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Recent Blog Posts
Who Broke the Internet?
About four days ago, I got no email for a four-hour stretch in the afternoon. Email service resumed, but the messages sent to me during that time never arrived.
Technorati has stopped finding my new posts.
My webhost no longer recognizes my account. (Fortunately, my webpages seem to still be up.)
What's going on?
Digging Dirt
We defenders are, as New York criminal defense attorney Scott Greenfield writes, Diggers of Dirt.
In fact, one thing that distinguishes the zealous defender from the businessman-masquerading-as-defender is the alacrity with which the defender digs the dirt. While the businessman is typically thinking about how not to annoy the State, the judge, the complainant, the cops, and so forth, the defender is digging away, hoping for some nugget of information that might make a difference to his client.
We dig for dirt on the judges - their personal prejudices that might hurt our clients. We dig for dirt on the prosecutors - information from other lawyers about the dirty tricks that the prosecutors like to play. We dig for dirt on the cops - history that might make them less believable. Most of all, though, we dig for dirt on the accusers.
A guy came to me last week charged with a violent crime. He hadn't been arrested yet, and hadn't been to court. He didn't know the name of the alleged victim in his case. He told me that the complainant had hit him, and he hit back. He hired me, and within a couple of days I knew who the "victim" was, and what criminal history he had. I knew that he had been convicted of the same crime that he was accusing my client of. I had ordered a copy of the police report from that incident, and ordered his booking photo. Now, I still haven't made my first court appearance on this case, but when I do I will know much more about the complainant than the prosecutor does.
No More Jury Probation for Murder in Texas
I mentioned here that a Texas jury could, when setting punishment, make a binding recommendation of probation in almost any case in which (a) the the sentence was ten years or less and (b) the accused had not been convicted of a felony or placed on felony probation before. This was true even in murder cases.
There are some cases in which a person can commit murder and reasonably be placed on probation. In jury selection on murder cases, prosecutors often gave the example of the elderly man giving his ailing wife too much morphine to end her pain. That's a rare situation; more common is the case in which the accused had just enough of a part in the killing to be liable under the law of parties, but didn't participate directly. Here is one such case from six weeks ago, in which the jury found probation appropriate.
Juries could, after considering all of the circumstances, decide whether the murderer deserved life in prison or probation or (most often) something in between; that decision was entirely up to them. They didn't do it often, but only when the accused was very deserving. I know of no problems with that system. I never heard of a single person on probation for murder reoffending; there was certainly not an epidemic of such recidivism.
Unimpressive.
Did any of you think that in this post, Technicalities, compared Joel Jacobsen, the prosecutor author of this post, to Norman Bates, or was it clear that I was comparing him to an unwitting Alfred Hitchcock? See his unimpressive response.
"Some people," he says, "would like to have a criminal justice system that has more to do with right and wrong" rather than the rules. Hey, me too! I would like to have a criminal justice system that never gets the wrong guy. I'd like to have a criminal justice system that treats each person as a unique individual. I'd like to have a criminal justice system that never overpunishes. I could spend a lot more time working on my cars.
But that's not the system we have. The system we have has precious little to do with justice. If justice results from the machinations of the system, it's a happy coincidence. It is a system of rules - not because of those pesky defense lawyers trying to use the rules to their advantage but rather because it evolved under the stewardship of people who recognized that as long as human beings are writing the laws, arresting the accused, prosecuting, and judging, we'll never have the system we might all want.
More on Representation for the Working Poor
Scott Henson (Grits for Breakfast) brings us news of Collin County, Texas's efforts to cut costs by denying appointed counsel to people who own over a certain amount of assets or have income over a certain amount.
The numbers? The rules are in this document (PDF):
The financial standards set forth below shall be used to determine whether a defendant is indigent and shall be applied equally to each defendant in the county. A defendant is considered indigent if:a. their total income does not exceed 125% of the Federal Poverty Guidelines established and revised annually by the U.S. Department of Health and Human Services and published in the Federal Register; orb. if the defendant and defendant's spouse were not required by law to file the most recent U.S. Individual Income Tax return (either 1040 or 1040EZ) due to gross income below the filing requirements; andc. if the defendant and defendant's spouse liquid assets do not exceed $2,500; ord. whose liquid assets do not exceed double the estimated cost of obtaining competent private legal representation on the offense(s) with which the defendant is charged.
How Much is Too Much?
I heard today about a local lawyer who had quoted a $150,000-plus fee to a person accused of a first DWI. In Texas, DWI is a class "B" misdemeanor with a possible 180-day sentence but more likely a probated sentence if the accused is convicted.
The lawyer didn't receive the fee (I probably wouldn't have heard about it if he had), but the story had me wondering about the Hog Rule ("pigs get fat, hogs get slaughtered") and more specifically the ethical implications of charging such a fee. If the client had, as the lawyer requested, brought him a cashier's check for nearly 200 grand on Monday, where would the lawyer stand ethically?
Generally, Texas lawyers can charge their clients whatever their clients will agree to pay. The only limits under the Texas Disciplinary Rules of professional conduct are that the fee must be legal (by which is meant, I suppose, that we can't get paid in kilos of cocaine) and conscionable.
"A fee is unconscionable," says the rule, "if a competent lawyer could not form a reasonable belief that the fee is reasonable." Texas Disciplinary Rule of Professional Conduct 1.04. That doesn't make things much clearer. The rule goes on to list eight relevant factors in determining whether a fee is "reasonable":
Sex Offenders: Animals or Human Beings?
Two posts:
Scott Greenfield, in Sex Offenders Must Have an Option, calls sex offenders "animals."
Gideon, in Sex Offender Homelessness is not an Excuse, says (with, I suspect, more than a hint of irony) that some sex offenders are human.We are all animals, of course. But when people call sex offenders (or any other group of people) "animals," they don't mean that they are animals like the rest of us. They mean to differentiate that group from the rest of us; they mean to dehumanize that group, to justify maltreatment. Europeans called Africans "animals," whites called native Americans "animals," and Nazis called Jews "animals." (Here is an interesting post by Colleen Patrick-Goudreau on a blog called Food for Thought about what belittling humans by calling them animals says about our attitudes toward animals.)
How Much?
Colin asked, in a comment to this post about criminal-defense lawyers and criminal pretense lawyers,
"For those of us who aren't lawyers, how much does a crappy defense lawyer usually cost? How much does a good defense attorney usually cost?"
There's no good answer to those questions. The criminal pretense lawyer might ask $250 for a case that requires $5,000 worth of lawyering, or $1,000 for a case that needs $50,000 worth of brainpower. But some V-6s I've seen charge a boatload of money to sell their clients down the river. There are a couple of guys who get lots of referrals from inmates in the Federal Detention Center and charge lots of money - more money than I might charge to fight like hell - to do an objectively crappy job in federal court.
But inexpensive lawyers are not necessarily bad. When I was a young lawyer I charged some fees that more-experienced lawyers thought were scandalously low. I was hungry for work, and I didn't know how to price my services. I remember taking a habitual aggravated robbery case (a 25-to-life case) for $2,500; later I heard the appointed lawyer whom I replaced on the case talking to a colleague: "some of these young lawyers are taking serious felony cases for $2,500," he said, shaking his head. As New York criminal defense attorney Scott Greenfield writes, "The young but caring criminal-defense lawyer offers the best chance of hope [for the working poor], but they aren't easy to find for the regular person."
Be Afraid. Be Very Afraid.
I wrote here about my theory that airport security measures are intended to remind us that we are in danger, and that we need the government's protection. They are intended to convince us that the government is doing all it can to keep us safe, but that we aren't entirely safe. The government holds out the enticing possibility that if we give it a little more power we'll be safer.
I'm traveling today. While waiting in the security line at Houston's Hobby Airport, I observed the TSA personnel trying to make the security system work.
I used to think that TSA was scraping the bottom of the barrel in their hiring efforts. But today, watching the slackjawed morons gathered like apes around the monolith, trying to figure out what they were supposed to do with the rectangular packages that the big beige box kept excreting, I had an epiphany:
If the object of the exercise is to make us feel that we are in danger and must give the government more power to keep us safe, then those people whose primary qualification is that they don't have enough brainpower to say "d'you want fries with that?" are the ideal candidates for the job!
Who Do You Want Representing You?
Fort Worth criminal-defense lawyer Shawn Matlock blogs about "criminal-defense lawyers" vs. "lawyers practicing criminal law". It seems to me that there must be a better expression to describe the latter (I'll try to find it as I write this) but the distinction between the lawyers who defend people because they have a passion for the fight (the criminal-defense lawyers) and the lawyers who represent the accused because of a business decision (V-6s?) is one with significance not just to the individuals accused, but also to a system that strives for an appearance of equal protection.
New York criminal-defense lawyer Scott Greenfield writes about the plight of the ordinary person, living paycheck-to-paycheck, who is accused of a crime. Unless he has friends or family who have or can borrow money, chances are that this person can't afford a great criminal-defense lawyer.
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