Mark's Blog: Defending People

the tao of criminal defense trial lawyering

URL: http://bennettandbennett.com/blog

Updated: 46 min 24 sec ago

Three Years

Fri, 03/19/2010 - 00:01

Today begins my fourth year of writing Defending People. It all started on March 19, 2007 with Introduction. Since then I’ve written 1,325 posts and published over 6,000 comments. I’ve had about 429,065 unique visitors, and received enough positive feedback to keep me both blogging and humble.

Thank you for reading Defending People. Without you I’d be muttering to myself.

Copyright © 2009 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, and was probably stolen by Wayne Conley. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e.)

John Coby Writes Blog Post With Words “Gay Nigger”

Thu, 03/18/2010 - 22:43

Someone using John Coby’s email address and a link to his blog tried to leave the following comment to this post:
Your article is a bit too long for a blog entry. I couldnt finish it.

I emailed Coby to ask if it was actually him leaving this moronic comment. He did not respond. Judging, however, from recent content on his blog, I suspect that this comment is reflective of his thought processes.

Coby wrote a post last Friday about Judge Larry Standley’s speech to Clear Springs High School students entitled Harris County Republican Judge Larry Standley Caught DWI. The punchline:
When asked for a comment Standley replied with slurred speech, incoherent rants, a rather graphic reference to someones mother, and passed gas while falling off his high horse.

Not that funny, but okay—about what we expect from a mindless political hack from either party.

The following Tuesday he acknowledged that It Wasn’t That Funny:
Our Courts need a huge dose of balance, but not at the expense of those who are concerned about making a difference instead of making a headline. A family will never understand how important our Judges are until they are in front of one that is willing to take the time to try to save their kid from a life of crime while upholding the law. From what [criminal defense lawyer and thinking Democrat David Jones] told me, Standley is one of these judges.

Fair enough. Mindless political hack screws up, attacks compassionate criminal court judge for no other reason than that he is a Republican, realizes that said judge is in fact one of the good guys, and apologizes. Good for him.

But not good enough. Yesterday, he posted Upon Further Review, I Apologize for my Apology. Because of some “disturbing” texts he got, he decided:
So, my apology was a bit premature. Standley has been on the bench for over 10 years. It wouldn’t hurt if we had some new blood in that seat. Let’s thank him for his service, and move on.

In 2008, expecting either a Republican or a Democratic sweep in the courthouse, I pulled for a Democratic sweep. (Surprisingly, we didn’t quite get it.) Even while pulling for a sweep, however, I noted that there were at least a couple of Republican candidates who should be judges.

The truth is that judges shouldn’t be elected in partisan elections. When you let the local parties choose the judges, you tend to get lousy judges (we did dodge a few bullets in the recent primaries—Wood, Law, and Oliver, to name three). That’s because most party hacks, like John Coby, don’t know diddly-squat about the criminal courthouse or what makes a good judge.

Let’s take Coby’s “disturbing” texts from the bottom up:
He sentenced a guy to yoga for abusing his wife!

That’s not really true. The prosecution and the defense agreed to put the defendant on probation; Judge Standley followed that recommendation. As long as they don’t conflict with the parties’ agreement, the judge can set conditions of probation. Judge Standley added a weekly yoga class as a condition of the defendant’s probation. He had the defendant do more than the parties had agreed, because he thought it might help the defendant remain calm in the face of his lack of control over others. This is not a reason to remove Judge Standley from the bench, it’s a reason to keep him. Even the defendant’s wife—the complainant in the case—thought it was a good idea.
This guys is an idiot!

That’s a self-referential text if I’ve ever seen one.
Either move your car or I will tow it.

I guess that’s an example of Coby’s self-proclaimed “wit.”
His own party has asked him to step down!

If Coby were a thinking man, the fact that the Republican Party apparatus doesn’t like a judge might be a factor in that judge’s favor. But no:
When the Harris County Republican Party asks one of their own members to step down they must have done something pretty damn bad, or they are not donating enough money to the party.

Okay . . . there is a disjunctive there. But are those the only two possibilities? Really? It couldn’t be that Jared Woodfill is simply an idiot who is looking for any distraction from his incompetent leadership of the Harris County Republican Party?
Where is my $50?

More “wit,” John?
He sent out emails with the words “Gay Nigger”

Guess what, John: you just posted a blog post with the same words. (And, oops, so did I, but I’m not throwing stones.) What’s that you say? Context is important? Okay: That email was more than three years ago, and is blown out of proportion every time it is dredged back up.
Have you googled this guy?

Well, that doesn’t turn up much negative other than the “gay niggers” email. On the “good, compassionate, creative judge” side of the equation along with the yoga condition of probation, however, it reveals Judge hopes serial killer’s words will scare prostitutes straight and, if you move on to page 2, this post about his plea colloquy with young defendants.

Coby got it right on Tuesday when he wrote that Judge Larry Standley is a judge who is “concerned about making a difference instead of making a headline.” Judge Standley is about the only judge in the courthouse who is “willing to take the time to try to save a kid from a life of crime while upholding the law.”

Unfortunately, as a mindless political hack Coby can’t bring himself to say something nice about a judge from the opposing party, even when that judge is the best in the courthouse.

What is the Code for Lawyer?

Thu, 03/18/2010 - 21:37

I recently read Clotaire Rapaille’s The Culture Code. Rapaille is a marketing researcher who “is an internationally known expert in Archetype Discoveries,” which is a field of study that he invented. In The Culture Code Rapaille discusses some of the results of his research into “the unconscious meaning we apply to any given thing—a car, a type of food, a relationship, even a country—via the culture in which we are raised.” A Code, in Rapaille’s argot, is the archetype imprinted on members of a culture in connection with such a thing.

In America, for example, the Code for Jeep is HORSE. In France and Germany, the Code for Jeep is LIBERATOR. In America, the Code for America is DREAM; in France the Code for America is SPACE TRAVELER; in Germany the Code for America is JOHN WAYNE.

Marketing is effective when it takes into account the Code for the thing being marketed. When America stops behaving like John Wayne (as, for example, when it shoots first), Germans’ opinion of America falls. Jeeps with rectangular headlamps don’t sell like Jeeps with round HORSE-like headlamps. Restaurants that treat food as FUEL (America’s Code for food) sell more food.

Connection to trial lawyering: we are trying to convince the jury that our clients’ behavior was on-Code, and that the other guy’s was off-Code (the basis of the Reptile trial: defendants’ off-Code behavior).

On Monday Miami criminal defense lawyer Brian Tannebaum brought us North Carolina divorce lawyer Lee Rosen’s question, Why Do Some Crappy Lawyers Have Happy Clients?

Lee’s answer, which Brian endorses:
She does things that make it clear that she cares about her clients.
She rants and raves in court, like a maniac, on behalf of her clients.
She crosses over every line and gets personally involved with her
clients. She laughs with her clients, she cries with her clients. She
returns calls, she calls at night, she stays on the phone forever. She
loves her clients and it shows. She knows it and her clients know it.
She’d do anything to help them. They are her friends.

(I’m sure there’s something to this—maybe some clients aren’t able to tell, if their lawyers don’t engage in bizarre and boundariless behavior, that their lawyers care about them.)

Mike at Crime & Federalism sees the crappy lawyer’s behavior as tapping into the client’s narcissism for profit. (When you put it that way, it sounds cynical and of questionable morality.)

New York criminal defense lawyer Scott Greenfield writes, of Lee’s crappy lawyer:
So the lawyer meets the client’s criteria for wonderful, even though
she fails to demonstrate competence from every other metric. That’s because clients don’t know better. Notably, many of the things the
lawyer does, and the client loves, are the sorts of things that no
competent lawyer would ever do, such as ranting and raving in court
like a maniac, at the expense of credibility before the court. Forget
that “communications skill” pap, clients love it when the lawyer is
their lunatic, saying and doing all the things that enable the client’s
catharsis. Which leads inexorably to the bottom line.

(I want to hear from Dan Hull on this. If the practice of law is all about clients, if the client is the main event, isn’t the crappy lawyer with ecstatic clients doing her job?)

Incompetent people shouldn’t be practicing law, whether their clients are ecstatic or not. If I had to choose between competency and caring, I would choose competency. Fortunately, though, competency and caring are not mutually exclusive. In fact, for lawyers who represent human beings, both are obligatory.

Knowing the Code for criminal defense lawyers might help us better understand the success of the crappy BFF lawyer. Or, since the process for determining the Code for a thing is patented by Rapaille, the success of crappy lawyers might give us some insight into the Code for lawyers.

(While the Code for a thing predominates in that culture’s treatment of the thing, not everyone in the culture shares the Code. American foodies, for example, don’t share the food-as-FUEL metaphor.)

What might the predominant American Code for lawyers be?

The success of Lee’s incompetent BFF is consistent, of course, with the Code for lawyer being FRIEND. Friends are available at all hours of the day and night, and will do anything for you.

The IBFF’s success is also consistent with the Code for lawyer being FIGHTER. Many clients—especially those in criminal cases—have never had anyone fight for them. In the ordinary course of a case—criminal, civil, family, whatever—there are limited opportunities (almost none in the first stages of the case) for the lawyer to show the client her dedication by fighting for him publicly. By ranting and raving inappropriately in court, the IBFF is creating opportunities to demonstrate that she fights for her client, even where the more productive approach (as far as a successful resolution of the case is concerned) is more low-key. (Lawyers who describe themselves as “aggressive” might be tapping into this Code.)

FRIEND and FIGHTER would be benign codes. I suspect, bearing in mind portrayals of lawyers in popular culture, and the response that most non-lawyers have to lawyers, that the Code for lawyer most deeply ingrained in American culture is something more insidious.

While lawyers like to say that they would do anything for their clients, what they mean is that they would do anything, within legal, ethical, and moral boundaries, for their clients. The IBFF demonstrates that she has few boundaries; she would “do anything” to help her clients. This is not consistent with lawyers’ ethical duties and responsibilities to others, but it is on-Code if the American culture’s Code for lawyers is CHEATERS.

Why is the Trial Lawyers College Afraid of these Three Women? [Updated]

Mon, 03/15/2010 - 21:34

Three really smart creative empathetic lawyers—Joane Garcia-Colson, Mary Peckham, and Fredilyn Sison—are directing a four-day Trial Boot Camp in Palm Springs, California from May 13 to May 16, 2010. Tuition is $750. I know these women well from the Trial Lawyers College and psychodrama workshops, and I recommend their boot camp highly to women trial lawyers. (I would attend, but I am short on X chromosomes.)

Joane, Mary, and Fredi are great teachers. They are, as Trial Lawyers College (“TLC Inc.”) President Jude Basile admits, “splendid people and magnificent warriors.”

Most importantly, until the beginning of February, Mary and Fredi were part of the Trial Lawyers College staff (Norm Pattis, former staff himself, describes the way things work). Then Mary was simply not invited back to staff training. Fredi was explicitly told by Jude that she was being removed from staff because of her association with Joane and the Trial Boot Camp, which TLC Inc. saw as “competition” for TLC.

What greater praise for a lawyer training program than that Gerry Spence’s Trial Lawyer’s College is trying to suppress it?

It is mildly ironic that, when she was the Executive Director of the Trial Lawyers College, Joane herself was the enforcer of brand purity for Gerry Spence (himself the past president of TLC Inc.); greater ironies, however, abound. For example, TLC talks a good anti-institution (antigovernment, anticorporate) game, but it is run by a corporation. Norm again:

In spite of the college’s railing against corporate America, its behavior is typical of corporate culture. A new CEO has been appointed by a closely-held board — no elections in this populist heaven. Those perceived as unwilling to kiss the new emperor’s ring will be shown the door. Nothing suprising here. It might just as well be Chrysler as TLC.

If you ask an alumna of the Trial Lawyers College whether TLC staff should be free to associate with each other without being ostracized by organizations to which they belong, she will undoubtedly vociferously approve the proposition. Ask her if she would belong to an organization that only permitted members who associated with the “right” people, and you’ll get an indignant “no.” Treating human beings well and allowing them to associate with whom they want are core values of the TLC community. Teaching others how to be better lawyers is also a core value, as is fighting institutional power. (Before I went to TLC in ‘99 I hadn’t given much thought to how corporations are so like governments.)

But point out to TLC alumni that TLC Inc. is violating TLC’s core values—that TLC Inc. is exercising its institutional power punishing people for their association with other TLC alumni and for teaching others to be better lawyers—and most of them remain curiously silent.

Suggest, where TLC alumni gather, that this not only is true but also should be wholly unsurprising—that TLC Inc. is an institution, and institutional goals override all else—and you might as well be the insolent child suggesting that the emperor is buck naked when everybody knows he dresses splendidly.

There is a TLC alumni organization: the F Warriors (another corporation). There are some 800+ graduates of the Trial Lawyers College’s three-to-five week program at Thunderhead Ranch in Dubois, Wyoming and the new “Seven-Step” program. These are represented, nominally, by the F Warriors Board. (I say “nominally” because, historically, the F Warriors Board’s overriding institutional goal has been promotion of TLC Inc.)

In this instance, the F Warriors Board took the drastic step (for it) of asking TLC Inc. seven simple questions:

Were Mary, Fredi, or Carl Bettinger removed from staff because of their association with Joane?
Were any of them removed from staff because of non-TLC training programs they are organizing?
In October the President of TLC told the alumni in Dallas that “off the board” did not mean “out as staff.” What changed between October and January with regard to those three teachers?
Does the TLC Board have a policy with regard to the freedom of TLC staff to associate?
What is that policy?
Does the TLC Board have a policy with regard to TLC staff organizing and teaching other programs for trial lawyers?
What is that policy?

The alumni (through the F Warriors Board) got no response from TLC Inc.

That silence may be the clearest answer we could get: “you people aren’t worthy of a response.” Did this answer affect the F Warriors Board? Not at all. The leaders of the alumni organization (hand-picked by the College for years, but now elected by the alumni) are okay with the way TLC Inc. treats TLC alumni. They wish we could all just get along, and the burden is on the alumni to make that happen.

The F Warriors Board rationalizes its meek acceptance of TLC Inc.’s treatment of our fellow alumni with a little bit of Brutus—”All of the people involved here are honorable”—and a whole lot of battered wife—”TLC has given us many wonderful gifts.” (Yes, and I’m sure TLC Inc. didn’t mean to mistreat Mary, Fredi, and Carl, is sorry, loves you very much, and won’t do it again.)

It’s striking how many TLC alumni—”warriors” who earn their keep speaking publicly for unpopular causes—are discontent but unwilling to say anything against TLC Inc. publicly or even among other TLC alumni. Fortunately for the future of TLC (for it can’t exist without dissent) TLC alumni are prominent in the blawgosphere: Joane, Norm, Jon Katz, David Tarrell, Paul Smith (writing here about TLC without naming it), Chuck Peterson, Remy Orozco, Bobby Frederick, F Warriors Board member J.R. Clary, Jr.; most haven’t commented adversely on TLC Inc., but some have, and the commenters who agree (as here and here) are conspicuous in their anonymity. One suspects that, despite their disenchantment with what they once believed to be Camelot, they are unwilling to risk losing whatever love they get from their association with TLC.

Others might suggest—indeed, others have said—that TLC graduates’ unwillingness to criticize the College is symptomatic of the institution’s status as a cult. I don’t think that TLC is a cult. Naturally, having dedicated some time and energy to TLC, I don’t want to think of TLC as a cult—but as I often tell my clients, what we want to believe doesn’t affect what’s true.

I would say that only 10 of the 15 “cult characteristics” here even arguably apply to TLC’s relationship with a select few TLC graduates. Maybe 10 out of 15 would be enough to make TLC a cult, with regard to those few graduates. Really, though, it doesn’t matter: an organization of trial lawyers who are afraid to speak the truth, even if it is not a cult, is too sick to survive.

TLC is at a crossroads, trying to find a way to survive after Gerry Spence dies. It could choose the path of institutionalization, or it could choose the open-source path. The firing of the Fredi, Mary, and Carl, and the attempted suppression of the Trial Boot Camp, is emblematic of the direction TLC has chosen: institutional control over individual creativity.

I have tried in private—on the TLC listserv, among a few who vocally agree with me, many who silently agree with me, and many more for whom TLC Inc. can do no wrong—to try to make a difference to the direction the College takes. But I am just one guy, and my vision is not broadly shared.

I learned a great deal at TLC, and I use daily what I learned there and what I built upon what I learned there. But I have no confidence in the institution. Either TLC was always hypocritical about its principles, or TLC has changed since I attended. Either way, what is being sold is not what was once advertised.

[Update: In Joane's open forum, more anonymous TLC dissenters are heard from. (Shhhh! Before he gets back!)

Norm Pattis publishes Fredi Sison's letter to the TLC Inc. Board after she was let go.]

Two New Blogs

Sun, 03/14/2010 - 15:47

Two blogs recently added to the blogroll:

Liberty and Justice for Y’all—Texas criminal law mostly-anonymous (except for front man B.W. Barnett) group blog. They are writing for a Texas-criminal-law-savvy audience so far, but they’re just getting warmed up.

Trial Theory—Trial practice group blog. TLC grads Bobby Frederick (of the South Carolina Criminal Defense Blog), Paul J. Smith (of the Life and Times of a Texas Country Trial Lawyer Blog), Karl Dickhaus (get Karl to tell you about his last two years), and apparently six or seven others.

Check them out and give them some comment love.

Jamie Spencer (of the Austin Criminal Defense Lawyer Blog) is also starting a group blog, Affirmative Links; with posts like January’s riveting “Hello world!” and last month’s compelling “Here is a second test post,” it’s a real page-turner.

(Greenfield asks “why Texas seems to remain that place where criminal law blawgs flourish, far more so than anywhere else in the country. More executions, more blawgs? More craziness, more blawgs? You would think that Maricopa County would have more blawgs per capita than anywhere else, if that was the case.”)

Students’ Responses to Judge Standley’s Talk

Sun, 03/14/2010 - 15:02

Clear Springs High School students’ responses to the folderol surrounding Judge Standley’s talk at their school last week (from Facebook):
Mickey Carr
These are some of my friend’s replies (from clear springs students) when I asked what had happened and from other friend’s status updates as well, I didn’t put their name up here, but once again I hope these offer a little comfort.

“This whole thing is RIDICULOUS. he didn’t say it was “ok to do drugs as long as we didn’t get caught.” what he was really saying was he knows that he can’t stop us no matter what adults tell us not to do because we are bound to experiment because we are teenagers, but we must know the consequences and the severity of the damage we could cause.

i think a lot of people are just being immature about this whole thing. it just takes one person to blow shit out of proportion. you really think a JUDGE would say it’s “ok” to do drugs at an assembly for MADD?

come on now. jeez.”

“i think this whole thing is a misinterpretation. he wasn’t asking our favorite drugs or cigar flavors. a lot of his questions were rhetorical. its sad that not everyone understood that. and the drug screening was just a joke. if anything it couldn’t be mandatory because a parent’s consent would be needed, or it would be mandatory if that person was suspected of being on drugs. a lot of what was said has been twisted, no, mangled into something else.”

“Yeah, this whole thing is bs:
everyone needs to grow some balls b/c we hear worse things from people at school everyday. If you couldn’t handle that, then you can’t handle hs and college. Darn a judge for speaking the truth.”

” I knw right, they r makin a big deal bout nuthin. n all dat bull bout him offendin ppl is stupid cause they hear da same crap @ skool!”

“I thought the whole thing is ridiculous myself: if he wasn’t a judge, but a
former druggie or somehing, all this shit wouldn’t have happened”

“I think the judge thing is being blown out of porportion and ppl need to lay off im pretty sure he is suffering enough thanks to being put on t.v. After hearing both sides of the story i feel so bad for him he was only trying help us understand”

window.confirm(“You are submitting information to an external page.\nAre
you sure?”);’>
7 hours ago

Lauren Ashley Cramer She’s right I go to Springs as well…I was in the audience when he spoke…At first I thought it was weird that a JUDGE was telling us he had done all of those things and then that he a driven drunk but not gotten caught…I thought it was a strange message to send to a whole bunch of teenagers…but he was right…and HE ASKED them what their favorite type of weed was they had a CHOICE to answer…he was talking to us and treating us like adults which i appreciate a lot…our school was trying to “protect” us from the “bad” things in life…The fact that it was aired on ABC was really rude and I don’t think it should have been…and I have several friends who agree…once again the news only showed one side of the story and i’m sorry it was taken the way it was…

The students seem to have a much better handle on the situation than MADD or the media.

Maybe the school district should focus on something other than pretending its students aren’t going to drink or smoke marijuana . . . something like . . . I dunno . . . bear with me here . . . just brainstorming . . . something like teaching its students how to write?

Subpoenaing Out-Of-State Witnesses

Fri, 03/12/2010 - 18:15

Somehow I seem to have become the go-to guy for out-of-state lawyers trying to get Harris County witnesses subpoenaed to trial out-of-state. This is sort of a see-one-do-one-teach-one procedure, and I’ve done five, so it’s time for me to pass on what I know.

The procedure is contained in the Uniform Act to Secure Attendance of Witnesses from Without State. According to California lawyer Robert Scofield, the Act has been adopted by every state but North Dakota, and by the District of Columbia and the Virgin Islands. North Dakota Century Code 31-03-25 through -31, however (PDF), looks substantially the same as the Act (one of North Dakota’s twelve lawyers can perhaps confirm my impression).

In Texas, the Act is codified at Code of Criminal Procedure Article 24.28.

Summoning a witness from, say, Texas to Nebraska is a six-part procedure:

Lawyer in Nebraska gets a Certification from Nebraska judge “that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this State is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days.”
Lawyer in Nebraska sends Certification to lawyer in Texas.
Lawyer in Texas gets Texas court to issue an Order of Appearance at hearing. (Here’s a sample motion asking the Texas court to do so.)
Lawyer in Texas gets witness served with Order of Appearance.
At hearing, Texas judge determines whether the witness is material and necessary (an issue that should be resolved by the Nebraska judge’s Certification), whether it will cause undue hardship to the witness to be compelled to attend and testify in Nebraska, and whether the laws of Nebraska give the witness protection from arrest and the service of process. If he is, it won’t, and they do, the judge issues a Summons directing the witness to attend and testify in the court in Nebraska.
The Nebraska lawyer pays for the witness’s travel and lodging expenses.

It’s not complicated at all. In Harris County, the District Clerk now drafts the Order of Appearance and the Summons. He doesn’t do it quite the way I would, but it seems to work. I’ve included links to PDFs of the documents I drew up in case your clerk isn’t as proactive as ours.

Judge Standley and the MADDing Crowd

Thu, 03/11/2010 - 15:54

Defending People readers know that I am not fond of MADD. There are huge opportunity costs and unintended consequences inherent in a single-issue advocacy organization having the political power that MADD has.

Now, using a little bit of that stick to bring a county criminal court judge in to talk to high school juniors about driving while intoxicated is a great idea. Such a judge sees hundreds of 17- and 18-year-olds a year in his courtroom because of DWI charges, among other things. He might be expected to talk straight with he students about the very real damage done by alcohol and drugs. And, indeed, it seems that even MADD didn’t have the arrogance to expect him to say what they wanted:
“It’s very difficult,” said MADD Southeast Region Executive Director Bridget Anderson [who wasn't there for the talk]. “A judge has their own views and they talk as they choose. We can’t monitor and script them on what they say.”

Damn straight.

Channel 13 relates, however, that “what was said” by Judge Larry Standley (one of my favorite judges) in his talk to Clear Springs High School juniors “has students and Mothers Against Drunk Driving angry.” I guess we’ll have to take Channel 13’s word for MADD’s reaction since Anderson’s words don’t match Channel 13’s characterization.

What were the words that allegedly made MADD mad? According to one anonymous student:
He started going on about how he’s done plenty of things before, weed and what not . . . . How he’s drove drunk and never got caught. He then started asking us to raise our hands if we’ve ever smoked week or done bars. First of all, our student body finds it offensive that he stereotypes us as drunks when we’re only 16 or 17. I find it quite offensive.

That’s the best you can do, Channel 2? At least Channel 13 was able to find a student offended enough to go on camera and ascribe her indignation to the rest of her class:

All I knew was someone was going to be talking to us about drunk driving . . . . I think his first question was, “Who in here smokes marijuana?” . . . . He said that drunk driving was bad and that he’s done it once before, but didn’t get caught . . . . . It offended me when he stated the fact that most of us kids were going to go out and get drunk during spring break, to just not do it while we were driving.

Let me dispense first with the self-righteous teenagers (is that redundant?): if the shoe fits, wear it. You might not smoke weed. You might not drink. (You might, on the other hand, be putting on a big show for your parents, but I hope for your sake that you aren’t—drugs, including alcohol, are really bad for a developing brain.)

But Judge Standley wasn’t directing his comments only at you. Not all of your classmates are pristine. Some people in your class smoke marijuana, do bars (xanax) and drink alcohol. It’s safe to say that in the last year more than 20% of your classmates have smoked marijuana and more than half of them have drunk alcohol.

“Most” might be a little hyperbolic, but get off your high horse: if they drank alcohol in the last year, it’s not a huge stretch to think they will drink alcohol next week. And if Judge Standley’s straight talk makes an impression on even one of your 500+ classmates and keeps him from getting behind the steering wheel after drinking, it’ll have been worthwhile. Your so readily taking offense reflects poorly on your sense of your own importance.

Which brings us to the grownups. According to Channel 2:
Clear Creek Independent School District officials said the talk was too much.

“Judge Standley’s comments and remarks were not in line with the district’s policy on drug and alcohol abuse … and it certainly doesn’t reflect the opinions of the students,” the district said in a statement.

Here’s a news flash from a lawyer who has represented lots of kids in alcohol- and drug-related cases: your policy on drug and alcohol will not stop kids from drinking. The NIDA statistics I linked to above are a better gauge of student opinion than whatever they’re telling the school district. 30% of your juniors and 43% of your seniors have used alcohol in the last month.

There are two approaches to kids and temptations. MADD, Clear Creek Independent School District, and most of society take the abstinence approach: tell teenagers not to drink / smoke weed / whatever, and pretend that they are going to comply.

Judge Standley takes the realistic approach: encourage teenagers not to drink / smoke weed / whatever, assume that they are probably going to do it anyway, and try to mitigate the damage.

The comments on the Channel 13 news story are telling. For example:
I am also a student at Clear Springs High School. I belive that this judge was unlike the MADD association in that he was not completely nieve, he knows as well as we do that most of the poeple in our grade level WILL smoke weed and WILL get drink alcohol. He gave us enough respect to be honest with how he felt on the situation and made it very clear to NOT find ourselves behind the wheel while intoxicated. Parents, get over it . . . .

and
I am a student at Katy High School and i can tell you that if the judge talked to the students in the manner that parents and MADD expected, students wouldnt pay attention and just talk. I would do it. If a government official would talk to us and be honest i would listen. Because he DID KNOW that majority of kids DO SMOKE WEED AND DO DRINK. if anything parents should thank him because apparently people listened to him.

The abstinence approach is naive, and does not work. Judge Standley’s realistic approach may not work either, but it isn’t naive, and at least the kids will listen.

Crazy Days

Tue, 03/09/2010 - 22:26

While we’re on the topic of stupid blog tricks, I got this telephone call yesterday: “I was just googling my name, and I saw it on your blog. I want you to remove it.”

Um . . . okay. Who is this?

“Jeff Deutsch. “

I know who Jeff Deutsch is. Jeff writes the excellent but sporadic Building Common Ground blog, dedicated to “building common ground between people on the autism spectrum and those who love, work with and play with them.” I read Jeff’s blog, but we’ve never talked on the phone, and I have to admit that for a moment I wondered whether this was some sort of online Asperger’s episode.

I did a quick search on Defending People for Jeff’s name, and found that the only reference was an innocuous hat tip here. A small light dawned. “Are you the Jeff Deutsch that writes the Building Common Ground blog.”

“No.”

Did you click on the link to see how your name was mentioned?

“No, I didn’t know what it was, so I didn’t click on it.”

You do know that you’re not the only Jeff Deutsch in the world, right?

The thought had never even occurred to him.

Tried to Comment on Texas Lawyer Blog

Tue, 03/09/2010 - 21:57

I tried to leave a comment on Texas Lawyer magazine’s Tex Parte Blog. I got this in my email from the Managing Editor of Texas Lawyer:
Thanks so much for taking the time to comment on Texas Lawyer’s blog. To publish it, I need your written permission, full name and city, all of which will be published with the comment.

Four days later, I got the same message from the Law Editor of Texas Lawyer. I forwarded my mocking response to the first email to her.

Doesn’t leaving a comment on a blog imply permission to publish? If Texas Lawyer doesn’t think so (seriously?), wouldn’t a checkbox on the comment form make more sense?

In the same vein, if you want a commenter’s city, how hard is it to add a line to the comment form asking for it?

I thought I was doing a lot to discourage comments by requiring people to use their actual names, but Tex Parte’s bizarre policy has me beaten by a country mile.

Judge Fine and the Chronicle Back Off

Tue, 03/09/2010 - 21:44

A Houston judge who ruled last week that the proceedings surrounding the Texas death penalty are unconstitutional rescinded his ruling this morning to schedule a hearing for lawyers on both sides to submit arguments on the issue.

(Houston Chronicle, from which the Keirnan and Allen quotes below also come)

While I wasn’t able to attend this morning, I have it on good authority that the Houston Chronicle’s description of the proceedings is accurate. I commend the Chronicle for this, and for bucking the AP in favor of Messrs. Strunk and White’s preferred punctuation of the possessive of Texas.

I appreciate people who are able to admit their mistakes and correct them. It shows strength of character, whether the people are reporters or judges. Judge Fine jumped the gun when he held Article 37.071 unconstitutional. There was no evidence presented in support of the motion, and some of the facts Judge Fine took judicial notice of were not in fact facts. He violated the first rule that judges learn at baby judge school, which is that the best way to avoid reversal is not to rule. Then he violated the second rule that judges learn at baby judge school, which is to not change your ruling once you’ve ruled.

Now the parties have until April 12th to submit briefs; a hearing is scheduled for April 27th. (Which is odd—usually the briefs come after the evidence.) It’s not entirely clear what will happen at the hearing. Maybe Judge Fine (who doesn’t read my blog) intends to do what I proposed last Friday: test in a full-blown adversary proceeding the assertions of those on both sides of the death penalty debate. Defense lawyer Casey Keirnan seems to think that’s what is going to happen: “For the first time . . . we’re going to have a hearing about whether innocent people get executed.”

Strategically, it might have been better for the State had the order stood as originally signed. But both sides should welcome this chance, and they do. Prosecutor Kari Allen says she is “grateful that we have a chance to more fully litigate it.”

There is nobody better (more competent or more appropriate) to develop the case in favor of the death penalty than the Harris County District Attorney’s Office. Let the defense have subpoena power and the resources for an investigation, and see what the evidence shows.

However it shakes out, society wins.

Go Go Godzilla

Mon, 03/08/2010 - 21:04

I had a conversation recently with a woman who had accused her husband of hitting her. I was explaining her position in the criminal case: “You won’t have a lawyer, since you’re not a party. You’re a witness.” “I’m not a witness,” she replied indignantly, “I’m a victim.”

This is, I’m afraid, the spirit of these American times: if victimhood isn’t acknowledged, the victim is offended. There is value in being a victim. It’s a point of pride.

Intertwined with this victims’ pride, there is a movement of victimocracy afoot in America. To the victimocrats, not handling victims with kid gloves is an impeachable offense. To the victimocrats, it is appropriate to to honor the dead with destruction or by naming laws that will put people in prison after them.

Houston has a victimocrat-in-chief, Andy Kahan (who has found a way to make victimocracy pay) thinks victims’ rights should be constitutionally enshrined, and that victims should be treated with respect and dignity . . . unless they are the victims of false allegations. The victimocrats even have their own week at which they celebrate fictional inflated numbers of crimes.

The victimocrats’ only tool is fear. “I am a victim,” they say, “and if you don’t pass this legislation you will be one too.”

How are the victimocrats doing? Consider President Obama’s appearance on the 1000th edition of America’s Most Wanted, about which Norm Pattis writes:
The president sat for an interview with one of the angriest and most self-righteous men in the United States, John Walsh. He’s the father of Adam Walsh, a little boy abducted and murdered several decades ago. Since then, we’ve all felt the pain of the Walsh family.
. . . .
President Obama’s decision to appear on America’s Most Wanted was not the reasoned and measured response of a commander in chief committed to rule of reason. Obama sat with Walsh and was lectured by the talk-show host about the need to take DNA samples of every person accused of a felony. The president listened to a man who has lent his son’s name to controversial federal legislation that has been declared unconstitutional in some federal courts and is destined for a Supreme Court challenge. What was Obama trying to accomplish with this appearance?

We had eight years of fearmongering in D.C.; as Norm says, “It’s looking more and more like the same old stuff. Yet another American president cosseting the fearmongers? Ho hum.

This is the American victimocracy, flexing its political muscle. It’s reptile writ large.

Are those of us who believe that love will triumph over fear deluding ourselves?

Parsing the Made-Up News

Sun, 03/07/2010 - 23:11

Friday, Fine clarified that he declared the procedures Texas has in place to carry out the death penalty unconstitutional, a legal parsing even to the prosecutors trying the case.

The Houston Chronicle clings doggedly to the false proposition that Kevin Fine “declared the death penalty unconstitutional Thursday.” On Friday Judge Fine clarified why he was declaring the procedures unconstitutional, not that he was declaring the procedures unconstitutional:

I do, however, want to clarify because this was a multi-point motion, I want to clarify my ruling on the motion and I want to also have — give the State and the Defense an opportunity to present any authority that they may have come up with since my ruling yesterday afternoon until today or this morning.
. . . .
My holding with regard to the Defense motion is limited only to the due process claim that 37.071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons.

The Chronicle may think it has some inside information suggesting that what the judge meant to do was to declare the death penalty unconstitutional, but court orders are word magic, and a judge doesn’t do any more or less than his orders say. It was clear from Thursday’s transcript and order (once you figured out that “37.01″ meant “37.071″) that the procedures, and not the penalty, were unconstitutional in the judge’s view.

The difference may not be apparent to the Chronicle’s lay readers, but it ought to be clear to a reporter with a law degree, and it’s a newspaper’s responsibility, abdicated in this case, to try to educate its readers rather than make up sensational news.

Which brings us to “parsing.” At some point in the last nine years to parse became a pejorative (along with nuance and empathy). But parsing—examining the text minutely, word-by-word and comma-by-comma—is how we understand, apply, and counter word magic. Lawyers parse. Statutes, opinions, and orders are written to be parsed. We don’t just look for the gist of the matter and act on that; it’s a poor lawyer that does. Judges and appellate courts know this. The prosecutor knows it too; I will bet lunch that “legal parsing” was a phrase suggested by the Chronicle and not rejected by Bill: “Would you call this legal parsing?” “Yeah, sure, whatever. As a practical matter . . .”

In the course of my career so far I’ve seen the quality of legal reporting in the Houston Chronicle improve. The problems with Texas’s death penalty procedures are real, and are worthy of discussion even to people who in principle favor the death penalty.

The Chronicle’s coverage of Judge Fine’s ruling disserves and disappoints.

Legal Education or Experience Not Required

Fri, 03/05/2010 - 22:36

Findlaw is looking for a dreckblog writer:
KEY RESPONSIBILITIES:
- Track legal news and developments on a daily basis, using multiple information sources
- Write blog posts reporting on legal news and related legal information of interest to a consumer audience, under the direction of an editor
- Work with FindLaw Social Media Team to optimize blog posts using best practices in tagging, keyword usage, headline creation, content optimization and basic SEO
- Track blog post performance using multiple measures (e.g., traffic, syndication, conversion) and use performance measures to constantly refine posting style and improve post performance

REQUIREMENTS:
- Bachelor’s Degree required
- Legal education or experience a plus, but not required
- Excellent writing and reporting skills, with ability to write in a conversational tone and demonstrated ability to successfully write for the web
- Basic understanding of HTML and SEO
- Professional blogging or online media experience is highly desired
- Internet savvy with experience using social media tools such as blogs, message boards, social networks, microblogging, social bookmarking and/or social sharing

IDEAL CANDIDATE:
- Has an interest in writing about legal topics for a consumer audience and following legal news and developments
- Understands and has mastered high-volume blog writing and can turn out a developed 250 word post in under 40 minutes
- Works well in a team environment, embraces change and is highly adaptable

High-volume blog writing?

250 words in under 40 minutes?

Interested in following legal news and developments?

Legal education and experience?

Professional blogging experience?

Internet savvy?

Are you thinking what I’m thinking?

(H/T San Jose criminal defense lawyer Izaak Schwaiger.)

Harris County Death Penalty Update: They Report, I Explain.

Fri, 03/05/2010 - 22:03

More news, documents, and analysis of Kevin Fine’s order holding the Texas death penalty procedure statute, Code of Criminal Procedure Article 37.071, unconstitutional:

Yesterday I brought you the motion, and the order Judge Fine signed. I explained how the press had the story wrong (the death penalty isn’t unconstitutional; the procedural statute is; correcting the statute would put the State back in the death penalty business in the 177th).

More documents today (thanks to my friends in the DA’s Office for copies of the first transcript and the State’s two motions), and some analysis. Jump to the bottom if the details of the argument don’t interest you.

March 4, 2010 Transcript

Here’s the transcript of the portion of the hearing yesterday at which Judge Fine dealt with the unconstitutionality of Article 37.071:
Green Fine Transcript 1

The motion filed by the defense is a standard one. It’s probably been filed in dozens of death penalty cases, and summarily denied in each. In this transcript Kari Allen, one of the two lawyers for the State, says, “we could not find any cases that directly address just the system being broken because it isn’t really a constitutional issue.” This might turn out to be important in our discussion of the procedure by which the State might get the order reviewed. Allen does cite Scheanette v. State, 144 S.W.2d 503 (Tex. Crim. App. 2004), in which the Court of Criminal Appeals held:

While the execution of an innocent person might violate federal due process and be considered cruel and unusual punishment, appellant does not claim that he is innocent. He therefore fails to demonstrate that his due process rights or his right to be free from cruel and unusual punishment have been violated by application of our death-penalty statute.

So if you are convicted and sentenced to death, you have to claim innocence in order to complain that the death-penalty statute is unconstitutional because it results in the execution of innocents. In the current case, Green’s lawyer argues (at page 24):

I think that we could just stand on the ground of saying that the State is not going to be able to prove their case beyond a reasonable doubt to make us innocent enough to claim relief. . . .

Judge Fine replied:

Okay. For purposes of this motion, I will take it that your argument is that your defense will be someone else committed this offense, therefore, your client is innocent of the offense.

And Green’s other lawyer seized on this:

It certainly includes that too, Judge. Yes, sir.

This claim of innocence should be enough to give Green standing to complain about the statute—if (by contrast) the law is that an accused has to demonstrate his innocence before getting relief because the Texas death penalty procedure statute leads to the conviction and execution of the innocent, then the statute will never be reviewed because anyone who demonstrates his innocence will not be found guilty, and innocent people will continue being executed. The problem with the statute is that innocent people aren’t always able to demonstrate their innocence, and so they get caught in the machine. Don’t (factually) guilty people have the right to be tried in a system that only executes (factually) guilty people?

Judge Fine takes notice that over 200 death row inmates have been exonerated. That’s probably incorrect. Over 200 people have been exonerated by DNA, but not all of them were on death row.

At page 25, Judge Fine questions Green’s lawyers about U.S. v. Quinones, cited in the motion, and Green’s lawyer clearly has no idea what Quinones is about.

Beginning on page 26, Judge Fine introduces the notion that he’s the gatekeeper of the law, who has to decide “what our evolving standards of fairness and ordered liberty are.”

If—if they are such that society believes it to be okay to execute innocent people, whether that be one or a thousand so that a state, specifically the State of Texas, can have a death penalty so that those that might be deserving of the penalty of death can actually be put to death, whether or not that—that trade-off would meet our current standards of fairness and ordered liberty.
. . . .
With no other guidance from a higher court other than the guidance charging the trial courts with the duty of being gatekeepers, this is probably the most difficult decision I’ve had to make in my limited time on the Bench. But I am not prepared to say that our society, that our citizenry is willing to let innocent people die so that the State of Texas can have a death penalty.

This is the heart of Judge Fine’s rationale: that it’s his job (subject to appellate review) to decide what society’s standards are; that innocents have been will be executed; and that society is no longer, in light of increased knowledge of the danger that innocents will be convicted, willing to take that risk.

The State’s Motions

As I noted yesterday, the State has no statutory authority to appeal the judge’s ruling from yesterday. They need to set up something to make the ruling appealable. There might be two ways to do this. The first is to turn the judge’s ruling into an order that dismisses the indictment or some portion of the indictment; that order would be appealable under Article 44.01 of the Texas Code of Criminal Procedure.

Green State Motion Proceed to Trial

The second way to get appellate review is to get a mandamusable order. I hadn’t read the mandamus cases from the Texas Court of Criminal Appeals until today, but the court has expanded “ministerial duties” the traditional subject of mandamus, to include “judicial action that ignores clear, binding precedent from a court of superior jurisdiction.” State ex rel Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994). In its Motion to Proceed to Trial the State is trying to get Judge Fine to do something—to refuse to proceed under Article 37.071—that ignores clear, binding precedent. Here Kari Allen’s assertion that the State could find no cases on point militates against mandamus.

Green State Motion Reconsider

The State’s Motion to Reconsider suggests that Judge Fine’s ruling was predicated on inaccurate information—that Quinones is not the law even in the 2nd Circuit, that only about ten death row dwellers have been exonerated by DNA evidence (pick your statistic—the Death Penalty Information Center says that at least 48 people “have been released from prison after serving time on death row since 1930 with significant evidence of their innocence”), and that it hasn’t been proven that any innocent person has been executed. And that’s all there is to that.

Of course, most people sent to prison or death row aren’t lucky enough to have DNA evidence available to exonerate them. They aren’t any less likely to have been wrongly convicted, but nobody is likely ever to prove it. As long as Rick Perry and John Bradley keep obstructing the review of evidence in Cameron Todd Willingham’s case, Willingham, at least, won’t be proven to have been wrongfully executed.

March 5, 2010 Clarification

Today Judge Fine conducted a hearing at which he clarified yesterday’s order. I lucked into the hearing—I didn’t have anything on my docket this morning, but I went down to the courthouse to pick up some subpoenas and ran into a news cameraman who was headed to the 177th for Judge Fine to clarify his ruling. I didn’t have my laptop and Mifi with me, so I couldn’t blog from there, but I was able to observe the hearing and get the State’s motions and the second transcript hot off Linda Hacker’s printer.

Green Fine Transcript 2

Those who were hoping that Judge Fine would say, “The Houston Chronicle got it right; I’m holding that the death penalty is unconstitutional” (cough, cough, Brian) were disappointed. Judge Fine’s clarification was this:

My holding with regard to the Defense motion is limited only to the due process claim that 37.071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons.

Here, thanks to Channel 13 News, is the video of Judge Fine’s clarification of his holding today:

Judge Fine asks both sides to provide any authority to guide him in resolving the issue.

All I can do, as this issue has been raised, is go by what guidance there is; and the only guidance that I have found is that provided by the United States Supreme Court that places a duty on trial courts to act as gatekeepers in interpreting the due process claim in light of evolving standards of fairness and ordered liberty.
Clearly I have been charged with that duty. So I am now charged with interpreting such evolving standards and I’m called upon to assess the current state of our society’s standards of fairness and ordered liberty in light of what we as a society now know. And that is that we execute innocent people. This is supported by the exoneration of individuals off of America’s death rows.

I don’t see where that language—”fairness and ordered liberty”—came from, nor can I find the Supreme Court’s mandate that trial courts act as gatekeepers in interpreting due process claims. The latter, at least, makes sense—the question of societal mores is more appropriately developed by trial court judges than by the out-of-touch scholars in Washington, DC.

Beginning at page 9, Judge Fine cites “one retrial of a deceased individual who has actually been executed.”

That trial took place in Travis County in Judge Charlie Baird’s court wherein it was found that the deceased was, in fact, innocent and thereafter executed by the State of Texas.

As he was with his death-row exoneration statistics, Judge Fine is wrong. The exoneration hearing in Judge Baird’s court involved Tim Cole, who died of complications from asthma in prison in 1999. He was not on death row; he was serving time for rape.

Nevertheless, it is true that we must engage in willing suspension of disbelief in order to continue to say that we have never executed an innocent person “in light of what we now know of the value of eyewitness identification.”

Alluding to the poor and minorities who are most often the accused in death penalty cases, Fine says at page 10:

I know that some feel that, well, if they’re not guilty of the capital murder, they’re guilty of something so it’s okay. I don’t think society is of that frame of mind any longer.

Again and again Judge Fine tries to relate the problem to our friends and family—to make the problem our problem, rather than the problem exclusively of the poor. “Are we willing to let our own be the sacrificial lambs? I don’t think society is willing to do that.”

Finally, with a sneer to Chuck Rosenthal, Judge Fine expresses his trust that the Pat Lykos District Attorney’s Office does not take death penalty cases lightly:

I can’t speak for times past, and I won’t go there, but certainly this District Attorney’s Office, there’s no question in my mind does not take these things lightly —do not take these things lightly, and that’s why I have overruled the Defense—the Defense’s motion in regards to any argument that the decision-making process is arbitrary, capricious or in any way a violation of the Constitution.

What I Think

I would like to believe that Judge Fine is right about where society is, but I can’t. The troglodytes are running the show. They demand positive proof that innocents have been executed; they obstruct efforts to develop such proof; they won’t acknowledge the danger that their loved ones might be wrongly executed; and other people’s loved ones don’t matter to them.

Even the greatest fans of the criminal justice system cite an estimated .027% wrongful felony conviction rate. That means that for every 3,702 factually guilty people we execute, we’ll execute one innocent. Those are unacceptable odds to me, and probably much better than the real odds—the true error range is probably between .8% and 8%, which means that at least one out of every 125 people we execute will have been factually innocent.

I’m not convinced that the parties in this case have developed enough of a record for an appellate review of Judge Fine’s ruling. I’d like to see a hearing at which the defense could present its evidence suggesting that innocents had (and therefore will) be executed, and the state could present its evidence suggesting that nobody factually innocent had been or could be executed. Then the appellate courts would have some actual evidence to consider, rather than just conjecture.

The appellate courts are not set up to hold hearings and develop evidence on the question of how likely innocents are to be executed, and how willing the people of Texas are to accept that likelihood. This case, with a judge who is principled enough to risk ending his political career over the constitutionality of Article 37.071, may be society’s only opportunity for a long time to test in a full-blown adversary proceeding the assertions of those on both sides of the death penalty debate. However it comes out, we’ll know that it’s been fully litigated.

Judge Fine can put his ruling on hold and order such a hearing, and he should.

Judge Fine on the Constitutionality of 37.071

Thu, 03/04/2010 - 23:24

A courtroom observer reports that Judge Fine took judicial notice of more than 200 death row inmates exonerated, most due to DNA retests, which called into question many more cases where DNA was not available to retest.

The following are approximate quotes from Judge Fine:

I must decide what our evolving standards or decency are, such that society recognizes standard of fairness and liberty that a state might execute one or more innocent people so that people who are truly deserving of death can be executed.

Our country is more aware of executing innocent people. I don’t think anyone would be willing to allow an innocent be executed so that guilty can be executed.

With no other guidance from a higher court, this is the most difficult decision I’ve had to make. But I am not prepared to say our society is willing to let innocent people die so Texas can have a death penalty.

Even in Texas, Death Penalty Still Constitutional

Thu, 03/04/2010 - 21:43

Brian Rogers of the Houston Chronicle reported today that Judge Kevin Fine of the 177th District Court “declared the death penalty unconstitutional.” This caused the Chronicle’s anonymous commenters to gibber ignorantly in righteous indignation like a cage full of unusually stupid monkeys. Which is always fun.

Paul Kennedy was immediately on the story, for which Jeff Gamso gave him kudos. The Houston Press posted on it, complete with quotes from Brian Wice, Casey Kiernan, and Pat Lykos.

Unfortunately, Brian Rogers’s report is not quite accurate. In fact, it’s far enough from accurate to be totally false. Judge Fine did not declare the death penalty unconstitutional.

Today Judge Fine denied the defendant’s Motion to Declare Death Penalty Unconstitutional Based on Texas’ Lethal Injection Protocol (Scribd) and his Motion to Declare Texas Death Penalty Statute to be Unconstitutional (Jurors’ Inability to Predict Future Dangerousness) (Scribd).

The motion that Judge fine did grant was the defendant’s Motion to Hold that Texas Code of Criminal Procedure Article 37.071 is Unconstitutional:
Motion to Hold that Texas Code of Criminal Procedure Article 37.01 is Unconstitutional

Here’s article 37.071, Texas’s (screw the AP: if you pronounce the possessive “Texas’s” you should write “Texas’s”) statute dictating procedure in capital cases. Holding the death penalty procedure unconstitutional is not the same as holding the death penalty unconstitutional. It’s a roadbump for the State, sure, but the procedure could, at least theoretically, be corrected to allow the State to go on killing people even if the appellate courts uphold Judge Fine’s ruling. If the procedure is corrected, it can be applied to the accused in this case.

The defense throws everything at 37.071. The motion is a jumbled catalog of ways in which “[t]he system that determines who should die in Texas is truly ‘broken.’” It’s a mixed procedural and substantive due process argument: the process isn’t fair, and it might result in an innocent person being killed by the State.

Judge Fine didn’t specify why he granted the motion. He just granted it. So in order to uphold Judge Fine’s ruling, the courts of appeals will have to review and reject every argument that the defense made. Not that that’s a big hurdle for a Texas appellate court, but first there’s a procedural hitch to the appeal of the order holding the procedure unconstitutional:

The state is entitled to appeal an order of a court in a criminal case if the order:
(1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy;
(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case; or
(6) is issued under Chapter 64 [dealing with forensic DNA testing].

Texas Code of Criminal Procedure Article 44.01.

In holding Texas’s death penalty procedure unconstitutional, Judge Fine didn’t do any of those things listed in article 44.01. So there is no legal authority for the State to appeal. The resulting procedural maneuvering is going to be interesting. The death penalty trial can’t go forward if 37.071 is unconstitutional, but the accused has a right to a speedy trial; the State can’t move to dismiss and then appeal the dismissal. The defendant is accused of aggravated assault as well as capital murder, so the State’s best shot at killing him might be to dismiss the capital murder, try to hold him on the aggravated assault charge until Judge Fine is no longer on the bench, and then refile the capital murder case (on which there is no statute of limitations).

Unfortunately, Brian Rogers’s inaccurate story is going to be the story that the Republicans tell their scared white voters in 2012. Texans still love their death penalty, and a judge who held the death penalty unconstitutional—even if he didn’t—has a steep uphill battle.

[Update: The Texas Lawyer Blog, which interviewed lawyer Casey Keirnan, says that Judge Fine held "Article 37.01" unconstitutional. While that's what the order says, and that's the title of the motion, Article 37.01 has nothing to do with it.]

Chris Dorbandt and Catalyst Design: Partners in Crime

Thu, 03/04/2010 - 00:48

Rule 7.02 Communications Concerning a Lawyer’s Services
(a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

It offends me when people steal the work of people who write for a living. Nobody could possibly think that taking newspaper articles and posting them to a blog attributed not to the newspaper or the author but to you is anything other than plagiarism. No competent lawyer could possibly think that doing so is anything other than unethical.

When I discovered, serendipitously, that Austin lawyer Chris Dorbandt was plagiarizing newspaper stories for his criminal defense “blog,” I tried a new approach. Instead of immediately gutting him here, I tried to leave a comment on the blog, suggesting that attribution (the first plagiarized post I saw contained a Houston Chronicle story by Brian Rogers) would be appropriate.

The comment never posted.

I emailed Dorbandt (kinder, gentler Mark, remember):
Chris,

Claiming credit for other people’s writing is plagiarism. It’s theft. It’s a violation of the DRs, and reflects poorly on your character and fitness to practice law.

Every post on your blog is stolen. I emailed you about this yesterday; you must not have received the email. I suggest that you delete what you’ve posted so far, familiarize yourself with the legal blogosphere and start over fresh.

It’s for your own good.

Mark

To this he responded:
I was out of the office most of the day, yesterday. Have you blogged to me or the firm before?

Clearly he has no idea what blogs are. I replied (yes, this is me being kind and gentle):

Clearly you have no idea what blogs are.

Before his first response, I had sent him another email:

Chris,

There are lots of great criminal defense blogs, with high page rank. A really really good way to get on the bad side of the people who write these blogs, so that they write uncomplimentary things about you that potential clients will find when they google your name (exhibit 1: Andy Nolen) is to plagiarize other people’s work and call it a blog.

Mark (DefendingPeople.com)

He responded:

In answer to your first email, I have not written any uncomplimentary things that I know of. I will check with my staff…

I replied:

It’s not uncomplimentary, it’s theft. As a result, you’re likely to become the subject of some very bad publicity.

Here’s what I suspect has happened: knowing nothing about blogs, you’ve paid someone to create a blog for you. You’ve ceded control over your name and your reputation to that person. Unbeknownst to you, that person is stealing content from newspapers and publishing it under your name.

How’m I doing so far?

Unfortunately, “I didn’t know” is not a defense. There’s a saying in the blawgosphere: Outsource your marketing = outsource your ethics and your reputation.

What you should do: take down every plagiarized post on your blog, and fire whoever put your reputation and your license in jeopardy by stealing in your name. Thank me for helping you dodge a bullet.

He asked me, densely, to explain it to him. I wrote (beginning to run short on patience):
It’s really not complicated:

Taking someone else’s writing and claiming it as your own is theft.
Theft is wrong.
You are responsible for the wrongs others do on your behalf.

Take down the plagiarized content, then we’ll talk about how to start a real blog.

I’ve seen no indication that Dorbandt is competent to start a real blog, but there’s no harm in talking about it.

Apparently confused about what blog I was talking about, he wrote:
Which blog are you talking about???
I’ve been in and out of several courts today and in two different counties. I’m headed out again in 40 minutes. But I will be back to address this … point me in the right direction on the blog and I will ensure that it is taken down immediately.

My response:
All of your blogs that I’ve seen.

If I were you, I’d be on the phone right now with Catalyst telling them to take down every blog they’ve put up for you.

Dorbandt had a criminal defense blog and a personal injury blog, both of which were almost (we’ll get to that) entirely plagiarized content. Catalyst Designs is his web designer.

Then for two hours Dorbandt emailed about taking the blogs down, with no apparent success. As of now, the criminal defense blog is down but cached (PDF). After all the time I wasted trying to set Dorbandt on the strait and narrow, the personal injury dreckblog is still up, with content stolen from the Austin American-Statesman published as “by Chris Dorbandt” (PDF). (Aside: I won’t waste my time next time; instead I’ll proceed directly to the disembowelment.)

Worst of all, Dorbandt includes brief “Personal comments” in some of the posts. For example:
Personal comment: It will be interesting to see if the homeowner’s insurance pays the claim or takes a stand and fights it based upon it being a criminal act and therefore, unforeseeable.

Personal comment: The family has probably been trying to settle the issue with the City and police department and had to file suit to preserve the claim and it is not not necessarily adversarial. Negligence on the part of City is probably disputed. If the officer had not been trained, why was he riding the motorcycle in full uniform?

That’s the sum of the non-plagiarized material in Dorbandt’s blog. I say it’s worst of all because it shows that Dorbandt (or someone with legal training acting on his behalf) added comments knowing that he wasn’t writing the posts attributed to him.

I was overly generous in suggesting that the content theft was not known to Dorbandt. This isn’t an instance of outsource marketing = outsource ethics. If that were all this was, or if Dorbandt had taken down the personal injury plagiarism blog, this post would be about the evils of Catalyst Designs, and why lawyers should on no account trust Catalyst Designs with their online marketing.

The comments, though, suggest that Dorbandt is a direct participant in the plagiarism.

Plagiarism reflects unfavorably on Dorbandt’s judgment, his ethics, and otherwise on his fitness to practice law.

None of that will be news to anyone but him. Here, though, is a new question:

How stupid does a lawyer have to be to plagiarize the courthouse reporters in his local paper?

An X-Gen Lawyer’s Manifesto

Wed, 03/03/2010 - 23:49

As illustrated by the ‘problems’ firms are experiencing with X and Y geners, there has been a global values evolution. These generations are less willing to accept the same incursions on their family and social lives in return for rewards in the future. They are also less tolerant of organisations that fail to give them the opportunity to be part of a larger cause, one that exists outside of a profit motive or the meaningless client service guff that is often dished up.

Andrew Hughes, The Law: All Guff and Discontent?

Inspired by this, Scott Greenfield writes:
The young set sees posts like this expert’s and believes that they are right to demand changes that make them happy and fulfilled. Older lawyers, who are discontent with the law fail to notice the absence of logical nexus between their discontent and the Slackoisie solution (though they will figure it out soon enough when the college tuition bill arrives) see acquiescing to the demands of the Slackoisie as the path of least resistance. And everyone looking for an excuse to indulge their weaknesses and self-interest at the expense of their clients will embrace this nonsense.

In a comment to Scott’s post, Dan Hull essays a translation of the portion of Hughes’s statement beginning with “there” and ending with “motive”:
Whoa. Translation: (1) “It’s all about the law firm workers in a services profession or services industry”; and (2) “Clients are merely the equipment in our game. They can be compromised. Don’t sweat it. It’s really all about protecting the new low standards of the young. We can screw clients over by mailing it in–or maybe in between trips to the washroom to shoot up or complain about management making us work for the money”.

As a member of Generation X who long ago rejected a role as a cog in the corporate machine (had the associates at Sheinfeld, Maley & Kay in 1994 been bloggers, some Greenfieldian curmudgeon would have groused about the summer clerk who asked if the job was fun—as if that matters), I find some truth in Hughes’s quote. (It does suffer from poor writing—it’s not clear whether the “leadership expert and coach” author thinks that all talk of client service in law firms is guff. I think all lawyers can agree that law firms often pay mere lip service to client service; calling all client service “guff,” though, would be a declaration of war.)

I’ve long considered myself unfit to be an employee. The work-30-years-then-retire ethic of my parents’ generation never caught on with me. Certainty that I’ll never get a cent from Social Security contributes to my unwillingness to sacrifice now for some future retirement Xanadu. Why suffer for some faraway retirement that may never come when I can live well now and in the future?

The idea that I might become redundant at 65 is an abomination. The lawyers whom I most respect are those who aren’t going to stop working till they have to; who, at a sharpminded 70-75-80 years of age, are still doing battle in the courthouse.

So I try to live well now. Work-life balance? I’m all for it. Give me time with my family and my friends and my cars, good books to read and places to travel. Most importantly, let me attend my kids’ shows, and be there when they get home from school, and cook family dinners.

But. . .

But something has to pay the bills, and—since it’s the thing that I’m best suited for, and possibly the only thing I’m suited for—my something is helping people in trouble. The client is, as Dan Hull says, the main event. Without clients there are no cars, books, travel, home, or food. The family is my reason for existing; the clent is my reason for practicing law.

I’m not billing by the hour or by the word; I am paid a flat fee to defend the client as well as I humanly can. When the interests of family and client conflict, the client wins. That is the way it has to be. There will be other family dinners, but this is the client’s only shot at freedom.

Even in practices very different from mine—large firms representing non-human clients at hourly rates, for example—the client has to be the main event and win all conflicts.

What about that work-life balance? Some people are driven to practice more law so they can make more money so they can practice more law. For my part, I create balance by minimizing conflicts between client and family. I do that by taking few cases and charging lots of money. I can afford to take fewer cases for more money because (in a nutshell) I’m lucky and experienced. When I was less experienced, I created the balance I wanted by living a little more humbly.

I think there are two lessons here for the aspiring Y-Gen lawyer.

First, “work-life balance” is a metaphor for what we’re really talking about, which is money-time balance. Forget the myth that people are going to throw money at you for having a JD. You have to give up some of your time for every dollar you earn. The more dollars, the less time you have for your non-law pursuits. The more time you’re willing to give up, the more dollars you have to spend on your non-law pursuits. If you want money-time balance, be willing to accept less money.

If you’re talented or hard-working, your time will become more valuable over the years. (And recognize this: the more time you give up in the beginning, the quicker its value will accrue.) Eventually, maybe, you can live in the nice house and drive the fancy car and be home for dinner with the kids and take family vacations. Or whatever your dream is. But every payment on the car and house is time away from your non-law interests—a greater incursion on your family and social life.

Second—and this is most important—if you’re not prepared to make the client the main event, don’t be a lawyer. There’s no point in being a lawyer who puts the client second.

Input Needed: Reptile in Criminal Cases

Wed, 03/03/2010 - 12:18

David Ball, co-author of Reptile, is asking criminal lawyers to help him develop a list of “reasons we lose criminal defense cases.” He wants to hear from lawyers in the trenches who deal with these problems all the time. The list will help him and his team develop the use of Reptilian advocacy for criminal defense, where he believes it will become just as powerful for us as it has proven in civil cases for plaintiffs. Please take a few minutes to jot down your list; send it to ball@nc.rr.com. Subject line: CD Reptile.

David also wants to use responding attorneys for a sounding board as he and his team develop Reptilian criminal defense strategies.

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