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Recent Blog Posts
Thoughts on Nobility, Justice, and Frblniz
If you're the sort of person who needs anyone other than your dog to think you're noble, criminal defense is the wrong line of work for you. Still, it's nice that former criminal-defense lawyer and now prosecutor Ken Lammers thinks that the criminal-defense lawyer who takes the job of defending a "Reviled One," and does the best he can in defense of is noble. Especially since so many would disagree with Ken, and put us in the "reviled" category.
The reviled are not always wrong, and the most reviled are not necessarily the worst. Ken gives three examples of what he calls "deservedly reviled" people: "the BTK killer, a 9/11 terrorist, the guy who ambushed and killed the four officers yesterday." Their conduct is deservedly reviled, but are they? Who among us can truly say?
A necessary condition of justice (if we could hope to find it) would be that people in the same position be treated the same. But we humans can never know that people are in the same position. What minute genetic or environmental factor in the distant past set the neuronal pathways in the brain of the accused that led inexorably to the commission of the reviled act?
Bradley Johnson Offers a Free Four-Part Symposium on Internet Marketing for Lawyers
1. September 17ish, 2009: Seattle lawyer Bradley Johnson, using the name seattle injury attorney, tries to leave a spam comment at Popehat:
Really enjoyed reading your blog post. I will have to bookmark your site for later.
Patrick writes about it, naturally.
2. November 14, 2009: a representative from Bradley Johnson's office contacts Popehat:
to request we remove a post naming Johnson as a spammer, and explaining that it was all a misunderstanding caused by an overzealous marketer. After an email exchange, we got an apology, and a promise not to spam again.
Popehat, in a surfeit of gentlemanliness, removes the September 17, 2009 post.
3. November 30, 2009: Seattle lawyer Bradley Johnson, using the name seattle criminal attorney, tries to leave a spam comment at Crime and Federalism:
Lizards Don't Laugh.
Personal injury lawyer Paul Luvera has written about Applying Reptile Concepts in Trial-describing how plaintiffs' lawyers should appeal to jurors' reptile brains.
The reptile brain is the core of the human brain, sitting right at the top of the spine surrounded by the later-developing dog brain and ape brain. The reptile brain is a survival engine, concerned only with survival: kill, eat, mate, flee. To get through to the reptile brain, you show it a threat, a way to mitigate or resolve that threat, and a greater threat that could otherwise result. In the example of a personal injury trial, says Paul, the plaintiff's lawyer wants to make the points that:
The defendant's conduct threatens everyone's safety;
A proper verdict for the plaintiff will reduce the danger; and
If a proper verdict for the plaintiff is not given, the danger will be increased.
Getting Out of DIVERT?
Back in July, before the Harris County DA's DWI DIVERT program went into effect, I noted:
There will be lots of high-volume lawyers who see this as the best thing since deferred adjudication for resolving cases without actually, y'know, trying, but I don't see myself encouraging clients to sign it unless the State has them dead to rights and they want to be at the mercy of the Harris County DA's Office for another two years.
So what does a defendant do whose lawyer has encouraged him to sign for the DIVERT program? Tyler Flood reports:
I got a call from a gentleman who says he is on the DIVERT program and wants out. Says his lawyer never went over any of the paperwork with him and basically told him he had to take the DIVERT program. He told me that he already told the probation officer he is not going to obey any of the requirements and he wants to be off.
Avvo Answhores (Updated 11/30/2009)
Avvo has this "Avvo Answers" thingumbob, in which "consumers" (that's potential clients to you and me) can "Ask legal questions and get free advice from lawyers" (that's from the header text). Avvo is pushing the "free advice" thing pretty hard-the URL of the page is http://www.avvo.com/free-legal-advice.
That's not how the people answering the questions see it, though. Here's Austin criminal-defense lawyer Paul Walcutt's disclaimer:
This answer is provided as a public service and as a general response to a general question, it is not meant, and should not be relied upon as specific legal advice, nor does it create an attorney-client relationship.
Despite the disclaimer Walcutt, to his credit, seems to a) answer questions only in his geographical (Texas) and practice (criminal) areas; and b) provide thoughtful, accurate answers. While he doesn't call it advice, it could well be. The same can't be said of everyone else's Avvo answers.
Outsource Your Marketing, 3000 Words Edition
Houston's own Lindeman, Alvarado, and Frye has made ATL with four of its website pictures tastelessly illustrating "Child Sexual Assault & Internet Solicitiation [sic] of a Minor" (shown below), "Rape & Sexual Assault," and "Family Violence." (H/T Gideon, whose post is entitled "Why people think criminal-defense lawyers are scum.")
I know Jim Lindeman, Gil Alvarado, and Brad Frye-all good lawyers-and I'm pretty comfortable saying that none of them designed their website like this, nor would they have. At the bottom of each page of their website it's branded a "FirmSite by FindLaw."
What is it that Turkewitz says? Oh, yes: "outsourcing marketing = outsourcing ethics." And what's my addition to that? "Outsourcing marketing = outsourcing reputation." FindLaw has moved on from its cookie-cutter websites, and in the process has made Jim, Gil, and Brad minor stars of the blawgosphere.
The Potential Value of Naming Names
In "An embarrassment to Texas justice," Houston criminal-defense lawyer Tom Moran writes about the case of his client Robert Thompson, executed the night before last after Texas Governor Rick Perry refused to commute his sentence despite the recommendation of the Texas Board of Pardons and Paroles, for a capital murder in which he was not the shooter, and in which the shooter was sentenced to life with the possibility of parole.
The difference between Thompson and his codefendant, writes Tom:
their lawyers.Butler was represented by Rocket Rosen. Thompson's lead counsel was terrible.I was appointed to do the state application for writ of habeas corpus. When I looked into the background of his lawyer, I was shocked.The man's license to practice law had been suspended three times before he was appointed to represent Thompson in December 1996. Two of the three suspensions were for messing up cases. One was for sharing legal fees with a non-lawyer. Two of the three suspensions were partially probated and the third fully probated.The worst was the third suspension, in 1995 - only a year before being appointed to represent Thompson - was for messing up a court-appointed criminal case. A jury found professional misconduct and a district judge ordered his license suspended for 27 months (with the last 24 months probated).
Jurisprudential Retardation: Rodriguez-Parra
In August the Fifth Circuit decided U.S. v. Rodriguez-Parra, an illegal-reentry case in which Mr. Rodriguez argued that his fully-probated five-year sentence for marijuana trafficking should not have been used under section 2L1.2(b)(1)(B) to increase his offense level for illegal reentry by 12 points.
The court found that Mr. Rodriguez should indeed not have suffered the increased offense level, but then-since Mr. Rodriguez's lawyer had not objected to the 12-level enhancement in the trial court-continued with an analysis of the plainness of that error:
We conclude, as stated above, that there was error. That result is reached, however, only by a careful parsing of all the relevant authorities, including the sentencing guidelines and applicable decisions. "[T]o satisfy the second prong of plain error inquiry, ‘the legal error must be clear or obvious, rather than subject to reasonable [dispute].'" Ellis, 564 F.3d at 377-78 (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)). Here the result is reached only by traversing a somewhat tortuous path. That path, moreover, would have been more straight and level had Rodriguez-Parra made his objection in the district court, thus allowing each side to present its arguments on the question now at hand. This is the very point of the plain-error standard-it "serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance." Id. at 378. For these reasons, Rodriguez-Parra's claim of plain error fails at the second prong, so we do not examine the remaining prongs.
Specialty Blog: Houston DWI
It's not a blog of general interest, but if you're interested in DWI law in Houston, read lawyer Dane Johnson's Houston DWI Law Blog (a LexBlog Joint). Dane has been doing great work this week, writing successively about Houston DWI cops' blood draw training, the falsifiability of HGN results, and the coerciveness of the Harris County DWI DIVERT program.
Convergence: Personal Sovereignty and Google Scholar
A reader recently asked me for advice on persuading a loved one to stop believing the personal sovereignty / straw man / redemption theory / UCC-as-supreme-law-of-land hogwash. I've written about this at least a couple of times, here and here. It's frustrating because people who subscribe to this particular delusion think that all lawyers are conspiring to conceal The Truth, which the people have paid good money to learn. Any evidence to the contrary is seen as proof of the conspiracy.
When I heard about Google Scholar making caselaw searchable for free, and therefore more accessible (and less magical) to nonlawyers, I wondered whether Google Scholar might help save ordinary people from the personal sovereignty delusion.
So I did a Gogle Scholar search on some key personal-sovereignty words: "sovereign citizen," and hit on U.S. v. Sloan, in which Mr. Sloan's four-month federal tax evasion sentence was affirmed despite
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