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Recent Blog Posts
Frivolous Conflicted Representation. Where Else but Harris County?
From Social Services for Feral Children comes this story, which the Houston Chronicle seems to have flat-out missed.
Follow along here:
Elizabeth Shelton has a car crash. She rear-ends Lance Bennett (no relation AFAIK; I have a cousin Lance who went to LSU, but I don't think he's a truck driver). Her boyfriend, Matthew McNeice (the Chronicle renders it McNiece, but the District Clerk's civil records have McNeice), is killed in the crash. Elizabeth's SUV is destroyed.
Elizabeth is prosecuted for intoxication manslaughter. She is convicted. That is, a jury finds beyond a reasonable doubt that she caused McNeice's death by reason of her intoxication.
Almost two years after the accident, Elizabeth sues Lance for the damage he did to her truck (and her manicure - oh. mah. god.) when she rear-ended him while intoxicated, causing McNeice's death.
Everybody Gets Convicted Anyway
Today I was hired to represent a young man in federal sentencing proceedings whose "trial" lawyer had advised him to plead guilty without explaining why, tried to withdraw from the case because the client wasn't uncritically taking his advice, and then finally on the eve of trial, unprepared, convinced the man to plead guilty because "everybody gets convicted anyway."
I don't yet know whether pleading guilty was the advice that I would have given the man. But I do know that if I advise anyone to plead guilty, it's because I've got good reasons that I can articulate to the client - good reasons beyond "everybody gets convicted anyway."
Everyone most emphatically does not get convicted. Everyone who pleads guilty gets convicted, of course, but if more federal criminal-defense lawyers took cases with an eye to actually defending them rather than telling the clients, "everybody gets convicted" and running them down to the U.S. Attorney's Office to sing, fewer people would get convicted. Not only would some of the people who otherwise would have pled guilty be acquitted, but also many of the people about whom they would have sung would elect to go to trial, and some of them would be acquitted.
Freedom vs. Safety
The exaltation of freedom over safety is part of our national DNA. America was founded, invented, and peopled by those who chose freedom over safety.
Ben Franklin:
They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
Patrick Henry:
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!
Sam Adams:
If you love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home and leave us in peace. We seek not your council, nor your arms. Crouch down and lick the hand that feeds you; and may posterity forget that ye were our countrymen.
State motto of New Hampshire:
Live Free or Die.
Murphy's Law of Investigation
From today's Houston Chronicle:
DNA evidence - collected in 2002, but unexamined until now - has cleared [RR,] a Houston man serving a 40-year prison sentence for the sexual assault of a child.
The complainant (the Chronicle calls him "the victim", but in this case that term is ambiguous) who identified RR had, when describing his assailant, not mentioned RR's very conspicuous facial disfigurement, caused by a shotgun blast years before.
RR's case brought to mind Murphy's Law of Investigation:
Enough investigation will tend to support your theory.
I cribbed that from Murphy's Law of Research ("Enough research will tend to support your theory"). The principle behind Murphy's Laws of Research and Investigation is confirmation bias, the human tendency to seek out and recognize the data that support their preconceptions, and to avoid data that challenge those preconceptions.
A Heck of a ($618,000 ) Job
The city of Minneapolis will be paying at least $618,000 in a settlement to the family whose house was shot up by a city SWAT team last December.
The officers who participated in the botched raid, you'll recall, got medals.
(H/T Joel Rosenberg.)
Federal Convictions Reversed
From Alex Bunin, Federal Public Defender for the Northern District of New York, comes "Federal Convictions Reversed," this collection (pdf) of summaries of appellate cases reversing federal convictions (not sentences). An invaluable resource to the federal criminal-defense lawyer, but that's to be expected - the various public defenders' offices are still and likely always will be one of the best resources for training and education for the federal criminal defense bar.
Sent to me by a Smiling Judge
A DAY IN COURT
By James Kavanaugh © 1979
(From his collection, Walk Easy on the Earth
The unsmiling judge with wet, flapping jowls,Dismissing the tears of husbands and wives,Spitting out consonants, rolling his vowels,Tearing out hearts and carving up lives,Slicing the children apart at their bowels,Believing that justice latterly thrives-Wiser than Solomon or blinking old owls-As long as his echoing edict survives.
The unsmiling judge with stern eyes of stone,Convinced that his honor will salvage our race,Rages at crime from his emperor's throne,With history's arrogance etched on his face,Applauding his parents and disciplined homeWhere all of the offspring emerged full of grace:"For that which is reaped is only what's sown,"Then he nods to his clerk to begin the next case.
The unsmiling judge can relax a bit nowWhile lawyers bow humbly like prep school boys,A touch of a grin unfurls his brow,Capriciously gone at the hint of a noise.He lowers his gavel and narrows his eyes,No Shah or Napoleon sat more entrenched,Political puppet whose whims govern lives,Who paid enough ransom to sit on the bench.
Vote for Simple Justice
C'mon people, this is a travesty.
Scott Greenfield's outstanding Simple Justice blog is 38 votes out of the lead in the ABA Journal's balloting for top criminal law blog. Go read Simple Justice. It is hands-down the best criminal blog in the practical blawgosphere.
I know that Scott has been encouraging his many readers to vote for another criminal practice blog. Pay no attention. I'm personally very fond of that other blog, but Scott manages to decimate everybody else not only in terms quantity (he gets up before the sun and writes several blog posts every day before work) but also in terms of quality.
Go. Vote for Simple Justice. If you've voted already for someone else, change your vote. Vote from your desktop, your laptop, your handheld. Use an IP forwarder, and vote several more times. Then borrow a friend's computer and vote again.
Toxic Blog of the Day
The fun and games at the Harris County District Attorney's Office continues, with demotions following on the heels of firings. Quoth soon-to-be criminal-defense lawyer Murray Newman:
[D.A.-elect Pat Lykos] will fire or demote anyone who dared to even look at another candidate during the D.A.'s race. She proved thatover the past few days with her administrative decisions that, amongstother things, had her demoting prosecutors from specialty positionssuch as White Collar Crime, Appellate, and Consumer Fraud in favor ofsome of her political cronies.
Wait: if you're an employee of the Harris County District Attorney's Office, you shouldn't be reading that. Why not? Because, according to assistant district attorney Donna Goode, Murray's blog is "toxic."
A comment on Murray's blog, reproduced in its entirety:
Murray, I am a misdemeanor prosecutor who received Donna Goode's emailcalling your blog toxic. I was very disheartened with what she said.First of all, she indicated that she is going to have to be carefulwith what she puts in email because it could end up on the "toxic"blog. Like my 10 year old nephew says, "NO DUH, DONNA." Forwhatever reason, Donna has found herself in good standing with the newadministration (she IS a hard working prosecutor from what I haveheard). But, the fact that she sends us an email calling you toxic isdisturbing. I guess that is sort of the shot accross the bow. Does thatmean we aren't supposed to be seen with you. With Lykos' clearinsecurity (demonstrated by demotions and firings), if I am seen withyou does Kate Dolan refuse to promote me, or even worse fire me. Ialso find it ironic that when I was trying to get a job with thisoffice, all the turmoil started over what, EMAILS, DONNA. Sheez. WhileI have no business as a prosecutor telling Donna what to do, let megive her a professional suggestion from someone who is a part of theemail generation:Don't send an email that you wouldn't want to see on the cover of the Chronicle. Just ask your old buddy Chuck. Also, please don't dictate who we can associate with, judge us by our perfromance. Sorry for ranting.
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