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the tao of criminal-defense trial lawyering
Updated: 49 min 35 sec ago

Texas Rules of Appellate Procedure

Mon, 03/31/2014 - 20:51

I couldn’t find the Texas Rules of Appellate Procedure online in HTML format—only in PDF format—so I created them.

You’re welcome.

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 (74.70.211.32) .)

Harris County Criminal-Defense Residency

Wed, 03/26/2014 - 13:39

From Scott Ehlers at the Harris County Public Defender’s Office:

The Harris County Public Defender’s Office received a grant from the Department of Justice to establish the Future Appointed Counsel Training Program (FACT) for new lawyers committed to representing indigent defendants in Harris County.

The training includes a 14-day “boot camp” this summer , and 2 weekend follow-up trainings next year, all provided by Gideon’s Promise (online at: http://gideonspromise.org). The grant covers expenses for travel, lodging, meals, the 14-day “boot camp,” and the 2 follow-up trainings in Atlanta. There will also be a 2-day training on Harris County courts and Texas law, and a year of mentoring to be provided by top notch criminal defense lawyers, who will be paid for their time. There are 3 additional weekend trainings in Atlanta in 2016-2017. For those, training, lodging, and meals are paid for, but participants will be responsible for travel-related expenses.

Last year we selected the first class of FACT participants and mentors. This year we will be accepting the second class of 10 lawyers, licensed for 0-3 years. Students who graduate this May and take the bar this summer are eligible to apply.

A copy of the application is online here: http://harriscountypublicdefender.org/FACT-ReqforAppsForm-v2-2014.pdf. The deadline is March 31.

Please feel free to pass this along to any new lawyers or graduating law students who you believe will be good candidates.

Best,

Scott Ehlers
Legal and Policy Analyst
Harris County Public Defender’s Office

From Sarah “Bennett’s Brain” Wood, also at the PD’s Office:

Are you a fighter? Do you want to help the poor people who are chewed up and spit out every day in 1201 Franklin? Apply now for the Future Appointed Counsel Training (FACT) Program – a unique, year-long education in criminal defense that aims to set 10 awesome new lawyers on the path to a career in indigent defense. It will change your life. Through a highly competitive application process, you can get: GIDEON’S PROMISE (featured on HBO http://www.hbo.com/documentaries/gideons-army#/ ) - probably the most innovative criminal defense skills training in the country. Last year we sent 10 strangers to their two-week boot camp and they returned as friends for life – a team committed to changing our system. You also get access to a group of awesome local mentors, a private listserv, regular meetings, and local trainings. I know from experience that it is nearly impossible to break into the scene as a youngster. You have to want it bad. The FACT Program aims to take 10 lucky newbies and train the hell out of them to be savvy, confident defenders of the poor. And make them eligible for appointment. This is your residency in defense. Your foot in the door. And our investment in the future.   Apply now if your heart is there. http://harriscountypublicdefender.org/FACT-ReqforAppsForm-v2-2014.pdf    Deadline is next Monday. Email me with questions.

I am one of the ten mentors this year. The program is everything that Scott and Sarah say, and more. The program, and the ten passionate young lawyers participating, give me some hope for the future of criminal defense in a world that is otherwise pretty bleak.

If you are taking the bar this summer, or if you are licensed 0–3 years, apply.

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The Ethics of Decolletage

Tue, 03/25/2014 - 16:11

My Three Commandments of Criminal-Defense Ethics:

I. Thou shalt not break the law.

II. Thou shalt put thine client’s interests above all else.

III. There will be times when (I) and (II) seem to clash; at those times thou shalt consult ethics counsel.

From Judge Richard Kopf, who has recommenced blogging at Hercules and the Umpire, in regard to lawyers wearing short skirts and low-cut blouses in court:

I have three rules that young women lawyers should follow when considering how to dress for court:

1. You can’t win. Men are both pigs and prudes. Get over it.

2. It is not about you. That goes double when you are appearing in front of a jury.

3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.

I’m with the judge, more or less (I think men are only prudes when prudishness either benefits them socially or helps them keep the female competition down), on the first two rules.

But I don’t think there are many women lawyers who don’t already know these things, and the third rule strikes me as patronizing, as though women who dress for effect don’t know exactly what they are doing.

I wear well-tailored suits because a suit that fits well makes a man look better—taller, fitter, a more suitable mate: in short, more attractive. And more attractive people are viewed as more credible.  I know what I’m doing; women—who have been socialized since birth to take care of their appearances since —do as well.

Women who dress to show some skin in court do so for the same reason. As an added bonus, they know that we men—whether opposing counsel, judge, or juror—have difficulty thinking in the presence of pulchritude. It’s effortless razzle-dazzle:

So what about those female law clerks who “seethe and sneer” and call the “really good” woman lawyer “unprofessional” behind her back because she “wears very short skirts and shows lots of her ample chest”? They may be motivated by envy, by the idealistic aspiration that women be treated the same as men in court, or by the secret desire that no woman succeed any more than the least successful. Girls are mean to each other for myriad reasons.

But the motivation doesn’t matter, because the law clerks don’t matter. They are not deciding the client’s case. All that matters is the jury and occasionally the judge. Of course any performer must know her audience—for a chambers conference with a female judge and her female law clerks, the costume might well be different—but if it benefits the client for the male judge and a mostly-male jury to get a flash of boob, then boob must be flashed.

That’s the natural consequence of the second rule, both mine and Judge Kopf’s. Patronizing or not, Kopf’s third rule is nonsense. Just as “it” is “not about you,” it is not about the female law clerks. It is about the client.

Nobody wants to see me in a short skirt—my best assets are above the neckline—but if I knew I could get an edge for my client by wearing a miniskirt and a low-cut blouse, I’d do it without hesitation. Any woman lawyer needs the same attitude, regardless of the backroom nitpicking of the female clerks.

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Dirty-Talk Statute Dead in Texas, and a Misquote

Wed, 03/19/2014 - 10:46

This morning the Court of Criminal Appeals denied the State’s Motion for Rehearing (PDF) in my case invalidating Section 33.021(b) of the Texas Penal Code.

The court pointedly ignored the Attorney General’s effort to intervene, and found that Section 402.010 of the Texas Government Code was also unconstitutional, in violation of the Separation of Powers provision of the Texas Constitution.

In related news, I’m pretty sure this purported quote in Mitch Mitchell’s Fort Worth Star-Telegram article about the case…

“It’s OK for adults to talk dirty to children,” said Mark Bennett, the Houston attorney who defended Lo.

…is a misquote, or at least out-of-context. I’ve never suggested that it’s okay for adults to talk dirty to children (unless in “talking dirty” you include all “sexually explicit” communication forbidden by 33.021(b)). Legal? Yes. My position from the beginning is that it’s not okay, but that it’s parents’—and not government’s—job to regulate what kids see and hear.

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True Believers Redux

Sun, 02/23/2014 - 20:03

Six and a half years ago Scott Greenfield wrote The Fallacy of True Believers, about the danger of true believers:

But Bill [Kunstler] was a scary guy.  Bill was a true believer in the cause, not that I was ever quite clear what the cause was because abject liberalism is an ever changing line.  Bill existed for the cause, not the client.  If the cause demanded that the client burn, so be it.  He took a long range view of the world, and the cause was far more important than any individual, with their petty problems.  So us stupid kids who found ourselves in his orbit learned quickly that our focus, the client, was mere canon fodder to Bill.  And he could be far more dangerous (because he was far smarter, quicker and stronger) than any prosecutor we had ever met.

More recently Charles Thomas’s Don’t rape started a discussion of lawyers putting their own feelings above the effective representation  of their clients. Some more contributors to the string: meMax Kennerly, me again, and Matthew Wright.

Wright describes a CRA (Civil Rights Attorney) and a CDA (Criminal Defense Attorney) and their differing views on what appellate issues should be pursued for the client:

The broader question is what consideration, if any, should be given to “the Cause” when deciding which issues to press on behalf of a client?

CRA, like most attorneys involved primarily in issue advocacy, believes that an advocate should give careful consideration to the broader legal landscape and other plaintiffs/ criminal defendants/ immigrants / [other marginalized group] before raising a “longshot” issue.…

CDA, on the other hand, ignores the rest of the world when evaluating issues for a legal challenge, be it an appeal, pretrial motion, or petition for judicial review.

He asks:

What about you? How much consideration do you give to “the cause” when deciding which cases to take or which issues to argue? Do those considerations only come into play when the issue under consideration is a probable loser?

For the CDA, the client—not “clients generally” nor “society” nor “the lawyer’s feelings—must be The Cause. If making an argument will help the client more than leaving it out, the lawyer makes the argument. Any interest other than the client’s best interest is a conflicting interest, and cannot be acted on without the client’s informed consent.

Maybe the client presented with the opportunity to give informed consent—

Mr. Schmoe, we could make this novel argument that the search in your case was bad, and we might win and keep you out of prison. It won’t cost you anything if we lose. But the facts in your case are pretty bad, so we will probably lose. It’d be better for society—but won’t help you—if someone else with  better facts makes the novel argument.

—will take one for the team: clients do all sorts of stupid things. But absent client consent to put some other interest ahead of the client’s, the CRA is way out of bounds doing so. She can consider “the cause” when deciding what cases to take, she can’t do so without the client’s permission when deciding how to achieve the client’s goals.

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In Which I Am Not Happy With Steve Greenleaf

Sat, 02/22/2014 - 19:50

A few days ago, I wrote a post, Great Cicero’s Ghost. It was part of a discussion of legal ethics, causes, and conflicts of interest, arising from this post by Charles Thomas (which in turn arose from this post by Scott Greenfield).

The discussion continued with Max Kennerly’s “thoughts” (“there’s no requirement for the utmost zeal in representation, so we know that there’s no absolute duty to make a particular argument just because it might confer some advantage on the client”), my response to Kennerly,  Matthew Wright’s view (to which I tried to respond, but failed because I’m stubborn about not signing in to wordpress.com to comment; I’ll blog about it later). This is all in the best disputatious tradition of the practical blawgosphere. Bruce Godfrey commented too, in an annoyingly selfrighteous passive-aggressive happyspherical “I’m going to tell you what people said but I’m not going to link to them” way.

You see what I did there? I mentioned some interesting posts, and I linked to them—whether I agree with them or not—so that you could go read them yourself. That is the way the blawgosphere works. Charles and Scott and Max and Matthew and even Bruce get a little bit of “link love”; my readers who are interested in reading their whole posts have to go their blogs, where Charles and Scott and Max and Matthew and even Bruce have a chance of capturing those readers’ attention with the other things that they have written. Writing is work, and I shouldn’t deprive Charles or Scott or Max or Matthew or even Bruce of eyeballs on their own blogs.

That’s not Steve Greenleaf’s style. A self-styled “freelance lawyer,” Greenleaf copies someone’s entire blog post and republishes it on his blog with a paragraph or so of his own commentary above it. He does link to the original, which makes him a little better than those who copy others’ blog posts and republish them without linking to the original.

This is not how the blawgosphere works. Reprinting someone else’s content in its entirety is the wrong thing to do. Someone other than Greenleaf put work into every post that he copies; he has no right to steal that work by publishing it on his own site, either with attribution or without.

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Lying Law Prof Mary Anne Franks Comes to Town

Sat, 02/22/2014 - 18:55

Thanks to the Houston Chronicle, Cyber Civil Rights Initiative activist Mary Anne Franks got to bring her special brand of authoritarianism to my neck of the woods:

Franks dismissed claims by some groups, like American Civil Liberties Union, that criminal penalties for posting the photos infringes on behavior protected by the First Amendment.

“This isn’t protected speech, at least under any theory I can think of,” she said.

Rogers called me after talking to Franks, and I was quoted directly following her:

Other lawyers disagree, including Houston attorney Mark Bennett, who said the proposed laws, including the ones written by Franks, are unconstitutional.

Had I known exactly what Franks had told Brian Rogers, I would have said, “any idiot with a law degree knows the theory under which this is protected speech. If Franks can’t think of a theory under which revenge porn is protected speech, she’s incompetent.” But I don’t think she’s incompetent going on. I think she’s lying to Rogers. She does have a history, after all, of being untruthful about these matters.

Franks knows why revenge porn is protected speech: because speech is protected unless it fits into a recognized category of unprotected speech. She has made arguments for squeezing revenge porn into one category or another; I have shown why those arguments are specious. She has not responded, though she has claimed to have done so. She has never had to defend her thesis.

In their article Franks and Danielle Citron write, “Nonetheless, First Amendment doctrine holds that not all forms of speech is subject to strict scrutiny.” They provide no cite, and I contend that this is inaccurate: that all content-based speech restrictions are subject to strict scrutiny, and that they satisfy such scrutiny only if the government can show that no substantial amount of speech they restrict is unprotected. I look forward to seeing their cite for their proposition in the completed article.

They also misquote Eugene Volokh:

In his view, non-consensual pornography lacks First Amendment value as a historical matter and should be understood as categorically unprotected as obscenity.

Here’s what Volokh actually said:

But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.

That’s could, not should. Revenge porn could be treated as obscenity just as “consensual depictions of nudity” could be. I don’t think we want to open that particular door.

It may be that the Supreme Court will eventually recognize revenge porn as being in some category of unprotected speech. Citron thinks that an element of harm may be required for revenge porn statutes to withstand overbreadth challenges; Franks disagrees.

I’m with Citron1: the chances that a revenge-porn criminal statute will pass muster are better if the statute requires proof of harm—or, in my view even better, intent to cause harm. We would probably disagree on what “harm” is; I think there’s a modern tendency to treat hurt feelings and embarrassment as harm, and I would require an intent to cause more severe emotional distress than that.

I doubt that Franks is stupid. What endgame could she possibly envision, trying to pass statutes that even her coauthor thinks have First Amendment issues? Five years (at most) under her regime, before the massive rollbacks when the first such statute hits the Supreme Court? I don’t see anyone being helped by that but her.

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Arizona’s Revenge-Porn Bill, HB 2515

Tue, 02/18/2014 - 12:50

Arizona HB2515:

AN ACT

AMENDING TITLE 13, CHAPTER 14, ARIZONA REVISED STATUTES, BY ADDING SECTION 13?1425; RELATING TO sexual offenses.

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1425, to read:

13-1425.  Unlawful distribution of images; state of nudity; classification; definition

A.  It is unlawful to knowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.

B.  This section does not apply to any of the following:

1.  Lawful and common practices of law enforcement, reporting criminal activity to law enforcement, or when permitted or required by law or rule in legal proceedings.

2.  Medical treatment.

3.  Images involving voluntary exposure in a public or commercial setting.

C.  A violation of this section is a class 5 felony, except that a violation of this section is a class 4 felony if the depicted person is recognizable.

D.  For the purposes of this section, “state of nudity” has the same meaning prescribed in section 11?811.

(H/T Adam Steinbaugh via Twitter.)

Incidentally:

“state of nudity” means any of the following:

(a) The appearance of a human anus, genitals or a female breast below a point immediately above the top of the areola.

(b) A state of dress that fails to opaquely cover a human anus, genitals or a female breast below a point immediately above the top of the areola.

So you take a picture of your wife in a nice dress with plenty of decolletage (revealing part of the breast lower than than the top of the areola), and you show it to someone without her written consent. If you’re in Arizona, that’s a felony.

Or you repost an image of Janis Jackson’s 2004 Superbowl wardrobe malfunction (revealing a portion of the breast below the areola) on your blog. Boom, felony.

Doesn’t pass the smell test. But let’s do the First Amendment analysis.

Does it restrict speech? Yes: displaying, distributing or publishing a visual depiction (“reproduction”?) is speech.

Is it a content-based restriction? Yes: it forbids distributing images of another person “in a state of nudity,” but not cat pictures.

Does the forbidden speech fall into one of the historically recognized categories of unprotected speech to which First Amendment protections do not apply?

  • Obscenity? Some of the depictions might coincidentally be obscene, but “might” is not good enough to invoke the exception.
  • Defamation? The images (reproductions?) are presumably true, and truth is a defense to defamation.
  • Fraud? Nope.
  • Incitement? Nope.
  • Speech integral to criminal conduct? Nope. Publishing the images might be part of the criminal conduct of extortion (for which revenge-porn purveyors are being prosecuted), but not necessarily and, again, “might” is not enough.

Since no heretofore-discovered category of historically unprotected speech covers the speech that  the Arizona legislature would forbid, here we have a proposed law, short and sweet, that, to pass constitutional muster, would require the discovery of a new category of unprotected speech.

As I’ve said before, it might happen, but I’m not betting on it.

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Zealous Representation: Not an Option

Mon, 02/17/2014 - 21:18

Max Kennerly asks: Is A Lawyer Ever Required To Present An Argument They Don’t Believe?

The answer to the question is, to any true Scotsman criminal-defense lawyer, “absolutely.” We don’t decide whether our clients go to trial, and we don’t pick the facts. If the second-simplest explanation that accounts for all of the government’s admissible evidence is unbelievable even to us, then (unless trial psychosis helps us out by letting us buy our own bullshit) we must present an argument that we don’t believe to the jury.

But Kennerly contends that the answer is “no.” A lawyer, says he, is never required to present an argument she doesn’t (“they don’t”) believe.

According to Kennerly, a lawyer doesn’t have a duty of zealous advocacy. Why does he say this? Because the ABA Model Rules don’t require zeal1:

The focus of the Rules, then, is on competence, diligence, and communication, not on the degree of “zeal” felt or exercised by the lawyer.

Sometimes law and ethics clash, and DRs (including the MRs, where they are adopted) are law. Sometimes DRs require things that are not ethically required; often they do not require things that are ethically required.

The MRs, however, are not even the state of the law, whether in Texas, where Comment 6 to TDRPC 1.01 says…:

Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.

…or in Pennsylvania, where Charles Thomas practices…:

A PCHA petitioner alleging ineffective assistance of counsel may not be represented by an attorney from the same office as the allegedly ineffective attorney, regardless of the fact that one started working there after the other left. The later attorney, by reason of his association with the same office, still has an appearance of a conflict of interest threatening his duty of zealous advocacy. Pennsylvania v. Wright, 374 A.2d 1272, 1273 (Pa. 1977).

…or in the U.S. generally:

Although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent’s interests, evaluate his case and attempt to discern nonfrivolous arguments. Smith v. Robbins, 528 U.S. 259, 278 n.10 (2000).

In a detour, Kennerly confuses zeal with a lack of caution:

That’s how it should be: one of the essential precepts of the law is the recognition that “reasonable minds can differ” on a wide variety of subjects, including on the most effective way to represent a particular client and whether zeal or caution is warranted in a given situation.

While it’s true that a lawyer can choose the approach to his client’s case that will be most effective (and should, according to the law of requisite variety, have a good number of approaches to choose from), he must choose the one that is most effective. That—and not recklessness—is the essence of zealous representation. A lawyer can be zealous and cautious, zealous and audacious, zealous and temperate; zeal is not optional.

If zeal is not optional, then it appears that Kennerly would agree with me that the lawyer must sometimes—when is the best argument for the client—make the argument that he doesn’t believe in. That, at least, is the implication:

…[W]here is the line drawn between arguments that a lawyer must make (to have performed competently) and arguments that they can make (within the bounds of zealous advocacy)?

If zealous advocacy is mandatory, then there is no line between arguments that a lawyer can make within the bounds of zealous advocacy, and arguments that a lawyer must make to have performed competently. They are the same thing.

Kennerly also digresses into IAC law, which sets a very low bar for representation. Any criminal-defense lawyer whose ethics are satisfied by simply providing representation that doesn’t violate Strickland should go defend insurance companies. Or sell shoes.

In the post that prompted Kennerly’s question, I argued that a lawyer whose ethical qualms will not allow him to make a likely argument that might be legal and effective in the client’s case must give the client notice, before the lawyer is hired, of his fussiness. Kennerly would apparently say otherwise, returning again to the Model Rules of which he is overly fond:

First, the Rule draws a distinction between “general strategy” — about which the lawyer is to keep the client informed — and the details of that “trial or negotiation strategy,” which the lawyer “ordinarily will not be expected to describe.” Second, because the Rule specifically mentions that the client must give informed consent to conflicts of interest, the principle of expressio unius est exclusio alterius (“the express mention of one thing excludes all others”) would imply that a conflict of interest is the only situation in which the client is required to be informed of.

Here, Kennerly misses the point entirely.

Even if Kennerly were right that zeal was optional, even if a lawyer had no duty to present an effective and legal defense, if it were the lawyer’s ethical fussiness that prevented him from presenting such a defense there would be a conflict of interest. The lawyer in this situation has an interest in keeping his hands clean, the client has an interest in the lawyer doing everything legal that might keep him out of prison, and the lawyer must (even under the MRs) get the client’s informed consent before proceeding.2

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  1. Never trust a lawyer who confuses ethical rules—whether the Model Rules or his state’s disciplinary rules—with ethics. 

  2. The lawyer who, upon reflection, thinks that this might not be a conflict that must be revealed to the client has serious ethical problems, way beyond thinking that the MRs contain the whole of legal ethics. 

It’s All Connected

Mon, 02/17/2014 - 17:47

Launch

Next, the lawyer has to actually start jury selection. It is important for the trial to get off to a good start, and for this reason few lawyers rely purely on improvisation at this early stage. Most have a few phrases they have learned to trust, or an introductory framework they have polished over time. These tried-and-tested opening lines help the lawyer to sound proficient, experienced and, most importantly of all, supremely confident.

Confidence is contagious. If a lawyer is confident, the jury panel sense it immediately. They relax, because they can tell the lawyer knows what she is doing. They also feel confident they will enjoy her work. This makes for a very relaxed and supportive atmosphere, so the lawyer can relax and enjoy her work more. This expectation builds rapport between lawyer and panel, which helps the voir dire to go well. When the voir dire goes well, this further enhances the lawyer’s confidence, and so the circle goes round.

Lack of confidence is also contagious, and has precisely the opposite effect. The panel becomes tense (or bored) and anticipate having a rather disappointing time. This kills rapport, and the jury selection suffers accordingly. This undermines the lawyer’s confidence, so forming a vicious circle.

This is why confidence is vitally important to any kind of performance, including jury selection. Unfortunately, confidence is not to be had just for the wanting. It only comes with experience. But it does come, and brings many rewards.

True, right?

But it’s not just about trial. The quote is from The Full Facts Book of Cold Reading (read it—there’s much in it that is directly applicable to both jury selection and cross). I substituted “lawyer” for “psychic” and “jury selection” for “the reading.”

See also one of my favorite Zen stories, found on this page:

A young and rather boastful champion challenged a Zen master who was renowned for his skill as an archer. The young man demonstrated remarkable technical proficiency when he hit a distant bull’s eye on his first try, and then split that arrow with his second shot. “There,” he said to the old man, “see if you can match that!” Undisturbed, the master did not draw his bow, but rather motioned for the young archer to follow him up the mountain. Curious about the old fellow’s intentions, the champion followed him high into the mountain until they reached a deep chasm spanned by a rather flimsy and shaky log. Calmly stepping out onto the middle of the unsteady and certainly perilous bridge, the old master picked a faraway tree as a target, drew his bow, and fired a clean, direct hit. “Now it is your turn,” he said as he gracefully stepped back onto the safe ground. Staring with terror into the seemingly bottomless and beckoning abyss, the young man could not force himself to step out onto the log, no less shoot at a target. “You have much skill with your bow,” the master said, sensing his challenger’s predicament, “but you have little skill with the mind that lets loose the shot.”

When people ask me about the Trial Lawyers College, I tell them that I think it’s great training, but that many alumni screw up by viewing the TLC way as The Way, rather than a gateway to finding the style that works best for you. I also tell them that I see the attempts of TLC, Inc., the corporation that runs TLC to institutionalize TLC teachings as inimical to the truth, which is that once we can learn anywhere to try cases better. TLC, Inc. is Abercrombieing ((Abercrombie and Fitch, which used to outfit people for adventure travel, now sells softcore porn to gay teens.)) the Trial Lawyers College—preserving the purity of the name, but at the cost of the product.

So as well as the psychodrama of the Trial Lawyers College I have studied cold reading, and improv (did you know that J.L. Moreno, who invented psychodrama, had an improv theatre first?), and acting, and dog training, and martial arts, and a dozen other things, and found ways to incorporate them into my trial lawyering.

I’ve also proposed creating a criminal-defense skunkworks, so that other like-minded lawyers could explore diverse fields and report back to the group on their applicability to criminal defense, but the time (three years ago) was not right. I may resurrect the idea sometime, or if someone else wants to build the framework, I’m in.

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 (74.220.156.220) .)

Great Cicero’s Ghost

Sat, 02/15/2014 - 11:56

Three questions a criminal-defense lawyer should ask herself when considering action in aid of the defense in a criminal case:

  1. Is the action effective?;
  2. Is the action legal?; and
  3. Is the action ethical?

The first inquiry  is not, “will the action succeed.” but “do the chances that it will make things better outweigh the chances that it will make things worse?” Because this is a very complex inquiry, requiring broad and deep knowledge (the law, the facts, human nature, culture, strategy, tactics) as well as wisdom and the ability to let go of ego, it is where good criminal-defense lawyers earn their keep, and it is fraught with danger for others.

If the action fails the first inquiry, the lawyer should not engage in it, with a few exceptions: decisions that are strictly the client’s (with the lawyer’s advice, of course). Among them:

  1. Putting or not putting the client on the stand to testify;
  2. Helping the client plead guilty or not guilty;
  3. Waiving a jury trial;
  4. Requesting judge or jury punishment;
  5. Filing or not filing an application for probation; and
  6. Requesting or not requesting a lesser-included-offense instruction in the jury charge.

If the proposed action passes the first inquiry (or does not but is chosen by the client), it should be taken if it passes the second and third inquiries.

The second inquiry is whether the action is legal. In this inquiry I include the question of whether the action would violate disciplinary rules: those rules are not “ethics” but law. If the lawyer or the client might be punished for taking the action, it is not legal.

If the proposed action is not legal, the criminal-defense lawyer should not take it. There is a possible exception to this: if the law is not just, the lawyer might not follow it. We expect juries to nullify unjust laws; we shouldn’t be closed to the idea of doing so ourselves. Acting for a client in violation of an unjust law is harsh and dangerous medicine, though, and it shouldn’t be taken without consulting more-objective counsel and following Bennett’s Law of Rules.

If the action passes the second inquiry, whether because it is not illegal or because the law forbidding it is unjust and the lawyer is willing to pay the penalty for breaking it, it should be taken if it passes the third inquiry: Is it ethical?

Never trust a lawyer who takes the disciplinary rules as ethical gospel. Ethics are not dictated by government. There are things that the State Bar forbids that are ethical, and there are things that the State Bar permits that are unethical.

What should lawyer do if the action passes the first two inquiries but fails the third—if her own personal scruples prevent her from taking action that is effective and legal?

The question arose because of this post by Charles Thomas. There’s a great deal wrong with it, but the worst of it is this:

When I handle a sex case, there are two things I will not do — slut shame or victim blame. It’s reprehensible and has no place in the judicial process (I also note that no matter how many times I have seen it tried, it never works, but that is for another post). I get good results for my clients, fighting the cases that need fighting, working out the ones we can resolve, and I would like to think I do so fairly and respectfully.

So. Suppose that the action the lawyer is considering is (something that feminists would consider) “victim blaming”—for example, asserting that both the complainant and the defendant were equally intoxicated.

Is it effective? Absolutely. Because people who believe that a woman’s body belongs to her can want to protect her from the culpable acts of others without protecting her from her own mistakes, and just people can refuse to punish a person because he has a penis and his partner repents.

Some (things that feminists might describe as) slut shaming and victim blaming should be effective parts of the defense of a criminal case. Lack of effective consent is an element of sexual assault; the existence of effective consent is a defense. Evidence of effective consent can look—to the person who has already decided that the complainant is a victim—a lot like slut shaming or victim blaming.

Other slut shaming and victim blaming perhaps ought, in a perfect world, to have no place in the judicial process. But if we live in (what Thomas describes as) a rape culture, they do. We try criminal cases within the culture. So Thomas is deceiving himself when he says “it doesn’t work.” What works in the criminal-justice system—works to get police officers not to pursue an investigation, works to get grand juries to no-bill, works to get prosecutors to dismiss—is what works in the culture. If (things that feminists describe as) slut shaming and victim blaming didn’t work in the criminal-justice system, that would be evidence that we don’t have (what feminists describe as) rape culture.

So back to our algorithm for deciding whether to take an action in defense of a criminal case, as applied to slut shaming or victim blaming in a sex assault case.

Is it effective? Not always, but in some cases, yes.

Is it legal? Certainly.

Is it ethical? Thomas says no. He values fairness and respect too highly to engage in slut shaming or victim blaming.

So back, again, to the question: What should lawyer do if the action passes the first two inquiries but fails the third—if her own personal scruples prevent her from taking action that is effective and legal?

Refusing to engage in effective and legal action on behalf of the client because of your scruples may be acceptable in only one situation: where the client, before choosing you, gave informed consent to your fastidiousness. Otherwise, the criminal-defense lawyer must put her client’s interests first, above even her own ethical qualms.

If Thomas told his clients, “in your case, there are two things I will not do — slut shame or victim blame,” explained what that might mean to their case, and they hired him anyway, then he’d be free to be ethically fussy. But since he’s deceiving himself about the efficacy in criminal cases of slut shaming and victim blaming, I question whether his clients can give informed consent. And if some of his sex-offense clients are appointed, then shame on Thomas: a lawyer cannot be ethically fussy in the defense of someone who has not chosen her.

In my experience (longer, wider, and deeper than Thomas’s—I’ve known him through Twitter since he was looking for a job in 2008), when people hire a criminal-defense lawyer, they don’t want someone who will value fairness and respect to the complainant above the client’s interests. They want a fighting chance, even if that means hurting the complainant’s feelings.

Also in my experience, regret gets investigated and prosecuted. Why a criminal-defense lawyer would call that “a bogeyman legend,” as Thomas does, baffles me. That is polemic masquerading as practical knowledge. Thomas is free not to take sexual-assault cases, in which the wet work that might be required would offend his delicate radfem-ally sensibilities. He isn’t free to take such cases and leave something undone to make himself feel better about himself or to make a better society. As Cicero wrote, “It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.”

A lawyer’s ethics are personal to her, and once she’s on the case they should generally be kept that way.

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 (198.199.121.41) .)

Bring a First Aid Kit: Online Damage Control for Lawyers

Fri, 01/24/2014 - 00:15

I tried to help the kid. Truly I did. I reached out to him through a mutual friend and told him, “you can salvage this. Apologize.” Things got worse for him. I emailed him directly, asked him to call me. I spent an hour on the phone with him. “You can salvage this. Apologize. I understand that you feel unfairly treated. That’s a war that you’re not going to win. We make our livings helping clients make the right decisions. Show that you have the wisdom to make the right decision for yourself.”

He didn’t follow my advice. Honor is more important to him, I suppose, than virtue.

I don’t need to name him and contribute in a searchable way to his reputational self-destruction. I’ll use an ungoogleable “CDC.” The articles and images I’ll link to name him, and whenever someone googles his name, for the foreseeable future, those unfavorable articles, prompted first by his bad marketing decisions but fueled by his foolish reaction, will pop up.

Lesson 1: The Internet is Important

Why is it important what results pop up when people google CDC’s name? Because, more and more, that’s how clients choose lawyers. Even when you are referred by another lawyer or a former client, many clients—more every year—will (and, I would argue, should) run your name through Google to see if there are are any red flags. If other lawyers—even those who have never met you or seen you in trial—have a low opinion of you, that’s a red flag for the thoughtful potential client.

This is going to hurt for a while:

Lesson 2: Pretending the Internet isn’t Important Will Not Help

In his comments, CDC claimed that “I put very little value in worthless blogs.” His conduct on the Internet, however, in the name of getting business, puts the lie to that. A blog search for his name takes you down a rabbithole of badly written and dishonest PR drivel. For example, this:

“How should be your DWI lawyer?”

and this:

“CDC, the well known criminal attorney in Texas has reportedly extended his expertise….”

and this:

“CDC, The Defender, is a Dallas Intoxication Manslaughter DWI Defense attorney….”

And, well, more of the same. I guarantee that CDC has spent more on Internet marketing than I have. And if you put that much into touting yourself on the Internet, the last thing you should be doing is claiming that the Internet isn’t important. It just ain’t credible.

Of course, the young lawyer would say that he didn’t post any of this. And I suspect that it’s true—the writing in these posts is even worse than the writing he demonstrates in his blog comments. But this brings us to…

Lesson 3: The Buck Stops Here

When a lawyer has someone else doing his marketing for him, the lawyer is responsible and the actions of the marketer are attributable to the lawyer. In the parlance of the blawgosphere, “when you outsource your marketing, you outsource your ethics and your reputation.” The young lawyer is responsible for the blog, and the press release, and the video, even if he didn’t know exactly what was being done on his behalf. (And, for whatever it’s worth, there are a half-dozen DR violations in those three links alone.)

So “my content manager did it for me” is not a defense to an allegation of plagiarism like the one that started CDC’s slide. When someone does something bad in your name, you have to fix it yourself.

Lesson 4: Plagiarism is Bad

Presenting someone else’s work on your own website without giving them credit is, in the blawgosphere, considered theft. If you don’t make it clear that it is someone else’s writing, you are stealing from the author.

Even if you do make it clear that it is someone else’s writing, quoting someone else’s writing in large chunks is generally frowned upon as misappropriation. Content is king, and you don’t get to pump your website up with someone else’s content. Quote a few lines and link to the original so that your readers can read the rest.

Lesson 4: Writing is Thinking

Lawyers who blog do so because they love to write, and sometimes because they want to display their thought processes to potential clients. Writing is thinking; a lawyer who writes well thinks well. A lawyer whose writing is disordered and rambling probably doesn’t.

We aren’t selling auto repair, and our clients expect us to write our own content. So when you present someone else’s work as your own (for example, republishing it on your website without giving due credit) you are lying to your clients about something material.

Lesson 5: You Will Eventually Be Caught

If you do (or someone else on your behalf does—see Lesson Three) something bad—fraudulent, unethical, or just ugly—in your marketing, eventually someone who cares is going to see it. Someone like Greenfield, or Popehat or that new kid Godfrey or even me. And if someone who cares sees it, they may very well write about it. Which brings us to…

Lesson 6: You Are Not Entitled

If you are caught lying or cheating or stealing (directly or through someone else) you are not entitled to a friendly email asking you to stop lying or cheating or stealing. You may, if the person who caught you is feeling very charitable, get such an email. If that happens, you are extraordinarily lucky, but you will probably ignore it or treat it like the opening of a negotiation.

That’s okay: you are not the only lawyer who has ever thought of lying or cheating or stealing on the Internet, and as far as Greenfield or Popehat or Tannebaum or I am concerned you might as well be a lesson—a cautionary tale for others—as a student.

Lesson 7: Leave Well Enough Alone

When CDC found Greenfield’s first post, he didn’t react well. He left several rambling, repetitive comments that showcased an utter lack of writing ability. But Greenfield’s post at that point was six weeks old and hadn’t received any traction. CDC’s responses called attention to the post, bringing it back to life; now it has 108 comments and climbing (it turns out that people on the Internet don’t like plagiarism). CDC’s responses also gave Greenfield material for two more posts.

Lesson 8: Do Not Declare War

In addition to calling Greenfield out, CDC threatened to rubbish his reputation in comments on every blog he could find and to sue for libel. This will never work. The Streisand Effect describes the results of such threats—the more you try to suppress information on the Internet, the more it spreads. Here, CDC’s threats caught the attention of Ken White at Popehat, whose post caught the attention of William Peacock (“Esq.”) at FindLaw. So now, thanks to CDC’s censorious threats, about a zillion people have seen his name in connection with this story. Greenfield’s post comes up first in a search for CDC’s name, but Popehat’s post is working its way to the top.

CDC thinks that potential clients will be favorably impressed by the way he fights for his own honor. I think it more likely that they will either see in his response a lack of good judgment (he bought trouble for himself in a way that he should never do for a client) or not understand but simply get the gist that CDC somehow screwed up and is widely criticized by his fellow lawyers.

Lesson 9: Apologizing is Free

There was a point at which CDC’s reputation could have been salvaged. Here’s what CDC should have written then:

I deeply regret how I responded when I saw Scott Greenfield’s post about the publication on my website of Dan Hull’s 12 Rules without attribution. I was shocked by what I perceived as an attack on my character. My reputation is very important to me, as I’m sure you understand. I let my emotions dictate my actions, rather than perhaps ruminate over how I should respond to what I perceived as a very major slight against my character.

Having taken some time to cool down, I now understand my error: as a lawyer, I am responsible for what people do in my name, and when someone steals content for use in my blog, I am no less responsible than if I had done it myself.  In mitigation, I did not know that it was being done until Scott Greenfield’s blog post called it to my attention. I didn’t then have control over my content, so I couldn’t immediately take it down. Out of frustration and anger, I blustered instead of responding coolly. As soon as I was able after Dan Hull asked, I removed Hull’s content from my website, and spent almost the entire night writing another.

I truly believe that being a lawyer means more than what is written on any webpage, and I hope to get past this and build my online reputation the old-fashioned way: with solid work for clients in the real world. I don’t really know how to rectify this situation, other than be the best attorney I can be in the courts I frequently work in, because I feel that is of the utmost concern to me as an Attorney — to zealously and competently represent my clients.

Meanwhile, I still have a web presence. I will take ownership of it. I will never let anyone post anything in my name without my permission, and will never publish anyone else’s work as my own.

I understand that Scott will be in Houston in March to teach at the TCDLA federal seminar. I plan to be there as well, and I hope that he will allow me to buy him a beer to try to make amends. I promise that he won’t need a first aid kit.

With respect,

CDC

That’s an apology: it contains an acknowledgement of wrongdoing, an expression of regret, and an assurance that the wrongdoing will not recur. What it doesn’t contain is threat, bluster, rationalization, or blame.

Lesson Ten: Suck it Up

CDC feels that he has been done wrong. Maybe he has been. The culture of the practical blawgosphere can be very rough at times; maybe even brutal. But CDC brought the roughness on himself. Had he responded to Greenfield’s first post with “Thank you for bringing this to my attention. Hull’s post was stolen without my knowledge, but I am responsible for it. I will be careful in the future to make sure that those working for me don’t break the rules,” he would have been met with praise. Instead he told Greenfield to “bring a first aid kit,” and things got worse from there.

To have fixed things, CDC would have had to gotten over his hurt feelings and accepted that he was in the wrong from the beginning.

Lesson 11: Time is of the Essence

When I first reached out to CDC to try to make things right, I think he could have. I think it’s probably too late now. I’m not sure about this, because nobody in CDC’s position has ever tried to make things right so late in the day. But it’s going to be difficult not only because the story has spread from Greenfield to Godfrey to Popehat to Peacock and all over Twitter (and if you think the practical blawgosphere is rough, you should see Twitter), but also because when people discover someone violating the norms of the internet, they go looking for other violations, and in the course of doing so someone has found this treasure of CDC’s marketing campaign:

In conclusion, when you run into reputational damage online—when someone says something mean about you or is about to—put your ego aside and respond coolly. Do not type in anger.  Consider first whether you need to fix it or are better off letting sleeping dogs lie—it may be that you can’t make things any better, but can make things much worse. Before responding in any way, consult with someone you trust who knows the culture (otherwise you have a fool for a client). But don’t delay. If you can take the wind out of the complaint with a well-timed and self-effacing response, you’ll be much better off than if you try to club (or sue) the Internet into submission.

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 (54.245.236.50) .)

Fake Carl Ceder

Thu, 01/23/2014 - 14:35

I took all of Carl Ceder’s writings—blog comments and emails—from here, here, and here, and used them as the input to Dr. Nerve’s Markov Page. You might be able to distinguish the result from Carl’s actual writing.

Agreed, please see my practice occurs in yours. Spend time at your content from my perspective. Frankly, I would think it seemed everyone else for each, which I am only instructed to pawn your rule is read it much as motivation, which I originally wrote personally interacting with a practice law. I do my website. I read deeper into their rights. When I can think that is absolutely no knowledge of, in charge of what is libel. Because I encourage all blogs that they are in, would think to take major offense. I come here. So if that I would hire for you I hope this on Driving While Intoxicated, which take the utmost importance. In actually, I know nothing about: namely me of. You are enforced and it and kept alive, your precious blog. This is all came off as soon as I have lost the following links, all under the blog, you as this. Again, I do not how one e-mail to the time on the Rule on the most of their hands. You can forward this entire situation (with regards to perhaps I’m on your content. I get in my website (I apologize, I do think having a ridiculous notion. I am a non-issue and not trying “steal” you want to use my practice law, and to give him credit. I have done the computer blogging, as before. Spend time to e-mail to all of line. And again, my words as I liked the demeanor and do not trying to why I would have impugned by writing what he accused me by what I trying to hide behind a coward and Misdemeanor cases to know that he didn’t even know nothing to put very pointed assumptions about me, probably around 5–7 out of this was doing so. I never met or other than yourself. Because I wrote it, and help those whom they are done so, and unoriginal. I thought out the owner of my websites, and/or delete them. It was trying to it the DA’s office to Mr. Tannebaum (who has been brought to my words were presented to take. My advice to do read still (these are also interview with the State Bar. If trying to perfect that was not be a shot at the rules , and movie). I didn’t even met before, given your above that actually practicing, and chose to be a lawyer in well regarded in a first-aid kid; and I just had absolutely fantastic, regardless of blog.simplejustice.us, I have never received anything that to me, again, I don’t hide behind us very damaging, and in contradiction of context, and my paralegal is the time on the person maintains the rules on the phone and standpoint is beyond any grammatical errors that it was not know that your computer, and wonderfully written by someone wanted to be a la Racehorse Haynes and a “thief.” This is my picture, I thought you post, I get these results about me, but again, my own website, or whatever he is on any grammatical errors, I’m sure to be precise, I am not want to him. I find this notion because that was forwarded to not even pass into my main goal in person who has posted what I am sorry for writing something as an attorney over a more professional manner (rather than just felt the Internet. I take offense to obtain more civil work, as contacting me on the sincerest form of my time hunched over your rule is who would swear on my website in the opinion that fashion, you first comments it to me, accusing me in my own, and complete waste of the number on the phone and untrue things. In reality, I have explained above that is another section of work, I really don’t know that every potential clients do give him the owner of your e-mail addresses, however, was immediately extremely frustrated at attorneys to Mr. Tannenbaum is more disparaging remarks, in the courtroom trying to admit that I viewed your page for me when first aid kit. Impugning the e-mail addresses, however, so much does get in such serious nature, from my integrity. I sent to him the comments that I can realize practicing law school, and a year. And to clients, analyze and something you blog initially, said in New York and the lines of blog.simplejustice.us. Again, I find the exact opposite of the sun in no worse. That’s why I would tailor it there was ridiculed for this, was immediately enraged when it as my message and standpoint is applicable to me, are enforced and do think about blogs, and assist clients, other attorney over your remarks about who has already erased one can think about how I do think it to be so to clear from my practice differently. But I doubt anyone who wrote personally and I am not think of what I do have ever heard of the handle earlier today which was waiting on my reputation. To me, again, in very little value the content I do have spent 7 years in person, outside, or not see how you think of my frustration lies in how successful an answer before writing anything that before writing about who presumably tried my material off that you have a foundation of my message that, in this as have whatever content is on your material that very soon, if you impugning blog actually practices law school, and analyzing what it was having trouble with Mr. Tannenbaum is, not implying you put little too highly of their job, was incredibly seriously. Your reputation, and not what you too. Only those who has been posted about the internet defamation laws in need of the person who has been asked whatever material off to have done, in such bold claims. What does confuse me to make my own. I have known by many, even bother to me or whatever. That was incredibly presumptuous to post my paralegal not

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SWRVs Hate Truth

Mon, 01/20/2014 - 18:55

Harris County DA Devon Anderson, in response to President Obama’s comment that marijuana isn’t more dangerous than alcohol, “in terms of its impact on the individual consumer,” issued a press release.

She begins:

I adamantly disagree with the President.

Whether and how you disagree with the President has nothing to do with whether he is correct. Let’s see your argument.

She continues:

According to a 2012 Drug Use and Health survey, marijuana is the number one drug that citizens over the age of 12 are addicted to or abuse.

Untrue. Here’s the survey. Marijuana is the number one illicit drug that citizens over the age of 12 use. The survey didn’t address addiction. “Are addicted to or” is empty language; Anderson might as well have said, “marijuana is the number one drug that citizens over the age of 12 kill for or abuse.”

How many people use (or abuse) a drug has nothing to do with how dangerous it is, but if it did then alcohol, tobacco, and caffeine would all be more dangerous than marijuana, and the President would be right.

The negative effects of marijuana use on a developing brain can be permanent,

I suspect that it this is true. The same is true of alcohol.

and our President is recklessly giving what amounts to parental permission to our most impressionable citizens to break the law.

Huh? Is the President your daddy? Isn’t it parents’ job to give parental permission, and to teach their children to do what’s best for them?

Marijuana is creating deadly situations right here in Harris County.

Really? Give one example.

I welcome the President to come to Houston to review the same Capital Murder cases I did just last week that were the result of marijuana drug deals.

Ah. She’s talking about the case in which cartel hitmen allegedly killed an informant who was transporting marijuana for the DEA—none of which could have happened if marijuana were legal.

Maybe then he will see that the most effective way to keep our law-abiding citizens safe is to obey all laws that our legislators put on the books at our State Capitol.

That’s a non sequitur. The guy killed by the cartel hitmen was not a “law-abiding citizen.” He was a dope trafficker, though he had DEA permission, that particular day, to possess marijuana. And he wasn’t killed because he was not obeying the law—he had government permission—but because he was legally—indeed, at the behest of government agents—transporting something that happens to be illegal.

Another, more reasonable, takeaway from that case might be that a more effective way to keep our law-abiding citizens safe is to legalize marijuana. The murder of a DEA-sponsored drug trafficker is an excellent argument for putting the DEA out of the marijuana business.

I am acutely aware of the high price society pays for the misuse of alcohol.

And yet alcohol is not illegal.

This is not a debate about whether alcohol or marijuana is more dangerous.

Actually, it is. She said that you adamantly disagreed with the President’s statement that marijuana is not more dangerous than alcohol. Now she’s giving up on the argument?

The President’s comments notwithstanding, marijuana is illegal under the Texas Penal Code, and we vigorously prosecute drug possession and alcohol related offenses in Harris County.

Ah. Regardless of whether marijuana is more dangerous than alcohol, she says, marijuana is illegal and alcohol is not. So she is giving up on the argument.

For authoritarians, “it’s illegal” is the end of an argument—“is” trumps “ought.” For libertarians, it’s not even an argument—“is” has nothing to do with “ought.” Most people, I think, are somewhere in between: they give some moral weight to the fact that something is illegal—“is” suggests “ought”—but they still will consider why. “It’s no more dangerous than alcohol” is an argument for marijuana to be treated the same as alcohol. Reasonable people might consider that and decide that alcohol should be criminalized (again), or that marijuana should be decriminalized.
But the Scared White Republican Voters whom Anderson hopes will elect her in November are the authoritarians. They are afraid because people like Anderson tell them to be afraid, and then they vote the way that people like Anderson tell them will make them safer. If someone tells them, “this is the law,” they don’t ask, “okay; should it be”; they assume that the law is right, and look for someone to enforce that law. So Anderson, already huckstering for votes, instead of telling the truth (that Obama is probably right) and engaging in a meaningful discussion of what this should mean to Texas drug laws, simply tells those SWRVs—very few of whom will be hauling weed for the DEA—to be afraid of marijuana, and to vote for her because she will keep them safe from danger.

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 (65.19.138.33) .)

Trial Lawyers of the World, Unite!

Mon, 01/06/2014 - 22:18

Today in the UK, criminal barristers stopped work for the morning. (Don’t call it a strike.) The non-strike was prompted by the government, falsely representing the criminal bar as well-paid fat cats (the Minister of Justice says “average £100,000…I mean, £84,000″; the truth is closer to £37,000, and criminal barristers’ fees are already down 40% from the late 90s), proposing to cut £220 million from the indigent defense budget. Last October the Ministry of Justice had, as part of the same cost-saving package, proposed bribing criminal barristers for guilty pleas.

Lawyers defending indigents accused are an easy target for budget cuts. The narrative that keeps all politicians in power is one of fear. For example, “be afraid; this is a dangerous world; I can keep you safe.” Cutting police and prosecutorial budgets does not reinforce this narrative, so money coming out of the criminal justice system comes out of defenders’ budgets.

As in Britain, criminal-defense lawyers in America are not fat cats. There are a few getting rich and some making a damn good living, but the great majority are plodding along. According to the State Bar, Texas criminal-defense lawyers’ median income is $73,276—a good middle-class living, sure, but half are making less than that, and those at the median are making much less than the median income for Americans with professional degrees.

A few years ago Harris County lawyers taking appointments took a pay cut from the county. (Here are the ludicrously low rates for court-appointed counsel in Harris County. You can bet that outside lawyers doing civil work for the county aren’t working for $85 an hour.) Last year private lawyer taking appointments in federal court took a 12% pay cut to save Federal Public Defenders’ Offices from layoffs. Of the two options—PD layoffs, or a CJA pay cut—the latter was better, but the choice should never have been necessary. Both of those cuts went down with nary a protest.

The endgame of pay cuts for criminal lawyers is the end of the independent criminal-defense bar. As Lucy Reed writes in It’s not about the lawyers – its about YOU!:1

There are already firms and chambers which have closed and cases where defendants have been unable to find a lawyer to represent them. At the moment they are few and far between. But that barristers (and solicitors) have been on “strike” today in such numbers, exposing themselves to potential complaints, disciplinary action and contempt of court is a pretty clear indicator that things are getting desperate. The bar are not really into histrionics and nor are they known for their radicalism. They believe in process, in responding to consultations with reasoned, evidence based argument. They believe that process has broken down.

You don’t need to like barristers or solicitors much. And they don’t need to be paid a gazillion pounds to do a good job. But you do need to understand that this IS about you. And about your legitimate expectation of a defence lawyer who will do a good job when you need them.

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 (70.138.92.115) .)
  1. Note to Self: 2014 BPOTY nomination. 

In Comal County, a Big Deal for Indigent Defense

Mon, 01/06/2014 - 01:15

Following on my last two posts…

The complicated problem is that the Gideon decision created attorney-client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States.

Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.

The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.

The top-down approach is doomed to fail. For everything Judge Lasnik can dream up to force criminal-defense lawyers to do for their indigent clients, there are a hundred other ways the lawyers can do poor jobs. It’s criminal-defense policy Whac-A-Mole.

The bottom-up Comal County approach has some potential. If indigent defenders’ income, like “free-world lawyers’” income, depends on clients’ choosing them, some lawyers will excel and others will follow suit or fail.

That is the opposite of what can happen when indigent defenders’ income depends on judges choosing them, which is that some lawyers suck up to the judges at their clients’ expense and others follow suit or fail.

I’d be curious to know what political maneuvering was required to get Comal County to try the free market in indigent defense. Most of all, I’d like to know what the arguments were against it…and who made them.

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 (76.105.140.107) .)

Avoiding the Criminal-Defense Confidence Game

Mon, 01/06/2014 - 00:34

In The Prac­tice of Law as a Con­fi­dence Game: Orga­ni­za­tional Coop­ta­tion of a Pro­fes­sion, Abraham S. Blumberg’s major thesis is that criminal-defense lawyers are turned from their duties to the client by the system to get their clients to plead guilty. This is a fair characterization overall, but not universally. Most criminal-defense lawyers put the client first—before personal and professional relationships and “clients”—to some extent.

Those at the “lesser” end of that spectrum are clearly derelict in their duties; those at the “greater” end are paragons of Sixth Amendment virtue.1 Most criminal-defense lawyers are neither derelict nor paragons, but somewhere in between. There are few who could not do a better job of subjugating all else to the client’s interests.

So how can the defendant, desperate to get out of trouble, find a lawyer who will do the best possible job of putting the client’s interests first?

Blumberg calls the practice of law a “confidence game.” There is a difference between a confidence game and a run-of-the-mill swindle. In a confidence game, the mark is led to believe that he is doing something shady. Most bad lawyer advertising is a run-of-the-mill swindle; “we’ll bribe the judge” would be a confidence game. “I am a former prosecutor,” with its hint that the relationships formed as a prosecutor might be used to give the accused some advantage, is a confidence game.

So the best piece of advice for the client who wants not to be the victim of a criminal-defense confidence game is not to expect anything shady. The lawyer who intimates that his relationship with the prosecutor will get a better result should, like the lawyer who intimates that he can bribe the judge, be avoided at all costs. As I’ve noted before, when the lawyer’s long-term relationship with the prosecutor is placed in tension with her short-term relationship with the client, it is not the former that will suffer. Blumberg describes the inherent conflict between the interests of the client and the interests of the lawyer:

The individual stridencies, tensions, and conflicts a given accused person’s case may present to all the participants are overcome, because the formal and informal relations of all the groups in the court setting require it. The probability of continued future relations and interaction must be preserved at all costs.

The defense lawyer’s future relations with the other participants in the system—prosecutor, judge, court staff—depend on her handling of the client’s case; the client’s case suffers because of this dependency.

The defense lawyer might rationalize this—relations with the other participants in the system must be preserved because other clients’ cases will depend on those relations. But it is “the client’s” interests that must be pursued, and not “clients’.” It is not uncommon for a lawyer to face situations in which actions taken for this client might make things more difficult for future clients;2 this client’s interests trump those future interests.3

The Harris County Criminal Justice Center may well do more business than any criminal courthouse in the country, but it is not a big courthouse. We all have insider connections. We all have friends in the DA’s Office and on the bench. The lawyer who is marketing himself based on those connections has got nothing real to sell.

So the client who is not looking for improper influence—for someone in the courthouse to cut him a break because of who his lawyer knows, rather than his lawyer’s training and experience—has a better chance of avoiding the confidence game altogether and hiring someone who will put the client’s interests first.

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 (76.105.140.107) .)
  1. Even a paragon puts her own interest in behaving ethically ahead of the client’s interest in being free. There are lines that not even a paragon will cross for the sake of the client. 

  2. For example, pursuing appeals that might result in bad holdings. 

  3. If the lawyer’s choices for this client might prejudice other current clients, he has a conflict of interest and must withdraw. 

Everyone Hiring a Criminal-Defense Lawyer Should Read This

Mon, 01/06/2014 - 00:31

In Casual cruelty–part two Judge Kopf mentioned “Abraham S. Blumberg’s 1967 classic entitled The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession.”

Confidence games, law, and the cooptation of the profession? That sounded right up my alley. I found a copy in the wild. After reading it a couple of times, I am convinced that it is something that everyone needing to hire a criminal-defense lawyer should read and understand. It is poorly written (“classic”?) and unsourced, but utterly cynical and mostly true.

Read it.

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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 (76.105.140.107) .)