Free Legal Advice

I'm not the only one giving away million-dollar legal advice. Stephen Gustitis blogs here about what to do when you're arrested, and Scott Greenfield follows up here with his thoughts, including why peoplr spill their guts after demanding a lawyer:

This may be the gestalt need to explain oneself, by adding something like "I'm in enough trouble already and I don't need to make it worse by talking to you about the crime." Or this may be the mistaken idea that by uttering the magic words, they get a free pass on whatever comes next, so they then spew a total confession (or worse yet, some smart-alec version) thinking that the cops can't use it because they invoked their right to counsel.

I wrote here about what happens when criminal defense lawyers' best advice is followed. Scott also guesstimated that 30% of defendants "sink themselves with their own mouths when they could have beaten the case if they had just remained silent." My impression is that the number is much higher. But more importantly, consider this: 0% of defendants sink themselves by not talking to the police. Because of the much higher cost of living in New York, incidentally, what would be million-dollar legal advice in Houston would cost you $2,315,389.77 up there.

Technorati Tags: criminal defense, interrogation, advice, remain silent

Federal Cases: "But I've Never in Trouble Before"

When my federal criminal defense clients and I are discussing the possible punishment (using the sentencing guidelines as, well, guidelines) that they might receive if they are convicted, they are often shocked. The sentences seem severe for first-time offenders. "But Mark," they often say, "I've never been in trouble before. Can we get the sentence reduced because I've never been in trouble before?"

The sentencing guidelines presume that the person being sentenced has never been in trouble before. So, generally, do the statutory minimums. When we say that the statutory minimum for possession with intent to deliver more than five kilograms of cocaine is ten years, we are saying that the appropriate penalty for somebody who has never been in trouble with the law -- indeed, has never broken the law -- until becoming involved in a smallish cocaine conspiracy is ten years in prison, regardless of his role in the offense.

There are two narrow circumstances in which a person convicted of a 5-plus kilogram cocaine conspiracy in federal court can avoid the ten-year statutory minimum. The first is to cooperate with the goverrnment, providing "substantial assistance" (and only the government gets to decide what substantial assistance is in a particular case).

The second is to qualify for the "safety valve." An accused in a drug case may be eligible for the safety valve if:

(1) she does not have more than 1 criminal history point;
(2) she did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) she was not an organizer, leader, manager, or supervisor of others in the offense and was not engaged in a continuing criminal enterprise (as defined in 21 U.S.C. § 848); and
(5) not later than the time of the sentencing hearing, she has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan. 18 U.S.C. § 3553(f) and U.S.S.G.M.§ 5C1.2.

The two effects of safety valve eligibility are (1) that the statutory mandatory minimum does not apply; and (2) that the accused receives a two-point downward adjustment to her sentencing-guidelines offense level. (A two-level downward adjustment is generally about a 20% sentence decrease.)

So the draconian sentences of the federal statutes and sentencing guidelines are for people who have never been in trouble before. People who have never been in trouble (at least, not serious trouble -- a single conviction with a less-than-six-month sentence gives a person one criminal history point) before and satisfy the other four safety-valve criteria might shorten their sentences a bit, but the tenor of the federal sentencing guidelines and statutes is that people who have been in trouble before get longer sentences. Criminal history is punished; a lack of criminal history is not rewarded.

Technorati Tags: conspiracy, criminal defense, federal, guidelines

A Criminal Case is a Lawsuit in which the Government is Suing a Person

I talked here about the beginning of an understanding of the American criminal "justice" system, the principle that "legal" doesn't mean "right" and "illegal" doesn't mean "wrong. After "illegal ≠ wrong," the next principle that needs to be recognized for an understanding of the American criminal "justice" system is this:

A criminal case is a lawsuit in which the government is suing a person.

The idea is that every crime is a crime against the government. In Texas, for example, all charging instruments allege that the offense was committed "against the peace and dignity of the State." This idea -- that a crime is an affront to the crown, and that it must be punished by the crown's men -- is as ancient as the common law. If one person injures another and the government doesn't think that a law was violated, the government won't sue the person who caused the injury. If the government thinks that person violated the law, it will sue the person even if nobody was injured (most crime fits this pattern). The person allegedly injured in a crime is a witness (commonly the "complaining witness"). In the government's lawsuit against some other person, the prosecutor represents the government, and nobody else.

Technorati Tags: definitions, the system

Right v. Wrong

An understanding of the criminal "justice" system has to begin with this:

The criminal "justice" system is not about "right and wrong."

"Right and wrong" and "legal and illegal" are entirely separate concepts. "Right" and "wrong" are moral terms, not legal terms. The fact that something is illegal does not make it wrong, and the fact that it is legal does not make it right. (Flipping those two propositions, the fact that something is right does not make it legal, and the fact that it is wrong does not make it illegal.) Something that is wrong and illegal does not become right if it's decriminalized. Something that's right and legal doesn't become wrong if it's criminalized.

Technorati Tags: criminal defense, definitions, philosophy, the system

Who Are You Helping, and Who Are You Hurting?

Today an anonymous prosecutorial commentor wrote, in the comments to my Support the Troops -- Acquit a Vet post (and directly in response to my saying, "I'm not worried about people losing faith in the criminal justice system. Anyone who has faith in the criminal "justice" system is either on the government teat or oblivious":

Do you not accept or recgonize views alternative to your own? It's yoru blog, so of course you can say what you want. Like my Dad always says "it's America" Let's say you have a violent offender who has robbed and seriously injured someone to the point they had to go to the hospital or someone who has violently raped another person. Extreme examples, but bear with me. In your world view what would you like to see happen? You have victims who want justice, retribution, what have you. Do we go back to the Old West and round up a Posse to go after the offender? Do we resort to vigilantism and let things work themselves out? We have laws going back to Moses on the Mount, that state how we should interact with one another. Assuming you think that laws are a good thing, should they not be enforced? Understand I'm not talking about drugs, DWI, etc. I'm talking about my examples.Those victims deserve a fourum and the right to be heard. They have an expectation that the person who wronged them will be held accountable. That doesn't make them oblivious. Whether the jury finds them guilty or aquits, they're still doing their duty, it's still Justice.

I recognize and accept that some people have faith in the criminal "justice" system. But they're mistaken. It's a crappy system that's designed to cause people pain. Do you suppose that those victims who want retribution (their idea of justice) feel that justice has been delivered when (because of police or prosecutorial error, for example) their attackers go free? The criminal "justice" system is not there to provide a forum -- or anything else -- to the victims. Witness how often the wishes of complaining witnesses are disregarded by proescutors. If it happens that the criminal "justice" system satisfies some need of some human being, it's mere coincidence. Anyone who expects it to do so or has faith that it will doesn't understand the system. Clarence Darrow said:

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves -- whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

I suppose that if I had to be a prosecutor I would have to believe that people can know what justice is. I would further have to believe, hubristically, that I knew who should be "held accountable" for what transgressions, and how. The prosecutorial venture would seem entirely hollow otherwise. But -- thank God I'm a defender -- I know that Darrow was right. In a perfect world, I would want to see a criminal justice system based on restoration -- making whole the people who are hurt -- rather than retribution. In such a system I could comfortably operate on either side, working to heal victims as well as offenders. But that's not the system we have. On Monday Scott Henson (Grits for Breakfast) wrote about Howard Zehr's talk to the Restorative Justice Conference in Kerrville. It's a thought-provoking post. The highlight that is relevant to this discussion follows:

In many ways, said Zehr, the current criminal justice system denies victims almost everything they need. He quoted Judy Herman saying that if you set out to design a system to create post traumatic stress for a victim, you couldn't do better than a court of law. This theme was repeated in other conference events so far - that the court process places unfair demands on victims that exacerbate their emotional response to crime instead of help them.

So not only does the criminal "justice" system cause pain to the people it's designed to hurt (the accused) but it also causes pain to the people for whose sake you would cause the pain. Anyone who rationalizes putting people in prison because it somehow helps the victims is deceiving himself.

Technorati Tags: criminal defense, philosophy, prosecutors

Us v. Them: A Prosecutor's Perspective

A prosecutor who wishes to remain anonymous has this to say in response to my Us v. Them II post of last week:

I do think that Mckinney's statements were too harsh, especially the part about how ADA's prosecute the innocent. Currently, I only deal with robbery cases and violent serious assaults. Regardless of the outcome, there are no real winners. Some of the cases involve "real" victims, People who have been wronged in some way. When we (ADA's ) go to trial, we are saying that you will be held accountable for your actions. Does that mean that all defendants are evil wicked people who can never repent? Of course not. It means that you have to follow the rules of society like everyone else. Everyone deserves to be safe in their home or to be safe while they're walking down the street. We don't prosecute the innocent. I have never gone to trial on someone I thought was not guilty. That is an important statement. It doesn't mean I think everyone charged is guilty. Our elected D.A. gives us wide discretion in how we handle cases. I have dismissed plenty of cases b/c the evidence wasn't there to proceed.

So there.

Technorati Tags: philosophy, prosecutors, nonsense, the system

Occam's Razor in the Criminal Courthouse

Occam's Razor (Wikipedia) is the principle that, all things being equal, the simplest solution tends to be the best one. Occam's Razor suggests how a case should be defended (as simply as possible -- see Scott Greenfield's "The KISS Principle" post prescribing a "surgical" approach to defending criminal cases); it also can help predict how successful a defense will be. When you have a criminal case to defend, every piece of evidence will fall into one of three categories:

Things you contest ("no . . ."); Things you explain ("yes, but . . ."); and Things you accept ("so what?).

For example, an alleged witness says that she saw your client at the scene of the crime. You can contest this (challenging the witness's credibility and presenting alibi witnesses to say, "No, he wasn't"); you can explain it ("Yes, he was there, but not for the reasons the State supposes); or you can accept it ("Yes, he was there. So what?"). Another example: the complaining witness in a murder case is dead of a gunshot wound. Perhaps you could contest it (showing that something else might have killed him before he was shot); you could explain it ("yes, but he killed himself") or you could accept it ("Yes, he was shot to death. So what?") At its simplest, the defense of a criminal case involves only acceptance of the facts: "Yes, everything the witnesses said is true. But so what? That's not proof beyond a reasonable doubt." These cases come up often -- usually because the State makes unwarranted assumptions about what the law requires. For example, Weed in the Car cases are often pure "so what?" cases. Every contest and every explanation, however, complicates your case. Complicating your case is not desirable (per Occam's Razor and Greenfield's Hello Kitty Safety ScissorsKISS Principle). So we can amend the list. Now every piece of evidence falls into one of these three categories:

Things you have to contest; Things you have to explain; and Things you can accept.

Whether you have to contest or explain a circumstance depends on the facts of the case. Some things can never be accepted. For example, an "eyewitness's" testimony that the accused committed the crime must be contested. The ultimate circumstance that requires explanation is the fact that the defendant has provided the government with a recorded confession. When the accused, informed of his right to remain silent, persists (against my Good Advice) in baring his soul to the police interrogator on videotape, that is a circumstance that can sometimes be contested (for example, by challenging its voluntariness) and rarely can be accepted; most often, though, the only course to take is to explain it ("here's why the accused gave a false confession"). In keeping with the "cutting implements" theme, then, here is Bennett's Chainsaw:

The more things you must contest and the more explanations you must provide in order to mount a defense, the more likely it is that you will be convicted.

Technorati Tags: criminal defense, strategy, trial

Support the Troops -- Acquit a Vet

The lead story in the Houston Chronicle this morning was this: Mayor White Mobilizes Aid for Texas Veterans. "One in 11 soldiers wounded in Iraq and Afghanistan," begins the article, "is Texan." (Texas and Washington have lots of servicepeople because they have no income tax.) Unless Texas soldiers are particularly injury-prone, this probably means that one in 11 soldiers serving in Iraq and Afghanistan is Texan, one in 11 soldiers suffering from PTSD is Texan, and one in 11 soldiers suffering from traumatic brain injury (TBI) is Texan. Practicing criminal defense law in Houston, I've represented many soldiers and Marines, both active and veterans. These folks, many of whom have suffered grievous visible and invisible injuries upholding their oath to defend the Constitution, are harshly treated by many in the criminal "justice" system. Some of the jurors who deal most harshly with our servicemen claim to "support the troops." It has occurred to me that some who say they "support the troops" what they mean is that they "support the government," and that this support for the government carries over to a jury trial, in which they are happy to go along with whatever draconian measures the government proposes. "The troops" are not some vague concept that you can support by punching out the right hole on the ballot or listening to the right radio station. They are human beings who put their lives on the line for your safety and freedom. Here's a suggestion: have some compassion for them. Cops, if you pull a serviceman over after he's had a few drinks between tours, think about giving him a ride home instead of to Central Intox. (In fairness to the cops, many of them are veterans, and if a serviceman is going to catch a break anywhere in the criminal justice system it's before the DA accepts charges. There are a few prosecutors who are veterans, but life experience of any kind, including military service, is not in the typical prosecutorial career path.) Prosecutors, if a soldier with two tours in Iraq behind him and one ahead is in a car with a couple of guys and some dope, ask yourself whether it makes sense to charge him (and make him hire counsel to fight the charges) or whether it makes more sense to conclude that he was an innocent bystander. Judges, try to wrap your minds around the idea that TBI and PTSD can cause changes to the personality of an injured person so that he makes "choices" that he wouldn't have made before his brain got bruised. Jurors, if a Marine, trained at your expense and for your benefit and sent to Southeast Asia to kill, is caught carrying a gun where the law says he probably shouldn't, consider stretching the law of self-defense to its limit to cut him some slack. With TBI (the signature wound of the Iraq war) and PTSD becoming increasingly common and remaining poorly understood by lawyers, judges, and jurors, if we don't have some compassion for servicemen caught up in the criminal "justice" system their future will be pretty bleak.

Technorati Tags: PTSD, TBI, veterans

How to Choose a Criminal Defense Lawyer

Today Avvo has a post today entitled Lost. Avvo categorizes the post as "How to Choose a Lawyer," but it's really about Avvo's research into people's experiences hiring lawyers. Among other things, Avvo asserts that

Over the past two years, 25 million Americans were faced with a situation in which they considered hiring an attorney, but they didn’t because they didn’t know how to choose one.

I'm pretty sure this doesn't apply to criminal defense lawyers. People who "consider" hiring defenders figure out how to do so. Avvo's Lost post refers to Scott Greenfield's "Good Questions Coming from the Avvo Debate" post. In that post Scott describes several methods of choosing a defender:

Referral from friend; Personal appointment; Referral from another lawyer; Price shopping.

Scott describes the problems he sees with each of these methods of choosing a lawyer. Those of you who have read my blog or my websites know that I advocate the second method -- personal appointments -- as the best way to choose a criminal defense lawyer. Scott is concerned that clients using this method might choose either the "nice" lawyer or the lawyer who tells them what they want to hear. I have always advised potential clients to talk to as many lawyers in the relevant community (for example, Houston criminal defense lawyers, or Texas criminal defense lawyers, or federal criminal defense lawyers) before deciding who to hire. I further advise them to take along to the interviews a friend or loved one whose opinion they trust. "Likeability," says Scott, "bears no connection to the lawyer's skillset." I disagree. Likeability bears a great connection to the lawyer's skillset -- criminal defense trial lawyering is about communication, and better communication skills make a person more likeable. If all else is equal, an accused is going to do better in a jury trial with a lawyer that the jury likes than with one that the jury doesn't like. More importantly, though, I believe that potential clients can easily be taught to focus not on likeability but on trustworthiness. Potential clients focused on trustworthiness will not hire glad-handing lawyers who "seem nice" but don't have the heart, brains, or backbone required to do the job. If the potential client goes into each interview asking, "do I trust this lawyer," the lawyers who are obviously saying what the customer wants to hear won't make the cut. I have great confidence in the ability of people working together to tell who is shooting straight with them. While one person (especially one frightened person facing criminal charges) may get snookered by a snake-oil selling businessman, two people working together are much less likely to make the same mistake. The probability of that mistake is lessened even more when lawyers are placed in contrast. I would bet that two people working together and talking with three or four different lawyers will hire the guy who's best for the accused. I've been hired many times to replace lawyers who were recommended to the clients by their friends or by other lawyers, or who were the low bidders, but I've never been hired to replace a lawyer chosen by someone who took the effort to interview several candidates before hiring counsel. This method may not be foolproof, but it's the best method there is. I'm such a believer that this way of choosing a criminal defense lawyer is best for the clients that I've suggested to potential clients that they go and talk with two or three other lawyers before deciding whether to hire me. I'll even give the names of two or three good lawyers to potential clients if they ask. I take this very seriously -- I'm not going to recommend people who I don't think could do a good job. Avvo seeks to rationalize the process of hiring a lawyer by collecting the available data about all lawyers, but there is no amount of data that anyone could possibly give an accused that would tell her who the right lawyer is for her case. Hiring a criminal defense lawyer is, and always will be, a leap of faith. Potential clients are better served by resources teaching them how to select a lawyer than those that purport to tell them which lawyers are better than others.

Technorati Tags: choosing a lawyer, criminal defense, lawyers

Good and Bad Voir Dire II

A commentor to my May 13, 2007 Bad Voir Dire / Good Voir Dire post wrote:

I'm a prosecutor, but those were good points. I'll try to implement them in my next trial.

I suspect that part might have been intended as a friendly jab. The fact is, though, that I'd rather try a case against a prosecutor who can perform a more-competent-than-usual jury selection. What lawyer wouldn't want to get more information from the panel, and have the panel more warmed up, before he stands up and starts to talk to them? My prosecutorial friend also wrote:

Do you think it's wise to ask the jury can they think of any reason why the defense lawyer may not want his client to testify? What if they say "Because he has a record"?

I think he might not get the point of "bad" answers. I would ask a question in return: what if the defense lawyer doesn't ask the panel for reasons the defense lawyer might not choose for his client to testify? Does the fact that none of the potential jurors are given the chance to say "Because he has a record!"; mean that they aren't thinking it?

Technorati Tags: criminal defense, trial, voir dire

PDs Better than Appointed Counsel

More ammunition for those fighting to replace ad hoc counsel appointment systems (like Harris County's) with properly-organized and funded public defenders' offices: Gideon calls our attention to Princeton University student Radha Iyengar's analysis of the relative performance of federal PDs and lawyers appointed to federal cases under the Criminal Justice Act (CJA). The result of the apples-to-apples comparison (indigent defendants were randomly assigned a PD or a CJA lawyer) should come as no surprise to federal criminal defense lawyers: federal PDs get better results for their clients than ad hoc appointed counsel.

Technorati Tags: criminal defense, federal, public defenders, CJA

The Other Costs of a Guilty Plea

I wrote here about the implicit cost-benefit analysis involved in deciding whether to plead guilty or proceed to trial. As I noted, describing this analysis in mathematical terms is an approximation of a vague and fuzzy calculus. There are other ways to describe the plea-or-trial decision-making process. One is as an commercial transaction: when an accused pleads guilty she gives up one thing in exchange for another. What she receives is certainty -- she knows what she will be convicted of, and what the penalty will be. In exchange, she gives up the chance of a better outcome at trial. When she sees herself receiving more value than she has to give up, he will rationally plead guilty. Often the outcome with a plea agreement is better than any outcome but an outright win at trial. For example, if the minimum sentence after a conviction is 25 years and the State offers 15 years, the only way to get a better result at trial is to win the whole case. (According to a coldblooded cost-benefit analysis, an accused who expects to get 25 if he loses at trial shouldn't give up more than a 40% chance of winning the whole case in exchange for a 15-year sentence.) But there is much, much more given up by the person who pleads guilty. She always gives up:

Her right to a jury trial; Her right to remain silent; Her right to confront the witnesses against her and have her lawyer cross-examine them;

She also generally gives up:

Her right to fight illegal police activity under the Fourth, Fifth, and Sixth Amendments (searches, seizures, arrests and interrogations); Her right to appeal; Her right to complain about the way she was charged; and Her right to complain about the unconstitutionality of the law.

She often also gives up her right to keep and bear arms; some prosecutors would even say that she gives up her right to know about the exculpatory evidence -- the evidence in her favor. "Fine," the accused might say, "I understand all of this, but all that matters to me is the outcome that I get." She might argue that the only value her constitutional rights have is that they might help her avoid or reduce a sentence. I would disagree. When Americans have fought and died for "freedom," they weren't dying for our rights to shop at Wal-Mart or drive a Hummer or feel safe, but for the rights secured by the Bill of Rights. They did so not so that the accused would go free, but so that she would have those rights. Why? Because these rights have inherent value. Because life is better in a country where the government has less power. The more cavalierly we treat our rights, the more likely we are to lose them forever. If the police search your home illegally and you give up your right to fight it, they are more likely to search my home illegally. If the State files weak charges against one person and he gives up his right to make them prove those charges to a jury, the State is more likely to file such charges against others. If I'm accused under an unconstitutional statute and I give up my right to have the courts review its constitutionality, the State will more likely use that statute against you. (If, on the other hand, everyone charged with a crime demanded a jury trial, the system would shut down until the State stopped arresting and charging all but the most deserving.) To plead guilty an accused has to give up rights for which American men and women have died for more than 230 years. By giving up these rights for herself she weakens them for all of us. This is not to say that those rights should never be surrendered (though that would be a great rule if everyone could follow it), but rather that those rights should be valued for more than their mere utility. Some of our clients (let's face it) are where they are because they let their own direct self-interest lead them to do things that weren't right. Maybe this would be a good place for them to start thinking about others.

Technorati Tags: bill of rights, criminal defense, philosophy, plea bargaining, guilty plea, trial

Good Fees Make Good Lawyers

Stephen Gustitis and Robert Guest blog about lawyers' fees. Robert writes, "The more you charge the less clients you get. However, those clients get personalized service and better reperesentation. Never compete on price. Compete on quality and service." I agree -- in part. I blogged here about ethical fee-setting and the idea that it might be unethical for a lawyer to charge too little to an accused. Stephen quotes Scott Greenfield: "The only way to defend from a position of strength is to think 'outside the box' to find innovative approaches that relate to the specific set of circumstances for each defendant." Stephen adds, "To 'think outside the box' the criminal defense lawyer needs time. The fewer cases he handles at a premium fee, the more time the lawyer has to address specific client needs." What the accused is paying for when she is hiring a criminal defense lawyer is, in large part, creativity. All else being equal, the creative lawyer is going to win more cases than the inside-the-box lawyer. I blogged about creativity in criminal defense practice in these posts: A Childlike Mind; More on Creativity; and Lawyers Doing Nothing. I disagree with Robert, however, in his implicit characterization of the relationships among criminal defense lawyers as "competition." If I think that a potential client will be better served by hiring a lawyer elsewhere, or even another Houston criminal defense lawyer, I will refer the accused to that lawyer. If I think that a potential client might be better served by hiring another lawyer playing on my level, I have no qualms about suggesting that the potential client talk to that lawyer before deciding whether to hire me. It's not a question of who is the better lawyer, but rather of who is the better lawyer for that client on that case. I believe that every accused should have the best lawyer for her case, even if I am not that lawyer. I compete against the adversary -- the government. Among the criminal defense bar, I don't have competition; I have colleagues.

Technorati Tags: criminal defense, fees

Something to Look for in a Criminal Defense Lawyer

This morning (Sunday) a friend called me; one of his friends had gotten himself arrested in Austin, Texas last night. I told him I would look into the matter. I looked up fellow blawger Jamie Spencer's phone number, and dialed it. Jamie answered the phone himself. Friends, I know that you like to have your receptionists and secretaries answer your phones for you. I know it makes you feel important. I know it makes you feel efficient. I know it helps you avoid the unpleasant feelings you sometimes get from talking to the people who are paying your bills. But when I have a client who needs a referral in Travis County, out of the 143 members of the Austin Criminal Defense Lawyers' Association I will choose the one guy who I know answers his own phones on Sunday morning. And I'll bet that most clients feel the same way.

Technorati Tags: choosing a lawyer, criminal defense

A Prosecutor Wins Despite Himself

Do you doubt that prosecutors don't have to be brilliant to win trials? Check this out:

Oh, and the prosecutor had a PowerPoint for his closing arguments. His closing arguments, frankly, annoyed me so much they made me want to acquit. It was really, really bad, but not surprising, considering that in his opening statements, we got a riff on "stop asking questions of the government, so we can keep you safe!" The prosecutor was probably one of the main factors that made me want to find the guy not guilty - but when we sat and went through the evidence, I got over it.

I feel for the prosecutor . . . and for the defender. Ouch.

Technorati Tags: jury trial, prosecutors

One Thing NOT to Look For in a Lawyer

The existence of silly website Avvo.com has raised the excellent question of how people are to choose lawyers, if they can't reliably do so based on Avvo's 0-10 ratings (and they can't). Scott Greenfield blogs about some ways to choose a lawyer. I'll write more about the best way to choose a lawyer (specifically, a criminal defense lawyer) soon, but for now I call your attention to the dangers of hiring a lawyer who dabbles. Here is a post from a guy, Travis Corcoran, who got a threatening phone call from a lawyer, Robert Tourtelot. Copyright law was the context). Corcoran, who is in the business of renting out how-to videos, knew more about copyright law than Tourtelot, and knew it. He explained to Tourtelot why the lawyer was wrong. There was more back and forth, but eventually Corcoran sent an email to Tourtelot's client, saying in part:

Your lawyer's website says that he specializes in "real estate law" and "personal injury" law, among 12 different areas of expertise. Nowhere does he list copyright law. A bit of well-intentioned advice: 1) in my experience, no lawyer who does real-estate law is top notch. 2) any lawyer who claims 12 areas of expertise has ZERO areas of expertise. 3) if you have copyright concerns, you want to deal with a lawyer who does copyright, copyright, copyright, and nothing but copyright. A good copyright lawyer would have told you during the free phone consultation that renting out DVDs is deeply settled law, and is fully legal. I hope that Mr. Robert H. Tourtelot doesn't charge you too much, If you're going to be in the business of producing copyrighted work, you really want to find a halfway decent lawyer.

(. . . and if your freedom is on the line, you really want to find a lawyer who is at least 80% decent.) There are lawyers who hold themselves out as practicing criminal defense as well as other sorts of law. If the practice is 80% criminal defense and 20% personal injury (or family law, or probate, or whatever) -- in other words, if the lawyer is dabbling in the other field of law, the lawyer might be dedicating enough effort to remain on the cutting edge of defense. If the proportions are reversed and he's dabbling in criminal defense, he's not. "Any lawyer who claims 12 areas of expertise has ZERO areas of expertise" is excellent advice; any truthful experienced lawyer will tell you that this is true. It is very hard work for a lawyer to keep up with all of the advances in one area of law; it would be difficult to do so in two complementary areas of the law, and damn near impossible in three or more. . . . Which brings us back around to Avvo's silliness. If you search for criminal lawyers on Avvo, a lawyer whose practice is 20% criminal defense gets the same rating as a lawyer whose practice is 100% criminal defense. (The exchange between Corcoran and Tourtelot also provides a couple of object lessons in the dynamics of the internet. First, something you say to a stranger might be spread around the world in minutes -- here, Tourtelot calls Corcoran out. Second, it is extremely easy for someone (here, a non-client) to destroy a lawyer's internet reputation. Don't believe me? Google "Attorney Robert Tourtelot". Granted, Tourtelot gave Corcoran a lot of help in destroying his online reputation.)

Technorati Tags: choosing a lawyer

The Guilty Plea Cost-Benefit Analysis.

As defenders, we often have to help people decide whether to plead guilty or proceed to trial. Sometimes the question can be simplified to this: how does the assured outcome of a plea compare to the accused's punishment if we do not, multiplied by the proability that we will not? If the probability of prevailing at trial is 50% and the punishment if the accused loses will be 10, then the accused will rationally accept a plea resulting in punishment of less than 5. I use numbers without units -- "10," "5" -- for the punishment because factors other than the length of the sentence might affect the severity of the punishment. Different punishments might have subjective costs to an accused that are not directly proportional to the length of the sentence. For example, to an accused who is in very poor health there might not be any perceptible difference between two years in prison and twenty -- either might be a death sentence. Similarly, the damage done to an accused's reputation by the mere fact of a conviction may be so great that the possibility of more jail time is of relatively little importance -- a conviction with probation might be a 9 and a year in jail might be a 10. To some accused of capital murder, a death sentence might seem preferable to life in prison with no hope of parole. Of course, all of this is a clear approximation of what is in reality a vague and fuzzy calculus. Only the accused can make the decision whether to plead guilty or not. The lawyer's job is to give the accused as much information as possible to allow her to compare the consequences of a plea with the the likely outcome of a trial and make the decision that is best for her. At least one of these numbers -- the probability -- is generally no better than a guess based on the lawyer's experience and intuition. The same is also true in most Texas state cases of the potential punishment after trial. The costs of the various potential punishments can only be determined by the accused, but the lawyer can educate her about the collateral consequences (immigration, employment, and so forth) as well as better explain the direct consequences of any hypothetical outcome. There is a good argument that other considerations than the self-interest of the accused should enter into the plea / trial decision; I'll write about that argument soon.

Technorati Tags: criminal defense, guilty plea

Avvo III

An anonymous commentator said the following about my recent More on Avvo post:

1. You seem to be saying that because Avvo cannot replace the best possible method (live, face to face interviews and comparisons) of choosing one particular kind of attorney (criminal defenders) that it therefore has no value at all. What about people who need a lawyer but, for whatever reason, can't avail themselves of that optimal method of choosing? Does the part really speak for the whole that strongly here? 2. Interestingly, you also suggest that whether a defendant is found guilty or not guilty depends pretty much wholly on who the defender is. Doesn't the available evidence in the case have anything to do with the outcome? Doesn't this part speak for the whole at all?

First, I'd like to point out that as long as I remain one of only two Houston criminal defense lawyers with a 10/10 rating on Avvo, it's not in my self-interest to criticize the system. But the truth is the truth. I wouldn't say that Avvo has no value -- any website that brings data from disparate sources together into one place has value -- but that its rating system has no value in choosing criminal defense lawyers (the lawyers with whom I'm most familiar). The numerical data that go into the ratings -- number of papers, number of speeches, number of honors, and so forth -- have nothing to do with how well a criminal defense lawyer will represent you in court. Garbage in, garbage out. People who can't choose a lawyer the right way should do the next best thing: interviews with as many lawyers as they can stand over the telephone. There may be some other area of the law -- transactional law? -- for which Avvo's ratings are useful, but I don't know what it is. In any case, the rating system that works for lawyers who write contracts or appellate briefs won't work for lawyers who stand up for the accused in court. Lawyers are not fungible. As to the second point: Yes, you might lose your freedom or your life with the right lawyer as well. Three things (and only three things) matter to the outcome of a criminal case: your facts, your lawyer, and your luck. You can't change your facts or your luck; the only factor under your control is who you hire. Choosing the right lawyer doesn't guarantee that you'll prevail, but it improves your odds.

Technorati Tags: choosing a lawyer

Texas or New York

It all started with these two blog posts, Lucky Stars and Four More Good Things, in which I listed some of the good things about the criminal "justice" system in Texas. These posts weren't really about New York (actually, they weren't really about why lawyers have it better here, or I would have listed "good crime" and "low cost of living" as well as "more beautiful women" and "colder beer"), but Scott Greenfield of New York called on his fellow New York lawyers to tell why New York Lawyers have it better than Texans: Unsurprisingly, Scott got no response. Now he has posted a poll on whether people would rather practice in Texas or New York. Here's the text of the poll: Where would you rather practice criminal defense?

-New York -Texas -Anywhere but Texas -Could I practice in Texas but live in NY? -Would I have to dress funny if I practiced in Texas?

A California lawyer, transplanted from Texas, wrote to me, saying:

There's a movie from the 80's called True Stories where a character talks about how God made Texas. In the beginning, God went around the world making mankind's new home beautiful, creating rivers, mountains, canyons, forests. But by the time he got to Texas, it was late and he decided to rest. When he came back, much of the land was baked and dry, the water was gone, and nothing would grow. At first he didn't know what to do but then thought of a solution: I'll make people who like it that way. Guess I'm one of those people.

Davy Crockett said, "You may all go to hell and I will go to Texas.” General Philip Henry Sheridan, on the other hand, said, "If I owned Texas and Hell, I would rent Texas and live in Hell.” Vote here.

Us v. Them III

If you haven't already, read David Feige's (Indefensible Blog) Slate editorial on the disbarment of Mike Nifong. Some highlights:

[I]n the rollicking back and forth of a normal state trial, it is a rare case in which problems involving the withholding of potentially exculpatory evidence (as Nifong was accused of doing) don't arise. . . . There are, of course, a few particularly egregious cases that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors. And as previously noted in Slate, of the 2,012 cases since 1970 in which appeals judges actually threw out an indictment, conviction, or sentence because of prosecutorial malfeasance, in only 44 did prosecutors even appear before state ethics boards to answer for their actions. Another indicator: A Chicago Tribune investigation found 381 Illinois murder convictions that were reversed because prosecutors withheld evidence or prompted witnesses to lie. The number of those prosecutors publicly sanctioned or disbarred as a result? Zero.

(The point, which all defenders realize already, is that the Nifong case isn't unusual because he did it, but because he got disciplined for it.) My favorite:

[I]n an era of breathless, round-the-clock coverage of big criminal cases, his over-the-top remarks were often defended. Within hours, a cadre of current and former prosecutors flooded the airwaves to condemn the young men, lament their devious ways, and defend Nifong's press strategy. . . . Later, of course, the same prosecutors who so vigorously defended Nifong's conduct became vocal proponents of a severe sanction.

I love it. One of them gets wounded, and the others devour him in a frenzy. As I've written before, not because he "oughta know better" but to demonstrate the sanctimony of the rest.

Technorati Tags: criminal defense, philosophy, prosecutors

I Coulda Been a Contender!

Legal Antics is running a poll on the funniest law blog. Voting is open till June 25th. Vote early and . . . vote once. Legal Antics is trying to discourage ballot-box stuffing. I was not nominated -- Defending People is not the breakout comedy hit I was hoping it would be.

Technorati Tags: blawgs

More on Avvo

A silly class-action lawsuit against silly website Avvo has New York Legal Update asking,

Should Zagat's be careful when it provides numerical ratings for a restaurant's food, service and decor? Should movie critics be concerned when they give a movie 1 and half stars rather than 5 stars? Should the Automobile Association of America - AAA - worry about a class action suit when it gives a group of lodgings two diamonds as opposed to three. Rating systems give consumers valuable information in comparing two different products or services when they lack first hand information about those products or services. Rating services also provide an incentive for firms to provide the highest quality of services possibly. Do lawyers honestly believe that they are so unique, so different, that the services they provide are so different, that they simply cannot be evaluated on a numerical basis?

(Thanks, as often, to Scott Greenfield of Simple Justice for the heads-up.) Granted that suing Avvo because you don't like your rating is a goofy idea, New York Legal Update misses the real problem with Avvo's ratings. Avvo's ratings are calculated from a few of the quantifiable descriptors of a lawyer's career: number of publications, years in practice, number of honors, number of speaking engagements, and so forth. (The formula is proprietary, but it's easy to see what its inputs are.) Scott (like me a perfect 10 in Avvo-world) makes the point that this system disregards entirely the vital qualitative differences between lawyers. Do lawyers honestly believe that they are so unique, so different, that the services they provide are so different, that they simply cannot be evaluated on a numerical basis? Even assuming that lawyers' services could be quantitatively rated (more on that below), Avvo doesn't do it. It is possible meaningfully to quantify the qualitative differences between some products or services. NYLU gives the examples of other restaurants, movies, and hotels. And there's the rub: Zagat's ratings, movie critics' ratings, and AAA ratings are given by people with, as NYLU says, "firsthand information about those products or services." That's why the ratings actually mean something. Avvo's ratings, on the other hand, are not, and so don't. I've tried to imagine a numerical rating system that might safely distinguish between the lawyers who shouldn't be practicing from the lawyers whom I would trust with my own freedom. I can't see any way to do it. Some of the V6s (walking violations of the Sixth Amendment) have been practicing for longer than the champions (some for too long), some of them have more cases than the champions (some too many), some have tried more cases than the champions, and so forth. So are criminal defense lawyers and their services so different that we cannot be evaluated on a numerical basis? I believe so. We're not selling souffles. If you hire the wrong criminal defense lawyer, you don't get to walk out halfway through. If your results are bad, you can't check out in the morning and check in somewhere else. If you hire the wrong criminal defense lawyer, you lose your freedom or your life. There are no do-overs. Because of the stakes, trust between accused and lawyer is everything. Trust is a very personal thing, and unquantifiable. No defender is the best lawyer for every case -- a lawyer might be a 10 to one client and a 3 to another. The only way that an accused can know who to trust is to talk to as many defenders as he can stand to, look them in the eye, and figure out who's going to tell the truth -- no matter how ugly -- and who's going to say whatever he thinks it'll take to get the case. A consumer should have access to any relevant information when she's trying to choose a lawyer. Avvo's ratings, however, are wholly irrelevant. Choosing a defender is not easy. Avvo tries to make it easy, and fails.

Technorati Tags: choosing a lawyer

The Other Side of Texas's Bloodlust

The thing that shocks people the most about the Texas criminal "justice" system is the number of people sentenced to death and executed. Less shocking, but apparently still surprising, is the fact that Texas juries can recommend probation for people convicted of a murder committed before last Saturday (as long as it is not capital murder and the accused has no felony convictions or probations). I think these two cultural oddities may be related. You've probably heard some variation of the following parable:

A Connecticut lawyer was visiting Texas in the early years of it statehood. He sat in the courtroom one day (trials were shorter in those days, but not by much) and watched a man tried for stealing a horse. The jury convicted the man and sentenced him to death. The next day in the same courtroom he watched a murder trial; the jury convicted that man and sentenced him to probation. This was a shock to the Connecticut lawyer. After the second trial he went and visited the judge in his chambers. After introducing himself and sucking up to the jude a bit he said, "Your honor, I'm dying to know. How is it that if a man steals a horse he gets hanged, but if he kills another man he gets probation?" The old judge nodded, spat in the spittoon, and said, "Look out that window." The lawyer looked out the window and saw a quiet dusty street with a few horses tied to hitching posts in front of the businesses. "What am I looking for?" he asked. "Young man," said the judge, "do you see any horses that need stealin'?"

This uniquely Texan ethic -- that some people "need killin'" -- cuts both ways for the accused: on the one hand, a culture that acknowledges that it feels that way is quicker to execute transgressors; on the other hand, "he needed killin', and I was the guy to do it" is a legitimate argument in mitigation that can lead a jury to recommend probation for a person convicted of murder.

How Many Cases?

Defenders: Gideon wants to get a rough estimate of how many cases you carry at a time.

Technorati Tags: blawgs

Us v. Them II

Shannon Quadros wrote, in comments to Us v. Them,

Don't you think McKinney is being a tad rough. I know that the DA's office isn't a bunch of angels but it's not like they are the spawn of Satan either. Well not that I know of anyway. What I would like to see is what someone who has been on both sides, say former ADA now criminal defense lawyer (or possibly, though I think rarer, criminal defense lawyer turned ADA) seems to think about prosecutors and defenders. I admire McKinney's passion and yours as well in advocating your clients' rights. And that your ardent advocacy of them deserves praise but don't DAs and ADAs have clients too - the 'People'?

Short answer: no, I don't think Troy is being even a tad rough. I think his post is truthfully descriptive. In criminal court you can fight for people against the government, or you can fight for the government against people. There is no third way. When DAs say they represent "the people" (they don't say it in Texas), it's a legal fiction; they represent the government. As agents of the government all they can do is reduce people's freedom. Their only tools are imprisonment and probation. If a prosecutor wanted to be sure he wouldn't hurt any people, he could simply not show up for work. There are many prosecutors with good intentions, and more with good rationalizations. The common factor in prosecutorial intentions and rationalizations is this: they think that they are competent to say who should be free and who shouldn't. The unfortunate belief that one person is somehow above (better than, more moral than, more valued than) other people is a prerequisite for prosecutorial work. Prosecutors' targets are certainly not people for whom most people have any sympathy. Defender Mike Ramsey says (attributing the quote to A.E. Housman), "Who God forsakes, I defend." One of Clarence Darrow's biographies was entitled "Attorney for the Damned." (Neither Ramsey nor Darrow was, as far as I know, ever a prosecutor.) The late great Stuart Kinard (who, I am told, had been a dedicated prosecutor) described the work of a defender as "Protecting those of the Lord's children who have fallen short of perfection from the wrath of those who believe they have attained it." Believing one has attained perfection is a sad affliction. It is possible for a former prosecutor to overcome this affliction, realize that the difference between her and the accused is nothing more than a bad roll of the dice, and become a passionate defender of the less-fortunate.

Technorati Tags: criminal defense, philosophy, prosecutors

Demented and Sad, but Social.

Mary Flood writes in the Houston Chronicle:

The State Bar of Texas wants lawyers to be friends. They've started an online meeting place for bar members to chat, form groups, send out invitations and bond. It's called the Texas Bar circle.

Four More Good Things About Texas Criminal Defense Practice

From Troy McKinney:

You have a right to a lawyer no matter the offense. If you are indigent, you have the right to appointed counsel, no matter the offense. You may not lawfully be stopped at a roadblock. Police must have suspicion that you are doing something wrong, not just that you are minding your own business.

From me:

The accomplice witness rule (Texas Code of Criminal Procedure Article 38.14): nobody can be convicted on the uncorroborated word of an accomplice.

The snitch witness rule (Texas Code of Criminal Procedure Article 38.141): nobody can be convicted on the uncorroborated word of a police informant.

Technorati Tags: criminal defense, Texas

What's that Roaring Sound?

Scott Greenfield of New York is all atizzy over my Lucky Stars post. Scott challenges his fellow lawyers in the third-largest state to comment on why the New York criminal liberty-rendering system sucks less than Texas's. No response yet from the tassel-loafer brigade. Over at A Public Defender, though, Gideon makes the case for the Duchy of Grand Fenwick being a better place to be arrested than Texas. He points out that (like Texas but unlike, as I understand it, the People's Democratic Republic of New York) Grand Fenwick extends the right to a jury trial to anyone charged with a jailable offense. Even without knowing about Grand Fenwick's probation eligibility law, I'll concede that cute-as-a-bug Grand Fenwick might have a better system for protecting the accused than Texas or New York. With fewer people and more lawyers than Harris County, with two-hundred-plus years of experience with the Bill of Rights, and with property, sales, and income tax money, it damn well should.

Us v. Them

By Troy McKinney, a lawyer's lawyer (in fact, my lawyer), a few of the differences between prosecutors and defenders:

They take away people's lives. We give people their lives back. They break up familles. We help families stay together. They cause and maximize pain. We prevent or minimize pain. They judge. We forgive. Their solutions are usually destructive. Our solutions are usually constructive. They cause kids to visit parents in prison. We prefer that kids and parents visit at home. They hear a story and look for the worst in people. We hear a story and look for the best in people. And, of course, the #1 difference (even though it is last here): They prosecute the innocent. We defend the innocent.

Lucky Stars -- an Anti-Whine.

Scott Greenfield at Simple Justice informs us that, in the People's Democratic Republic of New York, there is no right to expunction (only he calls it "expungement," which, according to my OED, is "rare" -- not that there's anything wrong with that). So I presume that if you get arrested for something in New York, your friends, neighbors, employers, landlords, and any other busybodies can find out about it forever, even if the cops screwed up, even if you are acquitted, even if there was no probable cause. That hardly seems fair.

Scott's post got me thinking about some of the ways the criminal "justice" system is better in Texas. Sure, we have issues with our appellate courts -- they think every court east of the Appalachian Trail is loaded with namby-pamby liberal judges, and as a consequence refuse to consider any authority from any of those courts (including the Supreme Court). And sure, all of our judges (trial and appellate) are elected in partisan elections in which party affiliation is a greater factor than fairness, intelligence, or wisdom. And sure, PD's offices are nearly nonexistent in the state.

image by Abu Badali

But if you're charged with any crime in Texas, from a traffic ticket on up,

• You are most likely entitled to reasonable bail. Bail can be denied only if the State proves that one of a few exceptions to the constitutional right to bail applies.

• If you're accused of a felony, you may get an opportunity to make a presentation to the grand jury, which might result in a dismissal if you're really really innocent.

• You probably won't be treated respectfully by the judge, the prosecutor, or the court staff, but your treatment will be much more respectful than, for example, the treatment David Feige describes citizens accused receiving in the Bronx.

• If you have funds to hire a lawyer, you can choose a lawyer from the finest criminal defense bar in the world.

• You have a right to a jury trial. No ifs or buts.

• Your lawyer gets to actually talk with the jury panel while choosing the jury instead of relying on a judge to do it for him; he'll certainly do a better job than the judge would and will probably do a better job than the prosecutor.

• If there is a factual dispute over the way the government obtained its evidence against you, you can get a jury to resolve it, and the State must prove beyond a reasonable doubt that the police acted legally.

• If the cops interrogated you while you were in custody and didn't record your statement, including your waiver of constitutional rights, it's probably inadmissible.

• If, by some combination of bad luck and bad facts, the jury convicts you, you can have them set punishment.

• If you haven't been convicted before of a felony or placed on felony probation, the jury can put you on probation for just about anything (the two exceptions that come to mind: capital murder and possession of more than 400 grams of a controlled substance with the intent to deliver).

And finally,

• When the state accuses you of a crime in Texas and can't prove it beyond a reasonable doubt, you can (eventually) clear your name.

I'm sure there are more, but that's all I can think of at the moment. (Texas lawyers: anything else I should add?)

There's a barbecue restaurant here in Houston, Goode Co. Barbeque. They purvey some of the best Texas-style barbecue (Wikipedia) in the state. The image is from their website (click on it to go there -- they make a pecan pie that's second only to mine, and they will ship it anywhere); it's of their barn-style building on Kirby Drive. It's not easy to read in the picture, but the inscription painted above their logo is "You might give some serious thought to thanking your lucky stars you're in Texas."

Indeed.

Technorati Tags: criminal defense, jury selection, jury trial, suppression, Texas

Butterfly Knives

How many legs does a dog have, if you call a tail a leg? On two criminal defense lawyers' email discussion lists, the topic of balisong or butterfly knives came up recently. The consensus on both occasions was that such knives are outlawed by section 46.05 of the Texas Penal Code, which makes it an offense to possess a "switchblade knife." "Switchblade knife" is defined by section 46.01 of the Texas Penal Code as "any knife that has a blade that folds, closes, or retracts into the handle or sheath, and that: (A) opens automatically by pressure applied to a button or other device located on the handle; or (B) opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force." The consensus among criminal defense lawyers was that a butterfly knife opens by the application of centrifugal force. There are two Texas centrifugal-force knife cases, both from Houston's First Court of Appeals and both "unpublished" opinions. The older of the two, Smith v. State, No. 01-87-830-CR, concerned a butterfly knife; according to the court, "Ample testimony of the knife's functioning revealed that the knife could open by centrifugal force after being unlocked." There was no mention of any testimony to the contrary. I am looking for one of these cases to try. Here is a New York case saying that a butterfly knife doesn't have "a blade that is released by the application of centrifugal force." Here is an Oregon knife expert who will so testify. But neither of these resources addresses what I think is the definitive defense in a Texas butterfly knife case:

There's no such thing as centrifugal force.

It wouldn't be hard, and could be very entertaining, to parade any number of experts from the local university through the courtroom to explain that centrifugal force is an illusion. This invites us to ask: does the legislature's inclusion of it in the statute constitute a legislative finding that it does exist? No. If you call a tail a leg, a dog still has only four legs.

Two More Blawgs for the Blawgroll

I've added Stephen Gustitis's blawg, The Defense Perspective, to my blawgroll. Stephen is an excellent defender in Bryan/College Station, Texas; I know him from the TCDLA Capital Resource Group email discussion group. I've also added Robert Guest's blawg, I Was the State. Today both Stephen and Robert commented on University of Florida research suggesting that tougher DWI laws have little or no deterrent effect on drunk driving or traffic fatalities. Check 'em out.

Still More HCCLA Merchandise

Something only your fellow defenders will understand: Buy 'em here.

More HCCLA Merchandise

I posted here about the "VI -- The Amendment" stickers I designed for HCCLA: Scott Henson of Grits for Breakfast saw that post (probably via Luke Gilman's post) and commented that he would be interested in "IV -- The Amendment" t-shirts. So I created one: (Buy them here.) I emailed Scott the link, and he beat me to the blog posting about them. IV stickers are also available: Support your favorite amendment . . . and the Harris County Criminal Lawyers' Association. Email sales(at)HCCLA.org

Civil Discourse in the Jury Room

Anne Reed writes at Deliberations about The Dysfunctional Jury. She asks, "what can you do about it?" and suggests:

1. Watch them . . . 2. Teach them. If you need consensus and unanimity, use your closing to offer the group tools to get there. . . . 3. Coach them. On the other hand, if you know you may need a holdout to hold out no matter what, you can use part of your closing to challenge jurors to rise to the kind of resolute conviction that holding out requires, while patiently defusing the chaotic atmosphere that can make holding out more difficult.

In criminal jury trials, it is usually the pro-state jurors who are bullying the pro-people jurors into changing their decisions (why? maybe because compassionate jurors are more likely both to vote "not guilty" and to respect others' rights to their own opinions). We can protect the pro-people jurors by creating a environment in the jury room in which bullying and other uncivil behavior is unacceptable. That, we can do by describing at every opportunity, from voir dire to closing argument, what will happen during deliberations in terms of polite discourse and respect for the views of others. Yelling and cursing should be unacceptable in the jury room; inside voices and taking turns should be the rule. If the jurors are conditioned to think of deliberations in those terms, they are more likely to follow the ordinary rules of social behavior (which we all learned in kindergarten) in the jury room.

Technorati Tags: criminal defense, jury selection, jury trial, closing argument

Don't Use the Government to Raise Your Kids

A guy called me the other day wanting me to represent his 17-year-old daughter "Shelly" in a theft case. Shelly had stolen some money from her aunt (the guy's sister). She had been stealing stuff for some time, but had never been charged. After the latest incident the family had made a police report, causing criminal charges (misdemeanor theft) to be filed against the child. I had defended other members of the family successfully. The guy wanted me to represent the daughter "and get her deferred adjudication probation." I explained to him that deferred adjudication would not be a win in such a case; that a trained monkey could get Shelly deferred adjudication; that anything other than a dismissal or acquittal would remain on her criminal record forever, affecting her ability to get jobs, rent apartments, and otherwise function as a productive member of society; and that if hired to represent her I would do everything I could to beat her case, including discrediting the family members who made the police report. I declined to represent her on any other terms, and he declined to hire me on those. The government will eagerly accept any power we give it; if we ask the government to discipline our children, it will do so with glee. But the government is a blunt instrument with no finesse. It's utterly incompetent to discipline our children. Parents' abdication to the government of their child-rearing responsibilities is abhorrent to me. Every time a parent turns his child over to the police, the government becomes a little more powerful, and a little more confident that it can wield that power against the rest of us. That makes me sick.

Definition: Ex Parte

Ex parte refers to contact between a party to litigation (including the party's counsel) and the court without notice to the other parties to the litigation. In Texas, Ex parte can act as an adjective, an adverb, and a verb depending on the context:

Adjective: "Prosecutors have ex parte communications with judges all the time." Adverb: "Prosecutors discuss cases with judges ex parte all the time." Verb: "Prosecutors ex parte judges all the time."

Ex parte communications are generally improper under court rules, judicial ethics, and legal ethics. One notable exception is when the accused in a criminal case has to ask the judge to approve something that is none of the State's business -- for example, court payment to a defense expert under Ake v. Oklahoma.

Technorati Tags: law, definitions

Your Tax Dollars at Work

From the "don't they have anything better to do?" file: A crook calls up a couple of friends. "I got a lick," he says. "There's this cocaine dealer. I know where he stays. Help me jack him." The friends agree -- where's the harm in jacking a dealer? But there is no dealer. The crook is a government informant, and he's prepared to swear that the plan was to rob the dealer of more than 10 kilos of cocaine (recordings of conversations between the players are ambiguous) and sell it. Out of thin air he has just created a federal cocaine distribution conspiracy for which his two "friends" are going to go down hard. You're paying the informant for this work. You're also paying the cops who run him, and the prosecutors who will prosecute the accused, and the judges who will preside over their cases, as well as myriad other participants in the criminal "justice" system. If they don't have money to hire lawyers, you're paying their public defenders. You're paying a huge amount of money to "fight drugs." The money goes to the participants in the system, and the people and companies that support and supply all of those groups. The "war on drugs" is a massive redistribution of wealth from the taxpayers to the players in the system. Assume that such a redistribution of wealth might be justifiable if it provides some amount of benefit to the taxpayers. Does the war on drugs pass the test? By any metric that I know of, it fails. We have more prisons than ever before, and they're more crowded with people charged with narcotics cases than ever before. Yet -- most importantly -- there are more drugs available, more cheaply (according to a DEA agent I know), than there were 30 years ago when the "war on drugs" began. A good lawyer defending people accused of drug crimes can make more money from the war on drugs than any judge, prosecutor, cop, or prison guard. Individually, we have more at stake in the war on drugs than almost anyone else. Yet ours voices, along with those of the families of people imprisoned in the "war," are the loudest voices in opposition to the "war." Robert Guest at I Was the State has a post today entitled Put Me Out of Business -- End Prohibition. He talks about how, even though he stands to lose a lot of business if drugs are legalized, legalizing drugs is the right thing to do. Robert is right. Of course.

Top 11 Criminal Law Blogs

From Jamie Spencer's Austin Criminal Defense Lawyer blog, here are The Top 11 Criminal Defense Blogs.

Jury Nullification Meme

Judges lie to juries every day about juries' nullification power. "You must follow the law," they say. The truth is that jurors have the right not to follow the law in a criminal case. If they think the law is wrong (that the conduct shouldn't be illegal, or that the law's punishment is too harsh) they can acquit the accused and there is nothing the government can do about it. Similarly, if a single juror thinks the law is wrong, she can hold out for acquittal and nobody can make her change her personal moral judgment. Jurors can't be punished for nullifying the law, and the government can't appeal an acquittal. Given that the official line in the courtroom regarding jury power is -- and probably always will be -- untruthful, what can we as defenders do about it? One thing we can do is take every opportunity to educate the public about jurors' rights to vote their consciences. Write letters to the editor. Mention jury nullification every time you talk to the press or give a speech to a community group. Slip it into every conversation you have:

"Did you know that judges lie to juries in criminal court every day? Do you know why the criminal juror is the most powerful person in the criminal justice system? Did you know that jurors don't have to follow the law?" "Dude, I just asked if you preferred paper or plastic!"

We could even print it on the backs of our business cards: "If you're chosen to serve on a jury, remember that the government can't force you do anything against your conscience. If you think the law is wrong, find the accused Not Guilty. There's not a damn thing they can do to you."

Technorati Tags: jury nullification

Read . . .

Read owencenli's May 12, 2007 post understanding the enemy part II. Read the comments too. Read this post by commentator chiashurb. These people are law students. I am heartened. There is hope.

Honoring the Dead with Destruction?

Today's big criminal defense story is this: two of Houston's best lawyers, Stanley Schneider and Robb Fickman (no good link to Robb), prevailed in the trial of a bus driver accused of manslaughter for accidentally running over and killing a 9-year-old girl. The driver was acquitted. In a post-loss interview the prosecutor washed his hands of prosecutorial discretion, claiming, "All we ever wanted to do in this case is to let a jury decide." Never mind that it is his job to separate the cases that should be tried from the cases that shouldn't. So what did the jury decide? According to one of the jurors, "Ninety-eight percent of the evidence pointed to [the driver] being correct. He did all he could do." (My emphasis; I wasn't there, but I will bet that the driver's first-rate defense team used that same phrase many times during the trial.) The driver did all he could do. And yet the prosecutor charged him with manslaughter (actually, the prosecutor charged the driver with murder at first, but the grand jury declined to indict the driver on that charge). Why did the prosecutor, despite a paucity of evidence, think that he could get a jury to find beyond a reasonable doubt:

that the driver was aware of and consciously disregarded a substantial and unjustifiable risk, of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from his standpoint, that the little girl would die

(that's the standard, from section 6.03(c) of the Texas Penal Code, for proving criminal recklessness)? Maybe the prosecutor expected the jury to hear that a little girl was killed and want someone to pay regardless of the law. According to the juror who spoke to the press, some jurors had this attitude, but to their credit the jury was able to overcome that impulse and follow the law. The prosecutor, in a vain attempt to show himself to have decent judgment and a sense of proportion (he had first tried to charge the driver with murder) admitted that it was a "difficult case from the beginning." But, he said, "to honor [the child] we had to try to make sure he was held accountable for his actions." Honor the child?!? There is something primeval about the idea of "honoring" the dead child by putting the driver in a box. He did all he could do. Nevertheless he killed a child. He will have to pay emotionally for that forever. The parents of the child had, to their great credit, forgiven him. I suppose that taking away his freedom, destroying his family, would be the 21st century equivalent of propitiating the gods with a human sacrifice, but it's unworthy of us as human beings. It's also a huge waste of resources. Taking the man away from his family wouldn't have helped anyone, and it wouldn't have made the world a better place. Prosecuting him didn't help anyone, and it didn't make the world a better place. The state spent tens of thousands of dollars prosecuting the driver, for naught. Imagine that that money, as well as the tens of thousands that the driver likely had to pay for his defense, had been spent making the world safer or happier or more beautiful. We could have enhanced traffic safety -- hired a crossing guard or educated children or put orange flags on the backs of bicycles. We could have built playgrounds. We could have planted flowers. All in honor of a young life lost. But if your only tool is a hammer, every problem looks like a nail, and if you're a rampant prosecutor with ambition every accident looks like a crime. Prosecuting the driver didn't honor the child; it dishonored her by using her name to serve the prosecutor's own ends. I don't mention the name of the child because prosecuting someone in her name is such a shame. I don't mention the name of the driver here because he doesn't deserve the bad publicity. I don't mention the name of the prosecutor because he doesn't deserve the good (to a lawyer, there is no other kind) publicity. I expect that some day soon the prosecutor's ambition will burst free and he will be running for public office (maybe District Attorney, which position doesn't require a surfeit of good judgment). Then he will be counting on the name recognition that he gets from expensive destructive publicity stunts like this one. I'm not contributing to that campaign.

Technorati Tags: ethics, lawyers

Give Me the Darn File!

About a month ago a man hired me to replace his previous lawyer (someone who advertises extensively on the Web) on his felony (this actually happens fairly often -- not everyone gets the "hiring a criminal defense lawyer" thing right the first time). I drew up a motion to substitute counsel, got the client's signature on it, and sent it to the former lawyer along with a letter requesting that he sign the motion and return it to me along with the client's entire file "so that I [could] continue my trial preparation from where [he] left off." He signed the motion and returned it to me within four days, but did not send me his file. I called and talked to him, and he promised to send me the file, but still did not do so. I called him again, and he promised it on a specific day. That day has come and gone, trial is coming up quickly, and I still have no way of knowing what work, if any, the previous lawyer did (operating under the assumption that the answer is "none," I'm doing everything that should have been done by him six months ago). I have asked the previous lawyer several more times for the file and had no further response. Here's the rule in Texas, according to Ethics Opinion 570:

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer must upon request provide to a former client the notes of the lawyer from the lawyer's file for that former client except when the lawyer has the right to withhold the notes pursuant to a legal right such as a lawyer's lien, when the lawyer is required to withhold the lawyer's notes (or portions thereof) by court order, or when not withholding the notes (or portions thereof) would violate a duty owed to a third person or risk causing serious harm to the client.

The previous lawyer has no lien on the file (even if he did, Texas Disciplinary Rule 1.15(d) would require him to return the file since retaining it prejudices the client); there is no court order requiring him to withhold portions of his notes; and he has no duties to any third parties with respect to anything that could conceivably be in the client's file. So why isn't the file on my desk? What would you do?

Technorati Tags: criminal defense, ethics, lawyers, Texas

Attorneys Making Bonds

In Texas, almost everyone accused of a crime is entitled to bail. In some counties, attorneys serve as their clients' bondsmen. This may be a good idea for the lawyers, but it creates a potential conflict of interest harmful to the clients. Why? Suppose that a client pays a lawyer to represent her and make her bond. The lawyer has two interests in the case: (1) defending the client; and (2) making sure the lawyer doesn't lose the bond. Now suppose that the lawyer, in the course of his representation, learns something that makes him think the client might be less likely to continue to come to court. As a lawyer, he has a duty not to divulge that information (assuming that revealing it is not necessary to prevent the commission of a crime or fraud) or to use it to the client's disadvantage. As the bondsman, however, he has a financial stake in the client continuing to come to court. This new confidential information makes him feel less secure in his bond. He has the choice of a) surrendering the bond, thereby using the information to his client's detriment; or b) not surrendering the bond, thereby putting his money at risk. A defendant who realizes this would rationally from his lawyer information that he thought might reflect poorly on his ability to continue attending court -- the exact sort of information his lawyer might need to defend him. I know that lots of defendants want their lawyers to make their bonds as well. I wouldn't do it. I want to avoid any position in which my best interest might be contrary to my client's, and I want my clients to know it.

Technorati Tags: bondsmen, ethics, lawyers

Welcome International Visitors

In the past 48 hours this blog has had visitors from:

Abu Dhabi, Algeria, Argentina, Australia, China, Dubai, Egypt, France, India, Indonesia, Iran, Israel, Italy, Korea, Malaysia, Mexico, Mongolia, Morocco,Netherlands, Netherlands Antilles, Norway, Peru, Qatar, Saudi Arabia, Singapore, Sri Lanka, Sweden, Switzerland, Turkey, and Viet Nam.

(Most of these visitors come to us via the Texas State Bar, which has us as the featured blog on its blog page this week.) I welcome these visitors. I realize that in your country, the accused probably does not have the right to a jury trial. The idea that we should be judged by juries of our peers must be as foreign to you as the idea that juries should determine suppression issues is to visitors from New York. Here's how it works: If the government wants to take away my freedom, it has to convince twelve of my peers that I've violated the law. The government must present witnesses to testify to my guilt. I can confront and cross-examine these witnesses and present my own witnesses. If I want to testify I can, but if I don't nobody can compel me to. If the jury finds that the government has not proven its case beyond a reasonable doubt, they acquit me. Even if my twelve peers think the government has proven its case beyond a reasonable doubt, they can concude law the law is wrong and acquit me. If they do, the government can't appeal, can't reprosecute me for the same offense, and can't punish the jurors for their decision.

Technorati Tags: criminal, jury trial