Lawyernomics 2013

Read Scott Greenfield’s closing keynote address for Lawyernomics this week in Las Vegas. There’s a race to the bottom in lawyer online marketing—”ultra-competitive business landscape,”* as Lawyernomics huckster Avvo would have it—Lawyernomics is there to psych lawyers up for that race—using Yelp! Twitter! Google! Virgin America!**—and Greenfield will*** exhort Lawyernomics attendees to go out there and win it:

* * * * *

Whatever sleazy thing the virtual lawyer does that angers you, frustrates you, makes you wonder why you checked the “Yes, I’m a’coming” box on the Cooley response card, don’t let it get you down. Just lace up those running shoes and be one step sleazier, one lie better, and you become the winner in the race to the bottom.

Until, of course, the virtual lawyer will then slide in beneath you. But there is always something you can do to go lower. Just don’t be like me and blush, or you will never make it in the ultra-competitive landscape of internet marketing.

Now, go out and be the best virtual lawyer you can be. Remember, you can always go lower.

Read it all.

 

 

*N.B. not “professional” but “business.”

**Wait, what?

***won’t really

Limitations and the Ken Anderson Prosecution

Former Williamson County prosecutor (and now Williamson County District Judge) Ken Anderson has been charged by a court of inquiry with 1) criminal contempt of court; 2) tampering with or fabricating physical evidence; and 3) tampering with governmental records for his prosecution of Michael Morton. (Findings of Fact and Conclusions of Law, PDF, OCRed.) Which is nice—prosecutors who tamper with evidence and records to convict people of crimes (most especially, but not only, a prosecutor who, like Anderson, “does not believe in the release of [exculpatory] evidence if it may result in freeing an individual that he believes is guilty”) should be prosecuted, and should have to do every day of the sentences that their misdeeds brought their victims—but to little effect.

The statute of limitations for tampering with governmental records with intent to harm another and for tampering with physical evidence, both third-degree felonies, is three years. There is no “discovery rule”—no argument that the statute of limitations begins to run when the bad acts are discovered. Anderson’s bad acts were in 1987.

I have been told that some Texas lawyers think the criminal contempt allegation is not barred by the statute of limitations. Criminal contempt is not a felony—the maximum punishment is six months in jail and a $500 fine—but six months in jail will do more to deter future Ken Andersons (I see incipient Ken Andersons in the Harris County Criminal Justice Center every year) than will nothing.

I haven’t seen the argument fleshed out yet. But I don’t see how it works. Article 12.41 of the Texas Penal Code defines as a Class B misdemeanor any offense that “is not a felony” and has jail as a possible punishment. The statute of limitations for a Class B misdemeanor is generally two years. Criminal contempt is not a felony; it has jail as a possible punishment. Unless it is not an “offense” Anderson’s alleged criminal contempt is a Class B misdemeanor with a two-year statute of limitations. There are many Texas cases in which criminal contempt is described as an offense, including several applying the Blockburger test (whether each offense requires proof of an element that the other does not) to determine whether a criminal contempt conviction barred prosecution for the same act).

Anderson wins on limitations, and I have no faith that all those voters who have fled the scary urban milieu of Austin (white flight from Austin?) to live in the Constitutional backwater of Williamson County will return him to private life based on the monstrosity that he committed twenty-five years ago.

Quarles and its Progeny: Tsarnaev

Everyone knows the Miranda warnings. We have heard them ten thousand times on TV.

Not everyone knows their significance—clients often ask me whether it’s significant that they were not read their rights when they were arrested. It is not; the rule of Miranda is this: A statement made by a defendant as a result of custodial interrogation is not admissible against him unless, before making the statement, he was advised of certain of his Constitutional rights. So the police only need to read you your rights when they are going to question you while you are in custody. Under Texas law the mere reading of rights has no legal significance—the reading must be documented by audio recording or acknowledged in writing by the defendant—so Texas cops don’t bother to read arrestees their rights.

In New York v. Quarles the Supreme Court created a “narrow” exception to the Miranda rule. The reasoning was that public safety trumped Miranda’s stated goal of ensuring that subjects of police interrogation knew their rights:

The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.

In a sense, any questions calling for incriminatory answers might be seen as “reasonably prompted by a concern for the public safety.” But that’s not the sense in which the Court decided Quarles:

The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

(Mr. Quarles was not thought to have an accomplice, so this is really about guns being so terrifying that the possibility of a law-abiding citizen finding one creates a sufficient danger to public safety to change the rules. Scratch that: it’s really about nibbling away at the Constitution.)

For a situation to justify unwarned interrogation, the information sought is—by definition—important independent of its admissibility. If something is going to be trumped by public safety, it should not be the procedures the police must follow if they want the information they obtain to be admissible. It should instead be the police desire that all information be admissible.

Even before Quarles, if the police wanted information that they thought they wouldn’t get from an arrestee who knew his rights, they could seek that information without advising the arrestee of his rights. Before there was a Quarles public-safety exception to Miranda, society was no worse off for the police decision to conduct an unwarned interrogation seeking inadmissible information rather than giving the warnings in hopes of garnering admissible information.

The press has talked about the government “invoking the public-safety exception,” but the exception is not some magic spell that gives the FBI forty-eight hours to talk to a heavily drugged arrestee without Mirandizing him and then use the information obtained at trial. Quarles clearly does not cover information gleaned with questions other than those “reasonably prompted by a concern for the public safety,” and while the government may want to broaden it, they cannot without the cooperation of the courts. When the Boston Police Commissioner says, “We’ve told the people of Boston we feel that they’re safe at this point in time,” that’s a good indicator that further interrogation is not prompted by the “immediate necessity” that existed in Quarles.

But where the Supreme Court makes an exception, the Supreme Court always broadens the exception. Quarles is the top of the slippery slope…the jackbooted foot in the door…the flesh-eating camel’s nose in the tent.

Others have pointed out that the police do not need to get admissible evidence through interrogation if they have enough against him already. Maybe what Tsarnaev tells the FBI won’t matter to the trial of his case. Maybe the government will have a cut-and-dried case against without using the product of his interrogation. Maybe the admissibility of the product of his interrogation will never be litigated. But “maybe” implies “maybe not,” and here I suspect not.

I expect that the admissibility of Tsarnaev unwarned statements to the government will be litigated, and I expect that the outcome of that litigation will not be convivial to our freedom. The spirit of the times, carefully cultivated by the government and the media, is one of fear, and the courts will move in rhythm with that spirit, making it easier for the government to put terrorists in boxes.

But when the government talks about “terrorists,” they’re talking about the people who they can claim are terrorists. And when they are talking about the people who they can claim are terrorists, they are talking about you and me. 

Five years from now we’ll be talking about U.S. v. Tsarnaev as another step closer to tyranny.

(See also Gideon and Greenfield on Quarles, Burney on Miranda, and Greenfield again on two-step interrogations.)

Spousal Privilege, Illustrated

This is from the arrest warrant affidavit in the case of Kim Williams, the wife of Eric Williams, the former justice of the peace who is suspected of murdering three people in Kaufman County, Texas:

On April 16, 2013 an interview with defendant, Kim Lene Williams was conducted at the Kaufman County Law Enforcement Center. During the interview, Kim Williams confessed to her involvement to the scheme and course of conduct in the shooting deaths of Mark Hasse, Michael McLelland and Cynthia McLelland. Kim Williams described in detail her role along with that of her husband, Eric Williams whom she reported to have shot to death Mark Hasse on January 31, 2013 and Michael and Cynthia McLelland on March 30, 2013. During the interview, the defendant gave details of both offenses which had not been made public.

Kim has a privilege not to testify against Eric. She can waive it, though, and testify about what she saw and heard, including communications made to enable him to commit a crime.

But if her claim that he shot the three to death is based on his telling her about it after it was done, he has a privilege to keep her from testifying about that. She cannot waive that privilege.

So:

He loaded his gun and drove toward the McLellands’ house she can testify to, but doesn’t have to.

He told me, “Honey, this is what I need you to do…” she can testify to, but doesn’t have to.

He told me, “Honey, this is what I did…” she can’t testify to if he says no.

I don’t think the “Furtherance of crime or fraud” exception to the spousal-communication privilege has been widely litigated, but I foresee it getting a thorough workout here.

Justice and Revenge, Rosenbaum Trolling

I heard Thane Rosenbaum on NPR yesterday, and was instantly struck by how juvenile this law professor’s understanding of justice and human nature is. (Greenfield wrote last week about Rosenbaum’s Chronicle of Higher Education piece.)

Rosenbaum’s stated premise is that justice equals revenge: “A call for justice is always a cry for revenge.” This is transparently false. There are many different notions of justice, and often when an injured person calls for justice he seeks restoration rather than retribution.

Rosenbaum asks, “Now, in cases where we have the worst of the worst, where there’s no question of someone’s guilt—heinous murders—why is it that we’re so ambivalent about actually providing just desert?” One answer, obvious to anyone who has ever shook hands with the criminal justice system, with ethics, or with Philosophy 101, is that the result of our actions is not necessarily an accurate measure of what we deserve.

In the CHE piece Rosenbaum writes, “America is no less civilized or law-abiding because bin Laden was assassinated.” This is at best arguable. I get the impression from listening to and reading Rosenbaum that he is trying to make his personal impulses the norm. But society serves to moderate, rather than amplify, personal impulses.

On further reflection, I can’t believe that a law professor is really so much of a simpleton. It’s not that Rosenbaum has a juvenile understanding of justice and human nature. I think it’s that he’s trolling us.

There is an interesting discussion to be had of the proper role of retribution in the American criminal justice system: retribution is a natural impulse; why should it yield to our moral intuition that punishment should be proportional to responsibility? Why should society strive to be “better” than its members, where being “better” means not satisfying members’ undeniable retributive impulse?

Unfortunately for that discussion, Rosenbaum overstates his case to the point of triviality to get attention (you’re welcome) and to sell books.

The Sandwich Theory

Quoth Papa Greenfield:

Shortly after an instructor first arrives at Cardozo’s Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students’ performance. It’s been the same speech for years: First, tell them something they did well. Give them praise. Then, when you tell them what they didn’t do so well, be gentle and constructive. End up on a positive note.

This is the new rule of teaching.…

This is not the new rule of teaching; it is an old rule of management. I remember hearing it from my dad some thirty years ago: when  you are giving a correction to someone you’re supervising, sandwich the negative between positives. 

It is a broadly accepted social convention. The question is, is it an obstacle or an aid to teaching?

Greenfield seems to think it’s an obstacle:

The directions to say something positive first, offer “constructive” criticism (and I use [doubt] quotes because construction is in the eyes of the student) and close on a positive note, creates what the study aptly describes as a Praise Sandwich, designed to make the student feel good at the expense of teaching the student to do better.

I am unconvinced.

Teaching and trial lawyering have a lot in common. In trial, we tell our client’s story the way we tell it not because of some idea of the “correct” way to tell a story, nor to convince some idealized jurors, but because we think that the way we tell the story will be the most effective way to get the actual jury to agree with us.

Scott, who would never try a case as though to idealized jurors, wants to teach as though to idealized law students:

While one might hope, even expect, law students to be both tough enough and interested enough to be capable of handling more serious instruction, including the occasional harsh recognition that they are totally off the mark, the evidence is otherwise. They can be just as fragile, entitled and narcissistic as any kindergartner.  Should they end up before a judge or jury one day holding another person’s life in their hands, their praise sandwich isn’t going to do them much good. But as long as they feel they were fabulous, that’s what really matters.

Yes, law students can be just as fragile, entitled, and narcissistic as any kindergartener. So, for that matter, can criminal-defense lawyers, even very successful ones. But just as the trial lawyer’s job is to convince real jurors, the trial advocacy instructor’s job is to convince real students. The Sandwich Theory has become social convention because it works. It works because most human beings—not just law students—are fragile; by sandwiching constructive criticism between slices of praise, the teacher sends the message that the criticism is not personal.

And yes, criminal-defense lawyers should be tougher than that. But the Sandwich Theory is a teaching tool—perhaps an effective one—and if you want to teach people you’ll use whatever tools come to hand.

There’s an ongoing philosophical debate among those of us (we happy few) who think about such things: whether, when a lawyer’s request for help reveals that he is out of his league, it is better to provide him with the help he asks for (enabling his continued blundering, but helping his current client) or to decline to help (not helping his current client, but not encouraging the lawyer to continue punching above his weight). Should we help the accused at the cost of nurturing incompetence, or make incompetent practice difficult at the cost of the accused?

At some point those who aren’t cut out for this job need to figure it out. Those who can’t stand being told that they are wrong, wrong, wrong should find their way into other ventures (like prosecution, or bonsai gardening). This is likely to happen eventually, though clients may be hurt in the interim.

But law school is not the place for this cull to be made, and where the Sandwich Theory is the advocacy program’s rule, it is not the instructor’s role to weed out those students who aren’t going to make it.

Mea Maxima Culpa

Last week I was in trial (my first bench trial in federal court; we came in second).

I was also excited to be scheduled to speak to Professor Ray Moses’s “Opening and Closing” class at South Texas College of Law. I’ve spoken to the class the last couple of years, and it has always been stimulating and fun. I’d had it on my calendar for two months.

As Thursday evening approached, I was at the office figuring out what to talk about and how, when I received an email from Professor Moses: My students are sorry you missed the class last night. Have a nice life.

I screwed up. There’s no excuse. I hope Professor Moses’s students—who are assigned this blog as part of their required reading—will forgive me. 

Yo Ho Yo Ho The Pirate’s Life For Me

In a recent discussion amongst criminal-defense lawyers about the murder of the Kaufman County District Attorney, and whether we would represent the person charged with the murder (assuming that anyone ever is—my bet is that the murderers will never get caught, though a patsy may be), one of the brethren predicted that whoever took the case would have her phones tapped; her medical records searched; and whatever else the Texas Rangers could think of done to her, including drugs being planted in her car. His point was that a lawyer should not take this case because it might be the lawyer’s last case.

I was dumbfounded. Still am. I don’t think his predictions are remotely near the truth, but even if they are that should not be sufficient to scare a criminal-defense lawyer off a case.

You don’t become a criminal-defense lawyer to be loved by society, or to please the government.

You do it expecting…no, perversely hoping to make powerful enemies.

The Relationship Card

There were probably criminal-defense lawyers before me who marketed themselves as never having been prosecutors—who made a virtue, in the minds of potential clients, of a lawyer never having put people in prison. It’s marketing with the truth—helping the public understand that “former prosecutor” does not mean “good defense lawyer.”

Recently a potential client and I talked about how the other lawyers he was considering were trying to sell themselves to him. They were bidding against each other, and then calling him out of the blue to cut their fees, reducing their fees below what I thought it would cost to do a half-decent investigation of the case. I pointed out to them that the beginning of the month, when bills are due, is a great time to shop for a criminal-defense lawyer because those who don’t manage their affairs well will cut their fees to get the cash flow in. He felt turned off by their efforts to sell him, especially with the price cuts (which seemed desperate to him).

Nothing succeeds like success. Conversely, nothing fails like desperation. A criminal-defense lawyer’s attitude, when confronted with a potential new client, should be, “I am interested in your case, and I would like to help you. I have no idea what kind of results we will get, but I will do everything I can to beat your case. Here’s what it’s going to cost you, and if you can’t afford me, then please excuse me because I have clients who need my attention.” 

The potential client (in the end he couldn’t afford me) was interested in another lawyer’s claim of friendship with the prosecutor on his case. “Does that help?” He wanted to believe. I revealed to him The Truth About Relationships, and his eyes grew wide with understanding.

Here is The Truth About Relationships. May it spread even farther and wider than the Truth About Former Prosecutors:

When a person hires a lawyer because of the lawyer’s relationship with the prosecutor, he assumes that the prosecutor will cut the person a break for the sake of that relationship. Cutting the client a break for the sake of the relationship with the lawyer would be selling out the client (the State); that could happen.

But it’s at least as likely that the defense lawyer will sell out her client for the sake of the relationship with the prosecutor as that the prosecutor will sell out his client for the sake of the relationship with the defense lawyer. The prosecutor has represented his client for years; the defense lawyer has represented hers for weeks.

By offering her relationship with the prosecutor as a selling point to the potential client, the defense lawyer has said that lawyers sell out their clients for friendship, and that she is friends with someone who would do so. Since birds of a feather flock together, the client can safely assume that the defense lawyer also would sell out a client for the sake of the same friendship.

Your potential lawyer has a 20-year friendship with the prosecutor. She has, so far, a thirty-minute relationship with you. If she has to choose between those two relationships, which will she choose?

Better by far to hire the lawyer for whom—and for whose friends on the other side—compromising the client’s interests for the sake of friendship is not an option.

No?