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Our local ABC affiliate, KTRK, interviewed me about the Chuck Rosenthal contempt hearing (which may still be going on right now; I had hoped to live-blog it, but the needs of actual clients intervened). This morning a prosecutor came up to me in the courthouse and actually thanked me for not bashing the Office. Here’s the story (with video).

One of the Toughest Jobs in the World

A reader sent me this link: Japanese Justice. In Japan, you can be detained by the police for up to 23 days without habeas corpus. “Forced signed confessions, still considered the “king of evidence” by Japanese courts, are often the result.” No kidding — if you have a guy in custody for 23 days and can’t get him to confess to whatever you want, you’ve got no business interrogating people, especially when “resisting police demands for a confession, and denying the charges, results in detention for extended periods; confession can bring a speedy release.”

You think that would make it tough to be a defense lawyer in Japan? It does — 99% of people accused are convicted, mostly by their own confessions. But wait, there’s more:

Most worryingly of all, say critics, lawyers — the last line of defense in this potholed legal landscape — are not immune from harassment.

Tokyo lawyer Yoshihiro Yasuda was arrested in 1998 and held for 300 days while he was tried on charges of unlawfully concealing the assets of a client. Yasuda was no friend of the police: he had defended Shoko Asahara, leader of the murderous religious cult Aum Shinrikyo, and is Japan’s most outspoken critic of the death penalty.

During the Aum trial, the lawyer accused the police of failing to properly investigate the Aum-sanctioned murder of lawyer Tsutsumi Sakamoto and his family, because he sided against them in the alleged wiretapping of Communist Party members.

In 2003, the Tokyo District Court found him not guilty, criticizing the prosecutors as “unfair.” But Yasuda remains furious about his detention and interrogation.

“How can we achieve the principle of presumption of innocence in Japan under such circumstances?” he asked The Japan Times after his release.

Says Lawrence Repeta, a constitutional specialist at Tokyo’s Omiya Law School: “The point of what they did to him is to threaten every lawyer in Japan. The authorities are saying to lawyers, ‘Back off, don’t aggressively represent your client or we are going to destroy your life.’ Yasuda’s extended pretrial detention amounts to punishment, even before the court issued a decision.”

Defense lawyer and professor Takashi Takano “calls being a defense lawyer in Japan one of the toughest jobs in the world: after 25 years practicing law, just five of his clients have been completely exonerated.”

“Some lawyers go their whole lives without winning a case,” he explains. “I was very shocked when I first went to court and saw arrogant judges ignore hearsay rules, accept confessions — and lawyers who didn’t challenge them. I feel very strong anger toward the Japanese justice system. It is my motivation to change things.”

Reform is coming: starting in spring 2008 lay juries will hear serious criminal cases in Japan for the first time since 1943.

Time for a Change of Format?

Two of my older readers have protested that the white text on black background is hard to read. I’m thinking about changing my layout to something a little less badass and more user-friendly.

Opinions?

Does Mensa Matter?

Mensa is an organization for people with IQs above the 98th percentile. That translates to IQs above 132 on the Stanford-Binet IQ test (wikipedia). (It is, to borrow from John Bender, sorta social — demented and sad, but social.)

Lawyer is a typical occupation for people with an IQ in the 130s. According to the Michigan Bar Journal, “the mean, that is the mathematical average, IQ of attorneys hovers around 127.” I would bet that more than a fourth of the lawyers (and one of the judges . . . maybe) down at the criminal courthouse have IQs of 132 or above. Most of them don’t belong to Mensa.

Yet every positive article about Kelly Siegler and her bid for DA seems to mention her Mensa membership. Why is that?

Wall Street Journal Discovers TBI

Steve Gustitis at the Defense Perspective reminds us that “hidden head trauma may be linked to behavioral problems in society”, which is of great import to the criminal defense lawyer.

Steve’s post was inspired by an email from John Niland of the Texas Defender Service, who sent the Texas capital defense bar a link to a Wall Street Journal front-page article:

That severe head injuries can lead to cognitive and behavioral problems is widely accepted. The U.S. Centers for Disease Control and Prevention estimates 5.3 million Americans suffer from mental or physical disability that is due to brain injury.

What’s new is the contention of some researchers that there are many other cases where a severe past blow to the head, resulting in unconsciousness or confusion, is the unrecognized source of such problems. “Unidentified traumatic brain injury is an unrecognized major source of social and vocational failure,” says Wayne A. Gordon, director of the Brain Injury Research Center at Mount Sinai School of Medicine in New York, where much of the research is being done.

Research by his team has consistently found high rates of “hidden” head trauma when screening various populations in New York schools, addiction programs and the general population. The CDC acknowledges its 5.3 million estimate is an undercount based on hospital admissions; it doesn’t include people who sought no treatment for a severe blow to the head or who were sent home from a doctor’s office or emergency room with little treatment.

None of this qualifies as news here at Defending People, nor to Steve or John. If you’re new to these here parts, here’re my previous posts on the topic of traumatic brain injury, or TBI.

And here’s an article about LaFonda Jones, who is a lawyer protecting the rights of soldiers suffering from PTSD and TBI.

Meet Pat Lykos

I’m not the biggest fan (y’all might have detected this) of the idea of Kelly Siegler as Harris County D.A. It’s time for a change at the DA’s office, and unless Kelly starts telling us how she would institute real change at the Office, I’ll be dubious about whether she will bring real change.

But they tell me that change is not always good; they say that things could always get worse.

If the prosecutorial and defense bars were to get together and choose the next DA by consensus, it would be Jim Leitner. If they were to get together and eliminate a candidate by consensus, I suspect that it would be Pat Lykos. I never got to practice before Judge Lykos, but I’ve heard some of the stories.

So, it turns out, has the New York Times. Twelve years ago the Times printed an account of then-Judge Lykos refusing to let a witness testify while wearing his yarmulke. AHCL makes a big deal about this today, challenging Chronicle reporter Alan Bernstein to write something about this incident, as he wrote about Kelly’s use of the verb “to jew down” in a trial 20 years ago.

Lykos claimed that she required the witness to remove his yarmulke because of “a Supreme Court decision that no lawyer or expert witness could have that additional authority of religion”; Mensan (why is Kelly’s Mensa membership mentioned in every story about her?) Kelly Siegler claimed that “It never even dawned on me [that 'to jew down' is antisemitic]. I probably would have even spelled it ‘j-u-e,’ that’s how stupid I was.”

When Kelly realized that she had offended a juror, she went to that juror’s house and apologized in person; Judge Lykos apparently never apologized, but the witness who was ordered to remove his yarmulke to testify filed a complaint against her and “said he sought nothing more than a clarification of this issue, and he noted in his complaint that Judge Lykos appeared to be ”a nice person” and that he did not think she was anti-Semitic”.

Best-case scenarios:

Kelly, ignorant of the offensive meaning of “to jew down”, uses it. She learns that she offended a juror, and goes out of her way to apologize to the person she offended.

Lykos, ignorant of the scope of a Supreme Court opinion, orders a witness to remove his yarmulke. She learns that she offended the witness, and doesn’t apologize.

Worse-case scenarios:

Kelly uses “to jew down”, meaning (for some inscrutable reason — this is the worst-case scenario) to offend. She then goes out of her way to apologize the person she offended.

Lykos orders the witness to remove his yarmulke because she just doesn’t like Jews (again, worst-case). She then claims that she vas chust following orders.

With apologies to my readers who come here for the Kelly-bashing, I think Ms. Siegler has the better of this little argument whether you are a prosecutor (and assume the worst of everyone) or a defender (and assume the best).

A good apology makes all the difference in the world. I’d much rather put my confidence in someone who apologizes when she screws up than in someone who, shrublike, denies ever screwing up.

The Candidates’ Debate

From Earl Musick:

The Harris County Criminal Lawyers Association feels that the election of the next Harris County District Attorney is extremely important to our organization and to the citizens of Harris County.

Because of the importance of this race, HCCLA has organized a debate involving candidates seeking this important position.

The debate is sponsored by HCCLA, the South Texas College of Law and KHOU-TV. It will be held at South Texas College of Law on February 19, 2008, at 6:30 p.m. and will be one hour from start to finish.

KHOU-TV will webcast the debate.

If you have questions that you think the candidates should be asked, please leave them in the comments and I’ll pass them on to Earl.

Prosecutors and Judges: How is this Possibly Okay?

Today (January 29th) I got a fax from the prosecutor on a misdemeanor case. The fax contained:

A Motion to Disclose Experts; and

An order granting that motion.

The motion carried a certificate of service claiming that the motion had been served on me on the day the motion was filed or before. It had not been served on me before today. In fact, the prosecutor had to call me this afternoon to ask for my fax number.

In the order, dated January 25th, the judge wrote that the motion came on to be heard and considered “after proper and timely notice to the Defendant”, and granted the motion, ordering me to disclose my experts by Friday.

So not only did the prosecutor not serve me with a copy of the motion before it was filed, but she didn’t serve me with a copy of the motion until four days after the order had been granted.

My civilian readers need to know that this is not an unusual event. Indeed, this is pretty much par for the course when a prosecutor bothers to get such an order signed. They routinely file such motions without notice to the defense and routinely present them to judges who grant them ex parte. If there is a prosecutor or a judge who does not engage in this conduct, I don’t know who it is.

Prosecutors:

First, what are you doing, presenting motions to judges without the other side present and, indeed, without notice to the other side? That’s ex parte contact, which is generally unethical, and no exception to the general rule applies here.

Second, what are you thinking, filing documents with the court with fictitious certificates of service? Not only is that unethical, but it’s also a crime: tampering with governmental records. Look it up. On second thought, don’t bother. It’s Texas Penal Code Section 37.10(a)(1). It’s a class A misdemeanor unless you intend to defraud or harm another (arguable — defrauding the court?), in which case it’s a state jail felony.

(So congratulations: in the course of prosecuting a class B misdemeanor, you’ve committed a more serious crime. Call home and tell your mother; I’m sure she’ll be very proud.)

I know that the Harris County District Attorney’s Office has never bothered a whole lot with the rule against ex parte communications with judges, leaving such ethical breaches to the discretion of the prosecutors. I know that the Office takes a somewhat laissez-faire attitude toward the signing of pleadings as well. And I know that you guys feel bulletproof, because (a) nobody has ever held your feet to the fire to actually follow the Texas Disciplinary Rules of Professional Conduct; and (b) it would be the Harris County DA’s duty to prosecute a tampering-with-governmental-records case, and everybody knows the DA’s office is never going to prosecute a prosecutor for breaking the law in the course of her duties.

But the times? They are a-changin’. The public no longer holds the delusive belief that you can do no wrong; there’s going to be a new DA a year from now, and there’s a reasonable probability that it will be someone who doesn’t approve of prosecutors and cops breaking the rules, someone who has no qualms about prosecuting prosecutors for the “little” crimes like this one that some of you commit every day. And the limitations period for even misdemeanor tampering is two years.

Maybe you guys will blame Chuck Rosenthal for this too. He keeps his own counsel, you’ll say. I’m not buying it.

When such a fundamental rule (the foundation for fairness in an adversary system, so basic that we actually learn it in law school) as that forbidding ex parte judicial contact is so routinely ignored, that’s proof that the rot spreads farther than just the sixth floor. It wasn’t Chuck’s job to teach this young prosecutor, and every other young prosecutor, that ex parte contact with the judges is a no-no.

Which brings us to the judge, who, as it happens, reads Defending People.

Judge, what are you thinking? When you sign an order on the ex parte motion of a party, you call your impartiality reasonably into question.

Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that’s not really appropriate, but it’s going to happen however much I fuss — even if you don’t care whether the state wins, you naturally want the state’s inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?

While you’re making the effort to make them better lawyers, do you think you could spare a thought or two for their ethical training? You know that I don’t think you should be taking it upon yourself to improve their litigation or trial skills, but nobody would consider you remiss in providing them with a little ethical guidance. Especially where the ethical rule involves the relationship between them and you, and is so critical to procedural justice and the appearance of fairness.

I realize that you probably didn’t know that the certificate of service was false. You took the prosecutor’s word for it. Clearly, that doesn’t work. But it doesn’t matter. You ruled on a motion ex parte, without giving the other side an opportunity to be heard. If you had made sure I had an opportunity to be heard, of course, you would have learned that the prosecutor’s certificate of service was false, and I would have had a chance to respond.

The times are a-changin’ for the bench as well. The Harris County Criminal Lawyers’ Association has filed three bar complaints against sitting judges in the last two years. More grievances are coming. Will any of those bear fruit? Maybe, maybe not — it takes more than just a righteous complaint for the Commission on Judicial Conduct to act against a judge. But it’s indisputably easier to not be grieved than to be grieved and win.

Aside from the criminal bar growing some much-needed collective backbone in recent years, there’s something else for you to consider: Dallas County. It is possible that Harris County’s Republican judges, like Dallas County’s, will need more than the anointment of the kingmakers in the local party apparat to keep their jobs. Judges who create the appearance of impropriety are more likely to draw opponents than judges who avoid it by scrupulously following the rules. Will these opponents win? Maybe, maybe not — the Dallasification of Harris County elections is purely speculative right now. But it’s indisputably easier to run unopposed than to run opposed and win.

Phone Call from a Slave Ship

Phone Call from a Slave Ship

Rupert File

Why worry over frail Josie not knowing where I am

When I don’t even know where I am, but

Judging through steel mesh, we’re headed downtown

Me and Major, just met, cuffed-up.

“Got DAMN,” Major goes, knee-pounding the DAMN,

my left hand helping his right, having to.

Me with problems too – frail Josie not knowing

Where I am one. Last night another -

Josie breathing, “I love you.”

“Me too,” somebody mean went.

“Can’t you say it?”

“IT. How’s that. It, it, it,” me so slick.

Now in this place, pocket-emptied,

Crack-searched, plastic-glove patted, shoe-shook

Nothing mean or slick left.

In the bench soon we get our call -

Mostly whines to bosses, lawyers.

Everybody listening, nobody guilty.

Mine though finds a soft voice across town – Josie’s.

IT gets whispered, her going, “what?”

I cup the phone. The benches lean forward.

Still it’s “what?”

“I love you, Josie” comes hollered and

“Whooo – lover-boy” go the benches, thigh slapping

drowning frail Josie’s reply.

Slump-sitting I try to dissolve, to not be lover-boy

Close-eyed, I hear us in the hold,

Some moaning, some singing,

Me scurvy-heartsick already

Still smelling land.

New York is Definitely Different

In Texas, a “car” is a car. In New York, apparently, a “car” is what a fancy-pants criminal defense lawyer calls a white stretch limo, which is what Scott Greenfield sent to pick me up from the airport when he found out that I was coming in to do some work on a cocaine conspiracy case in his stomping ground, the U.S. District Court for the Southern District of New York.

So I’m riding in the back of this preposterous conveyance right now, and I have only one question:

Where’s the 30-year-old scotch?