliberately focus on questionable evidence, even shaky evidence, which points at their potential bad guy or bad guys, rather than simply, strictly, and only following whatever the evidence is, to a proper and logical and accurate conclusion about who committed what crime if any, in what order, when, where, how and why.

The State’s original case missed key evidence, key witness statements, key text messages, and key recorded statements, which the defense team’s investigation did not. We acquired some of these leads during our investigation. We followed the facts and the truth as both developed.

The State’s original offer was something like 50 or 60 years.

A few weeks ago, the defendant pled guilty to negligent homicide, a state jail felony punishable by 180 days to 2 years in a state jail. Because the defendant used a deadly weapon, however, his punishment was legally increased to third-degree felony range of 2-10 years in TDCJ and up to a $10,000 fine.

There were many other complicated factors at play in this case.

I advised the client that if we took the case to trial, we would likely obtain a Not Guilty verdict from the jury, or a hung jury, as long as we were able to pick a rational, intelligent, attentive jury. The prosecutor, whom I respect, did not disagree with this assessment and, in fact, advised the DA of the same.

The defendant, however, fearing a possible life sentence if things went south, fearing never seeing his young daughter again, instructed me to avoid trial as long as I could obtain for him a sentence of ten years or less. Given his existing time in jail waiting for trial, he would be parole eligible in about three and a half years if I obtained a ten-year deal.

There were many negotiations over many months. It is arguable he did not commit murder of any kind or type. It is also arguable he did. I struggled over this for some time, but the defendant was the client, and I followed his orders, which were proper and legal under both the law and State Bar rules.

I acquired that ten-year deal.

Again, the client avoided a trial he might have lost, avoided a possible life sentence, and is parole-eligible in about three and half years.

Is this a trial victory?

No. There was no trial.

Should we have taken the case to trial?

The defendant ordered me to get him a ten-year deal or better. I did so.

Is the defendant satisfied with the outcome of his case?

Very much so. He will miss his daughter’s middle school years. But he will see his child graduate from high school. He will see her graduate from college. He will be there for her during critical years of her childhood, if not all of them.

Is this a victory for the client?

He feels it is.

And so, and therefore, the answer, and his answer, is yes.

State v. Tommy Pettigrew, 241st District Court, Smith County, TX.

Getting Arrested Doesn’t Mean You’re Guilty

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