HR 916 - a Dissenting Voice

It's hard to find anyone in the blawgosphere who's not in favor of HR 916, the John R. Justice rosecutors and Defenders Incentive Act of 2007. Gideon calls it "excellent news," as does Capital Defense Weekly. PD Stuff calls it "absolutely fantastic." Jeri Merritt calls it "good news." Fight 'Em 'Til We Can't urges us to ask our senators to support the senate equivalent. The Wretched of the Earth says: "Just think, without good prosecutors, a guilty murder or rapist could walk. And equally disturbing, without good public defenders, innocent people without the money to pay for a lawyer languish in jail or prison." Let me be the voice of dissent. If we were talking about $10,000 untaxed (call it the equivalent of $12,000 taxable) raises for all public defenders, I would say "hell, yes!" Nobody deserves a raise more. Contrary to TWotE's suggestion, prosecutors are not equally deserving. "Without good prosecutors, a guilty murderer or rapist could walk"? Where did that come from? Most prosecutors aren't prosecuting guilty murderers and rapists; most prosecutors are prosecuting drug crimes, DWIs, shoplifting cases, petty assaults, trying to put people who don't belong in boxes, in boxes. We don't need to increase the quality of prosecutions. We need to decrease the quantity of prosecutions and of prosecutors. Paying prosecutors more does nothing to make people more free. Isn't that our mission? Making 20% of the prosecutors redundant by decriminalizing dope and reducing sentences for other crimes Paying PDs more may help make people more free, but I suspect that 20% more PDs in every PD's office would go a lot farther than a 20% pay raise for all PDs. If there were equivalent numbers of prosecutors and defenders, I might be willing to consider raises for prosecutors a necessary concession in exchange for raises for defenders. But there aren't. There are more prosecutors than public defenders (I couldn't find numbers on the web, but I know it to be true), and DAs' offices are generally less underfunded, less understaffed, and less underpaid than PDs' offices. PDs are not well-loved by politicians (here's a clue: John R. Justice was a prosecutor). PDs who expect to see this money may be in for a grave disappointment even if the Senate passes the act. Here's why, in the form of a two-question multiple-choice test: 1. The people who decide where the money is spent in your jurisdiction know that the federal government is going to give every public defender a $12,000 annual subsidy. Do they a) raise defenders' salaries nonetheless; b) keep defenders' salaries where they are; or c) lower defenders' salaries by $11,999, figuring that defenders were paid enough before and should be happy with a net $1 raise? 2. Having cut defenders' salaries by $11,999, do the people who decide where public money is spent in your jurisdiction use it a) to feed the hungry and house the homeless; b) on hookers and crack for the monthly county commissioners' retreat; or c) to buy AR-15s for the SWAT team and build a new jail, in order to prove their tough-on-crime credentials? Almost anywhere in America, the correct answers are "c" and "c." If you live in one of the exceptions, I'd love to know where it is. Sometimes we have to argue against our own personal interests in order to make people more free. That's why defenders, many of whom profit from the war on drugs (in the form of fees paid by people accused), are among its most vociferous critics. This law, though a major boon to our brethren and sistren who don't need to sully with commerce their sacred duty to defend freedom, is bad for the freedom they defend.

The Domestic Violence Assault Case

Domestic violence assault cases often include complaining witnesses (we don't call them "victims" because the question of whether they are victims is the question of whether our clients assaulted them) who have changed their stories after making reports to the police. The Harris County DA's office has an entire division -- the Family Criminal Law Division (FCLD) that handles allegations of family violence with recanting accusers. FCLD prosecutors believe that these accusers were all telling the truth initially and have changed their stories to protect their men (the accusers are usually women; the accused usually men). Often, however, they were lying initially and have changed their stories to tell the truth. In most cases, the truth is somewhere in between -- the initial accusation was neither entirely true nor entirely false. Many domestic violence assault arrests arise from consensual tussles that escalated beyond what the parties intended, and many domestic violence calls are made just to get the accused out of the house. The accuser who lied to the police and wants to tell the truth is in a difficult position. Making a false report to a peace officer is a misdemeanor. Prosecutions of complainants who have changed their accounts of events are exceedingly rare; a prosecutor will nonetheless, if given the opportunity, threaten a recanting complainant with criminal charges if she persists in recanting. In fact, the Harris County District Attorney's Office employs family violence "counselors" whose job it is to get accusers to stick with the story the DA's office wants them to tell; these people are not above using threats and lies to keep accusers in line. The recanting accuser creates strategic opportunities for a defender. The accuser sometimes wants to tell the DA about her new account; often she will approach the accused's lawyer, either directly or through the accused, to try to help set the record straight. Because the DA's office will go to great lengths to ensure that an accuser does not recant, sending the accuser down to the DA's office to "tell her side of the story" can result in a recanting witness re-recanting. One way to use the opportunity presented by a witness who might waffle is to ask the witness to set her account down more firmly in an affidavit. The lawyer can help the witness write an affidavit that sets out a true account of the incident that resulted in the arrest of the accused. A few practice tips (most of which I picked up from John Giofreddi of Dallas):

1. Interview the witness at length about the possible defenses that might apply. The police seldom ask about the possible defenses that might apply (for example, "was he defending himself against your use of force?" or "did you consent to his use of force?"), so a witness's later account that includes facts supporting a defense generally won't support a false complaint charge. Include any possible defenses in the affidavit.
2. Inquire closely about the participants' states of mind at the time of the incident. Was the witness intoxicated? Upset? Include it in the affidavit. Does she not now recall what happened? Include it.
3. Does the witness feel that the prosecutor is meddling in her relationship and should back off? Include that.
4. Have the witness take the unsigned affidavit with her with instructions to sign it before a notary. This forestalls any claim that she signed it under duress from you.

We habitually call these affidavits "affidavits of non-prosecution," but the "non-prosecution" part of the affidavit (asking that the State not prosecute) is of little account compared to the witness's sworn account of the facts. If a witness says "he assaulted me but I don't want him prosecuted" the prosecution will continue -- the State does not represent the "victim" and doesn't have to accede to her requests. Once you have an affidavit showing that there is at least a reasonable doubt about what occurred, what do you do with it? If you show it to the prosecutor he's going to want the witness to talk to one of the "counselors" I mentioned above. I have never found that encouraging a witness to talk to such a so-called counselor does any good. The official line of FCLD is that they won't dismiss a case based on an affidavit unless the witness talks to a "counselor," but the official line is untrue. FCLD prosecutors are generally zealots who think that every accuser is truthful and that every accused is one assault away from murder; they are neither more nor less likely to dismiss a case if a counselor can't talk the complainant into not recanting. Family violence cases do get dismissed, but for the same reason that other cases get dismissed: because the prosecutors realize that the possible benefit resulting from a trial is less than the potential cost of losing a trial. I favor showing the prosecutor a favorable affidavit from the complainant in an assault case, but not giving the affidavit to the prosecutor until he has made the decision to dismiss and needs to support the decision with documentation in his file. What if the prosecutor doesn't dismiss the case? You don't have any control over whether the witness appears for trial or not (if she asked you, you would tell her that she would have to honor any subpoena with which she was served), but, as a matter of strategy, would you rather she did or she didn't? Before Crawford, in the witness's absence the State would blithely offer the officer's testimony about her "excited utterances" to prove their case (in fact, often the State wouldn't even try to get the complainant to court). After Crawford the core question is not whether the witness was excited, but rather whether the statement was non-testimonial. The way Texas caselaw is developing it appears that the crucial question is whether police questioning was "to enable police assistance to meet an ongoing emergency. See, for example, Zapata v. State. This obviously puts a crimp in the State's former style of trying to prove these cases. If the State isn't otherwise going to be able to offer someone else's account of what the then-accuser said originally, you probably don't want the witness to take the stand to be impeached with her prior inconsistent statement. If the State is going to be able to offer (as nontestimonial) the complainant's hearsay statement, you might want the witness to take the stand to contradict it. On the other hand, Rule 806 allows you to offer her later statement (the affidavit) if the state offers her earlier statement under an exception to the rule against hearsay, so even if she doesn't come to court the jury should hear neither of her accounts or both. If the "complainant" comes to court and testifies in accord with her affidavit, the jury may agree with FCLD's assessment -- that she is trying to protect the accused now, but was telling the truth before. If she does not, the jury may have nothing more to go on than competing affidavits -- and how could those be proof beyond a reasonable doubt? So, like most strategic questions, this one has at least two fact-specific correct answers. We server our clients not by wishing for one thing or the other but by having the flexibility to deal with either. If the complainant is still gung-ho about prosecuting, by the way, I would in most cases vastly prefer to see her in court testifying. Generally the fact that she is gung-ho suggests that there is some deeper, longer-lasting animosity than can be explained by the State's accusation. The jury will see this, and instead of seeing her as more credible it will have more questions than the State can answer. When a person is testifying against a family member, the more gung-ho the better.

Quote of the Day

"He didn't even read me mah' random warnings!"

The ACLU's Decision Making Process

An anonymous public-defender commentator to my last post wrote:

So, long story short, I contact the local ACLU chapter to see if they were interested in an amicus brief or in helping me appeal the the U.S. Supreme Court. I was shocked to hear that the NCLU could not assist me as they believed that the due process rights of students to attend school trumped my client's right to call people offensive names in school. Not only that, but the NCLU was even sponsoring anti-bullying legislation and for that reason would be also unable to assist. In other words, what I thought of as the great defender of free speech was one of the parties eagerly chipping away at it, unconcerned with the collateral damage.

That sounds to me like a really bad call on the part of the NCLU. Preventing bullying is not really part of ACLU's brief. Sponsoring legislation that gives the government more power to interfere in people's lives (as does all criminal legislation) is the opposite of what the ACLU should be doing. (For those watching at home: I may be able to cast some light on how such decisions get made, as I have attended ACLU legal committee meetings. Here in Houston the ACLU legal committee met (it's been a couple of years since I was involved) monthly. Typically eight or ten lawyers would sit around a table, someone would dump a bunch of -- maybe 50 to 100 -- letters soliciting ACLU help on the table, and the lawyers will go through the letters looking for anything that they might be able to help with. More than one lawyer would read each letter. Many of the letters asked for help that wasn't within ACLU's mission, but that the lawyers themselves could help with; the lawyers would follow up on those individually. A few asked for help that was within ACLU's mission; individual lawyers would follow up on those as well on behalf of the organization. It was all driven by what the lawyers felt like doing; there was very little adult supervision. So, anonymous PD, the decision not to help you, as well as the atrocious decision for ACLU Nebraska to support anti-bullying legislation, were likely not made in thoughtful deliberation by a learned committee according to some ACLU playbook, but rather by a volunteer lawyer making gut decisions. That the ACLU in your state has gone so wrong is not a result of the organization's philosophy but of its organization. There is only one solution: become involved.

Sad and Ironic but Not Surprising

Over at Blonde Justice the Blonde has two posts (Sad Irony and More Sad Irony) about a DuPage County, Illinois prosecutor who killed herself and maimed another driver in a car crash. The prosecutor was driving a county car; her BAC was 0.25 at 3:45 in the afternoon. The "sad irony" is that the prosecutor had, in 1998, sent another woman to prison for 13 years for intoxicated manslaughter. Prosecutors responded to the Blonde's first post on the subject. One said:

The fact that I might be tempted to steal or commit an assault doesn't and shouldn't make me less dedicated to the idea that theft and assault are crimes and need to be punished. If I myself engage in those crimes, I would hope that I would be treated as any other similarly situated offender: in fact, I should perhaps be punished more severely since I oughta know better!

Note three things about this: First, when someone goes to prison for theft or assault, we're not punishing theft and assault. We're punishing a person -- making a human being suffer. (This is a euphemism similar to "the war on drugs," which is actually a war on people, or "life" in a capital case, which is actually life in prison.) Second, the crimes invoked -- theft and assault -- are much farther removed from the everyday prosecutorial experience than intoxicated manslaughter. Intoxicated manslaughter, after all, is just a really unlucky drive halfway home from the prosecutorial watering hole. Would it be unfair for us to suppose that, when the late prosecutor was drinking heavily at 3:45 on a Friday afternoon, she might have been with other prosecutors? Third, note the shift in verb mood from the simple present "If I engage . . ." to the subjunctive. "I would hope that I would be treated as any other similarly situated offender" is utter nonsense. Maybe this prosecutor hopes now that he would be treated the same as other offenders, but if the time were to come he would hope to avoid suffering. I hope (and, based on observations of prosecutors accused, expect) that he would hire the best defender he could find to help him avoid suffering. Another prosecutor wrote:

[Y]ou would do well to at least acknowledge that prosecutors are human, with all the implied flaws therein. There is nothing nefarious here, nothing hard to understand ... it's not an "above the law" mentality among us, we're citizens just like the average joe, our job just happens to be prosecuting crimes. If we violate those same laws, we'll get the same day in court, and I suspect we'll be sentenced much more harshly because as the poster above mentioned, "We oughta know better." It also becomes news if we do these things, resulting in public humiliation of ourselves and our families. The average joe's DUI doesn't make the front page.

For a prosecutor to say "that person should suffer for what she did, but I shouldn't suffer if I did it" would be nefarious. "Just like the average Joe," though, lots of prosecutors act like they believe it. "Just like the average joe," they'll do lots -- including abusing their office -- to avoid suffering. Just like the average joe, they aren't admitting it out loud. Incident after incident is swept under the rug, but woe betide the occasional prosecutor whose misconduct makes the papers; her colleagues will throw her to the wolves -- not because she "oughta know better" but to demonstrate the sanctimony of the rest. For a prosecutor to say, "that person should suffer for what she did . . . though it is something that I would do as well" would be hypocritical. These prosecutors' comments are neither hypocritical nor nefarious. These prosecutors seem to be saying, "if I were to commit a crime -- though I wouldn't -- I should suffer." The second commentator is right: it's not an "above the law" mentality, and it's not hard to understand. It's a lack of compassion, of understanding, of imagination. Sad, yes. Ironic, yes. But it should be no surprise to anyone that, without the ability to imagine themselves in the position of accused people and to understand what put them there, prosecutors wish to contribute to their suffering.

Doing the Right Thing? It Could Cost You!

The Second Circuit has struck a blow for puritanism (as defined by H.L. Mencken -- "the haunting fear that someone, somewhere, may be happy") in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany. In that case the court considered the standard that should be used for approving lawyers' fees in a civil case in which the statute provided for the loser to pay the loser's fees. The winner's lawyers, Manhattan's Gibson, Dunn & Crutcher, may have violated the hog rule (pigs get fat, hogs get slaughtered) when they asked for $107,000 in fees for a "single-issue" appeal with six pages of argument (New York Times editorial). The district court slashed their fees, and they appealed. The Second Circuit held that fees should be "what a reasonable, paying client would be willing to pay." (Since a district court will only be awarding legal fees to the winner, though, shouldn't fees be "what a reasonable, paying client would be willing to pay for assured victory?") So what should the court consider in determining what a reasonable, paying client would be willing to pay?

[T]he complexity and difficulty of the case, the available expertise and capacity of the client’s other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case . . .

With me so far?

. . . whether the attorney had an interest (independent of that of his client) in achieving the ends of the litigation or initiated the representation himself, whether the attorney was initially acting pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) the attorney expected from the representation.

So, according to the Second Circuit, a lawyer who has his own interest in achieving the ends of the litigation will be paid less on the market than a hired gun. I have found that the opposite is true -- that people are willing to pay me more, not less, because I enjoy what I do and believe that it is right. In the Arbor Hill case, the plaintiff's lawyers were betting on the come. Their only chance to be paid was to win. So, according to the Second Circuit's logic, they were "initially acting pro bono" and therefore were entitled to less pay, rather than to more pay in compensation for accepting the risk. But getting away from punishing lawyers for gambling, and back to punishing lawyers for doing what they feel is right,

[A] reasonable, paying client might consider whether a lawyer is willing to offer his services in whole or in part pro bono, or to promote the lawyer’s own reputational or societal goals. Indeed, by focusing on the hourly rate at which a client who wished to pay no more than necessary would be willing to compensate his attorney, the district court can enforce market discipline, approximating the negotiation that might ensue were the client actually required to pay the attorney’s fees. . . . . We are confident that a reasonable, paying client would have known that law firms undertaking representation such as that of plaintiffs often obtain considerable non-monetary returns — in experience, reputation, or achievement of the attorneys’ own interests and agendas — and would have insisted on paying his attorneys at a rate no higher than that charged by Albany attorneys (and there is no cross-appeal).

So a lawyer undertaking representation that "promot[es] the lawyer's own societal goals" or "achiev[es the lawyer's] own interests and agendas -- in other words, doing good -- gets to be paid less than a lawyer who is cynically representing the client for nothing but money. This case is a reminder that the vast majority of lawyers practice law in quiet desperation, with no personal interest in achieving their clients' ends. The vast majority of lawyers are not practicing law to promote their own societal goals. The vast majority of lawyers are not willing to gamble on the cause. In other words, the vast majority of lawyers aren't doing what they do because it's the right thing to do. Doing the right thing is an aberration that, to the Second Circuit, militates in favor of lower fees. (Doing the right thing, of course, might lead to happiness, which is why I see this opinion's deliberate suppression of fees for lawyers doing the right thing as a blow for puritanism.) Whether the attorney had an interest in achieving the ends of the litigation should certainly be considered by a court determining what a reasonable paying client would pay. Whether the lawyer is in accord with the client, such that the lawyer's societal goals match the client's goals, also should be considered. So should the fact that the lawyer is willing to bet her own money on the case, so that she doesn't get paid if the client doesn't recover. But the Second Circuit has it backwards: all of these are reasons that reasonable clients, spending their own money, rationally decide to pay lawyers more rather than less. Every day rational clients choose lawyers who are true believers over lawyers who are cynics; every day rational clients with no money sign contracts promising to pay lawyers huge fees if and only if the lawyers can recover money for the clients' injuries. In fact, I would go farther and say not only that lawyers who aren't practicing to advance their societal goals should be paid less than lawyers who are, but that they should seriously consider not practicing at all. If a client can't find a lawyer who believes in some aspect of the client's fight (I think of Anthony Griffin, who was fired from his job as NAACP's Texas general counsel for standing up for the KKK's right to free speech), then perhaps the client shouldn't be going to court.

Hobbies

Every defender should have a hobby. It should ideally be something as far removed from the practice of law as possible -- something that takes the mind off the practice. I'm fascinated by the things that other people find fun. Here are some of the things that my fellow Houston defenders do:

Fly airplanes; Jump out of airplanes; Golf; Surf; Climb mountains; Shoot guns; Ride motorcycles; Hunt; Bicycle; Play guitar; Play croquet ("the serious stuff, not the rinky dink stuff you get at a sporting goods store"); Play conga drums; Digital photography; Run; Trick roping; Cowboy mounted shooting (I think it has something to do with horses); Play harmonica; and Collect baseball cards.

Here's a picture of me practicing my chief hobby: What are your hobbies? Drop me a comment and let me know what I've missed.

"The Question" and Compassion

Ed Chernoff, who blogs beautifully but infrequently, writes here about "The Question" and an encounter with a dove. (It seems that nobody ever asks me "The Question" anymore. I don't know why that is; I may just be associating with more compassionate people than I used to.) Ed's cat Willie brought Ed a dove. Ed saved the bird. Then, writes Ed, "Willie watched it go, and then looked up at me with what I perceived to be pity." To Willie, doves are prey. The fact that they are prey (and cats are cats) only by an accident of birth does not change that fact. Cats have no compassion for doves. Most people are like Willie. They can't understand why we try to deprive them (society) of their (its) prey. Without compassion nobody will ever understand why we defend; with compassion nobody will ever need to ask.

Warrantless DWI Blood Draws, and a Urinary Catheter

Harris County intends to get a search warrant to draw blood from anyone who, having been arrested for DWI this (Memorial Day) weekend, refuses to provide a breath sample (Houston Chronicle). A judge will be on call to sign warrants and MADD will provide nurses to draw the blood. In the 1966 Supreme Court case of Schmerber v. California the Court approved a warrantless blood draw based on probable cause for DWI on the theory that an emergency existed because the accused's blood alcohol content might diminish while the police awaited a warrant. This weekend (when a warrant can be obtained within 10 or 15 minutes of a driver's stop) such an emergency won't exist, so if the police don't get their PC affidavits and warrants right the blood test results will be suppressible. Meanwhile, a Fort Bend County lawyer reports that the Sugar Land, Texas Police Department, after drawing blood, forcibly inserted a catheter into the penis of a DWI arrestee who had refused a breath test. In Schmerber the Supreme Court wrote:

We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

A catheter is unquestionably a more substantial intrusion than a blood draw. Catheterization is painful, and bears a substantial risk of infection. Schmerber doesn't support the Sugar Land officers' action. Not only did they jeopardize the prosecution, but they (and the medical personnel who helped them) lined themselves up as the potential defendants in a large civil lawsuit.

The Artist as Frustrated Lawyer

In On Acting, by legendary acting teacher Sanford Meisner, Meisner's assistant reads to his acting class an excerpt from Sigmund Freud's Introduction to Psychoanalysis:

The artist has also an introverted disposition and has not far to go to become neurotic. He is one who is urged on by instinctual needs which are too clamorous; he longs to attain to honour, power, riches, fame, and the love of women; but he lacks the means of achieving these gratifications. So, like any other with an unsatisfied longing, he turns away from reality and transfers all his interest, and all his libido too, onto the creation of his wishes in the life of fantasy . . . .

Someone once told me, and I long accepted, that all lawyers are frustrated artists. Lots of lawyers have creative hobbies -- music, theatre, writing, painting, photography -- that they think they would pursue if only they had the time or the temperament or the talent. The only job that I can think of that I would have than my own is Jimmy Buffett's -- a job for which I am transparently and immutably unqualified. From Freud's description, though, it would seem that the better generalization is that artists are frustrated lawyers. If we didn't have the means of achieving honor, power, riches, fame, and the love of women, what great art we might create!

Scaled Questions in Jury Selection

I often use a scaled question or two near the end of jury selection, and find such questions to be very useful tools for getting potential jurors to rate themselves (essentially, though not explicitly). A scaled question is a question that calls for an answer on a continuum. For example, "On a scale of one to ten, with ten being most important and one being least important, how important is it to you that the guilty be punished? On the same scale, how important is it to you that the innocent go free?" The example is a two-part scaled question; I would ask both questions at the same time, writing them up on the board for the panel's reference. When the time came to deselect the jury, I would subtract the first from the second. I wouldn't choose my strikes based solely on this number, but a negative difference (first number higher than second; "punish the guilty" more important than "free the innocent") or a zero or one would be a warning sign that might make me reconsider a decision not to strike, or (more likely) solidify a decision to strike. Scaled questions help to draw some information from those silent jurors who might not have said much during a general voir dire. They get information from people (even people who have not been warmed up with a proper voir dire) in a way that binary (yes/no) questions never will. I have talked about the inutility of binary questions here. With binary questions, there may be only one "correct" (socially acceptable) answer. For example, when the judge in a federal case asks the panel "can you be fair?" (Federal judges' voir dires being more worthless even than prosecutors') everybody knows what answer she wants, and every person on the panel is going to give the judge the answer she wants. The answer to a binary question might lead to a challenge for cause (which a scaled question will never directly do), but only if the juror knows that socially deprecated answers are not "wrong" (see Getting the Jurors' True Feelings). With scaled questions, there may be a socially deprecated answer at one end of the scale, and the juror's perception that this answer is "wrong" might skew his self-evaluation toward the other end of the scale, but there will still be several choices that might reveal something about the juror. For example, if he is asked to rate his feelings about a subject on a scale of 1-10 and his true feeling is a 10 (which he thinks is "wrong"), he can rate himself a 9 or 8. By contrast, if the juror is asked a "yes/no" question and his true feeling is "no" (which he thinks is "wrong"), he can only answer "yes." Many lawyers find jury selection an anxious experience. Adding some scaled questions to their repertoires, if they don't already, should help eliminate the anxiety.

Trial is Like Baseball Because . . .

According to Anthony (a Mets fan),

Your team doesn't always win. There are rules (but in baseball the team that goes first doesn't get to go last too). Every person has good days and bad days, and any one player's bad day can change the course of the whole event. Often a bad bounce can change the momentum of the entire event. Money, unfortunately, has a lot to do with how well your team plays, and the result. The game is rarely won in the last inning.

The Other Problem With Hourly Billing

Scott Greenfield writes about why hourly billing doesn't work for defenders:

First, sometimes our clients are criminals, and hence a tad short of trustworthy. Second, our clients can be mercurial, and their desire to pay fluctuates with their impression of how the case is going. Third, "stuff" happens, so even the best intended clients may find themselves about to go on trial and suddenly lacking in the wherewithal to carry the load. For obvious reasons, this creates a rift between lawyer and client that cannot exist if the lawyer is to maximize the potential of winning. The lawyer must focus on one goal, and one goal only. If his focus is split between the client and his fee, there will be problems. As for me, I have a somewhat different reason that pushes me far, far away from hourly billing. I do not want someone who has no idea how much time and effort I put into a defense to start questioning why I spent 7 hours "thinking".

I concur, and have two additional reasons that I avoid (and most of us probably should avoid) hourly billing. First, I'm no good at keeping track of my time. Like many trial lawyers (and other creative professionals) I often sacrifice the business side of the practice to get the job done right -- to take care of my people. The chances that I'll make any sort of record of the time that I've spent on a case are considerably less than 100%, especially since so much of my time on any case is spent "just" thinking. Second, and more important, if my clients had to pay me based on how much time I spent on their cases, they would have an additional motivation to plead guilty instead of going to trial. That decision should be made based on a careful balancing of the costs and benefits of the plea against the potential costs and benefits of trial. The costs of a plea often include imprisonment or other restraint. The costs of trial often include the risk of more restraint. When the cost of trial increases artificially (because the client will have to pay more for a trial), the client has an artificial motivation to accept more restraint than he otherwise should.

How is Baseball Like Trial?

I am in New York right now helping a person accused in a federal drug case that's pending in the Southern District of New York (in Manhattan); last night I got to watch the Yankees play the Mets at Shea Stadium (which isn't going to be around much longer -- they're building the new park next door). As a lover of metaphor, I feel that any worthwhile human endeavor bears similarities to every other, but I guess I don't know enough about baseball to say how baseball is like trial (and Google provided absolutely no help). Any thoughts?

My Voir Dire Fetish

Anne Reed has posted a list of my recent posts on jury selection. Five posts on jury selection in four days is almost embarrassing (especially since I posted nine other times in those four days -- is that writing or typing?). I really love jury selection, though; it's my second-favorite part of a trial. (My favorite part of a trial is taking a two-word verdict, (a) about which there's not much to say; and (b) which, sadly, doesn't happen in every trial. My third-favorite part of trial is cross-examination; dead last is the time between the end of the my closing argument and the reading of the verdict). Trials are won and lost in jury selection. The best voir dire won't overcome the worst set of facts . . . but neither will anything else. Voir dire sets the tone for the trial and gives one side or the other the edge; that edge is the jury's view of the theme of the case. Is the case about "getting drugs off the street" or "making the government follow the law?" "Protecting children" or "preventing false convictions?" "Sending a message" or "being fair?" The jury is going to come out of jury selection with either the government's or the defendant's theory in mind. The great news for the defense is that, in jury selection, we get to talk to the jury last. We have a chance to change the story. We can begin the presentation of evidence with our theory reverberating in the jury. Clearly we have recency on our side. What may be less clear is that we can seize primacy as well. We do so when we perform voir dire so that it is entirely different than the state's. If voir dire is a television show, and we produce the last half, then we get the last word but the prosecutor got the first. If, on the other hand, voir dire is two separate shows (say the prosecutrix's show is "Law and Order" and ours is "Boston Legal") then we can amaze the panel so that the prosecutrix's show is irrelevant. We get to write our own opening titles ("In the criminal justice system, the people are represented by two separate but equally important groups: the trial lawyers who defend them before juries, and the appellate lawyers who represent them on appeal. These are their stories. Dun-dun!") as well as the punchline. If you're watching TV and a new show comes on, you know it immediately. In the first 30 seconds of watching you can tell the difference between "Boston Legal" and "Law and Order." Plan the first 30 seconds of your voir dire so that the panel knows that the prosecutor's show is over and yours has begun.

The Bar Poll

The results of the Houston Bar Association's annual Judicial Evaluation Questionnaire are out. Here are the results for Houston's federal judges and Harris County's Criminal District Court and County Criminal Court Judges (they're excerpted from the results for all judges touching Harris County cases, including appellate judges, here). The numbers include number and percentage of "outstanding," "acceptable," and "poor" votes in several different categories. For an overall picture of lawyers' perception of the Houston bench, here's how I crunched the numbers: I took the percentage of "outstanding" votes in the "overall rating" category and subtracted the number of "poor votes" (I ignored the "acceptable" votes because "acceptable" is the very least we should require from our judiciary to come up with a "Judicial Competency Index" for each judge. The federal judiciary have JCIs between -33.8 and +77.6, with a mean of 15.97. Three out of 9 federal judges received negative JCIs. The Harris County Criminal District Court judiciary have JCIs between -47.2 and +59.7, with a mean of 29.7. Three out of 21 state district judges received negative JCIs. The Harris County County Criminal Court judiciary have JCIs between +2.1 and +59.1, with a mean of 29.2. I was surprised that our state judiciary (elected in partisan elections) did better on average in the poll than our appointed federal judiciary. The best of the federal judges did better than the best of the state judges, but the worst of the state judges did worse than the worst of the federal judges. I'm not sure what it all means. 2008 is an election year; perhaps we'll find out then.

Getting the Jurors' True Feelings

In commenting on my post, A Prosecutor's Voir Dire: Lessons, Gideon wrote:

I'm just afraid of jurors not answering questions like: "Do you have any preconceived notions of what a sex offender looks like" truthfully in front of others.

That's a valid fear whether the others are their fellow venirepeople or two lawyers, a judge, and a court reporter. The problem, no matter the size of the audience, is that such preconceived notions, upon reflection, might seem silly or ignorant to the juror who holds the opinion. Whether in front of 60 people or 4, how do you get a truthful answer to that question? First, why do you want to get a truthful answer to the question? Because you suspect that your client looks like a sex offender (if you were certain that your client was nobody's idea of a sex offender, you would want that fact to do its work subliminally). Why do you suspect that your client looks like a sex offender? Maybe because, to you, he looks a bit like a sex offender. Show them yours. They'll show you theirs. In such a situation I might start jury selection like this:

I need to share with you my great fear about this case. When I first saw Joe, before I got to know him, I thought, "he looks like a sex offender." When I got to know him that feeling went away. But I've got to know: who else has that reaction on looking at Joe?

Some people might say yes. Most will say no. That might lead into a discussion of the silliness of such notions -- all produced by the panel, instead of by you. That's just off the top of my head. This relates to the first-date theory of jury selection: If you start asking about the things most intimate to your date without first opening up to her, she's not going to give you much feedback. She might even find you creepy. There are a hundred different ways to get people talking truthfully about their feelings. All of them involve talking truthfully to them about your own feelings. It's scary every time you do it, until it's not.

Prior Inconsistent Statements

Anne Reed of Deliberations blogs about Prior Inconsistent Statements. It's good to know what jurors think of such statements, both for the sake of our cross-examinations of government witnesses, and for the sake of our clients who probably haven't always told the whole truth about the incidents that brought them to criminal court.

A Prosecutor's Voir Dire: Lessons

As promised, the lessons I learned from the prosecutrix's voir dire today: 1. If you're prosecuting a child sex case, you can do a bad voir dire with impunity. The prosecutrix did three of the four bad things to do in voir dire (See Bad Voir Dire / Good Voir Dire): she lectured the panel extensively; when she asked questions they were almost all yes-or-no; and she asked for a show of hands, then said, "for the record, I see no hands raised." She didn't react badly to "bad" answers because she didn't get any "bad" answers. She could have hurled abuse at the panel for an hour, taken the first 12 jurors, and still had a jury that wanted to kill the accused. A prosecutor can't lose such a case in voir dire but she might, if she performs a competent voir dire, win it there. (Illustrative of two maxims: 1) being a prosecutor doesn't necessarily prepare you to be a defender; and 2) a prosecutor can win all his cases and think he's brilliant; a defender wins some and knows he is.) 2. If you're defending an allegation of child sex abuse, you cannot do a bad voir dire. You have to be on top of your game. You have to change the tone of the voir dire immediately. The prosecutrix has just spent an hour preparing the jury to disembowel your client. You have to change the story of the case in the first 30 seconds. The jury has been thinking about how bad sex offenders are; you want them to think about something worse: being falsely convicted of a sex offense. A defender can't win a child sex abuse case in voir dire but she might, if she performs a competent voir dire, have a chance of winning at trial. 3. Conferences at the bench (other jurisdictions call them "sidebar" for some reason -- they're not at the side of the bar, but at the side of the bench) kill voir dire. The prosecutrix objected on several occasions to the defender's voir dire, and immediately asked to approach the bench. A seasoned judge would have refused and either overruled or sustained the objection. Our judge, new to cirminal trials, allowed the bench conferences to go on and on and on. We spent about 20 minutes of the defender's voir dire in conferences at the bench. 4. It is no less important in voir dire than in other parts of the trial to know the law. Here, the prosecutrix's voir dire was intensely objectionable, and the defender didn't object. When the prosecutrix (who also didn't know the law) made improper objections to the defender's voir dire, the defender didn't have the correct response on the tip of her tongue, so she got sucked in to bench conferences. Here's a precis of most of the lecture:

"Good afternoon . . . GOOD AFTERNOON."

I can count on one hand the number of times I've seen a prosecutor NOT use this old chestnut to try to "warm up" the jury. They say "Good morning," and when the jury doesn't respond enthusiastically say something like "I know you can do better than that. Good morning!" or "I said, 'Good morning!'" I wonder if this seems cute to the jurors, or just patronizing. Am I jaded from having seen it a hundred times?

"Fair does not mean lenient."

Part of the lecture. Not really proper voir dire. Sometimes lenient is fair.

"You will sit on the punishment phase if elected."

She's conditioning jury to consider guilty verdict a foregone conclusion.

"During the guilt-innocence phase there will be no discussion of other criminal history or other victims -- we're not allowed to talk about that."

Obviously, she's hinting that there is such (even though in this case there was not.)

"Not guilty does not mean innocent."

That, I couldn't have said better myself.

"Presumption of innocence starts falling away as you hear the evidence."

I don't buy it -- I think the presumption of innocence has to remain until all of the evidence has been heard.

"It is the defendant's choice entirely whether to testify -- I can't, his lawyer can't the judge can't make him testify. Nobody can stop him from testifying if he wants to."

This implies that the decision is purely the client's. That is nonsense. If I think my client should testify, he'll testify. If I think he shouldn't, he won't.

"Defendant might take the stand and minimize or lie."

Sure, as might anyone.

"We can't give you a definition of 'beyond a reasonable doubt,' but it's not 100%, not beyond all doubt, not beyond a shadow of a doubt."

Pardon me, madam prosecutrix, but didn't you just partially define "beyond a reasonable doubt" by saying what it isn't? My definition of reasonable doubt is this: If I am a reasonable person, and I am left with a doubt after considering all of the evidence, that is a reasonable doubt. If I'm on the jury, can the prosecutor really tell me that I'm wrong? Really?

"To have no doubt, you would have to have been there, and I would be calling you as a witness."

I love this one. Look at the hidden message: if you had been there, you would be on our side. I like to get up and say, "if you had been there, this case would never have been filed because you would have told the truth about what you saw."

"Conflicts in testimony are not necessarily reasonable doubt. For example, a child's perspective on size and time is different than ours, so the child's testimony will vary from the adults."

This is pure argument and improper voir dire. Clever, but objectionable.

"You should expect inconsistencies, but inconsistencies don't mean reasonable doubt."

Improper voir dire. Any judge would sustain the objection and tell her to save it for closing argument -- if the objection were made.

"On or about is sufficient if the date of the offense is within the statute of limitations."

This is a correct statement of legal sufficiency, but an improper instruction on the law. The jury gets to decide whether the date of the offense was on or about the date charged; it is improper to force a definition on them (just as, in Texas, it is improper to impose a definition for BRD on them). At this point I have the notation: "Nobody is talking." Prosecutrix is fifteen minutes into her voir dire, and we've heard nothing but a lecture.

"'Delayed outcry' is a term used among professionals in child abuse."

She's testifying. Improper voir dire. She gets the panel talking a little about reasons children wouldn't report sex abuse immediately -- telling her exactly what she wants to hear. For a little while she stops violating the rules, but it is purely for indoctrination rather than to learn anything about the potential jurors.

"Defendant is presumed innocent, not honest."

That's catchy. And true. But no other witness is presumed honest either. Here's a beautiful one:

Raise your hand if you told a lie as a child. Now raise your hand if you lied about being sexually abused.

This is the "kids don't lie about things like that" argument. She gets the panel to tell her more things she wants to hear. More indoctrination. Sex abuse is private, and there aren't likely to be uninvolved witnesses; some kids are more likely to be victims because they're more vulnerable; vulnerable kids may be kids with behavior problems. So now, instead of behavioral problems make it more likely that the child is lashing out at an adult, the jurors are thinking that abusers choose kids with behavioral problems to victimize.

"The complainant may not be like your child."

Wow. No kidding? You mean he might be a child who would lie about "things like that?"

"If you were asked about your last sexual encounter, how would you react. In fact, let me ask for volunteers. Who wants to tell us about their last sexual encounter? Tell us when, with who, where, what did you do, what noises were made, how did it end?"

I have grudging admiration for that question. It's awesome, for what it is.

"Do you expect medical evidence in a 'touching' case? DNA?"

See, she does know how to argue her case in voir dire without impropriety. She describes the so-called "one witness rule," which says that a jury may convict on the testimony of a single witness if that testimony is believed beyond a reasonable doubt.

"Is the one witness rule fair?"

Ask the Duke lacrosse team. At this point it becomes clear that she is reading from a script:

"Does anyone have a preconceived notion of who looks like a sex abuser?" "Does anyone think an adult can't be aroused or gratified by a child?" "Does anyone feel that sex abuse within a family shouldn't be prosecuted, or is less serious than with a stranger?"

At this point nobody is going to answer any of those questions affirmatively. Maybe before she had prepared the panel to lynch the defendant someone might have had some feelings other than the ones she wanted. Now, no way. This, actually, is as close as she got to violating the rule against taking bad answers badly. She avoided the bad answers entirely by rewarding the good answers ("that's exactly right") and saving the questions that might elicit opinions hostile to her position till the end of voir dire.

"The child was interviewed and videotaped. You may or may not be able to see the videotape."

This implies, "I want you to see the video, but the rules may not allow it."

"Does anyone know someone wrongly accused?" "Has anyone had a bad experience with law enforcement?" "'Consider' probation does not mean 'give' probation. It means keep an open mind and consider it."

No, in the prosecutor's mind, "consider" means "don't cover your ears and say "blah-blah-blah" when the defense lawyer talks about probation, but close your mind to the idea as soon as you can. In fact, she said "you can close your mind as soon as you hear all of the evidence." What consider actually means is "meaningfully consider." Some jurors will consider probation in the same way they would consider leaping out the window if it were suggested. In order to give effect to the statute, instead of writing their own statutes, jurors must be able to give meaningful consideration to the full range of punishment.

"Is there anyone who, for moral or religious reasons, can't sit in judgment?"

This question is objectionable for reasons I've discussed here, here and here. This has turned into more of a production than I planned. I think it's clear: you don't have to be a very good lawyer to put people in prison for child molestation. The irony is that some of the best lawyers in the DA's office are attracted to that particular division; I think it's because, when they're prosecuting people who they believe have harmed children, they can feel as though they are help the children (they are, of course, not necessarily). Inside us all there is a part that wants to help people; it is easier to imagine that you are doing that when you are prosecuting accused child molesters than when you are prosecuting accused drug users.

Why I Do It

A law student reader wrote: "I definitely do enjoy reading your blog and will say it has me rethinking my relegation of a criminal law career." (I had never seen "relegate" used without a destination; thanks to my correspondent for this elegant locution.) I went into law school thinking that I wanted to be a criminal defense lawyer. I'm not quite sure how I reached that conclusion, except that for as long as I can remember I have sympathized with the underdog and spoken up for the apparent transgressor. Borrowing the words of the late great Stuart Kinard, I have always "protected the Lord's children who have fallen short of perfection from the wrath of those who believe they have attained it." For my first-semester criminal law class I had Professor Irene Rosenberg (whom I would call one of the worst teachers ever if she didn't have competition like this). Irene's class was so stultifyingly boring that I decided that criminal law was not for me any more, and that I would go chasing after the money working for some corporate firm. Looking back after 12 years of practice, I don't see how anyone could possibly make criminal law appear so uninteresting except with a deliberate effort. If I can counter Irene's efforts and turn one law student back on to the defense of the friendless, the broken, and the lost, then I will have accomplished something major. Having relegated criminal law, I sought a summer associate position during the summer after my first year. I worked for Bell & Murphy, a now-defunct admiralty litigation firm. Lunches generally included beer, and the subject matter -- mostly accidents at sea -- was interesting. During my second year of law school, I took classes like commercial transactions, land finance, and mergers and acquisitions. I guess I envisioned myself practicing in some area related to high finance. After that year I had two more clerkships, with Sheinfeld Maley & Kay (which dissolved in 2001) and Corpus Christi's Gary, Thomasson, Hall & Marks (which bucks the trend by remaining intact). It was a SM&K that I realized that nobody was having any fun. By the time I got to GTH&M I was leaning toward defending people. If Corpus had been a nicer place for a 24-year-old who doesn't windsurf, I might have been tempted stay and defend corporations against people's lawsuits, but it wasn't and I wasn't. I got back to law school, stacked the criminal law classes up, joined the criminal defense clinic (UH students: is there such a clinic there now?), and hung out a shingle on graduation. I haven't regretted it for a moment. As Martin Luther said when Charles V ordered him to recant, "Hier steh’ ich, ich kann nicht anders."

In Trial Again . . . Almost

This morning I went to court in Richmond (Fort Bend County, one of those abutting Harris County, and an area from which many people commute to Houston), geared up to try an indecency with a child case. When I got to court, I learned that another indecency case was up before mine, and that it would probably go to trial. So after an hour or so of sitting in court, my client left with a new court date in October. So in October I'll have to get warmed up again to try this case. (Is this something that happens to defenders in other jurisdictions, or is it unique to Texas?) I could have left with my client, but instead I volunteered to help the defender pick a jury on the case that did go to trial. So as I write this, we're on our lunch break. I'm in the county law library (free Wifi) and I'm about to head back to the courtroom. The judge, who is new to the criminal courts, questioned the panel briefly before lunch, we met with a few of the jurors about matters sensitive to them at the beginning of the break, and we'll return in 15 minutes for the prosecutrix, formerly of the Bronx DA's office (she claims not to have read David Feige’s book, "Indefensible") to talk to the jury. I'll report back later on any lessons I discover in her voir dire.

Three Rules for Dealing with the Media (When You Can't Talk to Them)

From Houston trial lawyer Rusty Hardin, who spoke at the TCDLA/HCCLA Dealing With the Media seminar last week, three rules for dealing with the media when talking to them won't help your client:

1. Return their calls. 2. Tell them the truth. 3. Tell them why you can't talk to them.

Five Questions

One of our speakers at the Dealing with the Media and Fighting Like You Mean It seminar last Friday gave us this tip for dealing with the media the next time they catch you coming out of the courtroom. Answer five questions for them:

Who are you? (What is your name? Spell it.) What happened in court? What does that mean? How is your client doing? What happens next?

Then thank them and end the interview. This gives the reporters and cameramen something to take back to their boss so they don't have to hound you, but doesn't add any fuel to the publicity fire.

The Presumption of Innocence

I heard something good last week:

"The presumption of innocence means 'he didn't do it until they prove he did.'"

(I doubt that the speaker, Houston trial lawyer Rusty Hardin, had quantum mechanics in mind when he said that [see Schrödinger's Jury], but I think his is a quantum view of the Golden Thread.)

Terry MacCarthy Cross-Examination CDs

I was about to write something about "legal speaking" and the use of archaic locutions like "may it please the court," when I remembered the use Houston criminal defense legend Richard "Racehorse" Haynes put that phrase to when he was introducing Chicago criminal defense legend (and master cross-examination teacher) in 1998: Click here for the mp3. This is the first track in the 7-cd audio recording of Terry's complete cross-examination and impeachment lectures. The entire recording is available for $150 from sales at hccla dot org. UPDATE: Listen to the first track of the Terry MacCarthy CDs here. Download the order form here.

Technorati Tags: cross-examination, Terry MacCarthy

A Truly Compassionate Profession Redux

(I posted this last month inadvertently before I had rounded out the thought. No idea how. I do try hard to provide quality product.) Defenders seek to prevent suffering, as do physicians. Unlike physicians, however, defenders are trying to prevent suffering that someone else is deliberately trying to cause. Causing suffering to our clients is someone's idea of justice. If we were to make our own judgments of our clients' just deserts, we might not try to prevent their suffering. So the defender's intent to prevent suffering is accompanied by a suspension of judgment. We try to prevent suffering despite society's judgment that suffering is just. That is compassion.

Group Voir Dire II

Gideon commented on my earlier Group Voir Dire post:

Thanks for the insight! It seems that both have their advantages. I'm still concerned that people in group sessions might not express their true feelings in the presence of others. For example, if someone has a strong feeling that anyone who is arrested is guilty, might not reveal that if the person before them has said that they are not guilty and the attorneys have displayed some sort of affirmation. How are the jurors excused? In CT, after the questioning, the juror is asked to leave the room and then the judge and attorneys discuss whether to accept, excuse for cause or use a peremptory. Then the juror is called back in and simply told that they're either on or off. That might affect some of the answers of the others too, if it is done in front of everyone else. I like the individual voir dire because it gives me an opportunity to talk to a person one-on-one and ask as many questions as I like to get a sense of what they think; to delve deeper into some of their responses, creates a more personal feel, as if we were becoming friends.

People in group sessions may, indeed, not express their true feelings in the presence of others. When one person says "arrested doesn't mean guilty" the lawyer, if he wants to get any more information out of the group, has to make room for contrary viewpoints. I might say to Mr. Smith, "Lots of people you know disagree with you, don't they." Then to the group, "Who here disagrees with Ms. Smith?"(People may not express their true feelings in the presence of only the lawyers, since they know what the correct answer is supposed to be in that situation.) Different Texas courts excuse jurors differently. What I've seen most is this: the judge talks to the jurors, the prosecutor talks to the jurors, and the defender talks with the jurors. Then the judge and lawyers confer at the bench about challenges for cause. If further questioning is required in connection with a challenge for cause on a particular potential juror, that juror is brought up to the bench and the challenge is solidified or the juror is rehabilitated. After the judge has determined who will be excused for cause, the panel is given a break as the lawyers mark their peremptory challenges on their jury lists. The lawyers turn in their lists to the clerk, who collates them and hands the judge a list of the jurors on the case. After the jurors' break, the judge reads out the juror numbers and names of the people who will be on the jury and, if the lawyers agree (and don't have any Batson objections) the rest of the panel is excused. Some Texas criminal courts will require lawyers to exercise their challenges for cause as they arise. This taints the rest of the process, however, because potential jurors who want to serve (or don't) will see their fellows excused and tailor their own responses to avoid a challenge for cause (or force one). I would prefer more time to ask more questions of each person, but a properly conducted group voir dire allows the lawyer to make a personal connection with each juror -- obviously not as much as individual voir dire. As much as I like the idea of becoming friends with each of twelve individual jurors who will eventually reach twelve independent verdicts, that doesn't seem to be how the dynamics operate in the jury room. Rather, the jury operates as a group. I think it would be much more difficult to anticipate how the jurors would operate in a group when they are chosen individually.

Technorati Tags: jury selection, trial

Bad Voir Dire / Good Voir Dire

I think a lawyer should never pick a jury alone (it takes at least four eyes to keep track of jurors' body language). I also like to watch other lawyers' voir dire efforts. So whenever I get a chance I help out other defense lawyers when they pick juries. Even when it's bad, I learn something. Here's a rule of thumb to tell a good voir dire from a bad voir dire: in a bad voir dire, the lawyer is doing 90% of the talking; in a good voir dire, the potential jurors are doing 90% of the talking. I think of voir dire as a first date with 24 or 60 people. You want to learn enough about them that you can decide which of them you would like to see again (on your jury), and you want those who you're going to keep to like you and your case. If you pick right and charm them now, it'll be easy to seal the deal later. Most prosecutors give a good example of a bad voir dire. At least in this county few of them learn how to perform an effective voir dire. They (a) lecture the jury; (b) ask yes-or-no questions; (c) say stupid things like "I take it from your silence that the answer is no;" and (d) react defensively to "bad" answers. (Fortunately for them, the facts [and, in Harris County, the jurors] are usually so weighted against the accused that the State could take the first twelve potential jurors and still win.) Lecturing You may want to tell enough about your perspective that you could find out how your date felt about the same things, but if you were on a first date and you spent the evening lecturing about how you saw the world and what you believed, you probably wouldn't get a goodnight kiss, much less a second date. People don't like to be told what to believe; if you lecture your jurors, they are going to like you and your case less. And of course lecturing someone is not a way to learn anything about her. Yes-or-No Questions Save the yes-or-no questions for cross-examination. They're not friendly. Yes-or-no questions are also unlikely to extract any meaningful information. People's views on most subjects are more nuanced than a yes-or-no answer will reveal. Voir dire questions should be open-ended, and should generally be directed toward the part of the jurors that will be deciding your case (their guts) rather than their heads. "How do you feel about that" is better than "what do you think about that" is better than "do you agree with that" is better than "that is how it is." Sometimes you'll need to poll the panel on some issue -- "how many of you . . ." -- but that should be a rare exception. Stupid Lawyer Stuff Somewhere lawyers learned to say dumb things like "I take it from your silence that the answer is no." Judges say it all the time. No, you boob, take it from our silence that you asked a bad question, or didn't warm the panel up enough, or otherwise aren't communicating with them. They're not going to like that you assume you know what their silence means, and you're not getting any information out of them by saying that. If you're going to ascribe meaning to their silence, they'll just remain silent and let you assume whatever you want. Imagine being on a first date and asking a question that is answered with silence. What do you do? Do you say, "I assume that the answer is X" and go on with the conversation? If so, the conversation is quickly going to turn into a monologue as your date excuses herself to go to the restroom and never comes back. "Bad" Answers Imagine that you're trying a garden-variety DWI case (no test, no accident). A juror says, "My brother was killed by a drunk driver." Ouch - the rest of the jury panel has just been told that one of them was victimized by a drunk driver, and has been reminded that drunk drivers kill people. How do you respond? The lawyerly way to respond would be to immediately set up a challenge for cause by questioning this potential juror dispassionately about how that experience makes her unable to follow the law. If you do that, even though you are probably going to strike that juror, your defensive response to her will make the others dislike you, and will make it less likely that they will give you any more information. I've seen prosecutors browbeat potential jurors after getting answers they don't like; there's no better way to make the rest of the panel hate you. If you disrespect someone who has said something you don't like, you're not teaching the others to agree with you but rather not to say anything you don't like. You may not hear from the other two people on the panel who have lost loved ones to drunk drivers -- until after they return a verdict against your client. The "bad" answers in voir dire are gifts. What's a better way to respond? If you think of voir dire as a first date, the answer will be plain: You've just heard about a terrible tragedy; acknowledge it: "I'm sorry. That must have been terrible for you." Now you've engaged the juror as a human being; see where that leads. If you want to delve deeper into the subject, ask permission: "can we talk about how that affected you?" The answer will probably be "yes;" if it is "no," give the juror a chance to change the answer later, and move on (you'll probably get another chance to develop cause). If you have the juror's permission to talk about her feelings about this horrifically traumatic experience, treat her with respect and she'll practically excuse herself in the name of fairness. Different sorts of "bad" answers require different responses. For example, if the "bad" answer is "I think the only reason someone would not testify on his own behalf at trial is that he is guilty," you can play that off on other jurors: "That's important. Thank you for telling me that. Who else feels the same way that Mr. Jones does?" If the "bad" answer is "I would testify if I were falsely accused," the response might be: "I know a lot of us feel that way. Can you think of any reasons that the lawyer for the innocent person might choose for him not to testify?" Talking to potential jurors is dancing into the fire. It's easy to talk about, but the only way to learn it is to do it over and over.

Technorati Tags: criminal defense, jury selection, trial, voir dire

Top 10 Criminal Defense Blog

Jamie Spencer is taking a poll on criminal-defense related blogs. I look forward to seeing the results -- I'm sure I'm missing lots of good stuff in blogs that I don't yet know about.

Group Voir Dire

Gideon asks how jurisdictions with group voir dire handle "jurors’ reluctance to disclose sensitive or embarrassing information in the presence of the entire jury panel and courtroom observers." The answer to his question in Texas, where all non-capital voir dire is done in groups (generally of 20 or more potential jurors for a 6-person misdmeanor jury and of 50 or more potential jurors for a 12-person felony jury), is that jurors with sensitive or embarrassing answers to the lawyers' questions are invited to reveal them to the lawyers on the record but away from the rest of the jury. This got me thinking about some of the good things about the way we pick a jury. There are things that we can do in group voir dire that we couldn't do in individual voir dire. For example, in group voir dire we can get people talking by playing the venirepeople off on each other: "Mr. Smith, Ms. Jones says that she will hold it against Joe if he doesn't testify. How do you feel about that?" or "Ms. Brown says that it should be against the law to drink and drive. Who agrees with her? Raise your hands." People will reveal more of themselves if you reveal something of yourself. "Show me yours and I'll show you mine" applies in jury selection. In a group voir dire, it's easy to get people talking less guardedly about their feelings and opinions because they can hear their fellow potential jurors sharing their thoughts and not being laughed at or shunned. Also, with group voir dire it's possible to form a group of the jury and the lawyer (a strategy I learned at the Trial Lawyers' College in 1999). Forming a group is considerably more difficult when the lawyer can only talk with each potential juror out of the others' hearing. A jury trial is sometimes described as a seduction. I say that voir dire is the first date -- an opportunity to tell the other something about yourself, to learn a lot about the other, and to decided whether you want another date. In Texas voir dire is a first date with 24 or 60 people. In individual voir dire states, I suppose it's 24 or 60 first dates. Lawyers practicing in individual voir dire states: what advantages does your system have over group voir dire?

High-Profile Cases

Lawyers love publicity. We all like to get our names in the newspaper. Right or wrong, we think publicity going to get us more business. If we didn't love publicity, we probably wouldn't have chosen this profession. Publicity never hurts the lawyer. But we have a duty to our clients that has to take priority over our love of publicity. Sometimes -- often -- usually -- publicity is not in the clients' interest. If our clients, accused of crimes, have the choice between having their names published in the newspaper and not, they would almost invariably choose not to. As a general rule, the more a case is in the press, the worse it is for the accused. The more press there is, the better-educated the prosecutor will be, the more likely it is that an experienced prosecutor will be assigned to the case, and the less likely it is that the prosecutor will dismiss the case. An ethical lawyer will generally seek to keep any case from becoming high-profile. We've all had those potential clients who call and say "I've got a high-profile case . . .;" on further investigation we see nothing that would create any press interest in the case (I would say that in Houston a case is "high profile" if hits the press on more than three consecutive days, or on more than two separate occasions, after charges are filed). I think that statement, "I have a high-profile case," is wishful thinking -- every case is such a big deal from the client's point of view that they want to believe that it's a big deal to everyone else in the world as well. There are lawyers who advertise that they "specialize in high-profile cases." They have to know know that very few cases are high-profile, and that many people without high-profile cases want to believe that their cases are high-profile. I suspect that this sort of advertising works for them in a couple of ways. It plays into the clients' secret desire that the case be high-profile. Clients who have that desire are -- I suspect -- more likely to hire the lawyer who holds himself out as a specialist in high-profile cases. The potential danger to the client is that the lawyer Of course we all know what the clients don't: that holding yourself out as such a specialist doesn't make it so. I know of only one lawyer whose criminal practice is mostly high-profile cases; he has a large and profitable plaintiffs' personal injury practice, so that the few criminal cases he takes are not a major part of his practice. The rest of us who take high-profile cases when they come to us have lots of ordinary cases. In fact, one thing that we do if we're any good at what we do is to turn potential high-profile cases into low- or no-profile cases so that they disappear from the media and our clients' reputations are preserved.

Schrödinger's Jury

Some of the most nerve-wracking times in my life -- and, I think, in any trial lawyer's life -- are those moments between the jury's signal that they have a verdict (here in Houston, two buzzes on the jury room buzzer) and the reading of the verdict. They're almost surreal moments, in which I know that my client's future has been decided by six or twelve people but don't know for sure what the decision is. In quantum terms, the state of the jury is a superposition of eigenstates: "guilty" or "not guilty." Not until the first consonant of the verdict -- "g" or "n" -- is read does the wave function collapse into one of the two states.

Video and Banquet

No blogging yesterday because I was (a) being interviewed on-camera for 3 hours by a guy from Faces Media to create a few short videos for my website; and (b) preparing for and attending the Harris County Criminal Lawyers' Association's annual banquet, at which I was sworn in as president-elect, I gave the outgoing president a thank-you gift, and I got to introduce our keynote speaker, one of my heroes, a man who should be an inspiration to all who do what we do: Charlie Swift (Wikipedia article). Charlie is the Navy lawyer who fought the government from Guantanamo to the Supreme Court and won. It was his work that led the Supreme Court to tell the government that they couldn't try "enemy combatants" in military tribunals the way they planned to. In addition to Charlie's stirring speech about the fight to preserve the rule of law, we heard from the new president of the organization, Pat McCann (website), who just got back from active duty in the Navy, and talked about servicemembers' recognition that what we do -- preserving the constitution and the rule of law -- is what they are fighting for. We also celebrated the birthday of Richard "Racehorse" Haynes's (Wikipedia article), the dean of the Houston criminal defense bar, and honored Mike Ramsey with a Lifetime Achievement Award. We gave the Gulf Region Advocacy Center (GRACe) our Torch of Liberty Award and awarded Vivian R. King an Unsung Hero Award. HCCLA Vice President JoAnne Musick, former president Troy McKinney (scroll down) and Defender editor Shawna L. Reagin received Member of the Year Awards. A busy, exhausting day of being-a-lawyer-but-not-practicing-much-law (I did have to represent a friend in felony court in the morning). Tomorrow I'm putting on a CLE seminar featuring Charlie Swift as well as Houston criminal defense heavy-hitters Rusty Hardin, Randy Schaffer, and Katherine Scardino (firm web page) and Houston Chronicle reporter Brian Rogers. Onward!

How to End the Witchhunt

Lyndhurst, New Jersey (from the New Jersey Lawyer, the weekly newspaper of the New Jersey State Bar Association):

Lyndhurst is gathering feedback on a proposal to require background and fingerprint checks of all ice-cream truck and other food-on-wheels vendors as a way to protect children. 'Most of the people who come to an ice-cream truck are kids,' says Mayor Richard DiLascio. 'A parent might not always be around.' Volunteer coaches and teachers must already submit to such checks.

Lyndhurst is perpetuating the "stranger danger" myth. The truth is that only 7% of reported sexual assaults against juveniles are committed by strangers (see the Bureau of Justice Statistics 2000 report on Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics at 10). The myth carries the danger that our children, expecting "stranger danger," will be more likely to fall prey to malevolent acquaintances. By the same token, legislating as though the myth is true takes government resources away from other more viable ways of reducing sex crimes against children. Having observed that most allegations (true and false) of sexual misconduct against juveniles involve female complainants, and that most allegations of sexual misconduct against juvenile girls involve an alleged offender in a position similar to a stepparent (usually stepdad or mommy's boyfriend), I thought of a better way for the government to reduce child sexual assault, while at the same time reducing false allegations of sexual assault:

Make it a crime for the mother of a girl under 17 to allow an adult male who is not the child's father to live in the house with the girl, and make it a crime for an adult male to live in the house with a girl under 17 who is not his daughter. They don't have to be serious crimes -- fine-only class "C" misdemeanors, maybe with a maximum $200 fine, are probably adequate.

This will have at least three salutary effects. First, the stigma of committing a crime might keep men from getting involved with women with daughters who might resent their presence (my apologies to those women -- you can't make an omelette without breaking eggs). This itself will severely curtail false allegations of sexual abuse, since such allegations are frequently made by young ladies or girls trying to get the new man out of the house and out of mommy's life. Second, it will also curtail sexual abuse, since those men who might be sexually attracted to youth will be less likely to be placed in positions in which the temptation is overwhelming. Third, when men and women fall in love and live together in defiance of the legislation, it will give the same young ladies a way to punish mommy and stepdad without sending him to the pen. If the daughter is going to get mad enough to call the cops, it's much better that she have a fine-only offense to report than that she invent a sexual assault. If stepdad pays his fine and comes back, and she's still mad, she can report him again and again and make him pay $200 after $200. If he still doesn't get the idea, she might escalate to a false allegation of sexual abuse, but at least the guy will have had a warning shot first.

Terrence MacCarthy and Milton Erickson

Here I mentioned "Yes Mode," which is what master cross-examination teacher (and Chicago Federal Public Defender) Terry MacCarthy calls it when, on cross-examination, the lawyer asks only questions that he knows will lead to a "yes answer;" Terry would say that once a person is in "yes mode" it's difficult for her to say "no." When teaching cross-examination to students, I used to describe "Yes Mode" as building a pyramid -- you start with a broad base of irrefutable facts, build up in progressively smaller layers of facts that follow logically from the facts that the witness has previously agreed to, until you get to the ultimate fact that you want the witness to agree to, and she has the choice of agreeing or appearing unreasonable. As it turns out, there's more to it than just logic. In my blog post, I described the witness's state of mind, in which he continues truthfully saying "yes" even though she would rather deny, argue, or quibble, as an "altered state of consciousness." I learned recently that Terry's "Yes Mode" closely resembles a hypnotic trance-induction technique called the "Yes Set," discovered in the hypnosis field by Milton Erickson. Here's an excerpt from Erickson, Rossi & Rossi's 1976 book "Hypnotic Realities: The Induction of Clinical Hypnosis and Forms of Indirect Suggestion":

The "yes set" is another basic hypnotic form for coping with the limitations of a patient's rigid and negativistic conscious attitudes. Much initial effort in every trance induction is to evoke a set or framework of associations that will facilitate the work that is to be accomplished. . . .

One of Erickson's favorite anecdotes is about a beginning student who discovered the usefulness of the "yes set" in hypnotic induction. The student found himself confronted by a hostile subject who adamantly refused to accept the possibility that he could experience trance. The student, acting on a creative hunch, then simply proceeded to ask the resistant subject a series of 20 or 30 questions all of which would elicit an obvious answer of "yes." All sorts of simple and boring questions such as the following could be used: Are you living at x address? Do you work at x? Is today Tuesday? Is it 10:00 a.m.? Are you seated in that chair? Without realizing it the subject develops a "yes set" and also becomes a bit bored with the situation. At this point the student finally asked again if the subject would like to experience trance. The subject then acquiesced simply because of the "yes set" and his desire to escape the dull circumstance of simply saying "yes" to obvious questions.

I've talked to Terry, and he hadn't heard of Erickson. This appears to be a case of two creative minds independently coming up with the same solution to different problems. (Terry's "Look Good" Cross-Examination method stands in stark contrast to the typical prosecutorial "cross," which involves hurling questions rapidfire at the witness with a sarcastic sneer, and then ignoring the answers. Terry's seven-CD set of cross-examination lectures is available from HCCLA. Email sales at hccla dot org.) UPDATE: Listen to the first track of the Terry MacCarthy CDs here. Download the order form here.

Technorati Tags: cross-examination, Terry MacCarthy

"Faith-Based Science"

In the May 7, 2007 New Yorker's Annals of Law column, Jeffrey Toobin writes about "The CSI Effect", focusing on the hair and fiber analysis performed at the NYPD crime lab. In what I consider the highlight of the column, Arizona State professor of law and psychology Michael J. Saks says:

There are really two kinds of forensic science. The first is very straightforward. It says, "We have a dead body. Let's see what chemicals are in the blood. Is there alcohol? Cocaine?'" That is real science applied to a forensics problem. The other half of forensic science has been invented by and for police departments, and that includes fingerprints, handwriting, tool marks, tire marks, hair and fibre. All of those essentially share one belief, which is that there are no two specimens that are alike except those from the same source. . . . There is no scientific evidence, no validation studies, or anything else that scientists usually demand, for that proposition--that, say, two hairs that look alike came from the same person. It's the individualization fallacy, and it's not real science. It's faith-based science.

I'd always wondered how fingerprint examiners could possibly assert with a straight face that no two people have the same fingerprints. Now I understand: it's a matter of faith.

HCCLA Merchandise

I designed these limited-edition window stickers. 4" X 4" on vinyl. $5.00 each from HCCLA. (It's for a worthy cause.) Email sales at HCCLA dot org.

Prison Article

Andrew Papke, serving two consecutive 20-year sentences for intoxication manslaughter, has a very moving article, I Know Why the Caged Bird Screams, about the Texas prison and parole system, in the Texas Observer this week.

Another Common Ethical Violation

Yesterday Gideon blogged here about trial lawyers trying to help the government defeat their (former) clients' habeas claims. "Occasionally," he writes,

I will try habeas corpus cases. Some of them will be challenges to pleas, enforcement of plea agreements and then the usual ineffective assistance claims. What really grinds my gears is the lack of co-operation from trial counsel. It seems as though there is a certain percentage of attorneys that don’t like it when their former clients file petitions for writ of habeas corpus alleging IAC.

The he goes on to ask, "Why? Isn’t it supposed to be about the client? Isn’t that the bottom line?" I've often seen it happen that lawyers faced with allegations of ineffective assistance go out of their way to help the state keep their clients in prison. Sometimes they'll violate attorney-client privilege by signing an affidavit prepared by the state before they have been ordered to respond to the allegations. This practice -- lawyers resisting helping their clients get post-conviction relief -- fits into the same category as lawyers making records against their clients. In fact, once I saw a twofer of those two violations when a "lawyer" in Victoria County filed confidential documents harmful to his client in the court's public file "in anticipation of a federal writ" (I expect that the grievance committee will be contacting that "lawyer" some day soon). The answer to Gideon's "why?" is "ego." Many lawyers see an allegation that they made a mistake as a personal affront. Their self-image is so tied up in their attainment of error-free perfection as lawyers that anything that reminds them of their feet of clay is a threat to them. They respond to the threat defensively. The truth is that we all make mistakes. We may think we didn't make a mistake in a particular case (or we may think we might have, and be afraid that someone is going to punish us for it) but the truth, of course, is that it is about the client; that is the bottom line. A client who alleges that his lawyer screwed up isn't trying to hurt the lawyer; he's trying to save himself. The lawyer's job, when faced with allegations of ineffective assistance, is to remember that it's about the client, take a breath, smile, and respond as helpfully as possible to the client's allegations. The task is to tell the truth; if the truth can be told in a way that helps the client, so much the better.

Technorati Tags: ethics

Quote of the Day

Imagination is more important than knowledge. -Albert Einstein

State Constitutions

Last week Texas's Waco Court of Appeals issued an opinion in Peña v. State holding that a defendant does not have to show bad faith to establish a due-course-of-law violation when the State destroys potentially exculpatory evidence. In doing so, the Waco Court (an intermediate appellate court with criminal and civil jurisdiction) applied the Texas Constitution's Due Course of Law Clause to give more protection than the U.S. Constitution's Due Process Clause. The Peña case illustrates the good that can come of being familiar with your state constitution and arguing its provisions in addition to those of the U.S. Constitution. (I blogged about the greater protection the Texas Constitution gives religion here.) The Peña case also illustrates the importance of each state's constitutional jurisprudence on the others: in reaching its conclusion the Waco court followed 12 other states -- Alabama, Alaska, Connecticut, Delaware, Hawaii, Idaho, Massachusetts, New Hampshire, New Mexico, Tennessee, Vermont, and West Virginia (cites) -- that refused to apply Arizona v. Youngblood's "bad faith" requirement for due process violations

Plain English

I like to write my pleadings in plain English. My goal is generally to write motions (and proposed orders) so that Lynn Hughes would not find reason to mark them up (which he tends to do). For example, a Motion to Y:

{Style of Case} {Title of Motion} Judge X,

Please Y because Z.

Thank you, Mark Bennett.

An attorney-and-counselor-at-law (someone who calls himself ". . . Esq.") might begin:

{Style of Case} {Title of Motion}

To the Honorable Judge of Said Court:

Comes now D, the defendant in the above-entitled and -numbered cause, by and through his attorney of record, and respectfully moves this honorable court to Y.

In support thereof, defendant would show that Z.

Wherefore, premises considered, defendant respectfully requests that this court Y.

Respectfully submitted, . . .

By my count, 33 words, most of them meaningless or redundant or both, passed before we even found out what Y was -- compared to three words in my motion. I've never had a judge take exception to my plain-English motions . . . until last week, when a federal judge conveyed the message to me, through her court coordinator, that future motions should be "in the form of motions." "You mean with 'comes now' and 'wherefore, premises considered?'" I asked. "Yes. I can send you a sample if you like." I laughed. "Thank you; that won't be necessary." I know how attorneys-and-counselors-at-law write; I don't write that way because verbal folderol is generally a barrier to communication. With this judge, I will use the folderol because its absence apparently impedes communication with her. Weird, huh? To make the medium match the language, I'd write my motions with a goose quill on vellum. But this judge's district only accepts documents filed electronically.

How to Stifle Creativity

One of the distinguishing characteristics of the creative childlike mind is the ability not to suppress the ideas that are unpopular or unsuccessful. Eminent First Amendment lawyer Jon Katz brings us this tale of an Illinois high school student who is being prosecuted for following his teacher's instructions to "Write whatever comes into your mind; Do not judge or censor what you are writing.” (His teacher was shocked by what he wrote; she reported it to her department head, who reported it to the monumentally stupid principal, who filed disorderly conduct charges.) Jon sees it as a First Amendment problem; it is that. I see it as an attack on a young man's creativity. Although it may be good preparation, perhaps for Marine Basic Training, we should expect better from our schools.