"Technicalities"

The closing scene from Alfred Hitchcock’s Psycho:

What makes that scene particularly creepy for me is the last fraction of a second of the shot of Norman Bates’s face. Just before dissolving to the shot of the car being pulled out of the lake, Hitchcock superimposed an image of a skull over Norman’s face. I don’t know if I would have seen it, or known what I was seeing, if I weren’t looking for it; I might just have been generally creeped-out.

Here is a blog post (from New Mexico appellate Prosecutor Joel Jacobsen’s Judging Crimes blog) that had the same effect on me. (Thanks to Kirk Chavez’s Issues and Holdings blog for recommending Judging Crimes, which is very well-written). Joel talks about the public perception of lawyers, and argues that “the public perception that lawyers do these kinds of things is nonetheless perfectly accurate. The problem isn’t that the public doesn’t know what lawyers do, but that it knows all-too-well what some lawyers do.”

Here is one of the two examples Joel gives of “these kinds of things” that some lawyers do:

Nor is it true that most lawyers “spend too much time finding technicalities to get criminals released”, as an ABA survey found 73% of Americans believe (page 7).

There’s that skull floating there — am I the only one who sees it? Joel says that some lawyers spend too much time finding technicalities to get criminals released.

As an appellate prosecutor, I’m sure Joel spends lots of his time looking for “procedural default”, the many ways that a defendant can lose his freedom by not jumping through all of the hoops of preserving error. Yet I’m confident that Joel doesn’t refer to procedural default as “a technicality.” The 73% of Americans who think lawyers spend too much time finding technicalities no doubt think Joel spends just enough (or too little) making criminals’ lawyers follow the rules.

“Technicality” is a subjective pejorative. One man’s technicality is another man’s rule. A technicality is a rule that leads to the wrong result. Those who resent the time we spend “finding technicalities to get criminals released” would likely approve of the time Joel spends “making criminals’ lawyers follow the rules.” Do prosecutors spend too much time making criminal lawyers follow the rules? No. Do they spend too much time finding technicalities to keep people in jail? Sure.

Polls are a funny thing. The wording of the question is everything; a pollster can load his questions to get any result he wants. In the poll cited by Joel, the ABA asked, “Do you agree or disagree that lawyers spend too much time finding technicalities to get criminals released?” and 73% said they agreed. If they had instead said “Do you agree or disagree that lawyers spend too much time protecting people’s freedom?”, fewer people would have agreed.
Some people see the warrant requirement as a “technicality”; some see the exclusionary rule as a “technicality”, some see the requirement of a valid indictment as a “technicality”, and some some people undoubtedly see the requirement of proof beyond a reasonable doubt as a “technicality.” Criminal law is not about “right and wrong;” it’s about rules. When the government doesn’t follow all of the rules, it sometimes (not often — courts usually will give the government a free pass) loses.

I have never had the family of a client complain that I was spending too much time finding technicalities to free their loved one. Is it possible that the ABA found 450 randomly-selected Americans, 73% of whom had never had loved ones benefit from the services of a criminal defense lawyer? Of course not. When they’re in that position, they know that what defenders are really doing when they’re “finding technicalities to get criminals released” is making the government’s lawyers and agents follow all of the rules before determining who the “criminals” are and putting them in jail.

Trying to keep people out of jail is what the market pays us for. If you want us to spend less time trying to keep people out, stop paying the government so much to put people in. Until then, I don’t object to lawyers who spend too much time “finding technicalities,” but to those who spend too little.
“Finding technicalities to get criminals released” is how those who don’t approve of our existence describe what we do. I’d like to see Joel, who is determined to “engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest,” engage with the assumptions on which his post rests.

Technorati Tags: blawgs, criminal defense

New Blog Worth Reading

New Mexico prosecutor Kirk Chavez has started blogging about New Mexico law at Issues and Holdings.

Welcome Prosecutors!

So far today I’ve had 116 visitors from this post on the Texas District and County Attorneys’ Association forum, where the administrator, Shannon Edmonds, posted a link to my Motion to Change the Facts.

A couple of visitors to that forum commented — not on the motion (well, there were secondary and grudging admissions that that was actually funny), but on my philosophy (I give a damn), on my appearance (okay, Brumley, you’re right — that photo [which I took myself] has to go), and, anonymously, on my parentage (I am not making this up).

[Edit: A free "Notice to Agents" coffee mug to the commenter offering the best punchline -- snarky or otherwise -- for this post.]

Technorati Tags: prosecutors

An Unused Resource for Veterans with TBI

Houston’s TIRR (The Institution for Rehabilitation and Research) is the fourth-highest rated rehabilitation hospital in the U.S. (No VA hospital even made the top 25.) So why is it that TIRR’s Project Victory, designed to help veterans with traumatic brain injuries “reintegrate into family, school, work and community life” with “a three-year, $3 million budget, plus equipment, space, and perhaps most importantly, three decades of institutional experience in treating brain injuries” has no patients?

Well, the Houston Chronicle reports that the Houston VA hospital, which was supposed to funnel patients to Project Victory, has started its own “community reentry program”.

It sounds like a bit of a turf war over veterans recovering from TBI. On the one hand:

Dr. Helene Henson, in charge of rehabilitation services at the Houston VA hospital, said the staff was not reacting to any sort of criticism and had not reneged on its agreement with Memorial Hermann/TIRR.

Part of delivering good patient care, Henson said, was adding the day treatment program for veterans with mild brain injuries.

Henson said the VA promised to refer vets with moderate to severe brain injuries to Memorial Hermann/TIRR, and that the hospital staff simply doesn’t have any patients with those levels of impairment.

“They’re not coming to us,” Henson said. “We’re seeing a very different type of impairment than we originally thought we’d be managing.”

On the other, Cynthia Adkins, executive director of The Institute for Rehabilitation and Research Foundation, has a different take:

Adkins said the VA staff is quibbling over semantics, and that officials there originally agreed to share their brain-injured patients without regard to mild, moderate or severe diagnoses.

“I don’t want to challenge the VA,” Adkins said. “We think there are hundreds of vets who can use our help, and we are ready to serve at no cost to them or taxpayers, either.”

That sounds pretty good: rehabilitation for brain-injured veterans, at one of the top rehabilitation hospitals in the country, free to the veterans and at no expense to the taxpayers. If TIRR is willing to take them, why isn’t the VA willing to refer them? I would conjecture that the VA hospital’s budget depends (as government budgets often depend) on the number of customers served, and that that budget might suffer from patients being referred to TIRR’s private grant-funded program.

The article contained a statistic interesting to our understanding of TBI in OIF veterans:

According to the Defense and Veterans Brain Injury Center, a collaboration between the U.S. Departments of Defense and Veterans Affairs, 2,414 returning service personnel have been treated for brain injuries in the past 3 1/2 years.

Henson said roughly 450 of those patients have severe injuries.

According to the epidemiological data, about 18% of all medically-attended brain injuries in the U.S. are severe. Dr. Henson’s estimate comports with those date (she may well have based her estimate on those data), which suggests that OIF TBI follows the same pattern as civilian TBI. If it does, then 27% of servicemen treated for TBI, or about 660, have moderate brain injuries. If the Houston VA hospital doesn’t have any of these 1,110 veterans with moderate-to-severe brain injury, perhaps it could tell Project Victory where to find them.

The overall number — 2,414 — is suspect; it is likely much lower than the number of actual brain injuries. VA clinical neuropsychologist Dr. Harriet Zeiner estimated in September 2006 that there might be 8,000 brain-injured veterans; “neurologists affiliated with the U. S. military now estimate that up to 30% of troops who have been on active duty for 4 months or longer (in both Iraq and Afghanistan) are at risk of some form of disabling neurological damage,” which might mean up to 150,000 brain-injured soldiers.

The problem of finding and treating brain-injured veterans is complicated by the fact that the military has discharged 22,500 troops in the last six years because of “personality disorders.” TBI can present as a personality disorder. The number of 5-13 discharges rises every day, which calls into question the motivation of the military in issuing these discharges. The government doesn’t pay benefits to troops receiving “5-13″ personality disorder discharges. The VA doesn’t have to treat them. It is likely that soldiers with TBI-related personality changes are getting shunted out of the military with 5-13 discharges, and therefore out of the veterans’ support system.

Do we trust the government to treat our injured veterans? Or should the VA be letting Project Victory do what it is supposed to do?

Technorati Tags: TBI

Defining Reasonable Doubt

From 1991 (Geesa) to 2000 (Paulson), criminal juries in Texas were given this definition of “beyond a reasonable doubt:

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all “reasonable doubt” concerning the defendant’s guilt.

A “reasonable doubt” is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.

Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

This is the same definition that federal criminal juries are given in the Fifth Circuit. It’s got its good points for the defense — “without hesitation” — and for the government — “based on reason and common sense.”

In 2000, the Court of Criminal Appeals, Texas’s highest criminal appellate court, decided that jurors should no longer be given the Geesa definition of “beyond a reasonable doubt.” The court focused on the third, “without hesitation” paragraph:

If a conscientious juror reads the Geesa charge and follows it literally, he or she will never convict anyone. Considerations utterly foreign to reasonable doubt might make a person hesitate to act. The gravity of the decision and the severity of its consequences should make one pause and hesitate before doing even what is clearly and undoubtedly the right thing to do. Judgments that brand men and women as criminals, and take their money, their liberty, or their lives are deadly serious. They are decisions that make us hesitate if we have any human feelings or sensitivity at all. So to convict, a juror must either ignore the definition, refuse to follow it, or stretch it to say something it does not say.

Noting that in Victor v. Nebraska the U.S. Supreme Court had held that a “reasonable doubt” definition was not required, the Court of Criminal Appeals found that “the better practice is to give no definition of reasonable doubt at all to the jury” and held that Texas criminal juries no longer had to be given a definition of beyond a reasonable doubt.

The criminal bar adjusted to the new lack of a definition by either (a) trying to impose their definition of reasonable doubt on the jury (as always, the prosecutorial approach) or (b) trying to find out what the jurors thought reasonable doubt meant (the defense approach).

This comes to mind today because Norm Pattis (Crime and Federalism) tells us that, faced with the problem of defining reasonable doubt, the Connecticut Supreme Court has taken a different tack. Instead of leaving the definition to the jurors, that court in Jackson v. State (pdf) upheld the trial court’s reasonable doubt definition, which was, according to the trial court, “a slight variation of the charge on reasonable dobut recommended by Justice Ginsburg . . . in Victor v. Nebraska. . . . a charge proposed by the Federal Judicial Center in creating criminal jury instructions for the federal courts.” (The intermediate appellate court in Jackson disputed this last assertion.)

The Connecticut definition:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in the world that we know with absolute certainty, and in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant’s guilt, you must give him the benefit of that doubt and find him not guilty.

Norm calls this “thin and cynical gruel,” and says:

A police officer can be firmly convinced that there is probable cause for an arrest. Yet the standard is one of the law’s lowest. A civil jury can be firmly convinced it is more likely than not that a tort was committed. Yet the preponderance standard is less demanding, at least in theory, than the criminal standard.

Detaching proof beyond a reasonable doubt from any conceptual mooring is a mistake. Other definitions at least had the grace of demonstrating that the burden of proof in a criminal case is the law’s highest. The two construction rule requires a jury to acquit if there are two reasonable constructions of the evidence, and one of them is consistent with innocence. Most judges won’t give that charge. I suspect they are worried about too many acquittals.

I didn’t much care for the Geesa definition of reasonable doubt. Like Scott Greenfield, I was not overly fond of prosecutors’ “common sense” arguments (though it took this Simple Justice post to clarify why), but this Connecticut definition is an abomination.

A “jury’s” verdict is in fact twelve individual verdicts. When a jury is polled, each juror is asked, “is this your verdict?”; each juror has absolute veto power. Each juror has to decide whether she has a doubt about the accused’s guilt and, if she does, whether that doubt is reasonable to her. I don’t get to say this often, but the Court of Criminal Appeals got it right — in Texas, jurors can do this.

Technorati Tags: criminal defense, jury trial, reasonable doubt

Motion to Change the Facts

Sometimes it’s all you’ve got. [PDF]

What Else Cops Know

I showed here that the cops know not to talk to the cops when they — or their buddies — are being investigated. In his new Frisco DWI Lawyer & Attorney blog and weblog, Hunter Biederman points out that the cops also know not to take field sobriety tests when they’re stopped for DWI.

More Advice to the Young Criminal Defense Trial Lawyer — Part 4. Politics and the Bar

“How important is it to be involved in local politics or the local bar?”

Politics? Unimportant. Do it if that’s what interests you.

The local bar, generally? It probably depends. Here in Houston, with 14,000+ lawyers, it’s unimportant. I have never belonged to the Houston Bar Association, and probably never will. But I’m not a joiner. If you’re a joiner, you might benefit from making those contacts.

It is, however, important to be involved in the local criminal defense bar. It’ll be a source of ideas, of intelligence, of fellowship, and of cover. If you are in a small enough place that there is no organized criminal defense bar, you probably want to join the local bar association. If you are fortunate to live somewhere that has an organized criminal defense bar, join it.

I belong to two of the local (Harris County and Fort Bend County) criminal lawyers’ association, the Collin County Criminal Lawyers’ Association, the Texas Criminal Defense Lawyers’ Association, and the National Association of Criminal Defense Lawyers. All of them have listservs, active and helpful in varying degrees.

More Advice to the Young Criminal Defense Lawyer — Part 3. Volunteer, Low Bono, and Pro Bono

The third of Adam Levin’s questions that young criminal defense lawyers might have:
“Do you perform volunteer, pro bono, or low bono work? Why or why not?”

While defending people in the criminal courts, even for pay, is for the public good (so that we don’t need as many karma offsets as others). As a criminal defense lawyer helping people, you will be doing a tremendous amount of ad hoc pro bono work. It’s part of the nature of the business — people will call you needing legal advice short of formal representation. Beyond that, criminal defense lawyers should do volunteer, pro bono, or low bono work, as the spirit moves them.
For more formal representation, I have found “low-bono” to be a better idea than pro-bono because people are much more satisfied with the representation they get when they are paying something for it. Almost everyone can afford to pay something; if you can give the client more satisfaction by charging her what she can afford (even if it’s an amount inconsequential to you), you’re doing her a disservice by representing her for free.

Unlike lawyers in most other fields, criminal defense lawyers don’t have to go looking for low bono work; it comes to them. People will often call asking if you do pro bono work. Think of them as telephonic panhandlers. But, as I wrote here, the people who need our help so badly that we feel compelled to give it for free are never the ones who ask for it; they are the ones who want to pay, have some money to pay, but don’t have enough to hire someone competent.

Lots of people will call without the money to hire you. When you see a case in which someone is going to really get the shaft because she doesn’t have the money to hire competent counsel, consider taking the case (rather than leaving her to the mercies of the letter lawyers and V-6s) for whatever she can pay.

More Legal First Aid

I’ve edited the Legal First Aid — DWI edition sheet a little bit, and added two more:

Legal First Aid — Search Warrant Edition (“The police are at the door with a search warrant. What do I do?”); and

Legal First Aid — Arrest Edition (“I’m being arrested. What do I do?”).

As always, I welcome your comments. After all, the people reading this information may wind up being your clients as well as mine.

Technorati Tags: arrest, DWI, Legal First Aid, search warrant