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Jack Marshall, the Elmer Gantry of Ethics
Ethics "expert" Jack Marshall conceded that he was wrong about Eric Turkewitz's April Fools' Day hoax. Which was good. Better, I thought, to sometimes be wrong and realize it than always to be right. A very simple apology should have followed: Dear Mr. Turkewitz, I was wrong. I screwed up. I have no idea what I was thinking. I cannot overstate the magnitude of my error, and hope you will forgive me. If you would like me to remove the offending posts, I am willing to.But... no.
Instead Marshall writes a muddled post (I challenge you to understand what he's saying on the first reading; I read it twice, and I'm still not sure) purporting to explain how he "Became an April Fool and an Ethics Dunce." In the lengthy post beginning, "I'm not going to spin this," he tries to spin it: his error (alleging publicly that another lawyer's April Fools' Day prank violated that lawyer's state's ethical rules) "was the product of a toxic mix of factors, prime among then being that I didn't review my own files."
The Tip of the Iceberg
I've now heard about two Republican criminal court judges telling other judges that they will not give court appointments to criminal-defense lawyers who are running for other Republican criminal court judges' benches. It's unattributable at this point, but my sources are credible and have provided information in the past that has turned out to be correct. I'll keep asking them to allow me to name names before November, but meanwhile...
Judges, what the hell are you thinking?
Do you think that withholding paying work from political opponents isn't corruption? (It is; it may even be prosecutable.)
Do you trust the people you make these offers to not to rat you out? (You can't. Obviously.)
Are you just trying to prove to the world that you can get reelected in Harris County no matter how blatantly corrupt you are?
(I'm sure that more than two judges have adopted this particular corrupt practice, but they don't know which two I know about.)
No, Jack, That Blog Post Doesn't Make Your Butt Look Fat
[L]awyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool's Day exception.
They didn't have a thing, didn't lay a glove on me, although they appear to think they did. What the collected protests, rationalizations and insults (to me) did show-and this has great value-is the warped and inadequate way far too many lawyers think about ethics. This is why lawyers often get in trouble; it is a major reason why the public has a low opinion of the profession; and it is a big reason why I make my living the way I do.
April Fools Day is designed for individual practical jokes, not mass deception and political dirty tricks.
Defining what is unethical is my business.
Mu job is to let lawyers know what is and what isn't ethical.
Motion to Recuse in John Edward Green Case
The State has moved to recuse Judge Kevin Fine from the Green case. You saw it first here:
State's Motion to Recuse Judge Fine from Death Penalty Case
I haven't analyzed the motion closely (and, truth be told, I probably won't unless someone wants to pay me to), but one part of the argument seems to be that because the Texas Court of Criminal Appeals and the U.S. Supreme Court have in the past (without the benefit of evidence that might be developed in this case) held that the Texas death penalty scheme passes constitutional muster, trial courts are forever barred from even inquiring into the constitutionality of the scheme. That part couldn't possibly be right.
The trial court is the court in the best position to develop the evidence that the appellate courts might need in ruling on the validity of the death penalty. It's what trial courts do. To take one particular example, if there were proof that a (factually) innocent person had been executed, that might well affect the views of the Court of Criminal Appeals and the U.S. Supreme Court. But no court has ever taken the initiative to delve into the question of how many-or even whether-innocents have been executed. The counterargument is that, if Mr. Green is not (factually) innocent, it doesn't matter whether other people who were innocent got executed. The counter-counter argument is that, if innocent people have (after being subjected to the same process as Mr. Green) been executed, we can't trust the process to give us a reliable result in Mr. Green's case.
And The Trail Has Its Own Stern Code
There wasn't a breath in that land of death, and I hurried, horror-driven, With a corpse half hid that I couldn't get rid, because of a promise given; It was lashed to the sleigh, and it seemed to say: "You may tax your brawn and brains, But you promised true, and it's up to you to cremate those last remains."
In the criminal courthouse, lawyers generally keep their word. Unlike our colleagues in the civil courthouse (which still smells of cat pee), we don't need Rule 11. We write things down not because we might otherwise change our mind, but because we might otherwise forget. If I tell an adversary that I'm going to do something, I do it; I expect the same from my adversaries.
Padilla v. Kentucky
Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
That's the meat of the holding from Padilla v. Kentucky, decided today.
Texas courts advise defendants pleading guilty that their plea may result in adverse immigration consequences. Until today, that's all that has been required by the law. Thorough and competent criminal-defense lawyers would determine the immigration consequences and advised their clients of them, but not all criminal-defense lawyers are thorough and competent, and it's much easier to get the Padillas of the world to plead guilty if you gloss over those nasty consequences.
Take 2.8 Seconds. Be Thankful.
Friday morning, I saw a dead guy. He was lying on his back under a sheet in a pool of his own blood. I saw him from above. His running shoes, untied, were off to one side and his car keys were at his feet. I deduced that he had jumped from one of the higher floors of the parking garage where I park by the courthouse. I guess he could have fallen or been thrown, but it seemed more likely that he chose to make the leap.
A few feet away from him were what looked like two smashed blood oranges, or maybe ruby-red grapefruit. There was no blood between the grapefruits and him, and they didn't look like any body part that I know of. Why the smashed citrus fruit? Did he lose his balance while juggling on the top wall of the garage? Did he leap with a orange in each hand? From his perch on the parking garage he could have seen Minute Maid Park. Was the fruit a message to someone? Or did he use it to get his range, tossing grapefruits off from the floor he chose to make sure that the path was clear and that he would make the desired splat?
Hover Through Fog and Filthy Air
I've long mistrusted the argumentum ad lexicon. English-language dictionaries are descriptive, not prescriptive, so any argument that relies on a dictionary definition is showing a weak hand to begin with. Then, a good dictionary will show enough different definitions for a word that the arguer can base a sophistical argument on the one that he thinks applies. Like this, from my colleague, Houston DWI attorney Paul B. Kennedy:
According to Merriam-Webster, if something is fair it is "marked by impartiality and honesty..." and it's free from bias. But fair also refers to an object or idea that is "superficially pleasing." It is that meaning that I think most of us associate with fair.
This particular discussion started with Paul's critique of prosecutor Marc Brown's campaign signs, which bill Marc as "Integrity * Tough * Conservative" (could nobody in that campaign think up, for the sake of grammatical agreement, an adjective conveying "integrity"? Honest-upright-righteous-ethical-principled?). On Facebook Paul commented, "We don't need a judge who's ‘tough,' we need judges who are ‘fair.'" This is reasonable.
Procedure Geek: The Skinner Case [Updated 25 May 2010]
I am a procedure geek. As Robert Ragazzo, my law school civil procedure professor, used to say, "procedure is everything."
Today the U.S. Supreme Court granted a stay of execution to Hank Skinner. Here's a little explanation of how, procedurally, Skinner got there and where he goes next.The case before the Supreme Court is Skinner v. Switzer, a civil lawsuit between Hank Skinner and District Attorney Lynn Switzer. Skinner filed suit against Switzer alleging that her failure to test the biological material in his case violated his civil rights. Here's the complaint.
Before filing that suit, Skinner tried to get the state courts to order DNA testing. The request was resisted by the prosecutor and denied by the courts, for various reasons.
Before seeking DNA testing in state court, Skinner had appealed his conviction directly to the Texas Court of Criminal Appeals, and thence by certiorari to the U.S. Supreme Court. Direct appeals were exhausted in 1998.
Ten Social Media Sex Secrets for Lawyers
This post isn't really about social media sex secrets for lawyers. I don't even know one. But experience teaches that three things sell online: sex, social media, and lists.
This post is about Hank Skinner. Hank is going to be executed in about four hours unless Governor Perry or the U.S. Supreme Court grants a reprieve. The chances of that are somewhere between slim and none.
I am not morally opposed to the death penalty. I recognize that "thou shalt not kill" is not a rule that can always be practically followed. There might be people who cannot be deterred or incapacitated by a lesser penalty. If we could ensure that only such people were executed, I would not oppose the death penalty.
But the mere possibility that factually innocent people might be executed is a deal-breaker for me. Death is different than other penalties, and we should be certain before imposing it.
Guilt, in death penalty cases, is determined by a death-qualified jury. A death-qualified jury is, by definition, not a representative subset of society. It is selected for bloodthirstiness. Once this jury has decided that a person is guilty and deserves killing, that decision is not reviewed. The legal rulings of the trial judge are reviewed, as are the performance of counsel and the conduct of the prosecution. But unless evidence of factual innocence shows ineffective assistance, prosecutorial misconduct, or some other Constitutional violation, it will not save a person from execution.
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