Defending People

Recall the story of the two Chicago PDs whose client, Wilson, confessed to them that he had murdered a security guard, and that Logan, who was doing life for the murder, had not. The two lawyers, Jamie Kunz and Dale Coventry, waited till Wilson died in prison, 25 years later, to reveal the truth and set Logan free. They spoke in May at the ABA’s 35th National Conference on Professional Responsibility in Chicago.

They didn’t have a choice? This is an outright lie. Kunz had a choice; any time we are self-aware enough to say, “I don’t have a choice”, we have a choice: obey the law, or risk its sanction. Instead of sleeping for 25 years with Wilson’s confession under his pillow (I wonder: how did he sleep?), he could have come clean and faced the music, however unpleasant.

Sure, the legal answer to the question Kunz faced was cut-and-dried. But there’s a difference between the law (disciplinary rules are law) and ethics. When the law and ethics clash, a person has a difficult decision to make: do what’s right, or do what’s legal? Both paths necessarily have costs.

Kunz’s ethical position was not nearly as clear as his legal position. It’s good to keep an innocent man from spending his life in prison, and it’s good to maintain a client’s confidences. Each has very high value. Either choice should weigh on a lawyer’s conscience. Ethical decisions are often like this; the right choice is the one that weighs less.

Ethics are navigational tools for rough seas. The whole point of having ethics is that with them we make the correct choices when times are most difficult. If we avoid or surrender the tough decisions, we don’t need ethics.

To abdicate an ethical decision in favor of a legalistic proscription is not an ethical act. In wishing for rules to relieve him of the responsibility for difficult decisions, Kunz displays cowardice worthy of a functionary of the Third Reich: Kunz was just following orders; he was glad to have the orders to follow so that he didn’t have to have ethics and didn’t have to count the cost; and, moreover, he wouldn’t have it any other way.

Maybe Kunz’s cowardice is not to blame for Logan spending 25 more years in prison than he should have. Maybe, if Kunz had consulted his own ethics, the result would have been the same. But the cost of the decision that he made was that Logan spent the better part of his life in a cell. Because of what Kunz and Coventry did, every time they were having dinner with their families or playing with their children Mr. Logan was locked in a box for something that they knew he had not done.

Some may say that I’m being unduly hard on Messrs. Kunz and Coventry. I say not. This weekend we celebrate the actions of a gang including merchants, farmers, doctors, and, not least among them, lawyers, pledging not only their lives and their fortunes, but also their sacred honor to doing what was right, in violation of law and defiance of government. Mr. Kunz and Mr. Coventry, eager to substitute the dictates of the law for those of their own hearts, sold their honor cheaply. Mark the contrast.

I got a letter from a Texas prison last week: contraband had been confiscated from an inmate (not a client) after arriving in an envelope with my return address on it. The contraband was described as “two UCC Packets.”

After dashing off a cross letter to the warden about people using my return address to send contraband to Texas prisons, I investigated why “UCC Packets” might be classified contraband. It seems that some prisoners go around filing vexatious liens against prison guards under the UCC. To try to stop the practice, Texas prisons have proscribed the UCC.

I have no philosophical objection to adding the UCC to the new Index Librorum Prohibitorum. Its arcane powers are so great that they should be available only to the chosen few (by which I mean members of the British Accreditation Registry (B.A.R.)).

As inmates’ loved ones on the outside can get their hands on the One Law to Rule them All (by which I mean the UCC), though, it seems counterproductive to try to keep it out of the hands of inmates. Including it in the same category as drugs, or obscenity, or cell phones only serves to emphasize its dominion. If we want to—and I believe we do want to—maintain the B.A.R.’s official position, the pretense that the Uniform Commercial Code is not the supreme law of the land, trumping statutes, caselaw, treaties and even the Constitution, then the better course is to let the inmates have their UCCs. If we keep pretending, some of them will believe that the UCC is just a statute governing commercial transactions. (Some of them won’t, but we should be able to trust the courts to dispose of their claims in line with the B.A.R.’s official position.)

Nobody asked me how to protect the illusion that the UCC is not all-powerful, and I’m not the one making policy for the B.A.R. But I feel strongly that this treatment of the UCC is counterproductive, and I shall say so in my next quarterly report to the Queen.

Defending People reader “Ryan”, writing at Plain Error, the official blog of the Innocence Project of Florida, responds to my “Law and Justice Explained.” post:

As someone with the status just above armchair philosopher (disclosure: I will be attending graduate school for a PhD in philosophy in the fall), I have a few words on that one.

The idea that “justice” has no relationship to the law – and the poster is very clear that they believe this – is, I think, obviously mistaken. This is what they say:

1) Justice is a topic that exists in philosophy.

2) Law is what a bunch of mostly long-dead politicians thought would get them elected.

3) Never the twain shall meet.

Here are the missing premises.

1) Justice is a topic that exists in philosophy.

2) The public, with whatever understanding of philosophy they have, combined with their upbringing and social mores, have formed concepts of justice for themselves.

3) A voter’s support for a politician is proportional to their belief that the politician is like them, or will enact policies that see their beliefs fulfilled.

4) The more a politician’s ostensible definition of justice falls in line with a voter’s the more likely that voter is to support that politician, other things being equal.

5) Politicians act in ways they believe will get them elected.

6) Politicians mimic what they believe is the public conception of justice when they enact laws because they believe it will get them re-elected.

7) Laws come to resemble the public conception of what justice is.

Finally, which should be a premise between my (2) and (3) above: as much as philosophers like to think they’ve got it figured out – though they are often quick to point out that they know nothing – you might be surprised at how much philosophical conceptions of justice are either informed by or in line with public conceptions.

It’s been a long time since the last philosophy course I will confess to having taken. The whole of the intellectual residue from my formal philosophical training is the ability to distinguish Khan from Kant: (more…)

I just stumbled upon this, in comments to a long-ago Ann Althouse post:

One of the most annoying things about lawyers is the way they casually conflate “law” with “justice.” To clarify: justice is a concept in philosophy; also to some extent in psychology, sociology, economics, etc. Law is what a bunch of mostly long-dead politicians thought would get them reelected. There’s no connection between the two. None. The relation between law and those other fields is much like the relation between astrology and astronomy…except that astrologers don’t have guns.

Perfect.

At Illinois and Missouri lawyer Evan Schaeffer’s Trial Practice Tips Weblog, Evan has a link to an Amazon list of 16 Books to Read if You Want to Become a Better Trial Lawyer by Dallas Government lawyer Shane Read. Shane’s list includes Gerry Spence’s How to Argue and Win Every Time, Posner’s How Judges Think, and Read’s own Winning at Trial, as well as 14 other books from which people might try to learn skills and the The New Yorker Book of Lawyer Cartoons.

Trial lawyering (by which I mean criminal defense trial lawyering; I know very little about civil litigation, which apparently involves something called a “deposition”) is a creative endeavor. Skills are important, of course—before we can improvise, we must have technique to burn—but trying to learn how to try cases from a book is like trying to learn how to play jazz from a book. The way to learn trial skills is to watch, listen, and most importantly do.

So I am not one who thinks that reading about trial skills—even reading transcripts of the best trial lawyers at work—is an effective way of getting to be a better criminal defense lawyer. Regular readers should not be surprised to learn that my becoming a better criminal defense trial lawyer reading list begins not with skills but with philosophy.

• The Unfettered Mind: Writings from a Zen Master to a Master Swordsman
• The Book of Five Rings
• Being Peace
• Tao Te Ching (Mitchell Trans.) (Criminal defense lawyers keep rediscovering the Art of War; to my mind they would better understand it if they started with Lao Tse first.)

Trial is improvisational storytelling. Here are three books on improvisational theatre that will open your mind to ways to be a better trial lawyer:

• Improvisation and the Theatre
• Impro for Storytellers
• Free Play: Improvisation in Life and Art

Here’s a book on theatre, specifically:

• Sanford Meisner on Acting

Here’s a book on the broad strokes of storytelling (how to put together a compelling story):

• The Writer’s Journey: Mythic Structure for Writers

I recommend three other books on skills, but they aren’t exactly law books:

• The Game: Penetrating the Secret Society of Pickup Artists
• My Voice Will Go With You: The Teaching Tales of Milton H. Erickson, M.D.
• Frogs into Princes: Neuro Linguistic Programming

Not fitting into any of those categories, but helping criminal defense lawyers better understand how they deal with the high-stakes short-fuse world of trial:

• Brain Rules
• Deep Survival: Who Lives, Who Dies, and Why

Finally, I will throw in one legal skills book, for those who think that lawyers should read lawyer books:

• Jury Argument in Criminal Cases: A Trial Lawyer’s Guide (Second Edition), by Ray Moses of South Texas College of Law, will give you 5500 sample arguments to incorporate into your next jury trial.

Enjoy.

A few rules from growing up Bennett:

• Never lose altitude unnecessarily.
• Slow, slow. Look, Look.
• Never pass up a chance to relieve yourself.
• Don’t let too much small stuff pile up (this is the companion rule to the more widely known “Don’t sweat the small stuff” and “It’s all small stuff”).
• There’s always a hair in the food.

This last rule is crucial to a correct understanding of both life and jury selection.

A hair in the food is disgusting, right? Eating someone else’s hair never killed anyone but, still, not eating someone else’s hair is—as a general rule—better than eating it. When you’re eating at a restaurant and you find a hair in your food, if you didn’t already know that there’s always a hair in the food you might get upset and angry.

Once you know that there’s always a hair in the food, though, you celebrate when you happen to find it. (You also don’t complain: if you find a hair in a dish and send the dish back, you’re guaranteeing yourself a second hair, and you might not be so lucky as to find it the second time.)

Life is like that too. When you discover an unpleasant secret, you can be unhappy about it, or you can be happy that you discovered it (”Fantastic! If I hadn’t known that . . .”).

So it is with jury selection: there’s always a hair in the food. Every juror has at least one “bad” answer—one that would, if every juror shared it, torpedo your case—inside her. You can have various objectives in jury selection—build a group, educate the jury, have fun—but whatever your other goals, the more of these hairs you discover, the more successful the jury selection.

I watched a lawyer picking a jury once freak out at a “bad” answer that one potential juror gave her. He had a different worldview than she did, and she raked the poor guy over the coals. It didn’t help that he was elderly and black and she was young and white, but what really hurt her case was that her treatment of him was unfair. He had earned that worldview, and anyone who wasn’t a sheltered child of privilege knew it.

She hadn’t gone into jury selection accepting the fact that she was going to find bad answers, much less looking forward to doing so, still less making it her mission to do so, and she wound up with a jury that didn’t give her any more bad answers, instead carrying them into the jury room, where they quickly ruled against her (and, by extension, her client, the government).

I’ll talk later about what to make out of all those hairs you find. Until then, just remember: the fewer hairs you find in jury selection, the more you’re eating.

Digest This!

Bryan, Texas criminal defense lawyer Stephen Gustitis (The Defense Perspective) is representing a guy charged with harassment for making an “obscene” comment in a written communication (artist’s depiction follows): (more…)

The National Police Misconduct Statistics and Reporting Project . . .

devoted to solving [the lack of information about police misconduct] by gathering information about reported incidents of police misconduct across the US, analyzing and compiling statistics based from several sources, and then publishing the results of all this information in a reader-friendly way in order to encourage informed debate where it was once impossible to do because of the lack of information on the subject of police misconduct

. . . is in trouble. Its author, Packratt, has been slammed by the economy; he needs to reclaim the hours he spends each day on collecting and analyzing incidents of police misconduct and turn his efforts toward making money and taking care of his family.

Injustice Everywhere is about to go dark.

I empathize with Packratt. We men are hardwired and culturally programmed to take care of our families, and the feeling that we’re failing or even in danger of failing is a sickening one. I hope Packratt is able to find work that frees him from worrying about his family having a roof over their heads and food in their bellies. I hope it pays him well enough that he can afford to spend the time to resurrect his blog and @InjusticeNews Twitter feed (which I have scraped into my left sidebar).

Meanwhile, though, we’ll be without Packratt’s clearinghouse for police misconduct information, which is a shame.

In a more-perfect world, Packratt would compensated for time spent cataloging and discussing police misconduct (in a perfect world his work would be unnecessary). He is providing a benefit to society; there is no serious argument to the contrary.

Providing a benefit to society isn’t worth much on the free market. As a general rule, those with the money are more invested in (and indebted to) the status quo. Packratt has a Paypal donation button on his site; it appears that society values the benefit he provides at $10 per month; call it 10¢ an hour.

He’s not selling widgets, or services, or SEO secrets; he’s not producing something that someone else can take and use to turn a buck. Packratt’s product is pure information. He’s providing an uncomfortable truth: that what Radley Balko ironically calls “isolated incidents” are, perhaps, more common than analogous crimes among the general population. So: 10¢ an hour.

But beauty is truth, and truth beauty, and that’s gotta be worth something to someone. I know it’s worth something to me, but I can’t afford singlehandedly to subsidize Packratt’s research and writing. So, how about it, Defending People readers? I know that times are tough, but can any of you join me in pitching in a few bucks to encourage Packratt to keep the lights on for one more month?

Better, can any of you dream up a way for Packratt to find longterm public or private funding (a grant?) to keep doing what he does so well?

I’ve watched the video, and I don’t know if he did it. Maybe he, like so many of my clients, is the victim of a false accusation, betrayed by the criminal justice system. Maybe he was just running his hand along the side of the car feeling the damage that someone else had done.

But (please keep this just between us) I felt a frisson of guilty pleasure when I learned that retired judge (and former HCCLA President) Woody Ray Densen had been indicted for criminal mischief after his neighbor gave prosecutors this video, showing a guy who could well be Woody doing something that could well be keying the neighbor’s car:

Woody Densen is the rare defendant who probably wouldn’t want to be judged by a jury of 12 criminal defense lawyers. The Harris County Criminal Lawyers Association filed an ethics complaint against him in 2007 for:

1. Threatening to jail an unrepresented defendant for being financially unable to retain counsel;
2. Refusing to conduct an indigency hearing for said defendant and appoint him the counsel he requested;
3. Treating this defendant in a discourteous, unprofessional and impatient manner;
4. Actually jailing a female defendant because she had been unable to retain a lawyer in the one and one-half working days she had been given to do so by the presiding judge of the 248th District Court, the Hon. Joan Campbell;
5. Presiding over a plea of guilty from an accused person who the judge knew was unrepresented by counsel and by persisting in conducting said plea even after being repeatedly advised that said person was not represented by counsel;
6. Permitting a member of the court’s staff to speak to an officer of the court in a rude, insulting and unprofessional manner, in open court and in furtherance of eliciting a guilty plea from a person whose lawyer was not present; and
7. Manifesting racial bias or prejudice in the performance of his judicial duties.

The Commission for Judicial Conduct dismissed the complaint, of course, because creating the illusion, and only the illusion, that unethical judges will be disciplined is its raison d’etre. HCCLA has had the satisfaction, however, of not seeing Densen on the bench in Harris County since then.

Aside from the grounds for the complaint, Woody has caused enough misery to enough people accused of crimes (and tried to cause more misery to more, but failed because of incompetence) that a Houston criminal defense lawyer should be forgiven a little schadenfreude right about now.

There are judges whom I can’t easily imagining keying someone’s car; Woody is not one of them. Is he falsely accused? Maybe so. I suspect that any pain we cause others eventually catches up to us one way or another. In Woody’s case, it’s a pleasure to be around to see it happen.