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Recent Blog Posts
Now, What Else Can We Get “Clarified”?
It took a little over a month.
The Houston Police Department Chief's Command issued a memo of questionable legality forbidding cops from talking to defense lawyers without permission.
Some 60 HCCLA members, incited and led by former president Robb Fickman, descended upon Houston City Council to protest (video).
And the Chief rescinded the suspect order.
Except he didn't call it a rescission. He called it a clarification. Because "officers shall have no discussion with criminal defense attorneys regarding any pending criminal case without first obtaining express permission from the federal prosecutor, assistant district attorney or municipal prosecutor assigned to the case" is certainly unclear, when what you mean is "permission from the prosecutor is NOT required before speaking to a criminal defense attorney about a pending case." (All emphasis in original.)
“Years of Trial Experience”
Divorce lawyer John Clinton, running for criminal court judge, seems to be saying that when he was a Houston police officer he "amassed years of trial experience."
[quicktime]/video/YearsOfTrialExperience.mov[/quicktime]
(Full video here.)
This could be true only in the sense in which a career criminal has amassed years of policing experience. Maybe Clinton spoke awkwardly, and meant to convey that as a lawyer he had amassed years of trial experience. That could be literally true: "years of trial experience" might mean one uncontested divorce (an uncontested divorce prove-up is, technically, a "trial") in 1997, and another in 1998. But the literal truth can be deceptive: divorces, car crashes, and slip-and-falls (which Clinton also handles) rarely end in jury trials, and even when they do, they are a far cry from anything that happens in the criminal courthouse. District clerk's records show that Clinton has only handled one criminal case in Harris County, and he didn't try that one. (Note to clients: Clinton does, however, have a perfect record; every criminal case he ever took got dismissed.)
Mmmmm…Chicha!
Houston DUI lawyer Paul Kennedy, in Going for the Gut, calls to our attention this Boston Globe article by Drake Bennett about how disgust may shape our moral judgments.
A few thoughts:
First, one of the experiments discussed:
In one study, [psychologist Jonathan Haidt] had some of his unfortunate test subjects respond to four vignettes related to moral judgment while sitting in a room that had been infused with an ammonium sulfide "fart spray." The stink, he found, made them harsher judges, not only of body-related questions like whether first cousins should be able to have sex and marry, but whether people should drive to work when they could walk or whether a movie studio should release a morally controversial film.
... seems to mesh well with this one (h/t Houston criminal-defense lawyer Sarah V. Wood):
Partisan and Interested Magistrates?
In regard to the search of a place, the United States Supreme Court has consistently favored the issuance of a warrant by a neutral and detached judicial officer as a more reliable safeguard against improper searches. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 (1979). The failure of the magistrate who issued the search warrant to act as a neutral and detached officer may justify the suppression of the evidence seized pursuant to the warrant. See, e.g., id. at 326-27, 99 S.Ct. at 2324-25. While participation of the issuing magistrate in the actual search of the place designated in the search warrant may well be indicative of a failure on the issuing magistrate's part to fulfill his or her duty to remain a neutral and detached judicial officer, the magistrate's presence at the execution of the warrant will not necessarily justify or mandate suppression of the items seized pursuant to that warrant, depending upon whether the magistrate's conduct is more akin to that of a mere observer, as opposed to that of an adjunct member or leader of the law enforcement authorities who requested the warrant. See, e.g., id.; Bellamy v. State, 742 S.W.2d 677 (Tex.Crim.App.1987).
Greenfield and the Teacup
(For more of Paladin's wisdom, buy the complete first season of Have Gun, Will Travel here
Meet Carl
Every now and again some young criminal-defense lawyer on some listserv will suggest that we criminal-defense lawyers should "set everything for trial." If we set everything for trial, the theory goes, either the government becomes much more reasonable in the cases it charges and the offers it makes, or the system crumbles under its own weight.
The underlying theory of cause and effect is correct. But, because our duty is to the client, criminal-defense lawyers can't engage in such collective action. We convey the government's offers to the client, and he decides, with our advice, whether to take the offer. When the client decides that the cost-benefit analysis favors pleading, we can't countermand his decision for the good of the cause.
There is, however, an economics of prosecution. The worse the offers the government makes, the less likely defendants are to plead guilty (even, to some small extent, when an "everybody gets convicted anyway" pathology dominates, as in the federal criminal bar). Even though the defense bar can't draw a line in the sand, administrative policies (like this one, forbidding the abandonment of enhancement paragraphs "without a valid legal reason" [h/t Life at the Harris County Criminal Justice Center]) [update: this is not, according to Jim Leitner, an accurate statement of the new enhancement policy; rather, enhancements must be included at intake, and trial prosecutors must explain in the file why they have abandoned enhancements] that bar line prosecutors from offering more lenient deals will result in fewer pleas and more trials.
Attribution Redux
So I listed four big reasons blawgers should attribute ideas with which they disagree:
For yourself;
For your readers;
For those with whom you disagree; and
For the blawgosphere.
To illustrate the hazards of non-attribution, I pointed out a couple of Norm Pattis's and Jamison Koehler's unattributed statements, and asked: who said it, when, and where?
Both Pattis and Koehler commented. Koehler agreed with me, but didn't answer the questions. Pattis, in a comment steeped in the very nonattribution that the post addressed, disagreed with me, but didn't answer the questions or rebut or even acknowledge any of the big arguments for attribution.
Those who want to snipe at others' ideas without worrying about furthering the discussion or preserving the blawgosphere or even accurately portraying those ideas would ignore all arguments that don't support what they want to do. It's an uphill battle I'm fighting.
Justice, Injustice, And In Between
Clay Conrad writes:
[A]lmost nobody denies that, say, executing an innocent man would be a substantive injustice. So, if there can be a substantive injustice, then there must be, by elimination, substantive justice.
Why does that follow?
Say that it's unjust to execute an innocent man. Does that mean that every time an innocent man is not executed (three and a half billion times a day; seven billion if "man" includes "woman"), justice is done? Should we be celebrating justice every moment that government deigns to allow us to live?
That's just silly. Much that is not unjust might be just, but more is justice-neutral.
I don't sympathize with the position that there is no justice. I believe (because I want to, okay?) that there is justice, but it's pretty clear to me that none of us humans know what it is. But, as the absence of injustice is not justice, so the existence of injustice doesn't prove the existence of justice.
The Determinist Libertarian
People can't choose what they desire, but they "choose" what they desire, and should generally be able to do what they "choose."
That is, people can't choose to want one thing over another (because what they desire is controlled entirely by their environment and heredity), but it appears to them (illusorily) that they choose the thing that they desire, and they should not generally be constrained from acting on those illusory choices.
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