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Recent Blog Posts
Brain Scans
Anne Reed brings us this post, which clearly fits into the "science" part of The Art and Science of Criminal Defense Trial Lawyering. Researchers in psychology discovered, by using an MRI tracking the brain activity of subjects reading text on a screen, that the brain spontaneously divides read text into discrete "events" in the same places that we would consciously do so (here is the article).
It appears that, before this study, psychologists believed that this phenomenon, "event structure perception," was limited to visual inputs. The brain activity evidence of event structure perception in reading suggests, according to the paper, that there is a "larger system involved in the comprehension of everyday activities that may be modality independent (i.e., involved in comprehending real-world visual events as well as narrated descriptions of those events)."
Former Prosecutors II
I blogged here about former prosecutors' inherent qualifications as defenders. Manhattan criminal-defense lawyer Scott H. Greenfield gives us his take on the subject here. "Many of our best were once on the dark side," he says, but they're not our best because they were on the dark side.
A highlight:
Young ADAs (assistant district attorney) are amazed at their good fortune in court. They win argument after argument. Why? Is it because they're brilliant Turkey? NOOOO!!!!! It's because they are prosecutors. In fact, the pap they spout is often ridiculous, but judges (like defense lawyers) know what the right arguments are and don't turn criminal defendants out on the street because some snot-nosed clueless prosecutor blew the argument. So when they leave the office, they are no longer the recipient of the court system's largesse, and have to win not only on their own, but against all odds. Maybe they aren't as smart as they thought.
TLC Lawyers' Blogs
I just happened upon my friend Jim Jenkins's Florida Criminal Law blog. Jim is a Pensacola criminal-defense lawyer, and a friend of mine from the Trial Lawyers College (TLC). I hadn't heard from Jim in a long time, and I'm glad to see that he's blogging. Other TLC lawyers with criminal-defense blogs are Jon Katz, with his Underdog blog, and Norm Pattis, with his Crime and Federalism blog. Jon is a dedicated true-believer criminal defense and First Amendment lawyer. Norm is one of the smartest lawyers I know.
Jim, Jon, and Norm are all world-class lawyers. It's good to see them sharing what they know and what they believe with us.
Weed in the Car
Today Miami criminal-defense lawyer Brian Tannebaum brings us this judge's verdict in a possession of marijuana case in Palm Beach County. After a bench trial in which the accused represented himself the judge found the accused, in Brian's words, "not-guilty-really-really-not-guilty." The only evidence against the accused was that he was driving in a car that smelled of marijuana and contained less than 20 grams of marijuana.
Here are the last couple of paragraphs:
In publishing this verdict, the Court has included commentary that admittedly may not be relevant to the question of whether the Defendant committed a crime. This commentary should not be construed as an indictment of the officers who arrested the Defendant or the state attorney for prosecuting the case. This judge is deeply concerned about the threat that drugs pose to our society, and particularly to our children, and, therefore, appreciates the motivation and good intentions of the police and prosecutors who bring these cases to court. However, as Judge Gray so eloquently writes, "although the war on drugs makes for good politics, it makes for terrible government."
Still More on Nonjudgmental Jurors
Anne Reed over at Deliberations has picked up on my posts about the jurors who can't judge, and taken the research a lot farther here. Anne points out the potential clash between the Batson cases (which bar the exclusion of jurors because of race and sex, and which can arguably be extended to bar the exclusion of jurors because of religion) on the one hand, and Witherspoon v. Illinois and Wainwright v. Witt (which allow the exclusion of jurors whose beliefs "substantially impair" the performance of their duties as jurors in accordance with their instructions and oaths) on the other.
Anne points us toward a 2004 Seton Hall Law Review article discussing the future of religion-based strikes; there is also a a Michigan Law Review Note by (now-) University of Tennessee law professor Benjamin Hoorn Barton entitled Religion-Based Peremptory Challenges after Batson v. Kentucky and J. E. B. v. Alabama: An Equal Protection and First Amendment Analysis (it's on JSTOR; you will need a login to read the whole article online. I got access through my Houston Public Library account. The cite, if you have a law library handy, is 94 Mich. L.Rev. 191 (1995)). Like John Mansfield of Harvard, who wrote the Seton Hall Article, Barton argues that religion-based peremptory challenges don't pass Equal Protection muster.
More on Nonjudgmental Jurors
I blogged here about the exclusion from jury service of people who hold religious beliefs that prevent them from judging other people. I thought of it as a First Amendment problem and an Equal Protection problem under the U.S. Constitution. I haven't given much thought to the Federal implications beyond Batson, Powers, and J.E.B., but it appears that there may be an even stronger argument under the Texas Constitution.
Article 1, Section 4 of the Texas Constitution provides:
No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.
When a person is excluded from serving on a jury - so the argument would go - he is excluded from holding an office or public trust. When that exclusion is based on his religious sentiments, it violates Article 1, Section 4.
Quote of the Day
We, as criminal-defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job – our sworn duty – as criminal-defense lawyers, to protect our clients from those people.
– Cynthia Roseberry
Nonjudgmental Jurors
In almost every criminal jury selection I've seen, there has been at least one juror who has said that she is unable, because of religious beliefs, to judge other people. Almost universally and without further inquiry, the lawyers have not allowed these people to serve as jurors. That the defense lawyers (who probably want such people on their juries) don't try very hard to keep them has always rankled me a little bit.
Generally (in Texas at least) a juror who claims not to be able to judge other people is following her understanding of Jesus' admonition in Matt. 7:1, "Judge not, lest you be judged." The same juror, if questioned respectfully, would likely say that she can agree to render unto Caesar and decide whether the government has proven a violation of the law. After all, a criminal trial is not about moral guilt; it's not about who goes to heaven and who goes to hell; it's about whether the government, following all of the rules, can prove beyond a reasonable doubt that the accused violated the particular law alleged in the accusation. A juror who recognizes this and agrees to follow the law is rehabilitated, so that the government has to choose between (a) finding some religion-neutral reason to use a peremptory challenge on her and (b) leaving her on the jury.
The Art
The art at the top of the page is Jean-Léon Gérôme's 1872 Pollice Verso, which resides at the Phoenix Art Museum. The metaphor will be obvious to anyone who has ever tried a criminal case.
So who's the defender and who's the prosecutor? Well, it's like they say: Some days you're the retiarius and some days you're the secutor.
Indefensible
David Feige's book, "Indefensible: One Lawyer's Journey into the Inferno of American Justice" has been on my "to read someday" list for months. I started reading his blog, and then ordered the book from Amazon. I started reading it last night. I may give a more thorough review of it later, but for now I'll say that I've found it extraordinarily true - not that it's factually accurate (though I have no reason to believe it isn't) but that it's densely packed with Truths large and small about the practice of criminal defense law.
Three examples:
First, David describes why he chose to be a public defender rather than pursue a job with the prestigious (read "high-paying") civil firm where he served a summer clerkship:
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