Posted on January 30, 2009 in Uncategorized

In response to this post, in which I talked about Williamson County, Texas's criminal discovery policy, WilCo DA John Bradley emailed me:

In Williamson County, a defense lawyer receives full and complete discovery, including access to offense reports, before any trial. Mr. Hampton's commentary is not accurate. Our discovery is more limited if there is a negotiated agreement, but even then discovery of critical information is provided. jb

It's good to have more accurate information, but this raises as many questions as it answers.

What is this "critical information" that is provided before the accused has to decide whether to accept a plea agreement?

Who decides?

And, most importantly, how does a Williamson County criminal-defense lawyer help her client make a proper decision on whether to accept a negotiated agreement (a plea bargain) or go to trial, without access to full and complete discovery?

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 Posted on January 29, 2009 in Uncategorized

Continuing my discussion with "Interested Counsel" about the U.S. criminal justice system. He asks:

Another emotive issue over there appears to be disclosure. I had assumed this was similar to our own debate over when, in proceedings, full disclosure should take place. I infer from your (very good) podcast with the self-styled Charon QC that my assumption was wrong. That trials can take place without the Defendant knowing exactly what a state witness is being called to say shows the level of difference between our systems. Could we be moving in this direction? Hopefully my understanding is wrong.

Yes, trials can take place without the defendant knowing before trial exactly what the witnesses called by the State will say.

Suppose that you are defending a case in one of Texas's hellish white-flight suburban backwaters - Williamson County, for example, or Collin County. The prosecutor has made the decision to prosecute your client based on police officers' offense reports. You, however, have no right to read these reports and, in those counties, you will not read them before trial (they will be produced to you after the officers have testified). [Update: This may not be entirely accurate. Williamson County District Attorney John Bradley provides more information about his county's discovery policy in criminal cases.]

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 Posted on January 29, 2009 in Uncategorized

From Above the Law:

A promising Harvard Law School standout told cops during a bizarredrunken tirade that he would "lie and cheat" to ruin them if - as afuture attorney - he ever calls them to a witness stand, police said.

The 3L, an unpaid intern for prosecutors in Dorchester County District courts, also "badged" the cops:

"Give me a fucking* ride, I work for the district attorney's office."

Four more months, and he could be a real prosecutor. Awesome.

*Every account I've read says "(expletive)". I don't do "(expletive)", so I'm guessing here.

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 Posted on January 29, 2009 in Uncategorized

If, like Francis M. Pignatelli, you moved from Ohio under a cloud and started representing people in Colorado, you wouldn't even have to read the rules in their entirety to find it; it's right there in Rule 1.2(a) of the Colorado Rules of Professional Conduct:

In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

In fact, if you had read the Ohio disciplinary rules before getting accused of a criminal conspiracy, ratting out your clients, and moving to Colorado under a cloud, you would have found the same rule in the same place. Even if you hadn't made it through the rules to Rule 1.6, Confidentiality of Information, you could have read Rule 1.2(a) of the Ohio Rules of Professional Conduct:

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 Posted on January 29, 2009 in Uncategorized

Today I had the great pleasure of dealing with one of Harris County District Attorney Pat Lykos's new prosecutors, hired from outside the practice of criminal law.

I was sitting in the jury room behind a felony court, hanging out with my fellow criminal lawyers (defense and prosecution), waiting for a prosecutor from the child abuse division of the DA's office to turn up so that we could discuss my client's case.

My client is accused of a talking-about-sex crime (under the unconstitutional Texas online solicitation of a minor statute). So of course there are details that might embarrass the accused but appeal to our prurience.

Anyway, I'm sitting enjoying the fellowship when in storms this loud middle-aged blonde lady calling my name. She sees me, and starts invoking one of the salient prurient details of the case. Loudly.

"Mark Bennett! You're here on the River Oaks gorilla sex case!" (That is not the detail that she actually talked about, but 'twill serve.)

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 Posted on January 29, 2009 in Uncategorized

CharonQC's podcast interview with U.S. District Judge John L. Kane of the District of Colorado. Judge Kane (not a fuzzy thinker) has some strong words against the "War on Drugs" and the politicians who have not yet caught on that the war on drugs has failed, cannot be won, and could never be won; and that most people realize this.

Judge Kane, appointed for life, demonstrates why judges shouldn't be elected politicians.

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 Posted on January 28, 2009 in Uncategorized

Houston Press article describing Houston criminal-defense lawyer Murray Newman's blog as "A Digital Bathroom Wall for Pat Lykos".

As rumors spread of continued purges, of internal memos beingdistributed "Re: unprofessionalism of reading toxic antiregime blogs atwork" and of investigations being conducted regarding improper use ofcounty computers, Newman predicted that his former colleagues may soonbecome so paralyzed by fear that the courts will choke with backlog.That'll show Lykos, he seems to think: A prosecutor needs support. Anduntil Lykos causes the total shutdown of the criminal justice system,or until his "last dying breath," Newman vows to be the criminaldefense lawyer whose blog supports prosecutors. There's an aspect ofbitterness to it as well, he admits, but "it's natural to be irritatedabout losing a job."

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 Posted on January 28, 2009 in Uncategorized

From a Defending People reader's description of his experience with the criminal justice system:

So, I got a good attorney. My bond was $5,000, and I was out for almost a year keeping my nose clean. Then he called me in and announced that he couldn't do anything for me and that I was getting 20 years. I thanked him, asked if we were paid up, he said we were, then I said, Good, I'm going home. What do you plan on doing? I plan on blowing my brains out, what do you think I would do? You are serious, aren't you? You bet, I'm 50, so the likelihood of dying in prison if pretty good and I'd rather die a free man than in prison. WAIT! I'll make some phone calls! You do that, you have my cell number. I left to go home to blow my brains out. I didn't get 3 stop lights away when my cell rang and it was my attorney telling me I could get 5 years. I just had to ask, "I have to threaten to blow my brains out for you to get me this deal, that you couldn't get 10 minutes ago?" Some attorney, huh?

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 Posted on January 28, 2009 in Uncategorized

Telephone message from Terry Fifer, Tel. 480-345-3324: "New case - an injury that I was involved in. Please call me."

Since a) I don't take injury cases; b) this is an out-of-town number; and c) the call went directly to my answering service (a listed number, but not one that I give out, so that the only people who call it are telemarketers) I googled the number.

It's the folks at R.W. Lynch (I come up #3 in a search for R.W. Lynch; if everyone who reads this and has a blog links to this post referencing R.W. Lynch I hope to hit number one) are calling again.

Recall that back in April another of R.W. Lynch's stupid marketers going under the name "Kevin McHenry" called me nine times, leaving increasingly desperate messages. McHenry used the same deceptive tactic in trying to get a call back for R.W. Lynch as Fifer - "PLEASE CALL ME RE: PERSONAL INJURY CASE".

R.W. Lynch is calling people pretending to be potential clients with personal injury cases, in hopes that hungry lawyers who want personal injury cases will call them back and sign up for whatever services they sell. Sure, R.W. Lynch can argue that the messages aren't fraudulent - that they really are calling regarding a "personal injury case" or "an injury" that they were involved in. But lawyers are not universally stupid, and many of us can actually recognize a lie when we see it.

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 Posted on January 27, 2009 in Uncategorized

The new edition of the American Society of Trial Consultants The Jury Expert is out. I'll be paying special attention to Gail Herde's Take Me to Your Leader: An Examination of Authoritarianism as an Indicator of Juror Bias.

I think authoritarianism might be what I'm trying to get at with this scaled jury question; I expect to be able to improve on it with the help of the 1993 Kravitz & Block article from Law and Human Behavior, which Herde cites, that evaluates the reliability and validity of the Legal Attitudes Questionnaire, for a discussion of which see Posey and Wrightman's Trial Consulting (for a chuckle, also read the sole Amazon review of that book).

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