NACDL Seminar?

Are you in Houston for the NACDL Defending Drug Cases seminar today and tomorrow? If so, drop me a line.

New Judges: Coda - Size Doesn’t Matter

Chicken-littling (from a letter to the Chronicle) about the sudden appearance of new judges, not fresh out of the DA’s office, in Harris County’s Criminal Justice Center:

It will be interesting to see the changes in the next few years. With eight courts being led by judges on a “learning curve,” watch their dockets increase. Watch the appellate courts reverse decisions, the tax dollars wasted and the criminals who are set free.

“Watch their dockets increase.” What that means, for the uninformed, is that the courts with new judges might not be able to dispose of (by trial, plea, or dismissal) as many cases as the State files, so that the number of defendants on the docket will creep up. A report circulates regularly (weekly?) around the courts with a bar graph showing how many cases are outstanding in each court. It might take a couple of years for the trains to start running on time in those courts with new judges.

But the courts’ emphasis on trains running on time is misplaced, and reveals confusion about their proper role.

Consider the key players in the criminal justice system:

• The legislature, which makes the laws and creates the courts;
• The police, who arrest people accused of committing crimes (and sometimes even investigate);
• The DA’s Office, which charges and prosecutes people the police have accused of crimes;
• The defense bar, which defends those people, trying to clear their names or minimize their punishment; and
• The judges, who act as referees between the DA’s Office and the defense bar, decide punishment when defendants so choose, and decide facts when both sides allow them to.

The legislature could reduce dockets by making less stuff illegal, or by creating more courts. The police could reduce dockets by arresting fewer people. The DA’s Office could reduce dockets by filing fewer charges, or by making lower plea-bargain offers. The defense bar could reduce dockets by convincing clients to take higher plea-bargain offers (not that we would — docket size is most emphatically not our responsibility — but we could).

So what can judges do to reduce their dockets? In Texas they can’t dismiss cases except on the motion of the State. They can’t ethically pressure defendants to plead guilty (though I have seen at least two of the departing judges do just that, and I don’t know that all of the incoming judges are above it). They could, I suppose, pressure the State to make lower plea-bargain offers, but that would still depend on the State’s participation. Or they could bring cases to trial faster. And that’s it.

Our criminal district court judges should be trying as many cases as they can. But even if they were men and women of steel with no administrative duties, it’s hard to see how they could conceivably try a hundred cases each per year — 2200 across all the district courts — or how that would make any serious dent in the 50,000 or so felony cases filed every year.

So if we’re going to place responsibility for courts’ docket sizes, we should be placing it on the legislature, the police, the DA’s Office, or the defense bar — anywhere but on the judges. (We could, I guess, try to place it on the accused, but they, like the defense bar, don’t work for us.) If the legislature creates too many laws and too few courts and, as a reasult, the police arrest too many people and the State files too many cases, it’s not the judges’ job to act as enabler to the other branches of government.

When judges accept responsibility for the size of their dockets, they take an improper role in the system. They align themselves with the prosecutors (who want to reduce dockets, and actually have the legal and ethical power to do so — witness occasional “fire sale” plea bargaining) rather than justice. There is likely an opportunity cost: time spent managing the docket might be better spent doing the things that are and should be part of their job. That job is to do justice, and justice can’t be rushed.

So the alarmism about dockets increasing may be well-founded, but it should be met with a resounding “so what?” The dire warning about reversals, on the other hand, is almost entirely fictive. More on that next.

Need Help

I got this message from Lunarpages:

Hello Mark,

I’ve checked your account usage and your cpu usage still seems to be higher

The current usage statistics is quoted below for your reference.

fightt2 fightthefeds.com 1.79 0.04 0.1

Top Process %CPU 92.0 [php]

Top Process %CPU 23.0 /usr/bin/php /home/. . ./public_html/bennettandbennett/blog/index.php

Note that the acceptable usage range for shared plans is 1.0%
average %CPU or less, 1.0% average %Memory or less 0.2% average %Mysql
and Top Processes below 20%. Please check the script currently using
higher resources and let us know when necessary changes are made to
bring it down.

Regarding the email forwarding, please try removing the existing forwarders and re-adding it.

Please do let us know if you’ve any further questions.

Traffic is no higher than usual.

Can any Defending People reader suggest a hacker-for-hire who might be able to help me resolve this?

Redesign

Something in bennettandbennett.com/blog/index.php was burning processor time, so LunarPages moved me to another server (pranging my email) and threatened to shut me down. I’ve stripped down to the bare essentials in my blog design to try to fix the problem.

Major redesign coming soon.

The Fifth Amendment Privilege Redux

There is the law as we learn it in law school, and there is the law as it is practiced in the real world.

I was reminded of this today in a telephone call with a federal prosecutor in a state that rhymes with bassachusetts. I told the lad that I expected my client, when haled before a grand jury, to take the Fifth, and inquired whether he planned to give my client use immunity for his testimony.

The youth was quite insistent that a person called before a grand jury can’t just take the Fifth and refuse to testify without “a good faith reason to believe that the testimony might incriminate him.”

Well, of course my client has a good faith reason to believe that the testimony might incriminate him: he’d be talking to the federal government. The government doesn’t get to decide whether the witness has a good faith reason to refuse to talk; if it did, there’d be no point in having a Fifth Amendment right against self-incrimination.

But aside from that, there is no such test, in the real world (which is where I practice) for taking the Fifth. As I have said here before, this is the way it works:

• Witness is sworn in.
• Witness is asked a question.
• Witness refuses to answer on grounds that the answer might tend to incriminate him.
• Witness is asked another question.
• Witness again refuses to answer.
• Prosecutor gets tired of this game.

At this point, the prosecutor appearing before the grand jury is not allowed to strap the witness down and waterboard him until he answers the question. He has two options. First, he can let it go and let the witness go on about his business.

Second, he can go to a judge and ask the judge to order the witness to answer the questions. If the judge orders the witness to answer the questions, the witness has to either answer or be held in contempt.

But guess what: the judge’s order for the witness to answer the questions is a grant of use immunity. In federal court, this commonsense rule is even codified, in 18 USC § 6002. If a person has refused, on the basis of the privilege against self-incrimination, to testify (regardless of the good faith belief in his claim) and has been ordered to testify,

[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case. . .

This is as it should be.

So there may well be a case somewhere in some law school textbook saying that a witness can’t take the Fifth without a good-faith reason to think that his answers might be incriminatory, but there’d be no way for a prosecutor to enforce this rule other than by obtaining an order under 18 USC § 6003 — in other words, by giving the witness use immunity — which is exactly what the prosecutor would have to do to compel a witness to testify if the witness were taking the Fifth in good faith.

In other words, while there may be some theoretical academic difference between the witness who doesn’t want to talk to the government in general (and so takes the Fifth), and the witness who has a specific legitimate concern that the answers to specific questions would incriminate him, there is no real-world difference.

I didn’t point out the existence of a gee-whiz actual federal immunity statute to this federal prosecutor. If he wants to get my client to say anything before the grand jury, he’s going to have to figure it out himself. In the real world.

A Flyspeck Here, a Flyspeck Here, and Pretty Soon You’re Up to 12 Million Dollars.

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.

Now It Makes Sense.

The bailout, explained (Sinfest, via Mish’s Global Trend Analysis):

Don’t you feel much better now?

Thus Spake Brian

Okay, so I finally got around to downloading and reading Miami criminal defense lawyer Brian Tannebaum’s e-book, The Truth About Hiring a Criminal Defense Lawyer. (After Brian asked me to review it, I found it by googling the title; I was pleased to see Defending People pop up in the first page of search results.)

Subtitled, “The whole truth and nothing but the truth, and not the ‘truth that will lead you to hire me.’”, this little book covers much the first-time accused needs to know to have at least a fighting chance of hiring competent counsel, in six chapters entitled:

• Money (forget about your money problems, and get the money; hire a lawyer you feel comfortable with, who charges more money than you wanted to spend);
• Advertising (advertising works; don’t fall for it);
• Prior Results (no two cases are the same);
• Expertise / Types of Criminal Defense Lawyers (”murder is a six-figure word”);
• “Former Prosecutors” (if you choose to hire an ex-prosecutor, make sure it’s for his defense experience); and
• Connections (we all know the judges, and the prosecutors, and probably the cops; none of them are going to sell out).

In the process of educating the public, Brian gives away some of the family secrets. For example:

Do not ever call a lawyer you are thinking of hiring and ask how much he charges. He will immediately think you are cheap, broke, and that you will waste his time in a consultation. On that note, don’t ever ask if there’s a consultation fee. That’s like saying “you’re not going to ask me for $500 are you?” A client who has a problem with $500 is again, perceived as cheap, broke, and a waste of a lawyer’s time.

There is one conspicuous absence from Brian’s book: “high-profile lawyers”. Many an accused goes shopping for a lawyer armed with the delusive belief that his case is a high-profile (”high-pub”, in the argot) case and that he needs a lawyer who specializes in such cases. Some lawyers even make this part of their schtick (observe the page title). In my experience, the vast majority of people who think their cases are high-profile are engaged in egoistical wishful thinking: “if it’s so important to me, it must be important to everyone else.”

Those who are actually accused in high-profile cases, by contrast, are desperately seeking someone who can get them out of the spotlight, and those lawyers who have handled high-pub cases and have their clients’ best interests at heart would rather help the stories drop off the news than see their own names in the paper. I’d like to see Brian address that.

The practice of criminal defense law is a little different everywhere. In Florida, according to Brian, about 3% of DUI cases go to trial; in Texas, where DUI (which Texas law calls DWI) is a serious crime for which an accused has a right to a jury trial, and especially in Harris County, where there is essentially no plea bargaining in DUI cases, that number ought to be a lot higher. (I don’t know if it is, but it should be — almost all first DUI/DWI cases should be tried.)

In Texas, where it’s all about the jury trial, “how often do you go to trial” would be a good question to ask the prospective criminal defense lawyer.

Those minor quibbles aside, Brian provides an excellent introduction to the task of hiring a criminal defense lawyer. I recommend it to anyone looking to hire his first criminal defense lawyer. Or his second, though getting the right lawyer after you’ve already hired the wrong one is much more costly than getting it right the first time.

Reciprocal Discovery, Anyone?

David Sklansky’s fundamental theorem of poker:

Every time you play a hand differently from the way you would have played it if you could see all your opponents’ cards, they gain; and every time you play your hand the same way you would have played it if you could see all their cards, they lose. Conversely, every time opponents play their hands differently from the way they would have if they could see all your cards, you gain; and every time they play their hands the same way they would have played if they could see all your cards, you lose.

There are two ways to help your opponents play their hands differently than they would if they had complete information: 1) keep them from having complete information; and 2) make them believe that the information they do have is incomplete.

In criminal defense practice, A Little Surprise (NLS) helps with both of these goals: it keeps the adversary from having complete information in this case, and it makes the adversary doubt in the next case whether the information he has is complete.

Looking for Your Money on the Street Where You Lost It

Trial lawyers are poker players. If you try cases and don’t know how to play poker, learn. Don’t play “online poker”, where you can’t look in the faces of the people whose money you’re taking — that’s not poker, it’s a video game. Learn to play real poker at a real table with real human beings.

Trial lawyers have to be flexible. Don’t just learn “Texas  Hold’em”, either. The casinos have popularized that game because it allows the most money to be bet in the shortest period of time (and therefore the largest hourly take for the house), but in my opinion it’s in no other way superior to any other game. Learn to play five card stud, seven card stud, five card draw, low variations, split-pot high variations, and so forth. Read Herbert O. Yardley’s Education of a Poker Player.

Why my enthusiasm for poker today? Coupla reasons. First (and most importantly) the Harris County Criminal Lawyers Association will be sponsoring a poker tournament at Live Sports Cafe at 407 Main Street in the heart of downtown Houston on Halloween Eve, October 30, 2008. The Tournament will be fundraiser for our HCCLA Community Service & Public Relations committee. HCCLA has been very active through this committee in helping our community by sponsoring events for Big Brothers Big Sisters Amachi kids and by contributing to the STAR Drug Court Christmas Toy Box. So it’s for a good cause. Buy-in will be somewhere between $25 and $50. I will, naturally, be taking the title and trophy, but there will also be a trophy for the top prosecutor. Spread the word.

Second, Greenfield brings us discouraging intimations that the $700 billion bailout (approved by Congress despite my strong opposition) is “just the beginning.” As Scott says, “this isn’t economics. This is psychology.” Now that they know that we’ll let them steal $2,300 from every last one of us in a week and we won’t mass on the village green with pitchforks and torches, they’re going to keep coming back to the well for more.

The financial system’s imminent meltdown (we must do this by last
Monday!) turned out to be a lie; the free market kept two major banks
from going under, but we paid up anyway. We’ve been extorted.

For some reason I get calls often from people who are being extorted (after all, I’m Mark Bennett. I solve problems). I tell them to tell the extortionists to go to Hell. Extortionists never stop with their first met demand. The only thing that stops the extortion is defiance. That isn’t law. That is psychology.

One of my poker axioms is that there’s a sucker at every table. If you look around and don’t see the sucker at the table, the sucker is you.

Another axiom is that money in the pot is already spent. Every bet has to be evaluated based on its potential reward, and not on how many of the chips in the pot came out of your stack. There’s a natural pressure to stay in a pot that you’ve already invested in, even if the odds aren’t right. Don’t throw good money after bad. Poker isn’t a card game, poker is psychology.

That $700 billion is gone. Another $700 billion, or $1.4 trillion, or whatever, is not going to bring it back. But we’ll keep letting the government throw our money into the pot until we’ve got nothing left to hock.

This week the American taxpayer looked around Wall Street, and didn’t see the sucker.