Proof That Prosecutors Think Like We Do (Sometimes)

Happy Birthday

And Introducing The Unethical Attention-Whoring Crappy Douchebag Lawyer

It’s me.

So says Acerbic at his anonymous blog “Jamie Spencer – Crappy DWI Defense Lawyer”. Before we get to Acerbic’s accounting of the facts, let’s review what really happened.

Five days after its first post on October 10th, I gave a shout out to the newest criminal law blog in town: D.A. Confidential. Despite the short amount of time since its debut I predicted great things would come from it, and it hasn’t disappointed.

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Answers From A Criminal Defense Lawyer On A Prosecutor's Blog

If, hypothetically, a prosecutor were to start a semi-regular series of posts, consisting of the same 4 or 5 questions, posed to and answered by individual criminal defense lawyers (and, of course, linking to the CDL’s blog or website), what should those questions be?

My initial thoughts… One goal would be to make the questions interesting enough that they wouldn’t all be answered the same way. And no softball questions that lend themselves to overly advertisey-answers. Probably would have to include the cocktail party question.

It could be an interesting medium to start up some of our regular conversations where they’re not always heard. I’d like to hear from anyone, CDLs to non-lawyers alike, via comment section or email. Thanks in advance.

BR: International Day Of Tolerance Edition

I’ve been busy burying myself in the finer details of achieving a one word verdict, and wholly neglected to point folks to this week’s edition of Blawg Review.

That's Not Me In The Stripes

Paintings and sketchings from a Travis County prosecutor whose blog says she wants to work as a courtroom artist when she retires.  Primarily not courthouse related stuff, but there's plenty of that in there too.

Lots of good work: for example, in the second sketch, the person on the left could be a prosecutor or defense lawyer that I don’t recognize from behind, but that’s unmistakably Judge Kocurek in the middle.

[H/T: D.A. Confidential “Not Your Usual Sketch Artist”]

The Doctrine Of "Necessary Englishness"

I predicted some humorous tidbits would come from D.A. Confidential, and I’ll predict now that this post may be hard for DAC to top. I’m going to forgo substantive comments, merely hinting at the subject matter, hopefully forcing you to click through and actually read the original. (You know how new bloggers get obsessed with watching their stats.)

A total guess here on my part: the defense lawyer simply handed this motion to the prosecutor in court as a joke – it’s not file stamped after all. The response is brilliant.

On Splogging

[W]e abide by the principle which dictates that somebody will always position himself or herself to systematically harvest anything of value in this world for the sake of money, power and/or ego-fulfillment. We aim to be that somebody.

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Austin Criminal Defense Lawyers Going Blog Wild

Once upon a time I thought I could keep track of all the criminal defense blogs out there. Then I thought I could track Texas defense lawyer blogs. Now I can’t even keep track of the CDL bloggers in Austin, but here’s a list of the ones I know about:

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Andy Nolen's Bad Day

July 23, 2009 could have been a very good day for Houston lawyer Andy Nolen.

On that day, one of his clients, “jerry k.”, decided to give him a token of appreciation, a review on Yahoo local of all Nolen had done for him:

THIS GUY IS GREAT. Got to court early and stayed like 3 hours with my family.

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Best Law Blog Name I've Seen In Awhile

Bicker, Back & Forth, P.S.

I’ve got to come up with a good name for this blog. Any suggestions?

Testing BlogJet

I have installed an interesting application - BlogJet. It's a cool Windows client for my blog tool (as well as for other tools). Get your copy here:

"Computers are incredibly fast, accurate and stupid; humans are incredibly slow, inaccurate and brilliant; together they are powerful beyond imagination." -- Albert Einstein

OK – so that was actually the default post that popped up when I installed BlogJet – which I hope will help me overcome some of the problems I have when composing posts in Microsoft Word and then cutting and pasting into my LexBlog back end.

I almost said “wish me luck” – until I realized that if you’re reading this that it must have worked.

I Am Not the Editor of Blawg Review

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

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

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

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

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

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

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

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

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

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

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

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

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

Defending People Does Blawg Review

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


Another Criminal Law Blawg Review

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

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

Blog Archives

One of the interesting things about stats packages on blogs is that the best ones allow you to see not only exact queries on search engines by visitors but also the specific pages they reached. (One of the downsides is that when I started this blog I was obsessed with checking the stats package to see exactly how people search the internet for information. It’s endlessly fascinating and not at all what I expected. After two years plus of blogging I’m down to about 10 minutes a day or less of checking, so it’s taking a while to wear off.)

So when someone just now googled “Austin Criminal Defense Lawyer Published by Jamie Spencer, Attorney At Law October 22, 2006” yet didn’t visit the archives to see what was published that day, I thought “Gosh that’s an awfully specific search by someone who didn’t manage to actually navigate their way to the destination they were seeking… They must not know about archives.”

Well that reader has probably come and gone but there’s a link to Archives at the top of every page; if you scroll down to the bottom you can read posts by month and year and find any particular day’s worth of blogging.


And for what it’s worth – not very much - I wrote three posts that day:

Perhaps the searcher was reminiscing about the good old days when I’d post three times substantively instead of blogging about blogging, stats packages and Google…

Submit Your DWI Posts for Next Week's Blawg Review

I’ll be following up fellow Austin lawyer Todd Smith’s latest Blawg Review with one of my own over at my DWI blog, so please… all you criminal defense lawyers out there in the blogosphere write up a little something something about DWI and make sure to email it to me or submit it here.

Or just send me your criminal defense related posts. Doesn’t have to be DWI or DUI related but I thought that might help work it into the theme. Not that I have a theme yet.

Blawg Review: 14th Amendment Style

Scott Greenfield – never one to be known as late to the party – has posted Blawg Review #170 already on Sunday morning. Thank goodness I managed to squeak a post out last night around midnight.

Blawg Review is Up

This week’s edition is hosted by Jeffrey Mehalic at the West Virigina Business Litigation Blog.

The State of the Public Defender Blawgosphere

Calling All Criminal Defense Blogs

Keeping up with all the new criminal defense blogs popping up can be quite the chore sometimes. It’s well worth the time and effort, but I can’t tell you how many times I run across someone that’s been posting for awhile that I’m just now running across.

Got a request from Simple Justice to run another Criminal Law Blog survey similar to the one I did last year. The results came in two parts and were published in June of ’07. Although originally conceived as a method to rate the “Top 10” blogs, I ended up listing 23 blogs over the two part results posts.

I’m going to do it a little differently this time around. To heck with a rating system, or a Top 10, or Top 100. Just send me the name and URL of every good criminal defense type blog you read regularly or subscribe. And of course, don’t forget to tell me who you are. Everyone will get listed.

You could tell me just to count everyone in your blogroll, if you must, but let’s face it – blogrolls get a little stale. Do me a favor and cull through the best of them, by which I mostly mean those that still publish somewhat regularly. 

You can leave a comment on this post, or better still just email me at  Bonus points – which to be perfectly fair are worth nothing except they’ll help me compile this list – are given to folks who mention that I am running this survey on their own blogs. (Don’t forget to email me and let me know you’ve done that.)

I’ll post the results in 2 weeks, and depending on how fast and furious the responses come in, possibly sooner, and possibly after that as well. How’s that for a really strict set of rules and guidelines. 

As always, professor blogs, law student blogs, and yes those oh-so-few prosecutor blogs are being sought after too, so give me a shout out, and let me know what you’re reading out there.

"Blawgosphere" Becomes a Word

Or at least this is the first time I ever noticed someone Googling “Blawgosphere”.

If I Lived in Kaufman County...

…I’d be emailing Robert Guest and asking to join the Kaufman County Criminal Defense Lawyer’s Association

I Am Not Dennis Toad (Really, I'm Not)

“Hi, Dennis.”

Bumped into fellow Austin criminal defense lawyer Jon Evans in the courthouse last week, and he had just looked me right in the eyes and said, “Hi, Dennis”.

I’ve known Jon for as long as I’ve been a lawyer. He officed upstairs in the old Stewart Title Building when I was first out of law school and practicing on the first floor. He had only been practicing for about 5-6 years at the time, but he was already one of the most seasoned trial lawyers in Austin.

That was more than ten years ago. We have enjoyed each other’s company while standing in line chatting about interesting issues and recent cases and the like. 

And I’m 100% certain he knows my name is “Jamie”. But he said, “Hi Dennis”. He also had that Jon Evans grin.

I said “Hunh?” (I am getting a bit deaf in my middle age.)

“Hi, Dennis. You’re Dennis Toad right?”

Ahhhhh. I see said the blind man. Jon thought I was the anonymous author of a new “blog” that had appeared recently in the Austin blogosphere: “Austin Law News”. The author is listed as “Dennis Toad” but s/he has clearly gone to great lengths to remain anonymous – some would say “with good reason”.

Taint me.

One of my other accusers (there’s been more than Jon) pointed out to me that if it were my doing, then I would still be denying it to his face. Probably true, but it’s still not me.

I have my suspicions, but I’ll keep them to myself (unless you want to walk up to me in the courthouse and talk to me in semi-private about it).

So… Dennis Toad, please email me anonymously if you wish, but tell me…

Who are you?

UPDATEKeith Lauerman isn’t Dennis Toad either.

Northloop Neighborhoods is Not a 'Real' Blog

This is an experiment. OK – it’s a Cinco de Mayo fueled experiment.

There’s some odd bloglike but not quite a blog site out there named NorthLoop Neighborhoods that seems to cut and paste pieces of ACDL and post them without comment.

I’m posting this at 11:16 P.M. to see whether NorthLoop Neighborhoods picks it up, and if it does, how quickly it does it.

Update: It took about 45 minutes for NorthLoop to post this.


Blogrolling ACDL… Thanks go out to the following blogs that have recently added permanent links, linked to me in a post of their own, linked to my DWI blog or commented on recent posts:

And here are some other interesting blogs I’ve been following recently:

As always, I’ve likely missed some folks, so please email me if you’d like to be included in the next edition of Austin Criminal Defense Blogrolling.

On Starting a New Blog and Getting Noticed

I often get asked by new criminal law bloggers how best to get noticed by other bloggers so that they can get linked to. Actually there’s an easy answer: link out to others, and they will start reading your blog and link back to you.

While you’re at it, feel free to let the person you’re linking to know it in an email. They may not have noticed (although, as you get more and more into blogging, you’ll start to recognize when folks do). Here’s an email exchange from a relatively new blogger that is already posting frequent high quality content:


I’ve just started a new blog, Mississippi Criminal Defense Law Blog,, and wanted to reach out to you for any advice or comments you might have on blogging on the topic of criminal law.  I’ve been reviewing your posts and with permission will start making some comments on a few in the future.  I have also linked to your sites on my blogroll – I hope that is okay.

Thanks in advance for your assistance.

Kevin W. Frye
Attorney at Law

My answer:

First and foremost, never ask permission to link to me: just do it!

Haha.  No, but seriously, thank you, and by the way, linking out to others is the best, quickest, easiest way to get them to notice you and to get them to link back to you.

And feel free to grab snippets of what folks say (yes, me included) and comment on why it is wrong as well as why it is 'right'.  It helps a little if I actually am wrong, but again, in the practical blawgosphere, that's more than welcome.

Blogging is a discussion - either in the comments section, or between blogs.

You've definitely got a good start.  I'll be linking to you in my next edition of "blogrolling" - if not before then.

Thanks for the email, and by the way, at the beginning, feel free to email folks when you link to them (you won't need to do it with me - I'm subscribing to your blog now, and I would have seen it anyway on Technorati) - but I mean don't feel bashful if you link to someone and you want them to know you did.

Finally, permission (and you should ask permission for this one) to reprint your email to me?  And my response to you?  I'll include a link about your new blog of course, but probably post it as "advice to new criminal defense bloggers".  Or I can just leave you out of it and anon-o-mize it.

Good luck.  Looking forward to more posts from you.


Perhaps it’s not obvious, but just in case, let me add “reprinted with permission”.

More Prosecutor Blogs

Ken Lammers at CrimLaw will be happy to know that the list of prosecutor blogs just keeps growing and growing.

I should have thrown A Harris County Lawyer into the mix a long time ago. And I’ve recently run across “da blog” written by an anonymous “assistant district attorney in a large, metropolitan city”. My guess? That city is likely Houston, and definitely in Texas.

Any other blogging prosecutors please email me or comment sometime so I’ll be sure to know about you.


Blogrolling ACDL… Thanks go out to the following blogs that have recently added permanent links, linked to me in a post of their own, linked to my DWI blog or commented on recent posts:

And here are some other interesting blogs I’ve been following recently:

As always, I’ve likely missed some folks, so please email me if you’d like to be included in the next edition of Austin Criminal Defense Blogrolling.

Crim Law TV & Blawg Review

This week’s blawg review is up at California Blog of Appeal.

And from Ken Lammers, this week’s edition of Crim Law TV

Another Criminal Lawyer Hosting Blawg Review

Just noticed that New York criminal defense lawyer Scott Greenfield has signed up to do a Blawg Review in July. Excellent – looking forward to it.

Other criminal law bloggers out there – maybe even a prosecutor for a change – should seriously consider signing up as well. I can tell you the one I did definitely took some time and effort, but it was worth it.

For Pete’s sake!  Criminal defense (and, yes, prosecution) is inherently more interesting than Bankruptcy, Divorce, Labor Law, Mediation, Patent Law – more interesting than every other kind of law there is to practice.

Let’s get some more defenders signed up to host

Best Google Baiting Practice: Stock Phrases or Content?

Houston Criminal Defense Lawyer**[see first comment] Mark Bennett pokes some good natured fun at me about a recent post and lists some of the phrases where he covets high Google SERPs:

Austin criminal defense lawyer Jamie Spencer talks about “how to rank high on Google’s natural results.”

I have heard — and it makes sense — that a page that uses the phrase “Houston criminal defense lawyer” or “Houston criminal defense attorney” will rank higher on Google than a page by a Houston lawyer that talks about criminal defense trial lawyering without those words strung together in that order, even though it’s not usually necessary for a Houston lawyer practicing criminal defense to use the words “Houston criminal defense” in a post about the subject.

I’d like Defending People to pop up at the top of a Google search for “Houston criminal defense lawyer” or “Houston criminal attorney,” but blatantly inserting those phrases into a post has always seemed a bit obnoxious. Your thoughts?

[Do I need to reiterate? He’s poking fun at me.]

And what’s his ranking on the phrases he listed? 

Houston criminal defense lawyer: #9. Houston criminal defense attorney: #26. Houston lawyer practicing criminal defense: #11. Houston criminal defense: #18. Houston criminal attorney: #9.

Not bad. Several of those are already on the first page of the results. Some aren’t. But numero uno is always best right? If it ain’t obvious, yes I’m handing out some link love – but, Mark writes a great blog, and recently his RSS feed changed requiring that you reup your subscription – so I’m only trying to help him out , aight? Let’s check back in 6 months and do an update on those numbers, shall we?

On a related note, Dave Matson of High Steppin’ Searches left a comment on that same post:

Certainly it's pretty difficult to rank well without quality content, but the measure of that is links.

Having a quality blog means other quality blogs and sites with credibility link to you. Authority bestows authority.

Being widely blogrolled is a huge benefit to your rankings. And that wouldn't be the case if you didn't write things that people think are worth linking to.

Of course, being on the LexBlog network of blogrolls doesn't hurt, either.

I agree. When folks call me to ask me about LexBlog, “being added to the blogroll” is one of the benefits I list. And no, I don’t get any kickbacks from Kevin for tooting their horn – I actually like talking about blogging, perhaps because it was one more way to postpone actually doing it.

But ‘just’ being added to the blogroll won’t get you anywhere really – not in the long run. As Dave says, you’ve got to write stuff folks think is worth posting about. Google ranks that higher than anything else. In fact, out in SEO land speculation is that they recently changed the algorithm to lower the value of blogroll links.

Having something you actually wrote cut and pasted and then commented on will do you a lot more good. And, that takes us back to rule #1: content, content, content.

Defending People is all about content. Mark ranks as high as he does now based entirely on that. The others in front of him, for now, have SEO folks getting backlinks from other sites, but that won’t defeat good content in the long run.

On a completely side note, if I don’t want to start ranking ‘high’ in the Google SERPs for stuff like Austin SEO, and Texas search engine optimization, I need to get back to substantive defense blogging. It’s fine to take a sabbatical, and start blogging about blogging, but at some point, I’ve got to remember why I started this whole thing in the first place.

With that in mind, I’m about to pen a post I’ve been thinking ages about. So without further ado, here’s a self link to:

My Own Personal Shoplifting Experience.

Enough about ‘blawgs’. Back to criminal defense. If I use the word Google in my next 50 posts, somebody just shoot me. Even I’m tired of the topic by now.

Blogrolling: New Feature

Blogrolling ACDL… Thanks go out to the following blogs that have recently added permanent links, linked to me in a post of their own or commented on recent posts:

Stole the idea from Evan Schaffer’s Legal Underground. Evan makes sure to return link love on a regular basis by having a frequent ‘Blogrolling’ post.

I do check Technorati for recent bloggers who have linked to me, but please also feel free to email me if you add me to your blogroll, or link to me in a post. I’m thinking I can make a twice monthly feature out of this.

And, since this a new feature, and I’m certain I haven’t gotten around to doing it for everyone I should, please let me know if U’ve left you out in the past – or just would like to be reincluded in the future.

I know in the back of my mind I’m leaving some people out – so again… email me.

Prosecutor Blogs: How Many Are Out There?

Erstwhile defense attorney and current prosecutor/blogger Ken Lammers points to Western Justice, a relatively new prosecutor in the practical blawgosphere:

Cool, we're now up to 3 prosecutors who actually blawg about *GASP* criminal law.

I’m pretty sure Ken is including himself, Western, and of course, Tom McKenna at Seeking Justice. (Since Tom’s URL is ConfoundingTheWicked.blogspot, here’s some too old to still be under copyright Mozart for the classical music lovers out there.)

Let me throw Joel Jacobsen’s erudite Judging Crimes into that mix as well. It’s from a prosecutor’s point of view, and worth an addition to any criminal lawyer’s RSS reader.

Ken points out that both Western Justice and Defending People “share an affinity” for the same painting, Pollice Verso, so how about some prosecutorial props for Dallas Sidebar – and of course his masthead: Raphael’s Judgment of Solomon.

By the way, Mark has revamped his site recently, so the thumbs up/thumbs down painting is less recognizable- but more importantly, jury consultant Anne Reed reminds me to remind my readers that you need to resubscribe to Mark’s blog since he moved to WordPress. If “Blog or Government Propaganda Tool” is the last item in your reader, you are literally 50+ posts behind.

Back to prosecutors… Sarena Straus found a new prosecutor blogger in ‘You… For the People’ – but I fear that ‘You’ may have suffered the typical two posts and out fate that many bloggers suffer. Meanwhile, Sarena mostly tells us about her post prosecutorial upcoming TV appearances – such as this one:

We will be discussing the case of Jennifer Latham. Latham kidnapped an infant from a Florida hospital and was apprehended a short time later.

The judge, believing that Latham had no prior convictions, agreed to release her without bail on the condition that she wear an ankle bracelet with a GPS. It was later discovered that Latham had a criminal record in another state.

We will be discussing whether the judge's decision was appropriate. I'm sure you can guess what my position is....

I’ll cop to not seeing the show, but since I was asked to guess, let me surmise that her position was… “You’ve got to keep people in jail until you absolutely confirm that they have no prior history anywhere.” And then perhaps… “Once you confirm that there is no prior history, keep them in jail anyway, because you can’t ever actaully prove a negative”?

So Ken’s mostly right. There aren’t many prosecutor blogging about criminal law and almost nothing but criminal law. But I think there are more than three.

Anyone else out there subscribe to some that I haven’t mentioned?  And any prosecutors out there starting a blog, please feel free to email me, I'll be happy to give your new blog a little link love.

Join the LinkedIn Legal Blogging Group

Fellow blogging Texas lawyer Todd Smith already said it best, so this is just a cut and paste:

Kevin O'Keefe of LexBlog recently started a group on LinkedIn to try and connect with more folks in the legal industry who have an interest in blogging.  The group is already up to about 350 members and could eventually grow into the thousands.

Kevin says he's going to focus the group on ways to exchange information about blogging.  If you're on LinkedIn (I am, and you can view my profile here), then click through to Kevin's post and join.  And if you don't know Kevin, you should.  He really knows his stuff.

Requires signing up for LinkedIn – of course – but that’s already reconnected me to several folks I knew from a long time back. Basically I’m looking forward to 2 things. Subscribing to good blogs I didn’t know about, and yes, of course, the potential for link love.

Who Else Can Deprive You of Your Liberty?

A Harris County Lawyer (yes, that’s the name – it’s an anonymous blogger – probably a prosecutor in the Harris County D.A.’s Office) objects to the ‘fear mongering” on fellow defense lawyer Mark Bennett’s blog:

Okay, I don't know how long this has been up on Bennett's website, but I just noticed this blurb he has in the upper right-hand corner:

Defending People is about protecting the people, one at a time, from the only viable threat to their liberty: their government.

Um, isn't he the one who has been blasting prosecutors for instilling fear in people?

I plan to fully investigate this, but right now, I'm hiding under my covers because the government is trying to get me.

This actually has to do with AHCL’s unwavering support of Kelly Siegler for Harris County DA, and refers to Bennett’s post about Siegler’s fearmongering.

But, while AHCL is on the subject, what’s wrong with Mark’s tag line?

Murderers (some would argue the State included) can take your life.

Thieves can take your property.

You can forfeit your own dignity.

But who besides the government can take your liberty?

Does Writing A Blog Make You An Instant Authority?

Larry King interviewed the apoplectic comedian Lewis Black tonight on CNN (30 minutes past the end of the broadcast and it’s still not linkable – is this the internet age or not? No seriously, I’ll try to link to it when it’s available.)

Last question from Larry was about whether or not the rumor was true: had Black started a blog? Absolutely not. “I refuse to blog,” said Black, continuing:

…just because you can type on a screen doesn’t give you legitimacy as an authority on anything.

King: Anyone can blog, right? [Typically sycophantic, notice how Larry turns from being willing to plug Black’s hypothetical new non-existent blog to immediately bashing the concept for blogging itself – based, of course, on his guest’s answer.]

Black: Everybody does! [Minor epileptic fit ensues.] …you used to have to put up a degree!

He’s right of course. 

You’re going to have a hard time blogging regularly about a subject that you don’t know anything about. And while you know everything about your own personal life, and are therefore immediately the world’s foremost expert on everything relevant to your own personal diary-type blog, that’s not true for ‘professional’ blogging.

2 Criminal Defense Blogs Change Addresses

David Terrell has moved “In the Moment” to a new address, while keeping the name of the blog. Robert Guest starts over as “Dallas Criminal Defense Lawyer”. (Given the lack of originality of my own blog’s name, I suppose am not allowed to join the chorus of blawgers who lament Guest’s abandonment of “I Was The State”.)

Both of these guys are must-subscribes in any criminal defense lawyer’s RSS reader, so make sure to update accordingly.

Splogs: Plagiarizing for Money

Part II of Naming Names and Plagiarism in Criminal Defense Blogs

In Part I we covered lawyers who cut and paste news articles without attribution, and without any thought to the potential effects on some other criminal defense lawyer’s client.

Windy Pundit covered part II, sploggers, better than I could in a comment on a Simple Justice post. (But it wouldn’t be much of a post if I didn’t add some of my own thoughts anyway.)

A few background details. Blogging on Blogger is free. TypePad is cheap. And, aside from the hosting cost if you put it on a custom URL, WordPress is also free and it’s fancier than Blogger; but it requires a modicum of computer know how, in terms of installing the software, etc. (The use of the word ‘modicum’ is not meant in a derogatory fashion – I’ve never set up a WordPress blog, and I might or might not be able to do so easily.)

The point is, setting up a blog is somewhere between inexpensive and free.

Then we add internet juggernaut Google to the mix. Google makes the bulk of its money from the sponsored results section that appears above most internet searches. The advertising program is called AdWords. Every time someone googles a phrase and clicks on the sponsored result, Google gets paid. If there are multiple folks bidding for higher placement, Google gets paid even more.

To increase the number of people who are exposed to AdWords, Google implemented the AdSense program. Through AdSense, anyone can place AdWords on their site, and receive a portion of the click-through price from Google. (I think it’s 5 or 10%, but I don’t feel like looking it up.)

Google owns the Blogger platform – so it made it easy for users to place AdSense ads on that free platform.

The result was predictable. Folks from literally all over the world starting setting up blogs for the sole purpose of earning a small percentage of the advertising revenue. And a new word was born as well: splogs – short for spam blogs.

I am somewhat familiar with this phenomenon by chance. A large portion of my practice involves representing folks charged with DWI, and I practice in Austin, Texas. In September of 2006, a year and a half ago now, an article was written on a ‘how to make money by blogging’ blog, entitled, “Highest Paying Adsense Keyword: DWI Austin”.

At that time, advertisers in this market were bidding as high as $82.95 per click for anyone who was searching google with those two words. (Looks like it has since fallen to the uber-reasonable rate of merely $51.00, while the mesothelioma lawyers have taken over most of the top 20 spots.)

This all happened because a bidding war broke out between DWI lawyers in Austin who all decided to advertise on Google, roughly at about the same time. Then many of them decided they wanted to be number one. Simple economics tells us this drove the bidding price up, up and away.

Since I also author a ‘DWI Blog’ along with this one, sploggers started cutting and pasting my articles on their money making blogs. Didn’t matter that I don’t advertise; my site comes up pretty high for a variety of searches using the important (i.e., high paying) keywords.

Robert Guest, of the newly minted Dallas Criminal Defense Lawyer Blog, ran across a blog that had copied some of my posts wholesale, and alerted me to it in the comment section of one of my posts. Nothing I can do about it.

Except call the sploggers what they are: plagiarists.

Naming Names and Plagiarism in Criminal Defense Blogs

Houston defense attorney Mark Bennett is understandably outraged to see that fellow criminal law blogger David Finn has reproduced the Department of Justice’s press release about Mark’s client as his own work. Mark’s concern, as always, is for his own client, who thanks to this “Federal Criminal Defense Lawyer” has his name besmirched before a jury can even be selected. 

Others might consider it unseemly to not even attribute the DOJ in the post, not to link to the original, not even to indent someone else’s words as is customary in blogging etiquette. No, this is all under the banner of the “Personal Online Journal of David Finn”.

Meanwhile New York defense lawyer Scott Greenfield recently groused about his original writings being bastardized as unintelligible garbage in random blogs. He first thought the culprit was the blogging platform WordPress, but Windy Pundit cleared up the misunderstanding in a comment. Turns out it was just another splog.

These two instances are related, and they illustrate the 2 types of bad and/or useless blogs in the criminal blawgosphere:

  1. Lawyers that don’t know or understand the purpose of blogging.
  2. Folks trying to monetize a cheap/free site quickly, using Google’s AdSense program.

Category Number One: the Lawyers.

These are lawyers who have contacted (or been contacted by) some Search Engine Optimization genius, who tells them that blogs are the latest thing. 

“It’s all about content. Frequently changing and updating content on your site. That’s what Google values the most. That’s what a blog is,” says our easily imaginable SEO expert.

So the web designer sets up a ‘blog’ for the defense lawyer, and tells him, “Take snippets from the local news and post regularly.” Soemtimes the webmeister advises the potential client to “comment on the story”.

Perhaps that saves Finn from the plagiarism charge. Referring, apparently, to federal indictments relating to mortgage fraud, he prefaces the cut-and-paste with the pithy phrase, “Expect to see more of this in 2008”. So at least that’s original.

But, ignoring Bennett’s point about criminal defense lawyers doing the government’s dirty work for the, I still don’t get it. This blog is clearly being used as a marketing tool and exists for that purpose alone. There’s no insight or commentary. Nothing. 

The part that confuses me is this: would someone being investigated or perhaps already indicted by the Federal Government run across this site? Potentially yes. Would they say to themselves, what, I don’t know, “I want to hire the guy who repeats the federal prosecutor’s propaganda? Give me the guy who names defendants in his blog.”? 

I would think not.  So, never mind the ethics of plagiarism, how effective a marketing tool could it be? 

Category Number Two: the sploggers.

Written after the fact, and now contained in a separate post.

Absence Makes the Heart Grow Fonder

So, Sally Field didn’t actually say, “You like me, you really really like me”…but

It does feel good to have been called out by a few folks for my light blogging recently; since you asked, I’ll try to do better.

Update: Fantastic.  The Texas Tornado (mis)characterizes this post as 'a promise to blog more'.  Fine.  I'll get back at it.

Looking For a Theme For Your New Blog?

Scott probably meant it (at least partly) tongue in cheek, but hey, a good idea is a good idea:

The string of recent corruption stories coming out of Texas cities and law enforcement around the state makes me think the topic nearly deserves its own independent blog: No doubt you could productively focus on the topic full time.

Seriously. Someone out there is looking for a good blog niche. I’d add it to my RSS reader.

What Would Lawyers Do? (WWLD)

As lawyers in Pakistan take to the streets to protest President Musharraf’s declaration of martial law a state of emergency, Steanso wonders how American lawyers would react to the same set of circumstances:

It kind of makes me wonder what would happen in this country if the president were to suddenly implement martial law and suspend all of our civil rights. I guess it would be a fair bet that certain groups would take to the streets in protest, but I have a hard time believing that American lawyers would be amongst the people leading the charge…

[I]f the American legal system were to come under attack, American lawyers would mostly file lawsuits and write angry letters. If that wasn't effective, they'd mostly throw up their hands and start retraining themselves for some other line of white collar work.

Maybe PR, marketing, or sales. I'm not sure American lawyers would be willing to march or take a baton to the head in defense of our legal system.

First, I should thank Jason for being kind enough to exempt me from this indictment, even if it was partly (wholly?) tongue-in-cheek.

His hypothetical is somewhat hard to imagine, despite our President’s suspension of some of our most important civil rights. As bad as the prior few years have been for civil liberties, I still think it’s difficult for us to really imagine what it must be like to live in an overt dictatorship.

Ralph Nader recently addressed this issue in a piece published on CounterPunch: “Where Are the Lawyers of America?

I have been asking lawyers why they do not become directly active in challenging what they themselves believe is a reckless above-the-law Presidency and its enormous concentration of unlawful power…

It is up to the lawyers to rally for the Republic. This is deep patriotism, for without upholding our constitution, and the laws of the land, what will become of our country?

If Nader is correct that lawyers haven’t done enough to challenge the administration’s abuse of power so far, could Steans be right that lawyers would be too apathetic to fight when martial law comes to America?

I think the real answer is that lawyers are like everyone else. Some are lazy, some hard working; some are unethical, some very principled. The range of adjectives that can be used to describe people in general can just as easily modify ‘American lawyers’.

Some lawyers would protest vigorously, while others would do little to nothing.

N.B. The League of Melbotis adds a comment to Jason’s post challenging me, “I would like to see Jamie take on "The Man" in a more direct fashion. Fight the power, Jamie.”

League! Right now, being a criminal defense lawyer is the best way I know how to fight the man. Got any better suggestions?

Do Me A Favor... (Vote for Best Law Blog)

Seriously, anyone that reads this blog on a regular basis, please head over to the 2007 Weblog Awards and vote for Scott Greenfield’s Simple Justice in the best law blog category.

#1) Scott/Simple Justice deserves it on the merits.

#2) Criminal defense lawyer blogging is still in its infancy; those of us that are interested need to promote it.

Yes, I’m attempting to stuff the ballot box. I’ll be voting once a day, as the rules allow. All I’m asking is that you log in and cast your ballot at least once.

Heck, the other finalists all are fine candidates:

Above the Law
How Appealing
Volokh Conspiracy
Sui Generis
Wall Street Journal Law Blog
Likelihood Of Confusion
Ms JD Changing the Face of the Legal Profession

Several, in fact, are on my RSS reader. But there’s a reason that Hollywood puts out TV shows and movies about criminal prosecution and defense, and ignores bankruptcy, divorce and other civil lawyers… it’s boring.

Scott writes interesting topical posts several times a day, on a subject we are all interested in, no matter what our profession. Vote now.

I'll make you a deal.  Leave me a comment (or email me) after you vote for Simple Justice, and I'll make sure to link back to your blog over the next month or so.

Simply the Best: Law Blogs Continuation Meme

Anne Reed tagged me (and thanks for the compliment) in her Simply the Best meme, and asks that I pay it forward. I feel a bit like Robert Ambrogi, who said about being an earlier victim of the original tagger – the anonymous Blawg Review editor:

I truly hate these things. The editor of Blawg Review (who I don't hate) has started a meme he calls Simply the Best. He's tagged his top 10 law blogs; each of them, in turn, is supposed to tag theirs, and so on, until we end up with one great big group hug. I've now been tagged -- by both J. Craig Williams and Monica Bay -- and had to think long and hard before joining in. (Legal Blog Watch, where I co-blog with Carolyn Elefant, has also been tagged.

Here's the problem: My feedreader tells me that I subscribe to the RSS feeds of roughly 350 blogs. Those are the ones I at least scan on a regular basis. Almost every day, it seems, I discover yet another blog that I like. There are hundreds, if not thousands, of really good blogs out there. To pick 10 from among them is somewhat arbitrary and certainly capricious.

OK, so I don’t really hate memes – I just used that block quote to tag some more folks I could have included in my list. Yes, that’s cheating. It allows to me to tag more than ten blawgers. But it’s hard to pare this down to 10.

And I’m going to cheat some more by disqualifying Defending People and Simple Justice for the same reason that Anne did, that is, that she had meme’d them earlier this week. Well, actually I’m probably disqualifying them for the real reason that she did: more cheating and it allows for more in the list. Heck, if I’m gonna think like that, I may as well disqualify Gideon and Capital Defense Weekly just because they made Anne’s list. And Doug Berman for making the original list.

Alright, enough stalling/cheating. Here’s my ‘I wish I had more spots’ and in no particular order top 10:

And polishing it off, neither a law nor even a lawyer blog, just a guy that blogs about how to blog, which all blogging lawyers can use…

There you go. Also, I left out about 30-70. But those I named must press on…

Update: Others have joined in.

May It Please the Court, The Common Scold, The UCL Practitioner, Robert Ambrogi's LawSites, Where's Travis McGee?, What About Clients?, New York Personal Injury Law Blog, Overlawyered, TalkLeft, Lowering the Bar, Charon QC, Arbitrary and Capricious, Binary Law, Sui Generis, Nearly Legal, Legal Blog Watch, StandDown Texas Project, Minor Wisdom, Family Lore, Law School Innovation, GeekLawyer, lo-fi librarian, China Law Blog, More Partner Income, Patent Baristas, The California Blog of Appeal, Decision of the Day, QuizLaw, f/k/a

Voir Dire Themed Blawg Review at Deliberations

Anne Reed of Deliberations writes this week’s edition of Blawg Review: “The 17 Best Tips for Voir Dire”.

Sure, it’s a way to theme an excellent Blawg Review, but here are some of my favorites, renumbered, and in no particular order:

  1. Assume Nothing
  2. Watch for Points of View
  3. Notice How They Process Information
  4. Pay Attention to the Quiet Ones
  5. Some Just Want To Get Back to Work

Paying attention to the quiet ones in jury selection really hits home. How many times do you realize that after you and the prosecutor have fought over challenges for cause, then submitted your preemptory challenges, and the panel is called to be seated that… up to half the jury consists of those that managed to keep their mouths shut most of the time?

I guess that’s because the ones that weren’t quiet managed to put fear into one side or the other.

Next week’s Blawg Review host is Lex Ferenda, and Anne has set a high bar.

Criminal Lawyer Blog Roundup

If you don’t count hosting Blog Review, or my Criminal Law Blog Poll, it’s been awhile since I’ve done one of these, so here goes:

Shawn Matlock writes about the ‘Business of Winning’ criminal cases, and Stephen Gustitis follows up with ‘Adjusting Client Expectations’. Jon Katz’ philosophy of winning is all about t’ai chi.

Robert Guest posts on DWI propaganda and what prosecutors are taught about DWI. Hunter Biederman reports on CMI’s refusal (so far) to comply with court orders that they turn over the source code for the mysterious Intoxilyzer 5000. And Steven Eversole asks us whether there’s a presumption of innocence or guilt in DUI cases.

Mark Bennett writes related posts on ‘Managing the Risk of Child Sex Abuse’ and ‘We Predators’.

Ed Chernoff tells us about a late Friday phone call he got. You know the kind: the Friday before trial the prosecutor calls to tell you that every single co-defendant has reached a last minute plea agreement to testify against your client in a massive Federal drug conspiracy case.

 Brian Tannebaum lists some failures in the criminal defense system.

Mark Jakubik chimes in on the recent blawgosphere debate about whether criminal defense lawyers can be ‘conservatives’.

Overcriminalized, which has plenty of grist from Texas to talk about, notes that other states are not immune from overreacting to non-criminal situations.

Scott Greenfield talks about the Dream Team phenomenon.

And White Collar Crime Prof Blog predicts that shenanigans involving Iraq rebuilding contracts will become the new goldmine for Federal white collar criminal defense attorneys.

[Let me add: the ‘full’ results of the Criminal Law Blog Poll have not yet been posted, inasmuch as I still need to complete the task by adding a few more posts with links to all responders. Fear not, it’s in the proverbial ‘to do’ list.]

Blawg Review at Texas Appellate Law Blog

I’m late with the shout out on this one, but we have another Texas lawyer hosting Blawg Review.   Another Austin lawyer at that (although, dear readers, he's clearly of the civil, not the criminal defense variety).

And you’ve got to love appellate law specialist D. Todd Smith’s title for this week’s edition:

No. 07-123
In re Blawg Review

Los Angeles Police Department Blog

The LAPD has recently started a blog. Makes me wonder when or whether Austin Police Department, or perhaps some other Texas city police department will…

Another Lawyer Switches to the Mac

Well, in part.  This is my first blog post from my new MacBook Pro laptop.  I've only had it a few days, but as a long time PC guy (well, lifelong) I have to say that I'm pleased so far.  My office desktop is still a PC, but when it comes time for a new computer... well, we'll just have to see.

Might make the complete switch before then, you never know.

Thanks go out to fellow bloggers Grant Griffiths and Ben Stevens for helping me make the (partial) switch.

Blawg Review #117

Welcome to Blawg Review Number 117: the Bill of Rights/Criminal Law Edition.

Approximately 5% of previous Blawg Review hosts have blogs related to criminal law, and not all of them practice and/or blog exclusively about criminal defense: Appellate Law & Practice, Crime and Federalism, JAG Central, Blonde Justice, Concurring Opinions, and Public Defender Stuff.

This week, I will supplement the usual suspects’ contributions (i.e. posts from Civil Lawyers) with a healthy dose from around the bourgeoning criminal law blogosphere. I hope that criminal defense attorneys will consider hosting Blawg Review in future editions. At the very least, criminal law bloggers should consider submitting their best posts on a weekly basis.

Last week’s host, Corporate Law UK, wrote the Review in iambic pentameter (and possibly inspired Nate Oman’s entry this week about the demise of wigs in the British legal profession). Alas, poetry is well beyond my talents, so we shall have to settle on a different theme.

I decided to use the six amendments from the Bill of Rights that most apply to criminal defense, highlight a historic Supreme Court criminal case, and use the text of the Amendment itself as the springboard for this week’s featured posts. [Civil lawyers need not worry… I found ways to work your submissions in.]

Here goes…


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Texas v. Johnson, 491 U.S. 397 (1989) The Supreme Court affirms that flag burning is protected speech under the 1st Amendment. Many forget that this is indeed an important criminal case. This wasn’t a case of prior restraint…. Johnson had originally been sentenced to one year in jail for the overtly political statement consisting of burning the flag outside the 1984 Republican National Convention in Dallas, Texas. Justice Brennan authored the 5-4 decision.

Freedom of Speech

The patients' bill of rights is a fluid concept, from state to state, and hospital to hospital, but it usually includes the right to clear communication about his or her treatment options, free from governmental interference. David Harlow discusses amendments to the Stark self referral rules, dealing with how clear communication about recommended procedures could be clouded by a physician's financial interest in the referral. [Off topic note: please consider sponsoring David as he bicycles 200 miles in 2 days this summer to raise money for cancer research and treatment.]

Free speech is great, of course, but would it matter if no one were listening? Dave Hoffman starts a flurry with his post entitled “The Flat Legal Blogosphere, and What to Do About It”. Eric Turkewitz was listening, as evidenced by his post “Is the Blawgosphere Stagnating?” PrawfsBlawg talks about the future of legal blogging. Next Simple Justice responds, and then Mark Bennett. Hoffman writes more on the topic, and asks us to consider “Why do Lawyers Blog?” I’d argue that this blogversation itself provides proof of a vibrant legal blogging community. Indeed, people are listening.


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Wong Sun v. United States, 371 U.S. 471 (1963)  The Supreme Court declares that narcotics seized from an illegal search were the “fruit of the poisonous tree” because none of it would have “come to light but for the illegal actions of the police”.

Unreasonable Search and Seizure

Kansas Defenders reports on an appellate decision that found a pat-down search unreasonable.

Defending folks charged with possession of marijuana, and other controlled substances requires a thorough knowledge of Search and Seizure law, and the ability to successfully argue Motions to Suppress the Evidence. But for now, a short detour into the world of bloggers who would like to see the ‘War on Drugs’ ended in the first place.

Pete Guither writes a letter to the DEA protesting the threatened asset forfeiture against the building owners where medical marijuana dispensaries are housed in Los Angeles.

Blame the Drug War wonders whether her anti-Drug War activism does any good.

Blog Reload brings us his Marijuana News Roundup.

Radley Balko focuses on the over-criminalization of pain medication in his House Crime Subcommittee post.

And for those who think being anti-Drug War is solely a cover for prejudice against the police be sure to subscribe to the Law Enforcement Against Prohibition blog.


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 offense 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.

Miranda v. Arizona, 384 U.S. 436 (1966) To insure protection of the right not to incriminate oneself, the Supremes proscribe the prophylactic remedy now known as the Miranda warnings, or, said in plain English…the police must advise someone in custody of their rights before questioning them. Little known fact? Miranda was retried without the illegally obtained evidence, and reconvicted.

Indictment by Grand Jury

The accuser has supposedly repressed the memory of the unprovable crime for 32 years, but reported it to the police recently. Three days before the State dismissed the case, Simple Justice blasts the District Attorney’s Office for indicting a man when they knew they didn’t have enough evidence to convict. Despite the dismissal of charges, Scott’s original point remains true: the damage to reputation is unfortunately permanent.

Double Jeopardy

Penny Umstattd-Cope reviews an interesting Double Jeopardy decision from Missouri State Court. The defendant was retried after a successful appeal, and argued that his second jury should have been instructed to limit their punishment range based on the first (reversed) case. The Appellate Court disagreed.

Compelled to be a Witness against Himself

Rob Leonard notes that 30 hours of police interrogation can easily produce false confessions – in this case, one that lead to wrongful imprisonment for 22 years.

The opposite of “not being compelled to be a witness against yourself” is often “interrogation” or “torture,” and Marty Lederman collects a compendium of Op-Ed pieces on those subjects written by Jack Balkin.

Shawn Matlock points out that since we have a 5th Amendment, you ought to use it.

Miranda Rights

Randy England answers the question all criminal defense lawyers hear: “The police didn’t read me my rights. Will they drop the charge?

Appellate Law & Practice applauds the California First for affirming the suppression of un-Mirandized statements, and resisting the urge to find some sort of “the Defendant is a bad guy” exception.


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Gideon v. Wainwright, 372 U.S. 335 (1963) Denied access to a lawyer, forced to defend himself and sentenced to five years in prison, Clarence Gideon appealed his case all the way to the Supreme Court. Reversing several previous decisions, the Court finally allowed that “assistance of counsel” was necessary, even for non-capital cases. Little known fact? Future Supreme Court Justice Abe Fortas was eventually assigned to help argue for Gideon at the Supreme Court.

Jury Trial

Jon Katz writes on the all too common phenomenon of jurors caving into pressure from fellow jurors, especially in serious felony criminal trials.

Mark Bennett describes the five basic defenses to possession charges that should be considered at trial. Of course, when actually in jury trial, don’t forget Mark’s corollary to Occam’s Razor… “Bennett’s Chainsaw” or why the second simplest explanation of the Government’s evidence is usually the best.

You can’t very well have the right to a jury trial, without imposing some sort of compulsory jury duty requirement on others. Kevin Underhill and Seth Freilich reported the case of a fellow who tried just a bit too hard and too obviously to get out of jury duty during voir dire and found himself jailed for his troubles.

Anne Reed examines the effect of having lawyers in your jury pool or on your panel.

Frolics and Detours’ latest post illustrates the emotional toll a criminal trial can take on the defense attorney.

And, just because you have the right to a jury trial in a criminal case, doesn’t mean you can’t waive it. Robert Guest reports on a successful DWI bench trial. Windy Pundit had less success in his trial by judge. A Public Defender writes that Windy’s experience with testilying is all too common.

The Confrontation Clause

Electric Lawyer writes about a really bad decision from the Second District of California allowing hearsay evidence without allowing the defendant to confront his accuser.

Prosecutor Joel Jacobsen posts about two Federal Courts coming to different conclusions about the same legal question; namely, the testimonial nature of challenged hearsay under the Confrontation Clause.

The Presumption of Innocence

In Coffin v. U.S., 156 U.S. 432 (1895), the Supreme Court affirmed that the presumption of innocence in federal cases flowed from the guarantees of the 5th and 6th Amendments in the Bill of Rights (later applied to the States through the 14th Amendment). 

In that vein, Albany Lawyer Warren Redlich responds to a prosecutor who accused him of thinking everyone was innocent. (I didn’t find any ‘this week’ posts about the 5th amendment’s due process guarantee, but feel free to access Redlich’s older article “A Substantive Due Process Challenge to the War on Drugs”.)

Assistance of Counsel

The right to effective assistance of counsel requires a healthy dose of client involvement. Stephen Gustitis offers suggestions to criminal defense lawyers on how best to gather the facts from your client. And speaking of building a defense, Philadelphia Criminal Defense Lawyer Mark Jakubik continues a recent discussion on having clients take polygraphs.

Jeralyn Merritt at TalkLeft comments on a new study by a Harvard economist that Federal Public Defenders get better results than appointed but privately hired counsel. The study certainly stirred up the criminal blogosphere… same subject, more views on it from: Empirical Legal Studies, Public Defender Dude, Rumpole, Osler’s Razor, Singing Loudly, Doug Berman, and HackLawyer. Access the study itself here: An Analysis of the Performance of Federal Indigent Defense Counsel.

Brett Trout asks “Are You Getting the Most Out of Your Lawyer?


Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Robinson v. California, 370 U.S. 660 (1962) The trial judge instructed the jury to convict Robinson if they found that he was addicted to the use of narcotics and defined ‘addicted to the use of narcotics’ as ‘based upon a condition or status’. The State of California argued that ‘a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there’. The Supreme Court ruled that criminalizing addiction (as opposed to use of narcotics) was cruel and unusual.

Cruel and Unusual Punishment

Eugene Volokh finds it unusual that there used to be the statutory possibility of no punishment for men who killed their wives’ lovers in The Unwritten Law, Written.

Speaking of punishment, Leon Gettler speculates on what kind of sentence Conrad Black will receive now that he has been convicted on 4 counts of fraud and obstruction of justice. White Collar Crime Prof Blog also looks ahead to Lord Black’s sentence. Doug Berman points out that Black will be subject to enhanced penalties based on his nine not guilty verdicts. And for complete coverage of the entire trial from the beginning, visit The Conrad Black Trial: Comeuppance or Vindication blog, written by Daniel Ryan.

Louis Lechter writes about some of the collateral consequences and potential civil punishments the Texas Board of Nursing Examiners contemplates when a nurse is arrested for and/or convicted of DWI.

Scott Henson provides an example of excessive punishment due to Texas’ penchant for classifying everyday juvenile behavior as a felony: in this case, a sixth grader wrote “I love Alex” with a baby blue Sharpie on the school gym wall. On a semi-related note, Gopher Lawyer spends the day interviewing clients in the Juvenile Detention CenterBlawgraphy weighs in as well.

Seeking Justice notes that some people who voice general disapproval of the ultimate punishment, the death penalty for murder convictions, actually support it in certain individual cases. Opinio Juris points out that other countries have the death penalty for non-violent crimes. And for those defending against capital murder charges, you might use a little Clarence Darrow inspiration for closing argument.


The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Griswold v. Connecticut, 381 U.S. 479 (1965) Being convicted of giving ‘information, instruction, and medical advice to married persons as to the means of preventing conception’…sounds a whole lot like convicting licensed physicians for advising married people that the best way to not have more children is to use a condom. Justice William O. Douglas’ opinion found the law invalid based on the constitutional “Right to Privacy”. While not specifically mentioned in the Constitution, Douglas reasoned it still existed because the specific guarantees of the Bill of Rights have penumbras “formed by emanations from those guarantees that help give them life and substance”.

Along those lines, let me restate the 9th Amendment for purposes of this edition of Blawg Review: My announced intention of focusing on criminal law blogs, shall not be construed to deny or disparage posts written about other legal concepts. Hence, the last subsection entitled…

This Week’s Penumbra Posts

Carolyn Elefant tells us the story of the spam filter that caused a lawyer to miss an important email from a Federal District Court. Jim Calloway weighs in with practical solutions on how to avoid the same fate

What About Clients asks whether a lawyer needs to like their client to do a good job for them.

Grant Griffiths is looking to update his blogroll with other home-office and/or solo lawyer blogs.

California Debt Blog warns debtors that they need to demand three things from creditors: verification, verification, verification.

Niki Black is asking other bloggers to weigh in on the best statistics software or widget they use to count visitors. (Also check out her newly launched Legal Humor blog: Legal Antics.)

Speaking of legal humor…everyone enjoys a classic lawyer joke, but do we have too many lawyers or too few? Overlawyered sees an opportunity to cut down on lawsuits, after Above the Law comments on closing down a law school. Meanwhile, May It Please the Court tells us we are actually running out of lawyers. Who knew?

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

In Memory: Jeff N. Wilson 3/4/74 - 7/10/06

Thanks to Steans for reminding me of the anniversary.

When I came back from the memorial service last year, for some reason, I set the card that was passed out at the ceremony on the shelf next to my computer. It’s still there. I read it every once in while.

It’s from Blogo-de-Wilson, and I think it might have been his best post ever. On learning of Billy Preston’s death, Jeff wrote (in part):

59 is young, folks. You only get one shot at this life. Don't waste it. It could be gone any day. Travel. Blow some money. Go see some music. Make some music. Kiss someone on the mouth (preferably someone who won't sue you).

Read a book. Write a book. Whatever. Just don't take it for granted. No one lies on their death bed wishing they had spent more time at the office.

Grab Let It Be (preferably on vinyl) tonight, and sit back and enjoy yourself.

Humor. Joie-de-vivre. Totally Jeff.

The twins turn one tomorrow. When it comes time for me to have the father-son(s) talk about Carpe Diem/Seize the Day/Make the Most Out of Life… I’ll tell them about Jeff. Hopefully, I’ll still have the card to show them too.

Submit Your Post For Next Week's Blawg Review

As previously announced, I will be hosting next week’s edition of Blawg Review.

For those of you unfamiliar with it:

Blawg Review is the blog carnival for everyone interested in law. A blog carnival is a traveling post about a topic or theme… Blawg Review has topics discussed by lawyers, law students and law professors.

Each weekly issue of Blawg Review is made up of article submissions selected from the best recent law blog posts. The blogger that puts together the Blawg Review carnival each week is called the "host".

That’s right. Blogging lawyers of all sorts should check out the submission guidelines, and send me their best legal post of this week. Entries are due by Saturday night. It’s the best practice to send me suggestions through the Blawg Review site itself, rather than to my business or personal email.

Next week’s theme will be criminal defense, and more specifically, the amendments in the Bill of Rights that most effect criminal defendants. But you civil lawyer Blawg Review regulars, don’t despair. Trust me, I’ll work you in too.

I hope to receive submissions from criminal defense attorneys, because we as a group have been severely under represented in previous Blawg Reviews.

Also, by the end of the week (before next week’s edition) I should be able to finish up my prior commitment to list all bloggers nominated and participating in the Criminal Law Blog poll from a few months ago.

Defense Blog Argues Acquitted Conduct Justifies Imprisonment

The Criminal Defense Blog sponsored by “Total Criminal Defense” took what I considered to be an unusual position in its post Thursday, “Genarlow Wilson Case Not Just About 17 Year Old Having Consensual Sex With 15 Year Old”. Noting that Wilson received a ten year prison sentence for consensual sex with someone just two years younger than him, the “Guest Attorney” who wrote the post called it a “seeming miscarriage of justice”.

But wait, Mr. Anonymous “Guest Attorney” wants us to know that Wilson’s sentence is indeed justified because:

According to the Journal Constitution, a video tape from the party shows Genarlow having sex with a 17-year-old “listless” girl who later said it was against her will. Wilson’s jury decided the girl had consented…

Whether the 17-year-old consented, or not, Genarlow took advantage of a drunk girl. Rape is generally defined as having intercourse without consent.

When a girl is too drunk to say “no,” intercourse with her is rape. At the very least, there was a drug and alcohol induced, videotaped orgy amongst minors. It is the videotape and the prosecutor’s belief Genarlow raped the girl that keep him in jail for the time being.

I can’t tell if the writer realizes that when he says the “jury decided the girl had consented,” that he is talking about the fact that Wilson was acquitted of that charge. Found Not Guilty.

But the newspaper report and the “prosecutor’s belief” are enough to outweigh the acquittal. Those two things justify the excessive sentence in the consensual sex conviction.

I expect that type of reaction from the public, but you’d think a defense attorney would know better.

Getting Other Lawyers to Link to Your Blog

Criminal Defense Attorney Stephen Gustitis emailed me awhile back and asked:

I'm a defense lawyer in Bryan, Texas and I started a blog for clients entitled "The Defense Perspective." I see how successful you have been getting backlinks to your blog from other bloggers. I am not sure how to go about doing that. Can you help me? Thanks.

My reply:

There are 2 main ways:

  • Content, Content, Content. Looks like you are already starting to put good content on your blog, so that will help.
  • Link out to other people who are writing on similar topics. Basically, to get them to notice that you exist in the first place, the easiest thing to do is to cut and paste from something they wrote (while, of course, acknowledging them and linking back to them), and then comment on what they wrote.

I'd be happy to chat with you about blogging some time if you want. My number is (512) 472 9909.

Nothing, and I mean nothing will beat good content. I can already tell that Steve’s blog is going to succeed, because in the 45 days (or so) that he has been blogging, he has covered topics such as Habeas Corpus, expunctions, search warrants, DWI, Field Sobriety Tests…just to name a few.

It’s clear to me from the content of Steve’s posts that he knows what he’s talking about. Likewise, it will be clear to prospective clients that if they are charged with [DWI, Theft, Assault, Possession of Marijuana] in Bryan/College Station, they should probably call him…for the same reason: he knows what he is talking about.

That’s the great thing about blogging. It’s very personal, in its own way. I have been really surprised that folks arrested in Austin will call me up and tell me they have spent a good deal of time reading my blog. It sparked their interest, and now they want to set up a consultation. Many times, I haven’t talked about their exact situation…but they can tell from what I’ve written that I just might be the lawyer for them.

But, and this is an important “but”… but starting a new blog can be a classic case of “the chicken or the egg”.

It’s great to have good content, content that everyone will read and appreciate…but what good does it do if Google doesn’t know your blog exists?

That’s where part 2 of my answer comes in: Link out to other bloggers.

Already established bloggers frequently check services like Technorati to see who is linking back to them. For example, I currently see 157 other blogs linking to this one, and 108 bloggers linking to my newer DWI Blog.

If some new lawyer blog writes a post commenting on something I have written, you can bet I will find out about it, and then... what…?

I’ll add them to my RSS reader, keep track of their blog, and eventually link back to them. 

That’s it for now…more on this topic at a later date.

In the meantime, if you are a lawyer starting a new blog, wanting links back to you, please feel free to email me at I’ll find a way to help get you started. Also, if you’re considering starting a “lawyer blog” (AKA “blawg”), feel free to email me. I’m always happy to chat about it.

More Criminal Lawyer Blog Poll Results

The second batch of criminal law blogs receiving the most votes, and not necessarily in any particular order:

Wretched of the Earth – fellow Texas criminal defense lawyer, an anonymous PD blogging from (and about) Dallas.

Underdog Blog – Maryland, DC and Virginia criminal lawyer Jon Katz spends loads of time on this excellent blog. I can’t remember the last time he went a day without posting.

Criminal Appeal – focusing on post-conviction practice in the Ninth Circuit, and California state courts, Jonathan Soglin, Jeremy Price and Michael Romano all contribute to this blog, now in its 5th year.

The Volokh Conspiracy – speaking of group blogs, there are no less than 17 regular contributors to one of the oldest and most respected in the blogosphere. Talks about a lot more than just criminal law, but gets enough to votes to come in the second group. – Houston, Texas firm Stradley, Chernoff & Alford mostly posts about trials and jury selection (some of my favorite blawg topics).

Burnt Orange Report – current and former University of Texas students blogging (mostly) about National and Texas politics.

CrimLaw – one of the first criminal defense blogs out there…until the author Ken Lammers went to work for the State. (Still a good blog, though, and now the highest ranking prosecutor blog in the poll.)

Eyewitness Identification Reform Blog – the name says it all, and the most “niche blog” yet named.

The Confrontation Blog – speaking of niche blogs, Michigan Law School Professor Richard Friedman started his after the U.S. Supreme Court 2004 ruling in Crawford v. Washington, and he’s been following relevant developments ever since. – Search and Seizure issues are often the bread and butter of criminal defense practice…here’s a blog with frequent and substantive updates on the subject.

As the Island Floats – Texas State District Court Judge Susan Criss’ blog (so named because her court is in Galveston).

Jury Deliberations – another new blogger (started in March of this year) rising to the top with daily quality posts.

That’s it for the second batch. There were approximately 60+ other blogs receiving votes; I will do my best to get all of them linked to over the next week or so. In the meantime, go update your RSS readers with the above.

(I suppose I may as well add… feel free to subscribe to either of my blogs: the one you are reading now, or the DWI Blog.)

Results: Criminal Law Blog Poll

Well, my spur of the moment Top 10 Criminal Defense Blogs survey/poll turned out to be quite a project. I appreciate everyone’s patience. Let me briefly explain how I will interpret the results.

First, this was never scientific. I asked folks to send in their favorite blogs relating to criminal defense or criminal justice. Some responders voted for themselves (among others) while some did not. I decided to count a response to the poll as a vote for your own blog, whether you included yourself or not.

I also did not include this blog, Austin Criminal Defense Lawyer, or my other blog, Austin DWI Lawyer, in the results although several folks were kind enough to mention them.

I’m going to break this down into three categories: a few blogs received an overwhelming number of votes, several others received quite a few, and this is meant to be inclusive, so I’m going to include an Honorable Mention category as well. 

A total of 11 blogs received the most votes, so I’m bumping this to Top 11 Criminal Law Blogs:

SCOTUS Blog – the most votes hands down. Covering the Supreme Court more thoroughly than any other blog out there, obviously has non criminal law posts…but it got the most votes by far, so I list it #1.

A Public Defender – written by “Gideon,” and protecting the right to effective assistance of counsel.

Sentencing Law & Policy – Ohio State Professor Doug Berman’s blog. Covers all things sentencing related. Much of a criminal defense lawyer’s job involves begging for appropriate sentences for guilty clients, so this one is a must on anyone’s RSS reader.

Blonde Justice – Anonymous public defender blog. Also gets my personal vote for “best sense of humor in a criminal defense blog”.

Defending People – Mark Bennett’s blog is the youngest entry in the top 11. Quite an accomplishment. I suspect it’s due to a lethal combination of high quality and frequent postings.

Grits For Breakfast – Covering the Texas Legislature like no one else can…also, the only non-lawyer to break into the Top 11. For those non-Texans out there, this one is still worth adding to your RSS reader.

Injustice Anywhere – Public Defender in Washington (transplanted from Texas).

Crime & Federalism – Daily commentary on criminal law, civil rights, and what’s new and outrageous in the Law.

TalkLeft – Actually, it’s one of the biggest baddest political blogs out there…but the Denver criminal defense attorney certainly deserves to be on this list.

Capital Defense Weekly – The name says it all. Anyone looking for the capital defense news needs to come here first.

Simple Justice – Criminal Defense lawyer Scott Greenfield’s take on matters involving the court system, popular culture, American history, and, well, everything in between.

That’s the Top 11. As promised before, all entries will be listed, more coming tomorrow. 

Top Criminal Law Blogs Survey

A few kind folks have linked to my little Criminal Law Blog survey in the past few days, and I’m still getting some answers dribbling in. I’m going to cut it off sometime Friday night, do the calculations and post results over the weekend.

Top 10 Criminal Defense Blogs : Part 1

This is a survey post. I’m asking my readers to email me ( and let me know which blogs they subscribe to that are criminal defense related.

These can be:

  • Criminal Defense Lawyer Blogs
  • Prosecutor Blogs
  • Law School Professor Blogs
  • Law Student Blogs
  • Appellate Court Blogs
  • Legislative Update Blogs
  • Niche Blogs on a Particular Subject of Interest
  • Any Other Blog You Think Is Relevant

It’s not necessary that the primary or only focus be criminal justice/criminal defense. I’m looking for new blogs to add to my (and your) readers with this survey.

I will post an update with links to every blog sent to me - including, of course, your own, as well as a list of which blogs are most read by my readers. (I say “My readers” because I recently passed the 30,000 unique visitor mark in 6 months of blogging, and currently my Feedburner Stats show me at an average of 76 Circulation over the last 30 days.)

If anyone uses FeedDemon as their newsreader, I’d really appreciate an export of your feeds. This can be done by clicking File/Export Feeds/All Folders/OK, then save to desktop and forward the OPML file that is created as an attachment. I’m sure there’s a way to export all feeds in other readers, but I can’t give you such a blow by blow description.

If I get a decent amount of responses to this post, perhaps I can try this every 3 to 6 months or so, and criminal defense/prosecutor bloggers will have a good source for new criminal law blogs.

Don't forget: all repsonders will get (at least) one backward link to their own blog, or static webpage.  Thanks in advance.

[Update: Hat Tip to Anne Reed for being the 'first responder'.  Keep 'em coming folks.]

Around the Blogs

Anne Reed authors one of my favorite new blogs, Deliberations, and writes about Beauty and the Juror, Part I and Part II

Jon Katz of Underdog Blog asks Why would Law Enforcement Not Want to Record Confessions?

Riffing on Norm Pattis’ article Does Innocence Matter?, Mark Draughn writes an excellent and lengthy post on Truth in Trial at WindyPundit.

In the Supreme Court Revealed, Joel Jacobsen of Judging Crimes tells you all you need to know about SCOTUS outcome prognostication. (Jacobsen always inspires me to stretch my vocabulary.)

Kevin O’Keefe at LexBlog updates us on Blogging Jurors.

At Blog Reload, Lee Rosenberg notices that all of the drugs found in Anna Nicole were legal. I have to agree with him that she would have been much better off (never mind alive) had she been legally able to use medical marijuana for all those ailments.

Red No More offers us a more reasonable translation for the White House Office of National Drug Control Policy’s acronym (ONDCP): the Office of Nonsense, Distortion, Confusion and Propaganda.

Shame on me for taking so long to notice that Thomas Van Wyk has moved his blogging from The Doors of Deception over to The Liberator Reloaded. (Shout out to Tom here as well: I’m having trouble adding your new feed to my RSS reader, might want to look into that.)

And Pete Guither alerts us that the DEA is now accepting tips from informants online

Criminal Lawyer Blog Roundup

Underdog Blog (one of my favorite criminal law blogs) writes an excellent piece on medical marijuana doctor Ed Rosenthal’s upcoming retrial by the Federal Government.  Jon Katz also provides links to the indictment in the case, as well as various pretrial motions filed on the doctor’s behalf. These include, among others, motions to dismiss for due process violations, for selective prosecution, for undue delay. The motions are absolute must reading for marijuana defense lawyers, especially those who practice in Federal Court.

Barry Tannebaum in Florida points us to the National Association of Criminal Defense Lawyers Association president Marty Pinales’ excellent article “Speaking out against political ads that attack criminal defense lawyer candidates”. Practicing criminal defense attorneys know that they are held in low esteem by the public at large, probably more so than lawyers in general. This article provides several good examples of cheap shots made by various political candidates at their criminal lawyer opponents.

Philadelphia criminal defense lawyer Mark Jakubik gives us one more example of why mandatory minimum sentences are a terrible idea.

Albany Lawyer Warren Redlich reminds us of one the satisfying experiences as a criminal defense lawyer: getting your client out of jail.

DWI Lawyer Ken Gibson wonders if there might be a financial motive for Austin Police Department bragging about having the highest DWI arrest rate in Texas.

Hosting Blawg Review

I am pleased to announce that I have been selected to host Blawg Review on July 16th, a short 20 weeks from now.

Blawg Review is hosted by a different law blogger every week, and is a roundup of some of the best lawyer blog posts on the internet from the previous week. You can find out how to submit your posts for consideration to the next host of Blawg Review here. I would encourage lawyers who are new (or not) to the “legal blogosphere” to participate.

The point of “law blogging”, from my perspective at least, is to share potentially valuable information with those seeking legal help online. Lawyers who blog regularly provide exactly that service, and Blawg Review acts as a conduit for that information.

Prosecutorial Ethics - Plea Negotiations and Brady Material

There’s an interesting conversation going on over at Sarena Straus’ Prosecutor Post-Script where in a series of posts and comments the author and readers discuss various issues in prosecutorial ethics.

In “Who decides when to prosecute?” she discusses the considerations involved when a prosecutor “overrules” the wishes of a complainant in an assault case. Sarena points out this comes in two forms: victims unhappy with a plea agreement that is too lenient, and ones that don’t want to prosecute the case at all.

The first post sparks a question from a reader: “"It's interesting to see the thought process behind when to prosecute. What sort of plea deal would you make with someone who was unlikely to be convicted at trial?” Sarena answers the question in part by posing a “typical hypothetical offered by DA's offices when interviewing prospective ADAs”:

Lets say that you have a one witness case that you are about to take to trial. It is a case where you believe in the defendant's guilt and where proof beyond a reasonable doubt is possible. Without that one witness, however, you cannot prove the case.

The morning that you are about to start trial, you get a call that your witness died. You go to the courtroom, but before you can tell the judge that you have to dismiss the case, the defense attorney says that his client wants to plead guilty.

Do you take the plea or do you tell him your witness is dead and that you have to dismiss the case?

Since I never interviewed with a County or District Attorney’s Office, hypotheticals like that take me back to my law school days…let me give it a shot.

There’s really two separate questions being asked here (which is what makes it interesting): (1) As a prosecutor, are you required by Brady v. Maryland to disclose the unavailability of witnesses to the defense attorney?  (2) If not, should you anyway?

My off the cuff guess (read: I didn’t bother to research it this morning while writing this post) is that the caselaw interpreting Brady doesn’t require the prosecutor to disclose that information. If anyone out there knows of caselaw to the contrary, please contact me, because it would somewhat put the issue to rest.

(I’d also like to think that the best defense lawyers out there do thorough investigations, including, of course, interviewing all witnesses…but it sounds like the witness just died, so I can see the attorney not knowing.)

The second question therefore becomes “Under what circumstances should you disclose this information?” In a lengthy comment WindyPundit suggests:

There's a lot to be said for telling the defense attorney how lucky his client is and dismissing the case, just to improve your rep as a straight shooter.

True, but not all prosecutors are concerned about their reputations in the criminal defense bar. My experience tells me that the defense lawyer needs to worry about his own reputation for truthfulness and honesty, more than a prosecutor need worry about his.

Sarena promises to give her own answer soon, but states that she thinks most comments so far are coming from the defense perspective, and would like other prosecutors to weigh in first…(that means you too Steanso)

Around the Blogs - Year's End 2006, Best and Worst

Jordan Smith lists his Top Ten 2006 Reefer Madness stories in this week’s Austin Chronicle in Top Ten Joints.

Alex Coolman lists his ideas on winnable issues for drug policy reform in 2007. (“thehim” adds his commentary, and more ideas in his Drug War Roundup post.)

Grits for Breakfast writes a retrospective on the Top Ten Texas Criminal Justice Stories of 2006.

Evan Schaeffer recaps 2006 in a four part highlights series at Legal Underground.

Robert Ambrogi scours the web for Worst of 2006 lists: including Christopher Taylor’s Legal Outrage.

5 things you didn't know about me

Three months into blogging and I’ve been tagged – and by one of my favorite bloggers Scott Henson (Grits for Breakfast is in my top five most read on my RSS reader). I don’t usually participate in memes, but this one struck me. You’re supposed to come up with 5 things folks who know you might be surprised to hear, so…

1) I only have one kidney. Apparently, it’s not that unusual. It wasn’t congenital, the other one was removed at birth. I’m told I was bright blue when I arrived, and the doctor said “cut that boy open, there’s something wrong with him”. A kidney had burst during childbirth and it was immediately removed. I don’t remember any details – I was kind of young at the time.

2) I have a small family. There were only four other people in my family at the time I was born. One older sister, mother, father, and maternal grandmother. My parents were only children, so no aunts, no uncles, no cousins, etc. No living siblings of my only grandparent so no second cousins, or second uncles, or once-removeds, or whatever.

3) I hate meatloaf. I know it’s a staple of American food, and literally everybody loves it. I have tried many different versions (because people always say, “You have to try my mother’s meatloaf!”) My mom is a fantastic cook, and she always used to say, “You like hamburger, it’s just like hamburger.” So I’d say please make me a hamburger. I like everything else though. Everything. That’s what makes it so odd.

4) Odd jobs. It was fun to remember some of these. One of my first was being one of those annoying 13 year olds that comes around to apartments and tries to convince folks that if they sign up to get the local paper, they’ll more than make up for the subscription costs just by clipping the Sunday coupons. Don’t hold it against me, I was thirteen – I didn’t know any better. Other jobs I’ve held: short order cook, construction worker, delivery driver, gas station attendant, substitute teacher, art gallery guard…if I racked my brain, I’d probably come up with several others.

5) I lived in Section Eight housing. I wasn’t on government assistance; this one actually ties into number four. I was a primary care attendant for a guy in a wheelchair for a few years while I worked my way through undergrad. Basically that means I got him up, cooked meals, drove him to the grocery store, helped him shop etc. He lived in Section 8, and one of the perks of the job was living in the spare bedroom for free.

I backtracked Scott’s tag and found the chain going backwards was: Infamy or Praise, Human Law, Freedom to Differ, The House of Commons and TechnoLlama. I’ll attempt to move it forward by tagging Blame the Drug War, Doors of Deception, LeftIndependent, LawNut, and The Adventures of Steanso.

Lawyers appreciate discussing interesting and new legal issues

One of the most positive aspects of practicing criminal law in Austin, Texas is the collegiate atmosphere shared among my defense brethren. The practice of criminal defense actually consists of enormous amounts of standing around in court time, waiting for something to happen. (I’ve previously posted on some of the other “not like TV” aspects of criminal defense.)

One way lawyers pass the time (as we wait for the lawyer in front of us to plead his case, or wait for the court probation officer or a client to complete paperwork, or wait to be let into the jail, etc.) is to talk about interesting current cases we have pending, and various legal issues raised by our clients’ cases.

I am appreciative of both the opportunity to bounce ideas off of other lawyers on my own cases, as well as the intellectual exercise of listening to someone else’s questions about an issue. Very often, talking to other lawyers about their cases will often lead to new ideas on how best to represent my own clients.

[Blog post idea brought to you by Life at the Bar and Idealawg, who have co-issued a challenge to blogging lawyers to compose posts beginning with “Lawyers appreciate…” The other part of their challenge is for those of us who do write such a post, to get 3 other law bloggers to do the same. I know there are at least a few of you out there, so, get started writing already…]

More lawyer blogs

Inter Alia – Tom Mighell’s internet research weblog has recently been listed as the featured blog of the week on the Texas State Bar’s lawyer blog page.

Employment Law Blog – Washington State attorney Jill Pugh discusses workplace law both from the perspective of the small business owner and that of the individual employee.

Massachusetts Personal Injury Law Blog – Boston attorney Chris Earley blogs on issues about car, bicycle and pedestrian accidents, dog bites, and medical malpractice.

Corporate and Securities Law Blog – Alex Simpson blogs on New York business and securities legal issues in New York.

Lawsagna – alternating layers of thoughts, tools, tricks, tips, and other ingredients for a successful learning experience in law school and beyond.

Law Professor Blogs

The blogosphere has exploded in the last year to 18 months with all sorts of niche lawyer blogs. One of these subtypes is law professors, blogging on, unsurprisingly, topics as wide as the law itself covers.

Willamette University professor Jeffrey Standen teaches sports law and blogs about it at The Sports Law Professor.

Cardozo Law School professor of cyberlaw and IP blogs at the eponymous Susan Crawford Blog.

New York University Law School Professor Daniel Shaviro talks about Tax policy (mostly) at Start Making Sense.

Now teaching at Williams College, Alan Hirsch blogs at both The Truth About False Confessions and Attorney’s Fees Law.

Former FCC Commissioner, and author of How to Talk Back to Your Television Set Nick Johnson blogs from the University of Iowa Law School at FromDC2Iowa.

From the same school, congrats to the recently tenured professor Tung Yin who blogs at The Yin Blog. (Here’s the SSRN link as well.)

Gregory Bowman, at Mississippi College of Law writes the Law Career Blog and his articles can be found at SSRN as well.

PrawfsBlawg – 6 full time bloggers, with multiple guest posting professors as well.

And, of course, with well over 50 professors blogging on over 30 blogs and counting is the Law Professors Blogs site.

Jury Argument: The Difficult Witness

Ronald Miller of the Maryland Injury Law blog posts an example of an amusing but effective way that one lawyer handled a “slippery” witness.

Texas Law Blogs

Some Texas lawyer blogs that I’ve either read for some time, but not linked to yet, and some others I’ve just recently found:

Houston attorney Tom Kirkendall writes Houston’s Clear Thinkers, where we find subjects on developments in law, business, medicine and other areas.

A welcome back to fellow Austin lawyer Bradley Clark who returns to frequent and informative posting at the Texas Law Blog.

U.S. District Judge Jerry Buchmeyer, who has entertained Texas lawyers with his "et cetera" humor column in the Texas Bar Journal blogs at Say What?

Dallas attorney Bob Kraft posts about Personal Injury and Social Security Disability law at the aptly titled Bob Kraft’s P.I.S.S.D. blog.

And Kevin Funnell, a Frisco Texas lawyer who represents banks and other businesses, comments on the law, and other issues as well at Counseling Kevin. He also authors a banking law blog.

Lawyers, Law and Thanksgiving

Anthony Cerminaro - "Gratitude can be a powerfully transformative practice...Practicing gratitude can actually improve our emotional and physical well-being..."

Brian Tannebaum - "This Thanksgiving I am thankful for Families Against Minimum Mandatories (FAMM)".

Norman Fernandez - "If you happen to see a homeless person on the street while you are going to your Thanksgiving feast, why don't you stop and give that person a couple of dollars for food, or even a sandwich. The homeless are human beings too."

Jonathan Stein - Some Thanksgiving thoughts.

JD Bliss - On the lawyer who invented/popularized cranberry sauce.

Robert Ambrogi - On lawyers who “act like turkeys”.

Southern Illinois Law Librarians
- point us to this image of George Washington’s original Thanksgiving Proclamation

Dennis Kennedy  - thankful for the generosity of the blogosphere.

As for me? I’m thankful for a supportive network of family and friends, my twin 4-month old sons, and that Thanksgiving dinner was delicious.

Even the Police Oppose a Police State Mentality

I will soon launch a new DWI blog, where I talk specifically about issues surrounding Texas DWI laws, and more specifically, how they affect folks arrested in Austin, Texas for DWI.

Still days (weeks?) away from officially going online, I have some ideas swimming around in my head for topics. One that jumps out is MADD’s new campaign to eventually have ignition interlock devices put in all cars…yes, that means you, even if you’ve never even gotten a speeding ticket.

I refrained from commenting on this issue, due to its increased relevance for my soon-to-be blog, when I ran across this post, from The LawDog Files, titled "MADD Loses Their Ever-Loving Minds":

Well, Mothers Against Drunk Drivers is about to lose support from this Peace Officer.

In a desperate attempt to prove that Nietzsche was correct, Mothers Against Drunk Drivers has issued the outline of their National Campaign to Eliminate Drunk Driving.

In pursuit of this goal this, they have stated Four Points.

The first of which is increased DWI Checkpoints -- a moot point for me, since Sobriety Checkpoints are currently unconstitutional in the State of Texas. As it should be.

Kudos, by the way (and off topic) for the officer recognizing checkpoints for what they are: an infringement on everybody’s liberty. He continues:

It's the third tick on the MADD wish list that really sets the cat amongst the pigeons. Allow me to quote it here:

"Exploration of advanced vehicle technologies through the establishment of a Blue Ribbon panel of international safety experts to assess the feasibility of a range of technologies that would prevent drunk driving. These technologies must be moderately priced, absolutely reliable, set at the legal BAC limit and unobtrusive to the sober driver;"

Allow me translate that for the Gentle Reader: MADD wants technology developed to be installed in every car that will prevent intoxicated drivers from starting the car.

Well, if that’s not a police state, tell me what is. More from the LawDog:

Believe me when I say that I hate drunk drivers at least as much as anyone at MADD -- if not more so.

Nevertheless, you can not -- you CAN NOT -- trample on the rights of everyone else in your crusade to end drunk driving.

I am not a drunk. I am not a drunk driver. I do not want a piece of equipment with the "good enough" reliability of a cell phone or a computer operating system determining whether I should be allowed to start my car or not.

I do not want to install a gadget on my car to decide if I may start it because you're afraid that someone else in this country might be drunk.

"Quis custodiet ipsos custodes?"…that Latin phrase from high school asking “Who will guard the guards?” Apparently the “guards” themselves are balking at some of the draconian, no, Orwellian methods proposed in the DWI wars…

Criminal Law Blog Recommendation

For almost as long as I have been reading blogs, Judging Crimes, written by New Mexico appellate prosecutor Joel Jacobsen, has been on my RSS subscription list, and I highly recommend adding it to yours. One of the best written criminal law blogs on the internet, Joel’s posts are intentionally lengthier and often more thoughtful than the usual blog pieces, and I’m always amazed at the scope of references in his writing. That’s it, he’s the Dennis Miller of criminal law blogging.

For example, in today’s post “Happy 150th, Justice Brandeis”, he references no less than Herbert Spencer, the Irish potato famine, George Orwell and Gandhi. 

Around the Blogs

Grits for Breakfast posts some suggestions on reforming Texas’ criminal justice system, as well as continues his excellent series on Texas recidivism rates.

Wretched of the Earth reviews the Texas Court of Criminal Appeals ridiculous decision that finds one of the most coercive DWI blood draw examples as lawful and voluntary.

David Feige at Indefensible writes a stinging indictment of the popular media’s portrayal of public defenders.

Over at the Law.Com Blog Network Carolyn Elefant and Robert Ambrogi discuss legal gossip blogs and the comparative lack of lawyer blogs in Iowa respectively.

And finally, Howard Bashman reports on seemingly everything law related over at How Appealing.

Legal Blogs Discuss Expunctions

I was not alone in commenting on the recent New York Times story about expunctions. Here are some other posts about the same article from around the legal blogosphere.

Michael Pinard’s post focuses primarily on housing and employment problems arising from an unexpunged criminal record.

Brooks Holland remembers former private clients who were haunted by cases they thought had been sealed.

Daniel Solove proposes a solution: require a private company to promise to correct records, as a condition of granting access to them. (Note: I think the problem here is that the records are public to begin with; and these companies are broadcasting true information, that is, So-and-So got arrested on Such-and-Such a date for This-Offense. The defense against slander is the truth.)

Tim Armstrong argues that Web 2.0 makes information less transitory and ephemeral than ever before, and therefore this is the logical result. (I agree.)

Jeralyn Merritt, Marcia Oddi, Stuart Friedman, and Mary Whisner all weigh in as well.

Criminal Law Blogs Discuss Shaming Punishments

John Kelso’s humor column about why the Travis County Jail won’t adopt Mason County’s “pink jumpsuits for inmates policy” provides me with a viable Austin segue for the recent criminal law blogosphere’s discussion about shaming punishments.

Doug Berman is in favor of them, at least when the only alternative seems to be meeting out unreasonably long sentences.

Corrections Sentencing points out the two motivations behind shaming: teaching the offender to contemplate his place in the community vs. vindictive self righteousness. I agree that it’s a fine line.

Poverty Lawyer questions the fairness of publishing photos (pretrial, mind you) of johns caught in prostitution stings.

Dan Markel argues in The Economist that shaming punishments undermine human dignity, and follows up with a seven part series about them.

The comments section alone of Orin Kerr’s contribution to the discussion at Volokh would make for a good day’s worth of reading.

My take on it? Let’s read a quote from the Houston Chronicle’s story on the pink jumpsuit controversy:

Three county inmates in the jail here lay on their bunks, not saying much.  They wore pink jumpsuits and pink slippers, and one was wrapped in pink sheets.  They were surrounded by pink bars and pink walls.  They were not comfortable.

Despite the cramped condition of the tiny jail, the inmates said sitting there was better than working outside, where they might be seen by people they know.  Using pink uniforms in a pink jail is a small step to deter inmates from ever wanting to spend more time in the Mason County Jail, which might be getting too old to operate, said Sheriff Clint Low.

"The county would have more inmate labor without them," said one inmate, who did not want to be identified. "I'm not going outside in these things. It's a good deterrent because I don't want to wear them anymore."

This is a complex issue, and this quote provides us with reasons pro and con, and in just a few short sentences.  The inmates express their intent to never return to jail, but to the extent that they refuse to participate in a work program that would get them released earlier.  How bad could sitting in that pink jail be, if it's better than being supervised outdoors picking up trash in return for days, weeks or even months off their sentence?

I’m not sure the value lost in trustee labor (to both the community and the defendant) is worth the future deterrent effect these inmates are predicting.  All inmates I've ever met have expressed their intentions to never return.  

But, if we're talking about alternatives to unreasonably long prison sentences for non violent offenders, I’m open to almost any other option available…

Public Defender Blogs

Public Defender Stuff (the news service for the Public Defender Investigator Network) updates their Guide to Every PD Blog, which now includes over 30 links. Looks like it’s time for me to go back and update my blogroll, and add some sites to my reader…

Here's my prediction: if the new IE really causes a boom in lawyer blogging, it won't be too long before we'll have over 30 PD blogs for every state in the union...

Around the Blogs (DWI and DUI)

A Lawrence Taylor post on how body temperature can distort Intoxilyzer results.

DUI Rob reminds us that Radio Frequency Interference can effect the Intoxilyzer 5000.

George Creal posts an article from the Arizona Daily Star on “inconsistent” police testimony in DWI cases.

St. Louis DWI Lawyer writes about some of the factors NHTSA trains officers to look for in a DWI.

And Tiffany Sanders reminds us DWI arrests sometimes happen, even if you’re not on a street or highway.

Around the Blogs

Carolyn Elefant predicts that the Government will give up prosecuting John Gotti, Jr.

Sarena Strauss posts about one of the problems with Sex Offender Registration laws.

Jonathan Stein on the advantages of getting to know opposing counsel.

Injustice Anywhere blogs about, well, successfully fighting an injustice.

And Long Island Criminal Trial Lawyer announces his new monthly newsletter.

Mitch Jackson and MyTrialBlog

Mitch Jackson’s MyTrialBlog provides useful tips for litigators, and several of his recent posts contain ideas applicable to my criminal trial practice as well. Examples that could be used for a DWI trial include:  pre-trial preparation, handling overruled objections in front of a jury and issuing challenges to the prosecutors during closing statements.

(Hat tip to South Carolina Trial Law Blog for pointing me to the site.)

Around the Blogs

Starting a new type of post today that I envision calling "Around the Blogs"...(although I'm open to suggestions)

Here goes the first one:

San Diego DUI lawyer posts about his ideas on Stopping Drinking and Driving.

Even if it's apocryphal, Richmond, Virginia prosecutor Tom McKenna's post makes for an excellent lawyer war story.

Florida Defense Attorney Albert Clifford blogs on the public's double standard applied to male and female sex offenders.

Former prosecutor Sarena Straus has fun with looking at one of her referers.

Total DUI comments on the MADD controversy over the new NHTSA slogan "Drunk Driving. Over the Limit. Under Arrest."

And finally,  Washington Public Defender has a tongue in cheek (but grounded in reality) post on dealing with the family members of the accused.