January 2008

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Scott’s post ends with an excellent observation:

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

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

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

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

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

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

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

Reasons to keep a prison open…

From a New York Times article about possible closings of prisons:

On Jan. 11, the Spitzer administration announced plans to close Camp Gabriels, two other corrections camps and a medium-security prison, all of which have been operating below capacity since 1996 because of a decline in the number of nonviolent felons, the state’s corrections commissioner, Brian Fischer, said.

Closing those prisons, Mr. Fischer said, would save the state millions of dollars, free up money for the treatment of sex offenders and mentally ill inmates, and finance programs like anger management and vocational training, meant to prepare prisoners for their release.

Boils down to saving money, because there has been a decline in nonviolent felons. Wait, those are reasons to celebrate closing a prison. That’s actually the best reason: it’s not needed.

But the name of the article is “Plan to Close Prisons Stirs Anxiety in Rural Towns”. So what are the reasons to keep it open?

As rural economies across the country crumbled in the 1980s and the population of prison inmates swelled, largely because of tougher drug laws, states pushed prison construction as an economic escape route of sorts. Throughout the 1960s and ’70s, an average of four prisons were built each year in rural America; the rate quadrupled in the 1980s and reached 24 a year in the 1990s, according to the federal Agriculture Department’s economic research service.

The boom, experts say, provided employment, but it also fostered a cycle of dependency. Depressed rural communities came to rely on the prisons as a source of jobs, economic sustenance and services, with little effort devoted to attracting other viable businesses.

It’s the economy, stupid. Maybe longer prison sentences for drug offenses? Could that cure our current economic woes?

We don’t want to put all those guards out of a job.

Midnight and I’m not asleep yet. Go out to the living room, flip through some channels. A movie on HBO called 8MM is on.

Joaquin Phoenix to Nicholas Cage:

“You’re not a cop, are you? If I ask you and you are, you gotta tell me…”

“I’m not a cop.”

Of course this is nonsense.

Here’s what I don’t get though, even from the Hollywood writer’s perspective. Why does the guy asking “Are you a cop?” always follow it up by telling the potential undercover officer what his duty is? To fess up?

That doesn’t make any sense to me.

If he’s a cop, surely he’ll know the rule, wouldn’t he? Only the non-police officer wouldn’t know the rule, but he’ll say “No” anyway.

Update: Saw a bit more of the movie. The 2 main characters are being granted entry into a room full of possibly illegal activity. There’s a guard at the door. He asks everyone who enters

Are you currently in or have you ever been affiliated with law enforcement? (‘No’)

Yeah. That should be enough to grant that motion to suppress, right?

When Carolyn Elefant speaks, I for one listen.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Austin Criminal Defense Lawyers Association listserv has been buzzing the last week or so. Local defense attorneys had noticed a much higher rate of immigration holds being placed on clients. Was this a trend?

And today, the Austin American Statesman brings us the answer, “Sheriff to let federal immigration agents set up office in jail. Agents will look for undocumented immigrants.”

Travis County Sheriff Greg Hamilton has agreed to let federal immigration agents set up an office in the county jail to more often monitor whether inmates booked into the downtown facility are legally in the United States.

Hamilton said this week that agents from the U.S. Immigration and Customs Enforcement agency will likely be stationed in the jail 24 hours a day, seven days a week in coming months. They began increasing their presence in the facility late last year.

Until recently, federal officials said agents only occasionally visited the jail to check the immigration status among inmates but sought more access from Hamilton.

The increased presence has led agents to double — if not triple — the number of "immigration holds" it has traditionally placed on Travis County inmates for possible deportation, said Adrian Ramirez, assistant field office director for the San Antonio office of the federal immigration agency, whose region includes Austin.

Immigration and Customs Enforcement, aka ICE, will indeed be moving into the Travis County Jail. 

Whichever way you feel about the new policy, this line in the article jumped out at me:

Agents may place an immigration detainer on the inmates if they suspect they are undocumented immigrants. [Emphasis added]

I’ll bet I’m not the only criminal lawyer in Austin that knows what “suspect they are undocumented” means. It means ‘having the wrong name’.

This isn’t some sort of wild accusation either. I’ve seen federal INS detainers placed on United States citizens. Combining the first names Juan, Jose, Miguel, Manuel, etc. with the last names Diaz, Lopez, Hernandez, Rodriguez, etc. is the most likely way for ICE to ‘suspect’ someone may be undocumented.

Oh, and by the way, how long does it take to remove an unlawful INS detainer from a U.S. citizen? Several extra days in jail, at least. Sometimes longer.

Or was it Ike?

Robert Arthur comments on Ike Turner’s recent death, noting many headlines such as “Cocaine Killed Ike Turner”. He surmises that there may be, as Paul Harvey likes to say, “more to the story”…

The ubiquitous headlines have been “Ike Turner Died of Cocaine Overdose” and the underlying articles have focused on his past recreational drug use. As usual the government and the media have twisted their presentation of illicit drug use to create a morality lesson.

Fatal overdoses from cocaine, as with other stimulants, are extremely rare. Most deaths labeled cocaine toxicity by medical examiners are actually due to respiratory failure. Cocaine greatly increases the heart rate and, similar to roller coasters, should not be used by those with weak hearts.

Also, drugs are often incorrectly blamed for suicides. Recreational drugs are a favored exit route because they are easier and more pleasurable than shooting oneself or throwing oneself off a precipice.

Arthur notes that Turner being in the advanced stages of emphysema may have chosen to end his own life, with cocaine as the tool rather than the cause.

People often commit suicide by running a car in a garage. Do cars get blamed?

No. But ‘Cocaine killed Ike Turner’ is apparently a better headline than ‘Ike chose to end his own life with cocaine’.

I’ve written about “Austin Marijuana” laws before, and perhaps unwisely, I joked that Austin is Weird, but unfortunately, it is constrained by the laws of the great State of Texas and therefore no different when it comes to marijuana laws than anywhere else in the Lone Star State.

Scott Henson called me on it, in a comment:

Two caveats.

1) Austin supposedly will soon implement HB 2391 that allows tickets instead of arrest for pot at an officer’s option. And

2) APD frequently now gives paraphernalia tickets instead of arrests for B misdemeanors as a way to reduce jail overcrowding and keep officers on the street. Both those are discretionary, though – the state law is still the same.

I knew that was true, but I what I didn’t know was: Austin really is weird. Austin is apparently the only place in Texas where police are utilizing this new law. From the Dallas Morning News article “Marijuana ticket law only catching on in Austin”:

Texas lawmakers thought they could help ease jail overcrowding when they passed legislation allowing police to write tickets for misdemeanor marijuana possession and a few other nonviolent crimes, instead of hauling suspects to the clink.

But the new law, which went into effect Sept. 1, 2007, is being used only in Travis County. Prosecutors in Dallas, Tarrant and Collin counties never set up a system to process the misdemeanor citations and, they say, they have no plans to do so.

The article I subtitled “Law designed to free jail space not used elsewhere in Texas as prosecutors question propriety,” and it quotes several ‘concerned’ prosecutors:

"I think the Legislature was very sensitive to the fact that there are so many jails that are overcrowded," said Terri Moore, Dallas County’s first assistant district attorney. "This was a great idea, but it raises a lot more questions that we are not ready to answer." …

For Greg Davis, Collin County’s first assistant district attorney, one of his qualms with the new law is the perception created by ticketing for a drug offense, instead of making an arrest.

"It may… lead some people to believe that drug use is no more serious than double parking," Mr. Davis said. "We don’t want to send that message to potential drug users, particularly young people."

Well, the legislature has spoken, and yes it’s true that the new provision is discretionary, but rejecting it out of hand for reasons of… well, political cowardice?

Jail overcrowding is a real problem all across Texas. And the super majority of taxpayers are more than OK with tickets for small amounts of marijuana possession – heck, decriminalizing marijuana or reducing it to a Class C level.

One quick caveat of my own: the law does not make possession of less than two ounces of marijuana a Class C traffic ticket level offense. It is still a Class B misdemeanor, jailable by up to 180 days and up to a $2000 fine. (Not a likely result, but it’s still not ‘just a ticket’.)

In other words, Mr. Davis, the offense itself is still just as serious as it was before the new law. And of course you know that. Don’t you want to save the taxpayers some money?

Update: Of course, Travis County is not the only place in Texas the new discretion to ticket for marijuana is being used. Still, Austin deserves some credit, for being the first ‘big city’ to use it so effectively.