The Mind and Criminal Defense

Posted on June 19, 2008
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The Center for American and International Law is presenting its seminar on The Mind and Criminal Defense again July 17-18, 2008. The program is funded by a grant for the Texas Court of Criminal Appeals, so you’ll wind up paying $185 (or less if you regularly represent the indigent accused) for 13.25 hours of CLE and a couple of good lunches at the CAIL’s first-class facility in Plano. I attended last year, and found it eye-opening.

This year I’ll be speaking on Friday about free will. Attendance is limited to criminal defense lawyers and those who directly assist them in criminal defense litigation, so prosecutors will have to wait and read my book when it comes out.

Blind Strikes and Double Strikes

Posted on June 19, 2008
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Anne Reed writes at Deliberations about blind strikes:

In a “blind strike” voir dire, both sides exercise their strikes simultaneously. If you get four strikes, you strike four jurors, without knowing (until it’s over) whether your opponent struck those same jurors too.

All these years I’ve been using blind strikes without even knowing it. In Texas state courts, as well as (as far as I recall) in the federal courts in which I’ve tried cases in Texas and elsewhere, blind-strike jury selection is used. It’s so prevalent where I try cases that I didn’t even realize there was a name for it until Anne brought it to my attention.

Anne notes what she sees as an important difference between blind-strike voir dire and alternating-strike voir dire:

[In a blind-strike jurisdiction, v]ery often, a few jurors end up on both lawyers’ strike lists. Jurors who seem extreme, unpredictable, very opinionated, or just odd can easily seem too risky no matter which side you’re on. With alternating strikes, you can delay some strikes you know you’d make if you had to, because you suspect your opponent might strike that juror before you do. With blind strikes, that kind of strategy is off the table; all you can do is make a list and follow it.

Moreover, if you count the total strikes used in a “blind strike” trial, they don’t match the number of jurors who actually leave the room after voir dire. Four strikes on each side might only really eliminate five or six jurors.

There’s a term in the Texas criminal lawyer’s argot for the phenomenon that Anne Describes: “double strikes.” A double strike is a potential juror appearing on both lawyers’ lists of peremptory strikes.

Double strikes happen, but in my experience they are fairly uncommon, at least in criminal cases in Texas state courts, in which the lawyers get to talk to the potential jurors. In a typical Texas felony jury trial, in which sixty or so prospective jurors are brought in and two experienced trial lawyers get ten peremptory strikes each, there will ordinarily be no double strikes. Sometimes there will be one double strike; there will rarely be more.

When lawyers have had an adequate opportunity to talk to jurors and there is a double strike, someone has made a mistake. Anne writes that “Jurors who seem extreme, unpredictable, very opinionated, or just odd can easily seem too risky no matter which side you’re on,” but part of the game of voir dire is anticipating which of the kooks the other side will strike.

As a general rule, the government is more conservative about allowing kooks on the jury than the defense. (In a bank robbery trial once, Judge Nancy Atlas asked if the defense would agree to excuse a particular potential juror. When I declined, Judge Atlas said, “she’s just got so much baggage,” to which I responded, “yes, but it’s our kind of baggage!”, forcing the government to burn a strike [more argot] on her.)

If, after both sides have talked thoroughly to the potential jurors, there is a double strike, then we know that someone has made a mistake — either stricken a favorable juror or underguessed the other side’s aversion to risk. (A similar misguess can lead to a double non-strike, in which each lawyer overestimates the other side’s risk-aversion and both are left scratching their heads about what to do with the screwball who’s now on the jury.)

Double strikes can also result from incomplete knowledge. Where lawyers don’t know much about the potential jurors as individuals, and have to rely on stereotype and instinct, they are much more likely to make mistakes that result in double strikes. So double strikes are much more common where the lawyers don’t have enough time to talk to the potential jurors (appealable error in a Texas criminal trial, if properly presumed) or where an incompetent lawyer conducts the voir dire — for example, in most federal trials.

Based on Actual Facts

Posted on June 18, 2008
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Suppose that you were a prosecutor prosecuting a first-time DWI case, and that I was defending it.

Suppose further that the accused’s husband, an ex-cop, watched her performing the field sobriety tests at the scene, and would testify that she did fine. That the arresting officer claimed that his in-car video camera wasn’t working. That the shop records for the car didn’t show any video camera repairs till five months later. That the station video officer expressed doubt on the station video about whether the arresting officer’s in-car video was in fact not working. That the accused looked and sounded stone-cold sober on the station video.

Suppose, in other words, that the case was a dog for the State.

Suppose also that, according to the offense report, I had appeared at the scene of the DWI arrest and observed his investigation.

Not having an actual case to prosecute and facing almost certain defeat in trial, you might try to bluff me into taking a plea.

Suppose that that didn’t work. You might want to get me of the case, so that my client might be forced to spend more money to hire another lawyer who might be more bluffable. It’s understandable. But how?

You might have some murky memory from law school (hey, it was last year, and that’s a long time) that I could be disqualified from representing my client because I was a fact witness in the case.

This being a special occasion, and despite being a prosecutor, you would probably do a little legal research. First you’d look at the Texas Disciplinary Rules of Professional Conduct and find Rule 3.08:

A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client . . . .

You wouldn’t find that particularly helpful, since you’ve had no inkling that I am or may be a witness necessary to establish an essential fact on behalf of my client.

So you’d read on in the rule:

A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure.

You’d probably think about subpoenaing me to testify; shame on you. Calling opposing counsel of record as a witness seriously disrupts the counsel’s functioning as an advocate and may create a false impression that the advocate was improperly involved in the underlying issues in the litigation. (That’s In re Baptist Hospitals of Southeast Texas.) You don’t have any reason to think that I could furnish any testimony adverse to my client, and the party seeking disqualification cannot invite the necessary actual prejudice by unnecessarily calling the opposing counsel as a witness. (That’s In re Guerra.)

Besides which, since anything that I learned in the course of my representation of my client (which began before I arrived on the scene) was my work product, you couldn’t compel me to to talk about it, and in fact I couldn’t legally reveal any of it without my client’s consent.

Having failed to find any basis for disqualification in the Disciplinary Rules, you might look at caselaw to see if there’s any help to be found to get me off the case. You would find that DR 3.08 articulates considerations relevant to disqualification (that’s Anderson Producing, Inc. v. Koch Oil Co.). Then you’d run into In re Sanders, which says that the fact that a lawyer serves as both an advocate and a witness does not itself compel disqualification, and In re Chu, which says that you must present evidence that the testimony of the lawyer is necessary and that it goes to an essential element of my client’s case.

What would you have? A big steaming bag of nothing, that’s what. But you might take a shot at it anyway, on the theory that “the judge isn’t going to know what the law is” [actual quote from junior prosecutor in Harris County Criminal Court at Law Number One!]. Supposing that you were right and that I could not explain the law to the judge, and supposing that he disqualified me, what then?

The Court of Appeals is probably going to “know what the law is”, and mandamus lies from an erroneous disqualification of counsel. So that’d be one option.

Or my client could try the case pro se under protest (with my help in preserving the error). On this dog, she’d probably beat you. And if she didn’t, there’s no harm analysis for the violation of an accused’s Sixth Amendment right to counsel of his or her choice (that’s U.S. v. Gonzalez-Lopez).

Either way, my client gets a trial with me as counsel. So let’s just agree now that I’m trying the case, that it’s a dog, and that my client is almost certain to be acquitted.

Is Only Kelly Siegler Man Enough to Tell the Truth?

Posted on June 14, 2008
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Given that Americans’ second most common justification for the death penalty’s fairness is its provision of “satisfaction and closure” to the victim’s loved ones, it’s astounding to me that Kelly Siegler (”Prosecutor-for-Hire”, according to her tagline) admits in a blog post that there’s no such thing as closure (H/T AHCL). A successful death penalty prosecutor concedes that, where closure is concerned, the emperor has no clothes: it’s astounding not because of the novelty of the idea, for it isn’t novel — anyone not steeped in overwrought victimology can intuit that there can be no “closure” for the death of a child — but because it weakens the justification for a penalty of which the prosecutor is unabashedly in favor.

Lindsay Beyerstein writes in Majikthise of calls for closure masking retributivism:

Medicalization sidesteps questions of justice. According to old fashioned retributivism, victims are entitled to see their loved ones avenged. This concept of entitlement is rooted in justice, not benificence. Retributivists say that victims have a right to see offenders punished fairly, not to whatever punishment makes them feel the best. Once we start talking about providing closure for survivors, we ellide the questions of justice. Closure is supposed to be something that survivors need for their mental health. Closure is about what makes someone feel better, not about what is just. By assigning such overwhelming importance to the nebulous idea of closure, we are outsourcing retributivism. We are saying that survivors need to exact retribution in order to heal, perhaps because they regard a particular punishment as the only acceptable outcome. Appeals to closure are an excuse to ignore the question of whether we think what they want is just.

The argument that the death penalty heals survivors — that retribution is indicated (in a medical sense) to provide closure — has no more legs. With “closure” removed from the death penalty equation, what’s left? The usual suspects: deterrence (general and specific); incapacitation; and, of course, good ol’ naked retribution, retribution for its own sake, an eye for an eye.

A Cross-Examination Photo

Posted on June 13, 2008
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Crocodile_Fishing.jpg

Sometimes the best you can hope for is for the rope to break.

Ollie the Cabdrivertising Criminal Attorney

Posted on June 3, 2008
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There’s a criminal attorney in Houston (I’ll call him “Ollie”) who is a really busy guy. Ollie reportedly has a cab driver who waits outside the jail in the wee hours of the morning when people are released on bond and refers them to Ollie for representation. Ollie charges a nominal fee ($500 or so to start); he will even fill out the clients’ retainer checks for them.

How do I know this? Because in the last couple of weeks I’ve been retained by no fewer than three of Ollie’s clients. I’m sure there will be many more; I’ve thought about carrying a throwdown “motion to substitute counsel in place of Ollie” in my briefcase so that I can just fill in a couple of blanks to replace Ollie on a case.

Is there something wrong with a cab driver referring clients to a lawyer, or a lawyer using a cab driver to do so? I refer you to Section 38.12 of the Texas Penal Code for the Texas law on the subject, and to Underdog Blog’s Jon Katz for an opinion on the constitutionality of that law. But legal or not, cabdrivertising is ugly.

The lawyer who has a cabdriver outside the jail “bird-dogging” clients (as one of the clients put it) is catching people at their most vulnerable: shaken-up and often disoriented from the experience of having been tossed in jail, processed, and released on bond. Often they are still under the influence of whatever drug landed them in jail in the first place. Even if it weren’t illegal, personal solicitation of clients in this condition is abhorrent.

Ollie isn’t the only lawyer preying on the vulnerability of the accused. Lots of attorneys don’t scruple to make potential clients think that hiring a lawyer is more urgent than it really is.

Consider DWI attorneys who tell potential clients that they must hire counsel within 15 days to request an administrative license revocation (ALR) hearing, when in fact the instructions for requesting a live hearing are right there on the DIC-25 form that DWI arrestees generally receive, and are simple enough that anyone who can read and write English and operate a fax machine can request his own ALR hearing.

A conscientious lawyer would advise a potential DWI client that much of the urgency of hiring a lawyer could be alleviated by the client requesting a live ALR hearing, because people make better decisions when they’re not under the strain of having to make a decision right now.

It’s not only DWI lawyers who put the screws to the accused, though. In Harris County’s criminal courts, nothing bad is going to happen to an accused who turns up for his first court appearance without a lawyer — the court is going to give him a new court date, marking the reset form “THA” for “To Hire Attorney”. Yet more than once I’ve had to soothe a potential client’s panic because some other Houston criminal attorney has painted a vivid picture of dire consequences for not hiring that lawyer right away.

The truth is that, once you’ve gotten yourself bailed out of jail, there’s no reason for there to be any more emergencies in your criminal case in Harris County unless you create emergencies for yourself. Get to court on time, quit using drugs, and don’t break the law. That’ll most likely keep you out of jail. Start gathering your money together for legal fees, and take your time finding the right lawyer for your case. Better to wait and hire the right lawyer than to hire the wrong lawyer first.

I think Ollie’s clients would tend to agree.

Top 100, Depending Where You’re Counting From

Posted on June 3, 2008
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Two of my favorite blogs, Law of Criminal Defense and Court-O-Rama, have posted that they’re listed in the “The Top 100 Criminal Justice Blogs” by “Criminal Justice Degrees Guide.”

I’m not going to link to the list because, while I think Law of Criminal Defense and Court-O-Rama are fairly in the top 100, there’s something highly suspect about a list of top criminal justice blogs that includes Defending People but neither Simple Justice nor Life at the Harris County Criminal Justice Center. There’s more to this list than meets the eye.

Racehorse Haynes in Trial

Posted on June 2, 2008
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Richard “Racehorse” Haynes is, as we say in Texas, one tough sumbitch. He tried 11 jury trials last year (did you? I sure didn’t), and he’s in trial again now — at age 82.

A reader writes:

I thought that your readers might like to know that opening statements start tomorrow at 9 am in United States v. Nguyen. Mr. Nguyen is accused of being part of a multi state drug and money laundering conspiracy. He is represented by Racehorse Haynes. The government is represented by Joe Magliola. Take care and keep posting.

The trial is in U.S. District Judge Melinda Harmon’s court in Houston. Richard’s client is the last man standing; expect lots of cross-examination of snitches. Richard doesn’t rush a cross-examination, so this could take a while.

A Common Fact Pattern

Posted on June 2, 2008
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I’ve represented several young men with these three characteristics:

The client is usually between 21 and 30 years old. I’ve been told that bipolar disorder appears in males when they are in their 20s. Often the client had an earlier diagnosis of attention-deficit disorder.

It’s typically the young man’s mother who calls when he is in trouble, and I guess correctly, based on the tone of mom’s voice when she describes her grown son’s criminal problem, that I’ll be dealing with a person with this complex of traits.

I’ve helped these men out of all sorts of nonviolent trouble, but drug cases are most common. Is it because they’re self-medicating the bipolar disorder? One of this group of clients told me once that marijuana worked much better to keep him on an even keel than anything that Big Pharma had cooked up.

No answers here; just a dispatch from the front.

I Leave the Punchline Writing to You

Posted on May 30, 2008
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The Chronicle’s Allan Turner sure knows how to write a straight line:

Alarmed by a 4-foot rat snake found in a janitor’s closet, wildlife experts Thursday searched the Harris County Criminal Justice Center’s fourth floor for signs that more reptiles had infested the headquarters of the district attorney’s office.

« go back — keep looking »