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Malum and Mao
Mississippi Gulf Coast public defender Malum in Se writes about his guerrilla operations against the state:
Last month I prepared 42 motions for bond reconsideration and set them for hearing wherever the court administrators would allow me to squeeze them in. This had all the ADA's in an uproar calling and pleading to take them off the docket and work them out. The private defense bar was ecstatic because this forced the DA's office to come down off several of their recommendations because my motions were sucking up all of their free time.With our local elections two months this would be an opportune time to prepare and file Motions on behalf of all my undocumented clients demanding their right to have their consulates notified of their incarceration as required under Article 36 of the Vienna Convention.
It has become trendy in recent years to read Sun Tzu's Art of War and apply its lessons to various ventures - an Amazon search turns up "The Art of War for Women", "The Art of War for Managers", "Golf and the Art of War", "The Art of War 2008 Desk Calendar", and "Applying Sun Tzu's Art of War in Managing your Marriage". Some criminal-defense lawyers see it as a guide to defending criminal cases. Sun Tzu wrote:
The Myth of Fingerprints
In the Brandon Mayfield case, AFIS listed Mr. Mayfield as one of four people in the system whose fingerprints had features in common with the questioned fingerprint from the bombing in Madrid.
An FBI "Supervisory Fingerprint Specialist", Agent Terry Green, concluded that Mr. Mayfield's left index fingerprint matched the questioned fingerprint.
John T. Massey, an "independent fingerprint examiner" (actually a former FBI employee periodically hired by the Bureau to perform fingerprint examinations), verified that Mayfield's left index fingerprint matched the questioned print.
A senior FBI manager, Michael Wieners, reviewed the alleged match and verified that the questioned print matched Mr. Mayfield's.
The FBI issued a formal report matching Mr. Mayfield's print to the questioned print.
The FBI sent Mr. Mayfield's prints to Spain. The Spanish National Police concluded that there was no match between Mr. Mayfield's prints and the questioned print.
Patriot Act Unconstitutional
Why have we not talked about this? I searched the blogs on my list of regular reads for "Brandon Mayfield" and found only one mention in the last seven months, in passing in Underdog. Do I need to broaden my blawgospherical horizons?
"This" is the opinion of the Honorable Ann Aiken of the United States District Court for the District of Oregon in Mayfield v. United States. In short, Judge Aiken denied summary judgment for the government and granted summary judgment for the plaintiffs, holding that sections 1804 and 1823 of Title 50 of the United States Code, "as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution."
One thing the government tried to do with "USA PATRIOT" Act (malevolent acronym! I'll send a "Notice to Agents" coffee mug to the person who best describes the act with words whose initials form the acronym TREASON or TRAITOR or USA TRAITOR or such) was to expand its own power to search and wiretap U.S. citizens in criminal cases.
Chapter 1, The Tao of Criminal Defense Trial Lawyering
Qalmlea at A Musing Taoist has been dedicating a post to each chapter of Lao Tse's Tao Te Ching, along with her own commentary. The version of the book that she's using is Stephen Mitchell's, which I recommend highly. Qalmlea also provides a link to the text of Mitchell's version online, but it does not include Mitchell's commentary. Buy the book. (She also links to Red Pine's translation, Tam Gibbs's translation, and Thomas Cleary's translation.
Cheap Meat or Prime?
There are - you may have noticed this - lots of lawyers taking criminal cases.
What distinguishes you from the bulk of these lawyers? (Why does it matter? It matters because, unless you have a low opinion of yourself, you realize that the clients will be better served by at least considering hiring you. If you can't define what distinguishes you from the bulk of lawyers, the clients probably won't see it.)
There are many ways to distinguish yourself to potential clients (market differentiators). Some of these differentiators are impractical, some are unethical, some help the clients, some are detrimental to the clients, and some are neutral.
I had this post 2/3rds written when Chuck Newton published Are You Selling Cheap Meat, about market differentiators for law practices:
Too often solos, and especially new solos, devoid of ideas in this regard, and hoping to build business quickly, resort to marketing based upon fees and price. These attorneys are certainly free to do so, but it is a terrible mistake. It is possibly the most stupid decision you can make in the practice of law.
In Waaaayyyyyyy Over His Head
Today the lawyer I described in this post called me (it's been a little over four weeks, by the way). He wanted to know why his client (my former client) had been detained. I probably should have made like Matlock and flipped him off. But instead, I explained to him the presumption of detention in a federal drug conspiracy case with a possible sentence over ten years. I also explained that the particular magistrate who heard the detention hearing will most likely never grant an accused release over the Government's objection. Why I had to educate was beyond me; he is the one who made the client promises that nobody could possibly keep, and now he's talking like I somehow dropped the ball.
The particular job this lawyer is planning to do - racing to the U.S. attorney's office to cooperate - doesn't require any legal talent or training whatsoever. But don't you think that a lawyer who undertakes the representation of a serious drug conspiracy case should actually have a passing familiarity with the law? What happens when cooperation breaks down and the client needs a jury trial? What happens when the government doesn't move for a 5K1 and the client needs a sentencing fight?
What Are You Wearing?
On Sunday Malum in Se wrote about running into a prominent criminal defense attorney at the local Walmart. On Sunday afternoon, the lawyer was wearing khakis, a long sleeve shirt and a tie. Alright, you might say, he had probably just come from church. Or maybe brunch with his mother.
But this Prominent Lawyer gave himself away when he commented on Malum's own attire: "Mr. PD, perception is reality. I envy you at guys at the PD's office being able to run around town in sweat shorts and a tee shirts." PL was wearing khakis and a tie to Walmart on the Gulf Coast on Sunday afternoon because he had to.
(A digression: pity those who are unable to discern metaphor from reality. They might think that perception actually is reality, or that the "war on terror" is an actual war. A criminal-defense lawyer who doesn't recognize a metaphor is severely intellectually crippled [metaphor], and probably shouldn't have people's freedom in his hands [metaphor].)
Loyalty Oaths in the Courtroom
This morning (right now, actually, thanks to the wonders of Verizon wireless broadband) I'm in state district court in one of the counties adjoining Harris County. The judge of this court begins her day by having the courtroom stand for the Pledge of Allegiance.
I am not a big fan of loyalty oaths. I don't believe that a republic that deserves its citizens' loyalty needs them to swear their loyalty, nor that a republic that needs its citizens to swear their loyalty deserves that loyalty. Nevertheless, I don't mind other people swearing loyalty to a flag or a republic as much as they want to. I question their need to do so, though. Having sworn loyalty once, why would they feel it necessary to do so again? Is it to convince themselves? To convince others? Do they protest too much? Or is it because they've never given it any thought? I'm reminded of this passage from Catch-22:
Without realizing how it had come about, the combat men in the squadron discovered themselves dominated by the administrators appointed to serve them. They were bullied, insulted, harassed and shoved about all day long by one after the other. When they voiced objection, Captain Black replied that people who were loyal would not mind signing all the loyalty oaths they had to. To anyone who questioned the effectiveness of the loyalty oaths, he replied that people who really did owe allegiance to their country would be proud to pledge it as often as he forced them to. And to anyone who questioned the morality, he replied that "The Star-Spangled Banner" was the greatest piece of music ever composed. The more loyalty oaths a person signed, the more loyal he was; to Captain Black it was as simple as that, and he had Corporal Kolodny sign hundreds with his name each day so that he could always prove he was more loyal than anyone else.The important thing is to keep them pledging," he explained to his cohorts. "It doesn't matter whether they mean it or not. That's why they make little kids pledge allegiance even before they know what ‘pledge' and ‘allegiance' mean."
Criminal Defense Contract v1
If you take retained criminal cases, you need a good contract. You don't have to have a written contract with the client in every case, but there will be cases in which you will at some point wind up saying either "I wish I had gotten a contract signed" or "I'm damn glad I have a contract signed."
Personal injury lawyers use contracts to bind their clients to them. They attach great significance to the "signing up" of a new client. In a criminal case, a signed contract without payment up front is very rarely worth anything. In a criminal case, it is the fee that binds the client to the lawyer. The client is free at any time to change criminal-defense lawyers if he wants to and can afford to. In a criminal case, a good contract makes clear to whoever is paying what he's to do and what the client can expect to get in exchange.
I offer for your consideration version 1 of the open-source criminal defense contract. Use it if you like; if you find a way to improve on it, please let me know. If I am convinced that the improvements are improvements, I'll incorporate them into future versions for distribution.
Harris County Jail Population
Here is a tabulation of Harris County's jail population as of September 20, 2007.
There are 10,000+ inmates in the Harris County jails.
The largest single group, by far, is pretrial detainees on felony charges: 4,367 (including people held on dual charges and people held on state jail felony charges).
By contrast, 411 people are in the Harris County jails while awaiting trial on misdemeanors only (there is probably very high turnover among this group).
The group of people convicted of state jail felonies and sentenced to county jail is big: 1,371 people. 1,555 are serving county time on misdemeanor convictions.
578 of the inmates are waiting to be taken to prison.
39 people are detained in Harris County Jail by order of the civil district courts, and 39 are federal prisoners. I'm surprised that both of these numbers are so high.
I've got no real point here; I just found the numbers interesting, and thought someone else might be able to make something of them.
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