Wednesday Lagniappe

Posted on July 23, 2008
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Those of you who stop reading the comments here when they degenerate into a serious discussion of the fine points of Texas constitutional, statutory and case law will have missed this ingenious bit from frequent commenter (and prosecutor) “Tarian.”

“THE WONDERFUL WORLD OF MARK AND PJ”
A One Act Play

Scene I
A convenience store, daytime, the year 2021. PJ is calling 911.

PJ: Help, I’ve just been robbed at gunpoint!
911: I’m sending the police. It could be a while.
PJ: Can you please make sure to send some honest officers? I can’t stand it their constant lying.
911: Excuse me?
PJ: Um, never mind. Just hurry up!

(An hour and a half later)
Sgt: What seems to be the problem?
PJ: A guy just robbed me at gunpoint! I can give you a description. He took everything in the safe!
Sgt: Were there any other witnesses?
PJ: I — I don’t think so.
Sgt: Well, I’m sorry, sir, but we can’t really do anything with just your testimony. Eyewitness testimony is the least reliable form of evidence. Ever since Gov. Bennett signed the Biblical Evidence Act of 2019, we’ve needed at least 2 witnesses for everything.
PJ: Are you kidding? The guy just stuck a gun in my face! Are we going back to stoning? That’s in the Bible, too!
Sgt: Just the facts, sir. Do you have any security cameras?
PJ: No, I was using the system to upload something to YouTube.
Sgt: What about DNA, do you think the guy left any?
PJ: I doubt it. How would I know?
Sgt: Sir, there’s nothing I can —
Robert Guest: Wait a minute, I’m a witness!
Sgt: Huh?
Guest: I was hiding behind the corn-nuts. I saw the whole thing!
Sgt: Got lucky on that one. SCTexas! Get over here!
Ofc. SCTexas: Sarge?
Sgt: Get descriptions from both these guys and put it out on the radio. Then do a sweep of the area.

(Ten minutes later)
Ofc. SCTexas: (bringing in Defendant) Sarge, I got him! Fits the description perfectly!
PJ: That’s him! I recognize him! No doubt in my mind.
Sgt: (to RG) What about you?
Guest: Yeah, I think that’s him.
Grits-For-Breakfast: (bursting in, out of breath) I saw the whole thing. Worst case of police brutality and harrassment I’ve ever seen! This guy just grabbed him off the street for no reason!
Ofc. Texas: He fit the description! They just IDed him!
Grits: You can’t intimidate me with your Gestapo tactics. You don’t attend UT without graduating and not learn something about courage.
Ofc. Texas: You’re nuts! Get out of here!
Sgt: Not so fast, Texas. We have to put his name in the offense report. Or else we could get sued.
Ofc. Texas: But he didn’t see anything! He didn’t witness the robbery or anything to do with it. He was digging in a dumpster, for crying out loud!
Grits: That dumpster provided the perfect cover. And besides, there was a perfectly good cheeseburger in there, barely touched–
Sgt: Doesn’t matter. Ever since Gov. Bennett signed the Police Liability Act of 2019, our asses are in a sling. Take his name down.
(a few minutes later)
Sgt: (to Defendant) Okay, pal, we’ve got your ID info. You’re free to go.
PJ: What? Aren’t you going to arrest him? He just robbed me?
Sgt: I don’t know where you grew up, son, but around here we have something called the presumption of innocence.
PJ: That’s for the courtroom! He just robbed me! He had a gun! He’s a dangerous criminal!
Sgt: It’s not our place to decide that. That’s what juries are for.
PJ: Aren’t you going to at least search him for evidence? He might still be armed.
Ofc. Texas: Already checked. No gun. But he did have THIS (holding up bankers bag)
PJ: That’s my money!
Sgt: (to Texas) Make a note of that. (Handing bag to Defendant) You’re free to go.
PJ: You’re letting him have it?
Sgt: We don’t have an authorized forfeiture order for it. Ever heard of the 4th Amendment? That’s considered an unreasonable search and seizure now. And besides, how do we know it’s yours?
PJ: Because the bag says “PJ’s PrestoMart” on the side.
Ofc. Texas: He’s got a point, Sarge.
Sgt: Alright, then. (Opens bag, empties $17500 in bills out and hands money to Defendant, then hands bag to PJ) You’re free to go.
PJ: But that’s my money!
Sgt: A jury will have to decide that, pal. Everything in its place.

Scene II
A grand jury room

ADA: And, so, ladies and gentlemen, I would respectfully submit that it is possible there could be probable cause to indict Mr. Defendant for the offense of Aggravated Robbery.
GJ Foreman: So he did it?
ADA: I can’t really comment on that.
GJ Foreman: But you’re saying that the evidence supports a conviction, right?
ADA: It’s not my job to decide that, sir.
GJ Foreman: But aren’t you supposed to see that justice is done? What does that mean in this case…a truebill?
ADA: In the old days we used to ask for truebills, but I can’t really do that now. Ever since Gov. Bennett modified the C.C.P. 2.01 and changed the annotations to the Constitution. We used to be able to ensure that cases were “pushed to a successful conclusion,” but now we just let juries decide.
GJ Foreman: You guys are the biggest bunch of wussies I’ve ever seen. Absolutely pathetic.
ADA: Thank you, sir.

Scene III
A courtroom

PJ: Are you the prosecutor handling my case?
ADA: Are you a defendant?
PJ: No, I’m a victim. I got robbed and the guy is being tried today. You sent me a subpoena.
ADA: Sorry, just thrown off by your terminology. It’s not really “your” case. It’s his, since his liberty is at stake and his rights are the focus.
PJ: Fine. So, we’ve never talked. Did you want to ask me anything before putting me on the stand?
ADA: No, not really. The evidence is the evidence. I’m just going to present it and let the jury sort it out.
PJ: But don’t you want to prepare me?
ADA: That could be considered “woodshedding” and is specifically prohibited by C.C.P. 36.051, “State Shall Not Woodshed.” Don’t you remember? Gov. Bennett pushed that one through.
PJ: Which Gov. Bennett?
ADA: Jennifer. She beat Mark to it.
PJ: But what about my rights as a crime victim? Don’t I get any say in what happens here?
ADA: (laughs grimly) They repealed Sec. 30 of the Texas Bill of Rights years ago. Nobody has any rights anymore except defendants.
PJ: So how is the case looking?
ADA: Not so great. He’s got a hotshot defense attorney — ex-DA, I think. I had to turn over data on other aggravated robberies in Houston to him. There were 116 convenience store robberies in the last 2 years involving suspects with the same general descriptors as this defendant and the same m.o.
PJ: M.O.?
ADA: Yeah, they all pointed a gun at the clerk and demanded money. And they were all males. Pretty eerie, huh? Some were committed while this defendant was serving time for another aggravated robbery he committed out of state. So they’re going to argue mistaken identity.
PJ: But there’s no doubt in my mind he did it. They’re not suggesting some other dude committed all of these robberies, are they? That’s ridiculous.
ADA: Sure they are. And I had to turn the data over. 116 other robberies is pretty powerful stuff.
PJ: 116 robberies is living in Houston! And didn’t they convict any of these other robbers?
ADA: Actually, no. That’s pretty rare nowadays.
PJ: But that’s totally irrelevant to my case!
ADA: –His case.
PJ: –Whatever, the point is, you should object!
That’s not relevant and not exculpatory!
ADA: Sorry, but I can’t take that chance. The Prosecutor Accoutability Act of 2018 says I can go to prison for hiding or even objecting to exculpatory evidence — that’s in addition to civil liability.
PJ: Then why are you prosecuting? Why would anyone want to do what you do?
ADA: Beats me. Especially for $60,000 a year. I’ve got an application in to cosmetic school.
PJ: My God, is that the jury panel? Some of those folks look pretty rough.
ADA: Yeah. Too bad I don’t get any strikes anymore.
PJ: Do you want me to draw a scene diagram, something to show the jury?
ADA: No, that could be construed as advocating for one side or the other. That would be a gross violation of my ethical duties.

(A few hours later. Closing arguments have begun and the defense is up.)

Def Atty Tarian: Members of the jury, this case is a complete farce. You’ve heard that 116 other robberies were committed in Houston in the last 2 years with the same m.o. by a male fitting the description of my client. Using sophisticated statistical analysis, that means there is less than a 1% chance that my client is guilty! In essence, I have proven him innocent beyond a reasonable doubt! Clearly, we have a serial robber at work. But that person is not my client. What we have here is a case of mistaken identity. And you are being asked to send a man to prison based on the feeble testimony of that man! (indicating)
PJ: But I saw him!
Judge Ollie: Order! Bailiff, if that man makes another outburst, I want him removed.
Dep. AHCL: Yes, sir.
Def Atty Tarian: As you know from my experts, eyewitness testimony is inherently unreliable. There are thousands, maybe millions of innocent people in prison as a result of it. And millions more convicted every day. But not today. (standing behind Defendant) Not this man. The travesty ends today. You’re going to end it. With your verdict of Not Guilty. (sits down)
ADA: Members of the jury, you have seen all the evidence. I can’t really tell you what you should do based on that evidence, but it definitely supports the fact that an aggravated robbery took place. I ask that you take everything you’ve heard into consideration and render a verdict that is just. Unfortunately, I’m not really allowed to define what “just” would be in this case. Thank you.
(sits down)
PJ: What about a plea for law enforcement? What about arguing for your side?
ADA: My only side is the side of justice — whatever that is. And we’re not allowed to plea for law enforcement anymore. It’s not my place.

(2 1/2 minutes later)
Judge Ollie: Has the jury reached a verdict?
Foreman: We have, Your Honor.
Judge Ollie: Please hand it to the bailiff. And, bailiff, please pass out my cards to the jury.
Dep. AHCL: Here ya go. Man I need a beer.
Judge Ollie: The verdict reads as follows, “We the jury, find the Defendant Not Guilty. Signed, “WTF??? Foreman.”
PJ: This is an outrage!
Def Atty Tarian: If you think this is bad, wait until you see the lawsuit my client is going to file against you.
PJ: But I’m already on the verge of bankruptcy!
Def Atty Tarian: Maybe Ron in Houston can help. Oh, no, I guess he does mostly family law stuff. Oh, well. Sucks to be you!

THE END

Ego

Posted on July 23, 2008
Filed Under Uncategorized | 1 Comment

A Harris County prosecutor today (perennially gruff but a marshmallow on the inside) took umbrage at my public statements that until very recently I hadn’t seen a Harris County prosecutor conduct a voir dire that was worth a damn. I invited him to tell me when he was picking a jury, and I’d come watch (then, of course, I’d blog it; I thought that went without saying).

He told me that he prayed to God that he would get a chance to try a case against me.

I’m flattered to be the object of his prayers, especially since I presume him to have much more important things (like a woman who likes perennially gruff marshmallows; or a job come January) that require his devout attention. And I welcome the attention.

In an even match (with facts that could go easily go either way) on a fair field (with an unbiased judge), the advocate is going to win who makes the fewest mistakes and best exploits his adversary’s mistakes.

But the facts what they are, and usually they’re not on the defense’s side. And the Harris County bench is the Harris County bench . . . well, anyway, there aren’t many even matches. The effect of this imbalance is that the State has the initiative, so that it’s more important for the State to make fewer mistakes, and it’s more important for the defense to recognize and exploit the State’s mistakes.

Any time a lawyer goes into court angry, he’s handicapping himself. People make mistakes when they are angry. Or, as Paladin said, “Never draw in anger. It slows the hand.”

Trial lawyers have notoriously big egos. This is true of both sides of the bar; I’m not picking on The Gruff Marshmallow (I don’t know him that well) or even on prosecutors. But ego gets in the way of effective advocacy.

A lawyer cannot serve two masters (client and ego) at the same time. Any time a lawyer goes into court trying to prove to the world that he’s better than the other lawyer, he’s handicapping himself. Any time a lawyer goes into court trying to prove that he’s worthy of his daddy’s love, he’s handicapping himself. Any time a lawyer goes into court trying to prove anything but his case, he’s making it more difficult to prove his case.

Some I know (again, on both sides) define themselves by their track records in court. This is pathetic. There is more to life than trying lawsuits. Nobody (with the possible exception of other lawyers who similarly define themselves) thinks that the defense lawyer’s last not guilty or the prosecutor’s last life sentence makes the lawyer a better human being.

The defense lawyer’s ego might help him get more clients (some people seem to prefer a defense lawyer with a one-track mind), but it won’t help him win more of their cases.

The prosecutor’s ego might drive him to try a case against me; if it’s a whale, he might even win. But the ego will not help him win. And it sure won’t help him find that gruff-marshmallow-lovin’ woman.

The Trick Question: Prosecutors’ Questions Answered, and Answers Questioned

Posted on July 22, 2008
Filed Under jury selection, trick question | 19 Comments

The discussion of prosecutors’ pet jury selection question, the “One-Witness-Rule” question, continues. Prosecutor SC asks:

“People who would require more than one witness to prove a case beyond a reasonable doubt (for reasons Biblical or pragmatic) are qualified to serve as jurors.”

Why? Why isn’t this scenario the same as having a juror who would require DNA evidence to convict someone? Is that person qualified to be a juror as well?

Yes and yes. The juror who would require DNA evidence to convict someone, like the juror who would require more than one witness’s testimony, is qualified to serve as a juror. It’s up to you to strike these upstanding representatives of the community from the jury. Suck it up.

Then SC, moved by the spirit, asks:

“It’s unfair to the potential juror who doesn’t have the rhetorical skills even of a number-three misdemeanor court prosecutor. The honest man, Joe Citizen, the public that prosecutors are supposed to serve, does not have the savvy to parry the question.”

I don’t like this notion that the average citizen is too stupid not to fall for simple question. That’s a tad too elitist of a notion for a defense attorney, no?

No. I don’t think defense lawyers have to pretend that everyone is equally equipped to deal with the world, but I’m not calling anyone stupid. Our jurors, you may have noticed, haven’t been to law school; they’re not involved in trades like ours that require the exercise of rhetorical skills. In an arena in which they’ve already been told that only yes-or-no answers are called for, they’re asked a question that requires the acceptance of a false premise.

Tarian jumps in:

Mark, you’re wrong about the law on this.

The law does not require medical or scientific evidence to support a conviction. Rodriguez v. State, 819 S.W.2d 871 (Tex.Crim.App. 1991)

Prospective jurors are challengeable for cause if they require a particular type of evidence the law does not require to convict. Garza v. State, 18 S.W.3d 813 (Tex.App. - Fort Worth 2000, pet. ref’d.); Robinson v. State, 985 S.W.2d 584 (Tex.App. - Texarkana 1998 pet. ref’d.)

The one-witness questions go hand in hand with this. Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App. 1995); Lee v. State 206 S.W.3d 620 (Tex.Crim.App. 2006).

The question has been clarified, limited, and accepted in its current, most common form by our courts of appeals. There is nothing tricky or unfair about it.

Ah, the law. While I’m glad to see my esteemed colleague, the author Tarian, making an effort at reading the law, I would humbly suggest that his understanding of the subject might benefit from reading the cases he has cited, rather than just their headnotes.

The law doesn’t require any particular sort of evidence to support a conviction, but a juror may. This is the difference between legal sufficiency and factual sufficiency.

Garza says what Tarian says it says — “a potential juror who could not believe a witness simply for the fact of being a child would properly be excused for cause” — but only in dicta (the only use of the word “cause” in the body, rather than the headnotes, of the case), and that based on two cases that don’t even say what Garza says they say.

Robinson, on the other hand, is a Texarkana case. Legal scholars still argue over whether Texarkana is Texas or Arkansas.

Both Robinson and Garza came before Standefer and the Texas “commitment question” jurisprudence.

A juror can be committed to convicting if he believes the evidence beyond a reasonable doubt. He can’t be committed to believing any sort of evidence beyond a reasonable doubt.

Anywhere but in Texarkana, a Texas juror is free to define reasonable doubt to require more than one witness, or to require medical testimony or DNA. That is, in fact, why the “one-witness-rule” question is phrased as it is. Read Lee, which Tarian cited:

If these jurors were challenged for cause simply because they needed more than one witness to convict, then they were invalidly challenged for cause. If they were challenged for cause because they could not convict based upon one witness whom they believed beyond a reasonable doubt, and whose testimony proved every element of the indictment beyond a reasonable doubt, then they were validly challenged for cause.

Also take a look at Castillo, which Tarian cited (apparently without reading, or at least without understanding):

Unless reasonable doubt is a fixed point-unless, in other words, the law requires a jury to convict whenever presented with legally sufficient evidence-a venireman who will not be convinced beyond a reasonable doubt on the testimony of a single eyewitness is nevertheless a venireman who can follow the law. If the State does not want that venireman on the jury, it is obliged to use one of its statutorily allotted peremptory challenges to remove him.

That’s the heart of the matter: the ability of each juror to decide what “beyond a reasonable doubt” means to her.

The “one-witness-rule” jury selection question looks good, as I wrote at first, on paper; Texas’s courts have approved it in a very specific form. That the question in this form is used by prosecutors to trick potential jurors into disqualifying themselves should be beyond question in light of Harris County prosecutors’ misunderstanding of the requirements to serve as a juror and their avowed desire to remove from the jury anyone who doesn’t share their wide-eyed credulity.

More on the “One-Witness Rule” Trick Question in Jury Selection

Posted on July 21, 2008
Filed Under Uncategorized | 4 Comments

Prosecutors respond to my post on the single-witness-rule voir dire question.

Seeking Justice says that it “sounds like an effective question to discern which jurors have opinions about the burden of proof that are contrary to law”:

There is nothing about that burden, considered either theoretically or historically and legally, that contains even an implicit caveat, “only upon testimony of more than one witness.

To the contrary, there are six thousand years of precedent for a single witness not being enough evidence to prove a criminal case. (See, for example, Deuteronomy 19:15-20.)

There is, however, nothing about the government’s burden of proof, considered either theoretically or historically and legally, that requires a jury to accept any sort of proof as sufficient to prove the government’s case. People who would require more than one witness to prove a case beyond a reasonable doubt (for reasons Biblical or pragmatic) are qualified to serve as jurors.

Prosecutor AHCL (do you think that bunch of pro-government cheerleading yahoos will keep commenting there if she changes sides?) justifies the question:

Prosecutors do have to identify those jurors who won’t convict without the scientific evidence or a corroborating witness, because that’s often times all we’ve got. That makes the question important, and there’s nothing unfair about asking it.

Non sequitur! It’s important for prosecutors to identify jurors who will not find proof beyond a reasonable doubt based on the testimony of a single witness, but that identification does not lead to proof beyond a reasonable doubt.

People who would require scientific evidence before being convinced beyond a reasonable doubt are not disqualified to serve as jurors. People who would require a confession, or DNA, or videotape are qualified to serve as jurors. The insistence that the government provide a certain type or amount of proof does not lead to a valid challenge for cause.

AHCL acts as though the “one-witness-rule” question is the only way to explore jurors’ feelings about uncorroborated testimony. She only thinks that because she’s never tried to do it any other way.

“How do you feel about criminal cases in which a single witness testifies?” is probably a perfectly acceptable question, though it violates that secret part of the prosecutor’s oath that forbids asking an open-ended question of a potential juror when a closed-ended question is available. Such a question would provide prosecutors plenty of fodder for focusing their peremptory challenges (and attempting to develop challenges for cause on other grounds), but it wouldn’t support a challenge for cause.

The prosecutors don’t like that I’ve called the question unfair.

AHCL’s post illustrates why the question is a sneaky one. It is a deliberate intent to develop a challenge for cause against someone who would not be challengeable if they were able to accept the premise of the question.

It’s unfair to the potential juror who doesn’t have the rhetorical skills even of a number-three misdemeanor court prosecutor. The honest man, Joe Citizen, the public that prosecutors are supposed to serve, does not have the savvy to parry the question. Even though he believes (because the Bible is the inerrant word of God, or because a witness can too often be both absolutely credible and absolutely wrong) that a single witness is insufficient to provide proof beyond a reasonable doubt, he is qualified to serve as a juror. Yet the prosecutor is able to challenge him for cause, because of a trick question. That’s unfair in my book.

While it’s almost invariably a bad idea both strategically and tactically, there’s nothing inherently wrong with a defense lawyer misleading jurors. Our job is to defend the client zealously within the bounds of the law. But the prosecutor’s mission is different, and jurors represent the prosecutor’s boss; for the prosecutor to seek to disqualify them with trick questions is wrong.

The Dubois, Wyoming Blawgers’ Convention

Posted on July 19, 2008
Filed Under Uncategorized | 1 Comment

When I learned that Hostis Civitas and MacLitigator were both spending July at Gerry Spence’s Trial Lawyers College in Dubois, Wyoming (joining Underdog and In The Moment in the world of TLC-lawyer-written blawgs), I had hopes that one of them would find a way to blog from Thunderhead Ranch, becoming the first lawyer to do so.

I still hope to hear from Remy or Peter while they’re at the Ranch, but it’s too late for either of them to be first — Gerry Spence himself has started a blog.

Many people buy Gerry’s books; many hang on his every pronouncement. His blog will be big in the way that his books are big. There’s no reason to think that he’ll waste his time writing about the water-cooler issues of the day, either — he’s jumped right in, asking, “What if freedom is a myth?” and then “What do I mean by our slavery?” and then suggesting that “The way out” is “to abandon easy words. . . [to] search[] the width and breadth of our slavery, [to] struggle against the psychic chains and wince at the invisible lash at our backs.”

The blawgosphere is not a book. Different medium, different rules. I confess that I’ve never been able to plow through one of Gerry’s books, and I’m hopeful that his ideas will translate better to this new medium.

The One-Witness Rule

Posted on July 17, 2008
Filed Under Uncategorized | 10 Comments

One question that prosecutors in Harris County are overly fond of asking jurors is this:

If we only present one witness, but based on that witness’s testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?

The prosecutors then gleefully challenge, for cause, all of the jurors who say “no.”

It is (the courts have held) a legitimate commitment question — because in order to serve on the jury, the jurors must be able to commit to convicting if they find the accused guilty beyond a reasonable doubt — but it’s only a legitimate commitment question on paper.

The problem with the question in the courtroom is that it’s hard for most people to assume something that they don’t think is possible.

The question requires a juror to assume that the State can prove its case to her beyond a reasonable doubt with a single witness. Many jurors can’t see themselves believing a single witness beyond a reasonable doubt (there’s Biblical precedent). Asking those jurors the “one-witness rule” question (there is no “one-witness rule) is unfair because it’s asking them to believe something that they consider impossible.

Most people aren’t trained to question authority by rejecting the premises of a prosecutor’s question. If you ask a person a question that contains an invalid premise, then insist on a yes-or-no answer, you’ll get a “no.” It’s a sneaky question, it’s unfair to the jurors, and it’s inelegant.

Such gamesmanship is beneath those who are obligated to see that justice is done.

Untitled 8

Posted on July 16, 2008
Filed Under Uncategorized | 6 Comments

John Wesley Hall brings to our attention a new article: Fred Zacharias, Fitting Lying to the Court into the Central Moral Tradition of Lawyering, 58 Case West. L. Rev. ___ (2008).

Professor Zacharias focuses on what he calls Professor Monroe H. Freedman’s “most interesting illustration” of circumstances in which zealous representation might “require a lawyer to make a false statement to a court or a third person, or to engage in other conduct involving dishonesty, fraud, deceit, or misrepresentation.”

The illustration to which Professor Zacharias refers:

Suppose a judge routinely calls criminal defense lawyers to the bench prior to trial and says “Let’s move this along. Did he do it or didn’t he?”

Now, this is the sort of thing a civil judge like Carolyn Marks Johnson might do. Otherwise it is (as Professor Zacharias recognizes) an unlikely situation.

(Letting civil judges hear criminal cases, incidentally, falls, along with letting civil lawyers try criminal cases, into the category of “knives to gunfights”.)

But while implausibility certainly contributes to the banality of the illustration, it’s not the deciding factor for me. In my view, Professor Freedman’s illustration itself is uninteresting because the answer is trivial, and doesn’t contribute to a discussion of making false statements to a court. (The article in which Professor Freedman uses the illustration, In Praise of Overzealous Representation-Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct, is nontrivial. When is it ethical to lie? The article will give you some things to think about.)

The one thing that the lawyer cannot say in the hypothetical situation is, “Yes, your honor, he did.”

A proper answer, taking the judge’s question literally, is “Judge, you know I can’t answer that.” Professor Zacharias (who ultimately adopts the position that this is the correct response) teases us by noting that the judge might “assume that the client is guilty and hold it against the client.”

Really? A judge might assume that my client is guilty? What, in the name of all that’s holy, is the world coming to? Run in circles, scream and shout!

Aw c’mon now. Anyone who’s made his living in a criminal courtroom knows that this particular judge assumes that our client is guilty. Answering this question is like talking to the cops: they’re not trying to help you out, so nothing you say in your favor is going to be believed.

Professor Freedman’s response to his own illustration is that the judge has acted improperly, and that therefore the lawyer is justified in answering, ‘I have no doubt that my client is not guilty,’ even if the opposite is true.”

Let the law profs talk about niceties of the theory legal ethics; what’s most important for those of us who actually practice criminal law in the courtroom to remember if we’re ever faced with such a judge is that he doesn’t know diddly-squat about the criminal law.

Before trial, “my client is not guilty” is the truth. “Guilt” is a legal term, a term of art, and before his guilt has been proven beyond a reasonable doubt he is, as a matter of law, not guilty. “He is innocent” is equally true. . . until he’s proven guilty. Professor Zacharias calls Freedman’s response to the question a “lie to the court,” demonstrating an understanding of the bedrock of the criminal justice system that is suspect at best.

Of course, these true answers aren’t directly responsive to the judge’s question, but remember: the nicety of the distinction between legal guilty and factual guilt is a part of the criminal law of which this hypothetical judge (or, apparently, Professor Zacharias) is not cognizant. Professor Freedman describes the answer not as a lie, but as “intended to mislead the judge into believing something that the lawyer knows to be false”:

[T]he lawyer’s response is not literally false, because it is a form of morally justifiable equivocation. That is, although the lawyer’s statement is intentionally misleading, it is technically accurate, because the client is presumed to be innocent, and is not legally guilty until the jury has found him to be guilty after a trial. Moreover, the judge should know that the lawyer’s role – including the lawyer’s constitutional and ethical responsibilities – justify the lawyer’s wide mental reservation: “My client is innocent, because under the Constitution and laws of the United States, my client is innocent until proven guilty beyond a reasonable doubt.”

He’s closer to verity, but (I think) still wrong. If the judge asks an improper question and I respond with a literally true non-answer, it’s not my business what incorrect conclusions he reaches, based on his unconscionable ignorance of the law, from that answer. We agree that it’s okay not to answer the question; “my client is innocent” is not answering the question without signaling to the vicious boob in the black dress that you’re not answering the question.

Zacharias complains that “when the question is later asked about an innocent client, the lawyer’s word will mean much less. In effect, the lawyer has thrown one set of clients under the bus for another.” We who toil in the trenches of the criminal justice system recognize that our duty is to this client. If we resist doing what’s right for this client for the sake of later clients, we’re throwing this client under the bus.

Professor Freedman considers much more than the “regulators’” (Professor Zacharias’s word) narrow view of legal ethics (in other words, much more than just the law) in exploring the ethics of deceit; he “consider[s] the larger legal context of the lawyer’s role, including our clients’ constitutional rights;. . . understand[s] inconsistent ethical rules in the light of reason; and appl[ies] insights of moral philosophy” to reach his conclusion.

That is what practicing criminal lawyers do every day: consider legal context, reason, and insights of moral philosophy in trying to make ethical decisions. You can’t learn ethics from a law book.

Not to get all Greenfieldesque, consulting a law prof on matters of legal ethics is often like consulting a monk on matters of sex: he may be able to expound at length upon the theory, but there are probably better people to go to for practical advice.

Another Odd Victory

Posted on July 16, 2008
Filed Under Uncategorized | 2 Comments

Today a Harris County jury gave my 26-year-old client six years in prison for stealing $780,000 worth of material from his employer, 3M. The prosecutor’s last plea offer was 15 years. Six years is not the longest prison sentence I’ve ever considered a win, but it’s not the shortest.

We’ve filed a notice of appeal — I am certain that the evidence that the complainant owned the property was insufficient as a matter of law; this ought to get us a reversal-and-rendition. If he isn’t able to make bond on appeal, or if I’m wrong about the reversal, I expect that he’ll probably serve six months to a year in prison before being paroled.

One Double Strike

Posted on July 15, 2008
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I just compared notes with the prosecutor on my trial case. In picking a jury of 12 out of a panel of 65, exercising 10 peremptory challenges each, we made one double strike.

Trial Psychosis

Posted on July 14, 2008
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I can win this trial. I can! I can!

keep looking »