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If You Lose the Will to Win, You Will Lose.
Here's why I don't allow anonymous comments here:
In my opinion there's only one way to reliably win for a criminal defendant at trial: you have some evidence that is devastating to the prosecution's case, you disguise it so that neither the judge nor the prosecutor knows what its significance is, you get it into evidence on some other ground, and you don't say another word about it until you close.
That's part of a lengthy comment "John R." left on Simple Justice. Now, I don't know who John R. is. He could be a fresh-faced law-school graduate, a grizzled veteran of federal court, a Supreme Court Justice, or not a lawyer at all. But whoever John R. is, he knows less about criminal-defense trial dynamics than I
There is no "way to reliably win for a criminal defendant at trial." Even in the rare case when the defense has "some evidence that is devastating to the prosecution's case," defense counsel must fight a multi-front war, not only making sure that the devastating evidence is admitted and given due weight by the jury, but also keeping the weight of the Government's other evidence from crushing the devastating evidence to powder.
Know What? Never Mind.
Why have I been repeating for three years (okay, for a lot longer than that) that lawyers should not waive detention hearings without good reason and that good reason means "because having a detention hearing will prejudice the accused"? Because better representation in a federal criminal case begins with a detention hearing, and for some quixotic reason I want to improve the quality of representation that people charged with federal crimes get.Forget all that. I'm done. From now on, waive all detention hearings when your client has "virtually no chance to be released." Cave in to the magistrate judges' pressure to get your client to waive his rights. And why stop at the detention hearing or in mag court? There are Constitutional rights to be surrendered, and legal arguments to be relinquished. You might as well give those up-everybody gets convicted anyway. I'll never refer a case to you, so you can waive everything for all I care.
Unwaveringly Unwaiving
Some years ago I got a call from a bureaucrat with the federal courts here in town: would I like to help handle the illegal reentry docket?
By "handle the illegal reentry docket," I thought she meant, "defend people charged with illegal reentry"-I'm one of the few federal criminal-defense lawyers in Houston who speak Spanish well, so it made some sense for the court to ask me to represent some of the (mostly-Spanish-speaking) defendants charged with returning after deportation.
But as the conversation developed, it turned out that by "handle the illegal reentry docket" the government functionary didn't mean "defend people." At the time Magistrate Judge Nancy Johnson was the judge responsible for that docket; also at the time Judge Johnson's husband Tim was the acting United States Attorney. So, explained the bureaucrat, the first thing I would do in "handling" each case would be to waive any objection to Magistrate Johnson, who had a presumptive conflict of interest, handling the magistrate-judging in the case. That's about where she lost me.
Desert-Island Book
Old-time West Texas judges used to travel the circuit with a single law book (and they were still better-read than most modern Texas judges...).
If you had to preserve a single criminal-law volume so that the American criminal justice system would survive, what would you choose?
If civilization were crumbling around our ears (if? who am I kidding?), I had to bug out to terra incognita, and I could take only one book to help ensure the survival of the rule of law, my desert-island pick would be the Georgetown Review of Criminal Procedure. I always have a copy on my bookshelf, and it's the first place I look when I face an unfamiliar question of criminal procedure. Its analysis is not deep, but it is broad, fitting a huge amount of criminal-law knowledge into a small space.
Substance is nothing, procedure is everything. If all legal knowledge went up in flames, humanity would come up with a new penal code in a trice, but without a tome like the Georgetown Review, the principles and rules of criminal procedure would take centuries to reconstruct.
One Thing I Learned Today
In 2007, when Pennsylvania decided to prosecute William Barnes 40 years after the fact for the murder of William Barclay, after Barnes had already served a prison sentence for the attempted murder of Barclay, I asked (Gideon reminds me now), "How does a conviction for attempted murder not jeopardy-bar a prosecution for murder when the victim dies?"
[Update: Mr. Barnes went to trial, and on May 24, 2010 was acquitted of murder.]
I didn't worry about looking up the answer back then-this is not the sort of issue that is likely to recur often. But since the question has now popped up twice, I feel compelled to find the answer.
Thus spake The Court:
Because two offenses are "the same" for double jeopardy purposes unless each requires proof of an additional fact that the other does not, post at 432 U. S. 168, it follows that the sequence of the two trials for the greater and the lesser offense is immaterial, [Footnote 17] and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding. [Footnote 18] Cf. Waller v. Florida, 397 U.S. at 397 U. S. 390. Contrary to the suggestion of the Court of Appeals, Iannelli created no exception to these general jeopardy principles for complex statutory crimes. [Footnote 19]The rule established in Brown, however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. See Brown v. Ohio, post at 432 U. S. 169 n. 7; Blackledge v. Perry, 417 U. S. 21, 417 U. S. 229, and n. 7 (1974); Diaz v. United States, 223 U. S. 442 (1912). See also Ashe v. Swenson, 397 U. S. 436,397 U. S. 453 n. 7 (1970) (BRENNAN, J., concurring). This exception may also apply when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. Ibid.
Back to Federal Court
I believe strongly that federal criminal trials can be won-the Government, while powerful, is not omnipotent. Because of this belief, I have tried more federal criminal cases than state misdemeanor cases; my first jury trial ever was a bank robbery case in Lee Rosenthal's court. Some years ago, I aspired for a brief time to a practice defending federal criminal cases only. I saw myself taking five or six juicy federal cases a year, traveling from Houston to wherever I was needed most.
By then, though, federal criminal law had evolved so that the game wasn't a whole lot of fun.
The federal criminal defense bar was (and is) crowded with lawyers who think that "everybody gets convicted anyway." They tout their edge in getting their clients shorter sentences by cooperating with the government. Once a client starts cooperating with the Government, whether he gains an advantage depends on him and on the Government. While a lawyer can help a little by making the proper connections (making sure the information about New York gets to the agents from New York) and encouraging the government to act on the client's information, the greatest advantage-and these lawyers' strategy-lies in winning the race to the debriefing table. All else being equal, the guy who cooperates first gets a better deal than those who cooperate later. Some even take this rule so seriously that when the FBI comes calling, even before charges are filed, they hurry their clients in to spill their guts to the feds.
Goosing Their Religion
I've noticed that trial lawyers, when their beliefs about how to try cases are questioned, sometimes react as though the questions are personal attacks. This came to my attention in discussions among Trial Lawyers College alumni about the management of that institution. Most alumni remained silent, but the truth-that the avowedly anti-institutional College is run by a corporation that (like any good corporation) might make its decisions based on interests other than sunshine and light and justice and love-seemed to drive several of the alumni absolutely batshit insane. To them, the emperor's robes were resplendent; those who questioned TLC, Inc.: just didn't get it; weren't dedicated enough to the College; were otherwise deficient; and should just shut up.
Now, I'm talking about fairly intelligent, well-educated people who make a living standing up for their clients' truths. You might expect them to ignore the questions or join issue rationally, explain how TLC, Inc. is different from other corporations, prove it. Instead, these several TLC alumni acted as though the doubters were questioning their religion. That, I suspect, is the heart of the problem: to some trial lawyers, TLC is a religion, a part of who they are. "The TLC Way" is the ultimate way to try a lawsuit. Questioning TLC is questioning who they are. If TLC Inc. is a corporation, they are followers of a corporation (which they have been conditioned to despise); likewise, if TLC methods are not the be-all and end-all, these lawyers are diminished, somehow. Feeling personally attacked when their beliefs are rationally questioned, they respond with personal attacks. It's no wonder TLC gets saddled with the epithet, "cult."
How to Run for TCDLA Director or Officer
From the TCDLA Bylaws, Art. IX Sec. 3:
A qualified member who desires election as an officer, director or associate director of the Association may file a petition to that effect. Such petition shall set forth the office sought and shall have attached to it the signed statements of twenty (20) members who believe the petitioner is qualified for such office or directorship and will perform the duties imposed by the office sought. Petitions for President-Elect shall also contain the statements of at least ten (10) officers and/or directors in support thereof. Such petition shall not be required of those nominated by the committee under Section 2 of this article. Petitions for election to an office, directorship, or associate directorship must be delivered to the Executive Director at the main office of the Texas Criminal Defense Lawyers Association in Austin, Texas, 50 days prior to the annual meeting.
That doesn't look too difficult. I'd like to see qualified outsiders running for every position in future years. I don't think it can but help for those representing us in the organization to know that we, rather than a committee of the Board, have chosen them.
TCDLA's Broken Election Process
You get something like this in the mail, addressed to you:
a) Figure it's junk mail, and roundfile it; orb) Figure it's important, and open it immediately?
I figured it was junk mail, but opened it out of curiosity. What it turned out to be was the Texas Criminal Defense Lawyers Association's ballot for president-elect. Gary Trichter of Houston is running for president-elect against Keith Hampton of Austin.
TCDLA has directors and officers. They are, by bylaw, selected each year by a committed of the Board of Directors. So the old board chooses the new board. Houston DWI lawyer Paul Kennedy writes about the process (without naming the organization) in Why Fear Democracy?
(Congratulations to Paul, by the way, for being elected to the Harris County Criminal Lawyers Association's Board of Directors, along with Staci Biggar, Sean Buckley, Eric Davis, Danny Easterling, Randall Kallinen, Jani Maselli, Mark Thiessen, and Rob Tuthill. HCCLA does not do things the TCDLA way; there was no committee anointing board members, and there were people who ran and lost.)
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