Defending People

Today I saw “Edwin” in court. Edwin is a longtime criminal defense lawyer, a former assistant federal PD, and one of my criminal trial advocacy professors at University of Houston law school.

Edwin represented a codefendant in my first jury trial 12 years ago, and his client’s testimony sent my client to prison for 9 years on a federal bank robbery beef. I was reminiscing with Edwin about how his client sold mine up the river when he shook his head and said, “bank robbery cases can’t be won.”

We talked some more, and I told him how the Government had, after my client refused to plead guilty to misprision, dismissed a ten-kilos-and-two-guns case on the eve of trial a couple of months ago. Again Edwin shook his head and said, “that never happens. They never dismiss.”

Now, Edwin is not some assclown who thinks federal court is a good place to turn a quick buck by running every defendant down to the U.S. Attorney’s Office. He’s a smart, talented guy with a lot of federal criminal defense experience. But he was telling me, in effect, “everyone gets convicted.”

I told Edwin about the case manager for one of our local magistrate judges trying to recruit me, as a Spanish-speaking lawyer, to handle cases on the judge’s special illegal-reentry docket. I had bowed out when it was explained to me that, at the first court appearance, “you waive the conflict of interest because the judge is married to the acting U.S. Attorney.” It had occurred to me that there are probably lawyers willing to sign on to a gig that included waiving their clients’ rights in every case as a matter of course.

We seguéd into a discussion of the federal criminal defense bar. I told Edwin that I know there are lawyers who plead their clients out to federal charges without seriously evaluating the evidence or the defenses. He denied that that happens. I told him that I know there are such lawyers because their clients keep coming to me to try to pull their fat out of the fire after they’ve run down to the U.S. Attorney’s Office. I gave Edwin the names of a couple of Houston lawyers who I know to be habitual offenders, and he didn’t know them.

Edwin thinks the cases that need to be pled are being pled, and the cases that need to be tried are being tried. Edwin thinks criminal defense lawyers in federal court do a good job of protecting their clients’ rights and fighting everything that should be fought.

I don’t. I think that too many lawyers have the “everybody gets convicted anyway”, and that as a result they don’t look closely enough at the evidence and the possible defenses in every case. I think more cases need to be set for trial, more sentencing memoranda need to be filed and, generally, the Government needs to be forced to fight harder to put human beings in boxes.

What do you think? Which of us is right? As a group, how are we—lawyers representing the accused in federal court—doing?

I’ve added a section to the blogroll for cops’ blogs.

You wouldn’t guess it from reading offense reports, but some of these guys can write.

• If you got stopped….you deserved it
  A motorcycle cop.
• Officer “Smith”: Thoughts From Behind the Badge
  A California cop.
• The LawDog Files
  A Texas cop, but not an enemy of the Fourth Amendment.
• Cop n’ attitude
  Officer Krupke, Somewhere in America.

There are lots of people willing to sell you “credit privacy numbers.” A credit privacy number (or “credit profile number”) is a nine-digit number that looks like a social security number. Those selling “credit privacy numbers” or “credit profile numbers” try to convince their customers that they can use their CPNs to “repair” or obtain credit.

The rationale (repeated here, and here, and here [Cordell Davenport, you're a brave {or foolish} man to put your face on advice to commit fraud; doing so is at least a civil violation; when the feds come knocking don't say a word till you've hired me], and here, and here) is this: (more…)

Sometime soon Washington personal injury attorney Kirk Bernard, or Susan L. Sipe of SLS Consulting, who claims responsibility for Bernard’s internet marketing,

is going to google Bernard’s name. “Holy shit, what have I done?”, he’ll ask when he sees:

Kirk Earned himself the coveted Asshat Lawyer of the Day award here at Defending People yesterday with this post.

Others followed, including Patrick at Popehat and Mike at Crime and Federalism who, after first expanding on the theme “Kirk Bernard is a Slime Ball“,  dug into some of Bernard’s posts and found three posts borrowing substantially from media accounts without attribution.

Mike calls it plagiarism; it looks like plagiarism to me too. Yet I’m willing to bet that Kirk Bernard didn’t commit plagiarism.

Why? Because odds are that Bernard has somebody (Susan L. Sipe of SLS Consulting?) writing “his” blog posts for him. Sure, it’s got his name at the bottom of it, but did he write it? Unlikely. Did he know that it was plagiarized? Who knows. Maybe he’ll tell us here or at Crime & Federalism. (Would he care if he knew? Different question entirely.)

So if Kirk Bernard might not be a thief, he might also be a kind, sensitive, honest, humble human being who would never traffic in the misfortune of others. So it’s not fair to call him an asshat for the same conduct, is it?

Sure it is. He is ultimately responsible for his marketing, and if he doesn’t write his own blog posts, he’s even more of an asshat for paying someone to make him appear to be an asshat.

Lawyers have caught on slowly to the internet. They too often think of it as a surrogate for the Yellow Pages, in which the name of the game is to get yourself the biggest ad you can (i.e. as many websites as you can) as near the front of the book as possible (i.e. as high in Google searches as possible).

Marketers looking for lawyers’ money encourage lawyers to think of the web this way because visibility is easy to manipulate, with multiple interlinking URLs and SEO. With his “blog” republishing news accounts of accidents (keyword-rich by nature), Kirk Bernard is playing the visibility game.

But the correct way for lawyers to think of the internet is as a surrogate for the Real World, in which the objective is to do the best job you can and hope that volunteers spread your good reputation. People selling marketing services to suckerslawyers aren’t, by and large, interested in encouraging them to thing of the web as a world in which reputation matters because reputation is difficult and dangerous to manipulate.

Look at how a web-savvy potential client will look for a lawyer. First she’ll google the kind of lawyer she’s looking for (”Houston criminal lawyer”, for example, or—in Kirk Bernard’s case—”Washington personal injury attorney”). She’ll get some names. Recognizing, however, that lawyers’ websites are advertisements (and seeing that many of them are blatantly self-aggrandizing, Yellow Pages ads writ large), she’ll google those lawyers’ names and see what other people are saying about them. Even if she heard a name offline from a friend (”So-and-so did a great job for my cousin”), she’ll google so-and-so before even making the call.

If you’re marketing yourself on the internet, getting found in the first place is less than half the battle. If your online reputation is poor, you’re not going to get most of the potential clients who found you online, and you’re also going to lose those potential clients who found you offline but researched you online before signing up.

I’ve written before about how lawyers risk falling afoul of the ethical rules when they outsource marketing decisions. This weekend we’ve seen how quickly a marketing move can turn into an online reputational catastrophe. The sudden shock to Kirk Bernard’s online reputation should serve as a
cautionary tale to lawyers who market themselves online, especially
those who hire others to look after the details.

Washington personal injury lawyer Kirk Bernard.

No editorializing required—Kirk makes it look so easy.

(H/T Kevin O’Keefe via Twitter.)

(More: Kirk Bernard is a Slime Ball.)

Many of you have been asking me
about the new DIP program for 1st time DWI offenders. Well here is what was said
at our coordinators meeting yesterday…this is what has been put together
so far (it may change – but for now – here is where Lykos is
at)
 
Disposition Intervention
Program

• Minimize Court Appearance
  during disposition period.
• Impose conditions based upon
  offender evaluation.
• Assure supervision criteria
  are uniformly applied.
• There will be specific
  sanctions
• There will be specific
  incentives
• PO will have ZERO
  discretion
• No second
  chances.

Qualifications

• 1st Offender, citizen,
  reside in Texas.
• NO priors in or outside of
  Texas
• Wrongful arrest does not
  count
• Inmate are
  elligible
• Juvenile or state jail
  felonies as a juvenile does not count.

Exclusions

• Any juvenile adjudication
  for 3rd degree felony or higher
• Out of state
  resident
• Judicial Veto can take
  place

District
Attorney Screening Process

• NCIC / TCIC
• Review Pretrial interview
  sheet
• View Video
• RIP, OR & Accident
  report

Pre DIP
Events

• DA makes offer

• Defendant agrees to
  evaluation (this will include 3 – 4 test ~ Urinalysis, SALCE test, risk /
  needs evaluation. (defendant will have to pay for all tests) Once evaluations
  are completed – recommendations are made
• Defense accepts or
  declines
• Agreement
  signed

DIP
Events

• DIP docket
• Plea of guilty to specific
  punishments
• 12 – 24 month DIP
  period
• Specific sanctions for
  violation
• Conclusion:  dismissal
  or punishment assessed.
• Everyone on DIP must have
  the Interlock on their car for a minimum of 6 months – if no car then SCRAM
  will be ordered.

Program
Time Line

• 75 – 90 days from date of
  arrest
• DIP will last from 12 – 24
  months

As of right now ADA’s are starting to screen eligible
candidates.

I hate to say, “that’s just not funny.” Even aside from the Feminist Law Profs ownership of that particular intellectual property (and you do not want to tangle with the FLPs), I figure it’s better to respect the dark humor in a situation than to pretend it doesn’t exist. But c’mon now, Psycho Donuts: “A padded cell, a ‘nutcase’ art display“? Straitjackets for the kiddos? “Bipolar” donuts? “Massive Head Trauma” donuts?

Really?

How about these new business ideas (free to anyone who can get an SBA loan)?:

• Cripple Chili Dogs, where all the sandwiches are broken in amusing ways.
• Boozehound Smoothies, with drinks like the “Mad Dog”, the “Sterno”, and the “DTs”.
• PTSD Croissants, where video screens play entertaining loops of actual violent crimes and gun battles from Vietnam to Afghanistan over a soundtrack of screeching brakes and IEDs.

Or (my personal favorite):

• The Knocked-Up Teenager Bakery, where a barefoot high school dropout will serve your bread on a wrapper printed to look like GEDs.

“Ought” vs. “May” on why MADD has DUI policy wrong.

In support of my local newspaper, I’ve started blogging on Chron.commons. My idea is to put posts of interest to the general public there, and posts of interest to the criminal defense bar here.

My first post on Chron.commons: Smoke. AND Mirrors.

Gerry Spence spoke today at the end of the Texas Criminal Defense Lawyers Association’s annual Rusty Duncan Seminar. I could see why they put Gerry last—if he spoke first, most of the lawyers talking about lawyer stuff would seem largely irrelevant or quaintly unself-aware.

One speaker, for example, advocated telling jurors who gave “good” answers on voir dire: “Have you served on a jury before? Because most people wouldn’t think of that.” What is that, a juror pickup line? (more…)