The Wolf and the Yarmulke

The Juish (as Kelly Siegler might say) witness whom DA candidate Pat Lykos ordered to remove his yarmulke writes in to AHCL’s blog.

Trial Lawyers and Litigators

AHCL keeps taking Pat Lykos to task for calling herself a “litigator” when she has, as far as anyone can tell, never actually tried a case of any sort, much less a criminal case.

I think the fact that Lykos calls herself a “litigator” is the best evidence that she has, in fact, never tried a case.

Trial lawyers are proud of their work; if someone claims to be a “litigator” you can bet dollars-to-donuts that she hasn’t tried a case in years, if ever.

Litigation is what we do on the way to trial, but most litigation doesn’t result in trial. All trial lawyers are litigators, but not all litigators are trial lawyers.

I think it’s probably like “surgeon” and “doctor.”

Or “astronaut” and “pilot.”

“Homicide detective” and “cop.”

“Marathon runner” and “pedestrian.”

“Rock star” and “musician?”

Four Nasty Little Surprises

I recently mentioned that part of being prepared for trial is having “nasty surprises for the State prepared.” For each of the cases I have set for trial, I have an NLS prepared. Often the Nasty Little Surprise (“NLS”) is the cornerstone of the successful defense of a criminal case.

An NLS can be a piece of evidence that I have that the State doesn’t have; it can be a fact that I know that the State doesn’t know; it can be something that the State doesn’t realize it should have done, but hasn’t; or it can even be a bit of law that the State isn’t aware of.

Four examples of NLSes in past cases:

1. In a weed-in-the-car case, the fact that my (testifying) client was a lay preacher whose brother (who owned the car) had been convicted of possession of marijuana.

How you gonna convict a preacher for driving his brother’s car with a roach in the ashtray?

2. In a two-kilo cocaine case, the law requiring the State to corroborate the testimony of the police informant.

This shouldn’t have been an NLS — the two prosecutors (one of whom is now running for DA) had no good reason to be unaware enough of this law. They should at least have been up to speed enough not to object so vociferously to my accurate statement of the law during jury selection. But I’ll take what I can get — the jury convicted my client’s codefendant and acquitted my client.

3. In a murder case, the victim’s mother’s request that the jury put my client on probation.

This isn’t the best example of an NLS for two reasons. First, I’m not sure this was a surprise to the prosecution, but if they knew of it they had a duty under Brady to disclose it. Second, I wasn’t certain before she took the stand that she was going to ask for probation for my client, but I followed my gut and was right. My client got probation.

4. In another weed-in-the-car case, a video recording of the marijuana’s owner confessing to my client that he’d left his dope in my client’s car when he borrowed it.

This NLS I had before setting the case for trial; I didn’t tell the prosecutor because I thought having the surprise sprung on him in trial might be a valuable lesson. At the next appearance a different prosecutor was assigned to the case. I told him that the case needed dismissing, but didn’t tell him about the video until he was signing the motion to dismiss. (Prosecutors, you really should stop taking weed-in-the-car cases. When you’re on intake and the cops call you with one, tell them to dispose of the weed and cut the guy loose unless they have something more than “he was driving the car and the weed was in the ashtray.” Even if you think possession of less than a gram of marijuana should be a crime, these cases waste everyone’s time.)

More of Dean and Me on the Marconi

The other half of my appearance on the anti-drugwar radio show “Cultural Baggage” with Dean Becker, February 20th on Pacifica station KPFT. (Transcript.)

Here is the previously-posted first half, and the transcript.

Siegler Video is Up

I finally got the video of Kelly Siegler and Murray Newman’s appearance on Reasonable Doubt up and running. It’s not as high-res as I would like, but it’s watchable.

Now stop bugging me.

Wednesday Evening Staff Meeting

Attention Houston-area criminal defense lawyers:

Back in The Day, before blogs (when I was a much younger lawyer) six or seven of us would gather at Jim Skelton’s office on Richmond Avenue every Wednesday evening to discuss our cases with each other and with Jim.

My recollections of those sessions are fuzzy; there may have been beverages and/or food involved; sometimes other experienced lawyers would join us. It was a good informal way for us young lawyers to learn how little we had actually learned in law school.

I don’t know why it stopped, or when (maybe when we moved out to the suburbs; maybe when Jim got disbarred the first . . . or was it the second? . . . time). The HCCLA listserv, which started on Topica.com back before Google was a verb (in fact, before Google was Google), probably had a lot to do with the end of the Wednesday evening sessions at Jim’s.

I know Jim Skelton; Jim Skelton is a friend of mine; and, senator, I’m no Jim Skelton. But young lawyers nowadays lament the dearth of mentoring. So I aim to do my small part by reinstating the Wednesday evening brainstorming sessions.

Defense lawyers young and old are welcome next Wednesday evening, March 5, 2008 beginning at 4:30ish and going till 6:30ish chez Bennett. Bring your worries, your questions and your cases.

Please respond so that we know how many to expect.

Siegler Reasonable Doubt Video

I keep trying to upload the video of the February 21st Reasonable Doubt with Kelly Siegler and Murray Newman to Google Videos using the Google Video Uploader. The upload seems to go smoothly (I’ve tried several times with different video formats), but the video never appears in my list of uploaded videos.

I can’t figure out what the problem is; I welcome input or assistance from anyone with a fast connection and Google Video experience.

New York is Definitely Different

The world of the New York criminal defense lawyer is very different from that of the Houston criminal defense lawyer; these differences go deeper than just the much greater number of cases that Texas lawyers try to juries. Scott Greenfield, writes about the plea offers mailed to 60 of the 62 alleged Gambino defendants in the Eastern District of New York:

According to the story, the offers ranged from 4 months to 20 years.

Lawyers with the U.S. Attorney’s Office in Brooklyn said the plea offers were given to 60 defendants, including most of the high ranked crime family members hit in the 80-count racketeering indictment. Only reputed Gambino soldier Charles Carneglia, 61, and fugitive captain Nicholas Corozzo, 67, who face murder charges, weren’t given offers, officials said.

That’s to be expected. By taking out the little fish, the government gains leverage in getting the big fish. It’s really just a variation on an old joke: Once they’ve determined who is a whore, they are just dickering over price. The next step will be the tantalizing prospect of cooperation, and a better offer, if only the defendants will give up the big guys.

Why the speed? Because the defendants have yet to retain counsel of their choosing. The feds want to get in there and entice as many defendants as possible to stay with their CJA lawyers, engage in negotiation, hold out the 5K1.1 carrot, before they lawyer up for real. It’s not that the CJA lawyers are competent, perhaps even spectacular lawyers, but that they are not married to the ways of the defendants.

Those ways, as Scott describes them, are the ways of “men of honor”:

Indulge my rhetorical statements here, since I speak of no one in particular and know nothing about any of the specific individuals involved in this indictment. But there is some history in these alleged organized crime cases that cannot be ignored.

In the old days, the men involved in organized crime believed in certain things, one of which was that they would never turn on their friends. They would take the heat. Do the time. Come out eventually and know that their families were provided for. They would hold up their end of the deal. Their associates, their bosses, would hold up theirs. Quite symbiotic, and one on which you could count.

That changed over time, as do so many of the old ways. Valachi. Gravano, D’Arco, Sessa, Scarpa. Embarrassments all, but a wave of the future. While this made for some fine movie insights, it was the end of honor. To the romantic, the end of honor made them ordinary criminals, unworthy of further interest.

In U.S. District Courts in Texas the Government very rarely makes plea offers carrying specific sentences. “Offers rang[ing] from 4 months to 20 years”? Fuhgeddaboudit. In every district in Texas, (c)(1)(C) pleas — plea agreements that are binding on the court — are exceedingly rare.

In Texas, as in New York, we sometimes have defendants who would never turn on their associates. Here, though, it’s a matter of self-preservation or — more often — of the effective equivalent of “honor”: family loyalty.

In New York, if you are an accused trying to get a reduction in your sentence by providing assistance to the government, your refusal to tell the Federal Government about all of cousin Louie’s wrongdoing is a deal-breaker. Don’t want to rat on him? No 5K1 for you.

In Texas, though, federal prosecutors don’t generally have a problem with defendants keeping their mouths shut about their family members. Not ratting on cousin Louie won’t buy you a 5K1 in Texas, but it won’t stop you from getting a 5K1 if you can otherwise provide substantial assistance to the government.

In other words, federal prosecutors in Texas generally respect a defendant’s decision not to bear witness against his brother; there are often “men of honor” on both sides of a criminal case.

The Best Free Show in Town

If you find yourself downtown between 9:30 and noon on a weekday morning, drop by Judge Larry Standley’s court, Harris County Criminal Court at Law Number 6, on the 9th floor of the Harris County Criminal Justice Center at 1201 Franklin Street (at the corner of San Jacinto).

Judge Standley genuinely cares about the defendants appearing before him, and the plea colloquy when he accepts a guilty plea from a 17-, 18-, or 19-year-old defendant is the best free show in town.

A sample:

He’ll have the defendant’s parent or guardian stand with the kid at the bench. Then he’ll ask the kid: “How many friends do you have?” He’ll press the kid to name a number. Five, ten, twenty-one, whatever.

Then he’ll tell the kid to turn around and look at the courtroom. “How many of those friends are here for you today?” None (of course). “That’s right. You’ve got one true friend, and she’s standing right up here next to you.”

Carry Me

I’ve written before about the annoying (and unexceptional) experience of being set for trial, coming to court prepared for trial, and then having the trial continued or reset because the State is not ready, or the court wants to do something else, or the court reporter is out sick.

Slightly more irksome is going to court on Monday morning prepared for trial, trial box loaded, big white notepad under your arm, Spiderman bandaid on your finger, nasty surprises for the State prepared, hair cut, boots shined (more or less), and calendar cleared, only to be told that you are third in line for trial in that court that week, and that you should come back Wednesday afternoon. You are, in the argot, carried till Wednesday.

And then returning on Wednesday afternoon, equally prepared (the criminal defense lawyer’s credo: always ready, seldom prepared), to be told that now you are second in line for trial in that court that week, but that of course the court won’t be picking more than one jury, so thanks very much for being available and now we’re resetting your case till June.

(In case you were wondering, this is what happened to our trial that was set Monday.)