Why Judges Tilt To The Right - A Follow Up

Judges tilt to the Right.  You heard it hear first.  Well, no, you didn't, because the New York Times published an article on Super Bowl Sunday that investigated a Harvard study  that determined that judges lean to the right.  The article attempted to go one step further, and figure out why judges lean to the right.  The article failed to reach that conclusion, other than stating the higher up the judicial ladder a judge gets, the more right leaning he or she tends to be because the judge has less discretion. 

The study determined that lawyers are more liberal, more left leaning than the rest of society, and that judges are more conservative than lawyers.  This raises the question: should judges proportionally represent the ideology of lawyers, or some other group?  Back to the statistics:  the study evaluated the liberalness of different people and types of lawyers.  It found, to my great surprise, that prosecutors, Big Law Lawyers, and law firm partners are more conservative than liberal, and even more liberal than judges.   They are all the left of Jeb Bush, who is my bet to be the next President, regrettably.   Also unsurprisingly, Government Lawyers and Public Defenders are more liberal than just about most in politics and the legal profession.  I would like to no that also unsurpisingly, but someone confusingly, and certainly agonizingly, lawyers that graduated from schools outside the Top 100 are the most conservative group of lawyers.  That is a real damn shame, considering they (we) make up the vast number of lawyers that have the greatest connection to everyday people, because we are every day people.  Damn Fox News.

Professor Eric Posner is quoted in this article as saying that Republicans should be congratulated for being able to bring much-needed ideological balance to the judiciary.  This guy is highly regarded as one of the top legal minds, like his father, who is also quoted.  Now, I know I am in Texas.  I know I am Harris County.  I know I am in Houston.  Trust me, the Republicans don't need any congratulations. They have done a mighty fine job at controlling the ideology and course of the judicial system, and the judiciary is way too conservative from sea to shining sea!

Reagan started the War on Drugs in the 80's.   Since then, prison populations have boomed.  USA incarcerated more people than any other country in the world.  We have only 5% of the world's population, but 25% of the world's prisoners!  This is a direct result of the conservative War on Drugs, and it comes at your expense. Another "recent" conservative phenomenon is tort reform, which is the result of Carl Rove and his cronies.  All tort reform has done is harmed the average man, the blue collared hard worker.  Both policies were accepted by the judiciary, and what both do is keep the rich rich and the poor poor.   This begs the question: Is being tough on crime even a conservative value?  Is not allowing the a person to sue a corporation a conservative value?  Makes you think twice, doesn't it?

Is a republican judiciary really good for you?  Is a republican judiciary good for society? Think of what has been good for members of our community and communities across the country and they are undeniably liberal and undeniably successful:  Drug Court, Veterans Court, Mental Health Court and Prostitution Court.  These are proven, effective, and liberal.  Most importantly, it is up to the judiciary, by and large, to create and support these courts. 

I intended to write more about the article, namely how lawyers contribute more to political campaigns than laymen, and how future judges contribute more than lawyers who do not become judges.  Judges are supposed to be neutral, but it is hard to do that when you are accountable to voters every few years, and the only people voting are grassroots hardliners. 

Finally, to tie this in to trial lawyering:  If judges are are still, on the whole, more liberal than society, should we go to judges more often for punishment?  I think not.  It has to remain a case by case judge by judge decision.  That being said,  wouldn't that make for a grerat capstone project for a graduate student at Rice University or University of Houston, to do a statistical analysis to determine whether judges or juries give better sentences. 

Take that **** to Trial! Crash the System!

Crash the System

End the Plea Mill
A Response of Michelle Alexander's Opinion Piece in the New York Times

     What happens when you throw a wrench in into the gears?  The machine stops working!   The criminal justice system we have is a machine.  The police over police impoverished and minority areas.  Prosecutors charge the suspects under laws that criminalize addictions.  Then the judges set unreasonable bonds.  Finally, most poor defendants are given court appointed lawyers, and about 90% of the time, defendants plead.

    When I was at Gideon's Promise Summer Institute we heard from a man that is revolutionizing the criminal justice system in North Carolina that suggested taking just 5% more of our cases to trial would crash the system.  Sean Maher, the former Bronx Public Defender ingrained a saying our minds "Take That Shit To Trial.  Take That Shit To Trial."  Now we have Michelle Alexander, one of the foremost experts on the civil rights problem of mass incarceration joining the crowd.  The time is now.  The time is now to put a wrench into the gears of the criminal justice system.

     Before we can do that, there needs to be a few major changes.  First, judges need to set reasonable bond.  Here in Harris County, there is a standard bond schedule, and we as lawyers need to make sure it is followed.  I get sick when I speak to a potential client who has a $30,000 bond for his first offense, when the schedule says his bond must be set at $5,000.  Second, there needs to be a statistical analysis of every lawyer who takes court appointments. What does their record look like? Is Lawyer A feeding the plea mill as if the mill needed a plea to stay alive?  What percentage of Lawyer A's clients are pleading on their first setting?  The plea mill lawyers needed to be weeded out. Once that happens, defendants will start to gain confidence and respect for their court appointed lawyers.   Third, prosecutor's need to cut out the "first offer, one day only" crap, as if they are furniture salesmen.   First, it puts me in an ethical dilemma as as a defense lawyer, because I have an obligation to conduct an independent investigation, and I have no ability to do that after only briefly looking at an offense report shown to me moment before the offer.  Second, a decision to plea, even a decision to plea time serviced and a $400.00 fine on a misdemeanor possession of marijuana charge can have life-lasting effects. 

     My motto is "Client Centered | Trial Ready."  I want my clients to know that if I take their case, I will be ready to take it to trial.  I expect my clients to take their cases to trial.  I am bitterly disappointed when they take a plea offer.  We should all be client centered. As lawyers, it is our duty to inform clients, appointed and retained, of what the process looks like and the consequences of every potential play.  I understand that most defendants want to plea guilty, do their days-months-years, and move on with their lives.  Its time for this generation of lawyers; its time for this generation of (non) citizens  accused to challenge the system. We can break the system. We will break the system.  Before long, the police, courts, prosecutors and legislatures will reevaluate and change their practices.  We will end Mass Incarceration. 

 

Not Guilty - Solicitation of a Minor to Commit Sexual Assault - Montgomery County, Texas

First Trial = First Not Guilty Verdict!

Now that the dust has settled, I can reflect on my first trial and first not guilty verdict.

I was called up just days before trial to sit second on a Felony Solicitation of a Child to Commit Sexual Assault trial in Montgomery County.  Only around 1% of cases in Montgomery County get a not guilty verdict.

The Government had a good story going for it: Beautiful, intelligent girl asked by deaf Mexican in creepy truck for a blowjob in exchange for money, then creeper chases her down dark street after she says no.

The problem with that story is that it was not supported by the evidence.  Sure, my client offered the girl a ride, not knowing she was a girl or having any idea of her age.  Sure, his truck came to a stop on a dark dirt road in near the woods.  Sure, the girl had reason to be spooked when she saw his truck roll to stop.

BUT HE WAS NOT A PREDATOR AND I ADMITTED THE BAD FACTS FROM THE GET-GO!

You have to admit the bad facts.  You never know, your bad fact may be supported by your theory of innocence.  For example, our client said his truck ran out of gas and the battery died.  Well, we admit the bad fact and what do we learn in trial that supports out theory of the facts: (1) A 911 caller testifies that my client comminicated that his batter died and he needed a charge; and (2) Pictures ther sheriff took of the bed of my client's truck showed, you guessed it, a tow rope and jumper cables.

BOOM -- a fact beyond change turned into a fact that supports the theory of innocence.

A few words of advice from this attorney who is now in his terrible twos:

1. Get the venirepersons to educate each other during voir dire.  
2. Because solicitation of a minor requires the government to prove the specific intent to solicit and the specific intent to engage in the solicited conduct, ask the jury what type of evidence the would expect to see.  NOTE: a sharp prosecutor will object as an improper commitment question, but it is not so be prepared.
1. You are looking for jurors that want: Money, Condoms, Clothing on, Nudity, Exposed Penis, Fingerprints, Corroborating Witnesses, Eye Witnesses.  You want objective pieces of evidence that support the specific intent.
3. Ask questions that support your theory.
4. Listen for answers that might alter your theme in closing and support your theory of innocence.
5. MOST IMPORTANTLY: in a conservative jurisdiction you MUST spend time harping on how great of a nation, state and even jurisdiction we live in.  It is cheesy but it is the truth:
1. this is not China, North Korea or Iran.
2. We are presumed innocent/ cloak of innocence.
3. We expect the best from our officers. They must exclude suspects/charges before charging/Best technology is a must.
4. I thing this is the most important part of every closing, especially in a sex case, because the government is preying on each juror's fear that the complainant could be their daughter, niece, granddaughter, neighbor, cousin.  When you passionately argue the law, you are subconsciously reminding them that the person sitting next to you at counsel table could be their son, nephew, grandson, or self.