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Recent Blog Posts
Crossing the Doctor — Gathering Your Pebbles
So you chose a narrow field of inquiry on which to cross-examine the State's expert, and you gathered a list of journal articles that might relate to the narrow field of inquiry. What next?
Find a good medical library. Any medical school should have a a library that has most of the publications we'll be looking for; if you don't live anywhere near a medical school or the school doesn't have a good collection of journals, there are services that permit you to order the articles over the internet. There are two disadvantages to doing so: first, it's expensive; and second, you're not likely to get the articles in the exact form that will be most useful on cross-examination.
Before going to the library, you may be able to get a good idea of what they do and don't have by looking at their online catalog. Here, for example, is the Texas Medical Center Library catalog. While you're at it, do a search for the general topic of the doctor's practice so that you know where to find the textbooks on the subject (for example, pediatrics in the WS 100s). Remembering that you're not going to become an expert on the doctor's broad field, you may find that the textbooks provide some ammunition in addition to that contained in the journal articles. Also, you may need to refer to a basic text to put some of the concepts in the articles into context. (A certain measure of scientific and technical curiosity, along with the appropriate dictionary, is vital to the process of cross-examining an expert witness.)
Terry MacCarthy in Plano
The Center for American and International Law in Plano, Texas is presenting a cross-examination and impeachment seminar for the criminal defense bar December 13-14, 2007. Terry MacCarthy is the lead speaker.
I recommend this seminar highly. Most of us could use more cross-examination training, and Terry is one of the best teachers. I would plan to attend if I weren't going to be in Paris (France, not Texas).
If you can't attend the seminar, order the Terry MacCarthy cross-examination CDs.
Doing the Right Thing in Collin County
New York Criminal Lawyer Scott Greenfield, always on the ball, brings us news out of Texas:
In Collin County (criminal-defense lawyers' Thunderdome), criminal-defense lawyer Chris Hoover, faced with a judge who refused to recuse himself or to refer the recusal motion to the presiding judge (as required by statute), deliberately refused to participate in his client's trial.
Chris moved for a continuance (denied); he announced "not ready"; he didn't enter a plea; he didn't make an opening statement; he didn't cross-examine a single witness; he didn't make a single objection; he didn't offer a defense. The court announced that the defense rested, and then recessed for the day (at 1:00 in the afternoon). During the recess, Chris moved for a continuance based on the absence of an expert witness, but didn't get a ruling on the motion. He moved for a directed verdict (denied). The trial court offered him the chance to reopen the evidence, and Chris declined, explaining that he was still not ready. The jury convicted Chris's client and the judge discharged the jury. The judge set punishment at 90 days in jail, probated the sentence, and Chris pointed out: "At one time you pronounced the sentence at ninety days confinement, probated for two years. And then you said ninety days, probated for eighteen months."
Chapter 4, the Tao of Criminal Defense Trial Lawyering
I haven't posted in a few days because I went from having family in town and celebrating my son's fourth birthday, to preparing for a resisting arrest trial, to installing Leopard. What better way to get back into the flow than another exploration of the Tao? Here's Chapter 4; as usual, I'm using the Mitchell version:
The Tao is like a well: used but never used up. It is like the eternal void: filled with infinite possibilities.
Trying cases mindfully is like drinking from a well: every time we do so, we draw upon new reserves of fresh ability / insight / power. If we stop doing it, though, we might stagnate.There is no one right way. There are an infinite number of ways to try cases. But the way to try cases is not just to have a collection of techniques, but to have an attitude that is open to the use of any technique.
We went to the Bayou City Art Festival a few weeks ago, and there was an artist there who would make puppets from photographs - send him a photo of a person and some money (lots of money) and he'll send you a puppet of the person. I thought, "some day maybe I'll use puppets like those to tell a client's story."Anything is possible. The only limit is your imagination. I talked here (among other places) about the childlike mind; the childlike mind is an empty vessel; it contains all possibilities.
The Ethics of Snitching
I have written a couple of times about a lawyer taking the position that he will not help criminal defendants cooperate with the government in exchange for the possibility of lighter sentences. My contention is that a lawyer who feels that cooperating with the government in exchange for a possible sentence reduction is unethical should, if possible, not help clients do so.
I say "if possible" because some lawyers - public defenders and others who defend the indigent - have clients who can't go and hire someone else if they don't like a lawyer's scruples. When a client is compelled to accept a lawyer's representation, the lawyer can't choose to abstain from doing anything legal to help the client. The lawyer is compelled to help despite his scruples.
If snitching - cooperating with the government in exchange for freedom - were illegal, then a lawyer helping a client snitch would be violating the law (under a parties theory). If snitching is unethical, then a lawyer voluntarily helping a client snitch is violating his ethics.
The Myth of Fingerprints 2
A few weeks ago, inspired by the Brandon Mayfield case in district court in Oregon, I wrote about the myth of fingerprints. This week, inspired by the Brandon Mayfield Case a Baltimore Circuit Court judge in Maryland v. Bryan Rose, following a Frye hearing, excluded the testimony of a forensic fingerprint examiner because the "ACE-V" methodology of latent fingerprint examination is more likely than not "a subjective, untested, unverifiable identification procedure that purports to be infallible."
The State had argued that latent print evidence had been admissible for almost a hundred years, and therefore should continue to be admissible. Stephen Meagher, a "top FBI latent print examiner", had testified that "there is no error rate" for ACE-V, that ACE-V results in 100% certainty. The court found this testimony, along with other testimony by Mr. Meagher, not to be credible, and rightly so - Meagher was "involved in the withdrawal of the FBI's [ACE-V based] [mis]identification of Mayfield.
The No-Snitches Clause
Here is what I now put in my contracts on federal cases. (I cribbed it from another lawyer who has had the no-snitches policy for a long time.):
I do not represent people who "snitch," "rat," or cooperate, which means giving information against others to the government in order to avoid criminal charges, receive leniency, or get some other type of consideration. Three major reasons exist for my policy.First, representing people who cooperate does not require any legal expertise. I have not dedicated myself to the art and science of criminal defense law to help the government convict more people, virtually all of whom are likely innocent or nowhere as guilty as the person cooperating will make them look.Second, because of the government's incentives to and pressures on the person cooperating, innocent people are often charged and convicted, and I will not be a part of helping the government do its dirty work.Third, a person who cooperates could implicate one of my clients and, whether true or not, create a conflict of interest where one did not exist before.If the government offers you a deal to cooperate, I will certainly convey it to you and not pass any judgment if you choose to cooperate. But should you cooperate, I will withdraw from your case and not refund any portion of the fee you pay me.
Brits Discover Neurolaw, Rediscover Hume
Courtesy of CharonQC, this Times Online column by Raymond Tallis of "observations" about neurolaw and the inclination to blame someone's brain for his behavior. Tallis's observations are in response to Simon Myerson, QC's column from yesterday's Times Online (Simon's blog).
Professor Tallis observes:
The brain is usually blamed for actions that attract moral disapprobation or legal sanction. People do not normally deny responsibility for good or neutral actions such as pouring out a cup of tea. This is a pick ‘n' mix approach to human action and intent, and grounds, I would say, for treating the ‘my brain made me do it' plea of mitigation with some suspicion.
Not Guilty. Wait... Never Mind.
In Dallas yesterday, a jury came back with a verdict in the "Holy Land Foundation" trial. They were mostly deadlocked, but they acquitted one of the six defendants of all charges and acquitted two others of most charges.
U.S. District Judge Joe Fish polled the jurors. Three didn't agree with the verdict (Dallas Morning News article). The judge sent them back out to resume deliberating, and when they came back an hour later two of the three had returned to the fold but the third dissenting juror held out. As a result, the case was almost entirely mistried. One defendant was acquitted of most of the counts against him, but the government was not able to get a single conviction out of the 190+ count indictment.
Who knows why a juror agrees to a verdict on Thursday and disavows that verdict on Monday? Interestingly, the jury had returned a verdict (after 19 days of deliberation) last Thursday, but Judge Fish and the prosecutors had not been available to receive it until Monday (Houston Chronicle article). In the interim, the jurors went home to their lives and, presumably, reflected on the verdict. Here are some comments from one of the jurors who would have acquitted the accused.
Law School: Substance or Skills
In response to my post on lower-tier law schools being the better bet for aspiring solos, law student Zeb wrote:
I'm a second year student at the University of Baltimore, a supposedly 4th tier school (that just happens to supply the bulk of trial lawyers in Baltimore). Mr. Bennett's intial post has inspired me to post this comment seeking advice. I have an interest in a criminal defense career. Given the nature of the law school course requirements and scheduling, it looks like I'll have to make choices between taking substantive criminal law electives (Constitutional Criminal Procedure II, Federal Criminal Practice, Forensic Evidence, Sentencing and Plea Bargaining Seminar), and legal skills classes (trial advocacy, advanced trial ad, bench trial ad, appellate ad, litigation process, criminal law clinic, etc.). Which type of course is more valuable–the substantive course or the skills course?My instincts tell me that one can learn the substantive law via independent study, and so I should load up on the more practical legal skills courses while making sure I take the not required but highly recommended bar-tested courses. Do you folks agree? If not, why not?
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