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Recent Blog Posts
A Great Day in Criminal Law History.
Monica Goodling, Alberto Gonzales's White House Liaison, has chosen to plead the Fifth rather than testify before Congress. This is good news. When a highly-placed Department of Justice official, who knows exactly how the system works, avails herself of her constitutional right to remain silent, it sets a good example for the rest of us.
Goodling's lawyer said that his client would not testify because "certain members of the Senate Judiciary Committee have already reached conclusions about the matter under investigation and the veracity of the testimony provided by the Justice Department to date." So he's suggesting that his client is taking the Fifth because her testimony is requested by people who have already made up their minds. That's not really a useful test for whether a person should take the Fifth, but I can see why the lawyer would want to publicly rationalize his client's intelligent but unpopular decision to remain silent.
Pistol-Packin' Prosecutors
The Brownsville Herald had an article last Thursday about a proposed bill to allow felony prosecutors to bring concealed weapons to court. The notion came about because of unfounded fears that a violent gang would try to break one of its members out from the courthouse during his sentencing.
Like any policy decision made based on fear, this seems like a bad idea to me.
I support law-abiding citizens' right to keep and bear arms without restriction. Prosecutors should be treated no differently than any other citizens. When was the last time a Texas prosecutor was killed on the job? Many prosecutors have no business carrying guns, much less doing so in court. Prosecutors don't have any better judgment than normal people, and some of them have considerably worse. I've seen prosecutors call people names, throw temper tantrums, and call defense lawyer out of court.
The Second Amendment was intended to allow the people to protect themselves from the government (not from street thugs or squirrels). Allowing government agents (like prosecutors) to carry guns at times or in places where the people could not carry turns the Second Amendment around backwards.
Other Trial Technologies
In case you couldn't already tell... I'm fascinated by the things other fields have to teach us (criminal trial lawyers) about what we do. For example, theatre: Keith Johnstone's books, Impro for Storytellers and Improvisation and the Theatre contain lots of nuggets of wisdom that my brain translates into ways of thinking about trial.
I know a good deal about the use of psychodrama for trial preparation and in trial, and I've studied enough hypnosis and neurolinguistic programming to see how we can (and sometimes do, both consciously and un-) use some of their techniques in trial. But that's not necessarily cutting-edge stuff - some law schools teach NLP in trial advocacy classes, and law schools are not known for being on the forefront of trial advocacy.
Why Mindfulness Matters in Trial
A classic mistake made by inexperienced lawyers is to write out the questions to be asked in direct examination. When the questions are written out, the answers don't matter because the lawyer knows what the next question is regardless of what the witness says.
Likewise, an inexperienced lawyer (or one who has not unlearned the bad lessons of the DA's office) will write out yes-or-no questions to ask the potential jurors during voir dire. The only reason to write out the questions would be that it didn't matter what the potential jurors were going to say; the only reason to ask yes-or-no questions would be that it didn't matter how the potential jurors felt.
On cross-examination, what the witness says generally doesn't matter (cross-exam master Terry MacCarthy says the witness is just there to agree with you), but how he says it matters, and how the jury responds to it matters.
Any good lawyer will tell you that the single most important trial skill is listening. The lawyer who is attentive to what is happening at any moment in the trial is going to do a better job in that moment than the lawyer who is thinking ahead or thinking about the past.
Mindfulness
In Keith Johnstone's Impro for Storytellers he relates:
"A Japanese swordsman wrote that if you fight someone who has no plan, you'll be thinking, I'll do such and such! as your severed head bounces down the temple steps!"
(Then Johnstone adds, "(Well, he didn't put it exactly like that.)")
Johnstone is talking about how being "in the moment" (the theatre term for mindfulness) makes actors improvise better.
The Texas Bar Journal has a little article this month called The Mindful Lawyer (if that link doesn't work try here). It discusses some of the benefits of "mindfulness meditation" to trial lawyers, but doesn't specifically address trial advocacy.
Beating up on the Mentally Ill
In another sentencing hearing (the defendant had pled guilty to theft and was seeking probation from the judge), the prosecutor argued that the defendant, who was mentally ill (diagnosed but unmedicated at the time of the theft, which was followed by two suicide attempts; medicated now; a thousand pages of medical records in evidence) had "chosen" to steal and was being "manipulative."
Her mother must be very proud.
Technorati Tags: argument, criminal defense, jury trial, prosecutors
Pot Calls Kettle Black
In a sentencing hearing the other day (I was observing a colleague's injury to a child case), I heard a prosecutor argue something that made me do a double take:
"This man used his position of power to hurt other people."
Isn't that a pretty fair description of what prosecutors do when they put people in prison?
Technorati Tags: argument, criminal defense, jury trial, prosecutors
Introduction
I'm a criminal-defense lawyer in Houston, Texas. I represent people accused of all sorts of crimes in state court all over Texas, and in federal court all over the country. In this blog, I plan to talk about anything that relates in any way to the practice of criminal defense law. In my mind, that's a very broad category, encompassing not only law and current events but also politics, religion, culture, society, sex, comedy, love, fear, literature, theatre, psychology, psychodrama, hypnosis, history, science, technology, and just about anything else that you could name.
When I'm not lawyering I'm raising two kids with my wife (who's also my law partner), working on cars and motorcycles, tinkering with all sorts of gadgets, and reading.
Changes to Nondisclosure of Deferred Adjudication in Texas
The governor of Texas has wrought some interesting changes to the law regarding nondisclosure of deferred adjudication probations by signing into law HB 3093. All changes are effective 9/1/5. Some of them are:
Waiting period for nondisclosure of felonies reduced to five years (from ten).
Waiting period for disclosure of some misdemeanors reduced to two years (from five).
DPS can file petition for expunction on behalf of a person.
Another deferred does not prevent a person from receiving nondisclosure of one deferred.
Agencies to which DPS may reveal sealed records are listed in one place (instead of being spread throughout the Government Code as before).
Clerk can collect civil filing fee in addition to $28 nondisclosure filing fee.
DPS has 10 days to seal records after receiving order.
DPS has to send a copy of the order to private entities that purchase criminal history record information from the department.
Entities receiving copies of the order from DPS have 30 days after receipt to seal the information.
Clients Aren't Property
Lawyers don't own their clients, and can't stop them from talking to other lawyers about representation. That's what the Eighth Circuit Court of Appeals, in this opinion, told a Texas attorney John Fahle when he got upset because one of his clients, Mr. Gonzalez-Lopez, realized he would be better off with California trial lawyer Joseph Low, IV and tried to hire Low.
Fahle filed a motion for sanctions, complaining that Low had talked with Fahle's lawyer without his permission. The district court granted sanctions. Low appealed, and the Eighth Circuit (not known for its liberal veiws) reversed the sanctions order, holding that a lawyer who is not representing another party to the litigation may talk with a person represented by counsel.
I've talked about this issue with other lawyers before, and many of them seem to think that a lawyer has a duty not to talk to other lawyers' clients without the lawyers' permission. If you look at it from the point of view of the client, though, a person should be able to get second opinions and shop for replacement lawyers without worrying about offending his current counsel and jeopardizing his defense.
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