New RSS Feed

If you get this, you're still subscribed to my old RSS feed, and you may not have seen any new posts in the last eight days even though I've been posting regularly. I've switched over to WordPress, and my RSS feed has changed. Please add the new feeed to your reader.

Wire Writers Speak

AHCL's post on the "war on drugs" and my response started with AHCL's question on the overall message of The Wire with regard to that "war." Was the message intended to be that the WoD is unwinnable but worth fighting? Or was it that the WoD is unwinnable and self-destructive?

Now (with a hat tip to Washington State Criminal Defense, a blawg that somehow escaped my attention for six months, and via Time magazine) we get the answer straight from the horses' mouth:

Yet this war grinds on, flooding our prisons, devouring resources, turning city neighborhoods into free-fire zones. To what end? State and federal prisons are packed with victims of the drug conflict. A new report by the Pew Center shows that 1 of every 100 adults in the U.S. — and 1 in 15 black men over 18 — is currently incarcerated. That's the world's highest rate of imprisonment.

The drug war has ravaged law enforcement too. In cities where police agencies commit the most resources to arresting their way out of their drug problems, the arrest rates for violent crime — murder, rape, aggravated assault — have declined. In Baltimore, where we set The Wire, drug arrests have skyrocketed over the past three decades, yet in that same span, arrest rates for murder have gone from 80% and 90% to half that. Lost in an unwinnable drug war, a new generation of law officers is no longer capable of investigating crime properly, having learned only to make court pay by grabbing cheap, meaningless drug arrests off the nearest corner.

What the drugs themselves have not destroyed, the warfare against them has. And what once began, perhaps, as a battle against dangerous substances long ago transformed itself into a venal war on our underclass. Since declaring war on drugs nearly 40 years ago, we've been demonizing our most desperate citizens, isolating and incarcerating them and otherwise denying them a role in the American collective. All to no purpose. The prison population doubles and doubles again; the drugs remain.

I'd say that's a pretty unambiguous five votes for "unwinnable and self-destructive." Not a War on Brown People, as I contend, but a "venal war on our underclass" -- effectively the same thing. But, lest you be unconvinced (and as they say on TV), wait! There's more!:

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

Jury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger, who was acquitted of seditious libel against the royal governor of New York, and absent a government capable of repairing injustices, it is legitimate protest. If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional.

Not only is the WoD unwinnable and self-destructive, but we should exercise our right as free-born men of the U.S.A. to nullify in any drug prosecution in which we are serving as jurors.

Jury nullification on the pages of Time magazine. God Bless America.

The Wire

What we've been doing since the DEA was created 35 years ago has resulted in more drugs being available at lower costs. We can all agree that the "war on drugs" is an abject failure. Although one frustrated DEA agent suggested to me that what we need is Malaysian-style drug laws, most of us know that we're never going to win this "war," even if we start executing dealers.

(Why is "war on drugs" in quotes? Because it's not a war. War is armed conflict between nations or states or groups within a nation or state. You can make war on a group of people [the "WoD" is arguably a war on brown people], but you can't make war on a thing; you also can't make war on a tactic (like terrorism) or a philosophy or an emotion. "War on drugs" is an inapt metaphor that was designed to secure the compliance of the populace.)

Even AHCL agrees that the "drug war" can never be won. But, he says, it's "worth fighting." AHCL points to the vignette in one of this season's episodes of the wire in which an infant cried over the body of its mother, who had overdosed on heroin, as conveying the message "illegal drugs destroyed lives, taking its toll on the littlest of victims."

Sometimes unwinnable fights are worth fighting. As a criminal defense lawyer, I'll be among the first to admit it. And many drugs are bad. Some of them are really really bad. So why not fight this quixotic battle against an unbeatable foe? Why is the "war" not worth fighting?

Because it isn't free. Because we pay a huge and objectively unreasonable price to keep fighting the "war." Because, in fact, the battle is doing more harm than good.

There is a direct financial cost (by some estimates, over $40 billion a year). There's also an indirect financial cost, in potential tax revenues lost. Get rid of the war on drugs, fire half the cops and half the judges and prosecutors and half the prison guards and half the defense lawyers. Put those people to work doing something productive instead of playing the New Great Game. Tax the dope -- $40 a gram, say, for cocaine -- and sell it out of liquor stores. Americans consume some 500 tons of cocaine a year; that's $20 billion that we're giving up in tax money from cocaine alone.

There is also a societal cost: tens of thousands of young men have been killed or imprisoned, not by drugs but by the war. (When the baby was crying over its overdosed mother in the episode of the Wire that tugged at AHCL's prohibitionist heartstrings, where was its father? In prison on drug charges? Shot down over a drug debt? Or just out working the corner?) Neighborhoods have been turned into free-fire zones not by drugs but by the war. (When was the last time you read about alcohol dealers or tobacco dealers having a shootout over territory?)

Meanwhile, America is awash in dangerous drugs. Kids are selling drugs at school, and kids are buying them. And what are the kids doing? They're smoking some weed, but aside from that it's mostly pills. Not illicit drugs but prescription pills -- xanax, valium, vicodin -- taken without a scrip. There will always be substances available to fill the human desire to escape reality. And as long as parents are using liquor and pills to escape their own realities, they've got no good cause to be surprised when their kids use drugs to escape their realities.

Bottom line: prohibition was a societal failure in 1933, and it's a failure in 2008. Why it should take smart people so long to figure this out is a mystery to me.

Proposed Change to Rule of Privilege in Texas Criminal Cases

I wrote last year about the interplay of Texas Disciplinary Rule of Professional Conduct 1.05 and Texas Rule of Evidence 503, and their surprising cumulative effect on the attorney-client and work-product privileges in Texas. Now the Court of Criminal Appeals proposes amending Rule 503 to remove the "special rule of privilege in criminal cases":

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

(PDF of proposed rule change.)

The effect of the rule change will be to bring privilege in Texas criminal cases in line with privilege in civil cases and, coincidentally, with what most Texas criminal lawyers thought the rule was. Now, things that the lawyer learns by reason of the attorney-client relationship will be treated as "unprivileged client information" rather than "privileged information."

In Texas before the rule change, there was no such thing as "unprivileged client information" in criminal cases. Because the rules of evidence made everything

Unprivileged client information is still confidential, and cannot be freely disclosed by the lawyer, but it may be revealed, according to Rule 1.05, in more situations than privileged information can. For example, "when the lawyer has reason to believe it is necessary to do so in order to carry out the representation effectively" she can reveal unprivileged confidential client information, but not privileged client confidences.

Why the change? I've no idea.

Blog or Government Propaganda Tool?

Is it just me, or should a blawg contain some original content?

I'd added David Finn's Dallas Federal Criminal Defense Lawyer "blog" to my reader because I defend federal criminal cases in Dallas and because I've heard of David (and am acquainted with his partner, George Milner III). It'd been on my list for a few weeks, providing nothing that even looked worth clicking through to. Ho-hum.

Until today, when I saw the headline 4 Indicted In Texas Mortgage Fraud Scheme. I was just retained by a new client who is charged with mortgage fraud in Texas, so I clicked to see what David had to say about mortgage fraud. Imagine my surprise to see that "David's" "blog" post (signed with his name at the bottom) was about my client. Imagine my greater surprise to find that the post read much like the USDOJ press release about my client's prosecution. Much like? Nay, verbatim.

Interested for the first time in David's "writings," I took a look at the other posts on his "blog." Compare Mortgage Fraud Prosecution on the Rise by David Finn with State, U.S. Preparing Loan Fraud Crackdown by J. Patrick Coolican of the Las Vegas Sun. In Predatory Lending - is it a Crime?, at least "Judge Finn" gives HUD the byline for the material that he copied from this page. The previous post over David's name, Federal Reserve Board Aims to Curtail Predatory Lending Practices , seems to have come wholesale from here.

This blog is the intersection of the Super Lawyer discussion, the Former Prosecutor discussion, the Half-an-Hour a Week discussion, and the Ghostblawging discussion, with a little bit of "look-at-me-I'm-a-government-stooge" added in for good measure.

David is a purported "Super Lawyer," a former prosecutor who is spending half an hour a week -- if that -- producing his blog thanks to the unwitting help of his ghostblawgers at DOJ, the Las Vegas Sun, and other sources.

But "government stooge"? Them's fightin' words in Texas; might be in Dallas too. So I'd better back 'em up.

Stealing from J. Patrick Coolican is one thing. Patrick and the Las Vegas Sun might object strenuously and litigiously, but at least you're plagiarizing the work of someone who might himself have some journalistic ethics.

Repeating what the Federal Reserve Board or HUD tells you, if you're a criminal defense lawyer, is another thing. It'd be better to give the governmental agency credit and a link, but the Federal Reserve Board is not generally your adversary. Sometimes other governmental agencies say things that might be of interest to us and our clients.

But by repeating what the DOJ tells you and giving it the added credibility of publication over your own name, though, you serve the Government that is trying to put your clients -- and my clients -- in prison.

The DOJ puts out press releases. Why? Because keeping the populace well-informed is good for the government? Please.

The DOJ puts out press releases so that if you are charged with a federal crime that the press might be interested in, your friends will know about it, your neighbors will know about it, your employer will know about it, and your children will know about it. So that, no matter how innocent you are, and even if you ultimately clear your name in court, your reputation is shot forever. So that you are, in other words, hosed.

I had a discussion some years ago with a Houston federal criminal defense lawyer who was reprinting DOJ press releases on his web page to boost his search engine rankings. He, too, had reprinted a press release about a client of mine who was accused of mortgage fraud; he agreed with me that doing so probably wasn't appropriate.

Lawyers who are ethically representing their clients (as opposed to aggrandizing themselves) will try hard to keep their clients' names out of the public eye. Once a client's reputation in the community is damaged, even an acquittal and an expunction will not restore it.

DOJ press releases are a propaganda tool. The government is trying to get free publicity in its struggle to take away people's freedom. Legitimate information sources don't reprint press releases (any press releases) word-for-word. Newspapers, for example, receiving one of these press releases, will investigate a bit, make sure it's true, see if there's a story of interest to the readers, and give the other side an opportunity to tell its story. Bloggers don't have the same ethical rules as journalists, but real bloggers will -- at a bare minimum -- cite to the source of the information so that readers can consider the source. Not David -- David takes the DOJ's press release and signs his name to it. Better bloggers won't repeat the information without some comment or context -- why is this story important to the reader? What does it mean?

By disseminating the government's propaganda without critique, citation, context or comment, a "blogger" serves as nothing more than a conduit for propaganda. He acts, in other words, as a government stooge.

So why do it? I suppose someone has told David that he gets better search placement by adding content often. For a busy lawyer like David, original content shouldn't be hard to come by. More likely, he's got someone else posting on his blog for him, and they don't have anything original to say about the narrow field of Dallas federal criminal defense.

So why not do it? Because -- aside from the fact that our job is to make the government's job more difficult, and not less -- what comes around goes around, and some day, David, you will have a client who would just as soon his name not be spread far and wide for the sake of some other lawyer's search-engine rankings.

(Postscript: I got an email from J. Patrick Coolican thanking me for tagging David's plagiarism. "My editor," wrote Patrick, "will be in touch with the judge today." I've burned a PDF of David's blog as it was when I wrote this post so that, after David takes down the offending posts, I can prove that I didn't imagine it.)

Wednesday Evening Staff Meeting 2

Last week's meeting was such a success (19 people attended) that we're doing it again this Wednesday at 4:30pm.

If you are a defense lawyer, and would like to attend, please respond.

The Code

A man has gotta have a code to live by. (So does a woman.)

I think most lawyers don't have one.

What's yours?

More Proof that Higher Fees are Better

NPR: people get better results from more expensive pills!

Dear Jim Leitner

Dear Jim,

By now you've probably read AHCL's blatantly pandering open letter suggesting that you endorse Kelly Siegler in the race for D.A.

I'm sure Pat Lykos's campaign is trying to get your endorsement as well.

I don't know who you'll endorse in the race between Kelly and Pat, or whether you'll endorse anyone.

If you keep quiet, Kelly will be hoping that the people who voted for you were voting for you as an experienced trial lawyer, and Pat will be hoping that the people who voted for you were voting for you as an agent for change. They will both, in other words, see in you the traits that they emphasize in their own campaigns.

Kelly hopes that the people who saw you as a leader will shift their votes to her, and Pat hopes that those who saw you as an agent for change will shift their votes to her.

The truth, of course, is that the DA's office needs both leadership and change -- more leadership than Pat has shown any ability to bring, and more change than Kelly has shown any inclination to bring.

You were the best candidate for the job because you would have brought both leadership and change. More importantly, though, you were the best candidate for the job because you are a truth-teller with a deep sense of honor.

(It was that sense of honor that kept you from filing the lawsuit that would likely have removed Kelly and Pat from the ballot, winning the race for you at a stroke. I encouraged you to do so, and when you declined I knew that you weren't going to win this race against a seasoned politician and a popular ADA. I would have felt let down, but it was hard to feel let down by the inevitable result of your finest quality. It is axiomatic that those qualities that make one most worthy of public office also make one least likely to attain it.)

You went into this race with ideas about changing the Harris County DA's Office. Whoever you plan to endorse, you're in a position now to get the candidates to commit to some of the changes that you have in mind. Take some time and think about the power you have to make the Office better. Both Pat and Kelly might now be open now to committing publicly to some of the things that you think are most important.

Still a supporter,

Mark.

Admit it: You Goofed.

Young Doug Weathers (the adjective was recently vacated by order of the Nickname Marshal, Scott "Paladin" Greenfield) is discovering that maybe he doesn't quite support the Republican Party in all its glory. He says, "for the first time in my adult life I voted for self-interest rather than perceived national interest."

"Perceived" is the key word there. In the past, Young Doug tells us, he has supported the party that has brought us:

limits on jury verdicts to protect doctors regardless of the harm or lifetime costs to the victim . . . . accelerated statutes of limitation in medical cases. . . . greater governmental powers against individuals at the federal and state level. Search warrants for general exploratory searches. The very thing the 4th Amendment to the Constitution was designed to prohibit. Apparently we will be safer if we just trust the government without that pesky requirement of probable cause presented to a judge or magistrate. That was the same argument made by the Crown to the American colonies when soldiers would search homes and persons without warrant or probable cause. To hear the President, the world will end if huge telecoms don't get immunity from wronged citizens filing suit. Not only does he not want to get warrants from federal courts to search electronic data, he does not even want to get the permission of a secret court set up just for that purpose. Too much trouble I guess. The government's need of this information is necessary for security. To which I reply with one of my favorite quotes, "Necessity is the plea of every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves." William Pitt

Well at least at the state level Republicans have supported individual freedom. Right? Well yes unless you have been accused by the government of something. Then good luck. If you do not have a jury standing between you and the government there is little hope for you. If the government does something wrong or illegal during the trial, you can always appeal to a higher court. Right? Well -- unless you did not preserve the issue for trial by waiving any error for lack of a specific enough objection. Form over substance. Or you did object and the error was preserved just right but the appeals court determines that the error was harmless. But at least you still have access to the courts. Unless you are a capital defendant and your brief comes in ten minutes late. Sorry you die. (For Texas readers you know what I am talking about)

Young Doug claims that he's voting his best interests "for a change." Unlike his fellow Fort Worth Imaginary Republican Shawn Matlock before him ("Republican from birth" because that's what his parents are), Young Doug isn't pretending that the Republican Party hasn't brought us eight years closer to tyranny.

But, c'mon now, Young Doug. When you voted Republican you might have thought it was best for the country, but it wasn't a philanthropic act. You thought it was in your own interest. Among other things, you expected lower taxes accompanied by more protection from the Dangerous Brown People.

Now that you see that it wasn't such a good idea, that a marginal increase in protection from the Dangerous Brown People comes only at a tremendous cost to our freedom and that, thanks to tax cuts, our children's children's children will be paying for that protection for their entire earning lives, you're realizing that your previous self-interested voting pattern wasn't such a hot idea either for you or for the country. You're realizing that what you then "perceived" to be in your own and the nation's best interest was in neither.

It's okay to vote in your own interest. If your chief interest is in being free, then voting in your own interest is probably best for the nation as well. Man up, admit your mistake, and move on. You'll loathe yourself less.

No Such Thing as a Professional Juror

Lawprof Thaddeus Hoffmeister (Juries) is interested in what others think about the idea (which he thinks would be unconstitutional) of using "professional jurors" to decide cases when lay juries are unable, after several attempts, to reach a unanimous conclusion.

This proposal is the perpetual darling of well-meaning amateurs who think they can do better than the Founders. They'll see a situation in which it appears from outside the jury room that the jury somehow was not up to the job thrust upon it. "I know!" they'll say, "if we had expert jurors they wouldn't make mistakes like that!"

The purpose of a jury is to be the voice of the community in a civil case and a bulwark between the government's bureaucrats and the individual in a criminal case.

A jury of experts cannot be the voice of the community. If you create a caste of professional jurors they'll be nothing more than another layer of bureaucrats on the government teat. So a jury of experts or professionals would be no jury at all.

No, no, no. A thousand times no.

Three Republican DA Candidates

Here are the Reasonable Doubt episodes featuring three of the four Republican DA candidates:

Kelly Siegler

Pat Lykos

Jim Leitner

You're Not Listening!

Listen:

If you are a private lawyer, you can get more people to hire you.

If you are a court-appointed lawyer, you can help your clients appreciate you more.

You can pick a better jury.

You can demolish your adversary's case.

You can perform a better direct examination.

You can perform a better cross-examination.

You can be happier in your relationship; you can be a better parent.

How, you ask?

I already told you. Listen.

That's all. Just listen.

If you listen to your potential clients instead of playing the big smart lawyer, more of them will hire you.

If you listen to your clients, they will know that you care and will appreciate your help.

If you listen to your potential jurors and give them an opportunity to reveal their truths instead of mechanistically asking them yes-or-no questions from your list, you will pick a better jury.

If you listen to your adversary's case, hearkening especially to the things not said, you can find the seams in the case and demolish it.

If you listen to your witness's testimony, you can perform a better direct examination.

If you listen to your adversary's witness's testimony on direct, again paying special attention to the words unsaid as well as to the emotions behind the words, you can perform a better cross-examination.

If you listen to your partner and your children, you can be happier in your relationship and be a better parent.

I'm willing to bet that you don't listen very well. Nothing personal, but to people raised in a culture in which "getting the last word" is considered victory and in which the position of "speaker" is one of power (consider "Speaker of the House"), active listening is difficult. We feel like we cede our power by listening to our adversaries rather than injecting our own point of view at every opportunity.

Listening isn't something that we're taught in school. That's too bad, because it's something that we can easily learn. (Google "active listening" for a plethora of resources; here, for example, are "Ten Tips to Be a Better Listener.")

Trial lawyers are no different than anyone else. We tend to plan the next question as the witness answers the last, and plan the counterargument as our adversary makes her argument. But when we are planning counterarguments and questions, we are not listening, and when we aren't listening we miss things.

So forget that you're the big smart lawyer, ditch your lists of voir dire, direct, and cross-examination questions, stop worrying about what you're going to say next, and start listening.

The Loss of Meaning

Scott Greenfield has apparently been having a blawgospheric discussion with Doug Berman about the merits of a Kentucky bill, HB210, that, in Doug's words, "imagines forfeiture as a possible alternative (rather than an addition) to lengthening prison terms for certain offenders."

After some back-and-forth in comments to Scott's thorough critique of the idea of asset forfeiture as a solution to the problem of overincarceration, Doug wrote:

I am not content to just "agree to disagree (strongly) on this one." Anyone not seriously thinking about VERY different solutions to mass incarceration, in my mind, is a BIG part of the problem. (And, as you should know, most criminals in prison now don't have a car or a house or a job to forfeit.) Why are you more sympathetic to people with property who commit crimes than to people without property who commit crimes.
I have long believed that liberals get in the way of SERIOUS game-changing criminal justice reforms more so than conservatives. This discussion confirms this belief. As I suggested at the outset, I think this is ultimately more sad than scary, because it shows that liberals are so brainwashed or beaten by current realities that cannot ever imagine a different world in which sounder criminal laws come to dominate.

"Conservatives" are people "seriously thinking about very different solutions" while "liberals" are people who "cannot ever imagine a different world"? Huh??? Did I fall asleep and wake up in Nineteen Eighty-Four?

It sounds to me like Doug is using "conservatives" to mean no more than "good people, people who agree with me" and "liberals" to mean "bad people, people who don't."

That would be well and good, except that very few people would agree that "conservative" means "agreeing in all things with Doug Berman". In fact, I suspect that lots of people who call themselves conservatives would probably agree with Scott that Doug shouldn't be calling himself one.

Once upon a time words had meanings that could be looked up in dictionaries; this was handy because if someone used the word "conservative" or "liberal" I could look it up and, having done so, safely assume that he intended its primary usage, unless the context suggested otherwise. I could have ascertained from the dictionary that "conservative" means "holding to traditional attitudes and values" and that "liberal" means "open to new behavior or opinions" and assumed that Doug intended those meanings.

No more.

(I'd like to propose that nobody use the word "conservative" or "liberal" on the web without linking to a precise definition. Because Doug's two quoted paragraphs prove that not only has the word "liberal" come untethered from its formerly-accepted ["dictionary"] definition, but "conservative" has as well.)

What's the application to the Art and Science of Criminal Defense Trial Lawyering?

Words have meaning. Sometimes they have multiple meanings. Beyond their meanings, though, they invoke emotion. "Liberal" has long been an epithet divorced altogether from its received meaning, such that even a liberal (open to new opinions, respectful of individual freedoms, favoring maximum individual liberty) guy like Doug Berman rejects the label for himself. "Liberal" has become a toxic word in our culture.

Doug's quoted prose suggests that he goes further than just rejecting the "liberal" tag and adopts instead the label "conservative" -- not, I have to think, because of its meaning, but because it is the opposite of "liberal." The contrapositive of "'liberal' is bad" is "'conservative' is good."

When we're talking to juries, we have to recognize that, despite the meaning of words, they may trigger emotional responses in our audiences. The government will, before the jury, refer to the complainant in a case as "the victim" if given the chance -- even though whether the complainant is in fact a victim is generally the issue that a jury trial is intended to determine. "Victim" is a word toxic to the accused in a criminal case. So are commonlaw words like "murder" and "rape." In Texas, the government will use these at every opportunity even though they are not part of the statute.

Astute prosecutorial readers will note that in the last paragraph I referred to "the government" rather than "the State." This is another illustration of the point. "Government" means roughly the same as "State", but "government" is a word toxic to the State. Even people who are inclined to trust the State, or the Commonwealth, or (lie of lies) "the People" find good reasons in their life experience not to trust the government.

Mexico Discovers Due Process

Mexico is in the process of overhauling its criminal justice system (WSJ). Jury trials aren't in the works, yet, but reforms include a move from an inquisitorial system in which judges decide cases in secret based on written submissions, to an adversarial system of open trials with oral argument.

Oh, and now people accused of crimes in Mexico will be presumed innocent.