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Rick Casey Gets it Right
Commenting on Sharon Keller's whining about being denied the right to counsel because she has to choose between representing herself and paying Chip Babcock's full fare, the Chronicle's Rick Casey writes:
The judge should know better, especially in these tough times, than to ask us taxpayers to agree to a lawyer whose usual and customary fees can lead to a ruinous legal bill. However, I personally would be willing to chip in for the kind of lawyers whom Keller has found acceptable for people whose lives were at stake. Lawyers like:• Robert McGlohon, who was appointed by Keller's court to represent a death row inmate shortly after the Texas Legislature in 1995 passed a law requiring for the first time that indigent condemned men and women be provided tax-paid attorneys for the automatic habeas corpus appeal.McGlohon had been a lawyer less than three years, had never even assisted on a death penalty case, and was suffering serious health problems. The appeal he filed was so inadequate that it didn't raise any issues that are required in habeas filings. McGlohon, apparently aware of his failings, didn't even file a bill on the case.When later lawyers filed a competent habeas appeal, Keller joined in the majority in ruling it improper because a defendant got only one shot at the target.In a dissent, then-Judge Morris Overstreet called the decision "a farce and travesty," and a federal judge called it "a cynical and reprehensible attempt to expedite petitioner's execution at the expense of all semblance of fairness and integrity."
Pat Lykos is Wrong. Again.
It's an encouraging sign that, when two prosecutors this week used seven of their peremptory challenges to strike black potential jurors, resulting in a sustained Batson challenge and the dismissal of the jury, Harris County District Attorney Pat Lykos disciplined them.
Forcing a prosecutor who uses peremptory challenges on the basis of race to start over with a new jury panel is like throwing him in the briar patch; it's no kind of deterrence. (The better remedy in the trial court might have been for the judge, Jeanine Barr of the 182nd District Court, to seat the black jurors whom the prosecutors couldn't give race-neutral reasons for striking.)
I can't say whether the discipline DA Lykos meted out was excessive because, well, we don't have anything to compare it to. I'm thinking that the accused, who gets to sit in the Harris County Jail now till June instead of finishing his trial this week, would answer the question in the negative, though. If he is acquitted then, he's spent three extra months in jail thanks to the prosecutors; if he's convicted then, we can never know whether this week's jury would have acquitted him.
HCDA Whale Fail!
Early this morning, my telephone rang. I answered it.
Psst. Mark.
Through my REM haze: Mr. X, is that you?
Shhh. Yeah, it's me. Listen, Mark, I've got something for you.
I was immediately awake - X has always provided interesting stuff in the past; some of it pure gold.
I'm listening.
Okay, Mark, here it is. Jim Leitner went around to the misdemeanor courts. Told them to pick a whale. He'd write on it "trial".
And?
The State could not offer anything or let defendant plead. No waiving jury. Said it would be good training.
Click. X had hung up, leaving me to ponder his words. This couldn't, I thought, possibly be true.
Whales are cases that the State thinks it couldn't possibly lose - like shooting whales in a barrel. True whales are recognized by both sides, and in misdemeanor court are usually resolved with plea bargains. Jim Leitner is the First Assistant District Attorney, DA Pat Lykos's right-hand man.
Sharon Keller's Response
Here‘s Sharon Keller's sworn answer (h/t The Houston Chronicle, without which we would be a news-free town) to the Texas Commission for Judicial Conduct's Notice of Formal Proceedings against her. She spends several paragraphs reiterating the facts of Michael Richard's case (the "he had it coming" defense), explains that Richard was not seeking not to be executed, but rather not to be executed using the current protocol (the "only hastening the inevitable" defense) and points the finger at Court of Criminal Appeals counsel Edward Marty and Richard's lawyers (the "some other dude did it" defense).
My second favorite part of the answer is where Judge Keller claims that "If applied to these charges [Article 5] Section I-a(6)A [of the Texas Constitution] is unconstitutional under the United States and Texas Constitutions." So part of the Texas Constitution is itself unconstitutional under the Texas Constitution.
Straight Into Solo
New York criminal-defense lawyer Scott Greenfield really doesn't like the idea, but prescribes two options for "when there's no other choice."
Virginia prosecutor (and former criminal-defense lawyer) Ken Lammers did it himself, and offers "option C: nose to the grindstone."
Miami criminal-defense lawyer Brian Tannebaum, who got himself a fancy-pants PD gig out of law school, calls it a "dumb ass idea" (while somehow managing not to link to either Scott's or Ken's post).
Chandler, Arizona criminal-defense lawyer Matt Brown says that "going straight into solo practice can provide as much training and supervision as a more traditional career path."
An Embarrassment Even to Criminal Defense Lawyers
I wrote way back in ought-seven about how criminal-defense lawyers are unembarrassable. I find my unembarrassability challenged by this: Houston lawyer Jerome Godinich has blown deadlines to file writs of habeas corpus for death row prisoners three times.
In [two of the] cases, the lawyer waited until after business hours on the last day an appeal could be filed and then blamed a malfunctioning filing machine for his tardiness, according to a 5th Circuit Court of Appeals opinion issued last week. The court chastised the attorney for using the same excuse twice.
In the third case, Godinich was not appointed until after the deadline had passed, but the judge who appointed him (late) found that the 162 days he took to file the writ was too long.
Scott Greenfield had the story this morning. He spotted Godinich a late filing and still summed it up thus:
Stupid Neologism of the Day
People often use the verb "to impact" instead of "to affect" or the noun "impact" instead of "effect" because they can't be bothered to remember the difference between affect and effect.
One self-styled writer tweets, "Yep, now those words [affect, effect] are being replaced in the lexicon with things that aren't confusing (re: impact). Language evolution wins!"
Nope. There are few contexts in which "affect" and "effect", used properly, might be confusing to the reader. If a writer can't use "affect" and "effect" properly without unintentionally confusing readers, she shouldn't be in the writing business.
There are occasions on which "impact" might be a better word choice than the noun "effect." An impact is a strike or blow; while an effect might be gradual, an impact is sudden. While an effect might be subtle, an impact is blatant. If one thing has a sudden and noticeable effect on another, it has (or, preferably, makes) an impact.
Brother Dave and Immanuel Kant
I first met "Brother Dave" when he was the case agent for an informant on a cocaine case I was trying. It was a state-court case, but the witness against my client had worked off a federal beef in part by making the case against my client, so Special Agent Brother Dave of the DEA held his hand through my interview of him, and then testified at trial.
Brother Dave is a very devout Christian who loves everyone. He testified against my client without rancor, I cross-examined him and his snitch without ill will, and my client was acquitted (proof that cross-examination does not have to be angry examination).
Brother Dave and I have run into each other a few times since then; I cherish the thought that I may be able to bring him around to my way of thinking on the matter of our shared expertise - the War on Drugs - and I expect that he has the same delusive belief about me.
Frustrated that there's more cocaine on the streets at lower prices than there was when he started fighting the WOD thirty years ago, Brother Dave favors adopting the Singaporean approach to drugs: capital punishment for small quantities.
HCCLA Reasonable Doubt August 14, 2008
Harris County Criminal Lawyers Association's "Reasonable Doubt" television show, August 14, 2008 episode. Hosts Houston criminal-defense lawyer Todd Dupont and Harris County Assistant District Attorney Belinda Smith. Guests: attorney Laney Vazquez, Precinct 6 Constable Lt. Mark Timmer. Subject: Animal cruelty laws.
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