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Recent Blog Posts
Proposed Change to Rule of Privilege in Texas Criminal Cases
I wrote last year about the interplay of Texas Disciplinary Rule of Professional Conduct 1.05 and Texas Rule of Evidence 503, and their surprising cumulative effect on the attorney-client and work-product privileges in Texas. Now the Court of Criminal Appeals proposes amending Rule 503 to remove the "special rule of privilege in criminal cases":
(2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.
(PDF of proposed rule change.)
The effect of the rule change will be to bring privilege in Texas criminal cases in line with privilege in civil cases and, coincidentally, with what most Texas criminal lawyers thought the rule was. Now, things that the lawyer learns by reason of the attorney-client relationship will be treated as "unprivileged client information" rather than "privileged information."
Blog or Government Propaganda Tool?
Is it just me, or should a blawg contain some original content?
I'd added David Finn's Dallas Federal Criminal Defense Lawyer "blog" to my reader because I defend federal criminal cases in Dallas and because I've heard of David (and am acquainted with his partner, George Milner III). It'd been on my list for a few weeks, providing nothing that even looked worth clicking through to. Ho-hum.
Until today, when I saw the headline 4 Indicted In Texas Mortgage Fraud Scheme. I was just retained by a new client who is charged with mortgage fraud in Texas, so I clicked to see what David had to say about mortgage fraud. Imagine my surprise to see that "David's" "blog" post (signed with his name at the bottom) was about my client. Imagine my greater surprise to find that the post read much like the USDOJ press release about my client's prosecution. Much like? Nay, verbatim.
Wednesday Evening Staff Meeting 2
Last week's meeting was such a success (19 people attended) that we're doing it again this Wednesday at 4:30pm.
If you are a defense lawyer, and would like to attend, please respond.
The Code
A man has gotta have a code to live by. (So does a woman.)
I think most lawyers don't have one.
What's yours?
Dear Jim Leitner
Dear Jim,
By now you've probably read AHCL's blatantly pandering open letter suggesting that you endorse Kelly Siegler in the race for D.A.
I'm sure Pat Lykos's campaign is trying to get your endorsement as well.
I don't know who you'll endorse in the race between Kelly and Pat, or whether you'll endorse anyone.
If you keep quiet, Kelly will be hoping that the people who voted for you were voting for you as an experienced trial lawyer, and Pat will be hoping that the people who voted for you were voting for you as an agent for change. They will both, in other words, see in you the traits that they emphasize in their own campaigns.
Kelly hopes that the people who saw you as a leader will shift their votes to her, and Pat hopes that those who saw you as an agent for change will shift their votes to her.
The truth, of course, is that the DA's office needs both leadership and change - more leadership than Pat has shown any ability to bring, and more change than Kelly has shown any inclination to bring.
Admit it: You Goofed.
Young Doug Weathers (the adjective was recently vacated by order of the Nickname Marshal, Scott "Paladin" Greenfield) is discovering that maybe he doesn't quite support the Republican Party in all its glory. He says, "for the first time in my adult life I voted for self-interest rather than perceived national interest."
"Perceived" is the key word there. In the past, Young Doug tells us, he has supported the party that has brought us:
limits on jury verdicts to protect doctors regardless of the harm or lifetime costs to the victim.... accelerated statutes of limitation in medical cases.... greater governmental powers against individuals at the federal and state level. Search warrants for general exploratory searches. The very thing the 4th Amendment to the Constitution was designed to prohibit. Apparently we will be safer if we just trust the government without that pesky requirement of probable cause presented to a judge or magistrate. That was the same argument made by the Crown to the American colonies when soldiers would search homes and persons without warrant or probable cause. To hear the President, the world will end if huge telecoms don't get immunity from wronged citizens filing suit. Not only does he not want to get warrants from federal courts to search electronic data, he does not even want to get the permission of a secret court set up just for that purpose. Too much trouble I guess. The government's need of this information is necessary for security. To which I reply with one of my favorite quotes, "Necessity is the plea of every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves." William PittWell at least at the state level Republicans have supported individual freedom. Right? Well yes unless you have been accused by the government of something. Then good luck. If you do not have a jury standing between you and the government there is little hope for you. If the government does something wrong or illegal during the trial, you can always appeal to a higher court. Right? Well - unless you did not preserve the issue for trial by waiving any error for lack of a specific enough objection. Form over substance. Or you did object and the error was preserved just right but the appeals court determines that the error was harmless. But at least you still have access to the courts. Unless you are a capital defendant and your brief comes in ten minutes late. Sorry you die. (For Texas readers you know what I am talking about)
No Such Thing as a Professional Juror
Lawprof Thaddeus Hoffmeister (Juries) is interested in what others think about the idea (which he thinks would be unconstitutional) of using "professional jurors" to decide cases when lay juries are unable, after several attempts, to reach a unanimous conclusion.
This proposal is the perpetual darling of well-meaning amateurs who think they can do better than the Founders. They'll see a situation in which it appears from outside the jury room that the jury somehow was not up to the job thrust upon it. "I know!" they'll say, "if we had expert jurors they wouldn't make mistakes like that!"
The purpose of a jury is to be the voice of the community in a civil case and a bulwark between the government's bureaucrats and the individual in a criminal case.
A jury of experts cannot be the voice of the community. If you create a caste of professional jurors they'll be nothing more than another layer of bureaucrats on the government teat. So a jury of experts or professionals would be no jury at all.
Three Republican DA Candidates
Here are the Reasonable Doubt episodes featuring three of the four Republican DA candidates:
Kelly Siegler
Pat Lykos
Jim Leitner
You're Not Listening!
Listen:
If you are a private lawyer, you can get more people to hire you.
If you are a court-appointed lawyer, you can help your clients appreciate you more.
You can pick a better jury.
You can demolish your adversary's case.
You can perform a better direct examination.
You can perform a better cross-examination.
You can be happier in your relationship; you can be a better parent.
How, you ask?
I already told you. Listen.
That's all. Just listen.
If you listen to your potential clients instead of playing the big smart lawyer, more of them will hire you.
If you listen to your clients, they will know that you care and will appreciate your help.
If you listen to your potential jurors and give them an opportunity to reveal their truths instead of mechanistically asking them yes-or-no questions from your list, you will pick a better jury.
If you listen to your adversary's case, hearkening especially to the things not said, you can find the seams in the case and demolish it.
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