Posted on August 30, 2007 in Uncategorized

Scott Greenfield has been having a discussion with his multiple personalities, all of whom are named "Steve", about what to do with 3Ls (presumably when they're not on law review, tormenting law profs). Scott and the Steves propose actually teaching law students how to be lawyers.

I've been giving a lot of thought lately to the woeful preparation law school provides us for practicing law. It could well be the subject of a class action suit, except that most law school graduates don't know enough to sue until all applicable statutes of limitations have expired.

For a few years I helped teach a criminal trial advocacy class at my alma mater, the University of Houston Law Center. It was fun spending three hours every Wednesday evening teaching future lawyers, and several of my students are now in practice on either side of the bar. The students trying cases are doing well, and I feel like I contributed something to their education.

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 Posted on August 29, 2007 in Uncategorized

My dad, who resides at the moment in Melbourne, Australia, sent me this article from The Age newspaper about the legal team defending Peter Dupas, "one of Australia's most notorious killers."

I enjoy good newspaper profiles of American criminal-defense lawyers. It always seems to me that criminal-defense lawyers across the country are more alike, in ways that I consider important, than they are different; reading about the exploits of another defender feels a lot like getting a newsletter from some long-lost relative. I was pleased to read this article, and to find that defenders are, notwithstanding the wigs, much the same in Australia as here.

Enjoy.

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 Posted on August 27, 2007 in Uncategorized

When picking a jury, you don't have to get every venireperson on your side. I was reminded of this recently when I found in my files a letter from a potential juror in a trial I tried a couple of years ago.

My client was charged with possessing two kilos of cocaine with the intent to deliver it. According to Roberto Carlos Montalvo, a DEA informant, the codefendant had introduced him to my client, who had given him a 42-gram cocaine sample and shown him two more kilos of cocaine hidden under a bed in the master bedroom. The police got a search warrant, searched my client's house, found the two kilos under the bed, and arrested my client and another man.

My defense was that the government couldn't prove its case because the Texas Snitch-Witness Rule (Texas Code of Criminal Procedure Article 38.141) forbids a conviction on the uncorroborated testimony of a government informant. We went to trial along with the codefendant; I don't remember what the codefendant's defense was.

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 Posted on August 27, 2007 in Uncategorized

Miami criminal-defense lawyer Brian Tannebaum writes about The Failures of Our System, which in his view begin with the truth "[t]hat we are a victim of the notion that we are all unsafe." That causes our system to be based on "a media driven perception of ‘what the public wants'", which renders lawmakers unable "to separate those who should not be labeled", which deprives prosecutors and judges of discretion, and so on and so forth until criminal-defense lawyers are held to be the root of the problem.

Brian says of the failures of the system, "more and more I find agreement." I have to wonder if the agreement Brian finds is that of prosecutors and judges who think that criminal-defense lawyers are the root of the problem. I haven't discovered that many people on the government teat are willing to admit the falsity of the notion that we are all unsafe. As I've written before, prosecutors use fear every day to convince juries to convict. If it weren't for our irrational fears, many of them (and many cops, and many judges) would be out of a job.

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 Posted on August 25, 2007 in Uncategorized

Missouri criminal-defense lawyer Randy England has had a string of interesting, provocative posts in recent days (I've added him to the blawgroll). Here, he blogs about "Cheatin' prosecutors and blind defense attorneys". (New York criminal-defense lawyer Scott Greenfield, inspired, took up the subject here.)

Here's the money quote from Randy's post:

I'll give the client a sympathetic ear, but I do him no favor by pretending there is only one side to a story: his.Above all, I want a jury to believe me when I tell them something. I want them to see me playing fair.Only an idiot tries to trip up a truthful witness with tricks designed to flush out a liar. When it's over, the witness looks better than ever and the defense attorney looks a like a failed bully. And dishonest. Which is really too bad, because he probably really believed the witness was a liar. Why? Because he was a cheerleader instead of an advocate.-

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 Posted on August 25, 2007 in Uncategorized

Sarena Straus, at Prosecutor Post-Script, shares a career prosecutor's feelings On Being a Prosecutor.

Generally speaking, prosecutors throughout the country, regardless of jurisdiction, are underpaid, overworked and underappreciated. Many of my younger prosecutors make less than their secretaries....The politicians are of no help, either. Every year they pass new laws, usually without consulting with the folks who have to enforce them, to make it appear that they're doing something about crime. Of course, they never fund the laws they pass....But despite the deficiencies, there is still value and relevance in being one of the public's defenders. Occasionally we still do make a difference. It still beats being a ‘defense whore' or a Wal-Mart greeter.-

Prosecutors might be misled into thinking that they don't get paid what they deserve. This is because, just as politicians pass laws to appear law-and-order, the people are eager to shower prosecutors with adulation. Listening to the people's adoration of prosecutors is misleading because the people are only law-and-order as long as it doesn't cost them anything. (A criminal jury can be dangerous for this reason: twelve people get an opportunity to show their support for law enforcement and their hatred of crime, and it doesn't cost them anything.)

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 Posted on August 24, 2007 in Uncategorized

I wrote here about subpoenaing cellphone records generally.

Here is the address for subpoenaing cellphone records from T-Mobile (encompassing what were formerly Aerial and VoiceStream):

Custodian of RecordsT-Mobile Subpoena Compliance4 Sylvan WayParsippany NJ 07054(f) 973.292.8697973.292.8911

Technorati Tags: investigation, subpoenas

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 Posted on August 23, 2007 in Uncategorized

It's my birthday. I'm taking the day off - mostly (I had a meeting with a new client). I'm baking a chocolate fudge cake and making some raspberry ice cream to go with it.

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 Posted on August 23, 2007 in Uncategorized

I received this email:

Your Google link says, "We Have Never Prosecuted." I immediately thought, they're pandering to the lunatic defendant–those persons who believe that all former prosecutors must secretly hope the defendant is locked away. If there are many defendants out there who think like that, then your link heading might be helpful. I'm guessing you haven't gotten a single client because of it.Don't you agree that the majority of criminal defendants understand that it's better to have someone who knows well the mind of the enemy, all the better to defeat them?I would respectfully suggest that unless you know that this tag line is effective because a new client told you it factored into their decision to choose you, then you should change it.I hope this help.

Thank you for your kind thoughts, but you are guessing wrong, and this not help much. Here's a (former) trade secret: my Google ads touting my lack of prosecutoriality get as many clicks as my other ads.

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 Posted on August 23, 2007 in Uncategorized

Skelly writes:

When, after saving your client many months of freedom, your [juvenile] client's parent tells you, "I don't think you did a very good job representing my son," you do not get to reply, "I don't think you did a very good job raising him."

In the comments, "Vinnie" asked, "Why not?"; I have to echo the sentiment.

I once was told by a client's sister, "you ruined my brother's life" - I had mitigated his punishment in a federal drug case in which he was moving cocaine up the eastern seaboard, but in her mind it was my fault that he was going to prison at all.

We don't make the facts. The truth is that the vast majority of our clients are our clients because they mismanaged their lives in some identifiable way. They may not have done anything wrong or illegal, but they got into circumstances in which the government had an opportunity to torment them. Criminal charges rarely come as a bolt out of the blue, and the criminal-defense lawyer is almost never responsible for the circumstances that brought on the charges. Our job is to try to undo the damage that the clients, their genes, and their parents have wrought in their own lives.

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