A Texas criminal defense legend on fighting for the underdog

Originally published by Lindsay Stafford Mader.

E.M. “Gerry” Morris is a longtime Austin criminal defense lawyer most well known for representing a Branch Davidian member and winning his acquittal on all counts. This July, Morris was inducted as the president of the National Association of Criminal Defense Lawyers. He recently spoke with the Texas Bar Journal about his early career, the criminal law issues he thinks are most pressing, and how he sleeps at night. Stay tuned for our December issue, which will focus on criminal law.

What made you realize that you should be doing criminal defense law?

For whatever reason I became who I am. I’m somebody that questions authority.

I’m drawn to fighting for the underdog. What really gets me going is to see the big guy picking on the little guy regardless of the motive. I couldn’t begin to tell you how that happened; I’m just that way.

My formative years were spent in the ’60s. Growing up in East Texas, I saw how minorities were treated and how they were considered second-class citizens. The civil rights movement really made an impression on me.

Then I saw the Watergate hearings. I was transfixed by them and how the members of the committee were very skilled at their investigation. I saw how important it was to challenge government, to constantly work to make sure it’s honest and not overextending itself.

Do you remember your first case and how it turned out?

I hope every lawyer remembers his or her first case. I remember mine very clearly. There was a fried chicken place down on the Drag here in Austin, and somebody busted the glass out of the drive-in window after the store closed and stole a package of rolls and a big jar of jalapeños.

The police went and gathered every homeless person around and lined each up and went down the row. They arrested my client because his breath smelled like jalapeños.

I was a bull in a china closet. I had no idea what I was doing. But I think for being as green as I was, I at least headed in the right direction. I was offended by the way they rounded everybody up, I was offended by the leap of logic that caused them to arrest my client. And I think my righteous indignation drove me on.

Back then, we got an examining trial, which is a preliminary hearing, and I made the impassioned argument that the strong smell of jalapeños was not sufficient cause to hold my client for the burglary. He was discharged at the examining trial. I never will forget that.

Defense lawyers are known for their candor and grit. What do you think makes you a little different?

I think we’re a lot different. I think for most of the cases we get involved in, the odds are overwhelmingly against us. It takes a special kind of person day in and day out to compete in that arena, and that person is generally, oh let’s say a little more colorful than the lawyers you might deal with at a real estate convention.

We’re a little bit coarser, a little bit harder to shut up, a little bit harder to contain. Because we have to be.

I deal with a lot of people and a lot of subject matter that aren’t for discussion in polite company. I deal with people who are at their worst, some are very hard to deal with and some just plain irascible. And the lawyer who can handle that kind of person is generally not somebody who is real good at parlor conversation.

How do you handle clients that are rough around the edges?

I have to be the one who calls the shots. I’ve told clients frequently, “Your judgment is what got you here to start with. Let’s try my judgment for a while.”

Of course I hear a lot of stories, a lot of explanations or excuses for what somebody did, and I tell people occasionally, “Look, that story just wouldn’t fly. You have to ask yourself do you really want a lawyer who’s stupid enough to believe that story?”

Most defense attorneys have a standard response to questions about their ability and desire to represent people who have done horrible things. What’s yours?

Most people who ask that question wouldn’t understand the answer because it’s such an innate part of being a criminal defense lawyer. I never go out in my waiting room and look at somebody and think, Do I really want to represent that person given what they’ve done or are alleged to have done? When I’m asked to explain, it’s difficult for me because it’s like explaining why I’m left-handed.

If I do make a stab at explaining it, I remind them that the Constitution guarantees everyone the right to counsel, and the best way to ensure that the right outcome occurs most of the time in a criminal matter is if both the government and the defense are relatively equally equipped and present their cases well and that the rules set up over the centuries to ensure fair proceedings are followed.

If I’m in a hurry, or if I don’t think the explanation will do any good, I usually just say, “I represent these people because the voices in my head tell me to.”

What are your goals for your term as NACDL president?

Indigent defense reform is one of my focuses. Upwards of 80 percent of people who go through the criminal justice system as defendants are represented either by public defenders or court-assigned counsel. And there is a lot wrong nationwide with the system that provides that representation.

Another focus is forensic science reform. About 47 percent of exonerations have bad science as a contributing component of the wrongful conviction. It’s a real, tangible, serious problem. We have people losing 20, 30 years of their life going to prison for something they didn’t do.

The other substantive emphasis is electronic surveillance and mass data collection. We’re putting together a panel of experts to advise the rest of us on what we ought to be doing to raise challenges to evidence obtained through these processes.

There have been several NACDL presidents from Texas. Why might our state produce good criminal defense lawyers?

It’s a tradition in Texas to be a good attorney. Unless you’re of a certain type and unless you approach cases with a certain zeal, you really aren’t noticed.

If you could talk to them, every past NACDL president from Texas would tell you that there was some older lawyer who mentored them at one point.

Each generation of lawyers wants to make the next generation good and they’re generous with their time to do so.

When I first started practicing, advertising was still prohibited. The only option I had was to team up with a lawyer who was more experienced than I was and to start with the crumbs that he could give me. I don’t think as much of that goes on as it used to.

Who was your mentor?

I had a couple of them. Jerry Howeth taught me an awful lot about how to practice criminal defense. Later on, I became good friends with Stuart Kinard, who had been a rising star in criminal defense. He was one of the most insightful lawyers I have ever talked to. If you mention his name to lawyers of my generation, everybody is going to tell you that he was something special.

Did you listen to the podcast Serial?

Yes I did. I thought it was interesting to see what type of investigation a journalist did. For a few years at the University of Texas School of Law’s innocence project, we paired our law students with journalism students to do case investigations.

We found the journalism students to be much more inquisitive than the law students. Their training placed a premium on factual investigations. So it taught me that maybe we need to teach young lawyers to ask better questions.

You focus on trial work. What are your thoughts on the vanishing jury trial?

One thing that really concerns me is the way people are discouraged from having jury trials, especially in federal court. Some of the sentence reductions resulting from plea deals are dramatic.

One of the cases of U.S. District Judge John Gleeson, who I gave an NACDL Judicial Recognition award to last week, dealt with the trial penalty. The co-defendant, equally culpable, agreed to plead guilty and testify for the government and got 27 months. The guy who went to trial got 57 years. As the judge put it in his opinion, the man’s failing—what caused him to get that higher sentence—was simply exercising the rights that are given to him in the Constitution to make the government prove its case beyond a reasonable doubt.

What case has had the most meaning for you?

The Branch Davidian case was truly a once-in-a-lifetime situation. I was fortunate to be able to represent one of the individuals involved. It appealed to my problems with authority and contempt for government overreach and abusive use of force. I got to try that case with some excellent lawyers, and I learned a lot about the craft.

In anybody’s career, you want to be able to look back and say, “I did this thing that epitomizes the reason why I got into this profession and it turned out right.”

The press coverage was intense. We’d walk out of the courtroom every afternoon and the press would basically mob us. Everything we were doing was scrutinized, and you’d read in the paper about what you did in the trial.

A question that we were constantly asked was if spending all this time with people who were deeply religious influenced our religious feelings in any way. And I’d tell people, “As a matter of fact—it did.” Every morning I’d walk up to the podium and say a silent prayer: Dear God, please don’t let me mess this up. Because I knew if I did, it’d be all over the New York Times.

I was very glad it turned out well for my client, and I’ll always look upon that as the best experience of my career.

What are your three top tips for young or seasoned criminal defense attorneys?

1. Figure out who the good lawyers are in your legal community and watch them in the courtroom and in pre-trial. There’s a reason why those lawyers are successful with the outcomes of their cases—and they generally have a lot of skill in doing many things. That’s the best training you can get.
2. Handle your clients’ money as if it were very special, which it is.
3. Always remember that you are the professional. Don’t be tempted to compromise your ethics and your judgment because failings in those areas are generally what brought the client to you. Trust your own moral compass.

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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