Posted on April 18, 2007 in Uncategorized

Here's a fairly cogent explanation from non-defender Randy E. Barnett of why defense lawyers should keep fighting even for people who aren't factually innocent. The meat of it is this:

Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.

Barnett's "full and complete answer" is missing a hugely important component: punishment. Anyone found guilty (legally guilty, as opposed to factually guilty) should expect to have a lawyer fighting to minimize his punishment. I would add this to Barnett's formulation:

Because we can never be sure who deserves what punishment, the only way to protect those who don't deserve the crushing weight of the government's retribution is to effectively defend everyone.

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 Posted on April 18, 2007 in Uncategorized

When people talk about "defending the innocent" or "defending the guilty" they're talking about factual guilt - did the person do what he's accused of doing? - rather than legal innocence or guilt - has the government proven beyond a reasonable doubt that the defendant did what he's accused of doing (and that no defenses apply)?

The distinction is crucial to an understanding of how and why I do what I do.

Whether they did what they're accused of or not, everybody I represent in trial is legally innocent; they remain that way unless the government can prove them guilty beyond a reasonable doubt (either in a jury trial or with a guilty plea).

Whether my clients are factually innocent or factually guilty - whether they did what they're accused of doing - isn't directly relevant to their defense. Often in America factually innocent people are found guilty; more often (I devoutly hope) factually guilty people are not found guilty.

It doesn't matter much to me whether my clients did what they're accused of; what matters most is whether the government can prove its case against them.

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 Posted on April 17, 2007 in Uncategorized

"Mark, I have a lawyer, and she's not doing anything for me. I need a new lawyer."

Sometimes the stuff that we lawyers are doing is not immediately apparent to our clients or, for that matter, to anyone. Lots of the work to be done on a criminal case - legal research, fact investigation, negotiation - is subtle, and doesn't make much noise.

The job that a criminal-defense lawyer is doing generally can't be judged based on the amount of noise she's making doing it. A lawyer who isn't making any noise may be thinking up a way to beat a case. Usually a successful defense is a matter of knowing where to tap. Sometimes it's a matter of knowing not only where to tap, but also when.

Someone once said (Thich Nhat Hanh wrote it in Being Peace; I've seen it attributed to others as well) "Don't just do something; sit there." In the defense of criminal cases, where a misstep can cost someone her freedom, "just sit there" is invariably the best course of action... until it is time to do something.

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 Posted on April 17, 2007 in Uncategorized

I haven't done a very good job of using nonsexist language here.

Technorati Tags: language

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 Posted on April 17, 2007 in Uncategorized

Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.

-George Washington

Technorati Tags: government, philosophy

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 Posted on April 16, 2007 in Uncategorized

Legendary Houston criminal-defense lawyer Percy Foreman reputedly said, "You can represent your client, or you can represent yourself."

This should be every criminal-defense lawyer's prime directive: help the client. When we have professional decisions to make, we should always ask ourselves: "how will it help my clients?"

Some might argue that it is necessary for a lawyer to put his own interests above the client's on at least one occasion: when the lawyer is setting his fee. At that time, they would say, the client is better off paying less and the lawyer is better off receiving more. I disagree.

A lawyer who gets too little money to handle a case is going to have to make up for it elsewhere - either by taking on extra cases (which hurts all of his clients because he doesn't have enough time to spread around) or by doing without in some area of his practice or his life. Either way, representation is going to suffer. So it's in the client's interest as well as the lawyer's for the lawyer to be well-paid.

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 Posted on April 16, 2007 in Uncategorized

A potential client called me this morning (Sunday). He had been to a strip club last night, and today a guy called him (from a caller-ID-blocked number) claiming to be from the human resources department of the club. The guy said that one of the dancers had complained that the potential client had sexually assaulted her. He wanted the potential client to meet him today at noon, or he would file charges. The potential client hadn't done anything wrong; he wanted to know what to do.

Nothing good could possibly come of going to such a meeting. Either a stripper had made a complaint to HR (do strip joints really have "human resources departments?") or she had not.

In either case, the caller could hit the potential client up for money.

If there had actually been a complaint, the stripper making the complaint could still make a police report, or keep coming back to the potential client for more money. That's the way blackmailers work - once they have a victim on the hook, they don't just walk away. Instead, they keep squeezing and squeezing and squeezing until there is nothing left to squeeze (after which, just for the hell of it, they generally reveal the incriminatory information their victim was trying to conceal). Also, if the potential client paid the caller money to keep him from making a police report, he would be committing the crime of witness tampering.

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 Posted on April 14, 2007 in Uncategorized

In an earlier post I mentioned lawyers who use former clients' names in their advertising. Today I stumbled upon a post that Florida public defender Albert Clifford wrote on Ethical Blogging back in February. He wrote (in part):

I represent poor people who have no choice in their selection of me. I try to keep them happy with their decision, thus I don't think that I should ever write anything identifiable about any client without express permission. Further, because of my unique position of power, given that they really can't fire me, I wouldn't feel that anything other than an unsolicited appeal by a client for me to publicize their plight would qualify as a free and voluntary waiver of the priviledge of confidentiality I owe them about their case, including any public facts. After all, I argue about the coercive effects of government action, so how hypocritical would I be if I even suggested that my ‘request' to a client for permission to write about their case would elicit a truly voluntary, intelligent, and uncoerced decision for such permission? Just my two cents.

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 Posted on April 14, 2007 in Uncategorized

If a person's personality has changed because of a brain injury, is he still the same person?

In representing Vietnam and Gulf War veterans in criminal court, it's been my observation that those most in favor of the current war are hardest on our veterans. Does anyone doubt that those who see all criminal conduct as the result of "choices" will punish the veteran for the "choices" he made as a result of his brain injury?

Technorati Tags: veterans, TBI

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 Posted on April 14, 2007 in Uncategorized

Exhibit 2 to the Motion for Summary Judgment in Pham v. Jones is a lawyer's solicitation letter to potential clients. He quotes a price range of $100-$300 for most misdemeanor cases, and $500-750 for most felony cases.

The lawyer mentions "trial by jury" in the cover letter and twice in the brochure he includes with the letter: once in a list of "alternatives" rather than going to jail and once under "How I Handle All Cases:" "7) JURY TRIAL – I will represent you in court to the best of my abilities with candor and determination."

We know from the Findings of Fact and Conclusions of Law in Pham v. Jones that one such lawyer charges the maximum fee ($300 for a misdemeanor, $750 for a felony) when a case is reset more than once. This arrangement motivates his clients to plead guilty at the second court appearance (to avoid paying the maximum fee).

Nobody is going to get in the habit of trying misdemeanor cases for $300 or felony cases for $750. A lawyer taking 15 new cases a week doesn't have time to interview witnesses, research the facts of any case, and do the other things necessary to prepare for trial. Are the letter and brochure deceptive? If they're not, they skate awfully close to the edge.There will always be low-bid lawyers. Their target demographic is people who have (or whose families have) the money to bail them out, but don't have the money to hire a lawyer who will spend any time working on the case. The letter lawyers would probably say, "We're providing representation to people who don't qualify for appointed lawyers but couldn't afford counsel otherwise."

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