Reflecting on 2007

I'm not much for odd numbered years, but 2007 was simply wonderful. As I think back over the year, my family, friends, and work as a criminal defense lawyer are what come to mind.

My family grew and I couldn't be more proud. Each of my children are smart, good looking, and a blessing to those around them. I attribute most of this success to my wife. And as all parents understand, each of my children are individuals. Different strengths, weaknesses, and interests. But three things, among many, we each have in common - One is a love for Texas A&M basketball. Second is a fascination with Jack Bauer (of 24 fame). And third, is an affection for flat-screen plasma TVs with surround sound audio. It's amazing how many hours of the day evaporated this Christmas season sitting in front of a big screen TV with my finger on the trigger of a remote control.

I started "The Defense Perspective" in 2007. Blogging has been both a rewarding and profitable experience. As a result, I've made many new friends and I've enjoyed the interaction with each. Thanks to Mark, Scott, Gideon, Robert, Shawn, Anne, Jamie, and others for their "link love" this year. I hope I've adequately reciprocated. My goal for 2008 is to spread the "love" even further. Thanks, too, for the folks who stopped in from time to time to read and comment upon my ramblings.

My criminal defense practice grew in 2007. I attributed much of the growth to my blogging as it distinguished me from many of the other great lawyers in Bryan/College Station. My practice reaped so many benefits from the writing investment I made in the blog. Beyond this, the practice of law continued to challenge and reward me. Retooling, refining, and revamping was the order of the day in 2007. My systems improved in 2007 and I plan on riding this wave through 2008.

And one final thought on 2007, I'd say the keys to the year were risk-taking and perseverance. That is, the willingness to try new and innovative things. But more importantly, the willingness to stick to them, even when I couldn't see the forest for the trees.

No, I'm not much for odd numbered years. But 2007 will go down as one of my favorites.

A Lawyer's Free Speech

Here is a very important piece. A Florida criminal defense lawyer faced ethics charges for lambasting a local judge on his blog. From what I can tell, the judge probably deserved the tongue lashing. But what she deserved, or didn't, is not the point. The piece noted:

The [free speech] debate resurfaced after the Bar found probable cause against Fort Lauderdale, Fla., criminal defense attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an "evil, unfair witch" who is "seemingly mentally ill" on a blog about the courthouse. Formal charges against Conway are pending. Bar rules ban attorneys from making statements that impugn the integrity of a judge or the judiciary. Attorneys who violate the rules of professional conduct could face discipline ranging from a reprimand to disbarment.

The important question concerned the lawyer's right to speak freely. In other words, did Conway relinquish his right to criticize a sitting judge because he [Conway] was a member of the state bar? It seemed judges could stomach criticism levied against them in the relative privacy of cocktail parties. But when the criticism hit the internet, via the blawgosphere, they got really mad. A noted commentator on the case said:

Only since the advent of Internet and blogs did things get widely disseminated that at one time would be discussed at a cocktail party, []. Most lawyers are usually pretty cautious to avoid that kind of public commentary out of respect for the system, even if they don't respect the individual judge.

One argument asserts lawyers must not say things reflecting negatively upon the judiciary. This criticism supposedly causes the public to lose confidence in their judges. Conversely, the other side argues lawyers have a responsibility to educate the public. If a judge is conducting themselves improperly, the public has a right, indeed the need, to know about it.

I don't make a habit of bad-mouthing local judges in Bryan/College Station. I doubt it makes for harmonious relationships at the courthouse. But hey, if I wanted to rip into a local judge I hope I have the right to do it.

Victim Gets His Say - At My Expense

The CrimProf Blog posted here about an interesting case from the U.S. Court of Appeals - Ninth Circuit concerning the rights of a crime victim (W.Patrick Kenna) to say his piece during the sentencing phase of a federal criminal trial. This case was interesting in light of the discussion we had last month here and here about crime victims getting too much power in the criminal justice system.

The amazing thing about the Kenna case was the appeal rights granted to the victim. Apparently, Kenna was not allowed to make a statement concerning the effects of the crime during the sentencing of the defendant. After the federal judge refused to let Kenna speak (the judge had heard the crime victims speak at an earlier hearing), Kenna was accorded an appeal to the Ninth Circuit.

I wonder who spent time writing the brief and who paid for the court reporter's transcript? Who advised the victim of his appeal rights and preserved the error? This is a potentially objectionable use of my taxpayer dollars to give crime victims an attempt at "closure" following a criminal prosecution. I'm note sure I agree with it.

The Magic of Preparation

Malum writes here about the art of defending people accused of crime. He eloquently notes the job of the criminal defense lawyer is not to seek justice, but to represent the rights of the individual. I enjoyed the way Malum explained the job of the defense lawyer:

I don't think I could be unbiased and zealously represent 80% of my clients if I took time out to consider how best justice could be served. I can’t [fathom] having to weigh in the pain and losses suffered by their victims and their victim's families. I never personalize the alleged actions of my clients. I take and read the facts of their cases as part of a poorly written story.
My job is to fill in the blanks of this story and hopefully finish it with a happy ending. My advantage is that most of the time the DA only repeats and summarizes the poorly written stories, with its gaps, holes and missing pieces. Here is where i am at the advantage because I can fill in those gaps and holes with my version.

This is where the defense does have a great advantage. Although the wise Texas defense lawyer takes their client's version with a grain of salt and corroborates as many facts as possible, our clients can help us understand the story in its entirely.

And this is where the magic begins. Now we possess a superior mastery of the facts. Now ideas pop out from magical depths. This mastery empowers us to forge a story, an argument, that is laden with fact. An argument which now leaves room for the lawyer's own emotional commitment and appeal.

This is how the defense lawyer crafts the winning argument. Not an argument about justice necessarily, but a winning argument about the individual. This is the magic of preparation. Thanks Malum for giving us some insight into your day.

Frisco DWI Lawyer Wins

Hunter Biederman, the Frisco DWI Lawyer, posted here about his recent victory following a jury trial on a .21o breathtest DWI. Hunter won this case, not because the jury acquitted his client, but because he soundly beat the plea offer from the prosecutor. Commenting on the assessment of punishment Hunter said:

For him[the client], it [getting less jail time] is a win. Of course, our goal was to be found not guilty, but we still achieved a better result than pleading guilty.

Taking a case like this to trial is gutsy, but necessary since the only way criminal defense lawyers get better at trying difficult cases is to try difficult cases. Even the ones that seem un-winnable.

Scott Greenfield lamented here about the failure of the federal criminal defense bar to be ready, willing and able to stand up to the government. However, with more defense lawyers like Hunter, prosecutors in Texas state court should be getting a run for their money.

Prosecutors aggressively file DWIs in Bryan and College Station, Texas. The best way to beat a DWI is not drink and drive. But if you get arrested, give the College Station DWI lawyer a call since, like the Frisco Kid, we fight the good fight here, too.

Refusing Court -Appointed Appeals

Last week, criminal defense lawyer, Shawn Matlock, hypothesized here that most defense lawyers refuse to handle appeals because of the poor economic return. Shawn did not say so, but I suspect he meant "court-appointed" appeals. I agree with Shawn's conclusion. However, I disagree with his corollary that "real" criminal defense lawyers should handle their client's appeal with regularity. Shawn asserted:

I think that because so many people "practice" criminal law as a business, they view appeals as a money-losing endeavor. The time put into a good appeal can be extensive, and it can be exhausting. But, in my humble opinion, real lawyers do it.

Shawn argued defense lawyers don't take appeals because they are hard work. I agree they are very hard work. He postulated most defense lawyers don't take appeals because they aren't familiar enough with procedural and substantive law. I further agree lawyers must be well versed in all aspects of law which might bear upon the issues in a criminal appeal.

Nonetheless, many hardworking, smart, experienced, and dedicated defense lawyers don't take court-appointed appeals because they don't pay-off financially. I don't have a problem with that. I handled court-appointed appeals for years and learned an incredible amount of law. I learned how to preserve error. I learned how to establish harm so the appeal lawyer would not get "poured-out" under the harmless error rule. I learned how to write. But eventually the time invested in researching and writing appeals greatly outweighed my economic return. When that happened my other clients suffered.

For example, in Brazos County court-appointed appeal work gets paid on a fixed rate. A typical fee for a non-aggravated felony appeal is $1,750.00. Knowing I spend about 35 hours on a typical appeal, that works out to about $50.00/hour. That is not economically feasible. It does not pay my overhead. It does not fund my employee's IRAs. It does not pay for their medical insurance. It does not adequately pay me for my time.

My fee paying clients have purchased my time. I promised these clients attention and personal service. That is what distinguishes me from the other great lawyers in my community. But if I spend 35 hours on an appeal for which I only make $1,750.00, that makes no sense. My fee paying clients get the short end of that deal. I'd rather eliminate court-appointed appeal work and spend my time in more cost effective ways.

Young defense lawyers starting out should take court-appointed appeals. It increases the depth and breadth of their knowledge and experience. Their hard-earned experience eventually pays-off for all their future clients. I will take an appointed appeal now and then, too. Usually, it is a difficult case that a local judge knows I'll work diligently. I do this as a favor. They've come to depend on me - a great position to be in.

Let me say appeal work on "retainer" is financially rewarding. But I have no problem with defense lawyers who refuse to accept court-appointed criminal appeals. I have no problem with lawyers making a business decision to refuse work which is not financially rewarding.

If Shawn meant to scold lawyers who don't take appeals because they are lazy and don't want to work hard, I have no problem with that criticism either. But "real" lawyers are businessmen and businesswomen. If not, they risk failure at worst, and not reaching their potential at least. Neither a desirable option in my book.

Smile for Your Camera-Phone

If you're going to take your own picture while committing a crime, or record often indisputable evidence of your involvement, then please do it with a smile. See this story about Morgan Kipper:

Last year, Morgan Kipper was booked on charges of stealing cars and reselling their parts. He declared his innocence, but his cellphone suggested otherwise: Its screen saver pictured Mr. Kipper behind the wheel of a stolen yellow Ferrari.

Mr. Kipper, 27, joined a growing group of camera-phone owners who can't seem to resist capturing themselves breaking the law. "As a criminal defense attorney, it's very difficult when a client proclaims his innocence but incriminates himself by taking photos of the stolen items," says William Korman, the Boston attorney who represented Mr. Kipper. The snap-happy chop-shop owner, who pleaded guilty in April, is now serving a sentence of two-and-a-half to five years and couldn't be reached for comment.

The forensic challenges related to obtaining incriminating evidence from a camera-phone are different than those related to obtaining it from a personal computer. However, companies now sell forensic software designed to help the police download data from camera-phones without corrupting the evidence. The article went on to say:

. . . camera-phones seem particularly well-suited to spontaneous self-incrimination. Unlike traditional cameras, cellphones are always brought along, increasing the temptation to snap a picture and boosting the likelihood the phone will be on or near the criminal upon arrest.

So don't succumb to the temptation of recording your misdeeds for old-time-sake. First, avoid trouble by obeying your federal, state, and local laws. And for goodness sake, use some common sense when deciding what to snap pictures of.

The Power of a Handwritten Thank You

Lawyers underestimate the handwritten thank you. It contains power they don't see. It reveals one's heart. It lets the "other" know you recognize their importance. It's one way lawyers positively distinguish themselves from other lawyers and, for that matter, all types of business people. The key is to follow up immediately with prospective clients, referral sources, and new clients.

For example, after a meeting with a prospective new client the wise criminal defense lawyer immediately sends a handwritten thank you note to the prospect and the referral source. This prompt and thoughtful gesture makes a powerful impression. I am grateful for meeting you. I care about you. We can work to help each other in the future. Relationship is more important to me than money.

Or after a prospective client contacts the lawyer's office, they follow up with them immediately. The lawyer never leaves the office without first calling back every prospective client. When the lawyer is busy in trial, or otherwise unavailable, someone else in the office calls the prospect and informs them you're busy, but lets them know when to expect to hear back.

Or after a bar meeting, the wise criminal defense lawyer immediately follows up with new contacts made at the meeting with a handwritten note. The follow up may be sending them an article you offered to send, a call to set up a lunch, or a simple note telling them you were glad to meet them. Again, the message this sends is one of recognition and respect. Powerful, indeed.

Finally, after the lawyer is hired by a new client they immediately follow up with a written thank you. The client now learns his new lawyer takes personal responsibility for answering questions and keeping them informed. The client learns his new lawyer works with integrity and professionalism.

In other words, the handwritten thank you lets the "other" know how very important they are. It lets the "other" peek into the heart and see a crop of gratitude ready for harvest. It's power and it's powerful. Don't miss it.

Becoming The Expert

Clients don’t buy our technical competence as lawyers. They buy solutions to their problems. In short, they buy us. Rarely can potential clients distinguish levels of competency between lawyers anyway, except in the most extreme cases.

Technical competence in criminal law simply gets our foot in the door. It’s the minimum needed to get in the game. Criminal lawyers can learn all of the strategies and tactics they need to attract prospects and convert them to paying clients. However, it all breaks down if the lawyer is not technically competent. Eventually, the word gets out and will result in fewer referrals and poor word of mouth.

Beyond technical competence, however, the Bryan/College Station criminal defense lawyer must set out to be THE expert in their field. When the lawyer becomes THE expert, they become the problem solver and the go-to guy.

Set out to become the expert. Take the difficult cases. Work hard. Persevere. Stay on the cutting edge. Lawyers can set a goal to become board certified in criminal law by the Texas Board of Legal Specialization. Seminars and journals are other ways to improve expertise. Consider a trial college. Never stop learning. Constantly seek to improve. Finally, one of the best and quickest ways to become an expert is teaching, like teaching a criminal law course to paralegals at a local university.

But becoming the expert is still not enough. Once we've got it, we need to let others know. More on becoming known as the expert later.

Recipe for a Hung Jury

Anne Reed writes here about a jury foreman who felt so bad about convicting the defendant she agreed to pay her fine. Anne then adds her thoughts about empowering jurors to hold to their vote in the jury room.

Empowering jurors is key to success in trial work. The real art of empowering jurors probably developed in death penalty defense work where jurors where trained to hold to their "life" vote at punishment, resulting in a hung jury. A capital jury hung on punishment would then result in an automatic life sentence. Anne suggests letting jurors know "how important it is, and how hard it is, to stick patiently to their decisions when other jurors, and the promise of going home, press in." She suggests "helping them rehearse in their minds how they'll do it, if they need to." But there is much more to empowering jurors to hold on.

Certainly, individual jurors must be taught during voir dire that their vote is important. Their vote, whatever it may be, can be based upon any fact or factors important to them. That the verdict of the jury is not one verdict but 12 individual verdicts, which are based upon individual judgment and reflection.

However, another key component of training jurors to stand firm is to commit other jurors - the jurors in the majority - to respect the vote of someone else. And not only respect the vote of a holdout, but to teach stronger jurors to actually protect the vote of someone who has an idea different from theirs. Roughly, the voir dire go something like this:

Lawyer: Mr. Potential Holdout, you of course, believe the verdict of the jury is not one verdict, but twelve individual verdicts. [Yes, I do.]

Lawyer: Based on the jury instructions given by the judge, the law will demand each juror not violate their individual judgment and conscience just to reach a verdict. Do you believe your vote is important and deserving respect from other jurors, even if you are only one of twelve? [Yes, of course.]

Lawyer: Thank you. Now, Ms. Strong Majority Juror. You certainly believe each member of the jury deserves respect? [Yes, of course I do.]

Lawyer: You certainly believe their vote, even if different from yours, deserves respect and even protection from other jurors who might want to bully the holdout into a verdict? [Yes, absolutely.]

Lawyer: Then, can I count on you to protect the vote of a fellow juror even if you do not agree with it? [Yes sir, you can.]

Getting twelve people to openly committed to these ideas is a recipe for a hung jury. Although the lawyer still needs some facts to hang their hat on, the idea of empowering jurors to stand firm is a great strategy in the appropriate case. Regretfully for Joyce Buffaloe, the foreman of her jury had not been empowered, and other jurors not conditioned, to respect and protect the vote of a hold-out.

No Money? Who Cares?

Yesterday I commented here on the need for financial resources to level the playing field for the accused defended in the criminal justice system. This morning I ran across this review of a book by journalist Kevin Davis, entitled "Defending the Damned: Inside Chicago's Cook County Public Defender's Office." Davis wrote the book after shadowing the lawyers on Chicago's Murder Task Force, an elite office where the city's best public defenders represent defendant's in high-profile murder cases.

In his review, Radley Balko concluded:

Most people don’t care much for public defenders. The job is often despised not just by prosecutors, victims, and the public, but by defendants themselves, who see the lawyers as at best second-rate and at worst just another cog in a machine designed to crush them. Some don’t want a defense and can be openly hostile, even threatening. . . .

Prosecutors have police to investigate crimes, medical examiners and crime scene investigators to provide them with evidence, and considerably more support staff than public defenders do. The 1999 DOJ study, which seems to be the most recent one of the subject, found that prosecutors’ budgets exceeded public defense budgets by about 2.5 to 1. Indigent defendants don’t have their own forensics experts or private investigators, and courts aren’t always obliged to grant them taxpayer money to hire them. . .

If we’re serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we’re going to generously fund the government’s efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we’re a long way from that goal.

Again, more evidence - more grist for the mill - the playing field is lopsided in favor of the prosecution to the detriment of our system of criminal justice. No money? Davis found Chicago's best cared. He found an "unwavering dedication and passion among the task force attorneys, often to the detriment of their families, relationships, and health." I thank him for spending the time to understand them and the heart to write about his experience.

A Level Playing Field

During the 2005 trial of Brian Nichols for rape and false imprisonment, the State of Georgia alleged the following events occurred:

After a female sheriff's deputy, Cynthia Hall, removed Nichol's handcuffs so he could change into civilian clothes for trial, Nichols attacked the deputy and took her sidearm. According to hospital sources deputy Hall suffered bruising to her brain and some fractures around her face. After the attack her condition was critical, but she survived.

Nichols then crossed over to another courthouse where he entered the private chambers of Judge Rowland W. Barnes. While there he encountered another deputy, overpowered him and took his weapon. Nichols then entered Barnes' courtroom from a door behind the judge's bench, where Barnes was presiding over a civil trial, and shot him in the back of the head. Nichols then shot Julie Brandau, the court reporter. As he made his escape from the courthouse Nichols shot Sgt. Hoyt Teasley, a pursuing deputy. Barnes and the court reporter died at the scene and the deputy was pronounced dead on arrival.

During his escape Nichols tried to carjack at least three vehicles, ending up in a multilevel parking structure. He first took a tow truck at gun point outside the courtroom. Later he hijacked a car from Don O'Briant, a reporter for The Atlanta Journal-Constitution. Nichols assault O'Briant to gain control of the car. Nichols was charged with murder, kidnapping, robbery, aggravated assault on a police officer, battery, theft, carjacking, and escape. He subsequently pled not guilty to the charges.

Jury selection began in January, 2007. However, Nichols' attorneys disclosed at that time they wanted to pursue a mental health defense. Nichols' pre-trial hearing commenced in mid-September, 2007 when his lawyers claimed they were not receiving enough funding. Nichols' attorneys attributed this to the Georgia legislature limiting state funding for defense attorneys.

Last week the president of the State Bar of Georgia, Gerald M. Edenfield, wrote here about the trial. Edenfield explained the foundational importance of the state and defense playing on a level playing field when prosecuting and defending the criminally accused. Edenfield wrote:

The pursuit of justice on behalf of crime victims and the public — balanced against the constitutional rights of the accused to a fair trial and due process — frequently involves complicated issues that frustrate prosecutors and defense attorneys alike. This is especially true in death penalty cases, when all parties are particularly careful to ensure the proper verdict is reached and, if there is a conviction, the appropriate sentence is imposed. . .

All of us must remember that a level playing field between prosecution and defense is essential to our criminal justice system — no matter how complex or how open-and-shut the case appears to be from the outside. And because we have an appeals process designed to correct any errors that might be made at the original trial, "swift justice" requires the trial judge to get it right the first time.

Neither justice nor the crime victim is well served when the wrong person is convicted. The same is true when the right person is convicted under circumstances that would result in the conviction being overturned on appeal, because the defendant did not receive a fair trial.

When Edenfield speaks of receiving a fair trial he does not mean whether the defendant has competent counsel, or whether counsel is performing adequately to protect their client's constitutional right to effective counsel. What Edenfield speaks of is money. The money a defense team needs to properly investigate and explore avenues of defense. In Nichol's case, the money the State of Georgia must cough-up to adequately finance his lawyers.

In cases like these, when the community perceives a case is "open and shut," they demand justice be served - swiftly - and cheaply. This often results in the judiciary restricting funds to the defense for investigation and expert assistance.

When funds for the defense are limited, justice is not served. In other words, the playing field is critically lopsided in favor of the prosecution. However, the public must understand "no matter how complex or how open-and-shut the case appears to be . . . "swift justice" requires the trial judge to get it right the first time." That means making sure the defense gets all the money they need to level the playing field. A field where both sides have the opportunity to present their case in the most persuasive way possible.

Pro-Se Insanity

Marc Benayer, charged with murder and related felony charges from a shooting in Palm Beach County, Florida, decided to represent himself as the State of Florida sought to convict him by jury trial starting this week. An article in the Palm Beach Post commented on the trial and about the efficacy of self-representation (pro-se) in criminal cases. The article quoted a study by Erica Hashimoto, law professor at the University of Georgia School of Law, who found:

"The select few felony defendants who choose self-representation do not appear to suffer significant adverse outcomes from that decision," Erica Hashimoto, an assistant law professor at the University of Georgia concluded in her study, published this year in the North Carolina Law Review. Pro se defendants in state courts were convicted at rates equivalent to or lower than the conviction rates of defendants who had representation, Hashimoto found in her study of state courts data for six years between 1990 and 2000. The sample size of 234 defendants who still had no lawyer at the conclusion of their cases was too small, however, to draw definitive conclusions about their success rates, she said. Still, about 50 percent of the defendants who acted as their own lawyers weren't convicted of any charge, compared with 75 percent who had representation, Hashimoto said. And when they were convicted, it was less often on felony charges.

Frankly, Professor Hashimoto is off her rocker. I've seen the carnage of pro-se representation here in Bryan/College Station, Texas and it hasn't been pretty, especially in complicated felony trials or other crimes of violence. I've even served as "standby counsel" to one or two self-absorbed souls who thought defending themselves before the jury was in their best interests. It was a nightmare.

I understand, mind you, the accused has a constitutional right under Faretta v. California to forgo legal counsel and shoulder the burden of representing themselves. However, in my experience this tactic is usually a big mistake. I say usually because there are a few instances where pro-se representation might be effective. Those instances would be low-level, non-violent criminal cases where a jury might develop sympathy for a poor, young, maybe attractive defendant standing up to the power of the government by their lonesome.

However, in complicated felonies and crimes of violence, the pro-se defendant is biting off way more than they can chew. There are enough traps waiting for the seasoned criminal defense lawyer. But I assure you the prosecutor is licking his lips in anticipation of a sure victory and a throat slashing punishment result with a pro-se defendant.

With that said, I wish Mr. Benayer the best of luck. The old saying "better to be lucky than good" applies in his case. I doubt Mr. Benayer is good, so I hope he can get lucky.

Real Life "CSI" Effects

I ran across a great article, here, in the News Virginian about the adverse effect shows like CSI (Crime Scene Investigation) have upon the real-life criminal justice system. Writing for the paper, Rob Seal states:

As crime shows focused on cutting-edge forensic investigative techniques have spread throughout the prime-time television landscape, prosecutors and defense lawyers have started to take note and respond.

During jury selection in high-profile criminal trials, it’s now commonplace for lawyers to ask potential jurors whether they watch a lot of TV police shows. The fear is that forensic crime-show connoisseurs selected for a jury could bring an unrealistic set of expectations to a real-life trial.

"It’s even got a name. They call it the ‘CSI effect,’" said Charlottesville defense lawyer Rhonda Quagliana.

I agree that TV shows have an effect upon potential jury pools. However, I believe the prosecutors have more to fear from "crime-show connoisseurs" than do the informed Texas criminal defense attorney.

I regularly hear prosecutors ask potential jurors whether they watch crime shows like CSI. But I also regularly hear able defense lawyers ask the jury, "where's the DNA?" And many times it works! Yes, it is sometimes used as a ploy to divert a jury's attention. But on other occasions it's a reasonable and reliable component of the "things not done" defense.

I don't mind if jurors reporting for duty come with an unrealistic set of expectations regarding forensic technology. It is easier to explain away DNA evidence from the defense side, than to explain to a demanding jury why the police did not test for the substance in the first place. Consequently, the majority of times the "CSI effect" is an advantage for the defender.

Too Much Victim Impact?

Scott Greenfield wrote last week about the danger of allowing crime victims too much influence upon sentencing judges. Scott argued that victim impact had already been encompassed in sentencing schemes but the current "fad" in criminal justice was to allow victims to push for sentencing increases. Scott writes:

Built into the system is the consequence of criminal conduct. As much as the pain caused to victims and their families by crime is enormously personal, the anticipated outcome of crime is not a surprise. That's why it's a crime to begin with. We can expect victims to explain the personal impact with detail and emotion, but should victims have an independent right to push a court to use the statutory sentence as a baseline and increase the sentence based upon the desire and ability of victims to express their personal anguish?

The answer to this question is obviously no. In Texas, as part of punishment evidence, the victim can provide testimony about the impact of the crime subject to the rules of evidence. Furthermore, the victims of crime have a right to personally address the defendant and express their feelings about wrongs done to them, but only after the sentence has been imposed. I agree with Scott when he said:

The true nature of victim impact statements is to give victims the impression of having a role to play in the punishment of the perpetrators of crimes against them. It is cathartic, and helps victims to release the anger, frustration and even hatred so that they can move forward. This is a worthy purpose, and I have no argument against a defendant being forced to stand their and be confronted by their victim, taking whatever the victim wishes to give.

However, over the years I've noticed victims having greater and greater impact upon the decisions made by prosecutors. In particular, decisions about whether a prosecutor will offer to recommend a particular punishment outcome in exchange for a defendant's guilty plea. In Brazos County, Texas I've noticed victims having too much say in whether a particular offer will be made.

I understand the job of prosecutor is subject to the whims of the voting public since the position of district attorney is an elected one. But how long will the prosecutors allow victims to pull their strings, especially in high profile cases where public opinion is fueled by anger and hatred of the criminally accused? In routine cases I find this victim impact less troubling. Only when the case frequents the front page, above the fold, do the state's attorneys buckle to victim and community pressure.

Like judges, prosecutors need to maintain a professional detachment from the whims, emotions, and hatred of victims. This detachment is a necessary component of a prosecutor's charge of seeking justice in every case.

Working Like Dogs

I just loved this post at Deliberations last week where Anne Reed discussed the findings of some incredible recent studies:

"According to a groundbreaking new study by the Department of Labor, working—the physical act of engaging in a productive job-related activity—may greatly increase the amount of work accomplished during the workday, especially when compared with the more common practices of wasting time and not working."Our findings are astounding: By simply sitting down and doing work, employees can dramatically increase their output of goods and services," said Deputy Undersecretary of Labor Charlotte Ponticelli, who authored the report. "In fact, 'working' may revolutionize the way people work." Perhaps even more shocking, the study reveals that not working significantly decreases worker productivity, sometimes even resulting in no work getting done at all. Similar findings were reported in the areas of avoiding work, putting off work, complaining about work instead of actually working, pretending to work, and fucking around. "Fucking around is in fact detrimental to the work process," the study reads in part."

But Anne, you forgot to include this quote:

"A similar study conducted at Harvard University over a period of three years attempted to determine conclusively whether working was more productive than various different subsets of not working. The results showed across the board that working is 100 percent more productive than listening to music and checking e-mails, 100 percent more productive than meandering around the office socializing with coworkers, 100 percent more productive than playing online Sudoku, 100 percent more productive than watching YouTube videos of nostalgic childhood television programming, 100 percent more productive than reading celebrity-gossip blogs while chatting with friends on Instant Messenger, 100 percent more productive than napping, and 98.2 percent more productive than not showing up to work."

Make no mistake. My team at the office works like a prized sled dog team. We don't gossip, meander, socialize, play Sudoku, or watch YouTube videos. We work diligently to keep our clients happy and informed. My staff and I take personal ownership responsibility for the practice. We're all business but we do enjoy a good joke or laugh once in a while. Thanks, Anne, for providing it this week. BTW, the next time I catch someone napping on the job, they're fired!

Trial For Sport

Thanks to Norm Pattis and Scott Greenfield for posting here and here about the prospective criminal defense client's "Sporting Theory of Trial." In layman's terms it's a defense lawyer's won/loss record. A record prospective clients frequently ask about and believe we are poised to tell them just given the opportunity.

Norm starts with the question "A great trial lawyer never loses, right?" He follows with the following insight:

Trial differs from sport in one fundamental respect: In a sporting event, the rules of engagement are structured in such a way as to focus attention on the skill and preparation of the contestants. A football field is but 100 yards long. However, the skill of the players, their game plan, their preparation determines the outcome.

Trial differs from sport. Oh, there is an arena, and the event is bound by rules. Talent and skill can make the difference. But unlike a sporting event, the litigants are not the focal point. Trial is a search for truth about what occurred between the parties. No effort is made to assure that trial is merely a test of the lawyers' skills. The facts and the law tilt the field in one direction or another. Sometimes a good lawyer, even a great lawyer, can only hold on in the face of an avalanche of evidence and law that does not support his client.

Scott adds this:

If you want to know whether the lawyer is any good, there are two questions to ask yourself. Does he know what he's doing and will he fight for me to the end. Other than that, the score card means nothing. You're hiring a lawyer for his or her "dedication and hard work," as Norm says, and I would add his or her skills. That's what we have to offer. If a lawyer can remember his score, chances are that he hasn't been around long enough to remember or he's just full of baloney.

And finally, Norm concludes:

The sporting theory of the trial misleads lawyers and clients. I am cocky enough to think that were trial an athletic event I would be invincible. But I am aware of fact patterns that tilt the floor such that I am happy enough to remain standing until the verdict comes in.

None of us wants to mislead clients. The honest and fair approach is to explain that no two cases are anywhere near comparable and that our "won/loss" record is a meaningless attempt at self-promotion and self-glorification. Thanks gentlemen for the discussion on an always apropos subject.

Jobs Well Done

Give criminal defense lawyer Mark Bennett great credit this week for successfully defending his client charged with murder. Mark's success was measured not by an acquittal, but rather the punishment verdict of probation after the jury convicted his client. Wednesday, the jury returned a guilty verdict here and awarded Mark's client with probation here. Based on Mark's trial blog post here, it appeared the conviction and probation was a compromise verdict. Often when jurors battle between themselves on whether to convict, the aftermath of a guilty verdict is probation. I've seen this many times over the years. Mark's successful defense was quite apropos following my Wednesday post about prosecutors and judges approving probation for murder. Here's hoping Dunklin and Egerton (reporting for the Dallas Morning News) catch wind of this story.

Another superb example this week of Texas criminal trial lawyering occurred in my own Brazos County, Texas backyard. The law firm of James and Reynolds represented Susan Chiniewicz, charged with the murder of her infant child, dumped in a trashcan at the Texas World Speedway in October 2005. Chiniewicz was originally charged with capital murder, but by trial the prosecutor had elected to proceed on the 1st degree felony charge of murder.

The offer to settle the case was 40 to do. That is, in exchange for her plea of guilty to murder, the state was willing to recommend a sentence of 40 years in prison. Ms. Chiniewicz would not have been eligible for parole until she served 20 years flat time.

However, the Brazos County D.A.'s Office got quite the smackdown. The jury returned a verdict of guilty on the lesser charge of criminally negligent homicide and assessed a sentence of 2 years in a state jail. (see article here) Ms. Chiniewicz will serve each and every day of that 2 year sentence. A tail whipping by Jim and Cameron, indeed!

Good work by the Texas criminal defense bar.

Probation for Murder?

Reese Dunklin and Brooks Egerton reporting for the Dallas Morning News revealed their bias and naivety in their article Unequal Justice: Anyone Can Get a Deal. They criticized awarding probation, including deferred adjudication, to allegedly violent repeat offenders who had received prison time for prior crimes. The duo scolded both prosecutors for making the deals and judges for approving them. They said:

Most of the sentences originated with prosecutors, making plea bargains with the defense. The one exception was a convicted robber who, days after release from prison, tried to rob again and killed a man. He couldn't get a deal from prosecutors, so he threw himself on the mercy of a judge and lucked out.

Juries couldn't sentence any of these killers to probation, because they had felony records. But prosecutors and judges aren't bound by that restriction if they use a special form of probation – off-limits to juries – called deferred adjudication.

Dunklin and Egerton quoted Professor Marc Miller as authority in this field:

Marc Miller, a University of Arizona law professor and sentencing expert, called deferred adjudication "a stunning outcome for any killing" and added: "The point is only more true for a repeat killer."

Professor Miller was purportedly an "expert" on sentencing. However, I bet you dollars to donuts he never tried a murder case in his life. I suppose Dunklin, Egerton , and the learned Professor Miller would rather see the State push a weak case and lose their murder case to a jury, thereby emboldening the defendant and eliminating any potential community supervision that might have benefited the public welfare.

Why stick up for the prosecutors this morning? First, I understand their life as public servants since I shared it earlier in my career. More importantly, I tire of journalists pontificating on subjects they know little about. Problems with witnesses, bad police searches, involuntary confessions, and the like, turn murder cases into nightmares for a prosecutor. These "talking heads" have never experienced the reality check of a "Not Guilty" verdict appearing in conjunction with their name (as prosecutor) on the front page of their local news paper.

If the lawyers in charge of prosecuting murder cases are satisfied with probation, why shouldn't the public be too. When judges, who have authority to reject any plea agreement, are satisfied with probation, who are the talking heads to argue. Until they have tried, and lost, a murder case I wish the the likes of Dunklin and Egerton would keep their criticism of plea bargaining to themselves.

Remembering 1984

George Orwell's novel tells the story of Winston Smith, a member of the Outer Party living in the ruins of London, a chief city in the totalitarian super-state of Oceania. Winston keeps a journal of his negative thoughts and opinions about this totalitarian regime. If found, these thoughts would result in his torture and death by the Thought Police. The Thought Police have monitors in every Party household and public area, as well as hidden microphones and informers to catch potential thought-criminals who could endanger the security of the controlling Inner Party.

With this backdrop, here we learned that Law School Professor Hank Greely was part of a nationwide group of researchers centered at UC-Santa Barbara who recently received a $10 million grant from the MacArthur Foundation to study the ways in which neuroscience can be applied to the justice system:

“Advances in neuroscience and our understanding of how the brain functions have both immediate and long term implications for the legal system,” Law School Dean Larry Kramer told The Daily in an email. “As advances in neuroscience teach us to understand this better, we cannot help but change the way law deals with a wide variety of problems.”

Neuroscience has a number of applications to the law, mainly involving lie detection and personal responsibility for criminal behavior, which could raise serious ethical questions for judges and juries in the future.

San Diego-based startup No Lie MRI has developed a lie detector that employs MRI technology to detect lies with 90 percent accuracy. The possibility of foolproof lie detection could have far-reaching effects on the justice system, but experts are careful not to get carried away before the new technology has established itself as legitimate. Current constitutional protections were not written in anticipation of advances in neuroscience and would not offer much defense against the aggressive use of neuroscience in trials.

Greely argued that the First Amendment does not currently guarantee freedom of thought, and that the Fifth Amendment protection against self-incrimination only applies to testimony. MRI tests may be put under the same non-testimonial category as breathalyser tests, he said. If neurological advances occur in the near future, Greely warned that the Bill of Rights may not be expanded to address neuroscience.

Maybe Orwell's fiction was not as far from the truth as he might have imagined?

Our Best Stories

We've been looking at the Story as the criminal defense lawyer's device through which he persuades the jury his version of the case is believable. Without a story the lawyer's presentation is no more than an unmemorable "information dump," failing to give the lawyer's information any context. The story gives the audience something to take with them once the presentation is finished. Here we looked at creating a human event using the story, thereby personally involving the jury. Here we learned the importance of creating momentum and suspense in the stories we tell.

But from where does the energy come enabling us to tell an authentic story? A story to which our jury will respond? In other words, how do we go about telling our best stories to move the jury into action on our client's behalf? Simply put - our credibility and authenticity comes from our own life experiences. The story we tell using an event or emotion to which we can personally relate enables us to tell our story with power. It enables us to tell our story with personal involvement. Without this emotion and personal involvement, our story comes across as hollow and fake.

Our job as defense lawyers is digging deep for the resources we need to zealously represent our clients against the power of the state. If digging deep means tapping our own experiences of fear, loneliness, and desperation, then that is where we need to go. It makes us more human and better advocates.

Cockiness Kills Credibility

An interesting study from the University of California, Berkeley confirmed what experienced criminal defense lawyers already knew. The study showed the marked loss of credibility when an over-confident witness made a mistake while testifying compared to an appropriately confident witness making the same error. The phenomenon is something I've observed many times in over 17 years of trial work. The researchers concluded that:

. . . self-assured witnesses who make a mistake - even on issues of little importance - undermine their credibility by raising doubts about their competency, their ability to judge their own abilities and their motivations.

"People giving testimony, or advice, or opinions should therefore be careful to express appropriate degrees of confidence in their assertions," the researchers write in a summary of their report in the January issue of the journal Psychological Science.

[The researchers] said the team's findings challenge the frequent tendency of attorneys to pressure their witnesses to project a strong sense of confidence and to minimize the use of hedges like "I think" or "maybe." Academic experts encounter similar pressures when asked to testify before policy makers, he said. But this first-of-its-kind study shows that such a strategy can backfire if a cocky witness gets caught in a mistake.

The cocky, arrogant, or over-confident witness builds a wall between themselves and the jury. Since normal, ordinary, and reasonable people know we all make mistakes, the over-confident witness projects an air of superiority which juries tend to resent. Consequently, when the witness is caught in a mistake the jury is quite happy to punish him by greatly devaluing his credibility.

The over-confident witness is often one testifying as an expert, but the problem also affects the lay witness. The experienced defense lawyer preparing these witnesses for court will recognize the problem and take appropriate steps to temper their over-confidence.

The Real Story

Once the facts of our case are transmitted to the jury, how will their knowledge be transformed into caring and action for our client? While jurors observe and respect a lawyer's presentation of evidence and knowledge of the law, to what do they really respond? In short, it is the human event the Texas criminal defense lawyer creates in the courtroom, it's The Story.

The jury wants to hear a story. They have an appetite for it. Our story defines a cause that makes it different from all other stories. Our story defines where the fight will occur. Our story makes the result the right thing to do. The lawyer marshals the juror's feelings, as well as the facts, moving them to action on our client's behalf using the story.

Stories told in the present tense capture the imagination. For the teller to focus everyone's attention on her telling, she is personally involved and is speaking as one human to a group of fellow humans, not as a professional to amateur. The teller is putting her audience on equal footing as people actually experiencing this human event.

The story then doesn't belong to the teller alone, it belongs to the audience and the teller together who experience it simultaneously. The teller wants the story told to personally involve the listeners. Involving the listeners to this extent, they feel their active participation is necessary for the story to achieve its proper ending. The listener feels they are necessary for the story to proceed from moment-to-moment.

Telling a Better Story

The Story is the framework within which a jury evaluates our defense. Shouldn't the criminal defense lawyer learn to tell a better story? We arrogantly assume we know how to tell stories and our arrogance inhibits our learning. We told our children stories at bedtime, didn't we? As kids we sat around a campfire and told stories ("lies") to our buddies to impress them with how smart or virile we were. My guess? The stories we told our children and camping buddies all had elements common to great stories. But as lawyers we forgot how to tell a good one. Too much legal analysis, too much legal training.

Ira Glass is well known as a master story teller. Here he talks about the basic building blocks of a good story. His advice fits no matter what kind of story you need.



In short, Ira suggests developing your story with momentum and suspense. Imagine the story is a train leading to some destination. We don't need to reveal the destination - just yet. Tell the story while leading your listener down the path you want them to go. Additionally, Ira suggests "baiting" the story to create suspense. That is, raise questions that you answer later in the story (or during the trial). Lastly, the story must have a moment of reflection. This moment shows the story actually means something to somebody (the client). The client was wrongly accused, misunderstood, taken advantage of, and the like. The moment of refection gives your jury a reason to believe you and decide in your favor.

Story telling should be fun.  Brazos County criminal defense lawyers should have fun telling their client's story, giving their jury a context within which to obtain a favorable verdict. More on storying telling later.

My Twelve Special Jurors

My Twelve Special Jurors gave us a mistrial last night when they were unable to decide the issue of my client's guilt. The jury was hung 6 to 6 after about 3 1/2 hours of deliberation. My client was standing trial for possessing a firearm while being a convicted felon. After the trial the jurors gave us valuable insight into the weakness of the state's case.

This was the second time this case was tried to a jury. In 2002 my client was represented by out-of-town counsel, was convicted, and was sentenced to 13 years in the penitentiary. After a writ of habeas corpus was granted in 2006 on ineffective assistance of counsel, the case was remanded to the trial court and I was appointed to represent the accused.

After remand the state wanted to move the case. Consequently they offered to recommend time-served in exchange for my client's guilty plea. If accepted, my client would need only to check-in, then check-out of the county jail since he had over 4 years of flat time on the books. Remarkably, my client rejected the offer immediately. Many of my colleagues around the courthouse chuckled. "He's crazy," they said.

After trying the case the way it should have been the first time, the weakness of the state's case became clear. This was basically a one witness case with the arresting cop offering his bogus opinion my client was acting "suspiciously" and was trying to hide something after getting out of his car during a routine traffic stop. The video of the stop did not support this conclusion and the jury saw through it.

The problem was an alibi witness the defense called in the first trial. The state called him this week. This witness should never have been within a mile of the courthouse in 2002. There were too many problems with him that the defense could not explain. See Bennett's Chainsaw:

The more things you must contest and the more explanations you must provide in order to mount a defense, the more likely it is that you will be convicted.

Be that as it may, my client is ready to try the case again. It's my job to figure out how to win. After running the play twice we're confident 3 is the charm.

Another Week in the Saddle

I'm not eating right, sleeping right, or acting right this week. I must be in another jury trial. In fact, I am defending my client in state district court against the the government's allegation he knowingly possessed a firearm after having been convicted of a felony.

Jury selection was yesterday and was very challenging. The difficulty was finding a group of jurors who could give my client a fair trial already knowing he was a convicted felon. (I called them my Twelve Special Jurors) It only took one courageous member of the panel admitting their bias before a rash of folks said they would use the prior felony as an inference of guilt if they were not sure the state met their burden of proof beyond a reasonable doubt. We were successful in striking each one for cause.

The jury is composed of 10 women and 2 men. My Twelve Special Jurors. We begin the evidence this morning when I expect the state to call around three witnesses to prove their case-in-chief. When I'm feeling more like a normal human being again, I'll let you know how things turned out.

Phenomenology of Innocence

Confessions are devastating to the defense lawyer's case. I regularly watch my comrades in the defense bar battle over the admissibility of confessions. Most attacks upon confessions focus on either voluntariness or violations of Miranda and related state statutes.

The valuable work done in DNA exoneration cases utilized another strategy defense lawyers should consider - the false confession. Although a false confession is not necessarily inadmissible evidence, research in this area provides the criminal defense lawyer with ammunition to attack the weight given to such evidence. Dr. Saul Kassin argues that actually innocent people are apt to falsely confess because of their inherent trust in the criminal justice system. The following is an abstract from his recent research:

Recent DNA exonerations highlight the problems found in wrongful convictions, 15 to 25 percent of which contained confessions in evidence. I argue that actual innocence, and the phenomenology that accompanies it, harms people who stand accused of a crime across a sequence of pivotal decisions. The phenomenology of innocence may be rooted in a fundamental belief that the world, and it may also stem from of the "illusion of transparency," a tendency for people to overestimate the extent to which their true inner states are detectable to others. Either way, innocent suspects, naively believing that truth and justice will prevail, and that they have nothing to fear or hide, unwittingly put themselves at risk by failing to realize that they are suspects not witnesses; waving their Miranda rights to silence and to counsel; sacrificing the protection afforded by a full eyewitness lineup; agreeing to searches, examinations, and lie-detector tests that are used against them; protesting their innocence and thus unwittingly triggering highly confrontational interrogations; and by succumb to police pressures to confess in the expectation that ultimate exoneration is forthcoming. As the criminal justice system does not afford adequate safety nets (e.g., police, judges, juries, and others cannot sufficiently distinguish between truth and deception, true and false confessions, or accurate and erroneous eyewitnesses), it appears that innocence is an enemy of the innocent confessor.

Thanks to Dr. Karen Franklin who brought this interesting research to light here where she wrote about the recent Interrogations & Confessions Conference in El Paso, Texas. The conference covered a variety of topics of interest to the Texas criminal defense lawyer.

Trial Prep Recon

I've had a unique opportunity preparing for trial this week by observing the jury trial of my client's co-defendant here in Brazos County, Texas. I'm not talking about reading transcripts or reviewing newspaper accounts of the trial, but actually sitting in and watching the jury selection process, opening statements, and witness testimony.

My client was charged with another young man under Texas law with animal cruelty by torture. Under Texas law, torture is causing an animal unnecessary pain or suffering. The government alleged this person and my client planned and set out to torture a horse by hitting it with a mallet and cutting it's throat with a knife. The State's theory was the co-defendant actually cut the horse's throat causing its death. However, they also claimed my client was a party (accomplice) to this crime by encouraging or aiding the co-defendant and doing so with the intent the crime be committed. My client denied, from day one, he ever intended any animal be hurt. The testimony today backed his story.

The evidence so far came from two key witnesses. First, a roommate (RM-1) who allegedly heard my client and co-defendant "planning" this tragic crime. Second, another roommate (RM-2) who was with my client and co-defendant in the pasture when the horse was killed, who by the way did not hear anyone plan anything.

I observed RM-1 testify this morning. I was not impressed. He tended to minimize much of his involvement that night and minimized his extremely poor relationship with my client. This poor relationship gave him a very powerful motive to slant his testimony against my client. In fact, RM-1 and my client had been involved in several serious fist fights prior to this night - one in which my smaller client was on the ground being kicked by RM-1. RM-1 strategically omitted the seriousness of this altercation, but his omission was exposed during the testimony of RM-2 later in the day.

RM-2 was the best witness who testified so far. His testimony interjected energy into the case which had been lacking up to now. RM-2 testified that RM-1 was a problem in the past, abused alcohol regularly, and caused difficulties between RM-2 and his other friends. It seemed the State discredited it's case against my client by demonstrating bad blood between he and RM-1. Beyond this, RM-2's testimony described my client's great compassion and concern for the injured horse as they comforted it after the co-defendant had stabbed it several times.

I can't imagine the jury believed my client was an accomplice to this crime after hearing the emotional testimony of RM-2. I've been taking good notes and eye-balling these witnesses one-by-one. The testimony of these critical witnesses will appear prominently in my negotiations with the prosecutor once the current case is concluded.

Excluded Testimony Leads to Reversal

Dr. Karen Franklin reported here that an Illinois appeals court overturned a robbery conviction because the trial court did not allow expert testimony regarding the fallibility of eyewitness identification evidence. Mr. Walter Allen was sentenced to prison for a 2001 robbery-shooting. The robbery was committed by two men wearing "hoodies" who entered a dry cleaning business, demanded money, and shot a woman employee in the back. From her hospital bed, the woman identified Allen from a photograph as the shooter. Dr. Franklin stated further:

At Allen's trial, the judge refused to allow an expert witness to testify for the defense about problems with eyewitness identification. The judge said that the testimony of Dr. Steven Penrod, a respected psychology-law professor at the John Jay College of Criminal Justice, was unnecessary and might confuse the jury.

In its opinion in People v. Allen, the appellate court pointed to research establishing that eyewitnesses are often wrong, and that jurors have misconceptions about eyewitness accuracy. It cited prior Illinois rulings stating that expert testimony can dispel myths and correct misconceptions, and that "the science of eyewitness perception has achieved the level of exactness, methodology and reliability of any psychological research."

These cases are grist for the College Station criminal defense lawyer's mill. Earlier this summer we examined some important issues regarding eyewitness misidentification here and here. Traditionally, trial judges are given wide latitude when deciding whether to allow expert psychological testimony. In Texas courts, the foundational cases regarding the admissibility of expert testimony are Daubert v. Merrell Dow Pharmaceuticals and Kelly v. State. These cases say judges can exclude such testimony in some cases, but first they must carefully scrutinize the proffered testimony and determine whether it is relevant. Further, judges must determine whether the expert testimony might be helpful to the jury. In the Allen trial the court said no such careful scrutiny took place.

The aggressive criminal defense lawyer should develop expert testimony to discredit the testimony of eyewitnesses. Even in cases where lawyers are court appointed, motions requesting funds for expert assistance should be an integral part of the lawyer's motions practice. With cases like Mr. Allen's to back us up, even the denial of our request for funds can lead to a reversal.

Reciprocity

Reed and Bennett talk about juror secrets here and here. Anne presented the problem - the jurors have secrets and we need to know them. Mark presented the answer - we must first reveal our secret before the jurors will reveal theirs. Mark was describing reciprocity. In other words, a person responds to what is given to them. Sad for sad. Fear for fear. Slow for slow. Secret for secret.

Reciprocity is a powerful tool for the criminal defense lawyer which helps us connect with other human beings. The power in revealing ourselves to another is the affect it has upon the listener. During jury selection, when the trial lawyer reveals herself to a potential juror, she is connecting with another human being while developing rapport and trust. When a juror trusts us they will reveal things to us, even in a crowded room where other people are listening.

When there is no trust between lawyer and juror there is a psychological barrier separating the two. It is us versus them. We break down the barrier when we expose our own vulnerability. Once the juror realizes were are really one of them, they are better equipped to reveal their own vulnerability, i.e., their secrets.

Good Expunction News

On September 1, 2007 HB 1303 amended the Texas Government Code giving Texas expunction and non-disclosure laws more teeth. The amendments attempt to solve the problem when private companies continued to maintain criminal record information and disseminate it even though it was ordered destroyed, or sealed by an order of expunction or non-disclosure. These important amendments prohibit the Texas Department of Public Safety (DPS) from selling criminal records to companies who fail to honor expunction and non-disclosure orders. They also create a duty for companies to update criminal history information to reflect orders of expunction and non-disclosure.

New section 411.0835 of the Government Code directs DPS not to release any new criminal history information to a company, for a year, if the company purchases criminal history record information from DPS but continues to disseminate it after the information was expunged or ordered non-disclosed. This will supposedly hit the company in the pocketbook by making their records obsolete for at least one year.

New section 411.0851 creates a duty for a company who disseminates criminal history information for a fee. The company must destroy and not disseminate information in their possession after they've received notice an order of expunction, or non-disclosure, has issued for that information. The section also allows for money damages and attorney's fees if the company is held liable for disseminating information in violation of this law.

These amendments are good news for persons taking advantage of the Texas expunction and non-disclosure laws. Hopefully, they will make folks more secure knowing that private companies have an economic incentive to make sure their records are accurate.

The Fee Agreement

Mark Bennett writes about the criminal defense lawyer's contract here. Mark correctly states that any criminal defense lawyer handling retained cases should develop a good contract, or fee agreement. I disagree with Mark on one point, however. I think the prudent defense lawyer should execute a written fee agreement in every case in which she receives a fee. It's just good, sound business practice.

I love open-source code of any sort (see previous post) and Mark offers an "open-source" contract for our review here. Several of the terms I find indispensable are:

1. The contract distinguishes between the lawyer's fees and out-of-pocket expenses. It is important for the client to know they will be responsible for all out-of-pocket expenses incurred in the defense of their case;

2. It limits the representation to one trial. Years ago I did not require an additional fee for any "retrial" of the case and had to try a case again for free. Not good for either the lawyer or the client, by the way;

3. The contract excludes representation for an appeal. Again, a good idea to require a separate fee agreement for any work beyond that at the trial level;

4. The contract is for a fixed, or flat fee. Mark and I both like fixed fees in criminal cases. It gives the client a sense of security knowing what the representation will cost up front. It also saves the lawyer from the drudgery of keeping track of every "tenth" of an hour spent on the case;

5. It informs the client that non-payment of agreed-upon fees permits the lawyer to withdraw from the case. This helps communicate the importance that clients honor their financial obligations to their lawyer; and

6. It states the lawyer has not, nor can he, guarantee any specific result in the case.

A couple of suggestions for improving the open-source fee agreement are as follows:

1. Legal representation does not begin until the agree-upon "contract fee" is paid. That may be implicit in Mark's open-source code, but I like making it very clear; and

2. The client is obligated to advise the lawyer of any address change, or change in telephone number. This sounds like nit picking, but believe me it comes in handy when the client refuses to cooperate and properly communicate with the lawyer.

A Trial Lawyer's Love-Hate Relationship

In Mark Bennett's recent post, Trial Mode Off, he was describing his love-hate relationship with the work of a criminal trial lawyer. Mark and I are totally simpatico on this. Mark writes:

We prepare and prepare and find ourselves ready or at least ready to announce ready, our loins girt, our witnesses subpoenaed, our files organized, only to be told to come back again in a month or two or three. Sometimes it's a blessing -- there is often one last little thing left undone on the eve of trial, and the delay allows us to do that last little thing and discover another last little thing left undone on the next eve of trial.

I'm always amazed at the number of things we think of during trial preparation to shore-up our theories, evidence, and arguments. Like Mark says, sometimes it is a blessing to get "reset" so we can follow-up on some of the things left undone. Mark says further:

Trial preparation is work. It's not digging ditches, but it requires a lot of energy to do right. In addition to planning strategies for jury selection, opening statement, cross-examination, direct examination, and closing arguments I dream up trial motions, research trial briefs, and write proposed jury instructions. At the same time I'm marshaling my witnesses, gathering my equipment, and rescheduling the hundred other things that might otherwise threaten to intrude when I'm in trial.

It seems the trial lawyer's creativity mode goes into overdrive during trial preparation. On many cases I maintain an "idea book" that includes space for a "to-do" list, jury selection ideas, opening statement, direct and cross-examination ideas, theories, legal research, jury instructions, rebuttal, closing, etc. I find the idea book is a great way to keep things organized. Mark continues:

I'm also preparing myself physiologically. My body shifts into survival mode. A steady trickle of adrenaline drips into my bloodstream. I don't need as much sleep. I might wake up at four in the morning with an idea and write it down. Then I might slip back into sleep, or just spend the rest of the morning thinking about the case.

I don't eat right, sleep right, or act right when I'm winding up for trial. Please understand I enjoy eating, sleeping, and acting right. But the adrenaline drip is like a itch you just can't scratch.

The people who live with me see me slipping into trial mode and, since they've been through it before, prepare themselves for the trial.

My people simply get out of my way. I don't like that either. My kids are not quite old enough to understand it. My wonderful wife simple endures it. Since Mark's wife is also a lawyer, hopefully she understands it somewhat better. He says further:

When I'm in trial, losing is not an option. It's too late to red-team the case; what I call (and Scoplaw calls) "trial psychosis) takes over; I put on what Gideon calls trial blinders. In my mind I have a response to every prosecutorial argument and objection. My advocacy couldn't possibly fail to raise a reasonable doubt in the mind of any juror with a brain. I'm Clarence Darrow, Earl Rogers, and Alan Shore rolled into one. The things left undone are unimportant; I have everything I need to win. I'm tuned in to every nuance of every word everybody says. I'm a mind-reader. The courtroom belongs to me, and I'm the best lawyer in it. I'm feeling sorry for the prosecutor who has to face me. I'm a superhero.

I am totally there. I can't figure out why everyone in the courtroom doesn't see things my way. The courtroom does belong to me and I am the best lawyer in it. Like Mark, when I walk in I have everything I need to win. Last week, though, Mark had to turn off the switch:

Click. The adrenaline drip is disconnected. The hundred things rescheduled can now be dealt with. The witnesses will have to be marshaled again later. My family has me back. And I have to shift back from trial mode to ordinary-life mode. This afternoon I took a three-hour nap. I feel like an ordinary human being again. Almost.

Trial mode is hard. I don't really like it. I like being an ordinary human being. But after it's over I look forward to doing it again. Crazy! That is the love-hate relationship defense lawyers have with trial work. Thanks for the post, Mark.

What Are Pictures Worth?

Anne Reed, at Deliberations, wrote about pictures and their affect upon perceived credibility. She commented about a recent study:

"The mere presence of a picture of a brain, in an article about cognitive processes, makes us more likely to believe what we're reading -- even though most of us have no ability to understand the picture."

Her article was fascinating. The study showed a technical article about the brain, that included photographs, was perceived to be more credible and better written. She made this recommendation to lawyers:

"At one level, the message for lawyers here is clear: use pictures, and not just any pictures. Pictures may be most powerful when they represent what you're talking about as directly and concretely as possible."

I'd been toying with this same idea for some time. At a recent legal seminar a speaker showed us how he started using pictures during jury selection to help train the jury to understand legal concepts and others issues involved in his case. During my last jury trial I experimented with the photograph above, depicting a mentally ill patient, to help get the jury thinking the way I was thinking. It got them talking, at least.

This is such an interesting topic, I hope we hear more about it.

Texas Prison Conditions

Scott Henson at Grits for Breakfast stuck in his thumb and pulled out a plumb in my own backyard (Bryan/College Station) with this gem from the Texas A&M Battalion. Student journalist, Travis Holland, wrote this piece about the "cushy" conditions in Texas State prisons. In 23 comments to date, the informed public have ripped into Travis with a vengeance. Some of the comments so far:

Hate to tell you this is BS! I worked for TDCJ for many years, NO A/C and the there is 1 TV for 400 inmates (that the guards watch most of the time);

I'm sorry, but for every case of the Texas Prison System being too lax, there are PLENTY of cases where the system is being far too strict, bordering on (if not certainly) torturing prisoners - and this is NOT just in private prisons in the state, but in state ran ones;

I hate to tell you this but, your facts are completely incorrect. What about the innocent people in prison do they deserve the hell they live day in and day out. Until you have someone in the dept. of corrections you have no idea what things are like in there. You make a generalization that all inmates are terrible and all guards are saints. That is simply not the case;

I cannot believe the immaturity of this article and how factless it is. Until you have lived the torture of a loved one trapped in the Texas department of corrections you have no right to make the conclusions you have made;

What most Americans think is that they are too righteous and good to ever be caught up in the penal system. Surprise, on any given day in an unanticipated moment of anger, desperation, or perhaps even by accident any one of us may be facing a future behind bars. I am a former Texas sheriff and have long thought and stated that from 12-15% of inmates in Texas, and probably across the nation, are incarcerated for something they did not do.

I don't know if these folks are registered to vote or have Texas driver's licenses, but I sure hope they start showing up for jury duty in Brazos County. We just might start getting some justice around here.

Courtroom Technology

Utilizing computer technology in the courtroom has been a hot topic for several years. However, the difficult part is taking your first plunge. During last week's criminal trial in Brazos County I experimented with several computer technologies that helped me communicate information and ideas to the jury. Using a laptop computer (MacBook Pro), scanner (HP), and projector (Dell), I accomplished some interesting (and eye pleasing) things during trial.

Before trial I scanned in all the documents I anticipated admitting into evidence. I also took the crime scene photographs on CD, provide through discovery, and downloaded them on to my laptop using iPhoto (Apple's bundled image viewer). In iPhoto I could manipulate and massage the images to my liking. However, I also needed a program to project individual images through my projector and onto the wall or projector screen. This type of program is referred to as an image (or photo) presenter. Not all image viewers, like iPhoto, include a presenter. The presenter was important since I wanted to view all my images on my courtroom laptop as thumbnails, but also view any individual image through the projector so I could easily work with it during direct or cross examination. For my Mac I chose "Photo Presenter." This program was very simple and helped me sift through all my scanned documents and photographs and project them onto the wall anytime, seamlessly.

The next program I used was Apple's Keynote. Keynote is like Microsoft's PowerPoint. These presentation programs are great for creating slides for voir dire, opening statement, or closing argument. You can easily import photographs or documents from anywhere on your computer and use them to aid in your trial presentation. During jury selection I created about 4 slides to help illustrate a few points to the jury. During closing arguments I took documents I had scanned, and later admitted into evidence, and created slides to highlight certain parts of the documents. I was able to underline sentences, paragraphs, and individual words to compliment my argument and help the jury quickly see what I wanted them to see.

The trick to becoming comfortable with the technology was getting over to the courthouse the day before trial and setting everything up for a test run. I made sure the extension cords were long enough, that the electrical sockets worked, and that the jury could see my projections from anywhere they might be in courtroom. It worked great! The added benefit was the wireless network at the courthouse which allowed me to stay in contact with my office assistant using email. I could solve office problems and give guidance while busy all day in trial. Since I always eat my lunch in the courtroom during trial to prepare for the afternoon session, I also relaxed while listening to the music of my choice through my computer's media player.

I was very pleased with my first run using sophisticated computer technology during trial. There were a couple bugs I need to work out, but I am looking forward to the next time I can use my laptop and projector to assist me in the courtroom.

Day Three Complete

The punishment evidence yesterday showed during the last 10 years my client had lived in the free world less than two months. In March 2006 he was paroled after doing 9 of 15 years for a prior burglary. In May 2006 he was caught inside the victim's house stealing a watch and was imprisoned in the county jail until trial this week.

Our goal during the punishment phase was to provide mitigating evidence to the jury. Since 1990 my client had been treated for mental illness with a history of commitments to the Austin State Hospital, Rusk State Hospital, and a private psychiatric facility in Bryan, Texas. In addition to the typical psychiatric evidence you might expect to hear, there was evidence of my client's bizarre suicide attempt in 1996. After finishing dinner one evening, and without warning, he went out into the back yard and took off his clothing. He then poured gasoline on his clothes, put the clothes back on and set himself on fire. If not for the quick action of his brother to extinguish the flames my client would have surely burned to death.

Some interesting evidence was provided by the victim himself. After confronting my client inside his home, he testified my client was acting in a bizarre way. He described him as "babbling," "wild-eyed," and "confused." When the police apprehended him a few minutes later they described him as incoherent and disoriented. Interestingly, the psychiatrist's incompetency report prior to trial revealed the same symptoms. "Fragmented thinking," "delusional logic," and "thought blocking." For the record, we considered the insanity defense but did not raise it at trial.

A big problem for my client was his continual refusal to submit to mental health services when available and his refusal to take medication. Obviously, the two prior trips to the pen for burglary did not help. The reports also said my client may be manipulative and malingering.

The jury assessed punishment at 40 years confinement. The minimum was twenty-five because of the prior felony convictions. I asked the jury to disregard the priors and assess a fair punishment. I argued "our society should be judged by how we treat the least among us, and Gary is certainly one of the least."

The paper called my house last night for comment. My comment was simple. "40 years was too much."