Defending People

Posted By Mark Bennett on February 7, 2010

I had a client recently—call him Sam—who got in the law’s bad graces for some conduct involving alcohol and the brandishing of a firearm in his garage while his young daughter slept upstairs. The daughter—well-fed, well-loved, well-adjusted and well-cared-for—was never in any danger and never even knew what had happened.

Only a total idiot would think it was a good idea to take that child out of that home, but CPS was all over Sam’s case, questioning his daughter at school, filing suit against him, threatening to take her away from him and his wife. By spending a bunch of money on lawyers, Sam and his wife were able to fend off CPS and keep their very lucky child in their home.

Sam commented to me at the time that he thought the CPS bureaucrats were racists; if he had been the same race as them, he said, he would not have had to fight so hard to keep his child. I shrugged and ascribed his view to bitterness at a terrible experience with a stupid bureaucracy; surely, I thought, CPS overreacts to everyone regardless of race.

Then I saw this story in the Houston Chronicle:

For 17 years, Texas Child Protective Services workers suspected that Almita Nicole Lockhart, a drug addict now accused of starving her daughter to death, was unable to care for her children.

They investigated in 1993 and 1994. In 1996 and 1999. And five other times between 2000 and 2009, the year her 8-year-old daughter, Halle Shamille Smith, died of starvation, records show.

That an eight-year-old child should starve to death in Houston in 2009 is horrible, tragic, sick. There’s plenty of blame to go around: it takes a village to starve a child. Almita Lockhart was not competent to take care of her children; this is obvious, and should have been obvious to CPS when she tested positive for drugs on the days of two children’s births. Almita needed help, or an intervention, that CPS was not willing to give her.

The effort used to snatch Sam’s child could have been put to better use. If Almita’s case had been attacked with the same vigor as Sam’s, children would have been removed from the home. There’s no way Almita—drug-addicted mother of 10—could have afforded the same defense that Sam got.

In fact, CPS was going after Sam while Halle was starving to death. Everything has an opportunity cost, and the opportunity cost of trying to take one child out of a loving, safe, and nurturing home may have been to abandon another to an anguished death of starvation.

For whatever reason CPS employees didn’t try as hard in Almita’s case as in Sam’s, it contributed to Halle’s death. So I have to ask: is Sam right? Was the difference between Sam’s treatment and Almita’s the race of the parents? Do CPS employees give preferential treatment to people of one race over another?

Almita, you see, is African-American, and Sam is as white as can be.

Category: racism | 8 Comments »
Tags: CPS

Posted By Mark Bennett on February 5, 2010

Yesterday at the ABA Journal Blogs, Debra Cassens Weiss asked, Are Ghostwritten Blogs Unethical.

In the comments, “defunct big law associate” (in other words, my Rhodesian Ridgebacks have spent more time in law offices than he has) BL1Y writes,

The fact that this is even a question shows a fundamental flaw in understanding how law firms operate. Legal opinions are largely derived from treatises and best practice memos published by other firms. Documents are mostly taken from form books.

None of this matters. It doesn’t matter if your attorney is independently brilliant, or just happens to be resourceful in finding what you need. If we were dealing with writing novels or poetry, then original work would be important, but that’s not what law is. It’s a practical enterprise and all that matters is the final product.

This may well be (though I doubt it is) true at the large law firms at which 20% . . . 19.9% . . . 19.8% . . . this post is taking a few minutes to write, so let’s call it fewer than 20% of America’s lawyers practice.

It is not true everywhere else. Practicing law badly can be done from the form books, and original work may not seem important to a BigLaw first year. But all of the law has not been practiced, all of the briefs have not been written, and all of the arguments have not been made. Lawyering on the level that every lawyer should at least aspire to is a creative process. The practice of law, is, where it counts, a creative enterprise.

This is obviously true of courtroom lawyering (whether trial lawyering, which is what I do, or litigation, which is what people who don’t try cases say they do). Courtroom lawyering is all about communication—with the client, with opposing counsel, with the judge, with the jury, with witnesses. In the courtroom, brilliance makes a difference.

Transactional lawyering is also (though perhaps not equally) a creative venture. Future litigators will be trying creatively to undo the contract; today’s transactional lawyers have to creatively anticipate what mistakes the parties might make under the contract, and what the litigators will try to do to undo their work.

Lawyers who have to get hired by human beings will tell you (okay, I’ll tell you) that personality is crucial. There is no “best” lawyer for every case; the relationship between the lawyer and the client is everything. Clients don’t hire lawyers they don’t like and trust.

Whatever part of practicing law doesn’t involve creativity can be sent overseas to someone who will do it in Noida at a twentieth the cost—if your job can be offshored, it will be (which is probably why BL1Y is living back with his parents).

Category: biglaw, creativity, outsourcing | No Comments »
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Posted By Mark Bennett on February 5, 2010

Dan Hull (What About Clients) writes (again—it’s a recurring theme on his blog) about anonymous blogging and commenting:

This blog does not publish anonymous comments. Absent compelling reasons, nameless blogosphere participants, in our view, are rarely worth anyone’s time, thought, or respect–even when they think and say brilliant things. Anonymous writers have already “discounted” themselves. They are second-class citizens. And they generally say third-rate things; they have no incentive to exceed below-average.

When the Founders declared, “We hold these truths to be self-evident,” it was an act of intellectual honesty, a signal of the basis of the logical argument that followed. They were not claiming some inside knowledge of the working of the world; they were not asking their readers to believe them because of who they were. They explained their premises, described the conduct of the King, and explained how, because of those premises, that conduct justified revolution.

When Madison, Hamilton, and Jay wrote The Federalist Papers as Publius, they were not concealing their names to protect themselves; they were maintaining their anonymity so that their logic and rhetoric would stand or fall on its own, independent of the authority of the authors.

Anonymous writings will be credited if their premises are clear and their logic is rigid; the opinion of a known writer will be credited if the writer is credible. But an anonymous writer’s opinion is of no value.

In America today, law schools take people’s money to teach them to “think like lawyers” (and often fail). That people can graduate law school in America without knowing how to think like a lawyer—that is, with logical rigor—is a harsh indictment not only of the universities, but also of the primary and secondary education systems.

Here are we, beneficiaries of a means of mass communication unimaginable a hundred years ago, and at the same time heirs to a hundred-plus years of form over substance in American education. Anonymous commenters spew their unsupported opinions into cyberspace as though they have meaning; the only sort of argument they know the name of is ad hominem (though, having no training in rhetoric, they have no idea what it means, which is why they throw it around so much).

Those whose identities (native or constructed over years of blogging) are known have some skin in the game. If they say something ridiculously stupid, it’s attached to them forever. So they are motivated to make sense.

Known commenters more often try, at least, to support their arguments. Why? Is it just that those who are willing to identify themselves, having some skin in the game, try harder, or is it that those who are comfortable with logic are more willing to identify themselves?

Regardless of whether the chicken or the egg came first, I’m with Hull. If you’re not willing to sign your own name to your real words,

(1) Get over yourself. (2) Get some help. (3) Or simply get back to work. You’re just not ready for the bigs.

Category: Uncategorized | 3 Comments »
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Posted By Mark Bennett on February 4, 2010

After Rosa Villegas-Vatres ran a red light and hit and killed Steve Morrison, she was arrested and charged with criminally negligent homicide (John Nova Lomax, Houston Press; easier to read all-on-one-page print version).

Villegas-Vatres wanted to plead guilty to misdemeanor deadly conduct. The prosecutor, Brent Mayr told Steve Morrison’s family that, and warned them that it was a difficult case and that the chance of a guilty verdict was not very high.

The Morrisons were undaunted. After discussing the matter in a family meeting, the Morrisons voted and it was unanimous. Frank Morrison told Mayr they wanted Villegas-Vatres to be prosecuted to the hilt, even if that meant she would be deported back to a potentially dangerous situation in El Salvador. “That way at least if she was found not guilty, she would have gone through the judicial system and had a fair trial,” he says. “We would rather have seen that than to have her plead down to a misdemeanor and pay a fine or something. And we all felt that she was trying hard to get that plea bargain, because that T-visa would have been revoked if she had been convicted of a felony. They would have deported her. And my niece and nephew and both my sisters and I decided we would go for it all.”

(Emphasis added.) That is perfectly understandable: she killed their loved one; they wanted her to have a fair trial, even if it meant that she would be deported and killed. Equally understandably, they also wanted to be able judge how she felt about what she had done:

Like so many victims’ families, the Morrisons wanted to see the perpetrator’s demeanor. “We were gonna be able to see how this woman reacted,” he says. “Did she hang her head? Was she sorry? Was she remorseful, or was this just another day for her?”

Then the case was dismissed.

The family could still get a lawyer and file suit against Ms. Villegas-Vatres. A civil suit would be much easier to prove—the standard of proof would be lower, and the fact that she ran a red light would effectively put the burden on Ms. Villegas-Vatres to show that she was not negligent.

A civil case wouldn’t even have to go to trial to satisfy the family’s need to see her demeanor; notice Ms. Villegas-Vatres’s deposition and (even if she takes the Fifth) you can see if she hangs her head, is sorry, or is remorseful for accidentally causing the death of another human being (in other words, if she is not a sociopath). It would cost a couple or three grand, and the even if wouldn’t come into play—Ms. Villegas-Vatres would have no chance of being deported to El Salvador for a civil judgment.

But “after estimating that Villegas-Vatres was likely not a wealthy woman, the family decided to forgo that option.” You don’t go around suing uninsured judgment-proof drivers for the money, but the family’s decision sets a value on the things that the family wanted—a fair trial, and to see her demeanor.

When they had the possibility of getting those things (and possibly some retribution) while the taxpayers were paying the lawyer, it was worth prosecuting the case “to the hilt.” When the burden of paying shifted to the family, however, the math changed. Suing Ms. Villegas-Vatres civilly was not seen as worthwhile, even if there was no chance of her losing her T Visa and being deported to El Salvador.

It’s commendable that the family put Villegas-Vatres’s possible deportation on the debit side—if I were in their situation I can imagine that I might have made the same decisions while saying, instead of “even if,” especially since.

Category: retribution | 4 Comments »
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Posted By Mark Bennett on February 3, 2010

On April 16th, 1995 (three days before the highly-significant-to-militias April 19th anniversary of the Oklahoma City Bombing and the burning of the Branch Davidian Compound in Waco), Scott Roeder was arrested with bomb-making materials.

Roeder claimed association with the “Freemen” movement, yet another batch of personal sovereignty kooks.

On May 31, 2009, Scott Roeder shot down abortion doctor George Tiller in church in Wichita, Kansas.

There are thousands like Roeder, ignorant and disaffected, looking for an opportunity to make their mark on the world with a grand gesture like blowing up a federal building or killing a doctor. Thousands. This is the nondescript face of domestic terrorism.

After his arrest, Roeder was not spirited away for three and a half years to a navy brig in South Carolina and deprived of counsel; nor was he tried by a made-up “tribunal” or commission. Instead, he was appointed a lawyer and provided with resources for his defense and last week in Wichita, Kansas, Roeder was tried publicly before a jury of his peers for the murder of Dr. Tiller.

Roeder testified that he had no choice but to kill the doctor: “If I didn’t do it, babies would die the next day” (from Wichita reporter Ron Sylvester’s excellent live-tweeting of the trial). The former Attorney General of Kansas had filed charges against Dr. Tiller for performing illegal abortions; the charges had been dismissed because Kline had not had jurisdiction to file a case in Sedgwick County (this testimony was outside the jury’s presence).

For a killing to be legally justified, it must be in reasonable anticipation of the imminent unlawful use of deadly force. The judge in Roeder’s case let Roeder testify about the facts that he felt justified the killing, but did not instruct the jury on the law of justification. While abortion-rights groups freaked out at the idea that Roeder should have a podium from which to try to explain himself, the first half of this was the legally-correct ruling: an accused gets to present a defense. The second half was legally correct as well: the jury doesn’t get instructed on a defense unless it is raised by the testimony.

But the legally-correct ruling is not always the best ruling. Had the jury been instructed on the justification defense, the prosecution would have explained to the jury that abortion is not unlawful, and the defense wouldn’t have had much of an argument to the contrary. The result would most likely have been the same, except that ignorant disaffected domestic terrorists would have seen that, even when they are given every possible legal break, they’re still going to lose because they are wrong. Juries can tell right from wrong.

To acquit Roeder in the face of a justification jury instruction would have required jury nullification. If the twelve jurors least unacceptable to both the defense and the State of Kansas thought that abortion was not only wrong but so wrong that Dr. Tiller needed killing, then there is something wrong with the law.

Excluding a defensive instruction serves only to insulate bad laws from nullification. If you don’t trust juries and you’re intent on preserving the power of government, this is a good thing. If, however, you believe that the law is right, believe that a jury will agree, and want your jury verdict to express truly the will of the community, it’s not. If you’re not afraid that the jury will nullify, give the justification instruction.

Scott Roeder is a terrorist. And a criminal. Justification instruction aside, we were not afraid to put him to trial, in civilian court with a lawyer and cross-examination and live witnesses. Some were afraid of letting him explain his views, but their fears were unjustified. What Scott Roeder said in court will be soon forgotten; what the jury said in response will be long remembered.

Category: principles, terrorism, the system, trial | 4 Comments »
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Posted By Mark Bennett on February 3, 2010

In this morning’s Houston Chronicle, criminal defense lawyer (and HCCLA ex-president, and former U.S. Navy officer) Pat McCann asks, Since When are Americans Afraid of Trials?

Those who are caught in the act of a crime or afterward and can be prosecuted in our justice system, however, should be prosecuted. There is no simpler way to reveal these people for what they truly are, and no better way to show the world who we are. That is how the battle gets won, not by hysterical fear of a trial, nor by making these men out to be somehow too powerful for our system to deal with. They are not. It actually helps them to think our politicians and pundits are pandering to panic and fear when they read that they are too dangerous to hold in the United States. They do not deserve such mythic status, and our cowering pundits and public figures should not give it to them.

(Most of the comments are the usual anonymous ignorant “this is war, they are enemy combatants, the Constitution is not a suicide pact, and furthermore yer a damn liberal” ranting.)

Category: terrorism, trial | 1 Comment »
Tags: Pat McCann

Posted By Mark Bennett on February 1, 2010

42 criminal defense blogs.

Category: blawgs, criminal defense | 3 Comments »
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Posted By Mark Bennett on January 30, 2010

I wrote a couple of posts over at Social Media Tyro about the ethics of ghostblawging (something I’d scribbled about here before). One ghostblawger’s response raised broader issues that fit better here at Defending People.

In an email, Jenni Buchanan of LegalGhostblogger.com invited private discussion of the ethics of ghostblogging, and asked that I remove my link to her testimonial page:

[P]rofessional responsibility is not something I take lightly, and I feel it is my professional responsibility to be the “front man” in this debate, and bear the brunt of this particular criticism.

There are entire industries that depend on the ignorance of their potential clientele: the CPN industry, the personal-sovereignty industry, the A/C-duct-cleaning industry, the brake-repair industry, the extended-warranty industry, to name but a few.

Online legal marketing is (in large part) the same sort of industry. FindLaw gets $6,000 (for the first year) for an 8-page website (Turkewitz, FindLaw—How to Leave and Save Your Reputation [and Money]). Disbarred lawyers set up shop as social media experts while the last shreds of their licenses are still swirling the drain (Cuban, Anti-Socializing the Legal Profession). And Jenni Buchanan helps people “enhance their credibility” by representing her writing as their own:

Like those who sell Credit Privacy Numbers or unneeded brake repairs, the social media snake-oil salesmen of the world don’t want their potential customers to look too closely at what is behind the curtain. The more knowledgeable a lawyer is, the less likely she is to give them money. So they try to keep the discussion private, bemoaning the lack of civility when tough questions are publicly asked.

But public discourse makes good policy, and a well-educated consumer is better served. If a lawyer’s use of a ghostblogger were somehow ethical (it isn’t), public discussion would reveal it; otherwise, that using a ghostblawger is deceptive should be considered by anyone in a position to do so.

Category: advertising, ethics and/or professionalism, marketing | 7 Comments »
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Posted By Mark Bennett on January 27, 2010

It’s easy to respect the rights of the pretty people, the popular ones, the charming folk, the nice guys.  No one’s going to run roughshod over Mr. Rogers’ rights.  We probably don’t need a Constitution to protect the Prom Queen.  It’s the assholes we need to write the rules for.  It’s harder to treat them well, to be fair to them, to refrain from punching them.

Preaching to the Choir, We Rock.

Category: constitutional rights | 3 Comments »
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Posted By Mark Bennett on January 27, 2010

Guy James Gray and  his client didn’t talk for six weeks before trial:

When asked, “How can you defend a guy when you’re not communicating with him?”, Gray replies:

I filed a motion asking to get off the case. The judge didn’t want a delay, and he made me try it, and I tried it.

So having asked to get off the case, you’ve got no further duty to do things like communicate with your client? What a whiner. (Did I mention that he’s a former prosecutor? Just checking.)

The one bright spot: he’s retiring.

Category: ethics and/or professionalism | 3 Comments »
Tags: Guy James Gray, Matt Baker