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?

Glen Rose, Texas, May 4, 2008

Posted on May 6, 2008
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ZebraNose.jpg

Which is Worse?

Posted on May 5, 2008
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Houston criminal defense trial lawyer Sarah Wood and I have a disagreement.

She says that when I put my hand in my pants and simulated masturbation in an indecent exposure jury trial to illustrate what the police officer admitted having done to entice the accused to show his penis, it was “much worse” than Adam Reposa’s conduct that netted him 90 days in The Reposa Affair.

I contend that my demonstration for the jury was entirely appropriate.

It Might Just Work

Posted on May 5, 2008
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While I was contemplating the six-thousand-year-old theropod and sauropod tracks on Mr. McFall’s farm over the weekend, Dallas D.A. Craig Watkins came out in favor of summarily executing prosecutors who concealed exculpatory evidence . . . well, actually just hitting them with bar sanctions and maybe criminal prosecution. Lots of folks had something to say about this:

Grits, Dallas Criminal Defense Lawyer Robert Guest, Fort Worth criminal defense lawyer Shawn Matlock, Connecticut public defender Gideon, and New York criminal defense lawyer Scott Greenfield.

Ordinarily you would think that by the time the Connecticut and New York bloggers got to a Texas topic it would be as dead as Eight Belles and not in need of further flogging. But the two Gs are on top of things, so their posts never scare me off. I though of an angle — how are the prosecutors on the TDCAA forums reacting? — only to find that Wise County, Texas criminal defense lawyer Barry Green had beaten me to it. Bryan, Texas criminal defense lawyer Stephen Gustitis went there, too.

All I have to add right now is that if a like-minded Harris County District Attorney is elected, he and Mr. Watkins together might have enough influence with the legislature to actually get the legislature to give Brady some teeth.

I didn’t like prosecutorial lobbying of the Texas Legislature when it was Chuck Rosenthal trying to kill LWOP (why should the executive branch, charged with enforcing the law, be paid to try to change the law?) but now I can see its value.

The Real News: AP is Clueless

Posted on May 2, 2008
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The Associate Press reports (H/T Judgment Day) that the feds prosecute more Hispanics than white people for powder cocaine trafficking. In a desperate bid to get more of a reaction than “Duh!”, the writer, Laura Jakes Jordan, tries to draw a meaningful connection between the feds’ prosecution statistics and the public perception that powder cocaine is a white man’s drug; here’s the lede:

They were indelible images of the cocaine world of the 1970s and ’80s: Rich yuppies and white suburbanites partying down with a couple of lines of “blow.” Stockbroker Charlie Sheen snorting up in the limo in “Wall Street.” Woody Allen’s sneeze in “Annie Hall.”

More than 30 years later, the image remains but the reality of coke in the United States has shifted significantly. Long portrayed as a white crime, Hispanics now make up the overwhelming majority - 60 percent - of federal offenders facing powder cocaine charges.

The federal offenders facing powder cocaine charges are, of course, not accused of “partying down with a couple of lines”. They are almost invariably charged with trafficking. The feds don’t bother a whole lot with simple possession cases and, moreover, shouldn’t.

The story does not demonstrate the advertised “shift in the reality of cocaine in the United States”. That the feds prosecute mostly Hispanics says nothing about who the users are. Powder cocaine is still a white person’s drug; nothing in the story gives us reason to doubt it.

Yet cocaine trafficking is a business dominated by Hispanics.

Why? Because coca leaves are grown and cocaine is manufactured in Spanish-speaking countries, and cocaine can travel from supply to demand without leaving Spanish-speaking territory.

Duh!

Hoist With His Own Petard

Posted on May 1, 2008
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Frisco, Texas DWI lawyer Hunter Biederman brings us this heartwarming story of Mike Crusee, a state rep from Williamson County, Texas illustrating the white republican hypocrisy for which that county is justly famed. Mr. Crusee, who “carried and passed legislation in 2003 that created something called the ‘driver responsibility program’ to help fund the Texas Mobility Fund. That program included a number of surcharges for driving offenses, including $1,000 for a first conviction of driving while intoxicated,” got arrested for DWI.

(He is undoubtedly innocent of the crime, since he refused to blow.)

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