Moffitt believed that genetics could be an influencing factor for criminal conduct, which served as the motivation for the paper. “No one had actually considered the possibility that genetic factors could be a strong predictor of which path you end up on,” says Dr. Barnes.

“In [Moffitt’s] theory, she seems to highlight and suggest that genetic factors will play a larger role for the life-course persistent offender pathway as compared to the adolescence-limited pathway.” The researchers ultimately discovered a strong link between genes and criminality.

Barnes and his team examined data from 4,000 people drawn from the National Longitudinal Study of Adolescent Health. They then compared the information using twin methodology, to establish to what extent genetic and environmental factors influenced a trait.

According to the paper, for life-course persistent offenders, genes influenced criminal behavior more than the environment. For abstainers, it was roughly an equal split: genetic factors played a large role and so too did the environment. For adolescent-limited offenders, the environment was the most important factor.

The analysis doesn’t identify the specific genes that underlie the different pathways, so you shouldn’t worry that police will start locking people up based on their DNA just yet. Researchers say there are likely to be hundreds, if not thousands of genes that all work to affect your likelihood of being involved in crime. And even then, the impact may be negligible.

Predicting criminality is a notoriously sensitive subject. Privacy groups recently hammered the Department of Homeland Security for testing a pre-crime detection program that monitored physiological measurements and used them to diagnose ‘malintent.’ Using a person’s genes to do the same thing would surely be even more controversial. Barnes said his hope is only that people read the study and take issue with it, sparking debate and raising criticisms.

The Court ruled just this week on a case involving a nightclub owner in Washington, D.C. who had a GPS tracking device attached to his Jeep. As a result of the tracking, law enforcement officials were able to gather evidence which linked him to a house used to stash drugs and money. Jones’ movements were monitored for 28 days and he was convicted of conspiring to sell cocaine. A federal appeals court eventually overturned his drug conspiracy conviction because police did not have a warrant when they installed the GPS device on his vehicle. When evidence is collected illegally, as was the information linking the nightclub owner to the drug house, a skilled criminal attorney may be able to use that to fight charges brought against you.

The issue was a lot clearer in Texas where a law already exists saying that police must get a judge’s order before using GPS to track suspected criminals. “Police officer’s aren’t allowed to do that unless they go through our own Texas Code of Criminal Procedure and follow the prescriptions there. Which is applying to the judge for an order and having a judge review it and having a judge do that,” says Corpus Christi District Attorney Mark Skurka.

In Texas, specific steps are spelled out with regard to receiving such a warrant. Law enforcement officials must turn to a judge for permission to install a GPS tracking device. Their request must clearly state why that particular agency believes such tracking will help their case in proving that a crime has or will be committed. Officials must then show the geographic area where the GPS will track and for how long the device will be used. The law goes on to state that such a device may be placed only on a car, or in a container on a car, not on some other piece of personal property belonging to the suspected criminal.

Though the Supreme Court ruling has important implications across the country, Texas law was already clear on the subject. In Texas, individuals were already protected from warrantless GPS tracking.

In the past, the Texas Lawyer Appellate Lawyer of the Week has generally been awarded to civil lawyers and it has been rare for a criminal lawyer to be given this honor.  Clint Broden is certified by the Texas Board of Legal Specialization as a specialist in Criminal Appellate Law and frequently handles appellate cases in the various Texas appellate courts and in federal appeals courts throughout the nation.

Clint Broden and Mick Mickelsen were certified in the area of general Criminal Law by the Texas Board of Legal Specialization in 1999.  They have now also become part of the first group of attorneys to be certified in Criminal Appellate Law.  This first group of attorneys to be certified in Criminal Appellate Law by the Texas Board of Legal Specialization was limited to approximately eighty-four attorneys and judges in the entire State of Texas.

In order to be board certified in a particular practice area, an attorney is required to demonstrate expertise in that area by demonstrating his or her experience in the area, his or her continuing education in the area, and obtaining several recommendations from judges and other attorneys who have knowledge of the attorney’s work in that area.  In addition, the attorney is often required to pass a rigorous exam testing his or her knowledge in the practice area.  Only approximately five percent of attorneys are board certified specialists in a particular practice area.

You will find that most, although not all, excellent criminal defense attorneys are board certified in general Criminal Law.  Moreover, most, but again not all, attorneys who have significant experience in representing persons on appeal in criminal cases are certified in Criminal Appellate Law.  We would strongly suggest that, when hiring an attorney, you give strong consideration as to whether the attorney has been certified as an expert in his or her practice area by the Texas Board of Legal Specialization.

Clint Broden and Mick Mickelsen are one of a small group of attorneys that are board certified in both Criminal Appellate Law and general Criminal Law.   Therefore, whether you need an attorney to represent you at trial or on appeal, you will know that both partners at Broden & Mickelsen are among a small number of specialists in both areas.

Broden argued the case before the United States Court of Appeals on November 9, 2011.  He has argued over thirty cases before the various United States courts of appeals including the United States Court of Appeals for the Fifth Circuit, the United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Eleventh Circuit.  Broden is Board Certified in Appellate Criminal Law by the Texas Board of Legal Specialization in addition to being Board Certified in general Criminal Law.

On January 3, 2012, a unanimous three-judge panel reversed the client’s convictions.  It held that the evidence was insufficient to support the convictions and that simply paying money for drugs, even by using financial transactions to hide one’s identity, does not constitute money laundering.  It also ordered that judgments of acquittal be entered so that the client cannot be subject to retrial.

A client who would have been serving almost two decades in prison will be released.  In addition, the government will have to return several hundred thousand dollars worth of property it seized from the client.

The truth is there are no criminal defense lawyers who regularly try criminal cases in the felony courts that have anywhere close to a 90% acquittal rate in jury trials. Are the lawyers making bald face lies? Sometimes they are and other times they are simply being misleading.

First, here are some statistics. According to a Dallas Morning News survey done about ten years ago, in Dallas County, jury trials in the felony courts resulted in a not guilty verdict in about 10% of the cases. In misdemeanor courts, not guilty verdicts occurred in about 50% of the cases.

Why is there such a disparity between misdemeanor cases and felony cases? There are three reasons. First, misdemeanor trials most often consist of DWI and family violence cases. Both of those kind of cases are difficult for the State to prove. Second, misdemeanor cases are not investigated well. Apart from the brief initial investigation when an arrest is made there is usually little follow up investigation. Third, the prosecutors assigned to misdemeanor courts tend to be young and inexperienced.

I noticed when looking at a number of criminal defense lawyer websites in which there was claim of 90% win rate, that many of those lawyers had left the district attorney’s office in the last year or two. So the lawyer claiming a 90% win rate in including his or her wins as a felony prosecutor, when the average felony prosecutor should expect to win 90% of his or her cases. In my mind it is clearly misleading to boast of wins when advertising as a criminal defense lawyer when one is including victories as a prosecutor.

There are other ways lawyers can justify these remarkable win statistics. I once had a conversation with an experienced colleague who told me, with evident sincerity, “I have a never lost a jury trial.” As soon as I covered up my involuntary interjection of “bullshit” with a cough, I asked him to explain. He said, “well I only count the cases in which I advised my clients to go to a jury trial, which I have done only a handful of times in my career.” A similar justification I have heard is, “I include in my win column, all the plea deals that I have considered favorable.”

I don’t mean to suggest that which lawyer you hire doesn’t make a difference. A good trial lawyer will often win a case that a poor lawyer will lose. In addition, it is true that a good lawyer will often achieve a better plea bargain or possibly cause a case to be dismissed. Measuring the win ratio for lawyers is difficult indeed. No ratio will measure a lawyer’s honesty and integrity, the two qualities that are probably the most important for a criminal defense lawyer to possess. If the State is about to attempt to put an individual through the “ringer,” the last thing that individual needs is to feel cheated by his lawyer. So beware of hiring the lawyer that beats his or her chest and brags about his or her purported ridiculously high win rate.

The short answer is: “volume.” Rather than focusing on the quality of service they provide, some lawyers focus on the quantity of clients they can procure. In order to have a steady supply of new clients, some advertise on billboards, various newspapers, and send out direct solicitation letters to people who have been recently arrested. The individual whose liberty is at stake and finds his lawyer on a billboard likely is selecting the lawyer on the basis of price rather than carefully selecting a lawyer based on the quality of the lawyer’s education, skill and experience. The lawyer who is incurring the significant increase in overhead by engaging in such advertising must also charge a lower fee. In order to make this business model work the lawyer therefore must increase the number of clients exponentially. A lawyer who acquires the bulk of his clients on the basis of such mass marketing might have several hundred clients at a time.

A lawyer who has so many clients cannot possibly remember all of his clients names and faces, let alone be intimately familiar with all the facts of the case and have thoroughly researched all the potential legal issues. As a practical matter such lawyers show up each day to the courthouse with dozens of files in hand, while their numerous clients wait all morning for the lawyer to finally get to their case after handling all the other client’s cases that morning. For each case the lawyer usually gets a plea offer recommendation from the prosecutor and relays it to the client. If the client rejects the offer, the lawyer sets the case for trial after charging a trial fee, and oftentimes even transfer the case to a “trial specialist,” for a jury trial takes far too much time to be profitable. After spending all morning at the courthouse, the lawyer breaks for lunch, and spends the afternoon at the office “signing up” new clients. The cycle continues day after day, week after week.

At Broden and Mickelsen we refuse to practice law in such a manner. We treat every case as the most important matter in our client’s lives. Although we charge reasonable fees, we charge a fee sufficient to enable us to thoroughly investigate and research our clients’ cases. If our client elects to have a trial we will be prepared and eager to defend our client’s liberty with the utmost passion and commitment.

The concept of relative culpability arises all the time in civil cases. For example, suppose the driver of a commercial truck fails to maintain his brakes. As the truck driver is approaching an intersection, a car driver attempts to beat a yellow light and forces the truck driver to quickly put on his brakes, the brakes, however, are inadequate for the job and a terrible accident occurs. Who is at fault? The car driver was driving a bit recklessly. The truck driver was negligent for failing to maintain his brakes. In these civil cases, in many jurisdictions the jury apportions the damages according to parties’ relative culpability. If the jury believes that the car driver incurred a $100,000 in damages and the truck driver is 60% responsible, the jury might render a judgment against the truck driver for $60,000.

In Dr. Murray’s case it is pretty clear that if it were not for the fact that Dr. Murray administered Propofol as a means of treating Mr. Jackson’s insomnia Mr. Jackson would still be entertaining us today. Propofol is usually administered by anesthesiologists with sophisticated monitoring equipment. For a non-specialist to render such a drug in a private home without the benefit of such monitoring equipment seems clearly negligent.

However, there is more to the story. Dr. Murray was paid $150,000 per month to be Mr. Jackson’s private physician. Mr. Jackson undoubtedly paid that much money for medical services in part to maintain control over that doctor. Being as charitable as possible to Mr. Jackson, he apparently over relied on many prescription drugs in order to cope with his stressful entertainment career. It stands to reason that Mr. Jackson to some degree paid his doctor that kind of money for both constant and immediate access and in order to get the drugs he wanted when he wanted. Based on what I have read about the trial testimony, Mr. Jackson regularly used Propofol as a sleep aid prior to ever hiring Dr. Murray and Dr. Murray was reluctant to administer it.

Assuming for the sake of discussion that this is the case, is Dr. Murray entirely to blame for Michael Jackson’s death? To be sure he should have refused to administer Propofol in those circumstances, but isn’t his reluctance to adamantly refuse Mr. Jackson the drug somewhat understandable? He knew Mr. Jackson had become dependent on it and would only get another doctor to administer it. If Dr. Murray had Mr. Jackson’s trust couldn’t he have rationalized the administration of the drug on the basis that he was going to wean Mr. Jackson from relying on it? If that was the case, what should Dr. Murray’s punishment be?

It strikes me Dr. Murray should be used as an example to all doctors that they must maintain sound medical practices no matter how wealthy and influential the patient. Dr. Murray should definitely lose his license. Perhaps he should also suffer the indignity of a felony conviction. However, based on what I’ve read about the trial, a sentence of imprisonment seems like a harsh outcome.

After Davis was convicted he appealed his conviction and sentence, but the appellate court affirmed both. He then alleged that his lawyers were ineffective, a claim that was denied in State court but eventually ended up in Federal court. From 1996 and thereafter, most of the witnesses who testified against him began to change their story. Five witnesses recanted, stating they had been coerced by the police. Three new witnesses said that another man had confessed to having committed the murder. In 2009 the Supreme Court ordered that a hearing be held in order to determine whether Davis could prove his innocence. Although the court hearing the evidence concluded that there was doubt raised concerning Davis’ guilt, Davis could not establish his innocence. In September 2011, all of his appeals exhausted, Davis was executed.

A jury found Troy Davis guilty beyond a reasonable doubt in 1991 and sentenced him to death. I think it fair to say, however, over the ensuing years, enough witnesses recanted or changed their stories, and sufficient evidence arose implicating another man, that reasonable doubt was raised about Davis’ guilt. The law, however, required that in order for Davis to avoid execution, once a jury had concluded that he was guilty beyond a reasonable doubt, he had to prove his innocence. Although Troy Davis could raise reasonable doubt about his guilt he could not prove his actual innocence.

Most people who support the death penalty feel secure in the reliability of the convictions due to the fact that the defendant had to have been found guilty beyond a reasonable doubt. But evidence does not necessarily remain static. In some cases, the evidence available in trial might indicate someone is guilty beyond a reasonable doubt, but later evidence might arise raising reasonable doubt about their guilt. In such cases, when reasonable doubt exists, but the condemned cannot prove his innocence, should we, as a society, be comfortable with the imposition of the death penalty?

I submit we should not be. If reasonable doubt arises at any time concerning a defendant’s guilt, the death penalty should come off the table. Even if one believes that Troy Davis probably killed Officer McPhail, if there is a reasonable chance that he was innocent, our courts have presided over a grave injustice. The courts seem to have put a greater emphasis on the finality of the conviction than being assured that only a guilty man pay with his life for Officer McPhail’s murder.

I also think this case reveals a larger problem with the concept of rendering the ultimate punishment. What if the witnesses who recanted in the Troy Davis case only did so after he had been executed? Guilt beyond a reasonable doubt is not the same as 100% certainty. Unless we are a 100% certain of someone’s guilty there always a chance that evidence will later arise proving a convicted person’s innocence. Do we want to live in a society in which evidence could establish the innocence of someone after they have been executed?

According to the magazine they sent a mailer out to all the lawyers with bar numbers in Dallas. They asked them to designate their primary area of practice and then to nominate two lawyers outside of their firm and one within their firm as the best current lawyers in their specialty. After the votes were tallied, a panel of anonymous “eminent lawyers,” (most likely lawyers that had been repeatedly selected in the past by wide margins), met with the editors to make a final selection. The magazine assures its readers that their is no correlation between which lawyers buy an ad and those who are selected.

The process sounds reasonably fair. However, it almost certainly does not pass muster as a poll with a known margin of error. We have no idea how many lawyers participate in the poll. Even if we did, we have no agreed definition of what constitutes the “best.” We know nothing about the panel of “eminent lawyers.” We don’t know what their biases are, or what their definition of the “best” is.

Nevertheless, the list is reasonably short, the lawyers on the list are well known, and one should consider it to have some merit. It is certainly a better way of evaluating lawyers than by thumbing through the Yellow Pages or relying on the reference of an uncle who happens to know a criminal defense lawyer who attends his church.

“D-Magazine’s” list is not the only such list. “Texas Monthly” creates a list of lawyers that it designates as “Super Lawyers.” Clint and I have been selected as Texas Super Lawyers since 2004.

How does “Texas Monthly” compile its list? As it turns out, in a manner very similar to “D-Magazine’s” method. Once again, the magazine polls lawyers in their specialty. Each vote is assigned a point value, with votes within a law firm getting significantly fewer points than votes from outside one’s law firm. The magazine imposes safeguards to catch “back scratching” nominations, i.e., “I will vote for you if you vote for me,” and it discounts block voting where it appears there is a concerted effort by the members of a firm to vote for the same lawyer. The magazine also discourages “campaigning.”

Once “Texas Monthly” has compiled a list of nominees, it does it’s own research. It looks for certification in board specialties, law schools attended, bar and professional activity, etc. Similar to “D-Magazine’s” “eminent panel,” Texas Monthly has a “Blue Ribbon Panel” who are provided a list of candidates and then ranks them 1 to 10. Five percent of the total lawyers in the state are selected for the designation “Super Lawyer.”

The New Jersey Supreme Court recently concluded, [The Super Lawyers selection process] is a comprehensive, good faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field.” The Court also concluded that the purchase of advertising in the magazine in no way tainted the selection methodology. Once again, this appears to be a fair process but certainly not scientific.

Finally there is the venerable Martindale-Hubbell “A-V” rating process. Martindale-Hubbell is a legal directory that has been around for over 140 years. Every lawyer listed in their directory or is listed on their website “lawyers.com” is peer evaluated after three years of practice. Instead of voting, lawyers in a similar practice area are provided a list of names and evaluate ones that they know. A lawyer may be rated “AV” or “BV” or “rated.” “AV” means preeminent, “BV” means distinguished and rated means “ethical.” It is also possible to have no rating. Clint and I have long been rated “AV.”

Obviously, none of these rating systems are perfect. On the other hand, none of them are “bogus” or fraudulent. To be selected as one of Dallas Best Lawyers, a Super Lawyer and AV rated, is an accomplishment of which few lawyers can boast.