Time, Toil, Talent, and The Show

My blawgospheric and geographic neighbor Chuck Newton (read his blog for ideas on being a "third-wave lawyer" without much of the overhead and inefficiency that lawyers have traditionally had) had a post this weekend about Time, Toil, and Talent, which are the things that we, as lawyers, should be selling. If we aren't selling our time, toil, and talent, we're selling a commodity -- "divorces," in Chuck's example. Young Shawn Matlock, meanwhile, describes a taxonomy of criminal defense lawyers based on a baseball metaphor: "Cooperstown" (the best of the best), "The Show" (difference makers), "The Minors" (those who win only the cases they should win), and "Little League" (walking, talking ineffective assistance). Time, toil, and talent make the difference between Shawn's groups of criminal defense lawyers. A lawyer who doesn't have a lot of talent, doesn't work very hard, and doesn't spend a lot of time on a case is strictly a little leaguer. If his clients don't plead guilty, he can't help them. They are difference makers, but not in a good way. A lawyer who has talent, or works hard, or spends a lot of time on a case may be a little leaguer or a minor-leaguer. If the facts are on his side, he might win and if the facts aren't on his side he's most likely going to lose. A lawyer who applies talent and toil, or talent and time, or toil and time to a case will be a minor leaguer; if she's very talented, hardworking, dedicated, or lucky she'll make it to The Show and make a difference to her clients. A lawyer who brings talent, toil, and time to every case will eventually -- not at first, because it takes time to learn the game -- make it to The Show; if he is exceptionally talented, hardworking, dedicated, and lucky he might someday be in Cooperstown.

Trial Mode Off

Sometimes -- often -- usually we prepare for trial only to have it not happen when we're expecting it to. ("Usually" because almost no case ever goes to trial the first time it is set.) We prepare and prepare and find ourselves ready or at least ready to announce ready, our loins girt, our witnesses subpoenaed, our files organized, only to be told to come back again in a month or two or three. Sometimes it's a blessing -- there is often one last little thing left undone on the eve of trial, and the delay allows us to do that last little thing and discover another last little thing left undone on the next eve of trial. Trial preparation is work. It's not digging ditches, but it requires a lot of energy to do right. In addition to planning strategies for jury selection, opening statement, cross-examination, direct examination, and closing arguments I dream up trial motions, research trial briefs, and write proposed jury instructions. At the same time I'm marshaling my witnesses, gathering my equipment, and rescheduling the hundred other things that might otherwise threaten to intrude when I'm in trial. I'm also preparing myself physiologically. My body shifts into survival mode. A steady trickle of adrenaline drips into my bloodstream. I don't need as much sleep. I might wake up at four in the morning with an idea and write it down. Then I might slip back into sleep, or just spend the rest of the morning thinking about the case. The people who live with me see me slipping into trial mode and, since they've been through it before, prepare themselves for the trial. Jennifer might ask me to finish up any errands that must be done before the end of trial, or make plans to have less help from me in the day-to-day running of the household and the practice. Mostly, though, I've begun (or completed, depending on the stage at which I'm interrupted) moving into the mental state that I'm going to be in when I try the case. Everybody has a different trial style. However we try cases, though, our mental state for trial is not the state in which we exist from day to day. For my part, from day to day I look at my cases objectively, considering the chance that I might lose, and even seeking ways that I might lose. When I'm in trial, losing is not an option. It's too late to red-team the case; what I call (and Scoplaw calls) "trial psychosis) takes over; I put on what Gideon calls trial blinders. In my mind I have a response to every prosecutorial argument and objection. My advocacy couldn't possibly fail to raise a reasonable doubt in the mind of any juror with a brain. I'm Clarence Darrow, Earl Rogers, and Alan Shore rolled into one. The things left undone are unimportant; I have everything I need to win. I'm tuned in to every nuance of every word everybody says. I'm a mind-reader. The courtroom belongs to me, and I'm the best lawyer in it. I'm feeling sorry for the prosecutor who has to face me. I'm a superhero. That's where I was yesterday afternoon. I felt as prepared as possible for trial; the things left undone were truly minuscule. I could tell that the prosecutor wasn't as well-prepared as I was. I knew what every one of the State's witnesses would say, and I knew exactly how it fit into my client's story. Then the State revealed the results of some forensic tests. They would have helped me tell my story, but counsel for one of my codefendants wanted time to respond to them. So the judge continued the case. Click. The adrenaline drip is disconnected. The hundred things rescheduled can now be dealt with. The witnesses will have to be marshaled again later. My family has me back. And I have to shift back from trial mode to ordinary-life mode. This afternoon I took a three-hour nap. I feel like an ordinary human being again. Almost.

Lawyer Personalities

Apropos of resilience, What About Clients --> Geeklawyer --> I/P Updates post on the lawyer personality. It turns out that most of us are INTJ according to the Myers-Briggs Inventory. I'm eNFj. Fifteen years ago I was ENTP. What are you?

Manners

When we react with anger to someone else, we're generally trying to teach them a lesson. A judge once told me that anger is usually the result of either a loss of control or a perceived loss of dignity; I think that he got it right. When we try to teach another person a lesson, we're trying to show them that they can't take away our control or dignity and get away with it. Last year I tried a couple of road-rage cases. What is road rage but an effort to teach the other guy a lesson? Driver A makes a mistake, and driver B feels a loss of control. So Driver B then flips driver A off, and driver A feels a loss of dignity. So Driver A brake-checks driver B, and Driver B feels a loss of both control and dignity. So Driver B runs Driver A off the road, and Driver A feels a loss of control and dignity as well. Soon someone is getting shot on the median and someone is getting charged with murder. These things tend to turn brutally expensive for everyone involved really quickly. The urge to "teach someone else a lesson," or to "show them," or to "teach them manners" is a strong one in our culture. It's so ingrained that some of us aren't embarrassed to write that we think there are situations that "call for being a jerk":

If you cut me off in traffic, then you'll probably get the finger. If you clearly demonstrate that you do not possess any elevator etiquette, then it will be obvious by the look on my face. That kind of stuff.

(Shawn: take this test!) I think the world might be a better place if everyone feeling a loss of control or dignity took a deep breath and considered whether the person responsible could be taught to know better, or whether the likely result would be worth the effort. It's not my job to teach manners to adults. If you're over 14 years old and don't know to say "please," "thank you," and "I'm sorry," I'm not going to civilize you. I'm not even going to try. If you push onto the elevator before I get off, I'm not even going to scowl. If you cut me off in traffic, you won't be seeing the finger. It'll just waste my time and annoy you. I'm out of the business of teaching grownups lessons.

Have Some Frickin' Compassion!

This article from Saturday's Houston Chronicle just came to my attention (thanks to Houston criminal defense lawyer Steve Halpert for the assist). In a nutshell, it's an opinion piece (thinly disguised as news) about how the Harris County DA's office should be working harder to put homeless, drug-addicted, mentally ill veterans in jail for longer terms. Here's the response I emailed to Peggy O'Hare, the author of the article:

Ms. O'Hare, You related an anecdote and gave your opinion but totally missed the story. Mr. Lee's case does expose a flaw in the system, but the flaw is not that we are too easy on cocaine-addicted, mentally-ill, homeless veterans. There are countless people who come through the system time after time after time with -- and at least in part because of -- mental health problems. With 1400 inmates being treated with psychiatric medications, the Harris County Jail is the largest psychiatric hospital in the state. You pooh-pooh Mr. Lee's psych history. Bear in mind, though, that very few of these 1400 HCJ inmates receiving meds are either (legally) insane or (legally) incompetent. You might say that their "mental health has never been used as a serious defense," but they are, by any definition, mentally ill. The 1400 receiving psych meds are not the end of the story, either. There can be no doubt that there are also people in the jail who are mentally ill but undiagnosed and untreated. Jail officials have surprised me with their compassion; they are doing their best to help the mentally ill within the system. But this state does not dedicate enough resources to helping the mentally ill. The jail can't do anything with mentally-ill inmates but hold them or release them to the street; if they are released to the street, they will wind up right back in the jail, or dead. If we send them to jail for two years, we're warehousing them; mentally ill inmates are much more expensive to house than inmates who are not mentally ill, and when they are finally released, they're going to be back in jail in short order. I have had clients like Mr. Lee -- homeless veterans with drug addictions (cocaine addiction isn't a "weakness", as you glibly describe it, but a disease) and mental health histories. I have seen them commit crime after crime after crime, until it appears to me that they are trying to get caught and sent back to jail. In fact, some of these crimes happen on the coldest nights of the year. Upstanding citizens say, "it sounds like they don't learn a lesson." No, they don't. They're mentally ill and drug addicted. To the public, the easy solution would appear to be to warehouse them in jail or prison. Mr. Lee might have, if the State wanted to spend tens of thousands of dollars to take him to trial, been sentenced to ten years in prison (no lawyer worth a damn would plead him to that on the facts you've described). On a ten-year TDC sentence, he might serve ten years, or he might serve as little as 14 months. But treatment in TDCJ-ID is no better than in the Harris County jail and, without mental health and drug treatment, he would likely be back in jail shortly after getting out. The flaw is not that we don't put Mr. Lee in jail longer; it is that we don't treat his illnesses to try to prevent his return there. Mark.

Stephen Gustitis's Trial Blog

I am not in trial. My misdemeanor possession of marijuana case, set for trial on Monday, settled. My client's dealer turned up to testify against him (Bad dealer. Bad!) and seemed to be a fairly solid witness; discretion being the better part of valor, my client chose not to risk a full conviction. Next up is a murder / aggravated assault case next week. I've learned that a visiting judge will be presiding over the case; she happens to have been my trial advocacy professor in law school. She also happens to have been the judge who married me and Jennifer. Oh, and the last time I tried a case before her I prevailed. Not that any of that helps me on this case, but it's good to know what I'm dealing with. The State is intent on trying my client and his brother together. I'm happy with that -- my client's brother is represented by Tyrone Moncriffe who, in my opinion, is one of the best criminal trial lawyers in the state. Tyrone is also a fellow alumnus of the Trial Lawyer's College. Trying a case at the same table as a first-class lawyer like Tyrone is always a learning experience and, more importantly, fun. There will be great symbiosis between Tyrone and me; I think the State's odds of getting a conviction would be better if they separated us. Meanwhile, in Bryan, Texas, Stephen Gustitis is in a felony jury trial. Yesternight he wrote about the restless night before trial. Tonight he wrote about day one, including a jury selection that appears to have gone about as well as a lawyer could hope. Go get 'em, Stephen. (I always cheer for the defense -- not for the defendant, necessarily, but for the lawyer.)

Technorati Tags: trial

Statute of the Day

Texas Penal Code section 9.04:

The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

That means that if you're in reasonable fear that someone will cause you bodily injury (bodily injury simply means pain) you can threaten to cause serious bodily injury or death. So, for example, if you're charged with committing aggravated assault by threatening a person with a firearm, to establish a self-defense claim (or a defense-of-others claim) you don't have to show that you reasonably feared that they would kill you otherwise, but only that you reasonably feared that they would hurt you otherwise. For some reason I hadn't happened upon section 9.04 in a dozen years of practicing law. But it turned up when I needed it.

Technorati Tags: law, self-defense

Advice to New Lawyers

I used to be an apostle of lawyers starting their own practices. I think it's the best way for a young lawyer to make a living and keep her soul. But it's been long enough since I started my practice that I'm not sure I know the environment well enough to recommend that course. This article from the Wall Street Journal makes the picture look pretty bleak for new lawyers, whether they're looking for jobs or starting their own firms. Houston criminal defense lawyer Nathaniel Tarlow wrote these ten suggestions for new lawyers hanging their own shingles (please let Nathaniel -- ntarlow at gmail dot com -- know if you find the suggestions useful):

As a new lawyer who went the "hang their own shingle" route, I can tell you that it's not easy. Though there are things that people in this position can do to make it better and up one's chances of success. Here are some that worked for me: 1. Be willing to do family law. Uncontested divorces are a simple and relative painless way to get rent and other bills paid. While not everyone knocks over a liquor store, people of all strata seem to be getting divorced or having other family issues that require a trip to court. This goes for other kinds of law too, but family cases are by far the most frequently filed causes, and tend to be steadier in coming in. 2. Be willing initially to take some cases for less money. While it can hurt one's pride to be "that lawyer" who is walking into the courtroom for less, it's better than sitting in the office drinking coffee and waiting for the phone to ring. Besides, with exposure in court comes more experience and the chance to pass out cards to people who ask for them. Time spent in the office can be used reading codes, reading the listserve (which in education unto itself), or brainstorming ideas. 3. Band together with others new lawyers in the same boat and share costs, including advertising. This eases overhead and helps with those lean months. 4. If you have a language skill, market yourself in that particular community. Being a Spanish-speaker, I make it a point to try to interact more with the Latino community, as people like a lawyer who speaks their language and can relate to them better in a communication aspect. I've enjoyed many a bowl of pho in midtown only wishing I could speak Vietnamese. It makes a difference. 5. Don't be shy about asking for help. I often need it, and when it's asked of me, I often give it. I clerked for some excellent lawyers during law school and they've always been willing to take call or a visit from me. They've helped me, and continue to do so. The wages of karma both good and bad can't be ignored. 6. Get on court appointed lists in the counties where you qualify and can regularly go. I've gotten some decent referrals out of court appointed clients in Galveston Co. whose friends could pay. Besides, court appointed clients often appreciate you more when you do a good job because their expectations are frequently lower. So they're often willing to help you in return when they can. And hey, just because someone doesn't have money today and needs a court appointed lawyer, doesn't mean he won't have money the next time he/she needs an attorney. 7. Entertain to the extent possible, the "shop-around" types who come in for free consultations. While they often waste your time, it's a good chance to sharpen one's personal interaction skills and get to know people as a whole better. When they leave (usually without signing a contract) send them out the door with a few business cards. You never know, I've had some come back. It never hurts to get a card out there. Once your practice is more established, these can and probably should be phased out. 8. Try to get to know some lawyers in other counties. Often established lawyers have practices that are very heavily centered in one or two counties. They know they can't be in 2 places at once, and might ask you to either cover for them in a county where you are that day or just straight out give you the referral. Covering for that attorney is a favor to that attorney, and he/she will be more willing to take time out of his/her day later on to give you advice if/when you need it in a hurry. And a referral or two can make a difference between a bad month and an average one, or an average and a good one. 9. Bring in other lawyers as co-counsel, even if they end up with the lion's share of the fees in that particular case. While the recompense factor has been cut by having to share fees, what you can learn in that first go can justify your fee the next time such a case comes in. Knowledge is priceless, and if it costs you a chunk of the retainer to get it, I've found that it's usually money well-spent. 10. This has been the most important lesson I've learned so far: Make peace with your situation. Being a new lawyer is a challenge, and the fact is that like in any profession, you've got to pay your dues. Accept the fact that getting a business off the ground is hard, and be prepared for setbacks. I'm still dealing with this, and still trying to learn.

The Business of Practicing Law

We trial lawyers often pooh-pooh the importance of business skills. "I'm a professional," the thinking goes, "not a businessman. I need to be spending my time honing and exercising my skills rather than running a business." The problem, of course, is that the business end of the law practice doesn't take care of itself. If the business isn't running smoothly, we face distractions that make us less effective advocates for our clients. Business skills are a force multiplier. An hour spent making the practice run better can make a lawyer much more efficient and effective at practicing law. A specific business skill particularly deprecated by trial lawyers is marketing. In some legal circles, "marketing" is a dirty word. But it doesn't have to be -- marketing can be focused on determining what the clients need or want and how to provide it to them. Look at it this way: are the clients better served by knowing about who you are and what you do, or worse? If we attend consciously to marketing our practices, we can do it ethically. We can better find those clients who most need us, and can provide them with the services that they need most. The same applies to advertising. We can advertise ethically and truthfully, broadening the group of potential clients while educating the public. On the other hand, if we don't attend to marketing or advertising, somebody else is going to, and that someone may not share our ethics. If we don't market ourselves and advertise, the clients who need us most are going to hire people who don't share our ethics -- people, for example, who advertise deceptively, and people who think it's okay for a lawyer to pay a ghostblogger.

Technorati Tags: advertising, ethics, marketing

Sun Tzu and Lao Tse

In a comment to my Anger and Fear post (in which I advocate trying cases in the moment and without fear), Oklahoma criminal defense lawyer Glen Graham wrote:

I disagree with the story. To me, it seems like the guy should being thinking about life. He should look for crevices in the rocks to grab onto and he should fight, fight, fight !!!. A lawyer who is thinking about how good the strawberries are instead of how to win his case is not being a true warrior and not being the best advocate for his client. The art of advocacy is in some sense the art of war. Zen philosophy tends to cause the advocate to loose his incentive to fight the good battle. If you want to read good asian philosophy, take a look at "The Art of War by Sun Tzu.

The story Glen is talking about one that Jon Katz had cited as an example of living life without fear. I had quoted it, tagging it a "Zen story." (Jon may not agree with that characterization -- he learned the story from a t'ai chi master; as I understand t'ai chi, its philosophical underpinnings lie in Taoism, which forms a foundation for Zen Buddhism as well. As far as I know, the tiger story came from the Zen tradition, but it might as well be a Taoist story -- or, for that matter, a Sufi story. To quote Pooh, "It's the same thing."):

A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes.

While it should be required reading, the Art of War doesn't, by itself, give us any idea what to do when the tiger chases us off the cliff. Without more context it's strategy rather than philosophy. To understand the Art of War a reader should understand the philosophy underlying it, and know himself. Sun Tzu wrote:

Hence the saying: If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.

If you don't know yourself, the Art of War won't do you any good -- you will lose every battle. The book itself doesn't provide us with any help in knowing ourselves; it doesn't even tell us what Sun Tzu meant by "know yourself." To understand Sun Tzu and the Art of War, first we have to understand what he meant by "know yourself," and then we have to know ourselves in that way. Without an understanding of the philosophy underlying it, the Art of War is nothing more than a book of tricks. It doesn't give you any strategic advantage because anyone can learn the tricks. To understand the Art of War, therefore, first study the Tao Te Ching, or t'ai chi, or Zen, or aikido, or acting, or improvisational theatre, or any other discipline that seeks a state of presence in the moment. Then, once eating the strawberry makes sense to you, read Sun Tzu.

If You Have to Ask . . .

"If you have to ask, you can't afford it." I've never really accepted that. I considered it a snotty, pretentious response to a legitimate price inquiry. I figured that even someone with all the money in the world would be a fool not to ask how much something was before deciding whether to buy it. But now I realize that not only is it true, but it's also a truism. I get a lot of calls from people whose first question is, "How much do you charge for a ________ case?"; I find that these folks almost invariably can't afford to hire me. I've tried several different approaches for dealing with these calls. Generally I'll begin with "I'm sorry, I don't discuss fees over the telephone." Setting an appropriate fee in a criminal case is not a science but an art. A lawyer can't properly practice this art over the telephone. I have a policy of not quoting fees over the telephone because I can't get all of the information I need, much of which is intangible, without a face-to-face meeting. I like for money to be the last thing we discuss. At first, after describing my policy I would suggest that we make an appointment to meet to discuss a) whether they wanted to hire me; b) whether I wanted to take the case; and, only then, c) what it would cost. After about the hundredth time that a potential client no-showed for one of these meetings, I realized that the folks whose first question concerned cost weren't turning up. I was wasting my time. So I adapted. After saying that I didn't discuss fees over the telephone, I would add, ". . . and you really don't want to hire a lawyer based on price" and explain that lawyers who focus on price can't be focused on quality. This seemed, for some reason, to make no impression at all on the price-shoppers; I was wasting my breath. Now if the first question a caller asks is "How much do you charge?" I simply explain that I don't quote prices on the telephone. If the client then gets the idea of setting up a meeting, I'll oblige him. I get many fewer no-shows. The price-shoppers usually can't afford to hire me, but occasionally one of them will have the sort of case I feel compelled to take regardless of the money involved. Lots of these callers say "I've talked to other lawyers, and they all charge too much." When I hear that, I will explain that it's unlikely that I'm cheaper than any lawyer who would quote a price over the telephone. (That is true because I have a very low-volume practice. While many of my colleagues have dockets of fifty to a hundred active cases, I have twenty or fewer. Only by keeping a small docket can I provide each client the intensive representation that he deserves. I have plenty of time to spend on each of my cases, and time to communicate with each of my clients as much as he needs. By keeping my docket small, I am able to provide a premium service. If I cut all of my fees in half, I would have to take twice as many cases to provide my family with the things that they deserve, and all of my clients would suffer.) Sometimes I'll still try to help the price-shopping caller out by explaining the downside of hiring the low-bid lawyers. But it's to no effect -- those folks are asking not because they want to but because they have to. They aren't cheap; they're poor -- usually working poor but poor nonetheless. And it really is true that those who have to ask how much I charge can't afford me.

Technorati Tags: criminal defense, fees

Anger and Fear

Jon Katz writes about Giving Unpleasant People the Benefit of the Doubt. His message is that we should seek to eliminate anger by eliminating fear. As Paladin said, "Never draw in anger. It slows the hand." Jon tells a Zen story as an example of a life lived without fear:

A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes.

Jon is talking about mindfulness -- "living in the moment," he calls it, with "the fearlessness of a child filled with wonder." (See also my post about practicing law with a childlike mind.) When trying a criminal case, you want to do without fear. You do that by just being, as Jon writes, in the moment. When you're picking a jury, you're not afraid of doing it wrong; you're just doing it. When you're cross-examining a snitch, you're not afraid; you're not even thinking about the consequences. I'm not certain that you've "eliminated" fear (that's a philosophical discussion for another day), but you've at least denied it sway over you.

Dude, Where's My Client?

The last time I visited with Oscar he had decided to plead guilty. Yesterday I went to see him again to tell him that the plea was set for Friday, and to explain how the plea would transpire. At the detention center, a Bureau-of-Prisons-run facility, I filled out the usual paperwork and handed it over along with my driver's license and bar card. The lady behind the bulletproof glass compared my client's name to the list of inmates in the jail. He wasn't on the list. I could see that he wasn't on the alphabetized list. She looked at the list again. "Does he have another name that he goes by?" No, I've visited him before under that name. That's the name you had for him. She consulted with another guard behind the bulletproof glass. She compared Oscar's name to the alphabetized list -- it wasn't there -- and to another version of the list -- not there either. She called someone. I sat down to wait. A couple of minutes later, we had an answer: "He's been released. He was released on September 7." Released? "Released, September 7." The Federal Detention Center, where Oscar was being held, was built to keep bad guys in. You don't just walk out of the FDC unless they let you out. And Oscar had pending federal charges, no bond, and a trial date set. But they released him? Oscar is charged with committing an offense while he was in custody for another offense. My theory is that BOP records showed that he had served the balance of that sentence on September 7th, and nobody had made an entry in the computer to hold him on the new charge. So when the initial sentence expired, his name popped up on some "to be released" list and he was cut loose. Not entirely loose, though -- he's supposed to be serving a term of supervised release following his release on the first charge; if he hasn't already reported to the probation office, he's probably in violation of his terms of supervised release, and can be imprisoned for that. If he does report to the probation office, though, at some point they'll figure out that he should be back in custody. I mentioned that Oscar was charged with committing a new offense while in custody for another; here's the rest of the story: he had been in a halfway house, where he was permitted to come and go, and he went (to go to a job interview) and never came back. So when he walked away this time, he was walking away from the escape charge that resulted when he walked away the last time.

Why We Poll the Jury

A jury verdict in a criminal case is not really a single verdict. It's actually twelve (six in a misdemeanor) individual verdicts. It is important that jurors realize that each of them is personally and individually responsible for the verdict; the majority doesn't rule. "Beyond a reasonable doubt" is a very personal standard; nobody can force someone else to agree that the doubts that she has are not reasonable. It is not acceptable for one juror to try to pressure or coerce another juror to reach a verdict contrary to her own personal judgment, and it is not acceptable for one juror to submit to another juror's pressure to reach a verdict contrary to her own personal judgment. "I was outvoted" and "I was under so much pressure" are not justifications for reaching the wrong decision. When I'm discussing this concept to potential jurors in voir dire, I will sometimes explain that, once the jury has reached their verdict, the judge will poll the jury -- will ask each juror, "is this your verdict?" If the collective verdict does not match the juror's personal judgment, the answer has to be "no" and the verdict does not stand. I've seen a lot of juries polled, and I've never heard a juror respond "no." This morning the Houston Chronicle this morning had an article about a health care fraud jury trial in federal court in which, when the jury came back with a guilty verdict, defense lawyer Joel Androphy (who taught me white-collar defense in law school) asked that the jury be polled. Judge Werlein polled the jury, and one woman said, "That's not my verdict." Joel moved for a mistrial, which was granted. The accused will get another trial -- not right away, probably, but, as Percy Foreman used to say, a continuance is as good as an acquittal, for as long as it lasts.

Have Fun

I wrote yesterday about What About Clients's Rule 1, "Represent only clients you like," and my doubt that it can apply to a criminal practice. Also yesterday, WAC posted his Rule 12 -- a rule with which I wholeheartedly agree: Have fun.

It's supposed to be fun. American law is extremely varied, elastic and constantly presenting new practice areas. It has something for everyone. I am convinced of this. Please keep the faith and keep looking until you find it. Put another way, don't quit before the miracle occurs. It's there, and it's all inside you, in front of you. Simple--but still hard. It's a privilege and joy to do what lawyers do when they do it right.

(I wrote here about how "fun" was a major factor in my choice of practice.)

Freedom vs. Safety vs. Charity

Malum in Se asked, Is an ADA Really Worth More than an APD? This had me thinking about what relative prosecutor and PD salaries say about society's priorities. I wrote here about the relative salaries of ADAs and private defense lawyers reflecting the greater value we place on freedom than on safety. I think that the disparity that Malum complains of also reflects the value society places on the two jobs. But how can that be? Doesn't the fact that public defenders make less than prosecutors disprove the theory that private defenders make more than prosecutors because society values freedom over safety? After all, public defenders, like their private counterparts, are fighting for freedom rather than safety; if the public valued freedom more than safety, wouldn't APDs be paid more than ADAs? No. The threat to freedom against which public defenders guard is, to most people, abstract and theoretical at best. Only tiny portion of the voting public (and an even smaller portion of the campaign-contributing public) will ever need a public defender. Even if they can imagine being charged with a crime (who, other than us defenders, can imagine that? lucky us!) they don't see themselves relying on a publicly-funded lawyer for a defense. So when people think about funding public defenders, they aren't thinking "freedom" (as they are when they fund private lawyers) but "charity." Just as society values freedom over safety, it values safety over charity. And that's why APDs are paid less than ADAs.

Like Clients?

Dan Hull, in his What about Clients? blog (a good question, and a good blog; his blogroll includes many blogs from outside the U.S.), lists 12 Rules of Client Service. I agree with Dan's twelve rules 91.66%. But his Rule 1, "Represent only clients you like," is one that I'm not sure criminal lawyers can follow. Unlike Dan, most criminal lawyers are a) not representing companies; and b) not forming longterm attorney-client relationships. Our clients are people, and if all goes well they will never be in trouble again. I don't speak for all criminal defense lawyers, but here at Bennett & Bennett we try to help our clients resolve whatever issues got them tangled up with the law. Some of our clients in fact did whatever it is that the government is accusing them of. Even our many factually-innocent clients have generally mismanaged their lives to get involved in the criminal justice system; most criminal charges don't appear as a bolt from the blue. Some of the ways our clients mismanage their lives make them hard to like. It's nice to like our clients, but I don't think it's crucial. What do you think?

Impending Trials

I have five jury trials set in the next five weeks. Do you know how to try five cases in five weeks? The same way you eat an elephant: one bite at a time. First up is a misdemeanor possession of marijuana case, next week, in which the state intends to use a dope dealing snitch witness to try to prove that my client knew that the marijuana was in his (the dope dealer's) car. Odds are that I have much more experience dealing with cooperating codefendants than any of the prosecutors do. (That experience comes from federal trials.) The jury instructions in a snitch case give the jury lots of "outs". Even if my client is convicted (never an impossibility), he already has enough jailtime credit to cover any rational jail sentence. Next up (the following week) is a murder / aggravated assault / aggravated assault allegation. I have a few nasty little surprises in store for the prosecutor trying this one; my client is absolutely innocent. Unfortunately, six people got charged with the same murder and two aggravated assaults, and four of us, it seems, are going to trial together. Multidefendant trials are not pretty, but at least they're companionable. (In federal court the real killer would have made a deal to testify against the others; fortunately we're in state court on this one as well.) Following that I have a little break -- two class "C" misdemeanor (fine only) jury trials. It is unlikely that either of these trials will materialize, but I have to prepare nonetheless. Then I expect to be trying an indecency-with-a-child-by-exposure case in which the "complainant," the only person present when the accused allegedly exposed himself, has revealed that she doesn't know whether he exposed himself or not. What the State can prove the accused actually did has a high "yech" factor, but it isn't a crime. The prosecutor must have a nasty little surprise in store for me, since I can't see how she's going to prove her case otherwise.

Statements or Questions

English Barrister Simon Myerson commented on my recent post about Racehorse Haynes's cross-examination of the government's snitch witness in a murder case. Simon has a very interesting blog: Pupillage And How To Get It. I'm not entirely clear on the concept of pupillage; it appears that it's something like an apprenticeship -- in order to become a barrister you must first get an undergraduate degree (and a one-year Graduate Diploma in Law if the undergraduate degree was not in law), then take a one-year Bar Vocational Course (BVC), then have pupillage in law chambers for two six-month terms. (Contrast this with the American system of dumping lawyers with no practical training or experience on an unsuspecting public after three years of academic law training.) Not everything is different in the commonwealth, though -- here's Simon's description of a "bog standard" criminal practice (from his post, What Type of Law Should I do?):

This is one of the places where law interacts with the average person. You can exercise your commitment to help the downtrodden - and prosecute (most burglaries are committed within 1/2 mile of the burglar's home). Or you can cheerfully run the same defence that worked for your client's uncle the last time - usually with the same alibi witnesses. You will find out more about sex with children, animals and the dead than you ever wanted to know. You will learn the best way to steal a car, fire a house, deceive an elderly person and kick someone on the ground. If you learn lots about all these things, someone may ask you to become a Judge. Advantages. All your friends will know what you do because they will have watched Rumpole. Clients are normally grateful - win, lose or draw. Life is varied. This is what 'Barristering' is all about. National Press might know your name. Other lawyers might actually be interested in what you do. You also get to do the jury speech - and the jury might actually understand your case. Criminal Bar tends to be friendly and supportive. If so inclined, this is an area where you can parade your conscience by only defending (except for Rapists obviously) which can help you get work from like minded solicitors. Your solicitor is normally absent and sends a clerk who will be nice about you if you buy them lunch. Given the complexity of sentencing you can regularly double your money in the Court of Appeal. Disadvantages. Although things may be a little better for the junior bar, paywise your plumber is still laughing at you. Other Barristers think that what you do isn't really law. You have to spend time in prison, which is enough to depress anyone. Occasionally you have to defend someone innocent and will lose sleep. If your career doesn't take off the CPS will seem an attractive option. There are actually only 5 mitigations and only 4 defences so it can be grindingly dull to be doing the same thing 10 years on. When you lose the plot you will be lucky if the solicitor's clerk knows what day it is. The Government passes about 3 badly drafted major acts per Parliament - all of which are knee jerk responses to what the Daily Mail says - and you have to learn about them.

Simon also has a list of other British lawyers' blogs; I've added them to my feed reader, and will report on what I find. Anyway, on to the intended point of this post . . . In his comment, Simon noted that two of the "questions" Richard asked were "statements." I'm not sure of the importance of this distinction; Richard's "statements" clearly required (and elicited) answers; one of them was even voiced with a rising intonation (indicated in my transcription with a question mark). I wonder whether there's any significant difference between a sentence that elicits an answer because it is phrased as a question, a sentence that elicits an answer because it is intoned as a question, and a sentence that elicits an answer because the circumstances demand an answer. This seems like a good time to introduce another track from Terry MacCarthy's cross-examination CDs. Here's Terry talking about the use of statements in cross-examination:

(Download a form to order the seven-CD set.)

Mencken on Government

Government is actually the worst failure of civilized man. There has never been a really good one, and even those that are most tolerable are arbitrary, cruel, grasping, and unintelligent.

H. L. Mencken

Ghostblawging OK?

Ed, whose LawBiz Blog I have been scouring for good practice management ideas, says it's okay for a lawyer to have a ghostwriter write her blog. Here are a few of his reasons:

* Blogging of the nature under discussion is created for marketing purposes. If not, we wouldn't be concerned about search engine placement. * Blogging is done primarily to raise the level of one's credibility for expertise in a given subject -- in other words, blogging is done for business purposes. * We do not attribute authorship to marketing copy used in the promotion of any product or service. While that may occur in limited circumstances, it is a negotiated event, not a matter of ethics. * There are many very fine authors who earn a considerable income by writing for others without using their own name. * Books are published daily with the name of the author listed -- but who may in fact not be the person who wrote all (or, in some cases, even any) of the words. * The person whose blog it is, though not the author, still sets the tone of the content, still oversees the ideas to be discussed and most likely lays out the entire strategy to be highlighted in the blog. In other words, the concept is the bloggers even if the specific words are not. * Since content is king in the blogging world, providing valid ideas that are practical and useful is far more important than being a great novelist. Getting help to enhance your communication skills so that the reader will better understand your ideas is an acceptable, in my opinion, strategy.

No, no, no! Blogging is (at least in part) for marketing (or advertising) purposes, which is exactly why lawyers shouldn't use ghostwriters to write their blogs. What's being marketed or advertised is the lawyer. Blogging is done to raise one's credibility. The credibility to be raised is the lawyer's. The expertise being sold is the lawyer's. The communications skills being sold are the lawyer's. Blawgs are not ad copy. Unlike ad copy, a blog is something that the consumer has reason to believe is written by the person whose services are being sold. While we don't attribute ad copy, we don't falsely attribute it either. We're lawyers, not authors. Ghostwriting may be okay for authors (I'm not convinced it's ethical in any situation for someone to claim authorship of something he didn't write), but that doesn't make it okay for lawyers. When people are hiring you for your communicative skills, it is unethical to claim someone else's communicative skills as your own. Blawgs are not books. Books are generally not created for marketing purposes. If they were, it would be improper for an author to claim to have written something he didn't write in order to get people to hire him. Having a ghostwriter write a blog is at least as deceptive as having someone play you in a TV ad. In fact, it's more deceptive, because clients who read the lawyer's blog think they're seeing her actual thought processes, intellect, emotion, and communicative abilities. As always, put yourself in the client's shoes. Suppose you are looking for a lawyer. Nobody's static website inspires you. But then you find a lawyer who blogs, and you like what he says and the way he says it. You hire him based in part on the strength of his blog, only to later learn that he pays someone to write his blog for him. Do you feel deceived? Of course you do. If a blog is an advertisement, a ghostwritten blog is a false advertisement. Defending People will always be written either by me or by a guest blogger with clear attribution. No ghostblawgers here.

Elsewhere. . .

Montana criminal defense blog Fight 'Em 'Til We Can't (for my money, the best criminal defense blog name ever) calls our attention to Denver PD investigator Gary Norris's Daglaw blog post, Judge John Bayly, Asshole of the Week. DC judge Bayly (who rose above some strenuous competition for the honor) jailed a PD for continuing to insist that her client was homeless in the face of the judge's skepticism about the point. According to a Law.com article on the incident,

Bayly called PDS general counsel Julia Leighton (who was not present at the hearing) to the bench and told her what had occurred: "She was oppositional and defiant. Not in an unpleasant way, you understand, you know, but she just defiantly refused what I said to do, which was to stop talking."

Don't you wish you had the power to jail someone who keeps telling you what you don't want to hear?

Resiliency

I wrote here about the mind of the criminal defense lawyer. Today I realized I left a major point out. In reading law practice management blogs, I happened on this post by Ed at LawBiz Blog, explaining that, according to a JD/psychologist, lawyers can't "sell" because they have little or no "resiliency, or fast rebounding from setbacks." He goes on to write:

Lawyers will be defensive, get their feelings hurt easily when someone says "no" to them or criticizes them, and are quick to justify their actions.

As is often true of generalizations about lawyers, this probably doesn't quite apply to criminal defense lawyers. Not only are defenders not easily embarrassed, but they are also very resilient. Any lawyer who can't get his butt handed to him in trial on Tuesday afternoon and be back fighting again on Wednesday morning has no business defending people. So does our resiliency make us better able to "sell"? In some circumstances, sure -- recall the judge's comment about "trying, and trying, and trying" in this post -- but overall, I think not. Ed is talking about lawyers marketing themselves. I don't think criminal defense lawyers are any better at that than other sorts of lawyers. I don't know why that is, but it's not for want of resiliency.

Commodified Lawyering?

About three weeks ago, there was some buzz about biglaw partners' fees hitting $1,000 an hour. "So what?" I thought, "Racehorse Haynes bills more than that." (See Kinky Friedman's profile of Haynes.) Even I have made over a grand an hour on lots of cases. Of course, I don't bill by the hour, so I'm motivated to work efficiently and provide maximum value to my clients in minimum time. And I've worked a lot more hours at $5 than at $1,000. Here, though, is something that caught my attention (I've been reading law practice management blogs like LawBizBlog, and recommend them highly to those hanging out their shingles):

[O]nly a few lawyers are commanding that fee level, and then only in the "bet the company" kind of cases. Commoditized work cannot command that rate.

"Commoditized" means "commodified", which means, "to turn into or treat as a commodity." A commodity is a raw material that can be bought and sold. So what is this 'commoditized work' of which Ed speaks, and who is doing it? Lawyering requires creativity, and creativity can't be commoditized. There isn't another lawyer who can do what I do, and I can't do for one client what I do for another. Other lawyers might be able to get the same results I get, but we all do it differently. If legal work were a commodity, it could be bought and sold. Client X could buy a lawyer's services and then resell them to Client Y. Or Lawyer A could sell services to a client, and then substitute Lawyer B's services for his own. It doesn't work that way. If someone hires me to defend a murder case (for example), she has a right to expect me to represent her. And if someone hires me, she can't then resell my services to someone else who needs me more (and is therefore willing to give her a profit). Hourly billing (a blight on the practice of law) is an attempted commodification of legal services. One of the myriad problems with the scheme is that not only is one unit of a lawyer's time not interchangeable with a unit of someone else's time, but it's also not interchangeable with another unit of the same lawyer's time. For example, I might sit at my desk and think for hours about one client's problem, and then have the solution to another client's problem hit me when I'm out walking the dog. That instant of inspiration is more valuable to my client whose problem I solved than countless hours spent not finding a solution. We might do lots of things that are commodifiable. But they aren't lawyering.

If Nobody Talks, Everybody Walks

There used to be conspiracy cases in which all of the defendants kept their mouths shut. Scott Greenfield wrote in the comments to my Time to Take a Stand? post about one such case:

Ah. I remember a 26 defendant conspiracy with 2 years of wires, where we held them together and only 1 defendant took a bullet for a small amount of coke he had on him when he was arrested. Ah, the days before rats.

The nostalgic tone is fitting. The days of "nobody talks, everybody walks" are mostly behind us now. A federal conspiracy case without rats is damn near unheard-of. There are still plenty of old-school lawyers who see snitching as the last option (if it's an option at all), but they are more and more outnumbered by NASCAR lawyers, who can only go in one direction, and do it as quickly as they can. If there are more than a couple of defendants in a case, one of them is probably going to cooperate with the government. If there are more than three or four defendants, the cooperation of one is going to lead to the cooperation of others. If the federal government picked twenty ordinary people at random and charged them all with a totally imaginary cocaine conspiracy, one of them would be so frightened by the prospect of going to federal prison that he would plead guilty and testify against the others. Faced with the fabricated conspiracy and the rat, two others would be eager to get on the bus and cooperate against the remaining 17 for the possibility of a 5K1. Afraid of the three rats and the invented conspiracy, 15 others would line up to debrief at the U.S. Attorney's office. Of these, three would be unable to tell a convincing enough story at the first proffer session, and the government would laugh in their faces. Five people would remain standing, and go to trial together. The government doesn't have to corroborate its informants' testimony. Four of the five would be convicted based on the fabricated testimony of fifteen rats. All told, nineteen people would be convicted of participating in a cocaine conspiracy that never existed.

TBI in McNews

USA Today had an article recently about traumatic brain injury (TBI) in veterans. In typical USAT fashion, the topic is very superficially covered -- personality changes (the kind of things that might turn a law-abiding citizen into a criminal) are mentioned only in passing:

They may be depressed, irritable and confused, and easily provoked or distracted.

Better shallow coverage of TBI than none at all. For a more thorough rundown of the personality and character changes that TBI can cause, please see this post. For my posts so far on TBI, please see this list.

Technorati Tags: TBI

A Great Moment in Trial Lawyering

Submitted for your approval: my recall of a minute of Richard "Racehorse" Haynes's cross-examination today of the cooperating codefendant in the murder case he's trying. Richard is a great listener and a very patient questioner.

Haynes: Then you appealed your case. Snitch: Yes. Haynes: Because you thought the government owed you something. Snitch: No, because I thought my lawyer did a bad job. Haynes: He did a bad job in getting you this deal? Snitch: He didn't call my witnesses. Haynes: What witnesses didn't he call? Snitch: My mother. My sister. Haynes: Your mother knew about the crime? Snitch: No. I lied to her about it. Haynes: Like you lied to the police about it. Snitch: Yes. Haynes: Because you were trying to avoid getting in trouble. Snitch: Yes. Haynes: And you wanted to bring your mother in to court to lie for you.

Ouch. This is just one taste of why witnesses have described cross-examination by Richard as "death by a thousand cuts." During the hour or so of cross I was able to watch today, he probably made 80 such cuts. By the way, Richard did not know the answers to his second, third, fourth, or fifth questions. "Never ask a question that you don't know the answer to" is a fine rule for law school trial ad competitions and for civil "litigators" who get to rehearse every cross-examination in a deposition, but a trial lawyer has got to follow his instincts.

DUI or DWI?

In Texas, a DUI is different than a DWI. The DUI (driving under the influence) statute forbids a minor (under 21) driving with any alcohol in his system. It is a class C misdemeanor, fine-only offense. If a minor is convicted of DUI but has no other alcohol-related convictions, the DUI can be expunged from his record when he turns 21. The DWI (driving while intoxicated) statute, by contrast, forbids driving while intoxicated. "Intoxicated" means having a BAC over 0.08, or having lost the normal use of one's mental or physical faculties. The penalty for a first DWI is up to 180 days in jail and a $2,000 fine. A DWI conviction can never be expunged.

Technorati Tags: DWI, DUI

Parties

In Texas, a person can be held responsible for something that he didn't directly do. Here's the charge the jury is given when there is a question whether a person on trial was a party to the offense:

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. Mere presence alone will not constitute one a party to an offense.

There is no distinction between accomplices and principals. Everyone who, intending that the crime be committed, helps someone else commit a crime can be convicted of the crime. This rule can lead to extreme results -- Kenneth Foster was sentenced to die based on his minimal participation as a party in a robbery that turned into a murder; his death sentence was recently commuted to life in prison -- but as a principle of liability it is generally sound. Ethically as well as legally, we are responsible for the bad things that we encourage other people to do.

Hayneswatch

Richard "Racehorse" Haynes is trying a capital murder case in the 185th District Court of Harris County, Texas right now (I'm writing from the courtroom, where he's methodically cross-examining the state's snitch witness). I've said before that if you have a chance to see Richard in action, you should take it. This is such a chance.

About the Clients and Ethics

My Time to Take a Stand? post of yesterday has drawn some comment. In comments to my post, Shawn Matlock wrote:

It seems that you are limiting your potential clientele quite narrowly. I agree with you, that I would much rather be trying a case than pleading one out. It's what I've been trained to do. (By some of the same people as you I imagine.)

I don't mind limiting my potential clientele in this way. I do it in other ways as well (for example, by charging almost what I think I'm worth); I have plenty of clients, and don't need to compromise my principles for the sake of getting more cases. There are more than enough lawyers whose knee-jerk reaction to a federal investigation is to roll the client over and hope for the best. I frankly don't want the clients who would hire these lawyers. I figure my stand will bring me fewer clients, but a better class of clients.

But what happens when you take a client, and you and he/ she are preparing for trial, and then at the last minute "the call" comes? That notorious Friday afternoon call? Are you going to try to beg off the case if your client wants to take it? It seems that you are potentially painting yourself into a corner. At that point I would agree with Gideon that you are limiting your client's options.

I have never had that particular call come at the last minute in a federal case, and I doubt that I ever will. By the time the Friday before trial rolls around, I am usually the last man standing. The decision to cooperate, in my experience, is made much earlier in the process, and begins with a proffer session. In the various districts where I've practiced, the feds don't offer a particular benefit to a defendant for his cooperation. If, however, some miracle happened and the Government, on the eve of trial, offered to let my client plead to misprision in exchange for his testimony against the codefendant kingpin (see how preposterous that idea is?), I would convey the offer to him and help him find someone to assist him in his cooperation. Finally, Shawn writes,

Isn't it Greenfield that is always talking about how it is isn't about the lawyer, but rather all about the client? Where is he on this?

(Scott Greenfield responds in his own comment to that post.) In a similar vein to Shawn's inquiry, Gideon wrote against a policy of refusal to cooperate with the government:

Sometimes you have a client that overhears something in prison and if it will help him, why not? Our ultimate duty and obligation is to our client and as defense lawyers we must explore every avenue that will result in benefit for the client.

Gideon's formulation of our ultimate duty is incorrect. We have a high duty to our clients, but there are higher duties. Two illustrations: First, the death of a witness might result in benefit for a client, but we don't go around whacking witnesses. Second, lying to the court might result in benefit for a client, but we don't do that either. Our duty to our clients is limited at least by the law and by ethics. (It's also limited by feasibility -- we don't do things that we can't do -- and, beyond a certain point, by self-interest -- we don't sacrifice our lives or our families for our clients.) So we must explore every avenue that will result in benefit for the client and that is legal, ethical, and feasible. We don't even have to consider doing something illegal or unethical. Cooperating with the government is clearly legal. In fact, the law encourages it. But that doesn't make it ethical. Cooperating with the government doesn't violate any written disciplinary rules that I know of, but that doesn't make it ethical either. The state bar's rules are not the be-all and end-all of ethics; ethics are a highly personal matter. A lawyer is permitted to maintain stricter ethical standards than the rules require. I don't want to help people cooperate with the government because, in my personal moral judgment, it is wrong for me to do so. A policy of not helping cooperators will, to a certain extent, limit clients' options -- it will make it more difficult for clients to cooperate because they would have to hire another lawyer to help them do so. But if the client agrees to this stenosis, so what? I can (indeed I must) limit my clients' options by following the state bar's ethical rules and state and federal law. Why can't I, with the clients' consent, limit their options further by following my own stricter principles?

Time to Take a Stand?

A man needs a code to live by. I believe in living according to principles -- for example, the principle that humans should be free. Sometimes there are competing principles, and a person who lives according to principle must either rectify them or choose between them. Because humans should be free, humans should fight for freedom. A principle that competes with humans should fight for freedom is that the guilty should be punished. Some people live by that principle. Both principles have much to recommend them, and some people live by the latter principle, but I choose to live by the former because I know who's human, but I don't know who's guilty. Government is the enemy of human freedom. So a corollary of the principle that humans should fight for freedom is that humans should fight the government. When one human helps the government, he makes the government more powerful and therefore makes another human less free. The federal criminal system of trading information for freedom is repugnant to my principles. When a person helps the government make a case against someone else, I see him climbing out of a hole that he dug for himself by stepping on the heads of others who are no more guilty than him. Yet, despite my principles, I have helped many people in federal court trade information for freedom. Why? Because I have viewed this as a game that needed to be played for my clients' sakes -- a necessary evil. But a necessary evil is still evil, and by playing the game I perpetuate it. I am a trial lawyer by training and by nature. I was born to stand up in court and fight the government. A lot of people have put a lot of energy into making me into a better trial lawyer. I have spent countless hours honing my craft so that I can make it more difficult for the government to take away human freedom, not easier. There are lawyers who hold themselves out as being able to get the lowest sentences through cooperation. I have never been one of those. I've had clients get good results through cooperation, but I've always viewed it as more a function of their ability to please their governmental masters than of my own skill. If there is talent involved in acquiring a 5K1, I don't see it, and I certainly don't have it. Hard as it is for me to believe, I have to leave room for the possibility that there are art and science to representing cooperators; if so, I haven't studied them, and I don't intend to start. So I'm seriously considering a new personal policy against cooperation with the government in federal cases. I would write into my contract a provision that my fee did not include cooperation, and that the client would have to seek other counsel to assist them with cooperation. I would help those clients I have now cooperate with the government if we decided that it was in their best interest. I would also remove myself from the CJA list, because appointed counsel can't have scruples against doing anything within the rules to help their clients. I've been trying to work out the downside of this plan. I won't get as many federal clients (because fighting the feds is not for everyone); that's okay with me -- I don't have to represent everyone. I can't think of any harm that it would cause anyone, and it sure would be in better keeping with my principles. Your thoughts?

Technorati Tags: criminal defense, federal, philosophy, snitches

Phone Records III

I wrote two weeks ago and four weeks ago about subpoenaing cellphone records. Here's a summary of the contact information I have for the major cellphone service providers. Subpoenas for T-Mobile records (including what used to be Aerial and VoiceStream) go to:

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

Subpoenas for Verizon records go 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

Subpoenas for AT&T records (including what used to be Cingular) go to:

Custodian of Records AT&T Subpoena Compliance P.O. Box 24679 West Palm Beach, FL 33416 Fax (888) 938-4715 Voice (800) 451-5242

Subpoenas for Sprint records (including what used to be Nextel) go to:

Custodian of Records Sprint Corporate Security 6480 Sprint Parkway Overland Park, KS 66251 Fax (913) 315-0736 or (913) 315-0735 Voice (800) 877-7330

Subpoenas for Cricket records go to:

Custodian of Records Attention: Subpoena Compliance Cricket Communications/Leap Wireless 10307 Pacific Center Court San Diego, California 92121 Fax: (858) 882-9237 Voice (858) 882-6084

These data are current, as far as I know. I will post updates as I learn of them.

"The Law is a Nymphomaniac"

Today's Houston Chronicle had a nice surprise: a front-page-above-the-fold profile of Houston criminal defense lawyer Richard "Racehorse" Haynes and Houston plaintiffs' lawyer Joe Jamail (whom the article calls "the King of Torts" -- I thought Melvin Belli had retired that sobriquet). Mary Flood, the article's author, blogs about the two as well. "It's just not every day," she writes, "you get to sit down and listen to the storytelling of two legal greats." Indeed. I have learned more riding on elevators with Racehorse Haynes than I learned in three years of law school. Hence one of my rules of life: never get off the elevator before Mr. Haynes.

Lawyers who Guarantee Results -- Advice to Clients

In follow-up to yesterday's post about the lawyer who promised that he would get the client out on bond (and, as I learned later, promised that he would get the case dismissed!), here's some advice to clients and their families when dealing with a lawyer who promises a result that other lawyers don't:

Get it in writing.

Ask the lawyer to set every promise down in writing. If you ask and he refuses, the promise is worthless. I won't tell a client anything about his case that I'm not willing to sign my name to. There is no way in hell the lawyer who promised to get the client out on conditions of release will put it in writing. There is, equally, no way he will guarantee that he will get the case dismissed. If he did, he would be setting himself for a lawsuit and a grievance. He may be willing to promise that he will "probably" get the client out on bond or that there is a "99% chance" he will get the client's case dismissed. These weaselly promises aren't less than worthless -- when (not "if") the desired result doesn't materialize, the lawyer will claim that he never promised anything, and the client will be out of luck.

Another Odd Sort of Victory

Robert Guest blogs about three reasons cases get dismissed. Today one of my clients had his case dismissed for all three reasons -- the state could not prove the case at trial, nobody really cared if he did it or not, and someone else did it. It was a typical weed-in-the-car case, so the State really couldn't prove that my client knowingly possessed the marijuana. That in itself wouldn't have stopped the prosecution -- the State often tries weed-in-the-car cases despite the lack of evidence of knowing possession. It was a little marijuana case, so nobody really cared if he had done it or not. Typical malum prohibidum offense. That doesn't stop the State from prosecuting these cases either. My client had passed a drug test immediately after his arrest, however, and we knew who had left the marijuana in the car, though. My client had even been able to get him on video admitting that he left the marijuana in the car. We had a winning case at trial even without the video. If the video had been introduced into evidence (it probably would have been, under the "admissions against interest" exception to the hearsay rule), it would have been a slam dunk. Until yesterday, I hadn't revealed to the prosecutor any of our side of the case. Why not? The drug test, combined with the video, would have resulted in an easy dismissal. But I had one minor and one major reason not to seek an early dismissal. The major reason is this: according to State v. Beam, which I blogged about here, a dismissed misdemeanor case cannot generally be expunged until the statute of limitations has expired -- two years after the arrest. An acquittal, however, can be expunged immediately. So if we took the case to trial and won, the client would have had a clear record in a couple of months, but a dismissal might remain on his record for two years before we could seek expunction. There's an exception to the requirement that limitations expire before an expunction can be filed, though. A dismissed case can be expunged if the court handling the expunction (a civil district court)

finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense

When I went to court for the client yesterday, there was a new chief prosecutor (in Harris County the prosecutors in misdemeanor courts move around every few months) who was clearly interested in disposing of the case. I explained that I thought I could convince him to dismiss the case, but that I didn't want to because of the expunction problem. I told him that I would explain the case to him if he would agree to dismiss the case because of a lack of probable cause. At this point he could have messed with my client by dismissing the case outright, but instead he agreed. He started filling out the nolle (dismissal) form, and I began to explain why my client was innocent. He wrote on the form that there was no PC. Going to trial would have been a gamble -- it always is. There's always a chance that a jury will do something entirely unpredictable. In this case, getting a dismissal was a gamble as well. It remains to be seen whether my choice worked. We'll find out within a few months whether a civil district court will agree with me that the dismissal in this case justifies immediate expunction.

Technorati Tags: criminal defense, dismissal, expunction

Lying Liar Lawyers

I take an appointed criminal case in federal court from time to time. I don't need the cases (my time is worth much more than the $94-an-hour that the federal courts pay under the CJA), but I see indigent defense as a public service. As a consequence, I don't have any problem with my appointed clients hiring counsel. But why would a federal accused who is getting a full-time criminal trial lawyer for free spend money to hire a civil lawyer dabbling in criminal law? Could it be because the inexperienced civil lawyer has promised to get the client out on bond within three or four weeks of his hiring? I don't mind my appointed clients hiring lawyers, but I do mind lawyers who deceive clients to get cases. The lawyer who promises to get the accused in a federal cocaine conspiracy case out on conditions of release is unethical and a liar. In a federal drug conspiracy case with a possible sentence over ten years, there is a presumption that the accused is a flight risk and danger to the community, and not eligible for release on conditions. Sometimes that presumption can be overcome with rebutting evidence. But there is no combination of facts that a lawyer could have learned in a couple of conversations with the accused that would lead him to the secure conclusion that the accused would be released on conditions. What happens next? My bet is that once the lawyer has been paid and four weeks have passed and the client is still incarcerated, the lawyer will "discover" some reason that the accused cannot get out on bond. At some point this has to stop being my problem. That point is . . . now.

We Predators

I wrote here about managing the risks of child sex abuse, and the long-term cost to society of teaching children that men are out to hurt them. There's a large amount of naivete that contributes to our society's dealings with sex abusers. Take this quotes from the WSJ.com article that inspired the "managing" post:

People assume that all men "have the potential for violence and sexual aggressiveness," says Peter Stearns, a George Mason University professor who studies fear and anxiety.

I won't say "all men" because nothing is true of all men. But men have the potential for violence and sexual aggressiveness. It's biologically hardwired. It's unfortunate that "predator" has come to have a negative meaning, because men are naturally sexually predatory. Humans didn't get to the top of the food chain because their males were meek and sexually passive. For most of our history (the first 140,000 years or so, until about 10,000 years ago), the individuals whose genes got passed on were those who fought better and mated more. Fortunately for society, three things ordinarily restrain our predations: 1) taste -- most of us don't view children as appropriate sexual "prey"; 2) ethics -- most of us don't want to hurt others; and 3) powerful prey -- the female of the species is in most ways (other than the purely physical) stronger than the male. Men who prey on children are different, but their problem is not that they are predators; their problem is that they do not have the same restraints as we do. Here's part of the abstract of a 1988 article about sexual aggression in our nearest biological relatives, the great apes:

These data suggest that male sexual aggression in our closest biological affiliates commonly occurs when females are rendered vulnerable to the male by the absence of the normal social constraints and spatial prerogatives typical of the natural habitat.

We don't do anyone any favors by pretending that sexual aggression is not the primal state of man. Denying it serves only to make the state harder to deal with. The man who denies that he is driven by sexual aggressiveness is like the junkie who denies that he is addicted (or the U.S. senator who denies that he is gay). The state still exists, and it's bound to cause problems -- to himself and those near him, individually and societally -- until it's recognized and confronted.

Managing the Risk of Child Sex Abuse

We humans don't gamble very well. We have a natural tendency to make irrational decisions when faced with the possibility of what we see as extreme life changes. (I'll bet the poker players or the economists have a name for this tendency.) For example, we play the lottery. The cost of playing the lottery almost always exceeds the benefit, but many of us pay a dollar for a one-in-twenty-six-million chance of winning $2,300,000. Two million dollars is a lot of money; winning it could improve most people's lives. Buying a lottery ticket, though, is not a rational act. That's an example of the possible benefit overwhelming its unlikeliness. It works the other way around too. The idea of a possible severe consequence tends to overwhelm the unlikeliness of that consequence in our minds, so that we do things that are entirely irrational to avoid the consequence. Most governance depends on this tendency. Scared people -- voters and jurors -- cede power to the government. Scared defendants plead guilty, accepting a bad outcome, to avoid the possibility, however small, of a horrid outcome. An example of rationality going out the window in the face of fear is the hysteria surrounding sex offenders. Here's a WSJ.com article, Are We Teaching Our Kids To Be Fearful of Men? (why do they capitalize "to" but not "of"?), in which Jeff Zaslow discusses society's trend toward teaching children not to trust men (and vice versa). "Child-welfare groups," according to the article, "say these are necessary precautions, given that most predators are male." This is a non sequitur. According to the article 89% of child sex-abuse perpetrators in Virginia are male. We know that 93% of child sex-abuse perpetrators are relatives or acquaintances of their victims, but we don't deliberately teach our children to fear the people they know. John Walsh is quoted in the article:

"It's not a witch hunt," he says. "It's all about minimizing risks. What dog is more likely to bite and hurt you? A Doberman, not a poodle. Who's more likely to molest a child? A male."

This is in fact an excellent example of the tendency to confuse the magnitude of harm with its likelihood. Small dogs bite more people than large breeds; a poodle is much more likely to bite you than a Doberman. If you taught your child to fear strange Dobermans, he'd get bitten anyway. Even if you taught him to fear all dogs, he would get bitten. To be sure that your child would never be bitten by dogs, you would have to cloister him. Yet most of us don't cloister our children, and people keep both poodles and Dobermans. To rationally decide how to deal with a threat, you have to know the magnitude of the harm, the probability of the harm, and the costs of various ways of managing the threat. The chance of the average child under 11 being sexually maltreated in a year is about one in 1,700. All else being equal, if that child were prevented from having any contact with anyone other than family members and partners of parents, the child's odds would improve by 38.8%, to about one in 2,777. We don't prevent our children from having any contact with anyone other than family members and partners of parents because the cost of doing so would be too high; it would outweigh the benefit. One-issue advocacy groups (like MADD, or so-called child-welfare groups) don't have to worry about the costs of their proposed solutions. They can advocate the elimination of threats at any cost. They can run billboards like this one: We who live in the real world can't do that. So we flail around looking for a solution that doesn't have a direct cost. It doesn't take much imagination to foresee spectacular long-term costs arising from teaching children that men are out to hurt them.

People assume that all men "have the potential for violence and sexual aggressiveness," says Peter Stearns, a George Mason University professor who studies fear and anxiety. Kids end up viewing every male stranger "as a potential evildoer," he says, and as a byproduct, "there's an overconfidence in female virtues."

Imagine: girls growing up thinking that all men are monsters, and boys growing up thinking that they're going to turn into monsters. Is there a better recipe for a self-fulfilling prophecy?

Verisimilitude and Plausibility

In my Minnesota Weenies post I wrote that the tools criminal lawyers have to work with, when playing the game of "what really happened," are plausibility and verisimilitude. "Plausibility and verisimilitude" are not my terms; I took them from Chicago criminal defense lawyer Terry MacCarthy, whose cross-examination techniques I've mentioned here here, here, and here. Here's Terry talking about verisimilitude and plausibility in cross-examination.
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Miedo de Lenguajes

Young Shawn Matlock's Friday post was the self-referentially titled From the Realm of the Absurd, a mild rant about the Spanish-language nutritional information sticker covering the English-language nutritional information on the label of his favorite beans, which he describes as "very good for Mexican dishes." The trivial case of the bean label is not, of course, a big deal. Shawn is making a metaphor out of a molehill:

Nine months ago I was in Russia. No English ANYTHING. Why? They assume if you are in their country, you will either speak their language or learn to adapt or do without. It's like that everywhere else in the world, but here. Why? This is not "Small town, Southern Conservative Republican" talking. This is someone from America. We are running the risk of losing all of our traditions and culture so that we can appease others.

Why don't they label things in English in Russia? Because not a lot of people emigrate from English-speaking countries to Russia, and it's like that everywhere else in the world. If you want simplicity and homogeneity in your country, there are more than 150 better places to live than the United States. There were Spanish-Speakers living here a generation before English-speakers landed. Our common language is merely a matter of convenience -- having one language is more convenient than having many. Any immigrant who doesn't speak English and isn't trying to learn is a damn fool, but that's not your problem. You don't have to fear change. Change can be good. Our culture in 2007 is not the same as our culture was in 1776. Survival of the fittest applies to cultures and ideas; that's why we're not wearing wigs, writing with goose quills, and relieving ourselves in outhouses. It is also why we speak English, believe in free enterprise, and have the right to freely exercise our religions. Government intervention was not necessary to preserve any of these ideas; in fact, the history of our freedoms is a history of opposition to government intervention. This is not complicated: if you don't want Ranch Style to label its beans in Spanish, don't buy Spanish-labeled beans. Let the free market work, and leave the impotent diatribes in favor of a single language to northern liberals who think that Congress should be in the business of making them less "uncomfortable." More importantly, though, any Texas criminal defense lawyer who doesn't speak Spanish and isn't trying to learn is a damn fool too. Even if the principle isn't important enough to cause you to vote with your wallet, your potential clients will be voting with theirs.