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RICH MACKE column: The right to adequate representation

If we ever find ourselves in need of legal representation after being charged with an offense we either did or did not do, our legal system gives us “The Right to Adequate Representation” in a court of law.

According to findlaw.com, indigent defendants who are represented by appointed lawyers and defendants who can afford to hire their own attorneys are both entitled to adequate representation.

Over the past few months in my free time, I have been sifting through court files, letters, interviews, copies of cashiers’ checks, financials and other evidence in the case of a man convicted this past February at the Jefferson County Courthouse District 252.

William “Curtis” Jones was found guilty of “misapplication of judiciary property,” and sentenced to 10 years in the Texas State Prison System.

Misapplication of fiduciary property is a charge that is aimed at protecting beneficiaries of trusts, receivership and the like. Pursuant to Section32.45 of the Texas Penal Code, a person commits the offense of misapplication of fiduciary property by intentionally, knowingly or recklessly misapplying property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property.

I’m not going to say Jones did or did not commit this crime for which he was convicted. What I am going to suggest is that he did not receive fair representation throughout his trial.

If a defendant’s lawyer is ineffective at trial and on direct appeal, the defendant’s Sixth Amendment right to a fair trial has been violated. In analyzing claims that a defendant’s lawyer was ineffective, the principal goal is to determine whether the lawyer’s conduct so undermined the functioning of the judicial process that the trial cannot be relied upon as having produced a just result. Proving this requires two steps:

  1. The defendant must show that his own lawyer’s job performance was deficient. The defendant must prove that his counsel made errors so serious that the lawyer did not function as the counsel guaranteed the defendant by the Sixth Amendment.
  2. The defendant must show that the deficient performance unfairly prejudiced the defense. The defendant must show that his lawyer’s errors were so serious as to wholly deprive the defendant of a fair trial.

Here are some of the more common claims of inadequate representation that would unfairly prejudice a case, which could include an attorney’s:

  • Failure to investigate a case
  • Failure to present supporting witnesses
  • Failure to interview or cross-examine witnesses
  • Failure to object to harmful evidence or arguments/statements
  • Failure to seek DNA or blood testing (where available)
  • Failure to timely file appeals
  • Failure to determine whether there would be a conflict with representation

After reviewing transcripts of the case, some interesting facts came to light. During the prosecution segment of the case, not one of the prosecution witnesses were cross-examined by Jones’ defense attorney.

Also as interesting, when it came time to call defense witnesses to support Jones, none were called.

In my book, that’s called “Game Over.” You have created zero defense for your client.

A defense attorney’s job is to, at the very least, try to create doubt in the minds of the jury.

Barnett Howell & Williams PLLC share that an effective defense to a charge of misapplication of fiduciary property is mistake of fact — otherwise negating the culpability required for the commission of the offense. Section 32.45 is designed to punish intentional, knowing or reckless misapplication of property. Thus, if it can be proved that the improper use or application of the property was the result of mere negligence, by mistake of fact, the statute does not apply.

I reached out to Jones’ defense attorney, Thomas Burbank, in an attempt to understand the strategy behind not cross-examining or calling any witnesses. I have yet to hear back from Burbank.

Last week, Curtis Jones appeared at the 252nd District Court in Jefferson County to hear Judge Raquel West’s motion on his filed appeal. Jones has an appeals attorney, Dustin Galmor, who feels there is enough proof to file for an appeal.

But questions continue to be asked. If one attorney feels there is enough evidence to warrant a new trial, why didn’t Jones’ previous attorney see that?

Our freedom lies in the hands of a defense attorney. No matter what your opinion may be of the accused, he is still legally required the right to adequate representation. That’s how the system works. Without it, his fate was sealed, whether he committed the crime or not.

I will be watching the retrial of Jones closely as I feel strongly there is more to this case than meets the eye.

Rich Macke is publisher of The Port Arthur News.