Defending People

Posted By Mark Bennett on March 9, 2010

A Houston judge who ruled last week that the proceedings surrounding the Texas death penalty are unconstitutional rescinded his ruling this morning to schedule a hearing for lawyers on both sides to submit arguments on the issue.

(Houston Chronicle, from which the Keirnan and Allen quotes below also come)

While I wasn’t able to attend this morning, I have it on good authority that the Houston Chronicle’s description of the proceedings is accurate. I commend the Chronicle for this, and for bucking the AP in favor of Messrs. Strunk and White’s preferred punctuation of the possessive of Texas.

I appreciate people who are able to admit their mistakes and correct them. It shows strength of character, whether the people are reporters or judges. Judge Fine jumped the gun when he held Article 37.071 unconstitutional. There was no evidence presented in support of the motion, and some of the facts Judge Fine took judicial notice of were not in fact facts. He violated the first rule that judges learn at baby judge school, which is that the best way to avoid reversal is not to rule. Then he violated the second rule that judges learn at baby judge school, which is to not change your ruling once you’ve ruled.

Now the parties have until April 12th to submit briefs; a hearing is scheduled for April 27th. (Which is odd—usually the briefs come after the evidence.) It’s not entirely clear what will happen at the hearing. Maybe Judge Fine (who doesn’t read my blog) intends to do what I proposed last Friday: test in a full-blown adversary proceeding the assertions of those on both sides of the death penalty debate. Defense lawyer Casey Keirnan seems to think that’s what is going to happen: “For the first time . . . we’re going to have a hearing about whether innocent people get executed.”

Strategically, it might have been better for the State had the order stood as originally signed. But both sides should welcome this chance, and they do. Prosecutor Kari Allen says she is “grateful that we have a chance to more fully litigate it.”

There is nobody better (more competent or more appropriate) to develop the case in favor of the death penalty than the Harris County District Attorney’s Office. Let the defense have subpoena power and the resources for an investigation, and see what the evidence shows.

However it shakes out, society wins.

Category: death penalty, debates | No Comments »
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Posted By Mark Bennett on March 8, 2010

I had a conversation recently with a woman who had accused her husband of hitting her. I was explaining her position in the criminal case: “You won’t have a lawyer, since you’re not a party. You’re a witness.” “I’m not a witness,” she replied indignantly, “I’m a victim.”

This is, I’m afraid, the spirit of these American times: if victimhood isn’t acknowledged, the victim is offended. There is value in being a victim. It’s a point of pride.

Intertwined with this victims’ pride, there is a movement of victimocracy afoot in America. To the victimocrats, not handling victims with kid gloves is an impeachable offense. To the victimocrats, it is appropriate to to honor the dead with destruction or by naming laws that will put people in prison after them.

Houston has a victimocrat-in-chief, Andy Kahan (who has found a way to make victimocracy pay) thinks victims’ rights should be constitutionally enshrined, and that victims should be treated with respect and dignity . . . unless they are the victims of false allegations. The victimocrats even have their own week at which they celebrate fictional inflated numbers of crimes.

The victimocrats’ only tool is fear. “I am a victim,” they say, “and if you don’t pass this legislation you will be one too.”

How are the victimocrats doing? Consider President Obama’s appearance on the 1000th edition of America’s Most Wanted, about which Norm Pattis writes:

The president sat for an interview with one of the angriest and most self-righteous men in the United States, John Walsh. He’s the father of Adam Walsh, a little boy abducted and murdered several decades ago. Since then, we’ve all felt the pain of the Walsh family.
. . . .
President Obama’s decision to appear on America’s Most Wanted was not the reasoned and measured response of a commander in chief committed to rule of reason. Obama sat with Walsh and was lectured by the talk-show host about the need to take DNA samples of every person accused of a felony. The president listened to a man who has lent his son’s name to controversial federal legislation that has been declared unconstitutional in some federal courts and is destined for a Supreme Court challenge. What was Obama trying to accomplish with this appearance?

We had eight years of fearmongering in D.C.; as Norm says, “It’s looking more and more like the same old stuff. Yet another American president cosseting the fearmongers? Ho hum.

This is the American victimocracy, flexing its political muscle. It’s reptile writ large.

Are those of us who believe that love will triumph over fear deluding ourselves?

Category: fear, politics | 3 Comments »
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Posted By Mark Bennett on March 7, 2010

Friday, Fine clarified that he declared the procedures Texas has in place to carry out the death penalty unconstitutional, a legal parsing even to the prosecutors trying the case.

The Houston Chronicle clings doggedly to the false proposition that Kevin Fine “declared the death penalty unconstitutional Thursday.” On Friday Judge Fine clarified why he was declaring the procedures unconstitutional, not that he was declaring the procedures unconstitutional:

I do, however, want to clarify because this was a multi-point motion, I want to clarify my ruling on the motion and I want to also have — give the State and the Defense an opportunity to present any authority that they may have come up with since my ruling yesterday afternoon until today or this morning.
. . . .
My holding with regard to the Defense motion is limited only to the due process claim that 37.071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons.

The Chronicle may think it has some inside information suggesting that what the judge meant to do was to declare the death penalty unconstitutional, but court orders are word magic, and a judge doesn’t do any more or less than his orders say. It was clear from Thursday’s transcript and order (once you figured out that “37.01″ meant “37.071″) that the procedures, and not the penalty, were unconstitutional in the judge’s view.

The difference may not be apparent to the Chronicle’s lay readers, but it ought to be clear to a reporter with a law degree, and it’s a newspaper’s responsibility, abdicated in this case, to try to educate its readers rather than make up sensational news.

Which brings us to “parsing.” At some point in the last nine years to parse became a pejorative (along with nuance and empathy). But parsing—examining the text minutely, word-by-word and comma-by-comma—is how we understand, apply, and counter word magic. Lawyers parse. Statutes, opinions, and orders are written to be parsed. We don’t just look for the gist of the matter and act on that; it’s a poor lawyer that does. Judges and appellate courts know this. The prosecutor knows it too; I will bet lunch that “legal parsing” was a phrase suggested by the Chronicle and not rejected by Bill: “Would you call this legal parsing?” “Yeah, sure, whatever. As a practical matter . . .”

In the course of my career so far I’ve seen the quality of legal reporting in the Houston Chronicle improve. The problems with Texas’s death penalty procedures are real, and are worthy of discussion even to people who in principle favor the death penalty.

The Chronicle’s coverage of Judge Fine’s ruling disserves and disappoints.

Category: death penalty, procedure | 4 Comments »
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Posted By Mark Bennett on March 5, 2010

Findlaw is looking for a dreckblog writer:

KEY RESPONSIBILITIES:
- Track legal news and developments on a daily basis, using multiple information sources
- Write blog posts reporting on legal news and related legal information of interest to a consumer audience, under the direction of an editor
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- Track blog post performance using multiple measures (e.g., traffic, syndication, conversion) and use performance measures to constantly refine posting style and improve post performance

REQUIREMENTS:
- Bachelor’s Degree required
- Legal education or experience a plus, but not required
- Excellent writing and reporting skills, with ability to write in a conversational tone and demonstrated ability to successfully write for the web
- Basic understanding of HTML and SEO
- Professional blogging or online media experience is highly desired
- Internet savvy with experience using social media tools such as blogs, message boards, social networks, microblogging, social bookmarking and/or social sharing

IDEAL CANDIDATE:
- Has an interest in writing about legal topics for a consumer audience and following legal news and developments
- Understands and has mastered high-volume blog writing and can turn out a developed 250 word post in under 40 minutes
- Works well in a team environment, embraces change and is highly adaptable

High-volume blog writing?

250 words in under 40 minutes?

Interested in following legal news and developments?

Legal education and experience?

Professional blogging experience?

Internet savvy?

Are you thinking what I’m thinking?

(H/T San Jose criminal defense lawyer Izaak Schwaiger.)

Category: Uncategorized | 3 Comments »
Tags: dreckbloggen, Findlaw

Posted By Mark Bennett on March 5, 2010

More news, documents, and analysis of Kevin Fine’s order holding the Texas death penalty procedure statute, Code of Criminal Procedure Article 37.071, unconstitutional:

Yesterday I brought you the motion, and the order Judge Fine signed. I explained how the press had the story wrong (the death penalty isn’t unconstitutional; the procedural statute is; correcting the statute would put the State back in the death penalty business in the 177th).

More documents today (thanks to my friends in the DA’s Office for copies of the first transcript and the State’s two motions), and some analysis. Jump to the bottom if the details of the argument don’t interest you. (more…)

Category: death penalty, due process | 7 Comments »
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Posted By Mark Bennett on March 4, 2010

A courtroom observer reports that Judge Fine took judicial notice of more than 200 death row inmates exonerated, most due to DNA retests, which called into question many more cases where DNA was not available to retest.

The following are approximate quotes from Judge Fine:

I must decide what our evolving standards or decency are, such that society recognizes standard of fairness and liberty that a state might execute one or more innocent people so that people who are truly deserving of death can be executed.

Our country is more aware of executing innocent people. I don’t think anyone would be willing to allow an innocent be executed so that guilty can be executed.

With no other guidance from a higher court, this is the most difficult decision I’ve had to make. But I am not prepared to say our society is willing to let innocent people die so Texas can have a death penalty.

Category: capital murder, death penalty | 4 Comments »
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Posted By Mark Bennett on March 4, 2010

Brian Rogers of the Houston Chronicle reported today that Judge Kevin Fine of the 177th District Court “declared the death penalty unconstitutional.” This caused the Chronicle’s anonymous commenters to gibber ignorantly in righteous indignation like a cage full of unusually stupid monkeys. Which is always fun.

Paul Kennedy was immediately on the story, for which Jeff Gamso gave him kudos. The Houston Press posted on it, complete with quotes from Brian Wice, Casey Kiernan, and Pat Lykos.

Unfortunately, Brian Rogers’s report is not quite accurate. In fact, it’s far enough from accurate to be totally false. Judge Fine did not declare the death penalty unconstitutional.

Today Judge Fine denied the defendant’s Motion to Declare Death Penalty Unconstitutional Based on Texas’ Lethal Injection Protocol (Scribd) and his Motion to Declare Texas Death Penalty Statute to be Unconstitutional (Jurors’ Inability to Predict Future Dangerousness) (Scribd).

The motion that Judge fine did grant was the defendant’s Motion to Hold that Texas Code of Criminal Procedure Article 37.071 is Unconstitutional:
Motion to Hold that Texas Code of Criminal Procedure Article 37.01 is Unconstitutional

Here’s article 37.071, Texas’s (screw the AP: if you pronounce the possessive “Texas’s” you should write “Texas’s”) statute dictating procedure in capital cases. Holding the death penalty procedure unconstitutional is not the same as holding the death penalty unconstitutional. It’s a roadbump for the State, sure, but the procedure could, at least theoretically, be corrected to allow the State to go on killing people even if the appellate courts uphold Judge Fine’s ruling. If the procedure is corrected, it can be applied to the accused in this case.

The defense throws everything at 37.071. The motion is a jumbled catalog of ways in which “[t]he system that determines who should die in Texas is truly ‘broken.’” It’s a mixed procedural and substantive due process argument: the process isn’t fair, and it might result in an innocent person being killed by the State.

Judge Fine didn’t specify why he granted the motion. He just granted it. So in order to uphold Judge Fine’s ruling, the courts of appeals will have to review and reject every argument that the defense made. Not that that’s a big hurdle for a Texas appellate court, but first there’s a procedural hitch to the appeal of the order holding the procedure unconstitutional:

The state is entitled to appeal an order of a court in a criminal case if the order:
(1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy;
(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case; or
(6) is issued under Chapter 64 [dealing with forensic DNA testing].

Texas Code of Criminal Procedure Article 44.01.

In holding Texas’s death penalty procedure unconstitutional, Judge Fine didn’t do any of those things listed in article 44.01. So there is no legal authority for the State to appeal. The resulting procedural maneuvering is going to be interesting. The death penalty trial can’t go forward if 37.071 is unconstitutional, but the accused has a right to a speedy trial; the State can’t move to dismiss and then appeal the dismissal. The defendant is accused of aggravated assault as well as capital murder, so the State’s best shot at killing him might be to dismiss the capital murder, try to hold him on the aggravated assault charge until Judge Fine is no longer on the bench, and then refile the capital murder case (on which there is no statute of limitations).

Unfortunately, Brian Rogers’s inaccurate story is going to be the story that the Republicans tell their scared white voters in 2012. Texans still love their death penalty, and a judge who held the death penalty unconstitutional—even if he didn’t—has a steep uphill battle.

[Update: The Texas Lawyer Blog, which interviewed lawyer Casey Keirnan, says that Judge Fine held "Article 37.01" unconstitutional. While that's what the order says, and that's the title of the motion, Article 37.01 has nothing to do with it.]

Category: capital murder, death penalty, procedure | 15 Comments »
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Posted By Mark Bennett on March 3, 2010

Rule 7.02 Communications Concerning a Lawyer’s Services
(a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

It offends me when people steal the work of people who write for a living. Nobody could possibly think that taking newspaper articles and posting them to a blog attributed not to the newspaper or the author but to you is anything other than plagiarism. No competent lawyer could possibly think that doing so is anything other than unethical.

When I discovered, serendipitously, that Austin lawyer Chris Dorbandt was plagiarizing newspaper stories for his criminal defense “blog,” I tried a new approach. Instead of immediately gutting him here, I tried to leave a comment on the blog, suggesting that attribution (the first plagiarized post I saw contained a Houston Chronicle story by Brian Rogers) would be appropriate.

The comment never posted.

I emailed Dorbandt (kinder, gentler Mark, remember):

Chris,

Claiming credit for other people’s writing is plagiarism. It’s theft. It’s a violation of the DRs, and reflects poorly on your character and fitness to practice law.

Every post on your blog is stolen. I emailed you about this yesterday; you must not have received the email. I suggest that you delete what you’ve posted so far, familiarize yourself with the legal blogosphere and start over fresh.

It’s for your own good.

Mark

To this he responded:

I was out of the office most of the day, yesterday.  Have you blogged to me or the firm before?

Clearly he has no idea what blogs are. I replied (yes, this is me being kind and gentle):

Clearly you have no idea what blogs are.

Before his first response, I had sent him another email:

Chris,

There are lots of great criminal defense blogs, with high page rank. A really really good way to get on the bad side of the people who write these blogs, so that they write uncomplimentary things about you that potential clients will find when they google your name (exhibit 1: Andy Nolen) is to plagiarize other people’s work and call it a blog.

Mark (DefendingPeople.com)

He responded:

In answer to your first email, I have not written any uncomplimentary things that I know of.  I will check with my staff…

I replied:

It’s not uncomplimentary, it’s theft. As a result, you’re likely to become the subject of some very bad publicity.

Here’s what I suspect has happened: knowing nothing about blogs, you’ve paid someone to create a blog for you. You’ve ceded control over your name and your reputation to that person. Unbeknownst to you, that person is stealing content from newspapers and publishing it under your name.

How’m I doing so far?

Unfortunately, “I didn’t know” is not a defense. There’s a saying in the blawgosphere: Outsource your marketing = outsource your ethics and your reputation.

What you should do: take down every plagiarized post on your blog, and fire whoever put your reputation and your license in jeopardy by stealing in your name. Thank me for helping you dodge a bullet.

He asked me, densely, to explain it to him. I wrote (beginning to run short on patience):

It’s really not complicated:

1. Taking someone else’s writing and claiming it as your own is theft.
2. Theft is wrong.
3. You are responsible for the wrongs others do on your behalf.

Take down the plagiarized content, then we’ll talk about how to start a real blog.

I’ve seen no indication that Dorbandt is competent to start a real blog, but there’s no harm in talking about it.

Apparently confused about what blog I was talking about, he wrote:

Which blog are you talking about??? 
I’ve been in and out of several courts today and in two different counties.  I’m headed out again in 40 minutes.  But I will be back to address this … point me in the right direction on the blog and I will ensure that it is taken down immediately.

My response:

All of your blogs that I’ve seen.

If I were you, I’d be on the phone right now with Catalyst telling them to take down every blog they’ve put up for you.

Dorbandt had a criminal defense blog and a personal injury blog, both of which were almost (we’ll get to that) entirely plagiarized content. Catalyst Designs is his web designer.

Then for two hours Dorbandt emailed about taking the blogs down, with no apparent success. As of now, the criminal defense blog is down but cached (PDF). After all the time I wasted trying to set Dorbandt on the strait and narrow, the personal injury dreckblog is still up, with content stolen from the Austin American-Statesman published as “by Chris Dorbandt” (PDF). (Aside: I won’t waste my time next time; instead I’ll proceed directly to the disembowelment.)

Worst of all, Dorbandt includes brief “Personal comments” in some of the posts. For example:

Personal comment:  It will be interesting to see if the homeowner’s insurance pays the claim or takes a stand and fights it based upon it being a criminal act and therefore, unforeseeable.

Personal comment:  The family has probably been trying to settle the issue with the City and police department and had to file suit to preserve the claim and it is not not necessarily adversarial.  Negligence on the part of  City is probably disputed.  If the officer had not been trained, why was he riding the motorcycle in full uniform?

That’s the sum of the non-plagiarized material in Dorbandt’s blog. I say it’s worst of all because it shows that Dorbandt (or someone with legal training acting on his behalf) added comments knowing that he wasn’t writing the posts attributed to him.

I was overly generous in suggesting that the content theft was not known to Dorbandt. This isn’t an instance of outsource marketing = outsource ethics. If that were all this was, or if Dorbandt had taken down the personal injury plagiarism blog, this post would be about the evils of Catalyst Designs, and why lawyers should on no account trust Catalyst Designs with their online marketing.

The comments, though, suggest that Dorbandt is a direct participant in the plagiarism.

Plagiarism reflects unfavorably on Dorbandt’s judgment, his ethics, and otherwise on his fitness to practice law.

None of that will be news to anyone but him. Here, though, is a new question:

How stupid does a lawyer have to be to plagiarize the courthouse reporters in his local paper?

Category: blogging | 7 Comments »
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Posted By Mark Bennett on March 3, 2010

As illustrated by the ‘problems’ firms are experiencing with X and Y geners, there has been a global values evolution. These generations are less willing to accept the same incursions on their family and social lives in return for rewards in the future. They are also less tolerant of organisations that fail to give them the opportunity to be part of a larger cause, one that exists outside of a profit motive or the meaningless client service guff that is often dished up.

Andrew Hughes, The Law: All Guff and Discontent?

Inspired by this, Scott Greenfield writes:

The young set sees posts like this expert’s and believes that they are right to demand changes that make them happy and fulfilled.  Older lawyers, who are discontent with the law fail to notice the absence of logical nexus between their discontent and the Slackoisie solution (though they will figure it out soon enough when the college tuition bill arrives) see acquiescing to the demands of the Slackoisie as the path of least resistance.  And everyone looking for an excuse to indulge their weaknesses and self-interest at the expense of their clients will embrace this nonsense.

In a comment to Scott’s post, Dan Hull essays a translation of the portion of Hughes’s statement beginning with “there” and ending with “motive”:

Whoa. Translation: (1) “It’s all about the law firm workers in a services profession or services industry”; and (2) “Clients are merely the equipment in our game. They can be compromised. Don’t sweat it. It’s really all about protecting the new low standards of the young. We can screw clients over by mailing it in–or maybe in between trips to the washroom to shoot up or complain about management making us work for the money”.

As a member of Generation X who long ago rejected a role  as a cog in the corporate machine (had the associates at Sheinfeld, Maley & Kay in 1994 been bloggers, some Greenfieldian curmudgeon would have groused about the summer clerk who asked if the job was fun—as if that matters), I find some truth in Hughes’s quote.  (It does suffer from poor writing—it’s not clear whether the “leadership expert and coach” author thinks that all talk of client service in law firms is guff. I think all lawyers can agree that law firms often pay mere lip service to client service; calling all client service “guff,” though, would be a declaration of war.)

I’ve long considered myself unfit to be an employee. The work-30-years-then-retire ethic of my parents’ generation never caught on with me. Certainty that I’ll never get a cent from Social Security contributes to my unwillingness to sacrifice now for some future retirement Xanadu. Why suffer for some faraway retirement that may never come when I can live well now and in the future?

The idea that I might become redundant at 65 is an abomination. The lawyers whom I most respect are those who aren’t going to stop working till they have to; who, at a sharpminded 70-75-80 years of age, are still doing battle in the courthouse.

So I try to live well now. Work-life balance? I’m all for it. Give me time with my family and my friends and my cars, good books to read and places to travel. Most importantly, let me attend my kids’ shows, and be there when they get home from school, and cook family dinners.

But. . .

But something has to pay the bills, and—since it’s the thing that I’m best suited for, and possibly the only thing I’m suited for—my something is helping people in trouble. The client is, as Dan Hull says, the main event. Without clients there are no cars, books, travel, home, or food. The family is my reason for existing; the clent is my reason for practicing law.

I’m not billing by the hour or by the word; I am paid a flat fee to defend the client as well as I humanly can. When the interests of family and client conflict, the client wins. That is the way it has to be. There will be other family dinners, but this is the client’s only shot at freedom.

Even in practices very different from mine—large firms representing non-human clients at hourly rates, for example—the client has to be the main event and win all conflicts.

What about that work-life balance? Some people are driven to practice more law so they can make more money so they can practice more law. For my part, I create balance by minimizing conflicts between client and family. I do that by taking few cases and charging lots of money. I can afford to take fewer cases for more money because (in a nutshell) I’m lucky and experienced. When I was less experienced, I created the balance I wanted by living a little more humbly.

I think there are two lessons here for the aspiring Y-Gen lawyer.

First, “work-life balance” is a metaphor for what we’re really talking about, which is money-time balance. Forget the myth that people are going to throw money at you for having a JD. You have to give up some of your time for every dollar you earn. The more dollars, the less time you have for your non-law pursuits. The more time you’re willing to give up, the more dollars you have to spend on your non-law pursuits. If you want money-time balance, be willing to accept less money.

If you’re talented or hard-working, your time will become more valuable over the years. (And recognize this: the more time you give up in the beginning, the quicker its value will accrue.) Eventually, maybe, you can live in the nice house and drive the fancy car and be home for dinner with the kids and take family vacations. Or whatever your dream is. But every payment on the car and house is time away from your non-law interests—a greater incursion on your family and social life.

Second—and this is most important—if you’re not prepared to make the client the main event, don’t be a lawyer. There’s no point in being a lawyer who puts the client second.

Category: Uncategorized | 2 Comments »
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Posted By Mark Bennett on March 3, 2010

David Ball, co-author of Reptile, is asking criminal lawyers to help him develop a list of “reasons we lose criminal defense cases.” He wants to hear from lawyers in the trenches who deal with these problems all the time.  The list will help him and his team develop the use of Reptilian advocacy for criminal defense, where he believes it will become just as powerful for us as it has proven in civil cases for plaintiffs.  Please take a few minutes to jot down your list; send it to ball@nc.rr.com.  Subject line: CD Reptile.

David also wants to use responding attorneys for a sounding board as he and his team develop Reptilian criminal defense strategies.

Category: Reptile, criminal practice, jury trials | 12 Comments »
Tags: David Ball