A Reader Writes

A friend in Tennessee writes:

Your November 29, 2007 post seems to me to be potentially irresponsible and potentially unethical. How many times have you gotten your clients into more trouble? I bet you would not admit it if you had.

Friend, aside from being an unfriendly thing to say, that last bit is a bet you would certainly lose. You must be mistaking this blog for some sort of advertising. No, I pretty much let it all hang out here — wins, losses, and outright thrashings. I write this blog for the other criminal defense lawyers, not for clients, and if I can impart a lesson to those who are treading the same paths that I tread, I will. If I had clients who had received bad results because I tried to find ways to beat their cases, I would say “. . . but this approach doesn’t always work so well.”

If I were convincing people to try to fight when there was some substantial risk that they would get whacked harder for trying to fight, that might be irresponsible. If I were misleading them into hiring me, that would certainly be unethical.

But this approach works very well, and the answer to your question is “never”. I have never gotten any of my clients into more trouble by doing due diligence instead of rushing them down to plead. Never.

Now, bear in mind that the people who come in looking for the quick copout are almost always accused of misdemeanors (people don’t come into the office looking to plead guilty to a felony “just to get it over with”), and always out on bond. In the jurisdictions in which I practice, it is almost never true that the first offer is the best offer, and it is almost never true that an accused who is on bond is best served by pleading guilty on the first court appearance.

The worst-case scenario for a client whom I’ve convinced to allow me to actually do my job (instead of just accepting his opinion that an immediate guilty plea is the best option) is this: I review the facts and the law, I discover some reason that the client must plead quickly (for example, the State has missed the true felony charges that could have been filed, and we need to jeopardy-bar them as soon as possible), and I help the client plead guilty immediately. That scenario is very rare, and that’s the absolute worst-case: no worse than if he hadn’t hired me.

The best-case scenario is that I find a way to beat the case (truly about half the time under these particular circumstances): to get it dismissed, to win at trial, or to otherwise get some outcome that can be expunged from the government’s records.

In the balance of cases, the fact that I perform due diligence, look for a way to win, and litigate what can be litigated results in final plea offers at least as good as — and usually significantly better than — the clients’d've gotten by pleading guilty straightaway.

Ethics are funny. We have rules laid down by the organizations that regulate lawyers; we lawyers talk about “legal ethics” but these are not really ethics but law. Then all of us have our own principles of right and wrong that govern our behavior regardless of the sanction that attaches. These principles really are ethics, and they’re intensely personal.

A lawyer who helps his clients plead guilty without carefully exploring the possible defenses is in dereliction of his duties; a lawyer who allows her clients, untutored both substantive and procedural law, to make the decision to discard their constitutional rights without input from the lawyer abdicates his responsibilities. These are the “lawyers” whom the clients pay a pittance to when they decide they don’t want to pay someone (me or someone else, it doesn’t really matter to me) real money to fight for them. In the case of those lawyers, I’ll call your “irresponsible and unethical” and raise you a “shameful.” Boooooo.

Another Beauty Contest

The American Bar Association (that’s not the real link — the ABA is merely worthless rather than sinister — but it’s entertaining nonetheless) is hosting another blawgers’ beauty contest. Kevin O’Keefe writes about it here. The heart of Kevin’s excellent post (hat tip to Anne Reed):

Law blogs represent disintermediation of publishers and gatekeepers. No more are those in supposed power and control going to screen and serve up what they think is important. A lawyer in a town with a water tower, an old grain elevator and 3 four way stops is on equal footing with a lawyer who clerked for a Supreme Court Judge. The democratization of publishing and dialogue we get through law blogs is at the very heart of what we stand for in America.

Kevin sees the ABA’s poll, and its publicization of the poll, as “shallow, at best”.

Indeed. If other things were judged by such polls, Toyota would be recognized as the best carmaker, ground beef as the best cut, Gallo as the best wine, and Thomas Kinkade as the best painter. China would be accepted as the best country, Christianity as the best religion, Windows as the best operating system, and ignorance as the best mental state (coincidentally, George W. Bush would be president).

Just Pleading Guilty

Shawn Matlock, who’s growing up quite nicely, writes about trust (a topic dear to my heart) and his distaste for potential clients who “just want to do a quick plea.”

I get such potential clients in the office now and then. When they tell me they want to “just plead guilty and take probation”, I tell them something like this:

If you want someone to just plead you guilty, go hire someone else. You’ll pay a lot less than hiring me. Lots of people sitting in that seat tell me they just want to plead guilty. “Just pleading guilty” is not what I do; nobody ever won a guilty plea. On every case, for every client, I look for ways to beat the case. I prepare for trial. I fight. Sometimes we win, sometimes we don’t, sometimes we plead guilty after all, sometimes the fight doesn’t last long, but even when we plead after trying to win the case, we get better deals than we would by “just pleading guilty”. You may think they have you dead to rights, but you don’t know the law and you don’t know what evidence they have against you. Nobody sitting in that seat ever does. Sometimes I convince the people sitting there that they don’t really just want to plead guilty, that they really want someone to fight for them and try to find a way to win. And you know what? About half the time, when they decide they don’t want to “just plead guilty”, but want to fight after all, we end up winning.

Aimless Rambling

From Therapeutic Metaphors & Clinical Hypnosis, by David Puchol Esparza:

[Milton] Erickson told many stories and told them to a variety of clients. As he said of his treatment for a young, anorexic girl, “My treatment for Barbie was to tell her short stories, metaphors, suspenseful stories, intriguing stories, boring stories. I told her all kinds of stories, little stories” (Zeig, 1980). He illustrated the experiences he wanted his clients to retrieve as they fixated their attention upon the dramatic aspects of an unfolding story line about someone else. Clients were free to create their own meaning from the stimulus offered and even have learnings too painful for the conscious mind to tolerate. After all, it was “only a story.”

As such, metaphor can be considered an altered framework through which a client is free to entertain novel experiences.

To an outsider not extensively trained in hypnotherapy, it would undoubtedly have appeared that Erickson’s stories were “aimless rambling.” Yet somehow Erickson’s clients got results. (Despite him?)

Legal History Query

I can’t figure out a way to phrase this search on Westlaw, so I thought I’d turn to the the hive mind of the blawgosphere:

Has Texas Court of Criminal Appeals Judge Sharon Keller ever voted in favor of a defendant in a criminal appeal?

I’ll send a valuable prize to the first person to offer either an answer, or an easy way to find a trustworthy (calling chambers is right out) answer. Lend me your suggestions in the comments.

Winning Despite Yourself

In this post about Gerry Spence’s defense of Geoffrey Fieger (well, it’s not really about that; it’s about the egos of Gerry Spence [who boasts he's never lost a criminal case] and Geoffrey Fieger . . . or maybe all criticism is autobiographical and it’s not really about that either . . .), my New York brother Scott Greenfield wrote:

Bear in mind that Gerry Spence was the lawyer who represented Imelda Marcos, the steward of all footwear, in the Southern District of New York. After the jury returned a verdict of not guilty, one was asked whether it was because of Gery Spence. The response was it was despite Gerry Spence. Ouch.

Call me crazy, but I don’t feel Scott’s pain. I’ve had prosecutors opine that juries acquitted my clients despite me; I would love to hear that from all of my juries.

Obviously, I would much rather have a client acquitted despite me than have a client convicted despite me. In the list of all possible things a jury could say after reaching a verdict in a criminal case, one of the least painful would be “we acquitted him despite his lawyer.” The only contender for the title of “least painful” is “we acquitted him because of his lawyer”, and I’m not sure I wouldn’t prefer to hear “despite” instead of “because of” as justification for an acquittal. Here’s why: jurors lie about their verdicts. If you want to be lied to, talk to a jury about its verdict.

Even if they were inclined to be entirely truthful after a verdict, jurors would be a lousy source of information on the reason for their verdict. Because they are the object of the lawyering, jurors are unable to accurately assess the effect of good lawyering on them. Jurors make their decisions mostly based on their guts; then they try to rationalize and justify what they’ve decided. Nobody wants to be tricked into making a decision by some slick lawyer; generally jurors would rather believe that they did what they did despite the lawyering, because it was just the right thing to do. Jurors would like to believe that the lawyers just got in the way of their discovery of the truth (clients who owe money like to believe the same thing).

Generally, the better the lawyering, the less obvious. Perry Mason moments are rare; great lawyering is more often than not transparent, with the lawyer stepping backstage and letting the story tell itself. Ideally, the trial lawyer will give the jury what it wants: the illusion that he is not influencing them.

Beyond transparency, there is lawyering that is so fine that it is not only transparent, but transcendent — lawyering so subtle that it appears to the uninitiated (including the jury) that the lawyer is screwing things up. I don’t claim to know what Gerry Spence was doing in the Marcos case, but I know that whatever he was doing worked. And in the end, that’s what matters.

Jury Argument in Criminal Cases

Today my copy of Ray Moses’s “Jury Argument in Criminal Cases: A Trial Lawyer’s Guide (Second Edition)” arrived in the mail. (Bookmark the book’s website.) This is one of my favorite resources, but I had never gotten around to ordering a copy before now (Professor Moses doesn’t make it particularly easy to order) — I’d used it at one law library or another. This is a wonderful book.

It’s also a large book — almost 1500 pages of jury argument: law, advice, and examples. The examples are the heart of the book — a thousand pages (I guess) of snippets (a sentence or a paragraph or two) of jury argument in criminal cases. Many of the snippets are attributed to one criminal defense lawyer or another, but most are unattributed. They are arranged by category. For example, there are 146 arguments (for both sides of the bar) on reasonable doubt. There are 69 arguments on self-defense (we Texans love our self-defense), including five arguments on the duty to retreat. If you try criminal cases to juries, you want this book.

Here, for your perusal, are the preface and table of contents. If you can’t find something in Professor Moses’s book that is worth the $200 pricetag, you’re not paying attention.

Two Courthouses

Harris County has separate courthouses, both built in the last seven years, for its civil and criminal courts. Courthouse number one is a dingy-looking beige building, solid and generally functional; courthouse number two is ornate, with a dome on top.

In courthouse number one, a judge enters her courtroom from a door to the side and climbs up to her bench; in courthouse two, a judges enters her courtroom through a limestone archway behind her benches (if I were a judge in courthouse number two, I would definitely invest in a fog machine to make my entrances even more oracular; maybe a strobe light too).

Courthouse number one has limited technology built in, and that technology was outdated when the courthouse first opened; courthouse number two has all the technological bells and whistles — WiFi, projectors with drop-down screens, and so forth.

Courthouse number one has too few elevators for the crush of humanity that visits its halls every morning; courthouse two’s elevators rarely carry more than one person apiece.

By now, if you’re a courthouse aficionado, you’ve figured out which is the criminal courthouse and which the civil. So tell me: why has the grand entrance hall of courthouse number two smelled like cat urine since the day it opened?

The Tyro’s Return

This guy is back. Now he’s been retained to represent another of my former clients.

It’s beyond me why people hire this guy. He has handled five federal criminal cases to completion, all at least six years ago. Between 2001 and this year he didn’t have his name attached to a single federal criminal case in the Southern District of Texas. From a brief telephone conversation with him I was able easily to learn that he knew next-to-nothing about federal criminal defense. Now four people have hired him to represent them in serious federal criminal cases in the last eight months.

His apparent target market — people who want to rush as quickly as possible down to the U.S. Attorney’s office to sell their friends and themselves up the river for the possibility of a shorter sentence — is very different from mine. He’s not likely to take any business away from me. Should I just shrug my shoulders, say “these federal criminal defendants are big boys, and they’re grown-up enough to make their own mistakes” and go cheerfully on my way?

On the other hand, this guy exemplifies the problem of declining standards of representation in federal criminal cases. Do I have some responsibility to do something more than I’ve already done about that?

Why Let Juries Sentence?

When Texas legislator Scott Hochberg sought to ban probation for murder, he was able to get a bill passed preventing juries from recommending probation in murder cases. Judges can still, if prosecutors play along by agreeing not to have jury trials, put people on probation for murder.

If things had to change (there really was no good reason; Rep. Hochberg’s yearning to change the law was reportedly based on one probation decision by a jury with which the representative didn’t agree), this is the opposite of how they should have changed. The Texas Legislature has, once again, taken power out of the hands of the people (juries) and put it in the hands of bureaucrats (prosecutors and judges).

Justice is not something that can be defined by fiat. Justice is a personal moral judgment, and — except for parents trying to imbue their children with morals — no person is competent to tell another what justice is.

If you ask a judge to tell you what justice is, you’re not assured of getting justice. There’s some chance that you’ll get what that judge considers justice, and if you’re lucky it’ll be something you can live with, but there’s no reason to think that a judge has any more of a clue about justice than the man on the street. Judges (especially elected judges, and most especially those elected in partisan elections) aren’t generally selected based on their life experiences and wisdom. In fact, our elected judges are often young and callow, with no life experience beyond the halls of the District Attorney’s office.

Justice is not something that can be legislated. Legislatures are filled with politicians: crooks, addicts, and perverts who have been trying all their lives to prove that they are not crooks, addicts, and perverts by passing draconian laws against other crooks, addicts and perverts (I don’t have anything against crooks, addicts, and perverts; hypocrisy is by far the greater sin). Politicians are the last people we should be expecting to tell us what justice is.

Justice is certainly not susceptible to the paint-by-numbers approach taken by states using sentencing guidelines. No two crimes are identical, no two victims are identical, and no two offenders are identical. Sentencing guidelines may eliminate unwarranted disparities, but they create something far more insidious: unwarranted similarities. Sentencing guidelines promote consistency, but only of the foolish kind.

So, if judges, legislatures, and sentencing commissions are not competent to declare, “this is just!”, how do we achieve justice in the criminal courthouse? We can’t. Because justice is a personal moral judgment, nobody will ever make a justice-decision that everybody else agrees with. We talk about justice in the courthouse, but the very best we can hope for there is that the results thee reflect the community’s sense of justice. Since nobody will ever agree, “this is justice,” the best we can do is approximate, in each case, what the community might consider justice. And that’s why we let juries decide sentences.