Reciprocity

Reed and Bennett talk about juror secrets here and here. Anne presented the problem - the jurors have secrets and we need to know them. Mark presented the answer - we must first reveal our secret before the jurors will reveal theirs. Mark was describing reciprocity. In other words, a person responds to what is given to them. Sad for sad. Fear for fear. Slow for slow. Secret for secret.

Reciprocity is a powerful tool for the criminal defense lawyer which helps us connect with other human beings. The power in revealing ourselves to another is the affect it has upon the listener. During jury selection, when the trial lawyer reveals herself to a potential juror, she is connecting with another human being while developing rapport and trust. When a juror trusts us they will reveal things to us, even in a crowded room where other people are listening.

When there is no trust between lawyer and juror there is a psychological barrier separating the two. It is us versus them. We break down the barrier when we expose our own vulnerability. Once the juror realizes were are really one of them, they are better equipped to reveal their own vulnerability, i.e., their secrets.

Good Expunction News

On September 1, 2007 HB 1303 amended the Texas Government Code giving Texas expunction and non-disclosure laws more teeth. The amendments attempt to solve the problem when private companies continued to maintain criminal record information and disseminate it even though it was ordered destroyed, or sealed by an order of expunction or non-disclosure. These important amendments prohibit the Texas Department of Public Safety (DPS) from selling criminal records to companies who fail to honor expunction and non-disclosure orders. They also create a duty for companies to update criminal history information to reflect orders of expunction and non-disclosure.

New section 411.0835 of the Government Code directs DPS not to release any new criminal history information to a company, for a year, if the company purchases criminal history record information from DPS but continues to disseminate it after the information was expunged or ordered non-disclosed. This will supposedly hit the company in the pocketbook by making their records obsolete for at least one year.

New section 411.0851 creates a duty for a company who disseminates criminal history information for a fee. The company must destroy and not disseminate information in their possession after they've received notice an order of expunction, or non-disclosure, has issued for that information. The section also allows for money damages and attorney's fees if the company is held liable for disseminating information in violation of this law.

These amendments are good news for persons taking advantage of the Texas expunction and non-disclosure laws. Hopefully, they will make folks more secure knowing that private companies have an economic incentive to make sure their records are accurate.

The Fee Agreement

Mark Bennett writes about the criminal defense lawyer's contract here. Mark correctly states that any criminal defense lawyer handling retained cases should develop a good contract, or fee agreement. I disagree with Mark on one point, however. I think the prudent defense lawyer should execute a written fee agreement in every case in which she receives a fee. It's just good, sound business practice.

I love open-source code of any sort (see previous post) and Mark offers an "open-source" contract for our review here. Several of the terms I find indispensable are:

1. The contract distinguishes between the lawyer's fees and out-of-pocket expenses. It is important for the client to know they will be responsible for all out-of-pocket expenses incurred in the defense of their case;

2. It limits the representation to one trial. Years ago I did not require an additional fee for any "retrial" of the case and had to try a case again for free. Not good for either the lawyer or the client, by the way;

3. The contract excludes representation for an appeal. Again, a good idea to require a separate fee agreement for any work beyond that at the trial level;

4. The contract is for a fixed, or flat fee. Mark and I both like fixed fees in criminal cases. It gives the client a sense of security knowing what the representation will cost up front. It also saves the lawyer from the drudgery of keeping track of every "tenth" of an hour spent on the case;

5. It informs the client that non-payment of agreed-upon fees permits the lawyer to withdraw from the case. This helps communicate the importance that clients honor their financial obligations to their lawyer; and

6. It states the lawyer has not, nor can he, guarantee any specific result in the case.

A couple of suggestions for improving the open-source fee agreement are as follows:

1. Legal representation does not begin until the agree-upon "contract fee" is paid. That may be implicit in Mark's open-source code, but I like making it very clear; and

2. The client is obligated to advise the lawyer of any address change, or change in telephone number. This sounds like nit picking, but believe me it comes in handy when the client refuses to cooperate and properly communicate with the lawyer.

A Trial Lawyer's Love-Hate Relationship

In Mark Bennett's recent post, Trial Mode Off, he was describing his love-hate relationship with the work of a criminal trial lawyer. Mark and I are totally simpatico on this. Mark writes:

We prepare and prepare and find ourselves ready or at least ready to announce ready, our loins girt, our witnesses subpoenaed, our files organized, only to be told to come back again in a month or two or three. Sometimes it's a blessing -- there is often one last little thing left undone on the eve of trial, and the delay allows us to do that last little thing and discover another last little thing left undone on the next eve of trial.

I'm always amazed at the number of things we think of during trial preparation to shore-up our theories, evidence, and arguments. Like Mark says, sometimes it is a blessing to get "reset" so we can follow-up on some of the things left undone. Mark says further:

Trial preparation is work. It's not digging ditches, but it requires a lot of energy to do right. In addition to planning strategies for jury selection, opening statement, cross-examination, direct examination, and closing arguments I dream up trial motions, research trial briefs, and write proposed jury instructions. At the same time I'm marshaling my witnesses, gathering my equipment, and rescheduling the hundred other things that might otherwise threaten to intrude when I'm in trial.

It seems the trial lawyer's creativity mode goes into overdrive during trial preparation. On many cases I maintain an "idea book" that includes space for a "to-do" list, jury selection ideas, opening statement, direct and cross-examination ideas, theories, legal research, jury instructions, rebuttal, closing, etc. I find the idea book is a great way to keep things organized. Mark continues:

I'm also preparing myself physiologically. My body shifts into survival mode. A steady trickle of adrenaline drips into my bloodstream. I don't need as much sleep. I might wake up at four in the morning with an idea and write it down. Then I might slip back into sleep, or just spend the rest of the morning thinking about the case.

I don't eat right, sleep right, or act right when I'm winding up for trial. Please understand I enjoy eating, sleeping, and acting right. But the adrenaline drip is like a itch you just can't scratch.

The people who live with me see me slipping into trial mode and, since they've been through it before, prepare themselves for the trial.

My people simply get out of my way. I don't like that either. My kids are not quite old enough to understand it. My wonderful wife simple endures it. Since Mark's wife is also a lawyer, hopefully she understands it somewhat better. He says further:

When I'm in trial, losing is not an option. It's too late to red-team the case; what I call (and Scoplaw calls) "trial psychosis) takes over; I put on what Gideon calls trial blinders. In my mind I have a response to every prosecutorial argument and objection. My advocacy couldn't possibly fail to raise a reasonable doubt in the mind of any juror with a brain. I'm Clarence Darrow, Earl Rogers, and Alan Shore rolled into one. The things left undone are unimportant; I have everything I need to win. I'm tuned in to every nuance of every word everybody says. I'm a mind-reader. The courtroom belongs to me, and I'm the best lawyer in it. I'm feeling sorry for the prosecutor who has to face me. I'm a superhero.

I am totally there. I can't figure out why everyone in the courtroom doesn't see things my way. The courtroom does belong to me and I am the best lawyer in it. Like Mark, when I walk in I have everything I need to win. Last week, though, Mark had to turn off the switch:

Click. The adrenaline drip is disconnected. The hundred things rescheduled can now be dealt with. The witnesses will have to be marshaled again later. My family has me back. And I have to shift back from trial mode to ordinary-life mode. This afternoon I took a three-hour nap. I feel like an ordinary human being again. Almost.

Trial mode is hard. I don't really like it. I like being an ordinary human being. But after it's over I look forward to doing it again. Crazy! That is the love-hate relationship defense lawyers have with trial work. Thanks for the post, Mark.

What Are Pictures Worth?

Anne Reed, at Deliberations, wrote about pictures and their affect upon perceived credibility. She commented about a recent study:

"The mere presence of a picture of a brain, in an article about cognitive processes, makes us more likely to believe what we're reading -- even though most of us have no ability to understand the picture."

Her article was fascinating. The study showed a technical article about the brain, that included photographs, was perceived to be more credible and better written. She made this recommendation to lawyers:

"At one level, the message for lawyers here is clear: use pictures, and not just any pictures. Pictures may be most powerful when they represent what you're talking about as directly and concretely as possible."

I'd been toying with this same idea for some time. At a recent legal seminar a speaker showed us how he started using pictures during jury selection to help train the jury to understand legal concepts and others issues involved in his case. During my last jury trial I experimented with the photograph above, depicting a mentally ill patient, to help get the jury thinking the way I was thinking. It got them talking, at least.

This is such an interesting topic, I hope we hear more about it.

Texas Prison Conditions

Scott Henson at Grits for Breakfast stuck in his thumb and pulled out a plumb in my own backyard (Bryan/College Station) with this gem from the Texas A&M Battalion. Student journalist, Travis Holland, wrote this piece about the "cushy" conditions in Texas State prisons. In 23 comments to date, the informed public have ripped into Travis with a vengeance. Some of the comments so far:

Hate to tell you this is BS! I worked for TDCJ for many years, NO A/C and the there is 1 TV for 400 inmates (that the guards watch most of the time);

I'm sorry, but for every case of the Texas Prison System being too lax, there are PLENTY of cases where the system is being far too strict, bordering on (if not certainly) torturing prisoners - and this is NOT just in private prisons in the state, but in state ran ones;

I hate to tell you this but, your facts are completely incorrect. What about the innocent people in prison do they deserve the hell they live day in and day out. Until you have someone in the dept. of corrections you have no idea what things are like in there. You make a generalization that all inmates are terrible and all guards are saints. That is simply not the case;

I cannot believe the immaturity of this article and how factless it is. Until you have lived the torture of a loved one trapped in the Texas department of corrections you have no right to make the conclusions you have made;

What most Americans think is that they are too righteous and good to ever be caught up in the penal system. Surprise, on any given day in an unanticipated moment of anger, desperation, or perhaps even by accident any one of us may be facing a future behind bars. I am a former Texas sheriff and have long thought and stated that from 12-15% of inmates in Texas, and probably across the nation, are incarcerated for something they did not do.

I don't know if these folks are registered to vote or have Texas driver's licenses, but I sure hope they start showing up for jury duty in Brazos County. We just might start getting some justice around here.

Courtroom Technology

Utilizing computer technology in the courtroom has been a hot topic for several years. However, the difficult part is taking your first plunge. During last week's criminal trial in Brazos County I experimented with several computer technologies that helped me communicate information and ideas to the jury. Using a laptop computer (MacBook Pro), scanner (HP), and projector (Dell), I accomplished some interesting (and eye pleasing) things during trial.

Before trial I scanned in all the documents I anticipated admitting into evidence. I also took the crime scene photographs on CD, provide through discovery, and downloaded them on to my laptop using iPhoto (Apple's bundled image viewer). In iPhoto I could manipulate and massage the images to my liking. However, I also needed a program to project individual images through my projector and onto the wall or projector screen. This type of program is referred to as an image (or photo) presenter. Not all image viewers, like iPhoto, include a presenter. The presenter was important since I wanted to view all my images on my courtroom laptop as thumbnails, but also view any individual image through the projector so I could easily work with it during direct or cross examination. For my Mac I chose "Photo Presenter." This program was very simple and helped me sift through all my scanned documents and photographs and project them onto the wall anytime, seamlessly.

The next program I used was Apple's Keynote. Keynote is like Microsoft's PowerPoint. These presentation programs are great for creating slides for voir dire, opening statement, or closing argument. You can easily import photographs or documents from anywhere on your computer and use them to aid in your trial presentation. During jury selection I created about 4 slides to help illustrate a few points to the jury. During closing arguments I took documents I had scanned, and later admitted into evidence, and created slides to highlight certain parts of the documents. I was able to underline sentences, paragraphs, and individual words to compliment my argument and help the jury quickly see what I wanted them to see.

The trick to becoming comfortable with the technology was getting over to the courthouse the day before trial and setting everything up for a test run. I made sure the extension cords were long enough, that the electrical sockets worked, and that the jury could see my projections from anywhere they might be in courtroom. It worked great! The added benefit was the wireless network at the courthouse which allowed me to stay in contact with my office assistant using email. I could solve office problems and give guidance while busy all day in trial. Since I always eat my lunch in the courtroom during trial to prepare for the afternoon session, I also relaxed while listening to the music of my choice through my computer's media player.

I was very pleased with my first run using sophisticated computer technology during trial. There were a couple bugs I need to work out, but I am looking forward to the next time I can use my laptop and projector to assist me in the courtroom.