Wednesday, March 26, 2008

Should Lawyers Love To Be Hated?

I pondered this question after reading this post at Lawbiz this morning. The issue was the self-esteem of lawyers. Ed Poll wrote:
But, when we continue to learn, we also know that there is a lot still to learn. This tends to impact one's self-esteem. In talking with several psychologists and organizational development experts, poor self-esteem is one of the greatest challenges to lawyers.
I certainly learned something new this morning after my client had received deferred adjudication (here in Texas that's non-conviction probation) for the charge of cruelty to animals. Without going into the case details, suffice it to say my client was the much-less culpable of two young men charged with killing a horse back in October 2006.

After sentencing the victim was given the opportunity to address my client with a "victim impact statement." Basically, the statement is a vehicle by which the aggrieved victim can vent their feelings toward the person being held accountable for the crime. In theory this serves as a catharsis. Practically, I don't believe it really works since human beings tend to embrace their hate, nurture it deep inside, and fail to let it go.

Anyway, the amazing feature of this victim impact statement was her personal and vicious attack upon me. Don't get me wrong on this. If the law affords the victim a chance to say their piece after the judge already decided sentencing, I can live with that. However, according to the victim I was capitalizing upon her loss because I was receiving a fee. Her hate for my client and me was so palpable the entire courtroom received a taste of it. As she launched her invective the prosecutor was gracious enough to approach her and explain (outside of our hearing) that her comments needed to address the defendant and not his lawyer. The prosecutor was even more gracious when he apologized to me quietly after the hearing was over.

This woman did not hurt my feelings or damage my self-esteem. Regretfully, she has deep, unresolved issues of her own. But I couldn't help wondering whether defense lawyers must love to be hated in order to survive the onslaught of adverse public opinion we so often endure while perform our duty representing the interests of the criminally accused.

A 5:00pm Verdict??

The call came at 5:00 pm yesterday afternoon . . . get back to the courthouse. The jury had been deliberating since 11:15 am on a two-witness, DWI case including about 4 hours of testimony. We tried an aggressive case and were cautiously optimistic for a not guilty verdict. The prosecutor worked hard, as well, milking his case for every sign of alcohol intoxication possible.

First, a plug for my consulting experts. With the help of Lance Platt, of Platt & Associates, (formerly Walden, Platt & Associates) we were able to take the arresting officer on cross-examination and carve him up like a roast. Lance is a former College Station Police Department officer who provides expert assistance in the evaluation of DWI videos and investigations. For a reasonable fee, the firm takes a DWI video, along with other pre-trial discovery, and evaluates the police administration of field sobriety tests and scoring. Lance provided a detailed report having reviewed the officer's performance with a fine-tooth comb. With this information we were well prepared to attack the credibility of the arresting officer and the prosecution's case.

The client didn't look too bad on the video. The police stopped him for driving without his headlights on. He made a few mistakes on the sobriety tests, but nothing that couldn't be explained as a young college kid, scared, and under the microscope of two uniformed cops. He was honest with the officer admitting he'd consumed 5-6 beers at a local drinking establishment. However, during the trial we showed the arresting officer failed to comply with numerous standardized procedures for administering the roadside tests. The failure to comply with these standardized procedures compromised the validity of the tests by the officer's own admission. Furthermore, we were fortunate to have two officers involved since their testimony conflicted on key aspects of the case. During a rare jury trial moment, the arresting officer "failed" the walk-and-turn test during his demonstration by exhibiting two clues of intoxication . . . stepping of line and making an improper turn. A rare gift, indeed, in the defense of those accused of driving while intoxicated.

I'd like to report the jury acquitted my client . . . but no. Yet, we were blessed with a hung jury and mistrial. After speaking with the jurors the split was 5-to-1 in favor of an acquittal. One juror was impressed a trained and practiced police officer made honest mistakes on his own sobriety tests!

So, we plan on trying this case again . . . anytime, anywhere. When it comes up I'll let you know.

Tuesday, March 25, 2008

Choosing Our Clients

I enjoy dabbling on the legal marketing blogs now and then. I ran across this post by Tom Kane on the Legal Marketing Blog. Tom suggested lawyers are happier when they work for clients they like. I certainly agree with that premise. However, Tom suggested an approach to achieve this objective which I found unworkable for the criminal defense lawyer. Tom said:
But, if you are having trouble identifying the “ideal” clients for your law firm, think about this for a minute. Try using the reverse approach. By that I mean determine your ideal clients by deciding the clients you DON’T want.
The problem with Tom's approach? Often lawyers can't identify clients they don't like on the front end. It's only after weeks or months working with the client does the lawyer realize the client was not exactly what they were looking for.

Like lawyers, potential new clients (PNCs), tend to put their best foot forward during the initial intake process. Criminal defense lawyers can often discern something about the case before the first interview. By talking with the prosecutor or by obtaining public records, like probable cause statements, we get an idea about the facts. Even then, though, it is difficult to discern a client whom we ultimately don't like.

In my experience, the client who's able and willing to pay my fee is a client I can work with. My paying clients have much invested in their lawyer and usually were not willing to shell-out big bucks unless they trusted my judgment. As long as the lawyer works hard to maintain, or improve, the client's initial assessment, the working relationship remains good.

Some lawyers attempt to cull-out undesirable clients by refusing to accept certain types of cases like sexual assaults upon children, child pornography cases, and the like. I haven't found this a reliable way to discern a good client from a bad one. Rather, it is the long-term investment into my client's case that uncovers what was hidden earlier in the representation.

So, although I appreciated Tom Kane's desire to help the practicing lawyer improve their clientèle and improve their working environment, I found his idea largely unworkable for the criminal defense lawyer.

Bottom line, if I charge a good fee for my services, if the PNC trusts me enough to pay the fee, and if I maintain client trust by working hard, then the client and I get along just fine.

Yet Another Jury Is Out

I've been quiet this week, so far. Yesterday I started another jury trial in the Brazos County Court at Law No. 1. It's a DWI, breathtest refusal case where two police officers testified. The jury is currently deliberating and I'm at the office trying to get work done waiting on a verdict. I've grown accustomed to waiting on juries, though, I can't say I like it. Anyway, after the verdict I'll provide a postmortem on the case.

Friday, March 21, 2008

A Mockery of Justice

On this Good Friday I reflect upon a mockery of justice over 2000 years ago. From the Biblical accounts, following is a summary of the trials of Jesus Christ, who having committed no crime, was brought before Jewish and Roman authorities to stand trial and be ultimately sentenced to death on a cross.

The night of Jesus’ arrest, He was brought before Annas, Caiaphas, and an assembly of religious leaders called the Sanhedrin (John 18:19-24; Matthew 26:57). After this He was taken before Pilate, the Roman Governor (John 18:23), sent off to Herod (Luke 23:7), and then returned to Pilate (Luke 23:11-12), who finally sentenced Him to death.

There were six parts to Jesus’ trial: three stages in a religious court and three stages before a Roman court. Jesus was tried before Annas, the former high priest; Caiaphas, the current high priest; and the Sanhedrin. He was charged in these trials with blasphemy, claiming to be the Son of God, the Messiah.

The trials before Jewish authorities, (the religious trials), showed the degree to which they carelessly disregarded many of their own laws. There were several illegal procedures from the perspective of the Jewish law:
(1) No trial was to be held during feast time. Jesus was tried during one of the greatest Jewish feasts, the Passover;
(2) Each member of the court was to vote individually to convict or acquit, but Jesus was convicted by acclamation;
(3) If the death penalty was given, a night must pass before the sentence was carried out; however, only a few hours passed before Jesus was placed on the Cross;
(4) The Jews had no authority to execute anyone;
(5) No trial was to be held at night, but this trial was held before dawn;
(6) The accused was to be given counsel or representation, but Jesus had none; and
(7) The accused was not to be asked self-incriminating questions, but Jesus was asked if He was the Christ.
The trials before the Roman authorities started with Pilate (John 18:23). The charges brought against Him were very different from the charges in His trials before the Jewish authorities. Before Pilate He was charged with inciting people to riot, forbidding the people to pay their taxes, and claiming to be King. Pilate found no reason to kill Jesus so he sent Him to Herod (Luke 23:7). Herod had Jesus ridiculed, but wanting to avoid the political liability, sent Jesus back to Pilate (Luke 23:11-12). This was the last trial as Pilate tried to appease the animosity of the Jews by having Jesus scourged. In a final effort to have Jesus released, Pilate offered the prisoner Barabbas to be crucified and Jesus released, but to no avail. The crowds called for Barabbas to be released and Jesus to be crucified. Pilate granted their demand and surrendered Jesus to their will (Luke 23:25).

The trials of Jesus represented the ultimate mockery of justice. Jesus, the most innocent man in the history of the world, was found guilty of crimes and sentenced to death by crucifixion.

Wednesday, March 19, 2008

The Price of Lawyering-Up

David Tarrell, over at the "In the Moment" blog, did the right thing this week when he advised a potential new client (PNC) to stop talking to the police and not take a polygraph. Unfortunately, David related how the PNC promptly got arrested after "lawyering-up." The PNC's mother called to berate poor David for giving such fitting counsel. David articulated the following:
His mother, purely out of love for him and frustration for where he's at and calling me to inquire about retaining me, said something to me about giving him advice that landed him in jail, something along the lines of "well, look where he ended up after he talked to you." I told her I couldn't control what they did, but that I wouldn't change a thing, even considering where he ended up. I even described it as million dollar legal advice, pointing out that I'd given it for free.
David surmised the PNC was arrested as punishment for hiring a lawyer and failing to cooperate further with the police. That's probably exactly what happened. You see, after the PNC stopped cooperating the police had no further use for him and pulled the plug, as they so often do. David felt fairly crummy after the judge failed to reduce bond enough to free the PNC (now a NC). He concluded his post with the following apropos observation:
I'm hoping that even though my advice landed him in jail for the short term, it'll keep him out in the long. They can put him in jail, laughing at the time that he "should have done what they asked" (and not called a lawyer) but I hope to have the last laugh.
I hope David's new client understands the price of lawyering-up is worth it. Especially if it results in a better deal, a victory at trial, or dismissal in light of insufficient evidence to obtain a conviction.

Lawyering Overrated?

I was shocked (:-)) yesterday to see that Marty Nemko, U.S. News, had listed attorneys as one of the 13 most overrated careers. Here's what he said in this week's issue:
The Appeal: Many college students decide to go to law school by default. After all, a legal career promises prestige, money, and the chance to use the law to make a difference in society. Some aspiring attorneys also picture themselves as the lawyers on TV, making scintillating closing arguments in an expensive suit before a rapt jury.

The Reality: Most lawyers' lives bear little resemblance to those on Law and Order. Even litigators spend lots of time drafting or poring over sheaves of detailed information and negotiating with other lawyers prone to contentiousness and chicanery. And most lawyers rarely go to trials, working instead as transactional attorneys who need to bill 2,000 hours a year or more to meet the firm's targets. That can mean long evenings drafting lengthy, airtight contracts or other documents. In the corporate world, many lawyers find little fulfillment and burn out.

Alternative: Mediation or a less contentious niche within the law, such as adoption law.

Other careers making the overrated list were advertising executive, architect, chef, chiropractor, clinical psychologist, medical scientist, nonprofit manager, physician, police officer, teacher, and small-business owner. Marty said the list was subjective and was derived from a review of books, articles, forums and BLOGS about people's experiences.

Clearly, Marty never hung out with the criminal defense law bloggers. I thought we were going to trial all the time and having a grand old time of it!

Here's why I think lawyering made Marty's list. You see, the odds were stacked against us. In addition to being lawyers, we are also advertising gurus, psychologists, non-profit managers (only during some weeks), teachers, and small-business owners all rolled into one. Come on, how could anyone overcome such a deficit. I object!

Frankly, I'm itching to jump up and start my adoption law practice tomorrow. Since I'm still a little young to start a rock-and-roll band, adoption may be the uncontentious ticket to contentment for me in my legal career.

Tuesday, March 18, 2008

The Juror's Perspective

I received a comment this afternoon from one of the jurors who served on the bank robbery case I tried a couple weeks ago. The comment was gracious and compassionate. I reproduced it and my response for your pleasure.

From the Juror:
I admire your positive outlook on things during a trial. I can only assume that this is a must in your case. I can also only assume that a large portion of your clients are guilty. I'm sure the positive outlook is vital to keep the energy moving in the right direction. The "snitch" was just that and not a very likable person; however he was not a liar. I think it is clear now that all 12 of us thought he was a lot of things, but not a liar. As for the DNA: you had me for a minute. You should have put your client in the car before the robbery. Don't leave it up to us to assume when he could have gotten in that car to deposit DNA. You put him there with a witness and your case begins to teeter the other way... You are a good lawyer. Even the good ones loose cases. Keep your chin up. After all, he did rob that bank...even you couldn't change that.
From me:
Thank you for respecting the job I needed to accomplish in the courtroom to protect not only the rights of my accused client, but all our rights as free citizens. Your comment here was a surprise, but very welcomed, especially in light of how this case ultimately turned out. There is always a fine line between being honest with the jury, but permitting them only to hear what is necessary to assure a fair and impartial trial. I strive to deal with the jury honestly but to also protect my client. Thanks again for your comment.

As far as the DNA goes, I didn't know what the witness would say if I asked him whether my client had gotten into the car. It was a calculated risk not to ask it.

In any event, I appreciated your service to Brazos County and your courage in correctly applying the law to the facts of this difficult case.
There was a reason this comment meant so much to me. After the jury convicted my client they were discharged from the case since the judge was to assess punishment. When I went back to the courthouse on Friday afternoon for the hearing about six of the jurors were there to observe. I made eye contact with several of them. I could see they were a bit unsure how to react to me. Maybe they thought I was angry at them for convicting my client?

Despite their trepidation I approached each of them and thanked them for their service. I wanted each to know I wasn't angry and I respected their week of hard work. When the hearing was about to begin I noticed one more juror had arrived to watch. I made eye contact with her and I pressed her for a smile. Her eyes widened, her face brightened with a smile, and I knew she and I were OK.

Criminal defense lawyers must learn to love those who decide the fate of our clients. They are good people. They have good intentions. They want to be fair. And every once in a while? One of them pays you a compliment.

Monday, March 17, 2008

I'll briefly jump into the fracas concerning a new website called Robert Guest at the new Dallas Criminal Defense Lawyer Blog started the hoopla here. Gideon jumped in here. And Greenfield here.

Guest observed the website owners were sending out open record requests to Texas law enforcement agencies to fill-out their database on Texas cops. Interestingly, the TDCAA message board was abuzz with discussions about the website and the requests. Robert commented:
You know Open Records are important if the Government hates it. The State exists not to make your life better, but to advance the interests of the State. Prosecutors see no benefit to Open Records because it does not benefit them directly.
Gideon's comments were on the amusing side observing how law enforcement got their "collective panties in a wad" over the website, especially in this world of ever expanding sex offender registries, violent offender registries, and the like. Gideon opined:
Curiously, police agencies have no problem with Cops Writing Cops, which is a site for cops to trash other cops for not showing them “professional courtesy”.

So a website where cops can complain about, essentially, getting ticketed, arrested and charged for breaking the law is okay, but a website where the public they serve does that is unacceptable.

Finally, Greenfield observed, hey "But it's the Cops. And that changes everything."
Americans are scared to death of the cops, and will do anything to avoid angering them and making themselves a target. In their hearts, people fear the police. Great!
Forget we've got websites for judges and lawyers. But when the cops are involved we head for the collective hills, including internet tough guys like Godaddy and Rackspace. I, for one, hope RateMyCop makes a go-of-it. Transparency leads to honesty and I know my share of dishonest cops who could stand a little transparency in their professional lives. What's wrong with those wielding power living in glass-walled houses? With power comes responsibility and the best way to maintain responsible behavior is to reveal it - for good or for bad.

Travis Bryan, III Makes Brazos County History

History was made this morning as Travis Bryan, III was sworn in as judge of the 272nd Judicial District Court of Brazos County, Texas. Judge Bryan is the 4th judge to hold this post following Judge Brad Smith, Judge John Delaney, and Judge Rick Davis. Bryan was appointed by Governor Rick Perry to replace Judge Davis who recently resigned to run for Brazos County District Attorney. Bryan won the Republican primary in early March and was unopposed on the Democratic ticket. His early appointment to the bench made perfect sense since he'd be sworn in next January after the general election anyway.

The swearing-in ceremony lasted just shy of an hour. The courtroom was packed - standing room only. Leaders from the community were present. Members of Travis' family were all attending as well as judges from other jurisdictions who came to celebrate this wonderful moment with their long-time friend and colleague .

A moment like this comes once in a lifetime - if we're lucky. Our friends reflecting on relationships having lasted for decades. Supportive families, ultimately responsible for our life's successes, recognized as instrumental in all this new day would bring . . . Stories about experiences from both sides of the bar which inspire and spur our audience on to greater service themselves.

Travis' speech was simply inspiring. Dedication. Faith. Fairness. A new beginning. I was so excited for him. A singular moment he may never experience again. I was honored to be a part of this historic moment for Brazos County. Travis is my friend and brother in faith. I wish him well.

Friday, March 14, 2008

Myth Busters

Although Scott Greenfield and I don't see eye-to-eye on everything (or maybe very little :-)) - I do like him. Scott's not only a thought leader - he's a myth buster. Last week he posted here and offered comment on 5 myths related to defending drunk driving cases. Scott exploited myth #4 ("these cases can't be won") from this specific DWI piece to address the general nature of criminal defense work:
One critical myth, worthy of everyone's attention, is Myth 4, that these cases can't be won. This has become a general sense about all criminal cases, and is often the cause of defendants deciding that retaining counsel is a waste of money and that a plea of guilty or cooperation is their only hope. This belief has become pervasive, and is possibly the most damaging belief to the Constitution.

By the wholesale refusal to fight, and to challenge wrongful arrests or constitutional violations, we provide an incentive to government and law enforcement to ignore the Constitution and to further curtail our freedom. But we can't defend people who have decided that there is no way to win and no reason to retain counsel. We are here. We are ready. Now it's up to defendants to decide whether to fight or lay down and die.
I've talked with too many people accused of crime willing to give up without a fight and "take their medicine." Scott's right in that we cannot defend those folks who've decided there's no way to win and no reason to fight.

Qualified defense lawyers stand ready to take up arms in what may appear like no-win campaigns. Nevertheless, it's the responsibly of the accused to decide to fight. The accused has the power to choose and with that power comes responsibility. The responsibility to challenge bad stops, illegal confessions, and put the government to their burden of proof.

Our Constitution was written by those willing to fight and pay the price for freedom. Failing to avail ourselves of Constitutional protections is to accord it damage. "We are here. We are ready."

Thursday, March 13, 2008

On Crossing The Eyewitness

Gideon posts here about an excellent article published by the Widener University School of Law concerning cross-examination of eyewitness testimony. I've posted here, here, and here about the subject and problems with these often flawed IDs. Gideon points out the paper gives us a roadmap to argue the admissibility of expert testimony. I agree with Gideon the article is a must read for criminal defense lawyers.

Our Obsession

Writing for the Jewish Daily Forward this week, Alan Dershowitz made some excellent points here about the squandering of governmental resources to investigate and bring down New York Governor, Eliot Spitzer. Commenting on the government's use of arcane laws to pursue Spitzer , Dershowitz remarked:
Throughout our history, men in high places have engaged in low sexual activities. From Thomas Jefferson to Franklin Roosevelt to John Kennedy to Lyndon Johnson to Bill Clinton, great political figures have behaved like adolescent boys in private, while at the same time brilliantly and effectively leading our nation in public . . .

The back pages of a good number of glossy magazines and local newspapers openly advertise what everybody knows to be expensive call girl services. They’re advertised on television, in tourist brochures and on the Internet. Millions of people around the world use prostitutes and call girls. . .

The trade can be tawdry and sometimes exploitive, as when young girls are enslaved and prostituted against their will. But adult women who make the choice to sell their bodies for sex for $5,000 an hour are not victims, and if the trade is tawdry, it certainly doesn’t warrant 5,000 overheard phone calls, 6,000 intercepted emails and the use of surveillance and undercover agents — all of which could have been put to better use in seeking to prevent acts of terrorism or predation against innocent victims.
The point is well taken. We know intuitively that illicit sexual activity is "sinful" but when does it become "criminal" enough that we invest thousands of dollars to investigate? Alan suggested our Western democracy is simply obsessed with the private lives of public figures from Larry Craig to Rush Limbaugh. He suggested Spitzer would have paid the price at the polls and in his family life, rather than falling victim to vague criminal statutes used to prosecute him for federal crimes for which no one is prosecuted. The criminal law should be reserved for serious predatory misconduct.

This dovetails with Brian Cuban's comments yesterday about the laughable congressional investigations into the New England Patriot's taping scandal, Barry Bonds perjury trial, and Roger Clemens suspected steroid use. What a waste of time. I want my government spending its resources making my family safer. From a law enforcement resource point of view, I don't care about the illicit sexual activities of the rich and famous. It's nothing new. If some investigative reporter from the New York Times wanted to root-out the Spitzer story, more power to him. Knock yourself out. But don't waste my money doing it. Rather, find some terrorists. Clean-up the mess in Iraq. Build more oil refineries so I'm not paying $5.00/gallon at the pumps. Let Spitzer ruin his family and professional life. But don't use my money to help him do it.

Wednesday, March 12, 2008

Why Not Just Burn The Money

Brian Cuban reports:
It looks like former New England Patriot film guy turned government rat, Matt Walsh, may be ready to spill his guts to the federal government. Not quite the Valachi Papers or Donnie Brasco, but another sports scandal distraction for us all to roll our eyes at and watch the government cash registers “chi-ching” away at all the wasted tax dollars.
I'm with Brian. I tire of the mileage D.C. politicians attempt to mine off these investigations. I like his theory the prosecutors and elected officials are getting “per subpoena” bonuses for all the time and money they are wasting to get their sorry mugs into the most recent news cycle. If I may quote Brian one more time to echo his thoughts:
If I read one thing about a congressional investigation or grand jury subpoenas with regard to the New England Patriots taping scandal I’m going to puke . . . Every time I pick up the papers some grand jury or Senate Committee is being convened to spend millions of dollars in taxpayer money on issues that are absolutely trivial in the grand scheme of issues that affect our lives….

Ditto . . .

Supermax Lawsuit

Law students at my alma mater, the University of Denver College of Law, are hard at work representing an inmate who's been held in solitary confinement for more than 24 years. A federal lawsuit filed against the United States government alleges the incarceration of inmate Tommy Silverstein amounts to unconstitutional cruel and unusual punishment. Silverstein has been in prison since 1975 and in solitary confinement since 1983.

Silverstein is held in isolation at "Supermax," the U.S. government's maximum security facility in Florence, Colorado. Affectionately known as the Alcatraz of the Rockies, most individuals at Supermax are kept for at least 23 hours each day in isolation. They are housed in a 7 x 12 ft room built behind a steel door and grate. The remaining free hour is spent exercising alone in a separate concrete chamber. Prisoners rarely see each other, and the inmates' only direct human interaction is with correctional officers. Visitation from outside the prison is conducted through glass with each prisoner in a separate chamber. Church services are broadcast from a small chapel.

The suit alleges the government's "deliberate indifference has resulted in Silverstein suffering deprivations that cause mental harm going beyond the boundaries of what most human beings can psychologically tolerate. " (For a taste of Silverstein's writings go here.) The suit is prosecuted by law students Steven Baum and Amber Trzinski who are practicing under an order permitting student lawyers to appear in federal court with prior approval. During my years at DU I don't remember law clinic students involved in such an ambitious project.

Although I understand the need for maximum security facilities to house dangerous inmates, I also recognize the importance of the federal judiciary examining the practical, long-term impact of the government's policy of keeping fellow human beings totally isolated from social interaction with other people. I wish Steven and Amber luck in this endeavor and pray they get some mileage from their efforts.

Sunday, March 9, 2008

To Dare Greatly

From a generous and caring reader offered to lift my spirits:

"It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat."

"Citizenship in a Republic,"
Speech at the Sorbonne, Paris, April 23, 1910

Thank you, again.


Saturday, March 8, 2008

Election Postmortem

Because of my busy trial schedule last week I was unable to comment on the Brazos County election results. The race most important to my criminal defense clients was for County Attorney. The County Attorney prosecutes misdemeanor crimes like DWI, marijuana possession, and family violence. Rod Anderson faced Shane Phelps in the Republican primary which finally settled the issue since no Democrat was running for the post. Anderson handedly took the race. The Bryan Eagle reported:
Anderson earned 7,843 votes -- or 65 percent of the vote -- to Phelps' 4,237 votes in Tuesday's Republican primary. The votes cast Tuesday represent record local numbers. In the 2004 presidential primary, 8,648 Brazos County voters cast Republican ballots.
Anderson was predictably pleased with these results. Commenting for the Eagle, however, Phelps said:
"I'm surprised," he said shortly after 10 p.m., when results were final. "I have no idea why it turned out this way. I'm at a loss to understand it."
The courthouse was abuzz over these results. Many expected a much closer race. However, in retrospect I can offer some thoughts that might explain the thrashing Shane received at the polls. First, understand I know and respect both of these men. Rod Anderson is a respected, long-time member of the community. His wife was a police officer for many years working for the City of Bryan. Shane Phelps is a remarkably talented trial lawyer. He is smart, polished, and always well prepared.

However, I think the election results showed how small towns tend to protect and trust their own. Anderson paid his dues in this community. The folks recognize him as one of their own. Phelps, on the other hand, is still seen as an outsider. Maybe even somewhat opportunistic since he has lived in several communities over the past 10-15 years and has run for office, and lost, in several of them.

Shane could be a contender someday. But I think it will take much more time. If he wants the citizens of Brazos County to trust him enough, he's got to become one of the community's own. And that takes time, a lot of time.

Friday, March 7, 2008

Adrenalin Drip Off

This week my client knew if he was convicted of aggravated robbery the sentence he'd receive would be meted out in letters rather than numbers. For those criminal defense lawyers out there you know what I mean. My client had been to the pen before on two different trips. His first trip down was on 3 felonies, two of which were aggravated robbery. His second trip was on 4 felonies, three of which were aggravated robbery. So the handwriting was on the wall if his jury trial gamble did not pay off.

At 4:00 pm today the trial judge sentenced my client to life imprisonment following the jury's 90 minute unanimous guilty verdict. Some may wonder how my client reacted? I can tell you he left the courtroom with a smile on his face. I can tell you he was pleased with the fight we gave the government and his buddies who snitched him out. This was his first jury trial and I asked him whether it was worth it. He said he regretted nothing. He was happy to lay his case on the line.

Like I said earlier this week - if my client is happy, then I'm happy. There were some issues worth fighting for on appeal and I encouraged him to keep his spirits up. Another lawyer will handle the post-conviction matters so my story on this case ends here. I'm tired after the adrenalin drip turned off about 5:00 this afternoon. I'll enjoy a nice rest this weekend.

A post script. Criminal defense practice is not always about handling hardship. While I was looking through my "in-basket" before leaving the office today I found an order granting a motion to suppress I had litigated about two weeks ago. The police had stopped my client for not having a front license plate on his vehicle. He did have a license plate on the dashboard, however. I wrote here about bad traffic stops under these precise circumstances. The result? The State has no case - we win.

Thanks for following the trial this week. I'll be back to boring discussions about this issue and that next week. However, I will endeavor to educate and entertain as best I can.

Thursday, March 6, 2008

Cross-Examination Hammerfest

At the end of every bicycle race the hammer goes down. It might be in the last 2000 meters or the last 500. But when it happens everyone hits the gas. You're riding so hard and it hurts so much, it feels like your eyes might pop out of their sockets. However, when you're fit and prepared for the hard jump the pain actually feels good - in a masochistic sort of way.

That's what it was like cross-examining Mr. Big today. It hurt, but it felt good, too. Mr. Big was the principle accomplice who testified for the State during the bank robbery trial I've covered this week. In preparation for his cross I poured over written statements, video-taped interviews, police reports, and everything else I could get my hands on. The main objective was to discredit the witness and develop evidence consistent with our defensive theory. We accomplished both objectives.

This snitch was a liar and it came through. His prior inconsistent statements were legion. He'd cut more deals with Federal and State prosecutors than you could imagine. We were even able to develop a powerful financial motive for him to lie as he admitted my client "ripped-him-off" for $50,000.00 three months before he implicated him in the robbery.

Evidence critical to our defensive theory was established through this witness, as well. Regretfully, I can't share it with you lest the prosecutors are reading this post. Suffice it to say I'll be arguing these facts with great vigor tomorrow in closing arguments.

I appreciate those who are following the trial by reading the blog posts and making comments. Please don't worry about me winning or losing this case. The client is happy with our effort. And if he's happy, then I'm happy - regardless of the outcome.

Snitches Galore

Another accomplice testified yesterday afternoon. I liked him even though he was lying like hell. At the time of his arrest he never implicated my client in the robbery. It wasn't until 18 months later that he told any authorities my client was involved. Only then after the DA and FBI threatened him with 50 years in the pen. Clearly, the accomplice's deal to protect himself hinged on his testimony against my client. No testimony - no deal. Luckily, we had a letter written by the accomplice expressing his fears of losing out on this sweet plea unless he testified.

Also during yesterday's testimony the government admitted cellular phone records they claimed tied my client to the crime scene. No way. Although the records showed a phone allegedly subscribed to by my client was used during the bank robbery, no evidence showed my client was EVER in possession of it. In fact, the accomplice testified my client had 2 cell phones which he allowed his friends to borrow. The prosecutors spent about 2.0 hours of the jury's time showing them they had no idea whether my client was within a mile of the phone during the robbery.

Today I expect Mr. Big to testify for the State. He's an important accomplice witness and can help my defense. Sorry I can't say more lest my adversaries are reading this post.

Wednesday, March 5, 2008

The Great Thing About DNA

The great thing about DNA evidence? The government can't prove when a sample of biological material was deposited. We fought this battle this morning with the government's DNA expert in the bank robbery trial I've been posting about this week.

DNA evidence can be very damaging since it often (but not always) shows a particular person was present at a particular location, or otherwise tied to part of the crime scene. However, if prosecutors can't limit the depositing of a sample to a relevant time, then we've got a crack-in-the-armor to work with. I will have the chance to exploit this precise weakness during closing arguments.

Otherwise, the trial is going as expected. The challenge in defending is knowing when to interject my energy into the State's presentation of evidence. Often the State's case creates much "negative" vibes toward the accused. It's important for the defense lawyer to break-up this energy with attacks of his own. Wish me continued luck for the remainder of the day.

Tuesday, March 4, 2008

Accomplice Witness Testimony

The State offered the testimony of the bank robbery victim, security officer, and one of the accomplice witnesses this morning. An important aspect of Texas law is the requirement that any accomplice witness testimony be corroborated by an outside source. That is, in Texas the accused cannot be convicted by accomplice witness testimony alone. Other evidence must exist, independent of the accomplice, that tends to connect the accused to the crime. Multiple accomplices cannot corroborate eachother.

I expect all three accomplices to testify in the trial and accuse my client of being an actor in the robbery. The weakness in the State's case will be other evidence tending to connect my client to the crime. Yesterday in jury selection the jurors committed to the notion that they determine what evidence sufficiently corroborates the snitch testimony. They understand they're not bound by the prosecutor's theory.

Anyway, trials are always tough. This is another long day in the saddle.

Opening Statement and First Day

Opening statements and the State's case are beginning in about 30 minutes. I want to give an opening statement whenever possible and today is one of those days. My opening will be short but hopefully surgically effective to keep the juror's minds open during the prosecution case. Many times my goal in opening is simply to get back to even after the prosecution dumps their evidence expectations into the jury's lap. If I can give the jury a reason to keep an open mind during the government's case, then I've been successful.

Monday, March 3, 2008

Jury Selection Complete

Another jury selected (or deselected, if you will) and empaneled. I recall a few months back Scott Greenfield posted about the "voodoo" nature of jury selection and I engaged him in spirited discussion. Scott opined that, any way you slice it, jury selection was a crap-shoot and guess work, at best. I disagreed with Scott suggesting it's possible to familiarized yourself enough with the jurors to help make intelligible peremptory strikes, especially with jurors on either extreme. The focus then becomes the jurors in the middle and what to do with them, strike or keep 'em.

After the strikes were made and the final list of twelve was being compiled I wondered why the State struck certain jurors and I struck others. Sure there was the occasional double strike. But obviously both sides of this dispute identified different jurors that we liked and didn't like. Jurors I liked often got struck by the State. I'm sure the reciprocal was true, as well. So anecdotally, it didn't seem jury selection was necessarily the crap-shoot we make it out to be.

Anyway, those are my thoughts for the day. Beyond this, one might ask if I've got a good jury? Well, I can only answer that after the verdict comes in. It's like my final argument - it was only a good one if it worked.

Finally, I appreciated an off-line note from Mark Bennett who suggested we not name our clients in our posts, lest their names become indelibly linked with some heinous allegation which we later beat. I agreed with that advice and edited my previous post, for all the good it will do. But the point was well taken.

Let The Games Begin

I'm sitting at counsel's table getting my projector and Keynote presentation ready for jury selection starting in just a few minutes. I'm defending a case where my client is charged with the aggravated robbery of State Bank employees during Easter weekend, 2006. I expect the trial to last the week.

Jury selection should take most of today. I'll check in later in and let you know how I like, or don't like the special twelve chosen to decide this case.