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Recent Blog Posts
Intellectual Property?
A friend who's a great criminal-defense lawyer in Collin County (and a former public defender and, before that, a former prosecutor) read my blog and asked me for permission to "steal" some of my writing for his website.
My first reaction was that my ideas aren't my protected property. After all, lawyers copy each other's material all the time. When I write a brief or a motion that works, I expect that other lawyers will incorporate my research and writing into their own briefs and motions. When I have found, something that will help my clients in a brief or motion that someone else has written, I have had no qualms about incorporating it into my own work.
Then I happened upon this article about Pham v. Jones. In that case, Michael Pham, a Houston "letter lawyer" who gets about 15 new clients each week (95% of his new business) at between $100 and $300 per misdemeanor and $500 and $750 per felony, sued Raymond Jones, another letter lawyer with identical rates, for sending out a letter and brochure substantially similar to the letter and brochure that Mr. Pham would send to potential clients.
More on Creativity
When a potential client comes in, charged with his first misdemeanor, and says, "I did what they've accused me of. They've got me. I don't have any defense. I just want to plead guilty and take probation," I will generally tell him something like this:
If that's what you want, you should probably hire someone else. I come in to every case looking for a way to win it. Paying me just to get you probation would be a waste of your money and my talent. I won't let you do it.Sometimes people sitting in that chair change and saying what you're saying change their minds and decide to hire me to try to find a way to beat their case or get them a better resolution than a probation that will stay on their record forever. When that happens - when they go ahead and hire me - about half the time I find a way to beat their case. Entirely.
This is true because I apply my creativity to every case.
You would be amazed at the many ways that the State's case can fall apart when a defender investigates it and researches the law and uses his imagination. (For example, even with all its lawyers and all their computers the Harris County District Attorney's Office manages to screw up virtually every charging instrument for criminal trespass.)
The War on Drugs
How would you measure the success of the "War on Drugs?"
A DEA agent I know who has been fighting this "war" for more than 20 years has an answer: compare the quantity and price of drugs on the street now with the quantity and price of drugs on the street now. By this measure, he says, we're failing: there's more cocaine available no, at lower prices, than when he started.
He and I agree that this is a good reason to reconsider what we're doing: I think we should legalize drugs; he thinks we should start executing drug dealers.
Technorati Tags: DEA, drugs, federal, war on drugs
Where are the Women?
In my survey of Houston criminal-defense lawyers' advertising, I've noticed that not many women's websites pop up. Now, I know that Houston has lots of great lawyers who are women, and I wonder why they don't turn up in Google and Yahoo searches. At any rate, here are three:
I know, that's four lawyers. But Lisa and Judy have their office in Conroe, so I count each of them as half a Houston lawyer.
Technorati Tags: criminal defense, lawyers, Houston
Trust
For years my advice to people looking for a criminal-defense lawyer has been this: "find someone that you can trust, and then find a way to pay him or her." Since I started saying that publicly, lots of other criminal-defense lawyers have put up websites suggesting that you should trust them for one reason or another.
You can't decide to trust someone because he tells you to. In fact, experience often teaches us that the last person we should trust is the person who asks us to. You can't trust someone based on his resume, either - trusting someone isn't an intellectual decision, it's an emotional decision. Trust comes from your gut.
You can't decide which lawyer you are going to trust with your freedom without talking with as many of them as you can stand to - preferably while looking them in the eye.
Technorati Tags: criminal defense, choosing a lawyer
Good Advice
A Houston Police Department homicide detective wrote the following in the report of the investigation of a shooting death:
I knew [the accused] had an attorney, but he never invoked his rights and as a thorough investigator I thought I would at least try to talk to [him] and I also knew the booking information needed to be filled out. I went in the room to interview him and asked him if he wanted to talk. He said that he wanted his attorney. He kept repeating himself. He then tried to get up out of his chair and was told several times to sit down that he still needed to give information for the booking blotter. Once again he disobeyed the order to sit down and he got out of the chair and told me to just take him to jail he was done. Again, he was told to sit down and he did not. I then applied my thumb to a pressure point on his chest and told him to sit which he complied. Once the information was gathered for the booking blotter he was handcuffed and transported to the jail. He did happen to see [an acquaintance] as he was walking out and in Spanish he told him ‘do not say a word.'"
Federal Drug Conspiracies
The closest thing to a thought crime that we have in America today is a federal drug conspiracy.
A conspiracy, generally, is an agreement to commit a crime. The crime itself (the "substantive offense") does not have to be committed for the conspiracy to be formed.
For most offenses, people cannot be convicted of conspiracy unless one of the conspirators (the people agreeing to commit the crime) performs an "overt act" in furtherance of the conspiracy. For example, if Joe and Fred agree to rob a bank then neither has committed a crime. But if Joe then goes and buys two ski masks (or cases the bank, or performs any other act in aid of the conspiracy) then both of them have committed the crime of conspiracy.
A conspiracy to commit a drug offense, however, is committed as soon as two people agree to commit the offense. No overt act is required. (U.S. v. Shabani). If Joe and Fred agree to go to Mexico to buy a pound of marijuana and smuggle it across the border, they have committed a crime. It doesn't matter that they had no way to actually buy the marijuana.As it happens, the maximum penalty for most federal conspiracies is five years. 18 USC 371. But the penalty for a conspiracy to commit a controlled substance offense is the same as the penalty for the substantive offense. So a person who is convicted of agreeing to commit a crime is punished as though the crime had actually committed.
Former Prosecutors
I still see criminal-defense lawyers who used to be prosecutors advertising their time with the DA's office as though it provides a benefit to their clients. Their argument runs something like this:
First, it's better to have someone defending you who knows what attack to expect. Second, former prosecutors generally have more trial experience. Third, former prosecutors will often have more credibility with current prosecutors.
Imagine that you must choose between two lawyers who have been practicing for the same amount of time years. One spent several years in the DA's office before he left (for whatever reason) and started defending people. The other has defended people since graduating from law school.
First, the guy who has been defending people for his entire career will have dealt with "attacks" from a much larger number of prosecutors than the former prosecutor has. He'll have seen a much wider variety of prosecutorial styles, and - more importantly - will have developed counters to the various "attacks" he has seen. The prosecutor will have developed his own style and will have observed some other prosecutors' styles, but won't have needed to devise counters
Lawyer Advertising
Sometimes I browse other lawyers' websites to see what's out there. It looks like some of these folks are spending a lot of money on fancy advertising; their websites make my websites, Bennett & Bennett and Fight the Feds, look... homemade. Should I spend some money on having a professional design and maintain my websites? What do you think?
One thing I've seen other lawyers do in their advertising that just seems wrong is to list the names of clients whose cases had successful outcomes. If I had to hire a criminal-defense lawyer for something, I sure wouldn't want to think that information would ever be published on the web.
Some of my colleagues fill their websites with content by republishing press releases from the Department of Justice and other government agencies. This also seems wrong to me. The DOJ, FBI, and so forth aren't publishing these press releases for the good of the people; they're doing it to glorify themselves. These press releases name people who have been accused or convicted of crimes.
A Childlike Mind
A local criminal court judge said to me, "I could never do what you do [that is, defend the accused]. I'm not creative enough."
It is true that defending people well requires creativity. It also requires imagination, curiosity, flexibility, adaptability, and a willingness to take risks. In other words, it takes a childlike mind. A defense lawyer who thinks like a grownup, suppressing the ideas that are likely to be unpopular or unsuccessful, is often going to fail to find the best defense. (This may help explain why so many of us are lousy businessmen.)
We are all born with imaginative, playful, flexible minds (Pablo Picasso said, "Every child is an artist. The problem is how to remain an artist once he grows up."). With the help of an educational system and a culture that tell us to "grow up," most of us get over it: the childlike mind is still there, but suppressed, more or less, under a layer of "maturity."
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