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Dear FBI:
If you want to be taken seriously, please give your agents some guidance on what is not a professional-looking business card. Whenever a potential client comes to me with something like this...
Pat Lykos: Wrong Once More
University of Houston law professor Jordan Paust, who reviewed the bilateral treaty between the U.S. and Nigeria this week, said it includes a long list of offenses for which a suspect is subject to extradition, including manslaughter.But the treaty does not specifically include the offense of reckless injury to a child or child endangerment, Paust said, which he predicted could jeopardize Tata's extradition."This would be a very serious mistake not to charge for manslaughter in view of the treaty," Paust said. "Ignorance of the law is not a defense, not even for a prosecutor."Lykos said the DA's office disagreed with Paust's interpretation of the law, saying both manslaughter and reckless injury to a child are second-degree felonies in Texas.
Professor Paust is sugarcoating it. Unless Pat Lykos spreads around some bribes, Nigeria will not extradite Jessica Tata to face charges for reckless injury to a child or child endangerment.
Results-Oriented Jurisprudence
The only virtue of the Court's approach (if it can be misnamned a virtue) is that it leaves judges free to reach the "fairest" result under the totality of the circumstances. If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police's intent and declare the statement testimonial. If the defendant "deserves" to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match per- spectives to reach its desired outcome. Unfortunately, under this malleable approach "the guarantee of confrontation is no guarantee at all." Giles v. California, 554 U. S. 353, 375 (2008) (plurality).
What Justice Scalia is describing in his dissent to Michigan v. Bryant is results-oriented jurisprudence: by judging the testimonial nature of a statement based on some amorphous mix of the interrogator's intent and the declarant's intent, the Court makes it possible for judges to decide based on the equities of the case whether an out-of-court statement is testimonial, and therefore requires cross-examination. Results-oriented jurisprudence is what it sounds like: judges deciding what the law is based on the anticipated results, rather than on underlying principles.
Casuistry
I knew I was going to have to appeal this case when a prosecutor said to me, "this hearing won't take long-the case wasn't a misdemeanor." If the case wasn't a misdemeanor, you see, I filed the wrong sort of writ of habeas corpus-an 11.09 writ rather than an 11.07 writ. If I should have filed an 11.07, I should have done so in the Court of Criminal Appeals; I had filed, instead, an 11.09 writ in the trial court.
But if I had filed the wrong instrument, appealing would do me no good; I'd have to file the right writ in the right court. But that's when I knew that I was going to be filing a notice of appeal. Because not only had the case been a misdemeanor (reduced from a felony by agreement at the time of the guilty plea), but the prosecutor who said this was the fourth one in the courtroom...the one wearing the black dress...the from the judicial division of the Harris County District Attorney's Office, if you take my meaning. And if the Fourth Prosecutor, before our hearing had even begun and without reviewing the clerk's file, had decided that she was going to deny us relief, then I thought there was no chance that she would a) consider the evidence; b) read the caselaw; c) apply the law to the evidence; and d) grant relief. The first three steps-which weren't really difficult-were necessary to reach the third; the Fourth Prosecutor could deny relief by skipping any of those steps.
TSA Grooming
One of our kids got the opportunity to go to a summer leadership program in one of the farther reaches of the country. In the old days there would have been a simple way to do this: get on a plane with her, fly up there, rent a car, drop her at the program, fly back, then return when the program is over and pick her up. Or even put her on a plane by herself and let the leadership program's staff pick her up and drop her off on the far end.
Thanks to the Transportation Security Agency, such schemes are, for the Bennett kids, no more. We'll be driving-I'm not taking my kids to a place where a government goon can and is likely to, for no good reason, lawfully feel them up. (The TSA says it will only pat down children who set off the metal detector. This is small comfort: I go through enough metal detectors to know that there are lots of factors other than too much metal that will cause such machines to give an alarm.)
Lots of parents will say, "what's the big deal?" and blithely subject their young children to the possibility of an intrusive patdown for the convenience of air travel. For these parents, the family vacation to the ski slopes is worth exposing their young to genital groping by strangers of unknown provenance. I have little respect for this prioritization (I might even, in a snarkier mood, call it narcissistic). If a stranger on the street offered a parent an all-expenses-paid skiing vacation in exchange for the opportunity to pat down the parent's young children, the parent would be a pendejo to accept. The difference between that situation and the TSA patdown is that the TSA isn't offering as much compensation-it won't pay for the vacation; it'll only allow access to the transportation system.
“The Texas Supreme Court Made Us Do It!”
The first quote is part of State Bar President Terry Tottenham's response to my theory that the form of the Disciplinary-Rules Amendment referendum ballot was unlawful because it did not allow a vote on each amendment or new rule. The problem for Tottenham's theory is that the Supreme Court just signed off on the referendum, while explicitly withholding judgment on any legal issues: "The Court's approval of this referendum is not a predetermination of any legal issues regarding the proposed rules."
We Win. For the Moment.
A big "thank you" to all who voted and encouraged others to do the same. Forty-percent turnout is apparently astounding for such a referendum.
State Bar President Terry Tottenham said, "We expect that this will not be the end of the Supreme Court's interest in making revisions to these rules." According to Lillian Hardwick‘s account, however, "the Supreme Court of Texas appointed a task force to assess the need for changes to the Rules and to suggest new language." (PDF; emphasis is mine.) Most of these changes are not only ill-considered, but also simply unneeded.
Another Dispatch From Mr. X
From my source in the Harris County DA's Office, Mr. X:
From: "Jordan, John" <JORDAN_JOHN@dao.hctx.net>Date: February 15, 2011 11:19:24 AM CSTTo: "Misdemeanor Division" <MisdemeanorDivision@dao.hctx.net>Cc: "Bridgwater, Roger" <BRIDGWATER_ROGER@dao.hctx.net>, "Evans, Catherine" <EVANS_CATHERINE@dao.hctx.net>Subject: Trial CompetitionsWe are now six weeks into the new year and I wanted to announce some Trial Competitions. Vehicular Crimes Section AwardThe first ADA to try 10 DWI jury trials in 2011 will win this award. The prize....you will get to sit second chair on an Intoxication Manslaughter or Felony Murder case with a prosecutor in the Vehicular Crimes Section. You will be involved in trial preparation, take witnesses, and participate in the trial.Trial Dawg AwardThe first ADA to try 12 jury trials in 2011 will win this award. The prize... you will get to sit second chair on a murder case with a felony chief level prosecutor from either the Trial Bureau or one of the specialized divisions, such as Major Offenders. The trial record does not matter, except you have to be above 50 %.Trial Court AwardIf a court tries and completes THREE jury trials in a single week, the prosecutors in that court can comp. out by lunch time the following Friday. It is encouraged that the members of the court do something together....lunch, movie, bowling. Who will cover their court in their absence...keep reading. The court (that has a 2 and a 3) that does not try any cases the same week the winning court(s) tries three cases, will have to cover the duties for the winning court. If all courts, that have a 2 and a 3, try cases it will be up to Justin, Rachel, and I to cover. We have excluded five courts from this competition for equity purposes.The purpose of these competitions is to reward folks who go to trial and achieve justice. In addition, hopefully it will be fun for all. Those who have already tried multiple cases already this year have a head start on others. Let the friendly competition begin....And it goes without saying, what we do is always about justice. Hopefully this will allow us to have some fun while we strive to achieve it.....JJ
Battle of the Neuropeptides
Let's say you're a criminal-defense lawyer, and you're about to pick a jury. You want the jury to trust you and to be generous with your client, but you're not sure you can trust them to. What can you do to improve your chances?
Here's the new-agey TLC kumbaya answer: trust them first. The theory behind this is that if you show your jurors that you trust them (as, for example, by revealing your deepest fears about the case), they will reciprocate.
Oxytocin is associated with human trustworthiness: when people are playing an anonymous "trust game," those who are shown trust have higher oxytocin levels than those who are not. Oxytocin, in turn, increases trust: people with higher oxytocin levels are more trusting (con men use these effects to take people's money). So there is scientific support for the new-agey answer: if you want your jury to trust you, trust them first. People with higher oxytocin levels are also more generous. So if you want your jury to help your client out, trust them.
Texas Disciplinary Rules Referendum: Former Committee Member Urges “No” Vote
Harlingen, Texas criminal defense lawyer Larry Warner has been practicing law for 37 years. He served for three years on the State Bar Disciplinary Rules Committee charged with drafting the proposed rules. He served as a member of the Texas House of Representatives and has taught professional responsibility to law students. He is also board certified in criminal law.
Warner writes:
For three years I was a member of the State Bar's committee charged with drafting the proposed new disciplinary rules. After that experience, I strongly recommend a "No" vote on the referendum. The committee's work did not result in any minority report. Dissent was not considered, tolerated, or forwarded to the Task Force/Committee meetings.In over 37 years of practicing law, including ten sessions as a member of the House of Representatives of Texas, I always had to know what the other side was going to say. If I was on the losing side at committee, at least we got to submit a minority report to the whole House on the floor and got to try again. As insurance defense counsel, plaintiff's lawyer, prosecutor, and defender of those sentenced to death, my ability to represent my client properly and well depended on how well I knew the other side's case. Lincoln's advice to lawyers was "Encourage your clients to settle their disputes, there will be lawsuits enough." Resolution of differing opinions depends upon respect for the opposition and a willingness to listen with an open mind with a view toward reaching a decision if one can be reached without violence to individual conscience and judgment. (Shades of jury instructions.)The Committee was presided over by a law professor. The settlement conferences among lawyers that Lincoln envisioned did not take place in the Committee. The chair seemed to have her marching instructions. General Sherman's march to the sea comes to mind. The American Bar Association is to release another round of proposed new rules in 2012. We'll have to do the entire process again then. The current draft is not ready for adoption. It is simply too flawed. Let's defeat the referendum, and go back to the drawing board when the new ABA suggestions become available. And let's open up the rule-making process to diverse viewpoints. In the long run, that approach will be cheaper and will make for better, sounder rules.Please vote "No" on this referendum.
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