Defending People: The Art and Science of Criminal Defense Trial Lawyering

Marketing the Hired-Gun Prosecutor

2008-07-25T14:18:00.001-05:00

I wrote back in May about Kelly Siegler's future as a Hired-Gun Prosecutor (motto: "I get paid to make people afraid!"). "How to get the business?" I asked, "Word of mouth and the internet, of course."

Then in June she posted to the Women in Crime Ink blog with the tagline "Prosecutor for Hire." The businesspeople among us recognized this as a first step toward creating a brand.

Now it's July, and Kelly has another post up at Women in Crime Ink. This one, "Win at All Costs? Not Really" is a none-too subtle slam of Texas prosecutors:

The real problem is that far too many prosecutors are worried about taking on a difficult case, a case that is not a slam-dunk or a whale ("as easy as harpooning a whale in a barrel," as we say in Harris County, Texas). Too many prosecutors demand that the cases presented to them for the filing of charges come to them with all the questions answered and wrapped in a pretty, little bow. What prosecutors seem to forget is that the question they need to be asking is whether a jury of twelve, ordinary, normal, non-lawyer citizens would convict on the evidence presented to them or evidence easily developed by the prosecutor after the filing of charges.

(If you read Kelly's article, by the way, know that her lede is a
straw man. The public's complaint about prosecutors is not that they
fight to convict people whom they know to be innocent, nor that they
fight aggressively and fairly to convict people whom they believe to be guilty.
The complaint is that the Rosenthal-Siegler "win at all costs" culture
leads some prosecutors -- even [especially?] those whom Kelly describes as "chicken", to break the rules to win. Most prosecutors don't cheat, just as most prosecutors aren't chicken, but the office that tolerates one prosecutor breaking the rules deserves the loss of public trust that will inevitably follow.)

There's more -- much more -- of this scathing critique of the prosecutors whom Kelly lauded when it suited her political interests. So what's going on here?

It looks to me like marketing. The legal market is tough, especially when you're trying to create a niche for yourself that the justice system had so far been able to do without. Kelly recognizes that her erstwhile colleagues are now her competition, because as long as the people of Texas (her potential customers) have faith in their elected DAs and their hired minions to do a good job, there'll never be much of a market for the hired gun.

Kelly is, of course, using fear -- the fear that the prosecutor prosecuting your loved one's murderer won't do a good job -- to market herself. Fear notwithstanding, there's fair marketing and unfair marketing. It's fair to the customers and the competition to fairly depict the competition's failings (to warn the customers). It's unfair to paint the competition with such a broad brush that the customers get the wrong impression of the competition (to make the customers afraid).

Is Kelly's marketing fair? AHCL, to whom goes the hat tip, is filled with fawning admiration still for every pronouncement that Kelly "authors". An anonymous commenter on his blog (9:17 a.m.), however is "inflamed" by Kelly's "tear[ing] down others in a desperate attempt to advance her relevance."

What do you think?

Marketing the Hired-Gun Prosecutor

2008-07-25T10:48:00.001-05:00

Then in June she posted to the Women in Crime Ink blog with the tagline "Prosecutor for Hire." The businesspeople among us recognized this as a first step toward creating a brand.

Now it's July, and Kelly has another post up at Women in Crime Ink. This one, "Win at All Costs? Not Really" is a none-too subtle slam of Texas prosecutors:

The real problem is that far too many prosecutors are worried about taking on a difficult case, a case that is not a slam-dunk or a whale ("as easy as harpooning a whale in a barrel," as we say in Harris County, Texas). Too many prosecutors demand that the cases presented to them for the filing of charges come to them with all the questions answered and wrapped in a pretty, little bow. What prosecutors seem to forget is that the question they need to be asking is whether a jury of twelve, ordinary, normal, non-lawyer citizens would convict on the evidence presented to them or evidence easily developed by the prosecutor after the filing of charges.

(If you read Kelly's article, by the way, know that her lede is a straw man. The public's complaint about prosecutors is not that they fight to convict people whom they know to be innocent, nor that they fight aggressively and fairly to convict people whom they believe to be guilty. The complaint is that the Rosenthal-Siegler "win at all costs" culture leads some prosecutors -- even [especially?] those whom Kelly describes as "chicken", to break the rules to win. Most prosecutors don't cheat, just as most prosecutors aren't chicken, but the office that tolerates one prosecutor breaking the rules deserves the loss of public trust that will inevitably follow.)

There's more -- much more -- of this scathing critique of the prosecutors whom Kelly lauded when it suited her political interests. So what's going on here?

What do you think?

Untitled 3

2008-04-22T15:02:00.001-05:00

PTSD, depression afflict 300,000 Iraq, Afghan war vets: study

A RAND Corporation study estimates that 300,000 vets suffer from major depression or post-traumatic stress disorder, and 320,000 suffer from probable traumatic brain injury. (Since TBI can contribute to depression and PTSD, many men and women are probably in both groups.)

One in 11 Iraq and Afghanistan vets is from Texas, so that's almost 30,000 Texans with major depression, PTSD, or TBI.

Traumatic brain injury can cause impaired social perceptiveness; impaired self-control and regulation; stimulus-bound behavior; emotional change; and inability to learn from social experience. Behavioral symptoms of TBI include impulsivity, disinhibition, anger dyscontrol, inappropriate sexual behavior, lack of initiative, and "change in personality." (Want to know more? Search for TBI on Defending People.) Symptoms of PTSD can include: emotional numbness, irritability, and outbursts of anger.

This bit's really uncontroversial, so one more time, slowly:

Impaired social perceptiveness.

Impaired self-control.

Impaired self-regulation.

Stimulus-bound behavior (failure to inhibit inappropriate responses to stimuli).

Emotional change.

Inability to learn from social experience.

Impulsivity.

Disinhibition.

Anger dyscontrol.

Inappropriate sexual behavior.

Lack of initiative.

Emotional numbness.

Irritability.

Outbursts of anger.

Think about how these physically-produced symptoms (summarily described by "change in personality") can lead to conduct outside the law. Think also about how difficult it would be to get over these symptoms. If you suffer from a lack of initiative, how do you develop the initiative to overcome it? If you suffer from impulsivity, how do you keep yourself from behaving impulsively?

Imagine that you have an ordinary young man, law-abiding, who joined the military out of a profound sense of duty, went to Iraq, and then boom. He was too near an exploding TBI. Loss of consciousness resulted, and a closed-head injury. The shock wave hit him just wrong, and caused shearing in his brain. (Read about the mechanism of TBI.) Symptoms develop over years and include some of those listed above -- say, impaired self-control and stimulus-bound behavior evidenced by anger dyscontrol and impulsivity.

Is he the same person he was before his brain got bruised? He's still the the same collection of organic chemicals and the same DNA and fingerprints, but his personality has changed -- his brain is wired differently. Are we defined by our organic chemicals, DNA, and fingerprints? Or is it our personalities that define us?

If this young man, because of his rewired brain, goes and commits some crime -- beats up his girlfriend, robs a bank, kills someone -- how do you hold him accountable? How do you decide what he deserves? How do you blame the man whose self-control was impaired by an accident for failing to control himself?

You who favor retribution as a goal of punishment: when you seek retribution against this young man, is it against the person he was before the boom, or after?

New RSS Feed

2008-03-20T19:42:00.002-05:00

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

2008-03-11T21:14:00.001-05:00

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

2008-03-11T12:30:00.001-05:00

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

2008-03-10T13:17:00.001-05:00

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?

2008-03-08T15:43:00.000-06:00

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

2008-03-08T13:34:00.000-06:00

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

2008-03-07T20:45:00.001-06:00

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

2008-03-06T14:52:00.001-06:00

NPR: people get better results from more expensive pills!

Dear Jim Leitner

2008-03-05T10:29:00.001-06:00

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.

2008-03-04T18:54:00.001-06:00

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

2008-03-03T21:26:00.001-06:00

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

2008-03-03T21:09:00.002-06:00

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

Kelly Siegler

Pat Lykos

Jim Leitner

You're Not Listening!

2008-03-03T20:46:00.001-06:00

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

2008-03-02T20:16:00.001-06:00

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

2008-03-01T12:04:00.001-06:00

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.

The Wolf and the Yarmulke

2008-02-29T16:19:00.001-06:00

The Juish (as Kelly Siegler might say) witness whom DA candidate Pat Lykos ordered to remove his yarmulke writes in to AHCL's blog.

Trial Lawyers and Litigators

2008-02-29T14:08:00.001-06:00

AHCL keeps taking Pat Lykos to task for calling herself a "litigator" when she has, as far as anyone can tell, never actually tried a case of any sort, much less a criminal case.

I think the fact that Lykos calls herself a "litigator" is the best evidence that she has, in fact, never tried a case.

Trial lawyers are proud of their work; if someone claims to be a "litigator" you can bet dollars-to-donuts that she hasn't tried a case in years, if ever.

Litigation is what we do on the way to trial, but most litigation doesn't result in trial. All trial lawyers are litigators, but not all litigators are trial lawyers.

I think it's probably like "surgeon" and "doctor."

Or "astronaut" and "pilot."

"Homicide detective" and "cop."

"Marathon runner" and "pedestrian."

"Rock star" and "musician?"

Four Nasty Little Surprises

2008-02-29T13:34:00.001-06:00

I recently mentioned that part of being prepared for trial is having "nasty surprises for the State prepared." For each of the cases I have set for trial, I have an NLS prepared. Often the Nasty Little Surprise ("NLS") is the cornerstone of the successful defense of a criminal case.

An NLS can be a piece of evidence that I have that the State doesn't have; it can be a fact that I know that the State doesn't know; it can be something that the State doesn't realize it should have done, but hasn't; or it can even be a bit of law that the State isn't aware of.

Four examples of NLSes in past cases:

1. In a weed-in-the-car case, the fact that my (testifying) client was a lay preacher whose brother (who owned the car) had been convicted of possession of marijuana.

How you gonna convict a preacher for driving his brother's car with a roach in the ashtray?

2. In a two-kilo cocaine case, the law requiring the State to corroborate the testimony of the police informant.

This shouldn't have been an NLS -- the two prosecutors (one of whom is now running for DA) had no good reason to be unaware enough of this law. They should at least have been up to speed enough not to object so vociferously to my accurate statement of the law during jury selection. But I'll take what I can get -- the jury convicted my client's codefendant and acquitted my client.

3. In a murder case, the victim's mother's request that the jury put my client on probation.

This isn't the best example of an NLS for two reasons. First, I'm not sure this was a surprise to the prosecution, but if they knew of it they had a duty under Brady to disclose it. Second, I wasn't certain before she took the stand that she was going to ask for probation for my client, but I followed my gut and was right. My client got probation.

4. In another weed-in-the-car case, a video recording of the marijuana's owner confessing to my client that he'd left his dope in my client's car when he borrowed it.

This NLS I had before setting the case for trial; I didn't tell the prosecutor because I thought having the surprise sprung on him in trial might be a valuable lesson. At the next appearance a different prosecutor was assigned to the case. I told him that the case needed dismissing, but didn't tell him about the video until he was signing the motion to dismiss. (Prosecutors, you really should stop taking weed-in-the-car cases. When you're on intake and the cops call you with one, tell them to dispose of the weed and cut the guy loose unless they have something more than "he was driving the car and the weed was in the ashtray." Even if you think possession of less than a gram of marijuana should be a crime, these cases waste everyone's time.)

More of Dean and Me on the Marconi

2008-02-29T13:17:00.001-06:00

The other half of my appearance on the anti-drugwar radio show "Cultural Baggage" with Dean Becker, February 20th on Pacifica station KPFT. (Transcript.)

Here is the previously-posted first half, and the transcript.

Siegler Video is Up

2008-02-29T13:06:00.001-06:00

I finally got the video of Kelly Siegler and Murray Newman's appearance on Reasonable Doubt up and running. It's not as high-res as I would like, but it's watchable.

Now stop bugging me.

Wednesday Evening Staff Meeting

2008-02-29T12:27:00.001-06:00

Attention Houston-area criminal defense lawyers:

Back in The Day, before blogs (when I was a much younger lawyer) six or seven of us would gather at Jim Skelton's office on Richmond Avenue every Wednesday evening to discuss our cases with each other and with Jim.

My recollections of those sessions are fuzzy; there may have been beverages and/or food involved; sometimes other experienced lawyers would join us. It was a good informal way for us young lawyers to learn how little we had actually learned in law school.

I don't know why it stopped, or when (maybe when we moved out to the suburbs; maybe when Jim got disbarred the first . . . or was it the second? . . . time). The HCCLA listserv, which started on Topica.com back before Google was a verb (in fact, before Google was Google), probably had a lot to do with the end of the Wednesday evening sessions at Jim's.

I know Jim Skelton; Jim Skelton is a friend of mine; and, senator, I'm no Jim Skelton. But young lawyers nowadays lament the dearth of mentoring. So I aim to do my small part by reinstating the Wednesday evening brainstorming sessions.

Defense lawyers young and old are welcome next Wednesday evening, March 5, 2008 beginning at 4:30ish and going till 6:30ish chez Bennett. Bring your worries, your questions and your cases.

Please respond so that we know how many to expect.

Siegler Reasonable Doubt Video

2008-02-29T11:18:00.001-06:00

I keep trying to upload the video of the February 21st Reasonable Doubt with Kelly Siegler and Murray Newman to Google Videos using the Google Video Uploader. The upload seems to go smoothly (I've tried several times with different video formats), but the video never appears in my list of uploaded videos.

I can't figure out what the problem is; I welcome input or assistance from anyone with a fast connection and Google Video experience.

New York is Definitely Different

2008-02-28T14:06:00.001-06:00

The world of the New York criminal defense lawyer is very different from that of the Houston criminal defense lawyer; these differences go deeper than just the much greater number of cases that Texas lawyers try to juries. Scott Greenfield, writes about the plea offers mailed to 60 of the 62 alleged Gambino defendants in the Eastern District of New York:

According to the story, the offers ranged from 4 months to 20 years.

Lawyers with the U.S. Attorney's Office in Brooklyn said the plea offers were given to 60 defendants, including most of the high ranked crime family members hit in the 80-count racketeering indictment. Only reputed Gambino soldier Charles Carneglia, 61, and fugitive captain Nicholas Corozzo, 67, who face murder charges, weren't given offers, officials said.

That's to be expected. By taking out the little fish, the government gains leverage in getting the big fish. It's really just a variation on an old joke: Once they've determined who is a whore, they are just dickering over price. The next step will be the tantalizing prospect of cooperation, and a better offer, if only the defendants will give up the big guys.

Why the speed? Because the defendants have yet to retain counsel of their choosing. The feds want to get in there and entice as many defendants as possible to stay with their CJA lawyers, engage in negotiation, hold out the 5K1.1 carrot, before they lawyer up for real. It's not that the CJA lawyers are competent, perhaps even spectacular lawyers, but that they are not married to the ways of the defendants.

Those ways, as Scott describes them, are the ways of "men of honor":

Indulge my rhetorical statements here, since I speak of no one in particular and know nothing about any of the specific individuals involved in this indictment. But there is some history in these alleged organized crime cases that cannot be ignored.

In the old days, the men involved in organized crime believed in certain things, one of which was that they would never turn on their friends. They would take the heat. Do the time. Come out eventually and know that their families were provided for. They would hold up their end of the deal. Their associates, their bosses, would hold up theirs. Quite symbiotic, and one on which you could count.

That changed over time, as do so many of the old ways. Valachi. Gravano, D'Arco, Sessa, Scarpa. Embarrassments all, but a wave of the future. While this made for some fine movie insights, it was the end of honor. To the romantic, the end of honor made them ordinary criminals, unworthy of further interest.

In U.S. District Courts in Texas the Government very rarely makes plea offers carrying specific sentences. "Offers rang[ing] from 4 months to 20 years"? Fuhgeddaboudit. In every district in Texas, (c)(1)(C) pleas -- plea agreements that are binding on the court -- are exceedingly rare.

In Texas, as in New York, we sometimes have defendants who would never turn on their associates. Here, though, it's a matter of self-preservation or -- more often -- of the effective equivalent of "honor": family loyalty.

In New York, if you are an accused trying to get a reduction in your sentence by providing assistance to the government, your refusal to tell the Federal Government about all of cousin Louie's wrongdoing is a deal-breaker. Don't want to rat on him? No 5K1 for you.

In Texas, though, federal prosecutors don't generally have a problem with defendants keeping their mouths shut about their family members. Not ratting on cousin Louie won't buy you a 5K1 in Texas, but it won't stop you from getting a 5K1 if you can otherwise provide substantial assistance to the government.

In other words, federal prosecutors in Texas generally respect a defendant's decision not to bear witness against his brother; there are often "men of honor" on both sides of a criminal case.

The Best Free Show in Town

2008-02-28T10:56:00.001-06:00

If you find yourself downtown between 9:30 and noon on a weekday morning, drop by Judge Larry Standley's court, Harris County Criminal Court at Law Number 6, on the 9th floor of the Harris County Criminal Justice Center at 1201 Franklin Street (at the corner of San Jacinto).

Judge Standley genuinely cares about the defendants appearing before him, and the plea colloquy when he accepts a guilty plea from a 17-, 18-, or 19-year-old defendant is the best free show in town.

A sample:

He'll have the defendant's parent or guardian stand with the kid at the bench. Then he'll ask the kid: "How many friends do you have?" He'll press the kid to name a number. Five, ten, twenty-one, whatever.

Then he'll tell the kid to turn around and look at the courtroom. "How many of those friends are here for you today?" None (of course). "That's right. You've got one true friend, and she's standing right up here next to you."

Carry Me

2008-02-27T20:23:00.001-06:00

I've written before about the annoying (and unexceptional) experience of being set for trial, coming to court prepared for trial, and then having the trial continued or reset because the State is not ready, or the court wants to do something else, or the court reporter is out sick.

Slightly more irksome is going to court on Monday morning prepared for trial, trial box loaded, big white notepad under your arm, Spiderman bandaid on your finger, nasty surprises for the State prepared, hair cut, boots shined (more or less), and calendar cleared, only to be told that you are third in line for trial in that court that week, and that you should come back Wednesday afternoon. You are, in the argot, carried till Wednesday.

And then returning on Wednesday afternoon, equally prepared (the criminal defense lawyer's credo: always ready, seldom prepared), to be told that now you are second in line for trial in that court that week, but that of course the court won't be picking more than one jury, so thanks very much for being available and now we're resetting your case till June.

(In case you were wondering, this is what happened to our trial that was set Monday.)

If You Come See Bennett & Bennett . . .

2008-02-26T17:51:00.001-06:00

. . . do not wear a hoodie.

Someone just walked past the front of the home office wearing a dark hoodie, and both dogs (ROUSs -- Ridgebacks of Unusual Size) went absolutely insane.

Rhodesian Ridgebacks are excellent judges of character (else they wouldn't be welcome in the office); in their view, apparently, trustworthy people simply do not wear hoodies.

Faith-Based Legal Argument

2008-02-25T16:56:00.001-06:00

The same sorts of questions, it seems, pop up over and over again where lawyers gather to discuss the law. Questions like:

"Isn't it a violation of the disciplinary rules for a lawyer to talk to another lawyer's client about taking his case?"

and

"Shouldn't I put my client on the stand, so that I can make a record that I have conveyed the State's offer and he has rejected it?"

The correct answers (no and hell no, in these two specific instances) are easily ascertained by someone with more than a passing familiarity with the DRs. It's okay for a lawyer to talk to another lawyer's client because the client is not the lawyer's property, and because the client has the right to a second opinion or even to change lawyers. It's not okay for the lawyer to make a public record of his communications with his client because such communications are privileged, it is not in the client's best interest to have them aired publicly, and airing them publicly sets the lawyer and the client at odds.

Even in the face of references to the appropriate rules and opinions, though, many lawyers continue to believe that these questions may be answered yes and yes. Why?

Because this is what they have always done, or because this is the way they wish the law to be. But this is the law we're talking about here. "I believe" or "I always thought" or "It should be" very rarely trump the letter of the law.

Faith-based legal argument doesn't happen only in the arena of ethics, either. I've been told by numerous lawyers that it's against Texas law to possess prescription medication out of the pill bottle. Challenge them on it, and they insist that it's so. Press them, and they are unable to point to a statute or case. There is none; this is a jurisprudential urban legend.

Lawyers substituting uninformed opinions about the state of the law for actual legal research skills are young and old, prosecutors and defenders. They feed on each other -- when one faith-based legal scholar's opinion is not challenged by another, that opinion is confirmed and the need for actual legal research does not arise.

This can sometimes be frustrating to those whose first impulse, when faced with a novel legal question, is to fire up the laptop and research the answer -- those who can point to at least an approximate source (if not a casename or cite) for most every legal position they take.

When the faith-based legal scholar is an adversary, though, frustration can turn to joy. I'd much rather try a case against someone who assumes she knows the law than against one who knows that she doesn't know the law. The latter is more likely to actually get it right.

Trial Again Tomorrow

2008-02-24T20:01:00.001-06:00

Knowing that a bunch of Harris County prosecutors are reading sometimes cramps my blogging style. I've got a felony cocaine and heroin case (less than a gram of each) set for trial tomorrow, and I feel constrained to say nothing more at this point than this:

It's an automatic-probation case if we lose, but my client, a lawyer, has a whole lot more at stake than the State does. So I have been very thorough in preparing some rather powerful surprises for the State.

It's probably better this way. I was inviting all sorts of trouble blogging about trial tactics and strategies that might have had something to do with the cases I was trying.

Oh, and today I punched a hole with a heavy-duty industrial 3-hole punch through the fingernail on my left index finger and into the top of the finger. (The sound of a hole punch puncturing fingernail is not a pretty one.) Perfect 300-degree arc out of the nail, perfect circular profusely-bleeding incision. That's gonna leave a mark.

For jury selection should I wear a Spiderman bandaid or a Barbie bandaid?

Fond Memories of Snookems

2008-02-24T11:13:00.001-06:00

Ron-in-Houston writes about "when he first realized Pat Lykos was insane":

Little did I realize that I was about to descend into the twilight zone. One day I get a call at the office from Her Honor Pat Lykos ordering me to come down to the criminal courthouse. No consideration to my schedule was given, I was ordered to come down to the courthouse. It didn't matter that this crazy judge had no jurisdiction over me whatsoever. My client was obviously concerned about his future and apologetically asked if I would just cooperate.

So, I go to Lykos' court. She was determined to be a megalomanical chain smoking mediator in this case. I already knew this wasn't going to work. However when I was down there I must have expressed some displeasure at Her Honor's weird judicial tactics. She then tweaked me on the cheek and called me "Snookems." It was honestly a sexist demeaning tactic but I just continued on in the Pat Lykos dog and pony show. In the end, the whole attempt at judicial mediation failed. We ended up trying a civil jury case and the indictment against my client was eventually dismissed.

Now I've seen some crazy judges with bad cases of "black robe fever." However, this was truly insane. My honest impression was that Pat Lykos really was a few fries short of a happy meal.

The Lesser of the Two Evils

2008-02-23T14:49:00.001-06:00

Let's say there's a race for public office that you're interested in. And the ideal candidate is running for this office. But he really doesn't have a chance of winning because, when it comes right down to it, he's too much of a gentleman to do what needs to be done to win.

And let's say that there are two viable candidates for this office. And both of them have serious issues that makes you doubt whether either of them is suited to the job.

And let's further say that one of them is unquestionably much worse than the other.

So you've got A, who should get the job but can't; B, who shouldn't but who has a shot; and C, who really really really shouldn't but is the frontrunner. Whom do you vote for? A, because he's the right guy for the job? Or B, because your vote might keep C out of office?

Now suppose that you've got dirt on B. Do you publish?

The lesser of the two evils is, after all, still evil.

Lykos Reads the DA Playbook

2008-02-23T14:37:00.001-06:00

From AHCL, talking about Harris County Republican DA candidate Pat Lykos:

At a recent political event, she refused to speak until after the representative of the Siegler campaign had gone first (even though that wasn't the agreed upon order). Apparently, she didn't want anyone to follow up after her speech and point out (yet again) that what she said lacked all substance.

Now, it's funny to see AHCL, who often talks suspiciously like a prosecutor, complaining about someone "refusing to speak until [the other side] had gone first." AHCL's analysis is correct, of course: Lykos's actions suggest that she didn't want anyone to have an opportunity to point out that what she said lacked all substance.

So why is it funny?

It's funny because in every criminal jury trial in Harris County the prosecution has the opportunity to "close fully" -- that is, to make his complete closing argument before defense counsel gets up to argue -- and then to rebut defense counsel's argument, responding to anything new she brought up. (In Federal court, the Government is required to close fully.) Yet Harris County prosecutors never do so.

Instead they usually "waive the right to open [final argument] and reserve the right to close", forcing counsel for the accused, who has no burden to prove, do, or say anything, to anticipate and respond to the prosecutor's arguments. (If a prosecutor does not waive the "right" to open final argument, he makes only a bare-bones argument before the defense argues.) In other words, Harris County prosecutors almost universally "refuse to speak until the other side has gone first."

(There is a heretofore untested argument that the Texas statute that allows the State to have the last word before the jury is unconstitutional. Procedural due process -- so the argument goes -- requires that the accused have notice of the prosecutor's argument and an opportunity to be heard in response.)

It's fair for AHCL to conclude that Pat Lykos won't go first because she doesn't want anyone to point out that her speech lacks substance.

It's equally fair for jurors in a criminal case to conclude that the prosecutor won't go first because he's trying to pull the wool over the jury's eyes.

This sort of gamesmanship may well have a place in politics -- that's not my area of expertise. It should find no place in the courtroom when a person's freedom or his life is on the line.

Babies and Bathwater

2008-02-22T17:45:00.001-06:00

The Harris County Republican primary, with its fight among Jim Leitner, Kelly Siegler, Doug Perry, and Pat Lykos is very interesting. Conventional wisdom is that Pat Lykos, who may very well be the absolute worst candidate for the position (sharing Doug Perry's lack of trial experience but not his niceness nor honesty), has the nomination sewn up. Kelly Siegler's minions aren't giving up, though; they're going door-to-door every weekend talking to the people, getting a favorable response from voters, many of whom don't know that anyone but Kelly is running.

The Republican candidate will face ex-HPD chief C.O. Bradford for the job of D.A. Bradford hasn't come out to play with the other candidates yet -- he hasn't had any reason to -- but I'm hoping to get to know him better when there's one Republican left in the race.

We all know, though, that there's little chance the identity of the Republican candidate will make a difference in the general election in January. When all of the votes are counted, either the Republicans will have swept the countywide seats or the Democrats will have.

With that in mind, here's a table of the criminal district court (felony trial court) benches that are in issue this year. Looking down either column, there are at least a couple of people who should be judges and at least a couple who have no business being judges.

District Court	Democratic Candidates	Republican Candidates
174th	Ruben Guerrero or Lloyd Oliver	John Jocher or Terrance Windham or Bill Moore or Kevin Keating (no incumbent)
176th	Shawna L. Reagin	Michele Sattarelli Oncken or Brian Rains (incumbent)
177th	Kevin Fine	Devon Anderson (incumbent)
178th	David Mendoza, Jr.	Roger Bridgewater (incumbent)
179th	Randy Roll	Mike Wilkinson (incumbent)
337th	Herb Ritchie	Don Stricklin (incumbent)
338th	Hazel Jones	Brock Thomas (incumbent)
339th	Maria T. Jackson	Caprice Cosper (incumbent)
351st	Mekisha Murray or Silvia V. Pubchara	Mark Kent Ellis (incumbent)

So should we pull for a Democratic sweep? I think so. I'm inclined to believe that replacing the names in the righthand column with the names in the lefthand column would improve the overall quality of justice in these nine courts.

I'm also of the opinion that public servants should be reminded periodically for whom they work. That hasn't happened much in Harris County in the last 14 years -- Republican candidates have been pretty well assured of election once they bought the support of Steven Hotze.

Judges shouldn't be running in partisan elections. Whether a judge is a Democrat or a Republican should not matter; the position should be above such petty considerations.

If these eight incumbents lose their jobs in January, then their successors, as well as the other fourteen criminal district court judges and the fifteen criminal county court at law (i.e. misdemeanor trial court) judges will have received an indelible reminder that they do, and always will, answer to the voters rather than to the party.

Information Wants to Be Free

2008-02-22T08:31:00.001-06:00

In his lone post this morning, Scott Greenfield writes about a federal judge's attempt to shut down Wikileaks by "directing the Web site's Internet domain registrar to disable the wikileaks.org domain". The order came in suit filed by a Swiss bank complaining that Wikileaks had published confidential bank records.

The problem, as Mark Draughn (Windypundit.com) points out in a comment to Scott's post, is that you can't make a website go away by disabling the domain:

Speaking as a blogger, I'm pretty sure Judge White doesn't understand the 1st Amendment.

Speaking as an IT professional, I know he doesn't understand the internet. Disabling a domain name doesn't shut down a website. It just makes it harder to get to. Wikileaks is here:

http://88.80.13.160/wiki/Wikileaks

Check out Wikileaks; it's your civic duty.

Reasonable Doubt Tonight

2008-02-21T10:28:00.001-06:00

Todd Dupont, Kelly Siegler, [edit: Harris County prosecutor Murray Newman, ] and I will be on Reasonable Doubt live tonight at 8:00 p.m. Comcast channel 17.

Real Bloggers Get DOSed

2008-02-20T21:29:00.001-06:00

English barrister Geeklawyer apparently wrote something not-so-nice about ex-PM Tony Blair (who reportedly seeks to become president of the EU), resulting in the Blairites (Blairians?) attacking his blog with a denial-of-service attack.

Dean and Me on the Marconi

2008-02-20T20:58:00.002-06:00

About 30 minutes of the anti-drugwar radio show "Cultural Baggage" with Dean Becker, today on Pacifica station KPFT.

Elsewhere

2008-02-20T19:43:00.000-06:00

A tour of my "Read First" list in Google Reader:

Stephen Gustitis comments on a post by Dallas lawyer Brian Cuban responding to this post on Tom Kane's Legal Marketing Blog. I'm not sure whether Brian's point is really that he doesn't give a shit (his words) about his clients or that most other lawyers don't give a shit about their clients. It's not entirely clear I'm guessing it's the latter (and that the "I don't give a shit" of the title is ironic), because he distinguishes between "kick ass" lawyers and "don't give a shit" lawyers, and writes that the latter aren't reading legal marketing blogs, which he is plainly doing. Anyway, nice move for Brian, who clearly knows how to "reduce his reputation value".

Stephen also writes about fee setting. Never compete on price. If I've given the lowest bid for a particular job, I've screwed up.

APD asks if his home state, Fenwick, will ever get beyond the quick fix for its prison population explosion. All signs point to "no".

ACDL promises to blog more. You and me both, brother.

Curia Advisari Vult has passed 30 days with no posts, and has been demoted from my "Read First" list. As has Malum in Se. I feel the loss. Criminal Defender is about to be dropped from my "Read First" list for violating the 30-day no-post rule.

Brian Tannebaum shares his view of Ben Kuehne's money-laundering indictment: "As my friend Milt Hirsch said upon Ben's indictment: 'It's official, it is now a crime to be a criminal defense lawyer.'" To my prosecutorial readers: don't be getting any bright ideas, now.

Hunter Biederman brings us criminal defense lawyer John May's statement in support of Ben Kuehne. "To target an adversary like Ben Kuehne, who is held in such high regard by the community and whose integrity is unquestioned, sends a message that any lawyer is at risk, even concerning previously unheard of prosecution strategies like those used here."

Grits for Breakfast is conducting a "mini-campaign" to get two criminal justice-related resolutions passed at Texas precinct conventions on election night. Vote twice!

Under the category of "what the heck was Young Shawn thinking?", he asked his insurance company if his car would be covered if it were destroyed in a terrorist attack on the Federal Building next to his building in Fort Worth. (Answer: No, terrorism is an "act of God"!) Shawn, you do know that you're on all sorts of lists now that a good little Republican shouldn't be on?

MacLitigator describes how to add a "recent documents" stack to your dock in OS X 10.5 (H/T Criminal Defense Law with a Macintosh for the link to MacLitigator).

Ken Lammers (Blogging Since '73) has a paranoid labrador retriever.

Deliberations, the best jury blog ever, has discovered another good jury blog, Thaddeus Hoffemeister's Juries. Thaddeus (query: real name or pseudonym?) tells us about a California lawyer who might face disbarment for actions he took as a juror.

David Tarrell sounds the alarm about the slow death of the exclusionary rule.

David Feige (whom I somehow conflated recently with David Tarrell; sorry David) is flying cross-country first class and driving around California in a convertible. Didn't David used to be One of Us?

AHCL, of course, is writing about Harris County District Attorney politics. God bless her for providing all those scared ADAs a place to vent and praise themselves in comments.

Cool Tools reviews boots. I generally want to try one of everything reviewed on that site, but I'm not so sure about the zip-up combat boots.

Lifehacker has more lifehacking ideas than I can keep up with. That one requires frequent "mark all as read" operations.

Lemon Gloria, a classmate of mine from high school on the other side of the world, is engaged and shopping for cakes. Congratulations, LG!

In other non-law news, 43 Folders brings an introductory post on the best of GTD. If you're a lawyer and unfamiliar with GTD, read about it.

Back to the law, Missouri Criminal Defense Lawyer Randy England writes that Missouri's proposed new death-to-cop-killers law, which essentially creates a (probably unconstitutional) presumption of deathworthiness for murderers of criminal justice officials, would probably make things easier on cop killers. Question: why aren't criminal defense lawyers -- at least PDs -- included in the list of criminal justice officials whom it is especially wrong to kill?

Philadelphia Criminal Defense Lawyer Mark Jakubik praises the federal government's hounding of Roger Clemens. In related news, please see Houston media whore, sports fan, and, oh yeah, writ lawyer Brian Wice's awards for participants in the Clemens hearing.

Simple Justice has posted 64 times since I began writing this post. He riffs on one of Young Shawn's posts with extremely funny results; he also posts a cite to this Reasonable Doubts post about a judge wearing, beneath the robe, a cocktail dress, fishnet hose, and high heels . . . which might be a somewhat more appealing image had the judge not been a he. Boston, of course. (Denny Crane.)

Reasonable Doubts joins my "Read First" list this week, as do Juries and Ron's Insanity, by anonymous Houston lawyer (but not criminal defense lawyer) Ron.

The Rorschach Ink-Blot Debate

2008-02-20T16:04:00.001-06:00

There was something for everyone last night; supporters of Kelly Siegler liked how she came out, supporters of Jim Leitner thought he clearly won. Supporters of Doug Perry saw a honest, nice man who would be the right guy for the job if the job were what he thinks it is: a CEO / ambassador position that doesn't involve leading 250+ trial lawyers. Even supporters of Pat Lykos thought their candidate looked most like a district attorney.

One of the two candidates who has never tried a criminal case (Doug Perry) took some heat for it. The other (Pat Lykos) got a free pass; I wonder if the candidates seriously believe that presiding over criminal cases as a judge is somehow equivalent to trying them as a prosecutor. It isn't.

Here (part I) and here (part II) is KHOU's video of the debate. Here is the Chronicle's coverage. Here, here, and here are AHCL's other posts about the debate.

Jim was unscripted, fluent, and passionate. Pat was the opposite, but had a big made-for-TV smile on. Doug Perry was a decent human being, a little out of his depth. Kelly seemed uncharacteristically nervous; she could have stood to have smiled a bit (though I did notice her holding back a laugh both times Pat said "rule of law").

Almost everyone seemed to agree that there were problems with the culture of the DA's office. Everyone but Kelly, who (for obvious reasons) argued that Chuck was the whole problem.

There is certainly a public perception that the Harris County DA's Office suffers from a culture of arrogance.

Is this perception well-founded (and therefore fair)? Yes. The Office has been opaque in recent memory, and every time its culture has come to the public's attention, arrogance has been revealed.

Is it fair to hold Kelly partly responsible for this perception? Absolutely. Kelly has been the single most prominent member of the Office in the last eight years; she rose to prominence in Chuck Rosenthal's Office. That Office is a bureaucracy. If Kelly had been an agent for change in Chuck Rosenthal's Office, or if she had even sought change, there would be a record -- a memo, an email, meeting notes -- of it somewhere. If she, a division chief (only the First Assistant and Chuck Rosenthal rank higher than her on the organizational chart), was not an agent for change -- if she didn't even try to change things -- then it's not unfair to hold her accountable for the DA's office culture, even if -- as AHCL insists -- Chuck kept his own counsel.

Is the public perception that the Harris County DA's Office suffers from a culture of arrogance accurate? As an outsider more acquainted with the office than most of the public, I've been saying so for years. (A search of my hard drive reveals that I first used the phrase "culture of arrogance" in writing in March 2006 when a young prosecutor berated a jury for its verdict, the jury complained, and the elected DA criticized the jurors for complaining. At the time I believe Kelly Siegler was in charge of the Office's Professional Development Program, which should have been instructing young lawyers in their ethical duties as well as winning at all costs.)

I think a culture of arrogance is an inevitable result of taking callow lawyers -- children, really, with no experience of the difficulties that most of the humans passing through the courthouse suffer every day (do I exaggerate? AHCL earnestly described January as the "the worst month of [ADAs'] professional lives") -- and putting them in charge of deciding which of those humans go to prison and which go free without ethical adult supervision.

Is it fair to hold Kelly partly responsible for this truth? Absolutely, and for the same reasons that would be fair to hold her responsible for the perception even if the perception were not true. Further, Kelly's own philosophy, stated in the public TV candidates' debate last week -- "our job is to decide who is guilty and then do everything possible to convict them" -- may play well with the voters, but it is not the law (as -- it pains me to say this -- Pat Lykos keeps saying), and it expresses the essence of prosecutorial arrogance

It is not only the defense lawyers and public who have noticed the arrogance of the Rosenthal-Siegler DA's office; judges have noticed as well. A judge who came to the bench directly from the Office (as though that narrows things down at all) commented to me recently that the uncertainty in the DA's Office might make some prosecutors less arrogant. "They need it," he said.

(The last six weeks of uncertainty, incidentally, have worked wonders on the prosecutors' arrogance. It is a rare public servant whose attitude is not improved by the realization that he serves at the pleasure not only of the Republican Party but also of the human beings who vote in the elections. The difference down at the courthouse has been conspicuous.)

As much as change is needed in the DA's office, however, Pat Lykos said nothing in yesterday evening's debate to convince me that she will bring better change than Kelly Siegler. I think Kelly would make a better DA than Pat Lykos. So why do I pick on her? Because for some reason I expect better of her.

Given that the debate wasn't likely to change anyone's mind, I thought of a question that I wish had been asked of the candidates:

If not you, then who? Who is the second-most-qualified candidate for the position you seek?

I've emailed the candidates to ask them.

The Mote and the Beam

2008-02-20T10:04:00.001-06:00

When asked about the minority composition of the DA's office at last night's debate, Kelly Siegler stated that the DA's office has more black and hispanic lawyers than the bar as a whole. I suspect that she knows what she's talking about.

This made me wonder: how does the Harris County Criminal Lawyers' Association's diversity compare to the Harris County DA's Office's?

Proper Accreditation

2008-02-19T15:16:00.001-06:00

My apologies to a journalist, whose yesterday's column I shamelessly ripped off without attribution in a blog post four days ago.

When this journalist quotes from my blog, she has the good manners to cite it as "an attorney blog"; I should have the same courtesy when I write something that she will write three days later.

Thought for the Day

2008-02-19T09:43:00.000-06:00

We -- all of us -- are no more than one traumatic brain injury away from committing capital murder.

. . . Gone!

2008-02-15T17:38:00.002-06:00

Chuck Rosenthal has resigned, effective 3 p.m. today.

In his letter of resignation he writes:

Today, I wrote Governor Perry and tendered my resignation as Harris County District Attorney. My decision to retire from office was precipitated by a number of things.
The federal court's release of my private emails around Christmas of last year brought a lot to bear on my wife and children. I have been trying to restore my family as a unit, but the constant media pressure has made that restoration more difficult. I am hopeful that, in my retirement, the media will accord my family the privacy we need to heal.

Although I have enjoyed excellent medical and pharmacological treatment, I have come to learn that the particular combination of drugs prescribed for me in the past has caused some impairment in my judgment.

How does the "impaired judgment" story affect Chuck's potential perjury / obstruction of justice / tampering with evidence charges? I don't think "the drugs made me do it" is a legal defense to any of these charges, but I don't see anyone who believes the story being gung-ho to prosecute Chuck for obstructive conduct that was a result of his impairment.

Dr. Sam Siegler has been described as Chuck's personal physician; from the emails released back in January it appears that Dr. Siegler's office was Chuck's go-to source for prescription meds.

Who prescribed the drugs that impaired Chuck's judgment? Dr. Sam Siegler?

Who is Dr. Siegler married to? Kelly Siegler.

Whose position is Kelly now running for? Chuck's.

Cozy, no?

Did Chuck's impairment escape the notice of those who worked with him at the DA's Office? If you realized that he was impaired, why didn't you speak up? If you realized it and didn't comment, or didn't realize it, what does that say about your judgment?

The DA's judgment is everything. The job of DA is about nothing but judgment. For the past eight years Chuck Rosenthal has been the guy with his finger on the metaphorical button, which in his case is a plunger on a syringe full of pancuronium bromide and potassium chloride. Chuck has made decisions that have cost people their freedom and their lives. Do those people get do-overs now that Chuck claims his judgment was impaired?

The resignation letter continues:

The Texas Attorney General's office has informed my attorney that they will not proceed with a removal action if I resign. Without commenting on the merits of any case the Attorney General may have pursued, to have yet another controversy surround this office is intolerable to me.

Of course the AG wouldn't proceed with a removal action if Chuck resigned. Does Chuck's inclusion of this paragraph mean that the AG had informed Chuck's attorney that he would proceed with a removal action if Chuck did not resign?

Chuck closes his letter with praise for the ADAs:

I am extremely proud of the work that the ladies and gentlemen of this office do for the citizens of Harris County. They have too many cases, are under compensated, and are often unfairly criticized for the hard decisions they make in fulfilling their mandate to see that justice is done. The residents of Harris County need to appreciate the great work these folks do. As the saying goes, "If I were asked to lead a charge on Hell, I'd want these people in my ranks."

I expect those ADAs' response will be something along the lines of "gee, thanks." Until six weeks ago, they would all probably have followed Chuck on his charge into Hell; most of them now feel like, in the past five weeks, they have.

The big political question now: who gets appointed DA until next January?

If the governor is a pure political hack he'll anoint one of the Republican nominees -- HCRP favorite Lykos or, if Chuck cut a deal before resigning, Siegler. Otherwise he appoints someone who is not already running for the office or leave it in the hands of First Assistant Bert Graham for the next 11 months.

A Little Respect . . .

2008-02-14T17:35:00.001-06:00

All five candidates for Harris County District Attorney were invited to speak today with the board of directors of HCCLA, the Harris County Criminal Lawyers' Association, after a board meeting.

Only one of them bothered to show up: Kelly Siegler. (C.O. Bradford had spoken to the board before Chuck Rosenthal's meltdown.)

[Edit: Jim Leitner and Pat Lykos say that they were not aware of the invitation. It appears that Kelly and Pat both sought to speak to the HCCLA Board and were both emailed invitations, but Pat's did not reach her. My initial statement that all five were invited was based on a miscommunication. Pat had also wanted to speak to the HCCLA Board, and Jim is an HCCLA member.]

Kelly knew darn well that nobody in that room was likely to vote for her in the Republican primary -- we're all either Democrats or Jim Leitner supporters or both. Even if we voted for her, she knows that we don't have enough political stick to make a difference in the Republican primary. [Edit: She also knew that HCCLA is not endorsing any candidate in this race.] But she came to talk to us anyway, because she wants to do a good job as DA and she recognizes that HCCLA represents an important group of stakeholders in the criminal justice system.

Kelly fielded some tough questions about her conduct in the Temple case, in which she applied for a bench warrant in one case to bring an imprisoned witness to Harris County so that she could interview him about another case in a different court. Kelly saw nothing wrong with this conduct, and seemed not to have considered the possible application of Texas Penal Code Section 37.10 to her behavior. "That's the way we always do it."

Aside from the interesting little question of whether "the way we always do it" is a crime under the Texas Penal Code, Kelly had some things to say that reduced my concerns that a Siegler administration would be four more years of the same.

"We might," Kelly conceded, "not be complying with Brady as well as we should." This was one of her reasons for promising to allow defense lawyers to copy offense reports.

Regarding pretrial diversion, Kelly said that she would work with the defense bar to agree on a general set of guidelines for people who might be eligible for pretrial diversion. These guidelines would be disseminated to the defense bar so that defense counsel would have a general idea of when their clients might successfully seek pretrial diversion. Then instead of having one person (currently the misdemeanor division chief [edit: for misdemeanor pretrial diversions, and the felony division chief for felony pretrial diversions]) decide who gets pretrial diversion, Kelly suggested that there should be 5-10 people on a committee making the decision. This would create consistency in the decision-making process [edit: over time].

When asked about unprofessional conduct among assistant DAs, Kelly seemed somewhat surprised to learn that such conduct was commonplace. She had no specific solutions, but promised an open door for defense lawyers to air their complaints.

Kelly also agreed to improve communication between the prosecutorial and defense bars by attending, with her upper management, regular meetings with the defense bar's leadership.

"We need to do a better job of explaining to new prosecutors that Brady includes inconsistent witness statements," she said, and offered to send prosecutors to Brady training sessions conducted by the defense bar, even though "we might not agree with you."

Kelly described the current Office policy of not agreeing to less than 10 days on first-time prostitution cases as "outdated and stupid." (I assume that she didn't think that the minimum should be more than 10 days, but we didn't discuss that.)

When discussing 12.44(a) time (the section of the Penal Code that allows the State to agree to county jail time for some felonies), Kelly said, "It's not our job to worry if the jail is overcrowded. If we want to 12.44(a) someone that's our business."

Kelly was able to give the first coherent explanation I've heard of the Harris County DA's refusal of summonses for class B marijuana cases: "It'd screw up the whole intake system."

Kelly promised a larger major fraud division, which would be better at investigating and working up the white-collar crime cases. This brought a smattering of applause from the defense lawyers.

One of her first priorities if elected would be to "take care of the groups that got their feelings hurt" by Chuck Rosenthal.

Kelly came out strongly against DAs lobbying against life without parole. That lobbying was because LWOP would result in juries assessing death less often; Kelly called it "wrong." (I'd've called it "heinous", but "wrong" will do in a pinch.)

Speaking of the death penalty, Kelly proposes changing the way the DA's Office decides whether to seek death. Instead of depending on a memo written by the chief prosecutor in whatever court the case happens to land in (a prosecutor who may not have tried a death penalty case), Kelly suggested that she would require the division chief to be familiar with the entire file, including mitigation evidence.

As I understood it, Kelly favored letting outsiders clean up the HPD crime lab mess.

Finally, Kelly said that Dallas DA Craig Watkins "has got some good ideas."

We didn't talk about racism in the DA's Office. Or about Mensa. This is by no means an endorsement. I still doubt that Kelly will bring as much needed change to the Harris County DA's Office as Jim Leitner. But I'm convinced that she'd be a good start.

If I had to choose today between Kelly Siegler and Pat Lykos, or Kelly and whatsisname Perry, I would choose Kelly. Today she showed the defense bar some respect, and a little respect, when you're a criminal defense lawyer, goes a long way.

Copies

2008-02-13T20:39:00.001-06:00

Ask any Harris County criminal defense lawyer, and she'll tell you that criminal defense lawyers should have copies of offense reports. Ask any Harris County felony chief prosecutor whether the defense lawyer is right, and I'll bet (based on my highly-scientific survey of 9% of such chiefs) that you'll get the same answer.

If I could file a notice of appearance on a case in Harris County and immediately make a photocopy of the offense report, I would be able to spend less time reviewing the prosecutor's file, and the prosecutor would be able to spend less time making his file available to me. We would all be able to go about the business of practicing law with much less time wasted in note-taking. The prosecutors I've talked to agree.

So if defense lawyers here and elsewhere and prosecutors (and even AHCL [Is she a prosecutor or a defense lawyer? Only her hairdresser knows for sure!]) are in agreement that defense counsel should have copies of offense reports, what has the holdup been for the last umpty-ump years?

One possibility is that some of the 30 or so police agencies that the Harris County DA's Office takes reports from might object to the Office providing us with copies of "their" reports. I am guardedly optimistic about the candidates' recent announcement that they will allow defense counsel to copy offense reports; I won't be surprised to see whoever gets elected announce that after further consideration and study the idea no longer appeared feasible -- for example, because of resistance from police agencies.

What kind of resistance? One of my correspondents suggested that the police agencies might threaten to leave things out of offense reports -- to ambush defense counsel -- if they knew the offense reports were going to go to defense counsel. Indeed, he suggested that this might have been the scenario in which the DA's Office (under Johnny Holmes, if not earlier) forbade defense lawyers from copying offense reports.

If that was the police agencies' threat, it is a hollow one. I always love to have cops testify to things that weren't in the offense report. Every halfway decent defense lawyer has her patter for these occasions -- build up the officer's training and all of the reasons that it's important to write a complete and accurate offense report, including all of the relevant facts; and then reveal to the jury that facts X, Y, and Z weren't in the officer's report. Juries, I think, generally believe that the cops are making up the parts of their testimony that weren't in the report, and they stop trusting the police. So if police agencies started leaving out facts to hit the defense with at trial, it is the success of the prosecutions of their cases that would suffer the most. If the DA's Office learned that certain cops were deliberately omitting facts from their offense reports, it could stop taking reports from those cops.

There are other quibbles about providing offense reports to defense counsel. One is cost -- why should the State bear the cost of providing copies to defense counsel? The answer is that the State has picked the fight and shouldn't be surprised to pay a little to make sure the fight is fair. Aside from that, though, defense lawyers would be perfectly happy to pay reasonable copy charges for offense reports. Within a few years all of the offense reports will be available to the prosecutors in electronic form (most are already), so that there will be no cost in forwarding them to defense counsel.

Another quibble is that letting defense counsel copy offense reports might put Vulnerable Witnesses' information in the hands of Dangerous Defendants. The DA's Office has had a general de facto open-file policy for decades, though, allowing defense lawyers to take thorough notes ("but not word-for-word" -- they used to even refuse to let me take notes on my laptop) from offense reports, and we haven't had an epidemic of witnesses being intimidated and whacked.

The DA's policy against allowing defense counsel to copy offense reports was one of the smaller things wrong with the current and last administrations. It's heartening to see even the most anti-change candidate for DA come out in favor of changing the policy. But there are other policies that need change as well; time will tell if the candidates are interested in making these changes and strong enough to actually do so.

The Fourteenth Amendment Right to Sex Toys

2008-02-13T17:38:00.001-06:00

The Fifth Circuit Court of Appeals has recognized Texans' Fourteenth Amendment right to use (and therefore to buy) dildos:

Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.

As one who thinks that the word "moral" belongs nowhere near the words "the State", I have to say, "bravo!"

National Politics

2008-02-13T17:21:00.001-06:00

Other blawgs aspire to be apolitical.

Not Defending People.

Everything we do is about politics -- the way groups make decisions. There is nothing more political than trying to convince twelve jurors that we have the right side of a dispute. Seen up close, trial lawyering is pure politics.

On a slightly larger scale, we deal with the politics of the elected officials we deal with. In Texas, both judges and district attorneys are elected in partisan elections; criminal defense lawyers must consider how partisan politics might play into judges' decisions, as well as prosecutors'.

On an even larger scale, national politics affect local politics. An extreme example is barreling down on us in November: the Democratic Party has a full slate of judges running against Republican incumbents in the criminal courts. Voters don't generally know one judge from another. If the Democratic Party wins in Harris County, then the incumbent judges are out; if the Republican Party wins in Harris County, then the incumbents (along with the Republican nominee for the one bench that's coming open and for the office of District Attorney) are back in.

Judges should not be elected in partisan elections; several of the judges up for reelection are worthy of their office despite their Republicanism. Nonetheless, a Democratic sweep would have a salutary effect in Harris County. For as long as I've been a lawyer, Republican County judges haven't had to worry about being unseated by Democrats. If they boughtgot the endorsement of the Republican power brokers (especially Steven Hotze), they were assured another four years on the bench. Our public servants -- especially the elected ones -- should never be so secure in their jobs that they can stop caring about serving the public.

So my view of the best Democratic candidate for president is informed by my read on the effect that each candidate would have in Harris County. In my untutored opinion, if Hillary Clinton is the nominee the right wing of the Republican Party will mobilize to vote against her, and the Republicans will probably hold on to Harris County. If Barack Obama is the nominee, on the other hand, Democratic turnout will be huge, and might be enough to turn the tide.

In the words of one judge, "If Obama is the Democratic candidate, we [incumbents] are screwed."

Amen.

Happy Anniversary Friends

2008-02-13T16:46:00.001-06:00

Scott Greenfield's Simple Justice blog just celebrated its one-year anniversary. Anne Reed's Deliberations celebrated its anniversary on Saturday.

I had a blog back in 2004-2005, when the blawgosphere was young. I posted 17 times between August 2004 and June 2005. Then I quit, figuring that this "blogging" thing would never catch on.

When I resumed blogging in March of 2007, Anne and Scott both seemed like old-timers. I never would have thought that they had been at it for less than six weeks. (Of course, they're both still blawgosphere virgins, compared to CrimLaw's Ken Lammers, who's been blogging since 1973.)

Simple Justice (an ironic title -- we're generally scrambling to avoid someone else's idea of justice) and Deliberations, along with Jamie Spencer's Austin Criminal Defense Lawyer blog, gave Defending People some of its first link love. This wasn't because I asked for it but because I linked to their interesting posts.

I could make a full-time job of riffing off of Scott's posts. In the last week he's had two posts about important stories that I might not have heard about elsewhere.

First, The Hidden Risks, about the money-laundering indictment of a Miami criminal defense lawyer who was paid some $200,000 by Miami criminal defense lawyer Roy Black to investigate the source of the $5 million fee in a federal criminal case, and to make sure that it was clean money -- not proceeds of illegal activity. The lawyer gave the money a clean bill of health, and was then indicted for laundering it.

This is a cautionary tale for lawyers (the Southern District of Florida is the most common source of such tales); here, Roy Black (the lawyer taking the Really Big Fee) did everything right, which kept the feds (who, in that district, tend to aggressively attack competent defense counsel) from charging him with money laundering, but led them to charge his lawyer with that crime.

The other Simple Justice story that caught my attention this week was today's When the Lawyer Fails, about Alexandria, Louisiana lawyer Glenn G. Cortello, who dropped the ball in his client's federal sentencing. He failed to point out to the judge that his client was eligible for the safety valve, which would have allowed the judge to disregard the statutory minimum sentence. So the judge sentenced the client to five years. Until Matthew Sinor, a law student and army buddy of the defendant's, pointed out to the judge that the defendant could benefit from the safety valve. The judge went back and resentenced the defendant to time served (11 days).

Cortello's response to his client's sentence being gutted: Glee? No. Relief? No. Acceptance? No.

Sergeant Lett’s defense lawyer, who had been paid $10,000, did not appreciate Mr. Sinor’s intercession, which he called “insulting.”

“If you think five years was a bad job on my part, then you wanted a magician and not a lawyer,” the lawyer, Glenn G. Cortello, wrote to Mr. Sinor in an e-mail message. “When you get out of law school and have practiced criminal law for over 20 years, I’ll discuss it with you.”

This is the kind of crap that gives lawyers a bad name. Clearly, the law student had something to teach the guy who had been practicing criminal law for over 20 years. Nobody likes to be shown up, but, dammit, if we screw up and our clients suffer because of us, we should be ecstatic to have someone else correct our errors.

(This might also be a lesson in the internet's power over reputation: for time immemorial, potential clients seeking Glenn Cortello in Google are going to find references to this story.)

"Just" a DWI Jury Trial?

2008-02-13T12:39:00.001-06:00

Scott's condescending attitude toward DWI trials had me thinking this week:

Hey, after I get out of my DWI trial I should maybe write something about the importance of DWI trials.

So here I am on the other side of another DWI trial.

DWI cases aren't beneath the dignity of any criminal defense lawyer in Texas that I know of.

Sure, they are "not murders or conspiracies", but in Texas (which is where people naturally go to find trial lawyers) the defense lawyers who try murders and conspiracies are also lawyers who try DWIs.

In Texas DWI is a jailable offense (up to 180 days) and a DWI trial is a real jury trial (unlike my 30-minute minor-in-possession trial last Friday; that was not what I would call a real jury trial).

Now, granted, we're only picking six jurors out of a pool of 24 (rather than the 12 out of 60 that is par for the felony course). And, granted, the client's not going to go to prison if things go wrong. And, granted, the DA's office isn't throwing its most experienced prosecutors at the misdemeanor DWI cases -- more likely, they're using it as a training ground for the youngest prosecutors.

But a DWI is extremely serious to the people accused of it. DWI is the most serious thing that most of them will ever be charged with. A conviction -- guilty plea or jury trial -- remains on a person's record forever and costs $1500 a year in driver's license surcharges. So rational people accused of DWI are willing to pay to fight the accusations.

A DWI jury trial is usually almost risk-free for the accused. By this I mean that the accused is not likely to receive much more severe sanctions for trying the case (a "trial tax") than he would for pleading guilty -- he is probably going to get probation (if he wants it) if he pleads guilty to a first DWI, and he's probably going to get probation (if he wants it) if he goes to trial and is convicted. But nobody ever got acquitted by pleading guilty. So, from the perspective of the accused, most first-time DWIs should be jury trials rather than guilty pleas.

In a DWI trial (lasting two days or more), a criminal trial lawyer, at a bare minimum:

Picks a jury;
Makes an opening statement;
Cross-examines two cops (at least);
Raises and responds to objections; and
Argues to a jury.

He might also deal with sophisticated suppression issues and scientific testimony (no wiretaps, and no autopsy reports, but lots of issues of real substance), or examine witnesses on direct.

The cops in DWI cases are no less professional testiliarsfiers than the agents in federal cases. The task force cops don't have that formal Quantico "look at the prosecutor when he asks the question, then turn and answer the question to the jury" training that federal agents have, but they get more on-the-job training on the jury stand.

A trial lawyer's tools are his skills -- listening, cross-examination, rhetoric, and so forth. Tools get rusty and dull with disuse; the only way that trial lawyers can keep the tools in their toolboxes clean and sharp is to use them, and the only way to use all of those tools together is to try lawsuits.

The DWI jury trial provides the criminal defense trial lawyer with a way to maintain his skills -- to stay in shape. Along the same lines, it gives him a warmup for the heavier lifting of the major felony cases. Finally, it also allows him to try new techniques in an environment of little risk to his client. If you're going to try a new way of relating to jurors, better to do it in a DWI jury trial than a murder.

That's why, unlike our Gucci-loafer-wearing brethren in New York, we Texans -- even those of us who try murders and drug conspiracies -- don't scoff at DWI jury trials.

Me and Buford on the Teevee

2008-02-11T19:32:00.001-06:00

More public access TV stuff: Drugs, Crime and Politics with retired South Texas College of Law prof Buford Terrell.

Picked a Jury Today

2008-02-11T18:19:00.000-06:00

DWI -- total refusal with no accident, but driving facts include alleged flight from the police (a felony, with which he would undoubtedly have been charged if the cop were not making it up).

Unusual jury demographics for Harris County:

A 29-year-old hispanic male waste company driver;
A 50-year-old black female loan closing manager;
A 63-year-old retired white lady from Brooklyn;
A 42-year-old black female teacher's aide;
A 28-year-old black club manager; and
A 49-year-old black FedEx driver.

If the State can convince these six that my client is guilty of DWI, he might just be.

Chron is Clueless Again

2008-02-10T12:35:00.001-06:00

The Houston Chronicle editorial board has endorsed Pat Lykos for DA. The column endorsing her regurgitates her campaign soundbites -- basically, she sold herself to them. There's a lot of empty air in Lykos's campaign promises. In fact, they are almost 100% empty air. But the Chronicle editorial board doesn't understand the criminal "justice" system any better than the voters, so Lykos's empty promises sound good. With this endorsement, the blind are leading the blind.

Virtually everybody who actually practices law down at the Harris County Criminal Justice Center, however, agrees that Lykos is not the best person for the job. AHCL and I might disagree on whether she is the worst, or only the second- or third-worst of the four-candidate Republican field, but we -- and the vast majority of defense lawyers, prosecutors, and judges we know -- agree that Jim Leitner, at least, is a better choice for DA than Pat Lykos.

The good thing I can say about her is that, if elected, she'll bring change that Kelly Siegler wouldn't bring. The anarchist in me relishes the idea of the DA's office being gutted by (or gutting itself under) Lykos and taking a decade or more to recover. I have reason to think that a Lykos administration will be repugnant to the judiciary (most of whom came up as prosecutors under Holmes or Rosenthal) as well, which will probably help to end their feeling of affinity for the DA's Office. The quality of justice will likely improve when judges feel less familiality with the prosecutors in their courts.

The pessimists in the criminal defense bar worry about an influx of new criminal defense lawyers -- refugees from the DA's office -- if Lykos becomes DA. They feel threatened by the prospect. I'm not worried about it -- few people could come out of that office and immediately be a real criminal defense lawyer, and those that do will displace the pretenders who already embarrass the criminal bar.

But still I am keenly aware that, in the words of Pat McCann, "things could always be worse."

More Public Information from HCSO

2008-02-08T17:54:00.001-06:00

The Harris County Sheriff's Office responded to my email request for "all documents related to the Harris County Sheriff's Office's email retention policy, including emails and other correspondence discussing the policy and changes to the policy [for the time period from January 9, 2008, through January 18, 2008]."

Here are the 24 pages of email they sent me.

The oldest emails are from detectives, with complaints like "this policy change is killing us in Detective unit . . . I had numerous files that are needed in cases that are currently being worked that were saved in those files" and "I have things I was working on that are gone and I cannot get back or track on what was done."

The newer emails describe how to add personal folders to an email account ("contents of the folder are not deleted by the Department"). The most recent discuss how to retrieve "deleted" email, which is apparently not deleted to Chuck Rosenthal's standards, but rather preserved on tape.

Make of that what you will.

Take Two Aspirin But . . .

2008-02-08T17:43:00.001-06:00

If it is before noon and a weekday, I am probably chugging along at either the Harris County Criminal "Justice" Center or the Houston federal courthouse. If I'm not in trial, I'm taking notes on a file, or negotiating with a prosecutor, or investigating, or filing stuff.

If you call me, I will probably answer the phone. Because I never know when it's an emergency, and when I'm doing most of those things I can still answer my phone.

But I'll be preoccupied, in the zone, focused, and intense. In other words, I will seem unfriendly. If it's not an emergency (that is, something that you need me to do something about before noon) I'll probably ask that you call me back after noon.

So, unless it's an emergency, please don't call me in the morning.

Let the Government Clean Up its own Mess

2008-02-08T16:32:00.001-06:00

Scott Greenfield has an interesting pair of recent posts: The Conflicted World of Assigned Counsel and today's Rebirth of the Megatrial.

In the first, Scott argues that New York's appointed counsel system was not intended to, and should not, provide livings for criminal defense lawyers:

[T]here should never have been an 18b bar to begin with. It was my thought that no lawyer should be permitted to do more than 10 assigned cases a year. That way, no one would ever be able to build an entire practice on assigned counsel work alone. They would be required to find retained clients or else a new line of work. No one should live solely off of assigned work, and if they wanted to represent indigents that badly, they should get a job with Legal Aid.

In the second, Scott brings word of two related massive indictments: a 62-defendant federal indictment out of EDNY and a 26-defendant state indictment out of Queens County. That should be joyous word for the criminal defense bar -- "massive indictments inexorably lead to massive trials", for which 87 (New York math?) alleged members and friends of the alleged Gambino crime family each will need competent counsel. But

there is a strong likelihood that many (if not all) of the defendants will be unable to retain counsel to represent them in this matter. Between the limitations on funds available for use to retain counsel, the sheer anticipated length of this case, the potential conflicts of interest that will preclude the usual assortment of lawyers who represent alleged organized crime figures, it is hard to imagine that many defendants will be capable of retaining counsel for the trial.

We're talking about a possible year-long trial, if history (the Pizza Connection case, which saw 22 defendants tried in a converted gymnasium for more than sixteen months) is an indicator (but N.B. the Pizza Connection case wasn't tried in the Carnival of Snitches that is today's federal criminal justice system; since then the system has developed to create incentives for snitches so that prosecutors can avoid most trials entirely).

Think of the economics of that: to hire a rational lawyer to try a case for a year, first you'll have to pay her for the months and months, if not years of anticipated pretrial litigation, evidence review, and trial preparation. If the case went to trial for a year, you would have to pay that lawyer much more than her anticipated gross for that year. She's not going to be working on much aside from your case, so you'll be paying her rent, Westlaw bills, staff, insurance, utilities, and everything else that she needs to stay in business. Further, there is a vast and incalculable opportunity cost to her for trying your case for a year; you'll have to cover that too.

This being New York, the trial costs won't have to be paid up front, and you can't buy trial insurance. So you'll have to deposit the anticipated cost of a trial in your lawyer's trust account so that she has it available in the event of trial.

How much money are we talking? In New York, I think it's safe to say that competent counsel with more than a few years of experience is going to require a deposit at least in the high six-figures to take one of these cases and commit to trying it. None of the New York criminal defense lawyers I know well would -- or should -- blush to ask for over a million dollars to take on this case.

But what if you're an alleged crime boss, and you don't have a million dollars hidden under the birdseed? What if, as Scott suggests, you are one of the many who is unable to retain counsel to represent you in this matter?

If you're one of the 62 defendants in federal court, you'll most likely be appointed a CJA panel lawyer. This lawyer will be paid $100 an hour for every hour spent representing you. Just for a year-long trial (not for any of the lead-up, which will probably in itself take thousands of hours) he'll probably earn $300,000-plus of taxpayers' money. That might seem like a lot of money for a year of work until you consider that he has to pay his fixed overhead, office expenses, staff salaries, phone bill, library bill, insurance and so forth out of that while not having any other business. New York is an expensive place to practice; a lawyer with spartan tastes in overhead might finish the year netting (WAG here) $150,000 of taxable income -- a little less than a BigLaw first-year associate gets paid. That lawyer, however, will have seen his practice (if he had one) decimated by the yearlong trial.

If you're one of the 26 defendants in state court, you'll be appointed 18b counsel. He'll be paid $60 an hour for out-of-court work and $75 for in-court hours -- less than 3/4ths of the CJA lawyer's pay. And at the end of the yearlong trial the lawyer will net maybe $75,000, will have seen his practice (if he had one) decimated, and will (if the reforms that Scott favors are instituted) be pretty much out of 18b work as well.

So what kind of lawyer would voluntarily take one of these cases without more than half a million dollars in the ol' trust account against the eventuality of trial? That is, who'll take the case on the government's nickel?

An independently-wealthy true believer, for one. A lawyer who didn't care at all about money, and whose spouse didn't care at all about money, for another. Good luck finding either of these.

A lawyer who doesn't have a practice to maintain, or who isn't thinking ahead, or who thinks that taking such a case will be a good way to make a name for himself. Would you really want any of those representing you?

Who's left?

Jury Trial Today

2008-02-08T11:44:00.001-06:00

I went down to JP Court on the beach in Galveston County this morning, not really expecting to have to try a case. So of course there were 24 potential jurors waiting in the courtroom when I strolled in (I was 20 minutes late because I didn't factor the ferry ride into my travel time), and my client's was the only case on the docket.

It took 35 minutes to pick a jury of six and try the case, and about three more minutes to get a verdict. That was the shortest jury trial I've had, and probably the shortest I will ever have.

No More Contact With KHOU

2008-02-07T16:02:00.001-06:00

Please don't contact KHOU about whether the debate should be televised. They get it, and they're starting to get overloaded with emails. They can't broadcast it live on their main channel, and they're already considering broadcasting it live or with a tape delay on their secondary digital cable, which is the best, I think, that we can hope for.

Please pass word to your friends.

Don't Encourage KHOU

2008-02-07T13:04:00.001-06:00

My dad sent an email to KHOU asking that the station broadcast the February 19th DA candidate debate on television (instead of just on the web as planned):

I understand that KHOU will be broadcasting the 19 February debate of the Harris County District Attorney candidates on your website but not on the air.

This is an appeal that you also broadcast the debate live on the air. The choice of a new District Attorney for Harris County this year is one of the most important issues for your audience and will affect the lives of many in the county for years to come.
This is an opportunity for you to provide a meaningful public service.
Thank you,
Clark Bennett

In response, he got this:

Thanks for your e-mail.

The Harris County District Attorney Debate will be aired live on 11 News’ Web site www.khou.com the night of Feb. 19. The debate will also be available on demand on KHOU.com starting that night as well.

Segments of the debate will also be a part of the 11 News newscasts.

If you have a question of the candidates that you would like asked during the debate, please submit that question to this e-mail by Feb. 15.

Thanks again for your comments.

=====================

TJ AULDS KHOU.com News Producer

Not quite responsive, huh? No worries, though, Dad's on the case:

Dear Mr./Ms Aulds,

I appreciate you responding to my email but you did not address my request that KHOU broadcast the debate live on the air.

As my email stated, I was already aware that you intended to have the debate on your website. This is not adequate considering the importance of this issue to the citizens of Harris County. I hope KHOU management can reconsider.

Clark Bennett

An unexpected quick response from TJ AULDS:

Mr. Bennett,

Thanks for your request. I confirmed yesterday that the decision is to air the debate live on KHOU.com and feature it prominently within our newscasts as to reach a wide audience.

I have forwarded your e-mail to Ch. 11 management for consideration.

=====================

TJ AULDS KHOU.com News Producer

Management? Consideration? Sounds promising! Then, today, management's response:

Dear Mr. Bennett,

Thank you for your letter requesting that KHOU air the debate on Channel 11.

We agree that the debate is important, that’s why when we were asked to become involved, we did. The Harris County Criminal Lawyers Association first sought out another TV station and was turned down.

We’re glad the HCCLA came to us next. We have programming commitments to CBS that keep us from pre-empting prime time on that night. The HCCLA is happy that we can stream it on the web and we are considering either a live or tape delay broadcast on 11.2. Once those plans are finalized, we will have that information on our website.

Again, I appreciate your feedback and giving me the opportunity to give you an update of our coverage.

Sincerely, Lisa Shumate

Lisa Trapani Shumate

Director of Marketing

KHOU-TV/1945 Allen Parkway/Houston, TX 77019

Okay, so maybe it's unreasonable for us to expect them to preempt Friends (or whatever it is that plays on Thursday evenings on CBS nowadays) for a debate among candidates for one of the most powerful elected positions in the country.

Your mission, reader, should you choose to accept it, is to send an email to Ms. Shumate at xxxxx@khou.com encouraging KHOU to broadcast the DA candidate debate as widely as possible.

Edit: No more emails to KHOU. They get the point.

Todd, Pat and Me on the TeeVee

2008-02-07T06:52:00.001-06:00

(Pay no attention to the goofy-looking static frame. Google picks this automatically to make the uploader look as ridiculous as possible.)

Ceci n'est pas une subpoena.

2008-02-06T19:07:00.001-06:00

Texas lawyers:

One of these (pdf):

is hand-delivered to a witness in a criminal case. Does she have to turn up in Judge Harris's court (other courts use similar documents) at 8:45 on Monday morning, or can she legally ignore it?

Why or why not?

Extra credit for persuasive incorrect answers.

Double credit for correct answers in verse.

My Six Words

2008-02-06T17:10:00.001-06:00

Smith Magazine is collecting people's six-word memoirs.

Everyone has a story. That's the tag on the masthead of SMITH, our online magazine. Yet until we asked the world to send us six-word memoirs, even we had no idea how true it was.

We took a page from Ernest Hemingway. According to legend, he was challenged to write a novel in only six words and came up with "For sale: baby shoes, never worn." We posed the same challenge online, but we asked for true-life stories -- in just half a dozen well-chosen words.

To launch the challenge, we posted examples from names we figured most readers would know, such as "Eat, Pray, Love" author Elizabeth Gilbert ("Me see world! Me write stories!"; she naturally e-mailed hers in from an airport runway in Indonesia) and celebrity chef Mario Batali (he sent seven, each enlightening but none as pitch-perfect as "Brought it to a boil, often").

More than 15,000 (and counting) submissions later, we are continually struck by what proves possible in just six words.

(The rest of the L.A. Times column.)

Here's my six-word memoir:

I never was very fond of rules.

What's yours?

See the Republican DA Candidates! Live! All Nude!

2008-02-06T12:17:00.001-06:00

The Pachyderm Club of Downtown Houston is hosting the four Republican DA candidates tomorrow, February 7, 2008, at noon upstairs at the Spaghetti Warehouse in downtown Houston (901 Commerce Street). Entry fee is $8 at the door.

It's Tuesday, and Pat Lykos is Still Lame

2008-02-05T16:21:00.000-06:00

On the heels of Kelly Siegler's realization that it was time for Chuck Rosenthal to resign (which itself followed only a month after Jim Leitner's call for Chuck to resign), DA candidate Pat Lykos has discovered that it's time for a change at the DA's office.

Now, if you're running on Kelly's "let the entrenched leadership of the Office correct its own problems" platform, and your goal is to convince the voters ultimately that Chuck Rosenthal was the whole problem all along, then it might make sense for you to take some time to make the momentous discovery that Chuck Rosenthal isn't the best guy to be running the Office right now.

But if you're running as an outsider, claiming to be the right one to fix a government agency that everyone outside the office can see is broken, should you really (never mind the ludicrous self-righteous posing) be the last serious candidate to realize that, whoever should be running the Office right now, it's not Chuck?

rec

2008-02-05T14:52:00.001-06:00

AHCL thinks that she and I are coming at the question of compassion from different starting points.

AHCL writes:

You know, I think the reason that I disagree with Marky Mark and some of the other posters on a lot of the issues is because we begin on different starting points when we make our arguments.

While I start off talking about how the community needs good, talented and aggressive prosecutors on cases, I'm envisioning the ax-murderer and the baby raper.

When they start talking about mercy, compassion and a lack of arrogance in prosecution, they are envisioning the poor schlub who is walking down the middle of the street where a sidewalk is provided and the police find a crack pipe on him.

It's true that we're coming at the question from different starting points, but I think the divide is much wider than she recognizes.

First, the vast majority of people being prosecuted are more like the poor schlub than the "ax-murderer and the baby raper". Sometimes people do really bad things; these really bad things make for good press, and scares the voting public into electing "tough-on-crime" judges and compassionless prosecutors and spending lots of money on law enforcement, but the great bulk of that money is then spent investigating and prosecuting (a) malum prohibidum offenses; and (b) piddly malum in se offenses.

Second, not everyone prosecuted for the really bad stuff has done the really bad stuff. Aggravated sexual assault of a child is a good example: some people charged with ASAC just flat-out didn't do it. There's often no physical evidence to back up a child's allegation of sexual abuse. The DAs adopt the attitude that children wouldn't lie about "things like that", but anecdotal and scientific evidence proves them wrong. A prosecutor -- especially a blindered prosecutor -- can't tell the difference between the bad actors and the falsely accused.

Third, even those few who done the really bad stuff are human beings. The prosecutor can't know how his brain is wired wrong, how he was treated as a child, how he has been affected by traumatic brain injury . . . as Clarence Darrow said,

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves -- whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

(I recognize that this is an unpopular perspective. Here's the popular view, which is provably wrong. The proof is trivial.)

Because most people are poor schlubs, and because we often can't tell the poor schlubs from the bad dudes, and because we can't tell what even the bad dudes deserve, the better course (for our souls) is for all of us to cultivate compassion for all human beings (my friend Jon Katz will say "all sentient beings"; I'm not quite there yet).

But never mind the prosecutors' souls: won't society suffer if its prosecutors aren't playing sociopath in the courtroom?

No. Two reasons spring to mind: first, compassion doesn't make a trial lawyer worse; it makes her better. I've seen prosecutors lose trials in voir dire because of their lack of compassion. I've seen defense lawyers win trials in cross-examination because of their empathy for the witnesses testifying against their clients.

Second, consider the possible aims of punishment:

General deterrence;
Specific deterrence;
Rehabilitation;
Incapacitation; and
Retribution.

The only aim of punishment that suffers at the hands of a compassionate prosecutor is retribution, which has been so generally discredited that people who want to see public retribution use code phrases like "hold him accountable" and "show how we value life".

A prosecutor with compassion for a defendant can still seek a sentence that deters the particular defendant, that deters the public, that incapacitates the defendant, and that rehabilitates the defendant. If life without parole is necessary, the compassionate prosecutor can seek it; if the compassionate prosecutor thinks that killing a defendant is necessary to incapacitate him and deter others, she can seek death. (In fact, I have seen compassionate prosecutors arguing for severe penalties; they are much scarier than the usual foaming-at-the-mouth ranters.)

So it's not just that AHCL is envisioning people who don't deserve our compassion, and I'm envisioning people who do. The divide between us is that between one who believes that compassion is something that only some deserve and one who thinks that compassion is something that should be given to all.

Chuck is Going . . . Going . . .

2008-02-05T08:47:00.000-06:00

I asked here, "Is the fix in? Did Kelly get word that Chuck's resignation is in the cards?"

It appears that, indeed, the fix is in. Reports indicate that Chuck Rosenthal's chief investigator (and right-hand man) John Ray Harrison was packing up Chuck's office on Friday.

Business as usual, then, at the Harris County DA's Office: Chuck, after getting his ass kicked on the stand in federal court, decides on Friday to resign, and tells Kelly so that on Monday she can call for his resignation and appear to have influenced his decision.

I surmise, for reasons I discussed here, that a deal has been cut for Governor Perry to appoint a non-candidate caretaker DA for the interim.

The prosecutors' desired endgame: Kelly gets elected, claims that there was nothing wrong with the Office that Chuck's resignation didn't fix, and everybody but Mr. Harrison and Ms. Stevens gets to keep his or her job.

(News like this takes time to percolate down to me. AHCL and her prosecutorial readers could undoubtedly have reported that fact on Friday, but that wouldn't help create the illusion that Kelly Siegler, by calling for Chuck's resignation, acted as an agent of change.)

Compassion and Sociopathy

2008-02-04T20:30:00.001-06:00

There's an interesting argument discussion at Life at the Harris County CJC about the role of compassion in prosecution. Commenter PJ says:

We don't need righteous DA's doing "battle" with "criminals." We need people serving the public fairly, with at least some degree of understanding and compassion from whence "criminals" come.

Commenter anonymous c responds:

You think that we need ADAs who have "understanding and compassion" for the criminals. That's utterly absurd!

It would totally upset the whole idea of true Justice, which is that the ADAs, with compassion and understanding towards the victims, fight vigourously and tirelessly to convict and that the DEFENSE lawyers, with the understanding and compassion towards the criminals that you speak of, fight vigorously and tirelessly to acquit. In the middle of that battle is where, ideally, Justice is born. That's how it works.

I don't want to live in a county with touchy-feely, peace and love ADAs and I highly doubt that you would, either. It's just not reality.

Anonymous c presents the popular public misconception of the prosecutor's role. The public thinks that prosecutors are fighting for the victims, and that their goal is to convict. As a result, many of the voters think they want prosecutors without compassion for the people they are prosecuting.

Compassion, like mercy or grace, is not something that is earned. We don't treat people with compassion because of who they are, but because of who we are. We have a name for people without compassion: we call them sociopaths. Compassion given only to people who "deserve" it? It's not compassion at all.

The police aren't always right; often they screw up. Complaining witnesses aren't always truthful; often they lie. There's often no benefit to anyone in convicting the accused. Sometimes the accused is the true victim, sometimes everyone is a victim, but in most cases there's no victim at all. In most cases prosecutors aren't even pretending to be fighting for victims, but for the government.

Sometimes cases need to be dismissed; sometimes the law's penalty is unduly harsh; sometimes people's illegal conduct is mitigated by the good they have done or by the harm they have suffered. Only a sociopath would never feel compassion for anyone accused of a crime. But that's what the voters, scared mindless of crime, think they want from their prosecutors. And too often that (or a simulation thereof) is what the voters -- and their sons, husbands, fathers, and brothers -- get.

(For a former prosecutor's view of the prosecutorial mentality, see this post at Defense Perspective.)

Morons.

2008-02-04T16:44:00.001-06:00

Kelly Siegler, playing catch-up to Jim Leitner, has called for her boss's, Chuck Rosenthal's resignation.

Better a month late than never, I always say. But Jim and Kelly are not the subjects of this post.

The subjects of this post, referenced in the title, are DA candidates Doug Perry and Pat Lykos, who "said they were neutral on whether Rosenthal should remain in office."

How can a candidate for DA, aware of the situation in the DA's office and the CJC, be "neutral" on whether Rosenthal should resign? Suddenly both Lykos and Perry seem irredeemably unqualified for the post they seek.

Is the fix in? Did Kelly get word that Chuck's resignation is in the cards? Has a back-room deal been cut for Governor Perry to place Kelly at the helm of the Office before the primary (one of the few things that might secure her the nomination)? All questions above my pay grade. Safe to say, though, that this will be an interesting week.

A Lesson in Federal Contempt

2008-02-03T21:06:00.001-06:00

Here is a thought-provoking little piece on Tom Kirkendall's Houston's Clear Thinkers blog about whether Chuck Rosenthal is in fact facing jail time for contempt in Judge Hoyt's court.

The contempt proceeding is for indirect criminal contempt. It's "indirect" because Chuck didn't commit contempt right in front of Judge Hoyt, and it's "criminal" because the contempt is completed -- Judge Hoyt can't hold Chuck in jail until he complies with the order. Tom's argument is that Chuck can't legally be held in contempt because he

has been provided none of the protections that due process of law requires for a criminal defendant. Inasmuch as Rosenthal's allegedly contemptuous conduct did not take place in the courtroom, the trial judge does not have the power to hold him in criminal contempt without a full-blown trial on the criminal contempt charges. Indeed, the trial judge cannot even be the judge in Rosenthal's criminal contempt trial because the judge is a potential witness in that trial.

Likewise, the plaintiffs' lawyer in the civil lawsuit cannot prosecute a criminal contempt case against Rosenthal. Rather, the contempt charge must be referred to the U.S. Attorneys' Office, which then decides whether to prosecute Rosenthal based on an evaluation of the evidence and and the charges. If the U.S. Attorney decides to do so, then Rosenthal is entitled to the due process protections that any criminal defendant is entitled to receive, including notification of the specific charges, trial by jury, and confrontation of the adverse witnesses. The circus going on right now over in federal court doesn't come close to fulfilling those Constitutional safeguards.

It's thought-provoking because for some reason I figured that Judge Hoyt and the lawyers involved knew what they were doing; silly me, that's something I would never do if I were representing Chuck. I'm glad to be wrong because, more than I relish a prosecutor getting something he might well deserve, I enjoy seeing someone slip out of a jail cell by using procedure to his advantage.

Tom's right in part and wrong in part. It appears (I've not yet had to defend anyone against contempt charges in federal court) that the rule that governs is Federal Rule of Criminal Procedure 42:

Rule 42. Criminal Contempt

(a) Disposition After Notice.

Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice.

The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor.

The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

(3) Trial and Disposition.

A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

(b) Summary Disposition.

Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

Chuck has received procedural due process: notice and an opportunity to be heard. He's getting to cross-examine the witnesses against him, and is getting to call his own witnesses. He's not constitutionally entitled to a jury trial because he's not facing more than six months in jail.

Chuck's statutorily entitled to a jury trial (see 18 U.S.C.A. § 3691), but only on demand. He didn't demand a jury trial, so he gave up that right.

But Judge Hoyt didn't request that the government prosecute the contempt, and the court's show-cause order, entered on January 2nd, didn't "state the essential facts constituting the charged criminal contempt and describe it as such" as required by the rule. Nor did Judge Hoyt disqualify himself from presiding at the contempt trial, which argualby involves disrespect toward him.

Chuck's lawyers haven't raised any of these issues. They might have had to do so before the hearing (which is a rule of thumb) or they might be able to lie behind the log and claim error afterwards.

Can they complain now that the notice was insufficient, or have they waived that complaint?

Can they complain after the hearing that the judge didn't ask the Government to prosecute the contempt, or do they waive that complaint by not raising it before the hearing? (In the leading Supreme Court case, Young v. U.S. ex rel. Vuitton et Fils S.A., the defendant/contemnors objected before trial to the appointment of the plaintiff's lawyers to prosecute the contempt; the Supreme Court agreed with them and reversed.)

Can they complain after a hearing that the alleged complaint involved disrespect toward Judge Hoyt, and that he was therefore disqualified from presiding, or did they consent to him hearing the case by not objecting?

If they can raise any of these issues after the hearing, this contempt trial may legally be a freebie for Chuck. But there's no caselaw directly on point, and leaving this in the hands of Judge Hoyt and Lloyd Kelley on the chance that they can either a) win or b) get another bite at the apple if they lose seems like an exceptionally risky move, if they know what they are doing, or a startlingly ignorant one if they don't.

[Edit: On a few moments' more reflection, I'm voting for "startlingly ignorant". The time to object to this entire proceeding was before subjecting Chuck to cross-examination under oath. None of the procedural errors would bar reprosecution, and Chuck's testimony at this hearing could be used at a later hearing. Because Chuck testified, and testified badly, this hearing was not a freebie.]

Anonymous Commenters

2008-02-02T18:14:00.001-06:00

I've changed my settings to disallow comments from anonymous commenters. If you want to comment, you'll have to have at least a pseudonym.

Expert Needed

2008-02-01T21:59:00.001-06:00

The Harris County District Judges are trying to avoid answering my Rule 12 open-records request.

I need an expert on Microsoft Exchange Server. Specifically, I need someone to tell me (a) how difficult it would be to restore the server contents as of a specific date and search for emails from 22 individual mailboxes; (b) whether the judges' objection to doing so is reasonable; and (c) if the objection is reasonable, how I might make the request to make production less onerous.

If you know of someone familiar with this system, please have him or her drop me a line.

Thanks.

Don't Contact Channel 11 About the Debate

2008-02-01T21:43:00.001-06:00

To give Channel 11 your thoughts about the February 19th DA debate (including whether the debate should be televised), email xxxxx@khou.com.

Edit: Don't give KHOU your opinion on whether the debate should be televised. They get it.

Harris County Sheriff's Email Retention Policy

2008-02-01T20:01:00.001-06:00

Here, for the open records fans, are the Harris County Sheriff's recent email retention policy change memo and a flowchart showing how HCSO emails are handled.

TBI and Depression

2008-02-01T19:54:00.001-06:00

A Canadian study of athletes who have suffered "mild" traumatic brain injuries "suggests depression is actually a physical outcome of such head injuries." Read this in conjunction with the American troop study suggesting that post-traumatic stress disorder also is an outcome of TBIs.

Why does it matter to us? Because the more people understand how incidents that are not even remotely the accused's "fault" (car crashes, IEDs, football tackles) can affect his outlook, his judgment -- indeed, his personality -- the better they will comprehend how unfair it is to punish people without considering everything that might have influenced that conduct.

TBI, PTSD, and Depression

2008-02-01T18:19:00.001-06:00

Interesting article in yesterday's New England Journal of Medicine about new research into PTSD, depression, and physical health problems in U.S. troops who have suffered "mild" traumatic brain injuries. ("Mild traumatic brain injury" sounds benign, but MTBIs are "mild" only in comparison with more severe brain injuries.)

In this study, mild traumatic brain injury was significantly associated with psychiatric symptoms, notably PTSD, and the association remained significant after combat experiences had been controlled for. More than 40% of soldiers with injuries associated with loss of consciousness met the criteria for PTSD. The data indicate that a history of mild traumatic brain injury in the combat environment, particularly when associated with loss of consciousness, reflects exposure to a very intense traumatic event that threatens loss of life and significantly increases the risk of PTSD.

This is apparently the first such epidemiological study of TBI in soldiers.

MTBI is defined as a head injury resulting in loss of consciousness or in altered mental status -- "being dazed, confused, or `seeing stars,' or not remembering the injury".

The authors do not venture to suggest a single mechanism for the greater risk of PTSD in soldiers who have suffered MTBIs:

The mechanisms of these relationships are complex. Studies have not confirmed any direct link between PTSD and injury to brain tissue from the concussion itself, although this is an important area of research that makes use of new technology, such as diffusion tensor imaging. There is evidence that implicit processing of traumatic memories and fear conditioning, both mechanisms for the development of PTSD, occur even in persons with severe traumatic brain injury who are amnesic for the traumatic event. Mechanisms that are likely to underlie both the onset of PTSD after traumatic brain injury and the physical symptoms related to PTSD and depression include biologic processes associated with exposure to extreme stress, activation of the hypothalamic–pituitary–adrenal axis, autonomic reactivity, reactive cell–mediated immune responses, disturbed sleep physiology, and altered perception of symptoms.

In an editorial, Richard A. Bryant, Ph.D. discusses the possible mechanism in more depth:

The finding that mild traumatic brain injury is associated with an increased incidence of PTSD raises interesting possibilities about how mild traumatic brain injury may compound PTSD. Biologic models posit that a fundamental mechanism underpinning PTSD involves an exaggerated response of the amygdala, resulting in impaired regulation by the medial prefrontal cortex. The amygdala is central to the development and expression of conditioned fear reactions, and studies in humans and animals have shown that learning to inhibit these fear reactions involves inhibition by the medial prefrontal cortex. Consistent with this model, patients with PTSD have diminished activation of the medial prefrontal cortex during the processing of fear. Mild traumatic brain injury often involves damage to the prefrontal cortex due to shearing forces of the frontal regions against the skull. It is possible that a person's capacity to regulate the fear reaction may be impaired after mild traumatic brain injury because the neural networks involved in the regulation of anxiety may be damaged as a result of the mild traumatic brain injury.

Cognitive models propose that PTSD is maintained when trauma survivors have inadequate cognitive resources to manage their trauma memories and to engage adaptive cognitive strategies to manage the traumatic experience (e.g., they are unable to appraise a distressing state as temporary and, therefore, have heightened anxiety). Mild traumatic brain injury can impair cognitive resources and may compromise the capacity to engage in cognitive strategies to manage the aftermath of a psychological trauma. There is overwhelming evidence that maladaptive cognitive strategies (e.g., ruminating that one will never recover from the traumatic experience) after trauma are a major predictor of PTSD. Therefore, it is possible that people with mild traumatic brain injury have insufficient cognitive resources to engage appropriate cognitive strategies, which results in a greater incidence of PTSD.

In lay terms, the bruised brain has difficulty dealing with fear and memories of trauma, and either sort of difficulty may increase the chance of PTSD.

One lesson for criminal defense lawyers is to always be aware of the possibility of TBI and PTSD. Lots of people suffer minor traumatic brain injuries -- I've received a couple myself -- and nobody knows which ones cause permanent impairment. Another lesson is to look for TBI when PTSD presents itself, and look for PTSD when TBI presents itself.

Chuck's Very Bad Day?

2008-02-01T17:46:00.001-06:00

This came after I shut my laptop because of low battery power:

Judge Hoyt: Aren’t there rules about preservation of documents at the state level?

Chuck Rosenthal: Yes.

Hoyt: In fact it can be a crime. It’s called obstruction of justice at the federal level. What do you call it at the state level?

Rosenthal: Tampering with evidence.

Hoyt: And you've prosecuted people for that. Your office has prosecuted people for that.

Rosenthal: Yes.

The line between ordinary citizen and felony indictee is grey and exceedingly fine. None of us -- no matter how law-abiding -- are more than one Very Bad Day from being charged with a felony. Chuck would probably have done well during his career in the DA's office to remember this, and to treat every person whose life or future was in his hands with the compassion and fairness that he would want if he were in their shoes.

For the universe is implacable in its settling of scores, and today may well have been Chuck's Very Bad Day.

Unleash the Spin Hounds!

2008-02-01T10:58:00.001-06:00

News from an anonymous source who has provided reliable information in the past:

Last night [1/31/08] at Live Sports Bar at Main and Preston, a pep rally-type meeting was held for the Siegler campagn. Apparently the subject and purpose of the meeting was to brainstorm and get motivated on how to counteract the stream of negative press surrounding Kelly. This indicates that the Siegler camp is reasonably self-conscious of the problem, and fears it will continue. I would have to agree with them.

Consider that when you read AHCL's Blog or a letter to the Chronicle (by Cindy Rosenthal, Vic Wisner, Chris Miller, whoever) defending the Office: they're trying to wash the stench of the Office's decay under Chuck Rosenthal off Kelly Siegler.

Here, on the other hand, I'll print the negative about any of the candidates, provided that I think it bears indicia of reliability. If you have a legitimate criticism of Jim Leitner, bring it to me. If it's credible I'll publish it.

Chuck's on the Stand . . .

2008-02-01T10:30:00.000-06:00

. . . being questioned by Judge Hoyt, and he just played the good ol' "no independent recollection" card:

I have no independent recollection of having read anything that Mr. Kelly filed.

Untitled 1

2008-01-31T11:57:00.000-06:00

Our local ABC affiliate, KTRK, interviewed me about the Chuck Rosenthal contempt hearing (which may still be going on right now; I had hoped to live-blog it, but the needs of actual clients intervened). This morning a prosecutor came up to me in the courthouse and actually thanked me for not bashing the Office. Here's the story (with video).

One of the Toughest Jobs in the World

2008-01-30T23:22:00.001-06:00

A reader sent me this link: Japanese Justice. In Japan, you can be detained by the police for up to 23 days without habeas corpus. "Forced signed confessions, still considered the "king of evidence" by Japanese courts, are often the result." No kidding -- if you have a guy in custody for 23 days and can't get him to confess to whatever you want, you've got no business interrogating people, especially when "resisting police demands for a confession, and denying the charges, results in detention for extended periods; confession can bring a speedy release."

You think that would make it tough to be a defense lawyer in Japan? It does -- 99% of people accused are convicted, mostly by their own confessions. But wait, there's more:

Most worryingly of all, say critics, lawyers — the last line of defense in this potholed legal landscape — are not immune from harassment.

Tokyo lawyer Yoshihiro Yasuda was arrested in 1998 and held for 300 days while he was tried on charges of unlawfully concealing the assets of a client. Yasuda was no friend of the police: he had defended Shoko Asahara, leader of the murderous religious cult Aum Shinrikyo, and is Japan's most outspoken critic of the death penalty.

During the Aum trial, the lawyer accused the police of failing to properly investigate the Aum-sanctioned murder of lawyer Tsutsumi Sakamoto and his family, because he sided against them in the alleged wiretapping of Communist Party members.

In 2003, the Tokyo District Court found him not guilty, criticizing the prosecutors as "unfair." But Yasuda remains furious about his detention and interrogation.

"How can we achieve the principle of presumption of innocence in Japan under such circumstances?" he asked The Japan Times after his release.

Says Lawrence Repeta, a constitutional specialist at Tokyo's Omiya Law School: "The point of what they did to him is to threaten every lawyer in Japan. The authorities are saying to lawyers, 'Back off, don't aggressively represent your client or we are going to destroy your life.' Yasuda's extended pretrial detention amounts to punishment, even before the court issued a decision."

Defense lawyer and professor Takashi Takano "calls being a defense lawyer in Japan one of the toughest jobs in the world: after 25 years practicing law, just five of his clients have been completely exonerated."

"Some lawyers go their whole lives without winning a case," he explains. "I was very shocked when I first went to court and saw arrogant judges ignore hearsay rules, accept confessions — and lawyers who didn't challenge them. I feel very strong anger toward the Japanese justice system. It is my motivation to change things."

Reform is coming: starting in spring 2008 lay juries will hear serious criminal cases in Japan for the first time since 1943.

Time for a Change of Format?

2008-01-30T21:58:00.001-06:00

Two of my older readers have protested that the white text on black background is hard to read. I'm thinking about changing my layout to something a little less badass and more user-friendly.

Opinions?

Does Mensa Matter?

2008-01-30T21:56:00.001-06:00

Mensa is an organization for people with IQs above the 98th percentile. That translates to IQs above 132 on the Stanford-Binet IQ test (wikipedia). (It is, to borrow from John Bender, sorta social -- demented and sad, but social.)

Lawyer is a typical occupation for people with an IQ in the 130s. According to the Michigan Bar Journal, "the mean, that is the mathematical average, IQ of attorneys hovers around 127." I would bet that more than a fourth of the lawyers (and one of the judges . . . maybe) down at the criminal courthouse have IQs of 132 or above. Most of them don't belong to Mensa.

Yet every positive article about Kelly Siegler and her bid for DA seems to mention her Mensa membership. Why is that?

Wall Street Journal Discovers TBI

2008-01-30T17:07:00.001-06:00

Steve Gustitis at the Defense Perspective reminds us that "hidden head trauma may be linked to behavioral problems in society", which is of great import to the criminal defense lawyer.

Steve's post was inspired by an email from John Niland of the Texas Defender Service, who sent the Texas capital defense bar a link to a Wall Street Journal front-page article:

That severe head injuries can lead to cognitive and behavioral problems is widely accepted. The U.S. Centers for Disease Control and Prevention estimates 5.3 million Americans suffer from mental or physical disability that is due to brain injury.

What's new is the contention of some researchers that there are many other cases where a severe past blow to the head, resulting in unconsciousness or confusion, is the unrecognized source of such problems. "Unidentified traumatic brain injury is an unrecognized major source of social and vocational failure," says Wayne A. Gordon, director of the Brain Injury Research Center at Mount Sinai School of Medicine in New York, where much of the research is being done.

Research by his team has consistently found high rates of "hidden" head trauma when screening various populations in New York schools, addiction programs and the general population. The CDC acknowledges its 5.3 million estimate is an undercount based on hospital admissions; it doesn't include people who sought no treatment for a severe blow to the head or who were sent home from a doctor's office or emergency room with little treatment.

None of this qualifies as news here at Defending People, nor to Steve or John. If you're new to these here parts, here're my previous posts on the topic of traumatic brain injury, or TBI.

And here's an article about LaFonda Jones, who is a lawyer protecting the rights of soldiers suffering from PTSD and TBI.

Meet Pat Lykos

2008-01-30T16:28:00.001-06:00

I'm not the biggest fan (y'all might have detected this) of the idea of Kelly Siegler as Harris County D.A. It's time for a change at the DA's office, and unless Kelly starts telling us how she would institute real change at the Office, I'll be dubious about whether she will bring real change.

But they tell me that change is not always good; they say that things could always get worse.

If the prosecutorial and defense bars were to get together and choose the next DA by consensus, it would be Jim Leitner. If they were to get together and eliminate a candidate by consensus, I suspect that it would be Pat Lykos. I never got to practice before Judge Lykos, but I've heard some of the stories.

So, it turns out, has the New York Times. Twelve years ago the Times printed an account of then-Judge Lykos refusing to let a witness testify while wearing his yarmulke. AHCL makes a big deal about this today, challenging Chronicle reporter Alan Bernstein to write something about this incident, as he wrote about Kelly's use of the verb "to jew down" in a trial 20 years ago.

Lykos claimed that she required the witness to remove his yarmulke because of "a Supreme Court decision that no lawyer or expert witness could have that additional authority of religion"; Mensan (why is Kelly's Mensa membership mentioned in every story about her?) Kelly Siegler claimed that "It never even dawned on me [that 'to jew down' is antisemitic]. I probably would have even spelled it 'j-u-e,' that's how stupid I was."

When Kelly realized that she had offended a juror, she went to that juror's house and apologized in person; Judge Lykos apparently never apologized, but the witness who was ordered to remove his yarmulke to testify filed a complaint against her and "said he sought nothing more than a clarification of this issue, and he noted in his complaint that Judge Lykos appeared to be ''a nice person'' and that he did not think she was anti-Semitic".

Best-case scenarios:

Kelly, ignorant of the offensive meaning of "to jew down", uses it. She learns that she offended a juror, and goes out of her way to apologize to the person she offended.

Lykos, ignorant of the scope of a Supreme Court opinion, orders a witness to remove his yarmulke. She learns that she offended the witness, and doesn't apologize.

Worse-case scenarios:

Kelly uses "to jew down", meaning (for some inscrutable reason -- this is the worst-case scenario) to offend. She then goes out of her way to apologize the person she offended.

Lykos orders the witness to remove his yarmulke because she just doesn't like Jews (again, worst-case). She then claims that she vas chust following orders.

With apologies to my readers who come here for the Kelly-bashing, I think Ms. Siegler has the better of this little argument whether you are a prosecutor (and assume the worst of everyone) or a defender (and assume the best).

A good apology makes all the difference in the world. I'd much rather put my confidence in someone who apologizes when she screws up than in someone who, shrublike, denies ever screwing up.

The Candidates' Debate

2008-01-30T12:48:00.001-06:00

From Earl Musick:

The Harris County Criminal Lawyers Association feels that the election of the next Harris County District Attorney is extremely important to our organization and to the citizens of Harris County.

Because of the importance of this race, HCCLA has organized a debate involving candidates seeking this important position.

The debate is sponsored by HCCLA, the South Texas College of Law and KHOU-TV. It will be held at South Texas College of Law on February 19, 2008, at 6:30 p.m. and will be one hour from start to finish.

KHOU-TV will webcast the debate.

If you have questions that you think the candidates should be asked, please leave them in the comments and I'll pass them on to Earl.

Prosecutors and Judges: How is this Possibly Okay?

2008-01-29T22:49:00.001-06:00

Today (January 29th) I got a fax from the prosecutor on a misdemeanor case. The fax contained:

A Motion to Disclose Experts; and

An order granting that motion.

The motion carried a certificate of service claiming that the motion had been served on me on the day the motion was filed or before. It had not been served on me before today. In fact, the prosecutor had to call me this afternoon to ask for my fax number.

In the order, dated January 25th, the judge wrote that the motion came on to be heard and considered "after proper and timely notice to the Defendant", and granted the motion, ordering me to disclose my experts by Friday.

So not only did the prosecutor not serve me with a copy of the motion before it was filed, but she didn't serve me with a copy of the motion until four days after the order had been granted.

My civilian readers need to know that this is not an unusual event. Indeed, this is pretty much par for the course when a prosecutor bothers to get such an order signed. They routinely file such motions without notice to the defense and routinely present them to judges who grant them ex parte. If there is a prosecutor or a judge who does not engage in this conduct, I don't know who it is.

Prosecutors:

First, what are you doing, presenting motions to judges without the other side present and, indeed, without notice to the other side? That's ex parte contact, which is generally unethical, and no exception to the general rule applies here.

Second, what are you thinking, filing documents with the court with fictitious certificates of service? Not only is that unethical, but it's also a crime: tampering with governmental records. Look it up. On second thought, don't bother. It's Texas Penal Code Section 37.10(a)(1). It's a class A misdemeanor unless you intend to defraud or harm another (arguable -- defrauding the court?), in which case it's a state jail felony.

(So congratulations: in the course of prosecuting a class B misdemeanor, you've committed a more serious crime. Call home and tell your mother; I'm sure she'll be very proud.)

I know that the Harris County District Attorney's Office has never bothered a whole lot with the rule against ex parte communications with judges, leaving such ethical breaches to the discretion of the prosecutors. I know that the Office takes a somewhat laissez-faire attitude toward the signing of pleadings as well. And I know that you guys feel bulletproof, because (a) nobody has ever held your feet to the fire to actually follow the Texas Disciplinary Rules of Professional Conduct; and (b) it would be the Harris County DA's duty to prosecute a tampering-with-governmental-records case, and everybody knows the DA's office is never going to prosecute a prosecutor for breaking the law in the course of her duties.

But the times? They are a-changin'. The public no longer holds the delusive belief that you can do no wrong; there's going to be a new DA a year from now, and there's a reasonable probability that it will be someone who doesn't approve of prosecutors and cops breaking the rules, someone who has no qualms about prosecuting prosecutors for the "little" crimes like this one that some of you commit every day. And the limitations period for even misdemeanor tampering is two years.

Maybe you guys will blame Chuck Rosenthal for this too. He keeps his own counsel, you'll say. I'm not buying it.

When such a fundamental rule (the foundation for fairness in an adversary system, so basic that we actually learn it in law school) as that forbidding ex parte judicial contact is so routinely ignored, that's proof that the rot spreads farther than just the sixth floor. It wasn't Chuck's job to teach this young prosecutor, and every other young prosecutor, that ex parte contact with the judges is a no-no.

Which brings us to the judge, who, as it happens, reads Defending People.

Judge, what are you thinking? When you sign an order on the ex parte motion of a party, you call your impartiality reasonably into question.

Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that's not really appropriate, but it's going to happen however much I fuss -- even if you don't care whether the state wins, you naturally want the state's inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?

While you're making the effort to make them better lawyers, do you think you could spare a thought or two for their ethical training? You know that I don't think you should be taking it upon yourself to improve their litigation or trial skills, but nobody would consider you remiss in providing them with a little ethical guidance. Especially where the ethical rule involves the relationship between them and you, and is so critical to procedural justice and the appearance of fairness.

I realize that you probably didn't know that the certificate of service was false. You took the prosecutor's word for it. Clearly, that doesn't work. But it doesn't matter. You ruled on a motion ex parte, without giving the other side an opportunity to be heard. If you had made sure I had an opportunity to be heard, of course, you would have learned that the prosecutor's certificate of service was false, and I would have had a chance to respond.

The times are a-changin' for the bench as well. The Harris County Criminal Lawyers' Association has filed three bar complaints against sitting judges in the last two years. More grievances are coming. Will any of those bear fruit? Maybe, maybe not -- it takes more than just a righteous complaint for the Commission on Judicial Conduct to act against a judge. But it's indisputably easier to not be grieved than to be grieved and win.

Aside from the criminal bar growing some much-needed collective backbone in recent years, there's something else for you to consider: Dallas County. It is possible that Harris County's Republican judges, like Dallas County's, will need more than the anointment of the kingmakers in the local party apparat to keep their jobs. Judges who create the appearance of impropriety are more likely to draw opponents than judges who avoid it by scrupulously following the rules. Will these opponents win? Maybe, maybe not -- the Dallasification of Harris County elections is purely speculative right now. But it's indisputably easier to run unopposed than to run opposed and win.

Phone Call from a Slave Ship

2008-01-28T15:56:00.001-06:00

Phone Call from a Slave Ship

Rupert File

Why worry over frail Josie not knowing where I am

When I don't even know where I am, but

Judging through steel mesh, we're headed downtown

Me and Major, just met, cuffed-up.

"Got DAMN," Major goes, knee-pounding the DAMN,

my left hand helping his right, having to.

Me with problems too - frail Josie not knowing

Where I am one. Last night another -

Josie breathing, "I love you."

"Me too," somebody mean went.

"Can't you say it?"

"IT. How's that. It, it, it," me so slick.

Now in this place, pocket-emptied,

Crack-searched, plastic-glove patted, shoe-shook

Nothing mean or slick left.

In the bench soon we get our call -

Mostly whines to bosses, lawyers.

Everybody listening, nobody guilty.

Mine though finds a soft voice across town - Josie's.

IT gets whispered, her going, "what?"

I cup the phone. The benches lean forward.

Still it's "what?"

"I love you, Josie" comes hollered and

"Whooo - lover-boy" go the benches, thigh slapping

drowning frail Josie's reply.

Slump-sitting I try to dissolve, to not be lover-boy

Close-eyed, I hear us in the hold,

Some moaning, some singing,

Me scurvy-heartsick already

Still smelling land.

New York is Definitely Different

2008-01-28T15:53:00.001-06:00

In Texas, a "car" is a car. In New York, apparently, a "car" is what a fancy-pants criminal defense lawyer calls a white stretch limo, which is what Scott Greenfield sent to pick me up from the airport when he found out that I was coming in to do some work on a cocaine conspiracy case in his stomping ground, the U.S. District Court for the Southern District of New York.

So I'm riding in the back of this preposterous conveyance right now, and I have only one question:

Where's the 30-year-old scotch?

More on Boucher

2008-01-27T18:56:00.001-06:00

Scott Greenfield writes to "deconstruct" (whatever that means) the Boucher confusion on password and privilege.

Scott and Orin Kerr and Gideon all presumed that Mr. Boucher had input the password at the border when agents asked to see what was on the computer. But the Boucher opinion doesn't actually say that Mr. Boucher input his password at the border. In fact, "Agent Curtis did not see Boucher enter a password to access drive Z."

Scott's reasoning, given in a comment to the "deconstructing" post, for his assumption that Mr. Boucher had input the password at the border is this: "It strikes me as hard to figure out how the border guards found the original kiddie porn file if he hadn't input the password in the first instance."

I'd like to propose two plausible explanations.

First, drive Z may already have been decrypted and mounted when Mr. Boucher woke his computer from sleep at the crossing. After seeing the suspect images, according to Magistrate Judge Niedermeier's opinion, "Agent Curtis arrested Boucher. He then seized the laptop, after shutting it down." This would have triggered the encryption software's unmount of drive Z.

Second (Scott, bear with me, I'm thinking like an actual criminal defense lawyer) Agent Curtis may not have found a kiddie porn file on the computer. He might not have seen the contents of drive Z at all. He could be making up some or all of this story as a pretext to find out what is on drive Z. (Why, then, would Mr. Boucher refuse to open drive Z for the government? Because whatever the contents of drive Z, they none of the Government's damn business.)

That dispenses with what Scott calls "Orin's nit-picking on one fact," but how does it affect the analysis?

Scot thinks that one fact is important:

The difference is that each new question, new room searched, new act of sex (if one is inclined to follow Bennett's lead), is an independent act and hence entitled to independent protection. The password demanded from Boucher is not a new bit of information, but the same bit that has already been provided. They just need it again.

That's a distinction without a difference. If Magistrate Judge Niedermeier is right that this case poses a Fifth Amendment question, it doesn't matter whether Mr. Boucher had answered the government's question before.

The government can't compel an accused to answer its questions again any more than it could have compelled him to answer its questions the first time. If an accused confesses at the police station, he's not waiving his right to remain silent at trial. The government can't force him to answer the same questions at trial that he answered before. And if the government does force him to answer the questions, then it can't make either direct or derivative use of the answers against him.

If Mr. Boucher had not moved to quash the subpoena, or if the magistrate judge had denied the motion to quash, he could have taken the Fifth before the Grand Jury. Then the government could have given him immunity (technically or practically [by getting Judge Niedermeier to order him to answer the question]) and forced him to answer the question or go to jail for contempt (which might be less onerous than going to prison for possession of child pornography). If he had then answered the question, his answer would have been compelled, and the government couldn't use the answer against him directly or indirectly.

If Mr. Boucher had been compelled to provide his password and Agent Curtis became unavailable for trial, the only evidence the government would then have of the contents of the hard drive would have been derived from Mr. Boucher's compelled testimony, and would therefore have been inadmissible.

The only way the government wins this one is if the contents of Mr. Boucher's brain were never protected by the Fifth Amendment.

My PGP Public Key

2008-01-26T12:58:00.000-06:00

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You Can Always Say No

2008-01-25T21:24:00.001-06:00

Gideon brings us news of a federal case in Vermont in which the judge has refused to force the accused to reveal the password that he used to PGP-encrypt the kiddie porn on his computer, even though the accused had already used the password to show agents what was on the computer.

This is, of course, a good ruling for liberty. In a world of sneak-and-peaks and warrantless wiretaps, it allows us to maintain a preserve of privacy into which the government cannot force its way. Apparently the USCBP doesn't yet have the quantum computers that would be needed to crack the RSA algorithm. If NSA's got that technology, they're not sharing. Download PGP today, and start using it.

According to the Washington Post article,

Orin S. Kerr, an expert in computer crime law at George Washington University, said that Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive. "If you admit something to the government, you give up the right against self-incrimination later on," said Kerr, a former federal prosecutor.

That reminded me of one of our law school classmates who, when we were discussing the law of rape in first-year criminal law class, asked the professor, "if you consent to have sex with someone once, does that mean you've consented for always?"

Um, no.

Why Chuck Won't Leave -- Another Data Point

2008-01-25T20:06:00.001-06:00

Apparently Allegedly the difference in Chuck Rosenthal's pension if he leaves now and if he leaves after completing his second term is something on the order of $90,000. A year.

[Update: So far I have been unable to confirm the truth of this allegation.]

Why Chuck Won't Leave

2008-01-25T18:30:00.001-06:00

Hypothetical question:

If Chuck Rosenthal resigns, who is in charge of the DA's office?

Answer: First Assistant Bert Graham.

For how long?

Until governor Rick Perry appoints a new DA.

Well, who does he appoint?

Maybe Pat Lykos.

So?

So whoever Perry appoints goes into the primary with an advantage.

Again: so?

So the general feeling among prosecutors is that Lykos would be a disaster as a DA.

Why?

Well, first, they're concerned that she'll come in looking to prove that she'll change the office, and will gut it. Second, Lykos has a bad reputation for dishonesty from when she was a felony court judge.

How so?

Here's an anecdote: Judge Lykos took long lunches. After at least one such lunch during a jury trial she came back late, keeping the jury waiting. Judge Lykos told the jury that she had admonished the lawyers for coming back from lunch late and keeping the jury waiting.

Is that anecdote true?

I couldn't swear that it is fact, but I've heard it from two independent and reliable sources, one of whom is a criminal district court judge.

Anything else?

She is reported to have referred to a lawyer's father as an "asshole" and then, when the lawyer filed a motion to recuse her, claimed under oath that she never used such language. A prosecutor in her court swore that she used such language all the time.

Why is a DA's honesty important?

That's a stupid question.

How does the defense bar feel about Lykos?

Mostly, they seem to feel about the same about Judge Lykos as the prosecutorial bar.

Why?

Same reason, I guess.

What about you?

I don't know Judge Lykos personally, but I'm reconsidering my former ordering of candidates to raise Kelly Siegler above last place.

Why?

Because things could always get worse. A DA who lies to juries and lies under oath would set the wrong example for the office, and might well be worse than another four years of the Rosenthal-Siegler regime.

So what does that have to do with the title of this post?

Ah. If Chuck still cares about the Office, he might see himself as a better caretaker for the next two months than Judge Lykos would be.

The next two months?

After the primary, the governor is likely to appoint the primary winner to the DA's office if given the opportunity.

And what if Judge Lykos is the Republican candidate?

Let's cross that bridge when we come to it.

Is there an alternative to Chuck staying in office till after the primary?

Sure. He could negotiate the governor's promise to appoint a caretaker interim DA.

Like who?

There are several viable candidates who know how to run a DA's office and don't aspire to do so. Former DA Carol Vance and former DA Johnny Holmes come immediately to mind.

Any chance of such a negotiated resolution?

Sorry, that's way above my pay grade.

Who Am I Not?

2008-01-25T18:00:00.001-06:00

It's been pointed out to me by anonymous commenters at Life at the Harris County Criminal Justice Center that I'm no Dan Cogdell, I'm no Racehorse Haynes, I'm no Gerald Goldstein, and I'm no Pat McCann. Because, of course, I used to believe that I was -- and hold myself out as -- Dan, Race, Gerry, and Pat. So I'm glad AHCL's kind anonymous commenters have cleared up some of my identity issues.

Once it was explained to me that I'm not any of those fine lawyers, I started thinking about who else I might not be. To begin with, I suspected that I might be no Stan Schneider, Michael Pham, Mike Ramsey, Walter Boyd, Norm Silverman, or any other Houston criminal defense lawyer.

It didn't take much investigation to confirm this suspicion.

More than that, though, I guessed that I'm no Chuck Rosenthal, Kelly Siegler, Rob Freyer, Mike Trent, Murray Newman . . . hell, I realized, it's pretty safe to say that if there is a criminal lawyer in Houston with a name other than Mark Bennett, I'm not he or she.

Then it occurred to me that the list of people I'm not might actually include some outside of Houston criminal law.

So, after further research, I no longer insist that you call me Ishmael.

I no longer harbor the belief that I'm a Jack Kennedy. Unlike Chuck Rosenthal and Louis XIV, I am not the state (and I never was); nor am I the law.

While I think, therefore I am (or, as Vic might say, I believe that I believe, therefore I believe that I am), I realize that I am not that I am. To the contrary I am (as Rudy Giuliani might say) no altar boy.

I'm pretty sure I'm not David or Sam, whoever they are. Sam-I-Am? No!

I am not America (and neither can you). I, not robot.

I realize now that I am not woman; don't hear me roar.

Whoever is John Galt, it is not I.

Sadly, I've come to understand that I am neither a little teapot, nor the walrus, nor even a rock. I am not a dancer. I am not Shakespeare. I am no Denzel; I am not even McLovin.

Lastly, I wish it weren't true, but I am not legend.

And that's the way it was, Friday, January 25th, 2008. Good night.

Judiciary Public Information

2008-01-25T11:04:00.001-06:00

In Open Records 102- Attorney General Edition Robert Guest republishes a FAQ from the Texas Attorney General about the Texas Public Information Act. The AG notes, correctly that "records of the judiciary do not fall under the Public Information Act."

For Open Records Week last week I sent public information requests to all of Harris County's 37 criminal-court judges. To get public information (not Public Information) from the judiciary, you must comply with Rule 12 of the Texas Rules of Judicial Administration. Here's a brief rundown of how it works.

A request to inspect or copy a judicial record must be in writing and must include sufficient information to reasonably identify the record requested. The request must be sent to the records custodian and not to a court clerk or other agent for the records custodian.

The custodian of records for a single-judge court (like a trial court) is the judge. The custodian of records for a multi-judge court (like an appellate court) is the chief judge of that court.

Once the written request has been delivered to the judge, the judge has 14 days to either:

(1) allow the requestor to inspect the record and provide a copy if one is requested; or

(2) send written notice to the requestor stating that the record cannot within the prescribed period be produced or a copy provided, as applicable, and setting a reasonable date and time when the document will be produced or a copy provided, as applicable.

If the judge denies access to the records (again, within 14 days), the requestor has 30 days to "appeal the denial by filing a petition for review with the Administrative Director of the Office of Court Administration." Then the Administrative Director has 60 days to grant the petition or affirm the denial of access.

Aside from the administrative review process, the requester can seek a writ of mandamus to force the judge to comply with the rule. Also, a judge who knowingly fails to comply with Rule 12 is subject to sanctions under the Code of Judicial Conduct.

The 174th District Court

2008-01-24T17:03:00.001-06:00

George Godwin, the longtime judge of the 174th District Court, is not running for reelection. Four prosecutors are running for that bench. Per AHCL, "Look for the A.D.A.'s to remain awkwardly quiet about this race until after the primary has settled the issue for them." How is the general public to choose among four prosecutors running for the bench?

One factor that helps make a good prosecutor is life experience. Many (most?) Harris County prosecutors go from high school to college to law school to the Office with no intervening time in the real world. Those who have had to exist outside the cloistered worlds of academia and government generally have a broader worldview, more of a sense of perspective, and more empathy than those who haven't.

In other words, they are more grown-up, more human. It may be that people who have had their butts kicked by the world a few times can more easily relate to the people caught up in the system than can those whose adult lives have been lives of extreme privilege. (Prosecutors will say, "hey, this isn't a life of extreme privilege. Look at how little money we make": privilege is like the water in the fishbowl; only by existing outside of it do the fish become aware of it.)

Those who can relate to the unfortunates whom they are prosecuting are more likely to prosecute with fairness, compassion, and justice. They may not be not the slavering attack animals that the public thinks it wants its prosecutors to be, but the truth is that better human beings make better lawyers on either side of the bar.

The life experience that is important in a good prosecutor is indispensable in a judge (and no, seven months halfheartedly taking court appointments between leaving the Office and becoming judge doesn't count). The fairness, compassion, and justice that make a prosecutor a better lawyer should be minimal qualifications for a judge.

At least two of the four Republican candidates for the 174th have life experience outside of academia and government. The two that I know of are Terrance Windham and John Jocher. John Jocher will be an outstanding judge (I suspect that Terrance would as well, but I don't know him as well as I know John); if you get a chance, meet John, and judge for yourself whether I am right.

Is there a Prosecutor Missing?

2008-01-23T21:31:00.001-06:00

I was driving down 19th Street in the pouring rain this evening when I saw a young man in a flannel shirt crossing the street -- about a block up. He had the sort of odd gait that I associate, for some reason, with brain damage. He started giving the finger to passing cars. As I got closer, I waved to him. He started angrily giving me both fingers. I waved some more, and we slowly passed each other by, he emphatically flipping me off and I smiling like a friendly idiot and waving.

Ignorance is Strength

2008-01-23T20:43:00.001-06:00

Prosecutor AHCL contributes to a vast sea of inanity -- inanity almost beyond belief; a sort of naive inanity that could only ooze from the keyboard of (dare I say it?) a prosecutor -- when she writes about Why I'm Concerned About Writing. After the Cliff's Notes version of George Orwell's 1984 (which she admits never having read), AHCL writes:

Well, Big Brother is watching now, and the effects are being felt even by non-lawyers.

Excuse me? Is this something new? What rock have you been hiding under for the last six years, four months, twelve days? Ever hear of the "USA PATRIOT" Act? And are you somehow under the impression that lawyers were more susceptible to being spied on by the government than non-lawyers?

She continues:

In PeggyO'Hare's article this afternoon, she wrote the following statement:

In court papers filed Monday, (Lloyd) Kelley gave a list of people he plans to call to the witness stand, including Rosenthal; prosecutor and Republican DA candidate Kelly Siegler; Siegler'shusband, Dr. Sam Siegler; Rosenthal's executive assistant Kerry Stevens; his chief investigator John Ray Harrison; his political consultant Allen Blakemore; and prosecutor Mike Trent.

Now correct me if I'm wrong, but didn't this lawsuit start over an issue with the Sheriff's Office? Now, I've got absolutely nothing to do with this law suit, and God knows I'm glad for that. I don't pretend to have the inner-understanding that the parties involved do (LOOSELY TRANSLATED: "Please nobody subpoena me."), but I'm having a hard time seeing how all these folks are getting roped into a case involving the Sheriff's Office, when none of them seem to work for the HCSO. Chuck subpoenaed? Maybe. But the rest? And can somebody explain to me how in HELL SamSiegler got involved in this mess?

I just don't get it. I don't understand what the criteria is before your private matters become public.

The elected District Attorney of Harris County, Texas was ordered to produce a number of emails in discovery in the lawsuit; instead of turning them over he deleted some 2,500 of them. The hearing to which Mr. Kelley intends to subpoena Mrs. and Dr. Kelly Siegler, Ms. Stevens, Mr. Harrison, Mr. Blakemore, and Mr. Trent is a contempt hearing.

Mr. Rosenthal could be fined and jailed for doing something other than the law allowed. An analogous proceeding with which AHCL is familiar is, naturally, a criminal prosecution. If Mr. Rosenthal's close friends and associates have relevant testimony -- if, for example (and this is just the first thing to pop into my head), they are able to shed some light on what might have been in the deleted emails -- Judge Hoyt will let Mr. Kelley question them about it. (If they are called to the stand and don't have anything to contribute to the court's understanding of Mr. Rosenthal's alleged contempt, he'll shut them down and shoo them off the stand. United States District Judge Kenneth Hoyt is not likely to let Mr. Kelley put on a political dog-and-pony show in his courtroom.)

Anyway, that's a roundabout way of showing that one circumstance in which your private matters may well become public is if you or your associates are accused of breaking the law.

Incidentally, does AHCL think that subpoenaing people to a hearing in federal court is such a great invasion of their privacy? Has she never requested that a judge sign a search warrant for a person's home? Called a reluctant member of an accused's family to testify? Issued a grand jury subpoena for someone's medical records? If AHCL stops thinking of her boss as just a witness in a lawsuit filed against the Sheriff's Office, and starts thinking of him as a witness who is accused of tampering with evidence, then Mr. Kelley's subpoenas might make more sense to her.

AHCL says that scares her. Well it should. It should even though the power being wielded by Mr. Kelley is tiny compared to that wielded by every felony prosecutor down at the courthouse. Our private lives are not private. They haven't been for years.

How many of you think your medical records are private? When I argued that Texans' expectation of privacy in their medical records (there is little more private than medical records) was reasonable, the Harris County DA's Office sent someone down to argue that it was not, and won that argument on reasoning that would make Thomas Jefferson weep.

There are people who fight, at the expense of safety, for the individual's right to be left alone, and there are people who fight for safety at the expense of that right. The Harris County DA's Office (that'd be the Office that AHCL works for) is decidedly on the "safety" side of that fight. The thing about government interference in our privacy is that it seems like a reasonable price to pay for safety, until you see that it might affect you. Harris County prosecutors whingeing about the invasion of the privacy of their boss's inner circle might do well to reflect upon the times that they have successfully argued that the need to enforce the law trumps the individual's right to be left alone.

AHCL goes on: "I'm hearing horror stories about more and more open records requests hitting the D.A.'s Office every day." Horror stories? Open records requests should serve as a healthy reminder to government employees that the ultimate boss is the citizen, and that the boss is generally entitled to find out what his employees are doing with their time.

If I send you an email, it's no longer my private matter. It's between you and me. If someone then gets some reason to look into your emails or if you decide that you don't care and pass it on, there's not a damn thing I can do about it. If I didn't want to risk someone else reading it, I shouldn't have sent it. And if the employees don't want the boss to read their emails, they'd better not send them using company computers, or the company email server, or even the company internet connection.

If the boss asking more questions about his employees' behavior is a "horror story", there's something wrong with the way the company is being run. But we knew that.

Protest too Much?

2008-01-22T21:50:00.000-06:00

Harris County prosecutor Vic Wisner writes in public explanation of his dismissal of the grand jury's indictment against Texas Supreme Court Justice David Medina:

My decision to dismiss the indictments

Without violating my ethical restrictions on commenting on pending investigations, I would like to explain the following to the public: Regardless of my personal belief in the merits of a case, I cannot ethically proceed forward if I believe the prosecution will not survive an instructed verdict of not guilty and be an exercise in futility. I do not, nor should any prosecutor, conduct show trials.

I am addressing the following issues hypothetically: If a prosecutor believed that a suspect was likely guilty but the guilt could not be proven, the prosecutor would be foolhardy to proceed to trial. This would be especially true at a very early stage of an investigative proceeding with a decade remaining to file charges. Additionally, a suspect may engage in dishonest or immoral conduct that falls short of committing a crime. A grand jury indictment means the grand jury believes that they believe that there is probable cause, it does not mean that there is legally admissible, competent, or persuasive evidence to prove a crime in open court.

I have never been involved in a situation like this before, likewise our office has never been under the scrutiny it is now. I know that similar situations occurred when Mr. Holmes was the district attorney. I also know that Mr. Ryan was the foreman of a previous grand jury which returned several indictments of public officials against the wishes of the prosecutor. They were of course also immediately dismissed. It is sad that actions that were once seen as ethical and demonstrative of prosecutorial independence are now viewed by some as dishonest and cronyism. Unfortunately that is the world I now work in.

For the record, if I'm ever murdered my vengeful ghost will want Vic to prosecute my murderer. He might not get the max, but I don't think that one of Vic's faults has ever been that he was too soft on people he believed to be wrongdoers. It's a shame that the DA's office is so far off the rails that a career prosecutor with no political ambition outside the office has to explain to the public the exercise of his discretion, but the DA's office hasn't merited the confidence the public has in it in years; the public is only realizing it now. It's time for big changes over there -- the kind of changes that will only happen with new leadership brought in from the outside.