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Recent Blog Posts
Terrence MacCarthy and Milton Erickson
Here I mentioned "Yes Mode," which is what master cross-examination teacher (and Chicago Federal Public Defender) Terry MacCarthy calls it when, on cross-examination, the lawyer asks only questions that he knows will lead to a "yes answer;" Terry would say that once a person is in "yes mode" it's difficult for her to say "no."
When teaching cross-examination to students, I used to describe "Yes Mode" as building a pyramid - you start with a broad base of irrefutable facts, build up in progressively smaller layers of facts that follow logically from the facts that the witness has previously agreed to, until you get to the ultimate fact that you want the witness to agree to, and she has the choice of agreeing or appearing unreasonable. As it turns out, there's more to it than just logic.
In my blog post, I described the witness's state of mind, in which he continues truthfully saying "yes" even though she would rather deny, argue, or quibble, as an "altered state of consciousness."
“Faith-Based Science”
In the May 7, 2007 New Yorker's Annals of Law column, Jeffrey Toobin writes about "The CSI Effect", focusing on the hair and fiber analysis performed at the NYPD crime lab.
In what I consider the highlight of the column, Arizona State professor of law and psychology Michael J. Saks says:
There are really two kinds of forensic science. The first is very straightforward. It says, "We have a dead body. Let's see what chemicals are in the blood. Is there alcohol? Cocaine?'" That is real science applied to a forensics problem. The other half of forensic science has been invented by and for police departments, and that includes fingerprints, handwriting, tool marks, tire marks, hair and fibre. All of those essentially share one belief, which is that there are no two specimens that are alike except those from the same source.... There is no scientific evidence, no validation studies, or anything else that scientists usually demand, for that proposition–that, say, two hairs that look alike came from the same person. It's the individualization fallacy, and it's not real science. It's faith-based science.
HCCLA Merchandise
I designed these limited-edition window stickers.
$5.00 each from HCCLA. (It's for a worthy cause.)
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Prison Article
Andrew Papke, serving two consecutive 20-year sentences for intoxication manslaughter, has a very moving article, I Know Why the Caged Bird Screams, about the Texas prison and parole system, in the Texas Observer this week.
Another Common Ethical Violation
Yesterday Gideon blogged here about trial lawyers trying to help the government defeat their (former) clients' habeas claims. "Occasionally," he writes,
I will try habeas corpus cases. Some of them will be challenges to pleas, enforcement of plea agreements and then the usual ineffective assistance claims. What really grinds my gears is the lack of co-operation from trial counsel. It seems as though there is a certain percentage of attorneys that don't like it when their former clients file petitions for writ of habeas corpus alleging IAC.
The he goes on to ask, "Why? Isn't it supposed to be about the client? Isn't that the bottom line?"
I've often seen it happen that lawyers faced with allegations of ineffective assistance go out of their way to help the state keep their clients in prison. Sometimes they'll violate attorney-client privilege by signing an affidavit prepared by the state before they have been ordered to respond to the allegations.
State Constitutions
Last week Texas's Waco Court of Appeals issued an opinion in Peña v. State holding that a defendant does not have to show bad faith to establish a due-course-of-law violation when the State destroys potentially exculpatory evidence. In doing so, the Waco Court (an intermediate appellate court with criminal and civil jurisdiction) applied the Texas Constitution's Due Course of Law Clause to give more protection than the U.S. Constitution's Due Process Clause.
The Peña case illustrates the good that can come of being familiar with your state constitution and arguing its provisions in addition to those of the U.S. Constitution. (I blogged about the greater protection the Texas Constitution gives religion here.)
Plain English
I like to write my pleadings in plain English. My goal is generally to write motions (and proposed orders) so that Lynn Hughes would not find reason to mark them up (which he tends to do). For example, a Motion to Y:
{Style of Case}{Title of Motion}Judge X,
Please Y because Z.
Thank you,Mark Bennett.
An attorney-and-counselor-at-law (someone who calls himself "... Esq.") might begin:
{Style of Case}{Title of Motion}
To the Honorable Judge of Said Court:
Comes now D, the defendant in the above-entitled and -numbered cause, by and through his attorney of record, and respectfully moves this honorable court to Y.
In support thereof, defendant would show that Z.
Wherefore, premises considered, defendant respectfully requests that this court Y.
Respectfully submitted,...
By my count, 33 words, most of them meaningless or redundant or both, passed before we even found out what Y was - compared to three words in my motion.
The Client Manifesto
"Gideon" at a public defender brings us The Client Manifesto - five things that clients should require of their lawyers:
Has the state made any offers to me?
Will I get credit for my pre-sentence confinement?
Discuss your testimony
Will I be eligible for parole?
Have you filed my appeal?
He asks for more; here are another 5, off the top of my head:
How might this affect my driver's license? Other licenses - professional and vocational? Immigration status? More and more, criminal cases have collateral legal consequences that are not foreseen by the accused. These consequences can be harsher than the direct punishment.
If I take this offer, what will my record show? Even aside from collateral legal consequences, a plea in a criminal case can leave a damning mark on your record that employers, landlords, and other people who do background checks will hold against you forever.
How to Stifle Creativity
One of the distinguishing characteristics of the creative childlike mind is the ability not to suppress the ideas that are unpopular or unsuccessful.
Eminent First Amendment lawyer Jon Katz brings us this tale of an Illinois high school student who is being prosecuted for following his teacher's instructions to "Write whatever comes into your mind; Do not judge or censor what you are writing." (His teacher was shocked by what he wrote; she reported it to her department head, who reported it to the monumentally stupid principal, who filed disorderly conduct charges.)
Jon sees it as a First Amendment problem; it is that. I see it as an attack on a young man's creativity. Although it may be good preparation, perhaps for Marine Basic Training, we should expect better from our schools.
Radical Stuff
When I told a friend who's a judge about this blog, he (knowing my antigovernment leanings) asked "does it have a bunch of radical stuff on it?"
Well, it doesn't, but since he promised to check in I thought I'd post a little radical antigovernment story.
This is for the judges and prosecutors. (Our elected district attorney ran for that office while wearing a wristband asking "WWJD?" I think this story will answer that question.):
1 Jesus went unto the mount of Olives.2 And early in the morning he came again into the temple, and all the people came unto him; and he sat down, and taught them.3 And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst,4 they say unto him, Master, this woman was taken in adultery, in the very act.5 Now Moses in the law commanded us, that such should be stoned, but what sayest thou?6 This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not.7 So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.8 And again he stooped down, and wrote on the ground.9 And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst.10 When Jesus had lifted up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? hath no man condemned thee?11 She said, No man, Lord. And Jesus said unto her, Neither do I condemn thee: go, and sin no more.
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