Mark's Blog: Defending People

Thomas Friedman is a boob.

I worry about [another 9/11] even more, not because I don’t care about civil liberties, but because what I cherish most about America is our open society, and I believe that if there is one more 9/11 — or worse, an attack involving nuclear material — it could lead to the end of the open society as we know it. If there were another 9/11, I fear that 99 percent of Americans would tell their members of Congress: “Do whatever you need to do to, privacy be damned, just make sure this does not happen again.” That is what I fear most.

Privacy is freedom. I’m not sure whether this is self-evident, so I may flesh it out later. Until then: What is it that Big Brother is doing?

Friedman’s logic is this: we have to give up some freedom now so that we remain safe.

Ben Franklin had something to say about that.

Friedman knows that his position is contrary to the principles on which this nation were founded. So he protests that he “reluctantly, very reluctantly” gives up essential freedom, and rationalizes the surrender: We must remain safe not for safety’s own sake, but because otherwise we hand the state an excuse to take away more of our freedom. Friedman is willing to give up freedom to fight the last war—to prevent the next 9/11—not because he’s a simpering statist but because he cares so deeply about our freedom.

But here’s the thing: the last 9/11 handed the state every excuse it needed to take away as much of our freedom as it could justify with a straight face. How much freedom? All of it. When the executive claims the authority to kill anyone anywhere, any freedom we seem to have is merely symbolic.

Friedman says, “Imagine how many real restrictions to our beautiful open society we would tolerate if there were another attack on the scale of 9/11.” There seems to be some difference in his brain between that statement and “Do whatever you need to do, privacy be damned, just make sure this does not happen again”:

That is why I’ll reluctantly, very reluctantly, trade off the government using data mining to look for suspicious patterns in phone numbers called and e-mail addresses — and then have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress — to prevent a day where, out of fear, we give government a license to look at anyone, any e-mail, any phone call, anywhere, anytime.

Friedman thinks he can draw the line here and preserve some freedom. He is willing to allow the state to track him and his children and know who they are talking to, how often, and for how long because he sees that as the price of not having the state listen in on the calls. But I wouldn’t draw the line where he does, neither does the government. It’s not what I would call a principled distinction. Neither “content is more essential, and as far as we know they’re not already hoovering up content” nor “we can trust secret courts” is a compelling argument.

Maybe Friedman is right: maybe 99 percent of Americans would, after another 9/11, be willing to give up freedom to be made safe. Math is hard, and Americans have a cavalier attitude toward their freedoms; they’re willing to give them up on less provocation.

So what’s the solution for those of us who are not willing to sell liberty cheaply?

We could take the Friedman approach and say “this far but, golly gee, no farther please” in the assumption that by giving up some freedom we can preserve the rest. But this approach is doomed to failure because even if we succeed in fighting the last war, something else will come along that justifies, in the minds of the booboisie, less freedom. Meanwhile, the Friedman approach trains the 99% to give up essential freedom for temporary safety, teaches the government that we will not push back, and so hastens liberty’s eventual demise.

Or we could say “this will not stand” and teach the booboisie to push back. We might never get more than 50% on the side of liberty in the face of fear, but we do not need a majority to prevail.

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 (173.255.232.252) .)

From MySanAntonio.com:

A Bexar County assistant district attorney has been fired following an incident in which she was mentioned in a friend’s driving while intoxicated arrest report for advising him not to submit to a breath test.

She’s also accused of badging the arresting officer. And “P then told (him) to take a personal recognizance bond that she had in the wallet that contained her identification and badge.” (Wait, what? Prosecutors get to carry get-out-of-jail-free cards? To share with their friends?)

But it’s apparently the good legal advice she gave that got her canned:

As for advising her friend, it was a mistake that she has paid for with her job, she said.

This prosecutor must be punished. Because imagine what would happen if people learned that even prosecutors advised their friends not to blow.

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Chris Green, chosen to be a juror in a non-death capital murder case in the 338th District Court of Harris County, Texas, googled “capital murder” before opening statements began, and didn’t like what he found. He decided that there was a “very real danger of retribution” if the jury convicted Amezquita of capital murder and he got the automatic life sentence that is mandatory when the State is not seeking death.

Never mind that the danger of retribution is not “very real,” but rather entirely imaginary. I don’t know when there was last retribution against someone for his jury verdict in Harris County. It may have happened somewhere sometime, but that doesn’t make the danger real. (The prosecutor appears to have had no concerns, and the defendant is accused of murdering his business partner, so there’s no organized-crime angle.)

I see Green as a typical twenty-first century American, hooked by television on drama and fear, and looking for his fix. After scaring himself, Green reached out to Roger Bridgwater, a former prosecutor, former judge, and former (?) defense lawyer, for advice. Then he wrote a letter to Judge Maria Jackson asking that the jurors’ identities be concealed, and got the other eleven jurors and the alternate to sign it.

Judge Jackson properly dismissed the jury; the parties will have to pick a new jury.

What the hell just happened?

Hypothesis One: Roger Bridgwater told Green to write a letter to Judge Jackson asking to be anonymized, and get the other jurors to sign it, because Bridgwater is stupid. This hypothesis satisfies Hanlon’s Razor (“Never attribute to malice that which is adequately explained by stupidity”).

The problem with Hypothesis One is that Bridgwater is not a stupid guy. He’s got experience on both sides (“defense” and “prosecution / bench”) of the Harris County criminal justice system, and he knew what effect such a letter would have.

Hypothesis Two: Roger Bridgwater told Green to write the letter to Jackson to deliberately undermine the prosecution of a capital murder case. There was a jury picked, and now the parties will have to pick another jury, delaying a resolution of the case. As Percy Foreman would say, a continuance is as good as an acquittal—for as long as it lasts. Motive? Upset at losing his place on the government teat.

One problem with Hypothesis Two is that if Green had not brought his illicit research to Judge Jackson’s attention he would have served on the jury with a reason (other than the law and the facts) to acquit the defendant, so saying nothing, as Murray Newman suggests, would have harmed the State more.

Another problem with Hypothesis Two is that the news coverage of Green’s conduct has poisoned the jury pool further against the defendant.

Hypothesis Three: Roger Bridgwater deliberately undermined the defense of a capital murder case. The juror’s concerns—“possible fallout, including violence, if Amezquita were convicted and automatically sentenced to life in prison without parole”—might tend to bias the juror against the State. By advising the juror to bring his concerns to the judge’s attention, Bridgwater ensured that this juror would not serve. Motive? Bridgwater was “part of the leadership team that had overseen the case since 2008.”

The two problems with Hypothesis Two favor Hypothesis Three.

The problem with Hypothesis Three is that there are many better ways for Bridgwater to have sabotaged the defense. For example, he could have reassured Green that there was zero danger of retribution. He could have told Green that the defendant needed to be convicted. He could have played on Green’s fear.

Maybe Bridgwater thought Green was inherently a bad prosecution juror, regardless of the irrational fear of retribution? Unlikely. Jurors with irrational fears are generally pro-prosecution jurors. On general principle, prosecutors seek to make jurors afraid.

Hypothesis Four: Roger Bridgwater, with no intent to help either party, deliberately undermined the functioning of the criminal justice system. That seems to be the theory that Newman is leaning toward. Motive? None. Pure chaos from a lawful guy.

Hypothesis Five: The story is not exactly as reported. Green did his online research, then called up his friend Bridgwater:

“Judge Bridgwater, I need some legal advice. I’m on this jury, and I’m scared of retaliation because I did this online research—”

“Whoa, whoa, Mr. Green. You did online research about the case?”

“Well, I googled capital murder and I—”

“Stop. You can’t serve on this jury. You have got to tell the judge on the case about this. Do it in writing.”

“How do I do that?”

“Just write a letter to the judge explaining. You can’t serve on this jury.”

“What should I say?”

“Wait a second. Who’s the defendant?”

“A guy named Amezquita.”

“I really can’t talk to you any more about this. Just tell the judge the best you can, and she’ll figure it out.”

From there, Green improvised, and brought his twelve friends in the jury in on it because if he shouldn’t have to serve then they shouldn’t have to either.

Bridgwater wouldn’t discuss the matter with Brian Rogers, which is as it should be. In court “Green revealed that he had reached out to Roger Bridgwater, a former judge and official in the Lykos administration, for advice.” Going to a lawyer (such as Bridgwater) for legal advice makes the communication privileged. Bridgwater doesn’t need to defend himself against the inference that Newman would draw, and shouldn’t.

The only other piece of information the article gives about the interaction between Green and Bridgwater is this:

On the stand, Green admitted that he wrote the letter, then testified that he did so on the advice of a family friend who happened to be a former felony court judge and top lieutenant of Pat Lykos, the former Harris County district attorney.

Trial lawyers know how often what is said on the stand only impressionistically represents what really happened. Hypothesis Five fits all of the facts as we know them, and has the added benefit of making more sense than any of the other four hypotheses. 

I’m not a Bridgwater fan but, as much as I love to report a good scandal in the Palace of Injustice  (Newman loves this story), I’m going with Hypothesis Five.

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Here’s baby lawyer Andrew DeLuca’s pitch:

It is these peo­ple that have grown tired of your eso­teric legal posts, that we as attor­neys rep­re­sent. How do you represent someone effectively when you can not connect with them? The type of perspective that is only learned by life experience or lifetimes of experience and allows us to connect with our clients fears, their hopes and their outlook on life that has been shaped by the influences and opportunities, or lack thereof, that they had growing up in much different place than you or Leo. It is my humble opinion, in the practice of criminal law or law for that matter, that it is essential to understand your client. It is only through this understanding that we will be able to effectively connect with our audience in order to advocate on our clients behalf.

It is essential to understand your client; without understanding your client you cannot tell your client’s story. There is nothing in this that is new or controversial. Lawyers have been seeking to understand their clients better to better tell their stories for as long as there have been lawyers. You don’t start approaching controversial until you tell lawyers that they should seek to empathize with everyone.

But DeLuca states the glaringly obvious as “humble opinion,” and implies* that “understanding” differentiates him from, well, guys like me. On his website he tells potential clients, “Choose a progressive law firm,[sic] that takes a fresh, unique approach to your legal needs.”

I’m glad he’s not claiming to be “aggressive” or “experienced,” but it’s interesting that DeLuca seems* to think that “understand your client” is a “fresh, unique approach” that distinguishes him from us hidebound reactionaries. 

DeLuca’s got no idea how I relate to my clients (though if he’d bothered, he might have gleaned some information—I’ve been writing about empathy in the practice of law since he was a 1L), but there’s a deeper, more systemic problem, with his attitude. 

Allow me to illustrate.

This:

is a standard-pattern 10mm wrench, about five and a quarter inches long. (A fully-polished wrench is typically a little shorter than a rough wrench like the Craftsman Industrial pictured.) There is a reason for all of this. Nobody arbitrarily picked 5.125in ±0.125in as the standard length of a 10mm combination wrench.

Say I’m a new “progressive” motorcycle mechanic. I’ve never tightened an M6 fastener on a real motorcycle before (I worked on some mock motorcycles in mechanic school, and wowed my teachers), and I’ve certainly never contemplated the reason a 10mm standard-pattern wrench is as long as it is, but I know that I know better than the older guys. So instead of buying a standard-pattern wrench like they all have in their tool boxes I buy a long-pattern 10mm wrench—if five inches is good, seven must be better—and use it to tighten every M6 fastener I find on a customer’s motorcycle.

I somehow snap the heads off of a couple of bolts. Hmm. There must have been something wrong with those bolts. I drill out their remnants from the customer’s bike, and try again, with the same results—more bad hardware! And again. Finally I start to suspect that maybe it’s not the hardware. Maybe I am overtorqueing because the wrench is too long.

But because, again, I know better than those old guys, I’m not going to use a reactionary five-and-a-quarter-inch-long wrench. This is a new age, and a bright hardworking young guy can make his own rules. I go back to the pawn shop and buy a short-pattern wrench (after all, it fits in tighter spaces, which is good), which I use to tighten up the replacement bolts. Everything seems to go great. My customer picks up his bike, and six months later dies in a crash when his front master cylinder comes loose because I undertorqued the bolts holding it.

The moral of the story? Use a torque wrench. If you don’t have a torque wrench or years of experience, stick with the standard pattern. It has evolved to its current form for a reason. The 10mm standard-pattern combination wrench is about five and a quarter inches long so that an ordinary mechanic, not wearing gloves, can apply the proper amount of torque, but not more, with ease. Fully polished wrenches, with their gently curved edges, have to be a little shorter because they are more comfortable to apply more pressure to.

The standard pattern is the standard pattern because it makes it harder to screw things up.

DeLuca has delusions of a new way of doing things; that delusion is what he’s selling to potential clients. Maybe they’re sold on it (though they’re not all staying sold). But he has no idea what the standard pattern is, nor—more importantly—why. He wants to improvise, but he doesn’t yet have technique to burn, and he doesn’t know he needs it.

DeLuca doesn’t even realize that empathy in the practice of law is not a new idea. Because he doesn’t know that, he misses out on all of the work that those who came before him did in finding better ways to connect with clients.

 

* DeLuca has a musteline way of never saying anything that he can’t disclaim; it’s all very passive-aggressive.

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(tl;dr version: Texas prosecutors think that only they know justice; they want to take power out of the hands of the community; they intend to pass an unconstitutional law and apply it unconstitutionally ex post facto to do so; and they don’t care what lies must be told to get it done.)

Texas’s capital-murder sentencing scheme provides for a choice between death and life without parole for all defendants. In the 2005 case of Roper v. Simmons the U.S. Supreme Court took the death penalty off the table for murderers who committed their crimes before age eighteen, leaving Texas with life without parole as the only punishment for someone convicted of capital murder in adult court between age ten and age seventeen.

In the 2012 case of Miller v. Alabama the U.S. Supreme Court also invalidate life without parole, leaving Texas with no permissible punishment for a seventeen-year-old (or younger) convicted of capital murder. So people who committed capital murders when they were under eighteen in Texas could only be prosecuted for murder.

The sentencing range on non-capital murder is between five years and life in prison. That life sentence carries parole eligibility (which does not mean parole) after forty years. Faced with a child who committed (which means “participated in”—he does not have to have been the trigger child) a capital murder, a jury might reasonably decide that something less than life is appropriate. (Are you a different person than you were at seventeen?)

Texas prosecutors, including Senator Joan Huffman, do not like that possibility one bit:

Texas prosecutors will be unable to convict 17-year-olds on capital murder charges for the next two years after a key criminal justice bill died in the House on Tuesday.

That means brutal killers could receive lighter sentences for their crimes, lawmakers confirmed Friday.

Prosecutors from around the state are demanding that legislative leaders fix the miscue, but there were no assurances a solution would be found before the session adjourns Monday.

“This is a big problem that needs to be fixed now,” said state Sen. Joan Huffman, R-Houston, whose bill did not pass the House before a procedural deadline. “Right now, Texas has no valid punishment for these 17-year-olds, because our current statute was overturned by the U.S. Supreme Court. I’d say that’s a problem.”

(Austin American-Statesman.)

Huffman’s bill would replace life without parole in the capital-murder sentencing statute with murder life (with the possibility of parole after forty years). What she is trying to take off the table is the jury’s discretion to take into account mitigating circumstances and sentence a child murderer to less than life.

That’s what “lighter sentences for their crimes” means: a jury, instead of the prosecutor, might decide what punishment is appropriate. Prosecutors such as Huffman don’t trust a jury to do the right thing.

Huffman said the measure would have treated 17-year-old capital murderers the same as those who are 14 to 16 years old, with a maximum penalty of life in prison without parole.

That’s the Austin American-Statesman again. Did Huffman actually read her bill? Did she read Miller? Life without parole is unconstitutional for 14-, 15-, or 16-year-olds as well as seventeen-year-olds. Her bill—Senate Bill 187—would impose a mandatory (not “maximum”) sentence of life with (not “without”) parole on child murderers.

But Miller v. Alabama didn’t just say “no life without parole for murderers under age eighteen.” It said:

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.

That is, what was missing from Alabama’s juvenile-capital-murder sentencing scheme was not the possibility of parole, but the opportunity for the sentencing authority to consider mitigating circumstances. Senate Bill 187, which still doesn’t give the sentencer the opportunity to consider mitigating circumstances, still fails this test.

Back to the American-Statesman story:

Without the bill, Huffman and other lawmakers said, 17-year-olds can probably be charged with only murder — rather than capital murder — and face a maximum life sentence, under which they are eligible for parole in 40 years.

With the bill, 17-year-olds face the same maximum.

Prosecutors implored legislative leaders to fix the mistake. In a letter, they asked Gov. Rick Perry to add the fix to the agenda of an expected special session, seen as likely to begin soon after the regular session ends.

Crime victims’ groups also demanded action. “This is a no-brainer. You have four days. Fix it!” was the message of Cam Furman, a Houston advocate for crime victims.

Why the urgency? I don’t know what the annual numbers are like, statewide, for children convicted of capital murder in adult court for murders convicted before age eighteen, but I suspect it’s in the single digits.

(This, by the way, is an example of victimocracy, in which victims’ opinion is treated as more important than other people’s.)

The number of 17-year-olds accused or convicted of murder could not immediately be determined.

In Houston, which historically has the state’s highest conviction rate for capital murder, Anderson said there are 12 youths awaiting trial or sentencing who are in legal limbo because of a lack of a sentence for the crime.

That may be so, but Westlaw shows ten appeals of capital murder convictions by seventeen-year-olds in the last twenty-five years, and three since Roper v. Simmons in 2005. This is probably a fair representation of the total number of capital life-without-parole sentences for juveniles in the last eight years, since a juvenile sentenced to life without parole would have every reason to appeal. (Anderson’s number may include many who will never be sentenced for capital murder, regardless of the statutory penalty.)

“Dozens of capital murder suspects who were 17 years old at the time of their alleged crime are still awaiting trial for an offense with no punishment, and other convicted capital murderers are now appealing their life-without-parole sentences” due to the Supreme Court decision, states the letter to Perry from Harris County District Attorney Mike Anderson.

“The problem in these cases is that the courts have no permissible sentence to impose until the Texas Legislature creates one.”

The letter was signed by 18 other prosecutors, including Hays County Chief Criminal District Attorney Sherri Tibbe and Bell County District Attorney Henry Garza. Neither could be reached for comment.

As I understand the argument, SB 187 is supposed to solve this problem ex post facto. Here’s what the bill says:

The change in law made by this Act: (1) applies to a criminal action pending, on appeal, or commenced on or after the effective date of this Act, regardless of whether the criminal action is based on an offense committed before, on, or after that date….

Does it violate the Ex Post Facto Clause? When the “dozens” of capital murder suspects committed their crimes, the only legal punishment range was five years to life. Anderson and his cohorts want to change that range, retroactively, to automatic life. How does that not violate the constitution?

The American-Statesman again:

“Prosecutors and crime victims throughout the state are in the same situation as they await justice in their cases, some of which involve police officers killed in the line of duty or multiple homicides committed by the same offender,” Anderson said. “The only recourse for prosecutors around the state is to try (or retry) these offenders for lesser offenses with punishments of as little as five years in prison.

“The deceased victims are left without justice in those cases — and those victims’ surviving family members will continue to suffer — until the Legislature sends you a bill to remedy this problem.”

The unstated premise underlying the prosecutors’ argument: only a prosecutor, and not a jury, can decide what justice is. This is nonsense, of course. Twelve members of the community are a much better arbiter of justice than a single bureaucrat. If a jury would give someone five years in prison for a murder, that person shouldn’t be doing life, either with or without parole. (That’s the central point of Miller v. Alabama, which Huffman and Anderson would prefer to ignore.)

I’m indebted to the Twitter account of the Texas District and County Attorneys Association, @TDCAA, for calling the bullshit-ridden Austin American-Statesman article to my attention via Twitter:

Even more, though, I thank them for the tweet that followed:

“We’re so desperate for attention to this issue, we’ll forgive the two legal errors.”

I’m not sure which two legal errors they’re referring to; take your pick. What’s important is that the Texas District and County Attorneys Association so desperately wants to keep out of the hands of the people the power to decide what sentence is appropriate that the truth doesn’t matter to them.

If you don’t know many prosecutors, that might surprise you.

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Alan Dershowitz says that Lois Lerner can be held in contempt for taking the Fifth in response to questions asked by Congress after making prefatory comments about the same subject matter:

“You can’t simply make statements about a subject and then plead the Fifth in response to questions about the very same subject,” the renowned Harvard Law professor said.

“Once you open the door to an area of inquiry, you have waived your Fifth Amendment right … you’ve waived your self-incrimination right on that subject matter.”

Scott Greenfield says he reluctantly agrees with Dershowitz.

Much as I am of the view that the sweep of the Fifth should be broad in order to fulfill its purpose, I am also of the view that once a witness offers denials to particulars, she opens herself to being questioned on what particulars she’s denying.  Which rules and regs is she referring to? What about this statement? What about that? Isn’t it true that you said.…  Well, that’s how examination happens sometimes.

Dershowitz is wrong, and Greenfield has missed the point (as has Volokh*). When subpoenaed to testify before Congress, you can simply make statements about a subject and then plead the Fifth in response to questions, and there’s not a damn thing Congress can do to you. Whether Lerner has waived her privilege by making statements is entirely irrelevant to what happens next.

Congress has delegated to the courts the power to punish people for contempt of Congress. There is actually a statute, 2 USC 192, governing a person’s refusal to answer pertinent questions, as well as caselaw:

Our view that a clear disposition of the witness’ objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations. In this country the tradition has been uniformly recognized in the procedure of both state and federal courts. It is further reflected in the practice of congressional committees prior to the enactment of s 192 in 1857; a specific direction to answer was the means then used to apprise a witness of the overruling of his objection. Against this background s 192 became law. No relaxation of the safeguards afforded a witness was contemplated by its sponsors. In explaining the bill in the House, Congressman Davis expressly stated that committee powers were not increased, that no added burden was placed upon the witness and that a ‘mere substitution’ of a judicial proceeding for punishment at the bar of Congress was intended. The reason for enacting s 192 went to the punishment and not the offense. It was recognized that the power of Congress to deal with a contemnor by its own processes did not extend beyond the life of any session.  By making contempt of Congress a crime, a fixed term of imprisonment was substituted for variable periods of congressional custody dependent upon the fortuity of whether the contemnor had been called to testify near the beginning or the end of a session. But there is nothing to indicate that this change in the mode of punishment affected in any way the well-established elements of contempt of Congress. Since the enactment of s 192, the practice of specifically directing a recalcitrant witness to answer has continued to prevail.

Quinn v. United States, 349 U.S. 155, 167–69 (1955).

Before Lerner can be held in contempt for taking the Fifth, Congress must direct her to answer despite her objection. (Just like court, or a grand jury.) (It appears that someone has explained the law to Representative Darrell Issa, who intends to recall Lerner and, I suspect, specifically direct the recalcitrant witness to answer.)

The selective invocation of the Fifth, discussed by Greenfield and Dershowitz and others, is a red herring. If I am a witness in court, before a grand jury, or before Congress, I get to decide whether to take the Fifth. I don’t have to show good faith and nobody can second-guess me. “I take the Fifth” is a magic phrase with legal power. It might be nice for AUSAs to pretend that I can only take the Fifth in response to questions that, as Greenfield says, have a “good faith potential to incriminate,” but it’s a fantasy. As a matter of fact, as a witness I can take the Fifth for any reason or none at all.

Observe:

• If I refuse to answer a question on grounds of my Fifth-Amendment privilege and a court does not order me (or Congress does not direct me) to answer the question, I cannot be held in contempt or otherwise punished.
• If I refuse to answer a question on grounds of my Fifth-Amendment privilege, a court orders me (or Congress directs me) to answer the question, and I do not answer the question, I can be held in contempt of Congress or the court.
• If I refuse to answer a question on grounds of my Fifth-Amendment privilege, a court orders me (or Congress directs me) to answer the question, and I answer the question, I cannot be held in contempt or otherwise punished for taking the Fifth.

As a practical matter, I can take the Fifth in response to any question (“what color tie am I wearing?”). If someone asks me to justify taking the Fifth, I can take the Fifth. until I am ordered to answer, I cannot be punished for taking the Fifth.

If I am ordered (or directed by Congress) to answer the question and I answer the question, I have effectively been given use immunity for that answer. Why? Because the answer is compelled—I had to choose between answering and being punished—and compelled testimony cannot be used against me.

Can Lerner be “questioned on what particulars she’s denying”? Sure she can. And in response to questioning she can take the Fifth. 

Whether Lerner can be—or is—ordered to answer a particular question does not depend on whether she has “opened the door” or offered denials to particulars; it doesn’t depend on whether she had a good-faith reason for taking the Fifth; it doesn’t depend on whether she has “waived” the privilege. It depends only on whether the court or the Congress is willing to immunize her to get an answer.

(If Dershowitz were right, and Lerner could be held in contempt for simply taking the Fifth, all testimony before Congress would be compelled by Section 192, and therefore would be effectively compelled and legally immunized.)

Look for Issa to recall Lerner, for him to ask her a question, for her to take the Fifth, and for him to direct her to answer the question. At that point, if she answers her answer cannot be used against her. If she does not answer, she can be prosecuted (2 USC 194 requires Congress to refer the case to a U.S. Attorney to take before a grand jury) for the misdemeanor contempt of Congress (she gets a jury trial, since she could be imprisoned for more than six months). If she refuses to answer after being directed, though, Issa won’t stop there. She and Issa will repeat the routine with every question he wants to ask, each of which is prosecutable as a separate offense.

The pundits have made much of the advice that Lerner’s lawyer gave her. Here’s Greenfield:

No doubt her lawyer, William Taylor III, thought long and hard about her opening statement, how far it should go, how far it can go, before Lerner took one step too far.  It’s not an easy decision, given that there is no clear line.  Some might have counseled Lois Lerner not to step anywhere near the line so that there would be no question of waiver.  Some might push the envelope, allowing her to toe the line as closely as he thought possible.  And when the second option is chosen, maybe a toe goes over the line.

And here’s Dershowitz

He said the fact that Lerner went ahead with her proclamation of could be considered malpractice on the part of her attorney — although it’s possible she overruled the advice she received.

“It should never have been allowed. She should have been told by her attorney that the law is clear, that once you open up an area of inquiry for interrogation, you have to respond,” he said.

I’m no pundit, just a humble trench lawyer, but in Taylor’s tasseled loafers I might have advised Lerner to do exactly what she did: put your innocence on the record, and then take the Fifth. The worst that can happen is that you get directed to answer, and then we have to decide whether you do so (with immunity) or risk going to jail. In the meantime, maybe something shiny catches Darrell Issa’s eye and he moves on to something else.

In fact, as a courtroom lawyer I disagree outright with Dershowitz’s suggestion (has the man ever had to make a living thinking on his feet?) that advice to do what Lerner did might be considered malpractice. To the contrary, allowing her to answer the committee’s questions without being compelled would have been the malpractice: if she had done so, the answers might in the future be used against her in a criminal prosecution in ways that he cannot now foresee. But advising her to take the Fifth, he ensures that this will not be the case.

(Yes, I’ve written about this time after time after time after time; I’m the Johnny Appleseed of the Fifth Amendment.)

*Volokh and Greenfield quote dicta (that is, language not necessary to the decision) from Mitchell v. United States for the proposition that a witness cannot selectively take the Fifth. The dicta are based on: a) Rogers v. U.S., in which the witness took the Fifth only as an afterthought after she was dragged before a judge for refusing to answer for other stated reasons; and b) Brown v. U.S., in which the witness was held in contempt for refusing to answer questions even after a judge ordered her to.

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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.

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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.

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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.

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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.)