Cross: JoAnne Musick, Criminal Law From Both Sides Now
June 1, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor, Houston criminal defense, juvenile and family lawyer, JoAnne Musick.
Q. After graduating college, you went to work in the “real world” before going to law school. Did your work experience make you want to go back to school? Was there a burning desire to be a lawyer, or did law just happen to be the place you landed? Most lawyers go straight to law school from college, and never experience the real world as a non-lawyer. Did you learn anything that carried forward into your legal education?
A. The “real world” was something of a necessity for me. I worked my way through college and used my employer’s college program to earn tuition reimbursement: the higher the grade, the greater the reimbursement. Thankfully, they allowed me to adjust my work hours for full-time work comprised of Monday, Wednesday and Friday so I could attend college all day Tuesday and Thursday. I had always thought I would go to law school but fell in love with my undergraduate accounting and finance classes.
Derailing my plans for law school, I worked as an accountant and sat for the CPA exam. However, I soon grew tired of the monotony. I switched my focus into computer programming and technology. Luckily, the major grocery retailer I was working for had just the fit and I moved to their IT department, where I planned and installed Texas’ first satellite system for credit card processing at the register. Slowly but surely, I again grew tired of the predictability of my work. Sure, there were new projects, but they were really all the same.
In the interim, my dad had gone back to school for his undergraduate degree. At his graduation party, he announced he would go to law school. Thinking he couldn’t possibly be serious (at his age), I joked, “If you go, I’ll go.” A couple days later my dad brought me an LSAT application and the rest is history. He and I would start law school together.
Though I didn’t quite see it at the time, my real world experience actually led me to law school. Having tried out accounting and technology, I learned that while I was good at both, my heart lay elsewhere. Heading into law school, I had a great advantage over my classmates. I could relate to the stories behind the cases we read and prepared for class. There was a human element to each and I found myself studying the fact pattern where most students seemed to focus only on the legal analysis. Additionally, having competed for various projects, promotions, and assignments, I felt I had a better grasp on the competition among students.
Q. You went to South Texas College of Law in Houston. Was it your plan going in to practice criminal law? What made you want to be a lawyer? What made you decide that, of all the practice areas out there, criminal law was the one for you? Was there another practice area that caught your interest?
A. Interestingly, when I started law school, I planned to capitalize on my accounting background and head into a tax practice. Professor Wheeler changed that forever. Criminal law 101 was the most exciting class I had. I loved everything about it. All the students warned, don’t take Wheeler’s classes. He’s too tough, they told me. To the contrary, he was the push I needed.
I liked being challenged. I realized that was what made the difference: accounting didn’t challenge me, technology didn’t challenge me. Law made me think! Over the next 3 years, I took every criminal class offered and every class Wheeler taught. Of course, I took the tax classes also. They were easy with my background and could help boost my GPA. But the criminal classes had captured my heart and soul, and that’s where I would be headed.
Q. Upon graduation, you went to work at the Harris County District Attorney’s Office, where you interned during law school. What made you decide to become a prosecutor? You spent five years as a prosecutor. Did you worry about the possibility of convicting an innocent person? Did you see defendants as humans? Did you see your job as being “more right” than your adversary?
A. Becoming a prosecutor would give me a chance to be a trial lawyer. Through law school, I learned the courtroom was where I wanted to be. No desk job for me. I had done that and needed more. Not to put all my eggs in one basket, I applied at the D.A.’s office as well as the courts of appeal. With both offers on the table, the reality that prosecuting would have me in trial won the day. Most folks I talked with agreed: the office would give me the trial experience that just wasn’t available elsewhere.
Unlike some of my colleagues, I worried about convicting the innocent. I worried about officers lying and stretching the truth. My life experiences gave me an outlook much different from others. If I believed an officer lied, I dismissed the case. If I had doubts about guilt, I dismissed the case. Doing what I thought was right generally served me well. Of course, there was that one time I offered probation to a 17-year-old kid in a burglary case. If you don’t practice in Harris County, you wouldn’t know that was a capital sin. Office policy dictated that probation could never be offered in a burglary case. Everyone knew this. Everyone routinely stood in front of the judge with a wink and recited office policy while the judge assessed probation anyway. It’s just the way it was done.
Well, I straight up offered the probation. And, of course, the defendant jumped at the opportunity. Little did I know, later that day, the complainant had called the office to inquire about the case. When she learned of the probation, she made a complaint. The complaint reached the first assistant. The first assistant reached the bureau chief. And, it trickled down from there.
Funny thing is, before it actually reached me, there was this new prosecutor orientation going on. My dad was just starting with the office and was in orientation. Apparently, much of orientation consisted of one simple message: never offer probation in a burglary case. Someone had done so, and there would be hell to pay. My dad couldn’t wait to tell me the story of how some idiot offered probation. Of course, I was that idiot. At least I had a heads up before the powers-to-be found me! Though it was truly the right thing to do, from that point forward I joined the ranks with a wink and let the judge hand out probation.
Q. While a prosecutor, you handled public integrity cases. That side of the prosecution can be at odds with other parts of the office. Were you comfortable doing public integrity prosecutions? How did your colleagues, the cops, view you? Did you feel like a traitor to the cause or doing the critical work of keeping government honest? What did you learn about cops and public officials that everyone should know?
A. Prosecution was never about us versus them for me. In my mind, it was about accountability. If a crime was committed and it could be proven beyond a reasonable doubt, with all my cards on the table, then a conviction would be had. I had to be accountable. The officers and witnesses in my cases had to be accountable. If not, the prosecution failed. Having been around cops all my life, I knew there were good and bad. My family knew it too. Finding the bad cops was part of making the system better. So, I was quite comfortable handling public integrity cases. If I could do my job honestly and ethically, they could too.
I’m certain there were cops who didn’t like me because of my assignment. At the same time, I didn’t care. To me, if they didn’t like it, they had the problem and likely just preferred to cheat. The officers who knew me didn’t hold it against me.
What did I learn about cops and public officials? More than I expected. I knew there were cops who pushed the envelope. I knew there were public officials who played politics and bent the rules. What I didn’t expect was the level of cover-up that I found. Officers were willing to turn a blind eye for their friends. But worse yet, the department was willing to hide and conceal complaints and internal investigations. At one point during my tenure in public integrity, we issued a sweeping subpoena and threatened a search warrant just to uncover years of internal files related to official misconduct. The sheriff’s department purported to forward all criminal investigations and complaints to public integrity for review. The reality was hundreds were never mentioned or forwarded. We gathered boxes of files and analyzed them. Many detailed criminal conduct for which the statute of limitations had already expired. It was shocking and sickening to know so much had gone unreported, allowing officers to remain on duty with no discipline.
Q. In April, 2003, you left the Harris County District Attorney’s Office and started your firm doing criminal defense and family law, and you’re now board certified by Texas in criminal and juvenile law. Where does family law fit into your background? As difficult as criminal law can be on a defendant and his family, the practice of family law can be brutal. What do you do when you have kids wrongfully taken from their parents, their home? How do you deal with the fact that you can’t give a child back those days of his life stolen from him?
A. Having served two rotations in the juvenile division at the D.A.’s office, I had a soft spot for kids. I wanted to help them. I saw too many being swept into the system. No one seemed to take it seriously. Defense lawyers told kids, “it’s just probation” and “you can seal your record later.” The theory was, it seemed, a little probation wouldn’t hurt anyone. They would be better for the experience. They would get help and resources needed to succeed. Nothing could be further from the truth. So many kids were just being railroaded. And, of course, when they came back, punishment would be removal from their home. I knew I wanted to combat the philosophy and change the course, at least one client at a time.
Turns out, focusing on juvenile and criminal law wasn’t enough. The family side was tearing families apart. Protective orders were issuing that prohibited families from being together. Allegations, sometimes false, were being thrown around for leverage in divorce and custody cases. It seemed most lawyers focused on one or the other, criminal or family, and the clients could be substantially harmed.
A client hired me to help him get possession and access to his child, just a few months old. It turns out, his “family” lawyer advised him he should agree to the protective order because he could save some money and not piss off the judge. His “criminal” lawyer had negotiated a diversion in his assault case, not realizing the diversion would also impact the custody case. In Texas, with a protective order in place, The client could not legally be named a managing conservator of his new child. Though the judge had stricken the language adding the child to the temporary protective order, when he and his lawyer agreed to the final, the child was gratuitously added back. Since he agreed, the judge granted it this time. With a diversion in place, and a protective order, the client was banished to only supervised visitation with his son. Paying a service to watch him interact with his child.
It was cost prohibitive for the young father and thus visitation was sparse. It took years to undo the damage. Here, a young 20-year-old father wanted to be part of his son’s life. He wanted to pay child support. He wanted a relationship. He wanted to be a dad. Yet, the system did everything it could to keep him distant from the bonds created at such a young age. Today, I’m excited when I see photos of him and his son together at the zoo or over the holidays. He is a great dad.
The tragedy is that my client will never get back that time he missed. Children in detention will never get back the time away from home. Our families are not better for the system. Yes, there can be situations where the space and time are necessary, but in the vast majority of cases, families are better together than apart. That’s why family law became an important part of my practice.
Q. Now for the obligatory first jury trial question. Everybody has a story about their first trial, whether it’s a huge victory or a crashing defeat. Which one is yours? Were you the lawyer who knew it all, or the lawyer who knew nothing? Looking back now on your first trial, what would you have done differently knowing what you know today?
A. I knew nothing! Sure, I pretended to know how to ask questions. I pretended I wasn’t shaking and terrified. But, inside I was a mess. It was a terrible case to try. Of course, I didn’t know any better at the time. I had a complainant who was certain the defendant stole her necklace. She called the police, they investigated, and the defendant was charged. It was really simple; cut and dry. I’d put the complainant on the stand and everyone would believe her, right? Wrong!
Well, the jury might have believed her at first. I did ok. I got her to tell her story. What I didn’t count on was the other side of the story. She did well on cross-exam. She maintained her story, and that was good, right? Wrong! She was unwilling to admit even the most basic of common sense explanations offered up by the defense. She wouldn’t admit she and the defendant had a dating relationship, which is how he had access to the necklace. The further the cross went, the more I knew I had no clue what I was doing. I hadn’t foreseen the cross. I hadn’t foreseen the defense. Of course I lost. But, it was a great lesson in not always taking a complainant, or any witness, at their word.
I was the first to admit I knew nothing. I immediately started watching every trial I could. Picking the brains of every prosecutor and defense attorney who would talk to me. Knowing what I know now, that’s where I should have started, but as the story goes, it’s trial by fire at the D.A.’s office. The day you start working you could go straight into trial, and I did.
Q. Since your first trial was as a prosecutor, let’s leap forward to your first jury trial as a defense lawyer. You already had experience in the courtroom, but was it the same? When it’s all cross, no direct, did you find it to be a very different experience? What about the judge and jury; did they react the same to you as defense lawyer as they did when you were prosecutor? What was different?
A. Defense lawyering is nothing like prosecuting. I had the confidence of courtroom experience. I understood procedure. But, it’s an entirely different beast. Cross-examination must be honed. You don’t have the luxury of the “what happened next” line of questioning. Defenses are integrated into cross and possibly even your own witnesses. Cracks in testimony have to be exploited. Being a prosecutor, even having tried over 100 cases, only slightly prepared me for being a defense attorney.
In my first defense trial, I learned I had to battle not only the prosecutor but also the judge. When we took our morning break during testimony, I stepped out to talk to a witness. When I returned to the courtroom, my client’s family asked me why the prosecutor was emailing the judge. Utter shock and sheer panic set in. I had no idea what to do. I ran into the hall and quickly found a few experienced defense lawyers and ran it down. They helped me make a record.
The judge feigned surprise and offense at my questioning of the court and prosecutor. But, it turns out, my client’s family was correct. So much for the advent of computers in the courtroom: from counsel table, during testimony, the prosecutor was emailing back and forth with the judge about a motion I had filed, a motion that we were due to take up on the lunch break. Ultimately, the record was complete and we headed back to trial. From that point forward, I wouldn’t catch a break. Not a single objection was sustained. Yet, every prosecutorial objection was gold. Looking back, I think the lesson was supposed to be not to mess with the judge. However, I only learned just how far a judge (and a prosecutor) will go to help the state.
Q. The transition from prosecutor to defense lawyer can be rather jarring, having spent your formative legal years with your head wrapped around getting the bad guys, only to find yourself sitting next to the accused. Did you struggle with the transition? Did you come to learn that the accused weren’t as bad as you thought? What was it like sitting across the desk from a new client whom, a little while earlier, you might have tried to put in prison? Was there an epiphany that defendants may be innocent? Were you just as comfortable defending a guilty client as anyone else?
A. Everyone says the struggle is real. For me, there was no struggle. Perhaps it was because I was lucky. I was able to pick and choose my clients. Perhaps it was my time in public integrity that helped. I didn’t look at defendants as bad guys. I questioned everything and everyone. Defending the guilty client was easy. They deserved a fair trial, a zealous defense, and a chance to beat the system. Beating the system is how we hold the system accountable. The difficult part was defending the innocent. And there are far too many of them.
On a capital murder case, I was hired by the family. They spoke of his innocence, yet, surely they didn’t know what he and his brother had actually done. I met with my client; he maintained he knew nothing about the robbery and murder. Of course he was lying. He didn’t trust me, and I couldn’t blame him. Eventually he would come around. After a few jail visits, I came to realize he just might be telling the truth. A little investigation and I knew he was innocent. Proving it was another thing.
It took almost two years, but we followed every lead the cops passed up. We interviewed every witness. Luckily, we found a string of robberies in the same area, with similar motives and descriptions. We chased down each of those cases and suspects. We found our man – the man who pulled the trigger in the capital. The one eyewitness who selected my client in a photospread looked at a new photospread we compiled. She immediately realized she had picked the wrong guy the first time. Now she saw the real defendant. She was horrified at her prior mistake. On the eve of trial, we decided to share most of our information with the prosecutor. The prosecutor listened. She offered us a plea to probation on a robbery instead of capital murder. A deal that is hard to refuse.
Yet, my innocent client refused and remained in jail. That prosecutor was transferred and the trial was continued. The new prosecutor was sure my client was involved even if not the triggerman. In an effort to tie my client to the shooter, the prosecutor made a visit to the shooter, who found himself in jail on another matter. The shooter remarked it had taken them a long time to tie this one up. They were floored. We had solved what the cops didn’t. They had charged an innocent man and his brother. We had found the shooter and his friend. Our client and his brother were released and new charges were filed. It was gratifying yet scary. There was no way I could let an innocent man be convicted of capital murder.
Q. You are the current president of the Harris County Criminal Lawyers Association (which I believe is your second stint as president?). It’s one of the most active local criminal defense bar associations around. What makes HCCLA work? What keeps Houston lawyers working together when other local bar associations do little besides giving themselves awards? What are the problems you’re facing, such as the tough time so many criminal defense lawyers are having with keeping their practice thriving?
A. HCCLA works because we are diverse. At some points in our history, HCCLA was criticized for being just a social organization. At other times it was indigent defense oriented and alienated the retained lawyers and vice-versa. Over the past couple of decades we have strived to be comprehensive. Recognizing both plays equally important roles in the courthouse and for our clients. Working together, the bar can be better. It’s still a fine line to walk but maintaining a balance that serves all makes it work. We also have a core group of leaders that remain involved. We are active and outspoken. We are not afraid to point out problems and confront judges, prosecutors, and other officials. We want to be part of the solution and not the problem. So, while we may criticize them, we strive to offer resolutions as well. This has garnered us a seat at the proverbial table, so to speak.
Criminal defense lawyers are still the lowest paid of all lawyers. Whether appointed or retained, most are struggling to survive and prosper. HCCLA looks to improve indigent defense funds when we can, but also to assist the local bar by providing low cost quality education to strengthen our bar. When we create better lawyers through training and mentorships, we give them the confidence to grow their businesses. It’s tough, on the one hand, when we advocate for pretrial release and lower bonds, our colleagues who handle predominately appointed cases could lose appointments. Yet, for every client out of jail, there is a greater chance he returns to work and can hire a lawyer. Either way, the work will be there.
Q. You’ve sat on both sides of the courtroom, and are coming up on 20 years practicing law. What’s next for you? Would you like to become a judge? Would you consider public office, even running for District Attorney some day? What’s the next mountain to climb for JoAnne Musick?
A. For now, I’m happy where I am. Having bounced around the real world before law school, I finally found the thing that is not monotonous or boring. Every day is an adventure and I adore my work. I would consider public office if it didn’t involve politics. As long as politics play a role, I’m happy where I am.
In fairness, I’ve had several inquiries about taking a juvenile bench or a criminal bench. I am flattered and intrigued. I know I would be fair (doesn’t every judge think they would be?). But in all seriousness, I have seen both sides. I have fought hard for both. Not all actions should be criminalized and not all criminals should be incarcerated. Not all defenses should prevail, but neither should all prosecutions. I am about helping people as much as I am about solving problems. As such, I find myself thinking, “if it were up to me…”. If I were the judge, what would I expect? What would I do? I find myself torn between both sides, and I think that is what makes a good jurist. Someone who can truly see both sides, is not enamored by either, and can take an action that is true rather than political.
Outside of a bench, I want to continue helping people reach solutions for themselves and for the system. We can do better, and I’m happy to lead where I can. That’s one of the reasons I’ve twice undertaken the role of president for HCCLA.