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CLE Tomorrow
HCCLA is putting on six hours of free ethics CLE - that's two years' worth - tomorrow from 9 to 2* in the lawyers' ready room on the 7th floor of the Harris County criminal courthouse.
I'll be speaking in the coveted "last speaker on Friday afternoon, long after everyone else has gone home" slot from 3 to 4 p.m. My topic is the ethics of contempt. I am an expert in the field partly by virtue of having defended several Houston criminal-defense lawyers charged with contempt, and partly by virtue of having been held in contempt recently myself.
I will be sharing the lessons of my own contempt case, as well as of Austin criminal-defense lawyer Adam Reposa's.
________________
* That's an ethics joke - it's really from 9 to 4, with an hour lunch break.
Introduction to Intake
AHCL, who knows an awful lot about the DA's office for someone who's not an ADA, has a post today about how the Harris County DA's intake system works (a lot cleaner than the exhaust system). Drop by, and please thank AHCL for sheeding some light on the workings of the office that have been obscured from the bosses' view for years.
AHCL's commenters, some of whom might actually be ADAs or cops as well, have some enlightening and entertaining intake stories too.
The Martial Law Statute
The current text of Section 333 of Title 10 of the United States Code:
Interference with State and Federal lawThe President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it–(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
... And Another 30 Days For Looking at Her Like That!
Austin criminal-defense lawyer Adam Reposa gets 90 days in jail for "making a gesture simulating masturbation while standing before County Court-at-Law Judge Jan Breland during a pretrial hearing".
(Do you think the cuffs will stop him?)
Larry Pozner's Lessons Learned
From the NACDL Champion (H/T a Defending People reader).
My favorites:
When a group of defense lawyers convene to plan a joint strategy, one of them is about to get screwed. You have one week to figure who it is. If you can't figure it out after the first week - it's you.
and:
Be proud of yourself when you take the time to help another defense lawyer with their problem. Be prouder when another defense lawyer takes the time to help you. The sharing of strengths is what distinguishes the criminal defense bar.
and:
Of your ten greatest victories, seven will be deals. Nobody will hear about the deals, but they count just as much.
Welcome, Former Prosecutors, to the Real World
Two recent news items, perhaps pertinent to the question of whether prosecutors lead more sheltered existences than self-employed lawyers:
In Searching for New Job, Gonzales Sees No Takers – New York Times
and
Law of Criminal Defense – And you think the economy sucks? Ask any criminal-defense lawyer
Let me sum up: former top prosecutor can't get a job (New York criminal-defense lawyer Scott Greenfield let him down gently), and criminal-defense lawyers are feeling the recession. (You don't come here to get sunshine blown up your nether regions, do you?)
Apropos of the second article, a month or so ago I asked my favorite felony court judge to allow my client to keep working at a bar while he was on probation. She said that he could for six months, after which he should plan to have a job not involving alcoholic beverages. I pointed out that, even in Houston, the economy wasn't doing so well and that he might not be able to find work, especially on felony probation. She scoffed at the idea that he might have any difficulty finding a job. I was reminded, for a moment, of Marie Antoinette.
Need Spreadsheet / Database Program for Monster File
I need an OS X program to handle 1.5 million lines of data. Prefer freeware / open source / shareware, but will go commercial if necessary.
Suggestions?
WE Live Sheltered Lives
I've taken some criticism for my belief that Harris County Prosecutors (and judges) are typically deficient in the real-world experience that leads to perspective and empathy.
Quoth AHCL:
But as to Mark's argument about "real world experience" outside of the prosecutor's office being a bonus to being a criminal District Court Judge, I do actually disagree. The only exception to that is that I do think that a District Court Judge with both prosecution and defense experience would be good. However, I don't think that if that Judge had been an accountant, or perhaps even a, um, police officer that it would benefit them as a judge.I guess the only major gripe I have with Mark is the use of the term "sheltered" when he describes prosecutors. I would strongly argue that prosecutors (and defense attorneys as well) are probably the least sheltered members of any community they reside in, just by the mere fact that they are the ones who truly see the underbelly of their society.
The Commerce Clause
Critics of the federal government like to ascribe its ballooning power in criminal cases to the fear-driven actions of recent Republican administrations. A longer view, however, reveals that the government's actions that breed discontent in 2008 were made possible by the overreaching of a Democratic administration more than seventy years ago. Like today, we had a president in 1937 who was eager to expand the power of the federal government - then in the name of the New Deal, now for the sake of the Global War on Terror.
Luckily for FDR, he won the 1936 election by a landslide and was able to threaten to pack the Supreme Court, which had been overturning the New Deal; following this threat the Court turned around and broadened the federal government's Commerce Clause power with the National Labor Relations Board v. Jones & Laughlin Steel Corporation decision in 1937.
It is beyond cavil that the power of the federal government took a great leap forward with Jones & Laughlin Steel. Perhaps you think that this was a bad thing. You must nevertheless admire the Hamiltonian brilliance of a court that, at a stroke, converted a weak federal system to an almost all-powerful centralized government that held sway without serious challenge for almost sixty years (until U.S. v. Lopez, which held in 1995 that it's not necessarily the federal government's business when I carry my six-shooter in a school zone).
Free Consultations No More?
New York criminal-defense lawyer Scott Greenfield writes that he feels taken advantage of by people who use his free consultations to get free legal advice; he's begun charging for consultations.
Rarely having a problem with people meeting with me on pretexts, I hadn't seriously considered charging for consultations, but right up until Scott's last paragraph, I was thinking, "that's a good idea. Maybe I ought to do the same. Hmm. How much should I charge? Let's see..."
So I was somewhat surprised to read that I will disagree with Scott. Since Scott says I'll disagree with him, though, I must; I just have to try to figure out why.
Is it because I'm a young man and Scott is ancient (though still spry)? No - while true, that hasn't been any impediment to our reaching agreement before.
Is it because "that's how a criminal-defense lawyer gets his business? No - I don't follow anyone else's business model and don't think any model is best for everyone. For example, most criminal-defense lawyers compete on the basis of price. That's fine for them, but it's not the way I work. I'd rather be hired despite being more expensive than my colleagues than because I'm cheaper than them. Along those lines, charging for a consultation might well be a valuable market differentiator.
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