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.

Prosecutorial Memes.

There are ten or twelve stock arguments that most prosecutors learn to use and then never deviate from. For example:

Smoke and Mirrors. The "Spaghetti" Defense. Explain it to Your Spouse / Neighbor. Send a Message. Plea for Law Enforcement.

To those of us who make our livings toiling in the criminal courts, these arguments may seem trite. The fact that we've heard each of them many times doesn't help; nor does the fact that they are often used inappositely -- for example, a prosecutor will call the simplest inferential rebuttal argument "smoke and mirrors." But to our jurors who haven't heard them all before, these arguments might seem fresh and original, and when the government gets to make all of its arguments after our last opportunity to speak we don't get to point out to the jury afterwards how silly their arguments are, and they may resonate. There are simple counters to these arguments. The "Send a Message" and "Plea for Law Enforcement" arguments, for example, can be gutted in voir dire: potential jurors will readily agree that it doesn't make any sense to find someone guilty in order to send a message to the community or show support for law enforcement -- if the defendant is not proven guilty beyond a reasonable doubt, she should not be convicted just to send a message or show support, and if she is proven guilty beyond a reasonable doubt, she should be convicted regardless of any message that needs to be sent or fragile law enforcement ego that needs stroking. These arguments can also be countered in the defense closing argument. If the defender argues that the government's case is "smoke and mirrors" or a "spaghetti prosecution" for example, or that the jurors might be asked to "explain to their spouses and neighbors" that they acquitted the accused because the government failed to prove its case, the prosecutor can't very well get up and make the same argument. Any of us could weave a paragraph or two of closing argument that would forestall the prosecutor using any of her stock arguments without sounding like a copycat, and force her into the unknown territory of creativity. So how about it, fellow gladiators and gladiatrices: what are your favorite / least favorite stock prosecutorial arguments? I know that prosecutors are reading my blog too. So, prosecutors: what am I missing? Let me know in the comments.

Technorati Tags: argument, criminal, jury trial, prosecutors

In Trial Today

Today I helped one of my former students (he was in one of my classes when I helped teach criminal trial advocacy at University of Houston Law Center) try a misdemeanor case -- one of his first. I did my best to just butt out and give him backup and a few pointers; now I know how momma birds feel when they're watching their baby birds tumbling to the ground before they've really figured out how flight works.

Dealing With the Media and Fighting Like You Mean It.

Fellow criminal defense gladiators and gladiatrices: On May 11, the Harris County Criminal Lawyers' Association and the Texas Criminal Defense Lawyers' Association are presenting a seminar in Houston on dealing with publicity in and out of court. I'm the course director. Our lead speaker is LCDR Charles Swift. He is joined by Rusty Hardin, Katherine Scardino, Randy Schaffer, and Houston Chronicle legal reporter Brian Rogers. The seminar will cost $125 per person. It's been approved for 7.25 hours of continuing legal education, of which 3 hours are ethics credit. Find the registration form here.

Advice to a Young Criminal Trial Lawyer

Keep your overhead as low as possible. You need a good laptop. You don't need a secretary. Join your local, state, and national criminal defense lawyers’ organizations, and join their listservs. You don't need ProDoc (unless you're doing more than just criminal law). You might not even need an office at first – just a place where you can meet with your clients in private and have a high-speed internet connection. (If I had it to do over, I would consider working out of the courthouse for the first six months, spending all day there and watching other people work when I wasn't working on my own cases.) Answer your own phone whenever possible. When people need to talk to a criminal defense lawyer, they need to talk to a criminal defense lawyer. You'll need a land line (so you can take collect calls from jail), but it can be forwarded to a mobile line. When you can't answer your own phone, use an answering service. Nothing says "Hire someone else" quite like voicemail. If your local courts have an online information service, subscribe. Get admitted to practice in federal court. If business is booming in a nearby county, having a presence down there might be a good idea. Use a written contract. Ask someone you trust for a go-by. Your clients are not your property. It will occasionally happen that a client fires you and hires someone else. Be of good cheer. Give his entire file back to him without a fuss (it's his property; you can keep a copy at your own expense), and cooperate with new counsel. Don't lie to your clients.

When potential clients ask your opinion of other criminal defense lawyers, follow Thumper's mother's advice. Running down other lawyers makes you look petty. If you're worth a damn as a criminal defense lawyer, you don't have any competitors. Nobody is the best lawyer for every case. Try to be the best lawyer for every case you have. Don't tell the State what your case is about until it's too late for the prosecutor to woodshed the cop to get around your defense. (This is usually after the State has rested. Often it's after the State has closed. Sometimes it’s after the jury verdict has come back.) Charge at least what you think you're worth. If a client owes you money, remind him to pay, but don't work any less on the case for lack of payment. In most cases, by taking payments you have chosen not to be paid your entire fee. Once the non-paying client's case is resolved, and before it becomes awkward, forgive the balance of the debt. Former clients who aren't embarrassed about calling you are worth infinitely more than former clients who are. Put up a website. It's practically free advertising, and more and more people think you're not real if you don't have a website.
 Decide now what kind of practice you want to have in a decade. Do you want to be known as a low-bid lawyer or a high-quality lawyer whom not everyone can afford? Be that kind of lawyer now. If you underbid someone else to get a case, explain to the client that you're giving him a break and how you can afford to do so (because of your low overhead). Never ever ever put a client on the record to protect yourself. Whether your client is acting contrary to your advice is none of the judge's business, none of the prosecutor's business, and none of the audience's business. If you need to make a record showing that you advised the client not to do what he's about to do, do it on paper in private. If you don't speak Spanish, learn. Form a relationship with a good bondsman. There are lots of bad bondsmen out there who'll leap at the chance to "go off" your clients' bonds, to the client's disadvantage and your consternation. Find out who they are, and avoid them. 
 Treat every case like a serious felony case. It may not seem like a big deal to you, but it's likely the most serious thing that your client has ever faced. If a client comes in and wants to pay you a nominal fee "just to get him probation", decline. Treat each case like a trial case, even if you think it's a plea case. The best plea offers generally come when you're prepared for trial, and often trial preparation reveals defenses previously unimagined. You're doing the client and yourself both a disservice when you don't get paid enough to investigate and eliminate all possible defenses before pleading. There are more than enough lawyers scrambling for the two-hundred-dollar fees. Never mislead your clients into pleading guilty. A class B or higher deferred adjudication probation remains on your client's record forever. It remains a matter of public record until sealed (if sealing is even possible). Employers and landlords will hold it against them. Tell your clients this before they plead to deferred. Avoid making predictions about what the board of pardons and paroles will do. Law school did not prepare you for this. The rules in the books have little to do with how things are really done. "Mock trial" is to trial as ballroom dancing is to gladiatorial combat. Criminal defense law involves helping people through the absolute worst times in their lives. Base every decision on what will help them most. The following is your employment contract:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Honor it.

Technorati Tags: criminal defense, young lawyers

Cops and Lawyers

Miami criminal defense lawyer Brian Tannebaum has some interesting comments about personal relationships between Cops and Criminal Defense Lawyers. When reading his post and the comments, it occurred to me that while cops who don't respect us and the system are dangerous to our factually innocent clients, the cops who are most dangerous to our factually guilty clients are the ones who respect and appreciate what we do. A cop who appreciates what we do is likely to appreciate that the end does not justify the means. Such a cop is more likely to follow the rules. Following the rules, such a cop is more likely to know the rules. Knowing and following the rules, such a cop is less likely to make the kind of mistakes that we criminal defense lawyers convert into acquittals and dismissals. A cop who resents criminal defense lawyers is more likely to cheat -- to break the rules. Cops who are more likely to cheat are more likely to arrest people for things they didn't really do, and more likely to make mistakes -- mistakes that lead to victories for the defense. (All good for business, of course, but objectionable nonetheless.) Even in the arena of trial, the cop who doesn't respect the criminal defense lawyer's job is more likely to show his bias and give the jury reasons to doubt his testimony. A jury can tell the difference between Wil Kane and Vic Mackey. All in all, I'd rather have cops who understand and appreciate the system doing the investigations (because they would be less likely to fudge or falsify the evidence) and have cops who don't understand and appreciate the system testilfying for the government (because they would be more likely to screw up and walk my clients). Am I off-track here? Do any of you defenders see the cop with the bad attitude toward lawyers as more of a challenge to face in court than the cop who appreciates the job we do?

Technorati Tags: criminal defense, police

Happy Birthday to Underdog Blog

Underdog Blog, written by Jon Katz and his partner Jay Marks of Marks & Katz in Silver Spring, Maryland is one year old today. Jon and Jay have blogged every weekday but four since April 20, 2006. That's a lot of words; Jon and Jay celebrated Underdog's birthday a day early in action by beating the government in court (again). Happy birthday, Underdog, you're an inspiration!

Technorati Tags: blawgs

DWI and Automatism

I've been glad to see the talk around the blawgosphere lately about the "sleep driving defense." The two-dollar word for this defense is "automatism." (I don't recommend using two-dollar words when talking to people, but they can add some oomph to an argument to a court.) Here are a couple of documents from a 2005 sleep-driving case that I had. First is a trial brief explaining the law to the judge; second is a requested jury charge, asking for the specific things I thought the jury should be told about the law. (Many thanks to Denton lawyer Richard Gladden, who is farther out on the cutting edge of this issue than anyone I know, and who generously shared his work with me.)

Technorati Tags: criminal defense, DWI, automatism, Texas

Arrest Them All, Let the Grand Jury Sort Them Out!

Austin criminal defense lawyer Jamie Spencer's blog post on the arrest of a counterfeiter's victim reminded me of several similar forged-instrument cases I have handled. In the most egregious one "Charles" advertised some mechanical parts for sale on eBay. The high bidder sent him a cashier's check for more than the value of the parts, and asked Charles to send the balance of the money along with the parts. The buyer was overseas, but the cashier's check was drawn on a bank local to Charles. Charles, being a fairly savvy guy, walked to cashier's check to the bank and presented it to the teller to make sure it was good. After having Charles endorse the check and put his thumbprint on it, and after copying Charles's ID, the teller asked Charles to wait a few minutes. Charles sat and waited, and about fifteen minutes later Houston Police Department officers came in and arrested him for forgery. He explained the situation to the police, who called the District Attorney's Office. The DA's office accepted charges, and the police took Charles to jail. (The moral of this part of the story: talking to the cops does not help.) In Texas it's illegal to (among other things) possess a forged instrument with a) the intent to pass it; and b) knowledge that it is forged. If I possess a forged cashier's check (or five-dollar bill) but don't know that it's forged, I'm not committing a crime. It's the government's job, if they want to charge me with a crime, to come up with evidence that I've done so. If they don't have any evidence that I knew the instrument was forged, they don't have probable cause and can't legally arrest me. In Jamie's case, Pierre's friend was arrested and then released after 10 minutes of questioning. Maybe the police or prosecutors in Travis County have better judgment than here -- in my case, Charles was arrested and booked into jail. He changed into an orange jumpsuit and ate a bologna sandwich. He spent the night in jail. (Somewhere in there a "judge" rubberstamped his detention and set bail.) He had to pay a bonding company to make bail. He faced a felony conviction. He had to hire me to help him out. He had to take time out from his work to go to court several times. He had to testify before a grand jury. All of this cost him several months of worry, and lots of money. So what should have happened? If the police had thought more investigation was needed, they should have taken down Charles's contact information and done an investigation. But very few police officers ever actually investigate anything. If the officers thought they had enough evidence (as, clearly, they thought) the assistant district attorney who answered their call should have declined charges, explaining that there was no reason to believe that Charles knew that the cashier's check was forged, and therefore no probable cause to arrest Charles. If this first prosecutor hadn't had the good sense to dismiss the case, then the prosecutor in the court (to whom I provided all of the information that eventually convinced the grand jury to dump the case) should have dismissed it as soon as she understood the facts. I guess we don't expect Houston police to make a judgment call like the one the police did in Jamie's case (we probably should), but we clearly expect prosecutors to do so. The problem, though, is one of accountability. The prosecutor who accepted the charge had no stake in it -- nobody would have held it against him had he not accepted the charge, and he was not responsible for it in the trial court. So he made a decision that screwed up a few months of a (factually and legally) innocent man's life. (Incidentally, that prosecutor now holds himself out as a criminal defense lawyer. Go figure.) The prosecutor in the court, on the other hand, would have been held accountable for the dismissal had she dismissed it herself. Prosecutors are rated in part on their statistics -- numbers of trial wins, trial losses, pleas and dismissals. A dismissal wouldn't have ended her career, but it wouldn't have helped. So it was easier for her to force the client back to court, to allow him to appear before the grand jury, and then to let the grand jury "no-bill" (find no probable cause in) the case. Of course the law provides Charles with no meaningful remedy, no opportunity to recover his losses or to make the prosecutors and the police pay. If there were some risk to a prosecutor that his poor judgment could result in personal liability, Charles and I would never have had to meet.

Technorati Tags: criminal defense, law, prosecutors, theft, Texas

Different Sorts of Justice

A civil lawyer would not -- should not -- be satisfied if his client received procedural justice but did not receive (what the lawyer considered) substantive justice. A criminal lawyer would not -- should not -- be satisfied if his client received (what anyone considered) substantive justice but did not receive procedural justice. A civil lawyer fights on behalf of a human being for what the lawyer believes is restorative justice. A criminal lawyer fights on behalf of a human being against what others hold is retributive justice. Both lawyers fight against unpeople (corporations, governments, organized religions). Both are motivated by compassion. I believe that the universe is ethically self-correcting. I subscribe to Clarence Darrow's view that we don't know diddly-squat about justice, and that we should cling to justice, understanding, and mercy. Maybe I'm wrong. Maybe some of you are competent to decide who goes to prison, who gets a needle in his arm, and who walks free. But I doubt it. Legislatures, judges, and prosecutors are no more competent to decide whether a person deserves to die or be imprisoned than you or I. Few and far between are the criminal cases in which the world would be a better place if the government had its way with the defendant.

Technorati Tags: criminal defense, philosophy, justice

Why We Do What We Do

Here's a fairly cogent explanation from non-defender Randy E. Barnett of why defense lawyers should keep fighting even for people who aren't factually innocent. The meat of it is this:

Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.

Barnett's "full and complete answer" is missing a hugely important component: punishment. Anyone found guilty (legally guilty, as opposed to factually guilty) should expect to have a lawyer fighting to minimize his punishment. I would add this to Barnett's formulation:

Because we can never be sure who deserves what punishment, the only way to protect those who don't deserve the crushing weight of the government's retribution is to effectively defend everyone.

Technorati Tags: criminal defense, philosophy, the question

Factual Guilt vs. Legal Guilt

When people talk about "defending the innocent" or "defending the guilty" they're talking about factual guilt -- did the person do what he's accused of doing? -- rather than legal innocence or guilt -- has the government proven beyond a reasonable doubt that the defendant did what he's accused of doing (and that no defenses apply)? The distinction is crucial to an understanding of how and why I do what I do. Whether they did what they're accused of or not, everybody I represent in trial is legally innocent; they remain that way unless the government can prove them guilty beyond a reasonable doubt (either in a jury trial or with a guilty plea). Whether my clients are factually innocent or factually guilty -- whether they did what they're accused of doing -- isn't directly relevant to their defense. Often in America factually innocent people are found guilty; more often (I devoutly hope) factually guilty people are not found guilty. It doesn't matter much to me whether my clients did what they're accused of; what matters most is whether the government can prove its case against them.

Technorati Tags: criminal defense, philosophy, guilt

Lawyers Doing Nothing

"Mark, I have a lawyer, and she's not doing anything for me. I need a new lawyer." Sometimes the stuff that we lawyers are doing is not immediately apparent to our clients or, for that matter, to anyone. Lots of the work to be done on a criminal case -- legal research, fact investigation, negotiation -- is subtle, and doesn't make much noise. The job that a criminal defense lawyer is doing generally can't be judged based on the amount of noise she's making doing it. A lawyer who isn't making any noise may be thinking up a way to beat a case. Usually a successful defense is a matter of knowing where to tap. Sometimes it's a matter of knowing not only where to tap, but also when. Someone once said (Thich Nhat Hanh wrote it in Being Peace; I've seen it attributed to others as well) "Don't just do something; sit there." In the defense of criminal cases, where a misstep can cost someone her freedom, "just sit there" is invariably the best course of action . . . until it is time to do something. (The art, of course, lies in knowing when it is time to sit and when it is time to do.)

Technorati Tags: choosing a lawyer, lawyers, mindfulness

Nonsexist Language

I haven't done a very good job of using nonsexist language here.

Technorati Tags: language

Today's Quote

Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.

-George Washington

Technorati Tags: government, philosophy

Ethical Fee-Setting

Legendary Houston criminal defense lawyer Percy Foreman reputedly said, "You can represent your client, or you can represent yourself." This should be every criminal defense lawyer's prime directive: help the client. When we have professional decisions to make, we should always ask ourselves: "how will it help my clients?" Some might argue that it is necessary for a lawyer to put his own interests above the client's on at least one occasion: when the lawyer is setting his fee. At that time, they would say, the client is better off paying less and the lawyer is better off receiving more. I disagree. A lawyer who gets too little money to handle a case is going to have to make up for it elsewhere -- either by taking on extra cases (which hurts all of his clients because he doesn't have enough time to spread around) or by doing without in some area of his practice or his life. Either way, representation is going to suffer. So it's in the client's interest as well as the lawyer's for the lawyer to be well-paid.

Technorati Tags: criminal defense, ethics, fees, lawyers

Extortion

A potential client called me this morning (Sunday). He had been to a strip club last night, and today a guy called him (from a caller-ID-blocked number) claiming to be from the human resources department of the club. The guy said that one of the dancers had complained that the potential client had sexually assaulted her. He wanted the potential client to meet him today at noon, or he would file charges. The potential client hadn't done anything wrong; he wanted to know what to do. Nothing good could possibly come of going to such a meeting. Either a stripper had made a complaint to HR (do strip joints really have "human resources departments?") or she had not. In either case, the caller could hit the potential client up for money. If there had actually been a complaint, the stripper making the complaint could still make a police report, or keep coming back to the potential client for more money. That's the way blackmailers work -- once they have a victim on the hook, they don't just walk away. Instead, they keep squeezing and squeezing and squeezing until there is nothing left to squeeze (after which, just for the hell of it, they generally reveal the incriminatory information their victim was trying to conceal). Also, if the potential client paid the caller money to keep him from making a police report, he would be committing the crime of witness tampering. If there had not actually been a complaint, the caller could also have kept coming back for more money -- he would have nothing to lose. (The other thing the caller could have done if the potential client had gone to the meeting is to assault or kill the potential client. I had a vision of a stripper's boyfriend thinking the potential client had gone too far, and luring him to a secluded spot at noon on a Sunday to give him a beating.) This is not the first time I've helped someone who was being blackmailed. The best course to take in such a situation is to tell the extortioner to take a hike. There is no code of ethics among blackmailers, and any payment you make to one will just encourage him.

Technorati Tags: clients, extortion

More On Lawyers Using Clients' Names in Publicity

In an earlier post I mentioned lawyers who use former clients' names in their advertising. Today I stumbled upon a post that Florida public defender Albert Clifford wrote on Ethical Blogging back in February. He wrote (in part):

I represent poor people who have no choice in their selection of me. I try to keep them happy with their decision, thus I don't think that I should ever write anything identifiable about any client without express permission. Further, because of my unique position of power, given that they really can't fire me, I wouldn't feel that anything other than an unsolicited appeal by a client for me to publicize their plight would qualify as a free and voluntary waiver of the priviledge of confidentiality I owe them about their case, including any public facts. After all, I argue about the coercive effects of government action, so how hypocritical would I be if I even suggested that my 'request' to a client for permission to write about their case would elicit a truly voluntary, intelligent, and uncoerced decision for such permission? Just my two cents.

I like Albert's position, and I think it's the right approach for private lawyers as well. I would take it a step further: even if a client makes an unsolicited appeal for the lawyer to publicize the client's case, the lawyer (who knows, better than the client, the detriment that a mere unproven accusation of criminal wrongdoing can cause) should generally refuse.

Technorati Tags: advertising, criminal defense, clients

More on TBI

If a person's personality has changed because of a brain injury, is he still the same person? In representing Vietnam and Gulf War veterans in criminal court, it's been my observation that those most in favor of the current war are hardest on our veterans. Does anyone doubt that those who see all criminal conduct as the result of "choices" will punish the veteran for the "choices" he made as a result of his brain injury?

Technorati Tags: veterans, TBI

Letter Lawyers

Exhibit 2 to the Motion for Summary Judgment in Pham v. Jones is a lawyer's solicitation letter to potential clients. He quotes a price range of $100-$300 for most misdemeanor cases, and $500-750 for most felony cases. The lawyer mentions "trial by jury" in the cover letter and twice in the brochure he includes with the letter: once in a list of "alternatives" rather than going to jail and once under "How I Handle All Cases:" "7) JURY TRIAL - I will represent you in court to the best of my abilities with candor and determination." We know from the Findings of Fact and Conclusions of Law in Pham v. Jones that one such lawyer charges the maximum fee ($300 for a misdemeanor, $750 for a felony) when a case is reset more than once. This arrangement motivates his clients to plead guilty at the second court appearance (to avoid paying the maximum fee). Nobody is going to get in the habit of trying misdemeanor cases for $300 or felony cases for $750. A lawyer taking 15 new cases a week doesn't have time to interview witnesses, research the facts of any case, and do the other things necessary to prepare for trial. Are the letter and brochure deceptive? If they're not, they skate awfully close to the edge. There will always be low-bid lawyers. Their target demographic is people who have (or whose families have) the money to bail them out, but don't have the money to hire a lawyer who will spend any time working on the case. The letter lawyers would probably say, "We're providing representation to people who don't qualify for appointed lawyers but couldn't afford counsel otherwise." They would be correct; this is a flaw in the system. People who are unable to make bail get court-appointed lawyers. They often do not get good representation, but they often do, so at least they have some chance. People who have lots of money have lots of lawyers to choose from. If they pick right, they get good representation. People who make bail and only have a little money left for a lawyer are stuck with low-bid representation -- this is the flaw. Low-bid representation is not good representation. Judges pressure people who make bail to hire a lawyer, and then define "lawyer" as "any living thing with a law license." (What's "good representation"? It's representation that is up to the standard of care of the criminal defense community. A practice of pleading cases on the second court setting is not up to that standard of care. Prosecutors know what the letter lawyers do, and what they charge; even in the cases that shouldn't be tried, the letter lawyers' clients are not going to get the same plea offers as those who have paid an appropriate fee to a lawyer who will investigate, research, and try their cases.) Here are a few ideas for solving this problem: First, the vast majority of people have to pay too much money to get out on bail. Most people accused of crimes have virtually no risk of flight or danger to the community when they're released; these people should be released on PR bonds instead of having to pay bondsmen to get out of jail. Second, the judges should relax the standards for appointing counsel so that more of the people who get out on bail can have appointed counsel (whose competence the judges can control) instead of low-bid lawyers (whose competence the judges can't easily control). Third, we lawyers should educate the public about the difference between a $750 lawyer and a $7,500 lawyer. If the folks getting these letters from letter lawyers knew what it took to actually defend a criminal case, many of them would find a way to come up with the money to hire a proper lawyer. Another thing that experienced criminal defense lawyers can do is to cultivate young criminal defense lawyers. A competent young defender, with less overhead, trying to build a practice, can take cases for less money than more-experienced lawyers would charge, and can dedicate the time and energy that each case requires. (Contrast the low-bid lawyer who is taking 15 new cases a week -- if the average case lasts only two months he has 120 cases on his docket at any time, and can spend an average of 30 minutes on each case during a 60-hour work week.) When a potential client calls and doesn't have them funds to hire me, I will steer him toward one of several young lawyers I know who can compensate for inexperience with enthusiasm and dedication. These lawyers charge less than me, but more than the letter lawyers. Nobody is going to get good representation for $750.

Technorati Tags: advertising, criminal defense, ethics, fees

Voir Dire Question

Voir dire is the process of selecting (or, more accurately, deselecting) a jury. When I begin a voir dire, I don't have a plan; I know what topics I want to discuss, but I don't know how I'm going to discuss them. At some point, I usually like to ask a question that everyone has to answer. I like it to require some thought and reveal something about my potential jurors. I've been experimenting with "scaled" questions -- questions that have a defined range of answers -- rather than either "yes or no" questions or open-ended questions. How's this for a question for potential jurors in a criminal case?: Do you strongly agree, somewhat agree, somewhat disagree, or strongly disagree with the following statement?:

"I am who I am because of circumstances beyond my control."

Technorati Tags: criminal defense, philosophy, voir dire

Lawyers Who Don't Care

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

Technorati Tags: advertising, criminal defense, lawyers

More on State's Rights

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

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

Traumatic Brain Injury

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

Technorati Tags: criminal defense, TBI

A Very Good Day

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

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

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

Technorati Tags: criminal defense, lawyers

Another Poem

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

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

A Poem

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

Inside the prison There is a prison Inside the person.

Technorati Tags: poetry

Trial Technologies Reading List 1

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

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

A Pirate's Life for Me

H.L. Mencken wrote:

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

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

Technorati Tags: criminal defense, jury trial

Imprisonment for Debt

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

Technorati Tags: punishment, Texas

Tainting the Jury Pool II

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

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

Technorati Tags: jury trial, legislation, Texas

Tainting the Jury Pool

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

Technorati Tags: jury trial, legislation, Texas

Altered States in the Courtroom

Three examples of altered states of consciousness in the courtroom:

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

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

Legalize Methamphetamine

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

Technorati Tags: philosophy, legalization, war on drugs

Order of Argument

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

Technorati Tags: criminal, motions, Texas, trial

State's Rights

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

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

Verse of the Day

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

Technorati Tags: criminal defense, philosophy, Tao

A Too-Common Ethical Violation

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

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

Two Kinds of People

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

Technorati Tags: philosophy, imagination

Who Should Go to Prison?

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

Technorati Tags: criminal defense, philosophy, prison

Intellectual Property?

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

Technorati Tags: criminal defense, lawyers, philosophy