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.

A Little Respect . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copies

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

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

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

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

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

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

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

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

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

The Fourteenth Amendment Right to Sex Toys

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

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

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

National Politics

Other blawgs aspire to be apolitical.

Not Defending People.

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

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

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

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

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

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

Amen.

Happy Anniversary Friends

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

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

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

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

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

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

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

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

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

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

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

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

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

"Just" a DWI Jury Trial?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Me and Buford on the Teevee

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

Picked a Jury Today

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

Unusual jury demographics for Harris County:

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

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

Chron is Clueless Again

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

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

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

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

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

More Public Information from HCSO

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

Here are the 24 pages of email they sent me.

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

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

Make of that what you will.

Take Two Aspirin But . . .

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

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

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

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

Let the Government Clean Up its own Mess

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who's left?

Jury Trial Today

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

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

No More Contact With KHOU

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

Please pass word to your friends.

Don't Encourage KHOU

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

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

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

In response, he got this:

Thanks for your e-mail.

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

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

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

Thanks again for your comments.

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

TJ AULDS KHOU.com News Producer

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

Dear Mr./Ms Aulds,

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

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

Clark Bennett

An unexpected quick response from TJ AULDS:

Mr. Bennett,

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

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

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

TJ AULDS KHOU.com News Producer

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

Dear Mr. Bennett,

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

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

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

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

Sincerely, Lisa Shumate

Lisa Trapani Shumate

Director of Marketing

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

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

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

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

Todd, Pat and Me on the TeeVee

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

Ceci n'est pas une subpoena.

Texas lawyers:

One of these (pdf):

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

Why or why not?

Extra credit for persuasive incorrect answers.

Double credit for correct answers in verse.

My Six Words

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

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

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

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

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

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

Here's my six-word memoir:

I never was very fond of rules.

What's yours?

See the Republican DA Candidates! Live! All Nude!

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

It's Tuesday, and Pat Lykos is Still Lame

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

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

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

rec

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

AHCL writes:

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

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

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

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

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

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

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

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

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

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

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

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

Second, consider the possible aims of punishment:

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

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

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

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