Defending Self-Defense Revisted

Yesterday I quoted from the Common Folk blog regarding the protection of our right to self-defense. I admit I might have been somewhat sarcastic in my tone, so in fairness to Common Folk I'll post a part of their comment to my article:

First, my entire post was by Lisa J. Steele from the National Association of Criminal Defense Lawyers. I made absolutely no comment but merely re-posted her thoughts for the purpose of debate. . . . .

It's not so much "shoot first, ask questions later" but rather "all questions have been answered when they threatened me with deadly force, so shoot." Once the aggressor has brandished a device that could harm or kill you, be it a baseball bat or handgun, the innocent victim has the right to defend themselves up to and including responding with deadly force. My handgun sits quietly in my pocket at all times, and I would rather it rust from non-use, but if someone threatens my family or me with harm then, and only then, I will respond with force and with quickness doing all in my power to end the attack, up to and including firing my weapon directly at them.

Common Folk, thanks for your thoughts and input yesterday. Be assured, if you are ever compelled to use deadly force to protect yourself or your family, I'd be one of the first to come to your aid, even if only figuratively.

Brazos County Defenders

In my travels around the State of Texas defending those accused of crimes, I have the unique opportunity to observe the criminal defense bar in many other counties and jurisdictions. I have concluded (as have others) that Brazos County, Texas, pound-for-pound, has the best crop of criminal defense lawyers around. I'd stack them up against anybody. Here's a short list of great lawyers in my neighborhood:

Lane Thibodeaux, Travis Bryan, III, Jim James, Cameron Reynolds, Craig Greening, David Barron, Michele Esparza, Earl Gray, Bruno Shimek, and Kyle Hawthorne.

These folks are a few of many. I appreciate their company.

Defending Self-Defense

I'm no lobbyist for the 2nd Amendment, but I do fight for my client's right to defend themselves. Check out this post by Common Folk on "Defending the Self-Defense" case. Although I'd advocate a warning shot, despite Common Folk's recommendation (shoot first, ask questions later), I do agree with their conclusion:

The right of citizens to protect themselves is critically important to our society. It is a right, enshrined in many state constitutions, that needs to be zealously protected by the vigorous efforts of criminal defense attorneys. If the right becomes uncertain, murky, or counter-intuitive, citizens will be reluctant to take action to protect themselves and others for fear of criminal prosecution . . .

The right of self-defense deserves an attorney’s most vigorous efforts.

Head Trauma Research

Several years ago I tried a felony assault case to a jury in Brazos County where my client allegedly caused a teacher serious bodily injury during a struggle in the College Station school system. The teacher was, in fact, injured by my client's behavior. But the jury also learned he suffered from several physiological problems which caused him to act impulsively and sometimes explosively. In the end they acquitted this young man, largely because they took into consideration facts and circumstances beyond his control that explained his behavior.

In this same vein, research is showing that hidden head trauma may be linked to behavioral problems in society. Thanks to John Niland, at the Texas Defender Service, for bringing our attention to some important research on hidden head trauma documented in the Wall Street Journal this week. This article written by Thomas M. Burton (tom.burton@wsj.com1) concluded that long forgotten head injuries may be a factor and may explain many problems in society.

Highlights of the study:

Researchers studying brain injury believe they've found a common thread running through many cases of seemingly unrelated social problems: a long-forgotten blow to the head . . .

New research indicates hidden traumatic brain injuries can cause social or educational failure, such as alcoholism or homelessness.
That severe head injuries can lead to cognitive and behavioral problems is widely accepted. The U.S. Centers for Disease Control and Prevention estimates 5.3 million Americans suffer from mental or physical disability that is due to brain injury . . .

Causes of brain injury can include bike and car accidents, sports concussions such as those suffered by professional football players, and abuse and falls that can date back to childhood. Doctors say about 85% of common falls in infancy don't produce long-term deficits, but that some do.

These types of findings are of great import to the Bryan criminal defense lawyer. Explaining a client's aberrant behavior is often our principle challenge. When the lawyer can explain behavior using facts and circumstances beyond the clients' control (like a head injury) and present credible research backing the claims, the client's cause is much improved and can lead to favorable results.

Sex Offender Registration Information

Following is a letter distributed to District Court Judges in the 2nd Judicial Administrative Region of Texas. The letter is from David Lakey, M.D., the Commissioner of the Texas Council on Sex Offender Treatment. This Counsel is responsible for enforcement of the Texas statute involving the early termination of sex offender registration. Dr. Lakey reports the Texas statute which provides for early termination of sex offender registration is currently non-operational because of an ongoing research study commissioned by the Council. Please click on the letters to gain insight into the nature of this study.

The bottom line? Early termination of registration procedures enacted by the Texas Legislature cannot be implemented until this study is completed and risk assessment tools developed. Someone ought to be raising hell about the delay in getting this study done. Good people who might otherwise be eligible for early termination continue to suffer under the weight of these registration requirements.

Building Your Brand

Last month I posted about becoming an expert. Beyond obtaining technical competence in our field, I challenged fellow defense lawyers to set out to become THE expert:

Beyond technical competence, however, the 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.

The question, left unanswered, was how to become KNOWN as the expert. Does an expert rise from the ranks and develop out of peer acknowledgment? Or is an expert a created entity, carefully crafted by profile building and marketing?

Steve Matthews had some intriguing thoughts on the matter. Steve is a legal marketer and web strategy expert. This month in the Texas Bar Journal he authored an article about developing "Thought Leadership" on the worldwide web. Basically, the article addressed the question of how one becomes known as the expert and hinged on our easy access to web based technology like blogging, threaded discussions, etc. Steve noted in the article:

For a lawyer who wishes to drive his or her personal brand through the roof, becoming a Thought Leader can deliver one of the longest lasting effects possible. Done properly, the position of being a Thought Leader could create value for a lifetime, or at least for the duration of one's professional career.

In my short time publishing on the web I've come to recognize many "thought leaders." Bloggers like Scott Greenfield and Mark Bennett come to mind since they post on subjects interesting to me, that is the practice of criminal law. There are many others, as well, who make significant contributions. Jamie Spencer, Patrick Barkman, and Robert Guest are on my daily reading list. There are many others.

Over time the contributions of these writers should establish them as experts and go-to-guys in their chosen field. Other professional benefits are also increased like media exposure, referral networks, speaking engagements, and dominance in search engine rankings. As online Thought Leaders these writers increase their image as the expert and back up their professional credibility demonstrating their knowledge to potential clients.

Thanks to Steve Matthews for this edifying piece.

Client Out of Control? Give Him a Polygraph.

Let me preface my comments by saying any criminal defense lawyer who allows their client to take a polygraph examination administered by the prosecutor's expert is bordering on malpractice. The only polygraph a client should take is one administered by a polygraph examiner hired by the defense team. This makes the examiner subject to the attorney/client privilege and protects the results (good or bad) with the attorney work-product doctrine. With that said, sometimes it is good when a client takes and fails the test.

Client control and management is often a challenge even among the most experienced defense lawyers. After 18 years of criminal law practice, 14 of which as a defender, some of my clients remain unmanageable, or at least difficult to handle. That's ok, though. Over the years I've learned some tricks of the trade, one of which is the lie detector test.

Many clients refuse to face reality. Reality in the form of hard, indisputable facts, confessions, physical evidence. Prosecutors make offers to settle cases based upon this evidence, but often the client ignores this reality and insists upon a plan of action leading to inevitable failure. Sometimes the client insists upon a claim of innocence despite a mountain of contrary evidence.

In rides the polygraph examiner - from the client's point of view a neutral expert. The client knows the examiner is there only to get the facts. The client knows the examiner is not his advocate, does not negotiate for him, and does not care whether he is telling the truth. But the client also knows if he's lying there's a good chance he'll get caught. And once caught, the client knows he'll need to face reality. Ah . . . much better!

I'm amazed how much more manageable an unruly client becomes after he fails a polygraph. Moreover, the family feels better (assuming we decide to tell them) because their loved-one's claims have been fully investigated and given their proper due. The client is now in a better frame of mind to evaluate offers to settle, trial strategies, etc. I don't imply we roll over for the prosecutor, by any means. But at least the client has a proper grip on their case and can make better, more informed decisions about how to proceed.

So, is your client out of control? Consider giving them a polygraph. If they pass - great - hit the prosecutor over the head with it. If they don't pass, don't worry either. Sometimes the polygraph is for the client's benefit, not the prosecutor's.

Great Advice

Great advice from Gideon. He posts about the criminal lawyer's need (obligation) to stay current on appellate decisions relevant to their area of practice:

Listen, I understand everyone’s busy. I’m no great lawyer myself and I’m also pretty swamped. But realize that we are the only thing standing between the government and our client’s liberty. Be informed.

So please, take the time to read appellate decisions. They come out once or twice a week and take about half an hour to read. You don’t have to be like me, reading them at the first opportunity . . . .

The more you know, the better a lawyer you will be. I know how I’ve improved. For your client’s sake, you should do it too.

In a comment to his post, a loyal reader notes:

I used to work as a law clerk for an appellate judge. We were required to read all opinions from the appellate courts of that state. I would get the opinions hot off the press, and if any were interesting, I would fax to my prosecutor buddy. One time, he told me that the very next day, he referenced a case I had sent to him while arguing a motion. Defense counsel hadn’t heard of the decision yet. I would bet that, at the very least, if you are citing hot off the press cases in your oral presentations to the judge, you will gain credibility with the judge and the prosecutors, which will help you help your clients.

Another reader said:

You HAVE to not only have a good grasp of the case law to begin with, you have to keep up with it. It’s one reason I preach motions practice to my mentees. If you aren’t doing motions, you aren’t reading case law; and if you aren’t reading caselaw, you’re letting at least some people go down who shouldn’t have. The only thing that even comes close in importance is elements analysis.

Staying current on our reading is hard work. It requires discipline and planning especially with all the other demands of law practice bearing down upon us. But there's a guaranteed pay off.

Even the best of lawyers need a reminder now and then about staying sharp. Great advice from a great lawyer. Thanks Gideon for reminding us how to keep our quiver full of sharp arrows.

Take the First Twelve?

Last week Scott Greenfield looked askance at the jury selection process, characterizing it as little more than "voodoo." I'm no jury consultant, like Anne Reed. But I've picked a few juries in my time and I think Scott was too cynical about the process. If I may, let me trash his post.

Scott observed a mock jury selection process at the Cardozo Law School where practicing lawyers interviewed a group of twelve law students who played like jurors:

The voir dire was artful. Beautifully crafted and masterfully executed. The student/jurors were relatively cooperative. They were responsive and articulate.

After the selection process the lawyers and students provided input:

Each of the lawyers then listed on a piece of paper his three peremptory challenges and the three jurors he would most prefer to have on his jury, and why. The students then wrote down which side they leaned toward after voir dire and why. First the lawyers, then the students, told the room their thoughts.

About the exercise, Scott said:

The exercise in pedagogy was enlightening. Everyone involved was half right and half wrong. Everyone.

Decisions were made for speculative reasons or no reasons. Assumptions were made that were dead wrong.

First, since nothing was on the line - nobody's life - nobody's freedom, I'm dubious how authentic such a demonstration could be. Maybe the problem was how beautiful and masterful it was conducted. Maybe it was too slick, too contrived. In reality, the jury selection process is about being real, not being impressive. I've impressed plenty of juries who nailed my client with a guilty or bad punishment verdict.

Second, it would be telling to hear what the lawyers were looking for during this mock selection process. Should they be striving to identify jurors who will lean their way? Maybe. In reality, we want jurors to trust us and listen to our story. If we get them, great. If we get folks already leaning our way we're just lucky.

The class moderator:

[Told] the students how the demonstration showed the way one conducts voir dire, open ended questions, eliciting the potential jurors hidden biases, getting the sense of who favors or disfavors your side, and how one strives for an impartial, rather than a favorable, jury since the other guy is going to bump the ones you like, while you bump the ones he likes, and you end up with a jury in the middle.

Good lawyers know which jurors are going to end up in the middle. On most panels experienced defenders can identify the fringe jurors on either side. Those people get struck by one side or the other. Consequently, the voir dire ends up focusing on jurors in the middle - developing relationships - helping people learn to believe in us.

Scott said everyone was 50% right and wrong. Right and wrong about what, I wonder. If everyone was half right and half wrong, then we've got a pretty good jury to work with. Heck, the defense lawyer only needs one juror to carry the load. Only one to persevere in their favorable vote for the selection process to have been successful.

Scott said decisions were made for speculative reasons. Sometimes our intuition is wrong. But we can't discount it. Defense lawyers won't always be right, but I can look back on my 17+ years of picking juries and remember the jurors I intuitively thought I should strike - but didn't. I paid a price for it later, at verdict time. Scott also said some decisions were made for no reasons at all. Well, that's a lawyer problem, not a jury selection problem.

Finally, I'm not sure if Scott proposed we take the first twelve or do away the jury trial altogether. I don't know of a better alternative. He did not make any recommendations. Maybe it is simply a matter of working harder and smarter. Maybe a matter of understanding people better.

I certainly appreciated Scott's post and thoughts on the mock voir dire he observed. Is voir dire tricky? Of course. Is it voodoo? I wouldn't be as cynical as that.

Trial by Ambush

In his third installment on great lawyering, John Day (Day on Torts Blog) discussed the importance of having a command of the rules of procedure and evidence. John pointed out that "truly great trial lawyers learn the rules and use them both as a sword and a shield." Well, I couldn't agree more. I've had success in many trials because I knew the rules of evidence and procedure better than my opponent.

But something else John mentioned in his post interested me:

The adoption and expansion of the discovery section in the modern-day rules of civil procedure was intended to reduce the number of trials by providing a mechanism for the flow of information between parties to litigation. The idea was that if one party to a dispute learned the opposing party’s view of the facts and law more cases would be dismissed without the expense of trial. It worked. The “vanishing civil jury trial” is now a reality. The fact of the matter is that over 98% of all cases are settled before trial and even the cases that go to trial are subject to the rules of civil procedure.

More criminal cases in Texas could be settled favorably if the discovery rules were more advantageous to the accused. However, the rules regarding discovery in state criminal cases are very limited and heavily favor the prosecution. The state legislature made sure criminal trials are trials by ambush.

In Brazos County the felony court judges created a "standard" discovery order which requires the state to reveal only a limited amount of what they have in their file. They must give the defense access to physical evidence, statements of the accused, photographs, and the like. However, no police reports. No witness statements. Interestingly, the state is never required to reveal who their witnesses are, save experts, until just before the jury is selected. Granted, the order requires the prosecution to provide copies of lab results and other technical information. However, the lack of witness names and statements create a hindrance to proper case investigation by the defense.

Fortunately, much discovery is handled informally with prosecutors. The good ones let the defense lawyer know what they have, for the most part. They allow the lawyer to review reports and witness statements. But remember, they are not required by law to do so. Unlike the civil lawyers John Day describes in his post. The insecure prosecutors? Well, they keep their files "closed" and only dole out information to the defense when it seems to suit them. What are they afraid of, anyway?

It seems fair to give the defense a chance to interview state's witnesses before trial. The witness are the folks most likely to incriminate our clients. Why not reveal their names and addresses prior to trial and give the defense a chance to question them?

If criminal cases had a flow of information like John Day described in civil cases, the court's dockets might be much less congested with criminal matters. The playing field would be leveled. And the "vanishing trial by ambush" could become a reality.

The Virtue of Patience

The Boston Criminal Lawyer Blog commented last week on the tragic story of Marion Jones, the famed Olympic Athlete who received five medals in the 2000 Sydney Summer Olympics. In October 2007 Ms. Jones admitted to taking steroids before the Olympics. Since then, she has been stripped of her medals and accepted a two-year suspension from track and field competition. In addition, Jones was sentenced to six months in prison, plus 2 years probation by U.S. District Judge Kenneth Karas. The judge sentenced Jones to the maximum time allowed under her plea agreement to serve as a deterrent to other athletes who might be considering the use of performance enhancing drugs.

Beyond the tragedy of a young mother going to jail, beyond the disgrace of giving back her medals, and beyond the humiliation of being used as an example to other athletes for all the world to see, the Marion Jones story was one that need not have happened at all. It need not have happened since Marion was capable of performing at world class levels without the use of steroids or other performance enhancing drugs.

Athletes, for ages, have been deceived by the lie they must use drugs to reach their physiological potential. They believe without the drugs they are unable to compete at high levels. The truth is that drugs do help an athlete reach their potential more quickly than if the drugs were not used. But drugs do not increase athletic potential. In contrast, the athlete who works hard, stays clean, and gets plenty of rest over time is also capable of reaching their potential. It just takes longer. In other words, if Marion Jones would have developed a spirit of patience and perseverance, rather than a quick fix, she quite possibly would have reached her athletic goals without breaking the law and bringing disgrace to her name, family, and achievements.

Leave Me Alone - I'm Thinking

Over at the Day On Torts blog, John Day tendered an installment of four posts about how great trial lawyer's work. Even though John's points were tailored for civil law practitioners, many of the arguments he made apply equally to the Texas criminal defense attorney. His posts on how to become a great trial lawyer are here, here, here, and here.

In his fourth installment, John insisted great trial lawyers take time to think. Time to plan long-term. It's obvious John has lived in the trenches for a long time as he expounded upon the tyranny of the urgent. Lawyers up against deadlines, stressed-out, scrambling for answers, all because they failed to plan long-term.

He says: "It is easy to fall into a reactive mode and then find yourself scrambling to do what you should have done long before." Procrastination is also the criminal defense lawyer's nemesis. The bottom line - the client suffers because the lawyer has not thought deeply about the case and used time efficiently.

John's suggestions?

Great trial lawyers avoid this by taking time to think. They identify issues early, and create an action plan to address those issues and reduce the likelihood of harm to their client’s case. They delegate work to other competent persons to ensure it is done in a timely fashion. And they use the action plan to cause their opponents to react. In other words, great trial lawyers stay on offense, whether they represent plaintiffs or defendants.

In practice, this means getting out of the office, turning off the cell-phone, delegating responsibilities to the staff. All to free the lawyer for time to think. By doing this, the great trial lawyer stays at least one step ahead of their opponent at all times, even if their opponent is a great trial lawyer, too. So simple, yet so profound.

I will spend more time on John's ideas in the coming weeks. Check out his blog. In the meantime, leave me alone - I'm thinking.

More Jelly Beans Please

Any effective criminal trial lawyer needs a trial theme to keep the jury interested. Furthermore, they'll present their case in the way of a story to help jury comprehension. But what happens to our themes and stories when jurors are required to comprehend difficult, and thus repetitive, concepts? Well, Anne Reed tipped us off this week to an interesting study about how people absorb information that is unvaried. Anne posited:

When you need jurors to understand new and complicated facts or concepts, you have a problem: you need to repeat the material more than once, but when you do, you're punished for it. A new and seemingly unrelated study suggests a path between the rock and the hard place.

The study hypothesized people don't like absorbing repetitive information. However, if the repetitive information was broken down into separate information bites (no pun intended), or sub-categorized, then the listeners liked it better.

I loved the researcher's method - make people eat jelly beans. I, for one, like jelly beans and wouldn't mind how many they made me eat. But it appeared the research subjects were more reasonable. They were only required to eat 22 beans. Those who were told "just eat the beans" got bored. Those who were told to eat cherry, then orange, then strawberry, then peach, and then tangerine avoided getting "maxed-out."

The bottom line for lawyers? Bring different flavored jelly beans to jury trial. While you're enjoying the candy, make sure you're breaking-up difficult and repetitive information into sub-categories that the jury will enjoy hearing more. While you're doing that, throw each a bean.

Effective Use Of Law Enforcement Resources

On Saturday, January 5, 2008 two of my good friends and I were cited by the College Station Police Department for a traffic violation in a student residential area of town. The streets in that area of town were very low traffic, especially during the semester break while the Texas A&M student body was still home for the holidays.

The criminal act involved a rolling right turn through a stop sign. To our left was a cul-de-sac street having no traffic that I'd ever seen - even when the students were in town. We looked left as we entered the intersection, (no cars coming) made a sweeping turn to our right at about 8 mph, and kept well to the right in a controlled, well coordinated turn.

To our surprise, the police officer was sitting in the cul-de-sac apparently waiting for traffic violators and stop sign runners. She turned on her siren and lights and we stopped immediately. She obtained our identification and promptly wrote out three traffic tickets for running the stop sign. We were detained for about 50 minutes on the side of the road.

The interesting thing about this case? My friends and I were on our bicycles. When the officer asked for my driver's license, I did not believe I needed a driver's license to operate a human powered vehicle upon the highways and byways of College Station, Texas. Moreover, during the 8000+ miles I rode each year for the past ten years, I've never been cited for a traffic violation before, although I probably violated a traffic code provision here and there.

I didn't really mind getting stopped for going through the stop sign as I was the instigator, leading the small, but elite cadre of riders through the intersection without fully complying with the traffic laws of this state. However, I did think getting a ticket was a little over the top. A stern warning probably would have sufficed, citing rider safety and the like. We always wear our helmets, by the way. Furthermore, I thought the officer's use of her time was a bit suspect, detaining a small, and for the most part, law abiding group for close to an hour. If she was trying to prove a point, she had made it when the siren came on.

Who's Better?

Shawn Matlock wondered here whether the citizen accused looking for effective representation wanted an advocate or a zealot for a defense lawyer. While compelled to answer questions from in-laws and acquaintances during the holiday season about why he defended people, Shawn made this observation:

You see there seems to be this stereotype of criminal defense attorneys. I mean real criminal defense attorneys, not the Pretender who really practices personal injury/ trust and estate/ family/ contract/ civil law. Those that devote their practice to helping those poor unfortunates that find themselves caught up in the machinery of the government.

That stereotype is of a liberal, long-haired (usually in a pony tail), ACLU card-carrying, 60's flower child radical. Maybe that's just me though. Maybe that's just Texas. But it's what I have been confronted with. So it is a surprise when I tell people that I am really none of those things. Certainly not long-haired.

When people realize that I am not like the stereotype the question inevitably comes again. How can I defend those accused if I don't think like that. The answer is pretty simple, really.

My handy online thesaurus shed some light on this matter. Another word for "advocate" was champion, supporter, backer, proponent, spokesman, fighter, or crusader. "Zealot," on the other hand, was a fanatic, extremest, radical, die-hard, activist, dogmatist, or militant. The fanatic was intense and eager, but possibly irrational in their enthusiasm. The zealot exhibited not only extreme devotion, but vehement activity in support of a cause or goal.

So Shawn posed the question:

. . . do you want to hire an attorney who thinks the crime with which you are charged is crap and should be repealed or do you want to hire the attorney that can focus his energies on your case and not on his own political agenda?

I love Shawn's simple way of putting life in context. I'm also proud to say I know some fine defense lawyers with pony tails, or who'd like to grow a pony tail, or maybe wear an earring. Fine lawyers who think much of the criminal law in this State is crap. But also lawyers who focus great energy on their clients without furthering a political agenda.

Although he did not say, I expect Shawn would find the zealot boring with their hell, fire, and brimstone. They are single dimensional. They just plain give me a head ache. Another thing he didn't say was the zealot, or should I say the zealot's client, usually gets crucified in court because of their irrational enthusiasm for a cause. Especially, in these parts where the ACLU is a four letter word.

Anyway, thanks for the insight once again, Shawn. You're a champion and no fanatic.