Which is Worse?

Posted on May 5, 2008
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Houston criminal defense trial lawyer Sarah Wood and I have a disagreement.

She says that when I put my hand in my pants and simulated masturbation in an indecent exposure jury trial to illustrate what the police officer admitted having done to entice the accused to show his penis, it was “much worse” than Adam Reposa’s conduct that netted him 90 days in The Reposa Affair.

I contend that my demonstration for the jury was entirely appropriate.

It Might Just Work

Posted on May 5, 2008
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While I was contemplating the six-thousand-year-old theropod and sauropod tracks on Mr. McFall’s farm over the weekend, Dallas D.A. Craig Watkins came out in favor of summarily executing prosecutors who concealed exculpatory evidence . . . well, actually just hitting them with bar sanctions and maybe criminal prosecution. Lots of folks had something to say about this:

Grits, Dallas Criminal Defense Lawyer Robert Guest, Fort Worth criminal defense lawyer Shawn Matlock, Connecticut public defender Gideon, and New York criminal defense lawyer Scott Greenfield.

Ordinarily you would think that by the time the Connecticut and New York bloggers got to a Texas topic it would be as dead as Eight Belles and not in need of further flogging. But the two Gs are on top of things, so their posts never scare me off. I though of an angle — how are the prosecutors on the TDCAA forums reacting? — only to find that Wise County, Texas criminal defense lawyer Barry Green had beaten me to it. Bryan, Texas criminal defense lawyer Stephen Gustitis went there, too.

All I have to add right now is that if a like-minded Harris County District Attorney is elected, he and Mr. Watkins together might have enough influence with the legislature to actually get the legislature to give Brady some teeth.

I didn’t like prosecutorial lobbying of the Texas Legislature when it was Chuck Rosenthal trying to kill LWOP (why should the executive branch, charged with enforcing the law, be paid to try to change the law?) but now I can see its value.

The Real News: AP is Clueless

Posted on May 2, 2008
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The Associate Press reports (H/T Judgment Day) that the feds prosecute more Hispanics than white people for powder cocaine trafficking. In a desperate bid to get more of a reaction than “Duh!”, the writer, Laura Jakes Jordan, tries to draw a meaningful connection between the feds’ prosecution statistics and the public perception that powder cocaine is a white man’s drug; here’s the lede:

They were indelible images of the cocaine world of the 1970s and ’80s: Rich yuppies and white suburbanites partying down with a couple of lines of “blow.” Stockbroker Charlie Sheen snorting up in the limo in “Wall Street.” Woody Allen’s sneeze in “Annie Hall.”

More than 30 years later, the image remains but the reality of coke in the United States has shifted significantly. Long portrayed as a white crime, Hispanics now make up the overwhelming majority - 60 percent - of federal offenders facing powder cocaine charges.

The federal offenders facing powder cocaine charges are, of course, not accused of “partying down with a couple of lines”. They are almost invariably charged with trafficking. The feds don’t bother a whole lot with simple possession cases and, moreover, shouldn’t.

The story does not demonstrate the advertised “shift in the reality of cocaine in the United States”. That the feds prosecute mostly Hispanics says nothing about who the users are. Powder cocaine is still a white person’s drug; nothing in the story gives us reason to doubt it.

Yet cocaine trafficking is a business dominated by Hispanics.

Why? Because coca leaves are grown and cocaine is manufactured in Spanish-speaking countries, and cocaine can travel from supply to demand without leaving Spanish-speaking territory.

Duh!

Hoist With His Own Petard

Posted on May 1, 2008
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Frisco, Texas DWI lawyer Hunter Biederman brings us this heartwarming story of Mike Crusee, a state rep from Williamson County, Texas illustrating the white republican hypocrisy for which that county is justly famed. Mr. Crusee, who “carried and passed legislation in 2003 that created something called the ‘driver responsibility program’ to help fund the Texas Mobility Fund. That program included a number of surcharges for driving offenses, including $1,000 for a first conviction of driving while intoxicated,” got arrested for DWI.

(He is undoubtedly innocent of the crime, since he refused to blow.)

Diplomatic?

Posted on April 30, 2008
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My lawyer informs me that, since I’m going to be HCCLA president next year (actually next week), I’m going to have to start being more “diplomatic”.

I’m not sure I can do that.

But I’ll try. . . . starting tomorrow.

Today’s Asshat of the Day Award (henceforth “ADA”) is shared by every 25-28 year old lawyer who thinks that a law degree and a job with a District Attorney’s Office somehow qualifies her to make decisions that affect other people’s freedom, their livelihood, and their futures.

Because, of course, it doesn’t. And because believing that it does is the sort of arrogance that gives lawyers a bad name.

If you’re one of those prosecutors who has the good sense to know that you don’t have the wisdom to decide what other people “deserve”, if you wield your newfound power with humility, and if you’re not afraid to listen to those who have been around a lot longer than you (even if they are defense lawyers) then I’m not talking about you. You may even be in the majority; I don’t know — there are an awful lot of young prosecutors who are under the impression that a commission from the State magically imbues a callow youth with an inerrant godlike sense of right and wrong.

This is, of course, the nature of youth: when we are young we have neither the knowledge required to know how much we don’t know, nor the wisdom required to understand how much we don’t understand.

The good news is that many of today’s award winners might someday grow from supercilious self-righteous superior attorneys who think (by virtue of their law-school mock trial victories and their assignment to misdemeanor courts whose judges cosset and defer to them) that they are God’s gift to advocacy, to decent human beings and possibly even pretty good lawyers.

What We Are vs. How We Act

Posted on April 30, 2008
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Fort Worth criminal defense lawyer Shawn “No Prisoners” Matlock asked a simple question:

If you’re hiring a defense attorney, do you want someone to feel your pain, or someone to take no prisoners in defending you?

Given that choice, I argued that a person is better off with a person who has compassion than one who is ruthless. My argument must have been pretty compelling, because “No Prisoners” got his panties in a twist, responding not once but twice.

Austin criminal defense lawyer Jamie “It’s Spencer-With-a-C, Scott” Spencer equates ruthlessness with aggressiveness, and does his part to save the environment by recycling part of an old post on aggressive lawyers.

New York criminal defense lawyer Scott Greenfield chimes in, declaring that we can be both compassionate and ruthless. While we can behave at some times as though we are one and at some times as though we are the other, the two words are antonyms and we can’t be both at once. So Scott’s playing the metagame (playing games with the rules) rather than the game that Shawn proposed by Shawn.

To sum up, Shawn hit on an interesting topic. But he’s still wrong.

Iowa criminal defense lawyer Chuck Kenville (who says “me too!” to Scott) left a comment to my post equating lawyers with surgeons. The “surgeon” metaphor has its place, but it’s not in this context. Surgeons aren’t known for their social skills; they don’t have to get people to agree with them in order to make the patient better. Trial lawyering is all about social skills, and getting human beings to do what is in your client’s best interest. When we try a case, we’re not operating on our client.

Chuck also asks,

How do you empathize with an accuser who lies about your client sexually assaulting them? How do you empathize with the cop that invents the probable cause for his traffic stop out of thin air? How do you empathize with the DEA agent that you talked about in one of your posts that shoots your client and then takes the 5th so he can get his story straight with the other crooked cops?

Chuck’s answer is “YOU DON’T!!”; he suggests “contempt” for the lying witness as a superior strategy.

It has been my observation that contempt for a witness isn’t a particularly productive strategy. The sound and fury of a ruthless lawyer who has nothing but contempt for the lying witness is undoubtedly impressive to the client, to non-lawyers, and to inexperienced lawyers. Contempt for him is easy. It’s made-for-TV lawyering. But your contempt for the lying witness is never going to magically convince the jury that the witness is lying, so until the jury knows that the witness is a liar, though, the sound and fury signify nothing.

Unless you do something very special on cross-examination the jury is probably going to believe the accuser, the cop, or the DEA agent. (If the jury weren’t going to believe the witness, you wouldn’t have a problem in the first place.) Your best bet — assuming that, as is usually the case, you don’t have proof of the lie — is to get inside the witness’s skin, figure out why he would lie, and then step out and use that information to cross-examine him.

We can’t get the state’s witnesses to submit to psychological evaluations before trial. So my response to Chuck is: you must empathize with the lying witness.

An empathetic lawyer can be unrelenting. Relentless, even. He might appear in certain situations and to certain people to be ruthless. It is a great shame of Western culture that empathy is seen as weakness. Empathy is not weakness but a source of tremendous strength.

A ruthless lawyer might imitate empathy, blunder into the truth, and fool some of the people some of the time. When we try a case, we are surgeons operating on the emotions of the participants. A lawyer without empathy is like a surgeon who hasn’t studied anatomy.

The Myth of the Ruthless Lawyer

Posted on April 28, 2008
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Young Shawn Matlock, Fort Worth “Republican” criminal defense lawyerattorney, responds to my position that empathy makes us better lawyers and in doing so asks the following:

But what about ruthless? Ruthless to get exactly what you want. Ruthless to not settle for less. Ruthless to take no prisoners, no matter what the cost to others. Ruthless to the point that everything is just collateral damage.

Now, I assume that Young Shawn intends this at least in part as rhetorical puffery for the paying customers. First, “ruthless” doesn’t guarantee you “exactly what you want”; “ruthless” doesn’t mean “not settling for less”, it means “not having compassion” (maybe Shawn here means “relentless”?).

Unless Young Shawn is a sociopath, “no matter what the cost to others” is (how to put this gently?) a lie. That our clients’ wellbeing is our sole concern — to the exclusion of all others — is a popular conceit, but it’s no more true for being popular. The truth is that criminal defense lawyers take into account other people in defending their clients. Some collateral damage is unavoidable, and some is unacceptable. And rightly so.

Don’t believe me? Here’s a thought experiment: suppose that you, a lawyer, could legally kill an innocent child and free your client. Would you do it? Of course not — again, unless you’re a sociopath. If you agree with me that you wouldn’t execute an innocent child for your client’s sake, then we’re just haggling over the price.

Young Shawn, not content with that sobriquet and realizing that “the Texas Hammer” and “the Tough, Smart Lawyer” are already taken, is apparently marketing himself as “The Ruthless Take-No-Prisoners Lawyer”. For he asks:

Now with those in mind, which should be the dominant character trait for a criminal defense attorney?

If you’re hiring a defense attorney, do you want someone to feel your pain, or someone to take no prisoners in defending you?

I’m sure “take no prisoners” will sell to the customers, as apparently do “aggressive” and “former prosecutor”. The bulk of people hiring a criminal defense lawyer have never hired a lawyer, much less a criminal defense lawyer, before, and don’t know what to look for. Sometimes they think they will be best served by an “aggressive” “ruthless” “former prosecutor” “pit bull” lawyer. (I don’t mean to libel the breed; I’m talking about the public perception of pit bull dogs: aggressive and dangerous.)

Take-No-Prisoners Shawn seems to think that you can’t be empathetic toward just one person or category of people — that a lawyer who feels for his clients is also going to feel for the cops, the prosecutors, the judges, and the complainants.

Take-No-Prisoners Shawn is right: an empathetic lawyer has empathy for everyone. A compassionate lawyer has compassion for all.

A ruthless lawyer, on the other hand, is . . . ruthless. No empathy for one means no empathy for any; no compassion for the complainant means no compassion for the client. If a compassionate lawyer helps people to try to minimize their suffering, why does the ruthless lawyer help people?

I suspect that if I were accused of a crime I would (all else being equal) not want a lawyer who was defending people to turn a buck (speaking of ruthlessness, see Machiavelli, The Prince Ch. XII on mercenaries), to feel better about himself, or because he saw it as a game (I don’t often cite Connecticut criminal defense lawyer Norm Pattis twice in one post, but see The Sporting Theory of Trial: I). I don’t think I would trust such a person not to turn on me when it suited his financial interests or his ego, or when the game turned.

I would want the lawyer who could best discover and tell the story that would clear my name, and I would want her to be relentless in the pursuit of my freedom. I suspect that this would be a lawyer who cared about me.

Some people equate empathy and compassion with weakness (see Iowa criminal defense lawyer Chuck Kenville’s Do Criminal Defense Attorneys Need a Heart?). They couldn’t be more wrong.

People decide cases not based on intellect but on emotion. The key to emotion is empathy. In advocacy, empathy is power. Everything else is just an imitation.

Asshat Lawyer of the Day

Posted on April 26, 2008
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With a hat tip to alert reader Brendan Kelly, the story (USA Today Blog) of an Indiana Republican congressional candidate, Tony Zirkle, speaking at a birthday party for Adolf Hitler. (For this post only, the Rule Against Calling People Nazis in Comments is suspended.)

Brendan also helpfully directed me to Mr. Zirkle’s politician CV, from which the first image is excerpted (edit: Help! My float is broken!)

200804262142.jpgand his lawyer CV.

200804262141.jpg

When I started reading the politician CV, I wondered how someone could practice “divorce defense”; I figured that must be something that Nazi Republicans specialized in when they were morally opposed to divorce.

Then I noticed that at the Elkhart County Prosecutor’s Office, according to the politician CV, Mr. Zirkle was a “Felony Divorce Prosecutor”. I realized that Zirkle had done a search-and-replace on the lawyer CV, replacing “criminal” with “divorce” for the voters. So when he says that his focus at the law offices of Lee F. Mellinger was 40% criminal in the lawyer CV, and 40% divorce in the politician CV, he’s lying at least once.

zirklemonroeshred.jpg

Clinching the Asshat-Lawyer-of-the-Day award for Mr. Zirkle, here, thanks to Indiana political blog takingdownwords.com, is a picture of Mr. Zirkle shredding (or pretending to shred? — I doubt that little shredder would handle a full magazine at one time) a December 1953 first-issue Playboy (or facsimile thereof? — it’s available in reprint for $43 from Amazon) because “shredding porn will make men have sex with their wives, which will lead to a national economic rebound.”

(What happens if I spend my tax refund check [Hartford Courant)] on porn?)

Too Broken?

Posted on April 26, 2008
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New York criminal defense lawyer Scott Greenfield asks of the criminal justice system, “is it too broken?“

These are a few of the questions he asks:

Are jurors capable of discerning truth from deception, or is this just a vanity of our support for trial by jury?

. . . .

Is there a fundamental flaw in our selection of judges, such that the people who want to sit in judgment are not necessarily the people we want to have as judges?

. . . .

Have laws based on political considerations, such as mandatory minimums, undermined the ability of the system to deliver individualized justice?

. . . .

Has fear of crime and terrorism been so instilled in the American psyche that the public can no longer serve as a check on unfettered governmental power?

. . . .

Have lawyers lost sight of their proper role in society?

Go to Scott’s site to see the rest of Scott’s questions, and to comment.

Wanted: SQL Hacker

Posted on April 25, 2008
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I need an SQL hacker to set up a searchable database on the Harris County Criminal Lawyers Association website. Email me. (Gotta love that gmail spam protection!)

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