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The Blind Leading the Blind
One of the common questions asked on Texas criminal lawyers' listervs is, "does anyone have a voir dire for a... case they could share with me?" (I'm reliably informed that prosecutors do the same amongst themselves.)
I have a friend-we'll call him "Bill Bomble"-who had some experience in show business before becoming a prosecutor. Bill says, "voir dire is improv," and he's absolutely right: jury selection is an improvisational art. It's not susceptible to scripting.
Here are some broad rules for picking a jury (at least in a noncapital case): pick n<4 issues that you want to discuss with the jury. Figure out how to get the jurors talking about them (tip: start with getting the jurors talking at all). Once you get them talking, don't lecture the jurors. Ask them questions. Not yes–or–no questions. Open–ended.
In a competent voir dire, the lawyer does 10% of the talking and the jurors the other 90%. Unless you distribute your voir dire script to your jury panel, they're not going to follow it. They probably wouldn't follow your script even if you distributed it to them. The objective is to get meaningful information and build rapport with the jurors. The script that worked with one jury will flop with the next. In fact, if it's a script it probably didn't work with any jury.
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Because The Customer Is, At That Point, Often Wrong
My Paladin Didn't Charge Split Fees post stirred up some interesting discussion between criminal-defense lawyers and others in the comments.
Mississippi criminal-defense lawyer Remy Orozco, who wrote the post that inspired mine, commented:
This last year in private practice has brought me very few cases where my clients actually wanted to go to trial.... I one day hope to get my practice to the point where everyone that comes to me is willing to go to trial.
Richmond, Texas criminal-defense lawyer Derick Smith wrote:
The most important point to be made is there are many folks in the criminal justice system that do not qualify for court appointed counsel but going into more debt to pay an all in one fee when they know they are not going to trial becomes unnecessary. Your suggestion you try to do the right thing if a case pleads early actually puts you in an awkward position of figuring out what to refund. Most importantly those of us who charge split fees should be telling our clients if you cannot afford my trial fee you should not hire me because I do not want you to take a plea because of lack of funds.
Paladin Didn't Charge Split Fees.
Everyone thinks that his way is the best. In his "How to Hire a Gun Slinger..." blog post (a staple of criminal law blawgs: the post suggesting to potential clients criteria they should look for in hiring a lawyer, and explaining how the blogger fits those criteria; I may have written that post a time or two myself), Mississippi criminal-defense lawyer Remy Orozco (Hostis Civitas) writes:
In my office I operate on a standard flat fee for evaluation and preparation. I then have a separate flat fee if the case ends up going to trial. Most lawyers charge you one flat fee which covers the entire case but end up settling 80% of cases with a plea and do not refund you any of the money paid to cover the trial. Having an option not only saves you time and money but ensures that if your case does settle that you are not overpaying for the lawyers time or advice.
There are jurisdictions in which criminal-defense lawyers must charge split fees (New York comes to mind). In my neck of the woods, the rules allow more freedom of contract. Many criminal-defense lawyers charge a nominal fee per court appearance. Some charge a flat fee for plea, dismissal, or trial, win, lose, or draw. Very few charge an hourly rate. Most charge much like Remy does: $X for handling the case until it's set for trial; $Y if the case is set for trial.
DA's Office Does Right
From UH Law professor David Dow:
In December 2008, Mariano Rosales obtained federal habeas relief on a Batson claim. The district court found that race had improperly influenced the prosecution's decision to strike at least three jurors. The attorney general elected not to appeal.Rosales was convicted in connection with a tragic shooting in 1985. Rosales' wife Mary was having an affair with Hector Balboa. Rosales went to confront them. Upon entering the house where the two were sleeping together, Rosales fatally shot Pete Rodriguez. He then shot 14-year-old Rachel Balboa, the younger sister of Hector. She also died. Rosales next shot Patricia Balboa, another sister of Hector, and the girlfried of Rodriguez. She survived. Rosales finally shot Hector Balboa three times. He survived. Rosales' wife hid throughout the ordeal and was not physically injured.Rosales was convicted and sentenced to death for the shooting of Rachel Balboa. That conviction was vacated in the federal habeas proceedings. He was not prosecuted for any of the other three shootings. When he arrived on death row in December 1985, Rosales was 46 years old. Rosales will turn 70 this July. Once the attorney general's office elected not to appeal the grant of habeas relief, Rosales's lawyers approached the Harris County District Attorney's office and offered to plead guilty to the second murder (the murder of Pete Rodriguez), and well as the attempts on Patricia Balboa and Hector Balboa, and accept consecutive life sentences, in exchange for the DA's decision not to seek death again, in the case of either of the two homicides. The DA's office agreed that it would be a waste of resources to seek another death sentence against an elderly man who would almost certainly die of natural causes before any death sentence could be carried out.When the final plea was entered earlier this week, members of the Balboa family addressed Rosales. They told him he had destroyed their family and extinguished innocent lives, while ruining others. Rosales nodded in agreement. He told them how truly sorry and remorseful he is. The Balboas also told Rosales they knew he had grievously injured his own family, and Rosales nodded in agreement with that observation as well. Finally the Balboas told Rosales they did not want to see him die, and that they forgave him. Rosales himself was visibly moved and started to cry.It took flexibility, creativity, and sheer decency for the DA's office to facilitate this plea agreement. Despite resistance from some career prosecutors, the DA's office understood that Rosales is an elderly and truly apologetic man who presents no danger to anyone inside prison, and that it would be a waste of resources to seek another death sentence. Pat Lykos and Jim Leitner deserve the credit for making this deal come about.
The “Prosecuting Policy” Argument
One argument against prosecuting the waterboarders is that if the new government prosecutes the old government for its policy decisions, the Republic is doomed. The principle is sound, but its application to the question at hand – whether those who waterboarded in our name should be prosecuted – is flawed.
Whether to torture is a policy decision. That policy decision has been answered in the negative many times in the statutes we've passed and the treaties we've joined. Even the DOJ torture memos don't question that policy decision; rather they make legal claims – that certain conduct is not torture – in light of that policy decision.
Once we've decided that America doesn't torture people, what constitutes torture is not a policy decision. It is, instead, a matter of applying the law to the facts. Whether we consider something torture might change with increasing human knowledge, but it can't change with the government of the day. If stress positions were torture in 1956, they're torture now. If standing sleep deprivation was torture in the Soviet Union, it is torture here. If waterboarding was torture in 1972, it's torture now. And if waterboarding is torture now, it was torture in 2002.
Guantanamo Newspeak
Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.
U.S. May Revive Guantánamo Military Courts – NYTimes.com
I'm sure the government's lawyers trying to prosecute terrorism suspects would face a significant obstacle in federal court: finding 12 jurors who don't hear the word "terrorism" and immediately give the government whatever it's asking for; they might have to go to an NACDL or ACLU conference to find their jury.
But that's not the sort of "obstacle to trying some terrorism suspects" that they're talking about. What they're talking about are obstacles like the Fifth Amendment (which would bar evidence obtained through coercion and require due process), the Sixth Amendment (which might bar intelligence reports and other secondhand evidence, and which would allow a jury trial) and the Rules of Evidence (which would bar hearsay): obstacles not to trying terrorism suspects, but only to convicting them.
Torture Segue #1
I'd like to believe that torture doesn't work. If torture didn't work, that'd be sufficient reason to forbid it; sufficient but not necessary. Torture is malum in se; it's illegal-and should be-not because it's ineffective but because it's wrong. My opposition to torture is a matter of honor. It doesn't matter to me whether it works or not; we-Americans-shouldn't do it.
I don't give much credence to the torture memos' accounts of what CIA said about "enhanced interrogation" (which includes non-torture as well as torture methods) preventing an attack. But I'm sure there are occasions when torture works. Torture someone 83 or 183 times, and he's bound to tell you everything you want to hear; some of what he tells you will be the truth and of "high value". That doesn't mean we should license our government to torture.
When conduct is generally criminal, but a specific instance of that conduct serves some societal purpose, we say that that instance is justified. For example, murder is illegal (because it's wrong). But the use of deadly force (including murder) can be justified by (among other things) self–defense, defense of a third person, and defense of property. Most murder trials in Texas, as a matter of fact, are not about whether one person intentionally killed another, but about whether the murder was justified. If a murder was necessary, that is a defense to prosecution; the murderer is not criminally responsible.
The Right Way and the Wrong Way
When the streets are flooding and the rain is coming down (as happened last Tuesday) and there are people who feel a obligation to you to travel in to downtown from their homes, there's a right way to handle the situation and a wrong way.
The right way:
Some parts of town are underwater. It is still raining downtown. Make sure that you check with all the news sources in your area before you and your family attempt to drive in to downtown. Your safety is more important than getting to work on time.
The wrong way: don't tell anyone you're not going about business as usual. Let them brave the flooding and fight their way in to downtown.
The right way was the approach that Pat Lykos's DA's Office took on Tuesday in an email from second-in-command Jim Leitner to the troops.
The wrong way was the approach that the Harris County Courts took on Tuesday with regard to the public, including defendants, witnesses, jurors, and lawyers. To their (minimal) credit, none of the judges seem to have revoked anyone's bond for appearing in court late or not at all. But many people went to great trouble and some danger to come to court, and some of the judges didn't deign to appear at all.
Happy Victims' Week!
America loves its mothers and its veterans and its administrative assistants, but America loves its victims more. Seven times as much, in fact, as any of these-this is National Crime Victims' Rights Week.
Nobody loves victims more than those who make their living off the Cult of the Victim. Take, for example, Andy Kahan of the Houston Mayor's Crime Victims Office, who loves victims so much that he wants to find as many of them as possible:
In 2006, 25 million crimes were committed in the United States; of these, 6 million were violent and 19 million were property crimes.Keep in mind that these statistics are only for crimes that are reported. Considering that fewer than 50 percent of crimes are reported, one can easily see how prevalent crime is.
This week, remember crimes' victims | Viewpoints, Outlook | Chron.com – Houston Chronicle
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