Proposition of the Week

I’ve bet HCCLA past-president Pat McCann lunch that the DJIA will close below 6000 before it closes above 9,000 (all in 2007 dollars) again.

Anyone else want a piece of that action?

Who Are These People?

Thanks to a reader, I downloaded the Houston Bar Association’s 2008 Judicial Preference Poll, an incumbent lovefest. I’m guessing that among the 1300 attorneys who rated the criminal district court judges, half have never set foot in the criminal courthouse, except possibly as defendants because of a serious crack problem.

How is it that more people think that Brian Rains should keep his bench than that Roger Bridgwater should?

Ruben Guerrero over Bill Moore by 120 votes?

527 people who would like to retire Caprice Cosper?

How many rocks do you have to turn over to find 756 lawyers who think that Brian Rains should be judge for another four years?

The Houston Bar Association is a joke, and (at least as far as criminal benches are concerned; unlike the poll respondents I’m not going to opine on races that I know nothing about) its poll is a farce.

The Best Criminal Defense Lawyer in Houston

There’s sometimes talk about who the best criminal defense lawyer in Houston is, as though we are show dogs or golfers.

The truth, of course, is that there is no “best” overall. The lawyer who is best for one case might not be best for another; nobody can say that the thousand-dollar lawyer who gets a case dismissed was not the best lawyer for that case, nor that the six-figure lawyer whose client gets maxed out was the best lawyer for that case.

There are a few lawyers in Houston who would make most “best” lists. Some of them belong there; a few don’t (but appear to because, in the 21st century, exposure is equated with competence) There are more who the criminal bar (both sides) know belong on the list who keep their heads down and never get named publicly. Lawyers in the know wouldn’t have much trouble finding enough great Houston criminal defense lawyers to fill out the Top 25; we would not be able to agree on which one is better than what one or what one is better than who. In 1994 the Chronicle polled judges and prosecutors on who they would choose to represent them, and published the results. (This was before I started practicing.) Judges and prosecutors voted for six defense lawyers each. The top choice, Dick DeGuerin (who I suspect is one of those on the 1994 list who would still do very well in such a poll) was named by only 28 of the 69 respondents. So not even a majority of the judges and prosecutors put the top votegetter in their top six.

Even though we’re unlikely to agree on how to fill the top six slots, when the press does a legit story (that is, not paid advertising) on “the best”, the criminal defense bar pays attention. We like to see how the outside world sees our community, and congratulate (or razz) those among us who getting the good pub.

When the free weekly Houston Press tabloid newsletter published its annual “Best Of” issue this month, and named the best criminal defense attorney in Houston, it wasn’t one of my high-dollar brethren or sistren. It was Danalyn Recer of the Gulf Regional Advocacy Center (GRACe).

Danalyn came to the Houston Press’s attention for (along with David Lane of Denver) saving the life of Juan Quintero (and in the process driving Houston’s booboisie of so-called conservatives batshit insane with rage). Danalyn is in the business of keeping the government from executing people — in the most execution-happy county in the United States. She’s representing people who don’t have the money to hire competent counsel. She’s doing it for next to nothing — no six-figure biglaw salaries here. And she’s very, very good at it — I’m pretty sure she’s never had a client sentenced to death at trial.

It’s hard for an outsider to know that a lawyer who makes a good living defending people is doing it for reasons other than money. Not so with Danalyn. It’s understandable that those who would trust the government to decide who lives and who dies are outraged by the fact that she’s able to do what she does, and perplexed by the fact that she’s not doing it for lucre. So in my view there’s nobody better to represent the Houston criminal defense bar — not only what we are, but also what we should be and aspire to be — in the public view.

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.

Six Things; or, Does the Market Have Buddha-Nature?

• Houston DWI lawyer Paul B. Kennedy (The Defense Rests) notes the similarities between coaching 6-and-under soccer and communicating with a jury. (I like seeing other lawyers looking for clues to better lawyering in other areas . . . other, that is, than The Art of War.)

• Maryland criminal defense lawyer Jon Katz (Underdog Blog; note the new URL) talks about the power of mu. Mu: it’s not nothing.

• Anonymous prosecutor Western Justice negotiates directly with defendants, and faces infection for it. GPTW.

On the financial front:

• Brownsville trial lawyer Ed Stapleton (Aim Low and You’ll Never Be Disappointed) tries to make up his own mind on the $850-billion bailout (on Sunday, before Monday’s market drop) and doesn’t find much other than mistrust of Republican and Democratic party leaders to base his decision on. Someone didn’t get the “maverick” memo.

• Wise County, Texas criminal defense lawyer Barry Green (Liberally Lean from the Land of Dairy Queen) notes, “Lots of headlines around saying that ‘Investors Should Not Panic.’ I’m
not sure I’ve ever seen a headline that urged the opposite.” Well, sure. The publisher would never allow it.

• Author Jim Kunstler (Clusterfuck Nation) might say that “Investors Should Panic” would be the more truthful headline.

Jefferson on the Wisdom of the People

As one of America’s foremost scholars of Imaginary History, I am compelled to correct the record on Sarah Palin’s slightly erroneous fictional Jefferson misquote (Americablog). What Imaginary History tells us Jefferson in fact said is, “One cannot underestimate the wisdom of the people.“

Fantastohistorical academia is riven over the issue of whether this was intended by Mr. Jefferson as an observation or an admonishment.

Unexpected Happy Endings

The terrain in last week’s DUI jury trial shifted unexpectedly yesterday afternoon. Two of the State’s witnesses decided that they had better things to do after lunch on a Friday than return to court.

One of the witnesses, the arresting officer who was on the stand when we
broke at eight o’clock Thursday evening, had (I learned afterwards) been reluctant to come to court and had cussed out both of the trial prosecutors for compelling her to come testify. So the State was a little less surprised than I was when she failed to post Friday afternoon.

The State appropriately dismissed the DUI. After we quickly considered how to gain the most leverage from this happy turn of events, my client pled guilty to the failure-to-stop-and-give-information charge (to which he had confessed multiple times) and took deferred adjudication probation, which was the arrangement that he and I had sought from the beginning.

So a win, but one that I can’t take credit for. The decision to take the cases to trial led to the win; everything else was just dumb luck on our side. That one good decision made by the defense was not even mine — whether to go to trial is the client’s decision; my client made it, and I backed him up.

But it’s all okay — I’d much rather be the luckiest guy in the room than the smartest.

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.

A DUI Trial on Unmapped Uneven Terrain.

The terrain of a trial comprises the factors that the trial lawyers don’t create — for example, the spirit of the times, the state of the law, the unchangeable facts and, to a great extent, the conduct of the judge.

The lawyers know what the spirit of the times, the state of the law, and the unchangeable facts are before trial begins. But with an unpredictable judge it is possible for the terrain to be very different than the lawyers expect. The judge’s handling of the case can make the difference between holding the tactical high ground and being in the valley under the adversary’s guns.

Sometimes it’s an uphill struggle, sometimes it’s a downhilll fight (or so I’ve been told). Right now I’m in a DUI (in Texas we call it DWI, but everyone else in the world seems to call it DUI) and failure to stop and give information (FSGI) jury trial on uncharted undulating ground. In the fog. The judge started out by interrupting my brief voir dire several times unnecessarily. Since jury selection is the most important part of trial, next time I’ll ask him beforehand not to do that. Since getting the jury picked, the judge has made some unexpected rulings for us and some for the government.

It’s an interesting experience; it sure beats the usual uphill slog the defense faces in jury trials in the Harris County courthouse.