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Give Me Cover
"I'm in trial in federal court, and I need someone to cover for me in Harris and Galveston Counties on Friday."
If you are a criminal-defense lawyer, at some point you will ask for cover. A lawyer other than the one on the case covers for the one who is by making a court appearance.
Cover doesn't generally involve substantial lawyering, but rather just showing the flag, letting the judge and the client know that the case is not forgotten, and getting a new court date. In other words, it's not complicated. In the grand scheme of things that we do as criminal-defense lawyers, cover is one of the hardest to screw up. I'm not going to send a Horrible Criminal Defense Lawyer into court to cover for me, but anyone with a modicum of diligence and competence should be able to provide cover without making the situation any worse.
By getting cover instead of just calling the court, the lawyer whose case it is can make the client's life easier and less stressful. You might pay a young lawyer for her time to cover for you (because young lawyers have to eat or they'll never grow up to be dinosaurs), but you probably wouldn't pay an experienced lawyer for cover. Experienced lawyers cover for each other as a favor, because they know: if you are a criminal-defense lawyer, at some point you will ask for cover.
Becoming a Federal Criminal Defense Lawyer II
This morning I was visiting with dinosaur-in-training Feroz F. Merchant (actually a super lawyer despite the cheesy SuperLawyer designation) about developing the trial lawyer's art. Feroz was lamenting the many lawyers practicing criminal law who are just there for the money, and care more about their clothes than about either their clients or their art. (Sounds familiar, eh, Shawn?) Feroz, who was down at the federal courthouse to catch some of Norm's cocaine trial that I was shanghaied into (we finally got a jury picked, by the way), mentioned a way of becoming a better federal criminal-defense lawyer that had never occurred to me.
“We Will Show that the Defendant is a Con Artist”
I don't know what to say. This was supposed to be Assistant U.S. Attorney Eric Smith's opening statement - a time not for argument but for describing what the evidence is expected to show.
The accused is not charged with being a con artist. Rather, he's charged with possession of cocaine, at issue is whether he knew that he possessed a controlled substance, and he didn't try to con anybody into believing that he didn't know.
So why would Mr. Smith, prosecuting a drug case, argue to the jury in a drug case that the accused is a "con artist"? It has nothing to do with the facts of the case; might it have something to do with the nationality of the accused?
Might the prosecutor be trying to stir the jury's prejudice by equating the accused (a Nigerian citizen) with the Nigerian con artists who fill our inboxes with offers of easy money?
Is that right? Appealing to the jury's biases and prejudices that way?
Since the jury is entirely white and hispanic, you might even call it an appeal to racism; if Mr. Smith were a white man, you might wonder whether he shared the racism that he was trying to foment in the jury.
Busting the Panel
What do you get when you combine my friend (and fellow dinosaur) Norm, a federal drug case, 20 minutes of lawyer-conducted voir dire, and a 35-person jury panel?
Nothing even remotely resembling a jury. Come back and try again later. With 11 people disqualified for cause, that panel is not big enough. We'll bring in 40 potential jurors tomorrow.
And oh, by the way, the court will do all of the voir dire itself.
Universally, judge-conducted voir dire stinks. A judge doesn't have enough invested in either side of the case to zealously seek the truth from the panel; to the judge, for whom the record is everything, a jury that says all the right words is good enough. At one point today during the judge's voir dire, after her honor (an otherwise excellent federal judge) had elicited from the panel the promise to set aside all of their manifold and manifest prejudices (which obviously didn't merit much in-depth discussion) and "be fair" to our client, Norm passed me this note.
How to Become a Federal Criminal Defense Lawyer
If you're a young lawyer interested in defending people in federal court, listen up. A few days ago an anonymous commenter to this post asked:
How would you recommend that a new lawyer get started defending people in federal court? How did you get started?
I started in federal court long enough ago that I hardly remember how I did it; most likely I went about it all wrong (my first jury trial ever was a bank-robbery trial in federal court). But having made plenty of mistakes qualifies me uniquely to advise others; this question has acquired some urgency in my mind recently as I have noticed a glut of young lawyers seeking advice on practicing in federal court.
One of these young lawyers told me a couple of days ago that, if all else failed, he would go to trial and ask the jury to determine if the arrest was legal. No, I told him, you won't: while we have that option in Texas state court, federal law does not provide for juries to decide suppression issues. Today he reported that, as far as he was concerned, it was still an open question - two other defense lawyers, one of whom used to be a federal prosecutor, had told him that juries could decide such issues in federal court.
A Reader Writes
A friend in Tennessee writes:
Your November 29, 2007 post seems to me to be potentially irresponsible and potentially unethical. How many times have you gotten your clients into more trouble? I bet you would not admit it if you had.
Friend, aside from being an unfriendly thing to say, that last bit is a bet you would certainly lose. You must be mistaking this blog for some sort of advertising. No, I pretty much let it all hang out here - wins, losses, and outright thrashings. I write this blog for the other criminal-defense lawyers, not for clients, and if I can impart a lesson to those who are treading the same paths that I tread, I will. If I had clients who had received bad results because I tried to find ways to beat their cases, I would say "... but this approach doesn't always work so well."
If I were convincing people to try to fight when there was some substantial risk that they would get whacked harder for trying to fight, that might be irresponsible. If I were misleading them into hiring me, that would certainly be unethical.
Another Beauty Contest
The American Bar Association (that's not the real link - the ABA is merely worthless rather than sinister - but it's entertaining nonetheless) is hosting another blawgers' beauty contest. Kevin O'Keefe writes about it here. The heart of Kevin's excellent post (hat tip to Anne Reed):
Law blogs represent disintermediation of publishers and gatekeepers. No more are those in supposed power and control going to screen and serve up what they think is important. A lawyer in a town with a water tower, an old grain elevator and 3 four way stops is on equal footing with a lawyer who clerked for a Supreme Court Judge. The democratization of publishing and dialogue we get through law blogs is at the very heart of what we stand for in America.
Just Pleading Guilty
Shawn Matlock, who's growing up quite nicely, writes about trust (a topic dear to my heart) and his distaste for potential clients who "just want to do a quick plea."
I get such potential clients in the office now and then. When they tell me they want to "just plead guilty and take probation", I tell them something like this:
If you want someone to just plead you guilty, go hire someone else. You'll pay a lot less than hiring me. Lots of people sitting in that seat tell me they just want to plead guilty. "Just pleading guilty" is not what I do; nobody ever won a guilty plea. On every case, for every client, I look for ways to beat the case. I prepare for trial. I fight. Sometimes we win, sometimes we don't, sometimes we plead guilty after all, sometimes the fight doesn't last long, but even when we plead after trying to win the case, we get better deals than we would by "just pleading guilty". You may think they have you dead to rights, but you don't know the law and you don't know what evidence they have against you. Nobody sitting in that seat ever does. Sometimes I convince the people sitting there that they don't really just want to plead guilty, that they really want someone to fight for them and try to find a way to win. And you know what? About half the time, when they decide they don't want to "just plead guilty", but want to fight after all, we end up winning.
Aimless Rambling
From Therapeutic Metaphors & Clinical Hypnosis, by David Puchol Esparza:
[Milton] Erickson told many stories and told them to a variety of clients. As he said of his treatment for a young, anorexic girl, "My treatment for Barbie was to tell her short stories, metaphors, suspenseful stories, intriguing stories, boring stories. I told her all kinds of stories, little stories" (Zeig, 1980). He illustrated the experiences he wanted his clients to retrieve as they fixated their attention upon the dramatic aspects of an unfolding story line about someone else. Clients were free to create their own meaning from the stimulus offered and even have learnings too painful for the conscious mind to tolerate. After all, it was "only a story."As such, metaphor can be considered an altered framework through which a client is free to entertain novel experiences.
To an outsider not extensively trained in hypnotherapy, it would undoubtedly have appeared that Erickson's stories were "aimless rambling." Yet somehow Erickson's clients got results. (Despite him?)
Legal History Query
I can't figure out a way to phrase this search on Westlaw, so I thought I'd turn to the the hive mind of the blawgosphere:
Has Texas Court of Criminal Appeals Judge Sharon Keller ever voted in favor of a defendant in a criminal appeal?
I'll send a valuable prize to the first person to offer either an answer, or an easy way to find a trustworthy (calling chambers is right out) answer. Lend me your suggestions in the comments.
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