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Prison Article

Andrew Papke, serving two consecutive 20-year sentences for intoxication manslaughter, has a very moving article, I Know Why the Caged Bird Screams, about the Texas prison and parole system, in the Texas Observer this week.

Another Common Ethical Violation

Yesterday Gideon blogged here about trial lawyers trying to help the government defeat their (former) clients' habeas claims. "Occasionally," he writes,

I will try habeas corpus cases. Some of them will be challenges to pleas, enforcement of plea agreements and then the usual ineffective assistance claims. What really grinds my gears is the lack of co-operation from trial counsel. It seems as though there is a certain percentage of attorneys that don’t like it when their former clients file petitions for writ of habeas corpus alleging IAC.

The he goes on to ask, "Why? Isn’t it supposed to be about the client? Isn’t that the bottom line?" I've often seen it happen that lawyers faced with allegations of ineffective assistance go out of their way to help the state keep their clients in prison. Sometimes they'll violate attorney-client privilege by signing an affidavit prepared by the state before they have been ordered to respond to the allegations. This practice -- lawyers resisting helping their clients get post-conviction relief -- fits into the same category as lawyers making records against their clients. In fact, once I saw a twofer of those two violations when a "lawyer" in Victoria County filed confidential documents harmful to his client in the court's public file "in anticipation of a federal writ" (I expect that the grievance committee will be contacting that "lawyer" some day soon). The answer to Gideon's "why?" is "ego." Many lawyers see an allegation that they made a mistake as a personal affront. Their self-image is so tied up in their attainment of error-free perfection as lawyers that anything that reminds them of their feet of clay is a threat to them. They respond to the threat defensively. The truth is that we all make mistakes. We may think we didn't make a mistake in a particular case (or we may think we might have, and be afraid that someone is going to punish us for it) but the truth, of course, is that it is about the client; that is the bottom line. A client who alleges that his lawyer screwed up isn't trying to hurt the lawyer; he's trying to save himself. The lawyer's job, when faced with allegations of ineffective assistance, is to remember that it's about the client, take a breath, smile, and respond as helpfully as possible to the client's allegations. The task is to tell the truth; if the truth can be told in a way that helps the client, so much the better.

Technorati Tags: ethics

Quote of the Day

Imagination is more important than knowledge. -Albert Einstein

State Constitutions

Last week Texas's Waco Court of Appeals issued an opinion in Peña v. State holding that a defendant does not have to show bad faith to establish a due-course-of-law violation when the State destroys potentially exculpatory evidence. In doing so, the Waco Court (an intermediate appellate court with criminal and civil jurisdiction) applied the Texas Constitution's Due Course of Law Clause to give more protection than the U.S. Constitution's Due Process Clause. The Peña case illustrates the good that can come of being familiar with your state constitution and arguing its provisions in addition to those of the U.S. Constitution. (I blogged about the greater protection the Texas Constitution gives religion here.) The Peña case also illustrates the importance of each state's constitutional jurisprudence on the others: in reaching its conclusion the Waco court followed 12 other states -- Alabama, Alaska, Connecticut, Delaware, Hawaii, Idaho, Massachusetts, New Hampshire, New Mexico, Tennessee, Vermont, and West Virginia (cites) -- that refused to apply Arizona v. Youngblood's "bad faith" requirement for due process violations

Plain English

I like to write my pleadings in plain English. My goal is generally to write motions (and proposed orders) so that Lynn Hughes would not find reason to mark them up (which he tends to do). For example, a Motion to Y:

{Style of Case} {Title of Motion} Judge X,

Please Y because Z.

Thank you, Mark Bennett.

An attorney-and-counselor-at-law (someone who calls himself ". . . Esq.") might begin:

{Style of Case} {Title of Motion}

To the Honorable Judge of Said Court:

Comes now D, the defendant in the above-entitled and -numbered cause, by and through his attorney of record, and respectfully moves this honorable court to Y.

In support thereof, defendant would show that Z.

Wherefore, premises considered, defendant respectfully requests that this court Y.

Respectfully submitted, . . .

By my count, 33 words, most of them meaningless or redundant or both, passed before we even found out what Y was -- compared to three words in my motion. I've never had a judge take exception to my plain-English motions . . . until last week, when a federal judge conveyed the message to me, through her court coordinator, that future motions should be "in the form of motions." "You mean with 'comes now' and 'wherefore, premises considered?'" I asked. "Yes. I can send you a sample if you like." I laughed. "Thank you; that won't be necessary." I know how attorneys-and-counselors-at-law write; I don't write that way because verbal folderol is generally a barrier to communication. With this judge, I will use the folderol because its absence apparently impedes communication with her. Weird, huh? To make the medium match the language, I'd write my motions with a goose quill on vellum. But this judge's district only accepts documents filed electronically.

How to Stifle Creativity

One of the distinguishing characteristics of the creative childlike mind is the ability not to suppress the ideas that are unpopular or unsuccessful. Eminent First Amendment lawyer Jon Katz brings us this tale of an Illinois high school student who is being prosecuted for following his teacher's instructions to "Write whatever comes into your mind; Do not judge or censor what you are writing.” (His teacher was shocked by what he wrote; she reported it to her department head, who reported it to the monumentally stupid principal, who filed disorderly conduct charges.) Jon sees it as a First Amendment problem; it is that. I see it as an attack on a young man's creativity. Although it may be good preparation, perhaps for Marine Basic Training, we should expect better from our schools.

The Client Manifesto

"Gideon" at a public defender brings us The Client Manifesto -- five things that clients should require of their lawyers:

• Has the state made any offers to me?
• Will I get credit for my pre-sentence confinement?
• Discuss your testimony
• Will I be eligible for parole?
• Have you filed my appeal?

He asks for more; here are another 5, off the top of my head:

• How might this affect my driver's license? Other licenses -- professional and vocational? Immigration status? More and more, criminal cases have collateral legal consequences that are not foreseen by the accused. These consequences can be harsher than the direct punishment.
• If I take this offer, what will my record show? Even aside from collateral legal consequences, a plea in a criminal case can leave a damning mark on your record that employers, landlords, and other people who do background checks will hold against you forever.
• What are the elements of the charge against me? How is the state going to prove each element? In criminal court, what matters is not what is true, but rather what the government can prove.
• What is the next thing you need me to do to help you defend me? Your lawyer has your future in his hands; help him help you.
• Can I have that in writing? A lawyer should not make his clients any promises that he's not ready to make a permanent record of.

I'm sure there's more that Gideon and I have missed. [edited substantially after initial post]

Radical Stuff

When I told a friend who's a judge about this blog, he (knowing my antigovernment leanings) asked "does it have a bunch of radical stuff on it?" Well, it doesn't, but since he promised to check in I thought I'd post a little radical antigovernment story. This is for the judges and prosecutors. (Our elected district attorney ran for that office while wearing a wristband asking "WWJD?" I think this story will answer that question.): 1 Jesus went unto the mount of Olives. 2 And early in the morning he came again into the temple, and all the people came unto him; and he sat down, and taught them. 3 And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst, 4 they say unto him, Master, this woman was taken in adultery, in the very act. 5 Now Moses in the law commanded us, that such should be stoned, but what sayest thou? 6 This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. 7 So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her. 8 And again he stooped down, and wrote on the ground. 9 And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst. 10 When Jesus had lifted up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? hath no man condemned thee? 11 She said, No man, Lord. And Jesus said unto her, Neither do I condemn thee: go, and sin no more.

Brain Scans

Anne Reed brings us this post, which clearly fits into the "science" part of The Art and Science of Criminal Defense Trial Lawyering. Researchers in psychology discovered, by using an MRI tracking the brain activity of subjects reading text on a screen, that the brain spontaneously divides read text into discrete "events" in the same places that we would consciously do so (here is the article). It appears that, before this study, psychologists believed that this phenomenon, "event structure perception," was limited to visual inputs. The brain activity evidence of event structure perception in reading suggests, according to the paper, that there is a "larger system involved in the comprehension of everyday activities that may be modality independent (i.e., involved in comprehending real-world visual events as well as narrated descriptions of those events)." So what do we trial lawyers do with this? There are a lot more questions to be answered before we can know for sure (for example, how does the brain respond to events of certain durations or other patterns? how many different narrative threads can the brain keep track of at a time?), but it seems reasonable to play to our jurors' strengths by:

• Thinking about the events in the narrative we're presenting to them and by explicitly dividing the narrative into "events" where we think their brains will do the division anyway (that is, for example, "when the characters, place, or time change [or] when the characters' goals change, they start working with different objects . . . , or new causal relationships are revealed." In Anne's words, "us[e] clear transitions to break the information into the same kind of segments they will." (We do this, to an extent, when we introduce a new topic on direct or cross-examination by saying, "Now let's talk about . . ."); and
• Matching the event structure of the real-world visual events (what the jury is seeing in trial) with the event structure of the narrative we are presenting (the story we or our witnesses are telling). That is, giving visual cues of new "events" by changing what the jury is seeing (for example with physical shifts in position or changes in exhibits) at the points in the narrative at which we would expect our jurors' brains to divide the narrative and only at those points; and
• Disrupting the event structure of our adversary's narrative by making the event structure of the real-world visual events clash with the event structure of the narrative. That is, giving visual cues of new "events" only at points in the adversary's narrative at which the jurors' brains would not divide the narrative.

Former Prosecutors II

I blogged here about former prosecutors' inherent qualifications as defenders. Manhattan criminal defense lawyer Scott H. Greenfield gives us his take on the subject here. "Many of our best were once on the dark side," he says, but they're not our best because they were on the dark side. A highlight:

Young ADAs (assistant district attorney) are amazed at their good fortune in court. They win argument after argument. Why? Is it because they're brilliant Turkey? NOOOO!!!!! It's because they are prosecutors. In fact, the pap they spout is often ridiculous, but judges (like defense lawyers) know what the right arguments are and don't turn criminal defendants out on the street because some snot-nosed clueless prosecutor blew the argument. So when they leave the office, they are no longer the recipient of the court system's largesse, and have to win not only on their own, but against all odds. Maybe they aren't as smart as they thought.

Like I often say, prosecutors win most of their cases and think that they're brilliant; defenders win some of theirs and know that they are.

TLC Lawyers' Blogs

I just happened upon my friend Jim Jenkins's Florida Criminal Law blog. Jim is a Pensacola criminal defense lawyer, and a friend of mine from the Trial Lawyers College (TLC). I hadn't heard from Jim in a long time, and I'm glad to see that he's blogging. Other TLC lawyers with criminal-defense blogs are Jon Katz, with his Underdog blog, and Norm Pattis, with his Crime and Federalism blog. Jon is a dedicated true-believer criminal defense and First Amendment lawyer. Norm is one of the smartest lawyers I know. Jim, Jon, and Norm are all world-class lawyers. It's good to see them sharing what they know and what they believe with us.

Weed in the Car

Today Miami criminal defense lawyer Brian Tannebaum brings us this judge's verdict in a possession of marijuana case in Palm Beach County. After a bench trial in which the accused represented himself the judge found the accused, in Brian's words, "not-guilty-really-really-not-guilty." The only evidence against the accused was that he was driving in a car that smelled of marijuana and contained less than 20 grams of marijuana. Here are the last couple of paragraphs:

In publishing this verdict, the Court has included commentary that admittedly may not be relevant to the question of whether the Defendant committed a crime. This commentary should not be construed as an indictment of the officers who arrested the Defendant or the state attorney for prosecuting the case. This judge is deeply concerned about the threat that drugs pose to our society, and particularly to our children, and, therefore, appreciates the motivation and good intentions of the police and prosecutors who bring these cases to court. However, as Judge Gray so eloquently writes, “although the war on drugs makes for good politics, it makes for terrible government.”

In this one case, the Court finds the Defendant not guilty. Undoubtedly, the state will prevail in many other marijuana cases that will come before this Court in the future if the accusation is proven. This judge is sworn to uphold the laws not to write them. The more important questions to be resolved are whether the war on drugs as it is presently being conducted is doing more harm than good and whether it is effective. Those questions can be answered only by the Legislature, not the Courts, and certainly not by this judge.

This was a stupid prosecution. The accused should never have been arrested; the state attorney should never have accepted charges; once brought, charges should have been dismissed before trial. The accused should never have had to waste his time coming to court. Having acquitted the accused, the judge should not have felt obligated to pat the police and prosecutors on the back. He didn't have to say "this was a stupid prosecution," but why stroke the cops' egos? Why stroke the prosecutor's ego? Good politics, indeed. Why? Because elected judges have to worry about reelection, and judges worried about reelection have to worry about the endorsements of the law enforcement lobby. The last two paragraphs of the verdict are in effect a response to a "plea for law enforcement." Despite the need he felt to explain his law-and-order credentials, this judge did the right thing "in this one case;" if every judge would do the same in every stupid prosecution of a guy in a car with dope, such prosecutions would stop. In Texas, we have the right to a jury trial on any criminal offense. Unlike judges, juries don't have to run for reelection, so they are less likely than judges to be concerned with how their acquittals are publicly perceived. Juries are less likely to fall for a fallacious "plea to law enforcement" than judges who risk losing law enforcement's support. I've tried worse cases to juries and won. If we all tried all of these "weed in a car" cases, do you think the government would figure out that the cases are stupid and stop bringing charges?

Still More on Nonjudgmental Jurors

Anne Reed over at Deliberations has picked up on my posts about the jurors who can't judge, and taken the research a lot farther here. Anne points out the potential clash between the Batson cases (which bar the exclusion of jurors because of race and sex, and which can arguably be extended to bar the exclusion of jurors because of religion) on the one hand, and Witherspoon v. Illinois and Wainwright v. Witt (which allow the exclusion of jurors whose beliefs "substantially impair" the performance of their duties as jurors in accordance with their instructions and oaths) on the other. Anne points us toward a 2004 Seton Hall Law Review article discussing the future of religion-based strikes; there is also a a Michigan Law Review Note by (now-) University of Tennessee law professor Benjamin Hoorn Barton entitled Religion-Based Peremptory Challenges after Batson v. Kentucky and J. E. B. v. Alabama: An Equal Protection and First Amendment Analysis (it's on JSTOR; you will need a login to read the whole article online. I got access through my Houston Public Library account. The cite, if you have a law library handy, is 94 Mich. L.Rev. 191 (1995)). Like John Mansfield of Harvard, who wrote the Seton Hall Article, Barton argues that religion-based peremptory challenges don't pass Equal Protection muster. Several lower courts have distinguished between strikes made because of religious "beliefs" and strikes made because of religious "affiliation," suggesting that strikes may be made because of beliefs but not because of affiliation. See, for example, U.S. v. DeJesus (3rd Cir. 2003). In other words, you are free to claim that you belong to any religion, even one that has tenets that the government finds offensive, but if you actually believe in those tenets you may be punished by being excluded from participation in government through jury service. Back in Texas, however, the Texas Court of Criminal Appeals doesn't even find that distinction necessary. It has held that exercising peremptory challenges against jurors because of their religious affiliation does not violate the Equal Protection clause: "[T]he interests served by the system of peremptory challenges in Texas are sufficiently great to justify State implementation of choices made by litigants to exclude persons from service on juries in individual cases on the basis of their religious affiliation." Casarez v. State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (upholding prosecutor's peremptory challenge of jurors for their mere Pentecostality). The Texas Constitution, with its prohibition on religious tests for public offices and public trusts (Article 1, Section 4) and its strongly-worded "Freedom of Worship" clause (Article 1, Section 6), was not raised in Casarez.

More on Nonjudgmental Jurors

I blogged here about the exclusion from jury service of people who hold religious beliefs that prevent them from judging other people. I thought of it as a First Amendment problem and an Equal Protection problem under the U.S. Constitution. I haven't given much thought to the Federal implications beyond Batson, Powers, and J.E.B., but it appears that there may be an even stronger argument under the Texas Constitution. Article 1, Section 4 of the Texas Constitution provides:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

When a person is excluded from serving on a jury -- so the argument would go -- he is excluded from holding an office or public trust. When that exclusion is based on his religious sentiments, it violates Article 1, Section 4. Further, Article 1, Section 6 of the Texas Constitution provides:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.

By barring people with certain religious beliefs (beliefs including the impropriety of people sitting in judgment over each other) from jury service, the law gives preference to those religious societies that do not hold these beliefs, in violation of Article 1, Section 6. This is an issue that is ripe for litigation. The mere asking of the question, "do any of you have religious beliefs that forbid you from sitting in judgment" is arguably a religious test that violates Article 1, Section 4 and a preference that violates Article 1, Section 6. Object early and often.

Quote of the Day

We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job - our sworn duty - as criminal defense lawyers, to protect our clients from those people.

- Cynthia Roseberry

The Art

The art at the top of the page is Jean-Léon Gérôme's 1872 Pollice Verso, which resides at the Phoenix Art Museum. The metaphor will be obvious to anyone who has ever tried a criminal case. So who's the defender and who's the prosecutor? Well, it's like they say: Some days you're the retiarius and some days you're the secutor.

Nonjudgmental Jurors

In almost every criminal jury selection I've seen, there has been at least one juror who has said that she is unable, because of religious beliefs, to judge other people. Almost universally and without further inquiry, the lawyers have not allowed these people to serve as jurors. That the defense lawyers (who probably want such people on their juries) don't try very hard to keep them has always rankled me a little bit. Generally (in Texas at least) a juror who claims not to be able to judge other people is following her understanding of Jesus' admonition in Matt. 7:1, "Judge not, lest you be judged." The same juror, if questioned respectfully, would likely say that she can agree to render unto Caesar and decide whether the government has proven a violation of the law. After all, a criminal trial is not about moral guilt; it's not about who goes to heaven and who goes to hell; it's about whether the government, following all of the rules, can prove beyond a reasonable doubt that the accused violated the particular law alleged in the accusation. A juror who recognizes this and agrees to follow the law is rehabilitated, so that the government has to choose between (a) finding some religion-neutral reason to use a peremptory challenge on her and (b) leaving her on the jury. At the Capital Voir Dire seminar I attended last week in Plano, someone had a better idea: a person should no more be barred from serving as a juror because of her religious beliefs than because of her gender or race. The Texas Legislature mandated a specific form for the juror's oath in Texas Code of Criminal Procedure Article 35.22:

You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.

If there is a clash between a potential juror's religious beliefs and the juror's oath that makes it impossible for the potential juror to take the oath, that means that there is a problem with the oath rather than with the religious beliefs. Using this reasonable proposition as a starting point, I made a record in my last trial that the juror was being excused because she could not judge, and that this inability to judge was based entirely on her religious beliefs; I objected that this violated her First Amendment right to the free exercise of her religion. Barring people with particular religious beliefs from serving on juries is extremely disrespectful toward those people and their religions. As Jamie Spencer points out in another context, if the government treats people with respect, it will receive respect in return. How large a portion of the population does the government have to disrespect before we all realize that government disrespects us all?

Indefensible

David Feige's book, "Indefensible: One Lawyer's Journey into the Inferno of American Justice" has been on my "to read someday" list for months. I started reading his blog, and then ordered the book from Amazon. I started reading it last night. I may give a more thorough review of it later, but for now I'll say that I've found it extraordinarily true -- not that it's factually accurate (though I have no reason to believe it isn't) but that it's densely packed with Truths large and small about the practice of criminal defense law. Three examples: First, David describes why he chose to be a public defender rather than pursue a job with the prestigious (read "high-paying") civil firm where he served a summer clerkship:

But the vertiginous experience of being a bit player in the big world of commerce never quite sat right. Partly it was my insufferable lack of deference, partly it was my defiant streak, and partly it was just because, looking around the firm at my high-powered colleagues, with their sophisticated airs and entitled perspective, all I saw were slaves.

I came to a similar conclusion during my summer clerkships. The word "slaves" didn't come to mind at the time, but at some point I looked around and saw that nobody was having any fun. I started asking the associates at the firm, "is this job any fun?" and never got a straight "yes" answer. "It has its ups and downs," they would say, or "It's a job; it's not supposed to be fun." Well, actually, I thought, it is supposed to be fun. So I stopped chasing after the high-paying civil job. I hung out my shingle and started defending people. That course had different risks and different rewards than David's chosen path as a PD, but the fundamental principles involved are, I think, much the same. Second, two pages later:

The summation lasted about twelve minutes, each of them floating by me like an iceberg off the bow of a lumbering ship, each moment crystalline, weighty, and portentous. It was the first time, but by no means the last, that I heard myself sum up without understanding a word that I said, some deep part of my limbic system taking over the words while the conscious part of me was left abstractly appreciating the rhythms and sounds, completely divorced from the meaning of any of it. I supposed this was what it was like when an athlete spoke of being in the zone, of doing without thinking, of a deep and golden attention to one's heartbeat, the smell of the arena, the chill of the late fall, the ball slowing as if thrown through honey.

To me that's a beautiful description of mindfulness (which I've blogged about here and here and here). Third, a few pages further on:

"Feige," she said . . . "you gotta know deep down that this is the most righteous work there is, that even though we lose and lose and we get creamed every day, even though we watch them take our clients and haul them off to jail, you have to wake up the next morning and fight your heart out, looking for those few times we can stop it. Not because you're looking for appreciation, not because you want someone to say, 'Thanks, Feige, you saved me,' but because, at the end of the day, no matter what anyone says, you know that what you're doing is right."

I have observed before that the more clients pay us, the happier they are with us. Public defenders' offices often include some of the best lawyers in town, but their clients aren't paying them anything, much less paying them what they're worth. I won't be surprised if in the next hundred pages he writes something that pisses me off -- from his reviews on Amazon.com, it appears that he doesn't pull any punches, and I won't be surprised if he has harsh views about those of us who defend those who can afford to pay for representation. Still, on the strength of what I've read so far, I would recommend this book to anyone who does what we do.

Get Out of Jail Free

Fellow defenders, Jon Katz over at Underdog Blog writes about a Georgia juvenile PD being jailed for contempt for arguing "contumaciously" with the judge. Did you know that when a Texas judge holds you in contempt for something you did in the course of defending someone, you have an absolute right to release on your own recognizance and a hearing before a different judge? Texas Government Code Section 21.002(d) requires it. Here is a throwdown motion I've written to carry around in my briefcase for whenever one of my colleagues is held in contempt. You're welcome to it, of course.