The Texas A&M University student conduct system is designed to determine whether the University's standards of conduct have been violated. Although the student conduct system is not designed to determine criminal guilt, the student must be aware that procedures built into the system can result in the student incriminating themselves and providing evidence to the state prosecuting authorities.
Any member of the university system may initiate a complaint against a student for an alleged violation of University Student Rules. If circumstances surrounding the complaint suggest that a violation of the Student Conduct Code (a quasi-criminal subset of the Student Rules) has occurred, disciplinary charges may be issued against the student. Students are notified of disciplinary charges in writing by a letter of charges issued to the student’s address on file with the University. If you are contacted by the University regarding alleged violations of the Student Conduct Code, contact a qualified College Station criminal defense lawyer immediately.
Off campus violations of the Student Conduct Code are also subject to University disciplinary action. When a student is alleged to have violated the Student Conduct Code by an offense committed off university premises, the University reserves the right to investigate and adjudicate these violations. The University may take action in situations occurring off university premises when student misconduct demonstrates a flagrant disregard for any person or persons, or when a student's behavior is judged to threaten the health, safety, or property of any individual or group.
Further disciplinary action may be taken against a student for failure to appear after proper notice that disciplinary charges have been filed. The student should always consult a qualified criminal defense attorney when disciplinary charges brought by the University involve a violation of the Student Conduct Code or any alleged violation of criminal law.
A disciplinary hearing can be conducted in different ways depending on the nature of the alleged violation. The method most critical here is when the student meets with one or more administrative hearing officers to discuss the charges, the student’s involvement in the incident, and any other information relevant to the charges. This type of hearing is where the student may inadvertently incriminate themselves by speaking with the hearing officer. In more serious cases, the hearing is tape recorded. This tape recording is often made available to state prosecuting authorities. If the student testifies at the hearing, their statements will be admissible evidence in criminal court. Even if the hearing is not recorded, any statements the student makes are admissible in criminal court through the testimony of the hearing officer.
Based on the information presented and discussed at the hearing, the administrative hearing officer will determine whether a violation has occurred and issue sanctions accordingly. Any sanctions issued are in addition to penalties assessed by a criminal court judge.
Next Friday we'll look at the issue of student rights regarding University disciplinary proceedings.
A Criminal Defense Blog
Friday, August 31, 2007
Wednesday, August 29, 2007
The Business of Law
Shawn Matlock recently posted about his "Love of the Game." Shawn stated he was not a criminal defense lawyer for the money, rather he was in it for the client. Shawn rightly criticized the hypothetical "Weinstein" for being money centered rather than client centered. Shawn went on to say:
Years ago I learned "there is always room at the top." "It may be lonely there, but there is plenty of room." In short, work very hard for your clients, charge them a premium fee, provide excellent service, and make a good living. There is nothing wrong with making a good living representing folks accused of crime. In fact, a premium fee should motivate the lawyer to excellence. Regrettably, our love of the game can only take us so far. With families to feed, retirement to fund, weddings and college to pay for, the criminal defense lawyer needs to develop their business both for the client's sake and their own.
The lawyers who have grown their practices into successful businesses are in demand. People want to hire successful people. Not because the lawyers lie and make promises they can't keep, but because they provide excellent service - excellent service motivated by a premium fee. The premium fee creates healthy expectations from both client and lawyer. No problem there. The criminal defense lawyers with good business models are providing what the clients need. No problem there, either. When I treat my law practice like a business my clients reap the benefits. What's the problem with that?
So although I appreciate Shawn's "love of the game," I also appreciate the value of running a good business - the business of law. Don't worry, the Weinsteins will be found out. But without the business there would be no game, for very few of us would practice law just for the fun of it.
I realized that I simply do this for different reasons than Weinstein. The Weinsteins of the world think of themselves as businessmen. The client is a fee. The practice of law is the practice of making money.Although I agree with Shawn's premise the client should come first in the practice of law, I don't believe Shawn intended the practice of law should not be run as a business. In fact, the worst mistake I see criminal lawyers make is not managing their law practices as a business. A business is designed to make money and compete in the marketplace by providing a superior service or product. In fact, making good money and giving clients excellent service go hand in hand.
Years ago I learned "there is always room at the top." "It may be lonely there, but there is plenty of room." In short, work very hard for your clients, charge them a premium fee, provide excellent service, and make a good living. There is nothing wrong with making a good living representing folks accused of crime. In fact, a premium fee should motivate the lawyer to excellence. Regrettably, our love of the game can only take us so far. With families to feed, retirement to fund, weddings and college to pay for, the criminal defense lawyer needs to develop their business both for the client's sake and their own.
The lawyers who have grown their practices into successful businesses are in demand. People want to hire successful people. Not because the lawyers lie and make promises they can't keep, but because they provide excellent service - excellent service motivated by a premium fee. The premium fee creates healthy expectations from both client and lawyer. No problem there. The criminal defense lawyers with good business models are providing what the clients need. No problem there, either. When I treat my law practice like a business my clients reap the benefits. What's the problem with that?
So although I appreciate Shawn's "love of the game," I also appreciate the value of running a good business - the business of law. Don't worry, the Weinsteins will be found out. But without the business there would be no game, for very few of us would practice law just for the fun of it.
Monday, August 27, 2007
Tell Your Lawyer the Truth
The worst mistake the new criminal defense client can make is not telling your lawyer the truth. Of course say nothing to the police before consulting a lawyer. But before your lawyer can help solve your problem he needs to know the true facts . This means both the good and the bad. Encouraging the client to be truthful is often a challenge since clients tend to believe their lawyers will think less of them if they know what really happened. Not true! Also, don't forget your conversations with a criminal defense lawyer are protected. Even the most sensitive information you tell your lawyer must remain confidential.
I've borrowed from Scott Greenfield to emphasize the importance of clients telling their lawyers the truth:
Even though Scott was writing about the dangers of being a zealot, as a prosecutor or defense lawyer, his advice on telling your lawyer the truth holds true for every situation. In short, if you feed your lawyer garbage, you'll get garbage out and you'll have to live with the outcome. So come clean with your criminal defense attorney. We will not think less of you, rather we will respect your courage and do a better job defending your case.
I've borrowed from Scott Greenfield to emphasize the importance of clients telling their lawyers the truth:
Most effective defense lawyers start with the assumption that their client is guilty. Not because he necessarily is, but because it allows him to detach himself from the emotion of the case to step back and assess the case, the evidence, the jurisprudence, from a neutral perspective. It matters far less what the defendant has to say about his case then what the prosecution has to say. They put on their evidence, and we must determine what we can do about it.
Sometimes defendants are innocent. Far more often, they are guilty. At least of something. And sometimes they lie to their lawyers about it, and about the facts that surround it. If we accept and adopt those lies, we end up the dumb guy in the room, operating from a position of ignorance. This helps no one, especially our client. Without knowing what we really have to confront, we cannot be effective.
It's difficult for many defendants to appreciate that their lawyer doesn't care whether they are factually guilty or not. Many believe that if they insist on their innocence, we will work harder or care more. Not only is this wrong, but it's dangerous. The only real weapon a defense attorney has is information. If the information is wrong, then he's shooting blanks. Feed your lawyer baloney and that's what he will work with. But at the end of the day, the client will have to live with the outcome.
Even though Scott was writing about the dangers of being a zealot, as a prosecutor or defense lawyer, his advice on telling your lawyer the truth holds true for every situation. In short, if you feed your lawyer garbage, you'll get garbage out and you'll have to live with the outcome. So come clean with your criminal defense attorney. We will not think less of you, rather we will respect your courage and do a better job defending your case.
Friday, August 24, 2007
Welcome Back Aggies
The Texas A&M Aggies are back in Bryan/College Station in full force, all looking forward to starting their fall semester, I'm sure. The Blinn College students are back too, hopefully refreshed and their pockets flush with cash from saving money over the summer.
I'll be starting a Friday series for the next month giving the Ags and Blinn students some pointers for staying out of trouble with local law enforcement and the University student disciplinary process. Travis Robinson, writing for "The Battalion," kicked off the fall semester with a good article on the stiff consequences for breaking alcohol rules on campus. Travis discussed some of the pitfalls rule breakers will run into with the A&M Student Conduct Services. Starting next Friday I'll be following up with posts on Texas Aggie student rights and how the student disciplinary process can affect the defense of the student in the Brazos County criminal courts.
I hope the students from Blinn and A&M will tune in and maybe post some comments. I look forward to a trouble-free and successful semester for all.
I'll be starting a Friday series for the next month giving the Ags and Blinn students some pointers for staying out of trouble with local law enforcement and the University student disciplinary process. Travis Robinson, writing for "The Battalion," kicked off the fall semester with a good article on the stiff consequences for breaking alcohol rules on campus. Travis discussed some of the pitfalls rule breakers will run into with the A&M Student Conduct Services. Starting next Friday I'll be following up with posts on Texas Aggie student rights and how the student disciplinary process can affect the defense of the student in the Brazos County criminal courts.
I hope the students from Blinn and A&M will tune in and maybe post some comments. I look forward to a trouble-free and successful semester for all.
Wednesday, August 22, 2007
An Odd Sort of Victory (II)
Over the past month fellow criminal defense lawyers have shared their feelings regarding "winning" and "losing" in the maelstrom of criminal defense work. Malum wrote of a heart wrenching guilty verdict in his post Loss of Words. Gideon wrote of losing more than he wins in his post The Reality of Being a Criminal Defense Lawyer. But my inspiration post this morning was from Mark Bennett's An Odd Sort of Victory. Since I recently experienced an odd sort of victory myself, I wanted to share it with my compadres in the hopes of lifting their spirits. When we continue to work hard, good things often happen unexpectedly.
Recently, I was appointed on appeal to a man just sentenced to stacked life sentences for the offenses of aggravated sexual assault of a child. For those non-lawyers among us, stacked sentences mean the second sentence will not begin to run until the first sentence is completed. In Texas, aggravated sexual assault of a child is an offense for which a person must serve 1/2 their sentence, or thirty years, which ever is less before becoming eligible for parole. Consequently, my client's best case scenario was to parole on the first case in 2037 before beginning his second life sentence. Needless to say, he was planning to die in prison.
In Texas, the defendant has 30 days from the date of sentencing to file a motion for new trial (MNT). So for the lawyer just appointed on appeal there is some hustling to do. In short, our MNT contained allegations the client received erroneous legal advice from trial counsel leading to an involuntary plea. Trial counsel failed to investigate and present potentially mitigating punishment evidence. Finally, the sentences were cruel and unusual punishment by being disproportionate to other similarly situated defendants.
Trial counsel was courageous in his cooperation with our efforts. However, I told the client I believed our chances of obtaining a new trial were slim. The client did a good job testifying about his decision to plead guilty based on the mistaken advice of trial counsel. The sex offender treatment expert testified how the years of sexual abuse suffered by my client at the hands of his uncle had created the man sitting before us. Not surprisingly, I had no tangible evidence the stacked life sentences were constitutionally disproportionate to other similar defendants.
After 5 hours of testimony the client was prepared for the ubiquitous "motion denied." In fact, the judge unceremoniously rejected each and every claim alleged. However, one sentence following the denial we were unprepared to hear. "In the interests of justice, I will correct my trial court error and delete the stacking order and order these life sentences run concurrently." For those non-lawyers among us, concurrent sentences mean both run at the same time, rather than consecutively.
My client looked at me and asked, "What does that mean?" I said, "I think it means we just won." To the untrained eye, two concurrent life sentences doesn't look like much of a win. But the hope I now saw in my client's eyes told me we had won a victory for him beyond what he'd hoped.
Take heart compadres . Keep doing your best. Good things can happen, even unexpectedly.
Recently, I was appointed on appeal to a man just sentenced to stacked life sentences for the offenses of aggravated sexual assault of a child. For those non-lawyers among us, stacked sentences mean the second sentence will not begin to run until the first sentence is completed. In Texas, aggravated sexual assault of a child is an offense for which a person must serve 1/2 their sentence, or thirty years, which ever is less before becoming eligible for parole. Consequently, my client's best case scenario was to parole on the first case in 2037 before beginning his second life sentence. Needless to say, he was planning to die in prison.
In Texas, the defendant has 30 days from the date of sentencing to file a motion for new trial (MNT). So for the lawyer just appointed on appeal there is some hustling to do. In short, our MNT contained allegations the client received erroneous legal advice from trial counsel leading to an involuntary plea. Trial counsel failed to investigate and present potentially mitigating punishment evidence. Finally, the sentences were cruel and unusual punishment by being disproportionate to other similarly situated defendants.
Trial counsel was courageous in his cooperation with our efforts. However, I told the client I believed our chances of obtaining a new trial were slim. The client did a good job testifying about his decision to plead guilty based on the mistaken advice of trial counsel. The sex offender treatment expert testified how the years of sexual abuse suffered by my client at the hands of his uncle had created the man sitting before us. Not surprisingly, I had no tangible evidence the stacked life sentences were constitutionally disproportionate to other similar defendants.
After 5 hours of testimony the client was prepared for the ubiquitous "motion denied." In fact, the judge unceremoniously rejected each and every claim alleged. However, one sentence following the denial we were unprepared to hear. "In the interests of justice, I will correct my trial court error and delete the stacking order and order these life sentences run concurrently." For those non-lawyers among us, concurrent sentences mean both run at the same time, rather than consecutively.
My client looked at me and asked, "What does that mean?" I said, "I think it means we just won." To the untrained eye, two concurrent life sentences doesn't look like much of a win. But the hope I now saw in my client's eyes told me we had won a victory for him beyond what he'd hoped.
Take heart compadres . Keep doing your best. Good things can happen, even unexpectedly.
Monday, August 20, 2007
Unforeseen Consequences of Conviction (III)
A collateral consequence of conviction is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law. We looked at different aspects of collateral consequences here, here, and here. Our final installment of collateral consequences show how holders of professional licenses, parties in a suit for divorce, or contractors for the Department of Defense may all suffer serious consequences from a criminal conviction, well beyond their sentence.
The federal Adoption and Safe Families Act of 1997 prohibits individuals with certain criminal convictions from being approved as foster or adoptive parents. These convictions include a felony conviction for child abuse or neglect, a felony conviction for spousal abuse, a felony conviction for a crime against children, and others. In a Texas suit for divorce a court may grant a divorce in favor of one spouse if during the marriage the other spouse has been convicted of a felony.
A person convicted of any criminal offense involving dishonesty or a breach of trust may not become, or continue, as an institution-related party with respect to a federally insured depository institution, own or control an insured depository institution, or otherwise participate in the conduct of the affairs of such an institution. In the same vein, a person who has been convicted of a felony is subject to having their investment adviser registration suspended or revoked. In Texas, a person convicted of a felony may not serve as director, manager, or managing participant of a Texas state bank unless the banking commissioner consents in writing.
Persons convicted of fraud, or any felony, arising out of a contract with the Department of Defense are prohibited from working in a management capacity for a defense contractor or serving as a consultant for any company that is a defense contractor.
Any person subject to a lifetime sex offender registration requirement is ineligible for federally assisted housing. A sex offender registered in any state who moves to another state must notify the FBI and the new state of residence. Federal sex offenders are required to register in the states in which they live, are employed, carry on a vocation, or go to school.
The Texas State Board of Medical Examiners must suspend a physician's license on proof the physician has been convicted of a felony. The Texas State Board of Public Accountancy may suspend a license of a person convicted a felony or misdemeanor involving fraud or dishonesty. The Texas Department of Insurance may not issue a certificate of authority to act as an insurer if a corporate officer, or member of the board of directors, has been convicted of a felony involving moral turpitude or breach of fiduciary duty.
Clients and defense lawyers beware. The unforeseen consequences of conviction lurk in the shadows to trap the unwary and unsuspecting. Consequently, the criminal defense lawyer should always ask the client with pending charges the following three questions: (1) Are you an alien or United States citizen? (2) Do you have any prior convictions? and (3) Do you have any governmental licenses, permits, employment, or benefits? This should give the lawyer the necessary information to examine most of the collateral consequences the client will face.
Finally, my thanks to the research efforts of attorney, Robert Udashen, who made this series possible. Go here for a download of Robert's article presented at the 2007 Rusty Duncan Advanced Criminal Law Course.
The federal Adoption and Safe Families Act of 1997 prohibits individuals with certain criminal convictions from being approved as foster or adoptive parents. These convictions include a felony conviction for child abuse or neglect, a felony conviction for spousal abuse, a felony conviction for a crime against children, and others. In a Texas suit for divorce a court may grant a divorce in favor of one spouse if during the marriage the other spouse has been convicted of a felony.
A person convicted of any criminal offense involving dishonesty or a breach of trust may not become, or continue, as an institution-related party with respect to a federally insured depository institution, own or control an insured depository institution, or otherwise participate in the conduct of the affairs of such an institution. In the same vein, a person who has been convicted of a felony is subject to having their investment adviser registration suspended or revoked. In Texas, a person convicted of a felony may not serve as director, manager, or managing participant of a Texas state bank unless the banking commissioner consents in writing.
Persons convicted of fraud, or any felony, arising out of a contract with the Department of Defense are prohibited from working in a management capacity for a defense contractor or serving as a consultant for any company that is a defense contractor.
Any person subject to a lifetime sex offender registration requirement is ineligible for federally assisted housing. A sex offender registered in any state who moves to another state must notify the FBI and the new state of residence. Federal sex offenders are required to register in the states in which they live, are employed, carry on a vocation, or go to school.
The Texas State Board of Medical Examiners must suspend a physician's license on proof the physician has been convicted of a felony. The Texas State Board of Public Accountancy may suspend a license of a person convicted a felony or misdemeanor involving fraud or dishonesty. The Texas Department of Insurance may not issue a certificate of authority to act as an insurer if a corporate officer, or member of the board of directors, has been convicted of a felony involving moral turpitude or breach of fiduciary duty.
Clients and defense lawyers beware. The unforeseen consequences of conviction lurk in the shadows to trap the unwary and unsuspecting. Consequently, the criminal defense lawyer should always ask the client with pending charges the following three questions: (1) Are you an alien or United States citizen? (2) Do you have any prior convictions? and (3) Do you have any governmental licenses, permits, employment, or benefits? This should give the lawyer the necessary information to examine most of the collateral consequences the client will face.
Finally, my thanks to the research efforts of attorney, Robert Udashen, who made this series possible. Go here for a download of Robert's article presented at the 2007 Rusty Duncan Advanced Criminal Law Course.
Friday, August 17, 2007
Refusing a Case - The Lawyer's Ethical Duty
This week criminal defense lawyer, Norman A. Pattis, wrote here about a horrible case in Cheshire, Connecticut where a suburban family was brutally murdered. The community was justifiably outraged. Pattis wrote of the public sentiment:
The relevant Texas ethical rules state a lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence. (Rule 1.01 Texas Disciplinary Rules of Professional Conduct) Furthermore, these same rules state a lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as the client or the cause is so repugnant to the lawyer as to likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. (Rule 6.01)
Even though a lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities, the lawyer must be prepared to zealously fight for each and every client whom they represent. Consequently, if the case is too complex or the cause to distasteful, the lawyer is ethically bound to refuse employment.
Don't fault the Connecticut lawyers who declined representation in this tragic case. They were probably following their ethical duty to refuse it. Such cases are extraordinary and require special competence and special intestinal fortitude.
"Fry them," some say of the men accused of killing Jennifer Hawke-Petit and her two daughters. Others have offered to fire fatal shots. Let's spare the expense of trial and resort to quick execution, they say. Indeed, when the men appeared at a New Haven courthouse this past week, armed police officers stalked the streets, scanning for snipers. There were angry catcalls from the gallery.Furthermore, Pattis criticized members of the criminal defense bar for refusing to accept the court appointment to defend these men. He stated:
Some of the shameful chatter among criminal defense lawyers this past week was of lawyers who had turned down the request to represent the defendants. It was as if some members of the defense bar could not run far and fast enough from this case. Have they forgotten that it is a defense lawyer's calling to befriend the friendless and defend a man or woman accused of even the most shocking crime?I disagreed with Pattis' criticism of the lawyers who refused to accept this case. Defense lawyers are ethically bound to refuse a case they find repugnant, or that they know is beyond their professional competence to handle.
The relevant Texas ethical rules state a lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence. (Rule 1.01 Texas Disciplinary Rules of Professional Conduct) Furthermore, these same rules state a lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as the client or the cause is so repugnant to the lawyer as to likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. (Rule 6.01)
Even though a lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities, the lawyer must be prepared to zealously fight for each and every client whom they represent. Consequently, if the case is too complex or the cause to distasteful, the lawyer is ethically bound to refuse employment.
Don't fault the Connecticut lawyers who declined representation in this tragic case. They were probably following their ethical duty to refuse it. Such cases are extraordinary and require special competence and special intestinal fortitude.
Wednesday, August 15, 2007
Our Closed-Source Accuser
We will never look our closed-source accuser in the eye. The jury will never eyeball our closed-source accuser to determine its credibility. We will never ask our closed-source accuser a single question as it heaps incriminating evidence upon us while we fight to maintain our freedom. In fact, we may not even realize we are facing a closed-source accuser at all.
Why is this important for the criminal defense lawyer? Closed-source software (source code) is used to convict our clients, but it may contain bugs or programing errors. Sadly, most criminal defense attorneys have no idea what source code is in the first place. Eaves dropping equipment, wire tapping, radar guns, tasers, breath testing machines, and everything else electronic runs on software. How can you rely on the accuracy of such equipment without looking at the instructions that drive the hardware?
Closed-source software is generally considered proprietary and a trade secret of the company that created it. Closed source software (e.g. Microsoft Windows and Office) is developed by a single person or company. Only the final product run on your computer is made available, while the source code for making the software is kept a secret. Open-source software (e.g. Linux and Open Office), on the other hand, is available by all to read. The software code for those projects is scrutinized by more people than even the biggest software company can hire. Software flaws are more easily discovered and repaired. Most open-source projects allow anyone to contribute and problems are normally resolved quickly and cleanly.
Look here for discussion of source-code issues in DWI cases. Look here for the 2005 Florida case where the makers of the Intoxilizer 5000 were ordered to turn over their closed-source code to defense lawyers.
A fascinating article by Curtis Poe discussed this closed-source software dilemma. Poe talked about a Minnesota man who won the right to examine the closed-source code of the breathtest machine used to accuse him. He demanded to see the source code in order to make sure the machine worked as advertised. Poe commented: "Closed-source software is allowed to take the witness stand and accuse you of crimes and you’re not allowed to cross-examine it." He stated further:
Why is this important for the criminal defense lawyer? Closed-source software (source code) is used to convict our clients, but it may contain bugs or programing errors. Sadly, most criminal defense attorneys have no idea what source code is in the first place. Eaves dropping equipment, wire tapping, radar guns, tasers, breath testing machines, and everything else electronic runs on software. How can you rely on the accuracy of such equipment without looking at the instructions that drive the hardware?
Closed-source software is generally considered proprietary and a trade secret of the company that created it. Closed source software (e.g. Microsoft Windows and Office) is developed by a single person or company. Only the final product run on your computer is made available, while the source code for making the software is kept a secret. Open-source software (e.g. Linux and Open Office), on the other hand, is available by all to read. The software code for those projects is scrutinized by more people than even the biggest software company can hire. Software flaws are more easily discovered and repaired. Most open-source projects allow anyone to contribute and problems are normally resolved quickly and cleanly.
Look here for discussion of source-code issues in DWI cases. Look here for the 2005 Florida case where the makers of the Intoxilizer 5000 were ordered to turn over their closed-source code to defense lawyers.
A fascinating article by Curtis Poe discussed this closed-source software dilemma. Poe talked about a Minnesota man who won the right to examine the closed-source code of the breathtest machine used to accuse him. He demanded to see the source code in order to make sure the machine worked as advertised. Poe commented: "Closed-source software is allowed to take the witness stand and accuse you of crimes and you’re not allowed to cross-examine it." He stated further:
This is why I firmly believe that any software with substantial risk to harm your life or liberty must be open source. I’m not saying that it should be free or that manufacturers should not be allowed protections, but the protection of the people must come first. Certainly we could come up with schemes for various systems which might purport to thoroughly test them without opening up the code, but there are too many systems and too many parameters for us to do this safely on a case-by-case basis.We may never see open-source software running the devices used to accuse our clients. But criminal defense lawyers must go after the closed-source software that is. When confronted with any type of technical device used to prosecute our clients, everything from breath testing machines to traffic speed cameras, we should be demanding the code for inspection.
Monday, August 13, 2007
The Persuasive Case - Evaluate & Narrow
It's the job of the Brazos County criminal defense lawyer to select the one best case for the client from all the possible cases. Far too often a jumble of facts is presented by the lawyer, leaving it to the jury to find a case if one even exists. This method loses the emphasis of having a strong integrated case which is communicated powerfully to the jury.
After the accumulation of facts and ideas, but before the story is finalized, the defense lawyer's emphasis shifts to rigorous evaluation, analysis, and narrowing of the case to the most plausible and powerful. Facts may be subject to various interpretations or may be contested. Analysis is necessary. The prosecutor's case must also be analyzed to determine which issues are agreed upon and which issues are in controversy. The result is a list of crucial contested issues which must be the focus of the persuasive case.
Theories, facts, interpretations, and arguments must be rigorously analyzed to determine validity and strength. Theories must account for all the facts which the jury will believe or the theory won't be viable. Weak theories, interpretations, and arguments should be discarded. Out of the remaining material alternatives should be compared and a selection made of the most plausible and powerful for the persuasive case. These must then be integrated around a single theory of the case in a way that appeals to the values of the jury.
After the accumulation of facts and ideas, but before the story is finalized, the defense lawyer's emphasis shifts to rigorous evaluation, analysis, and narrowing of the case to the most plausible and powerful. Facts may be subject to various interpretations or may be contested. Analysis is necessary. The prosecutor's case must also be analyzed to determine which issues are agreed upon and which issues are in controversy. The result is a list of crucial contested issues which must be the focus of the persuasive case.
Theories, facts, interpretations, and arguments must be rigorously analyzed to determine validity and strength. Theories must account for all the facts which the jury will believe or the theory won't be viable. Weak theories, interpretations, and arguments should be discarded. Out of the remaining material alternatives should be compared and a selection made of the most plausible and powerful for the persuasive case. These must then be integrated around a single theory of the case in a way that appeals to the values of the jury.
Friday, August 10, 2007
Unforseen Consequences of Conviction (II)
We started this series on collateral consequences of a criminal conviction here. Many problems the convicted person faces are the result of these collateral consequences. A collateral consequence is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law to the person convicted of a crime. Following is the next installment on the non-comprehensive overview of collateral consequences applicable to persons convicted of a crime for which the criminal defense lawyer should be aware.
One of my readers, Hunter Biederman, (Frisco DWI Lawyer and Attorney Blog) pointed out a federal drug-related conviction can make a person ineligible for federal grants and loans for educational purposes. Some more consequences of a drug-related conviction are ineligibility for federal work-study and Upward Bound from the Department of Education. Those convicted of a drug-related felony are ineligible for any grant, contract, loan, professional license, or commercial license provided by an agency of the United States through the Denial of Federal Benefits Program. Those convicted of a drug-related felony are excluded from Medicare.
A drug offender may be ineligible for rural housing loans, conservation programs, and food stamps from the Department of Agriculture. An offender may be ineligible for grants and contracts from the Department of Defense. An offender may be ineligible for loans from the Small Business Administration. An offender may be ineligible for disaster assistance from the Federal Emergency Management Agency.
In Texas, a person convicted of a felony may be refused a liquor or alcohol permit for three years after release from confinement, supervision, or parole. A person convicted for a felony while holding an original or renewal permit is subject to cancellation or suspension of the permit.
A prepaid higher education tuition scholarship terminates if the student to whom the scholarship is awarded is convicted of a felony or Class A misdemeanor.
A person or business entity that enters into a contract with a school district must give advance notice to the district if the person or an owner or operator of the business entity has been convicted of a felony. It is an affirmative defense to a civil action for damages for personal injury that the plaintiff, at the time the cause of action arose, was committing a felony for which the plaintiff has been convicted and which was the cause of the damages suffered.
More on unforeseen consequences to come.
One of my readers, Hunter Biederman, (Frisco DWI Lawyer and Attorney Blog) pointed out a federal drug-related conviction can make a person ineligible for federal grants and loans for educational purposes. Some more consequences of a drug-related conviction are ineligibility for federal work-study and Upward Bound from the Department of Education. Those convicted of a drug-related felony are ineligible for any grant, contract, loan, professional license, or commercial license provided by an agency of the United States through the Denial of Federal Benefits Program. Those convicted of a drug-related felony are excluded from Medicare.
A drug offender may be ineligible for rural housing loans, conservation programs, and food stamps from the Department of Agriculture. An offender may be ineligible for grants and contracts from the Department of Defense. An offender may be ineligible for loans from the Small Business Administration. An offender may be ineligible for disaster assistance from the Federal Emergency Management Agency.
In Texas, a person convicted of a felony may be refused a liquor or alcohol permit for three years after release from confinement, supervision, or parole. A person convicted for a felony while holding an original or renewal permit is subject to cancellation or suspension of the permit.
A prepaid higher education tuition scholarship terminates if the student to whom the scholarship is awarded is convicted of a felony or Class A misdemeanor.
A person or business entity that enters into a contract with a school district must give advance notice to the district if the person or an owner or operator of the business entity has been convicted of a felony. It is an affirmative defense to a civil action for damages for personal injury that the plaintiff, at the time the cause of action arose, was committing a felony for which the plaintiff has been convicted and which was the cause of the damages suffered.
More on unforeseen consequences to come.
Wednesday, August 8, 2007
The Seeds We Sow
This past weekend I visited my home in central Pennsylvania and spent the whole day Saturday walking the streets and alleys of my childhood. Down Jones Street to Hickory and then over to the Junior High. Up to Curly's snack bar for a Coke. (Curly's still looked the same after 30 years). Down the double dips. Over to the Senior High through the Ho Chi Minh trail. Most of the trees of my childhood were gone. Replaced by ones with unfamiliar shapes and sizes casting unfamiliar shadows or blocking views I had enjoyed as a kid.
I was lucky to see friends this weekend - some I hadn't seen for 30 years. We talked about the struggles of life. Raising children. Making ends meet. We talked of the consequences from decisions we'd made so many years ago. I shook the hand of my good friend from high school, quite the basketball player then, but a farmer since. His hands were remarkably thick with muscle and callous from years working hard in the fields picking corn and strawberries.
On the plane home I finally understood I was harvesting the seeds I'd sown 30 years ago. I was among the privileged few. My life as a lawyer, particularly as a criminal defense lawyer, had been good to me. What other job I thought, besides soldiering, could I be called upon to exhibit courage and fight for the things I believed were right. What other job could I have that offered so much potential to affect the lives of individual people in profound and long lasting ways.
I saw my friends, and some family, still struggling to find meaning and satisfaction in their work. I saw them harvesting the seed they had sown - some for good and some for bad. The seed I'd sown had born much fruit in my life and the lives of people around me. My time back home gave me a perspective on this truth that I'd lost.
We lawyers complain about unfair judges, cheating prosecutors, ridiculous laws, and clients that mistreat us. We complain about other lawyers who get the business we think we deserve. We may secretly wish our colleagues will fail, thinking some how that will make us look better and get us a greater share of what we see as limited resources.
But we lawyers have it pretty good. We are among the privileged few who work in a field where we can make a difference in the lives of individuals. We may not change the world, but we can help change lives one person at a time. We must believe we can, however. Forget about the problems and concentrate on the people who look to us for help. Believe in them, care for them, and we can make a difference for them.
Gosh, it was a good visit home. I'm glad I've got my perspective back.
I was lucky to see friends this weekend - some I hadn't seen for 30 years. We talked about the struggles of life. Raising children. Making ends meet. We talked of the consequences from decisions we'd made so many years ago. I shook the hand of my good friend from high school, quite the basketball player then, but a farmer since. His hands were remarkably thick with muscle and callous from years working hard in the fields picking corn and strawberries.
On the plane home I finally understood I was harvesting the seeds I'd sown 30 years ago. I was among the privileged few. My life as a lawyer, particularly as a criminal defense lawyer, had been good to me. What other job I thought, besides soldiering, could I be called upon to exhibit courage and fight for the things I believed were right. What other job could I have that offered so much potential to affect the lives of individual people in profound and long lasting ways.
I saw my friends, and some family, still struggling to find meaning and satisfaction in their work. I saw them harvesting the seed they had sown - some for good and some for bad. The seed I'd sown had born much fruit in my life and the lives of people around me. My time back home gave me a perspective on this truth that I'd lost.
We lawyers complain about unfair judges, cheating prosecutors, ridiculous laws, and clients that mistreat us. We complain about other lawyers who get the business we think we deserve. We may secretly wish our colleagues will fail, thinking some how that will make us look better and get us a greater share of what we see as limited resources.
But we lawyers have it pretty good. We are among the privileged few who work in a field where we can make a difference in the lives of individuals. We may not change the world, but we can help change lives one person at a time. We must believe we can, however. Forget about the problems and concentrate on the people who look to us for help. Believe in them, care for them, and we can make a difference for them.
Gosh, it was a good visit home. I'm glad I've got my perspective back.
Monday, August 6, 2007
The Persuasive Case - The Story
It is the persuasive case that wins decisions from the jury. Since the jury decides whether the case is persuasive, it must be built from their point of view. The law furnishes the framework within which persuasion must take place including the charge elements, defenses, and evidence foundations. But the legal case must be distinguished from the persuasive case since jurors do not think like lawyers. For the most part they don't engage in legal analysis because it is meaningless to them. They are people oriented, rather than law oriented. They use their feelings and emotions to make decisions more often than logic. Consequently, the College Station criminal defense lawyer must build the persuasive case upon the basis of the jury's belief system. Every case, every action the defense lawyer takes must be evaluated from the juror's point of view.
The story is the device which best allows the jury to comprehend and retain the case. It is the memory device for organizing, understanding, and retaining facts and ideas. The story is also used by the jury to determine whether they will accept the case as plausible. The jury determines how plausible the case is by placing the story next to their own ideas about how the world works. Then they accept as plausible that which corresponds to their own ideas.
To be plausible the story should have several characteristics in addition to being consistent with the juror's experience. First the story should be organized around one theory of the case or interpretation of the facts. The story should be consistent within itself and with other facts which the jury will believe. The story should have completeness and context, as well.
The story must also be painted with imagery so the jury can visualize the event. This way the event becomes real to them. Additionally, the story should appeal to principles and values important to the jury. Values such as right over wrong, justice over injustice, truth over untruth should form the basis of the story. The story must also appeal to common sense and be such that the ending is fair and just only if a favorable verdict is awarded.
The story is the device which best allows the jury to comprehend and retain the case. It is the memory device for organizing, understanding, and retaining facts and ideas. The story is also used by the jury to determine whether they will accept the case as plausible. The jury determines how plausible the case is by placing the story next to their own ideas about how the world works. Then they accept as plausible that which corresponds to their own ideas.
To be plausible the story should have several characteristics in addition to being consistent with the juror's experience. First the story should be organized around one theory of the case or interpretation of the facts. The story should be consistent within itself and with other facts which the jury will believe. The story should have completeness and context, as well.
The story must also be painted with imagery so the jury can visualize the event. This way the event becomes real to them. Additionally, the story should appeal to principles and values important to the jury. Values such as right over wrong, justice over injustice, truth over untruth should form the basis of the story. The story must also appeal to common sense and be such that the ending is fair and just only if a favorable verdict is awarded.
Friday, August 3, 2007
Unforeseen Consequences of Conviction
Criminal defense lawyer Shawn Matlock started a series on the collateral consequences of being convicted of a crime. Others have been writing recently in other venues about this very important client issue. USA Today wrote about collateral consequences here. The Sentencing Law and Policy Blog wrote about it here. Others wrote here.
I had ideas to share with my readers about the unforeseen consequences of Texas state convictions. Many problems the convicted person faces are the result of collateral consequences. A collateral consequence is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law to the person convicted of a crime.
I wrote about the consequences of conviction for the non-citizen here. Over the next few weeks I'll provide a non-comprehensive overview of some collateral consequences applicable to others convicted of a crime in Texas.
A person's voting rights are affected by a felony conviction. However, those rights can be restored if a judge chooses to exercise judicial clemency, based upon the successful completion of felony probation. Similarly, a person convicted of a felony cannot serve on a jury or grand jury. However, like the right to vote, if a judge chooses to exercise judicial clemency a felony conviction can be wiped away and the person's eligibility to serve on a jury can be restored.
A person convicted of a felony cannot hold public elective office. A person convicted of a felony may not legally possess a firearm for five years after release from confinement, supervision, or parole. A person convicted of a misdemeanor family violence offense may not legally possess a firearm for five years after release from confinement, supervision, or parole.
For DWI convictions a collateral consequence of conviction is a driver's license surcharge paid annually for three years. The more times one has been convicted of DWI the higher the surcharge.
Convictions that result in a Texas driver's license suspension include: certain alcoholic beverage code violations; a breath/blood test failure in a DWI case; a breath/blood test refusal in a DWI case; criminal mischief; criminally negligent homicide; driver's license fraud; DUI for minors; driving with a suspended license; evading arrest; failure to stop and render aid; drug cases; racing on a highway; tampering with a governmental record; habitual traffic violations; and many others.
A person convicted of a felony is potentially banned from the following employment opportunities: labor union officer or organizer; pesticide applicator; court interpreter; meat and poultry inspector; auctioneer; athletic trainer; insurance agent or adjuster; interior designer; acupuncturist; midwife; mortgage broker; speech/language pathologist; hearing aid fitter or distributor; physical therapist; dental hygienist; marriage or family counselor; monitor or aid on school bus; registered nurse; chiropractor; physician's assistant; psychologist; private security detection device sales person; bingo worker, supply manufacture or distributor; coin-operated machine business licensee; and many others.
The criminal defense lawyer should be asking all their clients with pending charges the following questions: (1) Are you an alien or a United States citizen? (2) Do you have any prior convictions? and (3) Do you have any government licenses, permits, employment, or benefits? The answer to these questions will arm the defense lawyer with information necessary to understand and explore most of the collateral consequences their clients will face.
Next time we'll talk about sex offender registration, estate executors, conservatorships, and holders of professional licenses.
I had ideas to share with my readers about the unforeseen consequences of Texas state convictions. Many problems the convicted person faces are the result of collateral consequences. A collateral consequence is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law to the person convicted of a crime.
I wrote about the consequences of conviction for the non-citizen here. Over the next few weeks I'll provide a non-comprehensive overview of some collateral consequences applicable to others convicted of a crime in Texas.
A person's voting rights are affected by a felony conviction. However, those rights can be restored if a judge chooses to exercise judicial clemency, based upon the successful completion of felony probation. Similarly, a person convicted of a felony cannot serve on a jury or grand jury. However, like the right to vote, if a judge chooses to exercise judicial clemency a felony conviction can be wiped away and the person's eligibility to serve on a jury can be restored.
A person convicted of a felony cannot hold public elective office. A person convicted of a felony may not legally possess a firearm for five years after release from confinement, supervision, or parole. A person convicted of a misdemeanor family violence offense may not legally possess a firearm for five years after release from confinement, supervision, or parole.
For DWI convictions a collateral consequence of conviction is a driver's license surcharge paid annually for three years. The more times one has been convicted of DWI the higher the surcharge.
Convictions that result in a Texas driver's license suspension include: certain alcoholic beverage code violations; a breath/blood test failure in a DWI case; a breath/blood test refusal in a DWI case; criminal mischief; criminally negligent homicide; driver's license fraud; DUI for minors; driving with a suspended license; evading arrest; failure to stop and render aid; drug cases; racing on a highway; tampering with a governmental record; habitual traffic violations; and many others.
A person convicted of a felony is potentially banned from the following employment opportunities: labor union officer or organizer; pesticide applicator; court interpreter; meat and poultry inspector; auctioneer; athletic trainer; insurance agent or adjuster; interior designer; acupuncturist; midwife; mortgage broker; speech/language pathologist; hearing aid fitter or distributor; physical therapist; dental hygienist; marriage or family counselor; monitor or aid on school bus; registered nurse; chiropractor; physician's assistant; psychologist; private security detection device sales person; bingo worker, supply manufacture or distributor; coin-operated machine business licensee; and many others.
The criminal defense lawyer should be asking all their clients with pending charges the following questions: (1) Are you an alien or a United States citizen? (2) Do you have any prior convictions? and (3) Do you have any government licenses, permits, employment, or benefits? The answer to these questions will arm the defense lawyer with information necessary to understand and explore most of the collateral consequences their clients will face.
Next time we'll talk about sex offender registration, estate executors, conservatorships, and holders of professional licenses.
Wednesday, August 1, 2007
The Persuasive Case - Brainstorming for Ideas
After obtaining the facts, the criminal defense lawyer must brainstorm for the ideas which will organize the facts into a coherent, unified combination of facts and ideas necessary for the persuasive case. The ideas may be possible theories of the case, interpretations, inferences, possible arguments, possible language to use, possible rebuttal to the opposing case, impeachment ideas, and any other ideas that will unite the case into the most plausible explanation (or story) for the jury.
Unfortunately, the emphasis on legal analysis often prevents creative thinking by the criminal defense lawyer. Brainstorming is a form of creative thinking with two very important requirements. First, the goal of creative thinking is to develop as many hypotheses, theories, interpretations, inferences, explanations, and other ideas as possible to how the litigated event occurred. That is, the defense lawyer works to develop the maximum number of ideas. Second, the evaluation of these ideas must be done, but must be postponed or the lawyer's evaluation will hinder the free thinking necessary for maximizing the number of ideas.
Creative thinking, or brainstorming, must be approached with determination to find every useful idea. The lawyer must also remain optimistic and believe this process will indeed produce useful ideas. The depth produced by brainstorming will more likely result in truth by unearthing many ideas which are at first not apparent to the defense lawyer. As ideas are collected, the new ideas generate thoughts of other new ideas and the thinking of the lawyer becomes deeper and closer to the truth. The important idea here is to creatively and actively think about the case.
Next in this series on building the persuasive case is organizing the facts and ideas into a story that appeals to the belief system of the jury.
Unfortunately, the emphasis on legal analysis often prevents creative thinking by the criminal defense lawyer. Brainstorming is a form of creative thinking with two very important requirements. First, the goal of creative thinking is to develop as many hypotheses, theories, interpretations, inferences, explanations, and other ideas as possible to how the litigated event occurred. That is, the defense lawyer works to develop the maximum number of ideas. Second, the evaluation of these ideas must be done, but must be postponed or the lawyer's evaluation will hinder the free thinking necessary for maximizing the number of ideas.
Creative thinking, or brainstorming, must be approached with determination to find every useful idea. The lawyer must also remain optimistic and believe this process will indeed produce useful ideas. The depth produced by brainstorming will more likely result in truth by unearthing many ideas which are at first not apparent to the defense lawyer. As ideas are collected, the new ideas generate thoughts of other new ideas and the thinking of the lawyer becomes deeper and closer to the truth. The important idea here is to creatively and actively think about the case.
Next in this series on building the persuasive case is organizing the facts and ideas into a story that appeals to the belief system of the jury.
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