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.