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Resources2019-05-13T19:21:28+00:00

This section contains links and articles that can provide information or answer questions for our clients and others. Also, check our blog for information about current issues.

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Articles by Greg Westfall

The following is a sample of Greg’s writing over the years. They are divided into topical areas. Some of these are old. Never rely on a written work to guide any kind of a legal or evidentiary decision unless and until you have either consulted with an attorney (if you are not one, and maybe even if you are) and/or did your own supplementary research.

Criminal Charges in State Court
Criminal Charges in Federal Court
White Collar Defense

The practice of criminal defense has become highly specialized…

As the criminal law becomes more technical, wide-ranging and complex, more and more people are finding themselves in the criminal justice system. This is particularly true in the federal courts, where sometimes a person at the wrong end of a business deal gone bad may find himself indicted for a white collar offense such as mail fraud, wire fraud, or health care fraud. At the same time, new technology and investigative techniques makes virtually every major criminal case more complex. In a murder case, the criminal defense lawyer may find himself facing a medical examiner, one or more crime scene investigators, police officers and detectives, experts in DNA, crime scene reconstruction, toxicology, video analysis and possibly psychology or psychiatry.

Ordinarily, the life span of a criminal case includes the following steps:

Police Investigation

At the state level, the police will either receive a complaint or witness an alleged offense and make an arrest. The initial report by a police officer may then go to a detective, as usually happens in more serious state felony offenses. In the case of misdemeanors, such as DWI, there is no investigation to speak of after the initial police-citizen contact. Usually at the state level, the investigation will be conducted solely by the police and be more or less complete when the police hand the file to the district attorney for prosecution. This does not mean the case will not be complex. In general, the more serious the crime, the more intense and thorough the police investigation.

The state prosecuting authorities are also conducting more white collar investigations (fraud, identity theft, etc.). These investigations may be conducted by the Attorney General or specialized units in the District Attorney’s Office and may be fairly simple to very complex. Oftentimes, the investigators may also be accountants or retired IRS agents.

In the federal system, the investigations are conducted by any of the several federal law enforcement agencies such as the FBI, ATF, DEA, or Postal Inspector. There are also investigative sections in other agencies that are not primarily designed for law enforcement investigation such as the USDA (United States Department of Agriculture) and the FAA (Federal Aviation Administration). Unlike the state system, where the police will often do the entire investigation and then hand the case off to a district attorney, a federal investigation will often be overseen by an Assistant United States Attorney virtually from the start. These investigations also tend to be much longer and more thorough than those done at the state level.

In either system, if you are under investigation a detective or other law enforcement officer may call you wanting to “get your side of the story.” You should NEVER speak to someone in law enforcement before you consult an attorney. Having an attorney is your right. Don’t worry about “looking guilty.” A law enforcement officer investigating you is not your friend. Going it alone could have a devastating effect on your case.

The Prosecutor Accepts the Case

For the most part, prosecutors at the state level are district attorneys and county attorneys and federal prosecutors are United States Attorneys.

When a state police officer files a case, what he does is simply puts it in the hands of a district or county attorney. Misdemeanors then go directly to a court. Felonies must be indicted, which means that they must go to a grand jury. If the grand jury chooses to indict the case, then the case is assigned to a district court. At the state level, a person may be arrested either when (or before) charges are filed (such is the usual case in Tarrant County), or once they are indicted (which is the practice of many of the less urban counties).

At the federal level, the same Assistant United States Attorney who has overseen the investigation will take the case before a grand jury. In the federal system, as with the state, a person may be arrested either before or after indictment, depending on the circumstances and the type of criminal offense. Oftentimes the indictment is sealed (not accessible to the public) until the arrest is made.

Corporations may also be indicted at both the state and federal level for a number of offenses. In “white collar” cases (most commonly some form of alleged fraud), it is not unusual to see both the corporation and several of its officers or high ranking employees in the same indictment. Those cases are often quite complex and require each person and the corporation to have separate, highly competent counsel.

The Trial

Once on the court’s docket, the case can only go one of three ways: trial, guilty plea, and, sometimes, a dismissal. Whether at the state or federal level, one can expect the prosecutor to do his or her utmost to win his case. Oftentimes, most of the prosecutor’s witnesses will be connected with law enforcement and well practiced at testifying in front of a jury. It is essential that the criminal defense attorney spend whatever time it takes to prepare for trial. There will usually be some flaws in the prosecution’s case, but finding them takes investigation, preparation and creativity.

Even where a guilty plea results, the need for preparation cannot be overstated. Usually the most advantageous plea agreement can only be achieved when the prosecutor knows you are very serious about trying the case.

The Appeal

Either the person charged with an offense or, in limited instances, the government may appeal an adverse ruling or verdict. The appeal is taken first to the court of appeals. The party that does not prevail at that level can then take the case to the next level. In Texas, the highest state criminal appellate court is the Texas Court of Criminal Appeals. In all cases the highest appellate court in the nation is the United States Supreme Court.

An appeal is not a re-trial of the case. In an appeal, usually a complaint is made to the court of appeals that the trial judge made mistakes. The appeal is based on the record at trial and the briefs of the parties. Preparing a compelling appellate brief requires an intimate familiarity with the law and a lot of creativity on the part of the lawyer. It also takes a lot of time.

Post-Conviction Writs

The Writ of Habeas Corpus is the remedy of last resort. It is limited to raising violations of a person’s constitutional rights. Generally seen in writs are complaints regarding deficient performance of trial or appellate counsel, violations of due process, or allegations of serious police or prosecutor misconduct. Writs generally require a whole new round of investigation, since the nature of most complaints was that these violations were not discovered during the trial or appeal processes.

Each of these stages presents opportunities for the criminal defense lawyer and his client. The goal is to get the client out of the criminal justice system as quickly as possible with the best possible result. This means that the attorney must work the system and cannot simply react to it. The lawyer should, where possible, deal with police detectives before charges are brought in an attempt to head off a criminal case. Sometimes the lawyer may also prepare a case to present to the grand jury with the goal of avoiding an indictment. Once a case is filed, the attorney should always be thinking of a way to creatively dispose of a case where a dismissal or reduced charge is possible. And where a trial or appeal is necessary – investigate, prepare and fight.

Violation of Fiduciary Relationships
Fraud
Breach of Contract
Defamation/Invasion of Privacy
Theft of Trade Secrets

Civil Litigation is not necessarily more complex than criminal defense, but there is quite a bit more formality, procedure and rules and the cases tend to take quite a bit longer to resolve. The same qualities that define a successful trial lawyer, though, do not vary between civil and criminal trial practice. The need for aggressive and creative representation is identical.

How A Civil Case is Started

Quite simply, the Plaintiff files a lawsuit. At the state level, depending on the dollar amount one is suing for, the suit may go into a County Court at Law or a State District Court. Very small suits may be prosecuted in the Justice Courts. The type of relief the client desires can also dictate where and in which courts the suit must be filed. A civil case may be maintained in either State or Federal Court. The client needs to know that where a suit is filed is something that must be carefully considered. It may be that due to the rules of jurisdiction and venue the client has no choice. However, the client usually has some latitude and you and your attorney must consider the advantages and possible disadvantages of each forum.

Discovery

In a general sense, discovery includes depositions and “paper discovery,” which seeks documents and answers to written questions. You can also, in the right case, seek other investigative tools. Discovery – particularly “paper discovery” – can sometimes be complicated (such as electronic discovery where you receive a massive amount of information) but, more often, the discovery is simple but the other side simply resists it in a number of different ways. Therefore, the number one attribute for successful discovery is not how clever you are at asking for it, but how willing you are to fight to get what you’ve asked for. The law favors open discovery, but oftentimes you have to be willing to go to the judge to make the other side comply.

Resolution

In a civil case, just as in a criminal case, you are likely to have two possible outcomes – settlement or trial. In criminal cases, settlement is some kind of a plea bargain or agreed dismissal. In a civil case, it is almost invariably a monetary settlement, although it could be a permanent injunction or other equitable remedy. Many times, the settlement will be the product of mediation. There can be very good reasons for settling a lawsuit, not the least of which is certainty and finality. However, the client needs to know that in all cases whether to settle or not is the client’s decision. The lawyer may advise, but not decide this important issue.