In jury selection for my aggravated assault trial last week, I objected to the State’s use of a challenge for cause to exclude a potential juror whose religion forbade him judging other people. The objection was under Article I, Section 4 of the Texas Constitution, which provides in relevant part, “No religious test shall ever be required as a qualification to any office, or public trust, in this State.” (The U.S. Constitutionin Article VI Section 3, also forbids religious tests for public offices.) My reasoning, as I’ve discussed here before, was that jury duty is an office or public trust, and that it is a religious test to bar from that office a person who, for religious reasons alone, could not find a defendant guilty.
The judge (a retired appellate judge) asked me if that wouldn’t mean that jurors who couldn’t consider imposing the death penalty because of their religion would be able to serve as jurors. I had to concede that this was a good question, and that in my opinion it would.
But what about Wainwright and Witherspoon?
Anne Reed at Deliberations yesterday posted about the death qualification of jurors — barring from jury duty on a capital case any jurors who can’t consider the death penalty. In Anne’s view, Supreme court precedent allows a potential capital juror to be struck for cause
. . . if his religious views on the death penalty ”prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (The quote is from Wainwright.)
This isn’t quite right. Neither the 1968 Supreme Court case of Witherspoon v. Illinois nor the 1985 Supreme Court case of Wainwright v. Witt addressed the propriety of a religious test for jury duty. Witherspoon discussed “religious or conscientious” or “religious or philosophical” objections to imposing the death penalty; Wainwright discussed “religious or personal” or “religious or conscientious” objections. The potential jurors in both cases apparently did not specify that their objections religious. Wainwright and Witherspoon dealt with the substance of the objection rather than its basis.
For a “religious test” challenge to have any chance of success, the trial lawyer has to nail the potential juror down on her “judge not” beliefs being religious, rather than personal, conscientious, or philosophical.
Further, both Wainwright and Witherspoon focused not on the jurors’ right to serve, but rather on the defendants’ rights under the Sixth and Fourteenth Amendments. Likewise the 1986 Supreme Court case of Batson v. Kentucky was hinged on Equal Protection for the accused, though the Court in that case recognized the harm done by race-based peremptory challenges to the excluded jurors.
In Powers v. Ohio in 1991 the Court explicitly recognized a defendant’s standing to raise jurors’ equal-protection claims; in Georgia v. McCollum in 1992 the Court solidified jurors’ protections against race-based peremptory challenges by allowing the State (which has no constitutional rights) to make a Batson challenge in response to a defendant’s peremptory strikes.
Even though the potential juror in Campbell v. Louisiana, which was the impetus for Anne’s return to this issue, specified that it was her religious belief that made it difficult for her to consider the dealth penalty, Article VI Section 3 is not at issue in that case. In light of Batson, Powers, and McCollum, however, maybe it should be — it’s time to visit the use of religious tests to exclude people from jury duty because of their religious beliefs in the courts — not only in capital cases, but in all criminal cases.
Posted in
jury selection,
religious tests
Probation / Prison
Productive member of society / Drain on society
Restitution / No restitution
Supervision of court / School for crime
2y probation + 2y prison = 4y in system / 2y prison = 2y
Conditions of probation / Robbers, rapists, murderers
For people who can live in society / For people who cannot live in society
Alcohol evaluation and treatment / Warehouse for human beings
One-shot deal / Likely to reoffend
Second chance / Last resort
Can always go to –> / <– Can never go to
Rehabilitation / Retribution
Redemption / Damnation
Mercy / Cruelty
Love / Fear
Posted in
philosophy,
prison,
probation,
punishment
That the following is a question that a court can even ask, shows that the system is seriously broken:
Whether Davis can still be executed if he can establish innocence under the second standard [clear and convincing evidence that no reasonable fact finder would have found him guilty] but cannot satisfy his burden under the first, due-diligence question.
(Via A Public Defender.)
I look forward to the government’s explanation of why it should be allowed to execute someone who is clearly innocent because his lawyers should have found the evidence of his innocence in the first place.
Posted in
actual innocence,
death penalty
I’d much rather be in trial than waiting to go to trial — a good day in trial is better than just about anything else you’d care to name. This is my sixth jury trial in twelve months. It’s an aggravated assault charge — CW got glass in his eye, needs money, blames D. In the 179th District Court, the Honorable Lee Duggan presiding. If you’re in the neighborhood, drop in and say hello. We should be arguing it early Thursday afternoon.
Posted in
jury trials
From the mailbag:
Please don’t take my unique questioning ideas personally, as I don’t know and I am just asking you what you think. I was wondering whether being openly political on your professional legal blog may sometimes be unwise. I have written or emailed other lawyers the same question. I also feel passionately about politics and love politics and I guess I am somewhat of a political junky. Yet, I think irregardless of which party wins or which party I support, that maybe it would be more correct to post political ideas on a different blog than my professional legal practice blog. Some people say blogs are like diaries and people put down emotional things and say things like I feel “cloudy” and stuff like that. I have been entertained and educated by blogs and if I disagree with the blog, well I don’t have to read it, although I respect other people’s ideas so I usually read it anyway. Never-the-less, would you feel uncomfortable in representing someone from the opposite political party from you. Also, can someone from the opposite political position have worthy valuable ideas and deserve some degree of respect even though you disagree with them. If your mother or father or someone you care about were members of the opposite political party would you treat them with respect? Are law blogs required to be political? Are there some things that should be above or beyond politics? How would it feel to be sentenced by a Judge who was a member of the opposite political party or prosecuted by a prosecutor from the other side or defended by a defender from the other side or arrested by a law officer from the opposite political party? I think there have been some historical incidents involving political type things and they usually go against the politicizer. Like Socrates, all I know is I don’t really know, but asking the question makes you think.
Not so much.
Criminal defense trial law is politics — not just the politics of interpersonal relationships in the civic arena, but also how human beings relate to their government. It’s foolish to suggest otherwise.
Arguably, the criminal defense lawyer who thinks that he (like the legal system?) is “above” politics is doing only half the job:
The legal system of every country has as a major purpose the support of the existing political relationships. The lower criminal courts function as an assembly line in order to keep politics out of the courtroom, thereby leaving the status-quo unchallenged . . . . Legal ideology thrives on depoliticizing issues into abstract, external rules and process. Our job is to bring the reality of political relationship into the equation.
(Paul Harris, Warrior-Lawyer.)
We don’t blog about the world that we’d like to have; we blog about the
world we have. The choices that voters make in elections at every level are going to affect how free we and our children will be. The criminal justice system is not above politics, and
neither am I.
Politics doesn’t necessarily mean partisan politics. From the point of view of a practicing federal criminal defense lawyer, neither John Ashcroft nor Janet Reno was any better than the other. When our view is informed by our loyalty to a particular political party, we risk appearing naive and ignorant. Not that that should bother us.
How does it feel to be arrested or prosecuted by a member of the other
party? I imagine that, if you’re going to feel unfairly treated, it’s
better to feel unfairly treated by someone for whom you didn’t vote
than by someone for whom you did. Here in Texas, judges are elected in partisan elections. In Harris County, the Republicans have had a lock for many years, and we suffer some miserable judges as a result. Same deal in Travis County, but substitute “Democrats” for “Republicans.”
I’ve got lots of clients who are Republicans. They’re shocked to see the injustice in Harris County that results from their voting habits. I’d bet that there are Democrats accused in Travis County who feel the same way. Both counties will be better places when neither political party thinks it has those elections sewn up.
Partisan politics should have no place in the criminal justice system. And Rhodesian Ridgebacks should poop Krugerrands.
Posted in
blogging,
politics
The job is antidemocratic, to begin with. Our Constitutional mission is to confront and resist authority, which, in America (where we like to elect our authority figures) means flouting the more-or-less democratically expressed will of the majority. Successfully defending people usually means telling those whom the majority has chosen to enforce the laws made by its representatives that either they or the laws are wrong. In other words, the mob is wrong.
Which explains why lots of people don’t much care for us: they are under the impression that they live in a democracy, where what the majority says is always right. This misconception leads them to (among other things) resent judicial review, and feel threatened by those who resist their will. To explain how it is that an intelligent person could stand up in court day after day and tell the mob that it is wrong, they tell themselves (and, as anonymous blog commenters, anyone else who will listen) that criminal defense lawyers are sleazy, dishonest, unethical.
And so is born the myth of the lying criminal defense lawyer. Tell someone that you are a criminal defense lawyer and, without knowing anything else about you, chances are that she’ll assume that you are perfidious. The myth reinforces itself as new criminal defense lawyers join the bar; some buy into public view that lying is part of the job and confirm the mob’s suspicions.
The truth, though, is that lying isn’t part of the criminal defense lawyer’s job. A criminal defense lawyer doesn’t have to lie, cheat, or steal to succeed.
In fact, a criminal defense lawyer can’t lie, cheat or steal and succeed. A defense based on lies is almost always doomed to fail. A lawyer who lies has failed to find the truth that saves his client, and has lost the case already. Yagyu Munenori, in The Book of Family Traditions on the Art of War, a 17th-century Japanese swordfighting text (available in The Book of Five Rings
translated by Thomas Cleary), writes:
Whatever the false mind does is wrong. If this wrong mind emerges, you will lose at martial arts; you will miss the mark with bow and gun, and will not even be able to ride a horse. If you performed in a drama or a dance in this state, it would also be unpleasant to watch and listen. Mistakes will also show up in what you say. Everything will be off. If you accord with the original mind, however, everything you do will be good.
. . . .
The false mind is sickness of mind; getting rid of this false mind is called getting rid of sickness. Rid of this sickness, the mind is healthy. This sound mind is called the original mind. If you accord with the original mind, you will excel in martial arts. This principle is relevant to everything, without exception.
(Hold on to that idea. We’ll return to it another day in the context of what we do, rather than just how we do it.)
Clients sometimes think that they want a lawyer who will act unethically for them, but they don’t: first, because a defense based on lies is almost always doomed to fail; and second, because clients need lawyers they can trust. Unethical lawyers are . . . unethical. A lawyer who behaves dishonestly “for his clients” can reasonably be expected to behave dishonestly toward his clients. [Edit: Or, as Windy Pundit Mark Draughn writes, "you have no right to be surprised when you discover he's ripping you off and screwing your wife."]
Let a werewolf into your house, and you’re likely to get bitten.
Posted in
becoming a better lawyer,
ethics and/or professionalism,
truth
A public-spirited reader sent me his notes from the portion of DEA training dealing with the use of deadly force. He tells me that the students would be given certain fact patterns and told to stand up in class and respond with the exact phrases described in the notes to justify a shooting.
LAW OF DEADLY FORCE
XXXXXXXXX – INSTRUCTOR
PRE-CLASS ASSIGNMENT NOTES
HOSTILE MOVES WITH GUNS
1. Points what appears to be a gun in your direction
2. Shoots at you
3. Reaches for waist
4. Raises what appears to be a gun in your direction
5. Turns towards you with what appears to be a gun in his hand
6. Comes at you with what appears to be a gun
7. Reaches for a gun
8. Runs for what appears to be a gun nearby
9. Reaches for a pocket large enough to conceal a gun
10. Grabs for your gun
11. Reaches into a coat
12. Reaches for his ankle
13. Reaches under a seat
14. Reaches into an area not yet cleared, that could conceal a gun
**To shoot at someone to stop an attack, the Officer MUST wait until the suspect makes a “Hostile Move” (you should see or hear some objective sign) that gives you P/C to believe an attack is about to occur.
**If you approach a suspect on foot, identify yourself as DEA with your gun visible in hand. Give a command; if suspect violates the command, courts have upheld that it is justified to shoot to stop the attack. The 14 items listed above give you (1) P/C he intends to attack (2) P/C he is armed with a gun (3) P/C that you are in “immediate danger”
HOSTILE MOVES BY VEHCILE
1. Accelerates at you, as if to hit you
2. Hits you hard
3. Drags you alongside
4. Knocks you onto the hood and keeps going
**Must approach vehicle on foot and ID yourself with your gun visible and give a command.
HOSTILE MOVES WITHIN VEHICLE
1. Bends down towards the floor
a. If you approach on foot with gun visible, ID yourself, and give a command, if the suspect ignores you and bends towards the floor, you have the right to shoot. You need NOT wait to see what he may be reaching for.
2. Dives low into the vehicle
· If you approach on foot with gun visible, ID yourself, and tell the suspect to step out of the vehicle, he complies, but then in violation of your commands, turns back towards the open door and reaches or dives down towards the floor of the vehicle, you have the right to begin shooting IMMEDIATELY in self defense (due to the perception and reaction times).
3. Turns toward you with a gun in hand
· If you have probable cause to believe an occupant of a vehicle has a gun in hand AND, in violation of your commands, he begins to turn towards you, you may shoot. You need not wait to confirm that he has a gun, nor do you need to wait until he is fully facing you.
PROHIBITIONS AGAINST SHOOTING – DOJ / DEA DEADLY FORCE POLICY
· Deadly force may NOT be used SOLELY to prevent the escape of a fleeing suspect
· Firearms may NOT be fired SOLELY to disable a moving vehicle
· Warning shots are NOT permitted outside of the prison context
5 CONDITIONS THAT JUSTIFY SHOOTING TO STOP AN ATTACK
· P/C that the subject intends to attack
· P/C that the subject has the power to cause death or serious personal injury
· P/C that there is imminent danger
· You first give verbal warnings if safe and feasible to do so
· You balance the risks of hitting others
OTHER IMPORTANT THINGS TO REMEMBER
1. Perception time – Time it takes from what we see to the time our brains begin to process what we are seeing to our brain so that we are aware of it. The time we are effectively “blind” to what we are seeing (Use .25 sec. average)
2. Reaction time – Once we recognize we are about to be shot, our muscles do NOT begin to move instantly. They remain frozen for a fraction of a second (Use .25 sec. average)
3. Firing times – time it takes to actually draw your gun, bring it up to the target, bring your finger to the trigger and pull the trigger. Could be 1-2 seconds in addition to perception and reaction times.
Immediate vs. Imminent Dangers
· An immediate danger requires an immediate response – i.e. Being shot at
· An imminent danger slightly broader than immediate – i.e. Shooter stops shooting at you and runs. This is an imminent danger.
**All immediate dangers fall under imminent dangers, but not always vice versa**
Suspect will not show his hands
· With gun visible, ID yourself. Order suspect to show his hands. If he does not, you may assume he has a gun. This does not give you justification to shoot him, but it does give you P/C to believe he is armed.
21 Foot Rule
· When an attacker with a weapon (i.e. Knife) is 21′ away from you, you may argue suspect poses an imminent danger assuming they may attack you. It may also apply at greater distances, but you must articulate the suspect poses a danger to you at the greater distances.
Posted in
DEA,
police misconduct
Scott “Paladin” Greenfield yesterday took on former prosecutors advertising for criminal defense cases by suggesting that they can do things for the accused that other people can’t. There are lots of angles that could be taken on this issue; Scott’s is that
The pitch is intended to capitalize on a basic misperception by the
public, that the skills one develops as a prosecutor, characterized as
“experience in criminal law,” translate into the skills one requires as
a criminal defense lawyer.
Capitalizing on a basic misperception by the public in order to market oneself is unethical, and Sheriff Greenfield isn’t afraid to say so. “We can’t do it. We shouldn’t do it. Yet it’s done all the time.”
But there’s more:
. . . [T]his isn’t the most insidious aspect of marketing oneself as a
former prosecutor. A secondary implication, which is often suggested,
and sometimes overtly claimed, is that by being a former prosecutor, a
criminal defense lawyer has some inside track to getting his old
buddies to let him have special sweetheart deals, or that he’s got some
special friendships with the judges before whom he appeared day after
day after day, who will do him (and therefore you, dear client) special
favors that would not come your way but for his inside connections. . . .
This is an outrage and affront to everything that we do.
Brian Tannebaum touches on this particular topic — connections — in The Truth About Hiring a Criminal Defense Lawyer:
“Knowing” people in the system never hurts, but no otherwise incorruptible judge is going to suppress evidence because she’s friends with the lawyer, [and] no prosecutor is going to “take a dive” in court because he’s on the defense lawyer’s basketball team. . . .
There’s another side that the client should probably consider before hiring the lawyer who claims that he can exploit his relationship with the judge or the prosecutor to the client’s advantage. What he’s saying is that he’ll exploit his relationship with the judge for your sake.
This suggests that a) he is friends with the sort of people who would take a dive and violate their duties for the sake of their friendship with him; b) he is the sort of guy who would ask them to do so; and c) he thinks it’s okay for a professional to take a dive. This is always a two-way street — birds of a feather and all that.
So: the lawyer has had a relationship with the prosecutor for, say, ten years and expects to for twenty more. He has had a relationship with you for ten minutes and expects to for six more weeks.
Which relationship do you think he’ll forsake for the sake of the other?
Posted in
connections,
former prosecutors,
marketing
Why we don’t practice civil law (Brian Tannebaum’s other blog, My Law License). At least the judge keeps a sense of humor about the relentless asshattery of lawyers attorneys who are a) fighting over money; and b) billing by the minute; and consequently c) make more money the more they “flyspeck” each other. The first paragraph of the order:
Pursuant to the modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions. Any electronic document may be e-filed until midnight on the due date. In a scandalous affront to this court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don’t know this personally because I was home sleeping, but that’s what the court’s computer docketing program says, so I’ll accept it as true.
While the judge (Magistrate Judge Stephen L. Crocker of the Western District of Wisconsin) denied the plaintiff’s request that he strike Microsoft’s motion for summary judgment, the relief that he did grant is priceless.
Posted in
Uncategorized
Lloyd Kelley, The lawyer for the Ibarra brothers, who successfully sued Harris County for civil rights violations earlier this year and, in the process, brought down Harris County District Attorney Chuck Rosenthal, is now the defendant. The brothers have hired another lawyer to sue him over more than $200,000 in expenses deducted from their $1.7 million settlement, reports Rick Casey in the Houston Chronicle.
The expenses include $20,000 to community activist / police auxiliary Quanell X. According to the Ibarras, Kelley told them that the money was for organizing a demonstration march. According to X, he was a jury consultant for the trial. X says that he was paid some amount of money “to be a consultant, a jury consultant for the trial.” Kelley says that he turned to X to help him frame the issue of asking a jury for $5 million for a night or two in jail, because “he’s just somebody who if you want to know what certain aspects of the community are thinking, you consult with.”
I’m not sure what Lloyd means by “certain aspects of the community” (sounds like some sort of code to me), but X’s demographic is Black American Muslims; the odds of having a single Black American Muslim on a jury in the Southern District of Texas, with its inordinately white jury panels, are Lotto odds. That notwithstanding, X didn’t know how much he’d been paid, and Ibarra’s new lawyer says that Kelly hasn’t provided any invoices or canceled checks to X.
Kelley also claimed to have paid or owe attorney Minh-Tam “Tammy” Tran $95,000 — $20,000 in consultation fees and $75,000 for “jury charge consultation fees.” There was no jury charge in this case, which was settled mid-trial; Kelley now says Tran helped with jury selection and with researching contempt issues. Tran denies having been paid any of the $95,000, and doesn’t know whether she had sent an invoice for $75,000.
Somehow I don’t think Tannebaum would approve.
Posted in
The Hog Rule,
civil lawyers,
questionable practices
