"Technicalities"

The closing scene from Alfred Hitchcock's Psycho: What makes that scene particularly creepy for me is the last fraction of a second of the shot of Norman Bates's face. Just before dissolving to the shot of the car being pulled out of the lake, Hitchcock superimposed an image of a skull over Norman's face. I don't know if I would have seen it, or known what I was seeing, if I weren't looking for it; I might just have been generally creeped-out. Here is a blog post (from New Mexico appellate Prosecutor Joel Jacobsen's Judging Crimes blog) that had the same effect on me. (Thanks to Kirk Chavez's Issues and Holdings blog for recommending Judging Crimes, which is very well-written). Joel talks about the public perception of lawyers, and argues that "the public perception that lawyers do these kinds of things is nonetheless perfectly accurate. The problem isn't that the public doesn't know what lawyers do, but that it knows all-too-well what some lawyers do." Here is one of the two examples Joel gives of "these kinds of things" that some lawyers do:

Nor is it true that most lawyers "spend too much time finding technicalities to get criminals released", as an ABA survey found 73% of Americans believe (page 7).

There's that skull floating there -- am I the only one who sees it? Joel says that some lawyers spend too much time finding technicalities to get criminals released. As an appellate prosecutor, I'm sure Joel spends lots of his time looking for "procedural default", the many ways that a defendant can lose his freedom by not jumping through all of the hoops of preserving error. Yet I'm confident that Joel doesn't refer to procedural default as "a technicality." The 73% of Americans who think lawyers spend too much time finding technicalities no doubt think Joel spends just enough (or too little) making criminals' lawyers follow the rules. "Technicality" is a subjective pejorative. One man's technicality is another man's rule. A technicality is a rule that leads to the wrong result. Those who resent the time we spend "finding technicalities to get criminals released" would likely approve of the time Joel spends "making criminals' lawyers follow the rules." Do prosecutors spend too much time making criminal lawyers follow the rules? No. Do they spend too much time finding technicalities to keep people in jail? Sure. Polls are a funny thing. The wording of the question is everything; a pollster can load his questions to get any result he wants. In the poll cited by Joel, the ABA asked, "Do you agree or disagree that lawyers spend too much time finding technicalities to get criminals released?" and 73% said they agreed. If they had instead said "Do you agree or disagree that lawyers spend too much time protecting people's freedom?", fewer people would have agreed. Some people see the warrant requirement as a "technicality"; some see the exclusionary rule as a "technicality", some see the requirement of a valid indictment as a "technicality", and some some people undoubtedly see the requirement of proof beyond a reasonable doubt as a "technicality." Criminal law is not about "right and wrong;" it's about rules. When the government doesn't follow all of the rules, it sometimes (not often -- courts usually will give the government a free pass) loses. I have never had the family of a client complain that I was spending too much time finding technicalities to free their loved one. Is it possible that the ABA found 450 randomly-selected Americans, 73% of whom had never had loved ones benefit from the services of a criminal defense lawyer? Of course not. When they're in that position, they know that what defenders are really doing when they're "finding technicalities to get criminals released" is making the government's lawyers and agents follow all of the rules before determining who the "criminals" are and putting them in jail. Trying to keep people out of jail is what the market pays us for. If you want us to spend less time trying to keep people out, stop paying the government so much to put people in. Until then, I don't object to lawyers who spend too much time "finding technicalities," but to those who spend too little. "Finding technicalities to get criminals released" is how those who don't approve of our existence describe what we do. I'd like to see Joel, who is determined to "engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest," engage with the assumptions on which his post rests.

Technorati Tags: blawgs, criminal defense

New Blog Worth Reading

New Mexico prosecutor Kirk Chavez has started blogging about New Mexico law at Issues and Holdings.

Welcome Prosecutors!

So far today I've had 116 visitors from this post on the Texas District and County Attorneys' Association forum, where the administrator, Shannon Edmonds, posted a link to my Motion to Change the Facts. A couple of visitors to that forum commented -- not on the motion (well, there were secondary and grudging admissions that that was actually funny), but on my philosophy (I give a damn), on my appearance (okay, Brumley, you're right -- that photo [which I took myself] has to go), and, anonymously, on my parentage (I am not making this up). [Edit: A free "Notice to Agents" coffee mug to the commenter offering the best punchline -- snarky or otherwise -- for this post.]

Technorati Tags: prosecutors

An Unused Resource for Veterans with TBI

Houston's TIRR (The Institution for Rehabilitation and Research) is the fourth-highest rated rehabilitation hospital in the U.S. (No VA hospital even made the top 25.) So why is it that TIRR's Project Victory, designed to help veterans with traumatic brain injuries "reintegrate into family, school, work and community life" with "a three-year, $3 million budget, plus equipment, space, and perhaps most importantly, three decades of institutional experience in treating brain injuries" has no patients? Well, the Houston Chronicle reports that the Houston VA hospital, which was supposed to funnel patients to Project Victory, has started its own "community reentry program". It sounds like a bit of a turf war over veterans recovering from TBI. On the one hand:

Dr. Helene Henson, in charge of rehabilitation services at the Houston VA hospital, said the staff was not reacting to any sort of criticism and had not reneged on its agreement with Memorial Hermann/TIRR. Part of delivering good patient care, Henson said, was adding the day treatment program for veterans with mild brain injuries. Henson said the VA promised to refer vets with moderate to severe brain injuries to Memorial Hermann/TIRR, and that the hospital staff simply doesn't have any patients with those levels of impairment. "They're not coming to us," Henson said. "We're seeing a very different type of impairment than we originally thought we'd be managing."

On the other, Cynthia Adkins, executive director of The Institute for Rehabilitation and Research Foundation, has a different take:

Adkins said the VA staff is quibbling over semantics, and that officials there originally agreed to share their brain-injured patients without regard to mild, moderate or severe diagnoses. "I don't want to challenge the VA," Adkins said. "We think there are hundreds of vets who can use our help, and we are ready to serve at no cost to them or taxpayers, either."

That sounds pretty good: rehabilitation for brain-injured veterans, at one of the top rehabilitation hospitals in the country, free to the veterans and at no expense to the taxpayers. If TIRR is willing to take them, why isn't the VA willing to refer them? I would conjecture that the VA hospital's budget depends (as government budgets often depend) on the number of customers served, and that that budget might suffer from patients being referred to TIRR's private grant-funded program. The article contained a statistic interesting to our understanding of TBI in OIF veterans:

According to the Defense and Veterans Brain Injury Center, a collaboration between the U.S. Departments of Defense and Veterans Affairs, 2,414 returning service personnel have been treated for brain injuries in the past 3 1/2 years. Henson said roughly 450 of those patients have severe injuries.

According to the epidemiological data, about 18% of all medically-attended brain injuries in the U.S. are severe. Dr. Henson's estimate comports with those date (she may well have based her estimate on those data), which suggests that OIF TBI follows the same pattern as civilian TBI. If it does, then 27% of servicemen treated for TBI, or about 660, have moderate brain injuries. If the Houston VA hospital doesn't have any of these 1,110 veterans with moderate-to-severe brain injury, perhaps it could tell Project Victory where to find them. The overall number -- 2,414 -- is suspect; it is likely much lower than the number of actual brain injuries. VA clinical neuropsychologist Dr. Harriet Zeiner estimated in September 2006 that there might be 8,000 brain-injured veterans; "neurologists affiliated with the U. S. military now estimate that up to 30% of troops who have been on active duty for 4 months or longer (in both Iraq and Afghanistan) are at risk of some form of disabling neurological damage," which might mean up to 150,000 brain-injured soldiers. The problem of finding and treating brain-injured veterans is complicated by the fact that the military has discharged 22,500 troops in the last six years because of "personality disorders." TBI can present as a personality disorder. The number of 5-13 discharges rises every day, which calls into question the motivation of the military in issuing these discharges. The government doesn't pay benefits to troops receiving "5-13" personality disorder discharges. The VA doesn't have to treat them. It is likely that soldiers with TBI-related personality changes are getting shunted out of the military with 5-13 discharges, and therefore out of the veterans' support system. Do we trust the government to treat our injured veterans? Or should the VA be letting Project Victory do what it is supposed to do?

Technorati Tags: TBI

Defining Reasonable Doubt

From 1991 (Geesa) to 2000 (Paulson), criminal juries in Texas were given this definition of "beyond a reasonable doubt:

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all “reasonable doubt” concerning the defendant's guilt. A “reasonable doubt” is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

This is the same definition that federal criminal juries are given in the Fifth Circuit. It's got its good points for the defense -- "without hesitation" -- and for the government -- "based on reason and common sense." In 2000, the Court of Criminal Appeals, Texas's highest criminal appellate court, decided that jurors should no longer be given the Geesa definition of "beyond a reasonable doubt." The court focused on the third, "without hesitation" paragraph:

If a conscientious juror reads the Geesa charge and follows it literally, he or she will never convict anyone. Considerations utterly foreign to reasonable doubt might make a person hesitate to act. The gravity of the decision and the severity of its consequences should make one pause and hesitate before doing even what is clearly and undoubtedly the right thing to do. Judgments that brand men and women as criminals, and take their money, their liberty, or their lives are deadly serious. They are decisions that make us hesitate if we have any human feelings or sensitivity at all. So to convict, a juror must either ignore the definition, refuse to follow it, or stretch it to say something it does not say.

Noting that in Victor v. Nebraska the U.S. Supreme Court had held that a "reasonable doubt" definition was not required, the Court of Criminal Appeals found that "the better practice is to give no definition of reasonable doubt at all to the jury" and held that Texas criminal juries no longer had to be given a definition of beyond a reasonable doubt. The criminal bar adjusted to the new lack of a definition by either (a) trying to impose their definition of reasonable doubt on the jury (as always, the prosecutorial approach) or (b) trying to find out what the jurors thought reasonable doubt meant (the defense approach). This comes to mind today because Norm Pattis (Crime and Federalism) tells us that, faced with the problem of defining reasonable doubt, the Connecticut Supreme Court has taken a different tack. Instead of leaving the definition to the jurors, that court in Jackson v. State (pdf) upheld the trial court's reasonable doubt definition, which was, according to the trial court, "a slight variation of the charge on reasonable dobut recommended by Justice Ginsburg . . . in Victor v. Nebraska. . . . a charge proposed by the Federal Judicial Center in creating criminal jury instructions for the federal courts." (The intermediate appellate court in Jackson disputed this last assertion.) The Connecticut definition:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in the world that we know with absolute certainty, and in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant’s guilt, you must give him the benefit of that doubt and find him not guilty.

Norm calls this "thin and cynical gruel," and says:

A police officer can be firmly convinced that there is probable cause for an arrest. Yet the standard is one of the law's lowest. A civil jury can be firmly convinced it is more likely than not that a tort was committed. Yet the preponderance standard is less demanding, at least in theory, than the criminal standard. Detaching proof beyond a reasonable doubt from any conceptual mooring is a mistake. Other definitions at least had the grace of demonstrating that the burden of proof in a criminal case is the law's highest. The two construction rule requires a jury to acquit if there are two reasonable constructions of the evidence, and one of them is consistent with innocence. Most judges won't give that charge. I suspect they are worried about too many acquittals.

I didn't much care for the Geesa definition of reasonable doubt. Like Scott Greenfield, I was not overly fond of prosecutors' "common sense" arguments (though it took this Simple Justice post to clarify why), but this Connecticut definition is an abomination. A "jury's" verdict is in fact twelve individual verdicts. When a jury is polled, each juror is asked, "is this your verdict?"; each juror has absolute veto power. Each juror has to decide whether she has a doubt about the accused's guilt and, if she does, whether that doubt is reasonable to her. I don't get to say this often, but the Court of Criminal Appeals got it right -- in Texas, jurors can do this.

Technorati Tags: criminal defense, jury trial, reasonable doubt

Motion to Change the Facts

Sometimes it's all you've got. [PDF]

What Else Cops Know

I showed here that the cops know not to talk to the cops when they -- or their buddies -- are being investigated. In his new Frisco DWI Lawyer & Attorney blog and weblog, Hunter Biederman points out that the cops also know not to take field sobriety tests when they're stopped for DWI.

More Advice to the Young Criminal Defense Trial Lawyer -- Part 4. Politics and the Bar

"How important is it to be involved in local politics or the local bar?" Politics? Unimportant. Do it if that's what interests you. The local bar, generally? It probably depends. Here in Houston, with 14,000+ lawyers, it's unimportant. I have never belonged to the Houston Bar Association, and probably never will. But I'm not a joiner. If you're a joiner, you might benefit from making those contacts. It is, however, important to be involved in the local criminal defense bar. It'll be a source of ideas, of intelligence, of fellowship, and of cover. If you are in a small enough place that there is no organized criminal defense bar, you probably want to join the local bar association. If you are fortunate to live somewhere that has an organized criminal defense bar, join it. I belong to two of the local (Harris County and Fort Bend County) criminal lawyers' association, the Collin County Criminal Lawyers' Association, the Texas Criminal Defense Lawyers' Association, and the National Association of Criminal Defense Lawyers. All of them have listservs, active and helpful in varying degrees.

More Advice to the Young Criminal Defense Lawyer -- Part 3. Volunteer, Low Bono, and Pro Bono

The third of Adam Levin's questions that young criminal defense lawyers might have: "Do you perform volunteer, pro bono, or low bono work? Why or why not?" While defending people in the criminal courts, even for pay, is for the public good (so that we don't need as many karma offsets as others). As a criminal defense lawyer helping people, you will be doing a tremendous amount of ad hoc pro bono work. It's part of the nature of the business -- people will call you needing legal advice short of formal representation. Beyond that, criminal defense lawyers should do volunteer, pro bono, or low bono work, as the spirit moves them. For more formal representation, I have found "low-bono" to be a better idea than pro-bono because people are much more satisfied with the representation they get when they are paying something for it. Almost everyone can afford to pay something; if you can give the client more satisfaction by charging her what she can afford (even if it's an amount inconsequential to you), you're doing her a disservice by representing her for free. Unlike lawyers in most other fields, criminal defense lawyers don't have to go looking for low bono work; it comes to them. People will often call asking if you do pro bono work. Think of them as telephonic panhandlers. But, as I wrote here, the people who need our help so badly that we feel compelled to give it for free are never the ones who ask for it; they are the ones who want to pay, have some money to pay, but don't have enough to hire someone competent. Lots of people will call without the money to hire you. When you see a case in which someone is going to really get the shaft because she doesn't have the money to hire competent counsel, consider taking the case (rather than leaving her to the mercies of the letter lawyers and V-6s) for whatever she can pay.

More Legal First Aid

I've edited the Legal First Aid -- DWI edition sheet a little bit, and added two more: Legal First Aid -- Search Warrant Edition ("The police are at the door with a search warrant. What do I do?"); and Legal First Aid -- Arrest Edition ("I'm being arrested. What do I do?"). As always, I welcome your comments. After all, the people reading this information may wind up being your clients as well as mine.

Technorati Tags: arrest, DWI, Legal First Aid, search warrant

Johnny Holmes and the Personal Moral Judgment

Thanks to Grits for Breakfast for calling my attention to this Houston Chronicle article about former Harris County District Attorney Johnny Holmes (Scott Henson calls it a "puff piece" and a "hagiography"). In the article Houston criminal defense lawyer George "Mac" Secrest gave Holmes a compliment, as much a shot at other elected DAs as praise of Holmes:

Former assistant district attorney George Secrest called Holmes "the antithesis of the typical district attorney." "He was a man of immense integrity," said Secrest, now a criminal defense lawyer.

Most notable to me, though, was the article's parting section, a discussion of Holmes's death penalty views:

Holmes rarely seeks to participate in debates on the death penalty, regarding beliefs on the matter as part of an individual's private system of moral values. Still, he personally believes there are "proper cases" where the death penalty is an appropriate sentence. "Obviously," he added, "what is a proper case is not ultimately up to the prosecutor, but to the fact-finders."

Okay, bullshit. Beliefs on the matter are, and should be, a part of an individual's private system of moral values. Like religious beliefs, they are not, and should not be, susceptible to logic or subject to argument. But Holmes's tack, passing the buck to juries, is disingenuous in the same way that this prosecutor's claim that "All we ever wanted to do in this case is to let a jury decide" is disingenuous. It's unbecoming of a man of such "immense integrity." But when a prosecutor tries a death penalty case he is not simply leaving the question up to the personal moral judgments of 12 people. Rather, he is coldbloodedly selecting 12 people whose "morals" most favor killing the accused, even to the extent of excluding anyone who is morally opposed to the death penalty. Then he is trying to convince those 12 people who favor the death penalty generally that the death penalty is the appropriate moral response in the particular case. In Texas, we have the law of parties: "Each party to an offense may be charged with the commission of the offense. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Just as they would bear legal responsibility for encouraging a murder, prosecutors bear whatever moral responsibility attaches to the deaths of the executed (including the innocents executed). They'd better be pretty confident that the Sixth Commandment (the Fifth, for the Lutherans and Roman Catholics) doesn't apply to the situation.

Technorati Tags: ethics, philosophy, death penalty

Legal First Aid -- DWI

The day before yesterday evening I was out with my family when the cell phone rang. A man called because his wife had been arrested that evening for DWI in Harris County. I could tell immediately that he was frantic. I calmed him down, reassured him, and explained how to get her bonded out of jail. Three hours later, at about 11:30 p.m., he called again. She was still in a city jail in the northern part of the county, and he wanted me to call the bonding company to ask them to make what they call a "two-trip bond." The bonding company's representative would have to drive from downtown to the jail (about 35 miles), get the accused's signature on the bond, drive back downtown, get the bond processed by the Sheriff's Office, return to the jail with the completed bond, and then return to the office, for a total of 140 miles of driving. It was going to take the company (Burns Bail Bonds, 713.227.3400) two hours of driving to make the bond, a major favor, so they didn't want to do it except at my request. I told the husband that I would call the bonding company and call him back -- he seemed to be genuinely grateful for my help. I called the bonding company and asked that they make the bond. Then I called the husband again. He thanked me and we scheduled a meeting for yesterday afternoon. (This was, bear in mind, about 11:45 at night.) He and his wife didn't show up at the meeting. No explanation, no apology, no contact, nothing. I called his mobile and their home number, and left messages. No response. It hurt my feelings and made me mad. That he didn't think he owed me even a call makes him a schmuck (which, as SHG would say, is Texan for "pendejo") of whom I'm well rid. This is the second time in a week that a potential client whom I've gone out of my way to help has ditched me without bothering to let me know. So, after quickly discarding plans of vengeance (I'll call him at 11:40 at night -- that'll teach him!), I set about finding a way to prevent this happening again. I considered, for a while, that maybe my strategy of paying it forward wasn't working too well for me. But I like helping people, and usually they appreciate the help. What I need to do is eliminate the callers who are going to be appreciative in the middle of the night only until they find someone during daylight hours who will represent them cheaper. (An aside: there are reasons that cheaper lawyers are cheaper; one of these reasons is that they can't be reached when you really need them.) To that end, I've produced the first of what I hope to be a series of Legal First Aid sheets, telling people on paper the things that I would tell them over the telephone in the middle of the night. My thinking is that if yesterday's caller had been able to download instructions, he wouldn't have called me until he was actually ready to sit down and talk with me. Here is the first of them, explaining what to do for a loved one arrested for DWI in Harris County before getting a lawyer involved. Comments?

Lawyer Salaries

Houston Chronicle reporter Mary Flood has a blog entitled "Legal Trade: A blog about lawyering" (is "to lawyer" a verb anywhere but inTexas?); today's post is about lawyers' salaries in Texas. (Thanks to Luke Gilman for the heads-up.) The median salary for all Texas lawyers is $113,500. The post links to a story in today's Chronicle about the reality of lawyers' salaries -- "first-year graduates from the three Houston law schools make as little as $30,000 a year and have a median salary of around $70,000." If you have a job making the median $70,000 in salary a year right out of law school, you're doing pretty well for yourself. If you're working for someone else and making $30,000 a year in Houston right out of law school, stop pitying yourself, get off your butt and hang out a shingle. If you're self-employed and making $30,000 a year right in Houston right out of law school, you're doing okay. You can look forward to infinite upside potential. Contrast all of that with three big Houston law firms "announcing that they're raising starting pay to $160,000." In Houston, where the cost of living is less than half of New York's. Here's a news flash for new law school graduates: unless you had a career in which you were earning six figures before law school, you're not worth $160,000 a year. If you're one of the few being paid $160,000 a year by a firm, the clients are getting ripped off. An hour of your time is not worth the $240-plus that they're paying for it. But it's not too late to look for honest work.

The Snitch Lawyer

Yesterday we attended a pretrial conference on a 19-defendant federal cocaine conspiracy case. Such cases are few and far between in Houston nowadays; the 15 lawyers in the room were in high spirits. When we were making our appearances on the record, the appointed lawyer for one defendant announced that he was asking to withdraw from the case because his client had hired the Snitch Lawyer to represent him. The Snitch Lawyer is notorious for rushing every client to the U.S. Attorney's office to cooperate with the government. He has not -- and he will freely admit this -- tried a case in the last 15 years. A few people charged with federal crimes should indisputably plead guilty; a few people charged with federal crimes should indisputably go to trial. The Snitch Lawyer doesn't have a small docket. He represents lots of people at a time. In the last 15 years, he has, without a doubt, pled guilty some people who should indisputably have gone to trial. Most people fall in the grey zone in between, in which either trial or plea might be appropriate depending on the accused's tolerance for risk. These people need the advice of a competent lawyer who can explain all of the options to them before they make the plea/trial decision. In order to explain all of the options, the lawyer has to consider all of the options. The snitch lawyer, who doesn't try cases, won't try cases. That's not an option open to him. If your only tool is a hammer, every problem looks like a nail; if your only tool is cooperation, every client looks like a cooperator. The Snitch Lawyer doesn't even bother looking at the government's case against his clients before running them down to the courthouse to plead guilty and cooperate. He couldn't possibly be informing his clients truthfully of their chances of winning at trial. Without being informed, they can't make a meaningful decision. The Snitch Lawyer would probably say that his clients have made the decision to cooperate before they hire him, that that is what they have hired him for. But no person accused of a crime is competent to make the key decision in his case without the advice of competent counsel, and a lawyer who has not, in 15 years, seen a case worth trying is not competent to represent people in federal criminal court. Many of the people the Snitch Lawyer has represented would, I do not doubt, have prevailed at trial if they had hired competent counsel who saw trial as an option. The Snitch Lawyer might, as evidence that he's doing the right thing, point to his clients who have received longer sentences if not for him. I would point to his clients who would have been acquitted if not for him, and ask how many people he's willing to sacrifice to get lower sentences for the others. Charles Sevilla, writing as Winston Schoonover, coined the term "V-6" for a walking violation of the Sixth Amendment. To me, the Snitch Lawyer epitomizes a V-6. The government couldn't have a better ally in the criminal defense bar if it paid him.

Technorati Tags: criminal defense, ethics, lawyers, snitches

More Advice to the Young Criminal Defense Lawyer -- Part 2. Books and Movies

A very short list of must-read books for the budding criminal defense lawyer (just those that pop into my head right now)

"To Kill a Mockingbird" (Harper Lee)

"Gates of Fire: An Epic Novel of the Battle of Thermopylae" (Steven Pressfield)

"Wilkes: His Life and Crimes" (Winston Schoonover [Charles Sevilla])

"The First Rumpole Omnibus (Rumpole)" (John Mortimer)

"Being Peace" (Thich Nhat Hanh)

"The Game: Penetrating the Secret Society of Pickup Artists" (Neil Strauss)

"My Voice Will Go With You: The Teaching Tales of Milton H. Erickson, M.D." (W. W. Norton & Company)

"Frogs into Princes: Neuro Linguistic Programming" (Richard Bandler, John Grinder)

"Impro for Storytellers (Theatre Arts (Routledge Paperback))" (Keith Johnstone)

"Indefensible: One Lawyer's Journey into the Inferno of American Justice" (David Feige)

And an even shorter list of must-see movies:

"True Believer" (Joseph Ruben)

"Primal Fear" (Gregory Hoblit)

Technorati Tags: Books

Stop the MADDness

Libertarian ex-prosecutor and anti-drugwar mouthpiece Robert Guest writes about Mothers Against Drunk Driving stealing our tax dollars. It seems that the National Highway Transportation Safety Agency has given MADD $400,000 to watch DWI court proceedings in New Mexico. Here's New Mexico Governor Bill Richardson's press release about the "contract." In part:

The court monitoring project will provide feedback to the state on the status and effectiveness of current laws and court processes. The program will increase dialogue between the criminal justice system and the state, in an effort to reduce alcohol-related crashes. New Mexico Department of Transportation Secretary Rhonda Faught said, "NMDOT is proud to be involved in this monitoring effort. The courts are a venue often overlooked by the public in the battle against drunk driving. We are pleased to be taking a detailed look at what is happening in court rooms in the counties on the front line in New Mexico's efforts against DWI." According to New Mexico DWI Czar Rachel O’Connor, "A large percentage of the calls that come in are from people concerned about the adjudication of DWI cases – such as swiftness of case handling, whether sentencing guidelines were followed and justified dismissals. This project will enable us to observe and record data and work cooperatively with the courts towards positive change."

"Dialog between the criminal justice system and the state"? Unless I'm very much mistaken, the state employs most of the participants in any DWI case in the criminal justice system. By giving the very political agenda-driven organization $400,000 of taxpayers' money, the government employs that organization, over which it has no oversight, as well. What do you suppose "positive change" is going to mean to MADD's courtwatchers? More convictions, faster, and more punishment. After all, if your sole goal were "reduction of alcohol-related crashes," you could do away with due process, convict every person accused of DWI (regardless of the facts) and put them all in prison. MADD doesn't quite advocate that, but here's a taste from MADD's website: "MADD believes that all who are charged with DUI/DWI offenses should be prosecuted as charged, rather than be allowed to negotiate to a lesser offense, especially a non alcohol related offense." Sure, it isn't fair, and sure, it'll waste a bunch of public resources, and sure, you'd punish a bunch of innocent people, but you'd accomplish your goal. Like MADD, I'd like to reduce alcohol-related crashes. That's why I won't drive after having more than one drink. Unlike MADD, I don't think that reducing alcohol-related crashes is more important than due process or common sense.

Technorati Tags: DWI

Pistol-Packin' Prosecutors -- An Englishman's Response

I wrote here about the new Texas law permitting prosecutors to carry guns to court. An English magistrate picked up on the story here:

The idea of knowingly allowing weapons to be taken into court is stupid enough; but by prosecutors? Most of the CPS [Crown Prosecution Service] I deal with are people I would not trust to feed my goldfish, even if I had any goldfish. If they turn up in my court packing heat - I'm going to look for something - anything - safer to do in my spare time.

The comments are diverting as well.

Technorati Tags: blawgs, guns

More Advice to the Young Criminal Defense Trial Lawyer -- Part 1. Boundaries

The first of Adam Levin's questions that I'll tackle is, "What practical advice do you have for maintaining boundaries in your life?" As a criminal defense lawyer who has gone from practicing out of an "executive suite" straight out of law school, to a series of fancy offices downtown, to an office in my house (an upward move each step of the way), I've given a lot of thought to boundaries/ Social Boundaries Except for the clients who were friends before they were clients, I don't socialize with clients outside of the context of our representation. I have had clients with boundary issues -- calling excessively or at inappropriate times or for inappropriate reasons -- and have managed to retrain them. I see it as neither possible nor desirable, however, to remain detached from my clients. These are human beings, with human stories, and they will be best served by a lawyer who can feel their stories and relate them truthfully to juries. Space Boundaries The office is in the house, and can be closed off from the rest of the house. I generally manage to keep the practice in the office. When I don't have clients in, the kids and dogs are welcome in the office. When clients are visiting, only one dog is allowed in (he sleeps under my desk; visitors usually don't know that he's there until they hear him snoring). Time Boundaries This is not a 9-to-5 job; nor is it a five-days-a-week job. When an accused needs to talk to a criminal defense lawyer, he needs to talk to a criminal defense lawyer now -- sometimes because there's an emergency, but more often because he needs to be told why the perceived emergency is not an emergency. I have always had my office phone line follow me around, so that it rings wherever I am; that way I am in control of how long I talk to whom. Working hours are flexible; while I'm often working before 8 or after 5 or on weekends, I'm also often spending time with my family during "normal" work times. I was going to write that my way of life is very nontraditional, but in fact it is a very traditional one; the unification of work and family has a much longer and richer tradition than the modern American separation of what we "do" from how we live.

More Advice to the Young Criminal Defense Trial Lawyer -- Preface

I wrote back in April about Advice to a Young Criminal Trial Lawyer. Yesterday I got an email from Adam Levin of the Southern Criminal Law and Justice blog, asking for answers to specific questions that new criminal defense lawyers might have. (Adam sent the email to nine other criminal defense bloggers as well; Jon Katz of Underdog has already posted his replies under the title, It's not how you dress, but how you persuade). I think you could write a book on the subjec -- maybe The Education of a Criminal Trial Lawyer on the model of Herbert O. Yardley's classic The Education of a Poker Player. I'll try to answer all of Adam's questions in the next couple of days. Adam will, I'm sure, welcome responses from other criminal defense lawyers. Here are the questions: Philosophy

What practical advice do you have for maintaining boundaries in your life?

What are some must-read books for the burgeoning criminal defense attorney (non-fiction or fiction)?

How about films?

Do you perform volunteer, pro bono, or low bono work? Why or why not?

How important is it to be involved in local politics or the local bar?

If you won 10 million dollars, how would your practice change?

Clients

Is it necessary to like your clients?

Maintaining client confidentiality is obviously important. What advice do you have for maintaining it?

Is it ever appropriate to sugar-coat a situation for a client?

Do you always return calls within a set period?

What advice do you have for dealing with difficult clients?

What is your thought process before deciding whether a particular client will testify at trial?

In your mind, what are appropriate reasons to turn away a potential client?

Do you subscribe to a "client centered" approach to your work? If so, what does that entail?

Investigation

What is the most over-looked tool of investigation?

If you live in a jurisdiction that uses optional reciprocal discovery, do you recommend its use?

Do you have any tips for using your investigator effectively?

Trial

What do you do before trial to calm your nerves (assuming you still get nervous)?

Is the old advice about starting with your closing statement and working backwards still good advice for preparing a case for trial (it's what they were selling at my law school)?

Other than trying cases, where should an aspiring criminal defense attorney look to improve his or her trial skills?

Any quick tips for Direct Examination?

Any tips for Cross Examination?

How important is it to get your client into a nice set of clothes?

What pointers do you have regarding appropriate attorney attire in the courtroom?

Technorati Tags: advice, criminal defense, lawyers, philosophy

What is a Win?

"How many cases have you won?" I hate the question, because for the answer to mean anything, the person asking and the person answering have to mean the same thing by "won," and that can rarely be ensured. If my client is acquitted, that's a "win," right? In most cases it would be. But what if, because we win one case, the government files a more serious charge (one that it can prove) against the client? I had a client whose 2-kilo cocaine case I beat in state court, only to see him receive six years in federal prison for the illegal reentry that the feds might not have bothered with had we not prevailed in state court. Is a pyrrhic victory a win? At the far end of the outcome spectrum from an acquittal, a jury conviction is a "loss," right? Not necessarily -- it might be a "win" if the accused is punished less for having gone to trial than she would have been for pleading guilty. This is a common outcome in Texas, where an accused can elect to have punishment assessed by a jury. It's less common in federal court, but I've had it happen several times. What about a guilty plea? Is a guilty plea a win or a loss? How can it be a loss if it's an outcome agreed to by the accused? If the accused goes to prison, how can it be a win? (I wrote here about an Odd Sort of Victory -- a plea to life in prison to avoid a possible death sentence.) Some lawyers claim never to have lost a case. If "losing" means having a jury convict a client, then any lawyer who tries criminal cases, loses cases. The lawyer who has never had a client convicted by a jury hasn't tried enough criminal cases. We do the greatest good on the edge, trying not only the cases that are sure winners, but also the cases that need to be tried; if some of our clients aren't being convicted by juries, we're not trying all of the cases that need to be tried. For that matter, if some of our clients aren't being punished more harshly after trial than they could have been had they pled guilty, we're not working on the edge, testing the bounds of what a jury will do. I have lost cases. I've had plenty of clients convicted by jurys. Some of them have received greater punishment than they would have received under a plea deal. Strangely, though, those aren't the losses that rankle most -- to me or to the clients. The cases that feel most like losses -- that carry the greatest stench of defeat and wake me most often at three in the morning -- are cases in which my clients pled guilty but probably shouldn't have, in which I could have and should have done more to convince them to go to trial. I find that clients feel much the same way -- they often express buyer's remorse after a plea, but they are almost always satisfied by having someone fight for them at trial, whatever the outcome. Sometimes simply to fight is to win.

Technorati Tags: criminal defense

Who Are We?

Scott Greenfield wrote yesterday about why we don't belong in biglaw:

And then there was the bottom line. Regardless of all the things that we hold dear today, there was a baseline requirement that lawyers be gentlemen. Not hold the door open for ladies type of gentlemen, but boarding school type of gentlemen. Choate, Phillips Exeter, sort of thing. . . . . Criminal defense lawyers don't belong in the hallowed offices of Biglaw. We don't eat properly. We sometimes speak in plain English (or even other languages). We laugh too loud, and usually come from public schools.

Scott's post reminded me of a book I read in the 80s: Paul Fussell's Class: A Guide Through the American Status System. Fussell described the social classes present in America: upper, middle, proletarian, and bottom, as you might expect, but also "category X" -- people who have voluntarily withdrawn from the class system. (Read a review of the book with more detail.) The biglaw "gentlemen" described by Scott likely fit into Fussell's upper class or upper-middle class (the private prep schools he names are upper-class institutions, but eating ribs with a fork and knife is decidedly middle-class behavior). Prosecutors and the bulk of lawyers in small- and medium-firm practices -- really, all lawyers with regular paychecks -- are mostly upper-middle to middle-middle. (They may have started life in the lower-middle or prole classes, though.) Law school provides an entree to the middle classes, but not, generally, higher. Since the classes are not defined solely by money, many lawyers make a bundle practicing law and remain resolutely middle-class. The lawyers kvetching here about the unfairness of having gone to law school only to work as a temporary employee for biglaw, reviewing documents in a basement somewhere, are solidly middle-middle and lower-middle -- they went to law school to join the upper or upper-middle class, and found that it's not that easy. The American middle classes are, by definition, concerned with what other people think of them. They want to be upper-class (or at least upper-middle), and try to behave as though they are. Topeka district court judge Joe Johnson, formerly a criminal defense lawyer, used to say:

We're criminal defense lawyers. We have no shame. When we fart in a crowded elevator, we look around and, without cracking a smile, say "what, like you don't do it too?"

If Judge Johnson's analysis is correct (and I believe that it is), then we criminal defense lawyers are clearly not middle-class. Because we have to work for a living, we're not upper-class. Few of us, on the other hand, are destitute. Where does that leave us? Some would say that we are Category X (which has nothing to do with Generation X, though some of us could be both) -- fugitives from the class system. Fussell's Category X, however, seems to have departed the class system because of disdain for the system; criminal defense lawyers, by contrast, don't care much about the system -- we simply don't fit in. In many ways the class that we have the greatest affinity for is the proles. Like "high" proles, we are effectively highly-skilled, highly-paid tradesmen (many plumbers make more than many criminal defense lawyers); people call us when the well needs fixing. We generally don't need to impress or to be impressed; we are down-to-Earth, simple folk -- traits we've developed from helping and befriending society's outcasts. We don't, however, suffer fools gladly. If criminal defense lawyers are proles, classwise, that would help to explain Scott's biglaw acquaintance's response to him:

I asked where he thought a solo practitioner like me belonged in the scheme of lawyers. He was silent for about a minute, and then said, "I really don't know." He knew we existed, though he rarely came into contact with someone like me. He understood that we played a role in the legal profession, but there was never a reason for our paths to cross. There was no disdain toward solo practitioners, or criminal defense lawyers. None at all. We just had no place in Biglaw.

To the Biglaw partner, Scott's question made no sense. He might as well have been asking about plumbers' place in the hierarchy of lawyers.

More DEA Skulduggery

I have a client, "Joe," who got shot three times by a DEA agent. DEA agents were following my client because they believed he had been involved in a drug transaction; he swapped paint with one of the agents, who shot him after the collision. Getting shot after a tussle with a DEA agent shouldn't be much of a surprise to anyone; that's not what's notable about this case. What's notable about this case is what the DEA and local law enforcement, but especially the agent who shot Joe, did after the shooting. The shooting was investigated by deputies from the local sheriff's department. In his report the lead investigator noted that, in addition to the shooter (I'll call him "Derrick") and the shootee, there were eight witnesses to the crash and the shooting -- three DEA agents and five officers from local small-town police departments. So: the investigator turns up at the scene of the shooting, and he starts interviewing the (police) witnesses. He talks to "Will" first; Will tells him that he saw Joe strike driver's side of Agent Derrick's vehicle with the truck, causing the truck to spin out, saw Joe accelerate his truck forward and strike Derrick's vehicle in the front end, and stopped his Expedition behind the truck so that Joe could not reverse backwards and either escape or try to injure Agent Derrick with the GMC truck. As Will got out and approached the truck from the rear, he heard three gunshots. He did notice while getting out of his Expedition that Joe was continually moving in the cab of his truck and verbal orders was being given to Joe but he was not complying. Will said Derrick was wearing ballistic vest saying "police" and DEA. Okay, so Joe got shot, not in retaliation for hitting Derrick's vehicle, but because he was "continually moving in the cab of his truck" and not complying with "verbal orders." Great, so we'll get that down in writing, right? Will agrees. Then Will changes his mind, and decides to invoke his right to counsel. Fair enough. That's his right, even though it doesn't appear that he did anything even remotely wrong, and it doesn't appear that he needs to do anything to protect himself. But the Fifth Amendment is the Fifth Amendment, and if a police officer gets a wild hair and wants to plead it, he's as entitled to as anyone. There are eight other cops (including Derrick, who has gone to the ER for nonexistent injuries) for the investigator to interview. So what do you say, guys, want to give a statement? Um, well, no. Out of nine cops present at the scene of the shooting, nine invoke their right to counsel. (Did you get that, folks? The police know not to talk to the police without counsel!) An accident reconstructionist from the sheriff's office investigates the scene and finds that Joe's car had, after colliding with Derrick's car and coming to a stop facing it, moved back. In fact, there is a skid mark with the "appearance of an acceleration in reverse by Joe's truck which was stopped by making contact with Will's Expedition." Now the investigator goes to the hospital and interviews Joe. Joe, who isn't a highly-trained police officer, doesn't know to take the Fifth. He says he thought he was being carjacked; a gold or tan colored car came out of a convenience store and caused him to wreck his truck. The next thing he knew, he was shot and the police were there. No lights were on. "When making left turn a brown Buick pulled out in front of me a the store I swerved to the right. He hit me from behind I spin around no lights was on to let me know that was a police. I was shot maybe 1 to 3 shot in arm, grazed on chest and neck." Two days later DEA Special Agent "Noel" calls the investigator. Noel says that Derrick had retained counsel ("Larry," whose job is representing federal agents who are involved in shootings). (From the fact that it was a DEA agent who calls with this message, rather than Larry or his assistant, we can draw the logical conclusion that taking the Fifth when questioned about a shooting is not simply the agents' bright idea, but in fact DEA policy.) The next day two things happen in the investigation. First, a lawyer, "Geoff," calls, telling the investigator that he represents Derrick on behalf of Larry. Second, the investigator receives supplemental reports from the small-town narcotics cops who had invoked their right to remain silent at the scene. According to Officer Alfonso, Derrick exited his vehicle after Joe accelerated toward the front of his vehicle, striking it head-on. Derrick then gave "verbal commands" to stop and show his hands, Joe refused to comply, and Derrick fired his weapon three times. Alfonso didn't do anything, though. (The police know to take the Fifth even when they didn't do anything!) Officer Ivan's account matches Alfonso's (it's funny how witnesses' stories match when they have had three days to discuss them): Derrick exited his vehicle after Joe rammed him twice from in front. Then "the suspect disregarded all instructions to stop and quit moving, he continued to make furtive movements inside the cab of the vehicle which could not be seen. Agent Conn then fired his weapon three times and struck the suspect several times." Pretty clear, right -- disregarded instructions plus furtive movements. Officer Michael didn't see much: "The suspect's vehicle started skidding and spun around. I then pulled up and stopped at the back passenger's side of Agent Derrick's vehicle. I then reached for my gun and as I was opening my driver's door to exit I heard three gunshots." Now Will gives a written statement: "Immediately after striking Derrick's vehicle the second time, reverse lights came on as I closed distance to the rear of the vehicle. I heard three gunshots as I stopped at the rear of the suspect's vehicle. When exiting my vehicle I noticed the suspect continually moving in the cab of the truck and he was not fully complying with the verbal instructions he was receiving." The last small-town narcotics cop who took the Fifth, "Greg," didn't (as it turns out) witness any part of the incident as it was occurring, "but did arrive on the scene shortly after the fact." (The police know to take the Fifth even when they didn't see anything!) Get the picture? Joe Collided with Derrick, spun, they were facing each other. They collided head-on and stopped. Derrick got out of his vehicle, ordered Joe to show his hands; instead Joe tried to accelerate backwards but was stopped by Will's vehicle, Derrick shot Joe. Six days later -- nine days after the incident -- the DEA's ASAC, "Al," brings the four DEA agents' statements to the sheriff's investigator. According to the statements, three of the agents arrived at the scene after the shooting. (The police know to take the Fifth even when they don't know anything!) The fourth was Derrick; that's where the story gets interesting. Derrick claims that, after the collision, when the two vehicles were facing each other in the road,

I immediately put my vehicle in park and opened my driver's side door, pulled my weapon, and pointed my weapon at the driver of the beige pickup truck, who remained inside the vehicle behind the steering wheel. I stood in the space that formed a "V" between my door and the vehicle and uttered a number of loud verbal commands to the driver of the beige pickup. The driver did not respond. I heard the engine revving and the vehicle immediately and quickly drove straight towards my vehicle and hitting the front left center of my vehicle with considerable force. As a result, my vehicle was pushed back and to the left. Door frame hit my right forearm. I took a step back, still in the V between the door and the car. Truck continued to push my vehicle backwards. I feared for my life and believed I was in imminent danger . . . I moved backwards and continued to fear for my life. I perceived no safe retreat. At this time, I fired my weapon at the driver of the beige pickup truck through the windshield in order to stop the threat to me. Driver moved slightly back and stopped revving the engine. Surveillance team arrived on scene and took driver into custody.

Derrick's statement has all the right language to justify the shooting, but I would bet that it is a fabrication. Why? First, because the statement doesn't match the physical evidence. Second, because none of the three other officers who admitted being present when the shooting took place saw or heard anything even remotely like Derrick described. We could debate whether Derrick's shooting of Joe was legally justified. I think it's probably a close call. Based on his lie, he was cleared by the DEA's Office of Professional Responsibility ("OPR"). After all, none of the other DEA agents saw anything, and the OPR didn't have enough interest in the truth to talk to the local cops on the task force. This episode carries three lessons:

1. DEA agents lie to cover their asses.
2. DEA agents aren't policed very carefully by their Office of Professional Responsibility. Quis custodiet custodes ipsos?
3. Most importantly, don't talk to the cops.

Knowing that the police lawyer up when they're questioned about their actions, inaction, knowledge or lack thereof, why on Earth would anyone ever answer police questions?

Technorati Tags: DEA

Duck!

I wrote here about a proposed bill to allow prosecutors to carry guns to court. Well, it passed. Effective June 15, 2007, prosecutors with concealed handgun licenses can take their guns to court. (Text of the bill.) I'm sure some RTKBA advocates are cheering this move, but having the government's flunkies better-armed than the people is the evil the Second Amendment was intended to ameliorate. Anyway, now said flunkies, with -zero- training in retaining their handguns, can go to court armed. Do you feel safer? I know I do.

Prosecutorial Skulduggery Uncovered by Grits

I'm glad we have Scot Henson (Grits for Breakfast) keeping an eye on those Texas prosecutors for us. Here he calls our attention to this thread on the TDCAA (Texas District and County Attorneys' Association) forum about a federal prosecutor agent trying to justify not telling the defense the fact that narcotics officers removed the license plate from an informant's car before the informant provided it to the accused. The officers then used the missing license plate as a pretext for a stop, saw the dope "in plain view" (really? The defendant was driving around with something that is obviously drugs in plain view?), asked for and received consent to search the car, seized the dopes (the drugs and the consenting driver), and "expanded on" the case. The prosecutorDEA agent, "Bill" (mathisfield at yahoo dot com), is trying to justify concealing from the accused the fact that there is an informant in the case. This search might well pass muster in Federal court (New York criminal defense lawyer Scott Greenfield writes here about Whren v. U.S. and the pretext search doctrine), or it might, in the words of one of the TDCAA commentators, "make some really bad case law." I haven't researched the issue, but off the top of my head, I would argue that police-created probable cause, like police-created exigent circumstances, can't justify dispensing with a warrant. Further, this is a deliberate attempt to circumvent existing law, like the one rejected by the Supreme Court in Missouri v. Seibert, 542 U.S. 600 (2004). Also, entrapment and sentencing entrapment are well-developed areas of the law; PC entrapment would not be a stretch. The accused would have a better chance in Texas state court. In addition to the arguments that could be made in federal court, the accused would be protected by the Texas exclusionary rule, Article 38.23 of the Texas Code of Criminal Procedure, which says that no evidence obtained in violation of the constitution or laws of the State of Texas shall be admitted into evidence against the accused. If the police removed the license plate without the informant's consent, they stole it. There may be a good argument that the discovery of this evidence resulted from that law violation. The State might then respond that they had the informant's permission to remove the license plate, but in order to prove that (beyond a reasonable doubt, which is the standard for them to overcome a 38.23 challenge), they might have to bring the informant in to testify. But the defense is not likely to know to raise these issues if the government conceals the fact that the police tampered with the car; this is the concealment that "Bill" is trying to rationalize. Whether the stop was legal or not, "Bill's" prosecutorial respondents seem to agree with me that his rationalizations are no good -- that the government has a duty to reveal that it orchestrated the probable cause. [Edit: Scott points out that "Bill" is not a prosecutor but a DEA agent. This changes lots -- it's not prosecutorial skulduggery but DEA skulduggery (which should surprise nobody). The prosecutors are in the right here, telling the DEA agent that his rationalizations stink.]

Technorati Tags: criminal defense, prosecutors, search and seizure

A Day in the Work of a Criminal Defense Lawyer

I wake up and start getting costumed for first court appearance with new client (he's accused of assaulting a cop). The telephone rings. A fellow criminal defense lawyer and member of the Harris County Criminal Lawyers' Association (of which I'm president-elect) has shown up late for court and gotten himself jailed for contempt. I add him to my calendar, send an email to the association's listserv, and print a copy of my "get out of jail free motion." I load the motion into my briefcase, grab a bottle of water and head for court. Breakfast is a breakfast bar and water in the car on the way to court.

I see my new client in the courtroom and check in with the court coordinator. Bad news: according to pretrial services, my client has tested positive for cocaine twice since making bond -- once right after his release, and the second time two weeks later (a week before court). Cocaine generally shows up in urine for two to three days after use, so the judge is going to think the accused has used cocaine while on bond. That's not good. I explain to the client that he's going to be taken into custody when he answers the docket, and why, and tell him to sit tight. Then I go across the hall to the court where the lawyer is being held. Two other HCCLA officers saw my listserv message and beat me to court; the judge has already set a personal bond for the lawyer. I check with the clerk (working on the paperwork), check in with the lawyer (contentedly working sudoku puzzles in the holdover), and go back across the hall.

My client has, as expected, been taken into custody. I talk with him privately; he doesn't understand how he could have tested positive the second time. He offers to give another sample. Thinking that might be a good idea, I talk with the judge -- she's a retired judge, sitting in this court because the regular judge is on vacation. I ask her to have my client retested. She doesn't know if that can be done. I talk to the court coordinator. He says that the only way it can be done is if the judge reinstates my client's bond and sends him downstairs to pretrial services to give a sample. Judge says no dice. I tell my client.

I have other things I was planning to do in the courthouse this morning, but I plan to go down to pretrial services on the 12th floor first to try to talk to his pretrial officer (and see if she'll concede that the test results could be in error) and then work my way back up to the 19th floor. The pretrial officer isn't in yet. I have motions to file in a murder case, so I go to that court on the 14th floor and file the motions, then up to the 18th to drop in on a prosecutor who's prosecuting another of my clients for intoxicated assault. He is in trial, but they are in recess; he takes a moment to tell me that he will no longer be handling my client's case.

One of the court staff tells me that the prosecutor who will be handling my client's case is in a misdemeanor court today. So I head back downstairs to the 11th floor. She's not there. Back up to 19. The release papers for the lawyer are ready. I get the judge to sign, get the lawyer to sign, give the papers to the clerk, get the bailiff to confirm with the judge that the lawyer is free to go. Then back across the hall to help my client with the dirty pee. This court is in trial; the judge is reading the jury its instructions on a murder case.

I slip back into the back hallway to talk to the court coordinator; he proposes that we reset my client's case till next week -- Tuesday is the earliest opening -- so that I can talk to the elected judge of that court. Very well, if that's what I need to do. I sidle through the courtroom to the holdover cell, and explain to the client that he's going to be spending the weekend in jail before we can try to get the elected judge to let him out. He asks me to try one more time with the visiting judge. It's getting to be 11 a.m. and I should be hitting the road to get to my afternoon appearance in federal court in Beaumont (90+ miles down the freeway), but I promise to try.

By now the lawyers have begun their arguments in the murder case. I sit and half-listen to the lackluster arguments while hacking on my laptop (what did I ever do before wireless broadband?). As noon approaches, I start to get nervous about making it to Beaumont on time -- I have no idea how long the drive will take in the rain. The arguments wrap up, and the judge sends the jury out and then leaves the bench. Erp. I head for the back hallway and catch the judge before she goes to lunch. She's talking to an intern from the DA's office and the court coordinator.

"When you hire a lawyer," she observes, "you want him to keep trying and trying and trying. I think that's what Mr. Bennett is about to do." I explain my client's situation -- that he has a good job, and two kids he supports. She decides that the right thing to do is to let him back out for the weekend, but get him back in court on Monday for the elected judge to decide what to do with him. Eminently fair. I can't give my client the good news because he has already been sent to the jail, but on my way to the car (schlepping my jailed client's belongings) I call his girlfriend so that she can pass the news on to him. Then I hit the road.

In the car I catch up on telephone calls that I missed while waiting in court. The drive to the Beaumont federal courthouse, for future reference, takes about 80 minutes in rain and heavy traffic. I make contact with the prosecutor; this would be his first detention hearing, but he is willing to waive detention (for my client indicted for possessing a kilo of cocaine and a gun, so that there is a presumption against release) if the federal pretrial officer thinks that release is appropriate. She does; we wait for the judge, who arraigns my client (not guilty, your honor) and sets the conditions of release proposed by the pretrial officer.

Then it's a quick late lunch at McDonalds (check emails and return calls) and back in the car to Houston. More calls in the car (forget wireless broadband; what did I do before cellphones?). The drive back goes faster than the drive out. Back at the office to read the physical mail, hand over my still-temporarily-jailed client's belongings, process my inbox, and prepare for the next day's court appearances. It sure beats working for a living.

Most Evil Legal Principles

Gideon has started a lively discussion on the Most Evil Legal Principles. Harmless error seems to be in the lead. Check it out.

Technorati Tags: blawgs

Wrong, Wrong, and . . . RIght?

Young Shawn Matlock, Ft. Worth criminal defense lawyer, writes here about his "conservative" (in American politics, code for "in favor of big government unless it gores my ox") political views. Not to pick on Shawn, but here are some highlights of his goodnatured post:

Do I think, in general, Bennett’s person convicted of trafficking 400 grams of cocaine should be punished with a mandatory minimum. Yes. Are there situations when that might not be appropriate? Of course there are. But fundamentally, I think the concept is fair.

Wrong. The fundamental concept of mandatory minimums is there are no situations when the minimum might not be appropriate. If the government has a rule that something must always be so, and you oppose the rule in some cases, you don't favor the rule. You may think 15-year sentences are fair for most people convicted of the crime (if you did, you probably wouldn't want to tell your clients that), but if you don't think they are fair in all cases, then you don't think mandatory minimums are fair.

Do I think a person convicted of sexually assaulting a 6 year old boy should have to register as a sex offender and let everyone know wherever he lives for as long as he lives? Yes. Does it suck to be that guy? Probably more than any of us that haven’t gone to prison as a child molester will ever know. But do I think the person should have to register? Absolutely. Why? Because I want to know that someone like that lives near me, so that I don’t let my two year old son play unsupervised around him.

Wrong; it's a straw man argument. First, the group of people living in our neighborhoods after having been convicted of sexually assaulting 6-year-old boys is a very small one; most such convicts will be in prison until they are very old. Second, the group of sex offenders who violate strangers is a very small one. The stranger who assaults 6-year-old boys is a classic government-generated bogeyman. Only 4.6% of reported sexual assaults against boys aged 6-11 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 problem with sex offender registration is not that the pedophiles and violent assailants have to register (they would probably prefer registration to incarceration), but that the 20-year-old with the 16-year-old girlfriend has to register for life, and the guy who twice responded to come-ons from the wrong people (that is, cops) at the gay bookstore has to register for life, and the 12 year old who played doctor with his 12-year-old friend has to register for life. The government has broadened the group of people treated as "sex offenders" beyond usefulness to justify registration laws. I was going to announce that Shawn had made a triple-play of wrongness with this paragraph:

The bottom line is that I don’t think you have to be completely anti-establishment to be a successful criminal defense attorney. There is a burned-up, charred American flag hanging in a frame in my office. It was given to me by a former client who I represented pro bono because I thought he was getting a raw deal. He was an Army Ranger, and he stopped two guys that were antagonizing a woman at a bar. A fight ensued and he hurt one of the other men. Surprisingly, he was indicted for Aggravated Assault. We were able to convince the jury of my client’s innocence, and we walked out of the courtroom together. About a year later, he sent this flag to me that he had recovered from demonstrators in Saudi Arabia. The simple note inside said "This is what you and I are fighting for."

If Shawn were employing the flag as a metaphor for government, he would be tremendously, magnificently, absolutely wrong. Wrong in a Coulterian way. The flag doesn't stand for the government. I think Shawn knows that, which is why I'm not inclined to ding him for the third "wrong." Rather, I think Shawn is correctly using the flag as a metaphor for the nation and, by proxy, for the Constitution. I'll come back to the Constitution, but first a few words about the flag. The government tries to appropriate it (with the help of its "conservative" friends who falsely claim that being anti-government is being anti-nation), and sometimes opponents of the government try to give the flag to the government (by burning it, for example, in protest of the government's policies). But the flag never has belonged to or stood for the government. It belongs to and stands for the nation, and for the document establishing it: the Constitution. So. What, if anything, does the Constitution teach us about being pro-government or anti-government? We know that the people who wrote the Constitution were fervently anti-government. They were so anti-government that they picked a fight with the biggest, baddest government on Earth -- not an occupying power but their government -- and, in a serious land war, kicked its ass. Overthrew it. Sent it crying home to mummy. Then, realizing that government was at least inevitable, they established a weak government. Knowing that governmental power is inimical to freedom, they wrote the Constitution so that it would be difficult for the government to get anything done. The unamended Constitution shows the founders' mistrust of government. So we anti-government thinkers are the direct political and philosophical heirs of the founders. If the founders were right not to trust government, then so are we. Having created a weak government, to make assurance doubly sure the founders tacked on the Bill of Rights. As a package, the first ten Amendments restricted the power of government in favor of human freedom. Read in context, each amendment creates a check on a particular aspect of governmental power:

1.The power to stop us from saying what we want and believing what we want. 2.The power to overpower us with force.¹ 3.The power to take over our houses. 4.The power to search us and seize us at will. 5.The power to take away our property and our lives. 6.The power to imprison us. 7.The power to divvy up our property. 8.The power to punish us. 9, 10.The power to do anything else.

Ponder the Sixth Amendment. It was written, as were the rest of the first ten Amendments, to provide a check on governmental power. We are that check. How many jobs are created by the Constitution? How many jobs could not constitutionally be eliminated?

Members of the House of Representatives; Electors; Senators; President; Vice President; Supreme Court justices; Jurors; and Criminal Defense Lawyers.

As the only non-governmental employees with a constitutionally-mandated job, criminal defense lawyers (and jurors) are not only right to oppose the government at every turn, but also obligated to do so. ------- ¹ Some seem to believe that the Second Amendment was intended to preserve our right to protect ourselves against muggers, or invaders, or squirrels. Not so. It, like the rest of the Bill of Rights, was written to protect us against the government. Our right to bear arms was preserved so that we could keep the government in check.

Technorati Tags: constitutional rights, freedom, government, philosophy

Politics and Defense

Young Shawn Matlock, Dallas criminal defense lawyer, writes here and here about his politics -- "conservative Republican" -- and his beliefs:

I am as "Law-and-Order" as anyone. I have no problem with mandatory minimums and I don't get worked up by the Sentencing Guidelines. I'm not anti-death penalty. I don't think drug offenders should get a chance at taxpayer-funded rehabilitation.

While I avoid partisan politics here, my regular readers (both of them) will recognize that Shawn's feelings about the building blocks of the retribution system are different than mine. I am not as "Law-and-Order" as anyone. I do have a problem with mandatory minimums. I do get worked up over the sentencing guidelines. I am anti-death-penalty and I don't think drug offenders should even be "offenders." (Not to pick on Shawn, but his politics are also internally inconsistent -- it is in a post lamenting relevant conduct, the heart of the U.S. Sentencing Guidelines, that he claims that he doesn't "get worked up by the Sentencing Guidelines".) Anyway, Shawn's got me thinking about how the connection between politics and this job. Here's a little video in which I discuss whether someone in this line of work can remain oblivious to the larger political implications of the job: That's not, of course, to say that being politically libertarian makes someone a good criminal defense lawyer. Nor is it to say that Republicans provide deficient representation. But there are fundamental philosophical differences between the Republican worldview and the defender worldview. For example, the principle that the slings and arrows of fortune might relieve an individual of responsibility for his actions is foreign to the Republican philosophy (I have one friend, a plaintiff's lawyer in North Texas, who was compelled to leave the Republican party when he developed too much empathy). Defenders, however, stand up for the unlucky. None of our clients are as fortunate as we are. A critical part of the job is being able to explain to judges and juries how it is that our clients' bad luck contributed to their transgressions against the peace and dignity of the State. If we didn't believe it, we couldn't persuasively argue it. It might not make a difference in the simple cases -- the DWIs and possession-of-less-than-a-gram-of-cocaine cases. But the bigger the trouble, the harsher the sentence, the higher the level at which we play, the more important is the belief that what we do is right on every level -- that we are on the right side of the front lines in the epic struggle between governmental power and individual freedom. Another example: if I thought that mandatory minimums were okay -- that the morons in Congress had correctly decided that my client, and every other poor schmoe charged with the same crime, deserved at least 5 years (or 10 years or 15 years or 20 years or life) in prison, I would not carry my passionate aversion to government into the courtroom, and the people sentencing my clients would see the reasonable range of punishment as, say, 15 years to life (for the possession with intent to deliver 400 or more grams of cocaine case). I'd rather show them why the appropriate sentence is probation and let the jury about not being allowed to give the sentence that they think is right. If the sentencing guidelines were just alright with me, I wouldn't be going in swinging to every federal sentencing, trying to explain to judges that they really don't have to follow the guidelines and why they shouldn't. I wouldn't have gotten some of the sentence reductions that I've achieved for my clients, but life would be much easier without a soul.

Technorati Tags: criminal defense, philosophy

The Second Simplest Story: A Prosecutor's Account

Ken Lammers (CrimLaw) recounts how a defendant made his prosecutorial job easier by telling the jury an implausible account of his innocence. Ken quotes the First Corollary to Bennett's Chainsaw, but doesn't refer to it by name.

The Opposite of Fear

Reading Malum in Se's excellent blog about life as a public defender on the Gulf Coast of Mississippi reminded me of a book recommendation that I've been meaning to make here. I've written before on the power of fear (here and here as well as elsewhere). Our adversaries use fear as a weapon against our clients; it is with the power of fear that they try to convince juries to put our clients in prison. Our adversaries are prosecutors; our enemy is fear. Fear enslaves. Though we defenders can occasionally, in the cause of freedom, invoke legitimate fears of a government run amok, we usually do not have a greater, more primal fear in harness than those invoked by the government. (This is, after all, why the government runs amok: because people are more afraid of the bogeymen summoned by the government than of the government itself.) What we do have is something that the prosecution can rarely bend to its own purposes. Because we stand up for human beings, we can invoke the opposite of fear. Malum's blog contains a computer-generated picture of a Spartan knight, which reminded me of the book I want to recommend, Steven Pressfield's Gates of Fire, which, in addition to being a beautifully-written novel of arms and the man, answers the question that some of you might be asking yourselves: What is the opposite of fear?

Technorati Tags: Books, criminal defense, fear

Objects of Punishment in Federal Court

The U.S. Congress, in its (ahem) wisdom, has specified the purposes of punishment in federal criminal cases:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

18 U.S.C. §3553(a)(2). (Notice that "making the victims whole" is not a purpose of punishment.) In a federal criminal case, the sentence should be "sufficient, but not greater than necessary" to satisfy those purposes. Id. §3553(a)¹. I alluded to the five purposes of sentencing here. (In New York, criminal defense lawyer Scott Greenfield tells us, there are only four. Punishment greater than necessary to provide rehabilitation, specific deterrence general deterrence, and incapacitation can only be justified by retribution, so nobody ever goes to prison in New York for any longer than is necessary to rehabilitate him, to make sure he doesn't recidivate, and to deter others. Isn't that nice?) How do section 3553's four objects of sentencing translate to the five purposes of sentencing? I'll start at the bottom and work my way up. When the government seeks to provide the defendant with training, care, or treatment, it's looking for rehabilitation as a penological goal. When the government tries to protect the public from further crimes of the defendant, it's after specific deterrence and incapacitation. When the government attempts to deter criminal conduct, it's trying to achieve specific deterrence and general deterrence. Those are all forward-looking utilitarian goals. That brings us to the first object (more accurately, three grouped objects) of punishment specified by federal statute:

To reflect the seriousness of the offense; To promote respect for the law; and To provide just punishment for the offense.

"Reflecting the seriousness of the offense" and "promoting respect for the law" do not fit neatly into any of the recognized penological goals, but they might be read as attempts at specific and general deterrence. Similarly, "providing just punishment" could be viewed as a summary goal of punishment -- a judge might think that she provided just punishment by satisfying the four utilitarian goals encompassed by subsections (B)-(D). But such a reading of subsection (A) is redundant, and probably wrong. More likely, Congress meant subsection (A) to give permission to judges to apply their own principles -- even principles of retribution -- to sentences in federal criminal cases. "Reflect the seriousness of the offense" is a vengeful, rather than merciful, imperative. Vengeance reflects the seriousness of the offense; mercy reflects only the quality of the judge. "Respect for the law" is in the eye of the beholder: just as a merciful judge might think that mercy promotes respect for the law, a vengeful judge, or one who suffers from a lifelong confusion of fear and respect, might well think that being vengeful promotes respect for the law. Like "respect," "just punishment" is a judicial ink blot, in which judges can see whatever fits best into their worldview. In a system of retributive justice born out of Mosaic law, in which justice is to be "tempered" with mercy, the truth is most of the people judging our clients still see "justice" as retribution. -------------- ¹ Booker and Fanfan gave us some hope that this phrase had meaning. That hope has been dashed time after time as judges punt on the difficult job of deciding what is right in favor of the sentencing-by-numbers scheme of the guidelines. Yet we keep trying.

Technorati Tags: criminal defense, federal, philosophy, punishment