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Recent Blog Posts
Get Out of Jail Free
Fellow defenders,
Jon Katz over at Underdog Blog writes about a Georgia juvenile PD being jailed for contempt for arguing "contumaciously" with the judge.
Did you know that when a Texas judge holds you in contempt for something you did in the course of defending someone, you have an absolute right to release on your own recognizance and a hearing before a different judge? Texas Government Code Section 21.002(d) requires it.
Here is a throwdown motion I've written to carry around in my briefcase for whenever one of my colleagues is held in contempt. You're welcome to it, of course.
Prosecutorial Memes.
There are ten or twelve stock arguments that most prosecutors learn to use and then never deviate from. For example:
Smoke and Mirrors.The "Spaghetti" Defense.Explain it to Your Spouse / Neighbor.Send a Message.Plea for Law Enforcement.
To those of us who make our livings toiling in the criminal courts, these arguments may seem trite. The fact that we've heard each of them many times doesn't help; nor does the fact that they are often used inappositely - for example, a prosecutor will call the simplest inferential rebuttal argument "smoke and mirrors." But to our jurors who haven't heard them all before, these arguments might seem fresh and original, and when the government gets to make all of its arguments after our last opportunity to speak we don't get to point out to the jury afterwards how silly their arguments are, and they may resonate.
There are simple counters to these arguments. The "Send a Message" and "Plea for Law Enforcement" arguments, for example, can be gutted in voir dire: potential jurors will readily agree that it doesn't make any sense to find someone guilty in order to send a message to the community or show support for law enforcement - if the defendant is not proven guilty beyond a reasonable doubt, she should not be convicted just to send a message or show support, and if she is proven guilty beyond a reasonable doubt, she should be convicted regardless of any message that needs to be sent or fragile law enforcement ego that needs stroking.
In Trial Today
Today I helped one of my former students (he was in one of my classes when I helped teach criminal trial advocacy at University of Houston Law Center) try a misdemeanor case - one of his first. I did my best to just butt out and give him backup and a few pointers; now I know how momma birds feel when they're watching their baby birds tumbling to the ground before they've really figured out how flight works.
Dealing With the Media and Fighting Like You Mean It.
Fellow criminal defense gladiators and gladiatrices:
On May 11, the Harris County Criminal Lawyers' Association and the Texas Criminal Defense Lawyers' Association are presenting a seminar in Houston on dealing with publicity in and out of court. I'm the course director. Our lead speaker is LCDR Charles Swift. He is joined by Rusty Hardin, Katherine Scardino, Randy Schaffer, and Houston Chronicle legal reporter Brian Rogers.
The seminar will cost $125 per person. It's been approved for 7.25 hours of continuing legal education, of which 3 hours are ethics credit. Find the registration form here.
Advice to a Young Criminal Trial Lawyer
Keep your overhead as low as possible. You need a good laptop. You don't need a secretary.
Join your local, state, and national criminal-defense lawyers' organizations, and join their listservs.
You don't need ProDoc (unless you're doing more than just criminal law). You might not even need an office at first – just a place where you can meet with your clients in private and have a high-speed internet connection. (If I had it to do over, I would consider working out of the courthouse for the first six months, spending all day there and watching other people work when I wasn't working on my own cases.)
Answer your own phone whenever possible. When people need to talk to a criminal-defense lawyer, they need to talk to a criminal-defense lawyer. You'll need a land line (so you can take collect calls from jail), but it can be forwarded to a mobile line. When you can't answer your own phone, use an answering service. Nothing says "Hire someone else" quite like voicemail.
Cops and Lawyers
Miami criminal-defense lawyer Brian Tannebaum has some interesting comments about personal relationships between Cops and Criminal Defense Lawyers.
When reading his post and the comments, it occurred to me that while cops who don't respect us and the system are dangerous to our factually innocent clients, the cops who are most dangerous to our factually guilty clients are the ones who respect and appreciate what we do.
A cop who appreciates what we do is likely to appreciate that the end does not justify the means. Such a cop is more likely to follow the rules. Following the rules, such a cop is more likely to know the rules. Knowing and following the rules, such a cop is less likely to make the kind of mistakes that we criminal-defense lawyers convert into acquittals and dismissals.
A cop who resents criminal-defense lawyers is more likely to cheat - to break the rules. Cops who are more likely to cheat are more likely to arrest people for things they didn't really do, and more likely to make mistakes - mistakes that lead to victories for the defense. (All good for business, of course, but objectionable nonetheless.)
Happy Birthday to Underdog Blog
Underdog Blog, written by Jon Katz and his partner Jay Marks of Marks & Katz in Silver Spring, Maryland is one year old today. Jon and Jay have blogged every weekday but four since April 20, 2006. That's a lot of words; Jon and Jay celebrated Underdog's birthday a day early in action by beating the government in court (again). Happy birthday, Underdog, you're an inspiration!
Technorati Tags: blawgs
DWI and Automatism
I've been glad to see the talk around the blawgosphere lately about the "sleep driving defense." The two-dollar word for this defense is "automatism." (I don't recommend using two-dollar words when talking to people, but they can add some oomph to an argument to a court.)
Here are a couple of documents from a 2005 sleep-driving case that I had. First is a trial brief explaining the law to the judge; second is a requested jury charge, asking for the specific things I thought the jury should be told about the law. (Many thanks to Denton lawyer Richard Gladden, who is farther out on the cutting edge of this issue than anyone I know, and who generously shared his work with me.)
Technorati Tags: criminal defense, DWI, automatism, Texas
Arrest Them All, Let the Grand Jury Sort Them Out!
Austin criminal-defense lawyer Jamie Spencer's blog post on the arrest of a counterfeiter's victim reminded me of several similar forged-instrument cases I have handled.
In the most egregious one "Charles" advertised some mechanical parts for sale on eBay. The high bidder sent him a cashier's check for more than the value of the parts, and asked Charles to send the balance of the money along with the parts. The buyer was overseas, but the cashier's check was drawn on a bank local to Charles.
Charles, being a fairly savvy guy, walked to cashier's check to the bank and presented it to the teller to make sure it was good. After having Charles endorse the check and put his thumbprint on it, and after copying Charles's ID, the teller asked Charles to wait a few minutes. Charles sat and waited, and about fifteen minutes later Houston Police Department officers came in and arrested him for forgery. He explained the situation to the police, who called the District Attorney's Office. The DA's office accepted charges, and the police took Charles to jail. (The moral of this part of the story: talking to the cops does not help.)In Texas it's illegal to (among other things) possess a forged instrument with a) the intent to pass it; and b) knowledge that it is forged. If I possess a forged cashier's check (or five-dollar bill) but don't know that it's forged, I'm not committing a crime.
Different Sorts of Justice
A civil lawyer would not - should not - be satisfied if his client received procedural justice but did not receive (what the lawyer considered) substantive justice. A criminal lawyer would not - should not - be satisfied if his client received (what anyone considered) substantive justice but did not receive procedural justice.
A civil lawyer fights on behalf of a human being for what the lawyer believes is restorative justice. A criminal lawyer fights on behalf of a human being against what others hold is retributive justice. Both lawyers fight against unpeople (corporations, governments, organized religions). Both are motivated by compassion.
I believe that the universe is ethically self-correcting. I subscribe to Clarence Darrow's view that we don't know diddly-squat about justice, and that we should cling to justice, understanding, and mercy. Maybe I'm wrong. Maybe some of you are competent to decide who goes to prison, who gets a needle in his arm, and who walks free. But I doubt it.
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