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Recent Blog Posts
Why We Poll the Jury
A jury verdict in a criminal case is not really a single verdict. It's actually twelve (six in a misdemeanor) individual verdicts. It is important that jurors realize that each of them is personally and individually responsible for the verdict; the majority doesn't rule.
"Beyond a reasonable doubt" is a very personal standard; nobody can force someone else to agree that the doubts that she has are not reasonable. It is not acceptable for one juror to try to pressure or coerce another juror to reach a verdict contrary to her own personal judgment, and it is not acceptable for one juror to submit to another juror's pressure to reach a verdict contrary to her own personal judgment. "I was outvoted" and "I was under so much pressure" are not justifications for reaching the wrong decision.
When I'm discussing this concept to potential jurors in voir dire, I will sometimes explain that, once the jury has reached their verdict, the judge will poll the jury - will ask each juror, "is this your verdict?" If the collective verdict does not match the juror's personal judgment, the answer has to be "no" and the verdict does not stand. I've seen a lot of juries polled, and I've never heard a juror respond "no."
Have Fun
I wrote yesterday about What About Clients‘s Rule 1, "Represent only clients you like," and my doubt that it can apply to a criminal practice.
Also yesterday, WAC posted his Rule 12 - a rule with which I wholeheartedly agree: Have fun.
It's supposed to be fun. American law is extremely varied, elastic and constantly presenting new practice areas. It has something for everyone. I am convinced of this. Please keep the faith and keep looking until you find it. Put another way, don't quit before the miracle occurs. It's there, and it's all inside you, in front of you. Simple–but still hard. It's a privilege and joy to do what lawyers do when they do it right.
(I wrote here about how "fun" was a major factor in my choice of practice.)
Freedom vs. Safety vs. Charity
Malum in Se asked, Is an ADA Really Worth More than an APD? This had me thinking about what relative prosecutor and PD salaries say about society's priorities.
I wrote here about the relative salaries of ADAs and private defense lawyers reflecting the greater value we place on freedom than on safety. I think that the disparity that Malum complains of also reflects the value society places on the two jobs.
But how can that be? Doesn't the fact that public defenders make less than prosecutors disprove the theory that private defenders make more than prosecutors because society values freedom over safety? After all, public defenders, like their private counterparts, are fighting for freedom rather than safety; if the public valued freedom more than safety, wouldn't APDs be paid more than ADAs?
No. The threat to freedom against which public defenders guard is, to most people, abstract and theoretical at best. Only tiny portion of the voting public (and an even smaller portion of the campaign-contributing public) will ever need a public defender. Even if they can imagine being charged with a crime (who, other than us defenders, can imagine that? lucky us!) they don't see themselves relying on a publicly-funded lawyer for a defense.
Like Clients?
Dan Hull, in his What about Clients? blog (a good question, and a good blog; his blogroll includes many blogs from outside the U.S.), lists 12 Rules of Client Service. I agree with Dan's twelve rules 91.66%. But his Rule 1, "Represent only clients you like," is one that I'm not sure criminal lawyers can follow.
Unlike Dan, most criminal lawyers are a) not representing companies; and b) not forming longterm attorney-client relationships. Our clients are people, and if all goes well they will never be in trouble again. I don't speak for all criminal-defense lawyers, but here at Bennett & Bennett we try to help our clients resolve whatever issues got them tangled up with the law.
Some of our clients in fact did whatever it is that the government is accusing them of. Even our many factually-innocent clients have generally mismanaged their lives to get involved in the criminal justice system; most criminal charges don't appear as a bolt from the blue. Some of the ways our clients mismanage their lives make them hard to like.
Impending Trials
I have five jury trials set in the next five weeks. Do you know how to try five cases in five weeks? The same way you eat an elephant: one bite at a time.
First up is a misdemeanor possession of marijuana case, next week, in which the state intends to use a dope dealing snitch witness to try to prove that my client knew that the marijuana was in his (the dope dealer's) car. Odds are that I have much more experience dealing with cooperating codefendants than any of the prosecutors do. (That experience comes from federal trials.) The jury instructions in a snitch case give the jury lots of "outs". Even if my client is convicted (never an impossibility), he already has enough jailtime credit to cover any rational jail sentence.
Next up (the following week) is a murder / aggravated assault / aggravated assault allegation. I have a few nasty little surprises in store for the prosecutor trying this one; my client is absolutely innocent. Unfortunately, six people got charged with the same murder and two aggravated assaults, and four of us, it seems, are going to trial together. Multidefendant trials are not pretty, but at least they're companionable. (In federal court the real killer would have made a deal to testify against the others; fortunately we're in state court on this one as well.)
Statements or Questions
English Barrister Simon Myerson commented on my recent post about Racehorse Haynes's cross-examination of the government's snitch witness in a murder case.
Simon has a very interesting blog: Pupillage And How To Get It. I'm not entirely clear on the concept of pupillage; it appears that it's something like an apprenticeship - in order to become a barrister you must first get an undergraduate degree (and a one-year Graduate Diploma in Law if the undergraduate degree was not in law), then take a one-year Bar Vocational Course (BVC), then have pupillage in law chambers for two six-month terms. (Contrast this with the American system of dumping lawyers with no practical training or experience on an unsuspecting public after three years of academic law training.)
Mencken on Government
Government is actually the worst failure of civilized man. There has never been a really good one, and even those that are most tolerable are arbitrary, cruel, grasping, and unintelligent.
H. L. Mencken
Ghostblawging OK?
Ed, whose LawBiz Blog I have been scouring for good practice management ideas, says it's okay for a lawyer to have a ghostwriter write her blog. Here are a few of his reasons:
* Blogging of the nature under discussion is created for marketing purposes. If not, we wouldn't be concerned about search engine placement.* Blogging is done primarily to raise the level of one's credibility for expertise in a given subject - in other words, blogging is done for business purposes.* We do not attribute authorship to marketing copy used in the promotion of any product or service. While that may occur in limited circumstances, it is a negotiated event, not a matter of ethics.* There are many very fine authors who earn a considerable income by writing for others without using their own name.* Books are published daily with the name of the author listed - but who may in fact not be the person who wrote all (or, in some cases, even any) of the words.* The person whose blog it is, though not the author, still sets the tone of the content, still oversees the ideas to be discussed and most likely lays out the entire strategy to be highlighted in the blog. In other words, the concept is the bloggers even if the specific words are not.* Since content is king in the blogging world, providing valid ideas that are practical and useful is far more important than being a great novelist. Getting help to enhance your communication skills so that the reader will better understand your ideas is an acceptable, in my opinion, strategy.
Elsewhere...
Montana criminal defense blog Fight ‘Em ‘Til We Can't (for my money, the best criminal defense blog name ever) calls our attention to Denver PD investigator Gary Norris's Daglaw blog post, Judge John Bayly, Asshole of the Week. DC judge Bayly (who rose above some strenuous competition for the honor) jailed a PD for continuing to insist that her client was homeless in the face of the judge's skepticism about the point.
According to a Law.com article on the incident,
Bayly called PDS general counsel Julia Leighton (who was not present at the hearing) to the bench and told her what had occurred: "She was oppositional and defiant. Not in an unpleasant way, you understand, you know, but she just defiantly refused what I said to do, which was to stop talking."
Resiliency
I wrote here about the mind of the criminal-defense lawyer. Today I realized I left a major point out.
In reading law practice management blogs, I happened on this post by Ed at LawBiz Blog, explaining that, according to a JD/psychologist, lawyers can't "sell" because they have little or no "resiliency, or fast rebounding from setbacks." He goes on to write:
Lawyers will be defensive, get their feelings hurt easily when someone says "no" to them or criticizes them, and are quick to justify their actions.
As is often true of generalizations about lawyers, this probably doesn't quite apply to criminal-defense lawyers. Not only are defenders not easily embarrassed, but they are also very resilient. Any lawyer who can't get his butt handed to him in trial on Tuesday afternoon and be back fighting again on Wednesday morning has no business defending people.
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