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Recent Blog Posts
Why Prosecution? Be Realistic.
Law student Laura McWilliams, blogging at Really? Law? (go ahead and add it to your feedreader now-done?-great), writes here and here about the thought process that has her leaning toward an eventual job prosecuting people. From the first post:
In an idealist vision, (let's just go with it; there's nothing wrong with a little idealism) the prosecution and the defense are both working for the same thing. Both sides want the proper person to be properly held accountable. Neither side wants a wrong conviction. No one wants an innocent to be hurt; nor does anyone want a guilty individual to commit a future crime. We all live in this society, and in this society we use criminal justice to protect our collective morals and safety. Some of us love the law. Some of us don't. None of us believes that it's perfect, but it's the system we have and we need to understand it and do what we can to make it work as well as possible.
Trick Questions
It doesn't matter who asks them-defense lawyers, prosecutors, cops-or whom they are asked-witnesses, the jurors themselves, defendants-jurors don't like trick questions. Getting caught asking a trick question lessens the questioner's credibility.
Here's a trick question that cops sometimes ask people suspected of DWI: "On a scale of zero to ten, how intoxicated would you say you are?" They think they're being clever-anyone who says anything other than zero has admitted intoxication-but jurors don't like the question, and unless the answer is a big number they're unimpressed.
Defense lawyers sometimes, in desperation, ask witnesses trick questions. Because if-as occasionally happens-there is no way the facts support any truth that helps the accused, we have to do something to stir up doubt. (I don't think I'm giving away any trade secrets here.) Jurors don't like trick questions, and when they catch you asking one (which they usually do) they're unimpressed.
Mark's Typical Trial Schedule
(In lieu of the more complete trial journal that I should have been keeping for the last eight weekdays.)
0530: Get up. Prepare for trial.
0620: Breakfast, shower, shave, get dressed, etc.
0725: Leave for courthouse.
0800: Arrive in courtroom. Meditate.
0830: Trial begins.
0930: 1-hour break for court to handle court business. Small snack-half an energy bar and some water.
1030 Trial resumes.
1130 2-hour break for lunch. Lunch at a nearby restaurant (El Rey, Cava Bistro), or an energy bar and some water, depending on how intense the postprandial trial proceedings look.
1330 Trial resumes.
1530 Short break. Small snack.
1700 Trial ends for the day. Go home.
1730 Dinner, family time, read to kids, return business phone calls and emails.
2000 Prepare for tomorrow's trial.
2230 Go to bed.
0230 Wake up spontaneously. Prepare for trial.
0330 Return to bed.
Repeat from beginning.
Small Step Toward Scientific Jury Selection
Some numbers, perhaps of interest to nobody but me:Panel average-0.15Struck for cause average0Struck by defense average-0.02Jurors sworn average-0.20Struck by State average-0.69
Numbers are a measure of authoritarianism/egalitarianism based on scaled answers to eight questions, chosen unscientifically-according to how interesting they were to me. Lower numbers are more egalitarian, high numbers more authoritarian. The maximum and minimum possible scores were 5 and -5 1 and -1.
It is interesting that those struck for cause (lots of people couldn't consider probation) and by the defense scored higher than the panel, and those struck by the State but not the defense (we had several double strikes) scored much lower than the panel.
The method needs refinement, but I think I might be on to something here.
(I didn't spend my entire jury selection with this survey; it took about half my time. The other half I spent talking with the jurors.)
Warning: This is Not the Happysphere
If you are a blogging lawyer, and you want to be read by other bloggers, know that being read by other bloggers includes being taken to task publicly when you write something dumb or silly or ill-considered or even just vapid.
If you don't want to be read by other bloggers, if you are blogging for profit or to build up your practice, please let me know now.
More Great UTMB Ideas
I've been thinking more about University of Texas Medical Branch's practice of renting out mentally ill prison inmates for cops to practice their phlebotomy against, and it seems to me that UTMB, TDCJ's medical services provider, is missing out on several other great opportunities to make money on the backs of "consenting" (consent is easy to obtain in prison-just offer a little extra privilege, something to make the time pass, to those who do what you want, and withhold a little privilege from those who don't) inmates:
Kidney farm. And retina farm. And plasma farm. And bone marrow farm. (The last two are renewable resources, which the "offenders" will hardly miss.)
Baby farm. (There are more than 10,000 women in Texas prisons, most of them in their prime baby-bearing years. People needing surrogates might pay extra to have their babies carried to term in a controlled secure environment from which the birth mother would have a great deal of trouble claiming any sort of parental rights.)
Actually, There Are Stupid Questions
I admit it: I was wrong.
For a decade I've been encouraging young lawyers and soon-to-be lawyers to start their criminal defense practices right out of law school. With hard work, intelligence, and humility, I thought, they could do well without hurting anyone; the question, I thought, was not whether they would provide perfect representation, but whether they would provide better representation than the other people who their clients might use instead.
I wanted to believe, because society is better served by having those who are dedicated to freedom serving that cause (rather than the State) from the start of their practices, and because here in Harris County the only way for a lawyer to serve freedom from the start of her practice is to start her own practice.
Forget all that. You can't do it. Those few who have managed to build practices from scratch right out of law school are aberrations. Take my word for it: you don't have what it takes. Not on your own.
They'd Have to Be Crazy
"UTMB's Correctional Managed Care program has an agreement with Lone Star College involving its Law Enforcement Phlebotomy Program. The participating Houston police officers at the units were there as part of the Lone Star College course they were taking. Having blood drawn is part of the standard intake process at TDCJ and mentally ill offenders were given the option of having a police officer or a staff phlebotomist perform the procedure. All of the mentally ill offenders involved chose to allow the police officers to do the procedure."
That's the University of Texas Medical Branch's statement (via Stephen Dean, Channel 2 News) rationalizing the use of mentally-ill prison inmates as guinea pigs for police officers learning to draw blood from people suspected of DWI.
Well, it's almost UTMB's statement rationalizing the practice; the medical school didn't in fact acknowledge that the inmates who "chose" to allow the cops (rather than professional phlebotomists) to draw their blood were all psychiatric patients.
Trawling For Terrorists
I suspect that there are tens of thousands in the U.S.: disaffected young men and women who like to see themselves as willing to kill for their beliefs, whatever those beliefs.
Most of them don't hold beliefs including violent jihad. They believe, instead, that abortion is murder, or that Barack Obama is a Muslim, or that America is controlled by a secret cabal or a thousand other things with varying levels of nuttiness.
The discontented always have been ripe for the provoking. All they need is a rabble-rouser to convince them that violent action is called for, and an opportunity to prove themselves. Where the discontented are Muslims, the federal government is more than happy to feed them as much rope as they can take. As here (Dane Schiller, Houston Chronicle):
[The search warrant affidavit] doesn't note why authorities noticed [Barry Bujol], but it says investigators relied heavily on surveillance, interviews and recordings of meetings between Bujol and the informant, who has worked with the FBI for six years.In late 2009, the FBI brought the informant into the investigation. Bujol went by the Arabic moniker of "Abu Abudah." The informant, who is not named, passed himself off as an al-Qaida agent. According to court records, he convinced Bujol that he recruited holy warriors known as Mujahedeen.Bujol is accused of having said he wanted to be "a means of victory" and get credit in the afterlife for his role in the war. Bujol was told that as part of a test to join the team he would need to show he could operate covertly and run through a series of drop sites, secret locations where messages could be exchanged.At one site in a park, Bujol supposedly reached into a hollowed rock to find two fake transportation worker identification cards issued by the U.S. government.Bujol made a recording he intended to leave for his wife if he made it overseas. He never did; he was arrested trying to board a freighter.
... and, Erica, You're No Larry Joe
Today's Houston Chronicle has an interview with Erica Rose, a Houston socialite who is going to law school (she's a 3L at my alma mater, University of Houston) to advance her career in reality TV. (I'll link to it when a link is available.)
The last line of the article:
Q: What's next for you?A: After graduating from law school, I plan to pursue a career in entertainment law. I'd love to have my own show like Judge Judy.
reminded me of Julie Brown's "'Cause I'm a Blonde" (it may be painful, but wait for the payoff at 2:03). Please tell me that Ms. Rose doesn't think "entertainment law" means "law for entertainment purposes."
It's unfortunate that, now that Chuck Rosenthal is gone, socialites in law school can't count on getting jobs at the Harris County DA's Office that would lead to jobs as real judges.
The funny part? Ms. Rose's aspirations are more realistic than probably 90% of her classmates'.
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