Week Recap: 30 Days on a State Jail Felony, A Dismissal, A Motion for New Trial, Two Special Prosecutors

I had a pretty successful week on the job.  First, I had a client charged with possession of a controlled substance.  It was a case that was never going to be dismissed.  Not only was there a good stop, but my client told the magistrate at his bond hearing, on video, that it was all his drugs and not his girlfriends.  The first offer was 120 days or two years deferred, 12.44(a).  12.44(a) means that a defendant pleas to a felony but does it in county jail on county time, meaning it the defendant usually gets 2 for 1 time, but still gets a felony convictions.  Over the course of three settings, I was able to negotiate the deal down to 30 days, credit for time served, and his girlfriend's case was dismissed.  How did I get such a good deal?  Well, the prosecutor was reasonable, and I told a story, a true story, about my client's girlfriend being pregnant, and she can't support herself if he is locked up, and that he would most likely fail on a deferred adjudication.

Then, on Tuesday, I had a conference call with some big shot attorneys in London, England regarding an international soccer matter.

Wednesday, I wrapped up a motion for new trial, then submitted it on Thursday.  Also on Thursday, a I got a possession of marijuana case dismissed. My client was in a car with three others when they got pulled over for driving the wrong way on a one way street.   The driver and two other passengers admitted that they had weed in their possession. My client played it smart, like I hope you will if you ever get pulled over, and exercise your right to remain silent.  The police found a smoked blunt and grinder under his seat.  The ADA would have had a very difficult time tying the weed to my client, in other words, it was an "affirmative links" case.  In a drug or weapon case, the ADA has to link the defendant to the contraband, and there is a list of about 20 facts and circumstances that affirmatively link a suspect to the contraband.  Case dismissed, and my client gets to continue his college education. 

On Friday, I had a pretrial conference on a another marijuana case.  The ADA was leaning towards dismissing, then we went before the judge and and he decided to call his cops.  Of course, his cops changed their story, and the ADA thinks he has a winnable case now.  Time to prepare to TTSTT and hopefully win a motion to suppress or get a not guilty verdict.  

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Houston, Texas Wrongful Tow Lawyer: What Can Be Done If Your Car Was Wrongfully Towed

MY CAR WAS WRONGFULLY TOWED

Tow truck drivers.  How do we feel about them?  Generally, most of us think they are the scum of the earth.  Sometimes, they are helpful and kind people.  Most of the time, though, they are stealing are legally parked cars, wrapping a contraption around the tires and tell us to pay them a "drop fee" to allow us to drive away.

If you have ever parked in Midtown, Houston, a parking lot in Montrose, or plenty of other areas in town, there is a decent chance you have been the victim of a wrongful tow.  Now, I don't know how many lawyers have won a tow hearing, but I suspect it is few, mostly because it is not a lucrative area of practice.

 I know that very few pro se complainants (you if you don't have a lawyer) win.  You all don't win because you just go in there and argue.  

REQUEST A TOW HEARING

In order to get a tow hearing, you have to request it.  You request a tow hearing in the Justice of the Peace Court, in the precinct that your car was towed.  If your car was towed in Midtown, it is JP Precinct 7 Place 1, Judge Hillary Green.   All you have to do is call the court clerk to learn how to file a complaint.  The court will then give you a court date.  You have to show up to this court date.  Expect to see a bunch of grizzly tow truck drivers and, well, a lawyer who obviously represent all of the tow truck companies.  Don't worry, he doesn't know the law.  If you do, and if the facts support you, Judge Green will rule in your favor.  Let's just say that certain procedures must be followed before your car can be towed.

To give yourself a better chance of winning a hearing, take pictures of your parked car before you head to lunch or the bar.  Take a picture of the parking sign.  Take a picture of your parking receipt. 

COLLECT YOUR MONEY

After you win, you won't be paid then and there.  You have to strong arm the tow truck company to pay you.  There are ways to enforce the judgment, but that requires more work.  Don't expect to be paid.  Do expect to work for your money. 

http://www.click2houston.com/news/investigates/how-to-tell-if-youve-been-illegally-towed/31477832

Better Call Saul Episode 4... S'all Good Man

EVERYBODY LOVES A HERO

"Whats you name?"

"S'all."

"S'all?"

"S'all Good Man."

AND THERE WE HAVE IT ~~ The birth of SAUL GOODMAN

SAUL AND THE BUSINESSMAN

You have two categories of lawyers in this world as far as I'm concerned.  You have the ivory tower lawyer who worked his ass off in law school only to live and die by the billable 6 minute increment. Then you have the rest of us, the boutique and sole practitioner.   Most of us worked our asses off too.  It's just that we wanted to be real world lawyers with a life, some control over our live's, and to go to court.  We aren't just lawyers, we are businessmen and businessladies.  We control everything that is within our control.  We live and die by our ability to make a buck.

Let me ask you this:  If your future is on the line, and I'm not talking about serious felonies here, I am talking about serious misdemeanors such as simple assaults, possession cases, DWIs, thefts and the sort, who do you hire? Do you WANT to hire the guy who charges you anywhere from $300.00 to $500.00?  Or, do you WANT to hire the guy who charges from $1,500 to $4,000 for the same case?

If I got in trouble, I take the more expensive guy any day.  Why?  He will know who I am and he will know about my case because he charges enough for one client that he doesn't need several clients to make the same income. 

Jimmy is stuck.  Jimmy is desperate.  He has been working his ass off for chump change up till now, and let me tell you, it is a GRIND.  Jimmy doesn't want to be that kind of lawyer.  I doubt many lawyers do.  So what does he do?  He FAKES IT TILL HE MAKES IT! How he fakes it, well that's a whole other matter... but it ties into storytelling. 

 STORY TIME WITH SAUL 

Every good story has a plot, setting, characters, conflict, and theme.  The great lawyers, like Jimmy McGill, use stories to connect with the audience and win their hearts... because really... their mind's aren't always ticking. 

So let's talk about Jimmy's story.  It was one hell of an elaborate story.  If you think about it, I mean really ponder, Jimmy is creating his OWN story.  The tailored suits?  Part of the plot.  Copying someone else's style? Part of the plot.  Copying the JMM logo?  Part of the plot.  Putting the logo on the billboard?  Part of the plot.  All Jimmy was doing was setting up the conflict.  

How many of you are the proverbial Goliath in real life?  How many of y'all are more like David? That is why a David vs. Goliath story is so compelling, and that is exactly why Jimmy staged the filming of his commercial right as the billboard was being taken down, and the technician nearly fell to his death.  Jimmy does something extraordinarily brave and risky, which are the keys to success in business, I think, and climbs 100 feet without a safety suit to save the billboard worker.

BRILLIANT!  Jimmy is now the underdog hero.  He is the hero for the underdog, and I expect Jimmy to MAKE IT RAIN, it just took an unscrupulous investment.

I'm busy, so I will skip the ethics for the day, but there were some things in the episode..for example Jimmy's billing methodology, and obviously his 'retainer.'   But briefly, I watched a trial wind down yesterday.  The defendant was testifying.  She was charged with aggravated assault on a public servant, the CPS worker who came to take her kid.  The two men in the house already pled guilty. The trial lawyer had the defendant act out in the court room and explain her actions.  The defendant want from a crazy mom that was trying to choke the CPS worker to the hero who tried to wake the CPS worker up after she passed out.  The term hero was never used, but I have no doubt the jury saw her as the hero.  The found her NOT GUILTY.

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http://www.druglawyershoustontexasharriscounty.com/home.html

Better Call Saul... Episode 3... A Lawyer's Perspective... Lawyer and Investigator

SAUL GOODMAN: LAWYER & INVESTIGATOR

Jimmy McGill (Saul Goodman) isn't just a lawyer, he is also an investigator.  In the third episode of Better Call Saul, we see Jimmy venture out into the wilderness, on a hunch nonetheless, to try to exonerate his his wrongly accused client.  

Lawyers have a duty to not be ineffective.  One way lawyers are sometimes ineffective is that they fail to conduct an investigation.  The Supreme Court has long held that in order to be effective in a criminal case, a lawyer must conduct an investigation.

So, what does it mean to investigate?  A lawyer must make an effort to acquire tips, leads, information that either support his client's theory of innocence, or might help lower his client's sentence.  This means that a lawyer ought to ask his client some tough questions in the tough cases, such as whether his client was a victim of physical or sexual abuse as a child.  More generally, though, the lawyer has a duty to track down alibi witnesses, character witnesses, event witnesses, cops, take scene photos, acquire the offense reports, lab analysis, and conduct interviews.  Some lawyers have in house-investigators, and the price of representation includes the price of the investigator.  Other lawyers (most) may need their client to hire an investigator.  Personally, I enjoy tracking down leads, going to the scene, and interviewing witnesses, but that doesn't mean I can always be the one to do the job.

Jimmy McGill did an amazing job in episode 3:

First, Saul got himself into a really shitty situation. You see, when  a potential new client, or client speaks with a lawyer in private, the general rule is that whatever is said in that office is confidential... no one will ever know what was said.  A confidence is a confidence for life.  There are certain limited situations where a confidence may be broken.  I would also like to note that just because you speak to a lawyer in private does not mean there is a lawyer-client privilege, and this is a topic for another day. Here, Saul learned confidential information from his savior from episode 2, Nacho, and then broke his confidence by making an anonymous phone call to warn the Kettlemans that something was going to happen to them.

Second, Jimmy did something amazing!  Jimmy was voluntold to represent Nacho when Nacho showed up unannounced at his office (these things happen).  Jimmy, thinking his life was in danger (these thoughts also happen) is chased down by two guys who end up being cops.  Jimmy is then brought to lawyer visitation room and speaks to his client.  Of course, Nacho thinks Jimmy ratted on him.  Saul learns that his client claims he didn't make the Kettleman's disappear.  Jimmy messes up here.  He wanted his client to plead to 18 years.  He accepted the police' version of the story as true...that's what we call a plea mill lawyer.  Jimmy finally comes around to at least genuinely listening to his client's story and then pursues it.

So what does Jimmy do? He does what a good lawyer should do.  Jimmy goes to the scene of the 'crime,' like a lawyer should do in most cases.  He gets into the house and takes a tour, keeping a keen eye out for evidence or clues that will support his client's claim.  Jimmy walks into one of the child's rooms and sees the golden ticket: the little girl's doll is gone.  This is where Jimmy creates his theory of the case.  Jimmy thinks, if this girl was kidnapped, she would not have so carefully taken this doll. The doll would be there, or at the very least, the stand would be on the ground.  This "kidnapping" was staged so that the Kettleman's can escape with their stolen money!  THAT is Jimmy's theory of the case.  Next step, prove it....(even though a defendant doesn't have the burden of proof in a criminal case.

By the way, Jimmy did some good stuff to buy his client's confidence, namely, yelling at the DA and police as he is right next to the visitation room.  Clients want to believe their lawyer is fighting for them.

Of course, the police and the DA don't buy this story, because you know, a criminal is their best friend if it suits their needs.  Jimmy, however, goes back to the house and hikes miles through the desert and woods based on a few little clues.  Who does he find?  The Kettlemans!  What are they doing?  Singing Kumbayah! Why are the singing?  Because they think they got away! What do they have?  A bag full of money.

Case Closed.  Case Dismissed. Jimmy now has a client for life.

ETHICAL DILEMMAS

1. When can a lawyer break his confidence?

Rule 1.05 of the Texas Rules of Professional Responsibility governs confidentiality. 

(c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client’s representatives, or the members, associates, and employees of the lawyers firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. 23 (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.

(d) A lawyer also may reveal unprivileged client information. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. (f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b). 

SO WHAT THIS MEANS is that Jimmy SHALL (lawyer speak for must) do reveal something confidential.  This means he probably ought to call the police and say something is going to happen that will likely result in harm to the Kettleman clan.  He should not however, disclose the name of who did it, and good for him that he didn't.   

2. When can a lawyer withdraw from representation? 

In this case, Jimmy had a duty to withdraw from representing Nacho because his services were being used to materially further the fraud on the Kettleman clan.

Withdrawal 21. If the lawyer’s services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule l.l5(a)(l). After withdrawal, a lawyer’s conduct continues to be governed by Rule 1.05. However, the lawyer’s duties of disclosure under paragraph (e) of the Rule, insofar as such duties are mandatory, do not survive the end of the relationship even though disclosure remains permissible under paragraphs (6), (7), and (8) if the further requirements of such paragraph are met. Neither this Rule nor Rule 1.15 prevents the lawyer from giving notice of the fact of withdrawal, and no rule forbids the lawyer to withdraw or disaffirm any opinion, document, affirmation, or the like. 

BETTER CALL SAUL EPISODE 1 & 2 Legal Analysis: Is Saul Ethical? Is Saul a Good Lawyer?

BETTER CALL SAUL EPISODE 1 & 2

Welcome, if you are not yet up to speed, read my first blog post in this series of articles analyzing Saul Goodman's legal acumen ethical and lawyering decisions.  

The premier season of Better Call Saul started out with a double header, and it did not disappoint.  In the first episode, the appropriately named 'Uno,' we are are 'introduced' to Jimmy McGill.  Jimmy is the poorly dressed, balding, overworked-underpaid, ridiculous court appointed lawyer that we have all come to love and expect to see on screen.    Just to clarify the mispersection that Saul/Jimmy is a public defender, he is not.  He IS supposed to be the stereotypical bottom of the barrel public defender.  In reality, he is a private lawyer taking court appointments.  The difference between a Public Defender and a court appointed lawyer can be huge.   Many public defender offices throughout the country, in particular those supported by Gideon's Promise and Jonathan Rapping, are working hard to eradicate the stereotypes.  For example, in Harris County, the Harris County Public Defender Office is the largest, and arguably best criminal defense law firm in town. Harris  County, however, also relies on the court appointment system that Saul Goodman/Jimmy McGill gets his checks from.  While there are great lawyers accepting court appointments, many are just plea mill lawyers looking to make as much money for as little work as possible.  You will not be treated that way by a Harris County Public Defender.

LET'S START WITH SOME ETHICS...

Not only is Jimmy/Saul a bottom of the barrel court appointed lawyer, but he is also a scheming sleazy personal injury lawyer. This brings us to Ethical Dilemma #1: Saul is zooming his rickety old yellow clunker down a neighborhood street when all of a sudden a young man smashes into his windshield, rolls on the ground, and feigns injury while his accomplice videotapes the scam.   Their stunt is kind of like this staged accident scheme going on in Houston.  When Saul realized he is getting played, he tries to do the right thing, before inevitably doing the wrong thing, simply because he is Saul Goodman. Saul conspires with these kids to stage an accident involving a potential client, who allegedly stole over $1,000,000 from public coffers, in order to solicit their business. 

There are so many unethical and illegal things going on here.  Let's talk about potential criminal charges Saul and the gang could be facing if he were in Texas: fraud, criminal mischief, conspiracy, barratry, and criminal solicitation for Saul.  Over in the civil courthouse, Saul and the gang could be liable for quite a bit of damages for anything from negligence, to intentional torts, such as assault.

The Texas Disciplinary Rules of Professional Conduct governs creates the ethical standards for lawyers and their employees.  Rule 8.04 Misconduct, says what a lawyer shall not do, and a lawyer shall not engage in conduct that constitutes barratry.  A lawyer commits barratry if, with the intent to obtain economic benefit, 

(a)(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;                                                                                                                               (2) solicits employment, either in person or by telephone, for himself or for another;     (3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;                                                                                                                                 (4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;                                                                                                                         (5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or                                                                     (6) accepts or agrees to accept money or anything of value to solicit employment.         (b) A person commits an offense if the person: (1) knowingly finances the commission of an offense under Subsection (a); (2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or (3) is a professional who knowingly accepts employment within the scope of the person's license, registration, or certification that results from the solicitation of employment in violation of Subsection (a). 

So, Saul messed up BIG TIME.  He committed barratry.  He violated Rule 8.04.  Let's see what other rules Saul might have violated:

1. Rule 3.01 Meritorious Claims and Contentions: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.
2. Rule 3.03 Candor Towards the Tribunal: (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (5) offer or use evidence that the lawyer knows to be false.
3. Rule 4.01 Truthfulness in Statements to Others: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.
4. Rule 4.03 Dealing With Unrepresented Person: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
1. (by telling Tuco Salamanca the BS story he told)
5. Rule 4.04 Respect for Rights of Third Persons: (b) A lawyer shall not present, participate in presenting, or threaten to present: (1) criminal or disciplinary charges solely to gain an advantage in a civil matter; 

STORYTELLING WITH SAUL

For all that Saul is lacking in common sense and good decision making skills, Saul is ONE HELL OF A STORYTELLER.  Storytelling is the most effective method of communication, we remember stories.  We remember emotions, sensations, vivid colors and the such.  On excellent story teller associated with Gideon's Promise is a guy by the name of Brett Willis.  He teaches a course on the 4 Essential Elements of a Great Story: Sex, Love, Food, and Violence (I think).  

SCENE:  Saul and the numnuts are tied up, dragged to the desert, and face certain death.  Saul manages to talk his way out of harm, yet, in a moment that humanized him for the viewers, Saul's turns around, stares down the lunatic Tuca Salamanca, and tries to save the lives of his co-conspirators.  How does Saul do it?  He doesn't overtly plead for mercy.  He doesn't cry.  He doesn't become violent.  HE TELLS A STORY that goes something like this:

Think about their mother... sweet little lady, a widow that works hard... all day, every day just like her mother did before her, from dawn till dusk, scrubbing the floors of rich people. She needs a cane to walk, she has arthritis, and still, she works every day.  For herself?  No.  For them, these two nimwits, her boys, the apples of her eye. You say they don't deserve her, maybe so, but they are all she's got.  You turn them inside out, think what happens to her. ... The way I see it, you are tough but you are also fair, you are all about justice. ...Ten years from now they will remember.  Ok let's talk proportionality. You have to decide whats the right sentence.  (Every time Tuco has a crazy idea of mutilation, such as the Colombian neck tie, Saul brings him back to Earth).  Break their legs, one leg each.  They can't skateboard for six months, and they will be scared of you for life.  You can show everyone that you are fair and that you are just.

Saul's ability to tell as story, a story that didn't force the issue, but rather subtly conveyed the end goal, saved the lives of those nimwits.  Let's see what he did there:  First, he talks about their mother. Just about everyone has a mother, thus, just about anyone can connect to this story right off the bat. Next, Saul uses words that describe her and make her seem so real and fragile that you can see her. He doesn't just say she is old and can hardly walk, she needs a cane to walk.  If I saw Tuco's abuelita walking with a cane, so did Tuco, and that's the point!  Then, Saul uses the emotion of love, motherly love to tell a mini-story about a mother who worked so hard for peanuts her entire life just to care for her boys...they are all she's got.  All of a sudden, the fate of the two boys isn't about the boys, or even Tuco, it is about their mother...it is about Tuco's abuelita. Finally, Saul negotiates with great success by starting at the best possible outcome, and countering Tuco's offer with a more and more reasonable offer each time.  In a sick way, while Saul may not have won, Saul's story did.  And that, ladies and gentlemen, is what great lawyers do.  

* I would also like to point out two other great things Saul did, especially as an appointed lawyer: First, he went to visit his clients in jail, and introduced himself.  Based on my client centered studies, one of the most valuable thing a lawyer can do for a client is humanize them and listen to them, because it is probably the first time in their life a person in the system has.

About the Author:  Cory Roth is a young lawyer, and proud to represent citizens (and non-citizens) accused of crimes in Texas.  He has been fortunate to learn from some of the best early in his career.   His early successes include winning his first jury trial, a felony sex case, and his first bench trial, as well as his first motion to suppress.

Better Call Saul: A Lawyer's Analysis on the Science of Ethics and Art of Storytelling - Episodes 1 and 2

BETTER CALL SAUL

A YOUNG LAWYER'S ANALYSIS OF JIMMY McGILL'S A.K.A. SAUL GOODMAN'S LAWYERING AND ETHICAL DILEMMAS

The long wait is finally over! Better Call Saul, the prequel to Breaking Bad is finally here, and it did not disappoint.   Bob Odenkirk has returned to AMC to play Saul Goodman in a series about an attorney always conflicted between his moral compass and duties as a lawyer.  It is one hell of a story.

My Inspiration:

One of my favorite classes in law school was Professional Responsibility, otherwise known as ethics. Ethics was one of my favorite courses because our professor would play clips from classic lawyer movies in which the lawyer would encounter an 'ethical dilemma.'  The class would then discuss the ethical dilemma caused by the situation, the ethical rules that apply to the situation, whether the lawyer acted ethically, and how the lawyer could have acted differently if he did indeed violate the rules.  The general rule of thumb is go with your gut instinct.  However, "What would Jesus do?" was also pretty popular on my campus.

What To Expect:

In this series of blawg posts, I will address some ethical dilemmas our favorite protagonist/antagonist encounters (face it, what makes this such a good show is that Saul is his own worse enemy).   

I will also highlight some of good things the Counselor does, ESPECIALLY STORYTELLING, because, believe it or not, SAUL IS GOOD.  

Finally, I will call it like I see it:  Better Call Saul is essentially a lawyer joke.  Saul Goodman is the epitome of a slimy, sleazy, shark of a lawyer that hits most most of the negative stereotypes possible. Thus, I will stand up for the honorable and downtrodden.

Check back in for my next Better Call Saul Blog analyzing Saul Goodman.

The One Witness Rule -- What a Waste of Time!

I spent this morning reading the voir dire section of a record for appeal.  My client was charged of aggravated sexual assault of a child.  I did not represent him at trial.  He was sentenced to life in prison.   Voir dire is the phase of trial where the jury is selected from a larger pool of potential jurors. During voir dire, the judge will speak and as questions, as well as the government attorney and defense attorney. 

In every trial I have watched or participated in, and in every record I have read, I see the most annoying waste of time ever during voir dire.  The big waste of time goes something like this:

Government:  Ok folks, so, let's just say, I don't think it will happen but let's just say there was only one witness. Right? Ok? Just one witness.  And let's say this witness testified.  And let's just say she was the only witness to testify.  And let's just say you believed her beyond a reasonable doubt.  Here, we go, here we go, this is the question.  And remember, voir dire is my only chance to speak to you and in French it means "to speak the truth." So, if we put on only one witness, and you believed that witness beyond a reasonable doubt, could you convict the defendant?  COULD YOU CONVICT THE DEFENDANT BASED ON THE TESTIMONY OF ONE WITNESS WHO YOU BELIEVED BEYOND A REASONABLE DOUBT?

The prosecutor will then go person by person or row to figure out who is not capable of doing this.

This is the biggest waste of time, ever, in a court room.  The government lawyers knows darn well whether he intends to present one witness.  Now, these line of voir dire questioning is especially common in sex cases.  As one judge explained it, the one witness rule exists because there is usually only two witnesses to a sex crime: the complainant and the defendant.  I would like to note, however, that his interpretation of "the legislature's intent" is wrong.  There is a different between witnesses and eyewitnesses.  In that case, why don't they call it the "one eyewitness rule?"  That may take care of some of the confusion.

But why waste time?  Why waste the jury's time?  Why make a frivolous claim?  I suppose the government lawyers are looking for people actually want good, reliable, independent evidence so that they can exercise a strike on those individuals.  

But hey, it could work out for us.  Hopefully, some juror, subconsciously is thinking, "Why the hell did that government lawyer waste my time and ask me a stupid, question when he knew darn well there was going to be more than one witness?  Ef him, I don't trust him."

(Steps down off soap box.)  Ladies and gentlemen of the audience, thank you.   Next time a government lawyer asks you this question, go Socratic on his ass and ask why he is asking a pointless question and wasting your time. 

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.