Posted on March 18, 2013 in Uncategorized

Unemployed Kid Lawyer writes to small-firm-owning Young Lawyer (obviously not me) after four on a Friday afternoon:

I am a recent cum laude graduate of [third-tier law school], and write to express my interest in potentially joining your firm. A colleague of yours, [Some Friend], whom I met at a networking event, recommended that I contact you about a possible position. Please see my attached résumé, writing sample, transcript, and list of references. If you have any questions or would like additional information, please do not hesitate to contact me. I look forward to hearing from you should you decide to contact me about a potential opportunity.Thank you for your time and consideration.

YL's response, an hour later (after five on Friday, now):

Do you want to come in Monday afternoon to chat?What we are looking for is someone who is considering starting a solo practice but doesn't have the capital to get an office, supplies, malpractice insurance, etc. I have a lot of overflow right now, but given that we just opened our doors last year, I can't pay someone $85k a year, salary, and benefits. Maybe soon, but not right now. On the upside, we have a nice office, conference space, etc.

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 Posted on March 11, 2013 in Uncategorized

I'm documenting this here in case someone else has the same problem. Today I wrote a ten-page response to a government motion, and when I saved it (from MS Word 2011) to PDF format it was over 5 megabytes-too big to be filed via ECF. Poking around The Google, I found a suggestion that I save it first as a Postscript file, then open that with Preview.

After trying that, and other things in the same vein, I found a better solution: save the file as a.doc file (Word '97-2004 format), then save that as a PDF, all within MS Word. Here's how a smaller document sizes out:

The document (three and a half pages) saved in.DOC format takes up 37 kilobytes; the PDF of that document is even smaller, at 27 KB.

Save it as a.DOCX instead, and it bloats to 118 KB. Save that to PDF and three and a half pages of text take up a staggering 494 KB-more than eighteen times as big as it needs to be.

Astounding. What the hell is wrong with Microsoft?

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 Posted on March 08, 2013 in Uncategorized

It's good enough for Rand Paul:

White House Press Secretary Jay Carney quoted from the letter that Holder sent to Paul today. "Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on an American soil?" Holder wrote, per Carney. "The answer is no."Paul said that was good enough for him. "I'm quite happy with the answer," he said during a CNN interview. "I'm disappointed it took a month and a half and a root canal to get it, but we did get the answer."Carney added that, "if the United States were under attack, there were an imminent threat," the president has the authority to protect the country from that assault.

(WashingtonExaminer.com)

But it is not good enough.

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 Posted on March 05, 2013 in Uncategorized

Letter from Bobby Mims of Tyler, President President-Elect of the Texas Criminal-Defense Lawyers Association, to the sponsor of Texas Senate Bill 91 and his Chief of Staff:

Senator Rodney Ellis & Mr. Brandon Dudley:I appreciate the time that you and Sen. Ellis invested in today's analysis of the SB91. We the members of the Texas Criminal Defense Lawyers Association understand and appreciate Senator Ellis' dedication to the cause of justice in Texas. Senator Ellis has an unblemished record standing on behalf of the citizen accused for over 20 years. Senator Ellis is one of the Texas patriots for justice in Texas for Texans. The 3200 members of criminal defense lawyers are unwavering in the defense of the Constitution and to the protection of due process and will not be compromised for the sake of political expediency.I am directed by the Board of Directors of the Texas Criminal Defense Lawyers Association to advise that any form of reciprocal discovery in criminal cases is unacceptable to the 3200 members of the Texas Criminal Defense Lawyers Association and to most of the criminal defense trial lawyers of Texas. By participating in a meeting of 12 independent individuals to "mark up" a proposed bill should not be interpreted in any way to endorse this measure in any form by TCDLA.Any legislation that requires the defendant to produce any evidence or disclose anything in the defense lawyer's file is an anathema to justice and to a free and independent people.You personally and in your role as a State Senator have been a bulwark against an overbearing state in protection of the most vulnerable in our society for many years. You, Senator Ellis, have stood for right vs. wrong and your reputation is stainless and your constituents depend and count upon you for justice.Recently, there has been a movement to "compromise" by certain interests groups purporting to speak for the criminal defense bar and for the accused by individuals who have an interest that is obtained by interests outside of the State of Texas. The Texas Defender Service seeks, for some reason, a reciprocal discovery bill to be passed by the legislature. They do not speak for TCDLA nor for any other criminal defense group other than themselves.I can assure you that the 3200 members through the TCDLA will vigorously oppose any such legislation and assure you that the Texas Defenders Service and their spokeswoman does not speak for the TCDLA nor any significant number of actual defenders of citizens. Indeed, they are supposed to be an resource group to assist capital defense counsel in capital murder cases. They are very good at this assistance but they rarely to trial level representation of capital cases. Their advice on capital murder defense is valuable as a resource. However, it is the criminal defense trial lawyers who have the difficult mission of defending the citizen accused in Texas courtrooms. The proposed discovery bill promoted by the TDS will make this important mission even more difficult. However, the purpose of the justice system is to convict the guilty and acquit the innocent. The prospects of wrongful convictions will be increased under this bill rather than lessened.I am requesting that you consider and vigorously oppose any measure that would mandate any rule or law or regulation that would invade the file or province of the counsel for the defendant in a criminal case. After all we must stand for something and this is the "something"!I can assure you that if a reciprocal discovery statute is adopted by the State of Texas legislature that the members of the TCDLA will do everything possible to comply until it invades the province of counsel, the constitutional rights of a defendant and the right to present a defense...and frankly this is all unnecessary merely to merely assuage the need of a certain interest group to justify their existence to an outside contributor of a grant to "clean up Texas."I can expand on the purported issue that this legislation seeks to address at your convenience...suffice it to say that this seeks to cure an ill and impose on prosecutors a remedy for something that the prosecutors of Texas are curing themselves without the intervention of the legislature...Thank you very much for your service to Texas and to justice.

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 Posted on March 04, 2013 in Uncategorized

My guy was taking a five-year prison sentence, and had arranged for a few weeks to get his affairs in order. The deal was that if he didn't show up on the appointed day the judge could consider the full (five-to-life) range of punishment.

He showed up late.

The judge gave him six years.

Me: Judge, is being five minutes late really worth a year in prison?Judge: He was fifteen minutes late.Me: Okay. Judge, is being fifteen minutes late really worth a year in prison?Judge: Yes. On sentencing day it is.

No. No, it really isn't. Sentencing this guy to six years, taking away a year of his life for such a minor infraction, was mean of the judge: shabby, ungenerous, and vicious.

Could the judge legally do it? Probably. It was a violation of our deal, but there wasn't a whole lot that I could see to do about it, other than keep my cool, hope for the judge to relent, and start planning my 2014 primary campaign for this bench.

It didn't take long. Within minutes my office paged me: the judge wanted me back in court; she had changed her mind and reduced the sentence to the agreed-upon five years.

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 Posted on March 01, 2013 in Uncategorized

Rob Kepple giving a pep talk, under the guise of "ethics," to the Harris County DA's Office:

Now let's go back to my original analogy because I really want to wrap this up and bring it around, because I really do think that it shows the difference between what we do every day as a prosecutor and what everybody else does and what everybody else thinks, and that's kind of what makes you all so special. Prosecutor exceptionalism really does mean something to me, and it is different and it takes education because a lot of people just think you're a lawyer out there trying to win cases. They really don't understand, and largely because they've been taught that if you can get away with it you're supposed to. That's kind of our culture. If you can get away with it you're supposed to and that's kind of what everybody thinks everybody else does and that's the problem you face as a prosecutor because you know that's not it.

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 Posted on February 26, 2013 in Uncategorized

Grits for Breakfast asked, in a comment, "Do you find reciprocal discovery a hindrance in your federal cases? If not, what's the difference?"

Before I answer that, let me say that the federal criminal justice system should in no wise be considered a model for other jurisdictions. Federal court is a plea machine, in which all of the rules are geared toward pressuring factually innocent people to give up their Constitutional rights and plead guilty.

That said, reciprocal discovery has never been a hindrance to me in my federal cases.

In federal court, reciprocal discovery is mandated by Federal Rule of Criminal Procedure 16(b):

(b) Defendant's Disclosure.(1) Information Subject to Disclosure.(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:(i) the item is within the defendant's possession, custody, or control; and(ii) the defendant intends to use the item in the defendant's case-in-chief at trial.(B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:(i) the item is within the defendant's possession, custody, or control; and(ii) the defendant intends to use the item in the defendant's case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness's testimony.(C) Expert Witnesses. The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if-(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications[.](2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of:(A) reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense; or(B) a statement made to the defendant, or the defendant's attorney or agent, by:(i) the defendant;(ii) a government or defense witness; or(iii) a prospective government or defense witness.

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 Posted on February 24, 2013 in Uncategorized

Texas Senate Bill 91 would provide for formal discovery in criminal cases, both from the State to the defense and from the defense to the State.

Texas Defender Service, which litigates capital cases, has come out in favor of this excrescence. Their reasoning is that, since there are District Attorneys who require waivers of Brady and other rights before they show their cards to counsel for defendants whom they have accused, or who don't show their cards at all, a statutory duty to provide discovery is required. In order to bring light to those benighted Bradleyian backwaters of due process, TDS is willing to compromise. The notion is appealing-had Michael Morton's lawyers been provided with discovery, he might not have spent a quarter-century in prison-but the compromise goes much, much too far.

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 Posted on February 24, 2013 in Uncategorized

According to Law Enforcement Targets' flacks,

I found while speaking with officers and trainers in the law enforcement community that there is a hesitation on the part of cops when deadly force is required on subjects with atypical age, frailty or condition (one officer explaining that he enlarged photos of his own kids to use as targets so that he would not be caught off guard with such a drastically new experience while on duty). This hesitation time may be only seconds but that is not acceptable when officers are losing their lives in these same situations....If that initial hesitation time can be cut down due to range experience, the officer and community are better served.

(Reason.com.)

Here's one of the targets he's talking about:

I guess there might be a situation in which the cop in the nursery facing the armed pregnant woman could be in the right. I can conceive of a scenario in which by taking the life of the woman and her baby might better "serve the community" than by holstering his gun and backing away. Such a scenario is highly unlikely, and hardly worth spending 99¢ to buy a target to prepare for.

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 Posted on February 12, 2013 in Uncategorized

Scott Greenfield writes:

[Y]ou have no idea how often someone threatens a lawsuit. As a lawyer, I'm in a better situation both to assess the merit of a claim, and if needed, to deal with it, than many other bloggers. Others are not so fortunate, leading to the misguided sense that it's the fault of lawyers that non-lawyers are constantly threatening to sue.Adding to the problem is the nature of the medium itself, spread around the country, spread around the world. Then there are the pseudonymous threats. Then there are the scrapers. Then there are the butthurt public officials, cops and prosecutors who add their threats to the mix. It never ends.

In Harris County one butthurt cop, Jacinto City Police Sergeant Dennis Walker, sued an ordinary guy, Larry Schion for complaining to Walker's bosses-Jacinto City Council-about him in public meetings.

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