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Recent Blog Posts
Prosecutors Protecting Children (But Only When It's Convenient)
Prosecutors seem so proud of themselves when they argue, "Don't show me photos of the defendant's kids. He had those kids when he committed the crime and he didn't think about them then." The particular quote is from Jane Starnes, a former Harris County prosecutor (and Bellaire neighbor of ours) who now prosecutes in John Bradley's office and apparently got some award from MADD recently. But they all say it, and every one of them acts like she thought it up herself.
Rephrased, the argument is this: the defendant didn't think about his kids when he committed the offense, so I shouldn't have to think about them now.
Defendants shouldn't be given breaks because they have children, but children should, when possible, be given breaks. It's okay for a prosecutor to consider thebroader implications of any resolution of a case, including the effect of the resolution on other people. More than okay, itshould be mandatory, but that may be too much to ask.
Legal Sufficiency and Proof
A rookie lawyer mistake that I see even experienced lawyers on both sides of the criminal bar make is this: confusing "legally sufficient evidence" with "proof beyond a reasonable doubt". The prosecutor points to a case saying that similar evidence was legally sufficient as proof that the accused will be convicted; the defense lawyer acquiesces and the accused pleads guilty.
Legally sufficient evidence is the constitutional minimum required to sustain a conviction. The test for legal sufficiency is this: could any rational trier of fact have found the essential elements of the offense beyond a reasonable doubt?
When a court says that the evidence is legally sufficient, it's not saying that every jury confronted with that evidence would convict, rather it's saying that a jury could rationally convict.
How is this relevant to a jury? It's not. A jury charge should never refer to legal sufficiency; a trial court can't lawfully tell the jury that such-and-such evidence is enough - in Texas, at least, judges are not permitted to comment on the weight of the evidence.
If You See the High Ground, Take It
Prosecutor Ken Lammers has advice for young criminal lawyers:
I know that no one will listen to me, but I think the world would be a better place if they did. Whichever side you feel are "the good guys", start on the other. Practice there not for 6 months – or even 2 years; practice there for at least five years – enough time that it becomes second nature. Then flip sides. Stay there for at least 3 years. Then put some serious thought into where you want to put your efforts.
I don't think it's bad advice for everybody (lots of people might have no clear idea of how the system works, and might be leaning only gently toward one side), but for anyone who has a clear preference for one side or the other, it goes against several of my principles.
First, do the right thing right now. If you think the defense are the good guys, join the defense. If you think the government are the good guys, join the government. There's no telling whether you'll be alive even a year from now; wouldn't it be a shame to spend the last year of your life working against the good guys?
Greed is Not Good
Canadian kid loses $150,000 to Nigerian 419 email scammers.
If you're not looking to receive something for nothing, you're not likely to fall prey to a swindler. The greedier you are, the more likely you are to be scammed out of your money. Swindlers are looking to get something for nothing.
As a result, conmen are among the easiest people to con. (I find that fact, and the linked site, as well as this one and others of the genre, highly amusing.)
New Harris County Blog
For those of you who think that all Harris County criminal law-related blogs are dry and humorless like this one and Murray Newman's, here's a little treat: Saturday Night and Monday Morning.
J'accuse
Momentum is building in Texas to reduce possession of less than a gram of cocaine from a state jail felony (six months to two years in state jail, day-for-day) to a class A misdemeanor (up to a year in county jail, with time off for good conduct); 16 of 22 Harris County felony court judges publicly support the reform (Brian Rogers in the Chronicle) -
"The ‘War on Drugs' isn't working, and we as judges realize it," [Judge Mike] McSpadden said. "And the public realizes it."
Judge McSpadden has been on the bench for 26 years; he knows whereof he speaks. This position is not new for him, but the public support of 15 other felony judges is. Most of Harris County's professional criminal bar - prosecutors and defense lawyers - know that he's right. One particular politician, however, does not; she needs more time to study the problem:
Say It. Draw It. Act It.
Check out Vrij et al., Outsmarting the Liars: The Benefit of Asking Unanticipated Questions (PDF), from Law and Human Behavior (June 2008). Vrij notes that
If investigators interview individual suspects once (with no factual information about the case), they tend to rely more on noverbal cues than verbal cues to detect deceit. However, when investigators have access to multiple statements from different persons they change tactics. In such cases, investigators overwhelmingly tend to focus on speech content. In particular, they examine the consistency between different statements, believing that consistency implies truth telling and inconsistency implies lying.
One of the areas of human knowledge that we should be scavenging to become better trial lawyers is that of interrogation. Test this: for "investigators" in the above excerpt, read "lawyers" or "juries".
The Vrij article is an exploration of consistency between multiple witnesses to the same events.
An Interesting Court-Appointed Fee Arrangement
Here's People v. Doolin, a California Supreme Court case in which the convicted defendant complained that he hadn't received effective representation because there was a conflict of interest between his lawyer and him. The lawyer had an arrangement (standard at that time) with the county under which he estimated the amount of expert and investigative expenses, he got paid that much for those expenses, and he got to keep whatever he didn't spend.
In the particular case, the lawyer estimated $60,000 in expert and investigative expenses, and spent $8,676.15 (including "$4,500 for services provided by the defense psychiatrist and psychologist"), so he kept (as I read it) $51,323.85 of the money that the county had given him to spend on experts and investigators, as well as his agreed $20,000 fee, to keep his client from being sentenced to death (shades of the Alabama jail food scam?).
Texas Criminal Legislation in the Works
The Texas District and County Attorneys Association (TDCAA) has been so kind as to commission Texas legislative updates for us. Thanks, TDCAA.
Some highlights:
House Bill 169, allowing police to set up checkpoints (ihre Papieren, bitte!).
House Bill 164, creating an affirmative defense for the medical use of marijuana.
House Bill 170, creating a presumption, if a person's BAC is over.08 within 90 minutes of arrest, that his BAC was over.08 at the time of the offense.
House Bill 287, reducing possession of less than a gram of a controlled substance in penalty group 1 or 2 from a state jail felony to a class A misdemeanor. (This is from Rep. Harold Dutton, who is also sponsoring bills on the abolition of the death penalty and discovery in criminal cases, among other things.)
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