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Winning Despite Yourself
In this post about Gerry Spence's defense of Geoffrey Fieger (well, it's not really about that; it's about the egos of Gerry Spence [who boasts he's never lost a criminal case] and Geoffrey Fieger... or maybe all criticism is autobiographical and it's not really about that either...), my New York brother Scott Greenfield wrote:
Bear in mind that Gerry Spence was the lawyer who represented Imelda Marcos, the steward of all footwear, in the Southern District of New York. After the jury returned a verdict of not guilty, one was asked whether it was because of Gery Spence. The response was it was despite Gerry Spence. Ouch.
Call me crazy, but I don't feel Scott's pain. I've had prosecutors opine that juries acquitted my clients despite me; I would love to hear that from all of my juries.
Obviously, I would much rather have a client acquitted despite me than have a client convicted despite me. In the list of all possible things a jury could say after reaching a verdict in a criminal case, one of the least painful would be "we acquitted him despite his lawyer." The only contender for the title of "least painful" is "we acquitted him because of his lawyer", and I'm not sure I wouldn't prefer to hear "despite" instead of "because of" as justification for an acquittal. Here's why: jurors lie about their verdicts. If you want to be lied to, talk to a jury about its verdict.
Jury Argument in Criminal Cases
Today my copy of Ray Moses's "Jury Argument in Criminal Cases: A Trial Lawyer's Guide (Second Edition)" arrived in the mail. (Bookmark the book's website.) This is one of my favorite resources, but I had never gotten around to ordering a copy before now (Professor Moses doesn't make it particularly easy to order) - I'd used it at one law library or another. This is a wonderful book.
It's also a large book - almost 1500 pages of jury argument: law, advice, and examples. The examples are the heart of the book - a thousand pages (I guess) of snippets (a sentence or a paragraph or two) of jury argument in criminal cases. Many of the snippets are attributed to one criminal-defense lawyer or another, but most are unattributed. They are arranged by category. For example, there are 146 arguments (for both sides of the bar) on reasonable doubt. There are 69 arguments on self-defense (we Texans love our self-defense), including five arguments on the duty to retreat. If you try criminal cases to juries, you want this book.
Two Courthouses
Harris County has separate courthouses, both built in the last seven years, for its civil and criminal courts. Courthouse number one is a dingy-looking beige building, solid and generally functional; courthouse number two is ornate, with a dome on top.
In courthouse number one, a judge enters her courtroom from a door to the side and climbs up to her bench; in courthouse two, a judges enters her courtroom through a limestone archway behind her benches (if I were a judge in courthouse number two, I would definitely invest in a fog machine to make my entrances even more oracular; maybe a strobe light too).
Courthouse number one has limited technology built in, and that technology was outdated when the courthouse first opened; courthouse number two has all the technological bells and whistles - WiFi, projectors with drop-down screens, and so forth.
Courthouse number one has too few elevators for the crush of humanity that visits its halls every morning; courthouse two's elevators rarely carry more than one person apiece.
The Tyro's Return
This guy is back. Now he's been retained to represent another of my former clients.
It's beyond me why people hire this guy. He has handled five federal criminal cases to completion, all at least six years ago. Between 2001 and this year he didn't have his name attached to a single federal criminal case in the Southern District of Texas. From a brief telephone conversation with him I was able easily to learn that he knew next-to-nothing about federal criminal defense. Now four people have hired him to represent them in serious federal criminal cases in the last eight months.
His apparent target market - people who want to rush as quickly as possible down to the U.S. Attorney's office to sell their friends and themselves up the river for the possibility of a shorter sentence - is very different from mine. He's not likely to take any business away from me. Should I just shrug my shoulders, say "these federal criminal defendants are big boys, and they're grown-up enough to make their own mistakes" and go cheerfully on my way?
Why Let Juries Sentence?
When Texas legislator Scott Hochberg sought to ban probation for murder, he was able to get a bill passed preventing juries from recommending probation in murder cases. Judges can still, if prosecutors play along by agreeing not to have jury trials, put people on probation for murder.
If things had to change (there really was no good reason; Rep. Hochberg's yearning to change the law was reportedly based on one probation decision by a jury with which the representative didn't agree), this is the opposite of how they should have changed. The Texas Legislature has, once again, taken power out of the hands of the people (juries) and put it in the hands of bureaucrats (prosecutors and judges).
Justice is not something that can be defined by fiat. Justice is a personal moral judgment, and - except for parents trying to imbue their children with morals - no person is competent to tell another what justice is.
If you ask a judge to tell you what justice is, you're not assured of getting justice. There's some chance that you'll get what that judge considers justice, and if you're lucky it'll be something you can live with, but there's no reason to think that a judge has any more of a clue about justice than the man on the street. Judges (especially elected judges, and most especially those elected in partisan elections) aren't generally selected based on their life experiences and wisdom. In fact, our elected judges are often young and callow, with no life experience beyond the halls of the District Attorney's office.
How to Start a Law Practice
I proposed to my alma mater that someone should teach its students how to start a law practice, and volunteered to teach the course myself. I got this response:
Teaching law office management courses at the law school causes problems. The University doesn?t think they are ?law.
Of course! Any fool can see that teaching law students how to actually function as lawyers is clearly outside the ambit of a law school's duties. (With apologies to Victorian Maiden.)
The local chapter of Phi Alpha Delta was interested, though (lesson 1: So Many Ways to Skin a Cat). So I'll be conducting a three-hour introductory course on starting a law practice. It'll be January 23rd, February 6th, and February 20th of 2008. One of the three one-hour sessions - probably the second one - will be in the evening. The others will be at noon. All will be at a location to be announced later (probably somewhere at UHLC).
To my readers: What would you tell law students who might be interested in starting their own law practices? What do you wish you had been told before you started yours?
Where are the Texas Experts?
This comment on Scott Greenfield's blog by one of the authors of the recent Dallas Morning News article on probation for murder in Texas got me thinking a bit. "A closer read of our series," he wrote, "shows that prosecutors still can offer probation through plea bargains with defendants." Here is the article about which we're talking. There may have been other articles, but I haven't seen them and this one didn't suggest that "a closer read" would be worthwhile. In the article about the Texas criminal justice system, the News cited eight "experts":
University of Arizona law professor Marc Miller;
University of Houston law professor (and ethics expert) Bob Schuwerk;
Utah prison system executive director Tom Patterson;
Texas Murder Sentences: Probation to Death
There has been some ado in the blawgosphere lately about the fact that Texas juries could convict people of murder, and then give them probation. (It's not the law anymore - for murders after September 1, 2007, probation will not be an option for the jury.) Furriners (anyone unfamiliar with Texas culture, including reporters from the Dallas Morning News) express surprise that, in a state well-known for executing killers, probation was an option available to juries.
The truth is that Texas's propensity for killing its citizens, and its leniency with some murderers, are both expressions of the a single principle. Texas doesn't execute murderers to show its regard for the value of life; it does so because some people (as the parable says) need killing. Sometimes the guy who - in the eyes of Texas - needs killing is the accused, and sometimes he's the complainant.
Lawyers Who Never Lose
Scott and Norm and Gideon and Stephen have been having a discussion, started by Norm, about lawyers "keeping score" - keeping track of (and, incidentally, boasting about) their won/lost records.
Norm points out that a jury trial really isn't a sporting event, and the playing field isn't level.
I can't promise any client that a won-loss record will shed any light on the outcome of his or her case. Each case is different. Sometimes a mountain of facts can yield only a valley of despair. All a client can and should expect is dedication and hard work.
Scott adds:
If you want to know whether the lawyer is any good, there are two questions to ask yourself. Does he know what he's doing and will he fight for me to the end. Other than that, the score card means nothing.
Game Over, Dude
Over at Simple Justice Scott addresses Other Steve's question of whether he should be a criminal-defense lawyer. Scott's a steely-eyed realist; he doesn't share the popular delusion that our criminal justice system is a great system; no, the system sucks. And criminal-defense lawyers aren't likely to strike it rich. But still:
We write about fighting the good fight. We sometimes spout the platitudes that bring warmth and comfort to the quiet, huddled masses. We try to give hope. But we know that for all our efforts and persistence, most of the poor unfortunates who fall into the grasp of the law will end up miserable for one reason or another. So... should you become a criminal-defense lawyer[?] Absolutely. Not because you're going to get rich. Not because you will become part of a system that imparts justice and fairness to our society. These are pipe dreams. Myths. Do it because if you don't, then the game is over. If young men and women who still believe in doing the right thing for the right reason decide that there is no place for them in the law, then we have lost the war and succumbed to the lowest common denominator in our society.
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