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Recent Blog Posts
Irony or Stupidity?
A comment, in response to the Houston Chronicle's front-page article today about the possible release, on PR bonds, of low-risk pretrial detainees (which article incorrectly describes the accused as "offenders"):
This is a horrible idea! Releasing them on PR bonds defeats the purpose of tough justice. We need to keep them there so that we can force plea bargains down their throats. As soon as they're on the streets they start thinking they can fight their cases and the courts get clogged. It's a damn catch-22.
(From the commenter's other comments, I think the answer ia "irony", but from the tenor of the other comments I suspect that the UGOI who have clicked on "recommend" don't recognize this.)
What Kind of Schmuck Would Hire Frank Pignatelli?
From a post, The Nature of the Job, last October:
Clients sometimes think that they want a lawyer who will act unethically for them, but they don't: first, because a defense based on lies is almost always doomed to fail; and second, because clients need lawyers they can trust. Unethical lawyers are... unethical. A lawyer who behaves dishonestly "for his clients" can reasonably be expected to behave dishonestly toward his clients. [Edit: Or, as Windy Pundit Mark Draughn writes, "you have no right to be surprised when you discover he's ripping you off and screwing your wife."]
From the headlines, today on South Carolina criminal-defense lawyer Bobby Frederick's blog:
Ohio defense attorney Frank Pignatelli turned informant, now practicing criminal defense in Denver.
Why the Why?
I asked regular reader Interested Counsel, a British criminal-law barrister, for a list of points that he found interesting or was curious about regarding the U.S. criminal justice system. He obliged me, prefacing his email:
It is clear here that the Ministry of Justice is enamoured of all things American. It is easy for us at the Bar to put this down to their desire to commodify justice. But perhaps, I thought, there was something in it.So across the pond I virtually came and, rather than dry study, I thought I would look at those questions which are of interest to your criminal practitioners through your blawgs.
Most criminal-defense lawyers are more interested in how to make more money or win the next case than in becoming better lawyers overall, much less in understanding and describing the philosophical underpinnings of the job. That's why, in a country with tens of thousands of actively practicing criminal lawyers, there are only a handful of blogs like Houston DUI lawyer Paul B. Kennedy's The Defense Rests (I single out Paul becuase he has ventured, of late, into Defending People‘s Zen scavenger territory with posts like Survivorman and the Art of Trial Lawyering and Always Expect the Unexpected), New York criminal-defense lawyer Scott Greenfield's Simple Justice, or Virginia prosecutor (and video star... and cartoonist!) Ken Lammers's CrimLaw.
Offense Report Copies
Keith Hampton's editorial in today's Austin American-Statesman contrasts Travis County District Attorney Rosemary Lehmberg's new policy of providing defense lawyers with copies of offense reports with Williamson County District Attorney John Bradley's policy of not allowing defense lawyers to see offense reports:
In leading the way on this cost-saving measure, Lehmberg alsoreaffirmed the fundamentals of our system and demonstrated confidencein the quality of her prosecutors. A prosecutor whose sole aim is tosee justice is done is unafraid that his adversary may be reading fromthe same report - after all, an accurate and thorough investigationconvicts the guilty and protects the innocent. Unfortunately,maintenance of secret police reports is still the norm in somejurisdictions, such as Williamson County.The Williamson County district attorney's office not only deniescounsel copies of reports duly prepared by police agencies, but evenrefuses to permit lawyers to read from them. Counsel is entitled toreview the reports only at trial - a little late, if you are theunfortunate person on trial for a crime you didn't commit. This attitude reflects a neurotic insecurity about the talent and skill ofits own prosecutors as well as distrust of the honesty and competencyof local law enforcement. Worse, it suggests a need to hide policereports to maintain an unfair advantage, a policy elevating convictionrates above the interests of justice. Police reports should enter thesunshine of the adversary system earlier, more efficiently and morejustly, as state lawmakers are preparing to ensure.
CharonQC's Podcast #90
I admit a fascination with the British criminal justice system, and how far it and ours have diverged in the last 230 odd years. I welcome the frequent comments from British criminal barrister "Interested Counsel", and have invited him to email me a list of questions and comments about American criminal justice. I learn a great deal about British criminal justice from the questions that our colleagues across the Atlantic (divided by a common language) have about the way things work here.
So I leapt at the opportunity to visit with figmentary English barrister lawyer CharonQC telephonically for half an hour this afternoon. We talked about jury selection, cross-examination, and the war on drugs. The resulting podcast is here. Enjoy!
Worst Jury Selection Advice Ever: Don't Listen
Elliott Wilcox at Trial Theatre (who could teach even John Bradley lessons on self-aggrandizement as a prosecutor) on the outspoken juror giving answers unfavorable to your client's case:
You do NOT want them sitting in judgment of your client. They hate you, your client, or your case, and you don't want them on your jury. In fact, once they give you two or three of those "Get me the hell out of here" statements, you may start feeling like they're going out of their way to poison your entire jury panel. At this point, you certainly don't want to hear anything else they say, because you know that you're going to kick them off the panel. It may be for cause, or you may need to use a peremptory strike, but either way, they are outta here. Since you're definitely going to get rid of them, you probably shouldn't ask them any more questions, right?
Call for Articles
Sarah Wolf, at the Texas District and County Attorneys Association, is looking for stories for the TDCAA magazine:
Hey there, web-based friends,Inthe next issue of The Texas Prosecutor journal, I am asking people tosend me their stories about a particular crime victim they remember. Iwould love for y'all to share your stories! Tell me about the case, thevictim, and why he or she has stayed with you.Please keep itunder 500 words, and email it as a Word document to me at wolf (a t) tdcaa (d o t) com. I will need them by Friday, February 6. Thank you!
So if you have a favorite crime-victim story (I would guess that Sarah will take complaining-witness stories as well), email Sarah.
I think she should lead off with Timothy Cole, who died of asthma after 13 years in prison (at age 38) after the State ignored another man's confession to the crime that landed him there.
Powerful Word Magic
Thanks to an alert Defending People reader, here's a little more linguistic goodness (following up on Complex Questions and Children) for you today. Here's Janet Ainsworth's ‘You have the right to remain silent...' but only if you ask for it just so: the role of linguistic ideology in American police interrogation law (nothin' but title!), from the International Journal of Speech, Language, and the Law.
Ainsworth looks "speech acts with legal consequences" - speech that does things in the legal system, performing "a kind of ‘word magic'". Some such magic occurs in a ritualized, scripted context in which the speaker is aware of the specific legal outcome that will result from a specific incantation - like a judge finding a person not guilty, or a minister pronouncing a couple married, or the President taking the oath of office.
Ken at Popehat Kicks the LA Times's Journalistic Butt
I'm a great believer in the need for a strong independent press, and I worry about what we're going to do for solid investigative journalism once all of the newspapers have gone the way of the telegraph, but the journalists aren't doing themselves or us any favors by publishing ill-researched ignorant scare pieces that can be authoritatively and conclusively debunked by in two days by some part-time blogger.
The Los Angeles Times Gets It Badly Wrong On A PATRIOT Act Story.
(If you don't already have Popehat on your daily read list, add it now.)
Complex Questions and Children
Here is an article (Complex Questions Asked By Defense Lawyers But Not Prosecutors Predicts [sic] Convictions in Child Abuse Trials) from the Journal of Law and Human Behavior describing a study using automated linguistic analysis finding that the complexity of the questions asked by defense counsel in a child sex abuse case predicts the outcome of the case: more complex questions asked by the defense are associated with convictions.
The study analyzed 46 randomly-selected transcripts from felony child sexual abuse trials in Los Angeles between 1997 and 2001 involving at least one testifying complainant under age 18, and then narrowed the transcripts down to questions directed toward child witnesses by the defense (average 239 questions per trial) and the prosecution (344 questions).
Then:
Connexor Functional Dependancy Grammer (FDG) [demo] parser was used to obtain complexity and wordiness measures of the defense and prosecution's questions. The software produced the total number of layers (complexity measure) and branches (wordiness measure) for each question. Then, mean scores for complexity and wordiness for each child witness were calculated for the defense and prosecution.....
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