A man needs a code to live by. I believe in living according to principles — for example, the principle that humans should be free. Sometimes there are competing principles, and a person who lives according to principle must either rectify them or choose between them. Because humans should be free, humans should fight for freedom.
A principle that competes with humans should fight for freedom is that the guilty should be punished. Some people live by that principle. Both principles have much to recommend them, and some people live by the latter principle, but I choose to live by the former because I know who’s human, but I don’t know who’s guilty.
Government is the enemy of human freedom. So a corollary of the principle that humans should fight for freedom is that humans should fight the government. When one human helps the government, he makes the government more powerful and therefore makes another human less free.
The federal criminal system of trading information for freedom is repugnant to my principles. When a person helps the government make a case against someone else, I see him climbing out of a hole that he dug for himself by stepping on the heads of others who are no more guilty than him.
Yet, despite my principles, I have helped many people in federal court trade information for freedom. Why? Because I have viewed this as a game that needed to be played for my clients’ sakes — a necessary evil.
But a necessary evil is still evil, and by playing the game I perpetuate it.
I am a trial lawyer by training and by nature. I was born to stand up in court and fight the government. A lot of people have put a lot of energy into making me into a better trial lawyer. I have spent countless hours honing my craft so that I can make it more difficult for the government to take away human freedom, not easier.
There are lawyers who hold themselves out as being able to get the lowest sentences through cooperation. I have never been one of those. I’ve had clients get good results through cooperation, but I’ve always viewed it as more a function of their ability to please their governmental masters than of my own skill.
If there is talent involved in acquiring a 5K1, I don’t see it, and I certainly don’t have it. Hard as it is for me to believe, I have to leave room for the possibility that there are art and science to representing cooperators; if so, I haven’t studied them, and I don’t intend to start.
So I’m seriously considering a new personal policy against cooperation with the government in federal cases.
I would write into my contract a provision that my fee did not include cooperation, and that the client would have to seek other counsel to assist them with cooperation.
I would help those clients I have now cooperate with the government if we decided that it was in their best interest.
I would also remove myself from the CJA list, because appointed counsel can’t have scruples against doing anything within the rules to help their clients.
I’ve been trying to work out the downside of this plan. I won’t get as many federal clients (because fighting the feds is not for everyone); that’s okay with me — I don’t have to represent everyone. I can’t think of any harm that it would cause anyone, and it sure would be in better keeping with my principles.
Your thoughts?
Technorati Tags: criminal defense, federal, philosophy, snitches
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I wrote two weeks ago and four weeks ago about subpoenaing cellphone records. Here’s a summary of the contact information I have for the major cellphone service providers.
Subpoenas for T-Mobile records (including what used to be Aerial and VoiceStream) go to:
Custodian of Records
T-Mobile Subpoena Compliance
4 Sylvan Way
Parsippany NJ 07054
(f) 973.292.8697
973.292.8911
Subpoenas for Verizon records go to:
Custodian of Records
Verizon Cellco Partnership, d/b/a Verizon Wireless
Subpoena Compliance
180 Washington Valley Road
Bedminster, NJ 07921
Fax (888) 667-0028
Voice (800) 451-5242
Subpoenas for AT&T records (including what used to be Cingular) go to:
Custodian of Records
AT&T Subpoena Compliance
P.O. Box 24679
West Palm Beach, FL 33416
Fax (888) 938-4715
Voice (800) 451-5242
Subpoenas for Sprint records (including what used to be Nextel) go to:
Custodian of Records
Sprint Corporate Security
6480 Sprint Parkway
Overland Park, KS 66251
Fax (913) 315-0736 or (913) 315-0735
Voice (800) 877-7330
Subpoenas for Cricket records go to:
Custodian of Records
Attention: Subpoena Compliance
Cricket Communications/Leap Wireless
10307 Pacific Center Court
San Diego, California 92121
Fax: (858) 882-9237
Voice (858) 882-6084
These data are current, as far as I know. I will post updates as I learn of them.
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Today’s Houston Chronicle had a nice surprise: a front-page-above-the-fold profile of Houston criminal defense lawyer Richard “Racehorse” Haynes and Houston plaintiffs’ lawyer Joe Jamail (whom the article calls “the King of Torts” — I thought Melvin Belli had retired that sobriquet).
Mary Flood, the article’s author, blogs about the two as well. “It’s just not every day,” she writes, “you get to sit down and listen to the storytelling of two legal greats.” Indeed. I have learned more riding on elevators with Racehorse Haynes than I learned in three years of law school. Hence one of my rules of life: never get off the elevator before Mr. Haynes.
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In follow-up to yesterday’s post about the lawyer who promised that he would get the client out on bond (and, as I learned later, promised that he would get the case dismissed!), here’s some advice to clients and their families when dealing with a lawyer who promises a result that other lawyers don’t:
Get it in writing.
Ask the lawyer to set every promise down in writing. If you ask and he refuses, the promise is worthless.
I won’t tell a client anything about his case that I’m not willing to sign my name to.
There is no way in hell the lawyer who promised to get the client out on conditions of release will put it in writing. There is, equally, no way he will guarantee that he will get the case dismissed. If he did, he would be setting himself for a lawsuit and a grievance.
He may be willing to promise that he will “probably” get the client out on bond or that there is a “99% chance” he will get the client’s case dismissed. These weaselly promises aren’t less than worthless — when (not “if”) the desired result doesn’t materialize, the lawyer will claim that he never promised anything, and the client will be out of luck.
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Robert Guest blogs about three reasons cases get dismissed. Today one of my clients had his case dismissed for all three reasons — the state could not prove the case at trial, nobody really cared if he did it or not, and someone else did it.
It was a typical weed-in-the-car case, so the State really couldn’t prove that my client knowingly possessed the marijuana. That in itself wouldn’t have stopped the prosecution — the State often tries weed-in-the-car cases despite the lack of evidence of knowing possession.
It was a little marijuana case, so nobody really cared if he had done it or not. Typical malum prohibidum offense. That doesn’t stop the State from prosecuting these cases either.
My client had passed a drug test immediately after his arrest, however, and we knew who had left the marijuana in the car, though. My client had even been able to get him on video admitting that he left the marijuana in the car.
We had a winning case at trial even without the video. If the video had been introduced into evidence (it probably would have been, under the “admissions against interest” exception to the hearsay rule), it would have been a slam dunk. Until yesterday, I hadn’t revealed to the prosecutor any of our side of the case.
Why not? The drug test, combined with the video, would have resulted in an easy dismissal. But I had one minor and one major reason not to seek an early dismissal.
The major reason is this: according to State v. Beam, which I blogged about here, a dismissed misdemeanor case cannot generally be expunged until the statute of limitations has expired — two years after the arrest. An acquittal, however, can be expunged immediately. So if we took the case to trial and won, the client would have had a clear record in a couple of months, but a dismissal might remain on his record for two years before we could seek expunction.
There’s an exception to the requirement that limitations expire before an expunction can be filed, though. A dismissed case can be expunged if the court handling the expunction (a civil district court)
finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense
When I went to court for the client yesterday, there was a new chief prosecutor (in Harris County the prosecutors in misdemeanor courts move around every few months) who was clearly interested in disposing of the case. I explained that I thought I could convince him to dismiss the case, but that I didn’t want to because of the expunction problem. I told him that I would explain the case to him if he would agree to dismiss the case because of a lack of probable cause.
At this point he could have messed with my client by dismissing the case outright, but instead he agreed. He started filling out the nolle (dismissal) form, and I began to explain why my client was innocent. He wrote on the form that there was no PC.
Going to trial would have been a gamble — it always is. There’s always a chance that a jury will do something entirely unpredictable. In this case, getting a dismissal was a gamble as well. It remains to be seen whether my choice worked. We’ll find out within a few months whether a civil district court will agree with me that the dismissal in this case justifies immediate expunction.
Technorati Tags: criminal defense, dismissal, expunction
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I take an appointed criminal case in federal court from time to time. I don’t need the cases (my time is worth much more than the $94-an-hour that the federal courts pay under the CJA), but I see indigent defense as a public service. As a consequence, I don’t have any problem with my appointed clients hiring counsel.
But why would a federal accused who is getting a full-time criminal trial lawyer for free spend money to hire a civil lawyer dabbling in criminal law? Could it be because the inexperienced civil lawyer has promised to get the client out on bond within three or four weeks of his hiring?
I don’t mind my appointed clients hiring lawyers, but I do mind lawyers who deceive clients to get cases. The lawyer who promises to get the accused in a federal cocaine conspiracy case out on conditions of release is unethical and a liar.
In a federal drug conspiracy case with a possible sentence over ten years, there is a presumption that the accused is a flight risk and danger to the community, and not eligible for release on conditions. Sometimes that presumption can be overcome with rebutting evidence. But there is no combination of facts that a lawyer could have learned in a couple of conversations with the accused that would lead him to the secure conclusion that the accused would be released on conditions.
What happens next? My bet is that once the lawyer has been paid and four weeks have passed and the client is still incarcerated, the lawyer will “discover” some reason that the accused cannot get out on bond.
At some point this has to stop being my problem. That point is . . . now.
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I wrote here about managing the risks of child sex abuse, and the long-term cost to society of teaching children that men are out to hurt them.
There’s a large amount of naivete that contributes to our society’s dealings with sex abusers. Take this quotes from the WSJ.com article that inspired the “managing” post:
People assume that all men “have the potential for violence and sexual aggressiveness,” says Peter Stearns, a George Mason University professor who studies fear and anxiety.
I won’t say “all men” because nothing is true of all men. But men have the potential for violence and sexual aggressiveness. It’s biologically hardwired.
It’s unfortunate that “predator” has come to have a negative meaning, because men are naturally sexually predatory. Humans didn’t get to the top of the food chain because their males were meek and sexually passive. For most of our history (the first 140,000 years or so, until about 10,000 years ago), the individuals whose genes got passed on were those who fought better and mated more.
Fortunately for society, three things ordinarily restrain our predations: 1) taste — most of us don’t view children as appropriate sexual “prey”; 2) ethics — most of us don’t want to hurt others; and 3) powerful prey — the female of the species is in most ways (other than the purely physical) stronger than the male.
Men who prey on children are different, but their problem is not that they are predators; their problem is that they do not have the same restraints as we do. Here’s part of the abstract of a 1988 article about sexual aggression in our nearest biological relatives, the great apes:
These data suggest that male sexual aggression in our closest biological affiliates commonly occurs when females are rendered vulnerable to the male by the absence of the normal social constraints and spatial prerogatives typical of the natural habitat.
We don’t do anyone any favors by pretending that sexual aggression is not the primal state of man. Denying it serves only to make the state harder to deal with. The man who denies that he is driven by sexual aggressiveness is like the junkie who denies that he is addicted (or the U.S. senator who denies that he is gay). The state still exists, and it’s bound to cause problems — to himself and those near him, individually and societally — until it’s recognized and confronted.
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We humans don’t gamble very well. We have a natural tendency to make irrational decisions when faced with the possibility of what we see as extreme life changes. (I’ll bet the poker players or the economists have a name for this tendency.)
For example, we play the lottery. The cost of playing the lottery almost always exceeds the benefit, but many of us pay a dollar for a one-in-twenty-six-million chance of winning $2,300,000. Two million dollars is a lot of money; winning it could improve most people’s lives. Buying a lottery ticket, though, is not a rational act. That’s an example of the possible benefit overwhelming its unlikeliness.
It works the other way around too. The idea of a possible severe consequence tends to overwhelm the unlikeliness of that consequence in our minds, so that we do things that are entirely irrational to avoid the consequence. Most governance depends on this tendency. Scared people — voters and jurors — cede power to the government. Scared defendants plead guilty, accepting a bad outcome, to avoid the possibility, however small, of a horrid outcome.
An example of rationality going out the window in the face of fear is the hysteria surrounding sex offenders. Here’s a WSJ.com article, Are We Teaching Our Kids To Be Fearful of Men? (why do they capitalize “to” but not “of”?), in which Jeff Zaslow discusses society’s trend toward teaching children not to trust men (and vice versa).
“Child-welfare groups,” according to the article, “say these are necessary precautions, given that most predators are male.” This is a non sequitur. According to the article 89% of child sex-abuse perpetrators in Virginia are male. We know that 93% of child sex-abuse perpetrators are relatives or acquaintances of their victims, but we don’t deliberately teach our children to fear the people they know.
John Walsh is quoted in the article:
“It’s not a witch hunt,” he says. “It’s all about minimizing risks. What dog is more likely to bite and hurt you? A Doberman, not a poodle. Who’s more likely to molest a child? A male.”
This is in fact an excellent example of the tendency to confuse the magnitude of harm with its likelihood. Small dogs bite more people than large breeds; a poodle is much more likely to bite you than a Doberman.
If you taught your child to fear strange Dobermans, he’d get bitten anyway. Even if you taught him to fear all dogs, he would get bitten. To be sure that your child would never be bitten by dogs, you would have to cloister him. Yet most of us don’t cloister our children, and people keep both poodles and Dobermans.
To rationally decide how to deal with a threat, you have to know the magnitude of the harm, the probability of the harm, and the costs of various ways of managing the threat. The chance of the average child under 11 being sexually maltreated in a year is about one in 1,700. All else being equal, if that child were prevented from having any contact with anyone other than family members and partners of parents, the child’s odds would improve by 38.8%, to about one in 2,777. We don’t prevent our children from having any contact with anyone other than family members and partners of parents because the cost of doing so would be too high; it would outweigh the benefit.
One-issue advocacy groups (like MADD, or so-called child-welfare groups) don’t have to worry about the costs of their proposed solutions. They can advocate the elimination of threats at any cost. They can run billboards like this one:
We who live in the real world can’t do that. So we flail around looking for a solution that doesn’t have a direct cost.
It doesn’t take much imagination to foresee spectacular long-term costs arising from teaching children that men are out to hurt them.
People assume that all men “have the potential for violence and sexual aggressiveness,” says Peter Stearns, a George Mason University professor who studies fear and anxiety. Kids end up viewing every male stranger “as a potential evildoer,” he says, and as a byproduct, “there’s an overconfidence in female virtues.”
Imagine: girls growing up thinking that all men are monsters, and boys growing up thinking that they’re going to turn into monsters. Is there a better recipe for a self-fulfilling prophecy?
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In my Minnesota Weenies post I wrote that the tools criminal lawyers have to work with, when playing the game of “what really happened,” are plausibility and verisimilitude.
“Plausibility and verisimilitude” are not my terms; I took them from Chicago criminal defense lawyer Terry MacCarthy, whose cross-examination techniques I’ve mentioned here here, here, and here.
Here’s Terry talking about verisimilitude and plausibility in cross-examination.
(Download a form to order the seven-CD set!)
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Young Shawn Matlock’s Friday post was the self-referentially titled From the Realm of the Absurd, a mild rant about the Spanish-language nutritional information sticker covering the English-language nutritional information on the label of his favorite beans, which he describes as “very good for Mexican dishes.”
The trivial case of the bean label is not, of course, a big deal. Shawn is making a metaphor out of a molehill:
Nine months ago I was in Russia. No English ANYTHING. Why? They assume if you are in their country, you will either speak their language or learn to adapt or do without. It’s like that everywhere else in the world, but here. Why? This is not “Small town, Southern Conservative Republican” talking. This is someone from America. We are running the risk of losing all of our traditions and culture so that we can appease others.
Why don’t they label things in English in Russia? Because not a lot of people emigrate from English-speaking countries to Russia, and it’s like that everywhere else in the world. If you want simplicity and homogeneity in your country, there are more than 150 better places to live than the United States.
There were Spanish-Speakers living here a generation before English-speakers landed. Our common language is merely a matter of convenience — having one language is more convenient than having many. Any immigrant who doesn’t speak English and isn’t trying to learn is a damn fool, but that’s not your problem.
You don’t have to fear change. Change can be good. Our culture in 2007 is not the same as our culture was in 1776. Survival of the fittest applies to cultures and ideas; that’s why we’re not wearing wigs, writing with goose quills, and relieving ourselves in outhouses. It is also why we speak English, believe in free enterprise, and have the right to freely exercise our religions. Government intervention was not necessary to preserve any of these ideas; in fact, the history of our freedoms is a history of opposition to government intervention.
This is not complicated: if you don’t want Ranch Style to label its beans in Spanish, don’t buy Spanish-labeled beans. Let the free market work, and leave the impotent diatribes in favor of a single language to northern liberals who think that Congress should be in the business of making them less “uncomfortable.”
More importantly, though, any Texas criminal defense lawyer who doesn’t speak Spanish and isn’t trying to learn is a damn fool too. Even if the principle isn’t important enough to cause you to vote with your wallet, your potential clients will be voting with theirs.
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