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Recent Blog Posts
Why Maricopa County Matters
Scott Greenfield asks:
It's grown tedious hearing about, and writing about, the doings of Crazy Joe in Maricopa. No doubt he has a few more bullets in his gun that will soon whistle through the air. If there's no one, from the Governor to the United States Attorney to the indicted Chairman of the Board of Supervisors to the judges to the lawyers to the citizens, with the guts to take him on, then why waste more time or bandwidth on Joe Arpaio?
Fair question.
Here (h/t Geoff Berg of Partisan Gridlock) is the answer: if we let Sheriff Joe eat our cornbread, we're gonna be ironing his drawers and clipping his toenails. If the voters of Maricopa County are allowed to elect a despot who freely disregards and cows the judicial branch of government, then next year it'll be Pima County and after that Cochise County and then somewhere in New Mexico or Utah or the wilds of Colorado until eventually it's next door.
The Trace Experiment
In response to the Houston Police Department's concerns that the DA's new policy of not charging <10mg controlled substance cases as felonies, but rather as Class C misdemeanor paraphernalia cases, will result in their not being able to pad their statistics with felonies that require little work result in a rise in the sort of crime, like theft and burglary, that even rational voters care about (as well as prostitution), Harris County DA Pat Lykos has said that she "will re-evaluate a new policy downgrading crack pipe residue charges in six months" (Brian Rogers). (Brian scooped the rest of the media on the new policy when he got back from vacation because he's the only reporter in town who reads my blog.)
This will be spun as a sign of weakness by those who oppose the new policy because they will have to work harder it puts Harris County's citizens in danger. It is just the opposite.
Trial Lawyer Esoterica
Bennett's Chainsaw dictates that it will not be easy, but I love the what really happened? case-the one in which the client is innocent, but his innocence is entirely incompatible with the proof the government thinks it has. In these cases, often a thorough investigation reveals the key to the case, discrediting or clarifying some key piece of evidence so that the government's case crumbles like old crackers. Sometimes, though, the facts are impervious to further investigation; nobody knows nothin' contrary to the government's evidence. Someone has forgotten, or is stonewalling, or is dead.
Sometimes in these cases the questions reveal the answer.
Why is the complainant's story so different from my client's? Where did the gun my client said the complainant had get to? Who called our home phone right before our arrest? How did the cops show up so quickly? The unanswered questions are like interlocking puzzle pieces that surround the one lost piece. Once the questions are in place, the shape of the lost piece is clear, so that you know what it is.
“I've Handled Lots of These Cases”
It's always been easy for a lawyer to claim, "I've handled lots of these cases," to try to get hired by a client. Now, thanks to District Clerk Loren Jackson, who has brought the courthouse into the late 20th century, if not the 21st, it's easy for a client, at least in Harris County, to verify the claim.
Go here; search for the lawyer by name (blue box at bottom of page):
On the results page, pick the right lawyer. Click on him:
From the next page, copy his bar number into your clipboard:
Now go here, click on the "criminal" tab under "Search Our Records and Documents":
Paste the bar number into the "Bar Number" space:
You'll see a list of cases, ordered by file date descending; they can be sorted by other fields (like "type of action / offense") instead. These are all of the lawyer's cases (at least all of them in the last couple of decades), except for those that have been expunged. So the big wins-the not guilties-will not, for the most part, appear in this list (dismissals, which become expungeable only after some time has passed, will). To see those, you will have to have a JIMS (Justice Information Management System) account, or go use the public terminals on the third floor of the criminal courthouse. But from the comfort of your own home you can at least tell from this whether the lawyer has in fact handled "lots of these cases," whatever these cases and your definition of "lots" are (our exemplar makes my artisanal practice seem high-volume by contrast).
How to Choose a (Cheaper) Criminal Defense Lawyer
In response to my post on how to choose a criminal-defense lawyer, a couple of people asked for a similar guide for the clients who can't afford to hire the kind of lawyer I would hire if I were in trouble. For example, "What I wish you had written is how to select a lawyer who is at the ‘price point' you were several years ago."
First, some people assume that criminal-defense lawyers are more expensive than they are (many people assume that criminal-defense lawyers are cheaper than they are; they think I should be cheaper by an order of magnitude; I can offer them no help). Before you assume that you can't afford to hire the lawyer you really want, talk to him. He may even give a ballpark estimate ("at least $x") over the telephone.
When looking for a less-expensive lawyer, you can go one of two ways: either to a lawyer of the same vintage who for some reason charges lower fees, or to a younger lawyer. I always recommend that you look for the latter-a lawyer who is in the situation I was in, say, ten years ago: with four years of criminal-defense experience behind me, but without children, big mortgages, or a steady stream of clients; competent, experienced, and well-trained (ten years ago, I was coming off a string of acquittals and five weeks at the Trial Lawyers College) but working on developing the business side of my practice. Highly determined and energetic, and with lots of time to dedicate to the few cases on my docket.
They Skipped Those Days in Sunday School
From Birmingham, Alabama:
Court officials say a Birmingham woman who changed her name to Jesus Christ didn't live up to it when she reported for jury duty this week.The woman, previously named Dorothy Lola Killingworth, was sent to Judge Clyde Jones's courtroom for a criminal case Monday.Court officials told The Birmingham News Tuesday that the 59-year-old was excused because she was disruptive and kept asking questions instead of answering them.
So Alabama court officials expected Jesus Christ to play nice and cooperate with those in power?
Then they came to Jerusalem. And He entered the temple and began to drive out those who were buying and selling in the temple, and overturned the tables of the money changers and the seats of those who were selling doves; and He would not permit anyone to carry merchandise through the temple. And He began to teach and say to them, "Is it not written, ‘MY HOUSE SHALL BE CALLED A HOUSE OF PRAYER FOR ALL THE NATIONS'? But you have made it a ROBBERS' DEN." The chief priests and the scribes heard this, and began seeking how to destroy Him; for they were afraid of Him, for the whole crowd was astonished at His teaching.
New Blog
I've started a new blog, Social Media Tyro ("because the world doesn't need any more self-professed experts"). I won't be writing extra posts, but I'll be putting the social-media related posts (including online advertising and marketing) there instead of here so that I can focus Defending People a little more narrowly.
Without a Trace
The rumor that I mentioned on October 30th, that the DA's office was going to stop accepting charges on trace controlled-substance cases, has been verified. Prosecutors were notified today by email that starting January 1st the Harris County DA's Office was going to stop filing possession cases on people in possession of less than.01 grams of a controlled substance.
This is terrible news-aside from cutting into criminal-defense lawyers' work, it will allow the DA's Office to dedicate much more of its resources to the cases of people who are actually a danger to others.
The Ethics of Pathos, Part II
In The Ethics of Pathos, Part I I discussed Walter Olson's ethical question, "Should lawyers trying cases make an appeal to jurors' reptile brains?" While writing that post I came to the conclusion that it's not unethical to use even the darkest of persuasive arts (I'm a student of hypnosis and other trial technologies) to convince a jury.
Why not?
A jury comes into the courtroom to be persuaded. The process of jury selection, properly conducted, ensures that those jurors who have inflexibly made up their minds will be excused. Those who remain are willing to be convinced either way. More than that, they expect to be persuaded. The lawyers have a duty to the jury to give it what it expects, and to do whatever the law and ethics allow to persuade the jurors.
Not that it matters to me, since "giving a sucker an even break" is not part of my job description, but the science of persuasion is equally accessible to both sides of a lawsuit. So if I apply neuroscience, or neurolinguistic programming, or hypnosis, or psychodrama in trial I'm not doing anything that my adversary wouldn't be able to do (at least after a few hundred hours of study). A lawyer doesn't have an ethical duty to refrain from doing something just because his adversary chooses not to [edit: do it].
The Ethics of Pathos, Part I
Over at Overlawyered Walter Olson asks, "Should lawyers trying cases make an appeal to jurors' ‘reptile brains'?"
In writing about Reptile Trials in Lizards Don't Laugh, I hadn't even considered this question.
If Walter's were a practical "should" question-"will it sometimes benefit clients for lawyers trying cases to appeal to jurors' reptile brains?"-then the answer would be "yes, absolutely." But that's not the tenor of Walter's question. Considering his site's description, I think it's fair to say that Walter's question is an ethical one. The ethical question: "is it right for lawyers to appeal to jurors' reptile brains?" has nothing to do with the procedural or disciplinary rules (which don't forbid a Reptile Trial), and everything to do with our own personal moral judgments.
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