criminal practice

We lawyers love to hear ourselves talk. That can be the death of a jury selection. In a good voir dire, the jurors do most of the talking. Even if I can't hear what the lawyer and jurors are saying, I can tell a good voir dire from a bad one by listening, as long as I can tell who is talking. Lawyer talking most of the time? Bad. Jurors talking most of the time? Good.

They are once again on their way. They are walking through the
forest. Shrek belches.

DONKEY
Shrek!

SHREK
What? It's a compliment. Better out
than in, I always say. (laughs)

DONKEY

My Paladin Didn't Charge Split Fees post stirred up some interesting discussion between criminal defense lawyers and others in the comments.

Mississippi criminal defense lawyer Remy Orozco, who wrote the post that inspired mine, commented:

This last year in private practice has brought me very few cases where my clients actually wanted to go to trial . . . . I one day hope to get my practice to the point where everyone that comes to me is willing to go to trial.

Everyone thinks that his way is the best. In his “How to Hire a Gun Slinger…” blog post (a staple of criminal law blawgs: the post suggesting to potential clients criteria they should look for in hiring a lawyer, and explaining how the blogger fits those criteria; I may have written that post a time or two myself), Mississippi criminal defense lawyer Remy Orozco (Hostis Civitas) writes:

By all rights, I should be in trial today. My client was arrested in his brother-in-law's house, which contained 12 kilos of cocaine in the attic, a pound of marijuana, and two guns. Mere presence is not a crime, but the Government claimed that he had made harmful admissions to agents.

He maintained his innocence. I thought the client had a better-than-even chance of acquittal and a chance of a 10-plus year sentence.

The government offered him a plea to misprision of a felony -- a federal felony with a three-year maximum.

Baby criminal defense lawyer Murray Newman writes:

The thing I loved the most about being a prosecutor was helping victims of crime. There was a profound feeling of doing something important when meeting with the victim's family on a murder case, or the surviving members of an aggravated sexual assault, robbery, or assault and telling them you would do everything in your power on their cases.

I think prosecutors, current- and ex-, often romanticize the job. They tend to remember the capital murder and the robbery while forgetting the hundred crack pipes and five hundred DWIs that came before those (confirmation bias?). Yet there are clearly some cases in which the government, by getting and punishing the right guy, makes someone else's life better. For example, in an aggravated sexual assault case the victim might rationally feel safer with her assailant behind bars; in a theft case the victim might receive restitution if the thief is on probation.

This topic comes to my mind because

In response to this post, in which I talked about Williamson County, Texas's criminal discovery policy, WilCo DA John Bradley emailed me:

In Williamson County, a defense lawyer receives full and complete discovery, including access to offense reports, before any trial. Mr. Hampton's commentary is not accurate. Our discovery is more limited if there is a negotiated agreement, but even then discovery of critical information is provided. jb

It's good to have more accurate information, but this raises as many questions as it answers.

Continuing my discussion with "Interested Counsel" about the U.S. criminal justice system. He asks:

I asked regular reader Interested Counsel, a British criminal-law barrister, for a list of points that he found interesting or was curious about regarding the U.S. criminal justice system. He obliged me, prefacing his email:

It is clear here that the Ministry of Justice is enamoured of all things American. It is easy for us at the Bar to put this down to their desire to commodify justice.

Keith Hampton's editorial in today's Austin American-Statesman contrasts Travis County District Attorney Rosemary Lehmberg's new policy of providing defense lawyers with copies of offense reports with Williamson County District Attorney John Bradley's policy of not allowing defense lawyers to see offense reports: