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Recent Blog Posts
Pro Bono
A few recent blog posts about pro bono representation...
• Carolyn Elefant's (Legal Blog Watch) recent post on Arbor Hill v. Albany, in which she comments on (among other things) my post about that case:
The problem here was that Gibson Dunn took the case pro bono, and as such, its fee agreement may not have provided for compensation by the plaintiff - which is why the court alluded to nonmonetary benefits.
• Scott Greenfield's post, The Meaning of Charity, on his Simple Justice blog:
I do, on rare occasion, represent a client free of charge, but I reserve the right to pick these clients with great care. I receive requests constantly from defendants who decry their innocence and poverty, but to accept such cases would be to strangle my practice.
Search Terms
To the person who came to Defending People after googling "catheter blog fetish": I hope you find whatever it is you're looking for.
Technorati Tags: blogging
Is Trial Your Last Resort?
I sometimes hear defenders talk about trial as "the last resort" in a criminal case. I prefer to think of a jury trial as the default resolution of any criminal case, and of a guilty plea (with its abandonment of constitutional rights) as the last resort, to be engaged in only if the chances of prevailing at trial are so small that they're not worth the risk of losing.
What do you think? let me know in comments.
Technorati Tags: jury trial, philosophy, constitutional rights, trial
Good Morning! I said, GOOD MORNING, CLASS!
I blogged here about lessons learned from a prosecutor's voir dire. Defender Extraordinaire John Gioffredi of Dallas left this comment, which I thought deserved a little bump so that others could appreciate it:
I wonder what would happen if, after hearing the state's nauseating double "GOOD MORNING," the defense started it's voir dire by asking:"Before I get started, I'd like to ask you a very simple question. I've wondered about this for years, and it's never dawned on me to ask it until today."Remember the very first thing out of the government lawyer's mouth this morning? When the government lawyer asked you to repeat "good morning" with more enthusiam than your initial response?"Did anyone find that to be cute, or original? Did it make any of you feel like you were being patronized, or being treated like a child in school? Why do you think they do that?"Did any of you find that opening to be somewhat offensive, or condescending, or even inappropriate, considering the serious nature of our business at hand? Wouldn't that be more appropriate at a seminar, or a pep rally?"Was the prosecution's introduction original and inspiring to you, or just cheesy? I've honestly wondered about this for years, since it seems that every government lawyer does it on every single case. Does anyone besides me think an opening like that is inappropriate and cheesy in this type of serious situation?"It's OK to answer honestly. That's what jury selection is all about – being honest. The prosecution makes that opening in every trial, so I think we'd all really like to know."Does anyone think that the government should probably just skip that technique and get straight to the point?"Well, instead of trying to manipulate you into shouting "good morning" for me louder than you did for them, let's talk about some really important issues in this case..."You'd have to be very cautious in choosing the right case to try this, and it could easily backfire on the defense, but you could sure irritate the spit out of the prosecution...
Bad Expunction News
Today in State v. Beam the Texas Supreme Court held that a dismissed misdemeanor case cannot be expunged until the limitations period expires. That means that the many people we represent whose misdemeanor cases are dismissed will have to wait until two years after the alleged offense (according to article 12.02 of the Texas Code of Criminal Procedure) to get their records cleared. Particularly badly affected are those whose expunction cases are now pending - they paid to file their petitions on the (then-correct) assumption that they were entitled to expunction, but the Texas Supreme Court has yanked the rug out from under them.
The language that the Supreme Court was interpreting follows:
Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:....
More on Scaled Questions in Criminal Jury Selection
Yesterday I was fortunate to hear HCCLA member Chris Downey speak for 40 minutes about the use of scaled questions in jury selection in a criminal trial, something that I wrote about here and here. Chris proposed three scaled questions we can use in all criminal cases:
How would you rate your feelings about whether the client as he sits up here, is guilty?
How would you rate the weight you would give the testimony of a person wearing a badge keeping in mind that I am asking you to make this determination without regard to training or experience-but solely out of respect for the badge?
This Court will instruct you that the State has the entire burden of proof in this case and they must prove the allegation beyond all reasonable doubt. The defendant does not have to offer any proof or even testify. The presumption of innocence alone is enough to acquit him. However, how would you feel as a juror if Mr. Client did not testify?
Quote of the Day
We are a nation that talks the "New Testament" talk, but walks the "Old Testament" walk.
Anthony C. OdiorneActing Chief Public DefenderWichita County, Texas
Spreading Safety or Fear
Scott Greenfield, in Simple Justice, writes here about the TB-infected man who, despite being on the watch list, made it through customs and into the U.S. Scott suggests this theory of airport security:
Why is it they check the bottoms of my shoes, and won't let me go through the magnetometer, because I have a fourth ounce of shampoo in my possession, but TB Andy breezes through? If you ever needed proof that this whole border crossing nonsense is a palliative to make the public believe they are safe from terrorists, here ya go. It's designed to make average, ordinary and utterly non-threatening Americans (of whatever race, color, national background, etc.) feel better through harassment. That's right, safety by annoyance. The more they annoy, the safer we feel. God bless America and Homeland Security.
I think Scott has it backwards. All of the ineffectual and silly airport "security" measures are not intended to make us believe that we are safe. When has a government ever benefited from its citizens thinking that they are safe? People who feel safe start looking critically at how free they are.
The Domestic Violence Assault Case
Domestic violence assault cases often include complaining witnesses (we don't call them "victims" because the question of whether they are victims is the question of whether our clients assaulted them) who have changed their stories after making reports to the police.
The Harris County DA's office has an entire division - the Family Criminal Law Division (FCLD) that handles allegations of family violence with recanting accusers. FCLD prosecutors believe that these accusers were all telling the truth initially and have changed their stories to protect their men (the accusers are usually women; the accused usually men). Often, however, they were lying initially and have changed their stories to tell the truth. In most cases, the truth is somewhere in between - the initial accusation was neither entirely true nor entirely false. Many domestic violence assault arrests arise from consensual tussles that escalated beyond what the parties intended, and many domestic violence calls are made just to get the accused out of the house.
HR 916 – a Dissenting Voice
It's hard to find anyone in the blawgosphere who's not in favor of HR 916, the John R. Justice rosecutors and Defenders Incentive Act of 2007. Gideon calls it "excellent news," as does Capital Defense Weekly. PD Stuff calls it "absolutely fantastic." Jeri Merritt calls it "good news." Fight ‘Em ‘Til We Can't urges us to ask our senators to support the senate equivalent.
The Wretched of the Earth says: "Just think, without good prosecutors, a guilty murder or rapist could walk. And equally disturbing, without good public defenders, innocent people without the money to pay for a lawyer languish in jail or prison."
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