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Guest Post: Robb Fickman on Judicial Disrespect
This post was contributed by Robb Fickman . Robb is a criminal-defense lawyer and a leader of the Houston criminal bar. He is a past president of the Harris County Criminal Lawyers Association.
No disclaimer applies. I agree with Robb. <hr />Sometimes it takes me a couple of days to get steamed about something.
Last Thursday we honored all of our fallen colleagues. The event was well-publicized and all the County and District Criminal Court judges were invited.
To my knowledge, out of 37 judges only Judges McSpadden and Ellis were in attendance. (There may have been another judge that I didn't see.)
Bottom line: we invited the judiciary to attend our memorial ceremony and they snubbed not only us but also our fallen colleagues.
After three decades I am used to certain state judges and certain court staff treating me rudely. I can live with that. What I cannot abide, what none of us should abide, is the utter shameful disrespect that the judiciary showed our fallen colleagues.
Safe Enough?
In an editorial that newspapers across the US (including the Houston Chronicle, where it made the front page), mistaking it for a news story, picked up and published, AP editor Lisa Benac leads off with:
We are safer, but not safe enough.
The first part, if true, is a fact. The second part is a) an opinion that b) is controversial and c) is wrong. (You see, newspaper editors, how easy it is to tell the difference between fact and opinion? (a) and (b) are facts; (c) is my own opinion.)
Is it true that we are safer now than we were on September 11, 2001? Back in 2004 it was not true: more ("non-combatant") Americans were killed by terrorists in the three years after 9/11 than in the three years before. But in 2009 the US saw 23 "civilian" casualties from terrorism, and in 2010 saw 24; those numbers are lower than in 2000, 2002, or 2003, but higher than in 1998 and 1999. (2009 and 2010 numbers come from the Department of State's Country Reports on Terrorism; 1998-2003 numbers come from Patterns of Global Terrorism. Numbers for intervening years are not easily teased out. All of the numbers are small compared to, say, casualties from tobacco, alcohol, or motor-vehicle accidents.) Whether we count military casualties or consider them mere cannon fodder, it's not clear whether we are safer or not. U.S. Non-Combatant / Civilian Terrorism Casualties Year Killed19981219996200023200126892002272003352004 2005 20065620071920083320099201015
A Public-Service Announcement, and What Did Dennis Baranowski Know?
If you get a "Statement" from UST Development, Inc.-an invoice like this one:
Ken at Popehat got the same statement; he didn't pay it, but he's calling UST Development (and likely its principles, David Bell and Branden Tomeric Bell) to the attention of federal authorities who prosecute fraud cases.
This looks like a solid federal mail-fraud case: UST Development is using the mail to try to obtain money by false pretenses. Nail down who was involved in the conspiracy, count the number of letters sent, and calculate a guidelines number under 2B1.1.
Ken discusses briefly why the scammers' apparent defense (that the statement says that it is not a statement for services rendered "but for preventative maintenance") doesn't work.
Soliciting Criminal Clients by Mail After 1 September
Professor Neil McCabe, who markets himself as "the smartest lawyer John O'Quinn knew"
In comments and in the blog post, Professor McCabe has, like any scary-smart (or even scary smart) lawyer, decided what result he wanted, and then massaged the law to fit the facts:
Of course, a person who brings a lawsuit under Government Code Section 82.0651(c) against an attorney for sending a solicitation letter can argue that (1) the early-dismissal statute is not effective until the Supreme Court generates procedural rules implementing it or (2) Section 82.0651(c) itself provides a "basis in law." The counter argument is that there is no basis in law, because the statute clearly is unconstitutional, given prior rulings, even though those rulings are not binding precedent for Texas trial courts.
The counterargument goes to the second argument; Professor McCabe doesn't counter the first argument: the early-dismissal statute is not effective until the Supreme Court generates procedural rules implementing it. But you don't have to take the statute's word for it; in Professor McCabe's words, Section 22.004(g) of the Texas Government Code "commands the Texas Supreme Court to develop rules allowing early dismissal of a case...."
From the Archives
I started this blog on 19 March 2007, but I started blogging on 13 August 2004. I never really found my voice during that go-round, and I abandoned the effort in June 2005.
I've moved those posts (all seventeen of them) over to Defending People. Here are the 2004 posts, and here are the 2005 posts.
The motivation was that, with the tenth anniversary of 9/11 approaching, I felt a need to link to this post.
Enjoy.
TSA Thug Thedala Magee Threatens Suit
Have you ever noticed that when the mainstream media produce stories about TSA agents humiliating the elderly, abusing children, and otherwise behaving badly, they hide the identity of the agents? Why do they do that? These are public employees, paid with public funds, in positions requiring them to deal with the public. When they violate the public trust, they should be personally accountable like any other bureaucrats.
Deference to the sensibilities of TSA goons is contrary to the spirit of the times. Americans don't want wrongdoers' identities protected, even-if not especially-when the wrongdoers are government employees.When Amy Alkon of the Advice Goddess blog was assaulted by a TSA agent at LAX, she wrote about it, and she named the agent: Thedala Magee:
Nearing the end of this violation, I sobbed even louder as the woman, FOUR TIMES, stuck the side of her gloved hand INTO my vagina, through my pants. Between my labia. She really got up there. Four times. Back right and left, and front right and left. In my vagina. Between my labia. I was shocked - utterly unprepared for how she got the side of her hand up there. It was government-sanctioned sexual assault.
Racist Cops: Thanks for the Reasonable Doubt!
When Chicago criminal-defense lawyer Marcus Schantz got a not guilty from a jury last week for a guy accused of assaulting a couple of cops, I was pleased for him. It looked like a bad case; and any time we put the government to its proof and the jury agrees with us, it's worth an attaboy or two.
Not everybody agrees.
Schantz, via Twitter, pointed out this post and its comments, on the Detective Shaved Longcock (yeah, really) cop blog.
Sample anonymous comments:
Dude is beyond redemption. I summon by the blood of Jesus the spirit of George Lincoln Rockwell. We got business to attend to. Time to clean out the roaches.
(George Lincoln Rockwell was the founder of the American Nazi Party.)
It would be terrible if this nigger were to be found in an alley with his throat cut.
and
Whats this niggers address?I suddenly have the urge to burn a cross...
Then another post, same blog. More overtly racist comments from anonymous commenters. For example:
Two Lawyers Behaving Badly
Allentown, Pennsylvania prosecutor Juliet L. Dowling and criminal-defense lawyer David A. Nicholls get in an argument outside the courtroom. Dowling says that Nicholls has a conflict of interest, and tries to bar him from the courtroom. Nicholls yells, cusses, and points his finger at Dowling. Nicholls gets charged with disorderly conduct for his trouble.
Nicholls, sixty-two years old, should be better able to control himself. There's no good excuse for abusing the prosecutor. But Dowling, no spring chicken herself, should be able to take a little abuse without filing criminal charges.
Outsourcing and the Virtual Law Practice
Why don't we all join Rocket Lawyer, enabling it to provide more forms to more clients for cheaper?
Because, like Sam Glover says in the comments, we're not selling forms, we're selling our good judgment. Criminal-defense lawyers-by way of example-earn our reputations in trial, but we earn our keep helping clients decide whether to go to trial. ("Knowing where to tap: £99.") It's not just the trial lawyers or the litigators; good transactional lawyers are selling their good judgment as well: their clients count on them to help them make tough calls to avoid litigation, or to better their positions in the event of litigation.
When people are making tough decisions, they often need to talk in person with their trusted advisors. There is magic in face-to-face communication that is lacking from all other media. When they are betting the company, or their future, or their life savings, people need that magic.
CCP 21.15
One of my favorite statutes, Texas Code of Criminal Procedure Article 21.15:
Art. 21.15. MUST ALLEGE ACTS OF RECKLESSNESS OR CRIMINAL NEGLIGENCE. Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.
So when the State charges you with assault by recklessly causing bodily injury, they can't just plead that you recklessly caused bodily injury; they have to plead the acts that were reckless-acts "from which," in the words of the Court of Criminal Appeals in Smith v. State (on which I sat second at trial), "a trier of fact could infer the culpable mental state of recklessness."
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