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Recent Blog Posts
Who Are We?
Scott Greenfield wrote yesterday about why we don't belong in biglaw:
And then there was the bottom line. Regardless of all the things that we hold dear today, there was a baseline requirement that lawyers be gentlemen. Not hold the door open for ladies type of gentlemen, but boarding school type of gentlemen. Choate, Phillips Exeter, sort of thing.....Criminal defense lawyers don't belong in the hallowed offices of Biglaw. We don't eat properly. We sometimes speak in plain English (or even other languages). We laugh too loud, and usually come from public schools.
Scott's post reminded me of a book I read in the 80s: Paul Fussell's Class: A Guide Through the American Status System. Fussell described the social classes present in America: upper, middle, proletarian, and bottom, as you might expect, but also "category X" - people who have voluntarily withdrawn from the class system. (Read a review of the book with more detail.)
More DEA Skulduggery
I have a client, "Joe," who got shot three times by a DEA agent. DEA agents were following my client because they believed he had been involved in a drug transaction; he swapped paint with one of the agents, who shot him after the collision. Getting shot after a tussle with a DEA agent shouldn't be much of a surprise to anyone; that's not what's notable about this case. What's notable about this case is what the DEA and local law enforcement, but especially the agent who shot Joe, did after the shooting.
The shooting was investigated by deputies from the local sheriff's department. In his report the lead investigator noted that, in addition to the shooter (I'll call him "Derrick") and the shootee, there were eight witnesses to the crash and the shooting - three DEA agents and five officers from local small-town police departments.
So: the investigator turns up at the scene of the shooting, and he starts interviewing the (police) witnesses. He talks to "Will" first; Will tells him that he saw Joe strike driver's side of Agent Derrick's vehicle with the truck, causing the truck to spin out, saw Joe accelerate his truck forward and strike Derrick's vehicle in the front end, and stopped his Expedition behind the truck so that Joe could not reverse backwards and either escape or try to injure Agent Derrick with the GMC truck. As Will got out and approached the truck from the rear, he heard three gunshots. He did notice while getting out of his Expedition that Joe was continually moving in the cab of his truck and verbal orders was being given to Joe but he was not complying. Will said Derrick was wearing ballistic vest saying "police" and DEA.
Duck!
I wrote here about a proposed bill to allow prosecutors to carry guns to court. Well, it passed. Effective June 15, 2007, prosecutors with concealed handgun licenses can take their guns to court. (Text of the bill.) I'm sure some RTKBA advocates are cheering this move, but having the government's flunkies better-armed than the people is the evil the Second Amendment was intended to ameliorate.
Anyway, now said flunkies, with -zero- training in retaining their handguns, can go to court armed. Do you feel safer? I know I do.
Prosecutorial Skulduggery Uncovered by Grits
I'm glad we have Scot Henson (Grits for Breakfast) keeping an eye on those Texas prosecutors for us. Here he calls our attention to this thread on the TDCAA (Texas District and County Attorneys' Association) forum about a federal prosecutor agent trying to justify not telling the defense the fact that narcotics officers removed the license plate from an informant's car before the informant provided it to the accused. The officers then used the missing license plate as a pretext for a stop, saw the dope "in plain view" (really? The defendant was driving around with something that is obviously drugs in plain view?), asked for and received consent to search the car, seized the dopes (the drugs and the consenting driver), and "expanded on" the case.
The prosecutorDEA agent, "Bill" (mathisfield at yahoo dot com), is trying to justify concealing from the accused the fact that there is an informant in the case.
A Day in the Work of a Criminal Defense Lawyer
I wake up and start getting costumed for first court appearance with new client (he's accused of assaulting a cop). The telephone rings. A fellow criminal-defense lawyer and member of the Harris County Criminal Lawyers' Association (of which I'm president-elect) has
shown up late for court and gotten himself jailed for contempt. I add him to my calendar, send an email to the association's listserv, and print a copy of my "get out of jail free motion." I load the motion into my briefcase, grab a bottle of water and head for court. Breakfast is a breakfast bar and water in the car on the way to court.
I see my new client in the courtroom and check in with the court coordinator. Bad news: according to pretrial services, my client has tested positive for cocaine twice since making bond - once right after his release, and the second time two weeks later (a week before court). Cocaine generally shows up in urine for two to three days after use, so the judge is going to think the accused has used cocaine while on bond. That's not good. I explain to the client that he's going to be taken into custody when he answers the docket, and why, and tell him to sit tight. Then I go across the hall to the court where the lawyer is being held. Two other HCCLA officers saw my listserv message and beat me to court; the judge has already set a personal bond for the lawyer. I check with the clerk (working on the paperwork), check in with the lawyer (contentedly working sudoku puzzles in the holdover), and go back across the hall.
Most Evil Legal Principles
Gideon has started a lively discussion on the Most Evil Legal Principles. Harmless error seems to be in the lead. Check it out.
Technorati Tags: blawgs
Wrong, Wrong, and... RIght?
Young Shawn Matlock, Ft. Worth criminal-defense lawyer, writes here about his "conservative" (in American politics, code for "in favor of big government unless it gores my ox") political views.
Not to pick on Shawn, but here are some highlights of his goodnatured post:
Do I think, in general, Bennett's person convicted of trafficking 400 grams of cocaine should be punished with a mandatory minimum. Yes. Are there situations when that might not be appropriate? Of course there are. But fundamentally, I think the concept is fair.
Wrong. The fundamental concept of mandatory minimums is there are no situations when the minimum might not be appropriate. If the government has a rule that something must always be so, and you oppose the rule in some cases, you don't favor the rule. You may think 15-year sentences are fair for most people convicted of the crime (if you did, you probably wouldn't want to tell your clients that), but if you don't think they are fair in all cases, then you don't think mandatory minimums are fair.
Politics and Defense
Young Shawn Matlock, Dallas criminal-defense lawyer, writes here and here about his politics - "conservative Republican" - and his beliefs:
I am as "Law-and-Order" as anyone. I have no problem with mandatory minimums and I don't get worked up by the Sentencing Guidelines. I'm not anti-death penalty. I don't think drug offenders should get a chance at taxpayer-funded rehabilitation.
While I avoid partisan politics here, my regular readers (both of them) will recognize that Shawn's feelings about the building blocks of the retribution system are different than mine. I am not as "Law-and-Order" as anyone. I do have a problem with mandatory minimums. I do get worked up over the sentencing guidelines. I am anti-death-penalty and I don't think drug offenders should even be "offenders."
The Second Simplest Story: A Prosecutor's Account
Ken Lammers (CrimLaw) recounts how a defendant made his prosecutorial job easier by telling the jury an implausible account of his innocence. Ken quotes the First Corollary to Bennett's Chainsaw, but doesn't refer to it by name.
The Opposite of Fear
Reading Malum in Se's excellent blog about life as a public defender on the Gulf Coast of Mississippi reminded me of a book recommendation that I've been meaning to make here.
I've written before on the power of fear (here and here as well as elsewhere).
Our adversaries use fear as a weapon against our clients; it is with the power of fear that they try to convince juries to put our clients in prison. Our adversaries are prosecutors; our enemy is fear. Fear enslaves.
Though we defenders can occasionally, in the cause of freedom, invoke legitimate fears of a government run amok, we usually do not have a greater, more primal fear in harness than those invoked by the government. (This is, after all, why the government runs amok: because people are more afraid of the bogeymen summoned by the government than of the government itself.) What we do have is something that the prosecution can rarely bend to its own purposes. Because we stand up for human beings, we can invoke the opposite of fear.
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