Chapter 4, the Tao of Criminal Defense Trial Lawyering

I haven't posted in a few days because I went from having family in town and celebrating my son's fourth birthday, to preparing for a resisting arrest trial, to installing Leopard. What better way to get back into the flow than another exploration of the Tao? Here's Chapter 4; as usual, I'm using the Mitchell version:

The Tao is like a well:
used but never used up.
It is like the eternal void:
filled with infinite possibilities.

Trying cases mindfully is like drinking from a well: every time we do so, we draw upon new reserves of fresh ability / insight / power. If we stop doing it, though, we might stagnate.
There is no one right way. There are an infinite number of ways to try cases. But the way to try cases is not just to have a collection of techniques, but to have an attitude that is open to the use of any technique.

We went to the Bayou City Art Festival a few weeks ago, and there was an artist there who would make puppets from photographs -- send him a photo of a person and some money (lots of money) and he'll send you a puppet of the person. I thought, "some day maybe I'll use puppets like those to tell a client's story."
Anything is possible. The only limit is your imagination. I talked here (among other places) about the childlike mind; the childlike mind is an empty vessel; it contains all possibilities.

It is hidden but always present.
I don't know who gave birth to it.
It is older than God.

Your way to try cases is always with you. You don't need anyone else to tell you how you should do things, but only to help you discover it. Some people might lay claim to "ways" of trying cases or "systems" or "methods". You can, they say, learn to win "their" way. While you can undoubtedly learn something from them (you can discover better ways to try cases from anyone and anything), it's not really their way they're teaching you; it existed before they did.
If you try to try things someone else's way you invite mediocrity.

The Ethics of Snitching

I have written a couple of times about a lawyer taking the position that he will not help criminal defendants cooperate with the government in exchange for the possibility of lighter sentences. My contention is that a lawyer who feels that cooperating with the government in exchange for a possible sentence reduction is unethical should, if possible, not help clients do so.

I say "if possible" because some lawyers -- public defenders and others who defend the indigent -- have clients who can't go and hire someone else if they don't like a lawyer's scruples. When a client is compelled to accept a lawyer's representation, the lawyer can't choose to abstain from doing anything legal to help the client. The lawyer is compelled to help despite his scruples.

If snitching -- cooperating with the government in exchange for freedom -- were illegal, then a lawyer helping a client snitch would be violating the law (under a parties theory). If snitching is unethical, then a lawyer voluntarily helping a client snitch is violating his ethics.

Lawyers have written, saying "snitching is not unethical" or "I don't see why snitching is unethical." I think they may be looking in the wrong place for ethical guidance.

Ethics are principles of right and wrong that govern our behavior regardless of the sanction that attaches. Ethics don't depend on possible sanctions; we behave ethically not because we might otherwise be punished, but because we recognize ethical behavior as correct regardless of possible punishment.

Laws attach official sanctions to certain behavior. The Texas Disciplinary Rules of Professional Conduct (as well as disciplinary rules that govern other lawyers, for example) are laws -- there are sanctions attached to lawyers' violations (for the Austinians among you, the "sovereign" is the State Bar).

Something can be illegal without being unethical, or unethical without being illegal. For example, possession of marijuana is illegal, but most people would agree that it is not unethical. Theft is illegal and, most people would say, unethical. Lying is unethical in many situations in which it is not illegal.

There are examples from lawyering as well. Mixing client funds and lawyer funds is not unethical, but it is illegal (according to the disciplinary rules). Revealing client confidences is both illegal and unethical. Having sex with clients is, most lawyers would agree, unethical but (in Texas) it is not illegal.

Ethical principles are highly personal. What I consider unethical, someone else might not. We can't go to the books to determine what is ethical and what is not; the statutes don't tell us, the caselaw doesn't tell us, and the disciplinary rules don't tell us. (We can be thankful for this, since the people who write the statutes, caselaw, and disciplinary rules are often ethically retarded.)

We can learn what is legal and what is not by looking in books. To learn what is ethical and what is not, we have to look within ourselves.

The Myth of Fingerprints 2

A few weeks ago, inspired by the Brandon Mayfield case in district court in Oregon, I wrote about the myth of fingerprints. This week, inspired by the Brandon Mayfield Case a Baltimore Circuit Court judge in Maryland v. Bryan Rose, following a Frye hearing, excluded the testimony of a forensic fingerprint examiner because the "ACE-V" methodology of latent fingerprint examination is more likely than not "a subjective, untested, unverifiable identification procedure that purports to be infallible." The State had argued that latent print evidence had been admissible for almost a hundred years, and therefore should continue to be admissible. Stephen Meagher, a "top FBI latent print examiner", had testified that "there is no error rate" for ACE-V, that ACE-V results in 100% certainty. The court found this testimony, along with other testimony by Mr. Meagher, not to be credible, and rightly so -- Meagher was "involved in the withdrawal of the FBI's [ACE-V based] [mis]identification of Mayfield. The court based its opinion in part on the FBI OIG's March 2006 Review of the FBI's Handling of the Brandon Mayfield Case. ACE-V stands for:

Analysis Comparision Evaluation Verification

This is pseudoscientific nonsense that is intended to make a purely subjective art appear to be objective and scientific. Each of these four stages is subjective (read about it in the opinion) and subject to confirmation bias (read about it in the OIG report), and the "verification" is meaningless. Four subjective steps do not add up to an objective process. ACE-V has not been subjected to scientific testing; its reliability is unknown. This is as true in Texas or federal court as it is in Bal'mer. Cases in which latent print evidence is dispositive are few and far between (I've had only one case in which the fingerprint evidence could have been dispositive, and in that case the fingerprints were on the side of the glass that didn't matter). In Rose, though, a capital murder case, the exclusion of the latent print testimony gutted the State's case. (Incidentally, the judge did the State a favor by excluding it pretrial instead of after the jury had been sworn and jeopardy had attached.)

Technorati Tags: expert witnesses, fingerprints

The No-Snitches Clause

Here is what I now put in my contracts on federal cases. (I cribbed it from another lawyer who has had the no-snitches policy for a long time.):

I do not represent people who “snitch,” “rat,” or cooperate, which means giving information against others to the government in order to avoid criminal charges, receive leniency, or get some other type of consideration. Three major reasons exist for my policy. First, representing people who cooperate does not require any legal expertise. I have not dedicated myself to the art and science of criminal defense law to help the government convict more people, virtually all of whom are likely innocent or nowhere as guilty as the person cooperating will make them look. Second, because of the government’s incentives to and pressures on the person cooperating, innocent people are often charged and convicted, and I will not be a part of helping the government do its dirty work. Third, a person who cooperates could implicate one of my clients and, whether true or not, create a conflict of interest where one did not exist before. If the government offers you a deal to cooperate, I will certainly convey it to you and not pass any judgment if you choose to cooperate. But should you cooperate, I will withdraw from your case and not refund any portion of the fee you pay me.

Tell me what you think.

Technorati Tags: contract, federal, snitches

Brits Discover Neurolaw, Rediscover Hume

Courtesy of CharonQC, this Times Online column by Raymond Tallis of "observations" about neurolaw and the inclination to blame someone's brain for his behavior. Tallis's observations are in response to Simon Myerson, QC's column from yesterday's Times Online (Simon's blog). Professor Tallis observes:

The brain is usually blamed for actions that attract moral disapprobation or legal sanction. People do not normally deny responsibility for good or neutral actions such as pouring out a cup of tea. This is a pick ‘n’ mix approach to human action and intent, and grounds, I would say, for treating the ‘my brain made me do it’ plea of mitigation with some suspicion.

That observation -- that the brain is generally not credited for actions approved of by society -- is valid, but the conclusion that Professor Tallis reaches -- that this is a reason to treat neurolegal mitigation with suspicion -- does not follow. Human nature being what it is, people want to see themselves in the best light possible; the fact that the firing of neurons gets more blame than credit reflects that desire. The human desire to see oneself in the best light possible provides reason to doubt the orthodox assumption that something other than our brains is responsible for our actions. Philosophy has historically been written by the privileged (who else has had the leisure to think about what we are and why we do what we do?). The privileged have a stake in taking credit for their position. The disadvantaged, by the same token, have reasons to blame their brains for their actions, but who listens to the disadvantaged? If those who wrote the doctrine of agency (free will) had a personal stake in believing in agency, we should question that doctrine especially closely. Two things about theories: Desirability does not affect truth. Whether agency exists or not is unaffected by our desire to take credit for our "accomplishments". The appearance of truth is not truth. Consider theories concerning the motion of the planets. The sun might appear to be carried across the sky every day, but it isn't. The Earth might appear to be the center of the universe, but it isn't. (What changed? Our frame of reference.) If I am correct that everything my clients do is attributable to their genes and their environment -- in other words, to the way their brains are made -- then it would be dishonest of me to argue that anything I do is attributable to anything other than my genes and my environment. I am supremely lucky; if I were religious I might say that I was "blessed". Professor Tallis further observes:

There are events that clearly owe their origin to the brain alone – for example, the twitching associated with an epileptic fit. And then there are actions that do not begin and end with the brain. While someone is clearly not responsible for having epilepsy, can the same be said if that person drives illegally, against medical advice and causes a fatal crash?

While it appears to have been intended as a rhetorical question calling for a "no" answer, the answer to this question is in fact "yes." We can say that the actions of a person driving against medical advice owe their origin to the brain alone. Why? Because science hasn't found anything other than the brain that drives us to do the things we do; it probably never will. With the most sophisticated devices we have (our brains) we will likely never be able to prove the existence of ghosts in those machines. The one experiment that could prove the existence of agency is this: two identical people with identical brains (down to the last neuron) in identical circumstances; if they behave differently, there is a ghost in the machine (and if they don't, the experiment is inconclusive). It's an impossible experiment to conduct with humans. Neuroscience cannot prove, and probably cannot disprove, the existence of agency. Whether we are free agents or not is a deeply philosophical question that science is unlikely to satisfactorily answer. What neuroscience has shown us recently that we didn't know before is that development of or damage to certain areas of the brain causes certain predictable "personality" changes. We once believed that we humans were free agents who could to a large extent overcome our genes and our environment. Now our frame of reference expands, and we know that the extent to which we can overcome our genes and environment is, at most, less than we once believed. We now know that sometimes people are "mean" or "irresponsible", because of the way their brains are made. We resist the idea that we are all of the ways we are because of the way our brains are made just as we resisted the idea that the Earth was not the center of the universe, and for much the same reason. Professor Tallis also observes:

My-brain-made-me-do-it as a defence sucks out the agency in our actions, turning us into little more than a bundle of synapses and nerve impulses: our nervous system determines us absolutely. In the end there is no agency, and no toe-hold for the first-person (or indeed any person) viewpoint. The brain is ownerless – it is no-one’s brain – and the self that appropriates it vanishes into a boundless, personless, net of causes and processes. But why stop at the brain? Since the brain is causally wired into nature at large, ‘my brain made me do it’ actually means that ultimately ‘the Big Bang’ made me do it. Neuro-determinism quickly slides into determinism tout court. It is one long chain of knee-jerk responses undeflected by agency, from the Big Bang to the Big Crunch. Individual responsibility is lost in this.

This is pretty much correct. If our personalities (shorthand for the complex combination of choices we make) are attributable only to our brains (shorthand for the complex combinations of genes and environment that form those organs), then determinism (hard or soft) is the inevitable outcome. Our criminal justice system is based in part on the idea that we are responsible for our own actions. That a theory challenges the orthodoxy, however, is not a reason to reject it. So what? How does the loss of the illusion of agency affect the criminal justice system? If everything we do is the result of a long chain of responses undeflected by agency, then punishment for people violating society's norms is still appropriate. Most of the usual penological aims -- specific deterrence, general deterrence, incapacitation, and rehabilitation -- are valid reasons to punish a person even if his acts were the inevitable result of a chain of events beyond her control. What must fall by the wayside is retribution -- to act in retribution against someone for acts that followed inevitably from a chain of events outside her control is using the person as a scapegoat for the chain of events that led to the action. That is mean and irresponsible.

Technorati Tags: agency, neurolaw, philosophy, free will

Not Guilty. Wait . . . Never Mind.

In Dallas yesterday, a jury came back with a verdict in the "Holy Land Foundation" trial. They were mostly deadlocked, but they acquitted one of the six defendants of all charges and acquitted two others of most charges. U.S. District Judge Joe Fish polled the jurors. Three didn't agree with the verdict (Dallas Morning News article). The judge sent them back out to resume deliberating, and when they came back an hour later two of the three had returned to the fold but the third dissenting juror held out. As a result, the case was almost entirely mistried. One defendant was acquitted of most of the counts against him, but the government was not able to get a single conviction out of the 190+ count indictment. Who knows why a juror agrees to a verdict on Thursday and disavows that verdict on Monday? Interestingly, the jury had returned a verdict (after 19 days of deliberation) last Thursday, but Judge Fish and the prosecutors had not been available to receive it until Monday (Houston Chronicle article). In the interim, the jurors went home to their lives and, presumably, reflected on the verdict. Here are some comments from one of the jurors who would have acquitted the accused.

Law School: Substance or Skills

In response to my post on lower-tier law schools being the better bet for aspiring solos, law student Zeb wrote:

I'm a second year student at the University of Baltimore, a supposedly 4th tier school (that just happens to supply the bulk of trial lawyers in Baltimore). Mr. Bennett's intial post has inspired me to post this comment seeking advice. I have an interest in a criminal defense career. Given the nature of the law school course requirements and scheduling, it looks like I'll have to make choices between taking substantive criminal law electives (Constitutional Criminal Procedure II, Federal Criminal Practice, Forensic Evidence, Sentencing and Plea Bargaining Seminar), and legal skills classes (trial advocacy, advanced trial ad, bench trial ad, appellate ad, litigation process, criminal law clinic , etc.). Which type of course is more valuable--the substantive course or the skills course? My instincts tell me that one can learn the substantive law via independent study, and so I should load up on the more practical legal skills courses while making sure I take the not required but highly recommended bar-tested courses. Do you folks agree? If not, why not?

My sense is that Zeb is right, especially if the skills classes will teach practical criminal procedure (not what the books say, but how things really work in the local courthouses). I know Señor Greenfield has written extensively about improving law school. But what advice do you guys have for future lawyers who want to extract as much as they can from law school in preparation for a criminal defense practice?

Technorati Tags: advice, law school

Chapter 3, The Tao of Criminal Defense Trial Lawyering

It's Monday; time for another verse from the Tao Te Ching.

If you overesteem great men, people become powerless. If you overvalue possessions, people begin to steal.

Who is "you"? Obviously, a person who overvalues possessions might steal, but I think the "you" who is the subject of the verse is us. If we overvalue possessions, some of us begin to steal. If we overesteem great men, people become powerless. We give up power to people when we overesteem them. For a topical example of giving up power by overesteeming people, see Scott Greenfield's post on the Jack Bauer Scenario:

People in power, even a little bit of power, tend to confuse authority with being right. The burden of responsibility plays a peculiar game with their mind, forcing them not only to make decisions, but to believe that their decisions are better than anyone else's. Some make snap decisions and other belabor the decisions, but when a decision is ultimately made, it becomes the immutably right decision. We see this on every level of government. And we see that when the decision is wrong, the consequences can be disastrous.

This verse is antigovernment and antimaterialistic; it provides a fairly thorough solution to a large set of social ills. If we don't overesteem great men, government will not be as powerful, and if we don't overvalue possessions, crime (most of which can be described as a form of theft) will diminish so that we won't need powerful government. Or criminal defense lawyers.

The Master leads by emptying people's minds and filling their cores, by weakening their ambition and toughening their resolve. He helps people lose everything they know, everything they desire, and creates confusion in those who think that they know.

I haven't specifically addressed who "the Master" is. The Master is who each of us should aspire to be. Instead of "The Master leads . . ." this verse could read, "Aspire to lead . . ." Change one other word. Change "people" to "jurors" and this verse is a manifesto of trial advocacy. Aspire to lead by emptying people's minds and filling their cores. We win trials not by convincing jurors' brains but by convincing their cores -- their guts -- their hearts. We know that jurors make decisions based more on emotion than on intellect. Weaken jurors' ambition -- they don't generally have anything to gain from doing the right thing and acquitting our clients. Toughen their resolve -- they need to be willing to stand up for their decisions even in the face of other jurors with contrary opinions trying hard to convince them to agree to a verdict contrary to their cores. Aspire to help jurors lose everything they know, everything they desire, and create confusion in those who think that they know. Even if all of our jurors had accurate views of the world when the trial began, when we get to them they think they know things that are wrong. The government gets the first opportunity (through its voir dire, through its opening statement, through direct examination of its witnesses, or through its case in chief generally) to convince the jurors that they know what happened. A juror who thinks he knows is probably wrong. Aspire to help jurors see the world afresh.

Practice not-doing, and everything will fall into place.

This is the first of several epigrammatic verses offering specific advice. Hey, it's easy! Just practice not-doing. What is not-doing? Not-doing is not "not doing". Not-doing is acting without doing, teaching without saying. It's effortless action. It's trying without trying -- trying cases without trying to. 99% of trying without trying is practice. We practice constantly for the next trial, training ourselves physically, mentally, or emotionally until we are prepared for the last one percent of trying without trying: letting go and letting our training carry us through.

Technorati Tags: Tao

The Next Step in Preparing to Cross-Examine the Doctor

After you have decided on the narrow field on which you will cross-examine the State's doctor, what next? Go to pubmed.com, where you can search a database of medical journal articles. Pick out the keywords from the premises that you want to investigate, and search for these keywords in every combination you can think of. Try variations: sex assault reveals 977 results and sexual assault reveals 2016; hymenal reveals 142 and hymen reveals 615. In the course of searching, other possible terms might appear. For example, a search for hymen sexual assault turns up references to colposcopy. Add that term to your list of search terms. For each search, you'll get a list of articles, with the authors' names clickable links. Click on the link for each title that looks promising, and you'll see the abstract of the article. If the abstract makes you want to read more, print out the abstract and add it to your stack. A little background here: medicine, like trial lawyering, is both art and science. The state of the art of medicine is memorialized in medical journals. Doctors write medical journal articles because they have something to say that not everybody else recognizes as the truth. Either it's something new, or it's something controversial. What we're looking for in this search is journal articles that show one of two things about about the premises that we would like to challenge: either that they are controversial or (ideally) that they are outdated. So, now we have a stack of abstracts from medical journal articles that we think relate to the premises of the doctor's conclusions. What do we do with them? Tune in next week to find out.

Technorati Tags: cross-examination, expert witnesses, trial preparation

Go Downtier

At Lawyer for Profit today Michael Sherman posts, riffing on this post by Susan Cartier Liebel at Build a Solo Practice, LLC, about law schools' failure to teach students how to hang a shingle. Susan quotes Ryan Alexander, a Harvard law grad who started his own practice:

I hope HLS will eventually offer a seminar in running your own practice to open up students' eyes to the possibility. HLS students are too risk averse for their own good - there is a lot of demand for services that you can provide for people. Many students go to BigLaw against their conscience or interests and hate lawyering, because they are not true to themselves. There is another path. It is exciting, liberating and uniquely fulfilling to have your own practice. You can prepare for it and be ready.

The following might surprise lots of future law students. It might surprise some current and past Harvard Law School students (if you think that the first tier of law schools is the be-all and end-all of legal education, prepare for a revelation): If you want to work for yourself, go to a second- or third-tier law school in the city in which you want to practice. If you have the native intelligence and/or the work ethic to get into Harvard, you don't have to go to Harvard to succeed. If you go downtier, you may not be as well educated as if you had gone to Harvard, but you'll be better prepared, better connected, probably better trained, and most likely in less debt. Biglaw pays big money for the prestige of having wage slaves from the "top" law schools. But the paying clients? The ones that might hire a first-year lawyer to do their legal work? They don't give a damn whether you went to Yale or TSU. And rightly so. Susan writes:

While you might say, "he went to Harvard. He's got it easier," I would have to disagree. Fear is fear. Not following one's own desires and personality and terror at breaking free from the herd is not unique to Harvard Law graduates. This mentality is instilled in all law students, the mantra, "you can't do it. Who would hire you? You're a malpractice case waiting to happen" is drummed into your head from day one wherever you go to school. He just paid more for the brainwashing.

I would take it farther. First-tier law grads, I think, have it harder when it comes to starting their own practices than many do. Students at South Texas College of Law don't have this negative brainwashing drummed into their heads. Students at TSU don't (if they survive the brutal first-year cut). Students at my alma mater, University of Houston Law Center, weren't steeped in this negativism when I went there (but that was a long time ago, before the Richard Alderman regime, when the Dean tried to turn UHLC into Nebraska). One of the keys, I think, is that more students at these law schools see self-employment as a necessary option. Because a higher proportion of students from these schools will hang out their own shingles, the curricula at these schools are more geared toward preparing them to do so. Why doesn't Harvard prepare students to hang out a shingle? Because it doesn't need to. Another key is that students have opportunities to work or otherwise participate in the local legal community during law school. A lawyer who wants to make a living in Houston will be better off if she knows and is known by the local bar. An internship at the DA's office, or a job as a runner for a criminal defense lawyer, provides an entree into a criminal defense practice. A third key is that alumni are clustered around the schools. Alumni want to see law students from their school succeed, and will often be more helpful to students there. Of course, my opinions are formed by practicing in Houston, and this may be a Texas thing (graduates of lower-tier law schools in other states, did you feel prepared to practice on your own when you got out?), an urban thing (Baylor grads, how about you?) or a Texas urban thing (UT grads?).

Technorati Tags: law school, starting a practice

New York Popularity Contest?

Nicole Black, in her Sui Generis blog is polling blog readers on the best New York Blawg and Blawger. The results so far are here. 51 people think the Reproductive Rights Prof Blog is the best; 36 think the Feminist Law Professors blog is the best. I would describe Reproductive Rights Prof Blog as a news-clipping blog, light on original content -- not what I'm looking for in a bl. . . zzzzzz. (Sorry, dozed off for a minute there.) Feminist Law Professors, on the other hand, is excellent, combining clippings from diverse and surprising sources with original content and opinion. It's very much not what I had come to expect from law professors, and I've added it to my reader. If you think Reproductive RIghts Prof Blog is better than Feminist Law Professors, I'd love to know why; leave a comment. For my money, though, you can't beat Simple Justice. If I could read only one New York blawg -- hell, if I could read only one blawg -- it'd be Simple Justice. If you're in the criminal-defense dodge, you'll probably agree. Whether you do or not, go to Nicole's blog and vote for your favorite -- competition improves the breed.

Technorati Tags: blawgs

Preparing to Cross-Examine the Doctor

I mentioned here my contention that the only way to cross-examine an expert witness about his conclusions is to know at least as much, if not more about the narrow subject of his testimony that hurts you than he does. It's my position that, while I will probably never know as much about pediatrics than the State's expert, I can know more about hymenal notching than him or her. (I use pediatrics and hymenal notching as an example because pediatrician testimony is often used by the State in cases involving false allegations of child sexual abuse. Courts will, for reasons that escape me, allow these experts to testify that the medical evidence is "not inconsistent with" the allegations.) Where do we begin our own scientific or other technical education? With a narrowing of the inquiry. The process of deciding what premises we will challenge can be shortcut considerably if we can talk with the State's expert beforehand and he will discuss his findings with us. If the case is adequately funded, we may have an expert of our own to consult with; she might be able to divine the State's expert's assumptions. Otherwise, the expert's premises will sometimes be laid out for us, or at least deducible from the subject matter of the expert's testimony. For example, we might note that the expert observed several conditions (A, B, C) and concluded from these conditions that X happened. We can set down several premises that this conclusion might depend on:

That A shows that X happened; That B shows that X happened; or That C shows that X happened.

These are some of the things that we want to investigate, but not all. Even if we could show that none of these premises were true, we would have to investigate four other possible premises:

That A and B show that X happened; That A and C show that X happened; That B and C show that X happened; and That A, B, and C together show that X happened.

A and B together might have much greater significance than either condition alone. So now we have a list of the premises that we want to test -- seven in this example. What do we do next? Tune in tomorrow to find out.

Technorati Tags: expert witnesses

Know When to Shut Up

Unlike my New York alter ego, Scott Greenfield, I don't mind the calls from people who want advice. Often I have the correct answers to their questions and can provide them some assistance, which is a) a fair return for the gifts I have been given; and b) why I am a lawyer. Usually, though, the caller has some question that couldn't possibly be answered by a lawyer without considerable research and investigation. Usually, the question is so far outside my field of expertise that I couldn't even hazard a guess. (Berzerkistani welfare fraud? Nope. Child abuse in Grand Fenwick? Afraid not (call Gideon). A criminal appeal to Slabovia's high court? Not for me.) It's generally immediately apparent to me when the caller has a question outside of my area. It's often not so apparent to the caller. The folks who would call a Houston criminal defense lawyer about a Brobdingnagian social security disability case aren't the brightest bulbs on the tree in the first place, some of them are clearly touched by mental illness, and by the time they get to me they seem to have a spiel that they've repeated to every other one of the wrong lawyers they've talked to; if they just get a chance to tell someone the whole story, they seem to think, he'll be so touched that I'll take the case. I won't. I'm not going to give you advice about bailing your "fiance" out of jail in Moosylvania, no matter how sad the story. What I might do, if I'm feeling kindly inclined, is go through my contact list and recommend to you a Moosylvanian lawyer who might be able to help. I'm not going to refer you to a friend, though, if you don't impress me as a good client. If you won't stop your spiel long enough for me to ask any questions, if you won't answer my questions directly, or if you don't take my word for it when I tell you that I can't help you directly, you're out of luck.

Moderated Comments?

To my colleagues who moderate the comments on their blawgs: What are you afraid of?

Dealing With the State's Expert: One Last Question

If you get a chance to talk to the State's expert witness before trial (if you're allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it'll be a learned treatise that you can mine for cross-examination material. In a Houston murder trial once, for example, after the prosecutor asked the medical examiner whether the knife wound could have been irregular because my client twisted the knife, and the doctor assented to that proposition, I had him read this portion of DiMaio and DiMaio's Forensic Pathology (if you try -- or aspire to try -- murder cases, you need a good library of forensic pathology texts) to the jury in its entirety:

The most common reason for a large, irregular knife wound is movement of the victim as the weapon is withdrawn. Prosecutors, however, like to contend that this is due to the perpetrator twisting the knife in the body after stabbing the individual.

While we're on the topic of expert witnesses . . . The only way to cross-examine an expert witness about his conclusions is to know at least as much, if not more about the narrow subject of his testimony that hurts you than he does. The trick is to define that subject as narrowly as possible. It's not possible for a lawyer to know as much about, say, pediatrics than a pediatrician, but it is possible (maybe later I'll talk about how) for a lawyer to know as much about the significance of hymenal notches than the same expert. If you're not fairly certain that you know as much about your narrowly-defined subject than the expert, then you're asking for trouble when you cross-examine him about his conclusions. Also, if you are fairly certain that you know as much about your narrowly-defined subject than the expert, then you're still asking for trouble (because you might be wrong) but the trouble might turn out to be worthwhile. There are lots of things an expert can be cross-examined on other than his conclusions. For example, the government's experts can be harsh critics of the police investigation. If you can't get up to speed on the subject matter, or if your own study convinces you that the expert reached inescapable conclusions from the available evidence, question him about the holes in the evidence made available to him (try to tap into his frustration at things not being done just right) or leave him alone.

Technorati Tags: cross-examination, murder, expert witnesses

Sharon Keller Cont'd

The Houston Chronicle has not been kind to Court of Criminal Appeals Judge Sharon Keller in recent days. After yesterday's editorial calling for her ouster the Chronicle published an article today entitled "Views divided on judge in dispute over executed man". Well, yes. Sort of. The Chronicle dug up exactly one person willing to say something halfway-nice about Judge Keller: former presiding judge Mike McCormick, who said that Keller has worked hard to preserve the idea that once convicted, the burden is on the defendant to prove they got a bad trial or that they are innocent. The Chronicle notes that Judge Keller ran for the Court of Criminal Appeals in 1994 on promises to be "a prosecution-oriented judge". Some might think that's a good thing. It's not. A judge is supposed to be a referee, calling balls and strikes according to the rules, uninfluenced by an orientation toward one side or the other. Judicial candidates, like judges, are barred from making "pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge." Texas Canons of Judicial Ethics, Canon 5. Judges are prohibited from making such promises, and more -- for example, a judge may not ethically "be swayed by partisan interests, public clamor, or fear of criticism" and must "perform judicial duties without bias or prejudice" (Canon 3). Judge Keller was apparently not grieved in 1994 for her promises of conduct in office that violated Canon 5. I don't know why; I was in law school in 1994, and don't have any sense whether the bar had any idea how much of a threat Judge Keller presented to the fair administration of justice. (Query: is it too late now?) The courthouse shouldn't belong to one party or the other. Since taking the bench, Judge Keller has kept her promise to reserve the keys to the courthouse for the State. She has proven herself a master of results-oriented jurisprudence -- ruling for the government not because the law requires it, but because she is prosecution-oriented. It's time for her to go.

More on Sharon "Killer" Keller Complaint

Death penalty enthusiasts are chortling about Judge Sharon Keller's action in closing the courthouse doors to Mr. Richard. A common theme among their responses is "blame the lawyers." One [anonymous] sample, in comments to my first post on the subject:

Why didn't the lawyers who needed to file do so BEFORE the court closed????? That is the most ridiculous thing I have ever heard. She closed on time, so you're filing a lawsuit against her? HELLO???? Is anyone out there????? Apparently not. Get real. You're supposedly fighting for a man's life and are running 20 minutes late? What a JOKE!!!!!!!!

Here's Houston criminal defense lawyer Troy McKinney's (an HCCLA past president and, more importantly, my attorney) reply to the argument that Keller was just following the rules, from comments on today's Houston Chronicle editorial calling for Keller's ouster:

The Supreme Court of the United States did not grant certiorari on the case involving the chemicals used in the death solution until that day. There were not days and weeks to prepare. There was less than one full day. As I understand it, it took until afternoon to get the materials that were used to obtain the review in DC and then the rest of the afternoon to draft the materials for the Court of Criminal Appeals. Although the Texas Supreme Court allows email or fax filing of emergency matters, Judge Keller also refused to allow the petition and motion to be filed by fax or email. The court even refused to allow a single copy to be filed immediately and the remaining 11 required copies (of the several hundred page document) to be filed shortly thereafter. At 5:20 p.m., when it was ready to file, the doors to the clerks office were locked so there was no way to get it to the people at the court (including in the clerk's office) who were still at the court. Never before has the Texas Court of Criminal Appeals not been available on the day, evening, or night of an execution to accept whatever, if anything, was to be filed -- unless they were told in advance that nothing would be filed. Of course, here, Judge Keller through the clerk and staff was told that something would be filed and she made a conscious decision not to allow it be by closing the court and making the clerk's office unavailable. The decisions made by Presiding Judge Keller are inexcusable. The Harris County Criminal Lawyers Association is also filing a complaint with the Judicial Conduct Commission. There will be over 100 local lawyers who sign it.

Various non-lawyers (including at least one Texas judge) have joined HCCLA's complaint to the Texas Commission on Judicial Conduct against Judge Sharon Keller. If you didn't get an opportunity to do so, you can join Texas Moratorium Network's complaint, which appears to be substantially the same as HCCLA's complaint and will be filed in two weeks.

Technorati Tags: death penalty, ethics, judges

I'm Mark Bennett. I Solve Problems.

When an old client came to me this afternoon with the story of how a former acquaintance of his had turned up demanding $15,000 not to disclose some years-ago alleged malfeasance to the government, I gave him my best legal advice: whether you have a guilty conscience or not, whether the threat of exposure is real or not, never pay a blackmailer a dime. I know it's hard advice to take. When the bad guy comes knocking with a threat to expose secrets that might harm you and hurt your family, it's tempting to pay him off and hope for the best. But the truth is that it'll only encourage him, and there is nothing to stop him (blackmailers not being noted for their sense of honor) from returning to the well for more. Further, it's illegal to make an agreement to pay someone not to report something to the police. So, all in all, the best response to a blackmailer's demand is "go to Hell." That's what I told the client to say. The client thought the message might have more force coming from me. As he and his family have been good and faithful clients, I consented. (Something they never tell you in law school: often what we do in this glorious business of ours involves extralegal problem-solving; sometimes we get to play Winston Wolfe.)

I got suited up and drove through rain and rush hour traffic to his office. I set up video, formulated a plan, and settled in to await the bad guy's arrival. As it turned out, the bad guy failed to post. I gave the client further advice: if the extortionist appears again, refer him to me with the suggestion that I need to draw up the papers to make the whole thing legal. Then I'll have the pleasure of telling him to go to Hell. I wrote about extortion six months ago today, and now I'm dealing with another extortionist. Am I the only one that has this issue come up?

Technorati Tags: extortion, problem-solving

Chapter 2, The Tao of Criminal Defense Trial Lawyering

In a comment to a recent post about Mao and Sun Tzu, Oklahoma criminal defense lawyer Glen Graham wrote:

While the "Art of War" provides some theories, the Tao, has other theories, and still, there are a multitude of others.

I'm not sure Glen is quite right. It is true that we can learn from Sun Tzu, or Mao, or Lao Tse or, for that matter, Sanford Meisner, Thich Nhat Hanh, Gerry Spence, Keith Johnstone, John Nolte, Milton Erickson, or Bruce Lee. I believe that if we are willing to keep an open mind we can learn to be better trial lawyers from anyone anywhere (I've even learned a thing or two about trial lawyering from our Rhodesian Ridgebacks). To me, these teachers do not offer a multitude of theories; they just have different ways to teach us the same theory. They are all (to adopt the Zen metaphor) fingers pointing at the moon, but there's only one moon. With that, here is the second chapter of Lao Tse's Tao te Ching:

When people see some things as beautiful, other things become ugly. When people see some things as good, other things become bad.

Your job as a criminal defense lawyer is not to judge. Leave the judging to the jury. This extends beyond your client, to everybody else in the case. There will be witnesses against your client; don't judge them either. They are what they are. Don't try to force them into categories. In trial, help the witnesses show the jury what they are, or leave them alone. You're not likely to convince the jury that a truth-teller is a liar. But if you invite the truth-teller to reveal himself to the jury and together you might find reason for the jury to doubt him.

Being and non-being create each other. Difficult and easy support each other. Long and short define each other. High and low depend on each other. Before and after follow each other.

If there weren't prosecutors, you wouldn't be a defense lawyer. If you didn't have tragic days, you wouldn't have joyous ones. If you didn't try hard cases, you wouldn't have easy ones. Reverse all of those statements and they're equally true. There is no "high" without a "low", and no "low" without a "high". If you like highs but not lows, you can rage against the lows, but, since their interdependent, doesn't it make more sense to just take them as they come?

Therefore the Master acts without doing anything and teaches without saying anything. Things arise and she lets them come; things disappear and she lets them go. She has but doesn't possess, acts but doesn't expect. When her work is done, she forgets it. That is why it lasts forever.

Act without doing anything. Don't force it. Find the helpful forces at work in your case, and give them room to work. The less you have to interfere, the better off your client is (Bennett's Chainsaw at work). This doesn't mean "don't prepare." You can only act without doing if you know your craft and the case thoroughly. Masters of martial arts can act without doing because they have rehearsed their moves thousands of times until they are embedded in muscle memory. Teach without saying anything. Jury selection again provides an excellent example: we teach the jurors more by letting them talk than by lecturing them. Also, we teach best by demonstrating. And that's all I'll say about that. Things arise . . . . In trial, let things arise and disappear; you might as well because you can't do anything about them anyway. When things go "wrong" -- differently than you expect them to -- at trial, don't get stuck on them; you will defeat yourself. Let them pass. When a witness gives you an answer you didn't expect, you can't undo it. Let it pass. Maybe you asked a bad question, but your real error was in expecting something. If you don't expect anything in trial, you're not going get stuck. What do you do when you win a case? What do you do when you lose? One of my teachers taught me to enjoy the victories, and suffer the defeats for 48 hours, then move on. But why 48 hours? Why not 72, or one? If one day, why not one hour or one second or one moment -- the moment of the victory or loss. Then move on to the next moment. Part of the job, though, is continual improvement. If we forgot the lessons of trial, we would never improve. Is this contradictory? Not for me. I learn more by letting go and allowing the lessons to come to me than by looking for them. Again, don't force. Forget the work, trust the lessons to remain. I can learn the lessons and forget the work. Why does the work last forever? Because I really learn the lessons, rather than just talking to myself about how well or poorly I did. [Chapter One]

Will Defend for Sex

I met with a potential client today in the jail; she had spoken with another lawyer about her case. That lawyer is a guy for whom I have great respect. He's a real lawyer who tries cases. I've never before heard any suggestion that he is anything other than utterly ethical. But this potential client explained to me that she was more comfortable with me than with him. No surprise -- I encourage people to talk to more lawyers than just me before deciding whom to hire, and it often happens that people choose to hire me over my well-qualified (and considerably less expensive) colleagues. Sometimes I ask the client what made the difference; I did so today. "He told me there might be a different way to work this case out," she said. Great, I thought, a client after my own heart -- she negged this other lawyer because she didn't like the suggestion that she might resolve her case by snitching. I was about to explain my position on the matter to her, when she continued: "He said there were other ways than money for me to pay, and he'd like to meet with me to work something out." Oh. What do you think he meant? "I thought he meant sex. " Sex? "Yeah. Sex." I've heard of lawyers taking "couch fees" in criminal cases (Ewww!), but the lawyer in question never gave me the impression that he was the sort to trade services for sex. (Question: what sort of lawyer do you think that is?) I've got no reason to think this was anything other than a misunderstanding between the lawyer and the client -- a miscommunication. What a miscommunication! It cost the lawyer a client, and he'll probably be getting collect calls for months from inmates wanting the same deal.

Technorati Tags: communication, lawyers, sex

Keller Complaint

As I said yesterday, the Harris County Criminal Lawyers' Association will be filing a complaint against Texas Court of Criminal Appeals Judge Sharon Keller for barring the courthouse doors to Michael Richard's lawyers, preventing them from getting a stay of execution from the U.S. Supreme Court. If you would like to file a complaint of your own against Judge Keller, a form that you can use is here in RTF format and here in PDF format. If you are not an HCCLA member and would like to join in HCCLA's complaint (which is substantially the same as the form I've linked to above), please sign this form (PDF) and fax it to 832.201.7770.

Subpoenaing MySpace Records

Fax subpoenas for MySpace records in criminal cases to: Custodian of Records MySpace.com (310) 969-7394 Include the name and user I.D. number of the account holder.

Technorati Tags: investigation, MySpace, subpoenas

Foreign Blawgs

The three most prolific foreign blawgs that I read regularly -- GeekLawyer, BabyBarista, and Ruthie's Law -- have convinced me that British blawgers are, to put it gently, odd. Ruthie speaks of herself in the third person, with lots and lots of italicized words. BabyBarista, if half of his tales are to be believed, is a ruthless Machiavellian strategist (is that redundant?), jockeying for position in chambers. GeekLawyer . . . well, here's a representative post. (These Brits all seem to know each other personally, to boot.)

Technorati Tags: blawgs, foreign blawgs

The Same the World Over

Simon Myerson at Pupillage and How to Get It is talking about BVCs (Bar vocational courses) and whether they are worth a damn (at least, that's my understanding of what he's talking about, but we are two blogs divided by a common language). I hope that some day I will understand the British way of training and raising trial lawyers, because I'm sure there are some lessons we Yanks can learn from it. Until then, however, I'd like to call the American trial lawyers' attention to the last paragraph of Simon's post and ask them: does this sound like your life?:

I shall deal with the sift when I'm not doing an opening in a particularly unpleasant cruelty case, whilst simultaneously preparing to cross-examine 4 medical experts in a second case and trying to sort out a strike-out application in a third. Of course, like all barristers, when I'm not that busy I panic that no one wants me.

Sharon Keller Complaint

When Sharon Keller barred the courthouse doors to lawyers for Michael Richard, she killed Mr. Richard as surely as if she had put a bullet into his head on the courthouse steps (thanks to Robb Fickman for that vivid image). There can be very little doubt that, had Keller not acted as she had, Mr. Richard would be alive today. If you're like me, your response to this news (via Capital Defense Weekly) that 20 Texas lawyers had filed a grievance against Texas Court of Criminal Appeals Judge Sharon Keller was, "I wish I'd had a chance to sign that." Well, now you have a chance. The Harris County Criminal Lawyers' Association is going to be filing a complaint against Judge Keller with the Commission on Judicial Conduct on Monday. Tomorrow from about 10:30 a.m. to about noon I will be in the ready room on the 7th floor of the Harris County Criminal Courthouse, 1201 Franklin Street at San Jacinto, with a copy of the complaint for you to sign.

Technorati Tags: ethics, judges, murder

Why Fear Luck?

The Greatest American Lawyer writes about luck:

If luck were a dominant factor in how things happen, there would be few if any patterns amongst high achievers. Achievement would be random. At that point, what is the use in even trying?

That's a non sequitur. Who's to say that good fortune is not part of a complex of traits that high achievers generally have? For all we know, good fortune is somehow tied to physical attractiveness or high IQ or persistence or good judgment. Wait. Not only is GAL's statement a non sequitur, but it's also demonstrably wrong. We know that good fortune is tied to all of these things. People don't choose to have these traits. The fact that you were born who, when, where, and how you were is strictly a matter of luck; ultimately everything else that you become flows from the facts of your birth. Our luck makes us who we are. Even if you believe in a personal Creator who decided that you should have whatever traits made you successful, you are lucky that he gave you those gifts. You didn't earn God's beneficence in the womb. Sufficiently good luck is indistinguishable from divine favor. And, since we can't understand or account for divine favor, it's indistinguishable from good luck. Even if you believe that who you are in this life is attributable to what you did in the last, what you did in the last life was attributable to who you were, which in turn was attributable to what you did in the life before that, and so on and so forth until, at some point, you had the luck to be created one way or another. The GAL says that "luck is just a word." Sure, luck is just a word; it's a word we use to explain the good things that happen that we don't think we earned. Here's a simple demonstration: did you choose not to be born in a village in Sudan? Did you choose not to be born to a meth-addicted mother? Did you choose not to be born with a mental disability? Of course not. Yet if the circumstances of your birth had been a little different, you would have had no chance of being where you are today. Why is it that so many successful people are reluctant to concede that they wouldn't be where they are if it weren't for luck? The idea that we somehow earned our positions in the world by dint of our "choices" is risible Frankensteinian hubris. We made our choices because of our good luck in being born and raised the way that we were. Achievement is random, but the dice were cast before we were born. So what's the use in even trying? Because we try, we succeed; because we're lucky, we try. The unlucky ones are the ones who stop trying.

Technorati Tags: luck, philosophy

Malum and Mao

Mississippi Gulf Coast public defender Malum in Se writes about his guerrilla operations against the state:

Last month I prepared 42 motions for bond reconsideration and set them for hearing wherever the court administrators would allow me to squeeze them in. This had all the ADA's in an uproar calling and pleading to take them off the docket and work them out. The private defense bar was ecstatic because this forced the DA's office to come down off several of their recommendations because my motions were sucking up all of their free time. With our local elections two months this would be an opportune time to prepare and file Motions on behalf of all my undocumented clients demanding their right to have their consulates notified of their incarceration as required under Article 36 of the Vienna Convention.

It has become trendy in recent years to read Sun Tzu's Art of War and apply its lessons to various ventures -- an Amazon search turns up "The Art of War for Women", "The Art of War for Managers", "Golf and the Art of War", "The Art of War 2008 Desk Calendar", and "Applying Sun Tzu's Art of War in Managing your Marriage". Some criminal defense lawyers see it as a guide to defending criminal cases. Sun Tzu wrote:

All warfare is based on deception. Therefore, when capable, feign incapacity; when active, inactivity. When near, make it appear that you are far away; when far away, that you are near. Offer the enemy a bait to lure him; feign disorder and strike him. When he concentrates, prepare against him; where he is strong, avoid him.

One twentieth-century strategist who studied Sun Tzu is Mao Tse-tung. The leading text on guerrilla warfare is Mao's On Guerrilla Warfare. Mao wrote:

In guerrilla warfare, select the tactic of seeming to come from the east and attacking from the west; avoid the solid, attack the hollow; attack; withdraw; deliver a lightning blow, seek a lightning decision. When guerrillas engage a stronger enemy, they withdraw when he advances; harass him when he stops; strike him when he is weary; pursue him when he withdraws. In guerilla strategy, the enemy's rear, flanks, and other vulnerable spots are his vital points, and there he must be harassed, attacked, dispersed, exhausted and annihilated.

Malum (a former Marine who has clearly, in the words of Iñigo Montoya, "studied his Agrippa") is harassing the enemy when it rests, striking it when it is weary, and pursuing it when it withdraws. To what end? Malum doesn't say that his clients' bonds were lowered, but lowering the bonds was not the only goal of his guerrilla operations. Such operations are not an independent form of warfare; they are one step in the total war. By harassing and pursuing the State, Malum weakens it; the private defense bar's ecstasy is proof of his success.

Technorati Tags: Mao, strategy, Sun Tzu

Ten Best? No Dice.

I've been tremendously honored lately to be mentioned in some of my fellow bloggers' (Grits for Breakfast, Austin Criminal Defense, Deliberations [edit: and Simple Justice]) posts about the ten best criminal justice blogs. Scott at Grits [edit: and Scott at Simple Justice] included me in the list (Jamie at Austin Criminal Defense and Anne at Deliberations didn't, but named me as a contender). So now, having been tagged by Scott [edit: the Scotts] I should continue the meme by publishing my list of the ten best criminal justice blogs. For the life of me, I couldn't come up with a list of the ten best criminal justice blogs. I don't feel like I've been around the blogosphere long enough to judge the "best". Here, though, are the eight criminal-defense-related blawgs I read most closely:

Gideon's A Public Defender Jamie Spencer's Austin Criminal Defense Lawyer Brian Tannenbaum's Criminal Defense Anne Reed's Deliberations Malum in Se's eponymous blog Scott Greenfields' Simple Justice Stephen Gustitis's The Defense Perspective Shawn Matlock's The Matlock Blog

A few of the reasons that I give these blogs special attention:

• They are all in the same blogospheric neighborhood as Defending People.
• For the most part, they're not talking about the water-cooler issues (though Scott went wild recently and posted about Anita Hill and Britney Spears in the same day).
• They are very specialized, and focus closely on their subject matter with thoughtful, original, personal posts.
• While that subject matter is inherently political, they aren't spending a lot of time on partisan politics (though Shawn does likes to write about his imaginary Republicanism).
• They don't have tremendous volume -- four posts makes a heavy day for any of them.
• They are updated often (except for Brian's).

Most importantly, though there is frequent interplay among them, in comments and responses to each other's posts. The bloggers often disagree, sometimes vehemently, but there is a sense that they are engaged in a common venture, and that each of them can both teach and learn from the others.

Technorati Tags: blawgs

Heartbreaking Secrets, Jury Selection, the Tao and Voir Dire

Anne Reed wrote yesterday about What They'll Never Tell You:

Good lawyers know how much you can learn about jurors if you ask the right questions in voir dire. Really good lawyers know how much you'll never learn, no matter how perfect your questions are. Often -- maybe always -- the experiences that most shape our personalities and attitudes are our secrets. "We all carry a secret that would break your heart if you just knew what it was," Frank Warren tells Guy Kawasaki in an interview on Kawasaki's blog today. Over 150,000 people have sent Frank Warren their secrets, on anonymous handmade postcards. He gets 1,000 a week, and each Sunday he posts 20 of them at www.PostSecret.com. . . .

Yesterday I wrote about the first chapter of Lao Tse's Tao Te Ching, which includes these lines:

Free from desire, you realize the mystery. Caught in desire, you see only the manifestations.

In jury selection, the heartbreaking secrets the jurors carry are the mystery. The things they make the jurors do and say are the manifestations. In jury selection, if you desire to hear the secrets -- that is, if you are curious, if you ask questions -- you will never get to them. If you are free from desire, you might realize the mystery. I have a bit (200+ hours?) of training in the psychodramatic method from the National Psychodrama Training Center. I sometimes use techniques from the method to direct forensic reenactments of important events in criminal cases. Psychodrama training is an object lesson in heartbreaking secrets. Not only do we all have such secrets, but on some level we are all connected in a web of secrets. If, without any ulterior motive, you tell a group of otherwise-normal people your secret, most of them will be touched enough to share similar secrets of their own. (I highly recommend psychodrama workshops, by the way, for learning about yourself and your fellow humans and coincidentally becoming a better trial lawyer. Trust me, take a leap of faith, go. You'll thank me.) What's the application to jury selection? It is true that good lawyers know how much you can learn about jurors if you ask the right questions and that really good lawyers know how much you'll never learn, no matter how perfect your questions are. Great lawyers, I believe, know that you can often learn more by not asking questions. Sometimes you have to show the jurors yours -- reveal your own secrets -- to have even a chance that they'll show you theirs.

Technorati Tags: forensic reenactment, psychodrama, Tao, voir dire

The Myth of Fingerprints

In the Brandon Mayfield case, AFIS listed Mr. Mayfield as one of four people in the system whose fingerprints had features in common with the questioned fingerprint from the bombing in Madrid. An FBI "Supervisory Fingerprint Specialist", Agent Terry Green, concluded that Mr. Mayfield's left index fingerprint matched the questioned fingerprint. John T. Massey, an "independent fingerprint examiner" (actually a former FBI employee periodically hired by the Bureau to perform fingerprint examinations), verified that Mayfield's left index fingerprint matched the questioned print. A senior FBI manager, Michael Wieners, reviewed the alleged match and verified that the questioned print matched Mr. Mayfield's. The FBI issued a formal report matching Mr. Mayfield's print to the questioned print. The FBI sent Mr. Mayfield's prints to Spain. The Spanish National Police concluded that there was no match between Mr. Mayfield's prints and the questioned print. The FBI sent agents to Madrid to meet with the SNP. Spanish authorities "refused to validate" the FBI's conclusion. An FBI investigator, Richard K. Werder, filed an affidavit swearing that Green, Wieners, and Massey considered the questioned print a "100% positive identification" of Mayfield. (Memo to FBI: Fire them. All of them. Fire Terry Green. Fire Michael Wieners. Fire Richard K. Werder. Never use John T. Massey again. Your credibility depends on it. You might even think of outsourcing future fingerprint analysis -- to Spain, for example.) So . . . grand FBI conspiracy, right? Agents jumping to conclusions because they knew that Mr. Mayfield was the only Muslim on the list of 20 possible matches for the questioned print, right? Maybe, but when Mr. Mayfield was arrested as a material witness, the court appointed an expert witness to compare the questioned print with Mr. Mayfield's known prints. Mr. Mayfield and his lawyers chose Kenneth Moses to do this job. Moses concluded that the questioned print was Mayfield's left index fingerprint. (Memo to the defense bar: Kenneth Moses may not be the best guy to do this work.) The FBI claims that "fingerprints offer an infallible means of personal identification." Why do we believe that no two fingerprints are alike? No two people have ever been shown to share fingerprints, but there's no reason that two identical fingerprints couldn't exist, and the number of people whose fingerprints have actually been compared is minuscule compared to the billions of people alive today. Simon Cole says, "The claim that no fingerprint has ever appeared twice was first popularized more than a hundred years ago, and by dint of analogy (with other natural objects like snowflakes), lack of contradiction and relentless repetition, this bit of folk wisdom became deeply enshrined." The idea that no two fingerprints are alike is nonsense at worst and irrelevant at best. Often fingerprint examiners are comparing sloppy latent prints with tidy known prints; we know that, in this situation, two fingerprints can be alike enough that experts -- especially experts with preconceived notions or an axe to grind -- cannot distinguish them.

Patriot Act Unconstitutional

Why have we not talked about this? I searched the blogs on my list of regular reads for "Brandon Mayfield" and found only one mention in the last seven months, in passing in Underdog. Do I need to broaden my blawgospherical horizons? "This" is the opinion of the Honorable Ann Aiken of the United States District Court for the District of Oregon in Mayfield v. United States. In short, Judge Aiken denied summary judgment for the government and granted summary judgment for the plaintiffs, holding that sections 1804 and 1823 of Title 50 of the United States Code, "as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution." One thing the government tried to do with "USA PATRIOT" Act (malevolent acronym! I'll send a "Notice to Agents" coffee mug to the person who best describes the act with words whose initials form the acronym TREASON or TRAITOR or USA TRAITOR or such) was to expand its own power to search and wiretap U.S. citizens in criminal cases. The Government has historically been bound by the Fourth Amendment when investigating crimes, but not when seeking "foreign intelligence information." Before the TREASON (Trouncing Rights, Eviscerating and Spoiling Our Nation?) Act, the government could go to the FISC (Foreign Intelligence Surveillance Court) under the FISA (Foreign Intelligence Surveillance Act) and, on a showing that the target may be an agent of a foreign government (including a terrorist organization), that the place or facility to be searched is being used in furtherance of espionage or terrorist activities, and that the primary purpose of its surveillance was to obtain foreign intelligence information, get authorization for covert physical surveillance (sneak-and-peeks) and electronic surveillance. The government satisfies most of FISA's requirements by certifying that the requirements are met; the "court" must defer to the government's certification unless it is clearly erroneous. The TRAITOR (Taking Rights Away In Time Of Risk?) Act broadened the government's sneak-and-peek and secret wiretap authority by permitting such covert acts if a significant purpose of the surveillance and searches is the gathering of foreign intelligence. The FISC's decision to allow secret searches and surveillance is non-reviewable; if the FISC declines permission, the government can appeal to the FISCR, which will listen to oral argument from the Government only and decide whether the FISC was not generous enough with access to our private lives. The Government has appealed to the FISCR once, in 2003, and the FISCR unsurprisingly upheld the new FISA requirements. The government argues that the people should defer to the Executive Branch and allow it to conduct criminal (as opposed to foreign intelligence) surveillance without oversight, as long as it certifies that foreign intelligence is "a significant purpose" of the surveillance. At the same time, the government tells us that drugs fund terrorism. It's easy to see how foreign intelligence could wind up being the "Interstate Commerce" of the 21st century: if we let the government ignore the Fourth Amendment anytime it claims a significant foreign intelligence purpose, it's going to claim a significant foreign intelligence purpose in every case. The foreign intelligence camel had its nose in the Fourth Amendment tent. Judge Aiken (with the guidance of lawyers Gerry Spence, Elden Rosenthal, and Michele Longo Eder) gave it a good whack. The government has appealed Judge Aiken's decision; it remains to be seen whether the Ninth Circuit and the Supreme Court will back her up.

Chapter 1, The Tao of Criminal Defense Trial Lawyering

Qalmlea at A Musing Taoist has been dedicating a post to each chapter of Lao Tse's Tao Te Ching, along with her own commentary. The version of the book that she's using is Stephen Mitchell's, which I recommend highly. Qalmlea also provides a link to the text of Mitchell's version online, but it does not include Mitchell's commentary. Buy the book. (She also links to Red Pine's translation, Tam Gibbs's translation, and Thomas Cleary's translation. I've quoted Lao Tse here before, and mentioned the Tao Te Ching as providing one possible path to understanding the Art of War. In fact, had I reflected further on the subtitle of this Blawg I might have called it "Defending People: The Tao of Criminal Defense Trial Lawyering". I may yet. Inspired by Qalmlea's posts, I'm going to try to walk through the Tao Te Ching, commenting on its applicability to trial lawyering. I am not a Taoist master. I have not spent years studying Lao Tse. If there is Taoist orthodoxy, I don't know what it is. Therefore, with apologies to Robert M. Pirsig, a disclaimer:

What follows is based on actual occurrences. Although much has been changed for rhetorical purposes, it must be regarded in its essence as fact. However, it should in no way be associated with that great body of factual information relating to orthodox Taoist practice. It's not very factual on trial lawyering, either.

Chapter 1

The tao that can be told is not the eternal Tao The name that can be named is not the eternal Name.

"The ___ way" of trying cases is not the Way. If you're trying cases someone else's way -- the TLC way, the NCDC way -- you're not following the Tao. Mitchell explains that the verb and the noun on the first line are the same: "the tao that can be taoed . . . ." He provides a couple of other versions: "the way that can be weighed . . ." and -- my favorite -- "the force that can be forced is not the eternal Force.

The unnamable is the eternally real. Naming is the origin of all particular things.

When you put the river in a bottle, it's no longer a river. When you try to institutionalize a way of trying cases, nailing it to a name, you don't capture the way. People name things to so that they can sell them. They will try to sell you their way of trying cases; learn what you can from them, but remember that what they're selling is not the Way. When you find your Way of trying criminal cases, you won't be able to name it or sell it to anyone else. (It'll be what it it'll be.)

Free from desire, you realize the mystery. Caught in desire, you see only the manifestations.

You're not going to find what you desire. If you set about looking for a better way to try cases, you'll only learn tricks. (Tricks alone won't get you far; in the words of Gerry Spence's Uncle Slim, "Ya can't get nowhere with a thousand-dollar saddle on a ten-dollar horse.") To be a better criminal defense trial lawyer, look for something else entirely. . .

Yet mystery and manifestations arise from the same source. This source is called darkness.

Darkness within darkness. The gateway to all understanding.

. . . or, better, realize that you don't really know what it is that you're looking for. Most lawyers, to be effective, have to unlearn something -- what they learned in law school, what they did on mock trial teams, what they saw in the DA's office, or what they did in the unaware past. The gateway to all understanding is the understanding that we really don't understand. Darkness within darkness -- acceptance of the fact that we don't know anything about anything. Understanding of both the tricks and the essence of your Way of trying cases begins with that acceptance. If you are open to the possibility that you can learn something about trying a criminal case from every person and every experience you encounter, you're on to something.

Cheap Meat or Prime?

There are -- you may have noticed this -- lots of lawyers taking criminal cases. What distinguishes you from the bulk of these lawyers? (Why does it matter? It matters because, unless you have a low opinion of yourself, you realize that the clients will be better served by at least considering hiring you. If you can't define what distinguishes you from the bulk of lawyers, the clients probably won't see it.) There are many ways to distinguish yourself to potential clients (market differentiators). Some of these differentiators are impractical, some are unethical, some help the clients, some are detrimental to the clients, and some are neutral. I had this post 2/3rds written when Chuck Newton published Are You Selling Cheap Meat, about market differentiators for law practices:

Too often solos, and especially new solos, devoid of ideas in this regard, and hoping to build business quickly, resort to marketing based upon fees and price. These attorneys are certainly free to do so, but it is a terrible mistake. It is possibly the most stupid decision you can make in the practice of law.

Chuck points out a number of problems with a lawyer marketing herself as "cheap meat." He says it better than I would have:

First and foremost it cheapens your image and that initial image is very hard to correct later. Second, in order to make what other attorneys make the fee differentiator has to handle more cases that pay less. That requires the need for more clients, which begets more expensive advertising, which begets more staff, which begets more office space, which begets more technology and implements, such as desks and chairs and computers, and the process just continues to build. Worse, you get to pay for all of this growth with highly discounted fees. So you have more cases, staff and overhead than your competition, and you get to pay for it all with less money. But, what being or selling cheap meat never does is net you the living you deserve. Sure it might work you to death, but to what end? Third, selling cheap meat brings in the wrong kind of clients. Dealing with people is difficult enough, but you are bringing in skeptical people who are already expecting too much for too little. It is a bad combination. These are people that would risk their health buying deli meat at the 99 cent store.

I would add only that a) by taking more clients for less you have less time to work on each client's case; and b) by differentiating yourself based on price you convey false the impression that criminal defense lawyers are fungible. After our potential clients are released from jail, they get twenty or more letters in the mail touting other lawyers; many of the lawyers sending out these letters use price as a market differentiator. So if not price, what do we use as a market differentiator, if not price? First, permit me to quote Chuck at length again:

A market differentiator can be almost anything. The first or only woman in your area to practice a particular area of law. Your location. The fact that you use to be a judicial officer or work for Big Law. That you are a family person. That you are a Christian, Jew, Muslim, or even an atheist. That you are a woman, male, straight or gay. That you are a virtual lawyer. In Houston nationality plays a big part. Even the fact you work from home can play a huge roll. You can try to turn what might be considered a minus into a plus. When I was starting out I ran commercials of the accomplishments of well known historical figures, who where also attorneys, with the tag line, "A young lawyer really can make a difference".

These differentiators are all fine in a market of fungible legal services. If all lawyers are equal, why not hire the one who looks like you or goes to the same church as you or comes from the same background as you? If all widgets work the same, then you might buy the blue one just because you like the color blue. But, as we know, legal services aren't fungible. We should be differentiating our services in the market with the things that make them more valuable, not just different. The market differentiator that I prefer above all of these is this: that, in ways I can define, I provide service beyond what other lawyers provide. I call it premium criminal defense, and it's very much the opposite of "cheap meat".

In Waaaayyyyyyy Over His Head

Today the lawyer I described in this post called me (it's been three weeks, by the way). He wanted to know why his client (my former client) had been detained. I probably should have made like Matlock and flipped him off. But instead, I explained to him the presumption of detention in a federal drug conspiracy case with a possible sentence over ten years. I also explained that the particular magistrate who heard the detention hearing will most likely never grant an accused release over the Government's objection. Why I had to educate was beyond me; he is the one who made the client promises that nobody could possibly keep, and now he's talking like I somehow dropped the ball. The particular job this lawyer is planning to do -- racing to the U.S. attorney's office to cooperate -- doesn't require any legal talent or training whatsoever. But don't you think that a lawyer who undertakes the representation of a serious drug conspiracy case should actually have a passing familiarity with the law? What happens when cooperation breaks down and the client needs a jury trial? What happens when the government doesn't move for a 5K1 and the client needs a sentencing fight? Last year the Southern District of Texas judges instituted new standards for CJA (Criminal Justice Act) lawyers (court-appointed lawyers). Everyone who wanted to be on the CJA panel had to apply; here is the list of the 92 lawyers who made the cut. A modicum of experience was required, and some degree of proven competency. Hired lawyers, however, do not have to have any experience in federal court; they don't have to know anything about federal criminal defense; they don't, in fact, have to know anything about criminal defense at all. Here's my advice to state practitioners, or civil lawyers, or new lawyers, who think it it's a good idea to take money to handle a federal case without lots of help at every step from an experienced federal criminal defense lawyer: YOU'RE WRONG. DON'T DO IT.

What Are You Wearing?

On Sunday Malum in Se wrote about running into a prominent criminal defense attorney at the local Walmart. On Sunday afternoon, the lawyer was wearing khakis, a long sleeve shirt and a tie. Alright, you might say, he had probably just come from church. Or maybe brunch with his mother. But this Prominent Lawyer gave himself away when he commented on Malum's own attire: "Mr. PD, perception is reality. I envy you at guys at the PD's office being able to run around town in sweat shorts and a tee shirts." PL was wearing khakis and a tie to Walmart on the Gulf Coast on Sunday afternoon because he had to. (A digression: pity those who are unable to discern metaphor from reality. They might think that perception actually is reality, or that the "war on terror" is an actual war. A criminal defense lawyer who doesn't recognize a metaphor is severely intellectually crippled [metaphor], and probably shouldn't have people's freedom in his hands [metaphor].) Occasionally I see a mention in the blawgosphere about how we lawyers must dress like lawyers. For example, Tom Kane's Dressing Professionally is Smart Marketing in his Legal Marketing Blog. The theory is that the clients expect it and are more likely to hire us if we wear business attire. John Remsen, Jr., whose Enough is Enough: Lawyers Should Look Like Lawyers post Tom linked to in his Dressing Professionally post, wrote:

I don’t know about you, but if I’m paying north of $350 an hour for legal services, I want my talented, high-priced lawyer to look like a talented, high-priced lawyer….in a suit. Crisp, polished and professional. The way he (or she) looks and presents himself (or herself) has a huge impact on how I perceive his (or her) skills and capabilities. That’s just the way it is.

John makes a persuasive case. Legal marketing is his business, and I'm prepared to concede that he's probably right. Yet I'm not about to change my style. I have a closet full of nice suits, and I'll wear them to court, but one of my priorities when I get back to the office is to get into jeans and a t-shirt as quickly as possible. I work smarter in jeans and a t-shirt. Maybe I'd get more clients if I kept the suit on at the office, but I don't need more clients. Maybe I'd get a better class of clients, but I like the class of clients I get. I don't really think I want clients who feel that a fancy suit makes a better lawyer; their expectations might not be closely linked to reality. My clients usually have chosen me over cheaper lawyers wearing fancier suits in fancier offices. Dressing down may convey its own salutary message to the potential client -- "this lawyer doesn't need to impress me," or "this is the guy I want at my side in a real fight" or even "this guy is all about his craft" -- all of which are true. Or maybe my air of competence and trustworthiness simply outweighs my sartorial shortcomings. There are lots of good reasons to wear a tie on Sunday afternoon. But being a lawyer is not one of them.

Technorati Tags: marketing, attire

Loyalty Oaths in the Courtroom

This morning (right now, actually, thanks to the wonders of Verizon wireless broadband) I'm in state district court in one of the counties adjoining Harris County. The judge of this court begins her day by having the courtroom stand for the Pledge of Allegiance. I am not a big fan of loyalty oaths. I don't believe that a republic that deserves its citizens' loyalty needs them to swear their loyalty, nor that a republic that needs its citizens to swear their loyalty deserves that loyalty. Nevertheless, I don't mind other people swearing loyalty to a flag or a republic as much as they want to. I question their need to do so, though. Having sworn loyalty once, why would they feel it necessary to do so again? Is it to convince themselves? To convince others? Do they protest too much? Or is it because they've never given it any thought? I'm reminded of this passage from Catch-22:

Without realizing how it had come about, the combat men in the squadron discovered themselves dominated by the administrators appointed to serve them. They were bullied, insulted, harassed and shoved about all day long by one after the other. When they voiced objection, Captain Black replied that people who were loyal would not mind signing all the loyalty oaths they had to. To anyone who questioned the effectiveness of the loyalty oaths, he replied that people who really did owe allegiance to their country would be proud to pledge it as often as he forced them to. And to anyone who questioned the morality, he replied that "The Star-Spangled Banner" was the greatest piece of music ever composed. The more loyalty oaths a person signed, the more loyal he was; to Captain Black it was as simple as that, and he had Corporal Kolodny sign hundreds with his name each day so that he could always prove he was more loyal than anyone else. The important thing is to keep them pledging," he explained to his cohorts. "It doesn't matter whether they mean it or not. That's why they make little kids pledge allegiance even before they know what 'pledge' and 'allegiance' mean."

I've been required to swear, on more than one occasion, to support the U.S. Constitution; I'm basically okay with that (though why I should need to do so more than once is beyond me -- did the officials in the Southern District of Texas think I lied when I took the Texas Lawyer's Oath?) -- in a way, that's just a reaffirmation of my contract. Anyway, if everyone else in the courtroom wants to get up and swear loyalty to the Republic, I'll stand respectfully and silently. In this court, though, the judge takes the swearing of loyalty one step farther: she has the courtroom recite the Pledge of Allegiance to the Texas state flag: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." I'm not from these parts, so I hadn't given any thought to the existence of a pledge to the Texas flag. Schoolchildren apparently recite it in the morning; I may at some point have heard of such a thing, but it was not in the forefront of my mind. Now that it is, though, I don't like it. Not in the criminal courtroom. I'm in litigation against the State of Texas; the State of Texas is trying to put my client in prison. My duty, under the oath that I've taken as a lawyer, is to try to kick the State's ass. Why should I be expected to swear my loyalty to that same state? More importantly, why should I stand for it when the jury is asked to swear out the same oath?