What Lawyers’re Doing Across the Pond

Posted on May 16, 2008
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Taunting the government’s AI; Geeklawyer is offering a bottle of whisky [sic] for the best question and answer.

Mack Arnold Fundraiser

Posted on May 16, 2008
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Monday June 16, 2008. 6:00 p.m. to 8:00 p.m. El Tiempo Cantino, 3130 Richmond, Houston. Live auction, free food, cold beer and margaritas.

New Poll: Rusty Duncan

Posted on May 14, 2008
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I’ve added a new poll to the sidebar:

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Problems With Judge Voir Dire

Posted on May 13, 2008
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Notes I wrote during a federal judge’s voir dire a few months ago:

Judge Voir Dire.jpg

A judge’s voir dire is calculated to get jurors to promise to follow the law while a lawyer’s voir dire is calculated to find those who might have difficulty following the law.

A judge’s voir dire is calculated to get jurors to agree with the judge while a lawyer’s voir dire is calculated to find those who disagree.

A judge’s voir dire is calculated to qualify more jurors while a lawyer’s voir dire is calculated to find those who are not qualified.

For a Public Information Office

Posted on May 12, 2008
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Napoleon’s Third Rule of Infantry Combat, per Terry MacCarthy:

When your enemy is in the process of destroying himself, do not interfere!

In light of that, I’m tempted not to comment on the Harris County DA’s proposed creation of a Public Information Office to serve as the “face and voice” of the Office.

The Chronicle doesn’t like the idea:

But what often happens is that reporters are routed to the press officer, who cannot answer their questions because they have no direct knowledge of the matter at hand. A communications professional usually is adept at finding out the information, but if the answers generate additional questions, the “flaks,” as they are known, have to go back for further information. It’s inefficient, time-consuming and frustrating for reporters trying to learn important and sensitive government information.

Its chronic editorial impairment notwithstanding (flak is antiaircraft fire; flacks are publicity agents), the Chronicle is right: a Public Information Office acting as intermediary between the press and the prosecutors will inevitably restrict the flow of information from the public’s servants to the public. AHCL doesn’t disagree; in fact, she says, the folks at the Chronicle “should be glad that the Office is talking to them at all.”

Arrogance brought down Chuck Rosenthal. Chuck’s arrogance permeated the office, creating the culture of arrogance that was obvious to the criminal defense bar before the end of last year, when it started coming to the public’s attention. This arrogance led to a certain opacity in the management of the Office. All of the candidates for DA have agreed on the need for more transparency. A Public Information Office would be good for the public if its services were added to those already provided by ADAs talking to Brian Rogers, boy reporter.

But what does the interim DA do? Create a new office, not to supplement the line DAs’ communication with the press, but to supplant it. This is damaging to the prosecutors’ morale and to the public’s trust — to the prosecutors’ morale because they feel that they are no longer trusted to talk to reporters and because it’s almost always a nice boost for a lawyer to see her name in the paper in connection with a case she’s tried; and to the public’s trust because people are rightly less likely to trust the guy who’s being paid to spin the facts than the guy who was in the room when the facts were made.

In fact, if I could do one thing to keep the Office from repairing its shot-up credibility in the eyes of the public, it’d probably be this: stop the line prosecutors — most of whom are at least decent human beings — from talking to the public about what they do and how they do it. Thanks to Ken Magidson, now I can dream up other ways to help ensure that the Office stays on the ropes for as long as possible.

It hasn’t gone unnoticed by the defense bar that the Chronicle has given more attention to us and our cause in recent years than it had for a decade or so. I remember noticing four or five years ago that a Chronicle article about a criminal trial would always include at least one quotes from the prosecutor, but would very rarely include even a mention of the defense lawyer’s name; I looked back at the Chronicle archives and saw that it was not always so.

Since I made that observation there has been a definite shift in the Chronicle toward the telling of both sides of the story. There is no way that a public information officer could know enough about all of the interesting cases going on down at the courthouse to talk meaningfully to the courthouse reporters about whatever interests them. If the press have to get the State’s side of the story from one person, or one office, they probably won’t get it. A policy against line prosecutors talking to the press will leave an information vacuum that the defense bar will be more than happy to fill.

The Hired-Gun Prosecutor

Posted on May 10, 2008
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Kelly Siegler, having left the Harris County DA’s Office, will be working as a special prosecutor on a capital murder case in Wharton County.

My admittedly cursory legal research on the question hasn’t revealed legal authority for anyone other than an assistant attorney general to assist in the prosecution of criminal cases, unless the district attorney is unable to perform his duties.

I suppose the supporting theory would be that the elected DA can hire whomever he wants to prosecute criminal cases, on whatever terms they agree to. So if Wharton County D.A. Josh McCown feels that he is outclassed by the defense team of Houston criminal defense lawyer (and former HCCLA president) Stanley Schneider and Richmond criminal defense lawyer Lee Cox, he can hire Kelly Siegler just to try the case on which they oppose him.

I don’t think this is really a “special prosecutor” position — my reading of the law is that only a judge can appoint a special prosecutor, and only when the district attorney is unable to act — but it raises an interesting question about prosecution in the 21st century:

Could Kelly Siegler make a business of traveling from county to county prosecuting alleged evildoers?

Being a criminal defense lawyer is in part being a businessman; I’m looking at this question not in terms of ethics or law, but only of business: could Kelly create a viable business plan based on private provision of prosecutorial services?

I anticipate two likely hurdles that will have to be overcome: ego and money.

The ego that will have to be overcome is not Kelly’s, but that of the prosecutor in each case in which Kelly A would hope to be employed. District attorneys are not generally known for their humility. Indeed, humility would make it difficult for them to function. Most Texas prosecutors probably think that they could do as good a job prosecuting cases as Kelly Siegler. By all accounts, most of them would probably be wrong. It is unlikely, however, that they could easily be convinced of this. So they would have to be persuaded that having Kelly prosecute a case on their behalf was somehow in their best interest.

The money hurdle would arise only if Kelly wanted to get paid for her work. Married to a successful physician, Kelly might not be interested in this. If she doesn’t, the needlessness of paying her may assuage the egos of the prosecutors whom she would be supplanting, overcoming both hurdles at once — they can persuade both their voters and themselves that hiring Kelly to try a difficult case is a wise fiscal decision.

Even if Kelly needs to get paid to prosecute, there might be a way for her to find work: patronage.

If a private citizen or group of private citizens found it important enough for a person to be well and thoroughly prosecuted, they might decide to hire Kelly to do the job. For example, the wealthy family of a murder victim might hire Kelly to seek vengeance on their behalf (except that she would be asking the jury for it on behalf of “the State”) or police officers might take up a collection to hire tally to prosecute the person whom they believed to have killed one of their own.

With private backing, Kelly might overcome a small-county prosecutor’s ego by explaining how, with her experienced help on that one big case, he can spend his time on his other cases; the DA can present the decision to his constituents not as an admission that he’s not up to the job, but as a way to save them money.

Only the small details remain:

How to get the business? Word of mouth and the internet, of course. Put up a website and the press will do all of your advertising for you. Or cherry-pick your cases, finding newspaper accounts of crimes for which someone might be both able to and inclined to hire you, and sending business cards, Paladin style, to the likely customers.

How much to charge? Whatever the market will bear. Remember that this is a luxury product, not a necessity. How much is vengeance worth?

What if I lose? When you’re selling vengeance, you’d better deliver. You’re only as good as your last verdict, and if that last verdict had the accused smiling on the steps of the courthouse, then you’re out of the vengeance business. For the hired-gun prosecutor, losing is not an option.

The idea of Kelly Siegler riding around Texas on a pale horse is an entertaining one. I’ve even thought of a slogan for her:

I get paid to make people afraid.

Confidence-Inspiring

Posted on May 10, 2008
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From the solicitation letter sent to Bennett & Bennett by Transperfect, “the leading provider of international communications services to the world’s top intellectual property practices”:

In fact, more than 25% of our revenue comes from assisting clients with international litigations.

I’m sure they do that work with honesties and integrities.

Suffering Laryngitis

Posted on May 7, 2008
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I’m helping host two communicating-with-juries workshops (with Joshua Karton) and the Harris County Criminal Lawyers Association annual banquet in the next two days.

Could there be a more inopportune time for me to lose my voice?

(Answer: yes, actually: in the middle of a trial.)

That’s Why Prosecutors Shouldn’t Try POM Cases

Posted on May 7, 2008
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From Brian Rogers of the Houston Chronicle, Prospective juror in pot trial caught smoking marijuana (during a break, she stepped outside the building to smoke some weed, and got arrested).

Not Writing But Typing

Posted on May 6, 2008
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Connecticut lawyer (and Gerry Spence chronicler) Norm Pattis, who Googles himself regularly, takes a crack at describing A Typology of Legal Blogs.

Blawgs, says Norm, come in three flavors: “prophetic” (his, Appellate Law and Practice, SCOTUSBlog), “proselytizing” (Simple Justice), and “incestuous” (Matlock).

I’m interested in the ways that blawgs fit together. I’ve written on the topic here and described a method for mapping the blawgosphere here. I’ve given the different types of blawgs some thought.

Norm’s a smart guy — by some accounts brilliant — but his typology strikes me as forced. Is it either accurate or fair to call Shawn’s blog “incestuous”? Is Shawn’s blog really any more resistant to outside influence than Scott’s . . . or yours, Norm? Why the disapprobation for a blawg that you read and on which you comment?

keep looking »