The Houston Justice League

Posted on August 19, 2008
Filed Under The Best Traditions | Leave a Comment

AHCL writes about Houston criminal defense lawyer / city councilwoman / superheroine Jolanda Jones rescuing a woman from a burning car. In other Harris County lawyer / superheroine news, I’ve learned that ADAs Connie Spence, Traci “no relation” Bennett, and Caroline Dozier recently saved the life of a civilian who had collapsed outside the criminal justice center. They noticed a man on the ground and Connie began compressions until she was relieved by a Precinct 1 Constable, and Caroline began rescue breathing. Traci went inside the courthouse to call 911.

The man (who had nothing to do with the criminal courthouse except the good luck of having his heart give out in the general vicinity of Caroline, Traci, and Connie) was last reported to have been in the hospital and stable. The three prosecutors deserve the highest praise for their quick and compassionat action.

(I know sometimes I seem to be a little rough in my treatment of prosecutors here. If I am, it’s not because I think prosecutors are lousy human beings — the vast majority of them aren’t — but because they’re decent, and sometimes exceptional, human beings who can do a lot of good when they turn their efforts toward helping individual human beings rather than enforcing the will of the Crown.)

Testing

Posted on August 18, 2008
Filed Under Uncategorized | 2 Comments

Posted from my IPhone.

A whole new world of blogging opens up!

Raises for Prosecutors and Defenders, or More Pork for Other Projects?

Posted on August 18, 2008
Filed Under government teat, public defenders | 6 Comments

Western Justice points out that the John R. Justice Prosecutors and Defenders Incentive Act of 2008 has been signed into law. I’m sure I’ve missed hoopla about this elsewhere, since there was lots of hoopla about it last May. Now that I have more than six readers, I’ll ask again the two multiple-choice questions that I asked then:

1. The people who decide where the money is spent in your jurisdiction know that the federal government is going to give every public defender a $12,000 annual subsidy. Do they a) raise defenders’ salaries nonetheless; b) keep defenders’ salaries where they are; or c) lower defenders’ salaries by $11,999, figuring that defenders were paid enough before and should be happy with a net $1 raise?
2. Having cut defenders’ salaries by $11,999, do the people who decide where public money is spent in your jurisdiction use it a) to feed the hungry and house the homeless; b) on hookers and crack for the monthly county commissioners’ retreat; or c) to buy AR-15s for the SWAT team and build a new jail, in order to prove their tough-on-crime credentials?

Almost anywhere in America, the correct answers are “c” and “c.” If you live in one of the exceptions, I’d love to know where it is.

A Little Sunday TJ

Posted on August 17, 2008
Filed Under Sic Semper Tyrannis, Thomas Jefferson | 3 Comments

“It [is] more dangerous that even a guilty person should be punished without the forms of law, than that he should escape.” –Thomas Jefferson to William Carmichael, 1788.

“It [is] more a duty [of the Attorney General] to save an innocent than to convict a guilty man.” –Thomas Jefferson: Biographical Sketch of Peyton Randolph.

“No nation however powerful, any more than an individual, can be unjust
with impunity. Sooner or later, public opinion, an instrument merely
moral in the beginning, will find occasion physically to inflict its
sentences on the unjust… The lesson is useful to the weak as well as
the strong.” –Thomas Jefferson to James Madison, 1804.

Everyday Incidents

Posted on August 14, 2008
Filed Under police misconduct, testilying | 16 Comments

Not all cops lie. But if perjury is committed at the criminal courthouse, it’s likely committed by someone with a badge and a gun — that is, a law enforcement officer. There’s even a term of art for it among the law enforcement community: “testilying”.

I see three reasons for this.

First, statistically, cops testify a lot more than anyone else. Five times as much? Twenty times? So they get more opportunities to perjure themselves.

Second cops often feel that the end justifies the means. A little lie to the court or the jury is worthwhile if it serves to put some punk in prison where he belongs. (After all, the system is broken, right?)

Third, as PJ points out in his comment here, cops “know who gets prosecuted for criminal acts and who does not”. That is, cops don’t get prosecuted for perjury because their perjury is in the interest of those who have the power to prosecute.

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

Also unfortunately, cops don’t correct or report each other’s misdeeds. (Don’t take my word for it; see Joel Rosenberg’s Thought Experiment [h/t Simple Justice].) So when a cop tells a little white lie, the only way he’s going to get caught is if he gets on the stand and tells the truth, and the DA’s office is, I daresay, never going to prosecute an officer in such straits.

I’m thinking about offering a cash prize for any Houston or Harris County law enforcement officer who has been on the job for more than a year, and can pass a polygraph (administered by ex-DEA agent John Swartz) while saying that he has never failed to report the misconduct of another officer.

What do you guys think? Have I got it wrong? Will my money be at risk?

Uncle Ken?

Tell Me Again Who the Victim of this Particular Crime Is?

Posted on August 12, 2008
Filed Under government protecting itself, police misconduct | 6 Comments

Beaumont, Texas police officer fired after an assistant chief finds out that, in the course of investigating of prostitution ring, the officer received oral sex a half-dozen or so times (and maybe “one ‘active coitus’”, according to his lawyer) with the approval of his supervisor and his wife.

In Texas, “I’m a police officer” is not actually a legal defense to most criminal charges. By statute, a cop may possess controlled substances in the course of his work, but he can’t legally solicit sex for money. So Officer Watts shouldn’t be too surprised if he finds himself dumped further into the grease by his former employer.

Naivete

Posted on August 12, 2008
Filed Under justice | 3 Comments

From Western Justice:

If we are truly concerned about the guilty being punished and the innocent being let free, then why encourage one side to hide the truth from the other side? Is the system about winning more than it is truth?

and (apropos of reciprocal discovery):

I know that defense attorneys are immediately concerned about such a reform, but if you are truly concerned about the guilty being punished and the innocent being let free (my concept of true “justice”), then I think this reform would allow a road to that path.

Um, no. There are preconditions to Justice (what WJ would call “true ‘justice’”, as opposed to what the criminal “justice” system provides) that aren’t met, and probably never can be.

Let’s say that Justice is “the guilty being punished and the innocent being let free”. What’s missing? We don’t want to execute non-violent first offenders, and we don’t want to let cold-blooded murderers off with a fine. So we’ll have to add appropriateness of punishment to WJ’s definition.

So now Justice is “the guilty being punished appropriately and the innocent being let free”. Simple enough, right?

Well, which guilty people should be punished? Those who hurt others? Those who hurt themselves? Those who behave antisocially? speak antisocially? think antisocially? Democracy is of no help in defining Justice, since the mass of people will define “guilt” based on their collective perceived self-interest.

There are original sources to which we could refer. We could punish those who violated the Ten Commandments, but whose interpretation? “kill” or “murder”? We could punish those who commit the Seven Deadly Sins, but don’t we commit the sin of pride by setting ourselves up to judge our fellow humans? We could follow Sharia — the Taliban is at least as certain of its definition of justice as WJ is of his.

Pretend that we could get over these hurdles and somehow agree on what conduct should justly be punished. Who then would decide what punishment is appropriate, and by what measure?

We might agree that punishment should be sufficient to deter the wrongdoer. But who among us has the omniscience to say what punishment is enough?

What should the other goals of punishment be? Incapacitation? Rehabilitation? Retribution? None of these penal goals is uncontroversial.

We can agree that, whatever the goals of punishment, punishment should not be greater than is necessary to accomplish those goals. But who among us has the wisdom to say what punishment is too much? What individual factors must we take into account before deciding what punishment is appropriate? Is it better to punish too much, or not at all?

In the criminal “justice” system we have to work with the laws that the legislature writes. Does anyone contend that our elected lawmakers, either individually or collectively, have the intelligence (to say nothing of wisdom) to answer the plenitude of questions that are necessary to even define Justice?

Set aside for a moment the problem that we’re not going to agree anytime soon on a question (”what is Justice?”) that people have been fighting over for 150,000 years. Pretend that your state legislature is suddenly touched by divine wisdom and omniscience, and revamps the penal code so that thinking people of conscience can feel secure in our belief that Law reflects Justice.

Even then, the result in the courtroom would be far-removed from this Justice. We lawyers work with the cases that the police present to the government, and with the evidence that human beings provide us. Human beings lie. Cops are not exempt. When cops lie to make a case, it is not an isolated incident; it’s business as usual (the cops who don’t lie are complicit in the other cops’ mendacity). In order for our hypothetical enlightened legislature’s just laws to be justly enforced, this has to change. Everyone providing evidence or testimony against a human being must unquestionably be a truth-teller.

So now let’s pretend that we can create a world in which all prosecution witnesses are truth-tellers. What obstacles are there to the quest for Justice in the criminal “justice” system?

The next obstacle is we lawyers. Our imaginary legislature can’t have accounted for every wrinkle in the human condition that might justify one sentence rather than another, and will have written the laws so that those of us closer to the facts can apply the law justly. So, even if our imaginary witnesses are truthful, each of us has to have the wisdom and omniscience to know what the just punishment is in the particular case. (If we have such wisdom we will, of course, always agree with each other about Justice.)

If one of us does not have those powers, or if one witness is not indubitably truthful, or if one legislator is not indisputably wise, then the system will fail to deliver Justice consistently. If we pretended in the real world that all of the legislators were honest, all of the witnesses truthful, and all of our adversaries wise, then a venal legislator, deceitful witness, or unfair prosecutor could singlehandedly wreak terrible injustice.

So we don’t naively pretend that this system of laws made by men is a magical instrument of Justice. We call it the best system, but it’s only best compared to all of the systems that rely on the wisdom of individual men to find Justice.

Instead of trusting any individual to be just, we trust the collective wisdom of groups. That is, we trust juries. We trust them (at least here in Texas) to decide the things that imperfect lawyers can’t agree on — “should he be on probation or in prison?”. We trust them to distinguish the untruthful witnesses from the truthful ones. We even trust them (though we don’t tell them this) not to follow unjust laws.

We don’t trust juries fully, though. Even in Texas, we don’t give them unfettered discretion to set punishment. Also, we give them only the information that we think they should consider in reaching their verdicts. The rules of evidence are about limiting the data that jurors may consider because, after hundreds of years of experimentation, we generally agree that some things must not contribute to the jury’s determination (for example, the promiscuity of the complainant or the unrelated criminal history of the accused).

Knowing what the jury must not consider, however, is different than knowing what the jury should consider or what weight the jury should give it. For that, we have advocates whose job it is to present the evidence in the light most favoring their clients, and to seek to counter the evidence favoring their adversaries’ clients.

Because we know that people are not omniscient and cannot be counted on to know what Justice is (or to act against their own self-interest in the cause of Justice), ours is an adversary system of justice. A perfect system? No. But a better system could only exist in a perfect world.

The Secret to Winning: Bennett-Style

Posted on August 11, 2008
Filed Under becoming a better lawyer | 3 Comments

It all started with Gerry Spence’s The Simple Secret of Winning post. Manhattan Paladin Scott Greenfield was inspired to make fun of Spence’s formula for winning. Connecticut public defender Gideon, in turn, was inspired to post his secret to winning: “Knowing your rear from your face, or, preparation.” Even better, he made it a meme, and tagged Scott, South Carolina criminal defense lawyer Bobby Frederick, and me.

Bobby G.F. says that there is no secret, and then goes on to post eight suggestions: learn from others; try cases; know the law; prepare (”If you worked nights and weekends preparing your case for trial and covering every base, odds are you are miles ahead of the other guy”); win without fighting; tell your story; tell your client’s story through the prosecution’s witnesses; and care about your client. (Somebody needs to have a word with Bobby G.F. about the power of trilogy.) Bobby tags Maryland criminal defense lawyer Jon Katz, Hostis Civitas, and Western Justice.

The Manhattan Paladin, Scott Greenfield, agrees with Bobby G.F. that “there is no secret”, but recommends that you see each case as unique. “While many appear the same on the surface, they never are in truth. Even the most pedestrian case has a unique element to it, and it’s up to the lawyer to find it. . . . There is no magic place to look to find this distinction, but it’s there. Somewhere. Just keep looking.” Paladin tags Crime and Federalism, Austin criminal defense lawyer Jamie Spencer, and Omaha criminal defense lawyer David Tarrell with the meme.

I disagree with the Manhattan Paladin and Bobby G.F.: there are secrets to winning cases. They is no secret in itself sufficient to win cases, but there are ways to improve your client’s odds that are not commonly recognized or properly understood; some of them even go against traditional wisdom.

Gideon and Bobby both write about preparing. Here’s one of my secrets: prepare just enough, then stop. Don’t just do something, sit there. Play with the kids. Just play. Read a book — something non-law-related. Write a poem. Take the dog for a walk. Get some exercise. Sleep.

The object of this exercise is to solve the puzzle with which the case presents you. Sometimes the puzzle is patent — how do I convince a jury that she didn’t know the cocaine was in her pocket? — but more often the puzzle is the meta-puzzle — what is unique about this case? what is the puzzle? or, in criminal defense lawyer terms, what the hell is our defense?

Solving such puzzles requires inspiration. Inspiration doesn’t come when it’s sought; inspiration comes when you’ve fed all of the available data into your brain (by preparing fort trial and familiarizing yourself with the facts and the law) and then turned your attention to other matters. In order to win the trial, you have to give your brain time to work on the puzzle outside of your conscious attention. You can’t force it. And that, friends, is one of the secrets of successful criminal defense trial lawyering.

I’m tagging Life at the Harris County Criminal Justice Center’s AHCL for a Harris County prosecutor’s view, my fellow Houston criminal defense lawyer Grant Scheiner (don’t foist this one off on young Matt Skillern!), and . . . hmm . . . how ’bout Dallas criminal defense lawyer Robert Guest?

Bad Cop! No Donut!

Posted on August 7, 2008
Filed Under police misconduct | 8 Comments

Johnson County, Tennessee Sheriff’s Deputy Starling McCloud (on the left, in the khaki uniform and the gay-leather-bar moustache) thinks that it’s a crime for a citizen to take a photograph of a police officer. (This photograph was taken by the arrestee’s 12-year-old daughter after he tossed the offending iPhone to her.)

(H/T Missouri Criminal Defense Lawyer Randy England.)

I foresee a lawsuit in the county’s future; the county will claim that this was an isolated incident and settle for an undisclosed amount.

Dialing for Defense Dollars

Posted on August 7, 2008
Filed Under corruption, elections, judges | 9 Comments

I just got a telephone call at the office from someone asking me for a campaign contribution for the judge of a Harris County district (felony) court, before whom I occasionally practice and before whom I have a case right now.

This has never happened to me before. I don’t know if it’s happening now because the Republican incumbent judges are running scared in Harris County (they should be), or because I’ve never appeared on this particular mailing list before (I contributed to the campaign of another incumbent, who actually deserves to keep her bench).

I’ve never had any problems with this judge, though I’ve heard horror stories from other defense lawyers. But his Democratic opponent is a defense lawyer who is highly qualified for the position. So the only reason I would contribute to this incumbent’s campaign would be if I thought he would give me a little quid for my quo.

It never occurred to me that my clients would benefit from my contributing to this judge’s campaign, so I never even considered contributing. But this direct solicitation call raises the spectre of my clients in this particular court suffering because I did not pay up when asked.

Corruption takes many forms, and the Texas Canons of Judicial Ethics require judges to avoid the appearance of impropriety and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Directly soliciting lawyers who appear before you for contributions creates the appearance of impropriety. It damages public confidence in the integrity and impartiality of the judiciary.

Even if there will be no retaliation (and I hope there will be none, since there’s no way in Hell I’m going to contribute), it’s grossly inappropriate.

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