Posted on June 27, 2007 in Uncategorized

The lead story in the Houston Chronicle this morning was this: Mayor White Mobilizes Aid for Texas Veterans. "One in 11 soldiers wounded in Iraq and Afghanistan," begins the article, "is Texan." (Texas and Washington have lots of servicepeople because they have no income tax.) Unless Texas soldiers are particularly injury-prone, this probably means that one in 11 soldiers serving in Iraq and Afghanistan is Texan, one in 11 soldiers suffering from PTSD is Texan, and one in 11 soldiers suffering from traumatic brain injury (TBI) is Texan.

Practicing criminal defense law in Houston, I've represented many soldiers and Marines, both active and veterans. These folks, many of whom have suffered grievous visible and invisible injuries upholding their oath to defend the Constitution, are harshly treated by many in the criminal "justice" system. Some of the jurors who deal most harshly with our servicemen claim to "support the troops." It has occurred to me that some who say they "support the troops" what they mean is that they "support the government," and that this support for the government carries over to a jury trial, in which they are happy to go along with whatever draconian measures the government proposes.

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 Posted on June 27, 2007 in Uncategorized

A commentor to my May 13, 2007 Bad Voir Dire / Good Voir Dire post wrote:

I'm a prosecutor, but those were good points. I'll try to implement them in my next trial.

I suspect that part might have been intended as a friendly jab. The fact is, though, that I'd rather try a case against a prosecutor who can perform a more-competent-than-usual jury selection. What lawyer wouldn't want to get more information from the panel, and have the panel more warmed up, before he stands up and starts to talk to them?

My prosecutorial friend also wrote:

Do you think it's wise to ask the jury can they think of any reason why the defense lawyer may not want his client to testify? What if they say "Because he has a record"?

I think he might not get the point of "bad" answers. I would ask a question in return: what if the defense lawyer doesn't ask the panel for reasons the defense lawyer might not choose for his client to testify? Does the fact that none of the potential jurors are given the chance to say "Because he has a record!"; mean that they aren't thinking it?

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 Posted on June 27, 2007 in Uncategorized

More ammunition for those fighting to replace ad hoc counsel appointment systems (like Harris County's) with properly-organized and funded public defenders' offices: Gideon calls our attention to Princeton University student Radha Iyengar's analysis of the relative performance of federal PDs and lawyers appointed to federal cases under the Criminal Justice Act (CJA). The result of the apples-to-apples comparison (indigent defendants were randomly assigned a PD or a CJA lawyer) should come as no surprise to federal criminal-defense lawyers: federal PDs get better results for their clients than ad hoc appointed counsel.

Technorati Tags: criminal defense, federal, public defenders, CJA

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 Posted on June 26, 2007 in Uncategorized

Today Avvo has a post today entitled Lost. Avvo categorizes the post as "How to Choose a Lawyer," but it's really about Avvo's research into people's experiences hiring lawyers. Among other things, Avvo asserts that

Over the past two years, 25 million Americans were faced with a situation in which they considered hiring an attorney, but they didn't because they didn't know how to choose one.

I'm pretty sure this doesn't apply to criminal-defense lawyers. People who "consider" hiring defenders figure out how to do so.

Avvo's Lost post refers to Scott Greenfield's "Good Questions Coming from the Avvo Debate" post. In that post Scott describes several methods of choosing a defender:

Referral from friend;Personal appointment;Referral from another lawyer;Price shopping.

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 Posted on June 26, 2007 in Uncategorized

I wrote here about the implicit cost-benefit analysis involved in deciding whether to plead guilty or proceed to trial. As I noted, describing this analysis in mathematical terms is an approximation of a vague and fuzzy calculus.

There are other ways to describe the plea-or-trial decision-making process. One is as an commercial transaction: when an accused pleads guilty she gives up one thing in exchange for another. What she receives is certainty - she knows what she will be convicted of, and what the penalty will be. In exchange, she gives up the chance of a better outcome at trial. When she sees herself receiving more value than she has to give up, he will rationally plead guilty.

Often the outcome with a plea agreement is better than any outcome but an outright win at trial. For example, if the minimum sentence after a conviction is 25 years and the State offers 15 years, the only way to get a better result at trial is to win the whole case. (According to a coldblooded cost-benefit analysis, an accused who expects to get 25 if he loses at trial shouldn't give up more than a 40% chance of winning the whole case in exchange for a 15-year sentence.)

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 Posted on June 25, 2007 in Uncategorized

Stephen Gustitis and Robert Guest blog about lawyers' fees. Robert writes, "The more you charge the less clients you get. However, those clients get personalized service and better reperesentation. Never compete on price. Compete on quality and service."

I agree - in part. I blogged here about ethical fee-setting and the idea that it might be unethical for a lawyer to charge too little to an accused.

Stephen quotes Scott Greenfield: "The only way to defend from a position of strength is to think ‘outside the box' to find innovative approaches that relate to the specific set of circumstances for each defendant." Stephen adds, "To ‘think outside the box' the criminal-defense lawyer needs time. The fewer cases he handles at a premium fee, the more time the lawyer has to address specific client needs." What the accused is paying for when she is hiring a criminal-defense lawyer is, in large part, creativity. All else being equal, the creative lawyer is going to win more cases than the inside-the-box lawyer. I blogged about creativity in criminal defense practice in these posts:

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 Posted on June 25, 2007 in Uncategorized

This morning (Sunday) a friend called me; one of his friends had gotten himself arrested in Austin, Texas last night. I told him I would look into the matter. I looked up fellow blawger Jamie Spencer's phone number, and dialed it. Jamie answered the phone himself.

Friends, I know that you like to have your receptionists and secretaries answer your phones for you. I know it makes you feel important. I know it makes you feel efficient. I know it helps you avoid the unpleasant feelings you sometimes get from talking to the people who are paying your bills.

But when I have a client who needs a referral in Travis County, out of the 143 members of the Austin Criminal Defense Lawyers' Association I will choose the one guy who I know answers his own phones on Sunday morning. And I'll bet that most clients feel the same way.

Technorati Tags: choosing a lawyer, criminal defense

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 Posted on June 23, 2007 in Uncategorized

Do you doubt that prosecutors don't have to be brilliant to win trials? Check this out:

Oh, and the prosecutor had a PowerPoint for his closing arguments. His closing arguments, frankly, annoyed me so much they made me want to acquit. It was really, really bad, but not surprising, considering that in his opening statements, we got a riff on "stop asking questions of the government, so we can keep you safe!" The prosecutor was probably one of the main factors that made me want to find the guy not guilty – but when we sat and went through the evidence, I got over it.

I feel for the prosecutor... and for the defender. Ouch.

Technorati Tags: jury trial, prosecutors

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 Posted on June 23, 2007 in Uncategorized

The existence of silly website Avvo.com has raised the excellent question of how people are to choose lawyers, if they can't reliably do so based on Avvo's 0-10 ratings (and they can't). Scott Greenfield blogs about some ways to choose a lawyer. I'll write more about the best way to choose a lawyer (specifically, a criminal-defense lawyer) soon, but for now I call your attention to the dangers of hiring a lawyer who dabbles.

Here is a post from a guy, Travis Corcoran, who got a threatening phone call from a lawyer, Robert Tourtelot. Copyright law was the context). Corcoran, who is in the business of renting out how-to videos, knew more about copyright law than Tourtelot, and knew it. He explained to Tourtelot why the lawyer was wrong. There was more back and forth, but eventually Corcoran sent an email to Tourtelot's client, saying in part:

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 Posted on June 22, 2007 in Uncategorized

As defenders, we often have to help people decide whether to plead guilty or proceed to trial.

Sometimes the question can be simplified to this: how does the assured outcome of a plea compare to the accused's punishment if we do not, multiplied by the proability that we will not?

If the probability of prevailing at trial is 50% and the punishment if the accused loses will be 10, then the accused will rationally accept a plea resulting in punishment of less than 5.

I use numbers without units - "10," "5" - for the punishment because factors other than the length of the sentence might affect the severity of the punishment. Different punishments might have subjective costs to an accused that are not directly proportional to the length of the sentence. For example, to an accused who is in very poor health there might not be any perceptible difference between two years in prison and twenty - either might be a death sentence. Similarly, the damage done to an accused's reputation by the mere fact of a conviction may be so great that the possibility of more jail time is of relatively little importance - a conviction with probation might be a 9 and a year in jail might be a 10. To some accused of capital murder, a death sentence might seem preferable to life in prison with no hope of parole.

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