Posted on May 12, 2011 in Uncategorized

A geeky little game I play with lawyers' internet advertising: from one website, I take a phrase that is unlikely to be written more than once intentionally. I google it and see who else is using the same copywriters, or who is plagiarizing whom.

So when I saw this South Carolina ethics opinion (Greenfield quoted it at length here) quoting (in Allegation A) several

false and misleading statements regarding: his experience and his associates' experience; the firm's areas of practice and past case results; the assignment of cases among the attorneys in the firm; the firm's reputation; the firm's office locations; and the foreign language ability of the firm's employees

I had to see who else had fallen into the marketing trap that got that South Carolina lawyer in trouble.

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 Posted on May 12, 2011 in Uncategorized

First the good: State v. Golding, out of the First Court of Appeals today, is an appeal from the granting of a Padilla writ by the best damn judge in the Harris County Criminal Justice Center, our friend Larry Standley. Judge Standley showed yet again that he is not afraid to grant habeas relief, and the State appealed, arguing that Judge Standley erred because (1) the doctrine of laches barred Golding‘s request for relief; (2) the trial court did not have jurisdiction to grant habeas relief; and (3) Golding failed to show that he received ineffective counsel at the time of his guilty plea. The court of appeals shot down all three arguments.

Part of the State's third argument (the failure to show a right to relief) was that Padilla was not retroactive, so that Mr. Golding‘s counsel was not required to advise him of the immigration consequences of his guilty plea at the time he entered it.

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 Posted on May 09, 2011 in Uncategorized

1. Propaganda. Aside from what the government and the media have told you, how do you know that Osama Bin Laden even existed, much less that he was responsible for 9/11?

2. Substantive Due Process. Assuming that the government has told us the truth about Osama bin Laden, I think that most will agree that a quick death was not excessive punishment. We will likely never know what happened on the ground in Abbotabad; the government's narrative has shifted too much already for any future story to be believed. Could the SEALs have snatched Bin Laden and extracted him without greater risk? Other than the certainty that carrying away someone who doesn't want to go complicates things considerably, I have no idea. If they had the choice between killing him and leaving him behind, should they have left him behind? That's hardly palatable.

3. Torture. Usually-reliable independent reporter Paul Brandus, writing as West Wing Report, twitted, "Seems clear that playing patty-cake with KSM wouldn't have yielded the intel that led to bin-Laden's death. It was waterboarding." That is by no means clear to anyone who has seen either the process or the results of lawful interrogation. Did torture lead to the discovery of Bin Laden's hiding place? If you believe Michael Mukasey, it did, but believing Michael Mukasey seems to require one not only to adopt post-hoc-ergo-propter-hoc reasoning (KSM was tortured, and KSM gave up the courier's nickname, therefore KSM gave up the courier's nickname because he was tortured), but also to disregard the account printed by both the New York Times and the Wall Street Journal (that interrogators realized that the courier must be important because KSM and others went to great lengths to deny knowledge of him). People who don't know will speak-like Mukasey-as though they do, and answer the question to the satisfaction of their own political leanings, but it is far from clear, and we will probably never know for sure, whether torture led to the discovery of Bin Laden's hiding place.

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 Posted on May 07, 2011 in Uncategorized

Texas Rule of Evidence 404(b):

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith....

Rule 405:

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion....

In other words,

Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.

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 Posted on May 01, 2011 in Uncategorized

So I've been taking martial arts classes. (Don't worry, this will not be a self-indulgent "here's why I haven't been posting and I promise to post more" posts. Those of you who cared have emailed me, and as my priorities shift I may well post less. It will, however, be self-indulgent: there is lots of "this is my life" stuff and there are many shoutouts to some people who have helped me improve, with a little tie-in to the law at the end...maybe, if I feel like it.)

When I decided to reinvent myself physically (the most recent in a string of reinventions going back to 1984) I didn't go directly to martial arts. Rather, I first hired a personal trainer (Phil Biggs of Body By U Fit). Phil did a great job of getting me motivated and into new habits of regular exercise. I recommend Phil highly as a trainer, but I like to go my own way. Having developed good basic habits with Phil, I started strength-training on my own with barbells following Stronglifts 5X5 and Starting Strength

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 Posted on April 26, 2011 in Uncategorized

The idea behind a lawyers' assistance strike force is that when a criminal-defense lawyer is under attack for doing her job, the strike force can intercede for the lawyer and protect the defense function. NACDL has a strike force; I helped several lawyers out of contempt citations on behalf of HCCLA's strike force, and will lead that strike force next year.

When I had a civil lawyer trying to invade the lawyer-client privilege in civil court (a client's friend, who had paid my client's fee, had hired the lawyer to file a motion for a presuit deposition to learn details of the representation in hopes of getting money back from me), my first call was to my lawyer, Troy McKinney, to quadruple-check that I was in the right; my second call was to TCDLA president-elect Gary Trichter, to ask that the TCDLA Lawyers Assistance Strike Force stand up for me. I wanted the Strike Force to explain the Special Rule of Privilege in Texas criminal cases, a subject dear to the heart of every Texas criminal-defense lawyer who understands it, to the civil judge. (Sure, I could have tried to explain it to him, but I try to avoid having fools for clients.)

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 Posted on April 16, 2011 in Uncategorized

A couple of months ago I mentioned Texas rep Leo Berman's attack on theocracy.

Now it turns out that the voices in his head inspired him.

(Nobody is surprised.)

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 Posted on April 14, 2011 in Uncategorized

Popehat and Abel and Draughn and Hit & Run and Kennedy and Greenfield have already visited the subject of the video of a TSA goon groping a six-year-old girl at the airport in New Orleans (insert tacky Mardi Gras bead joke here, if you absolutely must). For me, the video did nothing more than reaffirm my decision not to take my young children through airport security.

But this, from LewRockwell.com (referred to, I think, in the comments at one of the blogs I listed above), caught my attention:

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 Posted on April 07, 2011 in Uncategorized

Ellen Alexander (the nicest person in the courthouse, and not just in contrast to her judge, who's a grump [but only to criminals, and fools, and the unprepared]) is once again raising money for the University of Texas M.D. Anderson Cancer Center.

Two years ago Becky Pope, Ellen Alexander, and Robb Fickman raised $14,475 for M.D. Anderson. Last year they raised $19,276. Robb is the cheerleader of this escapade, getting criminal-defense lawyers, prosecutors, and anyone else who will listen to him to cough up money for the cause.

This year Robb wants to raise almost $50,000. And we are going to help him raise it.

Why are we going to help him? Because it's a good cause. Because Ellen Alexander is so nice. Because cancer sucks. Because wherever we are in the world, we might wind up being treated for cancer at M.D. Anderson.

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 Posted on April 04, 2011 in Uncategorized

The two choices for President-Elect of the State Bar of Texas are San Angelo personal-injury lawyer Guy Choate and Tyler criminal-defense lawyer Buck Files.

I know what you're wondering: what do they say about the recent rules referendum? In interviews with the Texas Bar Journal, Files said:

In every office that I have visited while campaigning, I have heard concerns voiced about the recent referendum - and the comments are not positive. The State Bar needs to respond to these lawyers. We must consider what can be done to address the apparent disconnect between the Supreme Court of Texas, the leadership of the Bar, and the members of the Bar. The leadership of the Bar, even now, is reaching out to lawyers across the state to assure them that the State Bar will listen to them. It is critical that the leaders of our State Bar continue to do this. Listening is a part of leading. On the other hand, it is encouraging that so many lawyers took the time to study the proposals and to vote. We need to find positive ways to continue this level of engagement.

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