More on Creativity

When a potential client comes in, charged with his first misdemeanor, and says, "I did what they've accused me of. They've got me. I don't have any defense. I just want to plead guilty and take probation," I will generally tell him something like this:

If that's what you want, you should probably hire someone else. I come in to every case looking for a way to win it. Paying me just to get you probation would be a waste of your money and my talent. I won't let you do it. Sometimes people sitting in that chair change and saying what you're saying change their minds and decide to hire me to try to find a way to beat their case or get them a better resolution than a probation that will stay on their record forever. When that happens -- when they go ahead and hire me -- about half the time I find a way to beat their case. Entirely.

This is true because I apply my creativity to every case. You would be amazed at the many ways that the State's case can fall apart when a defender investigates it and researches the law and uses his imagination. (For example, even with all its lawyers and all their computers the Harris County District Attorney's Office manages to screw up virtually every charging instrument for criminal trespass.) Even when the District Attorney's office gets the charge right, often the cops leave holes big enough to drive a Mack truck full of reasonable doubt through. (In Houston, the constables are particularly liable to mess up an investigation.) Even if the DA and the cops get everything right, the State often has to depend on civilian witnesses who aren't getting a government paycheck and so often aren't highly motivated to help the State put someone in jail. DA's errors, the cops' omissions, and the witnesses' reluctance are the sort of things that can make cases go away without a trial. But the lawyer who isn't looking for every possible angle is not going to discover these gems. To find the problems that might make make the difference between a guilty plea and a win, a lawyer has to apply lots of time and imagination. That generally means the client generally has to apply lots of money.

Technorati Tags: criminal defense, philosophy, creativity

The War on Drugs

How would you measure the success of the "War on Drugs?" A DEA agent I know who has been fighting this "war" for more than 20 years has an answer: compare the quantity and price of drugs on the street now with the quantity and price of drugs on the street now. By this measure, he says, we're failing: there's more cocaine available no, at lower prices, than when he started. He and I agree that this is a good reason to reconsider what we're doing: I think we should legalize drugs; he thinks we should start executing drug dealers.

Technorati Tags: DEA, drugs, federal, war on drugs

Where are the Women?

In my survey of Houston criminal defense lawyers' advertising, I've noticed that not many women's websites pop up. Now, I know that Houston has lots of great lawyers who are women, and I wonder why they don't turn up in Google and Yahoo searches. At any rate, here are three:

Rosa Eliades

Melissa Martin

Lisa Benge and Judy Shields

I know, that's four lawyers. But Lisa and Judy have their office in Conroe, so I count each of them as half a Houston lawyer.

Technorati Tags: criminal defense, lawyers, Houston

Trust

For years my advice to people looking for a criminal defense lawyer has been this: "find someone that you can trust, and then find a way to pay him or her." Since I started saying that publicly, lots of other criminal defense lawyers have put up websites suggesting that you should trust them for one reason or another. You can't decide to trust someone because he tells you to. In fact, experience often teaches us that the last person we should trust is the person who asks us to. You can't trust someone based on his resume, either -- trusting someone isn't an intellectual decision, it's an emotional decision. Trust comes from your gut. You can't decide which lawyer you are going to trust with your freedom without talking with as many of them as you can stand to -- preferably while looking them in the eye.

Technorati Tags: criminal defense, choosing a lawyer

Good Advice

A Houston Police Department homicide detective wrote the following in the report of the investigation of a shooting death:

I knew [the accused] had an attorney, but he never invoked his rights and as a thorough investigator I thought I would at least try to talk to [him] and I also knew the booking information needed to be filled out. I went in the room to interview him and asked him if he wanted to talk. He said that he wanted his attorney. He kept repeating himself. He then tried to get up out of his chair and was told several times to sit down that he still needed to give information for the booking blotter. Once again he disobeyed the order to sit down and he got out of the chair and told me to just take him to jail he was done. Again, he was told to sit down and he did not. I then applied my thumb to a pressure point on his chest and told him to sit which he complied. Once the information was gathered for the booking blotter he was handcuffed and transported to the jail. He did happen to see [an acquaintance] as he was walking out and in Spanish he told him 'do not say a word.'"

Note: I expected this response from [the accused] especially since he obtained Mark Bennett as an attorney.

That account is not entirely true, but it's interesting for several reasons. First, I don't advise anyone to do anything physical to resist questioning. If the accused tried to get out of his chair (as I said, the detective's account is not entirely true), he shouldn't have. He should have sat and politely continued to refuse to answer any questions until he had me present. Second, the detective seems to be under the impression that a defendant can be compelled, using a "pressure point," to "give information for the booking blotter." To the contrary, under Texas law the only obligation a person who has been lawfully arrested has is not to intentionally refuse to give his name, residence address, and date of birth. The refusal to give that information is a class "C" misdemeanor with a maximum penalty of a $500 fine. If a person under arrest gives his name, residence address, and date of birth, he has complied with the law. If he refuses, the cop can write him a ticket; that's all. If the accused asks to see his lawyer first, he isn't refusing to give the information, and can't even be ticketed. This might be frustrating to the cop (and this particular detective seems to have problems handling frustration), but that doesn't entitle him to use physical force to get the information he wants. Third, several other people talked with the police during the same investigation. Some of them told the truth and some lied. Everyone got charged with murder and aggravated assault. Whether they were truthful or not, talking to the police didn't help them. This is almost inevitably the case. If you were going to get charged with murder whether you talked or not, why would you talk to the cop, who has likely already made up his bind before arresting you? Finally, this case validates the million-dollar legal advice that I consistently give: don't talk to the police without the advice of a defense lawyer. I watched the videotape of the interrogation of another of the defendants. He thought he could outsmart the detective; he told some lies, which the detective was able to show were lies; he then told another story, and the detective twisted his words ("he took the gun from me" became "you handed him the gun") to make them more incriminating. When you sit down in that little room with a homicide detective, you're dealing with someone who has the training and the motivation to get you to say the things that will get you in the most trouble. You are not trained to resist interrogation. That detective may not be a rocket scientist, but you're not going to outsmart him in an interrogation.

Technorati Tags: defense, interrogation, law, remain silent

Federal Drug Conspiracies

The closest thing to a thought crime that we have in America today is a federal drug conspiracy. A conspiracy, generally, is an agreement to commit a crime. The crime itself (the "substantive offense") does not have to be committed for the conspiracy to be formed. For most offenses, people cannot be convicted of conspiracy unless one of the conspirators (the people agreeing to commit the crime) performs an "overt act" in furtherance of the conspiracy. For example, if Joe and Fred agree to rob a bank then neither has committed a crime. But if Joe then goes and buys two ski masks (or cases the bank, or performs any other act in aid of the conspiracy) then both of them have committed the crime of conspiracy. A conspiracy to commit a drug offense, however, is committed as soon as two people agree to commit the offense. No overt act is required. (U.S. v. Shabani). If Joe and Fred agree to go to Mexico to buy a pound of marijuana and smuggle it across the border, they have committed a crime. It doesn't matter that they had no way to actually buy the marijuana. As it happens, the maximum penalty for most federal conspiracies is five years. 18 USC 371. But the penalty for a conspiracy to commit a controlled substance offense is the same as the penalty for the substantive offense. So a person who is convicted of agreeing to commit a crime is punished as though the crime had actually committed. But wait, there's more! Let's say that Fred tells Joe that he's going to go to Mexico to buy a pound of marijuana and Joe agrees to let Fred store the marijuana in Joe's basement. Fred goes to Mexico, buys ten kilograms of cocaine, is arrested at the border and rats on Joe. They can both be convicted of conspiring to possess ten kilograms of cocaine. Even though Joe had no idea that Fred was going to be handling cocaine (which carries much stiffer penalties than marijuana), they conspired to possess a controlled substance, and the controlled substance happened to be cocaine. How about this: a drug conspiracy exists between Abel, Bert, and Charles. Dave joins the conspiracy, agreeing to provide storage for what he believes to be five pounds of marijuana. Everyone is arrested, and the government learns that while Dave was a part of the conspiracy the other conspirators moved hundreds of kilograms of cocaine and carried guns. Dave may be punished for everything done by his coconspirators that was "reasonably foreseeable" to him -- he can get slammed for hundreds of kilograms of cocaine (a ten-year statutory minimum) and is not eligible for the "safety valve" because someone possessed a gun in the conspiracy. So not only can a person be punished as though he had committed a crime for merely agreeing to commit the crime, but a person merely agreeing to commit one crime can be punished as though he had committed a much more serious crime. So goes the war on drugs.

Technorati Tags: controlled substances, defense, drug, drugs, federal, law, narcotics, conspiracy

Former Prosecutors

I still see criminal defense lawyers who used to be prosecutors advertising their time with the DA's office as though it provides a benefit to their clients. Their argument runs something like this:

First, it’s better to have someone defending you who knows what attack to expect. Second, former prosecutors generally have more trial experience. Third, former prosecutors will often have more credibility with current prosecutors.

Imagine that you must choose between two lawyers who have been practicing for the same amount of time years. One spent several years in the DA's office before he left (for whatever reason) and started defending people. The other has defended people since graduating from law school. First, the guy who has been defending people for his entire career will have dealt with "attacks" from a much larger number of prosecutors than the former prosecutor has. He'll have seen a much wider variety of prosecutorial styles, and -- more importantly -- will have developed counters to the various "attacks" he has seen. The prosecutor will have developed his own style and will have observed some other prosecutors' styles, but won't have needed to devise counters Second, while it is true that the former prosecutor generally will have more trial experience than the guy who has been defending people for his entire career, the guy who has always defended people will generally have more criminal defense trial experience than the former prosecutor because while the prosecutor was trying to put people in prison the defender was trying to keep them out. The idea that criminal defense trial experience and prosecution trial experience are somehow interchangeable is ludicrous. They require entirely different skill sets, states of mind, and philosophies. Saying that prosecuting people makes a lawyer better at defending people is like saying that pitching makes a player better at batting. (A quick Google search reveals that that simile might merit some further development: here is a Baseball Digest article on "Mike Hampton, a rare pitcher who can hit.") Third, lots of people don't have credibility with their coworkers; a prosecutor who had no credibility with his fellow prosecutors is not going to magically have any when he leaves the DA's office. The courthouse credibility that counts is earned by fighting. If a prosecutor knows that a defense lawyer will fight for his clients, the defense lawyer will have more credibility and will have a better chance of getting a favorable resolution for a client without a trial. A former prosecutor, at the moment he leaves the office, has no history of fighting for defendants. His fellow prosecutors might think that he's going to fight for his clients, but they don't know for sure whether his heart is in it. If a former prosecutor has credibility as a defender, it is because of his work as a defender. Fourth, putting people in prison requires one mindset ("government-is-good-I-must-enforce-rules") while defending people well requires another ("government-can-be-evil-I-must-protect-people"). A former prosecutor can certainly change his philosophy, but the more deeply ingrained his pro-government beliefs, the more difficult it will be to defend people sincerely (and therefore well). Philosophically, prosecutorial experience is a detriment to a defender. But this isn't to say that a former prosecutor is necessarily a worse defense lawyer than one who has been defending his whole career. Prosecutors can change and redeem themselves. I know lots of former prosecutors who are great defenders. Some pitchers can hit. The best advice for anyone looking to hire a lawyer is this: hire someone you trust. Trust is not something that can be measured or categorized. You can't trust someone based on his resume. You can't pick the right lawyer with a checklist. If you need a lawyer, sit down and talk with as many as you can stand to. Find out what they believe, and why they do what they do. Take someone along with you on these interviews if you can -- if you need a lawyer, you're probably feeling a lot of stress, and having the advice of a trusted friend or family member can help you make this most important decision. After talking to as many lawyers as you can, decide which one you trust with your freedom. Then find a way to hire him.

Technorati Tags: advertising, defense, lawyers, philosophy, prosecutors

Lawyer Advertising

Sometimes I browse other lawyers' websites to see what's out there. It looks like some of these folks are spending a lot of money on fancy advertising; their websites make my websites, Bennett & Bennett and Fight the Feds, look . . . homemade. Should I spend some money on having a professional design and maintain my websites? What do you think? One thing I've seen other lawyers do in their advertising that just seems wrong is to list the names of clients whose cases had successful outcomes. If I had to hire a criminal defense lawyer for something, I sure wouldn't want to think that information would ever be published on the web. Some of my colleagues fill their websites with content by republishing press releases from the Department of Justice and other government agencies. This also seems wrong to me. The DOJ, FBI, and so forth aren't publishing these press releases for the good of the people; they're doing it to glorify themselves. These press releases name people who have been accused or convicted of crimes. Why would a criminal defense lawyer want to help do the government's work of destroying people's reputations?

Technorati Tags: advertising, lawyers

A Childlike Mind

A local criminal court judge said to me, "I could never do what you do [that is, defend the accused]. I'm not creative enough." It is true that defending people well requires creativity. It also requires imagination, curiosity, flexibility, adaptability, and a willingness to take risks. In other words, it takes a childlike mind. A defense lawyer who thinks like a grownup, suppressing the ideas that are likely to be unpopular or unsuccessful, is often going to fail to find the best defense. (This may help explain why so many of us are lousy businessmen.) We are all born with imaginative, playful, flexible minds (Pablo Picasso said, "Every child is an artist. The problem is how to remain an artist once he grows up."). With the help of an educational system and a culture that tell us to "grow up," most of us get over it: the childlike mind is still there, but suppressed, more or less, under a layer of "maturity." Judging well does not require a childlike mind. When a judge exhibits flexibility or spontaneity in his her judging, he stands out from the pack. He'll get a lot of attention, much of it unfavorable. For example, Harris County misdemeanor Judge Larry Standley told a guy, as a condition of probation, to take yoga classes, and it made national news. Similarly, prosecuting people requires very little creativity. A prosecutor can be unimaginative and angry and still win most of his or her cases. When a prosecutor demonstrates imagination or playfulness, it gets attention. For example, when Harris County prosecutor Kelly Siegler reenacted a stabbing in a murder trial it made national news and almost turned her life into a TV Show, even though this is the sort of reenactment that great criminal defense lawyers do in courtrooms across the country every day. The judge who said she could never defend because she lacks the creativity is probably wrong; there is hope. We can uncover our childlike minds and rediscover our natural creativity. I know people who were bitter and dull as prosecutors who, when there were human beings depending on them, turned into wonderfully creative defense lawyers. (Fortunately, there is little motivation for a prosecutor to be creative when prosecuting.)

Technorati Tags: criminal defense, mindfulness, philosophy, prosecutors, judges

A Great Day in Criminal Law History.

Monica Goodling, Alberto Gonzales's White House Liaison, has chosen to plead the Fifth rather than testify before Congress. This is good news. When a highly-placed Department of Justice official, who knows exactly how the system works, avails herself of her constitutional right to remain silent, it sets a good example for the rest of us. Goodling's lawyer said that his client would not testify because "certain members of the Senate Judiciary Committee have already reached conclusions about the matter under investigation and the veracity of the testimony provided by the Justice Department to date." So he's suggesting that his client is taking the Fifth because her testimony is requested by people who have already made up their minds. That's not really a useful test for whether a person should take the Fifth, but I can see why the lawyer would want to publicly rationalize his client's intelligent but unpopular decision to remain silent. Goodling's lawyer also wrote:

The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real. One need look no further than the recent circumstances and proceedings involving Lewis Libby.

Lewis Libby may not be the best example of a person giving his most truthful and accurate testimony -- he had a jury trial, and a jury rejected his claims of memory lapses and convicted him of making false statements both to the FBI (part of the DOJ, Goodling's employer) and a grand jury. If Martha Stewart and Scooter Libby had had Ms. Goodling's example to follow, they might not be convicted felons today.

Technorati Tags: Fifth Amendment, government, lawyers, remain silent

Pistol-Packin' Prosecutors

The Brownsville Herald had an article last Thursday about a proposed bill to allow felony prosecutors to bring concealed weapons to court. The notion came about because of unfounded fears that a violent gang would try to break one of its members out from the courthouse during his sentencing. Like any policy decision made based on fear, this seems like a bad idea to me. I support law-abiding citizens' right to keep and bear arms without restriction. Prosecutors should be treated no differently than any other citizens. When was the last time a Texas prosecutor was killed on the job? Many prosecutors have no business carrying guns, much less doing so in court. Prosecutors don't have any better judgment than normal people, and some of them have considerably worse. I've seen prosecutors call people names, throw temper tantrums, and call defense lawyer out of court. The Second Amendment was intended to allow the people to protect themselves from the government (not from street thugs or squirrels). Allowing government agents (like prosecutors) to carry guns at times or in places where the people could not carry turns the Second Amendment around backwards.

Technorati Tags: law, legislation, prosecutors, guns, Texas

Other Trial Technologies

In case you couldn't already tell . . . I'm fascinated by the things other fields have to teach us (criminal trial lawyers) about what we do. For example, theatre: Keith Johnstone's books, Impro for Storytellers and Improvisation and the Theatre contain lots of nuggets of wisdom that my brain translates into ways of thinking about trial. I know a good deal about the use of psychodrama for trial preparation and in trial, and I've studied enough hypnosis and neurolinguistic programming to see how we can (and sometimes do, both consciously and un-) use some of their techniques in trial. But that's not necessarily cutting-edge stuff -- some law schools teach NLP in trial advocacy classes, and law schools are not known for being on the forefront of trial advocacy. Trial lawyers: what other disciplines do you incorporate into your advocacy?

Technorati Tags: hypnosis, jury trial, NLP, psychodrama, improv

Why Mindfulness Matters in Trial

A classic mistake made by inexperienced lawyers is to write out the questions to be asked in direct examination. When the questions are written out, the answers don't matter because the lawyer knows what the next question is regardless of what the witness says. Likewise, an inexperienced lawyer (or one who has not unlearned the bad lessons of the DA's office) will write out yes-or-no questions to ask the potential jurors during voir dire. The only reason to write out the questions would be that it didn't matter what the potential jurors were going to say; the only reason to ask yes-or-no questions would be that it didn't matter how the potential jurors felt. On cross-examination, what the witness says generally doesn't matter (cross-exam master Terry MacCarthy says the witness is just there to agree with you), but how he says it matters, and how the jury responds to it matters. Any good lawyer will tell you that the single most important trial skill is listening. The lawyer who is attentive to what is happening at any moment in the trial is going to do a better job in that moment than the lawyer who is thinking ahead or thinking about the past. That attentiveness is mindfulness.

Technorati Tags: criminal defense, jury trial, mindfulness

Mindfulness

In Keith Johnstone's Impro for Storytellers he relates:

"A Japanese swordsman wrote that if you fight someone who has no plan, you'll be thinking, I'll do such and such! as your severed head bounces down the temple steps!"

(Then Johnstone adds, "(Well, he didn't put it exactly like that.)") Johnstone is talking about how being "in the moment" (the theatre term for mindfulness) makes actors improvise better. The Texas Bar Journal has a little article this month called The Mindful Lawyer (if that link doesn't work try here). It discusses some of the benefits of "mindfulness meditation" to trial lawyers, but doesn't specifically address trial advocacy. I'm interested in how being mindful in trial can help us try cases better.

Technorati Tags: jury trial, mindfulness, philosophy

Beating up on the Mentally Ill

In another sentencing hearing (the defendant had pled guilty to theft and was seeking probation from the judge), the prosecutor argued that the defendant, who was mentally ill (diagnosed but unmedicated at the time of the theft, which was followed by two suicide attempts; medicated now; a thousand pages of medical records in evidence) had "chosen" to steal and was being "manipulative." Her mother must be very proud.

Technorati Tags: argument, criminal defense, jury trial, prosecutors

Pot Calls Kettle Black

In a sentencing hearing the other day (I was observing a colleague's injury to a child case), I heard a prosecutor argue something that made me do a double take:

"This man used his position of power to hurt other people."

Isn't that a pretty fair description of what prosecutors do when they put people in prison?

Technorati Tags: argument, criminal defense, jury trial, prosecutors

Introduction

I'm a criminal defense lawyer in Houston, Texas. I represent people accused of all sorts of crimes in state court all over Texas, and in federal court all over the country. In this blog, I plan to talk about anything that relates in any way to the practice of criminal defense law. In my mind, that's a very broad category, encompassing not only law and current events but also politics, religion, culture, society, sex, comedy, love, fear, literature, theatre, psychology, psychodrama, hypnosis, history, science, technology, and just about anything else that you could name. When I'm not lawyering I'm raising two kids with my wife (who's also my law partner), working on cars and motorcycles, tinkering with all sorts of gadgets, and reading.