Lawyers Who Don't Care

The mother of potential client called me the other day; she had been looking for a lawyer on the web. She had called one of the "nationwide" criminal defense corporations (you know the ones -- they have names like corporations instead of groups of human beings). She reported to me that they told her that for $15,000 they would give her son a 99% chance of beating his case. (I had already quoted her a reasonable and substantially lower fee, and told her the truth: that nobody could truthrully guarantee a result, but that I was familiar with the judge and I thought we might have a good chance on the facts as she described them if we approached the problem in this-and-such sort of way. A lawyer can never truthfully say, based only on a telephone conversation with the client's mother, that there is only a 1% chance of the client losing.) So that got me thinking: what kind of varmint tells the mother of a kid in trouble that for $15 grand he'll give her kid a 99% chance of skating? 99% is a weasel number -- it's high enough that the potential client sees it as a guarantee, but low enough that, if things don't go exactly the way the client wants, the lawyer can shake his head and say "I never guaranteed we would win." The answer, of course, is that only a lawyer who doesn't care about his clients would make that kind of promise. Only a lawyer who doesn't care about his clients is going to tell them what he thinks they want to hear. Any lawyer who cares is going to tell his clients the truth as he sees it from day one -- before he is hired. The irony is that a lot of people are more likely to hire the lawyer who tells them what they want to hear. So lots of people are more likely to hire the lawyer who doesn't care about them. The bright side is that when they do, and when things don't happen as 99% promised, they come to me and try to get me to fix things. (Do you have lawyer advertising horror stories of your own? Drop me a comment and let me know.)

Technorati Tags: advertising, criminal defense, lawyers

More on State's Rights

Clay Conrad commented here on my post about State's Rights. Clay questions my statement that "rights cannot be maintained using force:" "if someone seeks to kill me, do I not have a right to defend myself, thereby maintaining my right to live through violent self-defense?" I'm not sure Clay is wrong, but I think he and I have different things in mind. I may have spoken inartfully. Using my mugger-and-granny analogy, if Granny is better armed and better prepared than the mugger, she has the power to assert her right to keep her purse. Clay would say that she is maintaining her right through violence. But whether Granny has the power or not, she still has the right to keep her purse. So she doesn't maintain the right using force; even if she has no remedy, she still has the right. (An aside: I see the Second Amendment as an effort by the founders to make sure that the people have a remedy when the government makes concerted efforts to deprive them of life, liberty, and the pursuit of happiness.) Compare Granny's right to hold onto her purse to the people's right to a jury trial in a criminal case: the right exists even if the people can't use force to assert it. Contrast that with the State's "right" to a jury trial in a criminal case. If the State weren't supported by violence, there would be no criminal cases, no prisons, and no criminal jury trials. The State's power to force an accused to have a jury trial (instead of pleading guilty to a judge) is purely a creation of the state; like all such creations it would crumble if the State did not have a near-monopoly on physical force.

Technorati Tags: freedom, jury nullification, state's rights

Traumatic Brain Injury

One of the unintended side effects of the Iraq war is that many of our healthiest young men and women are coming home with traumatic brain injuries. Traumatic brain injury, or TBI, has been called the signature wound of the Iraq war. When I learned (from hanging out with lawyers who represent injured people) about the devastating personality changes that can result from TBI, I realized that in the next 10 or 20 years we are going to see a lot of Iraq War veterans entangled in the criminal justice system because of TBI and PTSD. So I was glad to see that the Centers for Disease Control have recognize the problem and published a brochure introducing the problem: CDC brochure on TBI. I'll be blogging more on TBI in the criminal justice system.

Technorati Tags: criminal defense, TBI

A Very Good Day

As I was leaving the Harris County Criminal "Justice" Center today after a couple of intense (but ultimately successful) struggles on behalf of clients, I had this thought:

How many people would give everything they have to know that they were going to walk out of this building at the end of the day?

Those of us who get to walk out of the courthouse at the end of the day are very fortunate indeed. Every day that we walk out of that building and go home to our families is a very good day.

Technorati Tags: criminal defense, lawyers

Another Poem

Minion of the state Imprisons fellow humans. Is the clapping of one hand Her Buddha-nature?

Technorati Tags: law, lawyers, poetry, prosecutors, Zen

A Poem

Outside the Peachtree Street jail in Atlanta there are bronze plaques inscribed with poems written by inmates. Here is my favorite:

Inside the prison There is a prison Inside the person.

Technorati Tags: poetry

Trial Technologies Reading List 1

My explicit exploration of alternative trial technologies started, believe it or not, with "The Game: Penetrating the Secret Society of Pickup Artists" (Neil Strauss). Jennifer bought it for my dad, and it was such a well-packaged book (black leatherette binding with red ribbon page marker, like a Bible) that I read through it. Reading it, I thought "what works to pick up women should work to influence juries. This led me to "Frogs into Princes: Neuro Linguistic Programming" (Richard Bandler, John Grinder). I had read about hypnotist Milton Erickson, so I went back from NLP to "My Voice Will Go With You: The Teaching Tales of Milton H. Erickson, M.D." (W. W. Norton & Company). I bought and explored a stack of other NLP / hypnosis books, but these are the ones that I recommend as a starting point for an exploration of deliberate induction of trance states. I say "deliberate" because the common element among the most effective argument, the most effective cross-examination, and the most effective direct examination is that at least one participant in each case is in a trance, even unintentionally. Even though we often notice it, we generally don't recognize it as a trance -- for example, we see a lawyer who is giving the argument of his life, and we say that he is "in the zone."

Technorati Tags: Books, criminal, hypnosis, NLP, trial

A Pirate's Life for Me

H.L. Mencken wrote:

Every normal man must be tempted at times to spit upon his hands, hoist the black flag, and begin slitting throats.

That's a pretty good description of my mood when I have a trial going on: the Jolly Roger is flying from the mainmast and I'm knee-deep in gore. It's not a bad feeling. There's something wonderfully antisocial about trying a criminal case -- for a few hours / days / weeks very little matters other than the opinions of the twelve people in the jury box. Today I was set for trial in a kilo case (that's shorthand for a drug case involving a kilogram or more of cocaine) in state court. The facts weren't good, but my client was willing to take a shot at trial . . . until, with a jury panel in the hall, the State finally made a plea offer that my client could accept. Getting out of trial, while it's often a relief, is almost always a bit of a letdown as well.

Technorati Tags: criminal defense, jury trial

Imprisonment for Debt

A felony judge told me the other day that one of the factors she considers in deciding whether to give a person probation is whether the person can pay whatever restitution might be due to the complaining witness. The Texas Constitution forbids imprisonment for debt. I pointed out to the judge that putting someone in prison because he couldn't pay restitution would violate the Texas Constitution. "It's just one factor I consider," she said. Well, sure, but if there are two identically situated people who differ only in their ability to pay restitution, the one who is being imprisoned because he fails the restitution test is being imprisoned for debt. "There are never two identically situated people, Mr. Bennett," she said. Of course there aren't, but the point is that if financial status is a factor, then a person is liable to be imprisoned because of his inability to pay. This is imprisonment for debt. Three thoughts: first, in a jury punishment case, it ought to be possible to exclude any evidence of the defendant's inability to pay restitution because a defendant's inability to pay is not relevant in light of the prohibition of imprisonment for debt. Second, the State should not include in its goals the aim of collecting debts for individuals and companies. If a person is placed on probation and happens to have the money to pay the debt, then it doesn't cost anybody much for the government to be an intermediary (the probationer will be paying monthly fines and fees to the government anyway). But an accused's ability to pay restitution should not drive either plea negotiations or sentencing. Third, a Texas district court judge should know better. I shouldn't have to point out to her that you can't constitutionally imprison a guy who can't pay restitution if you would have put him on probation otherwise.

Technorati Tags: punishment, Texas

Tainting the Jury Pool II

Fellow Houston criminal defense lawyer (and president of the Harris County Criminal Lawyers Association) Robb Fickman adds, in response to the bill offering psychological counseling to former jurors:

How about this: How about some counseling for the families and children of men and women who have been found innocent after years of wrongful incarcerated? Oh yeah they get to beg the state for money. How about restitution and counseling for the families of every man or woman that is found NOT GUILTY after spending every dime they have defending themselves against a wrongful allegation? How about that?

Technorati Tags: jury trial, legislation, Texas

Tainting the Jury Pool

There is a bill in Austin allowing the government to provide post-trial psychological counseling for jurors in certain types of cases. The bill provides for the "crime victim liaison" to arrange for the counseling, and allows the crime victim liaison to use a company that provides similar services to victims. According to this Austin American-Statesman story on the bill, "the bill is not clear on who would provide the counseling," but its sponsor, Texas Representative and part-time rocket surgeon (I just made that up -- according to his official bio he's a Harvard Law grad and decorated Naval aviator) Juan Garcia, "said he intends for jurors to be invited to call the victim and witness coordinators on staff in all district attorneys' offices." "Crime victim liaisons" at the DAs' offices have the statutory duty to make sure that "victims" and their families' statutory rights are honored. "Victim and witness coordinators" hold the hands of "victims," reassure them, and guide them to the witness stand. These are the folks who give children teddy bears as a reward for making accusations that the State likes. These people get paid to help the "victims." They have to assume that every accusation is true because if a person's accusation is not true there is no "victim." So Representative Garcia would have former jurors counseled by government employees whose job includes presuming every defendant guilty. Former jurors are future jurors -- chances are that a juror chosen in one case will be chosen in another. Rule 3.06 of the Texas Disciplinary Rules of Professional Conduct explicitly prohibits lawyers from making comments to a former juror that are calculated to influence his actions in future jury service, an acknowledgement that former jurors are susceptible to improper influence. Putting "victim liaisons" and the like in charge of post-trial psychological counseling for jurors, even if such liaisons could set aside the pro-State prejudice that is a part of their job, would taint the jury pool by conveying the false message that the jury and the State are on the same team. Representative Garcia: Do they not teach about the adversarial system of justice at Harvard? (Just asking.) How about a law, instead, that the State can't present evidence at trial that would cause the jurors mental anguish? It's not the defense presenting such evidence, and generally the State isn't presenting it because it's necessary to prove the case (there is almost always a less grotesque way to show what the State wants to use its grotesque photos to show), but rather to inflame the jury and make a guilty verdict more certain. Finally, I question whether evidence presented in a courtroom has the sort of emotional impact on jurors that the supporters of this bill attribute to it. In the trial that led to the bill, the jury gave the defendant 55 years out of a possible 99 after seeing the State's gruesome photos of the 21-year-old complainant's dismembered body. It seems likely to me that if the jury had really been affected by the photos, they would have loaded the defendant up with more than 55 years.

Technorati Tags: jury trial, legislation, Texas

Altered States in the Courtroom

Three examples of altered states of consciousness in the courtroom:

1. On cross-examination, a lawyer gets a federal agent into what Chicago federal defender cross-examination teacher Terry MacCarthy calls "Yes Mode," nodding and saying "yes" to each question. When the lawyer gets to the difficult questions, the witness continues truthfully saying "yes" even though he would rather deny, argue, or quibble.
2. On direct examination, a lawyer takes his client's full attention back to the night of the killing. The client, describing the story in the present tense, steps down from the witness stand and shows the jury how the complainant (the dead guy) assaulted him, and how he reacted. Reenacting the events, he remembers every sensory detail, and the story comes to life in the jury's minds.
3. A trial starts at 9 a.m. At noon, the judge announces a lunch break and the lawyer is surprised -- he had been so attentive to the trial that he had not noticed the time passing.

Technorati Tags: altered states, cross-examination, forensic reenactment, Terry MacCarthy

Legalize Methamphetamine

Methamphetamine is bad stuff. Really, really bad stuff. If the devil were to invent a drug to destroy mankind, it would be meth. That's why I used to say that methamphetamine, out of all of the drugs in the world, should be illegal. Phoenix criminal defense attorney Marc Victor makes a compelling argument that methamphetamine should be legalized. I think that he is right, and that I was wrong: methamphetamine, along with all of the other now-illegal drugs (most of which are benign compared to meth) should be legalized.

Technorati Tags: philosophy, legalization, war on drugs

Order of Argument

Here's a little Thursday afternoon regalito for my fellow Texas Criminal Defense lawyers: Often the State will lie behind the log in closing arguments, waiving its "right" to open the argument and saving all of its arguments for after the defense has made its argument. (For the laypeople reading this: when the State does this it means the prosecutor doesn't have enough faith in his case to subject it to rebuttal; he is afraid of the flaws in his case and would rather play games than subject it to scrutiny.) The statute giving the State the ability to open and close the argument, Texas Code of Criminal Procedure article 36.07, applies only to jury trials. In non-jury proceedings, the order of arguments is within the court's discretion. See Cherry v. State, 488 S.W.2d 744 (Tex. Crim. App. 1973), except that the Defendant gets to open and close the argument on motions he has filed. Tex. Code Crim. Proc. art. 28.02. So there is no statutory basis for the State to sandbag the defense in non-jury cases. Even in jury cases, however, there's an argument that the State should not get the last word: procedural due process. The Due Process Clause requires a defendant to have notice and an opportunity to be heard. If the State gets to reserve its entire argument for after the Defense has had its last opportunity to speak, the defendant is getting neither notice nor the opportunity to be heard. Attached is a little motion that I filed before a sentencing hearing asking for the opportunity to respond to the State's arguments. The judge in that case granted the motion, allowing me to respond to all of the State's arguments, and I got a favorable outcome for the client.

Technorati Tags: criminal, motions, Texas, trial

State's Rights

In Texas, there is a statute that says that a defendant will have a jury trial unless both the State and the defendant agree not to have a jury trial. Prosecutors, many judges, and some defense lawyers sometimes say that the State has a "right" to a jury trial. Another statute says that, when arguing a case to the jury, the State can open and close the argument. Again, many of the participants in the system say that the State has the "right" to open and close the argument. Sometimes lawyers will tell a jury panel that the State has a "right" to a fair trial or to a fair jury. The difference between powers and rights is that powers can be maintained using violence, but "rights" cannot. The State has powers over the people. In America, the State has its powers because we, the people, have given it these powers. The State has the ability to maintain its powers using violence (again, because the people have given the State this ability). The mugger in the dark alley has the power to take granny's purse, but that doesn't mean he has the right to do so. Granny has the right to keep her purse, but she doesn't have the power to (unless she's better armed than the mugger). Like the mugger, the government chooses the weapon and the time, place, and manner of its attack. In a criminal trial, the government chooses (in the guise of the prosecutor) where and when the trial will be, decides (in the guise of the legislature) what the rules are, and decides (in the guise of the judge) what the rules mean. Saying that the government has the right to a fair trial is like saying that the mugger in the dark alley has the right to a fair fight.

Technorati Tags: criminal defense, philosophy, state's rights

Verse of the Day

A good traveler has no fixed plans and is not intent upon arriving. A good artist lets his intuition lead him wherever it wants. A good scientist has freed himself of concepts and keeps his mind open to what is. Thus the Master is available to all people and doesn't reject anyone. He is ready to use all situations and doesn't waste anything. This is called embodying the light. What is a good man but a bad man's teacher? What is a bad man but a good man's job? If you don't understand this, you will get lost, however intelligent you are. It is the great secret. Lao-tzu, Tao Te Ching (Stephen Mitchell transl.)

Technorati Tags: criminal defense, philosophy, Tao

A Too-Common Ethical Violation

A lawyer is in court with his client. The prosecutor has made a plea offer to the lawyer, who thought it was something the client should have accepted. The lawyer has conveyed the offer to the client, and tried to convince him to take it. The client has rejected the offer. Often we will see the lawyer put the client on the witness stand in open court, in front of the judge and the prosecutor, to confirm that the lawyer conveyed the offer to the client and that the client rejected it. The lawyer will nonchalantly justify this as "making a record" so that the client can't come back later and complain (in a writ of habeas corpus or grievance) that he didn't know about the plea offer. The lawyer will be nonchalant about it because this is the way he's always done things, and the way he's always seen things done. Because this is how it's always been done, many lawyers have never considered the ethical implications of putting the client on the stand to eliminate the possibility of a writ or grievance. It is, however, a huge ethical violation. The ethical rules require a lawyer to convey any plea offer to his client, but whether he has done so or not is nobody's business but the lawyer's and the client's. What the lawyer has told the client, and what the client has said in return, is confidential. The rules do not provide any exceptions allowing the lawyer to try to prevent a potential writ or grievance by revealing confidential information. Worse than the violation of the rules, when the lawyer puts the client on the stand for this reason he clearly sends the message to the judge, to the prosecutor, and (most importantly) to the client that he and the client are not on the same side. There is always a risk to putting a client on the witness. There is no telling how what he says on the record might come back against him. A competent lawyer won't put his client on the witness stand unless the possible benefit to the client outweighs the risk. When a lawyer is putting his client at risk to cover the lawyer's ass, there is a conflict of interest and he is putting himself ahead of his client. He needs to stop representing that client. What should the lawyer do if the client has, against the lawyer's best advice, declined to accept an offer that the lawyer thinks should have been taken? Nothing. The lawyer has done his job by conveying the offer to the client. He has gone beyond his duty by trying to convince the client to take the offer. Whether to reject or accept an offer is one of the few decisions that only the client gets to make. If the lawyer wants to make a record of the discussions, he can do so by conveying the State's offer in writing and getting the client's signature on a copy of the letter for the lawyer's own file. Nobody else needs to know.

Technorati Tags: criminal defense, ethics, lawyers, remain silent

Two Kinds of People

Some people believe that we are where we are and have what we have mainly because of the choices we've made. Others believe that we are where they are and have what we have, ultimately, because of things beyond our control -- nature and nurture for example, or good fortune, or the grace of God. Most people who have led privileged existences are in the first group. People in the first group find it easy to judge others. (After all, if we are the product of the choices we've made, then clearly the people who lead privileged existences have made better choices than the people who don't.) If you know a republican, he's probably in the first group. Because it's easier for people in the first group to judge others, prosecutors are almost universally in the first group. The typical stock argument made by prosecutors in criminal cases highlights the "choices" the accused made -- a "first group" argument. Most people who have been beaten down by life a few times are in the second. People in the second group find it easy to empathize with others. It's easier to see how inexorable forces can control other people's lives if we've felt them in our own. Believing that we are ultimately creatures of factors outside our control, it is easier to imagine ourselves in other people's shoes. Because it's easier for people in the second group to empathize with others, the best criminal defense lawyers are in the second group. A great criminal defense lawyers is always seeking the uncontrollable factors that led the accused to do whatever he did. Being in the second group requires imagination: without imagination it's hard to see anything beyond the immediate choice. People rarely move from the second group to the first. In my observation, people often move from the first group to the second when they have more exposure to other people's sorrows and their own.

Technorati Tags: philosophy, imagination

Who Should Go to Prison?

A first-time offender should not go to prison if he couldn't legally have been shot and killed if caught in the act. (This is not, of course, to say that everyone who could have been shot and killed if caught in the act should go to prison.) This principle makes sense to me because it reserves prison as a punishment only for those who present an immediate danger to other people. Following this rule, a first-time house burglar, murderer, rapist, or armed robber would be looking at possible prison time while a first-time thief or drug dealer would not.

Technorati Tags: criminal defense, philosophy, prison

Intellectual Property?

A friend who's a great criminal defense lawyer in Collin County (and a former public defender and, before that, a former prosecutor) read my blog and asked me for permission to "steal" some of my writing for his website. My first reaction was that my ideas aren't my protected property. After all, lawyers copy each other's material all the time. When I write a brief or a motion that works, I expect that other lawyers will incorporate my research and writing into their own briefs and motions. When I have found, something that will help my clients in a brief or motion that someone else has written, I have had no qualms about incorporating it into my own work. Then I happened upon this article about Pham v. Jones. In that case, Michael Pham, a Houston "letter lawyer" who gets about 15 new clients each week (95% of his new business) at between $100 and $300 per misdemeanor and $500 and $750 per felony, sued Raymond Jones, another letter lawyer with identical rates, for sending out a letter and brochure substantially similar to the letter and brochure that Mr. Pham would send to potential clients. (For those not familiar with letter lawyers: the term is not a one of approbation. Mr. Pham and Mr. Jones used a system for soliciting clients, wherein they would find prospective clients through Harris County arrest records. They would then mail those arrested individuals who had been released from jail form letters and brochures informing them of the legal services they provided. Mr. Pham would charge his maximum fee [$300 for misdemeanors, $750 for felonies] if a case were reset more than once.) Here are Judge Hittner's Findings of Fact and Conclusions of Law from Pham v. Jones as well as the Attachments to Motion for Summary Judgment, including copies of the two letter lawyers' letters to accused people, filed in that case. Law Professor Thomas G. Field, Jr., who wrote the article that brought this case to my attention, wrote of the fact that lawyers copy each other's material all the time: "Such practices, even if widespread, are no more relevant than claims offered by people who justify copying software, music and other digital content on the basis that "everybody does it." (That goes to show you how little I know about intellectual property law.) So, as I understand it, I have an enforceable copyright on the things I publish on the web. I could register the copyright and sue people who use my blogging in their own websites. Would I? No. I try to behave so that if everyone else believed the same way the world would be a better place; I try to write so that if everybody else wrote the same things the world would be a better place. I'm more interested in my ideas propagating than in getting credit for them. I'd hate to think that other lawyers were, to get more clients, cynically pretending to believe what I believe, but anyone who wants to adopt my ideas as his own is welcome to them. Attribution would, of course, be nice.

Technorati Tags: criminal defense, lawyers, philosophy