Posted on August 29, 2011 in Uncategorized

Some lawyers think ambush is the better tactic; I frankly would rather not be accidentally prosecuting someone who might be innocent, and I'd rather have your insight upfront.

That's a Harris County prosecutor, responding to my pointing out a couple of the problems that I saw with the case against my client.

I wrote years ago about NLSes, or Nasty Little Surprises. An NLS is something about the defense of a criminal case that the lawyer doesn't reveal to the prosecution before trial. I always like to have an NLS.

There are lots of good reasons not to reveal to the government the holes in its case until a jury has been sworn. Not revealing your NLSes, for example, conditions prosecutors to expect NLSes. Prosecutors don't seem to care for this explanation; here's an explanation that I think is harder to argue with:

When the cops find out the problems with your case, the truth may change. And if the truth is going to change, I'd rather have it happen in front of the jury than in your conference room.

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 Posted on August 20, 2011 in Uncategorized

I was disappointed, a few days ago, when I saw that "Strike Lawyer" John Regan was the "John R." who has commented extensively on Simple Justice. I'm not going to beat up on John-even though I did say that I would-because I don't think that would help anyone. I don't know that any good ever came of a tour of Bedlam.

But I do want to talk about ad hominems, about anonymity, and about ethos. Because before John R. and Strike Lawyer became John Regan, I communicated with them both about those topics.

I formed an opinion of John R. based on his writings and on exchanges we had had. When Strike Lawyer was not John R., I had one opinion of Strike Lawyer and another of John R.

Strike Lawyer seemed to have a tenuous grasp on political reality; John R. (when I thought he was a different person) seemed a dabbler in the criminal courthouse, dangerous to those who might trust him with their future. When Regan revealed his identity and his backstory, my opinion of Strike Lawyer changed.

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 Posted on August 19, 2011 in Uncategorized

Randy MartinEric DavisJacqueline CarpenterTe'iva BellCraig StillCecelia ValentineJules JohnsonRoger Donley (Mental Health)Tanya Terry

If you are one of those anti-PD people who questioned whether the PD's Office would be able to attract any real trial talent, feel free to shut up now. Alex Bunin (and Mark Hochglaube, who I may have mentioned is the felony trial chief of the office) have done very well.

I hope that they will let Eric and Jackie keep blogging at Sustained!

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 Posted on August 18, 2011 in Uncategorized

Can someone who has successfully completed felony deferred-adjudication probation in Texas (and been in no other trouble) possess a firearm under Texas law?

Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM BY FELON. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm: (1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later...

What does that mean? Who could tell us?

I know! Let's ask the Court of Criminal Appeals! Those folks are really smart! And fair! And intellectually honest! And...

On its face, the statute seems to make it an offense for a "person who has been convicted of a felony" to possess a firearm "after conviction" and "before the fifth anniversary" of either of two events:(A) "the person's release from confinement following conviction of the felony, or(B) "the person's release from supervision under community supervision, parole, or mandatory supervision."Therefore the class of persons who have "been convicted of a felony," as that term is used in Section 46.04, includes those in any of three circumstances:(1) those who have been in "confinement,"(2) those who have been supervised under parole or mandatory supervision-all of whom will have been in confinement, since parole 3 and mandatory supervision 4 involve release after a final conviction, and(3) those who have been under "community supervision," which may not involve confinement. As defined in the Code of Criminal Procedure, " ‘Community supervision' means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:"(A) criminal proceedings are deferred without an adjudication of guilt; or"(B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part." 5Whether the Unlawful Possession of Firearm statute applies to a person who is, or has been, on deferred-adjudication community supervision is not clear.

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 Posted on August 16, 2011 in Uncategorized

He called for lawyers to take concerted action, going on strike against bad judges, while he remained anonymous because "I see no reason to take even small risks with the interests of others when the potential for accomplishing anything good is as speculative as this is right now."

So we, criminal-defense lawyers of the world, were expected to risk the interests of our own clients while he hid in the shadows somewhere in Canada. In other words, Atticus seemed a coward.

Today we know who Atticus Ignavus really is: New York lawyer John M. Regan, Jr., driven to (try to) resign as a lawyer in New York and seek refuge in Canada. Driven by what? By the system's abuse of his client:

On the surface, the hearing in Toronto on September 29 th is about whether I will be able to remain in Canada as a refugee. But it is also the trial of the judges and other officials involved in the...matter, at which they will have the opportunity to appear and defend themselves if they so choose. Not that they will have any success if they do: their guilt is a matter of official record and documentary proof. If the facts matter, the hearing can have only one outcome.

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 Posted on August 16, 2011 in Uncategorized

Marketer Rachel Rodgers, in her dwindling fifteen minutes of blawgospheric fame, writes:

In conclusion, my point is this: Experienced attorneys stop trying to scare young lawyers half to death with your scary ethics anecdotes about lawyers who were disbarred or suspended due to unethical behavior. Most of the stories involve gross misconduct on many levels and they only serve to disproportionately scare young lawyers when the news tells a very different story about some of the most experienced lawyers landing in jail for fraud, thievery and every imaginable ethical and moral violation. Let's see you talk about them.

(Miami bar-defense lawyer Brian Tannebaum is on it like a duck on a junebug with A Young Lawyer Rages Against All This "Ethics" Crap; Arizona criminal-defense lawyer Matt Brown talks about the Arizona ethical issues he thinks might face Rodgers's business model in Unauthorized Practice; Tannebaum is back an hour later with Around The Ethicsphere: Reproductive Law Classes at SPU Cancelled, Arizona Ethics Law May Spell "Oops"; after Rodgers showed the depth of her ethical knowledge by suggesting that lawyers' "assumptions" about her practice might violate disciplinary rules, Tannebaum challenged her. She met the challenge, but.)

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 Posted on August 07, 2011 in Uncategorized

Scott Greenfield and others decry "overcriminalization"-the attachment of criminal penalties to mala prohibita regulatory violations that include no culpable mental state:

The problem is that regulatory violations sometimes result in fines and orders to change procedures, but other times result in criminal prosecutions resulting in extraordinarily harsh prison sentences for people who make a business mistake.

If overcriminalization is the application of criminal procedure to what should properly be civil matters, overcivilization is the application of civil procedure to what should properly be criminal matters.

Where overcriminalization is characterized by draconian penalties for easy-to-prove technical violations of a sort that is traditionally civil, overcivilization is characterized by relaxed rules for exacting penalties for offenses that are traditionally criminal.

For example: civil commitment for sex offenders and, in the UK, Anti-social Behavior Orders (ASBOs).

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 Posted on August 06, 2011 in Uncategorized

From Texas Senate Bill 1761F, adding Section 82.0651 to the Texas Government Code:

(c) A person who was solicited by conduct violating the laws of this state or the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas regarding barratry by attorneys or other persons, but who did not enter into a contract as a result of that conduct, may file a civil action against any person who committed barratry.(d) A person who prevails in an action under Subsection (c) shall recover from each person who engaged in barratry:(1) a penalty in the amount of $10,000; (2) actual damages caused by the prohibited conduct; and (3) reasonable and necessary attorney's fees.

The Texas Disciplinary Rules only mention barratry in section 8.04(a)(9): a lawyer shall not "engage in conduct that constitutes barratry as defined by the law of this state." Texas's barratry statute is Section 38.12 of the Texas Penal Code. Among other things,

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 Posted on August 05, 2011 in Uncategorized

Yesterday:

Mark,As I mentioned Monday, I am hosting a free teleseminar on August 10, 2011 entitled:"How to Double Your Criminal Defense Practice Income Without Spending One Extra Hour In The Office" What I will reveal in this call will enable you to design and implement a strategy to boost your practice revenues and boost them quickly! These are proven techniques.I am not a marketing coach. I am a practicing criminal defense attorney who understands what it really takes to run a law practice and the high ethical standards we hold ourselves to as attorneys. I practice in THE most competitive market in the nation and have built a million dollar practice on strategies that I have developed over the last 5 years. Every one of the strategies I suggest to you has been tested and is working to make me money in my practice every day and can work for you. And every one of the strategies and systems I recommend actually increases income while decreasing the amount of time working on the tasks that are hardly enjoyable.I want you to have the time to actually be a lawyer and not a business manager. You will double the income your law practice is making today, increase your retainer rates and fees, cut your overhead and spend more time doing what matters most. I know because I've done it and I've helped lawyers just like you do it too.Lines are limited so make sure you sign up today. Register today at: http://.doubleyourdefensepractice.comTo your success, Rachel Kugel, Esq. 1838 Second Avenue Suite #234 New York, N.Y. 10128

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 Posted on August 03, 2011 in Uncategorized

The Professional Ethics Committee of the State Bar of Texas recently emitted a new opinion in support of allowing Texas lawyers to participate in for-profit Internet websites that help match attorneys with people seeking legal representation. In Opinion 573, released August 11, 2006, the Texas Ethics Committee, announced that it permits automated online legal matching services and that lawyers in Texas could ethically use this type of service.

That's from the LegalMatch ethics FAQs, and while it's true as far as it goes, it's not the whole truth; the omitted bits should be really important to a lawyer who is thinking about throwing his money away with LegalMatch (because it would really suck to both throw your money away and lose your license).

Opinion 573 requires that, for a Texas lawyer to participate in a service like LegalMatch, the service must, among other things:

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