The Texas Juror Experience Project

Kaufman criminal defense lawyer Robert Guest is looking for feedback from people who have served on criminal juries in Texas. An excellent idea. Robert would like answers to these eight questions:

1. What was the offense? 2. What was the verdict? 3. When was the trial and how long was it? 4. What evidence persuaded the jury? 5. Was the police officer a good witness? 6. What was the defense lawyers best arguments? 7. What was the defense lawyers worst arguments? 8 If you could tell defense lawyers anything to help them be more effective, what would it be?

Please email him at Robert(AT)RobertGuest(DOT)com if you can offer answers.

Minnesota Weenies

Normally I stay away from water-cooler topics, but, having represented numerous alleged weenie-wagglers in Texas, I was naturally curious about the facts and the law in Senator Larry Craig's Minneapolis-St. Paul Airport case. Here, as the arresting officer describes them, are the facts: Sergeant Karsnia is investigating lewd conduct in the men's restroom at the airport. He occupies a stall in the restroom, sitting in there for 13 minutes. The stall on either side is occupied. Senator Craig stands outside Sergeant Karsnia's stall and looks in through the crack in the door. There is no mention of what he sees, but we can surmise that eye contact is made. The senator looks down at his hands, fidgets with his fingers, and looks in on Sergeant Karsnia again. He repeats this cycle for about two minutes, until the stall to the sergeant's left is vacated, and the senator occupies it. The senator taps his foot, which the sergeant recognizes as "a signal used by persons wishing to engage in lewd conduct," and moves his foot closer to the sergeant's foot. The sergeant moves his foot up and down slowly, which we can only surmise is the countersign to the "tapping foot" signal. The senator touched the sergeant's shoe with his own, and then swipes his left hand from front to back under the stall divider several times. Then, about six minutes after the encounter began, the sergeant identifies himself as a cop. Senator Craig was charged with Disorderly Conduct and Interference with Privacy. He pled guilty to the former. In Minnesota, a person commits the offense of interference with privacy if he:

surreptitiously gazes, stares, or peeps in the window or other aperture of a . . . place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts . . . or the clothing covering the immediate area of the intimate parts; and does so with intent to intrude upon or interfere with the privacy of the occupant.

He commits the offense of disorderly conduct if:

in a public or private place, . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace . . . [engages] in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Imagine my disappointment to learn that, unlike in Texas, a cop in Minnesota doesn't have to get a senator to waggle his weenie in order to arrest him for a jailable misdemeanor. I guess people in Minnesota have more delicate sensitivities than Texans. Compare Senator Craig's Minneapolis bathroom behavior with what the cop did in the case I described in this post. If the Houston Police Department cop had simulated masturbation in the Minneapolis-St. Paul airport, he could have been arrested by Sergeant Karsnia (I picture him flashing his badge, saying "well, what do you think about this?"). Experienced criminal lawyers are masters of the game of "what really happened here?" We have to be -- often we have to rise to cross-examine a lying witness with no more ammunition than our knowledge of human nature. Prosecuting a criminal case is about shoring up the State's version of "what really happened" and showing that it is the only explanation for the evidence. Defending a criminal case is about demolishing the state's version of "what really happened" and showing that there is another explanation. The tools we have to work with are plausibility and verisimilitude So what really happened in Senator Craig's case? One additional piece of information we have to include in our account this article from the Idao Statesman, in which the paper claims:

In an interview [four weeks before his Minnesota arrest], Craig told the Idaho Statesman he'd never engaged in sex with a man or solicited sex with a man. The Craig interview was the culmination of a Statesman investigation that began after a blogger accused Craig of homosexual sex in October. Over five months, the Statesman examined rumors about Craig dating to his college days and his 1982 pre-emptive denial that he had sex with underage congressional pages.

Given the limited information we have, one possible defense is that the cop is lying and the senator didn't do anything untoward. People want to believe cops. Most people are shocked when they finally realize (usually because they are affected by the lies) how often police officers lie. So this defense requires a plausible explanation for why Sergent Karsnia would lie. Cops lie for many reasons. I don't know Sergeant Karsnia, and I don't know why he would lie, or if he would. But the Statesman article raises the specter of a successful political hatchet job. If we could convince a jury that it is plausible that Sergeant Karsnia was a Democratic goon in league with those who made false accusations of homosexual sex against the senator in October, we might win the case. In favor of the conspiracy theory is the fact that the senator was busted in an airport in Minnesota for conduct that probably wouldn't be grounds for arrest in most states. While the grand conspiracy theory has a lot of entertainment value, it's short on verisimilitude. There has got to be a simpler defense, right? Right. There is. The simplest defense that I see to this case -- a defense that may comply with Bennett's Chainsaw -- is this:

Senator Craig is gay. He has been gay for years. He has hooked up with lots of anonymous gay men in restrooms across the U.S. Senator Craig, having been a closeted gay man and a public figure for years, is not about to proposition someone who is not showing interest in him. Because he has done it so many times, Senator Craig knows how to find anonymous gay men interested in hooking up in restrooms. He knows the difference between a gay man showing interest in him and someone just minding his own business. Sergeant Karsnia, likewise, knows the difference between looking like someone minding his own business and looking like a gay man showing interest in a senator. He knows that he is more likely to catch his prey (gay men being lewd in the restroom) if he shows interest than if he acts like he's minding his own business. In the main public men's restroom of the Northstar Crossing in the Lindbergh Terminal of Minneapolis-St. Paul Airport on June 11, 2007, Sergeant Karsnia was acting like a gay man looking for a hookup. The senator may have observed the scene for some minutes before making the first move. If he did, he saw the officer sitting in the stall for 13 minutes. He may have observed that the officer was sitting on the toilet with his pants up. When the senator looked through the crack in the door the first time, he didn't violate the law. He didn't "surreptitiously gaze, stare, or peep"; he openly glanced, as though checking whether the stall was occupied. Sergeant Karsnia made eye contact with him, however, and gave him whatever indicators of interest the sergeant thought would get a gay man to continue showing interest. After this first contact, the game was on. The senator gave the signs and the sergeant gave the countersigns. The senator had no reason to think that he was interfering with or intruding on the sergeant's privacy. He had no reasonable grounds, when playing footsie with the sergeant, to believe that it would "alarm, anger or disturb others or provoke an assault or breach of the peace." Because the senator did not have the mental state required to commit either of the crimes he is charged with, he is not guilty.

This defense might not do the senator's political career any good, but coming out of the closet wouldn't hurt his mental health. Also, this defense arguably violates Bennett's Chainsaw because it is not the second simplest explanation for the State's evidence, but rather the simplest. Such is often the case when no crime was committed.

Teaching Jury Selection

Scott Greenfield has been having a discussion with his multiple personalities, all of whom are named "Steve", about what to do with 3Ls (presumably when they're not on law review, tormenting law profs). Scott and the Steves propose actually teaching law students how to be lawyers. I've been giving a lot of thought lately to the woeful preparation law school provides us for practicing law. It could well be the subject of a class action suit, except that most law school graduates don't know enough to sue until all applicable statutes of limitations have expired. For a few years I helped teach a criminal trial advocacy class at my alma mater, the University of Houston Law Center. It was fun spending three hours every Wednesday evening teaching future lawyers, and several of my students are now in practice on either side of the bar. The students trying cases are doing well, and I feel like I contributed something to their education. In my experience, the most difficult part of a trial to teach is jury selection. (Cross-examination is easier to teach but more difficult to execute.) I'm not talking about teaching "accept jurors in this racial / occupational / social / religious group, and reject jurors in that one" -- any idiot can teach that, and many do. I'm talking, rather about the art of getting potential jurors to reveal to the group the private thoughts that will affect how they decide your client's case. Lots of people are afraid of public speaking. These people might think they need to get over their fear of public speaking to select a jury. To the contrary, they need to get over their idea of voir dire as public speaking. Voir dire is not about speaking but about public listening. As a rule of thumb, the less the lawyer speaks during voir dire, the better. (In Texas, jury selection is usually done en masse. In states with individual voir dire, the skills required are a little different.) The only way to learn how to listen to a jury panel is to do it. The experience of picking a real jury can be very roughly approximated for a student by having the student's fellows role-play jurors (having law students or lawyers play themselves doesn't work because they are already a much more homogeneous group than a real panel would be). If everyone has a clear idea of the roles they are playing, and if they all take the acting seriously, then this works okay. The problem is that the role players usually don't present themselves as subtly as real people do. A better approximation of the real experience could be created by bringing in a group of ordinary people to be themselves in a mock jury selection. There are companies that provide ordinary people for focus groups and mock juries; why not use one to gather a mock jury panel? By my math, a panel of 24 people for a day would cost $3,000. Add in room rent, refreshments, and a pro bono faculty of talented lawyers, and a day of jury selection school could be produced for less than $4,000. If you took 12 lawyers at a time as students, the cost per student would be less than $350 per day. In an eight-hour day, each student would get a half hour or more before the panel, receive suggestions and critiques from the faculty, and learn from her fellow students' performances and critiques. I would be inclined to incorporate related disciplines by including some acting exercises and improv training in the program as well. The question is: would a dozen Houston lawyers be willing to pay $300+ apiece for one long day dedicated to better voir dire?

Our Cousins Down Under

My dad, who resides at the moment in Melbourne, Australia, sent me this article from The Age newspaper about the legal team defending Peter Dupas, "one of Australia's most notorious killers."

(L-R John Bentley, David Drake, Mark Regan)

I enjoy good newspaper profiles of American criminal defense lawyers. It always seems to me that criminal defense lawyers across the country are more alike, in ways that I consider important, than they are different; reading about the exploits of another defender feels a lot like getting a newsletter from some long-lost relative. I was pleased to read this article, and to find that defenders are, notwithstanding the wigs, much the same in Australia as here. Enjoy.

From Lynna, With Love

When picking a jury, you don't have to get every venireperson on your side. I was reminded of this recently when I found in my files a letter from a potential juror in a trial I tried a couple of years ago. My client was charged with possessing two kilos of cocaine with the intent to deliver it. According to Roberto Carlos Montalvo, a DEA informant, the codefendant had introduced him to my client, who had given him a 42-gram cocaine sample and shown him two more kilos of cocaine hidden under a bed in the master bedroom. The police got a search warrant, searched my client's house, found the two kilos under the bed, and arrested my client and another man. My defense was that the government couldn't prove its case because the Texas Snitch-Witness Rule (Texas Code of Criminal Procedure Article 38.141) forbids a conviction on the uncorroborated testimony of a government informant. We went to trial along with the codefendant; I don't remember what the codefendant's defense was. It became clear to me that the Snitch-Witness rule was not even a blip on the two prosecutors' radar when, just before trial, the elder of the two prosecutors asked me, with genuine puzzlement, why on earth I was trying this case. (Practice tip: never answer that question.) So I had to pick a jury that would follow that rule (a jury that, in the words of one venireperson, would, even if they thought my client was guilty beyond a reasonable doubt, acquit because of a technicality) without cluing the State in to my theory. One of the potential jurors was a lady who worked for the City of Houston's F.A.S.T. I had a friend who worked in the same department, so I knew that F.A.S.T. stood for "Forfeiture Abatement Support Team." Not a good sign for the defense, but I would have let my friend in the same department onto a jury. This potential juror, however, didn't say a word during jury selection, and I didn't like the look of her. I used a peremptory challenge to remove her from the jury. We tried the case, and before closing argument the elder of the two prosecutrices let slip that one of the potential jurors had written an uncomplimentary email to the elected DA about me. (When I say "let slip," I mean that she deliberately told me about in a failed effort to throw me off my game.) After the jury acquitted my client, I made a public information act request for, and received, the email that the potential juror had sent to the DA. That is the letter I found recently. Here it is in PDF format. I've redacted the name of counsel for my codefendant (whom the writer treats too roughly), but not of the prosecutrix who, truth be told, did a nice job of trying the case, considering that she didn't know about the Snitch-Witness rule, and despite losing. It's clear from the letter that the potential juror I struck was so biased toward the state that leaving her on the jury would have been really bad for my client. She didn't like me, and probably wouldn't hire me unless she wanted a real slick attorney. Her letter, though, is a useful reminder that, when the final argument is done, the opinions of the twelve people sitting in the jury box are the only ones that really matter.

Technorati Tags: jury selection

For Want of a Nail . . .

Miami criminal defense lawyer Brian Tannebaum writes about The Failures of Our System, which in his view begin with the truth "[t]hat we are a victim of the notion that we are all unsafe." That causes our system to be based on "a media driven perception of 'what the public wants'", which renders lawmakers unable "to separate those who should not be labeled", which deprives prosecutors and judges of discretion, and so on and so forth until criminal defense lawyers are held to be the root of the problem. Brian says of the failures of the system, "more and more I find agreement." I have to wonder if the agreement Brian finds is that of prosecutors and judges who think that criminal defense lawyers are the root of the problem. I haven't discovered that many people on the government teat are willing to admit the falsity of the notion that we are all unsafe. As I've written before, prosecutors use fear every day to convince juries to convict. If it weren't for our irrational fears, many of them (and many cops, and many judges) would be out of a job.

Red Teaming the Criminal Case

Missouri criminal defense lawyer Randy England has had a string of interesting, provocative posts in recent days (I've added him to the blawgroll). Here, he blogs about "Cheatin' prosecutors and blind defense attorneys". (New York criminal defense lawyer Scott Greenfield, inspired, took up the subject here.) Here's the money quote from Randy's post:

I’ll give the client a sympathetic ear, but I do him no favor by pretending there is only one side to a story: his. Above all, I want a jury to believe me when I tell them something. I want them to see me playing fair. Only an idiot tries to trip up a truthful witness with tricks designed to flush out a liar. When it’s over, the witness looks better than ever and the defense attorney looks a like a failed bully. And dishonest. Which is really too bad, because he probably really believed the witness was a liar. Why? Because he was a cheerleader instead of an advocate. ---

More than once I've seen a defense case fail miserably because defense counsel treated what the accused said as the gospel truth. Virginia prosecutor Ken Lammers (of the CrimLaw blog) gives an example of a defendant who probably shouldn't have been allowed to get on the stand and tell his story. Sometimes the stories our clients tell us are true. Often they are not. Our clients lie to us for myriad reasons; sometimes they are lying to themselves as well. We criminal defense lawyers must, of course, remain objective about our clients' stories, and be willing to allow our belief in those stories to be challenged and tested. More than that, though, we should constantly be playing the red team, seeking evidence that our clients' stories are false, and testing their stories against the information we get from other sources. For example, we enlist other lawyers to practice-cross our clients who might be testifying, so that we can discover any weaknesses in their testimony before they take the witness stand. We also use forensic reenactment techniques to reveal the hidden truths in our clients' accounts. If a client's story stands up to our own red teaming, that's no guarantee that it is true, but it will probably withstand the State's case. If a client's story collapses like a house of cards when we red team it, we have to consider whether that is the story to tell at trial. A jury of twelve can be a pretty good lie detector and, like Randy says, we want the jury to see us playing fair. There are lessons here for the client as well. First, don't expect your lawyer to take your words as gospel. If your lawyer believes your story uncritically, she's not doing you a favor. Expect your lawyer to put your story to the test. Expect her to challenge you. When she does, she's working for you. If you are telling the truth, it will withstand scrutiny. Second, if you lie to your lawyer and she proceeds to trial based on that lie, she's likely to be the one who winds up looking like a failed bully, but you'll be the one who goes to jail. You don't know what the evidence is against you, or what its legal significance is, and there's a fair chance that your lie is going to backfire. If you tell the truth, however, and if you have a good lawyer, there's a fair chance that she'll find a winning defense within the truth. Finally, when you hire a criminal defense lawyer, the time she can spend on your case is not infinite. Any time spent running down a rabbit trail is (in most cases) wasted time. I want my clients to tell me the truth from the beginning. If I have to peel away too many layers of the onion to get to the truth, I'm wasting time that could better be spent finding the defense within the truth. A client should determine whether his lawyer wants the truth and, if she does, not give her anything else. If your lawyer expects the truth from you, and you lie to her, you're betraying her trust.

Freedom vs. Safety

Sarena Straus, at Prosecutor Post-Script, shares a career prosecutor's feelings On Being a Prosecutor.

Generally speaking, prosecutors throughout the country, regardless of jurisdiction, are underpaid, overworked and underappreciated. Many of my younger prosecutors make less than their secretaries. . . . The politicians are of no help, either. Every year they pass new laws, usually without consulting with the folks who have to enforce them, to make it appear that they're doing something about crime. Of course, they never fund the laws they pass. . . . But despite the deficiencies, there is still value and relevance in being one of the public's defenders. Occasionally we still do make a difference. It still beats being a 'defense whore' or a Wal-Mart greeter. ---

Prosecutors might be misled into thinking that they don't get paid what they deserve. This is because, just as politicians pass laws to appear law-and-order, the people are eager to shower prosecutors with adulation. Listening to the people's adoration of prosecutors is misleading because the people are only law-and-order as long as it doesn't cost them anything. (A criminal jury can be dangerous for this reason: twelve people get an opportunity to show their support for law enforcement and their hatred of crime, and it doesn't cost them anything.) But prosecutors' pay reflects what society truly thinks they are worth. How people spend their time and money, either directly or through the government, is an expression of their values. Some people choose to buy drugs because they value oblivion. Some people choose to go to college because they value education. Some people pay criminal defense lawyers because they value freedom. If a prosecutor is paid less than a criminal defense lawyer, the prosecutor may well feel underpaid, overworked, underappreciated, and generally sorry for herself -- she doesn't get paid what society tells her she is worth. But that's the free market at work. America does not value the prosecutor's work as much it does as the defender's, and there's not much point in complaining about it. How people choose spend their money (again, directly or through the government) is affected by their perceptions. People are willing to spend their money on the war on drugs because of their perception that drugs are a danger to them (or because of their perception that they will be perceived as favoring drugs if they don't favor the war on drugs). Anyone who expects to be paid is selling a perceived benefit. An employee of a company is selling his value to the company. A housepainter is selling the aesthetic improvement to the house. A diamond merchant is selling the perceived scarcity of a diamond. The greater the perceived benefit, and the scarcer, the more its provider will be paid. Trash collectors don't make quite as much as prosecutors, not because the service they provide is less valuable, but because more people can collect trash than can prosecute. What prosecutors have to sell is the perception of a greater chance of safety. When prosecutors advertise (as, for example, when they run for office), they talk about their role in making us safer. They talk about the necessity of "doing something about crime." When Sarena's prosecutor talks about being "the public's defender," she means that she sees her role as defending people's safety. What criminal defense lawyers have to sell is the perception that they provide a greater chance of freedom. When a criminal defense lawyer talks about defending people, he means that he sees his role as defending people's freedom. The disparity in pay between defenders and prosecutors can't be accounted for by the scarcity of defenders -- there are more defenders than there are prosecutors. It is only the perceived value of the benefit that accounts for the difference. (Here's a little thought experiment: if prosecutors were free agents who only got paid for a prosecution if they had a client or patron footing the bill, would they make more or less?) In America, it should surprise nobody that a lawyer fighting for people's safety doesn't make as much money as one fighting for their freedom. That is an expression of the relative values we assign to safety and freedom. 200+ years ago the people who founded this country decided that freedom was more valuable than safety. Want proof?

Give me liberty or give me death. Live free or die. Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.

That's the way it is, and the way it should be.

Phone Records II

I wrote here about subpoenaing cellphone records generally. Here is the address for subpoenaing cellphone records from T-Mobile (encompassing what were formerly Aerial and VoiceStream):

Custodian of Records T-Mobile Subpoena Compliance 4 Sylvan Way Parsippany NJ 07054 (f) 973.292.8697 973.292.8911

Technorati Tags: investigation, subpoenas

Happy Birthday to Me.

It's my birthday. I'm taking the day off -- mostly (I had a meeting with a new client). I'm baking a chocolate fudge cake and making some raspberry ice cream to go with it.

From the Mailbag

I received this email:

Your Google link says, "We Have Never Prosecuted." I immediately thought, they're pandering to the lunatic defendant--those persons who believe that all former prosecutors must secretly hope the defendant is locked away. If there are many defendants out there who think like that, then your link heading might be helpful. I'm guessing you haven't gotten a single client because of it. Don't you agree that the majority of criminal defendants understand that it's better to have someone who knows well the mind of the enemy, all the better to defeat them? I would respectfully suggest that unless you know that this tag line is effective because a new client told you it factored into their decision to choose you, then you should change it. I hope this help.

Thank you for your kind thoughts, but you are guessing wrong, and this not help much. Here's a (former) trade secret: my Google ads touting my lack of prosecutoriality get as many clicks as my other ads. Lawyer advertising touting "former prosecutor" is a meme, and an authoritarian meme at that. Prosecutors leave the DA's office and advertise "former prosecutor" because others have done it. So the meme replicates. Clients see the "former prosecutor" ads and think that it must be a good thing since it's advertised, and so the meme replicates. But we can easily disrupt the meme. If some clients think that former prosecutors are better, it is only because they don't see lawyers otherwise. If every lawyer who had never tried to take away someone's freedom advertised that fact, it would occur to the clients that there might be benefit in having a lawyer who had never prosecuted. I don't have to represent everybody, and I would just as soon not represent anyone who subscribes to the ridiculous authoritarian idea that former prosecutors make better defenders. In truth, many non-lunatic defendants are already aware that prosecutorial experience is not necessarily a benefit to a criminal defense lawyer, and may be a detriment. Defendants who don't have that knowledge are likely to hire me only after I show them the truth. Those who know that there are a thousand more important factors than prosecutorial experience are a much simpler sell. Crucially, it is clients in that group who are likely to find me through my ads repudiating prosecutorial experience.

Why Not?

Skelly writes:

When, after saving your client many months of freedom, your [juvenile] client's parent tells you, "I don't think you did a very good job representing my son," you do not get to reply, "I don't think you did a very good job raising him."

In the comments, "Vinnie" asked, "Why not?"; I have to echo the sentiment. I once was told by a client's sister, "you ruined my brother's life" -- I had mitigated his punishment in a federal drug case in which he was moving cocaine up the eastern seaboard, but in her mind it was my fault that he was going to prison at all. We don't make the facts. The truth is that the vast majority of our clients are our clients because they mismanaged their lives in some identifiable way. They may not have done anything wrong or illegal, but they got into circumstances in which the government had an opportunity to torment them. Criminal charges rarely come as a bolt out of the blue, and the criminal defense lawyer is almost never responsible for the circumstances that brought on the charges. Our job is to try to undo the damage that the clients, their genes, and their parents have wrought in their own lives. The retort that Skelly was tempted to make to his client's father wouldn't have been a nice thing to say (I try to live by Thumper's mother's admonition, and I suspect that Skelly does a better job of doing so than I), but it would have been fair enough.

Client Confidentiality in Texas

The Texas client confidentiality rules are much much more protective of our clients' secrets than many criminal defense lawyers treat them. The basic rule is TDRPC 1.05, which describes two types of confidential information:

(a) "Confidential information" includes both "privileged information " and "unprivileged client information." "Privileged information" refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 [sic] of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. "Unprivileged client information" means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

A lawyer has more leeway to reveal unprivileged client information than to reveal privileged information. We may only reveal our clients' privileged information:

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

(TDRPC 1.05(c)) But if confidential information is unprivileged, we may reveal it in the following additional circumstances:

(1) When impliedly authorized to do so in order to carry out the representation. (2) When the lawyer has reason to believe it is necessary to do so in order to: (i) carry out the representation effectively; (ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct; (iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

(TDRPC 1.05(d)) I think most of us learned in law school that "privileged information" was the things our clients told us ("attorney-client privilege"), and "unprivileged client information" was everything else we learned in the course of representing our clients ("work-product privilege"). If I learned something in the course of representing my client, I thought, I could use it as necessary to carry out the representation. This is the rule in civil cases. But it is not true in criminal cases. "Privileged information" is defined with reference to Texas Rule of Evidence 503, which generally defines privileged communications as communications between and among clients (and their representatives) and lawyers (and their representatives). But here's the shocker: Rule 503 contains a "Special rule of privilege" in criminal cases:

In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.

(Tex. R. Evid. 503(b)(2).) That sounds a lot like what we thought was "unprivileged client information." But, since Rule 503(b)(2) creates a privilege covering anything the lawyer learned by reason of the attorney-client relationship, and since TDRPC 1.05 defines (ethically) privileged evidence by reference to what is (evidentiarily) privileged, anything we learn by reason of our representation of the client is privileged, and cannot be revealed except as allowed by TDRPC 1.05(c). According to that rule, to use privileged information, even to our clients' obvious benefit, we must get their consent or their express authorization. This obviously creates the potential for some practical difficulties. Let's say I learn in the course of my investigation that the complainant in a case is a convicted felon. If that were unprivileged (for purposes of the TDRPC) I would be able to reveal it (to the prosecutor or to a jury) without the client's consent. If, however, that were privileged (as, I contend, TRE 503(b)(2) mandates), I would not be able to reveal the fact without the client's consent. The solution to this problem may be to include a written waiver in my contract, something to this effect:

"Privileged information" means any fact that comes to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship. Client consents to the lawyer revealing privileged information when the lawyer has reason to believe it is necessary to do so in order to carry out the representation effectively.

What do you think? Would that be effective? Sufficient? Please let me know in the comments.

Technorati Tags: confidentiality, criminal defense, ethics, Texas

The Mind of the Criminal Defense Trial Lawyer

New York criminal defense lawyer Scott Greenfield wrote yesterday (at 6:28 a.m. on a Sunday morning, for crying out loud!) about Conflict Aversion and Personality Traits (or is it "Conflict Aversion and Personality Flaws?" See the URL). In Scott's excellent post, he focuses on criminal defense lawyers' lack of aversion to conflict:

We avoid conflict when we can. We search for mutual ground, things we can agree upon. We know that there is far more to be accomplished through the mutuality of interests than through disagreements. But, there is also some bone in our heads that won't let us shy away from a fight. When pushed, we push back if we believe it matters.

This brought to mind two things that I've been wanting to write about. The first was the undesirability of aggression as a personality trait in a criminal defense lawyer. I'll write about that later. The second thing that Scott's post (along with Ft. Worth criminal defense lawyer Shawn Matlock's approximately contemporaneous post [do you people not believe in sleeping in on Sunday mornings?] on defending people For the Love of the Game) brought to mind is the special kind of mind that I think criminal defense trial lawyering requires. The good criminal defense lawyers are different enough from other people, and enough like each other, that I think someday the DSM will include criminal defense as a personality disorder. (I expect that prosecution and judging will get their own DSM descriptions as well.) Other than the lack of conflict averseness, one thing about criminal defense lawyers (by which I mean criminal defense trial lawyers, by which I mean criminal defense lawyers who actually pick juries and try cases) is that we have no capacity for embarrassment. It's not that we don't embarrass easily, but that we don't embarrass. If we start off embarrassable, we get over it. As Topeka criminal defense lawyer (and now district court judge) Joe Johnson says:

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?"

I helped a friend who hasn't tried many cases try an indecent exposure case last week. The cop had acted like (his idea of) a gay man looking for sexual attention in Memorial Park. At trial the cop readily admitted making eyes at the accused, then going to a more private spot in the woods and waiting for the accused to follow him. When the accused did so, the cop unzipped his own fly, put his hand inside his shorts, and moved it as though he was masturbating. The accused allegedly responded the way the cop wanted, by revealing his penis and masturbating, at which point the cop arrested him. At trial, of course, the lengths to which the officer went to get the accused to expose himself was in issue. My colleague whose case it was asked him to describe what he did, then to show the jury what he did, with me standing in for the accused. The cop showed where he was standing, and how, and described what he was doing with his hand, but the lawyer didn't press him to show what he was doing with his hand. She then had us reverse roles, so that the cop was playing the accused and I was playing the cop. I, having no shame, unzipped my fly, put my hand inside my pants, and moved it as though I was masturbating. The prosecutor exploded in outrage, we approached the bench, she told the judge what I had been doing, and the judge said "that sounds like what the cop said he was doing." (Then, in an aside, he told me to "keep it in good taste;" in my opinion good taste was abandoned the first time the cop licked his lips at the accused.) In the course of the trial the lawyer referred several times to things as "embarrassing" (to the cop, the sole witness: "we won't talk about that, since it's embarrassing"). There was no reason for the lawyer to be embarrassed; ten trials from now she'll probably have gotten over it. (This trial didn't go well for reasons probably unrelated to embarrassment.) The cop might have been embarrassed. In fact, he probably should have been embarrassed. I embarrassed him a little by showing the jury what he had done (it threw him off); had it been my case I would have embarrassed him a whole lot more. I would have, first, subpoenaed him to come to court dressed as he was on the day of the arrest. Then, before the jury, I would have taken him through every sordid thing he did in every moment of his encounter with the accused, from the first wink to the last stroke. But to accomplish all of this, I would have to have been unembarrassably deadpan. Another thing about us criminal defense lawyers: we are intense. If things are worth doing, they are worth overdoing. In most of our cases, victory cannot be ensured no matter how much we do. So we investigate and prepare and practice and research and agonize and ponder and plan until there's nothing else we can imagine to do. Generally, we're quick thinkers -- or at least quick deciders. Despite our best preparation, trial work is largely reactive. The advantage goes to the lawyer who makes the right decision quickest. There is a premium on making the decision, so that not deciding quickly enough is the same as making the wrong decision. If the prosecutor asks an improper question, the defender has the blink of an eye to recognize the impropriety, decide on the proper objection, and decide whether to make the objection. If he doesn't get up and say something the opportunity is lost. We're people people as well. We love human beings, and want them to be more free. Even professed "conservatives" like Shawn Matlock who claim that defending people is a game are motivated by the secret desire to help people. They just won't admit it.

The Case of the Stolen Client

The day before yesterday, Ft. Worth criminal defense lawyer Young Shawn Matlock wrote about The Lawyer Known as Weinstein, who "Would do anything to get a client. Back in the day, he even went to the client's home. He makes whatever promise he needs to get the client. After all, it's no problem for him. The problem is the client's when the client realizes he has hired a hack to defend him. I've even known him to steal clients before." I am with Shawn most of the way. I'm hugely frustrated by the hacks who, to get hired, make promises they can't keep. They are doing a huge disservice to the clients, to the bar, and to the profession. But I don't believe that one lawyer can steal another's clients. I've been on the receiving end of a motion to substitute plenty of times. I've been fired enough times that I've thought about writing a paper on the ethics of getting fired. It generally sucks when a client decides, for whatever reason, to hire someone else. The client usually doesn't bother to explain to the former lawyer where things went wrong. It's often an ego blow. But I've been the one filing the motion to substitute much more than I've been the lawyer replaced. Each time that happened, the former lawyer might have supposed that I had been hired because I told the clients what they wanted to hear. The truth, though, is that when I'm hired to replace another lawyer, it's always because, in one way or another, trust has failed between that lawyer and the client. Trust usually fails because communications break down. I remind the client -- every client -- that he has made an investment in the current lawyer, and I tell him that he should first try to repair the trust between him and his current lawyer before changing lawyers. Only if that fails, I tell him, should he hire someone different. People don't hire me because I tell them what they want to hear. They hire me because I listen to what they tell me and I know what to do with it. Often, if the former lawyer was a businessman, focused on and driven by money, he might have assumed that I had been hired to replace him because I had charged less than he. To the contrary, when I'm the second lawyer on a case, the client is usually paying me much more than the first lawyer was charging. Some lawyers -- generally either old-school incompetents or rank newbies -- think that it is unethical for a lawyer to talk to a potential client who is already represented by counsel. This is not the case. Other lawyers think that it's okay for a lawyer to talk to a potential client who is already represented by counsel, but only after notifying the current counsel. This is also not the case. In fact, if a potential client calls to talk to me about his case, I can't reveal that fact to anyone -- including the client's current lawyer -- without the client's permission. When I substitute in for another lawyer, I'm not "stealing" the client. The case belongs to the client. The client does not belong to the lawyer. Clients are free to switch lawyers, even to their own detriment. When an unethical lawyer makes false promises to get hired, he's doing wrong, but he's not stealing the client either. The unethical lawyer is not stealing the client. He is, rather, stealing the client's trust.

Technorati Tags: clients, criminal defense, ethics, lawyers

Advice to New Practical Blawgers

With new practical blawgers coming online every week, I think some advice from those who have been around a little (or a lot) longer might be beneficial. For example, New York criminal defense lawyer Scott Greenfield (of Simple Justice) says

Since you have no track record, it would be helpful to provide a short bio so we know who you are, what type of work you do and how much experience you bring to the table. On the internet, everybody looks alike, from the fertile octogenerian to the wettest newbie. The expectations change accordingly.

Here are a few things I would add:

If you want people to link to your blog, link to theirs in your posts. Take inspiration from the things other blawgers have written, and give them credit. Or disagree with them (heh) and include a link to the post in which they are wrong-wrong-wrong. When you cite another blog, describe the blogger. For example, "New York criminal defense lawyer Scott Greenfield" or "Connecticut public defender Gideon" or "Connecticut criminal defense lawyer Norm Pattis" (hi, Norm! -- Norm googles himself regularly). Like Norm, Google yourself regularly, or go to Technorati to see who is linking to your blog posts. If they say something even moderately interesting, blog back. Quid pro quo is not the rule, but there is a spirit of reciprocity in the practical blawgosphere. Comment on other people's blog posts. That is, leave comments on their blogs. Also permit comments to your own posts. Don't be afraid -- comments are a good thing. Stay away from the story of the day unless you have something new to add that is related to your subject matter. Nobody really cares whether you think Paris Hilton should go to jail. Likewise, and while the law is an intrinsically political activity, stay away from partisan politics. The world does not need another bloviating Democratic blog, much less another bloviating Republican blog. A good thing about blogging is that it is a good way to show the world who you are as a lawyer. Whether you intend it or not, clients will read your blog. So will your adversaries, witnesses, judges, and jurors. It would be much more difficult to present a false face in a blog than it is in an advertisement or a static website. A bad thing about blogging is that it is a good way to show the world who you are as a lawyer.

Some of our colleagues will, I expect, have a lot to add. Jamie? Scott? Gideon? Shawn? Robert? Stephen? Jon? Bueller? Bueller? Bueller?

Technorati Tags: advice, blawgs, Practical Blawgosphere

Another Practical Blawger

Maggie joins the practical blawgosphere with Of Counsel. Welcome, Maggie. Some day soon I'll update the blawgroll and include a selection of worthwhile prosecutor blawgs.

Mea Maxima Culpa

My friend Scott Greenfield is miffed about my characterization of his perspective on the question of when we should answer questions that the judge asks us about what we have told our clients. Scott thinks that I'm accusing him of being unethical -- untrue -- and that I'm incorrect about his view -- apparently. What we're talking about is the fact that we've conveyed a plea offer to the client. I contend that that fact, like all communications between lawyer and client, is privileged. Scott contends that that particular communication is not privileged. In Texas, according to Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct lawyers can only reveal confidential information (information protected by the lawyer-client privilege):

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm , except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

Similarly, in New York (here is the New York Lawyers Code of Professional Responsibility in PDF format, see Canon 4 and DR 4-101; "confidence" is the equivalent of Texas's "confidential information"), the lawyer may reveal

1. Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them. 2. Confidences or secrets when permitted under Disciplinary Rules or required by law or court order. 3. The intention of a client to commit a crime and the information necessary to prevent the crime. 4. Confidences or secrets necessary to establish or collect the lawyer's fee or to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct. 5. Confidences or secrets to the extent implicit in withdrawing a written or oral opinion or representation previously given by the lawyer and believed by the lawyer still to be relied upon by a third person where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud.

So under either regime, a lawyer is only permitted to reveal privileged communications in certain very narrow circumstances. None of those circumstances apply to the case that we're discussing (when the judge asks you whether you have told your client about the plea offer), so if the fact of that communication is privileged, then the lawyer cannot reveal it unless (broadly) the client specifically consents, or the court orders it (and the court's question is an order). If I'm right that that communication is privileged, I'm wrong that I may reveal it if revealing it helps the client, and Scott is wrong that he may reveal it if revealing it does not harm the client. If I'm wrong that that communication is privileged, I'm wrong that I may reveal it only if revealing it helps the client, and Scott is right that he may reveal it if revealing it does not harm the client. So, whichever way you slice it, I'm wrong. But how wrong am I? should I be even more guarded with my communications to my client (the case if they are in fact privileged) or less? Whether the fact of that communication is itself privileged may depend on the jurisdiction. In Texas State Courts, for example, according to Texas Rule of Evidence 503:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or a representative of the client and the client's lawyer or a representative of the lawyer.

Further,

In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.

So in Texas State Court, a communication between me and my client (both ways) is clearly privileged (even if it weren't a confidential communication -- it is, because I don't intend for others to hear it -- I learned by reason of the relationship that I told the client of the plea, so it is a privileged fact). If the judge asks me, "did you convey the offer to your client," I cannot answer without my client's express consent! I'm glad Scott compelled me to actually do the research to back up my position, because as it turns out that without the client's consent I can't even reveal facts I learned in the course of my representation that I think it would help the client to reveal. I'll have to write consent into my contract. In Federal court, I'm probably on much thinner ice telling the judge that what I've told my client is none of her business. Fortunately, I don't have to do it often. New York's equivalent of TRE 503 is CPLR § 4503, which says in relevant part:

Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication.

There's probably some caselaw on what is "confidential" and what isn't. So, what do you say, Scott, when you sit down in your fancy Manhattan office with your client and lay out the state's plea bargain offer, is it confidential? Why or why not?

Technorati Tags: criminal defense, ethics

Everybody Knows You're Supposed to Let the Client Stun You.

Via Anne Reed, this Above the Law post about . . .

. . . a California misdemeanor case in which the defense is claiming that police brutalized their client with a stun gun during his arrest at a shopping mall last year. That's because the defense team is now being criminally investigated for allegedly violating human experimentation laws by repeatedly using a stun gun on their client themselves during an evidence-gathering effort in a law office.

Here's the original ABA Journal article. For the record, Defending People opposes the use of nonlethal force against clients. Unless it's absolutely necessary.

Privilege Breakdown

After Gideon's two posts (here and here), Scott Greenfield's two posts (here and here), and my two posts (here and here), here's how I see attitudes about the revelation of communications from the lawyer to the client shaking out: Some (edit: but not Gideon) believe that it is okay for a lawyer to reveal such communications to pretermit a possible future claim of ineffectiveness -- to "make a record" against the client. Some believe that it is not okay to make a record against the client, but that it is okay for a lawyer to reveal such privileged communications if revelation would not hurt the client -- for example, if the communication was one that the lawyer was ethically required to make. New York criminal defense lawyer Scott Greenfield holds this opinion. He will preserve confidentiality, but not at the cost of antagonizing the judge unnecessarily. (edit: Scott Greeenfield, whom I believe to adhere to the highest ethical standards, makes it clear that he does not consider his communication of a plea offer to a client to be a privileged communication.) (The argument that lawyer communications are not privileged because they are ethically required has no legs.) Some believe that it not okay to reveal what the lawyer said to the client, even if it was something the lawyer was required to say, unless revelation would help the client. I am definitely of that opinion. It's a bright-line test with a presumption against revelation. I may be wrong, but if I'm going to be wrong I want to err on the side of maintaining privilege, rather than waiving it. I understand Scott's point about antagonizing the judge. A more sophistical lawyer than Scott, however, might rationalize just about any revelation as furthering the goals of representation by not antagonizing the judge unnecessarily. Often an antagonized judge is the inevitable byproduct of our doing our jobs properly. If a client told me, "don't antagonize the judge," then I could increase what I reveal based on the client's waiver. But this issue -- preservation of the confidentiality of what we say to our clients -- is one of those cases in which I think it is worth butting heads with the judge. Most judges, like most lawyers, have a very fuzzy understanding of the ethical rules that govern the defense of criminal cases. They expect us to make records against our clients because that's what we (the criminal defense bar generally) have historically done. If we all took Scott's position -- that revelation is acceptable unless harmful to the client -- then they would expect us to reveal all of the things that we believed, at the time, would not harm our clients. And if we all took my position -- that revelation is acceptable only if helpful to the client -- then it would neither surprise nor antagonize them that we revealed only that which would help our clients and otherwise stood mute. They might even stop inquiring into privileged matters. I wonder which attitude the clients would prefer.

Technorati Tags: confidentiality, criminal defense, ethics, privilege

More on Covering Your Ass

Every man needs a code to live by. When it comes to protection of the attorney-client privilege, it appears that my code puts me on the radical fringe. Under my code, everything I tell my client is privileged. I will only disclose it if disclosure helps my client, or if the client waives the privilege. Miranda thinks it's okay to make a record, in anticipation of a possible future claim to the contrary, that the client's rejection of the plea offer was against the advice of counsel. (See her comments to Gideon's post of yesterday). Gideon, Scott, and Young Shawn Matlock (commenting on Scott's post) all think it's okay to tell a court, when a client is rejecting a plea offer, that you have discussed the plea with the client. Scott points out that we have an ethical duty to convey a plea offer to the client (true) so that the fact that we have done so reveals nothing (non sequitur). The Woman in Black's position appears to be closer to mine: "it rarely serves any purpose to go into any detail about rejection of plea agreements, unless you are, with your client’s permission, trying to impress upon them the just-ness of your defense" (in comments to Gideon's post of today). If "any detail" means anything more than "no, thank you," I agree with her. It rarely serves any purpose to do anything more, when a client is rejecting a plea offer, than "no, thank you." I can envision circumstances in which it might be proper to say more than "no, thank you" because doing so would move -- for example, "we're rejecting the State's offer because my client is innocent," if that might make a difference to how decision-makers view the case ("impress upon them the just-ness of your defense"). But I would think carefully about what effect any public statement would have on the client's case, and only make it if I knew it would help (rather than simply "not hurt") the client.

Technorati Tags: ethics

Covering Your Ass

There's an interesting discussion going on over at Gideon's A Public Defender about lawyers covering their asses (an effete small-town judge once threatened to report me to the bar for using that expression in a letter to former counsel) by explaining to the public or the court that their clients had considered and turned down a plea offer. New York criminal defense lawyer Scott Greenfield argues (quite correctly) that a lawyer should not place his own interests above his clients and announce that the client, in turning down a plea agreement, "is being very foolish in my view. He was given a plea bargain that’s not a lenient plea bargain, but under the circumstance, if he goes to trial, he will get a lot more,” Gideon replies:

Scott, I completely agree with you, but what about this limited statement on the record: “I have discussed with my client the state’s offer and the pros and cons of accepting it and it is his decision to reject the offer at this time”.

Scott thinks that's perfectly appropriate, that the lawyer has done nothing to reveal a privileged communication. He thinks that this avoids the problem. Miranda says:

It’s preferable that anyone reading a transcript in the future will understand that (a) I advised my client of all the usual stuff; and (b) I advised him/her to go one way or the other.

Let me be the dissenting voice here. Scott is wrong. Miranda is way wrong. I've written about this before -- it's a common ethical violation. Everything I tell my client is privileged. The fact that I have discussed a plea offer with my client is privileged. The advice that I gave him regarding that offer is way privileged. If you want to make a record to prevent your client from having a chance of prevailing on a writ of habeas corpus, first ask yourself whether it is for your own sake or for his. Then, if you think that there is no conceivable way your client will suffer because you make a record, don't do it publicly. Do it privately -- in a letter to the client, with a copy to your file. Nobody but you and the client needs to know. Miranda asks:

Aren’t we happy to inform the court when we’ve advised our client of a, b and c and as a result, he/she is choosing to do X? Why is this situation different?

This situation is no different. Assuming that the client hasn't consented to the disclosure (why would a client?), both situations involve violations of the attorney-client privilege and, in Texas at least, violations of the disciplinary rules of professional conduct. (Read your own state's rules to see if there's an applicable exception.) There's no exception to the privilege for "things said to the judge" or "things the judge wants to know" any more than there is an exception for "things that benefit the lawyer." Because it's a clear ethical violation, not all of us are happy to do it. In fact, I once told a federal judge who asked an intrusive question about whether I had told my client something that I couldn't answer the question. Lawyers keep committing this ethical violation not because the rules are unclear, but rather because it's the way they've always done things, and the way they've always seen things done. But it never has been right, and never will be.

Technorati Tags: ethics

Vanity

This month's Rolling Stone has an article about FSU ("Friends Standing United" or "Fuck Shit Up", depending on whom you ask), which is a violent gang of punk rock fans, originating in Boston. Members of the group make no bones about being violent. What was particularly interesting to me about FSU, though, is that their violence is directed toward people who they believe hold certain views that are condemned by the broader society as well -- specifically, racist views: the article described the beating death of a young man in New Jersey who got into a brawl with some FSU members because he was at a concert with a friend wearing a flag with a confederate flag on it. Some of the FSU members are "straight-edge," which means that they don't use drugs (including alcohol). Straight-edge gang members identify themselves with the letter X; the article described straight-edgers drawing Xs on their foreheads and then going to clubs and beating up people who were not straight-edge. I recognize in these gang members the same attitude that we see in those bellowing for retribution against our clients. Both the FSUers and the law-and-order types (like those I discussed here commenting on Norm Pattis's recent Hartford Courant article) have standards of behavior and strong opinions on how they should be treated when they don't behave according to those standards. The major difference is while most of those baying for their idea of justice (see "Sean O'Brien"'s comments to several of Gideon's posts, like this one, for example) do so while hiding behind the skirts of the government, the FSU members fearlessly enforce their own moral code. At least one of the straight-edge gang members, Elgin James, shows a very high level of awareness about his attitudes. He tells the reporter, "Most of my friends now do drugs and drink. But I just don't believe in the weakness of it, the whole 'I've had a really hard workweek. I deserve this.' Also, this way I can stay self-righteous, give myself something that makes me think I'm better than everybody else." He chuckles. "My vanity may be the one thing that will keep me straight-edge my whole life." Wow. That seems like a pretty good working explanation not just of James's straight-edge lifestyle, but also of the rabid retributionism of the law-and-order types. Some people have the need to believe that they're better than other people; that belief allows them to demonize others, put them in prison, beat them, and kill them -- whether face-to-face or through the proxy of the government. As Darrow said, "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." The rest is vanity.

Made With Mac

Austin criminal defense lawyer Jamie Spencer just bought himself a MacBook Pro. As it turns out (see the comments to Jamie's post), Ft. Worth criminal defense lawyer Shawn Matlock is a Mac guy as well. I've been using Macintosh computers since college; I haven't had a PC since before Windows first came out. Criminal defense is a creative profession, and a Macs, which just work, are excellent tools for creative professionals. Now that most Windows software will run in Parallels on an Intel Mac (and Windows "boots" in the background in about 15 seconds), there's little reason for most of us to buy a PC. I just found a better solution to a Mac hardware puzzle that I've been trying to solve for years (since OS 9 stopped supporting my SCSI scanner with automatic document feeder): how to turn paper into PDFs. I had been using a Xerox Workcentre multifunction machine that scan-to-PDF and email the results to me, but that was cumbersome and slow. Last week I upgraded to a Fujitsu Scansnap S500M (made for Mac). Load a document into the Scansnap, hit a button, and the document (up to 50 sheets, double-sided) is scanned to PDF in seconds and opened on your desktop in the application of your choice. I tried Adobe Acrobat Pro, then Preview, and I've settled in with Yep, which allows me to add tags to PDFs. (South Carolina lawyer Ben Stevens uses a ScanSnap with his Mac too, as does Kansas lawyer Grant Griffiths.)

The Detention Hearing in Federal Court

When a person is arrested on federal charges, often the government wants him detained (held without bail) while the case is pending. The government will file a motion for detention, and a magistrate judge will hear evidence to determine whether the accused should be detained or released on conditions. The issue in a detention hearing is whether there is any combination of conditions of release that will ensure that the accused will appear in court and not harm the community. In federal drug conspiracy cases, there is almost always a presumption of detention. When the magistrate finds that there is probable cause to believe the accused committed a federal drug crime with a possible sentence of ten years or more, it is presumed that no combination of conditions of release will ensure his appearance and the safety of the community. An indictment is enough to show that there is probable cause. So a person indicted for a federal drug conspiracy is at a disadvantage from the beginning of a detention hearing. While the vast majority of people for whom the government seeks detention are detained (it's called a detention hearing for good reason), there are at least three good reasons to fight for release on conditions in virtually every case. First, you might win. A few federal magistrate judges won't simply rubberstamp the government's detention request; they will actually listen to the evidence and consider whether the appearance of the accused and the safety of the community can be assured. Sometimes the government will flub and give the magistrate judge a reason to doubt the strength of its case (one of the factors the magistrate judge can consider in making her detention). The advantage to the accused of release on conditions is obvious; for the defender, it's generally easier to defend a case when the client is at large than when he is incarcerated. Second, you may learn something about the case that you wouldn't otherwise know. The government will often put an agent on the witness stand to explain in broad strokes the case against the accused. The defense then gets an opportunity to cross-examine the agent and, if the agent thinks he knows something about the case, make a record of what evidence (photos? video? wiretaps? audio recordings?) the government has and does not have against the accused. (I won a federal cocaine conspiracy jury trial in the detention hearing once because the agent couldn't resist gilding the lily in the hearing.) Third -- and this makes the detention hearing a critical phase in any federal criminal case -- the accused gets a chance to see you fighting for him. The detention hearing is often the only opportunity the accused gets to see you in action in court before he has to make the go/no-go decision of trying the case or pleading guilty. If you have fought for him in the detention hearing, he will have more confidence in your ability to defend him in trial, so he's more likely to trust your advice that he go to trial. On the other hand, he will know that you're not afraid to fight, so he is more likely to trust your advice that he plead guilty. There are very very rare circumstances that justify waiving the detention hearing. I've done it once or twice in twelve years -- never without a good reason. "Because we won't win" is never a good reason.

Technorati Tags: criminal defense, federal, detention hearing

Racehorse Haynes

It's possible that he's not the greatest criminal defense lawyer that ever lived. Clarence Darrow may wear that crown, or Earl Rogers, who represented Darrow when Darrow got in trouble in L.A. But Houston criminal defense lawyer Richard "Racehorse" Haynes deserves honorable mention -- at the very least -- in that pantheon. And he's still alive and kicking. Via Luke Gilman's Blawgraphy comes this story from Austin, Texas TV station KVUE about Richard's appearance in Williamson County on a sexual assault case. Richard Haynes is 80 years old, he is still defending people, and he shows no sign of stopping. If you have a chance to watch him in action, take it.

Technorati Tags: criminal defense, lawyers

Sometimes You Have to Bask

Check out these comments to Norm Pattis's Justice Demands Defense column in today's Hartford Courant. People from all over the country lay into Norm's ideas, Norm, and criminal defense lawyers generally. There's ignorance there ("Defense lawyers would rather be disbarred before ever allowing a guilty plea."), suspicion ("This is how defense lawyers think, if they know their client is guilty and a threat to society, they still use trickery to get them acquitted and then refuse to take responsibility for their later crimes."), anger ("For the attorneys who think they have rights, stop soaking people of their hard earned money and get a real job!"), and fear ("Personally, I don't think there really is a safe place to live anymore, not after 11 SEP 01."). Proving that ignorance of the law is not limited to civilians, someone identifying himself as "Lawyer from Texas" asks, "once they are convicted (you pretty much conceded that a conviction is a virtual certainty) are you willing to accept that the two should be put to death under Connecticut's death penalty statute given the horrific nature of their crimes?" When you're a criminal defense lawyer, sometimes you have to just soak up the ignorance, suspicion, anger, and fear of this part of the populace. There's little you can do to change their minds, and you know they're going to be carrying these attitudes into the courtroom when they're called for jury duty. You're not going to change their minds there either, so shutting up and letting them rant is good practice for drawing them out in voir dire. One thing that will change their attitudes is getting charged -- or having a loved one charged -- with a crime. In the last 12 years I've probably helped more than 3,000 people (some clients, but most nonclients seeking advice) with their own or their loved ones' criminal problems. Not one of these people has suggested that I get a real job. Never have they suggested that if I am successful I might be responsible for the later crimes that the accused might commit. Some of these people, I have to believe, were angry toward and distrustful of criminal defense lawyers before the system affected them (as a professional student of human nature, I've reached the conclusion that, generally, those who bellow loudest for retribution have the most to hide; they protest too much). The remedy for their attitudes is harsh but remarkably efficacious.

Technorati Tags: anger, fear, ignorance, the question, the system

Fox Requests Comment on New Henhouse-Guarding Standards

Via David Feige's Indefensible, the LA Times reports that

death penalty advocates Rep. Dan Lungren (R-Gold River) and Sen. Jon Kyl (R-Ariz.) led a successful effort to include language in the Patriot Act last year that let the attorney general, rather than [federal] judges, decide whether states were ensuring death row inmates had adequate legal representation [in postconviction proceedings].

DOJ is seeking comment (yeah, right) on the proposed rule. David (whom I envision reading the Times as he lounges on the beach in former-PD Paradise) points out that our current AG has "shown himself at best incompetent and at worst a perjurer." Fair enough. But never mind Alberto Gonzales (he's not long for office anyway). If you care at all about the appearance of fairness in the system, you don't let a prosecutor decide whether states are ensuring adequate representation in death penalty cases.

Technorati Tags: death penalty, DOJ

Name that Sign!

This is the complaining witness is one of my cases. I understand that the gesture he is making indicates membership in some affinity organization . . . some sort of club for urban youth: If you know of an expert who could mores specifically identify the organization based on the gesture, please let me know. Thanks.

Could We Be Wrong?

From the Detroit Free Press, via crimprof:

Detroit is one of dozens of U.S. cities with a shortage of cocaine, causing prices to skyrocket as law enforcement efforts in the United States, Mexico and Central and South America disrupt sources.

Is it true? Probably not -- in April 2007 Drug Czar John Walters (the source for the Free Press's information) reported in a letter to Senator Charles Grassley of Iowa that retail cocaine prices had fallen 11 percent from February 2005 to October 2006, to about $135 per gram of pure cocaine -- hovering near the same levels since the early 1990s. In November 2005, however, Walters had claimed that cocaine prices had risen 19 percent and purity had dropped by about the same. The ONDCP noisily takes credit when drug prices increase, and quietly makes excuses when they decrease. If there is a shortage of cocaine in Detroit and other U.S. cities, it is probably not because of law enforcement efforts. My take: the internecine drug war that spread from Nuevo Laredo to Monterrey has done more to curb the supply of cocaine (and therefore of defendants charged with drug trafficking) to Houston (and to the areas served by Houston as a hub of narcotics distribution) than anything the government has done in the last 30 years.

Technorati Tags: war on drugs

Phone Records

Often in the course of our investigation we will discover the telephone numbers of alleged witnesses to an offense. If the witnesses use cellphones, we can get a wealth of useful information about them from their cellphone records. Start with FoneFinder. If you enter the area code and exchange (first three digits after the area code) into the first two boxes and hit "search by number," you'll get a page showing you the telephone company that originally owned that number. It may have since been transferred to another provider, but we can start by assuming that it was not. With the number and provider, we can issue a subpoena to the cellphone service provider for billing records (including the identity of the subscriber) and toll records (incoming and outgoing calls). Using this information, we can make otherwise-unknown connections among various witnesses witnesses, and between a witness and other people. For example, in an aggravated assault case I showed that, in the time between the alleged crime and the complainant's report to the police, the complainant had called various personal injury lawyers; this suggested that the possibility of a civil suit drove the making of the police report. We can also subpoena records of the cell towers that the cellphone had contact with; this will help us determine approximately (the margin of error might be miles) where the cellphone was at a given time. So, for example, we might be able to show that the witness's cellphone was nowhere near where she claims to have been at the time of the incident. One free site that provides subpoena addresses for telephone companies is here; call first -- those addresses might not be current. That site does not provide information for Verizon. To subpoena Verizon records (in a criminal case only), fax your subpoena to:

Custodian of Records Verizon Cellco Partnership, d/b/a Verizon Wireless Subpoena Compliance 180 Washington Valley Road Bedminster, NJ 07921 Fax (888) 667-0028 Voice (800) 451-5242

Then follow up with a phone call.

Technorati Tags: criminal defense, investigation

Six Witness Rules

Via Beaumont, Texas criminal defense lawyer Ryan Matuska (one of my former UHLC trial ad students now fighting the good fight), the Six Big Witness Rules: #1 TELL THE TRUTH – ALWAYS!

NEVER GUESS. IF YOU DON’T KNOW THE ANSWER, JUST SAY SO. SAY "I DON’T KNOW" OR "I DON’T REMEMBER." ABSOLUTELY DO NOT GUESS OR MAKE UP DETAILS THAT YOU ARE UNSURE ABOUT. ONLY SAY WHAT YOU KNOW. EVEN IF IT SEEMS LIKE A SMALL DETAIL, DON’T GUESS.

#2 LISTEN TO THE QUESTION ASKED

IF YOU DIDN’T HEAR THE QUESTION, MISSED PART OF IT, FORGOT IT, OR DIDN’T UNDERSTAND IT, PAUSE. ASK THE LAWYER TO REPEAT THE QUESTION OR LET HER KNOW YOU DIDN’T UNDERSTAND IT. CHANCES ARE THE JURY OR JUDGE DIDN’T EITHER.

#3 ANSWER THE QUESTION ASKED AND THEN STOP. DON’T RAMBLE ON ABOUT SOMETHING ELSE. THIS ONLY CREATES MORE QUESTIONS. ANSWER WHAT WAS ASKED AND STOP THERE.

SOME QUESTIONS SEEM UNFAIR BECAUSE THEY ARE TOO NARROW. RELAX. JUST ANSWER WHAT WAS ASKED, NO MORE. REMEMBER THERE ARE TWO ATTORNEYS. AS YOUR ATTORNEY, I WILL EXPAND THE ANSWERS DURING MY QUESTIONING. DON’T FEEL OBLIGATED TO EXPLAIN A NARROW ANSWER. LET THE ATTORNEYS DO THAT.

#4 WHEN AN ATTORNEY MAKES AN OBJECTION, STOP TALKING IMMEDIATELY. BE POLITE AND RESPECTFUL. THE JUDGE WILL MAKE A RULING AND QUESTIONS WILL BEGIN AGAIN. #5 BE ON YOUR BEST BEHAVIOR. REMEMBER THAT EVERYTHING YOU DO IN THE COURTROOM IS WATCHED AND JUDGED BY THE JURORS. DRESS NICE. CALL PEOPLE BY THEIR LAST NAMES. REFER TO THE JUDGE AS “YOUR HONOR” OR “JUDGE.” BE POLITE (“YES, SIR,” “YES, MA'AM.”). #6 BREATHE. YOU WILL BE NERVOUS. WHEN PEOPLE ARE NERVOUS THEY HOLD THEIR BREATH. IT’S A REFLEXIVE RESPONSE TO DANGER. TELL YOURSELF TO BREATH. BY BREATHING YOU WILL NATURALLY RELAX. JUST PAUSE AND TAKE A DEEP BREATH.

What Would You Do If . . . ?

Bryan, Texas criminal defense lawyer Stephen Gustitis wrote last week about The Seeds we Sow, pointing out that "we lawyers have it pretty good." Indeed. This is something I think about often. Consider . . . What would you do if you went out to start your car tomorrow, and your car wouldn't start? How would you get to work? What if you needed $1,000 to fix the car? Where would you get it? On our way home from a date the other night, Jennifer and I stopped to help a lady whose car was breaking down. My guess, from the noises the engine was making and the clouds of steam coming out of the tailpipe, was that the head gasket had failed. Jen provided cover while I got out and pushed the lady's car into a gas station parking lot. Then we gave her and her young son a ride home. She told us that she and her husband had just bought the car three days before, and she was hoping that the used car dealer that sold it to them would fix it. The car was the family's only form of transportation, and they were living from paycheck to paycheck and didn't have the money saved for expensive repairs. If you got sick, would you be able to pay for medical care? If you couldn't get to work, would you lose your job? If you lost your job, would you have a safe place to live? The ex-wife of an old client came in to the office a while back. Her new husband was charged with assaulting her. They both denied the assault. When questioned about why the police came out to the house, they told me that his father had called for an ambulance because he had suffered a seizure, and the police had come with the EMTs, seen the house looking trashed, and deduced that there had been a fight. I questioned him about the seizure; he has them regularly, but has always just "gotten over it." He has never seen a doctor or even gone to the ER because of the seizures. To him, a trip to the neurologist would be an unaffordable luxury. If a loved one got arrested, could you hire a lawyer who would fight for him? Would you then be able to make his bail? Lots of people who seek to hire me can't afford me. "Carolyn," responding to New York criminal defense lawyer Scott Greenfield's Beating the Lawyer Part 2 post, wrote, "Lawyer fees are outrageous. Most people live pay day to pay day and simply can't afford to pay them. You may be speaking drug dealers and thieves and I can't speak to that. But for the rest of us, think about charging less." And, while I will take a case for little or nothing if I think that a) I can make a real difference; and b) the client is going to get badly screwed if he doesn't have my help, I can't take many such cases and represent my clients well. Do you like the work you are doing right now? Would you like to be doing the same work in five years? Ten? Twenty? Stephen Gustitis writes of returning to his hometown to find friends and family, after 30 years, "still struggling to find meaning and satisfaction in their work." Lawyers are not immune from this -- most corporate and insurance defense lawyers I know, and some prosecutors, strike me the same way (representing unPeople -- corporations and governments -- is, I think, an act intrinsically empty of meaning). But lawyers who help people, trying to make them more free, can scarcely avoid finding meaning and satisfaction in their work. We criminal defense lawyers are truly, as Stephen writes, privileged. We are privileged because most of us have the resources to repair the car, the wherewithal to go to the doctor, the money to hire the lawyer. In other words, we have the material things that help us weather the storms that life sends our way. More importantly, though, we are privileged because we find meaning and satisfaction in our work -- it is hard not to -- and we enjoy what we do enough to picture ourselves doing it for decades to come. Most of all, though, we are more privileged than the vast majority of people because we belong to a profession that brings us into daily contact with those who are less fortunate than us. We are given the opportunity, every day, to appreciate the gifts we have been given, and to share them with others.

Technorati Tags: criminal defense, philosophy

The Question, Revisited

Thanks to Gideon of A Public Defender for this quote from New Haven public defender Tom Ullman:

It would be a terrible message if I didn’t take this case. There was never any hesitation in my mind about taking it. As a lawyer, I would always rather be on the side that’s advocating for someone’s life rather than planning, plotting, strategizing and intending to kill someone.

Sometimes all you can say is "amen."

Who Broke the Internet?

About four days ago, I got no email for a four-hour stretch in the afternoon. Email service resumed, but the messages sent to me during that time never arrived. Technorati has stopped finding my new posts. My webhost no longer recognizes my account. (Fortunately, my webpages seem to still be up.) What's going on?

Digging Dirt

We defenders are, as New York criminal defense attorney Scott Greenfield writes, Diggers of Dirt. In fact, one thing that distinguishes the zealous defender from the businessman-masquerading-as-defender is the alacrity with which the defender digs the dirt. While the businessman is typically thinking about how not to annoy the State, the judge, the complainant, the cops, and so forth, the defender is digging away, hoping for some nugget of information that might make a difference to his client. We dig for dirt on the judges -- their personal prejudices that might hurt our clients. We dig for dirt on the prosecutors -- information from other lawyers about the dirty tricks that the prosecutors like to play. We dig for dirt on the cops -- history that might make them less believable. Most of all, though, we dig for dirt on the accusers. A guy came to me last week charged with a violent crime. He hadn't been arrested yet, and hadn't been to court. He didn't know the name of the alleged victim in his case. He told me that the complainant had hit him, and he hit back. He hired me, and within a couple of days I knew who the "victim" was, and what criminal history he had. I knew that he had been convicted of the same crime that he was accusing my client of. I had ordered a copy of the police report from that incident, and ordered his booking photo. Now, I still haven't made my first court appearance on this case, but when I do I will know much more about the complainant than the prosecutor does. When I have the offense report, I'll track down and interview the person the complainant was convicted of assaulting. I'll get him primed to testify as a witness to the complainant's character. I'll also spread the word that I'm looking for other people assaulted by the complainant. I don't know what I'll find, and I don't know how much good it will do. But you have to dig for information, and when you're trying to save a guy from prison, information is power.

Technorati Tags: criminal defense, investigation