I am a British Barrister and, what with our Ministry of Justice talking about following the American model so frequently, and having a bit of time to look around the blawgs, I thought I would take a look at what my fellow Criminal hacks across the pond are talking about.

First impressions. Horrified. I have heard of plea bargaining of course but for it to be such that there is any thought that you would advise an innocent person to plead guilty is alien to me.

It never occurred to me that a reason for advising a guilty plea would be that a guilty plea is their choice and therefore their responsibility whereas running a trial relies on your ability and is therefore your responsibility…. If your ability is not at least good enough for you to have faith in it… how do you square claiming a professional fee for it?

And Dennis – over here we don’t speak to opposition witnesses before the trial (save under particular ’special measures’ in a court like scenario for child sex cases and the like) – indeed it was only recently that us barristers would even talk to our own witnesses outside of court for fear of contamination – and whilst it is no bad thing that those days are gone… am I to understand you to be saying that you improved the chances of your client by taking a prosecution client out for drives – and allowing him to drive your prestige car – Over here that could easily be confused for an inducement, and I would expect to be in the running for losing my practising certificate. (some might call it perverting the course even)

I in no way mean to be critical of a system I know so little of. But I thought my first impressions might entertain a few of you – and to assure you that I will be back to learn more

From across the waters

Interested Counsel

I had two different murder cases where I thought we had serious problems. In both I would have given anything for a manslaughter but the DAs thought the same about the cases as I did and it was “plead as charged”. Tried them both to “not guilty” verdicts. This is not to boast of my prowess but to remind us all that even the deadest cases often have some life in them AND you never know what’s going to happen in a trial. Priosecutions witnesses fail to show, get confused and screw up their testimony, someone contacts you because they read about the trial and they provide incredible testimony, etc.

Another war story re the above: Unless I have a lot of money in a case (and even then) I tend to do my own investigating. If I need to preserve testimony I will do it again in front of an investigator. I have discovered that the more time you spend with the prosecution witnesses (if they will talk to you) the more of the prosecution case weaknesses get exposed. In one of the above homicides it took place in a rural county (Calaveras – home of the jumping frog contest). A very bad witness agaiinst us was a 17 year old kid. I had a new Beamer at the time and saw how the kid was salivating so I asked him if he wanted to drive it. I moved to the passenger side and he got behind the wheel. He soon realilzed that the longer he talked to me the longer he could drive those incredible roads. I saw him on 3 or 4 different occasions when I would be up there talking to others. Each time I let him drive. Each time I learned more. Finally at trial he “got confused” and didn’t hurt me at all. At the recess I went outside for a smoke. He and his wife (she was 16) came out and started arguing. She kept telling him to “ask Dennis” and he kept saying “no, I don’t want to bother him.” So I went up to them to see what it was all about. TUrns out he had found the victim’s pants in a shed on the property (he had rented it after the victim “disappeared” – my guy gave him a lease which had an option to buy clause which said something like, ‘if pop doesn’t show up in 7 years you can buy the place’. Prescient, no? In truth the “missing pants” didn’t matter but it gave me an opportunity to argue that he was killed by a “gay motorcycle gang out of SF” and that carried the day. Another lesson: Rural juries don’t like San Francisco homosexuals, especially those who ride mototcycles.

dennis

Russ, do you find that things are better in the free world?

I think Defense lawyers and even trial judges are becoming better at understanding laws of evidence and trial. We are becoming better trained at trial techniques and the science of Juries. Maybe some day we will require a specialty for trying Criminal cases. That ought to even the playing field substantially.