Free Legal Advice

I’m not the only one giving away million-dollar legal advice. Stephen Gustitis blogs here about what to do when you’re arrested, and Scott Greenfield follows up here with his thoughts, including why peoplr spill their guts after demanding a lawyer:

This may be the gestalt need to explain oneself, by adding something like “I’m in enough trouble already and I don’t need to make it worse by talking to you about the crime.” Or this may be the mistaken idea that by uttering the magic words, they get a free pass on whatever comes next, so they then spew a total confession (or worse yet, some smart-alec version) thinking that the cops can’t use it because they invoked their right to counsel.

I wrote here about what happens when criminal defense lawyers’ best advice is followed.

Scott also guesstimated that 30% of defendants “sink themselves with their own mouths when they could have beaten the case if they had just remained silent.” My impression is that the number is much higher. But more importantly, consider this: 0% of defendants sink themselves by not talking to the police.

Because of the much higher cost of living in New York, incidentally, what would be million-dollar legal advice in Houston would cost you $2,315,389.77 up there.

Technorati Tags: criminal defense, interrogation, advice, remain silent

Federal Cases: "But I’ve Never in Trouble Before"

When my federal criminal defense clients and I are discussing the possible punishment (using the sentencing guidelines as, well, guidelines) that they might receive if they are convicted, they are often shocked. The sentences seem severe for first-time offenders. “But Mark,” they often say, “I’ve never been in trouble before. Can we get the sentence reduced because I’ve never been in trouble before?”

The sentencing guidelines presume that the person being sentenced has never been in trouble before. So, generally, do the statutory minimums. When we say that the statutory minimum for possession with intent to deliver more than five kilograms of cocaine is ten years, we are saying that the appropriate penalty for somebody who has never been in trouble with the law — indeed, has never broken the law — until becoming involved in a smallish cocaine conspiracy is ten years in prison, regardless of his role in the offense.

There are two narrow circumstances in which a person convicted of a 5-plus kilogram cocaine conspiracy in federal court can avoid the ten-year statutory minimum. The first is to cooperate with the goverrnment, providing “substantial assistance” (and only the government gets to decide what substantial assistance is in a particular case).

The second is to qualify for the “safety valve.” An accused in a drug case may be eligible for the safety valve if:

(1) she does not have more than 1 criminal history point;

(2) she did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) she was not an organizer, leader, manager, or supervisor of others in the offense and was not engaged in a continuing criminal enterprise (as defined in 21 U.S.C. § 848); and
(5) not later than the time of the sentencing hearing, she has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan. 18 U.S.C. § 3553(f) and U.S.S.G.M.§ 5C1.2.

The two effects of safety valve eligibility are (1) that the statutory mandatory minimum does not apply; and (2) that the accused receives a two-point downward adjustment to her sentencing-guidelines offense level. (A two-level downward adjustment is generally about a 20% sentence decrease.)

So the draconian sentences of the federal statutes and sentencing guidelines are for people who have never been in trouble before. People who have never been in trouble (at least, not serious trouble — a single conviction with a less-than-six-month sentence gives a person one criminal history point) before and satisfy the other four safety-valve criteria might shorten their sentences a bit, but the tenor of the federal sentencing guidelines and statutes is that people who have been in trouble before get longer sentences. Criminal history is punished; a lack of criminal history is not rewarded.

Technorati Tags: conspiracy, criminal defense, federal, guidelines

A Criminal Case is a Lawsuit in which the Government is Suing a Person

I talked here about the beginning of an understanding of the American criminal “justice” system, the principle that “legal” doesn’t mean “right” and “illegal” doesn’t mean “wrong.

After “illegal ≠ wrong,” the next principle that needs to be recognized for an understanding of the American criminal “justice” system is this:

A criminal case is a lawsuit in which the government is suing a person.

The idea is that every crime is a crime against the government. In Texas, for example, all charging instruments allege that the offense was committed “against the peace and dignity of the State.” This idea — that a crime is an affront to the crown, and that it must be punished by the crown’s men — is as ancient as the common law.

If one person injures another and the government doesn’t think that a law was violated, the government won’t sue the person who caused the injury.

If the government thinks that person violated the law, it will sue the person even if nobody was injured (most crime fits this pattern).

The person allegedly injured in a crime is a witness (commonly the “complaining witness”). In the government’s lawsuit against some other person, the prosecutor represents the government, and nobody else.

Technorati Tags: definitions, the system

Right v. Wrong

An understanding of the criminal “justice” system has to begin with this:

The criminal “justice” system is not about “right and wrong.”

“Right and wrong” and “legal and illegal” are entirely separate concepts. “Right” and “wrong” are moral terms, not legal terms. The fact that something is illegal does not make it wrong, and the fact that it is legal does not make it right. (Flipping those two propositions, the fact that something is right does not make it legal, and the fact that it is wrong does not make it illegal.) Something that is wrong and illegal does not become right if it’s decriminalized. Something that’s right and legal doesn’t become wrong if it’s criminalized.

Technorati Tags: criminal defense, definitions, philosophy, the system

Who Are You Helping, and Who Are You Hurting?

Today an anonymous prosecutorial commentor wrote, in the comments to my Support the Troops — Acquit a Vet post (and directly in response to my saying, “I’m not worried about people losing faith in the criminal justice system. Anyone who has faith in the criminal “justice” system is either on the government teat or oblivious”:

Do you not accept or recgonize views alternative to your own? It’s yoru blog, so of course you can say what you want. Like my Dad always says “it’s America”

Let’s say you have a violent offender who has robbed and seriously injured someone to the point they had to go to the hospital or someone who has violently raped another person. Extreme examples, but bear with me. In your world view what would you like to see happen? You have victims who want justice, retribution, what have you. Do we go back to the Old West and round up a Posse to go after the offender? Do we resort to vigilantism and let things work themselves out? We have laws going back to Moses on the Mount, that state how we should interact with one another. Assuming you think that laws are a good thing, should they not be enforced? Understand I’m not talking about drugs, DWI, etc. I’m talking about my examples.Those victims deserve a fourum and the right to be heard. They have an expectation that the person who wronged them will be held accountable. That doesn’t make them oblivious. Whether the jury finds them guilty or aquits, they’re still doing their duty, it’s still Justice.

I recognize and accept that some people have faith in the criminal “justice” system. But they’re mistaken. It’s a crappy system that’s designed to cause people pain.

Do you suppose that those victims who want retribution (their idea of justice) feel that justice has been delivered when (because of police or prosecutorial error, for example) their attackers go free? The criminal “justice” system is not there to provide a forum — or anything else — to the victims. Witness how often the wishes of complaining witnesses are disregarded by proescutors. If it happens that the criminal “justice” system satisfies some need of some human being, it’s mere coincidence. Anyone who expects it to do so or has faith that it will doesn’t understand the system.

Clarence Darrow said:

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves — whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

I suppose that if I had to be a prosecutor I would have to believe that people can know what justice is. I would further have to believe, hubristically, that I knew who should be “held accountable” for what transgressions, and how. The prosecutorial venture would seem entirely hollow otherwise.

But — thank God I’m a defender — I know that Darrow was right.

In a perfect world, I would want to see a criminal justice system based on restoration — making whole the people who are hurt — rather than retribution. In such a system I could comfortably operate on either side, working to heal victims as well as offenders. But that’s not the system we have.

On Monday Scott Henson (Grits for Breakfast) wrote about Howard Zehr’s talk to the Restorative Justice Conference in Kerrville. It’s a thought-provoking post. The highlight that is relevant to this discussion follows:

In many ways, said Zehr, the current criminal justice system denies victims almost everything they need. He quoted Judy Herman saying that if you set out to design a system to create post traumatic stress for a victim, you couldn’t do better than a court of law. This theme was repeated in other conference events so far – that the court process places unfair demands on victims that exacerbate their emotional response to crime instead of help them.

So not only does the criminal “justice” system cause pain to the people it’s designed to hurt (the accused) but it also causes pain to the people for whose sake you would cause the pain. Anyone who rationalizes putting people in prison because it somehow helps the victims is deceiving himself.

Technorati Tags: criminal defense, philosophy, prosecutors

Us v. Them: A Prosecutor’s Perspective

A prosecutor who wishes to remain anonymous has this to say in response to my Us v. Them II post of last week:

I do think that Mckinney’s statements were too harsh, especially the part about how ADA’s prosecute the innocent. Currently, I only deal with robbery cases and violent serious assaults. Regardless of the outcome, there are no real winners. Some of the cases involve “real” victims, People who have been wronged in some way. When we (ADA’s ) go to trial, we are saying that you will be held accountable for your actions. Does that mean that all defendants are evil wicked people who can never repent? Of course not. It means that you have to follow the rules of society like everyone else. Everyone deserves to be safe in their home or to be safe while they’re walking down the street.

We don’t prosecute the innocent. I have never gone to trial on someone I thought was not guilty. That is an important statement. It doesn’t mean I think everyone charged is guilty. Our elected D.A. gives us wide discretion in how we handle cases. I have dismissed plenty of cases b/c the evidence wasn’t there to proceed.

So there.

Technorati Tags: philosophy, prosecutors, nonsense, the system

Occam’s Razor in the Criminal Courthouse

Occam’s Razor (Wikipedia) is the principle that, all things being equal, the simplest solution tends to be the best one. Occam’s Razor suggests how a case should be defended (as simply as possible — see Scott Greenfield’s “The KISS Principle” post prescribing a “surgical” approach to defending criminal cases); it also can help predict how successful a defense will be.

When you have a criminal case to defend, every piece of evidence will fall into one of three categories:

Things you contest (“no . . .”);
Things you explain (“yes, but . . .”); and
Things you accept (“so what?).

For example, an alleged witness says that she saw your client at the scene of the crime. You can contest this (challenging the witness’s credibility and presenting alibi witnesses to say, “No, he wasn’t”); you can explain it (“Yes, he was there, but not for the reasons the State supposes); or you can accept it (“Yes, he was there. So what?”).

Another example: the complaining witness in a murder case is dead of a gunshot wound. Perhaps you could contest it (showing that something else might have killed him before he was shot); you could explain it (“yes, but he killed himself”) or you could accept it (“Yes, he was shot to death. So what?”)

At its simplest, the defense of a criminal case involves only acceptance of the facts: “Yes, everything the witnesses said is true. But so what? That’s not proof beyond a reasonable doubt.” These cases come up often — usually because the State makes unwarranted assumptions about what the law requires. For example, Weed in the Car cases are often pure “so what?” cases.

Every contest and every explanation, however, complicates your case. Complicating your case is not desirable (per Occam’s Razor and Greenfield’s Hello Kitty Safety ScissorsKISS Principle). So we can amend the list. Now every piece of evidence falls into one of these three categories:

Things you have to contest;
Things you have to explain; and
Things you can accept.

Whether you have to contest or explain a circumstance depends on the facts of the case. Some things can never be accepted. For example, an “eyewitness’s” testimony that the accused committed the crime must be contested. The ultimate circumstance that requires explanation is the fact that the defendant has provided the government with a recorded confession. When the accused, informed of his right to remain silent, persists (against my Good Advice) in baring his soul to the police interrogator on videotape, that is a circumstance that can sometimes be contested (for example, by challenging its voluntariness) and rarely can be accepted; most often, though, the only course to take is to explain it (“here’s why the accused gave a false confession”).

In keeping with the “cutting implements” theme, then, here is Bennett’s Chainsaw:

The more things you must contest and the more explanations you must provide in order to mount a defense, the more likely it is that you will be convicted.

Technorati Tags: criminal defense, strategy, trial

Support the Troops — Acquit a Vet

The lead story in the Houston Chronicle this morning was this: Mayor White Mobilizes Aid for Texas Veterans. “One in 11 soldiers wounded in Iraq and Afghanistan,” begins the article, “is Texan.” (Texas and Washington have lots of servicepeople because they have no income tax.) Unless Texas soldiers are particularly injury-prone, this probably means that one in 11 soldiers serving in Iraq and Afghanistan is Texan, one in 11 soldiers suffering from PTSD is Texan, and one in 11 soldiers suffering from traumatic brain injury (TBI) is Texan.

Practicing criminal defense law in Houston, I’ve represented many soldiers and Marines, both active and veterans. These folks, many of whom have suffered grievous visible and invisible injuries upholding their oath to defend the Constitution, are harshly treated by many in the criminal “justice” system. Some of the jurors who deal most harshly with our servicemen claim to “support the troops.” It has occurred to me that some who say they “support the troops” what they mean is that they “support the government,” and that this support for the government carries over to a jury trial, in which they are happy to go along with whatever draconian measures the government proposes.

“The troops” are not some vague concept that you can support by punching out the right hole on the ballot or listening to the right radio station. They are human beings who put their lives on the line for your safety and freedom. Here’s a suggestion: have some compassion for them.

Cops, if you pull a serviceman over after he’s had a few drinks between tours, think about giving him a ride home instead of to Central Intox. (In fairness to the cops, many of them are veterans, and if a serviceman is going to catch a break anywhere in the criminal justice system it’s before the DA accepts charges. There are a few prosecutors who are veterans, but life experience of any kind, including military service, is not in the typical prosecutorial career path.)

Prosecutors, if a soldier with two tours in Iraq behind him and one ahead is in a car with a couple of guys and some dope, ask yourself whether it makes sense to charge him (and make him hire counsel to fight the charges) or whether it makes more sense to conclude that he was an innocent bystander.

Judges, try to wrap your minds around the idea that TBI and PTSD can cause changes to the personality of an injured person so that he makes “choices” that he wouldn’t have made before his brain got bruised.

Jurors, if a Marine, trained at your expense and for your benefit and sent to Southeast Asia to kill, is caught carrying a gun where the law says he probably shouldn’t, consider stretching the law of self-defense to its limit to cut him some slack.

With TBI (the signature wound of the Iraq war) and PTSD becoming increasingly common and remaining poorly understood by lawyers, judges, and jurors, if we don’t have some compassion for servicemen caught up in the criminal “justice” system their future will be pretty bleak.

Technorati Tags: PTSD, TBI, veterans

How to Choose a Criminal Defense Lawyer

Today Avvo has a post today entitled Lost. Avvo categorizes the post as “How to Choose a Lawyer,” but it’s really about Avvo’s research into people’s experiences hiring lawyers. Among other things, Avvo asserts that

Over the past two years, 25 million Americans were faced with a situation in which they considered hiring an attorney, but they didn’t because they didn’t know how to choose one.

I’m pretty sure this doesn’t apply to criminal defense lawyers. People who “consider” hiring defenders figure out how to do so.

Avvo’s Lost post refers to Scott Greenfield’s “Good Questions Coming from the Avvo Debate” post. In that post Scott describes several methods of choosing a defender:

Referral from friend;
Personal appointment;
Referral from another lawyer;
Price shopping.

Scott describes the problems he sees with each of these methods of choosing a lawyer. Those of you who have read my blog or my websites know that I advocate the second method — personal appointments — as the best way to choose a criminal defense lawyer. Scott is concerned that clients using this method might choose either the “nice” lawyer or the lawyer who tells them what they want to hear.

I have always advised potential clients to talk to as many lawyers in the relevant community (for example, Houston criminal defense lawyers, or Texas criminal defense lawyers, or federal criminal defense lawyers) before deciding who to hire. I further advise them to take along to the interviews a friend or loved one whose opinion they trust.

“Likeability,” says Scott, “bears no connection to the lawyer’s skillset.” I disagree. Likeability bears a great connection to the lawyer’s skillset — criminal defense trial lawyering is about communication, and better communication skills make a person more likeable. If all else is equal, an accused is going to do better in a jury trial with a lawyer that the jury likes than with one that the jury doesn’t like.

More importantly, though, I believe that potential clients can easily be taught to focus not on likeability but on trustworthiness. Potential clients focused on trustworthiness will not hire glad-handing lawyers who “seem nice” but don’t have the heart, brains, or backbone required to do the job. If the potential client goes into each interview asking, “do I trust this lawyer,” the lawyers who are obviously saying what the customer wants to hear won’t make the cut.

I have great confidence in the ability of people working together to tell who is shooting straight with them. While one person (especially one frightened person facing criminal charges) may get snookered by a snake-oil selling businessman, two people working together are much less likely to make the same mistake. The probability of that mistake is lessened even more when lawyers are placed in contrast. I would bet that two people working together and talking with three or four different lawyers will hire the guy who’s best for the accused.
I’ve been hired many times to replace lawyers who were recommended to the clients by their friends or by other lawyers, or who were the low bidders, but I’ve never been hired to replace a lawyer chosen by someone who took the effort to interview several candidates before hiring counsel. This method may not be foolproof, but it’s the best method there is.

I’m such a believer that this way of choosing a criminal defense lawyer is best for the clients that I’ve suggested to potential clients that they go and talk with two or three other lawyers before deciding whether to hire me. I’ll even give the names of two or three good lawyers to potential clients if they ask. I take this very seriously — I’m not going to recommend people who I don’t think could do a good job.

Avvo seeks to rationalize the process of hiring a lawyer by collecting the available data about all lawyers, but there is no amount of data that anyone could possibly give an accused that would tell her who the right lawyer is for her case. Hiring a criminal defense lawyer is, and always will be, a leap of faith. Potential clients are better served by resources teaching them how to select a lawyer than those that purport to tell them which lawyers are better than others.

Technorati Tags: choosing a lawyer, criminal defense, lawyers

Good and Bad Voir Dire II

A commentor to my May 13, 2007 Bad Voir Dire / Good Voir Dire post wrote:

I’m a prosecutor, but those were good points. I’ll try to implement them in my next trial.

I suspect that part might have been intended as a friendly jab. The fact is, though, that I’d rather try a case against a prosecutor who can perform a more-competent-than-usual jury selection. What lawyer wouldn’t want to get more information from the panel, and have the panel more warmed up, before he stands up and starts to talk to them?

My prosecutorial friend also wrote:

Do you think it’s wise to ask the jury can they think of any reason why the defense lawyer may not want his client to testify? What if they say “Because he has a record”?

I think he might not get the point of “bad” answers. I would ask a question in return: what if the defense lawyer doesn’t ask the panel for reasons the defense lawyer might not choose for his client to testify? Does the fact that none of the potential jurors are given the chance to say “Because he has a record!”; mean that they aren’t thinking it?

Technorati Tags: criminal defense, trial, voir dire