Marketing the Hired-Gun Prosecutor

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

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?

Untitled 3

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

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

Wire Writers Speak

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

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

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

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

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

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

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

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

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

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

The Wire

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

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

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

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

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

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

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

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

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

Proposed Change to Rule of Privilege in Texas Criminal Cases

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

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

(PDF of proposed rule change.)

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

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

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

Why the change? I've no idea.

Blog or Government Propaganda Tool?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday Evening Staff Meeting 2

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

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

The Code

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

I think most lawyers don't have one.

What's yours?

More Proof that Higher Fees are Better

NPR: people get better results from more expensive pills!

Dear Jim Leitner

Dear Jim,

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

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

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

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

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

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

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

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

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

Still a supporter,

Mark.

Admit it: You Goofed.

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

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

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

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

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

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

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

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

No Such Thing as a Professional Juror

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

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

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

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

No, no, no. A thousand times no.

Three Republican DA Candidates

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

Kelly Siegler

Pat Lykos

Jim Leitner

You're Not Listening!

Listen:

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

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

You can pick a better jury.

You can demolish your adversary's case.

You can perform a better direct examination.

You can perform a better cross-examination.

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

How, you ask?

I already told you. Listen.

That's all. Just listen.

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

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

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

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

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

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

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

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

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

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

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

The Loss of Meaning

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

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

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

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

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

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

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

No more.

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

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

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

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

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

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

Mexico Discovers Due Process

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

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

The Wolf and the Yarmulke

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

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

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

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

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

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

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

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

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

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 . . .

. . . 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

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

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

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

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

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

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

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

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

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

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

Elsewhere

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

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

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

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

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

. . . Gone!

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.