ACDLA and The Reposa Affair

 Posted on April 22, 2008 in Uncategorized

Austin criminal-defense lawyer Keith Lauerman, on his sparse blog, gives his take on the winners and losers of last week's contempt hearing in which Adam Reposa got 90 days in jail for making masturbatory gestures toward a judge. Keith, who was there, explains how the County Attorney's Office, Mr. Reposa, and the Austin Bar were both winners and losers in that case.

The Bar, in Keith's view, was a loser because:

Nowhere was the hypocrisy screaming out more than the behavior of the Association. In an organization that penned its name to a letter protesting the ICE office in the jail and other various endeavors, it couldn't bring itself to protest the absence of due process to one of its own. As many of our violent clients walked out of jail on probation with treatment and counseling as recommended, a criminal-defense lawyer was looking at enough jail time to ruin his practice. Had you substituted another lawyer for Reposa, the Association probably would have acted. It was an exercise in picking and choosing support depending on who was popular, and looking the other way on the principles involved.

By "the Bar" Keith apparently means the Austin Criminal Defense Lawyers' Association, rather than the Austin Bar Association (which did not pen its name to the letter protesting the ICE office in the jail).

I have to agree with Keith: the ACDLA dropped the ball on this one.

The criminal defense bar should not defend only popular lawyers in trouble any more than its lawyers should defend only popular people. Our clients are generally the least popular people in society, yet as lawyers we do not shirk our responsibility to defend them. We defend them because of a principle: that the least of us are no less worthy of a zealous defense than the greatest.

The same principle should apply to a criminal-defense lawyers' association's defense of criminal-defense lawyers against contempt allegations. This has been the Harris County Criminal Lawyers' Association rule: if a Houston criminal-defense lawyer is accused of misconduct and wants our help, we will defend her. We had a couple of discussions in the last year about whether we should defend people who had probably done wrong, and agreed that it did not matter. That will continue to be the association's rule for the next year while I am president and, I hope, beyond that period.

If Adam was willing to accept ACDLA's help, then booo to the ACDLA. In recent years HCCLA has sprung to the aid of every Houston criminal lawyer who faced jail for contempt and, as far as I know, none of them went to jail.

Here, by the way, is Adam's side of the story:

I wasn't thinking then, but I am being railroaded now!! Look I try every DWI I can no matter how bad the facts because you will get less time from a jury than if you plead guilty. Free bite at the apple. This judge is very lenient on punishment, but she does not make it easy to get a day in court. I had a jury out on a.105 breath test case where my client got in a wreck and urinated on himself. During deliberations I told the judge "I don't know" meaning about the verdict and she said emphatically "what you client who blew over the limit and peed on himself might be guilty!" Jury acquitted.She looked absolutely exasperated on March 11 from my mere presence when I arrived from Dallas, and we go into court where the RECORD shows that the first thing she tells my client is "you have been in since November" (he was sitting out 7 months state jail on an unrelated case but had all the time he needed–judgementproof). POINT–judge knows the max can't hurt him. Then proceeds to tell my client –there are pros and cons to having a trial, I try to tell him that there is no con you have all the time in the world "Mr. Reposa be quiet, Mr. Prosecutor please read Mr. XXXXXXX the offer. So I whisper in my clients ear "Make them pick a jury, they will dismiss your Fucking marijuana weak ass bullshit DWI where you were stopped for inspection stickers!" the the prosecutor "Judge let the record reflect Mr. Reposa is still whispering in his client's ear!" That is when I made the gesture, under the bench I thought. "I saw that says the Judge!" Now she goes into court and says "He looks me in the eyes, makes the gesture and rolls his eyes" Then why does the record say "I saw that" Because they want me out of practice. C'mon CCA. Simply she and I don't get along. She introduces me to jury panels as a young lawyer, I stand up and ask the record to reflect I have tried over 50 DWI jury trials. She thinks I am disrespectful, and I won't make any more public comments. Again c'mon CCA

Sometimes your adversary acts like such a schmuck that merely rolling your eyes just won't do. One of those times is when he whines to the judge that you're counseling your client: I'm supposed to whisper in my client's ear, dummy; that's my job! In such a situation, a gesture simulating masturbation is not, in my expert opinion, a wholly inappropriate response. Adam's major error was letting Judge Breland see the gesture. I would guess that Adam has, over the course of his career, rubbed a lot of people the wrong way in the Austin criminal defense community; were they swarming to defend him? Let's just say that he didn't have to beat them off with a stick. (Okay, I'll stop.)

Back to Keith Lauerman's post. While the ACDLA was a loser in The Reposa Affair, according to Keith, the ACDLA may also have been a winner because:

While inconsistent in its efforts, the Bar has no obligation to support every cause. First and foremost is the preservation of the image and integrity of its membership. While Reposa was not even a member, some argued that the Bar should have at least protested the sentence. I was in the minority that the Bar should have taken some stance on this issue, but I was out-voted. If time passes and interest fades, the passive attitude of the Bar will have proven right. But if another crisis involving a lawyer surfaces, the passiveness may not prove to be the right formula and this sets a dangerous precedent. But for now, no action may prove to be the right action.

"First and foremost is the preservation of the image and integrity of its membership"??? Is this a joke? We're criminal-defense lawyers. We have no shame and very little fear. It's not a defense lawyers' association's job to preserve our image (which - let's face it - is a pretty crappy one already) or our integrity (whatever ACDLA could do to preserve our integrity, did it do so by turning down the chance to stand up for an unpopular cause?). Part of the job of a defense lawyers' association - a real criminal-defense lawyers' association - is properly to support its members in their battles for their clients' freedom.

The organized criminal defense bar doesn't have to support every cause, but it should defend its members, right or wrong. TCDLA and NACDL have strike forces to assist lawyers who get themselves in trouble in the course of their representation; they don't ask whether the lawyers were right or wrong. HCCLA doesn't have such a strike force, but it doesn't need one - we're a small community, and it's a given that whoever is capable of helping a lawyer in trouble will do so. Right or wrong.

Keith was right when he argued that the Bar should have taken some stance on The Reposa Affair. The Austin Criminal Defense Lawyers' Association apparently had an opportunity to act like a real criminal-defense lawyers' association, and they passed on it. Nothing will ever prove that decision right.

Boooo.