Posted on September 17, 2010 in Uncategorized

Pattis plays dumb:

So rather than engage in another link-building piece of naval [sic] gazing, I will submit the issue Bennett raised to my local Grievance Committee, the body that polices lawyers. I will publish the results of the complaint here. If I am wrong, I will admit it.

First, Pattis imagines that I seek revenge for some slight that he imagines that he gave me long ago. Apparently he has a longer memory for such matters than I. (There may be an example here: when, as inevitably happens to the best of us, you're publicly caught wrongfooted, it's best to shut up and move on.)

Then Pattis tries to make the question one of whether he "betrayed client secrets." I'm not sure that anyone aside from his conscience has accused him of that. The post to which he refers says nothing about client secrets. Maybe revealing that these three particular clients were attracted to kids was part of his strategy; maybe these three particular clients consented to his revealing that they were attracted to kids; maybe he wasn't telling the truth about them being attracted to kids; maybe these three particular clients don't even exist. In any of those cases, he wouldn't be violating the disciplinary rules. It doesn't matter. Let's all agree that Pattis hasn't revealed any client's secrets.

Continue Reading ››

 Posted on September 16, 2010 in Uncategorized

1. Trench Menu:

2. Too Much Information:

See the difference?

The usual trial lawyers' courthouse greeting is, "what do you have going on today?"We criminal-defense lawyers are gregarious social creatures; we like to hear what our colleagues are up to. If you're a criminal-defense lawyer, being followed by any number of criminal-defense lawyers on Twitter, you can reasonably assume that what you have on your plate will be of interest to someone. If you're wrong, they will mock you or just ignore you.

But remember: When you post something on Twitter you can never make it disappear. Your clients can read it. Worse, prosecutors can read it. Worst, your jurors can read it, and they can do a lot worse to you and your clients than just mock you and ignore you.

"Well," the lawyer (I have not used his name in the text here because I don't want the juror, googling the lawyer's name, to happen upon this site and thus find the TMI tweet) might say, "I don't identify the clients who are attracted to kids." Or "But this is part of my orchestrated plan to lull the prosecutors into complacency."

Continue Reading ››

 Posted on September 16, 2010 in Uncategorized

Elected Republican Calumet County, Wisconsin District Attorney Kenneth R. Kratz got caught texting the complainant in a domestic-violence assault case. He was prosecuting her ex-boyfriend while trying to get into her pants.

Im serious! Im the atty. I have the $350,000 house. I have the 6-figure career. You may be the tall, young, hot nymph, but I am the prize!

(Milwaukee Journal Sentinel.)

Could Kratz have picked a more vulnerable victim? The allegation of domestic abuse would suggest that she was susceptible; if that's not enough, though, he was abusing a position of authority and power.

The complainant "was afraid Kratz would throw out the case against her ex-boyfriend if she told Kratz to stop, the police report said." (Journal Sentinel article again.)

She had more to fear than that-if she had yielded to his blandishments, his abuse of power wouldn't suddenly stop, but would likely escalate. If he got caught once, how many times had he gotten away with it?

Continue Reading ››

 Posted on September 15, 2010 in Uncategorized

The topic is the " Trench Menu" meme-the posting on Twitter by criminal-defense lawyers of one-line summaries of their days. Norm Pattis started the meme; others jumped in.

The post itself is vintage "Get Off My Lawn" Greenfield, so I suspect that Scott was kidnapped sometime between 7:29 a.m. EDT, when the post was published, and 1:20 p.m., when this comment was posted:

I've heard from a number of people (cowards all, I might add) who thanked me for this because they are feeling enormous pressure to do this but really don't want to. That's the problem.-"SHG"

I know in my bones that that's not Scott: the Real Scott Greenfield, when any non-zero number of cowards thanked him for pleading for an end to the Trench Menu meme "because they are feeling enormous pressure to post but really don't want to," would have realized that he was wrong.

Continue Reading ››

 Posted on September 14, 2010 in Uncategorized

Most of this year's Harris County judicial elections are worthy of little more than a shrug.

I had a sorely disillusioning experience trying a case for almost two weeks before former criminal-defense lawyer Ruben Guerrero, who a) is sorely deficient in judicial temperament and knowledge; b) even the jurors could tell was biased toward the State; and c) was elected because of the Democratic near-sweep in 2008.

I hunch that Tom Berg, Brandon Dudley, and Alvin Nunnery will, given the opportunity, be outstanding judges. And some of the incumbents are poor enough judges that it's really hard to imagine their challengers being anything but an improvement; I may give those incumbents whatever the opposite of an endorsement is. But after my experience with Guerrero, I'm not endorsing anyone who has not already proven herself an excellent judge.

Continue Reading ››

 Posted on September 14, 2010 in Uncategorized

NOTE TO JUDGES, JUDICIAL CANDIDATES, AND OTHER READERS WHOSE IQs MIGHT FALL ONE STANDARD DEVIATION OR MORE BENEATH THE NORM: THESE ARE NOT ENDORSEMENTS. LINKS ARE TO CANDIDATES' WEBSITES, IF I FOUND SUCH WEBSITES, OR TO WHAT I'VE WRITTEN HERE ABOUT A CANDIDATE.

Because I haven't seen this information gathered together anywhere else:

Court

Democratic Candidate

Republican Candidate

1

Beverly D. Melontree

Paula Goodhart (i)

2

Mary Connealy Acosta

Bill Harmon (i)

3

Judith Snively

Natalie Fleming (i)

4

Alfred G. "Al" Leal

John Clinton

5

Alfred "Bud" Valdez

Margaret Stewart Harris (i)

Continue Reading ››

 Posted on September 13, 2010 in Uncategorized

Before the 1991 Texas Court of Criminal Appeals case of Geesa v. State, Texas criminal juries did not have to be given a definition of "proof beyond a reasonable doubt" and Texas appellate courts used the reasonable-alternative-hypothesis standard to judge the legal sufficiency of evidence in circumstantial-evidence cases: the appellate court had to find that every other reasonable hypothesis raised by the evidence was negated, save and except that establishing the guilt of the defendant, if the conviction was to be affirmed in a circumstantial evidence case.

In Geesa the court rejected other-reasonable-hypothesis analysis, and mandated a definition of beyond a reasonable doubt:

A "reasonable doubt" is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

Continue Reading ››

 Posted on September 13, 2010 in Uncategorized

I'm just trying to find the best lawyer who makes me feel content. So far there hasn't been one that can assure me that punishment will be under 5 years.

You will, if you keep trying, find a lawyer who will assure you that punishment will be under five years. This lawyer will be lying to you. Get his promises in writing-it probably won't do you any good, but when they prove untrue, maybe you can get the State Bar interested in him.

Who am I kidding? The liar won't give you that promise in writing without substantial weasel-words: when it comes to reducing the promises to writing, "you will get less than five years" will become, "there's a 99% chance that you will get less than five years;" you'll never prove him wrong.

The sad truth is that there is a strong correlation between lawyers who make promises to get cases, and lawyers who are prepared to deliver a competent defense; the correlation is negative. Lawyers promise the moon when they are unlikely to get hired on their merits. As criminal-defense lawyers, they probably lack many things, but the most important thing they lack is this: they don't give a damn about their clients.

Continue Reading ››

 Posted on September 11, 2010 in Uncategorized

Courtesy of Robb Fickman, and because Greenfield loves "list" posts, 20 rules for being a criminal-defense lawyer, given by Robb to Craig Still on the occasion of his leaving the DA's Office and joining the Brethren of the Courts (annotations are mine):

Craig's List on How to be a Criminal Defense Lawyer1. Get the money up front.2. If a client says money is no problem, that's because he doesnt have any.3. If a client cries, charge him more.4. Assume all clients are wired.5. If a client asks you to use a " land line" be concerned.6. Never make a client's bond.7. Never have sex with a client, while representing the client.8. Always use written contracts. Handshakes aren't admissible.9. Remember there are snitches on the listserve.10. Don't hold onto "originals."11. Don't meet with the client to "help tidy up the scene"12. Beware of clients who come In with no shirt on.13. Any money you loan a client Is a "gift".14. If a client talks about God, just go along.15. The more family that comes in, the less money the client has.16. Never "deliver" anything to the client from the " family",17. Don't "hold money" for a client, particularly if they are from the valley.18. The trust account is called the trust account for a reason.19. Don't make Tom Zaratti your partner.20. Drink at the Char.

Continue Reading ››

 Posted on September 10, 2010 in Uncategorized

Here's the application paragraph of the accomplice-witness-as-a-question-of-fact jury instruction from the Harris County jury charge bank.

Therefore, if you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness, _____, was an accomplice, or you have a reasonable doubt whether he was or not, as that term is defined in the foregoing instructions, then you cannot convict the defendant upon the testimony of unless you further believe that there is other evidence in the case, outside of the testimony of _____, tending to connect the defendant with the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.

The jury given that charge in my most recent trial pointed out afterwards that the topic hadn't come up in jury selection and wondered why.

It's a fair question.

Conventional wisdom would have had me voir dire on the accomplice-witness rule, to commit all of the jurors to following that particular law. But I wasn't certain that I would be able to get the State's star witness to make himself a potential accomplice until I had actually done so on cross-examination (a team victory with which I am still quite pleased). And I didn't want to call the State's attention to its potential proof problem which was obvious to the criminal-defense lawyers I had briefed about the case, but which may not have been so obvious to people thinking like prosecutors. I suspected that they would (and didn't want them to) woodshed their witness to deny any possible role in the alleged crime.

Continue Reading ››