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Tainting the Jury Pool II
Fellow Houston criminal-defense lawyer (and president of the Harris County Criminal Lawyers Association) Robb Fickman adds, in response to the bill offering psychological counseling to former jurors:
How about this: How about some counseling for the families and children of men and women who have been found innocent after years of wrongful incarcerated? Oh yeah they get to beg the state for money.How about restitution and counseling for the families of every man or woman that is found NOT GUILTY after spending every dime they have defending themselves against a wrongful allegation? How about that?
Technorati Tags: jury trial, legislation, Texas
Tainting the Jury Pool
There is a bill in Austin allowing the government to provide post-trial psychological counseling for jurors in certain types of cases. The bill provides for the "crime victim liaison" to arrange for the counseling, and allows the crime victim liaison to use a company that provides similar services to victims.
According to this Austin American-Statesman story on the bill, "the bill is not clear on who would provide the counseling," but its sponsor, Texas Representative and part-time rocket surgeon (I just made that up - according to his official bio he's a Harvard Law grad and decorated Naval aviator) Juan Garcia, "said he intends for jurors to be invited to call the victim and witness coordinators on staff in all district attorneys' offices."
Altered States in the Courtroom
Three examples of altered states of consciousness in the courtroom:
On cross-examination, a lawyer gets a federal agent into what Chicago federal defender cross-examination teacher Terry MacCarthy calls "Yes Mode," nodding and saying "yes" to each question. When the lawyer gets to the difficult questions, the witness continues truthfully saying "yes" even though he would rather deny, argue, or quibble.
On direct examination, a lawyer takes his client's full attention back to the night of the killing. The client, describing the story in the present tense, steps down from the witness stand and shows the jury how the complainant (the dead guy) assaulted him, and how he reacted. Reenacting the events, he remembers every sensory detail, and the story comes to life in the jury's minds.
A trial starts at 9 a.m. At noon, the judge announces a lunch break and the lawyer is surprised - he had been so attentive to the trial that he had not noticed the time passing.
Legalize Methamphetamine
Methamphetamine is bad stuff. Really, really bad stuff. If the devil were to invent a drug to destroy mankind, it would be meth. That's why I used to say that methamphetamine, out of all of the drugs in the world, should be illegal.
Phoenix criminal defense attorney Marc Victor makes a compelling argument that methamphetamine should be legalized. I think that he is right, and that I was wrong: methamphetamine, along with all of the other now-illegal drugs (most of which are benign compared to meth) should be legalized.
Technorati Tags: philosophy, legalization, war on drugs
Order of Argument
Here's a little Thursday afternoon regalito for my fellow Texas Criminal Defense lawyers:
Often the State will lie behind the log in closing arguments, waiving its "right" to open the argument and saving all of its arguments for after the defense has made its argument. (For the laypeople reading this: when the State does this it means the prosecutor doesn't have enough faith in his case to subject it to rebuttal; he is afraid of the flaws in his case and would rather play games than subject it to scrutiny.)
The statute giving the State the ability to open and close the argument, Texas Code of Criminal Procedure article 36.07, applies only to jury trials. In non-jury proceedings, the order of arguments is within the court's discretion. See Cherry v. State, 488 S.W.2d 744 (Tex. Crim. App. 1973), except that the Defendant gets to open and close the argument on motions he has filed. Tex. Code Crim. Proc. art. 28.02. So there is no statutory basis for the State to sandbag the defense in non-jury cases.
State's Rights
In Texas, there is a statute that says that a defendant will have a jury trial unless both the State and the defendant agree not to have a jury trial. Prosecutors, many judges, and some defense lawyers sometimes say that the State has a "right" to a jury trial.
Another statute says that, when arguing a case to the jury, the State can open and close the argument. Again, many of the participants in the system say that the State has the "right" to open and close the argument.
Sometimes lawyers will tell a jury panel that the State has a "right" to a fair trial or to a fair jury.
The difference between powers and rights is that powers can be maintained using violence, but "rights" cannot.
The State has powers over the people. In America, the State has its powers because we, the people, have given it these powers. The State has the ability to maintain its powers using violence (again, because the people have given the State this ability).
The mugger in the dark alley has the power to take granny's purse, but that doesn't mean he has the right to do so. Granny has the right to keep her purse, but she doesn't have the power to (unless she's better armed than the mugger).
Verse of the Day
A good traveler has no fixed plansand is not intent upon arriving.A good artist lets his intuitionlead him wherever it wants.A good scientist has freed himself of conceptsand keeps his mind open to what is.
Thus the Master is available to all peopleand doesn't reject anyone.He is ready to use all situationsand doesn't waste anything.This is called embodying the light.
What is a good man but a bad man's teacher?What is a bad man but a good man's job?If you don't understand this, you will get lost,however intelligent you are.It is the great secret.
Lao-tzu, Tao Te Ching (Stephen Mitchell transl.)
Technorati Tags: criminal defense, philosophy, Tao
A Too-Common Ethical Violation
A lawyer is in court with his client. The prosecutor has made a plea offer to the lawyer, who thought it was something the client should have accepted. The lawyer has conveyed the offer to the client, and tried to convince him to take it. The client has rejected the offer.
Often we will see the lawyer put the client on the witness stand in open court, in front of the judge and the prosecutor, to confirm that the lawyer conveyed the offer to the client and that the client rejected it. The lawyer will nonchalantly justify this as "making a record" so that the client can't come back later and complain (in a writ of habeas corpus or grievance) that he didn't know about the plea offer. The lawyer will be nonchalant about it because this is the way he's always done things, and the way he's always seen things done.
Because this is how it's always been done, many lawyers have never considered the ethical implications of putting the client on the stand to eliminate the possibility of a writ or grievance. It is, however, a huge ethical violation.
Two Kinds of People
Some people believe that we are where we are and have what we have mainly because of the choices we've made.
Others believe that we are where they are and have what we have, ultimately, because of things beyond our control - nature and nurture for example, or good fortune, or the grace of God.
Most people who have led privileged existences are in the first group. People in the first group find it easy to judge others. (After all, if we are the product of the choices we've made, then clearly the people who lead privileged existences have made better choices than the people who don't.) If you know a republican, he's probably in the first group.
Because it's easier for people in the first group to judge others, prosecutors are almost universally in the first group. The typical stock argument made by prosecutors in criminal cases highlights the "choices" the accused made - a "first group" argument.Most people who have been beaten down by life a few times are in the second. People in the second group find it easy to empathize with others. It's easier to see how inexorable forces can control other people's lives if we've felt them in our own. Believing that we are ultimately creatures of factors outside our control, it is easier to imagine ourselves in other people's shoes.
Who Should Go to Prison?
A first-time offender should not go to prison if he couldn't legally have been shot and killed if caught in the act. (This is not, of course, to say that everyone who could have been shot and killed if caught in the act should go to prison.)
This principle makes sense to me because it reserves prison as a punishment only for those who present an immediate danger to other people. Following this rule, a first-time house burglar, murderer, rapist, or armed robber would be looking at possible prison time while a first-time thief or drug dealer would not.
Technorati Tags: criminal defense, philosophy, prison
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