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A recent Gallup poll names the Houston, Sugar Land, and Baytown region among the least safe U.S. metro areas, according to resident confidence in the safety of where they live.

Only 63 percent of those polled in the Houston area responded that they felt safe walking alone at night in the area they reside.

* * * * *

Compare that to the 80 percent in the Minneapolis-St. Paul area who feel totally secure walking after dark. Texans might scoff that with frigid Minnesota temperatures, criminals would be stymied to commit violent acts in five layers of clothing. Houston must have crime-friendly weather, for the most part.

(Houston Chronicle.)

Maybe. Or Minneapolitans might more realistically scoff that Houstonians are more frightened than their crime rate merits.

The headline on the Chronicle article is Poll of residents puts Houston on list of least-safe U.S. cities. “Most-frightened” would have been more accurate: there is no strong correlation between violent-crime rates and residents’ fear.

According to FBI Uniform Crime Reporting Statistics for 2010*, Houston’s violent-crime rate (as reported by HPD) edges Minneapolis’s (as reported by MPD) only narrowly: 1071.3 violent crimes per 100,000, compared to 1062.3 for Minneapolis. (So much for the “too cold in Minnesota to jack people” theory.)

Jacksonville residents are as scared as Houston residents, with a violent-crime rate one-third lower (664.4).

Residents of San Bernardino, with a violent-crime rate of 773, are more frightened (61% “yes, safe”) than either Houstonians or Jacksonville residents (63%).

New Orleans has an even lower violent-crime rate (754.4) and more frightened (59%) residents.

Memphis residents’ fear is more in line with their danger. In line, but not necessarily proportional. Whereas out of 100,000 Memphis residents 1,607.8 will be victims of violent crime in a given year, fifty times as many don’t feel safe walking alone at night.***

“Math is hard” is my shorthand for Americans’ tendency to treat fear as risk, and this Chronicle article typifies the problem. Houston is one of America’s least safe cities (in the top third of the biggest 50, albeit safer than Tulsa, Nashville, or Indy, among others); there are solid statistics to put it there. A Gallup poll showing that Texans aren’t as brave as they like to pretend doesn’t show that Houston is unsafe; it shows that they’re unbrave.

*UCR stats are by police department rather than by metropolitan area. I’m using the major city in the area as a proxy for the entire area. Crime rates are generally lower in the suburbs, so metropolitan-area crime rates are generally lower than city-only crime rates. The image is of the fifty largest cities, sorted by violent crime rate.

**Neither Detroit nor Chicago residents appear to have been included in the survey.

***The fear of victimization is partly self-fulfilling. The more people are afraid to be outside at night, the fewer people are outside at night and the greater the likelihood that any of them will be victims of violent crime.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (69.89.31.238) .)

When I got a copy of Mark Geragos and Pat Harris’s Mistrial: An Inside Look at How the Criminal Justice System Works … and Sometimes Doesn’t in the mail, I was primed to be either outraged or bored.

I’ve expressed my view of L.A. legal culture and lawyers who rep celebrities qua celebrities before and clients who hire lawyers who rep celebrities, and I was prepared to be bored, when reading Mistrial, by Mark Geragos and Pat Harris, by a self-adulatory story book about the criminal-justice system for the TMZ set. The publisher sent me the book for free; I resolved to read at least fifty pages of it, no matter how atrociously celebrity-worshipping.

Pat Harris’s intro—in which the fomer Tennessee PD describes meeting Mark Geragos accidentally while looking for a high-profile lawyer to take his girlfriend Susan McDougal’s case for the media coverage, challenged my resolve to read at least fifty pages. A former public defender, of all people, should recognize that some of the best lawyers get the least publicity, and that “for the publicity” is a lousy reason for a lawyer to take a case (on that point, if publicity is the only currency you have, that’s the currency you spend). A former public defender, of all people, should not shy away from taking an unpopular case, as Harris later describes doing with the Scott Peterson case.

But I plugged on, and after I’d read those first fifty pages I tweeted a brief preliminary review: “doesn’t suck.” 

Geragos and Harris see the criminal-justice system through a California lens. They see a couple of things wrong (in what universe are judges “held to a very high standard by judicial commissions across the country”?); they’re narcissistically churlish two or three times (before they were removed from the defense of Michael Jackson, “[t]he case had become such a slam dunk that we doubted it would even get to trial”), but they’re right about the problems with the system, and they illustrate some of those problems well with anecdotes both from the defense of celebrities and from the defense of ordinary clients.

And mostly they’re right about the solutions. They close the book with nine meritorious suggestions for improving the American criminal-justice system, which if adopted would make the system much more fair and just (and one atrociously, hideously, ridiculously bad idea, which deserves to be mocked in a separate blog post).

And here’s a problem that this book solves: if you’re an ordinary trench lawyer and you write a blog or a book—even an eminently readable and entertaining book such as Mistrial—about the problems that slant America’s criminal-justice system unfairly against the accused, then most of your readers are going to be people such as me (and Greenfield, and Lat, and probably you) who already recognize that there are problems that bias America’s criminal-justice system unfairly against the accused. Most Americans, who have been sold by the Angry Blond White Women on the idea that the system gives guilty! guilty! guilty people too many breaks, are going to pass over your book—they’re too busy watching Nancy Grace, and if they’re reading anything law related, it’s The Complete Idiot’s Guide to the Criminal Justice System. This is a function of confirmation bias: most people, having concluded that the world is a certain way, will seek out evidence to confirm their conclusion and actively avoid evidence that might refute it.

So if a little bit of name-dropping by Geragos and Harris will get a few of those folks whose view of the criminal-justice system is informed by the talking heads on TV to read it—if they’ll come for the celebrities and stay for the diagnosis and the prescription—if the book itself helps cure one of the diseases it diagnoses—then godspeed to Geragos and Harris.

Can you think of someone who doesn’t already know that the system is screwed, but who might be open to the idea? Tell me about them in the comments; I’ll send my copy of the book (I resisted the strong temptation to annotate it) to the most worthy recipient.

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One of the few great virtues of American criminal justice is that it is committed in the light of day. Courts are open to the public, and generally—not always; anonymous juries are becoming more common, which ironically means that the terrorists have won—the accused gets to know who is judging him. In any case, he gets some say, through the process of jury selection, in who judges him.

He doesn’t get any say in who makes the accusation against him, but in Texas, where there is a constitutional right to be tried on a grand-jury indictment, he can at least know who the grand jurors were.

Article 19.08 of the Texas Code of Criminal Procedure lists the qualifications for a grand juror:

1.  The person must be a citizen of the state, and of the county in which the person is to serve, and be qualified under the Constitution and laws to vote in said county, provided that the person’s failure to register to vote shall not be held to disqualify the person in this instance;

2.  The person must be of sound mind and good moral character;

3.  The person must be able to read and write;

4.  The person must not have been convicted of misdemeanor theft or a felony;

5.  The person must not be under indictment or other legal accusation for misdemeanor theft or a felony;

6.  The person must not be related within the third degree of consanguinity or second degree of affinity, as determined under Chapter 573, Government Code, to any person selected to serve or serving on the same grand jury;

7.  The person must not have served as grand juror or jury commissioner in the year before the date on which the term of court for which the person has been selected as grand juror begins;

8.  The person must not be a complainant in any matter to be heard by the grand jury during the term of court for which the person has been selected as a grand juror.

Only by knowing who the grand jurors are can the accused know that they have overcome these low hurdles. Fortunately, under Texas Code of Criminal Procedure Article 19.42 grand jurors’ names are a matter of public record: 

Art. 19.42. PERSONAL INFORMATION ABOUT GRAND JURORS. 

(a) Except as provided by Subsection (b), information collected by the court, court personnel, or prosecuting attorney during the grand jury selection process about a person who serves as a grand juror, including the person’s home address, home telephone number, social security number, driver’s license number, and other personal information, is confidential and may not be disclosed by the court, court personnel, or prosecuting attorney.

A bloated senator from Wichita Falls, Craig Estes, would change that, amending Article 19.42 to make the names of grand jurors secret, revealable only on a showing of good cause. Estes’s bill has passed the Senate, and is up for hearing on Monday in the House.

Estes styles himself a “conservative”; I don’t think that word means what he thinks it means: there is nothing conservative about turning grand juries into star chambers. 

Aside from the effect on the accused’s ability to ensure that he has been indicted by a lawfully composed grand jury, there’s the little matter of the public’s right to know what its government is doing. If Estes has his way and grand jurors are allowed to go to work disguised with hoods (quick: in your mind, are those hoods black or white?) stories like this one will never come to light.

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Read Scott Greenfield’s closing keynote address for Lawyernomics this week in Las Vegas. There’s a race to the bottom in lawyer online marketing—“ultra-competitive business landscape,”* as Lawyernomics huckster Avvo would have it—Lawyernomics is there to psych lawyers up for that race—using Yelp! Twitter! Google! Virgin America!**—and Greenfield will*** exhort Lawyernomics attendees to go out there and win it:

* * * * *

Whatever sleazy thing the virtual lawyer does that angers you, frustrates you, makes you wonder why you checked the “Yes, I’m a’coming” box on the Cooley response card, don’t let it get you down. Just lace up those running shoes and be one step sleazier, one lie better, and you become the winner in the race to the bottom.

Until, of course, the virtual lawyer will then slide in beneath you. But there is always something you can do to go lower. Just don’t be like me and blush, or you will never make it in the ultra-competitive landscape of internet marketing.

Now, go out and be the best virtual lawyer you can be. Remember, you can always go lower.

Read it all.

 

 

*N.B. not “professional” but “business.”

**Wait, what?

***won’t really

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Former Williamson County prosecutor (and now Williamson County District Judge) Ken Anderson has been charged by a court of inquiry with 1) criminal contempt of court; 2) tampering with or fabricating physical evidence; and 3) tampering with governmental records for his prosecution of Michael Morton. (Findings of Fact and Conclusions of Law, PDF, OCRed.) Which is nice—prosecutors who tamper with evidence and records to convict people of crimes (most especially, but not only, a prosecutor who, like Anderson, “does not believe in the release of [exculpatory] evidence if it may result in freeing an individual that he believes is guilty”) should be prosecuted, and should have to do every day of the sentences that their misdeeds brought their victims—but to little effect.

The statute of limitations for tampering with governmental records with intent to harm another and for tampering with physical evidence, both third-degree felonies, is three years. There is no “discovery rule”—no argument that the statute of limitations begins to run when the bad acts are discovered. Anderson’s bad acts were in 1987.

I have been told that some Texas lawyers think the criminal contempt allegation is not barred by the statute of limitations. Criminal contempt is not a felony—the maximum punishment is six months in jail and a $500 fine—but six months in jail will do more to deter future Ken Andersons (I see incipient Ken Andersons in the Harris County Criminal Justice Center every year) than will nothing.

I haven’t seen the argument fleshed out yet. But I don’t see how it works. Article 12.41 of the Texas Penal Code defines as a Class B misdemeanor any offense that “is not a felony” and has jail as a possible punishment. The statute of limitations for a Class B misdemeanor is generally two years. Criminal contempt is not a felony; it has jail as a possible punishment. Unless it is not an “offense” Anderson’s alleged criminal contempt is a Class B misdemeanor with a two-year statute of limitations. There are many Texas cases in which criminal contempt is described as an offense, including several applying the Blockburger test (whether each offense requires proof of an element that the other does not) to determine whether a criminal contempt conviction barred prosecution for the same act).

Anderson wins on limitations, and I have no faith that all those voters who have fled the scary urban milieu of Austin (white flight from Austin?) to live in the Constitutional backwater of Williamson County will return him to private life based on the monstrosity that he committed twenty-five years ago.

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Everyone knows the Miranda warnings. We have heard them ten thousand times on TV.

Not everyone knows their significance—clients often ask me whether it’s significant that they were not read their rights when they were arrested. It is not; the rule of Miranda is this: A statement made by a defendant as a result of custodial interrogation is not admissible against him unless, before making the statement, he was advised of certain of his Constitutional rights. So the police only need to read you your rights when they are going to question you while you are in custody. Under Texas law the mere reading of rights has no legal significance—the reading must be documented by audio recording or acknowledged in writing by the defendant—so Texas cops don’t bother to read arrestees their rights.

In New York v. Quarles the Supreme Court created a “narrow” exception to the Miranda rule. The reasoning was that public safety trumped Miranda’s stated goal of ensuring that subjects of police interrogation knew their rights:

The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.

In a sense, any questions calling for incriminatory answers might be seen as “reasonably prompted by a concern for the public safety.” But that’s not the sense in which the Court decided Quarles:

The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

(Mr. Quarles was not thought to have an accomplice, so this is really about guns being so terrifying that the possibility of a law-abiding citizen finding one creates a sufficient danger to public safety to change the rules. Scratch that: it’s really about nibbling away at the Constitution.)

For a situation to justify unwarned interrogation, the information sought is—by definition—important independent of its admissibility. If something is going to be trumped by public safety, it should not be the procedures the police must follow if they want the information they obtain to be admissible. It should instead be the police desire that all information be admissible.

Even before Quarles, if the police wanted information that they thought they wouldn’t get from an arrestee who knew his rights, they could seek that information without advising the arrestee of his rights. Before there was a Quarles public-safety exception to Miranda, society was no worse off for the police decision to conduct an unwarned interrogation seeking inadmissible information rather than giving the warnings in hopes of garnering admissible information.

The press has talked about the government “invoking the public-safety exception,” but the exception is not some magic spell that gives the FBI forty-eight hours to talk to a heavily drugged arrestee without Mirandizing him and then use the information obtained at trial. Quarles clearly does not cover information gleaned with questions other than those “reasonably prompted by a concern for the public safety,” and while the government may want to broaden it, they cannot without the cooperation of the courts. When the Boston Police Commissioner says, “We’ve told the people of Boston we feel that they’re safe at this point in time,” that’s a good indicator that further interrogation is not prompted by the “immediate necessity” that existed in Quarles.

But where the Supreme Court makes an exception, the Supreme Court always broadens the exception. Quarles is the top of the slippery slope…the jackbooted foot in the door…the flesh-eating camel’s nose in the tent.

Others have pointed out that the police do not need to get admissible evidence through interrogation if they have enough against him already. Maybe what Tsarnaev tells the FBI won’t matter to the trial of his case. Maybe the government will have a cut-and-dried case against without using the product of his interrogation. Maybe the admissibility of the product of his interrogation will never be litigated. But “maybe” implies “maybe not,” and here I suspect not.

I expect that the admissibility of Tsarnaev unwarned statements to the government will be litigated, and I expect that the outcome of that litigation will not be convivial to our freedom. The spirit of the times, carefully cultivated by the government and the media, is one of fear, and the courts will move in rhythm with that spirit, making it easier for the government to put terrorists in boxes.

But when the government talks about “terrorists,” they’re talking about the people who they can claim are terrorists. And when they are talking about the people who they can claim are terrorists, they are talking about you and me. 

Five years from now we’ll be talking about U.S. v. Tsarnaev as another step closer to tyranny.

(See also Gideon and Greenfield on Quarles, Burney on Miranda, and Greenfield again on two-step interrogations.)

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This is from the arrest warrant affidavit in the case of Kim Williams, the wife of Eric Williams, the former justice of the peace who is suspected of murdering three people in Kaufman County, Texas:

On April 16, 2013 an interview with defendant, Kim Lene Williams was conducted at the Kaufman County Law Enforcement Center. During the interview, Kim Williams confessed to her involvement to the scheme and course of conduct in the shooting deaths of Mark Hasse, Michael McLelland and Cynthia McLelland. Kim Williams described in detail her role along with that of her husband, Eric Williams whom she reported to have shot to death Mark Hasse on January 31, 2013 and Michael and Cynthia McLelland on March 30, 2013. During the interview, the defendant gave details of both offenses which had not been made public.

Kim has a privilege not to testify against Eric. She can waive it, though, and testify about what she saw and heard, including communications made to enable him to commit a crime.

But if her claim that he shot the three to death is based on his telling her about it after it was done, he has a privilege to keep her from testifying about that. She cannot waive that privilege.

So:

He loaded his gun and drove toward the McLellands’ house she can testify to, but doesn’t have to.

He told me, “Honey, this is what I need you to do…” she can testify to, but doesn’t have to.

He told me, “Honey, this is what I did…” she can’t testify to if he says no.

I don’t think the “Furtherance of crime or fraud” exception to the spousal-communication privilege has been widely litigated, but I foresee it getting a thorough workout here.

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

This is from the arrest warrant affidavit in the case of Kim Williams, the wife of Eric Williams, the former justice of the peace who is suspected of murdering three people in Kaufman County, Texas:

On April 16, 2013 an interview with defendant, Kim Lene Williams was conducted at the Kaufman County Law Enforcement Center. During the interview, Kim Williams confessed to her involvement to the scheme and course of conduct in the shooting deaths of Mark Hasse, Michael McLelland and Cynthia McLelland. Kim Williams described in detail her role along with that of her husband, Eric Williams whom she reported to have shot to death Mark Hasse on January 31, 2013 and Michael and Cynthia McLelland on March 30, 2013. During the interview, the defendant gave details of both offenses which had not been made public.

Kim has a privilege not to testify against Eric. She can waive it, though, and testify about what she saw and heard, including communications made to enable him to commit a crime.

But if her claim that he shot the three to death is based on his telling her about it after it was done, he has a privilege to keep her from testifying about that. She cannot waive that privilege.

So:

He loaded his gun and drove toward the McLellands’ house she can testify to, but doesn’t have to.

He told me, “Honey, this is what I need you to do…” she can testify to, but doesn’t have to.

He told me, “Honey, this is what I did…” she can’t testify to if he says no.

I don’t think the “Furtherance of crime or fraud” exception to the spousal-communication privilege has been widely litigated, but I foresee it getting a thorough workout here.

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

I heard Thane Rosenbaum on NPR yesterday, and was instantly struck by how juvenile this law professor’s understanding of justice and human nature is. (Greenfield wrote last week about Rosenbaum’s Chronicle of Higher Education piece.)

Rosenbaum’s stated premise is that justice equals revenge: “A call for justice is always a cry for revenge.” This is transparently false. There are many different notions of justice, and often when an injured person calls for justice he seeks restoration rather than retribution.

Rosenbaum asks, “Now, in cases where we have the worst of the worst, where there’s no question of someone’s guilt—heinous murders—why is it that we’re so ambivalent about actually providing just desert?” One answer, obvious to anyone who has ever shook hands with the criminal justice system, with ethics, or with Philosophy 101, is that the result of our actions is not necessarily an accurate measure of what we deserve.

In the CHE piece Rosenbaum writes, “America is no less civilized or law-abiding because bin Laden was assassinated.” This is at best arguable. I get the impression from listening to and reading Rosenbaum that he is trying to make his personal impulses the norm. But society serves to moderate, rather than amplify, personal impulses.

On further reflection, I can’t believe that a law professor is really so much of a simpleton. It’s not that Rosenbaum has a juvenile understanding of justice and human nature. I think it’s that he’s trolling us.

There is an interesting discussion to be had of the proper role of retribution in the American criminal justice system: retribution is a natural impulse; why should it yield to our moral intuition that punishment should be proportional to responsibility? Why should society strive to be “better” than its members, where being “better” means not satisfying members’ undeniable retributive impulse?

Unfortunately for that discussion, Rosenbaum overstates his case to the point of triviality to get attention (you’re welcome) and to sell books.

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Quoth Papa Greenfield:

Shortly after an instructor first arrives at Cardozo’s Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students’ performance. It’s been the same speech for years: First, tell them something they did well. Give them praise. Then, when you tell them what they didn’t do so well, be gentle and constructive. End up on a positive note.

This is the new rule of teaching.…

This is not the new rule of teaching; it is an old rule of management. I remember hearing it from my dad some thirty years ago: when  you are giving a correction to someone you’re supervising, sandwich the negative between positives. 

It is a broadly accepted social convention. The question is, is it an obstacle or an aid to teaching?

Greenfield seems to think it’s an obstacle:

The directions to say something positive first, offer “constructive” criticism (and I use [doubt] quotes because construction is in the eyes of the student) and close on a positive note, creates what the study aptly describes as a Praise Sandwich, designed to make the student feel good at the expense of teaching the student to do better.

I am unconvinced.

Teaching and trial lawyering have a lot in common. In trial, we tell our client’s story the way we tell it not because of some idea of the “correct” way to tell a story, nor to convince some idealized jurors, but because we think that the way we tell the story will be the most effective way to get the actual jury to agree with us.

Scott, who would never try a case as though to idealized jurors, wants to teach as though to idealized law students:

While one might hope, even expect, law students to be both tough enough and interested enough to be capable of handling more serious instruction, including the occasional harsh recognition that they are totally off the mark, the evidence is otherwise. They can be just as fragile, entitled and narcissistic as any kindergartner.  Should they end up before a judge or jury one day holding another person’s life in their hands, their praise sandwich isn’t going to do them much good. But as long as they feel they were fabulous, that’s what really matters.

Yes, law students can be just as fragile, entitled, and narcissistic as any kindergartener. So, for that matter, can criminal-defense lawyers, even very successful ones. But just as the trial lawyer’s job is to convince real jurors, the trial advocacy instructor’s job is to convince real students. The Sandwich Theory has become social convention because it works. It works because most human beings—not just law students—are fragile; by sandwiching constructive criticism between slices of praise, the teacher sends the message that the criticism is not personal.

And yes, criminal-defense lawyers should be tougher than that. But the Sandwich Theory is a teaching tool—perhaps an effective one—and if you want to teach people you’ll use whatever tools come to hand.

There’s an ongoing philosophical debate among those of us (we happy few) who think about such things: whether, when a lawyer’s request for help reveals that he is out of his league, it is better to provide him with the help he asks for (enabling his continued blundering, but helping his current client) or to decline to help (not helping his current client, but not encouraging the lawyer to continue punching above his weight). Should we help the accused at the cost of nurturing incompetence, or make incompetent practice difficult at the cost of the accused?

At some point those who aren’t cut out for this job need to figure it out. Those who can’t stand being told that they are wrong, wrong, wrong should find their way into other ventures (like prosecution, or bonsai gardening). This is likely to happen eventually, though clients may be hurt in the interim.

But law school is not the place for this cull to be made, and where the Sandwich Theory is the advocacy program’s rule, it is not the instructor’s role to weed out those students who aren’t going to make it.

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Last week I was in trial (my first bench trial in federal court; we came in second).

I was also excited to be scheduled to speak to Professor Ray Moses’s “Opening and Closing” class at South Texas College of Law. I’ve spoken to the class the last couple of years, and it has always been stimulating and fun. I’d had it on my calendar for two months.

As Thursday evening approached, I was at the office figuring out what to talk about and how, when I received an email from Professor Moses: My students are sorry you missed the class last night. Have a nice life.

I screwed up. There’s no excuse. I hope Professor Moses’s students—who are assigned this blog as part of their required reading—will forgive me. 

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In a recent discussion amongst criminal-defense lawyers about the murder of the Kaufman County District Attorney, and whether we would represent the person charged with the murder (assuming that anyone ever is—my bet is that the murderers will never get caught, though a patsy may be), one of the brethren predicted that whoever took the case would have her phones tapped; her medical records searched; and whatever else the Texas Rangers could think of done to her, including drugs being planted in her car. His point was that a lawyer should not take this case because it might be the lawyer’s last case.

I was dumbfounded. Still am. I don’t think his predictions are remotely near the truth, but even if they are that should not be sufficient to scare a criminal-defense lawyer off a case.

You don’t become a criminal-defense lawyer to be loved by society, or to please the government.

You do it expecting…no, perversely hoping to make powerful enemies.

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

There were probably criminal-defense lawyers before me who marketed themselves as never having been prosecutors—who made a virtue, in the minds of potential clients, of a lawyer never having put people in prison. It’s marketing with the truth—helping the public understand that “former prosecutor” does not mean “good defense lawyer.”

Recently a potential client and I talked about how the other lawyers he was considering were trying to sell themselves to him. They were bidding against each other, and then calling him out of the blue to cut their fees, reducing their fees below what I thought it would cost to do a half-decent investigation of the case. I pointed out to them that the beginning of the month, when bills are due, is a great time to shop for a criminal-defense lawyer because those who don’t manage their affairs well will cut their fees to get the cash flow in. He felt turned off by their efforts to sell him, especially with the price cuts (which seemed desperate to him).

Nothing succeeds like success. Conversely, nothing fails like desperation. A criminal-defense lawyer’s attitude, when confronted with a potential new client, should be, “I am interested in your case, and I would like to help you. I have no idea what kind of results we will get, but I will do everything I can to beat your case. Here’s what it’s going to cost you, and if you can’t afford me, then please excuse me because I have clients who need my attention.” 

The potential client (in the end he couldn’t afford me) was interested in another lawyer’s claim of friendship with the prosecutor on his case. “Does that help?” He wanted to believe. I revealed to him The Truth About Relationships, and his eyes grew wide with understanding.

Here is The Truth About Relationships. May it spread even farther and wider than the Truth About Former Prosecutors:

When a person hires a lawyer because of the lawyer’s relationship with the prosecutor, he assumes that the prosecutor will cut the person a break for the sake of that relationship. Cutting the client a break for the sake of the relationship with the lawyer would be selling out the client (the State); that could happen.

But it’s at least as likely that the defense lawyer will sell out her client for the sake of the relationship with the prosecutor as that the prosecutor will sell out his client for the sake of the relationship with the defense lawyer. The prosecutor has represented his client for years; the defense lawyer has represented hers for weeks.

By offering her relationship with the prosecutor as a selling point to the potential client, the defense lawyer has said that lawyers sell out their clients for friendship, and that she is friends with someone who would do so. Since birds of a feather flock together, the client can safely assume that the defense lawyer also would sell out a client for the sake of the same friendship.

Your potential lawyer has a 20-year friendship with the prosecutor. She has, so far, a thirty-minute relationship with you. If she has to choose between those two relationships, which will she choose?

Better by far to hire the lawyer for whom—and for whose friends on the other side—compromising the client’s interests for the sake of friendship is not an option.

No?

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

After reviewing your website, I really thought you were the real deal. I didn’t ask for your opinion earlier Mark.

[Link to article about rich guy’s 1990s bankruptcy.]

Maybe if my dad had managed his risk more intelligently, I wouldn’t have to steal.

I can’t believe you refused to advise me. All I wanted to know is if you’ve seen or worked in any related cases and your opinion. Instead you said “You shouldn’t be stealing”.

That’s to bad. With risk I take I could have become a big-time client of yours which after speaking with you I am sure, you have none.

The best of luck to you.

None of it is privileged—he’s not seeking representation—but I chose not to publish the information that might identify this narcissistic jackass because his life is difficult enough already, what with his having to steal because his rich daddy went bankrupt when he was six, and my not helping him “manage his risk,” and all.

Where do people get the idea that “the real deal” criminal-defense lawyer would advise crooks on how to get away with their crimes? Aside from being unethical and illegal, it’d be bad for business.

I’ll be watching to see who winds up representing him, and harboring private doubts about that lawyer.

(Soundtrack: Dan Cohen, Rabbit’s Foot (“…livin’ on luck like a small-time crook.”))

Rabbit’s Foot

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

Unemployed Kid Lawyer writes to small-firm-owning Young Lawyer (obviously not me) after four on a Friday afternoon:

I am a recent cum laude graduate of [third-tier law school], and write to express my interest in potentially joining your firm. A colleague of yours, [Some Friend], whom I met at a networking event, recommended that I contact you about a possible position. Please see my attached résumé, writing sample, transcript, and list of references. If you have any questions or would like additional information, please do not hesitate to contact me. I look forward to hearing from you should you decide to contact me about a potential opportunity.

Thank you for your time and consideration.

YL’s response, an hour later (after five on Friday, now):

Do you want to come in Monday afternoon to chat?

What we are looking for is someone who is considering starting a solo practice but doesn’t have the capital to get an office, supplies, malpractice insurance, etc. I have a lot of overflow right now, but given that we just opened our doors last year, I can’t pay someone $85k a year, salary, and benefits. Maybe soon, but not right now. 

On the upside, we have a nice office, conference space, etc. 

KL says he wants “opportunity”; that is the essence of opportunity:

• Not a guarantee but a chance.
• Someone covering the overhead while you figure out what you’re doing.
• Two smart, hardworking young lawyers who aren’t yet grumpy, jaded, and cynical, and whose doors are open to you.
• More experienced lawyers’ table scraps.

KL didn’t feel that way. His reply, three days later:

Sorry for the delayed response.

I really appreciate your getting back to me and offering to meet with me. Unfortunately, I don’t think this would be the best fit. I just don’t really have an interest in a solo practice. But all the best to you and your new firm.

That made my jaw drop. Scott Greenfield keeps telling me about the entitlement of the slackoisie, but I didn’t believe it—the young lawyers I deal with regularly show no character defects (though I may unconsciously select for initiative; nobody without gumption is likely to spend more than a minute on the phone with me)—until now.

Some people—such as KL?—see self-employment as a last resort, preferable only to unemployment. Those people should by no means be self-employed, but they are increasingly unemployable because employment requires initiative. Being paid $85K a year to learn your craft is not “opportunity.” It’s the gravy train. Maybe KL will find that ride on the gravy train that he is looking for. But such rides are few and far between nowadays, and a lawyer with no interest in working for himself isn’t going to be much good to anyone else for anything but contract document review (not that there’s anything wrong with that—there are documents taht need reviewing).

On the other hand, some people see every other option as a stepping stone to self-employment. Lawyers like that will see that what KL offers—an office, mentoring, and overflow—is worth more than money.

If you are in the Mid-Atlantic states, and interested in such an opportunity, email me and I’ll connect you with YL.

(And if you’re in Houston, and interested in such an opportunity, email me. I had given some thought to creating an incubator for criminal-defense lawyers here, but if KL is representative of the new generation of lawyers it’ll never work.)

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

I’m documenting this here in case someone else has the same problem. Today I wrote a ten-page response to a government motion, and when I saved it (from MS Word 2011) to PDF format it was over 5 megabytes—too big to be filed via ECF. Poking around The Google, I found a suggestion that I save it first as a Postscript file, then open that with Preview.

After trying that, and other things in the same vein, I found a better solution: save the file as a .doc file (Word ’97–2004 format), then save that as a PDF, all within MS Word. Here’s how a smaller document sizes out:

The document (three and a half pages) saved in .DOC format takes up 37 kilobytes; the PDF of that document is even smaller, at 27 KB.

Save it as a .DOCX instead, and it bloats to 118 KB. Save that to PDF and three and a half pages of text take up a staggering 494 KB—more than eighteen times as big as it needs to be.

Astounding. What the hell is wrong with Microsoft?

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

It’s good enough for Rand Paul:

White House Press Secretary Jay Carney quoted from the letter that Holder sent to Paul today. “Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on an American soil?” Holder wrote, per Carney. “The answer is no.”

Paul said that was good enough for him. “I’m quite happy with the answer,” he said during a CNN interview. “I’m disappointed it took a month and a half and a root canal to get it, but we did get the answer.”

Carney added that, “if the United States were under attack, there were an imminent threat,” the president has the authority to protect the country from that assault.

(WashingtonExaminer.com)

But it is not good enough.

Carney invokes “imminent threats.” What does that mean? This administration has already sought and received lawyerly advice (in the Murder Rationalization Paper) that “the threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate.”

If a broader concept of imminence, why not a broader concept of “engaged in combat”? After all, according to the Murder Rationalization Paper “a terrorist ‘war’…is a drawn out, patient, sporadic pattern of attacks.” Who’s to say that the cappuccino-sipping dissident blogging against the state from a café in Seattle is not “engaged in [drawn out, patient, sporadic] combat”? 

The lawyerly Murder Rationalization Paper has an answer to that “who’s to say” question: “an informed, high-level official of the U.S. Government.”

I enjoyed watching the filibuster, but I am disappointed in Rand Paul. At the end of the day, his thirteen hours on his feet were nothing more than entertainment. He got a non-answer to his question, and then declared victory: “In response, Paul said Thursday that ‘we’re proud to announce that the president is not going to kill unarmed Americans on American soil.’” (Fox News.)

That’s not what they said. Not at all. The administration still takes the position it took in the Murder Rationalization Paper: that it may kill you if an informed high-level official determines that you are an imminent threat. They do not disclaim the legal authority to do this to anyone anyone—including a U.S. Citizen—anywhere—including in the US—without due process. If the president wants you dead, you are dead.

Where the administration’s lawyers make up new meanings for words to justify tomorrow what yesterday was a murder, it’s hard to imagine an answer should have satisfied Paul. But this is not it.

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

Letter from Bobby Mims of Tyler, President of the Texas Criminal-Defense Lawyers Association, to the sponsor of Texas Senate Bill 91 and his Chief of Staff:

Senator Rodney Ellis & Mr. Brandon Dudley:

I appreciate the time that you and Sen. Ellis invested in today’s analysis of the SB91. We the members of the Texas Criminal Defense Lawyers Association understand and appreciate Senator Ellis’ dedication to the cause of justice in Texas. Senator Ellis has an unblemished record standing on behalf of the citizen accused for over 20 years. Senator Ellis is one of the Texas patriots for justice in Texas for Texans. The 3200 members of criminal defense lawyers are unwavering in the defense of the Constitution and to the protection of due process and will not be compromised for the sake of political expediency.

I am directed by the Board of Directors of the Texas Criminal Defense Lawyers Association to advise that any form of reciprocal discovery in criminal cases is unacceptable to the 3200 members of the Texas Criminal Defense Lawyers Association and to most of the criminal defense trial lawyers of Texas. By participating in a meeting of 12 independent individuals to “mark up” a proposed bill should not be interpreted in any way to endorse this measure in any form by TCDLA.

Any legislation that requires the defendant to produce any evidence or disclose anything in the defense lawyer’s file is an anathema to justice and to a free and independent people.

You personally and in your role as a State Senator have been a bulwark against an overbearing state in protection of the most vulnerable in our society for many years. You, Senator Ellis, have stood for right vs. wrong and your reputation is stainless and your constituents depend and count upon you for justice.

Recently, there has been a movement to “compromise” by certain interests groups purporting to speak for the criminal defense bar and for the accused by individuals who have an interest that is obtained by interests outside of the State of Texas. The Texas Defender Service seeks, for some reason, a reciprocal discovery bill to be passed by the legislature. They do not speak for TCDLA nor for any other criminal defense group other than themselves.

I can assure you that the 3200 members through the TCDLA will vigorously oppose any such legislation and assure you that the Texas Defenders Service and their spokeswoman does not speak for the TCDLA nor any significant number of actual defenders of citizens. Indeed, they are supposed to be an resource group to assist capital defense counsel in capital murder cases. They are very good at this assistance but they rarely to trial level representation of capital cases. Their advice on capital murder defense is valuable as a resource. However, it is the criminal defense trial lawyers who have the difficult mission of defending the citizen accused in Texas courtrooms. The proposed discovery bill promoted by the TDS will make this important mission even more difficult. However, the purpose of the justice system is to convict the guilty and acquit the innocent. The prospects of wrongful convictions will be increased under this bill rather than lessened.

I am requesting that you consider and vigorously oppose any measure that would mandate any rule or law or regulation that would invade the file or province of the counsel for the defendant in a criminal case. After all we must stand for something and this is the “something”!

I can assure you that if a reciprocal discovery statute is adopted by the State of Texas legislature that the members of the TCDLA will do everything possible to comply until it invades the province of counsel, the constitutional rights of a defendant and the right to present a defense…and frankly this is all unnecessary merely to merely assuage the need of a certain interest group to justify their existence to an outside contributor of a grant to “clean up Texas.”

I can expand on the purported issue that this legislation seeks to address at your convenience…suffice it to say that this seeks to cure an ill and impose on prosecutors a remedy for something that the prosecutors of Texas are curing themselves without the intervention of the legislature…

Thank you very much for your service to Texas and to justice.

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

My guy was taking a five-year prison sentence, and had arranged for a few weeks to get his affairs in order. The deal was that if he didn’t show up on the appointed day the judge could consider the full (five-to-life) range of punishment.

He showed up late.

The judge gave him six years.

Me: Judge, is being five minutes late really worth a year in prison?

Judge: He was fifteen minutes late.

Me: Okay. Judge, is being fifteen minutes late really worth a year in prison?

Judge: Yes. On sentencing day it is.

No. No, it really isn’t. Sentencing this guy to six years, taking away a year of his life for such a minor infraction, was mean of the judge: shabby, ungenerous, and vicious.

Could the judge legally do it? Probably. It was a violation of our deal, but there wasn’t a whole lot that I could see to do about it, other than keep my cool, hope for the judge to relent, and start planning my 2014 primary campaign for this bench.

It didn’t take long. Within minutes my office paged me: the judge wanted me back in court; she had changed her mind and reduced the sentence to the agreed-upon five years.

When I got back to court, the judge was not on the bench.

The best interpretation of the judge’s actions is that she found in herself an appropriate sense of shame, realized that she had been wrong, and promptly fixed it. While there was no apology forthcoming, I choose to believe that is what happened.

The alternative is this: that she intended all along to sentence my client to a nickel, but used him, his wife, and his family to teach the other defendants in the audience a lesson about timeliness. If so, then instead of a moment of ill-considered meanness the judge is guilty of deliberate cruelty. That is not impossible; I just choose not to believe it.

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

Rob Kepple giving a pep talk, under the guise of “ethics,” to the Harris County DA’s Office:

Now let’s go back to my original analogy because I really want to wrap this up and bring it around, because I really do think that it shows the difference between what we do every day as a prosecutor and what everybody else does and what everybody else thinks, and that’s kind of what makes you all so special. Prosecutor exceptionalism really does mean something to me, and it is different and it takes education because a lot of people just think you’re a lawyer out there trying to win cases. They really don’t understand, and largely because they’ve been taught that if you can get away with it you’re supposed to. That’s kind of our culture. If you can get away with it you’re supposed to and that’s kind of what everybody thinks everybody else does and that’s the problem you face as a prosecutor because you know that’s not it.

“Prosecutor exceptionalism really does mean something to me.”

Yeah, according to Wikipedia that’s about right.

But isn’t that the problem that keeps putting innocent people in prison? That prosecutors think they are “superheroes” (Kepple’s word) who don’t need to conform to normal rules or general principles?

(The full transcript, produced by HCCLA from video published by Big Jolly, is here. Why is a 30-page text-only PDF so large? Murray Newman and Paul Kennedy comment on the video.)

Copyright © 2012 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)