Saturday, July 30, 2005
Friday, July 29, 2005
What a Week!
Pop Culture Friday
*It's been fun to watch the early episodes of The Amazing Race every night at 8 p.m. (central) on Game Show Network. I didn't find the show until it's fourth season, and getting to watch the classics--a new one every night!--has been a special treat.
*I defy anyone to not love March of the Penguins. It's got penguins, baby penguins, and Morgan Freeman!
*Marilynne Robinson's Gilead won the most recent Pulitzer for fiction--and it completely deserved it. It is one of the best books I've ever read.
Grits is Back
Thursday, July 28, 2005
Prosecutors Who Give Other Prosecutors a Bad Name
Oregon Tries an End Run Around Crawford?
New Links and Welcome
Wednesday, July 27, 2005
Judge Not So Subtly Rebukes Bush Administration During Terrorist Sentencing
I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.
. . .
[A]ll of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.
. . .
Unfortunately, some believe that this threat [of terrorism] renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.
. . .
It is my sworn duty, and as long as there is breath in my body I'll perform it, to support and defend the Constitution of the United States.
Questioning Nancy Fans
Hell Hath No Fury . . .
Tuesday, July 26, 2005
After Death Row
Monday, July 25, 2005
Congratulations to one of my heroes, Lance Armstrong, on winning his seventh consecutive Tour de France! He truly is an inspiration.
Why Isn't This Murder?
City Can't Fire Disbarred Judge
Friday, July 22, 2005
Alabama House Passes Mandatory Castration Law
Animal Sex Legal in 20 States
Massachusetts Governor's "Perfect" Death Penalty Scheme Not So Perfect After All
Thursday, July 21, 2005
My Blog, As Published by Snoop Dogg
Wednesday, July 20, 2005
NACDL Annual Meeting & Seminar
Tuesday, July 19, 2005
How Many Casualties Must We Suffer Before We Call Off Our Ridiculous "War" on Drugs?
Link via Public Defender Dude, who pretty much sums up how I feel in his excellent commentary on the article.
Bush to Announce Supreme Court Pick Tonight
Everyone is reporting that President Bush will announce his nominee to replace Sandra Day O'Connor on the Supreme Court tonight in a prime-time address. The rumor is that he has selected Judge Edith Brown Clement of the U.S. Court of Appeals for the 5th Circuit. I don't know much about her, although I do know how to pronounce her name, thanks to this helpful link I found on Slate. As a side note, what is the deal with the President asking the TV networks to pre-empt primetime programming so he can make his announcement? Isn't it more standard procedure to just make the announcement in a morning or afternoon Rose Garden address?
Monday, July 18, 2005
Texas Has Wave of Taser Deaths
Big Firm v. Public Defender's Office
*Spending entire weeks doing nothing but reading thousands of pages of internal company documents.
*Spending at least half of my time on cases in which I was never informed of the overall nature of the case, but instead, was merely given some tiny legal point to research and write a memo about.
*Researching, writing, and preparing the arguments for motions and briefs on which your name does not appear, you don't get to argue in front of the judge, and you're lucky if you actually get to carry the file to the courtroom for the hearing.
*Being given an assignment from a partner at 5:00 p.m. on a Friday afternoon that you are told must be completed by 8:00 a.m. Monday when the partner has known about the project needing to be done for two weeks; then, after spending all weekend rushing to get it done, not having the partner even look at it until a week after you turned it in.
*Keeping track of my time in six-minute increments.
The entire experience wasn't an awful one. I worked with some excellent lawyers and some really fun people. I did get to do some interesting, complex legal work. The money I made helped me pay off my student loans pretty quickly. And, my firm did support me in spending about 200 hours on a political asylum case--pro bono--that I was able to win. But, I wouldn't want to trade what I'm doing now for that life again. Nothing can compare to representing your own clients, taking your own cases to trial on a regular basis, and helping truly needy people through the most difficult experiences of their lives.
Rep. "Nonsense"nbrenner Strikes Again
Thanks to Indefensible for the link.
Man Gets Arrested for Rescuing Drowning Man
Update: The police try to explain their actions. Here's a tip that they might want to remember in the future: refusing to speak with authorities does not constitute "interfering" with their duties.
This is a classic. Someone please tell the Texas State University police that it is impolite to immediately handcuff and arrest a man after he has just saved another person from drowning. Apparently, the man "interfered with public duties" like standing on the safe shore and ordering a rescuer to leave the drowning person in the water and get out.
Welcome to another voice in the wilderness!
Mentally Ill's Care Goes From Bad to Worse
Monday, July 11, 2005
1. Jurors have to sit around and wait--a lot. This is annoying and frustrating. Anything judges and lawyers can do to alleviate this problem will go a long way to keeping the jurors happy.
2. The first witness in the case is crucial. In our case, the plaintiff was the first to testify. He testified on direct for a couple hours, and came across as credible. Once he was done with his direct testimony, I am 99% convinced that at least one of the jurors had already made up her mind to find in his favor. Even I had to fight the urge to simply adopt the plaintiff's story as the truth. For at least a couple of the jurors, I think anything they subsequently heard in cross examination or from defense witnesses was viewed with immediate skepticism. It was as though the truth had been established, and the defense now had to try to pound up against and chip away at that.
3. Defense attorneys should almost always make an opening statement. The one thing that prevented me from simply believing the plaintiff's testimony outright was knowing what the defense said their theory of the case was. It's not that I believed the defense attorney was telling the truth and the plaintiff was not. Rather, knowing what the defense version was made me want to wait until I heard cross-examination of the plaintiff and saw more evidence before I decided which version I believed.
4. Juror questions are scary. In this civil case, the jurors were allowed to ask questions. Once the attorneys had finished questioning a witness, we were permitted to submit written questions which the judge and the attorneys reviewed. If they passed muster, the judge asked the witness the questions. As a juror, I found this extremely helpful. As a trial lawyer, the thought of jurors asking questions is frigtening. If the prosecutor doesn't think to ask a question that he should, I don't want the juror to do it for him! And sometimes, you may have some questions you could ask, but you prefer to leave for closing argument. Again, I don't want the jurors asking those questions. The one way I think it can be helpful for the attorneys is to get some idea what the jury may be thinking as the trial is progressing. But it still scares the hell out of me. Are there lawyers out there who practice in a jurisdiction that allows this in criminal trials? I'd love to hear your thoughts on how it works.
5. Jurors make compromises. Our jury instructions were very clear on the issue of making bargains. Jurors were not permitted to go along with other jurors on Question #1 in exchange for getting their way on Question #2, for example. On the surface, none of my fellow jurors did that. But one of them did change his original opinion on the liability question to go with the majority, and then state more than once that he would change it back if the damages were too high. When reminded that we were not permitted to strike those bargains, he said he was not. And he may have honestly believed that he wasn't. I certainly could never prove that he did. But, in my mind, that is what it appeared to be--he agreed to find the defendant liable as long as the damages awarded to the plaintiff weren't too high.
6. Requiring unanimity is a good thing. In this civil case, we were not required to have a unanimous verdict. All that was required was 5-1. That, to me, posed a huge problem. When we took our first vote, we were 4-2. We spoke about the case for a short while, and then one of the two changed his opinion, and we were 5-1. That was it. We spent maybe 10-15 minutes discussing the evidence in the case before we had a verdict on liability. Since five votes was enough to have a verdict, no one was willing to discuss the evidence or listen to an opposing viewpoint anymore. In essence, there was very little deliberation. I think when jurors are required to reach a unanimous verdict, there is a much greater probability that the jurors will actually spend an appropriate amount of time to discuss the evidence and work out the right result. Of course, there is always the possibility of a hung jury, which nobody likes. But I'm not sure that it isn't better to have a few more hung juries than to have such little deliberation before a verdict is reached.
7. Who the presiding juror (foreperson) is doesn't really matter. Whenever big media cases are in deliberations, you always hear the reporters gossiping about who the jury foreperson is--as if that somehow gives them insight into what the verdict will be. I am here to tell you that--at least in my case--it doesn't matter one bit. As you might have guessed from the above discussion, I was the one juror who dissented from the verdict. This, despite the fact that as soon as we entered the jury room for deliberations, my fellow jurors made me the presiding juror. It ended up meaning virtually nothing. I did referee some little tiffs over damages issues. I tried to ensure that everyone was allowed to speak their mind. And I did my best to ensure that we followed all the instructions from the judge. But, in the end, I could not persuade any of my fellow jurors that my position was correct. Neither my position as a lawyer nor as presiding juror mattered when it came to that decision. I don't say this as a complaint. That is exactly how it should be, in my opinion. The presiding juror gets one vote--just like everyone else. And I don't believe a lawyer is any better qualified to reach an appropriate verdict than an average citizen.
In the end, the plaintiff was victorious and was awarded about a year's salary in damages plus $5000 for mental anguish. I dissented from the verdict, but I cannot say that my fellow jurors were wrong. I disagreed with them, for sure. But with five of them agreeing, it's more than probable that they got it right. I found out afterwards that the defense lawyer had actually meant to use a peremptory strike on me, but had been confused by the numbering after one of the panel members was excused early due to language problems. As it turned out, I was the only person who saw the case his way. Go figure.
It truly was an honor to serve, and it was a great learning experience. If I think of anything else, I'll post it. If you have any questions, fire away! I'll answer whatever I can.
Friday, July 08, 2005
Not All Prosecutors are Evil . . . All of the Time
This week, I had a client who was, by all acounts, a long-time drug addict. He had a prior possession conviction, and had been to prison twice before for home burglary. Now, he was charged with breaking into an auto parts store at night by smashing the glass door of the building. He had removed some items, but they were all found sitting out in front of the store. There was also a trail of blood leading away from the store. My client was found about a block away, a bit dazed, trying to stop his bleeding wrist. He admitted to the officer that he had broken into the building, hoping to steal something he could sell to buy drugs.
Burglary of a building is a state jail felony. However, because my client had been to prison for felonies twice before, his punishment level was enhanced to a second degree felony--2-20 years in prison. The prosecutor's initial offer was five years in prison. My client desperately wanted drug treatment, and asked for probation with the condition that he be sent to SAFP, which is a 6-9 month lockdown drug treatment program run out of the state prison system. In talking to my client, I honestly believed that he wanted to get off drugs, and that he knew that only something as intensive as SAFP would work for him. But, I also knew that a prosecutor would be unlikely to offer probation to someone with his criminal record. Still, I spoke with the prosecutor, laid out my client's case and his plea, and asked her to consider it. She read the police report thoroughly, called the complainant, and came back to me with an offer of ten years probation with SAFP. It seemed like a miracle. But, it wasn't. It was just a situation where this prosecutor saw a guy with a long history of drug-related crime, and thought that maybe, this time, there was a chance to get this guy clean, instead of having him continue to commit crimes, and end up in prison for the rest of his life. She gave him a chance. It wasn't a chance he was entitled to or that he deserved, but it was a chance she chose to offer him. She is no wimpy prosecutor. I have seen her try the hell out of her jury trials, and demand a life setence--and get it--from a jury. But in this case, she threw my guy a life line. I hope he takes every advantage of the opportunity she has given him, and that he realizes that this tough, decent, hard-working prosecutor may have saved his life.
Thursday, July 07, 2005
Tale of the Jury . . . Coming Soon
Wednesday, July 06, 2005
The Hits Just Keep on Coming for Houston PD Crime Lab
Thanks to Grits for the links.