Posted on May 12, 2010 in Uncategorized

[This fragment has been hanging around for weeks in ScribeFire. It has nothing to do with Norm Pattis's Triage post, except that the title of Norm's post reminded me of this one. It has much to do with "I need a lawyer just to..." and this comment on magic words.]

Quoth Greenfield:

[Lawyers] offer free consultations, which clients interpret as a free hour of a lawyer's time to provide free legal advice which they can then take away and use. I get many inquiries from people asking if I give free consultations. There's only one reason for them to ask. I don't. But they expect lawyers to do so, and will be happy to enjoy a free consultation when they need answers from a lawyer. This is because we teach them to expect free consultations.

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 Posted on May 12, 2010 in Uncategorized

"I'm looking for a lawyer just to..."

This is a bad-news call. "Just to" has one of three implications, none of which involve situations that you want to get into. Get off the phone as quickly as you can.

First, "just to" can mean "for only the following activities, which are a small part of the complete representation that I need:", as in "just to get bail set." At best this "just-to" defendant is looking for piecemeal representation-a lawyer here to get bond set, a lawyer there to get the case reset-with no consideration of how to achieve the goals of representation, or even what those goals are. At worst, this defendant is trying to get someone on the hook for the entire case for one small fee. You are a lawyer, not a notary. Let them hire you to fight like hell and get the best possible result, or not at all.

Second, "just to" can mean "for the following assistance, which in my expert opinion is all that I need:", as in "just to help me plead guilty and get probation." This "just-to" defendant is, by definition, inexpert, and chances are excellent that competent and effective representation involves a lot more than just pleading him to probation. Let this defendant hire you for his "just-to" fee, and you're shortly going to see that just pleading guilty is a horrible idea for him, and you'll have to choose between (a) doing the job the right way for next-to-nothing, and (b) doing the job the wrong way. (If you would chose (b), please go away now and don't return until you see the light. I'm sure there's a V6 pretend-lawyering blog where you'll be welcome.)

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 Posted on May 07, 2010 in Uncategorized

There was a little discussion on Twitter this morning, started by Houston DWI lawyer Paul Kennedy, about suppression of illegally obtained evidence in Texas.

In Texas, foreigners are often surprised to learn, juries can decide suppression issues on disputed facts-for example, when the cops say that they stopped the defendant for not wearing a seatbelt and the defendant or a passenger says that the defendant was buckled in.

How does that work? The charge is the thing. Caselaw doesn't mean squat to a jury; when you want to know how the law applies practically, you begin and end with the instructions that a jury is given.

Here's a typical Texas jury charge (from Harris County's charge bank) on jury suppression of evidence under Article 38.23, Texas Code of Criminal Procedure:

You are instructed that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. You are further instructed that before an officer has the right to make a temporary investigative detention of a defendant, the officer must have a reasonable suspicion that the defendant is connected with some criminal activity that is or has occurred. To justify an investigative detention, an officer must have specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. The reasonableness of a temporary detention must be examined in terms of the total of the circumstances. The test for reasonable suspicion is not whether conduct is innocent or guilty, but the degree of suspicion that attaches to noncriminal acts. Now, therefore, before you consider the testimony of Officers Harmon and Corley concerning their observations of the defendant after his detention, you must first find beyond a reasonable doubt that the officer had such reasonable suspicion, and if you do not so find beyond a reasonable doubt you will disregard such testimony.

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 Posted on May 07, 2010 in Uncategorized

Here's a list (compiled by Houston criminal-defense lawyer-and hero of the revolution- Robb Fickman ) of the Houston Police Department officers suspended in the last two weeks:

Chinese Consulate:

Officer Timothy Riley Jr. (Central Patrol Division)

Officer Quang Tran (Central Patrol Division)

Officer Victor Olivares (Central Patrol Division)

Chad Holley Arrest:

Sgt. John McClellan (Westside Gang Unit)

Officer Raad Hassan (Westside Gang Unit)

Officer Waleed Hassan (Westside Gang Unit)

Officer Drew Ryser (Westside Gang Unit)

Officer Philip Bryan (Westside Gang Unit)

Officer Andrew Blomberg (Westside Gang Unit)

Officer Gaudencio Saucedo (Westside Gang Unit)

Senior Officer Lewis Childress (Tactical Unit of Westside Patrol Division)

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 Posted on May 05, 2010 in Uncategorized

I was licensed on May 5, 1995 and immediately started my practice. Today I celebrated my fifteenth anniversary by getting a client's family-violence assault case dismissed.

I was going to write a "things I've learned in 15 years of criminal defense" post, but Miami criminal-defense lawyer Brian Tannebaum, whose fifteenth was last week, beat me to it.

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 Posted on April 30, 2010 in Uncategorized

Here's Texas's criminal trespass statute. In relevant part, a person commits an offense if the person enters or remains on or in property of another without effective consent and the person received notice to depart but failed to do so. "Effective consent" includes consent by a person legally authorized to act for the owner.And here's a typical Harris County criminal trespass information It alleges that Defendant knowingly entered and remained on the property of another, without that person's effective consent, after having received notice to depart and failed to do so.

That the information fails to charge an offense should be immediately apparent, and not worth discussing here.* File a motion to quash before trial, and the prosecutor amends the information (to allege that the entry or stay was without any effective consent), the charge goes away, or an issue on which there is no caselaw but on which the defense is certainly right is preserved for appeal.

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 Posted on April 29, 2010 in Uncategorized

The Anonymous Prosecutor did a really nice job in jury selection. Next up: D.

You're probably all wondering what you got yourself into today. There's a tension in this courtroom; I'm going to try my best to explain to you what's going on. There's more to it than just a class B trespass case.

I appreciate AP, the courtroom, the judge, living in a country where we have rights and process.

I didn't come here to address the issues.

The subject here is a class B misdemeanor trespass.

AP is new here, and I had agreed to have case before the judge (objection overruled). I was comfortable with the court system. The court called me a week later... (objection sustained). (State refused to waive jury? WTF, AP?)I'm thankful for each one of you.

My message is that each one of you, we are all loved. We are important to our creator. He is dealing with all of us in a wonderful unique way.

I have 9 years in navy civil engineer corps and 12 years in reserves. I don't hold the judge's army service against him.

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 Posted on April 29, 2010 in Uncategorized

Anonymous Prosecutor's voir dire cont'd.

Talk about some of the laws:

Burden is on the state, on SM's shoulders and mine.

D does not have to do a darn thing. Not a thing.

One of our most important rights: right to a jury trial.

Let's say I got a traffic ticket for speeding, and am really really mad. I walk over to the deputy and hit him in front of all of you.

Jurors: you should. #7: on YouTube.

Let's talk about YouTube. Fair to say that people who put things on YouTube want to show people what they're doing?

Sometimes. Sometimes things get posted without the people's permission.

If I hit that deputy, I would have the same right to a jury trial as defendant. I might do it because I wanted to have a forum on traffic tickets, but I have the right to my day in court.

Burden = BRD. How would you know 100%?

Burden ? beyond all doubt or beyond a shadow of doubt. Beyond a reasonable doubt.

Higher burden than clear and convincing evidence for taking away child in family court. We don't want burden BRD because we're dealing with a child (WTF, AP?).

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 Posted on April 29, 2010 in Uncategorized

Jury panel is filing in. 20 people. Mostly white, mostly women (12).

Judge Mike Fields does the "good morning... good morning" thing. It's stupid when a prosecutor does it, and it's stupid when a judge does it.

The State has the "property of" problem here: State and court will try to apply statutory "ownership" law from theft cases to criminal trespass case. A lawyer would be litigating that; I'm guessing D won't.

D has elected to have the court set punishment in the event. This is a class B misdemeanor. Up to six months in jail, up to $2000 fine.

Everyone on the panel will make the state prove its case BRD. I know this because the judge asked and nobody raised her hand.

Introductions: D, standby counsel Brian Storts (serving at Judge Fields's request), two prosecutors-SM, chief in Court 14, and her anonymous second-chair prosecutor (AP).Judge explains the process, asks if anyone would say anything to get out of jury service. "The second highest calling, after military service, is jury service."

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 Posted on April 29, 2010 in Uncategorized

Jury selection is about to begin in Harris County Criminal Court at Law Number 14. Pro se defendant is charged with criminal trespass at Planned Parenthood. He allegedly entered the building without permission, remained after being told to leave, and blew a shofar.

Defendant, who is not Jewish, is wearing a tallit. A Jewish lawyer-not one of the lawyers on the case-objected, and Judge Fields ruled that Defendant has a First Amendment right to wear the Tallit. Take that, Pat Lykos!

The prosecutor didn't tell his wife he's prosecuting this case, so I won't mention his name.

Stupid Harris County network won't let me connect to Twitter, so I can't live tweet it, so I may blog a couple of times about it. I'll at least sit through jury selection.

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