Le Procureur Soleil de la Republique?

KHOU-TV put up PDFs of some of Harris County District Attorney Chuck Rosenthal's emails here and here. It turns out that Chuck uses (or was using) the email address "l'etat@dao.hctx.net". How very Louis XIV.

Government's Talents

The state is bad -- wasteful, inefficient, and incompetent -- at almost everything it tries to do. There are two exceptions that I can think of:

• First, making war, which is the application of violence against the citizens of another state.

• Second, prosecuting crimes, which is the application of violence against its own citizens.

If it doesn't have to do with the use or threatened use of force, government stinks at it. (Whether government should be in the business of doing things that it does badly is a separate question. I would say that if it's worth doing, it's worth doing badly.)

Chuck's Apology

This came out today, in response to the events I discussed here:

For Immediate Release:

Contact: Chuck Rosenthal
Friday, December 28, 2007
713-755-5810

Statement by Chuck Rosenthal

Recently some Harris County District Attorney inner office emails have been released in the media.

I understand that I have said some things that have caused pain and difficulty for my family, my coworkers and friends. I deeply regret having said those things. Moreover, I am sorry for the problems I have caused anyone.

I also understand that sometimes things happen for a purpose. This event has served as a wake-up call to me to get my house in order both literally and figuratively.

Charles A. “Chuck” Rosenthal
Harris County District Attorney

I commend Chuck for owning up (not the best apology, but not bad for a politician), and hope that "get my house in order" means "stop punishing others for violating morals that even I (being, after all, human) can't follow" rather than "redouble my efforts to hold myself to the moral standards that I impose on others less fortunate."

(By the way, "literally"? Doesn't "get my house in order" literally mean "tidy up my living space"? Also by the way, might they have been interoffice emails rather than inner office? And, while I'm picking nits, the parallelism in the second paragraph is incomplete -- should be "my friends". Mayhap Chuck was kissing his secretary behind her right ear while dictating the letter?)

Your Tax Dollars at Waste

Here's a little treasure, HR 1955, The Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, which passed the House of Representatives in October "under a suspension of the rules to cut debate short and pass the bill." (PDF.)

Others see it as sinister; I don't . . . yet. It would merely create a "National Commission on the Prevention of Violent Radicalization and Homegrown Terrorism" (yawn) and a "Center of Excellence for the Study of Violent Radicalization and Homegrown Terrorism in the United States" (snore).

Here's the highlight, as far as I'm concerned.

The term "homegrown terrorism" means the use, planned use, or threatened use of force or violence by a group or individual born, raised, or based and operating primarily within the United States or any possession of the United States to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives.

So when the State of Texas (a group operating primarily within the United States) threatens to put murderers to death (the threatened use of violence) so that potential murderers (a segment of the civilian population of the United States) will not murder people (in furtherance of the social objective of having fewer murders), it's committing homegrown terrorism.

Moreover, since every penal law is backed by the threatened use of force or violence and is intended to coerce or intimidate civilians in furtherance of political or social objectives (less crime), everybody on the government's side in a criminal case becomes a party to homegrown terrorism. I think that's neat.

Neater: it would also make every athlete in every contact sport a homegrown terrorist. Probably not the result that Congress intended, but as far as I know nobody ever accused Congress of being smart.

David Tarrell is . . .

Criminal Defense Lawyer of the Year

Lawyers Appreciate . . . The U.S. Constitution

My friend Scott Greenfield has tagged me for the Second Annual Lawyers Appreciate Meme, which started at Life at the Bar.

I appreciate the U.S. Constitution.

The Founders knew -- from direct experience -- that government is a threat to freedom. The saw that government was necessary, though, or at least inevitable. So, rather than leave the form of the government to chance, they created one, making it as weak as they thought it could be while still performing its fundamental duties, and wrote down how it was supposed to work. The Constitution is the leash the Founders put on the beast of Government. (Not a strong enough metaphor . . . .) It's the pentacle the Founders drew on the floor before summoning the demon of Government.

Not all lawyers appreciate the U.S. Constitution. For every lawyer arguing for an interpretation of the Constitution that would preserve human freedom, there is a lawyer on the other side arguing for an interpretation that would diminish human freedom to the benefit of governmental power.

The meme says I'm supposed to tag three people. So here are three who, I know, appreciate the U.S. Constitution:

Robert Guest (I Was the State)

Stephen Gustitis (Texas Criminal Defense Lawyer)

Jamie Spencer (Austin Criminal Defense)

Okay, but why the RIGHT ear?

I am not one inclined to judge the morals of others. Who a prosecutor is lusting after (committing "adultery in his heart", as Jimmy Carter might say) is not something I consider to be my business, or anyone else's, except . . .

Except that the prosecutor in question is the individual who orders the DA's office's policy not to agree to less than 10 days in jail for any person (hooker, hustler, or john) charged with prostitution. The prosecutor in question? Elected Harris County District Attorney Chuck Rosenthal (who, incidentally, describes the path to lethal injection as "the pipeline").

According to an article by the Houston Chronicle's Brian Rogers, Chuck is fighting in federal court to keep secret his emails (from his county email account, which would make them generally subject to the Texas Public Information Act), in which he kanoodles virtually with his executive secretary, with whom he had an affair in the 1980s. (Chuck says that he told his current wife, whom he married in 1991, about the affair before hiring Stevens as his executive assistant when he took office in 2000.)

"While the 51 e-mails between the two contain the phrase 'I love you' more than a dozen times," the Chronicle writes, "and Rosenthal asks Stevens to let him hold her, the messages are not explicit." An example in the Chronicle article: "The very next time I see you, I want to kiss you behind your right ear."

Morals aren't on my beat. Hypocrisy, however, is. When the prosecutor who has made himself and his office responsible for enforcing the morals of consenting adults (Rosenthal is also the prosecutor who, arguing the constitutionality of Texas's sodomy statute in the Supreme Court, was "outclassed") is publicly revealed to be no more moral than the rest of us (including those he persecutes), I smell karma in the air. It smells like . . . victory.

(See also: Chuck's Apology and Le Procureur Soleil de la Republique?)

Practical Blawgosphere Wiki

Don't forget to check out the Blawg Council Wiki and add to the catalog of blawgs. Someone had the right idea with CrimLaw -- he added it to the catalog page for prosecutors' blawgs and created a page describing it (though, now that I look at it, the creation of a page describing it may have been a happy accident -- the PHPWiki software interprets a word with a capital letter within it as a link to a new wiki page).

Criminal Defense Lawyer of the Year

Scott Greenfield is taking nominations for Criminal Defense Lawyer of the Year:

This will not be a Beauty Pageant for the usual suspects, the big name lawyers in the high-profile cases, but rather the unsung heroes in the trenches, doing the dirty work that flies under the radar.

Please nominate a criminal defense lawyer who has done something to deserve recognition. Please let us know what it is that he or she has done. Do not feel constrained to limit yourself to lawyers who made headlines. The winner will be judged by the worth of his or her efforts in the scheme of our duty to zealously represent those accused of crimes.

It's about time that we recognize the extraordinary accomplishments of our brethren in the trenches. Now it's up to you to submit your nomination, via the comments, and acknowledge the exceptional work done every day by men and women who have never made the front page of the newspaper. Let's do it.

I agree with Scott: it's about time. I'll be thinking about narrowing the list of trench lawyers who I know to have done extraordinary work this year, so that I can nominate a few for Scott.

Why Try the Unwinnable?

I closed yesterday's post on justice and winning by asking, "Sometimes (rarely, but sometimes) we try cases because we have nothing to lose: the inevitable result of a trial is no worse than the result of a plea. If we have no hope of winning, why do we try those cases?"

We're not trying these cases for justice, and we're not trying them to win (though arguably there's always a chance that the prosecutor will screw something up and we'll win, which is something to hope for). Sometimes the goal is just to make it costly and difficult for the government to put the client in a box.

When we try an unwinnable case, not only do we make it harder for the government to box that client, but we also tie up the government's resources, making it harder for the government to put other humans in boxes.

Plea Plead Pleaded Pled? Please!

My fellow blawgers:

When a person admits her guilt in court, she does not plea guilty. She pleads guilty, entering a guilty plea. "Plead" is a verb. "Plea" is a noun.

After a person has admitted his guilt in court, he has not plead (or "pleaed") guilty. The past tense of "to plead" is "pleaded" or "pled."

Logical Extreme

Something that should cheer those who hold that "The Sun rises and falls on the sole question of the client's interest" and feel that "if serving the client harms another, so be it" . . . .

Here, if the federal government is to be believed, is a lawyer who doesn't just pay lip service to the notion that the client's interests are paramount, but truly "without hestitation and in a moment . . . would sacrifice another for the sake of [his] client."

Justice?

Gideon wrote:

Maybe I’m naive, but I thought it - what we do, this side and the other - was about justice. Righting wrongs. Then why, for some, is it about winning and losing?

What this side does is different than what the other side does. The other side has (but of course doesn't always follow) an ethical and legal mandate to seek justice. We have an ethical and constitutional mandate to zealously defend our clients.

The nature of justice is something that I spend a lot of time meditating. There are different sorts of justice. For example, there is restorative justice (making things right) and retributive justice (evening the score). Cleaving justice on another plane, there is substantive justice (making things right or evening the score) and procedural justice (regardless of the result, making sure that fair rules are followed).

If you accept that procedural justice is justice, then yes, criminal defense is often about justice. Part of our job is to seek procedural justice by making sure that fair rules are followed. When I say "fair rules" I mean rules fair to our clients. The other side, being the government, is not constitutionally entitled to fairness. Nor is the other side, being a non-living creature, ethically or morally entitled to fairness. So we seek procedural justice and, if we get it, our clients get all possible breaks.

Now, Young Shawn Matlock asks this question: "How many criminal defendants who hire a defense attorney will be happy being led into custody following a loss at trial knowing that justice was done?" and answers it: "None. That's how many." I disagree with Shawn's answer. I have had many clients unhappy with me for having helped them execute their decision to plead guilty, and many clients whose cases have been dismissed as a result of my hard work have acted as though the dismissals were nothing more than their due, but almost every client whose case I have tried has been happy with my representation. Lots of defendants have never had anybody fight for them before; procedural justice feels good to them.

But most (non-defending) people don't accept procedural justice as justice. In the criminal courthouse, it appears to most that the only justice is retribution. When rules fair to the accused are followed and the accused goes free, they call it a "technicality."

In a criminal case, the government is trying to put the accused in a box, whether real (coffin, prison cell) or metaphorical (probation, sex offender registration). The criminal defense lawyer is trying to prevent the government from putting the accused in a box. Sometimes nothing (not even a motion to change the facts) will keep the client out of a box. On those occasions the defender tries to make the box as big as possible (a prison cell instead of a coffin, probation instead of a prison cell, shorter probation instead of longer).

The people trying to put our clients into boxes think they know what substantive justice is. In fact, many of them work for a government agency known (in Newspeak) as the Department of Justice. The Department's official policy (holy writ to official woman) is to "charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case." So federal prosecutors must, according to law, seek justice, but must, according to policy, seek "the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence." In DOJ-world, substantive justice is what Congress and the Guidelines Commission say it is.

(A slight digression: the "charge the most serious offense" policy was a contribution to the American criminal "justice" system by proud evangelical Christian John Ashcroft; if Jesus had followed this policy, though, he would most assuredly have cast the first stone.)

Many of us who are forced by the lack of official policies to think for ourselves recognize that nobody -- including those charged with seeking justice -- has the slightest idea what constitutes substantive justice. We don't know what substantive justice is: we don't know what size boxes our clients deserve or, often, whether they deserve boxes at all. Not being omniscient, we can't know what substantive justice is. It's not our job to try to figure out what substantive justice would be, and it's damn sure not our job to seek it.

What about "winning"? Norm Pattis rejects the concept in favor of advancing his clients' interest (a definitional quibble, in my view; Norm views the term "winning" as part of the sports metaphor of trial that he rejects, but the concept of "winning" isn't really "drawn from sports"); Malum ignores it in favor of filling in the blanks in the government's poorly-written story (a nice way of putting it); Scott and Stephen accept it implicitly (Scott writes that "winning often has little to do with justice" and Stephen discusses "the winning argument"); and Matlock adopts it wholeheartedly.

"Winning" is a vague term. An ethical prosecutor might consider an acquittal a win, and a defense lawyer might consider a conviction a win. By "winning" I doubt that Scott or Stephen or Matlock means anything other than "getting the best possible result for the client." I'm okay with defense lawyers seeking to "win" as long as winning and losing refer only to the client's interests, and not to the lawyer's ego. Sometimes, though, the goal is not to win because winning is impossible. Sometimes the result of a trial is a foregone conclusion (though we usually, in the grips of trial psychosis, convince ourselves otherwise). Sometimes (rarely, but sometimes) we try cases because we have nothing to lose: the inevitable result of a trial is no worse than the result of a plea.

If we have no hope of winning, why do we try those cases? I have an idea about that; more tomorrow.

Practical Blawgosphere Wiki

Several denizens of the practical blawgosphere have started a wiki for the practical blawgers. Please check it out, and begin editing it to add other practical blawgs, and other fields of practice, to the catalog. Editing instructions are here.

I'm Back

Bennett & Bennett are back from seven days in Paris.

A few of the things the French do exceedingly well:

• Food and drink.
• Subterranean transport.
• Historic preservation.
• Clothing.

Something the French do less well:

• Technology.

While the hotel at which we stayed in the 7th Arrondissement provided, in theory, a high-speed internet connection, that mostly-theoretical connection didn't work well enough to stay online for long enough to do more than just check email. And while I had planned to have GMail forward emails from our answering service to SMS on my French cellphone, I discovered that this was a non-trivial undertaking, and that my French -- limited mostly to cognate words of Spanish -- was not up to the task of explaining what I wanted to the cellco's customer service reps. Even in league with the hotel's concierge and the sales guy at the cellco store across the street, I was unable to make the email-to-SMS connection.

No matter, though. I needed a week away from constant and instantaneous communication with clients, potential clients, and everyone else who needs my help from time to time. It was, as I noted before, a well-deserved break; I recommend it highly.

I did check email a couple of times a day, and had young criminal defense lawyer extraordinaire Sarah Wood covering for me, so the practice didn't self-destruct. But, with wine to drink and museums to tour, I couldn't be bothered to blog much, or even to keep up with happenings in the practical blawgosphere. So I was pleasantly surprised on my return to find that Gideon's post about whether it's about justice or winning had triggered some discussion of one of my favorite topics: the nature of the criminal "justice" system, especially as it affects the players' roles and responsibilities. I'll have a good deal more to say on that a little later today.

Until then, here are the contributors to the discussion so far: Malum, Norm Pattis , Stephen Gustitis , Scott Greenfield , and Matlock (thanks to Scott for the links); and here are some of my earlier posts related, generally, to the topic: A Truly Compassionate Profession Redux, Different Sorts of Justice, Who Are You Helping and Who Are You Hurting?, Right v. Legal -- an Example, Right v. Wrong, Vanity, and Unimpressive.

On Vacation

Defending People is taking a brief well-deserved break. I will not post much, and may not post at all, in the next seven days.

Offshore My Job? Not Bloody Likely!

Scott Greenfield is having a conversation (of sorts) with Rahul Jindal about legal outsourcing. Rahul, who is in Noida (a suburb of Delhi) is an advocate of LPO -- variously, "Legal Process Outsourcing," "Legal Process Offshoring," or "Legal Services Offshoring."

Mention of Delhi drew my attention because that's one of my hometowns. Until I was 20 or so, the address at which I had lived at the longest stretch was on Jor Bagh Road in New Delhi. Back then India was a lot farther from the U.S. than it is now. There was no internet, telephone connections were spotty, and mail to or from the States took two weeks. Now

Because I'm an old Delhi-wallah, I'm interested in the idea of legal process offshoring. India has a population over 1.1 billion. There are lots of college-educated English-speakers (including, allegedly, a million lawyers -- about the same as in the U.S.), the economy is still in the process of spooling up after 40-plus years of parochial protectionism, and the overall cost of living is low. Finally, India's legal system, like America's, is based on the English common law.

All of this comes together to make India a good place to hire knowledge workers. My brother sent some photos off to ScanCafe in India to be scanned to disk. I use iDictate to transcribe audio files; I'm not certain that the work is done in India, but it might as well be. The knowledge workers who scan photos and transcribe audio files are, without intensive training, capable of doing many things that lawyers do in the U.S.: document review, for example. The work of a biglaw first-year associate could clearly be sent offshore to India, as could the work of a contract attorney. (There are logistical and privilege matters to resolve, of course.)

Lots of India's 1.1 billion people are really, really smart. If the curve is the same in India as in the U.S., India may have 110 million people with an IQ over 150. These people can be trained up to do almost anything they want to do. So if the LPOs are hiring smart Indian lawyers and training them well, there's no good reason to think that they couldn't do the bulk of the work that the bulk of American lawyers do. Aside from document review, American legal research is well within the reach of properly trained Indian lawyers. Contract drafting, as well, might be feasible. Teaching law is a cinch.

But there are, at the moment, limits. Scott complains about not being able to understand the accent of Charlene from Bangalore; I suspect hyperbole -- I've never had a problem with understanding any Indian's English. More justly, Scott has trouble understanding Rahul's prose:

I have seen young parents worry about the influence of crime on impressionable minds, that practicing criminal law can, in extreme cases, also have its effects is a new one!

I can see how Scott might not immediately understand that sentence -- especially since he is the one being dissed. It's not exactly a model of limpidity. It might well make perfect and immediate sense to someone raised in India, or even in Great Britain, but it doesn't to Scott.

And there's the rub. Much of what lawyers -- especially trial lawyers, and most especially criminal trial lawyers -- do requires a thorough grokking of the culture. Such knowledge of American (or Texas, or New York) culture can't be taught; it takes decades to absorb. And so communicating with juries, judges, and valued clients -- almost all we do as criminal trial lawyers -- cannot be offshored.

Drug Defense Brainstorming

How, without putting your client on the stand, might you counter the government's "nobody would trust another person with x dollars worth of drugs unless the other person knew he had the drugs" argument in a trial in which knowledge is at issue?

I'm looking for novel and useful approaches.

Failure to Testify

From McClung's Texas Pattern Jury Charges:

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence.

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a "failure"?

TSA = Thieves Shun Accountability

In our (if you help someone with a trial for long enough, it becomes your trial too) federal cocaine conspiracy trial, which involves eight kilograms of cocaine in a sealed Barbie dollhouse box in a suitcase at Houston's Intercontinental Airport, yesterday we learned that the Transportation Security Administration (TSA) keeps no record of the suitcases it has opened and inspected unless it finds something. Nor are inspections videotaped.

So when you get one of those slips of paper in your suitcase saying "TSA wuz hear", TSA has no record that they were ever actually there. That might be some comfort to you.

Of course, if you open your suitcase and find the slip of paper saying "TSA wuz hear" where your Rolex used to be, you might be somewhat discomfited by the fact that TSA has no record of which inspector it was that had his hot little hands inside your suitcase, or even whether your suitcase was in fact inspected. (Do TSA inspectors steal? You bet they do. Lots.)

The good news for TSA inspectors (other than the fact that they don't have to get by on their meager salaries, since it's pretty much open season on travelers' valuables) is, I suppose, that if a plane is blown out of the sky by a bomb that they missed in a suitcase that they inspected, nobody will ever know which inspector missed the bomb.

Juror Misconduct

Gideon brings us this atrocious story out of Illinois about a juror coming forward, 15 years after his jury duty, to testify in a postconviction proceeding that he and two other jurors had believed that the defendant was innocent of the armed robbery but after deliberating for over nine hours, had changed their votes to guilty under pressure from the other jurors. One can see how this testimony might have benefited the defendant in a postconviction proceeding. So of course But the judge shut it down, telling the juror that criminal charges could be filed against him for jury misconduct. The juror took the Fifth (the right thing for him to do in the absence of competent legal advice under these circumstances) and the postconviction proceeding was dismissed.

Is juror misconduct really a crime? And if it is, isn't there a statute of limitations? Is there an Illinois lawyer out there who can tell us whether this juror was really looking at potential criminal liability?

Maybe Not the Strongest Self-Defense Case

It's audio-video day here at Defending People. Here's a 9-1-1 tape from the City of Pasadena, a suburb of Houston in Harris County:

Note to self: If you have time, before shooting someone in the back, to explain to the police that you understand the recent changes in the law of self-defense, then it probably isn't really self-defense.

Police Surveillance of a sort

Criminal defense lawyer Randy England of Jefferson City, Missouri brings us this post about Brett Darrow, a 20-year-old St. Louis kid who drives around town wired for sound and light, deliberately antagonizing cops by refusing to play along with their attempts to pry into his personal life and intimidate him. The police conduct in the first video Randy links to might shock most middle-class white folk who think the cops are their friends, but it shouldn't. This is how lots of people will behave when you give them a gun and a badge and set them loose on the street. The police sergeant in that video was fired not because of what he did, but because he got caught doing it.

Darrow's civil disobedience is reminiscent of Texas lawyer Pat Barber's Just Say No to Searches campaign. Both of these guys are role models. If everyone knew their rights and exercised them, the police wouldn't think they have license to run roughshod over the constitution. If you're not rolling dirty, talking to the police and consenting to searches might be expedient, but that doesn't make it right.

Randy makes the good point that police, like the rest of us, can't be sure that they're not being watched (along those lines, see this post at IWTS about a New York cop caught on MP3 trying to coerce a confession). Eventually there'll be enough cops caught on video or audio breaking the law that either the middle-class white folk will realize that it happens all the time, or the police who break the law will become, like other criminals, much more careful about doing it in public.

"Come Back with a Warrant Doormat Rug" (High Cotton)

Welcome Prosecutors

Defending People had a lot of traffic yesterday from Harris County computers; last night at the HCCLA Holiday Party a prosecutor asked me if I was really blogging during trial. From these two data I conclude that Harris County prosecutors are reading my blog from the office. Welcome, prosecutors! If you see any unnamed prosecutor in here whom you believe to be you, you're wrong. Anonymous prosecutors are at least partly fictionalized. If you think you recognize a case that you have against me in a blog post, likewise, you are incorrect. All open cases, and most closed cases, are at least partly fictionalized. Descriptions of named prosecutors, however, are entirely accurate.

I hope that you will comment (anonymously, if you like) when you read something that inspires or outrages you.

P.S. Should you really be reading Defending People from the office during work?

Flight to Nowhere

So . . . the Government puts on this witness, see? And this witness, she works for Air France, right? So the Government puts her on the witness stand in a federal jury trial, and asks her about airfares. They want to know what the lowest fare from Houston to Port Harcourt was in April 2007. So they've got this printout from the Air France computer showing the various fares available from Houston to Port Harcourt between April 1, 2007 and June 15, 2007. With me so far?

So the Government has this nice lady on the stand -- lots of years' experience with Air France -- and gets her to talk about the various fares on this printout -- first class fares from Houston to Port Harcourt, economy class fares from Houston to Port Harcourt, fares with an advance purchase from Houston to Port Harcourt, fares without an advance purchase from Houston to Port Harcourt, fares with stays of various durations from Houston to Port Harcourt, all between April 1 and June 15, 2007. And the lowest fare for that trip -- Houston to Port Harcourt -- during that time period -- April 1 through June 15, 2007 -- was $1,536. Good enough. The point, I figure, is that the accused didn't choose the easiest, least expensive route from Houston to his hometown of Port Harcourt, or some such.

Anyway, the defense lawyer gets up to cross-examine. We don't know whether this fare was available when the accused bought his ticket, yadda, yadda, yadda. Then -- and I really don't know how this comes out -- the nice lady mentions that the Port Harcourt airport was closed because of civil unrest.

Okay, the defense lawyer asks. How long has the Port Harcourt airport been closed? Since sometime in 2006.

Port Harcourt Airport. Closed. Since 2006.

For those of you who might be employed as federal prosecutors, and therefore having some trouble keeping up: Even if the accused had wanted to take this flight, he couldn't have.

Sheesh.

Give Me Cover

"I'm in trial in federal court, and I need someone to cover for me in Harris and Galveston Counties on Friday."

If you are a criminal defense lawyer, at some point you will ask for cover. A lawyer other than the one on the case covers for the one who is by making a court appearance.

Cover doesn't generally involve substantial lawyering, but rather just showing the flag, letting the judge and the client know that the case is not forgotten, and getting a new court date. In other words, it's not complicated. In the grand scheme of things that we do as criminal defense lawyers, cover is one of the hardest to screw up. I'm not going to send a Horrible Criminal Defense Lawyer into court to cover for me, but anyone with a modicum of diligence and competence should be able to provide cover without making the situation any worse.

By getting cover instead of just calling the court, the lawyer whose case it is can make the client's life easier and less stressful. You might pay a young lawyer for her time to cover for you (because young lawyers have to eat or they'll never grow up to be dinosaurs), but you probably wouldn't pay an experienced lawyer for cover. Experienced lawyers cover for each other as a favor, because they know: if you are a criminal defense lawyer, at some point you will ask for cover.

When I cover for another lawyer, that person's cases are my first priority. I'll show up at court extra early and introduce myself to the clients so that they knows they haven't been forgotten; then I'll get them on their way out of court as quickly as I can. Otherwise, the clients might start calling their lawyer's office to find out what is going on. I don't want that because I know that their lawyer is busy doing something else and doesn't need progressively more irate calls from his clients.

So I was disappointed yesterday when I learned that the lawyer who agreed to cover a couple of cases for me in Harris County (I'm in trial in federal court) had moseyed into court sometime after 10:30 a.m. -- an hour after the 9:30 docket call. My client had been a no-show, and his bond had been forfeited. If the lawyer had made cover a priority and arrived early he might have been able to get a second chance for the client. It turned out okay -- young criminal defense lawyer extraordinaire Sarah Wood, one of my former students from criminal trial advocacy class at the University of Houston Law Center, was able to salvage the situation this morning, but that shouldn't have been necessary.

So give me cover please, but -- please -- do it well.

"We Will Show that the Defendant is a Con Artist"

I don't know what to say. This was supposed to be Assistant U.S. Attorney Eric Smith's opening statement -- a time not for argument but for describing what the evidence is expected to show.

The accused is not charged with being a con artist. Rather, he's charged with possession of cocaine, at issue is whether he knew that he possessed a controlled substance, and he didn't try to con anybody into believing that he didn't know.

So why would Mr. Smith, prosecuting a drug case, argue to the jury in a drug case that the accused is a "con artist"? It has nothing to do with the facts of the case; might it have something to do with the nationality of the accused?

Might the prosecutor be trying to stir the jury's prejudice by equating the accused (a Nigerian citizen) with the Nigerian con artists who fill our inboxes with offers of easy money?

Is that right? Appealing to the jury's biases and prejudices that way?

Since the jury is entirely white and hispanic, you might even call it an appeal to racism; if Mr. Smith were a white man, you might wonder whether he shared the racism that he was trying to foment in the jury.

Do you wonder the same thing of a Black man?

Becoming a Federal Criminal Defense Lawyer II

This morning I was visiting with dinosaur-in-training Feroz F. Merchant (actually a super lawyer despite the cheesy SuperLawyer designation) about developing the trial lawyer's art. Feroz was lamenting the many lawyers practicing criminal law who are just there for the money, and care more about their clothes than about either their clients or their art. (Sounds familiar, eh, Shawn?) Feroz, who was down at the federal courthouse to catch some of Norm's cocaine trial that I was shanghaied into (we finally got a jury picked, by the way), mentioned a way of becoming a better federal criminal defense lawyer that had never occurred to me.

The federal courts in our district use electronic recording; there is an audio recording made of each court proceeding. The ERO (Electronic Recording Office) will sell audio DVDs (I guess they hold about a day's proceedings) of court proceedings for $50 a pop. Feroz picks a lawyer who he knows to do great work, finds a case that that lawyer tried (he searches the computers in the clerk's office; if you have PACER access you can do the same through your district's ECF system with your PACER login), buys the recording of the trial, and copies the audio to his iPod to listen to in his free time.

It sounds like a great -- and inexpensive -- way to learn from some of the masters.

Feroz also pointed out that the Office of Defender Services puts its written materials up on the web, where they are available for free. Outside of actually trying cases, it's the best training you can get.

Great stuff. Thanks, Feroz.

Busting the Panel

What do you get when you combine my friend (and fellow dinosaur) Norm, a federal drug case, 20 minutes of lawyer-conducted voir dire, and a 35-person jury panel?

Nothing even remotely resembling a jury. Come back and try again later. With 11 people disqualified for cause, that panel is not big enough. We'll bring in 40 potential jurors tomorrow.

And oh, by the way, the court will do all of the voir dire itself.

Universally, judge-conducted voir dire stinks. A judge doesn't have enough invested in either side of the case to zealously seek the truth from the panel; to the judge, for whom the record is everything, a jury that says all the right words is good enough. At one point today during the judge's voir dire, after her honor (an otherwise excellent federal judge) had elicited from the panel the promise to set aside all of their manifold and manifest prejudices (which obviously didn't merit much in-depth discussion) and "be fair" to our client, Norm passed me this note.

This will, if you're keeping score at home, be the third time in eight days that we've gone to court to pick a jury on this case. As Percy Foreman is alleged to have said, "a continuance is as good as an acquittal . . . for as long as it lasts."

Now I'm Supposed To Be the Reasonable One?

Last Monday I went to federal court to help my friend (and fellow dinosaur) Norm pick a jury on a cocaine case. Before the jury panel was brought in, the judge handled some motions in limine. She became frustrated, first with the prosecutor and then with my friend because she thought that they should both have done more to prepare for trial. (Norm, like me, had spent a chunk of the last month in trial.)

I did my best to keep my head down and speak only when spoken to, but got dragged into a discussion about whether Norm should have done more to get a copy of the Government's exhibit binder before trial. (Norm hadn't been told that it was ready, and so he hadn't sent someone to pick it up; her honor thought that he should have called to ask if it was ready; she asked me, and I told her candidly that, in every federal criminal case I had ever tried, the government had notified me that their exhibit binder was ready, and had often sent it over to me.)

After the hearing on the motions, the jury panel was brought in. Norm asked for a continuance because of some things that were left undone, and the judge granted it (conditioned on Norm paying $1400 to reimburse the court for the jury panel!). She reset the case until next Monday and, as we were all (Norm, his associate, me, and two prosecutors) packing up to go she said, "Mr. Bennett, you're on this case now. I'm sorry if you're not getting paid for it, but you made an appearance, and I want you to assist Norm."

I tried a bank robbery case before this judge in 2001 (Norm's brother sat second with me on that one) and, as I recall it, she threatened at some point to order me to do some sort of penance for something I said during closing argument (if I recall correctly, she took umbrage at my arguing, from the lack of any evidence that my client had ever even been in the town where the bank robbery occurred, that my client had never been in that town). In the end she didn't, but I clearly recall that she thought I had gone overboard in my representation of my client. Since then I have appeared before her several times on cases that never went to trial, and I'm not certain that she remembers the zealousness of my trial advocacy.

But on Monday, when she ordered me onto the case and then softened the blow by saying, "I respect your opinion, and appreciate your input" or summat, what could I do but say "thank you, your honor," and look at my calendar to figure out how to mollify my clients who will, for the third week in a month, not be getting my full attention because I'm in trial on something else?

So now I'm back into trial mode. Except that this time I'm supposed to be the adult supervision, the voice of reason, the chaperone.

The judge may be in for a surprise.