Posted on April 13,2007 in Uncategorized

Voir dire is the process of selecting (or, more accurately, deselecting) a jury. When I begin a voir dire, I don't have a plan; I know what topics I want to discuss, but I don't know how I'm going to discuss them. At some point, I usually like to ask a question that everyone has to answer. I like it to require some thought and reveal something about my potential jurors. I've been experimenting with "scaled" questions - questions that have a defined range of answers - rather than either "yes or no" questions or open-ended questions.

How's this for a question for potential jurors in a criminal case?:

Do you strongly agree, somewhat agree, somewhat disagree, or strongly disagree with the following statement?:

"I am who I am because of circumstances beyond my control."

Technorati Tags: criminal defense, philosophy, voir dire

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 Posted on April 13,2007 in Uncategorized

The mother of potential client called me the other day; she had been looking for a lawyer on the web. She had called one of the "nationwide" criminal defense corporations (you know the ones - they have names like corporations instead of groups of human beings). She reported to me that they told her that for $15,000 they would give her son a 99% chance of beating his case. (I had already quoted her a reasonable and substantially lower fee, and told her the truth: that nobody could truthrully guarantee a result, but that I was familiar with the judge and I thought we might have a good chance on the facts as she described them if we approached the problem in this-and-such sort of way. A lawyer can never truthfully say, based only on a telephone conversation with the client's mother, that there is only a 1% chance of the client losing.)

So that got me thinking: what kind of varmint tells the mother of a kid in trouble that for $15 grand he'll give her kid a 99% chance of skating? 99% is a weasel number - it's high enough that the potential client sees it as a guarantee, but low enough that, if things don't go exactly the way the client wants, the lawyer can shake his head and say "I never guaranteed we would win."

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 Posted on April 13,2007 in Uncategorized

Clay Conrad commented here on my post about State's Rights. Clay questions my statement that "rights cannot be maintained using force:" "if someone seeks to kill me, do I not have a right to defend myself, thereby maintaining my right to live through violent self-defense?"

I'm not sure Clay is wrong, but I think he and I have different things in mind. I may have spoken inartfully.

Using my mugger-and-granny analogy, if Granny is better armed and better prepared than the mugger, she has the power to assert her right to keep her purse. Clay would say that she is maintaining her right through violence.

But whether Granny has the power or not, she still has the right to keep her purse. So she doesn't maintain the right using force; even if she has no remedy, she still has the right.

(An aside: I see the Second Amendment as an effort by the founders to make sure that the people have a remedy when the government makes concerted efforts to deprive them of life, liberty, and the pursuit of happiness.)

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 Posted on April 12,2007 in Uncategorized

One of the unintended side effects of the Iraq war is that many of our healthiest young men and women are coming home with traumatic brain injuries. Traumatic brain injury, or TBI, has been called the signature wound of the Iraq war.

When I learned (from hanging out with lawyers who represent injured people) about the devastating personality changes that can result from TBI, I realized that in the next 10 or 20 years we are going to see a lot of Iraq War veterans entangled in the criminal justice system because of TBI and PTSD. So I was glad to see that the Centers for Disease Control have recognize the problem and published a brochure introducing the problem: CDC brochure on TBI.

I'll be blogging more on TBI in the criminal justice system.

Technorati Tags: criminal defense, TBI

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 Posted on April 12,2007 in Uncategorized

As I was leaving the Harris County Criminal "Justice" Center today after a couple of intense (but ultimately successful) struggles on behalf of clients, I had this thought:

How many people would give everything they have to know that they were going to walk out of this building at the end of the day?

Those of us who get to walk out of the courthouse at the end of the day are very fortunate indeed. Every day that we walk out of that building and go home to our families is a very good day.

Technorati Tags: criminal defense, lawyers

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 Posted on April 10,2007 in Uncategorized

Minion of the stateImprisons fellow humans.Is the clapping of one handHer Buddha-nature?

Technorati Tags: law, lawyers, poetry, prosecutors, Zen

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 Posted on April 10,2007 in Uncategorized

Outside the Peachtree Street jail in Atlanta there are bronze plaques inscribed with poems written by inmates. Here is my favorite:

Inside the prisonThere is a prisonInside the person.

Technorati Tags: poetry

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 Posted on April 10,2007 in Uncategorized

My explicit exploration of alternative trial technologies started, believe it or not, with "The Game: Penetrating the Secret Society of Pickup Artists" (Neil Strauss). Jennifer bought it for my dad, and it was such a well-packaged book (black leatherette binding with red ribbon page marker, like a Bible) that I read through it. Reading it, I thought "what works to pick up women should work to influence juries. This led me to "Frogs into Princes: Neuro Linguistic Programming" (Richard Bandler, John Grinder). I had read about hypnotist Milton Erickson, so I went back from NLP to "My Voice Will Go With You: The Teaching Tales of Milton H. Erickson, M.D." (W. W. Norton & Company). I bought and explored a stack of other NLP / hypnosis books, but these are the ones that I recommend as a starting point for an exploration of deliberate induction of trance states.

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 Posted on April 09,2007 in Uncategorized

H.L. Mencken wrote:

Every normal man must be tempted at times to spit upon his hands, hoist the black flag, and begin slitting throats.

That's a pretty good description of my mood when I have a trial going on: the Jolly Roger is flying from the mainmast and I'm knee-deep in gore. It's not a bad feeling.

There's something wonderfully antisocial about trying a criminal case - for a few hours / days / weeks very little matters other than the opinions of the twelve people in the jury box.

Today I was set for trial in a kilo case (that's shorthand for a drug case involving a kilogram or more of cocaine) in state court. The facts weren't good, but my client was willing to take a shot at trial... until, with a jury panel in the hall, the State finally made a plea offer that my client could accept.

Getting out of trial, while it's often a relief, is almost always a bit of a letdown as well.

Technorati Tags: criminal defense, jury trial

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 Posted on April 07,2007 in Uncategorized

A felony judge told me the other day that one of the factors she considers in deciding whether to give a person probation is whether the person can pay whatever restitution might be due to the complaining witness.

The Texas Constitution forbids imprisonment for debt. I pointed out to the judge that putting someone in prison because he couldn't pay restitution would violate the Texas Constitution. "It's just one factor I consider," she said. Well, sure, but if there are two identically situated people who differ only in their ability to pay restitution, the one who is being imprisoned because he fails the restitution test is being imprisoned for debt. "There are never two identically situated people, Mr. Bennett," she said. Of course there aren't, but the point is that if financial status is a factor, then a person is liable to be imprisoned because of his inability to pay. This is imprisonment for debt.

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