Our Closed-Source Accuser

We will never look our closed-source accuser in the eye. The jury will never eyeball our closed-source accuser to determine its credibility. We will never ask our closed-source accuser a single question as it heaps incriminating evidence upon us while we fight to maintain our freedom. In fact, we may not even realize we are facing a closed-source accuser at all.

Why is this important for the criminal defense lawyer? Closed-source software (source code) is used to convict our clients, but it may contain bugs or programing errors. Sadly, most criminal defense attorneys have no idea what source code is in the first place. Eaves dropping equipment, wire tapping, radar guns, tasers, breath testing machines, and everything else electronic runs on software. How can you rely on the accuracy of such equipment without looking at the instructions that drive the hardware?

Closed-source software is generally considered proprietary and a trade secret of the company that created it. Closed source software (e.g. Microsoft Windows and Office) is developed by a single person or company. Only the final product run on your computer is made available, while the source code for making the software is kept a secret. Open-source software (e.g. Linux and Open Office), on the other hand, is available by all to read. The software code for those projects is scrutinized by more people than even the biggest software company can hire. Software flaws are more easily discovered and repaired. Most open-source projects allow anyone to contribute and problems are normally resolved quickly and cleanly.

Look here for discussion of source-code issues in DWI cases. Look here for the 2005 Florida case where the makers of the Intoxilizer 5000 were ordered to turn over their closed-source code to defense lawyers.

A fascinating article by Curtis Poe discussed this closed-source software dilemma. Poe talked about a Minnesota man who won the right to examine the closed-source code of the breathtest machine used to accuse him. He demanded to see the source code in order to make sure the machine worked as advertised. Poe commented: "Closed-source software is allowed to take the witness stand and accuse you of crimes and you’re not allowed to cross-examine it." He stated further:

This is why I firmly believe that any software with substantial risk to harm your life or liberty must be open source. I’m not saying that it should be free or that manufacturers should not be allowed protections, but the protection of the people must come first. Certainly we could come up with schemes for various systems which might purport to thoroughly test them without opening up the code, but there are too many systems and too many parameters for us to do this safely on a case-by-case basis.

We may never see open-source software running the devices used to accuse our clients. But criminal defense lawyers must go after the closed-source software that is. When confronted with any type of technical device used to prosecute our clients, everything from breath testing machines to traffic speed cameras, we should be demanding the code for inspection.

The Persuasive Case - Evaluate & Narrow

It's the job of the Brazos County criminal defense lawyer to select the one best case for the client from all the possible cases. Far too often a jumble of facts is presented by the lawyer, leaving it to the jury to find a case if one even exists. This method loses the emphasis of having a strong integrated case which is communicated powerfully to the jury.

After the accumulation of facts and ideas, but before the story is finalized, the defense lawyer's emphasis shifts to rigorous evaluation, analysis, and narrowing of the case to the most plausible and powerful. Facts may be subject to various interpretations or may be contested. Analysis is necessary. The prosecutor's case must also be analyzed to determine which issues are agreed upon and which issues are in controversy. The result is a list of crucial contested issues which must be the focus of the persuasive case.

Theories, facts, interpretations, and arguments must be rigorously analyzed to determine validity and strength. Theories must account for all the facts which the jury will believe or the theory won't be viable. Weak theories, interpretations, and arguments should be discarded. Out of the remaining material alternatives should be compared and a selection made of the most plausible and powerful for the persuasive case. These must then be integrated around a single theory of the case in a way that appeals to the values of the jury.

Unforseen Consequences of Conviction (II)

We started this series on collateral consequences of a criminal conviction here. Many problems the convicted person faces are the result of these collateral consequences. A collateral consequence is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law to the person convicted of a crime. Following is the next installment on the non-comprehensive overview of collateral consequences applicable to persons convicted of a crime for which the criminal defense lawyer should be aware.

One of my readers, Hunter Biederman, (Frisco DWI Lawyer and Attorney Blog) pointed out a federal drug-related conviction can make a person ineligible for federal grants and loans for educational purposes. Some more consequences of a drug-related conviction are ineligibility for federal work-study and Upward Bound from the Department of Education. Those convicted of a drug-related felony are ineligible for any grant, contract, loan, professional license, or commercial license provided by an agency of the United States through the Denial of Federal Benefits Program. Those convicted of a drug-related felony are excluded from Medicare.

A drug offender may be ineligible for rural housing loans, conservation programs, and food stamps from the Department of Agriculture. An offender may be ineligible for grants and contracts from the Department of Defense. An offender may be ineligible for loans from the Small Business Administration. An offender may be ineligible for disaster assistance from the Federal Emergency Management Agency.

In Texas, a person convicted of a felony may be refused a liquor or alcohol permit for three years after release from confinement, supervision, or parole. A person convicted for a felony while holding an original or renewal permit is subject to cancellation or suspension of the permit.

A prepaid higher education tuition scholarship terminates if the student to whom the scholarship is awarded is convicted of a felony or Class A misdemeanor.

A person or business entity that enters into a contract with a school district must give advance notice to the district if the person or an owner or operator of the business entity has been convicted of a felony. It is an affirmative defense to a civil action for damages for personal injury that the plaintiff, at the time the cause of action arose, was committing a felony for which the plaintiff has been convicted and which was the cause of the damages suffered.

More on unforeseen consequences to come.

The Seeds We Sow

This past weekend I visited my home in central Pennsylvania and spent the whole day Saturday walking the streets and alleys of my childhood. Down Jones Street to Hickory and then over to the Junior High. Up to Curly's snack bar for a Coke. (Curly's still looked the same after 30 years). Down the double dips. Over to the Senior High through the Ho Chi Minh trail. Most of the trees of my childhood were gone. Replaced by ones with unfamiliar shapes and sizes casting unfamiliar shadows or blocking views I had enjoyed as a kid.

I was lucky to see friends this weekend - some I hadn't seen for 30 years. We talked about the struggles of life. Raising children. Making ends meet. We talked of the consequences from decisions we'd made so many years ago. I shook the hand of my good friend from high school, quite the basketball player then, but a farmer since. His hands were remarkably thick with muscle and callous from years working hard in the fields picking corn and strawberries.

On the plane home I finally understood I was harvesting the seeds I'd sown 30 years ago. I was among the privileged few. My life as a lawyer, particularly as a criminal defense lawyer, had been good to me. What other job I thought, besides soldiering, could I be called upon to exhibit courage and fight for the things I believed were right. What other job could I have that offered so much potential to affect the lives of individual people in profound and long lasting ways.

I saw my friends, and some family, still struggling to find meaning and satisfaction in their work. I saw them harvesting the seed they had sown - some for good and some for bad. The seed I'd sown had born much fruit in my life and the lives of people around me. My time back home gave me a perspective on this truth that I'd lost.

We lawyers complain about unfair judges, cheating prosecutors, ridiculous laws, and clients that mistreat us. We complain about other lawyers who get the business we think we deserve. We may secretly wish our colleagues will fail, thinking some how that will make us look better and get us a greater share of what we see as limited resources.

But we lawyers have it pretty good. We are among the privileged few who work in a field where we can make a difference in the lives of individuals. We may not change the world, but we can help change lives one person at a time. We must believe we can, however. Forget about the problems and concentrate on the people who look to us for help. Believe in them, care for them, and we can make a difference for them.

Gosh, it was a good visit home. I'm glad I've got my perspective back.

The Persuasive Case - The Story

It is the persuasive case that wins decisions from the jury. Since the jury decides whether the case is persuasive, it must be built from their point of view. The law furnishes the framework within which persuasion must take place including the charge elements, defenses, and evidence foundations. But the legal case must be distinguished from the persuasive case since jurors do not think like lawyers. For the most part they don't engage in legal analysis because it is meaningless to them. They are people oriented, rather than law oriented. They use their feelings and emotions to make decisions more often than logic. Consequently, the College Station criminal defense lawyer must build the persuasive case upon the basis of the jury's belief system. Every case, every action the defense lawyer takes must be evaluated from the juror's point of view.

The story is the device which best allows the jury to comprehend and retain the case. It is the memory device for organizing, understanding, and retaining facts and ideas. The story is also used by the jury to determine whether they will accept the case as plausible. The jury determines how plausible the case is by placing the story next to their own ideas about how the world works. Then they accept as plausible that which corresponds to their own ideas.

To be plausible the story should have several characteristics in addition to being consistent with the juror's experience. First the story should be organized around one theory of the case or interpretation of the facts. The story should be consistent within itself and with other facts which the jury will believe. The story should have completeness and context, as well.

The story must also be painted with imagery so the jury can visualize the event. This way the event becomes real to them. Additionally, the story should appeal to principles and values important to the jury. Values such as right over wrong, justice over injustice, truth over untruth should form the basis of the story. The story must also appeal to common sense and be such that the ending is fair and just only if a favorable verdict is awarded.

Unforeseen Consequences of Conviction

Criminal defense lawyer Shawn Matlock started a series on the collateral consequences of being convicted of a crime. Others have been writing recently in other venues about this very important client issue. USA Today wrote about collateral consequences here. The Sentencing Law and Policy Blog wrote about it here. Others wrote here.

I had ideas to share with my readers about the unforeseen consequences of Texas state convictions. Many problems the convicted person faces are the result of collateral consequences. A collateral consequence is a sanction that is not imposed expressly as part of the sentencing process. Rather, it is imposed by legislative action which creates penalties applicable by the operation of law to the person convicted of a crime.

I wrote about the consequences of conviction for the non-citizen here. Over the next few weeks I'll provide a non-comprehensive overview of some collateral consequences applicable to others convicted of a crime in Texas.

A person's voting rights are affected by a felony conviction. However, those rights can be restored if a judge chooses to exercise judicial clemency, based upon the successful completion of felony probation. Similarly, a person convicted of a felony cannot serve on a jury or grand jury. However, like the right to vote, if a judge chooses to exercise judicial clemency a felony conviction can be wiped away and the person's eligibility to serve on a jury can be restored.

A person convicted of a felony cannot hold public elective office. A person convicted of a felony may not legally possess a firearm for five years after release from confinement, supervision, or parole. A person convicted of a misdemeanor family violence offense may not legally possess a firearm for five years after release from confinement, supervision, or parole.

For DWI convictions a collateral consequence of conviction is a driver's license surcharge paid annually for three years. The more times one has been convicted of DWI the higher the surcharge.

Convictions that result in a Texas driver's license suspension include: certain alcoholic beverage code violations; a breath/blood test failure in a DWI case; a breath/blood test refusal in a DWI case; criminal mischief; criminally negligent homicide; driver's license fraud; DUI for minors; driving with a suspended license; evading arrest; failure to stop and render aid; drug cases; racing on a highway; tampering with a governmental record; habitual traffic violations; and many others.

A person convicted of a felony is potentially banned from the following employment opportunities: labor union officer or organizer; pesticide applicator; court interpreter; meat and poultry inspector; auctioneer; athletic trainer; insurance agent or adjuster; interior designer; acupuncturist; midwife; mortgage broker; speech/language pathologist; hearing aid fitter or distributor; physical therapist; dental hygienist; marriage or family counselor; monitor or aid on school bus; registered nurse; chiropractor; physician's assistant; psychologist; private security detection device sales person; bingo worker, supply manufacture or distributor; coin-operated machine business licensee; and many others.

The criminal defense lawyer should be asking all their clients with pending charges the following questions: (1) Are you an alien or a United States citizen? (2) Do you have any prior convictions? and (3) Do you have any government licenses, permits, employment, or benefits? The answer to these questions will arm the defense lawyer with information necessary to understand and explore most of the collateral consequences their clients will face.

Next time we'll talk about sex offender registration, estate executors, conservatorships, and holders of professional licenses.

The Persuasive Case - Brainstorming for Ideas

After obtaining the facts, the criminal defense lawyer must brainstorm for the ideas which will organize the facts into a coherent, unified combination of facts and ideas necessary for the persuasive case. The ideas may be possible theories of the case, interpretations, inferences, possible arguments, possible language to use, possible rebuttal to the opposing case, impeachment ideas, and any other ideas that will unite the case into the most plausible explanation (or story) for the jury.

Unfortunately, the emphasis on legal analysis often prevents creative thinking by the criminal defense lawyer. Brainstorming is a form of creative thinking with two very important requirements. First, the goal of creative thinking is to develop as many hypotheses, theories, interpretations, inferences, explanations, and other ideas as possible to how the litigated event occurred. That is, the defense lawyer works to develop the maximum number of ideas. Second, the evaluation of these ideas must be done, but must be postponed or the lawyer's evaluation will hinder the free thinking necessary for maximizing the number of ideas.

Creative thinking, or brainstorming, must be approached with determination to find every useful idea. The lawyer must also remain optimistic and believe this process will indeed produce useful ideas. The depth produced by brainstorming will more likely result in truth by unearthing many ideas which are at first not apparent to the defense lawyer. As ideas are collected, the new ideas generate thoughts of other new ideas and the thinking of the lawyer becomes deeper and closer to the truth. The important idea here is to creatively and actively think about the case.

Next in this series on building the persuasive case is organizing the facts and ideas into a story that appeals to the belief system of the jury.