The Persuasive Case - Get The Facts

Why should a potential client know how the persuasive case is built? Isn't that the criminal defense lawyer's job? Fortunately, an informed client can benefit greatly from such knowledge. It means they can be actively involved in the development of their own defense. Involved clients are often happy clients. Secondly, when shopping for the right defense lawyer the informed client has objective criteria from which to chose a defense lawyer. If they interview a lawyer unfamiliar with building the persuasive case, the client should be looking elsewhere for legal counsel.

The first post in this series on building the persuasive case focused on credibility. The next areas to explore are fact gathering, developing legal theories, and brainstorming for ideas. Today we'll talk about gathering facts.

Factual material should be gathered from every possible source within the economic limits of the case. The client is a major source of information. Beyond the client, an independent investigation should be conducted by the defense lawyer. That means interviewing key witnesses and sometimes using a hired investigator as part of the defense team. A criminal lawyer should always discuss the utility of hiring an investigator during the initial client interview to help the client prepare for possible expenses that might be incurred.

The crime scene should be visited - including the time of day of the alleged events. Plan on taking photographs, preferably digital photographs which can be downloaded onto a computer and organized using an appropriate image viewing program. Depending on the case, physical measurements of the scene could be obtained. Sometimes preparing a scaled diagram of the area is important. Observe lighting conditions, traffic patterns, and movements of people in the area.

Develop a discovery plan. Specifically, what information is needed from the prosecutor to help develop the case? What photos or video did the police take? What physical evidence was collected? (Amazingly, so few lawyers even inspect the physical evidence when preparing for trial). Often prosecutors will provide informal discovery if they believe the defense lawyer is working towards a resolution of the case in good faith, even if the prosecutors have a closed file policy like those in Brazos County. Always get the police photos. Always view the police video. (Criminal cases have been dismissed after prosecutors realize their video did not quite match what the police report said). Always get copies of recorded audio.

What kind of relevant documents exist? What search warrant affidavits, probable cause statements, accident reports, or other public information is available? Medical records, hospital records, MHMR records, school records, and public records pertaining to the client, alleged victim, and witnesses. Obtain information and standards from governmental organizations through subpoena or open records requests. Training manuals, standards documents, and the like. For example, field sobriety testing manuals are commonly used to develop an attack upon a police officer's administration of DWI sobriety tests.

Once factual materials are gathered experts may be needed to evaluate the evidence. Forensic experts, psychologists, fingerprint experts, or others pertinent to the case. Maybe a toxicology expert in a DWI case. Certainly, a computer forensic expert in a child pornography case. DNA experts when the State is using biological evidence. The list goes on and one. The possible expenses involved with hiring experts should also be discussed with the client at the initial interview.

Once the facts are gathered the Bryan criminal defense lawyer can begin to decide upon legal theories applying to the case and brainstorming for ideas. Those topics will be next when we return to building the persuasive case.

Lawyer Advertising

For good or bad, websites, search engines, and Googlebot are facts of advertising life. If we want to be seen - if we want to get phone calls - we must understand how the system works and use it to our advantage. Face it, most lawyers need to advertise if they want to be in the hunt for business. People must find us if we are to get the calls. An adage in bicycle racing is "train your weaknesses, but race your strengths." If you're a former DA, there's nothing wrong with touting that fact to remain competitive in the marketplace. If you have experience setting you apart from the competition, I have no problem with you using it to generate calls.

However, we know it's a competitive world and not all lawyer advertising will be scrupulous. Shawn Matlock observed:

One of the most common situations I encounter with potential new clients is the statement "Another lawyer said he can get my case dismissed." I hear it so often, I can almost predict it during the interview with the precision of Babe Ruth calling his shot. There are any number of things wrong with this statement. First and foremost, any attorney that tells you what the outcome of your case is going to be during the initial interview is lying to you. It's that simple.

Scott Greenfield posted here:

We write about how we want to empower the consumer of legal services to make sound choices in retaining a lawyer, and how more information (regardless of quality or deceptive nature) adds to the body of knowledge available to the consumer. What a load of crap. Information is fine, but only if it is honest, legitimate and meaningful. Information that is crafted for the purpose of playing consumers is wrong, and demeans the profession.

I could not agree more. But we cannot ignore the fact that clients are ultimately responsible for their own buying decisions. Maybe I am being presumptuous. But when I shop for a new car I take it to my trusted mechanic and test ride the car. When I'm looking for a dentist I ask people who have seen the dentist's work and inquire about the quality. When I'm looking for a lawyer I must do my homework, too. If I buy a lemon because I did not do my homework, it's ultimately my fault.

Mark Bennett posts here and suggests conscientious lawyers can teach potential clients what they want:

The accused are like most other people: some of them want to be lied to, some of them want the unvarnished truth, but most don't know what they want. They are, however, educable . . . We conscientious lawyers who believe in telling clients the truth can teach our potential clients how to choose a lawyer, and what to look for -- in other words, we can teach them what they want.

First, are we really teaching clients what they want? I think most reasonable people already know what they want. Mark is right that some people want to be lied to. But most people just want someone who cares more about them than the money. Most people just want a lawyer who will empathize with them and work hard to get the best results possible under the circumstances. Thankfully, even marginally sophisticated clients understand lawyers practice law to make a living. But if we can successfully place ourselves in the shoes of the potential client, demonstrating both confidence and competence, we have a better chance of persuading them we are a good choice among several other good choices. If we can't do that, we are in the wrong line of work anyway.

Finally, Gideon notes:

It’s a delicate balance you have to achieve in choosing an attorney. First, who can you afford? Second, of those you can afford, which one is best for you . . . Setting the right fee is important too. Clients may be stupid, but they’re not stupid.

We also must allow the free enterprise system to work its magic and weed out the schmoes. I've seen it work in Brazos County - cut rate lawyers coming into town promising the moon. Over time they fold because (if I can borrow a phrase from Mark Bennett) "They're writing checks in their marketing that they can't cash in the courtroom." But I think it is even more basic than that. We all cannot be "successful" in the courtroom all the time. But we can be caring and empathetic all the time. That is the service which stands the test of time. The quality of our service is what brings people in and keeps them coming back.

But life is not fair either. The schmoes really don't care. Sometimes the schmoes get the business. It's a hard pill to swallow that others must suffer because of unscrupulous behavior. Conscientious lawyers just can't dwell on that inequity. If a client gets screwed by some fly-by-night, hopefully the word gets out and the free enterprise system will work its magic. If not, we can find comfort in in Romans 12:19: "Do not take revenge, my friends, but leave room for God's wrath, for it is written: "It is mine to avenge; I will repay," says the Lord.

Texas: It's Like a Whole Other Country

For $30 you can get a Texas license plate with the slogan: "Texas: It's Like a Whole Other Country." Those words never rang more true after I read the story of Scot Noble Payne. Mr. Payne was an inmate of the Idaho Department of Corrections being housed in a privately owned corrections facility in Dickens County, Texas. The facility was operated by a Florida company called the GEO Group. Idaho had a policy of easing inmate overcrowding in their own state by farming out inmates to other facilities like the one in Dickens County. The problem was that conditions at this facility were so deplorable and sickening that Mr. Payne used a razor blade to slice two 3-inch gashes in his throat and bled to death in the shower of his cell after writing 20 pages of letters to loved ones describing the decrepit conditions. The "Kick Ass NORPS" out there will be happy to know Mr. Payne was serving time for molesting a child.

After Payne's suicide, the Idaho Department of Corrections health care director inspected the Texas prison and declared it the worst facility he had ever seen. The inspector noted that Payne's cell was unacceptable and the remainder of the facility was beyond repair. After the inspector made his report, warden Ron Alford was eventually fired. Alford's excuse was that GEO did not provide enough money to make necessary improvements.

Families of incarcerated inmates should know that GEO was hired to operate prisons in 15 other states despite reports of abusive guards and terrible sanitation problems. Also, GEO was sued after a female inmate in the Val Verde County, Texas prison alleged she was raped by another inmate and sexually humiliated by a GEO guard. Beyond this, investigations into sex abuse allegations at another GEO-run Texas prison led to the firing of a guard who was a convicted sex offender.

What better way to rehabilitate a fellow human being than forcing him to live in a sewer. What better way to modify his behavior than to drive him into such deep depression that he feels his only escape is taking his own life. What better way to train another person to live a law abiding life outside of prison walls than by denying him basic sanitation, substance-abuse training, pre-release programs, and anger-management classes. I know our society has no love lost on convicted child molesters and other criminals, but come on. Do we train our children by making them live like pigs? Yes, it appears that Texas is like a whole other country - a third world one.

Just Don't Do It

Every time I hear a defense lawyer talking to the prosecutor about arranging a polygraph examination for their client - I absolutely cringe. Polygraphs can be great tools and a "clean chart" can really make the difference with the DA or the grand jury. However, in discussing the efficacy of the criminal defendant submitting to a polygraph examination, Mark Bennett makes the following observations in Defending People: The Art and Science of Criminal Defense Trial Lawyering:

Sometimes a polygraph ("lie detector") examination report is helpful in the defense of a criminal case. Such reports are not generally admissible at trial, so that the jury will probably never see the report. But it might be a useful tool in convincing either the prosecutor or the grand jury not to proceed with the case. . . .

Government polygraph examiners use the polygraph as a tool to get confessions. Being told that the machine says you're lying provides tremendous motivation to change -- or at least explain -- your story. Sometimes a police polygraph examiner will tell the accused that he has failed the polygraph regardless of the real result.

Mark is absolutely right. Never, never, never take a polygraph examination without first consulting with a highly qualified criminal defense lawyer. If the lawyer suggests you take a polygraph administered by the police, fire that lawyer and hire another. The only polygraph you should take is one given by an expert hired by your lawyer, which protects the results under the attorney/client work product privilege.

Thanks Mark for bringing up the polygraph issue. I've had many unfortunate people contact me on the phone and explain they had submitted to a police polygraph and failed. My next question is always: "What did you tell them after that?" Rarely is the answer a good one for the accused. People need to know the dangers of taking polygraph examinations administered by the police. They are used as a tool to get confessions, pure and simple. My advice is "Just don't do it."

Another Bad Traffic Stop in Texas

I received three calls this week from potential clients who were stopped by Brazos County police officers for not having a license plate attached to the front bumper of their cars. Rather, each had their license plate wedged between the dashboard and the windshield, which was visible from the front of the vehicle. Each had incriminating evidence seized by the police and each face criminal charges from DWI to marijuana possession. Each caller was comforted as I explained how the following law applied to their case.

Texas Transportation Code section 502.404(a) requires that a motor vehicle "display two license plates, at the 'front' and rear of the vehicle." Tex. Transp. Code Ann. § 502.404(a). The code does not define the "front" of a vehicle.

In State v. Losoya, 128 S.W.3d 413 (Tex. App. - Austin 2004, pet. ref'd) the Court of Appeals decided an issue very similar to that of my callers. In Losoya, the police testified they had noticed a pickup did not have a license plate mounted on the front bumper. Instead, the plate was wedged between the dashboard and windshield. As a result, the police stopped the vehicle believing a traffic violation had occurred. At the suppression hearing the police officer added he could see the license plate in the truck's front window.

The court found the term "front" ambiguous and looked to other factors to determine the meaning of the code section. The court said:

"While a place to display the license plate is usually found on the front bumper, the statute does not expressly require the use of this location. The display of the plate in some other place or manner is not inconsistent with the language or purpose of the statute. The officers testified that they could see the license plate in the windshield. We conclude that Losoya's display of his front license plate in the manner shown here did not violate section 502.404(a) as to give the officers grounds to reasonably suspect a violation of that statute."

Each of my callers should benefit from the decision in Losoya. Each detention should be challenged by a motion to suppress evidence based upon an illegal traffic stop. If the facts are close to those in Losoya, they should prevail and the incriminating evidence obtained by the police should be excluded from each case.

Happy July 4th

Happy Independence Day. I'm proud to be an American and even prouder to be a protector of individual rights and freedoms. As I enjoy a day off this July 4th, I pondered the justifications behind the America Revolution. After a bit of research I discerned the casus belli of the Revolutionary War.

Taxation without representation was the primary grievance of the American colonists. Taxes were imposed without representation in the British Parliament. Although the British responded that the Americans where "virtually" represented, the Americans rejected this fiction since the "virtual" representatives in Parliament knew nothing about the practical aspects of life in America.

British rule threatened the political ideology called Republicanism. Republicanism stressed liberty and rights as central values. It asserted that people had certain inalienable rights that could not be voted away by a majority of voters. It rejected aristocracy and inherited political power. Republicanism was the core political value system at work in American during the 1770's.

Finally, the British policy of salutary neglect was a large contributing factor to the Revolution. Salutary neglect was the long-standing policy of Great Britain which avoided strict enforcement of their parliamentary laws. Since the British imperial authority failed to assert the power that it had, the American colonies were left to govern themselves - and they got accustomed to the idea of self-control. Over time, the isolation in America created by salutary neglect developed an identity in America that considered itself separate from Great Britain.

The Bill of Rights were an out-growth of the virtues of Republicanism and the American Revolution. They were the first 10 amendments to the United States Constitution pasted in 1791. These amendments limited the powers of the federal government, protected the rights of all citizens, residents and visitors on United States territory. Among the rights these amendments guaranteed were:

• the freedom of speech, press, and religion;
  
• the people's right to keep and bear arms;
  
• the freedom of assembly and freedom to petition; and
  
• the rights to be free from unreasonable search and seizure, cruel and unusual punishment, and compelled self-incrimination.
  
• The Bill of Rights also restricted Congress' power by prohibiting it from making any law respecting establishment of religion and by prohibiting the federal government from depriving any person of life, liberty, or property without due process of law. In criminal cases it required indictment by grand jury for any capital or "infamous crime," guaranteed a speedy public trial with an impartial and local jury, and prohibited double jeopardy.

Happy July 4th. I hope you, too, are proud to be an American. I'm very proud to be a lawyer practicing the Art and Science of criminal defense work, defending and protecting those rights and values fought for and died for so many hundreds of years ago.

Credibility - The Only Thing

Legendary football coach Vince Lombardi reportedly said, "Winning isn't everything. It's the only thing." In the courtroom, Credibility is not everything. It is the only thing. Without credibility the criminal defense lawyer cannot hope to win. But credibility is built slowly, one small step at a time. It can be secured only through tireless and difficult effort - but the payoff is worth the sacrifice.

How does the defense lawyer develop credibility in the courtroom when every time we walk in on the first day of trial we are facing a group of people who question our motives. They assume we will never let the truth stand in the way of a victory. These same people believe a lawyer, especially a criminal defense lawyer, will lie in court to promote their case. If a trial is a credibility contest, how does the defense lawyer establish they are the one lawyer in the room who should be trusted?

We begin by always telling the truth. The defense lawyer cannot afford to lie about anything. Every statement that utters from their lips during trial must be completely accurate, even if it hurts. If the lawyer is in a situation that seems to call for a "little white lie," take the road less traveled by lawyers and say nothing. See Scott Greenfield's post on the strategy of saying nothing.

However, honesty alone is not enough. Credibility requires honesty and knowledge. The criminal defense lawyer must know more about the case than anyone else in the courtroom. Every statement the lawyer makes during trial must be correct. This can only happen when the lawyer's preparation has been exhaustive. When we make mistakes in front of the jury we lose hard earned credibility. But mastering the facts and legal issues in a case is difficult work, especially when the lawyer is busy juggling other cases and the practical aspects of running a law practice. The answer? Have fewer cases paying higher fees. Several of the blawgers commented on this issue last week here, here, here, and here.

That's enough for now. Soon we'll discuss the building of a persuasive case and using credibility to get results. Please stay tuned.