No Money? Who Cares?

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

In his review, Radley Balko concluded:

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

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

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

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

A Level Playing Field

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

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

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

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

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

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

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

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

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

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

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

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

Pro-Se Insanity

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

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

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

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

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

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

Real Life "CSI" Effects

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

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

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

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

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

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

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

Too Much Victim Impact?

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

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

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

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

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

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

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

Working Like Dogs

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

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

But Anne, you forgot to include this quote:

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

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

Trial For Sport

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

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

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

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

Scott adds this:

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

And finally, Norm concludes:

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

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

Jobs Well Done

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

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

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

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

Good work by the Texas criminal defense bar.

Probation for Murder?

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

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

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

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

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

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

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

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

Remembering 1984

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

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

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

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

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

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

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

Our Best Stories

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

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

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

Cockiness Kills Credibility

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

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

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

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

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

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