Le Procureur Soleil de la Republique?

KHOU-TV put up PDFs of some of Harris County District Attorney Chuck Rosenthal's emails here and here. It turns out that Chuck uses (or was using) the email address "l'etat@dao.hctx.net". How very Louis XIV.

Government's Talents

The state is bad -- wasteful, inefficient, and incompetent -- at almost everything it tries to do. There are two exceptions that I can think of:

• First, making war, which is the application of violence against the citizens of another state.

• Second, prosecuting crimes, which is the application of violence against its own citizens.

If it doesn't have to do with the use or threatened use of force, government stinks at it. (Whether government should be in the business of doing things that it does badly is a separate question. I would say that if it's worth doing, it's worth doing badly.)

Chuck's Apology

This came out today, in response to the events I discussed here:

For Immediate Release:

Contact: Chuck Rosenthal
Friday, December 28, 2007
713-755-5810

Statement by Chuck Rosenthal

Recently some Harris County District Attorney inner office emails have been released in the media.

I understand that I have said some things that have caused pain and difficulty for my family, my coworkers and friends. I deeply regret having said those things. Moreover, I am sorry for the problems I have caused anyone.

I also understand that sometimes things happen for a purpose. This event has served as a wake-up call to me to get my house in order both literally and figuratively.

Charles A. “Chuck” Rosenthal
Harris County District Attorney

I commend Chuck for owning up (not the best apology, but not bad for a politician), and hope that "get my house in order" means "stop punishing others for violating morals that even I (being, after all, human) can't follow" rather than "redouble my efforts to hold myself to the moral standards that I impose on others less fortunate."

(By the way, "literally"? Doesn't "get my house in order" literally mean "tidy up my living space"? Also by the way, might they have been interoffice emails rather than inner office? And, while I'm picking nits, the parallelism in the second paragraph is incomplete -- should be "my friends". Mayhap Chuck was kissing his secretary behind her right ear while dictating the letter?)

Your Tax Dollars at Waste

Here's a little treasure, HR 1955, The Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, which passed the House of Representatives in October "under a suspension of the rules to cut debate short and pass the bill." (PDF.)

Others see it as sinister; I don't . . . yet. It would merely create a "National Commission on the Prevention of Violent Radicalization and Homegrown Terrorism" (yawn) and a "Center of Excellence for the Study of Violent Radicalization and Homegrown Terrorism in the United States" (snore).

Here's the highlight, as far as I'm concerned.

The term "homegrown terrorism" means the use, planned use, or threatened use of force or violence by a group or individual born, raised, or based and operating primarily within the United States or any possession of the United States to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives.

So when the State of Texas (a group operating primarily within the United States) threatens to put murderers to death (the threatened use of violence) so that potential murderers (a segment of the civilian population of the United States) will not murder people (in furtherance of the social objective of having fewer murders), it's committing homegrown terrorism.

Moreover, since every penal law is backed by the threatened use of force or violence and is intended to coerce or intimidate civilians in furtherance of political or social objectives (less crime), everybody on the government's side in a criminal case becomes a party to homegrown terrorism. I think that's neat.

Neater: it would also make every athlete in every contact sport a homegrown terrorist. Probably not the result that Congress intended, but as far as I know nobody ever accused Congress of being smart.

David Tarrell is . . .

Criminal Defense Lawyer of the Year

Lawyers Appreciate . . . The U.S. Constitution

My friend Scott Greenfield has tagged me for the Second Annual Lawyers Appreciate Meme, which started at Life at the Bar.

I appreciate the U.S. Constitution.

The Founders knew -- from direct experience -- that government is a threat to freedom. The saw that government was necessary, though, or at least inevitable. So, rather than leave the form of the government to chance, they created one, making it as weak as they thought it could be while still performing its fundamental duties, and wrote down how it was supposed to work. The Constitution is the leash the Founders put on the beast of Government. (Not a strong enough metaphor . . . .) It's the pentacle the Founders drew on the floor before summoning the demon of Government.

Not all lawyers appreciate the U.S. Constitution. For every lawyer arguing for an interpretation of the Constitution that would preserve human freedom, there is a lawyer on the other side arguing for an interpretation that would diminish human freedom to the benefit of governmental power.

The meme says I'm supposed to tag three people. So here are three who, I know, appreciate the U.S. Constitution:

Robert Guest (I Was the State)

Stephen Gustitis (Texas Criminal Defense Lawyer)

Jamie Spencer (Austin Criminal Defense)

Okay, but why the RIGHT ear?

I am not one inclined to judge the morals of others. Who a prosecutor is lusting after (committing "adultery in his heart", as Jimmy Carter might say) is not something I consider to be my business, or anyone else's, except . . .

Except that the prosecutor in question is the individual who orders the DA's office's policy not to agree to less than 10 days in jail for any person (hooker, hustler, or john) charged with prostitution. The prosecutor in question? Elected Harris County District Attorney Chuck Rosenthal (who, incidentally, describes the path to lethal injection as "the pipeline").

According to an article by the Houston Chronicle's Brian Rogers, Chuck is fighting in federal court to keep secret his emails (from his county email account, which would make them generally subject to the Texas Public Information Act), in which he kanoodles virtually with his executive secretary, with whom he had an affair in the 1980s. (Chuck says that he told his current wife, whom he married in 1991, about the affair before hiring Stevens as his executive assistant when he took office in 2000.)

"While the 51 e-mails between the two contain the phrase 'I love you' more than a dozen times," the Chronicle writes, "and Rosenthal asks Stevens to let him hold her, the messages are not explicit." An example in the Chronicle article: "The very next time I see you, I want to kiss you behind your right ear."

Morals aren't on my beat. Hypocrisy, however, is. When the prosecutor who has made himself and his office responsible for enforcing the morals of consenting adults (Rosenthal is also the prosecutor who, arguing the constitutionality of Texas's sodomy statute in the Supreme Court, was "outclassed") is publicly revealed to be no more moral than the rest of us (including those he persecutes), I smell karma in the air. It smells like . . . victory.

(See also: Chuck's Apology and Le Procureur Soleil de la Republique?)

Practical Blawgosphere Wiki

Don't forget to check out the Blawg Council Wiki and add to the catalog of blawgs. Someone had the right idea with CrimLaw -- he added it to the catalog page for prosecutors' blawgs and created a page describing it (though, now that I look at it, the creation of a page describing it may have been a happy accident -- the PHPWiki software interprets a word with a capital letter within it as a link to a new wiki page).

Criminal Defense Lawyer of the Year

Scott Greenfield is taking nominations for Criminal Defense Lawyer of the Year:

This will not be a Beauty Pageant for the usual suspects, the big name lawyers in the high-profile cases, but rather the unsung heroes in the trenches, doing the dirty work that flies under the radar.

Please nominate a criminal defense lawyer who has done something to deserve recognition. Please let us know what it is that he or she has done. Do not feel constrained to limit yourself to lawyers who made headlines. The winner will be judged by the worth of his or her efforts in the scheme of our duty to zealously represent those accused of crimes.

It's about time that we recognize the extraordinary accomplishments of our brethren in the trenches. Now it's up to you to submit your nomination, via the comments, and acknowledge the exceptional work done every day by men and women who have never made the front page of the newspaper. Let's do it.

I agree with Scott: it's about time. I'll be thinking about narrowing the list of trench lawyers who I know to have done extraordinary work this year, so that I can nominate a few for Scott.

Why Try the Unwinnable?

I closed yesterday's post on justice and winning by asking, "Sometimes (rarely, but sometimes) we try cases because we have nothing to lose: the inevitable result of a trial is no worse than the result of a plea. If we have no hope of winning, why do we try those cases?"

We're not trying these cases for justice, and we're not trying them to win (though arguably there's always a chance that the prosecutor will screw something up and we'll win, which is something to hope for). Sometimes the goal is just to make it costly and difficult for the government to put the client in a box.

When we try an unwinnable case, not only do we make it harder for the government to box that client, but we also tie up the government's resources, making it harder for the government to put other humans in boxes.

Plea Plead Pleaded Pled? Please!

My fellow blawgers:

When a person admits her guilt in court, she does not plea guilty. She pleads guilty, entering a guilty plea. "Plead" is a verb. "Plea" is a noun.

After a person has admitted his guilt in court, he has not plead (or "pleaed") guilty. The past tense of "to plead" is "pleaded" or "pled."

Logical Extreme

Something that should cheer those who hold that "The Sun rises and falls on the sole question of the client's interest" and feel that "if serving the client harms another, so be it" . . . .

Here, if the federal government is to be believed, is a lawyer who doesn't just pay lip service to the notion that the client's interests are paramount, but truly "without hestitation and in a moment . . . would sacrifice another for the sake of [his] client."

Justice?

Gideon wrote:

Maybe I’m naive, but I thought it - what we do, this side and the other - was about justice. Righting wrongs. Then why, for some, is it about winning and losing?

What this side does is different than what the other side does. The other side has (but of course doesn't always follow) an ethical and legal mandate to seek justice. We have an ethical and constitutional mandate to zealously defend our clients.

The nature of justice is something that I spend a lot of time meditating. There are different sorts of justice. For example, there is restorative justice (making things right) and retributive justice (evening the score). Cleaving justice on another plane, there is substantive justice (making things right or evening the score) and procedural justice (regardless of the result, making sure that fair rules are followed).

If you accept that procedural justice is justice, then yes, criminal defense is often about justice. Part of our job is to seek procedural justice by making sure that fair rules are followed. When I say "fair rules" I mean rules fair to our clients. The other side, being the government, is not constitutionally entitled to fairness. Nor is the other side, being a non-living creature, ethically or morally entitled to fairness. So we seek procedural justice and, if we get it, our clients get all possible breaks.

Now, Young Shawn Matlock asks this question: "How many criminal defendants who hire a defense attorney will be happy being led into custody following a loss at trial knowing that justice was done?" and answers it: "None. That's how many." I disagree with Shawn's answer. I have had many clients unhappy with me for having helped them execute their decision to plead guilty, and many clients whose cases have been dismissed as a result of my hard work have acted as though the dismissals were nothing more than their due, but almost every client whose case I have tried has been happy with my representation. Lots of defendants have never had anybody fight for them before; procedural justice feels good to them.

But most (non-defending) people don't accept procedural justice as justice. In the criminal courthouse, it appears to most that the only justice is retribution. When rules fair to the accused are followed and the accused goes free, they call it a "technicality."

In a criminal case, the government is trying to put the accused in a box, whether real (coffin, prison cell) or metaphorical (probation, sex offender registration). The criminal defense lawyer is trying to prevent the government from putting the accused in a box. Sometimes nothing (not even a motion to change the facts) will keep the client out of a box. On those occasions the defender tries to make the box as big as possible (a prison cell instead of a coffin, probation instead of a prison cell, shorter probation instead of longer).

The people trying to put our clients into boxes think they know what substantive justice is. In fact, many of them work for a government agency known (in Newspeak) as the Department of Justice. The Department's official policy (holy writ to official woman) is to "charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case." So federal prosecutors must, according to law, seek justice, but must, according to policy, seek "the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence." In DOJ-world, substantive justice is what Congress and the Guidelines Commission say it is.

(A slight digression: the "charge the most serious offense" policy was a contribution to the American criminal "justice" system by proud evangelical Christian John Ashcroft; if Jesus had followed this policy, though, he would most assuredly have cast the first stone.)

Many of us who are forced by the lack of official policies to think for ourselves recognize that nobody -- including those charged with seeking justice -- has the slightest idea what constitutes substantive justice. We don't know what substantive justice is: we don't know what size boxes our clients deserve or, often, whether they deserve boxes at all. Not being omniscient, we can't know what substantive justice is. It's not our job to try to figure out what substantive justice would be, and it's damn sure not our job to seek it.

What about "winning"? Norm Pattis rejects the concept in favor of advancing his clients' interest (a definitional quibble, in my view; Norm views the term "winning" as part of the sports metaphor of trial that he rejects, but the concept of "winning" isn't really "drawn from sports"); Malum ignores it in favor of filling in the blanks in the government's poorly-written story (a nice way of putting it); Scott and Stephen accept it implicitly (Scott writes that "winning often has little to do with justice" and Stephen discusses "the winning argument"); and Matlock adopts it wholeheartedly.

"Winning" is a vague term. An ethical prosecutor might consider an acquittal a win, and a defense lawyer might consider a conviction a win. By "winning" I doubt that Scott or Stephen or Matlock means anything other than "getting the best possible result for the client." I'm okay with defense lawyers seeking to "win" as long as winning and losing refer only to the client's interests, and not to the lawyer's ego. Sometimes, though, the goal is not to win because winning is impossible. Sometimes the result of a trial is a foregone conclusion (though we usually, in the grips of trial psychosis, convince ourselves otherwise). Sometimes (rarely, but sometimes) we try cases because we have nothing to lose: the inevitable result of a trial is no worse than the result of a plea.

If we have no hope of winning, why do we try those cases? I have an idea about that; more tomorrow.

Practical Blawgosphere Wiki

Several denizens of the practical blawgosphere have started a wiki for the practical blawgers. Please check it out, and begin editing it to add other practical blawgs, and other fields of practice, to the catalog. Editing instructions are here.

I'm Back

Bennett & Bennett are back from seven days in Paris.

A few of the things the French do exceedingly well:

• Food and drink.
• Subterranean transport.
• Historic preservation.
• Clothing.

Something the French do less well:

• Technology.

While the hotel at which we stayed in the 7th Arrondissement provided, in theory, a high-speed internet connection, that mostly-theoretical connection didn't work well enough to stay online for long enough to do more than just check email. And while I had planned to have GMail forward emails from our answering service to SMS on my French cellphone, I discovered that this was a non-trivial undertaking, and that my French -- limited mostly to cognate words of Spanish -- was not up to the task of explaining what I wanted to the cellco's customer service reps. Even in league with the hotel's concierge and the sales guy at the cellco store across the street, I was unable to make the email-to-SMS connection.

No matter, though. I needed a week away from constant and instantaneous communication with clients, potential clients, and everyone else who needs my help from time to time. It was, as I noted before, a well-deserved break; I recommend it highly.

I did check email a couple of times a day, and had young criminal defense lawyer extraordinaire Sarah Wood covering for me, so the practice didn't self-destruct. But, with wine to drink and museums to tour, I couldn't be bothered to blog much, or even to keep up with happenings in the practical blawgosphere. So I was pleasantly surprised on my return to find that Gideon's post about whether it's about justice or winning had triggered some discussion of one of my favorite topics: the nature of the criminal "justice" system, especially as it affects the players' roles and responsibilities. I'll have a good deal more to say on that a little later today.

Until then, here are the contributors to the discussion so far: Malum, Norm Pattis , Stephen Gustitis , Scott Greenfield , and Matlock (thanks to Scott for the links); and here are some of my earlier posts related, generally, to the topic: A Truly Compassionate Profession Redux, Different Sorts of Justice, Who Are You Helping and Who Are You Hurting?, Right v. Legal -- an Example, Right v. Wrong, Vanity, and Unimpressive.

On Vacation

Defending People is taking a brief well-deserved break. I will not post much, and may not post at all, in the next seven days.

Offshore My Job? Not Bloody Likely!

Scott Greenfield is having a conversation (of sorts) with Rahul Jindal about legal outsourcing. Rahul, who is in Noida (a suburb of Delhi) is an advocate of LPO -- variously, "Legal Process Outsourcing," "Legal Process Offshoring," or "Legal Services Offshoring."

Mention of Delhi drew my attention because that's one of my hometowns. Until I was 20 or so, the address at which I had lived at the longest stretch was on Jor Bagh Road in New Delhi. Back then India was a lot farther from the U.S. than it is now. There was no internet, telephone connections were spotty, and mail to or from the States took two weeks. Now

Because I'm an old Delhi-wallah, I'm interested in the idea of legal process offshoring. India has a population over 1.1 billion. There are lots of college-educated English-speakers (including, allegedly, a million lawyers -- about the same as in the U.S.), the economy is still in the process of spooling up after 40-plus years of parochial protectionism, and the overall cost of living is low. Finally, India's legal system, like America's, is based on the English common law.

All of this comes together to make India a good place to hire knowledge workers. My brother sent some photos off to ScanCafe in India to be scanned to disk. I use iDictate to transcribe audio files; I'm not certain that the work is done in India, but it might as well be. The knowledge workers who scan photos and transcribe audio files are, without intensive training, capable of doing many things that lawyers do in the U.S.: document review, for example. The work of a biglaw first-year associate could clearly be sent offshore to India, as could the work of a contract attorney. (There are logistical and privilege matters to resolve, of course.)

Lots of India's 1.1 billion people are really, really smart. If the curve is the same in India as in the U.S., India may have 110 million people with an IQ over 150. These people can be trained up to do almost anything they want to do. So if the LPOs are hiring smart Indian lawyers and training them well, there's no good reason to think that they couldn't do the bulk of the work that the bulk of American lawyers do. Aside from document review, American legal research is well within the reach of properly trained Indian lawyers. Contract drafting, as well, might be feasible. Teaching law is a cinch.

But there are, at the moment, limits. Scott complains about not being able to understand the accent of Charlene from Bangalore; I suspect hyperbole -- I've never had a problem with understanding any Indian's English. More justly, Scott has trouble understanding Rahul's prose:

I have seen young parents worry about the influence of crime on impressionable minds, that practicing criminal law can, in extreme cases, also have its effects is a new one!

I can see how Scott might not immediately understand that sentence -- especially since he is the one being dissed. It's not exactly a model of limpidity. It might well make perfect and immediate sense to someone raised in India, or even in Great Britain, but it doesn't to Scott.

And there's the rub. Much of what lawyers -- especially trial lawyers, and most especially criminal trial lawyers -- do requires a thorough grokking of the culture. Such knowledge of American (or Texas, or New York) culture can't be taught; it takes decades to absorb. And so communicating with juries, judges, and valued clients -- almost all we do as criminal trial lawyers -- cannot be offshored.

Drug Defense Brainstorming

How, without putting your client on the stand, might you counter the government's "nobody would trust another person with x dollars worth of drugs unless the other person knew he had the drugs" argument in a trial in which knowledge is at issue?

I'm looking for novel and useful approaches.

Failure to Testify

From McClung's Texas Pattern Jury Charges:

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence.

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a "failure"?

TSA = Thieves Shun Accountability

In our (if you help someone with a trial for long enough, it becomes your trial too) federal cocaine conspiracy trial, which involves eight kilograms of cocaine in a sealed Barbie dollhouse box in a suitcase at Houston's Intercontinental Airport, yesterday we learned that the Transportation Security Administration (TSA) keeps no record of the suitcases it has opened and inspected unless it finds something. Nor are inspections videotaped.

So when you get one of those slips of paper in your suitcase saying "TSA wuz hear", TSA has no record that they were ever actually there. That might be some comfort to you.

Of course, if you open your suitcase and find the slip of paper saying "TSA wuz hear" where your Rolex used to be, you might be somewhat discomfited by the fact that TSA has no record of which inspector it was that had his hot little hands inside your suitcase, or even whether your suitcase was in fact inspected. (Do TSA inspectors steal? You bet they do. Lots.)

The good news for TSA inspectors (other than the fact that they don't have to get by on their meager salaries, since it's pretty much open season on travelers' valuables) is, I suppose, that if a plane is blown out of the sky by a bomb that they missed in a suitcase that they inspected, nobody will ever know which inspector missed the bomb.

Juror Misconduct

Gideon brings us this atrocious story out of Illinois about a juror coming forward, 15 years after his jury duty, to testify in a postconviction proceeding that he and two other jurors had believed that the defendant was innocent of the armed robbery but after deliberating for over nine hours, had changed their votes to guilty under pressure from the other jurors. One can see how this testimony might have benefited the defendant in a postconviction proceeding. So of course But the judge shut it down, telling the juror that criminal charges could be filed against him for jury misconduct. The juror took the Fifth (the right thing for him to do in the absence of competent legal advice under these circumstances) and the postconviction proceeding was dismissed.

Is juror misconduct really a crime? And if it is, isn't there a statute of limitations? Is there an Illinois lawyer out there who can tell us whether this juror was really looking at potential criminal liability?

Maybe Not the Strongest Self-Defense Case

It's audio-video day here at Defending People. Here's a 9-1-1 tape from the City of Pasadena, a suburb of Houston in Harris County:

Note to self: If you have time, before shooting someone in the back, to explain to the police that you understand the recent changes in the law of self-defense, then it probably isn't really self-defense.

Police Surveillance of a sort

Criminal defense lawyer Randy England of Jefferson City, Missouri brings us this post about Brett Darrow, a 20-year-old St. Louis kid who drives around town wired for sound and light, deliberately antagonizing cops by refusing to play along with their attempts to pry into his personal life and intimidate him. The police conduct in the first video Randy links to might shock most middle-class white folk who think the cops are their friends, but it shouldn't. This is how lots of people will behave when you give them a gun and a badge and set them loose on the street. The police sergeant in that video was fired not because of what he did, but because he got caught doing it.

Darrow's civil disobedience is reminiscent of Texas lawyer Pat Barber's Just Say No to Searches campaign. Both of these guys are role models. If everyone knew their rights and exercised them, the police wouldn't think they have license to run roughshod over the constitution. If you're not rolling dirty, talking to the police and consenting to searches might be expedient, but that doesn't make it right.

Randy makes the good point that police, like the rest of us, can't be sure that they're not being watched (along those lines, see this post at IWTS about a New York cop caught on MP3 trying to coerce a confession). Eventually there'll be enough cops caught on video or audio breaking the law that either the middle-class white folk will realize that it happens all the time, or the police who break the law will become, like other criminals, much more careful about doing it in public.

"Come Back with a Warrant Doormat Rug" (High Cotton)

Welcome Prosecutors

Defending People had a lot of traffic yesterday from Harris County computers; last night at the HCCLA Holiday Party a prosecutor asked me if I was really blogging during trial. From these two data I conclude that Harris County prosecutors are reading my blog from the office. Welcome, prosecutors! If you see any unnamed prosecutor in here whom you believe to be you, you're wrong. Anonymous prosecutors are at least partly fictionalized. If you think you recognize a case that you have against me in a blog post, likewise, you are incorrect. All open cases, and most closed cases, are at least partly fictionalized. Descriptions of named prosecutors, however, are entirely accurate.

I hope that you will comment (anonymously, if you like) when you read something that inspires or outrages you.

P.S. Should you really be reading Defending People from the office during work?

Flight to Nowhere

So . . . the Government puts on this witness, see? And this witness, she works for Air France, right? So the Government puts her on the witness stand in a federal jury trial, and asks her about airfares. They want to know what the lowest fare from Houston to Port Harcourt was in April 2007. So they've got this printout from the Air France computer showing the various fares available from Houston to Port Harcourt between April 1, 2007 and June 15, 2007. With me so far?

So the Government has this nice lady on the stand -- lots of years' experience with Air France -- and gets her to talk about the various fares on this printout -- first class fares from Houston to Port Harcourt, economy class fares from Houston to Port Harcourt, fares with an advance purchase from Houston to Port Harcourt, fares without an advance purchase from Houston to Port Harcourt, fares with stays of various durations from Houston to Port Harcourt, all between April 1 and June 15, 2007. And the lowest fare for that trip -- Houston to Port Harcourt -- during that time period -- April 1 through June 15, 2007 -- was $1,536. Good enough. The point, I figure, is that the accused didn't choose the easiest, least expensive route from Houston to his hometown of Port Harcourt, or some such.

Anyway, the defense lawyer gets up to cross-examine. We don't know whether this fare was available when the accused bought his ticket, yadda, yadda, yadda. Then -- and I really don't know how this comes out -- the nice lady mentions that the Port Harcourt airport was closed because of civil unrest.

Okay, the defense lawyer asks. How long has the Port Harcourt airport been closed? Since sometime in 2006.

Port Harcourt Airport. Closed. Since 2006.

For those of you who might be employed as federal prosecutors, and therefore having some trouble keeping up: Even if the accused had wanted to take this flight, he couldn't have.

Sheesh.

Give Me Cover

"I'm in trial in federal court, and I need someone to cover for me in Harris and Galveston Counties on Friday."

If you are a criminal defense lawyer, at some point you will ask for cover. A lawyer other than the one on the case covers for the one who is by making a court appearance.

Cover doesn't generally involve substantial lawyering, but rather just showing the flag, letting the judge and the client know that the case is not forgotten, and getting a new court date. In other words, it's not complicated. In the grand scheme of things that we do as criminal defense lawyers, cover is one of the hardest to screw up. I'm not going to send a Horrible Criminal Defense Lawyer into court to cover for me, but anyone with a modicum of diligence and competence should be able to provide cover without making the situation any worse.

By getting cover instead of just calling the court, the lawyer whose case it is can make the client's life easier and less stressful. You might pay a young lawyer for her time to cover for you (because young lawyers have to eat or they'll never grow up to be dinosaurs), but you probably wouldn't pay an experienced lawyer for cover. Experienced lawyers cover for each other as a favor, because they know: if you are a criminal defense lawyer, at some point you will ask for cover.

When I cover for another lawyer, that person's cases are my first priority. I'll show up at court extra early and introduce myself to the clients so that they knows they haven't been forgotten; then I'll get them on their way out of court as quickly as I can. Otherwise, the clients might start calling their lawyer's office to find out what is going on. I don't want that because I know that their lawyer is busy doing something else and doesn't need progressively more irate calls from his clients.

So I was disappointed yesterday when I learned that the lawyer who agreed to cover a couple of cases for me in Harris County (I'm in trial in federal court) had moseyed into court sometime after 10:30 a.m. -- an hour after the 9:30 docket call. My client had been a no-show, and his bond had been forfeited. If the lawyer had made cover a priority and arrived early he might have been able to get a second chance for the client. It turned out okay -- young criminal defense lawyer extraordinaire Sarah Wood, one of my former students from criminal trial advocacy class at the University of Houston Law Center, was able to salvage the situation this morning, but that shouldn't have been necessary.

So give me cover please, but -- please -- do it well.

"We Will Show that the Defendant is a Con Artist"

I don't know what to say. This was supposed to be Assistant U.S. Attorney Eric Smith's opening statement -- a time not for argument but for describing what the evidence is expected to show.

The accused is not charged with being a con artist. Rather, he's charged with possession of cocaine, at issue is whether he knew that he possessed a controlled substance, and he didn't try to con anybody into believing that he didn't know.

So why would Mr. Smith, prosecuting a drug case, argue to the jury in a drug case that the accused is a "con artist"? It has nothing to do with the facts of the case; might it have something to do with the nationality of the accused?

Might the prosecutor be trying to stir the jury's prejudice by equating the accused (a Nigerian citizen) with the Nigerian con artists who fill our inboxes with offers of easy money?

Is that right? Appealing to the jury's biases and prejudices that way?

Since the jury is entirely white and hispanic, you might even call it an appeal to racism; if Mr. Smith were a white man, you might wonder whether he shared the racism that he was trying to foment in the jury.

Do you wonder the same thing of a Black man?

Becoming a Federal Criminal Defense Lawyer II

This morning I was visiting with dinosaur-in-training Feroz F. Merchant (actually a super lawyer despite the cheesy SuperLawyer designation) about developing the trial lawyer's art. Feroz was lamenting the many lawyers practicing criminal law who are just there for the money, and care more about their clothes than about either their clients or their art. (Sounds familiar, eh, Shawn?) Feroz, who was down at the federal courthouse to catch some of Norm's cocaine trial that I was shanghaied into (we finally got a jury picked, by the way), mentioned a way of becoming a better federal criminal defense lawyer that had never occurred to me.

The federal courts in our district use electronic recording; there is an audio recording made of each court proceeding. The ERO (Electronic Recording Office) will sell audio DVDs (I guess they hold about a day's proceedings) of court proceedings for $50 a pop. Feroz picks a lawyer who he knows to do great work, finds a case that that lawyer tried (he searches the computers in the clerk's office; if you have PACER access you can do the same through your district's ECF system with your PACER login), buys the recording of the trial, and copies the audio to his iPod to listen to in his free time.

It sounds like a great -- and inexpensive -- way to learn from some of the masters.

Feroz also pointed out that the Office of Defender Services puts its written materials up on the web, where they are available for free. Outside of actually trying cases, it's the best training you can get.

Great stuff. Thanks, Feroz.

Busting the Panel

What do you get when you combine my friend (and fellow dinosaur) Norm, a federal drug case, 20 minutes of lawyer-conducted voir dire, and a 35-person jury panel?

Nothing even remotely resembling a jury. Come back and try again later. With 11 people disqualified for cause, that panel is not big enough. We'll bring in 40 potential jurors tomorrow.

And oh, by the way, the court will do all of the voir dire itself.

Universally, judge-conducted voir dire stinks. A judge doesn't have enough invested in either side of the case to zealously seek the truth from the panel; to the judge, for whom the record is everything, a jury that says all the right words is good enough. At one point today during the judge's voir dire, after her honor (an otherwise excellent federal judge) had elicited from the panel the promise to set aside all of their manifold and manifest prejudices (which obviously didn't merit much in-depth discussion) and "be fair" to our client, Norm passed me this note.

This will, if you're keeping score at home, be the third time in eight days that we've gone to court to pick a jury on this case. As Percy Foreman is alleged to have said, "a continuance is as good as an acquittal . . . for as long as it lasts."

Now I'm Supposed To Be the Reasonable One?

Last Monday I went to federal court to help my friend (and fellow dinosaur) Norm pick a jury on a cocaine case. Before the jury panel was brought in, the judge handled some motions in limine. She became frustrated, first with the prosecutor and then with my friend because she thought that they should both have done more to prepare for trial. (Norm, like me, had spent a chunk of the last month in trial.)

I did my best to keep my head down and speak only when spoken to, but got dragged into a discussion about whether Norm should have done more to get a copy of the Government's exhibit binder before trial. (Norm hadn't been told that it was ready, and so he hadn't sent someone to pick it up; her honor thought that he should have called to ask if it was ready; she asked me, and I told her candidly that, in every federal criminal case I had ever tried, the government had notified me that their exhibit binder was ready, and had often sent it over to me.)

After the hearing on the motions, the jury panel was brought in. Norm asked for a continuance because of some things that were left undone, and the judge granted it (conditioned on Norm paying $1400 to reimburse the court for the jury panel!). She reset the case until next Monday and, as we were all (Norm, his associate, me, and two prosecutors) packing up to go she said, "Mr. Bennett, you're on this case now. I'm sorry if you're not getting paid for it, but you made an appearance, and I want you to assist Norm."

I tried a bank robbery case before this judge in 2001 (Norm's brother sat second with me on that one) and, as I recall it, she threatened at some point to order me to do some sort of penance for something I said during closing argument (if I recall correctly, she took umbrage at my arguing, from the lack of any evidence that my client had ever even been in the town where the bank robbery occurred, that my client had never been in that town). In the end she didn't, but I clearly recall that she thought I had gone overboard in my representation of my client. Since then I have appeared before her several times on cases that never went to trial, and I'm not certain that she remembers the zealousness of my trial advocacy.

But on Monday, when she ordered me onto the case and then softened the blow by saying, "I respect your opinion, and appreciate your input" or summat, what could I do but say "thank you, your honor," and look at my calendar to figure out how to mollify my clients who will, for the third week in a month, not be getting my full attention because I'm in trial on something else?

So now I'm back into trial mode. Except that this time I'm supposed to be the adult supervision, the voice of reason, the chaperone.

The judge may be in for a surprise.

How to Become a Federal Criminal Defense Lawyer

If you're a young lawyer interested in defending people in federal court, listen up. A few days ago an anonymous commenter to this post asked:

How would you recommend that a new lawyer get started defending people in federal court? How did you get started?

I started in federal court long enough ago that I hardly remember how I did it; most likely I went about it all wrong (my first jury trial ever was a bank-robbery trial in federal court). But having made plenty of mistakes qualifies me uniquely to advise others; this question has acquired some urgency in my mind recently as I have noticed a glut of young lawyers seeking advice on practicing in federal court.

One of these young lawyers told me a couple of days ago that, if all else failed, he would go to trial and ask the jury to determine if the arrest was legal. No, I told him, you won't: while we have that option in Texas state court, federal law does not provide for juries to decide suppression issues. Today he reported that, as far as he was concerned, it was still an open question -- two other defense lawyers, one of whom used to be a federal prosecutor, had told him that juries could decide such issues in federal court.

So the first and most important thing for the aspiring federal criminal lawyer to know is this: you don't know squat. Accept that with calm humility and good cheer. You may have edited the law review . . . and captained the mock trial team . . . at Yale. You are not prepared in the slightest to defend people accused of crimes anywhere, let alone federal court. Even if you spent years as a state prosecutor, even if you spent years as a defense lawyer in state court, even if you served as a federal prosecutor, you are now officially a federal criminal defense newbie, and a newbie you will remain until you have tried several federal criminal cases to juries as a defense lawyer. Pleading people guilty does not count. Only after you've tried some cases as defense counsel in federal court will you know squat.

How many? It depends on you. If you're a fast study, two or three should do; if you were paying attention when you were a federal prosecutor, one might be enough; if you're lazy or slow or set in your ways, you probably won't be trying cases anyway. The bar for admission to the U.S. District Courts is frighteningly low, and lots of lawyers in the courthouse are eternal newbies. Don't set your sights on being as good as the worst of them, or as good as the mean. Work to be as good as the best, or go back to state court, with its bus-station atmosphere, its semi-pro cops, and its forgiving rules.

Don't be so afraid to lose that you never try cases. If you set your client's interests (freedom) above your own (dignity), you're not going to win every case you try. Trying cases and losing them is good for your ego, and will raise you above newbie level, but no matter how much of a badass you were in law school, or the DA's office, or state court, or the U.S. Attorney's office, you are nothing more than a speedbump over here in U.S. District Court until you've proven that you can beat the United States Government in a jury trial.

Don't pretend to know squat. Don't pretend in order to impress your colleagues -- we know that you're a newbie, and we're not impressed. Don't do it to intimidate the AUSA -- he knows that you're a newbie, and he's not intimidated. Nor to persuade the judge -- she knows that you're a newbie, and she's not persuaded. Most of all, don't pretend in order to sign up the clients. They don't know that you're a newbie, but it's dishonest, unethical, illegal, and sleazy not to tell them.

"But they won't hire me if they know how little federal experience I have." First, that'd make it fraud, wouldn't it? Second, a few special clients will hire you despite your lack of experience. They won't pay you what they'd pay a more experienced federal lawyer -- and rightly so -- but people with a limited budget will be willing to take a flyer on a green criminal defense lawyer who will work hard to do a good job. (You're not just coming over to federal court to make money, are you? Well, are you?) Instead of trying to convince the potential clients that you know your stuff, show them that you'll work harder than anyone else.

Work harder than anyone else. Study hard. Observe. If you don't work hard, you're going to do an incompetent job. Apply for the CJA panel, and take advantage of the Federal Defender's training programs for panel lawyers. Go to every federal-specific CLE program you can afford. RTFM. Get Georgetown Law Review's Annual Review of Criminal Procedure. Browse it frequently. Get a copy of West's Federal Criminal Code and Rules and carry it with you to court. You may be the only lawyer in the courtroom with the book. Get the Sentencing Guidelines Manual, read it and understand it. Get a copy of Defending a Federal Criminal Case, by the Federal Defenders of San Diego, and refer to it often (word is that there is a new version in the works).

The easy way out of a case is to get the client to plead guilty. The sad truth is that most clients need to plead guilty.

There is a happier truth, though. Write it on your bathroom mirror. Put it on a sticky on your car windshield. Print it on a card, and put it in your wallet. Make it the screensaver on your computer:

Many federal defendants need jury trials.

If you try a case for a guy who should have pled guilty, his punishment is likely going to be somewhat higher than if he'd pled (an extreme example of the disparity between plea and trial: today I pled a guy guilty to an agreed 60 months on a kilo and a gun; if he'd gone to trial and lost, his sentence would have been at least double that). Pleading a guy who should have gone to trial is much more costly: he's going to go to prison when he should have walked. If you don't consider a federal jury trial an option, if you plead every case, you are screwing some percentage of your clients (5%? 10%? 20%). (If you didn't consider a plea an option, you'd be screwing more of your clients less severely. But who doesn't consider a plea an option?)

Whether a defendant should plead or not does not depend at all on whether he is "guilty" or not. The only thing that matters is whether the government can prove its case beyond a reasonable doubt in the face of all the resistance you can offer.

Not knowing squat, you don't have any way of knowing if the government will be able to prove its case beyond a reasonable doubt in the face of your greatest resistance. So how do you learn which cases to try? Sit second with someone else who is not a newbie. Do so at every opportunity. I have second-chair counsel at every trial, and I still sit second whenever I get a chance. Do it pro bono if necessary. Offer to sit second on CJA cases -- sometimes the court will pay for a second-chair lawyer who is not otherwise qualified to be on the CJA panel. When those special clients hire you, get someone else who is not a newbie to sit second with you. Split your fee with her if necessary.

If you can get on the CJA panel, treat appointed cases no differently than you would hired cases. Many of my jury trials, and some of my greatest wins, were on appointed cases. (I would bet that indigent defendants have jury trials more often than paying clients.)

Find mentors. I've said before that the criminal bar is very supportive. Sure, we federal criminal defense trial lawyers don't much care for the idea of a glut of newbies in the U.S. Courthouse, but all of us were newbies ourselves once, most of us would prefer that the newbies not be entirely incompetent (you're probably going to wind up representing a codefendant, and we'd rather not have you screwing up our defense), and many of us are willing to help you become competent. If you can't find anyone local, email or call me. (Someday I may be trying a case in your district, and you'll be representing a codefendant; I sure would appreciate it if I don't have to babysit you to keep you from inadvertently torpedoing both of our clients.)

If you haven't already joined your local criminal defense bar (why not?), do so now. Find the helpful experienced federal defenders in your area (speaking of which: make friends with the lawyers in your local federal PD's office; many of them are better lawyers than you will ever be, and they too want to help you become competent) and don't be shy about asking them for advice.

Even when you think you've got a case figured out, ask a mentor for his take on it. Before your client pleads guilty, run the facts by someone more experienced than you and see if she concurs with your judgment. Until you have tried several federal criminal cases to verdicts, getting an experienced lawyer to check your work should be part of the due diligence that you perform on every case.

Finally (for now): You're going to make a fool of yourself in court. Making a fool of yourself, if you're aware of it, is inevitably a learning experience. Get over your bad self.

A Reader Writes

A friend in Tennessee writes:

Your November 29, 2007 post seems to me to be potentially irresponsible and potentially unethical. How many times have you gotten your clients into more trouble? I bet you would not admit it if you had.

Friend, aside from being an unfriendly thing to say, that last bit is a bet you would certainly lose. You must be mistaking this blog for some sort of advertising. No, I pretty much let it all hang out here -- wins, losses, and outright thrashings. I write this blog for the other criminal defense lawyers, not for clients, and if I can impart a lesson to those who are treading the same paths that I tread, I will. If I had clients who had received bad results because I tried to find ways to beat their cases, I would say ". . . but this approach doesn't always work so well."

If I were convincing people to try to fight when there was some substantial risk that they would get whacked harder for trying to fight, that might be irresponsible. If I were misleading them into hiring me, that would certainly be unethical.

But this approach works very well, and the answer to your question is "never". I have never gotten any of my clients into more trouble by doing due diligence instead of rushing them down to plead. Never.

Now, bear in mind that the people who come in looking for the quick copout are almost always accused of misdemeanors (people don't come into the office looking to plead guilty to a felony "just to get it over with"), and always out on bond. In the jurisdictions in which I practice, it is almost never true that the first offer is the best offer, and it is almost never true that an accused who is on bond is best served by pleading guilty on the first court appearance.

The worst-case scenario for a client whom I've convinced to allow me to actually do my job (instead of just accepting his opinion that an immediate guilty plea is the best option) is this: I review the facts and the law, I discover some reason that the client must plead quickly (for example, the State has missed the true felony charges that could have been filed, and we need to jeopardy-bar them as soon as possible), and I help the client plead guilty immediately. That scenario is very rare, and that's the absolute worst-case: no worse than if he hadn't hired me.

The best-case scenario is that I find a way to beat the case (truly about half the time under these particular circumstances): to get it dismissed, to win at trial, or to otherwise get some outcome that can be expunged from the government's records.

In the balance of cases, the fact that I perform due diligence, look for a way to win, and litigate what can be litigated results in final plea offers at least as good as -- and usually significantly better than -- the clients'd've gotten by pleading guilty straightaway.

Ethics are funny. We have rules laid down by the organizations that regulate lawyers; we lawyers talk about "legal ethics" but these are not really ethics but law. Then all of us have our own principles of right and wrong that govern our behavior regardless of the sanction that attaches. These principles really are ethics, and they're intensely personal.

A lawyer who helps his clients plead guilty without carefully exploring the possible defenses is in dereliction of his duties; a lawyer who allows her clients, untutored both substantive and procedural law, to make the decision to discard their constitutional rights without input from the lawyer abdicates his responsibilities. These are the "lawyers" whom the clients pay a pittance to when they decide they don't want to pay someone (me or someone else, it doesn't really matter to me) real money to fight for them. In the case of those lawyers, I'll call your "irresponsible and unethical" and raise you a "shameful." Boooooo.

Another Beauty Contest

The American Bar Association (that's not the real link -- the ABA is merely worthless rather than sinister -- but it's entertaining nonetheless) is hosting another blawgers' beauty contest. Kevin O'Keefe writes about it here. The heart of Kevin's excellent post (hat tip to Anne Reed):

Law blogs represent disintermediation of publishers and gatekeepers. No more are those in supposed power and control going to screen and serve up what they think is important. A lawyer in a town with a water tower, an old grain elevator and 3 four way stops is on equal footing with a lawyer who clerked for a Supreme Court Judge. The democratization of publishing and dialogue we get through law blogs is at the very heart of what we stand for in America.

Kevin sees the ABA's poll, and its publicization of the poll, as "shallow, at best".

Indeed. If other things were judged by such polls, Toyota would be recognized as the best carmaker, ground beef as the best cut, Gallo as the best wine, and Thomas Kinkade as the best painter. China would be accepted as the best country, Christianity as the best religion, Windows as the best operating system, and ignorance as the best mental state (coincidentally, George W. Bush would be president).

Just Pleading Guilty

Shawn Matlock, who's growing up quite nicely, writes about trust (a topic dear to my heart) and his distaste for potential clients who "just want to do a quick plea."

I get such potential clients in the office now and then. When they tell me they want to "just plead guilty and take probation", I tell them something like this:

If you want someone to just plead you guilty, go hire someone else. You'll pay a lot less than hiring me. Lots of people sitting in that seat tell me they just want to plead guilty. "Just pleading guilty" is not what I do; nobody ever won a guilty plea. On every case, for every client, I look for ways to beat the case. I prepare for trial. I fight. Sometimes we win, sometimes we don't, sometimes we plead guilty after all, sometimes the fight doesn't last long, but even when we plead after trying to win the case, we get better deals than we would by "just pleading guilty". You may think they have you dead to rights, but you don't know the law and you don't know what evidence they have against you. Nobody sitting in that seat ever does. Sometimes I convince the people sitting there that they don't really just want to plead guilty, that they really want someone to fight for them and try to find a way to win. And you know what? About half the time, when they decide they don't want to "just plead guilty", but want to fight after all, we end up winning.

Aimless Rambling

From Therapeutic Metaphors & Clinical Hypnosis, by David Puchol Esparza:

[Milton] Erickson told many stories and told them to a variety of clients. As he said of his treatment for a young, anorexic girl, "My treatment for Barbie was to tell her short stories, metaphors, suspenseful stories, intriguing stories, boring stories. I told her all kinds of stories, little stories" (Zeig, 1980). He illustrated the experiences he wanted his clients to retrieve as they fixated their attention upon the dramatic aspects of an unfolding story line about someone else. Clients were free to create their own meaning from the stimulus offered and even have learnings too painful for the conscious mind to tolerate. After all, it was "only a story."

As such, metaphor can be considered an altered framework through which a client is free to entertain novel experiences.

To an outsider not extensively trained in hypnotherapy, it would undoubtedly have appeared that Erickson's stories were "aimless rambling." Yet somehow Erickson's clients got results. (Despite him?)

Legal History Query

I can't figure out a way to phrase this search on Westlaw, so I thought I'd turn to the the hive mind of the blawgosphere:

Has Texas Court of Criminal Appeals Judge Sharon Keller ever voted in favor of a defendant in a criminal appeal?

I'll send a valuable prize to the first person to offer either an answer, or an easy way to find a trustworthy (calling chambers is right out) answer. Lend me your suggestions in the comments.

Winning Despite Yourself

In this post about Gerry Spence's defense of Geoffrey Fieger (well, it's not really about that; it's about the egos of Gerry Spence [who boasts he's never lost a criminal case] and Geoffrey Fieger . . . or maybe all criticism is autobiographical and it's not really about that either . . .), my New York brother Scott Greenfield wrote:

Bear in mind that Gerry Spence was the lawyer who represented Imelda Marcos, the steward of all footwear, in the Southern District of New York. After the jury returned a verdict of not guilty, one was asked whether it was because of Gery Spence. The response was it was despite Gerry Spence. Ouch.

Call me crazy, but I don't feel Scott's pain. I've had prosecutors opine that juries acquitted my clients despite me; I would love to hear that from all of my juries.

Obviously, I would much rather have a client acquitted despite me than have a client convicted despite me. In the list of all possible things a jury could say after reaching a verdict in a criminal case, one of the least painful would be "we acquitted him despite his lawyer." The only contender for the title of "least painful" is "we acquitted him because of his lawyer", and I'm not sure I wouldn't prefer to hear "despite" instead of "because of" as justification for an acquittal. Here's why: jurors lie about their verdicts. If you want to be lied to, talk to a jury about its verdict.

Even if they were inclined to be entirely truthful after a verdict, jurors would be a lousy source of information on the reason for their verdict. Because they are the object of the lawyering, jurors are unable to accurately assess the effect of good lawyering on them. Jurors make their decisions mostly based on their guts; then they try to rationalize and justify what they've decided. Nobody wants to be tricked into making a decision by some slick lawyer; generally jurors would rather believe that they did what they did despite the lawyering, because it was just the right thing to do. Jurors would like to believe that the lawyers just got in the way of their discovery of the truth (clients who owe money like to believe the same thing).

Generally, the better the lawyering, the less obvious. Perry Mason moments are rare; great lawyering is more often than not transparent, with the lawyer stepping backstage and letting the story tell itself. Ideally, the trial lawyer will give the jury what it wants: the illusion that he is not influencing them.

Beyond transparency, there is lawyering that is so fine that it is not only transparent, but transcendent -- lawyering so subtle that it appears to the uninitiated (including the jury) that the lawyer is screwing things up. I don't claim to know what Gerry Spence was doing in the Marcos case, but I know that whatever he was doing worked. And in the end, that's what matters.

Jury Argument in Criminal Cases

Today my copy of Ray Moses's "Jury Argument in Criminal Cases: A Trial Lawyer's Guide (Second Edition)" arrived in the mail. (Bookmark the book's website.) This is one of my favorite resources, but I had never gotten around to ordering a copy before now (Professor Moses doesn't make it particularly easy to order) -- I'd used it at one law library or another. This is a wonderful book.

It's also a large book -- almost 1500 pages of jury argument: law, advice, and examples. The examples are the heart of the book -- a thousand pages (I guess) of snippets (a sentence or a paragraph or two) of jury argument in criminal cases. Many of the snippets are attributed to one criminal defense lawyer or another, but most are unattributed. They are arranged by category. For example, there are 146 arguments (for both sides of the bar) on reasonable doubt. There are 69 arguments on self-defense (we Texans love our self-defense), including five arguments on the duty to retreat. If you try criminal cases to juries, you want this book.

Here, for your perusal, are the preface and table of contents. If you can't find something in Professor Moses's book that is worth the $200 pricetag, you're not paying attention.

Two Courthouses

Harris County has separate courthouses, both built in the last seven years, for its civil and criminal courts. Courthouse number one is a dingy-looking beige building, solid and generally functional; courthouse number two is ornate, with a dome on top.

In courthouse number one, a judge enters her courtroom from a door to the side and climbs up to her bench; in courthouse two, a judges enters her courtroom through a limestone archway behind her benches (if I were a judge in courthouse number two, I would definitely invest in a fog machine to make my entrances even more oracular; maybe a strobe light too).

Courthouse number one has limited technology built in, and that technology was outdated when the courthouse first opened; courthouse number two has all the technological bells and whistles -- WiFi, projectors with drop-down screens, and so forth.

Courthouse number one has too few elevators for the crush of humanity that visits its halls every morning; courthouse two's elevators rarely carry more than one person apiece.

By now, if you're a courthouse aficionado, you've figured out which is the criminal courthouse and which the civil. So tell me: why has the grand entrance hall of courthouse number two smelled like cat urine since the day it opened?

The Tyro's Return

This guy is back. Now he's been retained to represent another of my former clients.

It's beyond me why people hire this guy. He has handled five federal criminal cases to completion, all at least six years ago. Between 2001 and this year he didn't have his name attached to a single federal criminal case in the Southern District of Texas. From a brief telephone conversation with him I was able easily to learn that he knew next-to-nothing about federal criminal defense. Now four people have hired him to represent them in serious federal criminal cases in the last eight months.

His apparent target market -- people who want to rush as quickly as possible down to the U.S. Attorney's office to sell their friends and themselves up the river for the possibility of a shorter sentence -- is very different from mine. He's not likely to take any business away from me. Should I just shrug my shoulders, say "these federal criminal defendants are big boys, and they're grown-up enough to make their own mistakes" and go cheerfully on my way?

On the other hand, this guy exemplifies the problem of declining standards of representation in federal criminal cases. Do I have some responsibility to do something more than I've already done about that?

Why Let Juries Sentence?

When Texas legislator Scott Hochberg sought to ban probation for murder, he was able to get a bill passed preventing juries from recommending probation in murder cases. Judges can still, if prosecutors play along by agreeing not to have jury trials, put people on probation for murder.

If things had to change (there really was no good reason; Rep. Hochberg's yearning to change the law was reportedly based on one probation decision by a jury with which the representative didn't agree), this is the opposite of how they should have changed. The Texas Legislature has, once again, taken power out of the hands of the people (juries) and put it in the hands of bureaucrats (prosecutors and judges).

Justice is not something that can be defined by fiat. Justice is a personal moral judgment, and -- except for parents trying to imbue their children with morals -- no person is competent to tell another what justice is.

If you ask a judge to tell you what justice is, you're not assured of getting justice. There's some chance that you'll get what that judge considers justice, and if you're lucky it'll be something you can live with, but there's no reason to think that a judge has any more of a clue about justice than the man on the street. Judges (especially elected judges, and most especially those elected in partisan elections) aren't generally selected based on their life experiences and wisdom. In fact, our elected judges are often young and callow, with no life experience beyond the halls of the District Attorney's office.

Justice is not something that can be legislated. Legislatures are filled with politicians: crooks, addicts, and perverts who have been trying all their lives to prove that they are not crooks, addicts, and perverts by passing draconian laws against other crooks, addicts and perverts (I don't have anything against crooks, addicts, and perverts; hypocrisy is by far the greater sin). Politicians are the last people we should be expecting to tell us what justice is.

Justice is certainly not susceptible to the paint-by-numbers approach taken by states using sentencing guidelines. No two crimes are identical, no two victims are identical, and no two offenders are identical. Sentencing guidelines may eliminate unwarranted disparities, but they create something far more insidious: unwarranted similarities. Sentencing guidelines promote consistency, but only of the foolish kind.

So, if judges, legislatures, and sentencing commissions are not competent to declare, "this is just!", how do we achieve justice in the criminal courthouse? We can't. Because justice is a personal moral judgment, nobody will ever make a justice-decision that everybody else agrees with. We talk about justice in the courthouse, but the very best we can hope for there is that the results thee reflect the community's sense of justice. Since nobody will ever agree, "this is justice," the best we can do is approximate, in each case, what the community might consider justice. And that's why we let juries decide sentences.

How to Start a Law Practice

I proposed to my alma mater that someone should teach its students how to start a law practice, and volunteered to teach the course myself. I got this response:

Teaching law office management courses at the law school causes problems. The University doesn’t think they are “law.

Of course! Any fool can see that teaching law students how to actually function as lawyers is clearly outside the ambit of a law school's duties. (With apologies to Victorian Maiden.)

The local chapter of Phi Alpha Delta was interested, though (lesson 1: So Many Ways to Skin a Cat). So I'll be conducting a three-hour introductory course on starting a law practice. It'll be January 23rd, February 6th, and February 20th of 2008. One of the three one-hour sessions -- probably the second one -- will be in the evening. The others will be at noon. All will be at a location to be announced later (probably somewhere at UHLC).

To my readers: What would you tell law students who might be interested in starting their own law practices? What do you wish you had been told before you started yours?

Where are the Texas Experts?

This comment on Scott Greenfield's blog by one of the authors of the recent Dallas Morning News article on probation for murder in Texas got me thinking a bit. "A closer read of our series," he wrote, "shows that prosecutors still can offer probation through plea bargains with defendants." Here is the article about which we're talking. There may have been other articles, but I haven't seen them and this one didn't suggest that "a closer read" would be worthwhile. In the article about the Texas criminal justice system, the News cited eight "experts":

• University of Arizona law professor Marc Miller;
• University of Houston law professor (and ethics expert) Bob Schuwerk;
• Utah prison system executive director Tom Patterson;
• Bennett Gershman, a law professor at Pace University in New York;
• Buddy Meyer of the district attorney's office in Austin, Texas;
• George Dix, a University of Texas criminal law professor;
• Doug Beloof, director of the National Crime Victim Law Institute in Oregon;
• John Kramer, a Penn State University sociology professor specializing in criminal justice.

So which of those people is qualified as an expert in the Texas criminal justice system? If you said "Meyer and Dix" you would be correct. Schuwerk, while he teaches at my alma mater, is a legal ethics specialist; as far as I can tell he's never been involved with the criminal justice system.

The rest of the DMN's "experts" are from out of state; like the authors of the article, they seem universally atwitter that Texas allows probation for murder. Some of them -- again, apparently like the authors of the article -- think that sentencing guidelines would be a good idea for Texas. (I'll talk about that another day.)

So what do the Texas criminal justice experts have to say about the DMN's proposition that the availability of probation for murder is a problem? Dix said he wasn't bothered by the number of murderers on probation statewide; Meyer said (not of the availability of probation, but of prosecutors giving probation without a jury's recommendation), "I don't know that that's the appropriate way to go about ensuring public safety . . . . You've got your responsibility to the community."

Neither of the Texas criminal justice professionals that the DMN managed to find (it's not really that difficult, DMN: next time, call the Texas Criminal Defense Lawyers' Organization and the Texas District and County Attorneys' Association, and ask the directors of those associations who the best experts would be) has his panties in a twist about the fact that juries could recommend probation for convicted murderers.

But "I'm not bothered" doesn't sell newspapers. So the DMN tracks down a bunch of out-of-state "experts" who are all worked up about probation for murder and think they can socially-engineer a better system by taking even more power out of the hands of Texas juries and putting it in the hands of bureaucrats.

That might fly in Dallas, but not in Texas.

Texas Murder Sentences: Probation to Death

There has been some ado in the blawgosphere lately about the fact that Texas juries could convict people of murder, and then give them probation. (It's not the law anymore -- for murders after September 1, 2007, probation will not be an option for the jury.) Furriners (anyone unfamiliar with Texas culture, including reporters from the Dallas Morning News) express surprise that, in a state well-known for executing killers, probation was an option available to juries.

The truth is that Texas's propensity for killing its citizens, and its leniency with some murderers, are both expressions of the a single principle. Texas doesn't execute murderers to show its regard for the value of life; it does so because some people (as the parable says) need killing. Sometimes the guy who -- in the eyes of Texas -- needs killing is the accused, and sometimes he's the complainant.

"He needed killin', and my guy was the guy to do it" has long been a viable defense in some Texas murder cases. These are cases in which the State often couldn't secure convictions despite being technically murder; it'll be even less able to secure convictions in the future from juries that know that, if they convict, prison will be the only option.

In the "murder" case that I just finished trying, the complainant didn't need killing. His brothers were bad dudes, sure, and there were pictures of him flashing gang signs and guns (the jury heard about them, but didn't see them), but basically he was a 17-year-old high school kid who loved to play soccer. Without a probation option, however, I am convinced that the jury would not have been able to agree on a guilty verdict at all.

It sometimes happens that, in the culpability phase of a trial, the jurors who favor conviction will agree to put an accused on probation if the pro-acquittal jurors will agree to convict the accused. I didn't talk to our jury afterwards (want to be lied to? Talk to a jury about its verdict.), but the notes they sent out, along with the brevity of their punishment deliberations, suggest to me that their minds were made up on probation before the punishment case began.

What was wrong with the State's case? Calling what my client and his brother did "murder" was a stretch. The State's theory was that they were parties to the felony murder of the complainant. The crime -- felony murder -- was intentionally firing a gun at a car and (incidentally -- nobody had to intend it) causing someone's death. So not only did my client not need to intend to cause anyone's death, but nobody needed to intend to cause anyone's death.

Murder? I suppose the law says so. But not the sort of thing Texans (other than the naifs in the DA's office) are inclined to get particularly worked up over.

Lawyers Who Never Lose

Scott and Norm and Gideon and Stephen have been having a discussion, started by Norm, about lawyers "keeping score" -- keeping track of (and, incidentally, boasting about) their won/lost records.

Norm points out that a jury trial really isn't a sporting event, and the playing field isn't level.

I can't promise any client that a won-loss record will shed any light on the outcome of his or her case. Each case is different. Sometimes a mountain of facts can yield only a valley of despair. All a client can and should expect is dedication and hard work.

Scott adds:

If you want to know whether the lawyer is any good, there are two questions to ask yourself. Does he know what he's doing and will he fight for me to the end. Other than that, the score card means nothing.

Steven contributes:

The honest and fair approach is to explain that no two cases are anywhere near comparable and that our "won/loss" record is a meaningless attempt at self-promotion and self-glorification.

And Gideon pipes up:

For us public defenders, on the other hand, the score wouldn’t represent anything. Our “win-loss” record means as much as it does for a pitcher in baseball: almost nothing. We get what cases we get. We deal with them as best we can.

So my esteemed colleagues seem to agree that a win/loss record is meaningless.

I disagree.

Suppose that you have a choice of two lawyers. One of them claims never to have lost a criminal case; the other, like me, Scott, Steven, and Gideon, has had clients convicted by juries. All else being equal: which do you hire? If a win/loss record were meaningless, the correct answer would be "either." But I'm confident that Norm, Scott, Gideon, and Stephen would agree with me when I say: hire the latter lawyer -- the one who admits having lost jury trials.

There are four possible reasons a lawyer would claim never to have lost a criminal case. First, he might define "loss" differently than the rest of us. Second, he might be a deceiver. Third, he might not have tried many criminal cases at all. And fourth, he might have tried only the cases that were easy for him.

If the lawyer defines a "loss" differently than the rest of the world, he's failing to communicate. Since lawyers are communicators, you don't want to hire one who tends to give words private definitions (especially if he does so to support his self-image). If you have a choice between hiring a lawyer who speaks to you in his own special language in which losing on bad facts is not "losing", and hiring a lawyer who speaks to you in English, choose the latter.

Similarly, if you have the choice between hiring a lawyer who deceives you and hiring a lawyer who tells you the truth, choose the latter. (That really should go without saying.)

Babe Ruth struck out over 2,000 times. Generally, anyone who tries cases loses some. If you have a choice between hiring a lawyer who is so new to jury trials that he hasn't had an opportunity to feel the sting of defeat and hiring a lawyer who has tried enough cases to get his butt kicked a few (or many) times, choose the latter. The former isn't going to know what to do when things start turning nasty.

There is an exception to the general rule that anyone who tries cases loses some. A lawyer who is very selective might be able to try only cases that are easy. If you try the easy cases and not the difficult ones, you might preserve a perfect or near-perfect win/loss record. Now, the cases that are "easy" to this sort of lawyer may not be easy to everyone. He might be exceptionally gifted and hardworking and able handily to win cases that would be difficult to most lawyers. But, facts being what they are, there are cases that would be difficult for him as well, and he's doing something with those cases other than trying them.

Some of those difficult cases need to be tried. A dedicated, talented lawyer who tries tough cases loses some of them, but he also wins some. In fact, he loses some that by all rights he should have won, and wins some that he should have lost.

Imagine that there's a class of cases that a particular lawyer at his best would have a 50% chance of winning. If he tries two of those cases, he's going to lose one (so he'll no longer have a perfect record), but one of his clients who would not otherwise walk is going to go free. If a lawyer is so averse to losing that he doesn't try the tough cases, his win/loss record might look good, but he's not pushing his limits, and he's leaving something -- the freedom of some of his clients -- on the table.

I have a friend who advertises that she has "never lost a case where she's put her client on the witness stand." Now, she's a great trial lawyer, but I've always thought this an odd thing to say. I have to wonder: are there cases in which she didn't put her clients on the stand, where their testimony might have made the difference between a conviction and an acquittal? And if it came down to the choice between putting a client on the stand and maybe winning a trial, or preserving her perfect testifying-client win/loss record, how would she choose? It seems to me that if you never put a client on the stand and lose, you're not putting your clients on the stand enough.

If I were being defended, I would want to take the stand if my lawyer thought it would do more good than harm, even if I might be convicted despite my testimony. I certainly wouldn't want to think that she might advise me not to take the stand, even if it might help me, because her record might suffer if I took the stand and she "lost" despite our best efforts.

By the same token, if I were being defended I would want my lawyer to help me decide whether to plead or go to trial based entirely on whether the expected cost to me of losing at trial outweighed the expected benefit to me of winning. I would want someone willing to push the envelope, willing to try cases on the ragged edge of the plausible.

It is easy to envision how a lawyer might become a slave to his perfect record -- how the desire to maintain a perfect record might, to his clients' detriment, reduce the lawyer's tolerance of risk. Trial, though, isn't about the sure thing; it is about taking risks. Give me a lawyer who sometimes loses over one who always wins. Any day.

Game Over, Dude

Over at Simple Justice Scott addresses Other Steve's question of whether he should be a criminal defense lawyer. Scott's a steely-eyed realist; he doesn't share the popular delusion that our criminal justice system is a great system; no, the system sucks. And criminal defense lawyers aren't likely to strike it rich. But still:

We write about fighting the good fight. We sometimes spout the platitudes that bring warmth and comfort to the quiet, huddled masses. We try to give hope. But we know that for all our efforts and persistence, most of the poor unfortunates who fall into the grasp of the law will end up miserable for one reason or another.

So . . . should you become a criminal defense lawyer[?] Absolutely. Not because you're going to get rich. Not because you will become part of a system that imparts justice and fairness to our society. These are pipe dreams. Myths.

Do it because if you don't, then the game is over. If young men and women who still believe in doing the right thing for the right reason decide that there is no place for them in the law, then we have lost the war and succumbed to the lowest common denominator in our society.

Judicial Elections

I am the campaign treasurer for Shawna Reagin, who is running as a Democrat for the 176th District Court of Harris County, Texas. Today I learned that the incumbent judge (who really has to go) now has a Republican opponent in the primary: Michelle Satarelli (Oncken). Michelle is a Harris County ADA who is married to a defense lawyer; she had the spine, when she was the chief prosecutor in the 176th, to stand up publicly to the judge's illegal policies. Michelle will be a more difficult opponent to beat in the general election than the incumbent, but that's just fine with me. Anything would be better than the present state of affairs.

A couple of Good Moments, and One Less Good

First, only the criminal defense lawyers will truly appreciate this setup (it actually happened today in trial):

Prosecutor (to a defense punishment witness, before the jury): D would benefit from college classes, wouldn't he?
Witness: Yes, I suppose he would.
Prosecutor: And did you know that inmates can take college classes in prison?
Witness: Well, I guess they can, but it's not the same as taking them on the outside.
Prosecutor: Pass the witness.

Second, the complainant's mama got on the witness stand today in the State's punishment case. Unprompted by the State (of course) she testified that she had seen our clients' family suffering. She thanked the jury for finding our clients guilty, she said, but she didn't want any more suffering. The prosecutor steered her away from that topic toward other things that might enrage the jury.

When my turn came to cross-examine here, I very gently steered her back toward the topic. Then I asked her, "are you asking the jury to put these two young men on probation?"

"Yes." was her answer.

The government also put the investigating detective, Sergeant Brian Harris, back on the stand for the punishment phase. Unlike last Wednesday, I neglected the Motorcycle Rule and he took the opportunity to argue the State's case for them. (Brian: it won't happen again, I promise.) The judge wouldn't let me correct his misbehavior myself, wanting me instead to object to the nonresponsiveness of his answers. I ask you: where's the sport in that?

Bad Sports.

In the end, after a hard-fought battle, the jury gave Tyrone's and my clients 10 years and recommended probation. So they'll be on probation. So, after yesterday's highs and lows, we put this one solidly in the "win" column.

I always shake my adversaries' hands and tell them "nice work" before the jury returns with its verdict. Then I'm gracious in victory or defeat.

Prosecutors, however? Not such good sports.

Jury No Longer Out.

Two guilty verdicts. An acquittal would have been a victory; a mistrial would have been a victory; probation would be a victory too. These two young men don't need to go to prison. It's tragic that the complainant lost his life. It sucks, it's unjust, it's unfair, and nothing this jury does can possibly make it any less tragic, or make it suck any less. They can, however, make it more tragic by taking two more young men away from their families.

No time to lose heart now: tomorrow we put on a punishment case and

. . . never give in, never give in, never, never, never, never-in nothing, great or small, large or petty - never give in except to convictions of honour and good sense.

W. Churchill