Buyer's Remorse?

Via email:

Hello I recently accepted probation. I wanted to ask is it unconstitutional in Texas for me to be given a contract where I give up my right to a trial by jury when I accept probation?

I’m assuming “contract” means the plea paperwork and the portion of it that says, in legalese and this is obviously not verbatim, “You know you have the right to a jury trial, you know you have the right to a jury trial, you know you have the right to a jury trial…”

So, to answer the question, “No. It’s not.”  Without the contract(admonishments)?  Maybe.  But with the contract?  I doubt it.
 

Dying Before We Can Kill You

The Orlando Sentinel ran a story about Florida death row inmates dying before they could be executed. Apparently the grim reaper himself often appears in the fourteen year wait between sentencing and government sponsored execution. In the last ten years, it’s been a 50/50 proposition as to which comes first. From “Justice denied? On Florida's death row, many lives end -- but not by execution”:

Such figures don't surprise experts because death-penalty cases can take years -- even decades -- to work through the legal system.

While the condemned wait, they can fall victim to ailments traceable to years of unhealthy living before their convictions, including drugs and alcohol abuse.

It’s doubtful that accurate statistics are kept on how far below average the health habits of future prison inmates compare to the general population, but I’m willing to accept that partial explanation on common sense grounds. But I’d also bet that every year in the joint ages a man at least twice as fast as a year outside. At least twice, probably more.

One inmate committed suicide and therefore didn’t die “strapped to a gurney with witnesses watching through a glass window as the court ordered.” One of his victim’s family members said that while he didn’t feel cheated, he felt no relief either.

Any folks out there sweating Death as their loved one’s murderer appeals his way out of punishment? But of course. For example, one woman whose cousin was murdered (by a man related to her by marriage) said:

[S]he does not oppose appeals, in general, because she wants the "right bad guy" punished. She wants her family to be able to live without the fear that Hitchcock could someday go free, however.

"I do not want him to die of natural causes," Meadows said. "I want him to know the fear of taking that walk to his final destination on earth."

Before my server explodes with angry emails about “how would YOU feel IF…” let me go on record right now:

If you killed one of my family members I would not want you to feel the fear of waiting for the Government to kill you back. Instead, I would want you to feel absolute and total terror as I personally strangled, stabbed, shot, and otherwise tortured you into Hell.

However, I like to think I could acknowledge that “how I felt about it” shouldn’t be the only public policy consideration in determining your punishment. Or, for example, whether or not we stopped to have a trial before we punished you in the first place. But I admit I haven’t been there and hope never to be.

But why so long? Why must it take so damn long to get through the process, right? That’s what concerns most of us. The article finishes with – or is that gives short shrift to? – just one of many examples of a man who was rightly saved by the length of the process:

Former death-row inmate Juan Roberto Melendez, 58, says he's alive because he had the time to appeal.

He was sentenced to die for the 1983 murder of Auburndale beauty-salon owner Delbert Baker.

It took 17 years, eight months and a day before his attorneys uncovered evidence that would have cast doubt on Melendez's guilt. Polk County prosecutors elected to drop the charges.

On Jan. 3, 2002, he became a free man.

"In trying to get the Ted Bundys and child killers, innocent people get caught up in the net," he said by phone from where he lives in New Mexico. "The system is not perfect."

The system is not perfect. Therefore decreasing the time between sentencing and death necessitates increasing the wrongfully executed. So pick your poison, and live with the consequences either way.

[Hat Tip: Sentencing Law & Policy Blog]
 

"Billions and Billions"

My parents weren’t big on letting us watch much TV as kids. Mostly it was Masterpiece Theatre and the occasional non-PBS type fare such as “Bridge on the River Kwai – because it has Alec Guinness in it”. No, he has nothing to do with the beer, and he’s not Alec Baldwin’s dad, you know – Obi Wan Kenobi. (Actually Star Wars was one of the few movies we saw in the theater; I now suspect probably for the same reason.)

So it’s been a nostalgia tour for me Netflix-ing my way through Carl Sagan’s Cosmos. I’m on the fifth out of seven discs now and randomly came across this picture surfing the internet:

The rest of the story behind that picture can be viewed here at rense.com. I had originally imagined this post titled “Insignificance” with just the first picture and the link but decided to change it.

There’s something about learning exactly how small we all are in the grand scheme of things that actually makes living life more significant, not less.
 

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I Am Not the Editor of Blawg Review

Or am I? The fact that s/he is asking me to affirm that I am not makes me suspicious.

Is this one of those Brad Pitt/Edward Norton/Fight Club moments?
 

If You Too Have Driven A Car Into a Pool...

Fish. Barrel. Ka-Blam! (Really, it’s too easy.)

You don’t want to - or is that can’t be bothered to? - write your own blog, so you get someone to do it for you. After all, blogs are the “next big thing” in lawyer marketing. Pay someone a monthly fee, and they’ll… well, what will they do?

For a criminal defense blog they’ll take a story out of the newspaper about someone being arrested; then blurb it without attribution; and finish with a final paragraph that reads something like:

If you too have been [fill-in-the-blank] then call me me me at this number NOW!

Better watch out though. Someone else is “writing” this garbage and sticking your name on it. Here’s an example of some of that fine lawyer marketing.

First, a story in the paper appears about a Florida DUI arrest where the defendant drove her car into someone’s pool. Second, your marketing guy that writes your blog condenses this down to two paragraphs – without linking to the story itself.

But that’s not enough. Sure, that’s fascinating, relevant to your practice, and is going to make anyone and everyone charged with DUI in a 100 mile radius want to call you immediately. But you really need that call to action.

(As Dave Barry often writes, “I am not making this up.”) So you add the coup de grace to your blog entry:

If you too have driven a car into a pool and are in need of an experienced DWI lawyer, contact the [Geographical Location] DWI lawyers of the Law Office of [First Name Last Name] at 1-800-123-4567 to discuss your situation and to determine your legal options.

If you too have driven your car into a pool? Are you kidding me – who hasn’t?
 

Police Department Goes "Quack! Quack! (AFLAC)"

Austin defense lawyer Kiele Linroth Pace posts about an American Statesman article out today, “Some Austin police buying suspension insurance”:

Several Austin police officers, fearful that a misstep on the street will result in an unpaid suspension, demotion or firing, have begun taking out insurance policies to protect themselves from a potential monetary hit.

As Kiele notes, “I wouldn't begrudge the officers' efforts to protect themselves except that I'm pretty sure there's no insurance coverage available to cover missed or lost employment due to wrongful arrest.” Indeed. According to the article:

The insurance would cover financial losses for more routine suspensions, which result from incidents such as minor patrol car accidents, tardiness or rudeness, but could not be used in situations in which officers' actions injure a person or in which they knowingly violate the law or demonstrate "intentional wrongdoing."

For example, the policies would not cover officers suspended for drunken driving, drug use or excessive use of force, company officials said.

The Austin chapter of the ACLU has a different take:

Debbie Russell, president of the Austin chapter of the American Civil Liberties Union of Texas and a frequent police critic, said she thinks officers have a right to protect themselves financially. However, she said, she is concerned about the insurance purchase.

"I'm not sure if that is a good message for them to send, as if they are expecting to be fired or suspended," she said.

“Not sure”. Well I don’t know how I feel about it either. From a purely PR standpoint, it cries out for smart alec defense lawyers to amuse themselves by writing “aren’t-I-clever” titled posts. But apparently this sort of insurance is available in other professions, why should police be automatically excluded?

Like most things, we’ll have to wait and see what the final result here is to know the effect. How will the minor/major infraction rule be enforced?

For example, what about the “rudeness exception”? How is that measured? If police interaction with the citizenry is rude enough to warrant suspension, can it be completely unintentional? (Or is it only “major” if you’re rude to the police chief?)

The devil, as always, is in the details…
 

Defending People Does Blawg Review

Houston criminal defense lawyer Mark Bennett writes today’s edition of Blawg Review. It’s one of the best in recent memory.

 

Freudian Slip?

Scanning the search terms, I come across:

Bored of Pardons and Parole

As in.. “We’re bored with pardoning and paroling folks, so we just decided not to do that anymore”?  
 

What Your Parents Did (or Do)

About saying “After all, my Mom was an English teacher,” Wayne Schiess continues:

If you are a lawyer, especially a lawyer who is serious about legal writing, and especially a lawyer who teaches legal writing, this is a cool thing to be able to say. You don't even need to complete the thought. Listeners will assume that because your mother was an English teacher, she insisted that you speak correctly, that you use language precisely, and that you take writing seriously.

In reality, your English-teacher mother may have insisted on those things, and she may not have. And even if she insisted on them, you may not have learned them. So having an English-teacher mother really means . . . nothing?

He’s right. It doesn’t really mean much if anything. But I’d probably use the phrase more often myself if I taught writing.

I wonder what I’d be trying to imply if I said “My dad taught math and science”. I certainly use the “Mom/English teacher” infrequently, but the “Dad/Math & Science” less still.

If I need to describe what my Dad did, I usually instead go with “My Dad was a mad scientist”. If illustration is necessary, I tell the story of a father’s day when I was in my twenties, and I came home to see him.

Mind you, Father’s Day is the day Dad gets to do whatever he wants. Well, I find him in the study, sitting at his desk behind an oscilloscope with who knows how many yards of fiber optic cable coiled all over the room and some contraption that I can tell he’s built himself. It looks a little bit like it could have come out of one of those Buy-Your-5th-Grade-Child-A-Science-Kit, except that since he constructed it from spare wood and transistors (whatever, I don’t know what they were) that were lying around the garage, it doesn’t look quite that fancy.

Of course I have no idea what he’s doing so I ask…

Me: What are you doing?

My Dad: I’m trying to verify the speed of light.

That was at least 15 years ago, and I’m pretty sure he was retired, so it’s not like he was setting up this experiment for a Physics class. He was actually just trying to see how close he could come to figuring out (the already known) speed of light.

Well, that’s it. I haven’t the slightest idea why I wrote this post. I just thought what Wayne said was amusing and it struck a chord with me, so I started with that, and then I went off on a couple of tangents. If you knew my Dad, this post will make more sense to you.  Feel free to return to your regularly scheduled programming.
 

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A Scandal in Bohemia: Heads We Win, Tails Unpublished

Doug Berman of Sentencing Law and Policy asks why do defense wins in sentencing appeals often go unpublished? Good question. Let’s get to the bottom of it.

It is bad enough that defendants rarely win major sentencing appeals.  It is worse, and quite disturbing, that many circuit courts seem to want to have the rare defense win go unnoticed.

Meanwhile, as evidenced by two big published rulings today by the Tenth Circuit, circuit judges usually make sure that major losses by defendants get the full published treatment. 

In US v. Friedman, No. 07-4118 (10th Cir. Feb. 10, 2009) (available here), a defendant has his below-guideline sentence reversed in a published opinion, and in US v. Yanez-Rodriguez, No. 08-2100 (10th Cir. Feb. 10, 2009) (available here), a defendant has his above-guideline sentence affirmed in a published opinion.

Well it can’t be the first and most obvious reason: that courts don’t want to make good precedent for defense lawyers to argue on behalf of their clients in the future. Since judges are neutral and detached magistrates, always making decisions based on the law, this is impossible.

So let’s play Sherlock Holmes, shall we? (“Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.”)

To be fair, not all unpublished opinions are defense wins. The others more often than not are the kind where the defendant loses, but the reasoning is so twisted and ridiculous that your average middle school student reading the opinion could point out the logical flaws. Maybe a bright fourth grader; but generally speaking it would take your average seventh grader.

Another possibility is that it’s just random chance. But anyone who spends time reading appellate decisions can tell you that the trend is way above that for random events. There’s a statistically significant sample size, and a result in play, so randomness won’t account for it.

This becomes even more apparent when you take a cursory look at the percentages of defense wins in federal sentencing cases. They are tiny compared to government wins. A random effect would show up, therefore, in an overwhelmingly huge percentage of all unpublished opinions being "wins" for the U.S. Attorney’s Office. Not so. We eliminate chance alone as a possibility.

So we reach our conclusion. Please don’t forget the “no matter how improbable” part of the inductive reasoning axiom. I fear you will instinctively reject the conclusion, but it is inescapable.

Before I spell it out, let me apologize in advance. Not for the use of profanity, although I don’t know that I’ve ever used it before on this blog. No, I apologize because I know that not all of my readers are lawyers, and I’m going to be using some highly technical legal words and phrases in my carefully thought out explanation.

So here goes: the reason that defense wins in federal sentencing guidelines cases so frequently go unpublished is that…

…the appeals courts are full of a bunch of lilly-livered chickenshits.

Wait. That actually sounds frighteningly similar to the first possibility already discarded.  Hmmmmmm.

Either way, as Berman said, “quite disturbing”.

Inside Baseball

Gerald Herbert of the Campaign Legal Center weighs in on yesterday’s federal charges filed in the oh-so-important Miguel Tejada case with an interesting comparison.

From his article “So We're Indicting Baseball Players, But Not DOJ Officials for False Testimony to Congress?”:

I find it shocking that the Department would elevate the prosecution of a major league baseball player for lying to congressional investigators about steroid use above the prosecution of former Justice Department officials who was found to have given false testimony to Congress about politicized and illegal hiring practices within the agency. 

Some background here: Five time all-star Tejada seems poised to enter a plea to one misdemeanor count under Title 2 U.S. Code Section 192 “Refusal of Witness to Testify or Produce Papers”. (Charging instrument, in this case an information not an indictment as widely reported, available here.) Long story short… the feds can prove he lied to Congressional investigators in the long running “US-Economy-Collapses-While-Senators-Investigate-Who-Injected-Whom-With-What” scandal.

Fine. Lying is bad – must be punished. Apparently Tejada should feel fortunate that Congress forgot to criminalize lying about your age. He got a free pass on that one; this one’s gonna hurt a little bit more. I’ll predict probation, but feel less sure what a crime involving moral turpitude will do to his immigration status. It’s not a felony, so chances are he’ll still be playing for the Houston Astros next season.

Herbert’s point though is that when it comes to free passes, Bradley Schlozman received a doozy when it comes to “lying to Congress”. When he was asked to explain himself in the firing of the U.S. Attorneys investigation, he denied making hiring and firing decisions based on political bias. (That would be illegal; so he denied it.)

He was lying. Not to his wife, or his employer, but to Congress. (You should be able to make a credible case that lying to your wife is worse than lying to Congress; just pointing out that Tejada lied to Congress about a much less important subject than Schlozman. Also, I suppose, lying to your wife is reasonably not a crime, while lying to Congress is.)

Over three years in which he controlled employment decisions, Schlozman favored young conservatives for entry-level jobs, transferred those he called "right-thinking Americans" into top assignments and instructed colleagues that "adherents of Mao's little red book need not apply," according to e-mails cited in the report.

Authorities analyzed 112 career hires during Schlozman's tenure and determined that "virtually all" of the lawyers whose political affiliations were known at the time had ties to Republicans or conservative legal groups.

So does what you’re lying about make a difference? And if so, why the night and day outcomes in the two examples?

This Only Happens On TV

Or, maybe not. Identical twins both acquitted because no one could tell which one of them did it.

Because the brothers’ identical features made it impossible for officers who were testifying to point out which one had been found with the key, Judge Ibrahim said she had no choice but to acquit both men.

She called the ruling “a very unique case.” Court officials familiar with the case could not be reached for comment.

Thankfully the judge didn’t go with the more popular “someone has to pay, I’m sorry it has to be both of you” line of legal reasoning.

Especially since the charge, drug trafficking, carried a mandatory death penalty by hanging in Malaysia. 

Another Criminal Law Blawg Review

Blawg Review #198 is up at Jeremy Richey’s East Central Illinois Criminal Law & DUI Weblog.

Next week’s will be hosted by Texas’ own Mark Bennett at Defending People. I don’t remember two criminal defense Blawg Reviews back to back.

If the Jury Asked the Judge a Question...

...and you were the defense lawyer, wouldn't you want to know?

(If this were being litigated in Texas, I'd bet on a harnless error result.)

When Not Seeing Is Believing

How likely are you to believe you saw something that didn’t happen? Depends on the circumstances, of course.

The January 2009 issue of Psychological Science includes a study titled “Recalling a Witnessed Event Increases Eyewitness Suggestibility: The Reversed Testing Effect”. 

Studies have already shown that receiving misinformation about witnessed events prior to recall would distort perception. The abstract of the article starts with this documented fact:

People's later memory of an event can be altered by exposure to misinformation about that event. The typical misinformation paradigm, however, does not include a recall test prior to the introduction of misinformation, contrary to what real-life eyewitnesses encounter when they report to a 911 operator or crime-scene officer.

So if you are given false information about what you saw before you start to tell your version… you’re likely to mess up the “details”. Common sense stuff. But, as is pointed out, that’s not likely to happen at a crime scene.

The authors of the article initially hypothesized that if you gave misinformation to two different sets of people about something they witnessed, letting one group tell their version before being given false details would enhance the reliability of their later recall:

Because retrieval is a powerful memory enhancer (the testing effect), recalling a witnessed event prior to receiving misinformation about it should reduce eyewitness suggestibility.

Again, it’s common sense. Who hasn’t experienced that sense of urgency? When you know you want to remember something, you start getting the details down. Maybe you tell someone; maybe you just start repeating the stuff in your head. But everyone knows that the sooner you try to recall something, the better you’ll remember it.

Except it ain’t so. The study proved just the opposite. (You’ve got to love science. The whole point of proving something using the scientific method can lead to unexpected results.)

The article is pay-per-view, but a report in Science Daily gives us some more details:

A group of volunteers watched the first episode of "24" and then either took an immediate recall test about the show or played a game. Next, all of the subjects were told false information about the episode they had seen and then took a final memory test about the show…

The researchers found that the volunteers who took the test immediately after watching the show were almost twice as likely to recall false information compared to the volunteers who played the game following the episode.

I had to read that several times for it to sink in. You watch “24”. You take a test about what you saw. Someone else, instead of immediately being asked what they saw on “24” does something completely unrelated.

Afterwards, both of you are given false information about what you watched. And then you are both tested on what you saw. You are re-tested; he’s asked for the first time.

Here’s the kicker… you are more likely than the other guy to repeat the false information:

The results of a follow-up experiment suggest that the first recall test may have improved subjects' ability to learn the false information - that is, the first test enhanced learning of new and erroneous information.

I wonder if this is related to the concept that the more certain of something you are, the less likely you are to be right about it. It wouldn’t surprise me if it turned out that folks who had been quizzed immediately felt surer about their recall than ones who weren’t. But I wouldn’t know how to test that, nor do I know whether this study attempted to.

So back to the crime scene scenario, how does this play out. Well, as the authors point out, this is the crime scene scenario… most of the time. The first paragraph of the Science Daily article asks:

For example, if you witness a man in a blue sweater stealing something, then overhear people talking about a gray shirt, how likely are you to remember the real color of the thief's sweater?

Well what if you hadn’t focused on the color of the sweater? You just saw a drug-deal-gone-bad-murder. You tell the investigators on the scene what you saw. A well meaning policeman, who had just seen Joe-the-Marijuana-Dealer in a gray shirt earlier, might well ask you, after you told him what happened, “Was he wearing a gray shirt?”

The cop might be surprised that Joe would do such a thing. After all, he’s just the guy in the neighborhood who sells a little weed. As far as he knows, Joe has no involvement in anything violent. But Joe’s the only guy he knows on the block, and when he saw Joe earlier, he was in a gray shirt.

And then, because, not in spite of, but because you have already started recounting your recollection you are more likely to falsely implicate Joe? And to repeat that mistake later?

Scary stuff.

Jury Blogs

No, I didn’t make my own list of Jury Blogs, I’m just cutting and pasting from Deliberations:

  • The Science of Small Talk, Prof. Sam Sommers writing for Psychology Today.  It’s not always directly about juries (although the current series is), but juries are a large part of his scholarly focus, so it’s relevant even when the word “jury” isn’t used.
  • Thaddeus Hoffmeister’s Juries, steadily strong.
  • Jury consultant Dennis Elias’s JuryVox “micro-blog” on Twitter.  You have to join Twitter to “follow” Dennis there, and there’s no better reason to sign up; nobody delivers more value in 140 characters.
  • The news feed at Jury Experiences, which collects news and blog posts about juries better than anyone else and includes an amazing archive of jurors’ own blog entries.
  • The American Society of Trial ConsultantsThe Jury Expert (bimonthly magazine) and announcements feed (occasional stories of interest).  I praised TJE here yesterday, but should give full disclosure:  I’m on ASTC’s Communications Committee, and will shortly join the board.  So don’t take my word for it, take Mark Bennett’s; TJE is very good.
  • The National Center for State Courts’ Jur-E-Bulletin, an indispensable resource in your E-mail every Friday morning.
  • Edward Schwartz’s The Jury Box blog, where posts are occasional but insightful.
  • Things That Make You Go Hmmm . . . . , Jury Impact Consulting
  • Chris Dominic’s blog at Tsongas Litigation Consulting, one post a month for quite awhile now.
  • Harry Plotkin’s Jury Tip Of The Month newsletter.  There’s no RSS feed for these, and I can’t even find an E-mail subscription form, but if you write to Harry Plotkin (his address is on his site), I’m sure he’ll put you on the list.  The newsletters are excellent.
  • Clay Conrad’s jurygeek, Robert Kelley’s Florida Jury Selection Blog, and Rich Matthews’ Juryology, all quiet in recent months but I stay subscribed just in case.

Thanks Anne. You’ve done the work for me, and my RSS reader is duly updated.