Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

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

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

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

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

Ouch.

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

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So Roger Clemens’ lawyer Rusty Hardin gave an interview to New York Lawyer magazine about his representation of the Rocket. In part:

Hardin: What is a public person to do if he's falsely accused? Why do lawyers think that the safest strategy is the best strategy? Roger has made clear that he is not interested in the safest strategy. He has made clear that his public reputation, what his family and friends think, is what he holds dear. Who the hell am I to tell him that he's wrong?

Mag: You don't think much of your critics?

Hardin: I expect second-guessing. But these people on TV, they talk about whether I should "allow" a client to testify, whether I should "allow" him to assert his innocence. Their attitude is paternalistic and patronizing. Who the hell is the lawyer to make that decision?

Mag: It seems like he was asking for trouble.

Hardin: I saw it all coming. I knew there would be a deposition and a congressional hearing. I knew there would be a criminal referral. I fully advised Roger. He made the decision. He's a grown-up.

Mag: Even if that decision sends him to jail?

Hardin: I believe strongly that people that can fight, should fight. Roger has the means, the ability, and the heart to fight. I salute him.

So Clemens’ attorney is essentially broadcasting the story that:

• Roger could have taken the safe route
• I (the lawyer) told him the easy thing was to shut up
• He is big bad Roger and wants to fight for his reputation

Gosh. That might be what an innocent person would do. Or even what a “You can’t prove I’m guilty” person would do.

Might be part of an overall PR strategy.

So why are Scott and Stephen so sure that Hardin is sneaking behind his client’s back without his explicit permission to broadcast this story? Is Harden so dumb he doesn’t think this interview might get back to Roger?

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

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

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

So our anonymous prosecutor gives us an example:

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

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

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

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

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

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

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

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

Jesus is the ultimate defense attorney.

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

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

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Glad to see national coverage on ABC News about Judge Sharon Killer’s refusal to keep the Court of Criminal Appeals open an extra 20 minutes to allow defense lawyers, who were apparently having computer/technical difficulties, to file a stay of execution.

Some quick background. The United States Supreme Court has agreed to hear a case, Baze v. Rees,  to decide whether lethal injection is a constitutionally permissible execution method. The legal issues get a little more complicated than that actually, but suffice it to say that this isn’t some crackpot defense lawyer theory: the American Medical Association’s code of ethics prohibits its members from participating in lethal injections. And there is ample evidence to show that without proper medical attention, lethal injection executions run a high risk of being botched. 

Botched execution methods? Potential for Eighth Amendment cruel and unusual punishment appeals? Apparently SCOTUS wants to take a look at the issue.

So, many states are wisely deciding to stay executions using this method until the Supremes come to a decision. After all, it’ll be a little hard to ‘undo’ the punishment, if SCOTUS rules for the defense.

Back to Judge Killer. When Michael Richard’s lawyers called to alert the court that they were having problems getting to the court by 5 p.m., they were told, essentially, “tough s**t”.   No extra hour, not even an extra minute to file the appeal. Richard’s lawyers wanted the stay based on the Baze case. And they would have eventually gotten it.

How do we know? Well, the US Supreme Court ordered Texas to halt an execution two days later, based on the same reason for appeal.

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

[Also see Mark Bennett’s blog to sign the complaint being filed in this matter.]

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

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

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

I wrote in a comment to his post:

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

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

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

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

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

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

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

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

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

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

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

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Former NPR contributor Randy Cohen’s “Ethicist” column in this Sunday’s New York Times Magazine is titled “Work Search”. In it, he answers a reader’s question about the legality and ethics of workplace searches.

While noting that employers may have a legal right to search handbags etc., Cohen offers reasons why it still may not be the best policy:

To search someone is to treat him as if he were untrustworthy, if not dishonest.

That the hospital searches everyone mitigates this baleful effect slightly, because no employee is being singled out for special scrutiny.

But to mildly humiliate many does not eradicate the sting to each.

I wish more people could understand this effect when the issue of racial profiling comes up in the context of criminal arrests.

Some still proffer the illogical “If you’re not doing anything wrong, then it shouldn’t matter” argument while debating this issue.

Putting aside the “Never mind the Fourth Amendment” problem with that attitude for now, let’s acknowledge that it creates a bigger problem than it attempts to solve.

Subjecting one group of people to even “mild” but persistent humiliation breeds a natural disrespect, then fear, then hatred of law enforcement.

It’s pretty simple really. When a Government treats its citizens with respect, it will likewise receive respect in return.

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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)

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