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Recent Blog Posts
Raises for Prosecutors and Defenders, or More Pork for Other Projects?
Western Justice points out that the John R. Justice Prosecutors and Defenders Incentive Act of 2008 has been signed into law. I'm sure I've missed hoopla about this elsewhere, since there was lots of hoopla about it last May. Now that I have more than six readers, I'll ask again the two multiple-choice questions that I asked then:
1. The people who decide where the money is spent in your jurisdiction know that the federal government is going to give every public defender a $12,000 annual subsidy. Do they a) raise defenders' salaries nonetheless; b) keep defenders' salaries where they are; or c) lower defenders' salaries by $11,999, figuring that defenders were paid enough before and should be happy with a net $1 raise?2. Having cut defenders' salaries by $11,999, do the people who decide where public money is spent in your jurisdiction use it a) to feed the hungry and house the homeless; b) on hookers and crack for the monthly county commissioners' retreat; or c) to buy AR-15s for the SWAT team and build a new jail, in order to prove their tough-on-crime credentials?Almost anywhere in America, the correct answers are "c" and "c." If you live in one of the exceptions, I'd love to know where it is.
A Little Sunday TJ
"It [is] more dangerous that even a guilty person should be punished without the forms of law, than that he should escape." –Thomas Jefferson to William Carmichael, 1788.
"It [is] more a duty [of the Attorney General] to save an innocent than to convict a guilty man." –Thomas Jefferson: Biographical Sketch of Peyton Randolph.
"No nation however powerful, any more than an individual, can be unjustwith impunity. Sooner or later, public opinion, an instrument merelymoral in the beginning, will find occasion physically to inflict itssentences on the unjust... The lesson is useful to the weak as well asthe strong." –Thomas Jefferson to James Madison, 1804.
Everyday Incidents
Not all cops lie. But if perjury is committed at the criminal courthouse, it's likely committed by someone with a badge and a gun - that is, a law enforcement officer. There's even a term of art for it among the law enforcement community: "testilying".
I see three reasons for this.
First, statistically, cops testify a lot more than anyone else. Five times as much? Twenty times? So they get more opportunities to perjure themselves.
Second cops often feel that the end justifies the means. A little lie to the court or the jury is worthwhile if it serves to put some punk in prison where he belongs. (After all, the system is broken, right?)
Third, as PJ points out in his comment here, cops "know who gets prosecuted for criminal acts and who does not". That is, cops don't get prosecuted for perjury because their perjury is in the interest of those who have the power to prosecute.
Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors - despite having seen this happen more than I have - rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)
Tell Me Again Who the Victim of this Particular Crime Is?
Beaumont, Texas police officer fired after an assistant chief finds out that, in the course of investigating of prostitution ring, the officer received oral sex a half-dozen or so times (and maybe "one ‘active coitus'", according to his lawyer) with the approval of his supervisor and his wife.
In Texas, "I'm a police officer" is not actually a legal defense to most criminal charges. By statute, a cop may possess controlled substances in the course of his work, but he can't legally solicit sex for money. So Officer Watts shouldn't be too surprised if he finds himself dumped further into the grease by his former employer.
Naivete
From Western Justice:
and (apropos of reciprocal discovery):
Um, no. There are preconditions to Justice (what WJ would call "true ‘justice'", as opposed to what the criminal "justice" system provides) that aren't met, and probably never can be.
Let's say that Justice is "the guilty being punished and the innocent being let free". What's missing? We don't want to execute non-violent first offenders, and we don't want to let cold-blooded murderers off with a fine. So we'll have to add appropriateness of punishment to WJ's definition.
The Secret to Winning: Bennett-Style
It all started with Gerry Spence's The Simple Secret of Winning post. Manhattan Paladin Scott Greenfield was inspired to make fun of Spence's formula for winning. Connecticut public defender Gideon, in turn, was inspired to post his secret to winning: "Knowing your rear from your face, or, preparation." Even better, he made it a meme, and tagged Scott, South Carolina criminal-defense lawyer Bobby Frederick, and me.
Bobby G.F. says that there is no secret, and then goes on to post eight suggestions: learn from others; try cases; know the law; prepare ("If you worked nights and weekends preparing your case for trial and covering every base, odds are you are miles ahead of the other guy"); win without fighting; tell your story; tell your client's story through the prosecution's witnesses; and care about your client. (Somebody needs to have a word with Bobby G.F. about the power of trilogy.) Bobby tags Maryland criminal-defense lawyer Jon Katz, Hostis Civitas, and Western Justice.
Bad Cop! No Donut!
Johnson County, Tennessee Sheriff's Deputy Starling McCloud (on the left, in the khaki uniform and the gay-leather-bar moustache) thinks that it's a crime for a citizen to take a photograph of a police officer. (This photograph was taken by the arrestee's 12-year-old daughter after he tossed the offending iPhone to her.)
(H/T Missouri Criminal Defense Lawyer Randy England.)
I foresee a lawsuit in the county's future; the county will claim that this was an isolated incident and settle for an undisclosed amount.
Dialing for Defense Dollars
I just got a telephone call at the office from someone asking me for a campaign contribution for the judge of a Harris County district (felony) court, before whom I occasionally practice and before whom I have a case right now.
This has never happened to me before. I don't know if it's happening now because the Republican incumbent judges are running scared in Harris County (they should be), or because I've never appeared on this particular mailing list before (I contributed to the campaign of another incumbent, who actually deserves to keep her bench).
I've never had any problems with this judge, though I've heard horror stories from other defense lawyers. But his Democratic opponent is a defense lawyer who is highly qualified for the position. So the only reason I would contribute to this incumbent's campaign would be if I thought he would give me a little quid for my quo.
It never occurred to me that my clients would benefit from my contributing to this judge's campaign, so I never even considered contributing. But this direct solicitation call raises the spectre of my clients in this particular court suffering because I did not pay up when asked.
Scott Greenfield Blogs Mimi Coffey
Brother Scott Greenfield, New York criminal-defense lawyer, got some telephonic feedback from Fort Worth (not British) criminal defense (not family) lawyer Mimi Coffey over his colorful word choice in a February post about her appearance on Fox News to talk about some British family law case. Scott responded to Mimi's call, in the best traditions of the blawgosphere, by using Mimi's call as the subject of a blog post.
Now, when you Google Mimi Coffey's name, Scott's post pops up above the fold, after Mimi's own four websites. That's a pretty powerful testament to the power of the blawgosphere.
Jury Trials Blowing Away
Today's robbery jury trial went away because the alleged complaining witness signed an affidavit yesterday swearing that my client hadn't robbed him (he also swore that he had told the prosecutor the same thing, but the prosecutor claims otherwise). Tomorrow's DUI jury trial in Harris County is going to be put off because jury call has been canceled - something about a tropical storm bearing down on us.
That leaves my third scheduled jury trial of the week, a DUI in Austin, as the only one that might actually happen. And Austin DWI defense lawyer Jamie Spencer sent me the juror information forms by email, which is pretty cool, in my opinion - in Harris County we don't get them till the jurors are on their way to the courtroom from the jury assembly building.
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