How to Become a Federal Criminal Defense Lawyer

If you're a young lawyer interested in defending people in federal court, listen up. A few days ago an anonymous commenter to this post asked:

How would you recommend that a new lawyer get started defending people in federal court? How did you get started?

I started in federal court long enough ago that I hardly remember how I did it; most likely I went about it all wrong (my first jury trial ever was a bank-robbery trial in federal court). But having made plenty of mistakes qualifies me uniquely to advise others; this question has acquired some urgency in my mind recently as I have noticed a glut of young lawyers seeking advice on practicing in federal court.

One of these young lawyers told me a couple of days ago that, if all else failed, he would go to trial and ask the jury to determine if the arrest was legal. No, I told him, you won't: while we have that option in Texas state court, federal law does not provide for juries to decide suppression issues. Today he reported that, as far as he was concerned, it was still an open question -- two other defense lawyers, one of whom used to be a federal prosecutor, had told him that juries could decide such issues in federal court.

So the first and most important thing for the aspiring federal criminal lawyer to know is this: you don't know squat. Accept that with calm humility and good cheer. You may have edited the law review . . . and captained the mock trial team . . . at Yale. You are not prepared in the slightest to defend people accused of crimes anywhere, let alone federal court. Even if you spent years as a state prosecutor, even if you spent years as a defense lawyer in state court, even if you served as a federal prosecutor, you are now officially a federal criminal defense newbie, and a newbie you will remain until you have tried several federal criminal cases to juries as a defense lawyer. Pleading people guilty does not count. Only after you've tried some cases as defense counsel in federal court will you know squat.

How many? It depends on you. If you're a fast study, two or three should do; if you were paying attention when you were a federal prosecutor, one might be enough; if you're lazy or slow or set in your ways, you probably won't be trying cases anyway. The bar for admission to the U.S. District Courts is frighteningly low, and lots of lawyers in the courthouse are eternal newbies. Don't set your sights on being as good as the worst of them, or as good as the mean. Work to be as good as the best, or go back to state court, with its bus-station atmosphere, its semi-pro cops, and its forgiving rules.

Don't be so afraid to lose that you never try cases. If you set your client's interests (freedom) above your own (dignity), you're not going to win every case you try. Trying cases and losing them is good for your ego, and will raise you above newbie level, but no matter how much of a badass you were in law school, or the DA's office, or state court, or the U.S. Attorney's office, you are nothing more than a speedbump over here in U.S. District Court until you've proven that you can beat the United States Government in a jury trial.

Don't pretend to know squat. Don't pretend in order to impress your colleagues -- we know that you're a newbie, and we're not impressed. Don't do it to intimidate the AUSA -- he knows that you're a newbie, and he's not intimidated. Nor to persuade the judge -- she knows that you're a newbie, and she's not persuaded. Most of all, don't pretend in order to sign up the clients. They don't know that you're a newbie, but it's dishonest, unethical, illegal, and sleazy not to tell them.

"But they won't hire me if they know how little federal experience I have." First, that'd make it fraud, wouldn't it? Second, a few special clients will hire you despite your lack of experience. They won't pay you what they'd pay a more experienced federal lawyer -- and rightly so -- but people with a limited budget will be willing to take a flyer on a green criminal defense lawyer who will work hard to do a good job. (You're not just coming over to federal court to make money, are you? Well, are you?) Instead of trying to convince the potential clients that you know your stuff, show them that you'll work harder than anyone else.

Work harder than anyone else. Study hard. Observe. If you don't work hard, you're going to do an incompetent job. Apply for the CJA panel, and take advantage of the Federal Defender's training programs for panel lawyers. Go to every federal-specific CLE program you can afford. RTFM. Get Georgetown Law Review's Annual Review of Criminal Procedure. Browse it frequently. Get a copy of West's Federal Criminal Code and Rules and carry it with you to court. You may be the only lawyer in the courtroom with the book. Get the Sentencing Guidelines Manual, read it and understand it. Get a copy of Defending a Federal Criminal Case, by the Federal Defenders of San Diego, and refer to it often (word is that there is a new version in the works).

The easy way out of a case is to get the client to plead guilty. The sad truth is that most clients need to plead guilty.

There is a happier truth, though. Write it on your bathroom mirror. Put it on a sticky on your car windshield. Print it on a card, and put it in your wallet. Make it the screensaver on your computer:

Many federal defendants need jury trials.

If you try a case for a guy who should have pled guilty, his punishment is likely going to be somewhat higher than if he'd pled (an extreme example of the disparity between plea and trial: today I pled a guy guilty to an agreed 60 months on a kilo and a gun; if he'd gone to trial and lost, his sentence would have been at least double that). Pleading a guy who should have gone to trial is much more costly: he's going to go to prison when he should have walked. If you don't consider a federal jury trial an option, if you plead every case, you are screwing some percentage of your clients (5%? 10%? 20%). (If you didn't consider a plea an option, you'd be screwing more of your clients less severely. But who doesn't consider a plea an option?)

Whether a defendant should plead or not does not depend at all on whether he is "guilty" or not. The only thing that matters is whether the government can prove its case beyond a reasonable doubt in the face of all the resistance you can offer.

Not knowing squat, you don't have any way of knowing if the government will be able to prove its case beyond a reasonable doubt in the face of your greatest resistance. So how do you learn which cases to try? Sit second with someone else who is not a newbie. Do so at every opportunity. I have second-chair counsel at every trial, and I still sit second whenever I get a chance. Do it pro bono if necessary. Offer to sit second on CJA cases -- sometimes the court will pay for a second-chair lawyer who is not otherwise qualified to be on the CJA panel. When those special clients hire you, get someone else who is not a newbie to sit second with you. Split your fee with her if necessary.

If you can get on the CJA panel, treat appointed cases no differently than you would hired cases. Many of my jury trials, and some of my greatest wins, were on appointed cases. (I would bet that indigent defendants have jury trials more often than paying clients.)

Find mentors. I've said before that the criminal bar is very supportive. Sure, we federal criminal defense trial lawyers don't much care for the idea of a glut of newbies in the U.S. Courthouse, but all of us were newbies ourselves once, most of us would prefer that the newbies not be entirely incompetent (you're probably going to wind up representing a codefendant, and we'd rather not have you screwing up our defense), and many of us are willing to help you become competent. If you can't find anyone local, email or call me. (Someday I may be trying a case in your district, and you'll be representing a codefendant; I sure would appreciate it if I don't have to babysit you to keep you from inadvertently torpedoing both of our clients.)

If you haven't already joined your local criminal defense bar (why not?), do so now. Find the helpful experienced federal defenders in your area (speaking of which: make friends with the lawyers in your local federal PD's office; many of them are better lawyers than you will ever be, and they too want to help you become competent) and don't be shy about asking them for advice.

Even when you think you've got a case figured out, ask a mentor for his take on it. Before your client pleads guilty, run the facts by someone more experienced than you and see if she concurs with your judgment. Until you have tried several federal criminal cases to verdicts, getting an experienced lawyer to check your work should be part of the due diligence that you perform on every case.

Finally (for now): You're going to make a fool of yourself in court. Making a fool of yourself, if you're aware of it, is inevitably a learning experience. Get over your bad self.

A Reader Writes

A friend in Tennessee writes:

Your November 29, 2007 post seems to me to be potentially irresponsible and potentially unethical. How many times have you gotten your clients into more trouble? I bet you would not admit it if you had.

Friend, aside from being an unfriendly thing to say, that last bit is a bet you would certainly lose. You must be mistaking this blog for some sort of advertising. No, I pretty much let it all hang out here -- wins, losses, and outright thrashings. I write this blog for the other criminal defense lawyers, not for clients, and if I can impart a lesson to those who are treading the same paths that I tread, I will. If I had clients who had received bad results because I tried to find ways to beat their cases, I would say ". . . but this approach doesn't always work so well."

If I were convincing people to try to fight when there was some substantial risk that they would get whacked harder for trying to fight, that might be irresponsible. If I were misleading them into hiring me, that would certainly be unethical.

But this approach works very well, and the answer to your question is "never". I have never gotten any of my clients into more trouble by doing due diligence instead of rushing them down to plead. Never.

Now, bear in mind that the people who come in looking for the quick copout are almost always accused of misdemeanors (people don't come into the office looking to plead guilty to a felony "just to get it over with"), and always out on bond. In the jurisdictions in which I practice, it is almost never true that the first offer is the best offer, and it is almost never true that an accused who is on bond is best served by pleading guilty on the first court appearance.

The worst-case scenario for a client whom I've convinced to allow me to actually do my job (instead of just accepting his opinion that an immediate guilty plea is the best option) is this: I review the facts and the law, I discover some reason that the client must plead quickly (for example, the State has missed the true felony charges that could have been filed, and we need to jeopardy-bar them as soon as possible), and I help the client plead guilty immediately. That scenario is very rare, and that's the absolute worst-case: no worse than if he hadn't hired me.

The best-case scenario is that I find a way to beat the case (truly about half the time under these particular circumstances): to get it dismissed, to win at trial, or to otherwise get some outcome that can be expunged from the government's records.

In the balance of cases, the fact that I perform due diligence, look for a way to win, and litigate what can be litigated results in final plea offers at least as good as -- and usually significantly better than -- the clients'd've gotten by pleading guilty straightaway.

Ethics are funny. We have rules laid down by the organizations that regulate lawyers; we lawyers talk about "legal ethics" but these are not really ethics but law. Then all of us have our own principles of right and wrong that govern our behavior regardless of the sanction that attaches. These principles really are ethics, and they're intensely personal.

A lawyer who helps his clients plead guilty without carefully exploring the possible defenses is in dereliction of his duties; a lawyer who allows her clients, untutored both substantive and procedural law, to make the decision to discard their constitutional rights without input from the lawyer abdicates his responsibilities. These are the "lawyers" whom the clients pay a pittance to when they decide they don't want to pay someone (me or someone else, it doesn't really matter to me) real money to fight for them. In the case of those lawyers, I'll call your "irresponsible and unethical" and raise you a "shameful." Boooooo.

Another Beauty Contest

The American Bar Association (that's not the real link -- the ABA is merely worthless rather than sinister -- but it's entertaining nonetheless) is hosting another blawgers' beauty contest. Kevin O'Keefe writes about it here. The heart of Kevin's excellent post (hat tip to Anne Reed):

Law blogs represent disintermediation of publishers and gatekeepers. No more are those in supposed power and control going to screen and serve up what they think is important. A lawyer in a town with a water tower, an old grain elevator and 3 four way stops is on equal footing with a lawyer who clerked for a Supreme Court Judge. The democratization of publishing and dialogue we get through law blogs is at the very heart of what we stand for in America.

Kevin sees the ABA's poll, and its publicization of the poll, as "shallow, at best".

Indeed. If other things were judged by such polls, Toyota would be recognized as the best carmaker, ground beef as the best cut, Gallo as the best wine, and Thomas Kinkade as the best painter. China would be accepted as the best country, Christianity as the best religion, Windows as the best operating system, and ignorance as the best mental state (coincidentally, George W. Bush would be president).

Just Pleading Guilty

Shawn Matlock, who's growing up quite nicely, writes about trust (a topic dear to my heart) and his distaste for potential clients who "just want to do a quick plea."

I get such potential clients in the office now and then. When they tell me they want to "just plead guilty and take probation", I tell them something like this:

If you want someone to just plead you guilty, go hire someone else. You'll pay a lot less than hiring me. Lots of people sitting in that seat tell me they just want to plead guilty. "Just pleading guilty" is not what I do; nobody ever won a guilty plea. On every case, for every client, I look for ways to beat the case. I prepare for trial. I fight. Sometimes we win, sometimes we don't, sometimes we plead guilty after all, sometimes the fight doesn't last long, but even when we plead after trying to win the case, we get better deals than we would by "just pleading guilty". You may think they have you dead to rights, but you don't know the law and you don't know what evidence they have against you. Nobody sitting in that seat ever does. Sometimes I convince the people sitting there that they don't really just want to plead guilty, that they really want someone to fight for them and try to find a way to win. And you know what? About half the time, when they decide they don't want to "just plead guilty", but want to fight after all, we end up winning.

Aimless Rambling

From Therapeutic Metaphors & Clinical Hypnosis, by David Puchol Esparza:

[Milton] Erickson told many stories and told them to a variety of clients. As he said of his treatment for a young, anorexic girl, "My treatment for Barbie was to tell her short stories, metaphors, suspenseful stories, intriguing stories, boring stories. I told her all kinds of stories, little stories" (Zeig, 1980). He illustrated the experiences he wanted his clients to retrieve as they fixated their attention upon the dramatic aspects of an unfolding story line about someone else. Clients were free to create their own meaning from the stimulus offered and even have learnings too painful for the conscious mind to tolerate. After all, it was "only a story."

As such, metaphor can be considered an altered framework through which a client is free to entertain novel experiences.

To an outsider not extensively trained in hypnotherapy, it would undoubtedly have appeared that Erickson's stories were "aimless rambling." Yet somehow Erickson's clients got results. (Despite him?)

Legal History Query

I can't figure out a way to phrase this search on Westlaw, so I thought I'd turn to the the hive mind of the blawgosphere:

Has Texas Court of Criminal Appeals Judge Sharon Keller ever voted in favor of a defendant in a criminal appeal?

I'll send a valuable prize to the first person to offer either an answer, or an easy way to find a trustworthy (calling chambers is right out) answer. Lend me your suggestions in the comments.

Winning Despite Yourself

In this post about Gerry Spence's defense of Geoffrey Fieger (well, it's not really about that; it's about the egos of Gerry Spence [who boasts he's never lost a criminal case] and Geoffrey Fieger . . . or maybe all criticism is autobiographical and it's not really about that either . . .), my New York brother Scott Greenfield wrote:

Bear in mind that Gerry Spence was the lawyer who represented Imelda Marcos, the steward of all footwear, in the Southern District of New York. After the jury returned a verdict of not guilty, one was asked whether it was because of Gery Spence. The response was it was despite Gerry Spence. Ouch.

Call me crazy, but I don't feel Scott's pain. I've had prosecutors opine that juries acquitted my clients despite me; I would love to hear that from all of my juries.

Obviously, I would much rather have a client acquitted despite me than have a client convicted despite me. In the list of all possible things a jury could say after reaching a verdict in a criminal case, one of the least painful would be "we acquitted him despite his lawyer." The only contender for the title of "least painful" is "we acquitted him because of his lawyer", and I'm not sure I wouldn't prefer to hear "despite" instead of "because of" as justification for an acquittal. Here's why: jurors lie about their verdicts. If you want to be lied to, talk to a jury about its verdict.

Even if they were inclined to be entirely truthful after a verdict, jurors would be a lousy source of information on the reason for their verdict. Because they are the object of the lawyering, jurors are unable to accurately assess the effect of good lawyering on them. Jurors make their decisions mostly based on their guts; then they try to rationalize and justify what they've decided. Nobody wants to be tricked into making a decision by some slick lawyer; generally jurors would rather believe that they did what they did despite the lawyering, because it was just the right thing to do. Jurors would like to believe that the lawyers just got in the way of their discovery of the truth (clients who owe money like to believe the same thing).

Generally, the better the lawyering, the less obvious. Perry Mason moments are rare; great lawyering is more often than not transparent, with the lawyer stepping backstage and letting the story tell itself. Ideally, the trial lawyer will give the jury what it wants: the illusion that he is not influencing them.

Beyond transparency, there is lawyering that is so fine that it is not only transparent, but transcendent -- lawyering so subtle that it appears to the uninitiated (including the jury) that the lawyer is screwing things up. I don't claim to know what Gerry Spence was doing in the Marcos case, but I know that whatever he was doing worked. And in the end, that's what matters.

Jury Argument in Criminal Cases

Today my copy of Ray Moses's "Jury Argument in Criminal Cases: A Trial Lawyer's Guide (Second Edition)" arrived in the mail. (Bookmark the book's website.) This is one of my favorite resources, but I had never gotten around to ordering a copy before now (Professor Moses doesn't make it particularly easy to order) -- I'd used it at one law library or another. This is a wonderful book.

It's also a large book -- almost 1500 pages of jury argument: law, advice, and examples. The examples are the heart of the book -- a thousand pages (I guess) of snippets (a sentence or a paragraph or two) of jury argument in criminal cases. Many of the snippets are attributed to one criminal defense lawyer or another, but most are unattributed. They are arranged by category. For example, there are 146 arguments (for both sides of the bar) on reasonable doubt. There are 69 arguments on self-defense (we Texans love our self-defense), including five arguments on the duty to retreat. If you try criminal cases to juries, you want this book.

Here, for your perusal, are the preface and table of contents. If you can't find something in Professor Moses's book that is worth the $200 pricetag, you're not paying attention.

Two Courthouses

Harris County has separate courthouses, both built in the last seven years, for its civil and criminal courts. Courthouse number one is a dingy-looking beige building, solid and generally functional; courthouse number two is ornate, with a dome on top.

In courthouse number one, a judge enters her courtroom from a door to the side and climbs up to her bench; in courthouse two, a judges enters her courtroom through a limestone archway behind her benches (if I were a judge in courthouse number two, I would definitely invest in a fog machine to make my entrances even more oracular; maybe a strobe light too).

Courthouse number one has limited technology built in, and that technology was outdated when the courthouse first opened; courthouse number two has all the technological bells and whistles -- WiFi, projectors with drop-down screens, and so forth.

Courthouse number one has too few elevators for the crush of humanity that visits its halls every morning; courthouse two's elevators rarely carry more than one person apiece.

By now, if you're a courthouse aficionado, you've figured out which is the criminal courthouse and which the civil. So tell me: why has the grand entrance hall of courthouse number two smelled like cat urine since the day it opened?

The Tyro's Return

This guy is back. Now he's been retained to represent another of my former clients.

It's beyond me why people hire this guy. He has handled five federal criminal cases to completion, all at least six years ago. Between 2001 and this year he didn't have his name attached to a single federal criminal case in the Southern District of Texas. From a brief telephone conversation with him I was able easily to learn that he knew next-to-nothing about federal criminal defense. Now four people have hired him to represent them in serious federal criminal cases in the last eight months.

His apparent target market -- people who want to rush as quickly as possible down to the U.S. Attorney's office to sell their friends and themselves up the river for the possibility of a shorter sentence -- is very different from mine. He's not likely to take any business away from me. Should I just shrug my shoulders, say "these federal criminal defendants are big boys, and they're grown-up enough to make their own mistakes" and go cheerfully on my way?

On the other hand, this guy exemplifies the problem of declining standards of representation in federal criminal cases. Do I have some responsibility to do something more than I've already done about that?

Why Let Juries Sentence?

When Texas legislator Scott Hochberg sought to ban probation for murder, he was able to get a bill passed preventing juries from recommending probation in murder cases. Judges can still, if prosecutors play along by agreeing not to have jury trials, put people on probation for murder.

If things had to change (there really was no good reason; Rep. Hochberg's yearning to change the law was reportedly based on one probation decision by a jury with which the representative didn't agree), this is the opposite of how they should have changed. The Texas Legislature has, once again, taken power out of the hands of the people (juries) and put it in the hands of bureaucrats (prosecutors and judges).

Justice is not something that can be defined by fiat. Justice is a personal moral judgment, and -- except for parents trying to imbue their children with morals -- no person is competent to tell another what justice is.

If you ask a judge to tell you what justice is, you're not assured of getting justice. There's some chance that you'll get what that judge considers justice, and if you're lucky it'll be something you can live with, but there's no reason to think that a judge has any more of a clue about justice than the man on the street. Judges (especially elected judges, and most especially those elected in partisan elections) aren't generally selected based on their life experiences and wisdom. In fact, our elected judges are often young and callow, with no life experience beyond the halls of the District Attorney's office.

Justice is not something that can be legislated. Legislatures are filled with politicians: crooks, addicts, and perverts who have been trying all their lives to prove that they are not crooks, addicts, and perverts by passing draconian laws against other crooks, addicts and perverts (I don't have anything against crooks, addicts, and perverts; hypocrisy is by far the greater sin). Politicians are the last people we should be expecting to tell us what justice is.

Justice is certainly not susceptible to the paint-by-numbers approach taken by states using sentencing guidelines. No two crimes are identical, no two victims are identical, and no two offenders are identical. Sentencing guidelines may eliminate unwarranted disparities, but they create something far more insidious: unwarranted similarities. Sentencing guidelines promote consistency, but only of the foolish kind.

So, if judges, legislatures, and sentencing commissions are not competent to declare, "this is just!", how do we achieve justice in the criminal courthouse? We can't. Because justice is a personal moral judgment, nobody will ever make a justice-decision that everybody else agrees with. We talk about justice in the courthouse, but the very best we can hope for there is that the results thee reflect the community's sense of justice. Since nobody will ever agree, "this is justice," the best we can do is approximate, in each case, what the community might consider justice. And that's why we let juries decide sentences.

How to Start a Law Practice

I proposed to my alma mater that someone should teach its students how to start a law practice, and volunteered to teach the course myself. I got this response:

Teaching law office management courses at the law school causes problems. The University doesn’t think they are “law.

Of course! Any fool can see that teaching law students how to actually function as lawyers is clearly outside the ambit of a law school's duties. (With apologies to Victorian Maiden.)

The local chapter of Phi Alpha Delta was interested, though (lesson 1: So Many Ways to Skin a Cat). So I'll be conducting a three-hour introductory course on starting a law practice. It'll be January 23rd, February 6th, and February 20th of 2008. One of the three one-hour sessions -- probably the second one -- will be in the evening. The others will be at noon. All will be at a location to be announced later (probably somewhere at UHLC).

To my readers: What would you tell law students who might be interested in starting their own law practices? What do you wish you had been told before you started yours?

Where are the Texas Experts?

This comment on Scott Greenfield's blog by one of the authors of the recent Dallas Morning News article on probation for murder in Texas got me thinking a bit. "A closer read of our series," he wrote, "shows that prosecutors still can offer probation through plea bargains with defendants." Here is the article about which we're talking. There may have been other articles, but I haven't seen them and this one didn't suggest that "a closer read" would be worthwhile. In the article about the Texas criminal justice system, the News cited eight "experts":

• University of Arizona law professor Marc Miller;
• University of Houston law professor (and ethics expert) Bob Schuwerk;
• Utah prison system executive director Tom Patterson;
• Bennett Gershman, a law professor at Pace University in New York;
• Buddy Meyer of the district attorney's office in Austin, Texas;
• George Dix, a University of Texas criminal law professor;
• Doug Beloof, director of the National Crime Victim Law Institute in Oregon;
• John Kramer, a Penn State University sociology professor specializing in criminal justice.

So which of those people is qualified as an expert in the Texas criminal justice system? If you said "Meyer and Dix" you would be correct. Schuwerk, while he teaches at my alma mater, is a legal ethics specialist; as far as I can tell he's never been involved with the criminal justice system.

The rest of the DMN's "experts" are from out of state; like the authors of the article, they seem universally atwitter that Texas allows probation for murder. Some of them -- again, apparently like the authors of the article -- think that sentencing guidelines would be a good idea for Texas. (I'll talk about that another day.)

So what do the Texas criminal justice experts have to say about the DMN's proposition that the availability of probation for murder is a problem? Dix said he wasn't bothered by the number of murderers on probation statewide; Meyer said (not of the availability of probation, but of prosecutors giving probation without a jury's recommendation), "I don't know that that's the appropriate way to go about ensuring public safety . . . . You've got your responsibility to the community."

Neither of the Texas criminal justice professionals that the DMN managed to find (it's not really that difficult, DMN: next time, call the Texas Criminal Defense Lawyers' Organization and the Texas District and County Attorneys' Association, and ask the directors of those associations who the best experts would be) has his panties in a twist about the fact that juries could recommend probation for convicted murderers.

But "I'm not bothered" doesn't sell newspapers. So the DMN tracks down a bunch of out-of-state "experts" who are all worked up about probation for murder and think they can socially-engineer a better system by taking even more power out of the hands of Texas juries and putting it in the hands of bureaucrats.

That might fly in Dallas, but not in Texas.

Texas Murder Sentences: Probation to Death

There has been some ado in the blawgosphere lately about the fact that Texas juries could convict people of murder, and then give them probation. (It's not the law anymore -- for murders after September 1, 2007, probation will not be an option for the jury.) Furriners (anyone unfamiliar with Texas culture, including reporters from the Dallas Morning News) express surprise that, in a state well-known for executing killers, probation was an option available to juries.

The truth is that Texas's propensity for killing its citizens, and its leniency with some murderers, are both expressions of the a single principle. Texas doesn't execute murderers to show its regard for the value of life; it does so because some people (as the parable says) need killing. Sometimes the guy who -- in the eyes of Texas -- needs killing is the accused, and sometimes he's the complainant.

"He needed killin', and my guy was the guy to do it" has long been a viable defense in some Texas murder cases. These are cases in which the State often couldn't secure convictions despite being technically murder; it'll be even less able to secure convictions in the future from juries that know that, if they convict, prison will be the only option.

In the "murder" case that I just finished trying, the complainant didn't need killing. His brothers were bad dudes, sure, and there were pictures of him flashing gang signs and guns (the jury heard about them, but didn't see them), but basically he was a 17-year-old high school kid who loved to play soccer. Without a probation option, however, I am convinced that the jury would not have been able to agree on a guilty verdict at all.

It sometimes happens that, in the culpability phase of a trial, the jurors who favor conviction will agree to put an accused on probation if the pro-acquittal jurors will agree to convict the accused. I didn't talk to our jury afterwards (want to be lied to? Talk to a jury about its verdict.), but the notes they sent out, along with the brevity of their punishment deliberations, suggest to me that their minds were made up on probation before the punishment case began.

What was wrong with the State's case? Calling what my client and his brother did "murder" was a stretch. The State's theory was that they were parties to the felony murder of the complainant. The crime -- felony murder -- was intentionally firing a gun at a car and (incidentally -- nobody had to intend it) causing someone's death. So not only did my client not need to intend to cause anyone's death, but nobody needed to intend to cause anyone's death.

Murder? I suppose the law says so. But not the sort of thing Texans (other than the naifs in the DA's office) are inclined to get particularly worked up over.

Lawyers Who Never Lose

Scott and Norm and Gideon and Stephen have been having a discussion, started by Norm, about lawyers "keeping score" -- keeping track of (and, incidentally, boasting about) their won/lost records.

Norm points out that a jury trial really isn't a sporting event, and the playing field isn't level.

I can't promise any client that a won-loss record will shed any light on the outcome of his or her case. Each case is different. Sometimes a mountain of facts can yield only a valley of despair. All a client can and should expect is dedication and hard work.

Scott adds:

If you want to know whether the lawyer is any good, there are two questions to ask yourself. Does he know what he's doing and will he fight for me to the end. Other than that, the score card means nothing.

Steven contributes:

The honest and fair approach is to explain that no two cases are anywhere near comparable and that our "won/loss" record is a meaningless attempt at self-promotion and self-glorification.

And Gideon pipes up:

For us public defenders, on the other hand, the score wouldn’t represent anything. Our “win-loss” record means as much as it does for a pitcher in baseball: almost nothing. We get what cases we get. We deal with them as best we can.

So my esteemed colleagues seem to agree that a win/loss record is meaningless.

I disagree.

Suppose that you have a choice of two lawyers. One of them claims never to have lost a criminal case; the other, like me, Scott, Steven, and Gideon, has had clients convicted by juries. All else being equal: which do you hire? If a win/loss record were meaningless, the correct answer would be "either." But I'm confident that Norm, Scott, Gideon, and Stephen would agree with me when I say: hire the latter lawyer -- the one who admits having lost jury trials.

There are four possible reasons a lawyer would claim never to have lost a criminal case. First, he might define "loss" differently than the rest of us. Second, he might be a deceiver. Third, he might not have tried many criminal cases at all. And fourth, he might have tried only the cases that were easy for him.

If the lawyer defines a "loss" differently than the rest of the world, he's failing to communicate. Since lawyers are communicators, you don't want to hire one who tends to give words private definitions (especially if he does so to support his self-image). If you have a choice between hiring a lawyer who speaks to you in his own special language in which losing on bad facts is not "losing", and hiring a lawyer who speaks to you in English, choose the latter.

Similarly, if you have the choice between hiring a lawyer who deceives you and hiring a lawyer who tells you the truth, choose the latter. (That really should go without saying.)

Babe Ruth struck out over 2,000 times. Generally, anyone who tries cases loses some. If you have a choice between hiring a lawyer who is so new to jury trials that he hasn't had an opportunity to feel the sting of defeat and hiring a lawyer who has tried enough cases to get his butt kicked a few (or many) times, choose the latter. The former isn't going to know what to do when things start turning nasty.

There is an exception to the general rule that anyone who tries cases loses some. A lawyer who is very selective might be able to try only cases that are easy. If you try the easy cases and not the difficult ones, you might preserve a perfect or near-perfect win/loss record. Now, the cases that are "easy" to this sort of lawyer may not be easy to everyone. He might be exceptionally gifted and hardworking and able handily to win cases that would be difficult to most lawyers. But, facts being what they are, there are cases that would be difficult for him as well, and he's doing something with those cases other than trying them.

Some of those difficult cases need to be tried. A dedicated, talented lawyer who tries tough cases loses some of them, but he also wins some. In fact, he loses some that by all rights he should have won, and wins some that he should have lost.

Imagine that there's a class of cases that a particular lawyer at his best would have a 50% chance of winning. If he tries two of those cases, he's going to lose one (so he'll no longer have a perfect record), but one of his clients who would not otherwise walk is going to go free. If a lawyer is so averse to losing that he doesn't try the tough cases, his win/loss record might look good, but he's not pushing his limits, and he's leaving something -- the freedom of some of his clients -- on the table.

I have a friend who advertises that she has "never lost a case where she's put her client on the witness stand." Now, she's a great trial lawyer, but I've always thought this an odd thing to say. I have to wonder: are there cases in which she didn't put her clients on the stand, where their testimony might have made the difference between a conviction and an acquittal? And if it came down to the choice between putting a client on the stand and maybe winning a trial, or preserving her perfect testifying-client win/loss record, how would she choose? It seems to me that if you never put a client on the stand and lose, you're not putting your clients on the stand enough.

If I were being defended, I would want to take the stand if my lawyer thought it would do more good than harm, even if I might be convicted despite my testimony. I certainly wouldn't want to think that she might advise me not to take the stand, even if it might help me, because her record might suffer if I took the stand and she "lost" despite our best efforts.

By the same token, if I were being defended I would want my lawyer to help me decide whether to plead or go to trial based entirely on whether the expected cost to me of losing at trial outweighed the expected benefit to me of winning. I would want someone willing to push the envelope, willing to try cases on the ragged edge of the plausible.

It is easy to envision how a lawyer might become a slave to his perfect record -- how the desire to maintain a perfect record might, to his clients' detriment, reduce the lawyer's tolerance of risk. Trial, though, isn't about the sure thing; it is about taking risks. Give me a lawyer who sometimes loses over one who always wins. Any day.

Game Over, Dude

Over at Simple Justice Scott addresses Other Steve's question of whether he should be a criminal defense lawyer. Scott's a steely-eyed realist; he doesn't share the popular delusion that our criminal justice system is a great system; no, the system sucks. And criminal defense lawyers aren't likely to strike it rich. But still:

We write about fighting the good fight. We sometimes spout the platitudes that bring warmth and comfort to the quiet, huddled masses. We try to give hope. But we know that for all our efforts and persistence, most of the poor unfortunates who fall into the grasp of the law will end up miserable for one reason or another.

So . . . should you become a criminal defense lawyer[?] Absolutely. Not because you're going to get rich. Not because you will become part of a system that imparts justice and fairness to our society. These are pipe dreams. Myths.

Do it because if you don't, then the game is over. If young men and women who still believe in doing the right thing for the right reason decide that there is no place for them in the law, then we have lost the war and succumbed to the lowest common denominator in our society.

Judicial Elections

I am the campaign treasurer for Shawna Reagin, who is running as a Democrat for the 176th District Court of Harris County, Texas. Today I learned that the incumbent judge (who really has to go) now has a Republican opponent in the primary: Michelle Satarelli (Oncken). Michelle is a Harris County ADA who is married to a defense lawyer; she had the spine, when she was the chief prosecutor in the 176th, to stand up publicly to the judge's illegal policies. Michelle will be a more difficult opponent to beat in the general election than the incumbent, but that's just fine with me. Anything would be better than the present state of affairs.

A couple of Good Moments, and One Less Good

First, only the criminal defense lawyers will truly appreciate this setup (it actually happened today in trial):

Prosecutor (to a defense punishment witness, before the jury): D would benefit from college classes, wouldn't he?
Witness: Yes, I suppose he would.
Prosecutor: And did you know that inmates can take college classes in prison?
Witness: Well, I guess they can, but it's not the same as taking them on the outside.
Prosecutor: Pass the witness.

Second, the complainant's mama got on the witness stand today in the State's punishment case. Unprompted by the State (of course) she testified that she had seen our clients' family suffering. She thanked the jury for finding our clients guilty, she said, but she didn't want any more suffering. The prosecutor steered her away from that topic toward other things that might enrage the jury.

When my turn came to cross-examine here, I very gently steered her back toward the topic. Then I asked her, "are you asking the jury to put these two young men on probation?"

"Yes." was her answer.

The government also put the investigating detective, Sergeant Brian Harris, back on the stand for the punishment phase. Unlike last Wednesday, I neglected the Motorcycle Rule and he took the opportunity to argue the State's case for them. (Brian: it won't happen again, I promise.) The judge wouldn't let me correct his misbehavior myself, wanting me instead to object to the nonresponsiveness of his answers. I ask you: where's the sport in that?

Bad Sports.

In the end, after a hard-fought battle, the jury gave Tyrone's and my clients 10 years and recommended probation. So they'll be on probation. So, after yesterday's highs and lows, we put this one solidly in the "win" column.

I always shake my adversaries' hands and tell them "nice work" before the jury returns with its verdict. Then I'm gracious in victory or defeat.

Prosecutors, however? Not such good sports.

Jury No Longer Out.

Two guilty verdicts. An acquittal would have been a victory; a mistrial would have been a victory; probation would be a victory too. These two young men don't need to go to prison. It's tragic that the complainant lost his life. It sucks, it's unjust, it's unfair, and nothing this jury does can possibly make it any less tragic, or make it suck any less. They can, however, make it more tragic by taking two more young men away from their families.

No time to lose heart now: tomorrow we put on a punishment case and

. . . never give in, never give in, never, never, never, never-in nothing, great or small, large or petty - never give in except to convictions of honour and good sense.

W. Churchill

Jury is Still Out

They came back at 8:30 this morning. At about 2:30 they sent out a note indicating that they were having difficulty agreeing and expected to be unable to agree. They indicated that there were eight people in favor of conviction, one strongly in favor of acquittal, one favoring acquittal but open to further discussion, and two undecided (the good news is that this jury, if it convicts our clients, will have to decide punishment as well, and probation is within the punishment range). It's 5:28 now; yesterday they knocked off at 5:30.

Anne: You know what'd be a good idea? A jury consultant whose only job was to wait in the trial lawyer's place for the jury to return with a verdict. I would definitely pay for that.

Federal Sex Offender Registration

Under the Sex Offender Registration and Notification Act (SORNA), a "sex offense" includes (among other things) any "criminal offense that has an element involving a sexual act or sexual contact with another." 18 U.S.C. § 16911(5)(a). (Question: does "with another" modify "sexual act" or only "sexual contact"?)

A "sex offender" is a person who was convicted of a sex offense. 18 U.S.C. §16911(1). (Question: will the states' definitions of "conviction" govern, as in the federal firearms law, or will a deferred adjudication probation count as a conviction?)

All sex offenders must register, 18 U.S.C. §16913(1), providing at least the following information (18 U.S.C. §16914(a)):

1. The name of the sex offender (including any alias used by the individual).
2. The Social Security number of the sex offender.
3. The address of each residence at which the sex offender resides or will reside.
4. The name and address of any place where the sex offender is an employee or will be an employee.
5. The name and address of any place where the sex offender is a student or will be a student.
6. The license plate number and a description of any vehicle owned or operated by the sex offender.

The duty to register lasts for at least ten years for the least serious ("Tier I") sex offenses, and for up to life for the most serious ("Tier III") sex offenses 18 U.S.C. §16915.

Once an offender registers, the jurisdiction with which he has registered must:

make available on the Internet, in a manner that is readily accessible to all jurisdictions and to the public, [most] information about each sex offender in the registry. The jurisdiction shall maintain the Internet site in a manner that will permit the public to obtain relevant information for each sex offender by a single query for any given zip code or geographic radius set by the user. The jurisdiction shall also include in the design of its Internet site all field search capabilities needed for full participation in the Dru Sjodin National Sex Offender Public Website and shall participate in that website as provided by the Attorney General.

18 U.S.C. §16918.

The mentioned "Dru Sjodin National Sex Offender Public Website" "shall include relevant information for each sex offender and other person listed on a jurisdiction's Internet site. The Website shall allow the public to obtain relevant information for each sex offender by a single query for any given zip code or geographical radius set by the user." 18 U.S.C. §16920.

The federal penalty for failing to register as a sex offender is up to ten years' imprisonment.

Welcome to the brave new world of federal sex offender registration.

Jury Watch

Our jury went home for the night at 5:30. In my closing argument I had suggested that they ask for twelve copies of the charge (I don't remember who I stole that idea from); their first request after retiring to the jury room was to ask for twelve copies of the charge; their second was to ask for the evidence; the third (a couple of hours later) was to ask to go home.

They'll be back tomorrow at 8:30. I don't have to be there as long as I'm reachable. I have a federal sentencing at 9:00, then I'll go back to state court to attend to some of my clients whom I've neglected lately and continue the vigil with my client, Tyrone's client, and their family and friends. When you're in trouble, there's nothing more valuable than good friends and family.

(For the last nine days I've been waking up without an alarm clock at 5:30 a.m. Tonight I hope for some serious sleep.)

Jury is Out

The jury is out on our murder case. Final arguments went well -- I didn't see much that the prosecutor argued that Tyrone Moncriffe and I hadn't already covered. I may have said this before, but it's good to try a case with someone who I can trust to do a great job without any supervision.

So now we wait.

Hit Me Again, Baby!

Today while cross-examining my client, the prosecutor took two verbal swings at me personally. He suggested that I was responsible for my client's account of the facts and suggested that I was calling the state's witnesses liars.

What does that mean?

The Things We Carry

For trial, I have a collapsible wheeled file box (like one of these, but I have a cheap generic one from OfficeMaxDepot). When I'm not in trial mode, the box folds up and stores under the couch in my office. When I am in trial mode, the box expands to about 13.5"W X 12.5"L X 13"D -- big enough to hold several large 3-ring binders, my code book, my laptop and its charger brick, a couple of low-carb meal replacement bars, and a plastic box for small supplies.

In the smaller box you'll generally find:

• Exhibit stickers.
• Highlighters.
• Markers.
• Pens.
• DVI to VGA converter (for hooking my MacBook Pro to the courtroom display).
• Listerine breath strips.
• Verizon Wireless Broadband adaptor.
• Hand wipes.
• Post-it notes.

What do you carry with you to trial?

Cops Say the Nicest Things

"When I heard that you had been hired, I knew this was going to be a really tough case."

The Motorcycle Rule of Cross-Examination

When cross-examining an unknown witness, you must observe the Motorcycle Rule. This is the rule that kept me alive through years of riding a motorcycle in Houston traffic (for a while, I had no usable car, and rode everywhere). The Motorcycle Rule, for those not familiar with it, is this:

They are all out to get you.

On a motorcycle, that means that you remain vigilant all of the time, and never assume that the other driver is going to do anything other than try to hit you. Pretending that the other driver is trying to hit you, you make it impossible for him to do so (or as near impossible as you can while still making your way to your destination.
In the courtroom, the Motorcycle Rule means the same thing: you make it as near impossible as you can for the witness to hurt you, while still telling your story to the jury.
An illustration: today I cross-examined a witness in my self-defense case. After the cross-examination, the court took a break and I visited with the detective. I told him that I had enjoyed it, and he said it was "interesting" and that he'd been looking for me to "open the door" to certain opinions he had -- for me to give him reason to expand his testimony beyond that which he had been permitted to say on direct. I had followed the Motorcycle Rule, though, and had brought out my client's story through the detective without opening the door giving him an opportunity to make things worse.
Until they demonstrate otherwise, they are all out to get you.

Letter or Spirit?

[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]

When defending a client, my general style is to go riiiggghhhtttt up to the line and lean waaaaaayyyyyyy over. In one white-collar trial once, a long time ago, I asked a question of a witness today that the prosecutor thought crossed over the line. The prosecutor, when the jury was sent out, started talking at me about how I'd just "made my reputation." "This is not the last case we'll have together, you know that," he said.

(I marked it down in my calendar: after practicing law for years, at 4:30 on a Thursday afternoon, I had made my reputation with a single eight-word question.)

Why would that prosecutor expect me to do anything other than make putting my client in prison as difficult as possible? If I had been representing him, would he have wanted me to ask that particular question? Hell, yes (and for the same reasons that it so incensed him)! But prosecutorial sanctimony (a trait necessary to that field of the profession) wins out, and that day hadn't been going very well for him anyway, so he got mad. (It would have helped my client more if it had happened at the beginning of the day instead of the end.)

Now, I'm not going to violate my personal ethics for my clients. I'm not going to break the law for my clients. I'm not going to disregard a lawful court order for my clients. Beyond that, though, nobody who's trying to put my client in prison is going to get any breaks from me on a case unless the benefit to that client outweighs the detriment. I would never trade away my zealous advocacy for a client for the possibility of a better result or an easier time on some future case or a better reputation in the DA's office.

In fairness to the prosecutor (because I'm a fair guy), I think he thought that I was violating at least the spirit of a motion in limine, if not its letter. But I was within the letter of the order, and such orders don't have spirit; they have to be specific to be enforceable. If you're trying to hide the ball from the jury, and you get the judge to tell me not to talk about baseball games or balls, don't be too surprised when I start talking about bats or gloves.

Am I wrong?

A Much Better Day

[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]

Three of the State's civilian witnesses testified today. They didn't do us much harm -- they actually disproved a chunk of the prosecutor's opening statement, and proved a good chunk of our opening for us.

One witness testified on direct that she saw a guy with a handgun, and then testified on cross that she didn't really see that guy with a gun. She also testified on cross first that the car stopped after making a u-turn, and then that it didnt stop, but just slowed way down.

Tomorrow, more cross -- probably some cops, crime scene officers, and so forth.

The fat lady probably will not have sung until three of my client's guests that night (the three who were awake and are available for trial) are done on the stand. Until their testimony, I expect fairly smooth sailing.

Trial Fuel

We're taking a lunch break from my self-defense trial. When I'm in trial (that's "on trial" for you New Yorkers), I eat low-carb meal replacement bars and drink lots of water. The bars are easy to carry in my trial box, they don't go bad, they don't make my blood sugar spike and crash in the afternoon (so I stay sharp), and they're fairly edible.

What about you? Leave me a comment and let me know how you keep your engines running during trial.

Not My Finest Day in Court

We got a jury picked on the self-defense case. I got to go dead last, after a) the judge; b) the prosecutor; and c) counsel for my codefendant. We started at about 11, and I got up to talk with the panel at about 3:30.

I was tired.

The panel was tired.

The law is muddled.

It was not pretty.

Picking a Jury

I'm in trial today, picking a jury in Houston on the case that was last set for trial on October 1st. (I'm actually sitting in the courtroom during the lunch break between the judge's voir dire and the State's.

My client and his brother are accused of murder; they thought they were about to be victims of a drive-by shooting, so when they heard gunshots they started shooting as well.

The brother is represented by a lawyer whom I trust absolutely, which takes a lot of pressure off me -- I won't coast (though I probably could), but I don't have to worry about fighting cocounsel as well as the State. The third and fourth codefendants are fugitives (one ran after the last trial setting), which helps as well -- the guilty guys (the ones who started the shooting) are nowhere to be found.

Compassion Revisited

One commentator to Scott Greenfield's recent post, The Battle Lines are Drawn, wrote:

If you are worrying about harm to others you are in the wrong line of work. Your sole duty is a duty of zealous advocacy to the client. We don't have a duty to do justice. Harming others is part of the job if it serves the client.

While I agree withe the last two sentences -- we don't have a duty to do justice (even if we knew what justice was, we wouldn't have a duty to do it), and harming others to help our clients is occasionally part of the job -- I couldn't disagree more with the overarching sentiment. I've written on several occasions about how compassion is a part of the profession; criminal defense lawyers are compassionate -- they have to be to take care of the people whom the rest of society condemns.

The commentator suggests that there is something wrong with a criminal defense lawyer feeling compassion for people other than his clients.

To the contrary, a lawyer who truly feels compassion for his client is going to feel compassion for others as well.

I don't want to hurt anyone else; I try to avoid hurting others in my practice. Generally, by good fortune and skillful practice, I succeed. Sometimes, however, it is inevitable that someone will be hurt. When it is inevitable or necessary I accept it, but I regret it.

The federal government has created a system in which people can benefit themselves by harming each other. It's an unethical, unjust system, and it's neither necessary nor inevitable. We're not, in the main, talking about getting rapists or arsonists off the street; we're talking about putting people in prison for drug crimes, for commerce. This is one of the great evils of our time.

When people let the government pit them against each other, they give up power (freedom) to the government. Criminal defense lawyers, who are supposed to be fighting for freedom, become the government's accomplices in usurping freedom. I'm looking at the big picture, and, with all due respect to those lawyers who choose otherwise, I decline to participate.

Vote Early, Vote Often

Our friend Scott Greenfield's Simple Justice blog is nominated for Best Law Blog in the 2007 weblog awards. He's competing against much more general blogs with broader readership. Go vote for Scott and SJ; you can do so once every 24 hours. A vote for Simple Justice is. . . a vote for Simple Justice.

The Ethics of Snitching 2

Norm Pattis writes about lawyers who won't help people snitch (hat tip to Scott Greenfield); he draws an analogy to the practice of medicine:

I would not consider myself well served by my doctor if he were to announce that a life-saving treatment was available, but that he would not prescribe it because, well, it offends his sensibilities. I want options from my doctor. I want intelligent choices and an assessment of the risks and benefits of my options. Perhaps limping through the rest of my life with one leg would be awkward; but I might prefer that course to death. The choice is mine.

The doctor analogy is interesting because doctors are seldom presented with situations in which they might heal their patients by making other people sick. When they are faced with such situations, they generally don't proceed without consent from the person who will be injured (consider, for example, bone marrow transplants).

When we defenders help our clients cooperate, we may improve their lives, but we make people's lives worse as a direct result of our work. The problem is not that we are helping the government, but that we are hurting other people; despite the fact that the law smiles on defendants who make other people's lives worse, we may refuse to participate.

The truth is that we are sometimes called upon to choose between our own interests and our clients'. If a client wants you to knowingly present false testimony, what do you do? If a client wants you to whack a witness, what do you do? If a client wants you to help him flee before trial, what do you do? Even though perjury, murder, or flight might be in the client's best interest, you wouldn't help him in those ways.

"But," you might say, "those things are illegal."

So what? Contrary to popular belief, we don't give up our souls when we become lawyers. We don't obligate ourselves to permit the government to define right and wrong for us. Some illegal things are ethical, and some legal things are unethical. If we feel something is unethical, we can refuse to do it whether the government approves of it or not.

Two hypotheticals:

First, suppose that the government passes a law saying that a criminal defendant might, by killing a person whom the government deems to have committed a crime, shorten his own sentence. Suppose further that the law provides that a killing in such circumstances is justified. Will you help a client legally murder a drug dealer? Or might you put your own ethics -- your own "vision of yourself" -- first and decline?

Suppose instead that you are opposed to the death penalty, and that a client facing prison has an opportunity, in exchange for the possibility of a lighter sentence, to testify in a trial in which the government seeks to kill a person. Will you help him do so? Or might you put your ethics first and decline to help the government put a person to death?

If your answer is that in one of those scenarios you might choose your own ethics over your client's best interest, but that you wouldn't otherwise refuse to help an accused person cooperate with the government, then we are haggling about the price.

Crossing the Doctor -- Gathering Your Pebbles

So you chose a narrow field of inquiry on which to cross-examine the State's expert, and you gathered a list of journal articles that might relate to the narrow field of inquiry. What next?

Find a good medical library. Any medical school should have a a library that has most of the publications we'll be looking for; if you don't live anywhere near a medical school or the school doesn't have a good collection of journals, there are services that permit you to order the articles over the internet. There are two disadvantages to doing so: first, it's expensive; and second, you're not likely to get the articles in the exact form that will be most useful on cross-examination.

Before going to the library, you may be able to get a good idea of what they do and don't have by looking at their online catalog. Here, for example, is the Texas Medical Center Library catalog. While you're at it, do a search for the general topic of the doctor's practice so that you know where to find the textbooks on the subject (for example, pediatrics in the WS 100s). Remembering that you're not going to become an expert on the doctor's broad field, you may find that the textbooks provide some ammunition in addition to that contained in the journal articles. Also, you may need to refer to a basic text to put some of the concepts in the articles into context. (A certain measure of scientific and technical curiosity, along with the appropriate dictionary, is vital to the process of cross-examining an expert witness.)

When you get to the library, scope out the copier situation. If you have to buy a copier card, do that before you start gathering your articles. You don't want to get a pile of books in your arms only to discover that you don't have the currency required to shoot copies.

You'll have some articles that, judging from their abstracts, are must-reads and you'll have some that are merely possibilities. Skim the latter at the library; some you'll be able to discard. If you're not certain whether something is helpful, shoot a copy of it.

When you copy an article, make a copy of the journal's cover, a copy of the table of contents page, and a copy of the entire article itself. The journal's cover will be vital to the first part of your cross-examination of the doctor; thus a downloaded copy of the article will be less useful than a photocopy from the library.

While you're there, skim the textbooks on the general subject. If they contain sections that cover your narrow field of inquiry, shoot copies of them as well (the cover of the textbook, the copyright page showing the publication date, the table of contents page showing the section you want, and that section).

Coming soon: what do I do with all of these copies?

Terry MacCarthy in Plano

The Center for American and International Law in Plano, Texas is presenting a cross-examination and impeachment seminar for the criminal defense bar December 13-14, 2007. Terry MacCarthy is the lead speaker.

I recommend this seminar highly. Most of us could use more cross-examination training, and Terry is one of the best teachers. I would plan to attend if I weren't going to be in Paris (France, not Texas).

If you can't attend the seminar, order the Terry MacCarthy cross-examination CDs.

Doing the Right Thing in Collin County

New York Criminal Lawyer Scott Greenfield, always on the ball, brings us news out of Texas:

In Collin County (criminal defense lawyers' Thunderdome), criminal defense lawyer Chris Hoover, faced with a judge who refused to recuse himself or to refer the recusal motion to the presiding judge (as required by statute), deliberately refused to participate in his client's trial.

Chris moved for a continuance (denied); he announced "not ready"; he didn't enter a plea; he didn't make an opening statement; he didn't cross-examine a single witness; he didn't make a single objection; he didn't offer a defense. The court announced that the defense rested, and then recessed for the day (at 1:00 in the afternoon). During the recess, Chris moved for a continuance based on the absence of an expert witness, but didn't get a ruling on the motion. He moved for a directed verdict (denied). The trial court offered him the chance to reopen the evidence, and Chris declined, explaining that he was still not ready. The jury convicted Chris's client and the judge discharged the jury. The judge set punishment at 90 days in jail, probated the sentence, and Chris pointed out: "At one time you pronounced the sentence at ninety days confinement, probated for two years. And then you said ninety days, probated for eighteen months."

On direct appeal, Texas's Fifth Court of Appeals didn't see any problem with Chris's client being convicted this way:

Although defense counsel at various times stated he was 'not ready,' 'unprepared,' and 'could not effectively represent his client,' appellant points to no specific errors of counsel that prejudiced appellant, except for the lack of cross-examination. Often, [however,] the decision to not cross-examine a witness is the result of wisdom acquired by experience in the combat of trial.

Moreover, on the second day of trial, defense counsel did participate. Counsel moved for an instructed verdict due to the State's failure to carry its burden of proof. He cited cases to the court and provided the court with copies of those cases. Counsel also pointed out to the trial court its mistake in sentencing which would have adversely affected his client. In light of the evidence against his client for which he may have had no defense, notwithstanding his comments, defense counsel's actions could have been the product of a reasonable tactical judgment. Without a fully developed record, we could only speculate as to counsel's strategy. This we refuse to do.

Chris's client filed a petition for discretionary review to the Court of Criminal Appeals (Texas's highest criminal court) with the help of a lawyer to whom Chris had referred him.

The Court of Criminal Appeals found Chris ineffective (opinion -- Judge Keller dissented) resuming prejudice under U.S. v. Cronic because Chris entirely failed to subject the prosecution's case to meaningful adversarial testing so that there was a constructive denial of the assistance of counsel altogethe.:

By his refusal to participate, defense counsel abandoned his role as advocate for the defense and caused the trial to lose its character as a confrontation between adversaries. Prejudice to the defense is legally presumed.

. . . .

We are not persuaded by the State's argument that holding as we do today will encourage other defense counsel to engage in the conduct condemned. Under the Disciplinary Rules of Professional Conduct, every defense counsel owes to his client his zealousness, competence, and diligence. A defense counsel failing in those obligations opens himself up to disciplinary proceedings as well as a civil suit for malpractice. Furthermore, a trial court can meet the threat of attorney non-participation by ascertaining whether the defendant understands the implications and probable consequences of his counsel's conduct and whether the defendant is knowingly, intelligently, and voluntarily waiving his right to the effective assistance of counsel.

We sustain appellant's grounds for review, reverse the judgment of the court of appeals, and remand the case to the trial court for further proceedings consistent with this opinion.

Chris's client gets a new trial, but all is not champagne and roses for Chris:

We also direct the Clerk of this Court to send a copy of this opinion to the Office of the Chief Disciplinary Counsel of the State Bar of Texas, so that officials therein may begin such investigation and take such action as they may deem appropriate.

The Collin County DA doesn't see it this way (New York Lawyer article - free but registration required), the courts don't see it this way, and the State Bar probably won't see it that way, but by sticking his own neck out to stop the train when he thought his client was being railroaded, Chris acted in the highest traditions of the criminal defense bar.

Bravo, Chris!