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Recent Blog Posts
Jury Nullification Meme
Judges lie to juries every day about juries' nullification power. "You must follow the law," they say.
The truth is that jurors have the right not to follow the law in a criminal case. If they think the law is wrong (that the conduct shouldn't be illegal, or that the law's punishment is too harsh) they can acquit the accused and there is nothing the government can do about it. Similarly, if a single juror thinks the law is wrong, she can hold out for acquittal and nobody can make her change her personal moral judgment. Jurors can't be punished for nullifying the law, and the government can't appeal an acquittal.
Given that the official line in the courtroom regarding jury power is - and probably always will be - untruthful, what can we as defenders do about it?
One thing we can do is take every opportunity to educate the public about jurors' rights to vote their consciences. Write letters to the editor. Mention jury nullification every time you talk to the press or give a speech to a community group. Slip it into every conversation you have:
Read...
Read owencenli's May 12, 2007 post understanding the enemy part II.
Read the comments too.
Read this post by commentator chiashurb.
These people are law students. I am heartened. There is hope.
Honoring the Dead with Destruction?
Today's big criminal defense story is this: two of Houston's best lawyers, Stanley Schneider and Robb Fickman (no good link to Robb), prevailed in the trial of a bus driver accused of manslaughter for accidentally running over and killing a 9-year-old girl. The driver was acquitted.
In a post-loss interview the prosecutor washed his hands of prosecutorial discretion, claiming, "All we ever wanted to do in this case is to let a jury decide." Never mind that it is his job to separate the cases that should be tried from the cases that shouldn't.
So what did the jury decide? According to one of the jurors, "Ninety-eight percent of the evidence pointed to [the driver] being correct. He did all he could do." (My emphasis; I wasn't there, but I will bet that the driver's first-rate defense team used that same phrase many times during the trial.)
Give Me the Darn File!
About a month ago a man hired me to replace his previous lawyer (someone who advertises extensively on the Web) on his felony (this actually happens fairly often - not everyone gets the "hiring a criminal-defense lawyer" thing right the first time). I drew up a motion to substitute counsel, got the client's signature on it, and sent it to the former lawyer along with a letter requesting that he sign the motion and return it to me along with the client's entire file "so that I [could] continue my trial preparation from where [he] left off."
He signed the motion and returned it to me within four days, but did not send me his file. I called and talked to him, and he promised to send me the file, but still did not do so. I called him again, and he promised it on a specific day. That day has come and gone, trial is coming up quickly, and I still have no way of knowing what work, if any, the previous lawyer did (operating under the assumption that the answer is "none," I'm doing everything that should have been done by him six months ago). I have asked the previous lawyer several more times for the file and had no further response.
Attorneys Making Bonds
In Texas, almost everyone accused of a crime is entitled to bail. In some counties, attorneys serve as their clients' bondsmen. This may be a good idea for the lawyers, but it creates a potential conflict of interest harmful to the clients.
Why?
Suppose that a client pays a lawyer to represent her and make her bond. The lawyer has two interests in the case: (1) defending the client; and (2) making sure the lawyer doesn't lose the bond.
Now suppose that the lawyer, in the course of his representation, learns something that makes him think the client might be less likely to continue to come to court. As a lawyer, he has a duty not to divulge that information (assuming that revealing it is not necessary to prevent the commission of a crime or fraud) or to use it to the client's disadvantage.
As the bondsman, however, he has a financial stake in the client continuing to come to court. This new confidential information makes him feel less secure in his bond. He has the choice of a) surrendering the bond, thereby using the information to his client's detriment; or b) not surrendering the bond, thereby putting his money at risk. A defendant who realizes this would rationally from his lawyer information that he thought might reflect poorly on his ability to continue attending court - the exact sort of information his lawyer might need to defend him.
Welcome International Visitors
In the past 48 hours this blog has had visitors from:
Abu Dhabi, Algeria, Argentina, Australia, China, Dubai, Egypt, France, India, Indonesia, Iran, Israel, Italy, Korea, Malaysia, Mexico, Mongolia, Morocco,Netherlands, Netherlands Antilles, Norway, Peru, Qatar, Saudi Arabia, Singapore, Sri Lanka, Sweden, Switzerland, Turkey, and Viet Nam.
(Most of these visitors come to us via the Texas State Bar, which has us as the featured blog on its blog page this week.)
I welcome these visitors. I realize that in your country, the accused probably does not have the right to a jury trial. The idea that we should be judged by juries of our peers must be as foreign to you as the idea that juries should determine suppression issues is to visitors from New York.
Here's how it works:
If the government wants to take away my freedom, it has to convince twelve of my peers that I've violated the law. The government must present witnesses to testify to my guilt. I can confront and cross-examine these witnesses and present my own witnesses. If I want to testify I can, but if I don't nobody can compel me to. If the jury finds that the government has not proven its case beyond a reasonable doubt, they acquit me. Even if my twelve peers think the government has proven its case beyond a reasonable doubt, they can concude law the law is wrong and acquit me. If they do, the government can't appeal, can't reprosecute me for the same offense, and can't punish the jurors for their decision.
A Silly Website
It is ridiculous to think that a person might choose a lawyer based even in part on a number spat out by a secret algorithm. Yet that's the premise behind startup avvo.com.
Out of a very limited number of data, Avvo's algorithm creates ratings for "experience," "industry recognition," and "trustworthiness" and assigns a number between 0 and 10 - "Avvo's assessment of how well a lawyer could represent a client" - to each lawyer in its database.
A quick check of the ratings for criminal lawyers in Houston (the area with which I'm most familiar) reveals that the algorithm is - to put it gently - imperfect. The ratings generally bear no relation to the quality of the representation provided by the lawyers. Some of the 6s should be 9s and some of the 8s should be 5s. Some people listed as having criminal defense practices don't.
Avvo seems to have very little information on most lawyers. Avvo clearly mined the Texas State Bar's website for information on lawyers; the lawyers whose information came from there only have no practice information and are generally rated in the 5s and 6s. Some lawyers - those for whom the State Bar website reflects disciplinary history - are rated very low, in the 1s and 2s. It looks like Avvo also mined Findlaw's (Westlaw) and lawyers.com's (Lexis) data; lawyers with more data have practice information and are generally rated higher than those with less. Who knows where else Avvo's initial data came from.
Quote o' the Day
"Probable Cause? Probable Cause? We don' need no steenkin' probable cause!"
-A Houston defender, arguing to the jury in a drug case that the search was illegal and its fruit should be disregarded.
Technorati Tags: criminal defense, jury trial, argument, Texas
Suppression of Evidence by Juries in Texas
I mentioned in a teaser here that in Texas we can have the jury decide contested fact issues related to the suppression of evidence.
That right comes from Article 38.23 of the Texas Code of Criminal Procedure, which says in relevant part:
(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
For example, here's a 38.23 charge to be used when there is a fact issue as to the existence of voluntary consent to search a vehicle:
Jury Sentencing in Texas
Gideon, following Doug Berman's train of thought here, asks, Why don't we have jury sentencing in non-capital criminal cases?
In Texas, we do have jury sentencing in non-capital cases. The accused can elect before trial to have the jury set punishment in the event of a conviction (and we get jury trials for everything). If the accused doesn't elect jury punishment the judge sets punishment. In almost all felony cases the accused chooses jury punishment.
(Here is a law review article on felony jury sentencing. According to the article, Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia allow juries to set punishment in felony cases.)
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