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Recent Blog Posts
Criminal Defense Trial Lawyering = Chess
Apropos of today's earlier post about collaboration (and, ultimately, strategy) in federal drug cases:
Tactics is knowing what to do when there is something to do. Strategy is knowing what to do when there is nothing to do.
-Savielly Tartakover, chess grandmaster
That, and many other criminal defense chess quotes here.
Shows Promise
Texas criminal-defense lawyers of old could talk to their jury panels about the Bible, and safely assume that they were talking about a common cultural framework. Modern culture is electronic, and much more ephemeral. It's harder for a lawyer to find a cultural hook that catches most of the jury panel.
Once upon a time there was Murder One, but realistic TV dramas with innocent defendants have been thin on the ground lately. The problem with the government getting it right all the time on TV (well, one of the problems) is that the people who watch TV get conditioned to assume that the government gets it right all the time in real life. (I once asked a jury panel what their favorite lawyer TV show was, and weeded out the Law & Order watchers while keeping the Boston Legal fans.)
Here's the trailer for CBS's upcoming courtroom drama, The Defenders. As the name suggests, it's written from the perspective of the defense, unlike yet another vile Dick Wolf franchise (I'm a little disappointed that I'm not #1 on a search for vile Dick Wolf franchise unless you put it in quotes).
Team Sport
"Not a team sport."
That's how the federal prosecutor described federal drug defense practice after a hearing in which two colleagues and I had shown a certain unity of purpose on behalf of our clients.
Divide and separate is the name of the game for federal prosecutors (that and, I can bribe witnesses but you can't). It's much easier to convict four people when they can be cut out from the herd one at a time. It is often true that "if nobody talks, everybody walks," but the corollary is that one talker takes everyone else down.
So this prosecutor was trying to convince us to get our clients in to debrief. As a prod, he described the evidence against our clients and told us that the fourth defendant, Mr. Jones, was already scheduled to come in and debrief. "I hate to see the top guy get the benefit of cooperating at the expense of the little guys," he said. A fine humanitarian.
When I went to review discovery at the U.S. Attorney's office, this prosecutor had left a yellow sticky conspicuously placed on the inside cover of one binder: "Jones debrief Tuesday 12:30 p.m." If he was trying to convince me that Mr. Jones had decided to cooperate, he was trying too hard. And as a bonus, his assertions about the state of the evidence turned out to be untrue.
A Class Act
"When you get to the end zone, act like you've been there before." - Darrell K. Royal
Too few lawyers heed Royal's admonition. Every dismissal becomes an excuse for a victory dance. They post to their blogs, tweet on twitter, have their buddies laud them on the listserves. Does it help get them business? Maybe so. But to their peers, it looks like they've never been there before.
There are wins worth bragging about. Hell, most wins are worth bragging about. The odds against us are steep, and when we get the neck of the accused out from under the boot of the state, that's a great thing. People should know about it, right? Sure, but at issue isn't the value of the win, but the character of the winner.
Acting like you've been there before shows style and grace.
There's this guy, Jeff Gamso. Jeff is a criminal-defense lawyer in Ohio, a former English professor. He's got this blog, Gamso-For The Defense. He writes well and passionately about criminal justice matters and the death penalty.
Democracy Wins
I am pleased to report that, in a process more resembling democracy than the usual oligarchy, Houston DWI lawyer Gary Trichter has been elected president-elect of the Texas Criminal Defense Lawyers Association.
Means and Ends
New second-career criminal-defense lawyer desperately in need of a mentor Joe Attorney writes:
[Reptile] is not a technique I could comfortably embrace. It suggests we should manipulate the more primitive emotions and parts of the brain to gain the desired result. To me it suggests that lawyers should worry more about ends than the means.
Joe is inspired by Stephanie West Allen, Jeffrey Schwartz, and Diane Wyzga's article in the American Society of Trial Consultants magazine, The Jury Expert. Allen et al. express the same qualm:
But My Way is Really Best
For some reason, it happens in May: criminal-defense lawyers' fancies turn to... getting paid.
This time 'round, Norm Pattis started it with Flat Fees, Black Holes, and the Value of Chaos:
There are cross-cutting incentives in a flat-fee case. The client has paid for a lawyer and wants her expectations, no matter how unreasonable or unnecessary from the perspective of the experienced lawyer's judgment, met. The lawyer, on the other hand, has an incentive in effectively presenting the case in as efficient and cost-effective manner as possible. Both client and lawyer can err given these conflicting imperatives. A client can demand too much; a lawyer can do too little. Discontent lurks at the periphery of every flat fee case once a black hole opens up, sucking time out of the world as if there were an infinite amount of it to be had.A far better course is to charge an hourly rate. Negotiate a rate that reflects the complexity of the case, your experience and what the market bears in your area. In that case, a client is forced to consider the benefit of each additional increment of cost. A demand to interview folks not actually present at the scene of the crime becomes a demand the client must reckon as necessary. A lawyer, paid hourly, can counsel against a fool's errand. But if the client insists, the lawyer can then choose either to accept the hourly fee or ask the court to be relieved from a case if the client's demands become repugnant or irrational.
Fine News
It's hard to find Beaumont senior district court judge Larry Gist's party affiliation. He gave $250 to Republican Ted Poe's reelection campaign in 2009; he has a jail named after him; he jokingly refers to his progressive son as "my son the communist." I would guess "Republican," but he may be some species of East Texas Democrat.
I mention this because the Houston Chronicle's UGOI have already started trying to brand Judge Gist "a Liberal/Progressive/Activist Democrat judge and a documented opponent of the death penalty." Why? Because Judge Gist denied the State's motion to recuse Judge Kevin Fine from the John Edward Green Case. (Brian Rogers, Houston Chronicle.)
At Least I'm Enjoying the Ride
Five things that make me want to cover my ears and shout "la-la-la-I'm-not-listening" over and over instead of blogging:
What Texas wants to teach my kids-and yours (New York Times).
Eric Holder hinting that the administration might support expanding the Quarles "public safety" exception to Miranda (WSJ).
Arizona's new immigration law (New York Times).
Great public support for Arizona's new immigration law (Miami criminal-defense lawyer Brian Tannebaum).
Harris County District Attorney Pat Lykos catching flak because grand juries are no-billing more cases (2.166% of cases filed in 2009, compared to 1.505% of cases filed in 2008) (KHOU-TV).
More on Submission in Federal Criminal Court
From a civilian's comment on this post about "John R.," the anonymous Rochester, New York personal injury lawyer who dabbles in criminal defense and scoffs at the Bill of Rights:
I understand John R.'s position as it relates to United States of America jurisprudence. The legal system is heavily stacked in favor of the government especially when it deals with those citizens that have less than adequate means to support a good defense.... The court system is abrasive, callous and unsympathetic to those persons that find themselves caught in its web.
O, if only a person caught in the web of the criminal justice system could have someone on his side-someone who would stand ready to dedicate her wisdom, her intelligence, and her energy to trying to protect the accused from the system-a counterweight against the power of Government! This person's job would not be to protect her own ego by "winning," but only to defend with zeal the person accused of a crime, regardless of the outcome. Doing so might require her to acknowledge that it was at least possible to win; a defeatist attitude would be a self-fulfilling prophecy.
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