It's Beginning To Taste A Lot Like Christmas

A client brought a nice Xmas gift to my office this week.  Tamales.  Delicious tamales.  Homemade.  But wait, it gets better than that...

Delicious homemade tamales... made by his mother.  Merry Christmas to me.

And Merry Christmas to all, and to all a good night.


At Least He Wasn't Tweeting For Clients

Jeffrey Partlow’s apparent lack of a law license hasn’t kept him out of the legal representation business over the last nine years:

A Dallas man arrested on suspicion of showing up to court intoxicated is now also accused of practicing law without a license.

Judge Andrew Bench summoned deputies to his Hunt County courtroom on Oct. 22, telling them that Jeffrey Scott Partlow was intoxicated.

After Partlow was arrested for Public Intoxication and held in contempt, presumably for the drunkenness, the judge decided to call the licensing authorities:

The judge was so angry that he called the Texas Bar Association to have Partlow sanctioned, only to learn no one by that name was registered with the bar.

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When Mrs. ACDL Gets Pulled Over

So, I get a text this morning walking out of my office on the way to court. Here’s the full exchange:

Got pulled over

Cop has my DL in his car

                                OK. It’s fine

They can’t get me for an unpaid parking ticket can they?


Not why he stopped me but just worried

There are two kinds of people in this world. The ones that get nervous when they’re around the police, and those that actually feel safer seeing them driving up and down the streets. Glad I’m married to one of the sane ones, but I feel her pain.

That’s what I get driving like a maniac

Wake up call to slow down & be more careful


Maybe a silly version of “Yes” will calm her nerves?

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The Effect of Halloween Costumes

So the boys went as a theme again. We’ll never beat the year they went as Thing 1 and Thing 2, but this year’s theme went over pretty well. Especially when I took ‘em to the courthouse.

More than one person asked how we decided which boy would be dressed in which outfit. They had about 6 or 7 different Halloween functions, between school and parties and such. We just switched them back and forth.

The second most commonly asked question was whether we were worried that one of the costumes would have any long lasting effect on them as people. Impressionable, malleable young minds, and all that. It may have been asked in jest, but I had already taken the issue seriously myself. 

After much research, both online and live consultations with child psychologists, I determined that dressing the children in these costumes would not alter their lives in a negative way, anymore than having them wear a pumpkin would turn them into a pie when they reached adulthood. What’s all this fuss about? Well, here they are…


So, to answer everyone’s question, no I’m not worried. I don’t think our choice of Halloween costumes will turn either one of them into a cop.




For those who would like further proof that I don’t always spend my time wisely: I am collecting (cutting and pasting?) email signatures of lawyers on various listservs that I frequent. Don’t ask. Maybe it’ll make a blog post some day.  Just today, this one popped out at me:

Attorney’s Name

Address/Contact Info/Blah Blah Blah

Concentrating in criminal defense, personal injury/police misconduct, divorce and grievance/disciplinary defense

I guess if I didn’t waste loads of my time on stupid projects (see first paragraph, e.g.) perhaps I could concentrate on five things at once too.



Bennett asked, in a comment to my puzzle post, whether I was just gonna leave folks hanging. That was probably the original plan. But he called me on it, so here goes.

Honestly - unlike most sentences that start with that word, this really is honest - I initially decided to write an impossible/unsolvable puzzle after Gamso and Bennett told me that the first one was too easy. That’ll teach ‘em! What can I say, it’s not a very mature reaction.

But as I started tapping out the Must Wash Hands Mystery post, it occurred to me that my fake riddle was more like a koan. Merely thinking about the problem was in and of itself the point of the exercise.

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One of the big boys on the blawk sent me an email with a subject line the same as the title of this post. In its entirety, the email read “???”.*

OK, point well taken. I’ve been in a blogging slump, and to break out of it, I’m going to commit one of the greatest sins of the blogosphere. I’m going to write about why I haven’t posted anything recently.

Awww to hell with that, I’m gonna write up a list of reasons, and assign truth percentages to them.

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Holistic Twittering

Ran across Tamar Weinberg’s Techipedia via Simple Justice’s deconstruction of a comment on her post “The 7 Truths About Social Media Marketing”. SJ unfairly insists she is vapid, apparently missing out on gems like tip #4, “Social Media Is Social”. Perhaps she left out “Social Media Is Media” because everyone knows lists have to be in groups of seven or ten.

Personally, I was struck by these passages from tip number three, “Numbers Aren’t Everything”:

It’s more important to look at the holistic view of the individual or entity on Twitter and across other social channels. If someone has over 20,000 Twitter followers, how many people are they following?

Excellent. We’re going to get a holistic approach to figuring out whether someone is worthy of out Twitter attention. She then dissects folks into three categories of twitterers I should be wary of, based on their ratio of friends/followers. Group number one:

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My Unquestionable Talent

Greenfield takes another leadership/life/law expert to task in “Client Service, And All That Guff”. The title is a reference to our expert letting it slip that what the client wants/expects out of his attorney is in fact “meaningless client service guff”. I clicked through to the expert’s blog, “Dare To Excel”.

No wait, that’s not right, it’s called “Dare2XL”. (No, I’m not making that up.) The blog’s tagline is “Reflections on leadership, using your mind to release your creativity and unquestionable talent, and being more than you thought you could ever be.”

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Recent Searches

In bold, the search terms that Google Analytics tracked to my site:

Sect of liars – I belong to several different criminal defense lawyer associations, so it seems appropriate for me to rank highly for this term.

Bong hits for Satan – Turns out my wife was right.

Released from prison now what – like most questions, the answer is “it depends”. Tempted to say celebrate, but wait… are you on parole?

The baby who was gonna be split in half – Actually no. The baby was never in any danger.

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"I'm The Neighbor!"

An out of town felony probationer, who was charged with misdemeanor shoplifting, who had just a few weeks left before completing said probation, called me nearly in tears asking me whether or not I thought the probation might expire before “they” found out about the potential new arrest.

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Half A Meelion Unique Visitors

This morning, my all time unique-IP address count of visitors reads 513,432, so I missed the mark by a week or two. Serves me right for not paying enough attention to my blog as of late.


This Post Is For Ron (Only)


Regarding what we talked about in court the other day, my last post didn’t quite fit the bill. So I had to write another. This should do the trick.


P.S. Thanks for reminding me.


Writ On A Class C

I’m about to go argue a writ of habeas corpus in Austin Muni Court, for a Class C No Insurance conviction from about a year and a half ago. Client attempted to pay some outstanding speeding tickets and the monies were wrongly applied to an FMFR that was pending.

When she returned a few days later with proof of insurance to get the dismissal, she was told “too late, we already convicted you when you came to the counter with money for the other ticket.” She filed a few motions for new trial – pro se – which were denied as untimely, and the case ended up in my hands after a few referrals and through UT Student Legal Services.

Should be fun. I wonder whether the prosecutor will say “Not Timely” in response to my writ. As if that applies…

[By the way, I don’t handle traffic tickets, and I make up my own mind what I’ll do pro bono, so don’t call me if you think you fall into either of those categories.]


One Minute Law School

Via Houston’s Clear Thinkers, make sure to watch all the way to the end if you want your graduate degree…

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Why Should I Hire You Instead Of...? (Another True Story)

Late on a Thursday several years ago I was waiting for an after hours appointment that was a few minutes late. And it had been a long week already.

The potential new client(PNC) arrives and we sit down to chat about his case. He’s about to be indicted in Travis County for felony DWI, and he’s going around interviewing lawyers to see who he wants to hire. Fair enough, that’s what free consultations are for.

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Those Who Can, Do

Certainly the most gullible among us must wonder at times why the get rich quick gurus advertising on late night TV don’t make millions for themselves by using their own repossessed real estate advice, instead of selling all of us shmucks the secrets to eternal wealth for just three-easy-payments of $99.

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A Note On War Stories And Blogging

Sometimes I want to write a post about “what happened in court today” but there are a few considerations that usually prevent me from doing it.

1) Dockets are a public record. For all intents and purposes, this means if I admit I’m talking about something that happened literally today, then I’m potentially letting the cat out of the bag. The exact “who” is protected by attorney client privilege; the precise “where” – which county, which court – is rarely necessary for the point of the story; it’s the “what” happened part that (may) be worth blogging.

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Why Was 6 Afraid Of 7?

Because 7-8-9.

[Two quick excuses: Sorry for being corny, but the twins are about to turn three, and my humor literally tends to run on the juvenile side these days – yes, more juvenile than before I had children. Also, I don’t expect to be alive a hundred years from now, so if I’m ever going to post this “joke”, then today’s the day to do it.]


Signs of the Times

No texting in court. Reminds me of back when I started practicing(1997), cell phones were just becoming common in every day life. More and more lawyers were changing out their pagers for cell phones.

In those dark ages, however, every phone’s ring sounded virtually identical. You didn’t have several options, just the default; and you sure couldn’t download the latest Britney Spears tune as your ringtone.

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The Smell of Books

I’ve read 5 books so far on my new toy, and expect to write a review of the Kindle soon. Assuming I ever get around to posting it, one of my few complaints, and an unfair one at that, will be that it just doesn’t feel like a book. I knew that, of course, before purchasing it and actually I’ve gotten pretty used to holding it and using it as “a book”.

On a related topic, ACDL reader Arsenic Julep (aka “my sister”) sent me this link:

Moving to an e-book reader can be a delight, but some of us enjoy the experience of books as well as the text inside. If you’re a reader of new books and love that freshly-cut-and-bleached paper smell, they’ve got a spray for that. You can get it here; you can also go to the devil for all I care, because I prefer the “Classic Musty,” which is what my apartment smells like with all these centenarian buckram and leather editions laying around.

I also enjoy breaking the back of a new book, stretching it in all the right places to make it appropriately “bendy”. Think someone’s gonna make a can of that for the Kindle?


A Good Lawyer Is A (Very Very) Busy Lawyer

Starting with a little free market theory, let’s assume that he who builds the best mousetrap will eventually dominate the mousetrap industry. (I don’t insist that this is so; just throwing it out there to start the post.)

It follows therefore, that in the service industry, the better services you provide, the more customers will come your way. Surely then, the best way to measure the worth of a lawyer is by the number of his clients.

From a Houston Chronicle article on overworked defense lawyers comes this line:

Some felony cases are resolved in minutes.

It’s a true statement, sad but true.  I actually can't tell if the author of the article is using the factual accuracy of the statement to justify the result.  According to the article, one lawyer in Houston has accepted representation of 360 felony cases or more, every year, presumably for years. In a recent post, “It All Adds Up To Incompetence”, Houston defense lawyer Paul Kennedy breaks down the math:

There are 52 weeks in a year and five working days in a week. That's a maximum of 260 days at the courthouse -- not counting holidays. That means that [this lawyer] accepts, on average, at least 1.3 felony cases a day, every day. There is no way a competent attorney can provide meaningful representation to his clients working that type of case load.

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Recent Google Searches

From my stats package…

The blank in a criminal case is beyond a reasonable doubt -- Uh, blank = standard of proof?

Unethical undercover tactics -- SCOTUS has already answered this: there are none, that matter anyway…

What charges can revoke someone while on probation for posession of marijuana in Texas? -- Usually not traffic offenses, but anything, that is to say, everything else?

Worst case scenario for stealing merchandise under $10 -- Usually the answer would be a Class C misdemeanor, up to a $500 fine and no jail time possible, but… Enhanced with two prior thefts in Texas? State Jail felony, up to two years and a ten thousand dollar fine. Enhance that with two non-theft pen trips, three strikes you’re out, 25 to Life. (If you think I’m exaggerating, ask Leandro Andrade about his $153 theft. You did ask for worst case scenario, right?)

Weed appetite suppression -- well, the popular rumor/myth/scientific fact is just the opposite, but OK…

Why can't I do well on tests – Dunno, but should I be concerned that my site come up for this query?


Law School Advice

Via email:

I've recently gotten serious about attending law school and started studying for the LSAT last week.

I have been speaking with as many lawyers I can in order to get a realistic outlook on law, however I have not spoken to any criminal defense attorneys.

If I could ask you a few questions about 1.) Law School 2.) Your career 3.) any thoughts/opinions on the profession, I'd greatly appreciate it.

My response:

1) Law School is mostly boring. Don’t go unless #2 applies to you.

2) I love being a criminal defense lawyer. That’s what I wanted to be when I went to law school.

If you want to be a [fill-in-the-blank-type-of] lawyer, then obviously law school is a necessity, and you’ll just have to put up with the boring parts. After you suffer through all the mandatory stuff during first year – where you have little or no control over what classes you must take – then concentrate on taking the classes that will actually apply to your future career.

Try to find a law school that has clinics that allow you to practice as a third year student while supervised by lawyers that know what they are doing. For me, the criminal defense clinic at UT Law was invaluable. Best course I took.

3) I have no experience with non-criminal defense parts of the profession. Therefore I have few thoughts and no opinions about that. I’m just one of the lucky people that gets to enjoy what he does for a living.

Kindle Envy

So in the 30 minutes in between reading Bennett’s post and browsing available Kindle books, newspapers, magazines and blogs I succumbed to my tendency to impulse buy. In my defense, I’ve been thinking about this purchase for a while.

Plus who knows how long it would have taken Bennett to get through all the dead-tree books he has piled up and to post an actual review of the Kindle. Meanwhile I am drooling over this recent email:

Delivery estimate: April 15, 2009
1 "Kindle 2: Amazon's New Wireless Reading Device (Latest Generation)"

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Which Is Worse...

Mathematics and Faulty Ethics Advice

This is an exaggeration, but sometimes I feel like I could start a whole blog responding to Randy Cohen’s incorrect answers in his weekly “Ethicist” New York Times Sunday Magazine column. (The truth is I’d probably only get one good post every other week, but that’s still an astonishingly high rate of bad “advice” – if that’s even what it is attempting to be. On the opposite end of the hypothetical niche blog topic spectrum, I would have to quit my full time job to track Mike Lupica’s bad predictions and silly statements; and that’s really just counting the 30 minutes of Sports Reporters, never mind his columns in the Daily News.)

Back to Cohen… I’ve got several 80% complete yet-not-quite-fully-polished posts about his column in my “unfinished” folder regarding past logical transgressions, but this morning I felt compelled to ask Mrs. ACDL to watch the kids by herself - I’ll have to pay that back - while I came over to tap out a few thoughts about today’s column.

If you’ve already read the column, Truth in Suspension, you may be guessing that I objected to the first scenario, where a reader asks Cohen if it had been ethical for a private school to label the discipline meted out to some kids caught using marijuana a “restriction” instead of a “suspension”, presumably, the reader posits, so as not to ruin their college admission status.

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Directing Your Free Speech Towards the Police

From the recitation of facts in the Supreme Court of South Dakota’s recent decision reversing a defendant’s disorderly conduct conviction on the grounds of free speech:

[A]t approximately 2:00 a.m. in Brookings, South Dakota, the bars on Brookings’ Main Avenue had just closed, and the bar patrons were gathering on the sidewalks outside the bars. [The defendant] Suhn was among an estimated 100 people gathered on the sidewalk.


At this same time, two Brookings’ police officers patrolled Main Avenue in their vehicle. Officer David Gibson sat on the passenger seat of the vehicle. He had his window fully open as the vehicle approached the area where the sidewalk crowd was gathered.


As the patrol car passed the sidewalk crowd, Gibson heard Suhn yell obscenities in the direction of the police car. Specifically, Suhn yelled: “Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes.”


Officer Gibson leaned out of the window of the police car and made eye contact with Suhn. He identified Suhn as the speaker. Gibson also observed that the others on the sidewalk had expressions of “what are you doing?” in response to Suhn’s comments.


Officer Gibson immediately left the patrol car and walked toward Suhn, who was then standing with his back to the patrol car. The officer grabbed Suhn by the arm and arrested him for his earlier utterance. Suhn was charged and convicted of disorderly conduct. Suhn appeals, raising one issue:


Whether the circuit court’s application of the disorderly conduct statute to Suhn’s utterances amounted to an abridgement of speech in violation of the First Amendment.



The decision hits some of the highlights of 20th Century First Amendment Supreme Court jurisprudence, citing Chaplinsky v. New Hampshire, Cohen v. California (AKA “Fuck the Draft”), Gooding v. Wilson and Lewis v. City of New Orleans among others. I don’t get to dip my foot in First Amendment waters all that often, so it’s always fun to have a refresher course.


The court reverses the conviction finding that:


As offensive or abusive as Suhn’s invective to the police may have been, “when addressed to the ordinary citizen,” Suhn’s words were not “inherently likely to provoke violent reaction.” See Cohen, 403 US at 20, 91 SCt at 1785, 29 LEd2d 284 (citing Chaplinsky, 315 US 568, 62 SCt 766, 86 LEd 1031). The circuit court erred in determining that Suhn’s utterances were unprotected speech.


While I applaud the result, I don’t know that I agree that the defendant’s words were indeed not “likely to provoke a violent reaction”. In fact, let’s take a look at the dissent’s version of the “fighting words” exception to the free speech doctrine:


Under this definition, the words spoken need not actually incite an immediate breach of the peace. Rather, they need only tend to incite an immediate breach.


Furthermore, “[t]he test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.” Chaplinsky at 573, 62 SCt at 770, 86 LEd 1031.


An average addressee… that is, in this case, a police officer? The dissent wants the conviction to stand, because even though it didn’t actually happen in this case, the defendant’s words are the type that would provoke an average cop to beat the hell out of someone? Is that what they’re saying?


The irony here is that I agree with the result of the majority, but agree with some (all?) of the reasoning of the dissenters. Criminal defense lawyers are quite used to clients coming in with bruises and scrapes of all kinds in cases where they didn’t exactly show the proper amount of respect to the badge. Sometimes police do overreact to this kind of situation, and our clients – while they bring it on themselves – do suffer for it. Right there in the middle of the street.


So if fighting words aren’t free speech, and the legal test to determine whether the speaker is using fighting words is whether or not the listener is likely to react violently to them, doesn’t your free speech depend on whether or not your audience has anger management problems? That seems like an odd way to measure it.


More disturbing though is the dissent’s acknowledgment that police in general would react violently to this type of speech. Don’t they teach police that they are likely to hear this kind of nonsense, especially right after closing time? And no matter how vile the words spoken may be, isn’t actually expecting a violent reaction from the police a sad comment in and of itself?

Protect Marriage, Protect Children, Prohibit Divorce

Success begets success, and indeed the joyous outcome of California’s Prop 8 a week ago has inspired a “A Petition for a California State Proposition that Prohibits Divorce Between Heterosexual Married Couples”:

Divorce destroys the sanctity of marriage and its powerful influence on the betterment of society. 


This proposition would keep the very meaning of marriage from being transformed into nothing more than a contractual relationship between two adults.  Prohibiting divorce between heterosexual married couples will keep the interests of children and families intact.  We will continue to celebrate marriage as the union of husband and wife, not as a relationship between "Party A" and "Party B." 


The marriage of a man and a woman has been at the heart of society since the beginning of time and it promotes the ideal opportunity for children to be raised by a mother and a father in a family held together by the legal, communal, and spiritual bonds of marriage.  As a society we should put the best interests of children first, and those interests lie in traditional marriage. 


Permitting divorce destroys marriage as we know it and causes a profound harm to society.  We should be restoring marriage, not undermining it.

And for those of you who voted yes on Prop 8 but disagree with this petition...Why?  This petition is copied and pasted from literature from your website,, but applied to Divorce instead of Gay Marriage.  So how can you argue with your own words?


Brilliant. [Hat Tip: Dax Garvin]

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Client Communication

From Matt Hoffman’s 10 New Rules of Legal Marketing:

  1. "My lawyer can beat up your lawyer" isn't a marketing strategy. "My lawyer will call me back before yours will" is.

The number one complaint about lawyers every year is made by a client who can not get in touch with his lawyer. And is justifiably upset.


But how does a potential client know this about the lawyer before they make the hiring decision? (I really don’t know the answer to this. If someone else does, please leave a comment.)


It's Sunday Morning and My Marriage Just Got Stronger

Sure, my wife and 2 children have been out of town since Friday afternoon, and I have spent the weekend alone, so how could this have happened you ask?

It’s simple. Yesterday was Saturday, and tens of thousands of straight people got married all over the nation. Probably hundreds of thousands all over the world. You see this makes my marriage stronger.


But Jamie – you gasp – this always happens on Saturdays, doesn’t your marriage get better every week?


Yes of course it does, but yesterday was extra special because Proposition 8 passed in California, and therefore the natural strengthening of my marital bond by the unions of men and women I will never meet was not placed in mortal danger by the harmful effects of two men or two women marrying each other.


Others have addressed this important issue better than I could in the past. Take for example Chad Fifer’s reexamination a few years ago of his critique of the Bush administration’s War in Iraq. He came to realize that there were more important issues at hand:


For once, I'm in complete agreement with the Bush administration — marriage between a man and a woman must be protected at all costs. I know, I know — those of you who've read my previous critiques of George W. Bush are probably surprised by my stance on this issue.


You were probably expecting me to go on and on about the hundreds of young men and women who continue to get killed in Iraq because of Bush's shady dealings and shitty diplomacy. But I'm sorry — when Rosie O'Donnell gets married TO ANOTHER WOMAN, all of those dead kids have to take a back seat.


Well said. I wish all of you – well, most of you, and I know you “others” know who I’m talking about – the best in celebrating this Family Values moment.

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On Improving Legal Writing

COMES NOW Wayne Schiess’ suggestion that to improve legal writing we should, inter alia, and subsequent to turning in our final edits, remove all archaic vocabulary from the aforementioned writing.

IN the instant case – that is the hereinabove first sentence of this post – all efforts have been appropriately made to follow said rules.

Witnesseth this day by legal bloggers and bloggacutrixes everywhere.


Obama to Use Political Capital to Fight the Prison Industrial Complex?

I doubt it, but here’s my transcript from the 7:40 mark of an interview of New Jersey mayor Cory Booker by Rachel Maddow. When asked by Maddow if Obama would be best served by fighting for liberal issues early in his first term, Booker replied:

Look I was told that about one of the biggest problems in America right now, that is we are wasting blood and treasure in the prison industrial complex.


Love the use of “blood and treasure”. First, decriminalization and/or massive reductions in penalties for drug offenders will come when politicians explain how much it’s costing their constituents to lock up non violent addicts for decades.


Second, the War on Drug Users is indeed a War that costs not only tons of money, but costs us in blood. That’s true both in terms of ridiculous SWAT type raids where innocent civilians and police officers are killed by each other, and frankly in terms of sentencing non violent defendants to years or decades or lifetimes in prison.


Third, it’s just a nice use of the phrase that we hear bandied about in discussions about the Iraq War. But to continue with Mayor Booker’s point:


And people told me this was a ‘left’ issue. You can’t talk about reducing the amount of prisons or helping guys when they come back.


I’m now a mayor in a majority African-American city that has the Manhattan Institute partnering with me on ex offender re-entry because I didn’t sell it as an ideological issue – I sold it as an American issue: that we are wasting billions of dollars in the State of New Jersey warehousing people, where if we do simple basic things to empower their lives, not only do we lessen our prison population, the cost of that, but we create taxpayers…


Warehousing people indeed. And, to mesh his points together, it’s awfully expensive – never mind possibly immoral – to “warehouse” people who haven’t done any harm except sometimes unto themselves.


I don’t really have much actual hope that our president-elect will choose to spend much of his newly acquired political capital on these issues, but it’s nice to hear the possibility of it at least raised in sensible conversations.


Here’s the video clip:



Here Comes the Sun

Little darling, it's been a long cold lonely winter
Little darling, it feels like years since it's been here

Here comes the sun, here comes the sun
and I say it's all right

The First Amendment According to Sarah Palin

"If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media."

Click Chris Plante Interviews Sarah Palin Part 2 to hear the quote – and to confirm that Vice Presidential nominee Sarah Palin is indeed explaining her fears that the media may chill future government candidate’s speech.


This story is all over the blogospherewith all the responses you would expect from such a silly statement. “Silly” is being kind – but I don’t care to regurgitate on the same topic as others; instead I thought I’d figure out just exactly what First Amendment Palin had been reading.

Perhaps this is it:


The Press shall make no comment criticizing a Republican Candidate, or ask any substantive questions of said Candidate; or endorsing the Candidate’s opponent; or print letters to the Editor in support of the opposition; or aid the people in their right to understand the issues.


I welcome any improvements in the comments section…

Please Vote

Tomorrow. It’s important. 

The polls are open 7 am to 7 p.m. Here’s a link to find your polling place in Travis County.

More Scare Tactics: "Obama Loves Criminals"

In the regular course of relentlessly blogging sentencing law and policy issues Doug Berman has frequently wondered over the course of this presidential campaign why criminal justice issues haven’t been raised more often. I’ve mad no bones about which candidate I have supported during this election cycle, despite this not being a political blog and while I’d love to se a real discussion of the issues, I have little doubt that the most we could ever expect to see would be ads attacking Obama as soft on crime. (Perhaps one could ask if any type of criminal justice blog could be non political, but let’s skip that for now.)

Then a few weeks ago Berman asked “Is Senator McCain preparing to attack Senator Obama on crime issues?”:


Over at The Atlantic, Marc Ambinder has this notable new post suggesting that old-school "soft-on-crime" attacks are part of Senator McCain's strategy to get back his mojo in the final month of the 2008 campaign.


As regular readers know, I have been itching for crime and punishment to be a campaign issue for quite some time.  I am not especially surprised that the campaign of Senator McCain would return to classic line of attack on Democrats; indeed, I am surprised that this issue has not come up sooner.


Alas, while the issue has finally come up in this flier mailed to Florida residents recently, you can see that the Republican Party is not even attempting to discuss criminal justice issues seriously:



Really, could you have a less substantive attack than this one?

Chris Rock on Sarah Palin's Criminal Activities

For those of you who don't know what he's talking about.


Prosecution vs. Defense: Witty Banter

So Western Justice’s quote of the week – or is that quote of the month? – is currently:

“In my courtroom, day after day, I have seen the dregs of the community—and some of their clients, too."

I’ll admit it’s a bit amusing.  Everyone loves a good lawyer joke. Seems to be coming out of the mouth of a black robe, so I tried to do a little investigating and figure out where the quote came from.

Best I could do was this prosecutor’s website from Rush Limbaugh’s hometown Cape Girardeau (check out the elected DA in front of that Untouchables poster – oooooh) where he attributes it to “a retiring judge”. OK, so that means it’s probably apocryphal. 

Fair enough. From the other side of the fence I often see this quote down at the bottom of a defense lawyer’s email:

“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process.

“It is our job - our sworn duty - as criminal defense lawyers, to protect our clients from those people.”

My cursory investigation showed that the author of this line – while often misspelled Cynthia Rosenberry – is more likely DePaul University College of Law faculty member and experienced trial lawyer Cynthia Roseberry.

I’m not a big fan of that one; it just comes off as too heavy handed. Yes, did I mention already that I know these are ‘jokes’ but that’s still my reaction to it.

My favorite in this vein has to be from Austin’s own, the late great Stuart Kinard:

“Protecting the Lord's children who have fallen short of perfection from the wrath of those who believe they have attained it.”

Stuart worked at times for both the prosecution and the defense, but perhaps that’s why his variation on the theme is the best. As criminal defense lawyers, we don’t actually have to battle all prosecutors. Just the unreasonable ones.

Everything You Ever Needed to Know...

…about Mark Bennett here.

And mind you – that post is written by a prosecutor.


Money Saving Tip for Texas Criminal Defense Lawyers

Let’s say you want to print out Subsection (i) of Section 13 ‘DWI Community Supervision’ of Texas’ probation statute (Code of Criminal Procedure 42.12) that deals with when you do and don’t have to install an ignition interlock on your vehicle.

Here’s a money saving tip:

Make sure when you highlight the relevant section that you change the page range from ‘All’ to ‘Selection’ before you click ‘print’. Otherwise you may print out all of 42.12.

I’d hate to see anyone waste about a hundred pages of paper. Texas sure does have a very lengthy probation statute, doesn’t it?


The Parrot Who Wouldn't Talk to the Police

Here’s a story about a parrot who seems to have taken the general advice of criminal defense lawyer’s a little too far:

When Yosuke the parrot flew out of his cage and got lost, he did exactly what he had been taught -- recite his name and address to a stranger willing to help.

Police rescued the African grey parrot two weeks ago from a neighbor's roof in the city of Nagareyama, near Tokyo. After spending a night at the station, he was transferred to a nearby veterinary hospital while police searched for clues, local policeman Shinjiro Uemura said.

He kept mum with the cops, but began chatting after a few days with the vet.

"I'm Mr. Yosuke Nakamura," the bird told the veterinarian, according to Uemura. The parrot also provided his full home address, down to the street number, and even entertained the hospital staff by singing songs.

"We checked the address, and what do you know, a Nakamura family really lived there. So we told them we've found Yosuke," Uemura said.

The Nakamura family told police they had been teaching the bird its name and address for about two years.

But Yosuke apparently wasn't keen on opening up to police officials.

"I tried to be friendly and talked to him, but he completely ignored me," Uemura said.

Talking to the police isn’t always a bad idea. (But see the corollary to this rule: Don’t let them search your car if you have a kilo of cocaine in the trunk.)

...the beginning of all freedom

Shawn Matlock declares that privacy as we know it is [possibly] a thing of the past.

Using Justice Douglas’ line that “The right to be let alone is the beginning of all freedom” as the title of his post, he assails the current Deputy Director of National Intelligence’s recent assertion that Americans need to rethink their definition of privacy.

Anyone interested in an excellent discussion on the Foreign Intelligence Surveillance Act (FISA) and privacy should read Shawn’s post thoroughly. Those left unsated can [this part was left unwritten].

But I intend to daydream a bit instead. 

Well, in attempting to follow through with my partial blog post project, I ran across this initial fragment.

Shawn’s post – and undoubtedly this beginning to a comment on it – were written in November of last year.

I know that Justice Douglas is a favorite of mine, but I haven’t the slightest idea how I was going to finish this post.

“The right to be let alone”. I’ll think on it awhile. It sure sounds like a good starting point.

But for now, I’m going to delete this snippet and move on.


The Partial Blog Post Project

I now have almost 50 half written posts in my folder on my C Drive labeled “Partial Blog Posts”. This time I’m going through each one, and either finishing and publishing it, or deleting it.

[Yes, I’ve made this threat in various forms before, so perhaps I’m the boy who cried wolf…]


Felon Spy (dot com - of course)

A private investigator that has access to the Austin Criminal Defense Lawyer’s Listserv sent an email out a few days ago (I usually link to folks to give them some Google Juice, but in this case, I’m doing the guy a favor by not doing that):

This is quite interesting, lets you know who and what to watch out for!  Try it.

Interesting facts about your neighbors.



ANY OTHER ADDRESS IN THE U.S.A. - You need to know who your neighbors are. Especially if they're dangerous criminals

The email included a link to, which shows you certain felons living near you and what they were convicted of, when you type in your address.

I’d probably be able to claim that I’m a better person than I am had my interest not been piqued, but it’s kind of like slowing down to watch a car accident – I had to do it.

So after typing in my address, I take a look at some of the crimes felons near me have been convicted of:

  • Attempted Gang Assault in the Second Degree
  • Course of Sexual Conduct against a Child in the Second Degree
  • Attempted Arson in the First Degree
  • Attempted Manslaughter in the First Degree
  • Aggravated Assault against a Person Less than 11 Years Old

Wow! Not only is my neighborhood crawling with felons, but they are all from out of state – none of these convictions make any sense at all under Texas law. I’m about to fire off an email to the Listserv saying I doubt the veracity of this site, and while writing it, I click back again so I can list off some of the supposed convictions.

Voila. Now living dangerously close to me are folks convicted of:

  • Intimidating a Victim in the First Degree
  • Attempted Promoting a Sexual Performance by a Child
  • Unlawful Imprisonment in the First Degree
  • Aggravated Sexual Abuse in the Fourth Degree
  • Attempted Sodomy in the First Degree

Well, I’m glad all those bad guys living nearby moved out – and that it only took them 10 minutes or so to do it – but it’s a little odd that more bad guys moved in so quickly.

Just makes you wonder whether or not a credible private investigator might be able to figure out what’s going on here – even if they weren’t intimately familiar with the exact names and degrees of offenses in Texas. (If it need more explanation at this point: FelonSpy just randomly takes peoples names and ages and makes up offenses and ‘degrees’ and superimposes them over some sort of Google Map near your neck of the woods.)

By the time I had amused myself playing around with the site, several people had replied already. Someone pointed out that the site already had a listing on My favorite comment came from one of the best criminal defense lawyers in Austin, Gerry Morris:

Is there a web site where I can go to make sure I don't live next to anyone who spends time looking up information about their neighbor's criminal histories?

Would You Like That in $100 Bills?

Maybe if it had only been $360 million dollars they wouldn’t have noticed.

Mission Accomplished

"In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country."


On Being Anti Anti-Gay

Make no mistake: I’m not asking for kudos on this subject. I’ve long since passed the age of ‘grown man’ and probably should have been more vocal about it in the past. And I’ve too often let it go. But I’ve taken recently to openly confronting friends and casual acquaintances when they express themselves in ways that are ‘anti-gay’.

Just for context, we’re not talking about ignoring open hostility towards homosexuals, or expressing disgust at morons who use slurs and ugly epithets hoping that the listener expresses tacit or silent approval. You don’t see - or should I say ‘hear’ – that often, at least in Austin.

Austin is the only Austin in Texas. We are weird, for Texas – and that includes being less anti-gay than the rest of Texas.

A quick example.

Went to lunch with a couple folks awhile back, criminal defense lawyers, and somehow the subject of Gay Marriage came up – don’t remember how. Two distinct attitudes popped up:

  • Hate the sin, love the sinner (but I’m not a bigot)
  • ‘Gay Marriage’ isn’t about rights for gays, it’s about ‘legitimizing’ the gay lifestyle

I purposely started inserting the phrase ‘anti-gay’ into my responses to describe their views. Quick sidetrack: the purpose of phrasing it that way was (a) deliberately confrontational and (b) meant to make them feel uncomfortable. It worked.

‘Hate the Sin’ started insisting that he was not anti-gay. In fact, as a good Christian, he had formerly lived with gays, had friends that were gay, blah blah blah. He then went on to give me an analogy that would help me understand how not anti-gay he was:

  • I’m against theft… but I defend thieves
  • I’m against crack… but I take POCS cases

Exactly! You aren’t pro-theft, but you think everyone deserves a defense. You also think imprisoning drug addicts at taxpayers’ expense is stupid, and you defend possession of controlled substance charges, but you wouldn’t recommend smoking crack to your friends or family. That makes you…

  • Anti-Theft and
  • Anti-Crack

Uh, so am I.

But Mr. “Hate the Sin” - if that’s your analogy for this conversation, then accept that you are anti-gay. Perhaps the description makes you uncomfortable, but you proved why it is dead on accurate. Some people are anti-theft and anti-crack. You are anti-theft, anti-crack and anti-gay. Your analogy makes no sense otherwise.

Actually got a little worked up writing that. I’ll have to post later on Mr. ‘Gay Rights is just a Cover for Legitimizing Homosexuality’.

Tags: ,

Retracting False Accusations

From an anonymous commenter (Revised for spelling, punctuation and all caps; comment since deleted):

I called the police on my boyfriend and said he hit me with a gun which never happened. I was mad and I wanted him to go to jail that day.

But now I feel bad for lying and I want to tell the truth but I don’t know what will happen since I lied to the police.

Please help me and tell me what I should do.

If you were meeting with “Criminal defense lawyer Jamie”  I would probably be under an obligation to tell you that you are subjecting yourself to the possibility of being charged with False Report to a Peace Officer by stepping up to the plate and admitting your lie.

Prosecutors routinely threaten to file such charges against complainants (I refuse to call them victims) in assault cases when they “change their story”. In actuality it almost never happens.

In over ten years of practicing criminal defense, I’ve had the occasional false report client, but I’ve never seen one for this particular situation – that is, for taking back an accusation of assault. But as your lawyer, I might feel obliged to advise you to shut up. And at the very least, I’d warn you of the possible consequences, and have you balance that with your need to assuage your guilt.

But here’s the thing. I’m not your lawyer, and this isn’t legal advice, it’s “be a decent human being” advice:

Go to the police, the prosecutor, and your boyfriend’s lawyer – and tell each and every single one of them that you falsely accused him. If his lawyer is worth anything at all, he will have you sign an affidavit to that effect.

He is in a heck of a lot more trouble than you are, or probably ever will be, but more importantly, it’s the right thing to do.

But then, you already knew that, didn’t you?

Crooks Talking to Crooks

From Grit’s ‘Statesman Late to the Stop Snitching Party’:

In the Austin Statesman today, Joshunda Sanders has a story informing us, "'Stop Snitching' sentiment spreads to Austin," and I'll expand here on comments I left under her story on the newspaper's site.

First, three years ago after I began writing about this topic, a friend bought me a "Stop Snitching" t-shirt from a vendor here in Austin. I don't wear it much, but I've seen the shirts here and there ever about town ever since. So why do we now we get a story saying the sentiment is "spreading to Austin"?

The article quotes almost exclusively police sources, including one bizarre claim that's blatantly, patently false: "The word 'snitch' gives [police] pause”, writes Sanders, "'The only people who call it 'snitching' are crooks talking to crooks,' said former Homicide Commander Harold Piatt with the Austin Police Department, who is now retired."

Actually, the reporter unintentionally reveals how untrue the policeman’s claim is. From further on in the article itself, a witness tells her:

"People always say 'don't snitch' out here," she said, "But you should snitch because cooperating with police can help you keep your community safe."

Let’s apply the ‘crooks talking to crooks rule’.

The witness uses the word ‘snitch’.  So… she’s a crook. And she’s talking to the person writing the article. Also a crook.

For a prosecutor’s viewpoint on the article, see Steanso for more substantive – by which I really mean less smart alec - commentary.

Update: Another example of crooks/journalists using the word snitch. H/T: Dallas Criminal Defense

False Advertising

An attorney advertises (in one place) that his ‘specialties’ include ‘criminal motion practice’ and then posts this to a general someone-please-answer-my-question site:

What are some of the standard pre-trial motions attorneys file in criminal cases?

Most of my court-appointed cases usually end up with a plea deal at the preliminary hearing, or the DA and I work out a plea before indictment (PBI). However, I have two cases where my clients are refusing plea deals, and we are headed to trial. Both have been indicted.

I am aware of the standard "Brady" motion; but are there others which are useful?


I can’t decide whether to post a link to where I ran across this tidbit. I’ll take a poll in the comments section. Should I or shouldn’t I? 

Hiring a Jerk to be Your Lawyer

Blogging lawyers in Houston and Forth Worth are posting back and forth on which is the superior quality to be found in a criminal defense lawyer: empathy or ruthlessness.

Thought about jumping into the fray, but why rewrite my thoughts when I can cut and paste? Last year from one of my own posts “Are You An Aggressive Defense Lawyer?”:

One of the main buzzwords you see on even the best criminal defense lawyer websites is the phrase “aggressive defense”. I guess this either sounds good, or more likely, whoever wrote the website for the lawyer thinks it sounds good. Either way, I don’t call myself an aggressive lawyer.

On the contrary, I go to great lengths to be courteous and well mannered. In the initial negotiations stage of a case, the prosecutor has a great deal of leeway to potentially offer a better than average deal (which is what all of my clients are seeking). Why would they bend a little if the lawyer in a particular case was acting aggressively?

Potential clients who want their lawyer to act like the guest star on Law & Order don’t have a real firm grasp on their situation in the first place. If I truly have the upper hand when it comes to the law and the facts (and that does happen occasionally) there’s still no point in my coming into the prosecutor’s office and yelling and screaming at them. Or whatever it is that being aggressive or ruthless means.

I’m not perfect by any means. The courtroom can be a frustrating place, and lots of times I have to swallow my ego when some prosecutor is yelling at me about all the terrible things my client is accused of. I’ve been known – on occasion – to lose my temper.

But that usually leads me to the realization that I haven’t done my clients many favors.

For me the appropriate buzzword here is: competitive.

I don’t like to lose; whether it’s chess, poker, or my client’s case, I want to win. Sometimes (often?) a win is convincing a prosecutor to dismiss or reduce a case – perhaps in return for the client doing some community service, or an alcohol or drug awareness class – that the State could take to trial and likely get a Guilty verdict.

Sometimes a win is having that pretrial motion to suppress even though the prosecutor insists there are no legitimate issues. (A) You might actually win it and (B) it may bring out other problems with the State’s case; for example that the police officer makes a terrible witness.

Sometimes it means taking the case to trial.

There’s probably a reasonable argument that doing those things listed makes you aggressive/ruthless/substitute-your-favorite-adjective here. Perhaps it’s just a matter of semantics.

But I’ve seen plenty of lawyers come in to talk to a prosecutor about a case, and behave like first class jerks. It’s actually the exception not the rule. (The rule is that civil lawyers are not at all civil, while criminal lawyers usually are.)

And whenever I see someone touting themselves as “aggressive” that’s the image that comes to mind.


A Picture is Worth a Thousand Words


Still not commenting, just linking to the story.  And a hat tip to Radley.


Abhorring the Polygamist 'Lifestyle'

OK. Let’s start with the caveat: I frequently feel the need to couch what I’m saying with an offhand phrase that is meant to deflect illogical criticism.


How about… “Sure Saddam is a bad guy, but that doesn’t justify invading a country blah blah blah.”

Or… “Drinking and driving is a bad idea, but the so-called field sobriety tests don’t measure intoxication and therefore blah blah blah.”

The real purpose behind this conceit is literally to pre-acknowledge the listener’s unjustifiable reaction to the statement, and to focus them on the point you are trying to make. I don’t want to get into an argument about whether Saddam (or DWI) is ‘bad’, but I know that may be the illogical response to what I’m saying, so I attempt to head it off at the pass. Guilty as charged.

Now on to Eldorado. In response to Grits’ outcry that not enough Texas lawyers have weighed in on the fiasco, No Friends With Salad posts:

As much as I might abhor the polygamist lifestyle, as much as I might have an unsubstantiated hunch that something's wrong there or that a crime has been committed, it don't mean jack.

The true measure of a democracy is how the government treats politically and socially unpopular groups. Texas, we have failed in this regard. [Emphasis added]

NFWS makes good points in other part of the post, but honestly, why does anyone care about someone else’s ‘polygamist lifestyle’?

I’m probably overreacting to the word ‘lifestyle’. To me, that echoes what I hear when someone talks about the gay or homosexual ‘lifestyle’.

Huge difference between them of course. Primarily, being gay is not a choice (or as Fox News likes to call it a ‘lifestyle’). Of course engaging in homosexual acts is a choice – in the same way that engaging in heterosexual acts is a choice. And as long as both participants are lucid and consenting, you don’t need a criminal defense lawyer.

But having homosexual feelings, i.e. being homosexual is not a choice. (For those too stupid to understand the distinction – let me ask you this: In Sixth/Seventh Grade, did you have ‘feelings’ for both boys and girls, but because you are uber-moral you only chose to act out on the ‘feelings’ you had for the opposite sex?)

However, choosing to have multiple wives is… a choice. FLDS members may see it as God’s directive to them, but they are still choosing to live the way (their understanding of) God wants them to.

Also, I personally know the anonymous blogger NFWS, and doubt he cares about polygamy. And I can actually prove his pro-gay (or is that anti-anti-gay) bona fides

So, to recap

  1. I too sometimes try to preempt illogical criticism with a throw away line (and maybe that’s what this is)
  2. I’m hypersensitive when I hear someone describe someone else’s ‘lifestyle’, because it’s sometimes a pretext for bigotry or ignorance
  3. NFWS has – in my book anyway – unquestionable tolerance for others


Why would anyone take the time to care about, much less abhor, someone else’s polygamist lifestyle?  What difference does it make to you?


The Amount of Thought That Goes Into Passing a Law

A legislator in Arkansas decides to write a law that doesn’t allow anyone under the age of 18 to get married, unless they are pregnant and have their parent’s permission. Let’s skip discussion of whether what they intended is a good idea, and take a look at what they actually did.

Here is the text of the bill as submitted:

In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage.

The bill passed as is.

Anyone see any problems?

[HatTip: Set in Style]


The Defense Expert: Paid Testimony

In “False Accusations and Self Inflicted Injuries” Florida defense lawyer Ron Chapman tells the story of a case where his client’s wife accused him of cutting her wrists with box cutters. I don’t know Florida’s penal statutes but that’s aggravated assault with a deadly weapon in Texas – 2nd degree felony – punishable by 2 to 20 years.

The accuser is in the midst of divorcing Ron’s client, has a history of mental health problems, and – oh yeah – insists he didn’t do it. So Ron hires an expert for a scientific opinion: 

I sent the photographs of the wife's injuries to a forensic pathologist who immediately concluded that they were self-inflicted.  When I told this to the prosecutor on the case (and to his boss), both dismissed the expert's conclusion.  The case proceeded to trial.

At trial the jury (aided by the forensic pathologist's testimony) concluded that my client was not guilty of any wrongdoing.  After the trial, several of the jurors asked me why the case had not been dismissed by the prosecutor since the woman's injuries were clearly self-inflicted. 

I have since wondered why experienced prosecutors could not see what was so obvious to those jurors who had no training in the law.

I’m guessing it’s a knee jerk reaction by a prosecutor who thinks “paid testimony” is automatically – I don’t know – perjury? That the defense lawyer can just pay any old scientist to come in, swear falsely in an affidavit, testify under oath to whatever the defense needs… for the right fee.

If only they would apply that same logic to snitches. There’s no difference really – except that a drug addled felon with a history of crimes involving moral turpitude looking to save himself some time in the pen might be more willing to lie than some professional who is simply accepting fair compensation for his services and rendering an expert opinion.

Never mind. There I go talking like a crazy defense lawyer again.

Enclosed Please Find Requested Enclosures As Requested

A while back on his legal writing blog, my former teacher Wayne Schiess asked:

What legal words or phrases would you like to banish? They can be archaic, offensive, baffling, weasel-like, or hyperlegal.

This may be cheating, because it’s not a word or phrase, but I’d like to see all the overly flowery stuff go. Just say what you mean.

“Comes now the Defendant…” “In the above entitled and numbered cause..” “Before the commencement of trial…” “Wherefore premises considered…”

OK. I got those from one of my own standard motions, so maybe I could use some help in this regard. You know - motes and beams. But I’ve seen much worse, especially when I accidentally come across civil lawyers’ writings.

Reminds me of when back in the 80s, while pursuing an undergraduate degree at Texas A&M University, I worked at several jobs to help pay my way through school.  At one ‘student job’ the director of the place I was working for needed to send something – I don’t remember what – to someone.

I do remember the entirety of the letter she had me type up to send along:

Enclosed please find requested enclosures as requested.



A seven word sentence, with two different words or concepts repeated.   That’s got to be some sort of record. “Here’s that stuff you asked me to send you” gets the point across – and won’t have your reader tied up in knots laughing at your pomposity.

Re: Not Commenting on Eldorado

Skimming law related posts on my RSS reader and I think to myself I should answer Grits’ question: “Why haven’t blogging lawyers weighed in on the Eldorado arrests?

Fair question.

But instead of posting immediately, I keep skimming. Darn it. I should know better. New York defense lawyer Scott Greenfield has already answered. And now I can’t pretend I came up with this response independently (even though I did). With ellipses:

The easy answer is that this entire affair is so fundamentally foreign to my experiences that I really don't know what to make of it…

As the Texas prosecutors will argue that all children should be removed from their parents, I tend to think that this blanket approach is not merely overkill, but harmful to the majority of the children.  Children need parents, and it hardly serves them to put them in foster care if there is no real threat to their safety.

But without having a firm understanding of what this really means, it's impossible to take a meaningful stand on this case, or to offer any insight that would be worthwhile…

The reason that this blawg hasn't had anything to say is that I just don't have anything to say.  Maybe I will once I have a better grasp of the situation, but until then I'm going to do the most helpful thing I can.  Remain silent.


That’s what I need to be able to comment on this story. The real facts. The complete facts. And the MSM isn’t going to give them to me.

I know from experience that when the newspapers and other media get involved in covering criminal cases they don’t just intentionally distort the salacious and outrageous aspects; more often they are justifiably criticized for just plain missing the point.

What do we ‘know’ from the media so far?

  1. They are polygamists. (A crime in Texas.)
  2. They lived on a compound. (Means they lived ‘in a house or houses’ but sounds more ominous.)
  3. They molest children. (According to the still unidentifiable and anonymous complainant.)
  4. They are associated with convicted felon Warren Jeffs. (The most verifiable of the media allegations.)

One of these things is bad (child molesting); one is a crime that I don’t particularly care about and never comes up in my practice (polygamy); one is essentially a variation of an ad hominem attack (‘They’ know someone bad); and one is semantics (‘compound’ vs. ‘not homeless’).

But wait. There are important legal principles at stake here on the libertarian side of things, namely:

Just how long can the state remove hundreds of children from their mothers before they have to

  1. Give them back or
  2. Prove something (anything) about being an unfit parent?

Not exactly a criminal defense question, but it touches on issues such as government intrusion on citizens’ personal rights, so it's close.

Well, as the Supreme Court likes to say when they can’t really figure out how to make black letter law: it’s probably got to involve some sort of balancing test.

And to balance properly, I still need… facts. Not allegations, facts. I don’t have them – yet – possibly never will.

And so, here endeth my longest ‘No Comment’ ever.


Improvisational Blogging: The Austin Edition

So, I read Houston defense lawyer Mark Bennett’s post “Lanyard Nation” and I thought to myself, “Wow! That’s quite the post. I wonder why he got so worked up about various issues.”

Then I remembered his “Improvisational Blogging” post – he had thrown out a few saved titles of unwritten posts, and challenged his readers:

Here’s the deal: pick a title and suggest three or four words or phrases (PG or G rated, please) for me to use in the post. Write a comment. I’ll write the post, incorporating the words or phrases, and you’ll grade me.

So “Lanyard Nation” was actually inspired by Mark Draughn, the best Chicago blogger out there. And the best New York defense lawyer’s challenge was answered in “The Commerce Clause”. Well done.

I’m not going to be able to beat Bennett at his own game – but I do have this in common with him: I have a ton of half written but fully titled posts saved in my “Blog Post Ideas” folder. So I’ll give it a shot. Here are the titles of the future posts, same rules as Bennett’s. Three or four words or phrases suggested from you, and I’ll do my best to publish the post soon with your suggestions incorporated.

  1. Snitching: The Bible Version
  2. 20 Years for Crack Pipe Residue
  3. When I Paint Horse Thieves
  4. Why You Should Let the Police Search Your Car

OK. That’s enough for now. I’ll admit to tossing out the ones that potentially give me the most leeway – but these were all criminal defense related (in my mind anyway) when I started. 

I’ve got 6 or 7 times more unfinished posts, but for example “Value Ladder for Theft” is just too pedestrian for me to reasonably stick random words in, and “Losing an Uncontested Competency Hearing” is a true story that needs no embellishment – even if it does have a surprise ending. Another one, “No One is Heir to the Living,” was a favorite phrase of my second year Wills & Estates professor, but unfortunately all I’ve got is the title saved and no memory of what in the heck I was going to say about it.

Or maybe I’m just chicken. At any rate, let’s see how these first four turn out.

Fire away.


Running a Marathon: Advice Wanted

Just finished watching Nova: Marathon Challenge on PBS, and I’ve decided to do something stupid exciting. Well maybe two stupid exciting things.

  1. I’m going to run a marathon before I’m 40
  2. I’m going to announce that intention publicly on this blog – mostly as motivation to help me stick with it. I’m not sure which of those two is more stupid exciting.

The official date of the AT&T 2009 Marathon in Austin hasn’t been decided yet, but this year’s was in February, so that might be a good one to aim for. The 12 previously unprepared and frankly unfit runners in the NOVA program trained for 9 months, and 11 out of 12 started the race – with each of those 11 finishing. So that would potentially give me enough time to train – more than they had anyway.

And February sounds better than any other time in Texas to run a Marathon, so that’s a plus as well. Next fall might be cool enough but would be too early. And summer 2009 I hit 40.  So next February is perfect.

Perhaps I’ll do monthly progress updates as well. No wait. This is a way to challenge myself into actually doing this. I will give monthly updates on the blog.

As far as advice – anyone out there gone from “not 100% fit” (as I like to think of myself; trust me there are less flattering ways of describing it) to running a marathon in about the same time frame? Any advice from any runners out there?

I’ll probably Google a bit more about it tonight… and then tomorrow I’ll do what any self respecting sedentary person would do in my situation…

I’ll hit the bookstore. This is Austin. There’s got to be a ton of books for me to read on “How To Train For A Marathon”.  I wonder if there’s a Clydesdale edition.

Why Does the AARP Keep Sending Me Mail?

I don’t even turn 40 until July 2009.

According to Joan Rattner Heilman, I’d be “crazy not to join AARP” as soon as I turn 50. Even if that were true, wouldn’t I be just as crazy to start paying dues more than a decade before I’m eligible for membership?


Criminal Defense Ethics: The Opposite of What Would Jesus Do?

Western Justice has a post up titled “How to Pass the MPRE: WWJD ≠ WWLD”. Right off the bat, the title of the post is amusing.

For the non lawyers, the MPRE is the lawyer ethics portion of the overall Bar Exam that must be passed before you can be licensed to practice. WJ is claiming that to pass the ethics exam, first figure out what “What Would Jesus Do?” – and then mark the opposite answer to pass your legal ethics test.

It’s a lawyer joke. And actually, if it were left alone, or perhaps well supported, it might still be funny. But then WJ tries to back up the joke. (N.B. Jokes are never funnier when they have to be explained.)

So our anonymous prosecutor gives us an example:

Johnny confesses a crime to you. The elders of the community wish to know who has committed this horrible sin. Johnny wishes to keep his sins secret from the community, and confess to nobody. The elders, however, wish to get to the bottom of the matter and find out who is guilty of this heinous sin. What do you tell the elders regarding Johnny's confession?

Let us start with the first part of the equation: WWJD. Well, I cannot speak for all Christians and followers of Jesus' teachings, philosophy, and religion, but I can safely assume that in that situation, Jesus would convince Johnny to confess to the elders. Now, let us finish the equation: ≠ WWLD. The opposite of that is to not tell the elders and the people of the community that Johnny has committed the unpardonable sin. Furthermore, you, as his lawyer, should convince Johnny not to say anything about his sin--not to you, not to the police, not to anybody.

Now I’m not holding myself out as a biblical scholar, but I know enough about Christianity to know this is hogwash. It just feels like faulty analysis. Jesus hung out with prostitutes, lepers, adulterers, thieves, tax collectors – in other words: sinners and outcasts. If the War on Drugs had started 2000 years ago, he would have been in the alleyways with the drug addicts. And I certainly don’t recall any passages about him being a Narc of any sort – no matter what crimes (sins?) you were committing.

So I called my resident Bible expert/fellow attorney Steve – he who helps build and maintain his Church by day, and supports himself by moonlighting for sleeping lawyers and doing their jail releases at night – and I ask him: Does the bible say anything about priest-penitent privilege? Sounds like a Roman Catholic concept, but is there some quote from Jesus, some Bible passage that I can use to counteract this seemingly counterintuitive example?

Never one to disappoint, Steve tells me he has referenced Jesus as the “first criminal defense lawyer” in sermons. He quotes the First Epistle of John Chapter Two Verses 1-2:

My little children, these things write I unto you, that ye sin not. And if any man sin, we have an advocate with the Father, Jesus Christ the righteous:

And he is the propitiation for our sins: and not for ours only, but also for [the sins of] the whole world.

Of course. This is the basis of Christianity itself. Sinners (i.e. all of us) have an advocate with the Father. Confessing your sins to Jesus and repenting through him – not the Pharisees – that’s the path to eternal salvation. 

Jesus is the ultimate defense attorney.

WJ, your ‘safe assumption’ has no basis in scripture.

Coming Soon (to a criminal defense blog near you): Jesus, the adulterer, the accusers, and casting the first stone.

Police Officers and Public Officals Getting Traffic Tickets? That Wouldn't be Right...

From the Orange County Register “Special license plates shield officials from traffic tickets”:

Vehicles registered to motorists who are affiliated with 1,800 state and local agencies and who are allowed to shield their addresses under the Confidential Records Program.

An Orange County Register investigation has found that the program, designed 30 years ago to protect police from criminals, has been expanded to cover hundreds of thousands of public employees – from police dispatchers to museum guards – who face little threat from the public. Their spouses and children can get the plates, too…

The confidential plate program shields these motorists in ways most of us can only dream about:

•Vehicles with protected license plates can run through dozens of intersections controlled by red light cameras and breeze along the 91 toll lanes with impunity.

•Parking citations issued to vehicles with protected plates are often dismissed because the process necessary to pierce the shield is too cumbersome.

•Some patrol officers let drivers with protected plates off with a warning because the plates signal that the drivers are "one of their own" or related to someone who is.

I'm waiting for Austin's red light camera blog to weigh in on this one...

[Update: Thanks Grits.  I'm sure that's what I would have said about this, had I done more than just cut and paste...]

Is Al Gore Finally Throwing His Hat in The Ring?

So the ad on Technorati read:

Does Your Teen Show Any of the Following Signs:

  • Interest in music of the occult [check]
  • Wears excessive amounts of black [check]
  • Interest in music of the occult [check]

Become a PARMM member and save our community before it’s too late…

Parents Against Reprehensible Metal Music

So I was amused – and 99.9% sure it was some sort of a joke – but I clicked it anyway.

Turns out, Tipper is not headed back to the White House. It’s apparently an ad for the Toyota Matrix – marketed as some sort of dark-side Corolla

But since this blog is in part about protecting ourselves from government intrusion, how about an oldie but a goodie? Frank Zappa vs. some guy defending the ‘Parents Music Resource Center’ on Crossfire – from the Tom Braden/Robert Novak years:



March 19th Iraq War Blogswarm

Warning: Somewhere between 95-99% off topic post coming up.

I get emails from various folks asking for backlinks to their blogs on a semi-regular basis – not that I mind them, if you are pointing me to something with good content, I may subscribe by way of RSS, and if you have good content relevant to mine, I will probably point to your posts in an upcoming post of mine.

By the same token, if you have no real original content – and the people I’m talking about know who they don’t – please refrain from spamming me.

In the meantime, and definitely off topic, or at least not very criminal defense related comes the March 19th Iraq War Blogswarm project. Those looking for backlinks to their blogs need merely write a post this Wednesday and they will get that oh-so-coveted backlink. (The page is fairly new, and thus shows no Google PR for now, for those who care about such things, but I think the fact that it’s been up one month and already shows 863 backlinks means it’ll have some Google juice.)

The blog authors even give folks ideas about what to write:

Here are some things you might want to consider if you are having difficulty making up your mind (on what to post about):

  • Attend an anti-war event and report on it.
  • Interview military families and veterans.
  • NEW IDEA: Blog reactions to Pacifica's Live Radio Coverage of the Winter Soldier testimony by Iraq Vets would be of great interest. Coverage from the event in Washington, DC would be great too. This event deserves all the coverage it can possibly get.
  • Examine current plans and the rather shadowy oil laws as well as long term military bases.
  • Compare and contrast candidates stated intentions on what they claim they will do with their records.
  • Publicize online action alerts by pro-peace organizations.
  • Discuss the economic impacts of the war on people in Iraq and/or western countries.
  • Discuss the casualties on both sides.
  • Explore issues and impacts often ignored by most media outlets.
  • Analyze war propaganda.

I’ve got my own ideas on how to make my post relevant to my ‘niche’ – but I’m going to keep that to myself, for now.

Congressional Work Schedule

So Congress had its first closed session in 25 years last night, and the poli-blogs are a buzzing.

I happen to be in D.C. the latter half of this week, and the focus on how Congress works reminded me of a recent series of emails. On Tuesday, since I was coming to Washington the next day, I sent an old college buddy who works for Congress an email asking if he’d want to meet up at some point.

He replied, in part, “I might be able to skip out a little early Friday if we are not in session or go on the Capitol tour if you take one.” I wrote back:

Um, I guess this is a curiosity question more than anything else, but…

It’s Tuesday and you don’t know whether Congress will be in session on Friday?  Geeze, what are we paying these guys for?  Do they get up every morning and do a big conference call at 7 a.m. to ask themselves whether to show up on a day by day basis?

(I’m sure my question reveals my ignorance about the subject.)


The answer?

Yep, no idea. Depends on how much work gets done. They are not usually in on Fridays, but since they are on the eve of a two week recess (or district work period as some prefer), they can’t leave before doing some work. The threat of a Friday work day usually helps them finish on Thursday – (kind of like telling kids they can’t go out and play until they finish their homework.)

So, members of Congress are just like you and me -- instead of working late on Friday to get things done, they just decide not to work on Friday at all before taking a two week vacation.

I guess I’ll find out later today whether that closed session last night wrapped everything up, or whether it pushed their schedule back, forcing them to actually work the whole 5 days this week.


If I Give A Quick, Short Answer...

…doesn’t it have to be the Golden Rule?


Referring to the State as the Government in Trial

From the end of a post by Houston Defense Lawyer Mark Bennett:

Astute prosecutorial readers will note that in the last paragraph I referred to "the government" rather than "the State." This is another illustration of the point. "Government" means roughly the same as "State", but "government" is a word toxic to the State. Even people who are inclined to trust the State, or the Commonwealth, or (lie of lies) "the People" find good reasons in their life experience not to trust the government.

Reminds me of a story told by Austin defense lawyer Bill Allison. Bill heads the University of Texas Criminal Defense Clinic (where as his student I first heard this anecdote many years ago) and also the UT Innocence Clinic. Among his many achievements is representing Christopher Ochoa, who was finally released after a wrongful conviction.

Bill had finished up a fairly lengthy trial in federal court, at least several months, where the government is referred to as “the government”. Soon after that, he was trying a Possession of Cocaine case (or something like that) in State court, where the tradition is to refer to the prosecutor as “the State”.

Mostly out of habit, he just kept saying “the government this” and “the government that” until… the prosecutor actually objected to being called “the government”. The jury apparently looked bewildered at this; and seemed somewhat amused when Bill changed gears slightly and referred to them as “the State government” for the rest of the trial.

It’s a practical illustration of Mark’s point. “Government” is essentially a dirty word to many jurors, especially in Texas. May as well use it from voir dire to closing.

APD: 5 Days for Fishing, 10 Days for Assault

Austin Police Department has suspended an officer for 10 days, ostensibly for excessive force:

Detective Joseph Lorett has been suspended for 10 days after video from another officer's car shows he kneed the suspect, who was facedown, in the head and used profane language.

"What I seen was more force being used than necessary and that was my biggest problem there," said Assistant Chief Sam Holt. "We tell our officers to treat people the way they want to be treated, and under normal circumstances, profanity is not something we would normally use."

Thus my use of the word ‘ostensibly’. See how they try to soft peddle this incident as… just ‘using profanity’? And, from what I can tell, swearing at someone (as you assault them and send them to the hospital) breaks the Golden Rule.

More from the MSNBC story:

Other officers on the scene described the suspect as "cooperative" and not resisting arrest. The videotape shows one officer attempting to handcuff the suspect when Lorett approaches and knees the man in the face. As a result of the incident, the suspect required hospital treatment and suffered facial and orbital fractures. [Emphasis added]

"From what I could see (on the videotape) at the time (the suspect) was hit, he had moved his arm, and that may have given the officer the reason to believe he needed to use his knee," Holt said.

Ridiculous. It’s not even soft peddling; it’s just making up excuses. If the officer was justified in using the force he used, then he was justified. (Tautological, I know.) So then don’t suspend him. 

On the other hand, if the allegations are found to be true – enough say, to support a suspension –then 10 days is less than a slap on the wrist. Anyone doing this while not wearing an APD uniform gets indicted for Aggravated Assault.

What would a reasonable punishment be? Let’s see. This same officer was previously suspended for five days for fishing on the job

Hmmmmm. Assaulting an unarmed civilian with no provocation is twice as bad as ripping off the taxpayers.

You know what? Now that I’ve bothered to type this all up… I’m thinking it’s time for an open records request. More on this later.

Giants Upset the 'Unbeatable' Patriots; Criminal Defense Lawyers Everywhere Celebrate

(…well, some of them may be celebrating more than others, depending on how close they practice to New York, but I digress…)

The New York Football Giants beat the (previously) unbeaten Patriots tonight in Super Bowl 42. Great game especially measured by Super Bowl standards – they’re usually blowouts.

And a doubly great game for anyone that’s a fan of underdogs. And criminal defense lawyers, by their very nature, have to be fans of the underdog. After all, the deck is stacked against us.

  • We are up against an opponent with vastly superior resources (the Government).
  • The Presumption of Guilt is difficult to overcome.
  • Long story short, when the client walks into our office for the first time, we indeed are the underdog.

One of my favorite speakers at criminal defense conferences around Texas is Gerry Goldstein. He routinely gives what has to be the greatest pep talk to criminal defense lawyers at the Rusty Duncan seminar.

I won’t try to describe it; if you’ve heard it before, you know what I mean. It makes you want to go back to the office, grab all your files, look for the most hopeless case you can find and immediately set the thing for jury trial. To heck with pretrial conferences, and negotiations, it’s gonna be a Not Guilty.

Somehow, tonight’s game had a similar effect. My wife and I both had to suppress a spontaneous loud cheer (sleeping 18 month old twins just one room over) when Plaxico Burress caught that touchdown to put the Giants ahead in the final minute.

Neither of us are Giants fans. But there’s just something about underdogs.


Austin Police Not the First to Use Tasers

When an Austin police officer’s dashboard camera showed the tasering of a 5-miles-an-hour-over-the-speed-limit driver from Thanksgiving weekend 2006 it (fortunately) made the news. Eventually, the officer was suspended for three days. The official explanation of the suspension?

[The officer] did not display an attitude consistent with Department policy and did not comply with the Department’s policy regarding the use of a taser.

Electronic Village has the video of the incident. Salad wrote a lengthy substantive post on the subject. (Also see his views on a related new APD policy that helps cops to not perjure themselves in these types of situations.)

When folks see the reality of excessive force, they seem to have two instant reactions. First shock and dismay. Followed by the “One Bad Apple” reaction. It’s just one bad apple, and it’s a shame that radicals use these isolated incidents to sully the whole bunch. (Of course, all uses of excessive force are caught on videotape – just as all innocents are released from death row based on DNA.)

But how do these ideas get sold to police agencies, and the public to begin with? By pretending that only the bad guys get zapped. And after all, bad guys deserve it.

From the September 1935 issue of Modern Mechanix & Inventions Magazine:

Note the caption: “This glove looks innocent, but any criminal tapped on the shoulder with it would get a 1,500-volt shock.” [Emphasis added]

And speeding is, of course, technically speaking a crime. But I wonder… how does the glove automatically know not to zap a good guy’s shoulder?

Listening to the Client, Telling the Story, and Homework

In the context of criminal plea negotiations, one of the defense lawyer’s jobs is to tell the client’s story to the prosecutor in way that distinguishes him from everyone else that comes through that courtroom charged with [assault, theft, possession, etc.]

In the context of jury trial, the defense lawyer’s job is to tell the client’s story to the jury in a way that leaves room for reasonable doubt, or even provokes belief in actual innocence. Or maybe it’s somewhere in between. 

But you can’t tell that story to anyone, if you don’t listen to it when told to you by your client.

Susan Cartier Liebel recently asked “Do You Know What Questions to Ask Prospective Clients? Do You Know How to Listen To Their Answers?

In the course of a reasonable and effective initial consultation a good lawyer will be doing most of the listening asking mostly open-ended questions and periodically asking for specifics during the narrative for clarification on points that are key to deciding whether or not she wants to take the case. 

The only time there will be much talking on the part of the lawyer is when she is answering specific questions posed by the potential client, explaining the law as it may or may not apply to the client’s case or detailing representation. 

New York attorney Scott Greenfield chimes in with some specifics on this subject for criminal defense lawyers. First he notes that this particular niche in the law comes with its own peculiar twist:

In criminal defense, as opposed to other areas of practice, we begin with a bit of a handicap.  Our clients are not always the most articulate when providing us with information.  Worse still, they aren't always the most forthright.  Frequently, they tell us what they want us to know, to believe. 

Clients assume that if they give us their exculpatory story, it somehow makes their position real and causes all evidence to the contrary to disappear.  Of course, this can be the death of a viable defense, since their choice of ignoring evidence does nothing to help us in preparing a viable strategy.

Clients also assume that if they make themselves seem innocent, or at least more innocent than they are, criminal defense lawyers will fight harder for them.  This is a natural tendency, since no one wants to make themselves out to be bad people, but it's another stumbling block for the creation of a viable defense.  As I've written in the past, criminal defense lawyers don't (and shouldn't) care about guilt or innocence.  We don't judge, we just fight.  That's our job and we don't fight any harder for "innocent" people than anyone else.  I know it's hard to believe, but that's just what we do.

Ah, the Perry Mason effect. Earle Stanley Gardner’s fictional lawyer only took cases where his clients swore to him that they were innocent - despite being found with the smoking gun in their hand standing over the body. (At least that was the case for the TV series. In the novels, he wasn’t always so ethical picky.)

Yes, some clients believe they must convince their defense lawyer of innocence first… or else he won’t be able to convince anyone else of the same thing. Or he won’t take the case.

This is actually one area where I find that the typical bias against defense lawyers is actually helpful. After all, which one of us hasn’t been asked by friend, family and stranger alike, “How can you defend guilty people?”

When I sense, let’s call it a ‘hesitance to be completely forthright,’ I’ll mention that I’ve been practicing for over ten years, and that they are going to have to try a lot harder than the facts of their particular case to offend me. And I throw in, “of course I won’t tell anything to the judge or the prosecutor that you tell me, unless it’s something that helps your case.”

Unashamedly announcing that you gladly defend the guilty as well as the innocent (and those in between – there are some) can help a client loosen up. Isn’t that what criminal defense attorneys do?

Scott’s post ends with an excellent observation:

While criminal defense lawyers like to believe that we pay careful attention to our clients, listen to them, and hear what they are telling us, we come to recognize after the fact that we missed something, or got something wrong just a little too late.

Listening to what our clients say, and what our clients mean to say, is a crucial component of our job.  Take the time, put aside the attitude, and pay real attention to the client.  We want to go into battle with our weapon fully loaded, and facts are the bullets.  Listen to your client and be well-armed.

Agreed. In this regard, I give my clients homework. By ‘homework,’ I mean things they can start doing now to help me help them increase their chances of the best possible result.

And one part of that homework, no matter what type of case, always includes writing out a narrative of events. Sure, I can listen as long as they want to talk; and I can ask them all the questions I know to ask. But details will invariably be left out. Very often important details. So at the end of the initial consultation with a prospective client, I ask for a narrative of events.

Go home, turn off the radio and the TV, and give yourself some quiet time. Write me out a narrative of everything that happened. Start it wherever it needs to start. In a DWI case, for example, that might include “I only got 5 hours of sleep instead of my usual 8, because of X, Y & Z.”

Do it sooner rather than later, because, as convinced as you are right now that the memory of this arrest will remain permanently burned into your consciousness, the truth is that memory fades.

More on homework later. But actually writing this out has made me curious. Drop me an email, or leave a comment if you are a criminal defense lawyer and you have more ideas on listening to or receiving the story of what happened from the client. There’s always room for improvement.


Solo by Choice: How to be the Lawyer You Always Wanted to Be

When Carolyn Elefant speaks, I for one listen.

I still remember the thrill of getting a link from Legal Blog Watch, when she referenced my post about Jeffrey Skilling’s sentence. It was the first of the ‘big blogs on the block’ to pick up on any of my scribblings.   And amazingly, I had been blogging about 5 minutes. Seriously, I think it was less than 5 days.

She also authors the MyShingle blog (and is a recent LexBlog convert to boot) where she writes about, inter alia

  • Showing lawyers ways to practice more profitably and efficiently,
  • Increasing competition in the profession and access to law by helping lawyers start their own law firms that can compete and thrive in the 21st century and
  • Inspiring lawyers who dream of going solo, or who are unhappy working for others to start a firm and find the personal satisfaction that previously eluded them.

Well, like most criminal defense lawyers, I already am a solo practitioner, but I knew when her book Solo by Choice was announced that I would want to read it. And then, for some reason I forgot to order it. 

Recent reviews by Simple Justice and Chuck Newton reminded me to do so, and I have. ‘It got rave reviews’ is an overused phrase, but their posts have me looking forward to its arrival even more than I would have otherwise.

I got the Super Saver Free Shipping, so it’ll be more than a week before I read it and post a review myself.


Barack Obama Wins South Carolina Primary

Criminal defense lawyer blogging might seem a logical place to launch frequent partisan political conversations; yet I have rarely, if ever done so. Trust me: it’s not that I fear my political views might alienate clients… after all, in Austin, Texas a defense attorney could anger all the Republicans in town and still do quite a healthy business.

It’s that generally speaking, I don’t find candidates of either party addressing issues that concern me professionally, or folks that become my clients. Or perhaps it’s that they don’t address those concerns in a positive way. Let’s all be ‘tough on crime’ right? And to heck with those pesky amendments, and that ole Bill of Whatever. That attitude comes in spades from both parties.

And tonight’s not necessarily different, except that it’s Saturday night, and frankly I don’t care if this post is a little ‘off topic’.

I was thrilled to see Barack Obama win tonight’s primary, and I wish him well on Super Tuesday. I’m old enough to be well outside that youngest ‘under 30’ demographic that supports Obama the most. But I must be young (and foolish?) enough to embrace his message, and the message that his potential election would send to the world.

Iowa was a surprise, but New Hampshire a bitter disappointment, especially considering the pre-election polls. I was worried after New Hampshire that the rumors were true. America wasn’t ready for a black President. Never mind that he’s the best candidate. Somehow, we just aren’t ready. Depressing.

Well, back on the bandwagon is the wrong way to say it, because I’m no newcomer to the Obama movement. [See my previous letter to the editor in the New York Times defending him against accusations in Maureen Dowd’s column. And for those wishing to make sense of it… NYT Select subscribers can read the original column here; non subscribers here.]

But I am back to being somewhere between depressed about America, and euphoric about tonight’s results. As Obama himself said in his victory speech, it’s a tough road ahead. But it’s back on track, and that’s the first step.

Other Austin Texas blogs on tonight’s SC primary results: coming soon and/or email me and I’ll hook you up with a link. Or, just leave a comment. And now, back to our regularly scheduled blogging…

The Real Point of Sex Offender Residency Restrictions

It’s refreshing when an elected politician speaks the truth, especially when they don’t mean to.

There was a segment on McNeil Lehrer this evening titled “Housing Sex Offenders,” which chronicled the very real problems with various versions of Jessica’s Law that have sprung up around the country.

The name “Jessica’s Law” started in Florida, based on the name of a victim, but is now the de facto name given by the media to various and sundry laws dealing with sex offenders.

The report focused on California sex offender residency restrictions. California’s fairly new law prohibits registered sex offenders from living within 2000 feet of parks, playgrounds, schools, etc. Sounds like a great idea but problems in this regard have been well documented.

PBS showed a map of Los Angeles with all the prohibited living places in red. At first, it’s easy to tell that literally almost every place in Los Angeles is covered; and then the announcer let’s us know that the places that are ‘OK’ are almost all business and commercial.

The point of this is not to make folks’ hearts bleed for sex offenders. But let’s acknowledge what the real point of these laws is. Or better yet, let’s hear from San Diego County District Attorney Bonnie Dumanis, who when asked by the reporter the perfunctory ‘where are they supposed to go?’ replied:

The real intent of Jessica’s Law is to put people that violate children and others in prison and keep them there.

Bravo! We’ve convicted and sentenced the offender, but he’s served his time and now we want to put him back before he reoffends. The constitution prohibits us from going back and adding time to his sentence, so…

Let’s make it literally impossible for him to live anywhere legally. Then we charge him with that violation, and the problem is solved.

For anyone out there that reads this, and is nodding their head, “Yes, that makes perfect sense”… I’m not sure any amount of logic or reason will convince them of the underlying fundamental unfairness of such a system.

On an off note, for the few of you have inquired as to whether I have retired from blogging, apparently the answer is ‘No, it was just a vacation (from blogging only) and I’m back’.

With Prosecutorial Zeal

The Times had a piece Friday in the Politics Section about one of the leading candidates for president 2008: “Citing Statistics, Giuliani Misses Time and Time Again.” They give examples:

When a recent Republican debate turned to the question of fiscal responsibility, he boasted that “under me, spending went down by 7 percent.”

…Mr. Giuliani’s own memoir states that spending grew an average of 3.7 percent for most of his tenure; an aide said Mr. Giuliani had meant to say that he had proposed a 7 percent reduction in per capita spending during his time as mayor.

The article also quotes other Giuliani statements that are ‘incomplete, exaggerated or just plain wrong’ – and then goes on to show that they are all wrong. New York City is not the only city in America that has reduced crime every year since 1994.

I suppose you could make excuses for his ‘exaggeration’ of the pre-Mayor-Giuliani murder statistics, but when he overquotes by a minimum of 20-25%, I’m comfortable labeling that too as ‘just plain wrong’.

However, in politics as in life, the more insistent and certain you sound when you make things up, the more likely you are to be believed. Or, as the article put it:

On the campaign trail he often wields data, without notes, with prosecutorial zeal to hammer home his points.

“With prosecutorial zeal” jumped out at me.

Is this a fair comparison? We’re talking about the fervor with which a politician makes his case that he should be elected, not the other guy, details be damned.

Certainly that’s different than a prosecutor standing in front of a jury, full of righteous indignation and moral certitude that the defendant committed the crime. Isn’t it?

[I don’t engage in much political conversation on this blog. For more substantive blogging about this and related topics see: Life is Rich, Deborah Lipstadt, Kiko’s House.]


Friday Night Writes (& Is It All Bad News All the Time?)

Scott Henson reporting on a police officer sentenced to federal prison for extortion (accepting a $5000 bribe from undercover federal agents to protect a phony shipment of cocaine) notes that the local paper ‘bragged’ about the new and improved police force:

Describing the sentence, the McAllen Monitor optimistically concluded, without apparent irony, "Elsa’s police department has had considerable turnover since the men’s arrests; however, none of its officers has faced drug-related charges this year."

So, I clicked the article, and the ‘Most Viewed Stories’ caught my eye. I assume these change daily or even more frequently, but when I looked there were 10 most viewed stories listed.

 Most Viewed Stories

One story about high school football (of course), and one about the Mexican consulate in McAllen, Texas.

The other eight? In order: murder, murder, possible Intoxication Manslaughter – but at least criminally negligent homicide, possible non criminal but fatal collision, arson, murder, Canadian/Texans being harassed by rude border agents, and finally two sisters that hate each other and run competing pizzerias virtually across the street.

During the Soviet Union’s perestroika period, didn’t the crime rate increase? Or don’t I remember reading that, no, indeed it didn’t increase, but people thought it did, because it was now being reported?

It’s Friday night, I’m tired. Not sure what the point of all this was, but feel free to add comments if you can help me finish this off into something that makes more sense…


The 'Alleged Suspect'

Driving home listening to NPR, they’re talking about the Hillary Clinton hostage crisis on the radio, and they say something like

…the alleged suspect was reported to have…

I know there’s a fear of lawyers coming after the media for not using the word ‘alleged,’ but let’s get real here.

#1) The suspect is the suspect, whoever did it.

#2) They are not even naming the fellow – they didn’t yet have a name.

Alleged perpetrator, alleged hostage taker – maybe. Not necessary, because I assume the news had confirmed that there were indeed hostages, and those phrases don’t accuse any specific person.

But using ‘alleged suspect’ means you don’t even understand the point of the ‘get yourself off the hook by saying alleged’ rule in the first place. 


What to Look For in Your Prosecutor

You Don’t Make Friends With Salad writes about an Oklahoma District Attorney who has sued John Grisham and a wrongfully imprisoned man for, well apparently, for writing a book that hurt his feelings. 

Grisham’s non-fiction best seller The Innocent Man chronicled the wrongful prosecution of 2 men charged and convicted of

From Friend’s cleverly titled post “Innocent After All These Years? Well, Time to Lawyer Up”:

An Oklahoma prosecutor and former DA investigator have sued both author John Grisham and Dennis Fritz, one of the men recently exonerated for the 1982 murder of Debbie Sue Carter. The parties claim that the defendants engaged in a civil conspiracy "to commit libel, publicity placing a person in false light and intentional infliction of emotion distress."

You know, you put someone in prison for 11 years based on shoddy work and I think you waive any right to complain about the names they call you when they get out.

I didn’t know much – OK, didn’t know anything- about the Fritz case, so I surfed around for info. In doing so, I came across an article about the plaintiff and now the former District Attorney who complains so mightily that he is the one that has been wronged.

"I've tried to conduct myself in an honorable way for 27 years. I was what I was. I was a prosecutor, a passionate prosecutor. I went after them. I was convinced they killed Debbie Carter. If that was your mother, your sister or your daddy who was killed, you wouldn't want a pansy prosecutor. You would want someone passionate,” Peterson [said].

Of course, a prosecutor’s job is (supposed to be) to seek justice, not ‘just’ to convict. When you hear a criminal defense attorney saying things like…

I am a defense lawyer. I defend people. I am convinced my clients all have the right to a fair trial. If your mother, your sister, your daddy was accused of a crime, you wouldn’t want a pansy defense attorney. You would want someone passionate.

…well, then you’ve found a lawyer who at least has the right attitude. 

Peterson, however, seems to want credit where it isn’t due. From the same article, “Peterson is quick to point out that he requested DNA evidence be reviewed in the cases against Fritz.” So… you want extra points because you didn’t object to DNA testing. Yes, some D.A.’s offices fight tooth and nail to prevent the truth from coming out, but that doesn’t mean we applaud you.

You have immunity from civil prosecution for your ‘little mistake’. The least you can be expected to put up with is that you might face a little criticism for imprisoning, and in one case seeking and getting the death penalty for an innocent man.

Grisham, meanwhile, has recently petitioned the Federal Court hearing the case to dismiss the libel lawsuit

Grisham’s book, just like each of the other books about which the plaintiffs complain, is core political speech protected by the First Amendment and representing the highest order of public service by raising awareness about important social and political issues – the criminal justice system – and bringing to light issues of public concern about the performance by government officials of their public duties,” their brief states…

[The plaintiff’s] suggestion that The Innocent Man portrays them generally as ‘bad guys’ for their roles in the controversial convictions discussed in the book does not state a claim against Grisham and Doubleday,” the author’s attorneys stated to the court.

Makes sense to me.

One Year Anniversary (or Blawgiversary)

A big thanks goes out to all the guys at LexBlog: Kevin, Jesse, Stacey, Rob and all the others that helped me launch this blog, and keep it running for this first year.

Technically, I think it launched in late September 2006, but I’m going to artificially call October 1, 2007 the one year anniversary of the Austin Criminal Defense Blog.

Some milestones so far:

Over 150,000 hits – and based on the constant increase in readers each week and month, I can expect many more over the next 12 months.

#1 Google rankings for phrases such as “Austin Criminal Defense Lawyer,” “Austin Marijuana Lawyer,” “Austin Criminal Defense Attorney,” and too many others to list here.

An almost overwhelming response in emails and comments. I’ve definitely received hundreds of emails from around the country from folks who have read the blog, and have asked questions. I don’t keep track, but I’d be surprised if it were less than 1000. Originally I thought I’d have all the time in the world to answer each one, or to post a response, but lately, that’s been getting quite difficult. I will continue to do my best in that regard.

The launching of my second blog: Austin DWI Lawyer. And in fact, I have a third LexBlog in the works, that will be a collaborative effort. More on that later.

Meanwhile, I think I’ll run to the HEB on Congress and Oltorf and get my blog a birthday (cup)cake.

A Staunch Pro-Death Penalty Advocate Responds

Jeffrey Deutsch responds to my post “Execution is Proof of Guilt in Texas”:


I'm a staunch pro-death penalty advocate. I can't speak for others, but I for one support every effort to follow up innocence possibilities for any convict, even one who has already been executed.

Among other considerations, how can people be expected to trust prosecutors, police or other officials who cover up evidence showing that someone who was executed wrongly?

I care about innocent people being convicted, whether of a traffic infraction, misdemeanor, felony or capital crime. Of course, I care in direct proportion to the severity of the potential punishment.

Furthermore, capital punishment especially requires a degree of public confidence that it will be applied to as few innocent people as humanly possible. Zero innocent victims is not compatible with any human, and necessarily imperfect, institution, but we need to do our best - and be seen to do our best - to save as many innocent people as possible. Otherwise, we jeopardize capital punishment itself.

Last but not least, I also care about the truth. Only in rare circumstances should officials lie or suppress the truth. To the contrary, investigation of the possibility that someone who was convicted and executed for a murder really was innocent is every reason to find the truth and proclaim it - whatever it may be - from the rooftops.

Jeff Deutsch

Jeff, I disagree with your conclusions, but I appreciate the comment, as well as the lack of anonymity. Too many use anonymous commenting on blogs as a way to vent without opening themselves up to any scrutiny or critical response.

Actually, your post fascinates me in some ways. When I say I disagree, I mean more precisely, that I agree with almost everything you write except for the first sentence about being staunchly pro-death penalty. Especially given the rest of it.

We know that police and prosecutors have indeed covered up or hidden Brady material, i.e., evidence that tends to exonerate a defendant. Yes, it may be rare, but you point out that it makes us distrust ‘the system’.

You care “in direct proportion to the severity of the punishment”. Me too. Frankly, I can’t make myself get all worked up when someone is wrongly accused of speeding. It shouldn’t happen, and it’s a shame, but frankly, you were probably speeding five minutes before you got the ticket, or yesterday, and even if you’re the one person on earth who has never sped, it’s ‘only a traffic ticket’.

But then, if you care in direct proportion to the punishment, you have to care the most about capital punishment.

From a logical perspective, I appreciate that you acknowledged that support of the death penalty means accepting that some innocent accused will be put to death or perhaps more fairly ‘murdered by the state’. I’m not being a smart-alec here. Many death penalty supporters insist the innocent have never been executed.

That’s a ludicrous position and you don’t try to make it. Humans err, death penalty trials are abundantly human; death penalty advocates should accept that there is an error rate, even if the exact rate is unknowable. That doesn’t make it 0%.

I just don’t understand, given the premises, how someone with your views can be staunchly pro-death.

Why is it so important to put people to death in the first place?

Would You Believe a Lawyer Who 'Guaranteed Results'?

Houston criminal defense lawyer Mark Bennett has been writing recently about lawyers who promise or guarantee good or great (or impossible?) results in criminal cases.

His example was one where the unethical lawyer promised a jail release in a federal drug case where the potential sentence could be more than 10 years (triggering presumptions of flight risk, danger to community and no bond). Mark’s point was not that he mourned the loss of a client but that:

This case illustrates why it's not "stealing clients" but "stealing from clients" -- the client was not an asset to me, but a liability. I don't mind losing the client, but that doesn't make the lawyer's lies any less repugnant.

I wrote in a comment to his post:

The other half of this equation is that the client wants to believe the lawyer that tells him "I can get you out".

I think all of us have heard from clients over the years all the variations of unreasonable promises made and outright lies told to clients; perhaps I should add, especially to those in jail.

I've always wondered what those conversations are like, you know the ones... the 'coming clean' conversations where the lawyer 'explains' that everything he said up until now was somewhere between 95 and 100% wrong.

I understand folks in desperate situations wanting to believe the person that comes to tell them the good news, even if that good news can easily be rephrased as ‘I want you to pay me money’. And people in jail are indeed desperate, and have less access to information than those out of jail. If their choice is between the lawyer who says he will get them out, and the lawyer that says it will be difficult if not impossible, then they are likely to choose the first. 

But we see this situation (the lawyer who overpromises/lies) in other familiar situations as well: most commonly, the “I will get your case dismissed’ lawyer. The lawyer that says that at the initial client meeting. Without reading the police report. Or talking to the prosecutor. Just… “I will get your case dismissed”.

Here’s what I don’t understand about that. I meet with people who have been arrested in Austin, Texas on a regular basis. Some of them hire me, some don’t. My goals in the initial office visit include

  • listen to what the client has to say happened
  • explain the law
  • explain the range of possibilities
  • narrow that down to the reasonable range of possibilities
  • give my client ‘homework’; i.e., things they can do that will help me help them get the best possible results

When I narrow that range of outcomes from the possible (outright dismissal to maximum jail time) to the likely range of outcomes (dismissal if we do X, Y and Z to probation, or whatever the case may be) I always say:

“It’s unethical for me to promise a particular result in an individual case, but based on my experience…”

Of course, the potential client knows that it’s not possible for me to look into that crystal ball and tell them exactly how the case is going to turn out, and on occasion, they chime in something like, “I wouldn’t believe someone who told me they knew exactly how it would turn out…” or something similar.

That’s because I’m stating the obvious: I don’t have that crystal ball and I can’t guarantee or promise results. Why then would you believe a lawyer that does?

Should Michael Vick Be Forgiven?

Michael Vick plead guilty in Federal Court today to Conspiracy to Travel in Interstate Commerce in Aid of Unlawful Activities and to Sponsor a Dog in an Animal Fighting Venture. Here’s a link to a .pdf of the plea agreement in the Vick case.

Vick will now be a convicted felon. Furthermore, the Summary of the Facts filed in Federal Court is frankly sickening. [I link to it, but don’t necessarily recommend reading it. Dog fighting is brutal and inhumane, Vick has admitted to materially participating, and that’s all you really need to know.]

My wife and I watched Vick’s public apology, and we had different reactions to it.

She found it insincere and believes, basically, that he can never be forgiven.

Yes, she’s the wife of a criminal defense lawyer, and knows what I do. She knows I have represented clients accused of (and guilty of) other heinous offenses. She is against the death penalty – although, angry about the charges, she did mention it as an option when Vick was first indicted.

She knows that a great deal of my job description often boils down to negotiating what the appropriate and reasonable punishment for my client is – it’s not always about whether or not he is guilty.

But cruelty to animals is her pet peeve when it comes to my job. She doesn’t want me to represent anyone accused of that. I can’t tell you how many Humane Society coffee cups, T-Shirts and umbrellas we have in our house.

But I have to say that I had a different reaction to Vick’s statement. First let me start with the part that bothered me about it:

You know, what I did was, what I did was very immature so that means I need to grow up…

I'm totally responsible, and those things just didn't have to happen. I feel like we all make mistakes. It's just I made a mistake in using bad judgment and making bad decisions. And you know, those things, you know, just can't happen.

I think it’s difficult to frame a continuing course of conduct over (at least) six years as simply ‘bad judgment’.

DWI, Assault, Shoplifting…heck, even Murder, if it’s a ‘one time thing’ can easily be characterized as using bad judgment.  Labeling his own actions as ‘making bad decisions’ does indeed smack of minimizing his culpability.

However, I was actually impressed by his statement; it seemed sincere to me. It wasn’t read off of a piece of paper, it was actually delivered by him. Yes, I know that he was probably well prepared for it by lawyers and handlers. But, given the despicable conduct he was admitting to, it truly was about the best case scenario in terms of a public statement.

Now, I may be a sucker. And I’ll admit there’s no real way to know whether Vick is ‘sorry sorry’ or just ‘sorry that he was caught’. 

But how should we feel about Michael Vick? Can a person change from one who enjoys dog fighting to one who accepts society’s general view that it is totally unacceptable in such a short period of time?

Is there any real way we can know whether his apology is sincere? Is it just part of a PR campaign to get him back in the NFL one day?

Well, my wife reads this blog, and I feel the need to end this on something she will consider a positive note, so…

I just donated $100 to the Humane Society. However you feel about my post, please take the time to donate as well. Even $5 here and there adds up.

And if you have any thoughts about the unanswered questions I raise, feel free to leave a comment or blog about it yourself, and email me the link.


Crime Reporters Should Consult Local Lawyers (If They Want the Real Story)

There’s been nationwide coverage of the judge who granted probation to a sex offender “because he was too short” to go to prison. Or, at least, that’s how it was covered in the media. Some of the reports about the recent appeal affirming the sentence, like this one by the AP’s Josh Funk, have come closer to hitting the mark:

A judge had valid reasons for sentencing a 5-foot-1 sex offender to probation, even though she cited the offender's height as part of her rationale, the Nebraska Court of Appeals ruled Tuesday.

One important distinction between Funk’s first sentence, and what I remember about the initial coverage, is the addition of the information that the defendant’s height was only part of the judge’s rationale. Other factors?

An examination by a clinical psychologist and the results of a test used to determine the risk that Richard W. Thompson would reoffend both indicated that Thompson, 52, is neither a pedophile nor a sexual predator, the (appellate) court said.

OK. So now we know there’s more to the story.

But wait a minute…it’s still somewhat outrageous, isn’t it? Why would the judge take height into consideration at all? And exactly how did the judge take height into consideration?

"So I'm sitting here thinking this guy has earned his way to prison, but then I look at you and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think what might happen to you in prison because I don't think you'll do well in prison," [the judge] said in court, according to a court transcript of the hearing.

1) I understand why this was reported the way it was based on the judge’s words, and 2) I’ll admit I’m speculating here, but that’s the reason for the title of this post: Reporters on the crime beat need to be able to talk to local lawyers, especially in cases like this where it seems like there’s something really out of the ordinary, and even nonsensical going on.

I think (but admit I can’t prove) that this is the missing key to the story:

Judges like to lecture Defendants before putting them on probation.

That’s it. Explains everything really. I don’t know anything about Nebraska’s sentencing procedures, but let’s assume, based on the PSI (pre-sentence investigation) that this defendant qualified for and was very likely to receive probation. I think it’s a reasonable assumption that the judge was trying to scare the defendant, and probably says something similar about the perils and dangers of prison to everyone.

Any good criminal defense lawyer in Austin would be able to tell you that District Court judges in Travis County frequently lecture felony defendants who are going on probation about (a) walking the line (b) staying out of trouble (c) I’ve got you under my thumb…basically just saying “you better behave now”. And I’m sure that is probably true everywhere.

In fact, it’s a good thing. No, not all of my clients need to be ‘scared straight’. But some of the probably do. Probation is not a slap on the wrist. And if the defendant violates the terms of his felony probation, he is looking at the possibility of prison time. Even for so called ‘minor violations’. A reminder from the judge probably doesn’t hurt.

From Doug Berman’s entry over a year ago when the case was first reported, here’s some more of that judge’s lecture:

"I want control of you until I know you have integrated change into your life," the judge told Thompson. "I truly hope that my bet on you being OK out in society is not misplaced."

That confirms my suspicions about the “controversy”. It fits right into the ‘scared straight’ theory.

As for crime reporters? Well, for those who didn’t want to focus solely on the sensational and almost silly aspects of the story, I believe a call to a defense lawyer who practiced in front of that judge may have elicited a fuller picture of what was going on. And while a defense attorney might not want to be quoted, perhaps a line could have been inserted to the effect of:

“According to some defense attorneys, the judge may simply have been trying to not-so-gently remind the defendant that he would be closely monitored, and that he would regret being sent to prison if he violated his probation.”

After all, while “Judge Loses Her Mind” is a great headline, isn’t the point of journalism to give a complete and accurate picture of the story to the readers?

Perjury Trap? There's No Such Thing

Despite all we’ve heard lately about ‘perjury traps,’ there is no such thing.

From “The Lying Game,” Michael Kinsley’s guest column in the New York Times comparing the ‘perjury trap’ of Bill Clinton to the one supposedly set for Scooter Libby:

Mr. Clinton… should not have lied. But he lied in answer to questions he should not have been asked. He should not have been put in a position where he had to choose: he could lie under oath, and be impeached or worse, or he could tell the truth, and embarrass himself and his family, and probably still be impeached or worse…

Mr. Libby… should not have had to face a perjury trap: the choice between prison for lying, or prison for his role in a set of transactions that the press regards as not merely O.K. but sacrosanct.

While their situations were fairly dissimilar, neither Clinton nor Libby faced any ‘trap’ at all.

First Clinton. Yes, he was being forced to testify about things that he did not want to be made public. But that happens all the time. His happened to be in a civil case, so he didn’t have any Fifth Amendment privileges, but it still wasn’t a trap.

He wasn’t forced to lie. He could have refused the deposition, which would have caused him significant political problems, and possibly doomed his defense, but it was an option. (I don’t practice civil law; if memory serves, I think the other side may be entitled to ‘adverse factual findings’ against the person who doesn’t participate in a court ordered deposition.) But the fact that ‘he shouldn’t have been asked the question’ does not logically mean he was required to lie. And of course, there was always the ‘non trap’ option called ‘telling the truth’.

Libby’s situation was even less complex. He had the option of taking the Fifth Amendment, and refusing to testify. Yes, that would have caused significant political embarrassment for his bosses, but that was his choice to make.

Once he decided to testify, how was he trapped? According to Kinsley, he’s trapped because he has to lie, or has to admit possible criminal involvement.

Newsflash: That’s why we have the Fifth Amendment. That’s not a trap…it’s a choice. Make it, and live with it. My advice? Don’t testify unless you can be absolutely truthful.

Listen, no one ever wants to participate in the criminal justice system. No one wants to be investigated for a crime. The reluctance of innocent witnesses to participate in the investigatory process is well known as well.

No one wants to come to court to testify. Citizens groan when the receive jury summons in the mail. It’s not always the most pleasant process around.

But let’s not confuse a person’s desire to [keep their political career afloat… hide secrets from their family… avoid embarrassment… follow orders from above] with being forced to lie.


'Arrested While Grieving'

From Bob Herbert’s New York Times Op-Ed piece today “Arrested While Grieving”:

No one is paying much attention, but parts of New York City are like a police state for young men, women and children who happen to be black or Hispanic. They are routinely stopped, searched, harassed, intimidated, humiliated and, in many cases, arrested for no good reason…

Herbert, whose excellent and persistent coverage of the Tulia cases uncovered that scandal, goes on to report about black teenagers, excused from school to attend the wake of a murdered friend, who were suddenly arrested for no reason. Or, wait, I guess there was a reason…

Many of the kids were wearing white T-shirts with a picture of the dead teenager and the letters “R.I.P.” on them. The cops cited the T-shirts as evidence of gang membership.

No need to comment further really. You either get it, or you don't.  If it weren’t so outrageous, the whole thing would be laughable.

Same Topic, Other Bloggers: Donkey O.D., PREA Prez, Simple Justice.

[No link to the Op-Ed given here, because, unfortunately, the NYT makes this a pay option only.]

Former Prosecutor Defends Criminal Defense Attorneys

Randy Barnett, currently a professor of Legal Theory at Georgetown Law, and former Cook County State’s Attorney prosecutor, writes an excellent piece in today’s Wall Street Journal “Three Cheers for Lawyers”:

The crucial importance of defense lawyers was illustrated in the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence…

Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done.

This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you'll think of the lawyers who represented these three boys and it won't seem so funny.

Barnett also talks about how, as a prosecutor, he always analyzed cases from the defense perspective, in terms of the evidence, procedure, and credibility of the witnesses.

Good defense lawyers, of course, analyze their cases from the prosecutor’s perspective as well. Even though most cases end up in some form of a plea bargain agreement, even if it’s a reduction or dismissal of charges in return for community service, both sides must properly evaluate the relative strengths and weaknesses of their case.

And Barnett acknowledges the ugly truth about the criminal ‘justice’ system: that there is a human (and factually based) presumption of guilt. Since judges/prosecutors/defense attorneys know that in the end most folks are actually guilty as charged, it becomes easier for everyone to skip over the actual fact finding necessary to make such a determination:

While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.

And therefore, the continuing need for criminal defense lawyers. But it’s nice to hear it from a prosecutor’s perspective.

[Hat Tip: Philadelphia Criminal Defense Lawyer]


The difference between Deferred Prosecution and PreTrial Diversion in Travis County

Barry Green, a Wise County criminal defense lawyer recently left a comment on my recent post about deferred prosecution:

Isn't "deferred prosecution" the same thing as "pretrial diversion" or, technically, a "pretrial intervention program" under Article 102.012 of the Code of Criminal Procedure? I was just curious since you said it "was not available by statute."

He asks a good question, and I could have been more precise. Actually, in Travis County, we have a PreTrial Diversion program as well as the occasional opportunity for dismissal by way of deferred prosecution. So in Austin, they are two different things.

PreTrial Diversion programs are indeed authorized and covered by statutes, including among others CCP Article 102.012 and Government Code Section 76.011. And limits on administrative fees for these programs are covered by Government Code 76.015.

The basic difference between the two (at least, in Travis County) is that one of them – PreTrial Diversion – is run by the Probation Department. It is not, however, a reporting probation – just a program run by the department.

Deferred Prosecution is similar, in that it is an agreement between the defendant and prosecutor to dismiss the case if certain conditions are met, but it has nothing to do with the Probation or Community Supervision Department.

I think most Texas Counties probably don’t have both options. Some probably have neither.

Another distinction between the two, albeit a non-legal one, is the reasons for which they are potentially granted in negotiations. In Austin, entry into the PreTrial Diversion program is sometimes granted for first time offenses, most often Theft, Possession of Marijuana and several other misdemeanor charges. Assault, whether Family Violence or not, and DWI are not even considered for PreTrial Diversion.

The reason it is given occasionally is for equitable reasons(i.e. the conviction itself is overly punitive), not substantive ones(i.e., my client didn’t do it, or the State may have difficulty proving my client guilty). For example, denial of guilt in a

Deferred Prosecutions are sometimes offered for equitable reasons, but in my experience in Austin, it’s more often for substantive problems with the State’s case. These are, perhaps, even less formal agreements, at least in the sense that the Probation Department has nothing to do with them. And they are completely non-statutory.

For some more interesting legal reading on the subject of PreTrial Diversion programs, also see Attorney General Greg Abbott’s response to Guadalupe County Auditor Kristen Klein’s inquiry about assessing fees for these programs. 

One last note: similar to my comments about some Municipal Court prosecutors referring to deferred disposition as “deferred adjudication”, the semantic distinctions above hold true in Austin and Travis County, but not necessarily in other jurisdictions. The law, of course, is the same, but my point is that different prosecuting/criminal defense cultures refer to similar programs with different terms, and different programs with similar terms.

Are you an aggressive defense lawyer?

As a lawyer, one of the advantages to having a blog is that I can more effectively communicate my thoughts and ideas about criminal defense, and how I go about it on a daily basis to potential clients, than by just having a “static” website.

This is primarily because everything written on this blog is written by me – or, if I’m commenting on someone else’s ideas, they are, of course, properly attributed, with a backlink to the original writer’s post.

Most static websites for criminal defense lawyers are templates that various web site companies sell, where most, if not everything, is prewritten for the attorney, except for biographical information, such as schooling, years in practice, and geographic location.

One of the main buzzwords you see on even the best criminal defense lawyer websites is the phrase “aggressive defense”. I guess this either sounds good, or more likely, whoever wrote the website for the lawyer thinks it sounds good. Either way, I don’t call myself an aggressive lawyer.

On the contrary, I go to great lengths to be courteous and well mannered. In the initial negotiations stage of a case, the prosecutor has a great deal of leeway to potentially offer a better than average deal (which is what all of my clients are seeking). Why would they bend a little if the lawyer in a particular case was acting aggressively?

Prosecutors actually have the upper hand in most cases. Sometimes it feels like an uphill battle when the State has both the facts and the law on their side. But a good defense lawyer will calmly and politely explain the equitable facts that benefit his client. Maybe he’s never been arrested before, or the usual range of punishment will put him out of a job.

Or maybe it’s a borderline case. Take a first offense DWI arrest with no breath test, where the defendant admits to drinking alcohol, and does fairly well, but not perfectly on the standardized field sobriety tests. “Aggressively” coming in and “demanding” a dismissal on the first meeting with the prosecutor is probably going to produce the opposite of the intended result. It may in fact make the State dig their heels in, and refuse to ever negotiate the case reasonably.

Going to trial in the above example would, of course, still be an option, but many clients prefer a guaranteed and negotiated reduction of charges instead of a jury.

On the other hand, I am a very competitive person, and want the best outcome for my client. Not only is that my job description – to get the possible deal available, and otherwise take the case to trial – but it’s my personality. I enjoy games, and game theory, and believe me, I hate to lose.

Perhaps that’s what criminal defense attorneys really mean when they call themselves “aggressive”. Unfortunately, the ones that truly are aggressive are the ones that give lawyering a bad name. And, having seen some of them attempt negotiations, I can tell you this: their clients don’t often benefit from it either.


Fifth Amendment, U.S. Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Update your driver's license address... avoid a DWLS charge

From the Statesman’s online Blotter, DPS Reminder: Update Your Driver’s License Address:

The DPS wants to remind you to make one more New Year’s resolution - update the address on your driver license. Keeping a current address on your license provides DPS with the ability to communicate important information to you regarding your driver license. Plus, updating your driver license address is important because it’s the law.

That’s true; it’s actually a Class C misdemeanor in Texas to drive longer than 30 days without updating your address with DPS. But the article goes on to explain a better reason, perhaps, as well:

Another reason it is important for you to keep your address current is so that DPS can notify you if your license is suspended or revoked. If your address is not current, you may not receive this notification. If you are stopped for any reason and found to be driving on a suspended license, you can be arrested.

Licenses are often suspended or revoked for driving with no insurance, driving while intoxicated, for failing to appear in court for a citation or for failure to comply with the requirements of the Driver Responsibility Program.

The Department of Public Safety sends folks a notice of cancellation and/or suspension to the address they currently have on file – after all, where else could they send it? But very often these notices aren’t received because the person never updated their address with DPS.

I’ve never done a scientific study of the problem, nor have I kept an Excel spreadsheet of all my Austin DWLS clients, and the various reasons they were suspended. But my guess is that at least half of my clients who come to see me for a driving while license suspended arrest didn’t know that their license was suspended.

Of course, that usually means I have a pretty good defense to put forward on behalf of my client, but wouldn’t you rather not be arrested in the first place?

[Update: here's a printable change of address form to mail in to DPS, and here's the place to change your address online.]

A Liberal is a Conservative Who Has Been Indicted

Miami criminal defense lawyer Brian Tannebaum writes here that Rush Limbaugh called District Attorney Mike Nifong “a hack” for saying that he had not yet interviewed the complainant in the alleged rape case at Duke University.

I’ll admit to not listening to Limbaugh, so I’m not an expert on his views, but, one has to wonder whether his concern for the criminal defendants in this case springs at least in part from his own recent experience with our criminal justice system.

As you may remember, his defense was predicated on procedural rather than substantive grounds…which is a fancy way of saying he asserted his constitutional rights rather than professed “actual innocence”.

As to the old saw “A conservative is a liberal who has been mugged; a conservative is a liberal who has been indicted”…I think there’s some truth to the notion that people in general don’t care about other people’s constitutional rights not to be searched or indefinitely detained…until the other people turn out to be them. Human nature I suppose.


APD Will Not Give You The Police Report

While checking my referrer stats, I noticed someone find my blog by Googling “copy of police report Austin Texas”. This site pops up as one of the top responses to that search, probably due to my recent post about the criminal discovery process, both generally and here in Travis County. But the first site Google returns is the Austin Police Department’s FAQ page which purports to answer the question…

4. How do I purchase a police report?
For information about purchasing a copy of a police or accident report, contact that Austin Police Department Report Sales office at 974-5212. Reports can be purchased at either Police Headquarters in downtown Austin located at 715 E. 8th St; reports are available Monday through Friday between 7a.m. and 6 p.m. or you may purchase them from the North Substation locate at 12425 Lamplight Village Drive, reports are available Monday through Friday between 8 a. m. and 5 p. m.

Wait a minute, didn’t I just blog about the difficulties defense lawyers have in getting prosecutors in some counties to even allow them to read the police report, never mind getting a copy of them?

Well, here’s the answer, if you think there’s a conflict between APD’s FAQ page, and how things really work. Sure, they will take your money and hand over to you what they tell you is the police report, but it’s not…

It’s usually a two page document filled with information you already know or don’t care about, like the date of the arrest, the charges filed, the officer’s name, whether bias or family violence was involved, etc. etc.  Then there’s the section that gives detailed information about the defendant’s name, date of birth, driver’s license number, etc. etc.

But what about substance, the officer’s observations, any statements made? Well, I’m going to quote you exactly from one that I just took a look at:

On 8-25-06 at 0142 AM an arrest for DWI was made.

That’s it. It’s not a police report; it’s something called and actually titled a “press release”. You already know who you are, and what you were arrested for. Don’t waste your money giving it to A.P.D. for a so called copy of the police report.  Yes, there is such a thing as an offense report, which details all the officer's observations and conclusions, but it's not for sale.

I've had plenty of clients come into my office a few days after their arrest and announce to me that they already have the police report.  It always pains me to have to tell them that they have just wasted their time and money.

Criminal Discovery Rules Allow the State to Hide the Ball

When someone gets arrested in Austin, Texas and comes to see me for help with their case, one of the things they are usually surprised to find out about the system is the length of time it takes to get a copy of the police report – several months for a misdemeanor, sometimes never on a felony.

That’s right: I said sometimes never on a felony – at least until after a witness has testified during trial, and has used the report to refresh his memory.

We are actually fortunate in Travis County that the prosecutors, at least on misdemeanors, are so generous with sharing “their police report” with the defense lawyers. The law in Texas does not require that they do so.

Yesterday’s ACLU press release brought this topic to mind (Secret Evidence Allowed in Criminal Courts Unfair). They have brought suit in Ohio to change the criminal discovery process in that state:

“Allowing prosecution and defense equal access to all evidence creates a level playing field in courts,” said ACLU of Ohio Legal Director Jeffrey Gamso.  “Under the current system, prosecutors have a huge advantage over the defense because they can investigate and prepare evidence that the other side may not know about until it is presented at trial. The Constitution guarantees that every person is entitled to a fair trial, but such rules greatly decrease the ability for a person accused of a crime to mount a defense.”

Obviously, at least from the major media outlet perspective, this becomes most important in cases of actual innocence, because those who are wrongly convicted receive (perhaps justifiably) the most press. 

Yet there is another more practical reason (besides fairness) why Texas and other states should be required by statute to share their entire file with defense attorneys: not doing so wastes time and money. From the same ACLU release:

Evidence shows that if the accused know all of the evidence against them, they are more likely to resolve the matter without a trial saving jurors, judges, court appointed counsel and prosecutors’ time and money.

This should be a no brainer. There is no good reason to deny the defense full access to all of the prosecutor’s information.  It should never be an issue of whether or not the defendant is guilty.

Travis County does a good job overall with this, especially when compared to other Texas counties, but the local rule on open discovery needs to be extended to even the most serious felonies here, as well as apply to “minor” felonies and all misdemeanors.

If the defense lawyer is allowed to copy the entire police report in a first time misdemeanor marijuana case, does it make sense to hide the ball when it comes to murder?

Can the Government Put You On Trial After You Die?

It seems like a silly question, with an obvious answer, but let me start at the beginning…

There has been a great deal of fuss in the blogosphere and the media about Ken Lay’s convictions being overturned because he died while his appeal was pending. (Read the judge’s decision here.) Some applaud because they believe the original verdict was incorrect.

But both sides miss the greater point here. I hope everyone would agree that the government can’t actually put you on trial after you are deceased, and make (perhaps?) your family go to court to defend you.

Well, if we believe in the appeals process being a part of our judicial system, why should it be any different if you haven’t had a chance to appeal your (potentially) wrongful conviction?

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Blog Purpose

I am starting this blog for a variety of reasons.

This blog will cover topics about the defense of criminal charges, mostly relating to Texas State Court criminal charges.  That focus will also include the need to talk about general principles of criminal law, and how they apply to the Texas Penal Code.

I hope it will be of service to other lawyers, journalists looking for information about criminal defense in Texas, and, of course, people who have been arrested and are currently facing charges in Texas State County or District Court.