What Are My Rights?

As I was enjoying a DVD movie last night with my family I received a call from the First Assistant District Attorney in Brazos County. He called me out of courtesy about the arrest of one of my current clients. He explained my client has just been arrested and had invoked his right to silence when the police attempted to interrogate him. I immediately got into my car and went to the county jail to give my client further instructions. Among other things, I commended him for invoking his right to remain silent.

We all understand the need for good law enforcement. However, we also must understand our own rights and responsibilities, especially when we interact with the police. If you are stopped by the police:

• Stay calm and in control of your words, your emotions, and your body. Don't get into an argument with the police.

• Do not complain at the scene or tell the police they are wrong.

• Do not make any statements regarding the incident. Do not consent to any searches.

• Ask for a lawyer immediately if you are arrested.

• Try to find witnesses and their names and telephone numbers.

• Never bad-mouth a police officer.

• During an encounter with the police, you can protect yourself: What you say to the police can and will be used against you, and it can give the police an excuse to arrest you, especially if you are bad-mouthing the officer.

• You do not have to consent to a search of yourself, your car, or your home. If you do consent to a search, it can adversely affect your rights later in court.

• Do not interfere with or obstruct the police - you can be arrested for it.

• It is not a crime to refuse to answer questions, although it is a crime to refuse to identify yourself and produce proof of your identity.

• If police reasonably suspect you pose a danger to them or others, they may conduct a frisk and "pat down" your outer clothing. Do not physically resist, but make it clear you do not consent to any further searches.

• If you are stopped in your car: Upon request, show the police your driver's license and proof of insurance. In certain cases your car can be searched without a warrant. However, to protect yourself you should state you do not consent to a search. It is not lawful for the police to arrest you simply for refusing to consent to a search.

• If you are contacted at your home: If the police knock and ask to enter your home, you do not have to let them in, or even open the door, unless they have a warrant signed by a judge - not just the threat of getting a warrant.

• You do not have to consent to any search of your home.

• In some emergency situations, officers are allowed to enter and search your home without a warrant and without your consent.

• If you are arrested or taken to a police station: You have the right to remain silent and talk to a lawyer before you talk to the police.

• Do not give any explanations, excuses, or stories. You can assert your defense later with the help of your lawyer.

• Ask to see your lawyer immediately. Do not say anything without a lawyer.

• Do not talk about the facts of your case over the telephone at the police station or jail.

• Do not make any decisions about your case until you have talked with your lawyer.

Motivated to Kill

Capital Defense Weekly announced "The Death Belt Claims Three." I figured it was my turn to pop off on the death penalty. The following post was inspired by Texas defense lawyer Emmett Harris' editorial comments in the "Voice for the Defense."

In Texas receiving a death sentence for committing capital murder is a good bet. Texas is often at the top of states zealously executing their own citizens. But prosecutors could not obtain the death penalty unless jurors were willing to give it. So why are jurors so willing to sign-off on the death penalty when the State seeks to kill one citizen in exchange for the life of another?

Jurors may believe the death penalty brings a sense of closure to the victim's family? Well, our common human experience demonstrates closure will never occur - no matter what is done in response to the senseless and tragic death of a loved one. That wound is carried forever. Forever those left behind will wonder why. Forever they will struggle with the memory of the meaningless death of someone close and dear to them. Closure is unattainable and some introspection by the juror ought to reveal that truth.

What about deterrence? Isn't that a good reason to sign-off on the death penalty? Well, the death penalty is there but capital murders keep occurring. The death penalty is assessed but capital murders keep occurring. The death penalty is publicized and glamorized but capital murders keep occurring. Jurors know this. They read about the lack of rational basis to believe the death penalty deters crime in anyway. Cassy Stubbs wrote a good article about the deterrence myth here. Nothing holding water yet.

Scripture support for the death penalty is a good argument, isn't it? Not one defense lawyer who's ever tried a death penalty case hasn't heard a prospective juror say "You know the Bible says an eye for an eye." Exodus 21:24; Deut 19:21. But didn't Jesus Christ come to fulfill the law of the Old Testament? Are not these same jurors ignoring what Christ said in Matthew 5:38-39? "Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also." Are not these same jurors ignoring the Biblical message of God's grace and mercy? Is the Scriptural excuse nothing more than an attempt by jurors to clothe an otherwise motivated desire to kill with credibility?

What is happening? Well, obviously the State is playing upon our natural desire to kill for revenge. In our advanced and "enlightened" society we cannot come up any better solution for one death than causing another one. You see, I agree with Emmett and believe that is who we really are. We are about revenge. When one person dies - another must also die.

We truly do not understand God's grace and mercy. If we did we would not be so quick to sign-off on the death penalty. In Biblical times God often withheld judgment upon the nation of Israel giving them opportunity to repent and turn back to Him in faith. Why can't we do the same as a society? Why are we so quick to judge, so quick to kill? We ought to know better. Our society ought to know better.

My Fee for This Case

I've been practicing criminal law exclusively for almost 17 years and I still think hard when setting fees. Besides a lawyer's competence, the next most important issue to the client is how much the representation will cost. My fee should compensate me appropriately for the effort I anticipate expending for the client. Additionally, my fee should be fair to the client - a price that is hopefully within their acceptable range. But when setting a fee I will always err on the high side, rather than the low.

I love what Michael Sherman had to say about fees on his blog Law for Profit. When building the "perfect" law practice Michael theorized:

Because of their dedication to extraordinary client service and value, lawyers at the Perfect Practice are able to charge premium fees. This does a number of things: it drives off low paying business that you should not want anyway; it allows you to focus on quality instead of quantity; and by reducing the number of cases it allows the staff and lawyers to deliver better service.

I found this wisdom true in my practice of law. My fees run-off a fair number of prospective clients, but the clients that hire me get excellent and personalized service. I am able to work their cases hard since I carry a lighter caseload.

I also appreciate what Scott Greenfield, authoring Simple Justice, had to say on the issue of service:

A criminal defense lawyer is not your new best friend, your teacher or your therapist. He is the one person who stands between you and the awesome power of the government. You need a criminal defense lawyer who understands that his job is to serve your needs . . .

The simple truth is that the best possible result comes from a position of strength, not weakness. The only way to defend from a position of strength is to think "outside the box" to find innovate approaches that relate to the specific set of circumstances for each defendant. To develop a strategy that gives each defendant the best possible hope of success requires enormous effort.

To "think outside the box" a College Station criminal defense lawyer needs time. The fewer cases he handles at a premium fee, the more time the lawyer has to address specific client needs. I can tell both Michael and Scott spend time and work their cases hard because they aren't burdened by low paying business that other lawyers try to attract.

The defense lawyer should strive to charge premium fees to keep their caseload at levels where they can provide extraordinary client service. I can't count the number of cases that turned on a fact or issue I wouldn't have thought of - but for the time I spent thinking deeply about the case. The lawyers making a living on client volume are doing both their clients and themselves a disservice. Clients deserve the best effort we have but we can't provide it when we are juggling 200 active criminal cases, managing the staff, paying the bills, going to court, spending time in recreation, and loving our families.

Lawyers should not be afraid to charge premium fees and clients should not be afraid to pay them. Sure, the premium fee will run-off the price shopping prospects. But those clients are fooling themselves into believing they get quality service at a bottom dollar price. Setting fees will always remain a risk for the committed defense lawyer. However, running a business involves risk. Without risk there is no reward. Risk big - win big. Risk little - win little. Lawyers, don't be afraid to charge the premium fee. Clients, don't be afraid to pay it.

A Labor of Love

As I finish my week in the office some thoughts occurred to me worth mentioning in public. Since launching The Defense Perspective I realized my colleagues in the bar who actively contribute to discussion and education through publishing their own blogs are deeply involved in a labor of love. These lawyers are making significant contributions to the bar at large and I wanted to acknowledge their effort. I also need to thank them for helping me with The Defense Perspective by mentioning my blog and adding it to their blog rolls.

Thanks to The Austin DWI Lawyer, Jamie Spencer, who writes on a myriad of DWI topics and provided my first plug in his post "Getting Other Lawyers to Link to Your Blog." Thanks to Mark Bennett who can really pick a fight with guys from New York. Mark mentioned The Defense Perspective and gave me a plug in his post "Two More Blawgs for the Blawgroll." Thanks to Gideon for adding me to the blog roll on a public defender. Robert Guest, who authors "I was the State," said I inspired his thoughtful post on "Tougher DWI Laws No Deterrent". And finally, thanks to Evan Schaeffer for mentioning The Defense Perspective on "Evan Schaeffer's Legal Underground."

Lawyers who blog cannot be successful without the help and support of others laboring in love on those topics and issues meaningful to them. I hope you take the time to check out these blogs since they contribute greatly to the bar and benefit us all.

Handling the Media - Know the Facts

In my introductory post on handling the media, we learned how the effective criminal defense lawyer must always consider how media coverage can affect their client's interests during the litigation process. In high profile criminal cases the defense lawyer should learn to think like a reporter and learn to recognize a newsworthy angle on their case. In other words, what things about the case constitutes "news" and how does the lawyer prepare to represent their client zealously in the media? First though, the defense lawyer must know the facts.

Many lawyers are reluctant to talk to the press for fear of violating the rules of ethics which govern their professional conduct. The rules of ethics state the lawyer can make comments upon and generally discuss the following matters related to their case: (1) the general nature of a claim or defense; (2) any information contained in a public record: (3) an investigation is underway - including any defense involved; and (4) a request for assistance in obtaining evidence. Additionally, the lawyer may also comment upon a matter "reasonably calculated to counter the unfair prejudicial effect of another public statement" made in the press. That is, if the prosecutor is engaged in a media campaign against their client the defense lawyer is permitted to respond the attack.

To present a newsworthy angle on their case the lawyer must know the facts of the case intimately before talking with the press. If the lawyer makes a mistake it will be forever recorded in print and in website archives. Since other reporters will look to past stories for background information they are likely to repeat the lawyer's error in their own stories. In this case, credibility may be lost and the client's case can suffer harm.

In future posts we will continue our exploration of areas in which the criminal defense lawyer can prepare to make the best use of the media to zealously represent their client.

The Risk of Remaining Silent

Tom Kirkendall reported in Houston's Clear Thinkers the defense team in Conrad Black's white collar criminal trial announced the defendant had elected not to testify:

The Black's defense team strategy in holding Black off the witness stand is risky. As Martha Stewart and Jamie Olis learned the hard way, jurors in white collar criminal cases expect to hear the defendants explain why the government's charges are not true. When the jurors do not hear from the defendant, no jury instruction will ever remove the seeds of doubt from the jurors' minds that the defendant is trying to hide something. Granted, as Jeff Skilling and Ken Lay experienced, testifying in one's own defense certainly does not assure a successful defense. Likewise, the courtroom dynamics of each trial are different, so those in play in the Black trial courtroom may favor Black staying off the stand. But as the late Edward Bennett Williams used to advise his white collar criminal clients, "If you elect not to testify, then you better bring your toothbrush with you to the courthouse." Inasmuch as the government's case in the Black trial appears to be extraordinarily weak, here's hoping that the Black defense team's decision to keep Black off the stand does not come back to haunt them.

The right to remain silent is a right of constitutional dimension protected by both the United States and Texas Constitutions. Why does such an important right need protection? Because our human nature assumes the worst in people when they don't explain their actions.

In trial after trial I have spoken with prospective jurors who want to hear the defendant's side of the story. However, there is great risk in calling the client to the stand during trial, especially when the client might be impeached with prior convictions or a prior inconsistent statement. Nonetheless, lawyers must sometimes call the client in order to explain evidence or assert a defense.

However, as Tom Kirkendall commented, it is a risky strategy to keep the accused off the witness stand, too. This is especially true in trials like Conrad Black where jurors are prone to believe the defendant is hiding something and consequently use that against them.

It is often a difficult decision for the trial attorney whether to call the client as a witness and subject them to cross-examination. So, I'll echo Tom's thought and say here's hoping the Black defense team's decision to keep Black off the stand does not come back to haunt them.

Eyewitness Misidentification (Part I)

The ability of an eyewitness to take the stand and identify the accused as the perpetrator of a crime often provides the essential component of the prosecutor's burden of proof in a criminal case. However, an ever growing number of DNA exonerations have proved eyewitnesses indeed make incorrect identifications, even when procedural safeguards were followed. Even the Supreme Court of the United States recognized the dangers of eyewitness testimony when it stated: "The influence of improper suggestion upon the identifying witnesses probably account for more miscarriages of justice than any other single factor - perhaps it is responsible for more such errors than all other factors combined." U.S. v. Wade, 388 U.S. 218 @ 229.

The Court stated in later opinions the testifying witness must recount events with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Manson v. Brathwaite, 432 U.S. 98, 111-12.

From the Innocence Blog:

Eyewitness misidentification is the leading cause of wrongful conviction, and Iowa State Professor Gary Wells has studied the issue for three decades. In an article published this week on the website of the Nieman Foundation for Journalism at Harvard University, Wells writes guidelines for local reporters and activists to question whether their local law enforcement agency has enacted important identification reforms based on solid scientific research.

Click here to read the article. (Nieman Watchdog, Harvard University, 6/12/07)

It is critical for the Bryan/College Station criminal defense lawyer to understand the dynamics involved in eyewitness identification cases. In future posts we'll explore the nature of eyewitness testimony, its weaknesses, and how an experienced lawyer can use improper police procedures and expert testimony to discredit the testimony of an eyewitness.