Monthly Archives: August 2008

A question

Can one oppose gay marriage and/or civil unions and still claim to have “good friends” who are gay? Or perhaps the question should be: would someone who is gay be “good friends” with someone who opposes gay marriage and/or civil unions?

It’s not like having friends who refuse to be fuel efficient, while you drive a Prius. Gay marriage seems to be a more fundamental issue.

Anyone know the answer?

Stop. You have reached the end of the internet

Well, not really, but you will be cut off if you’re a Comcast customer and you use more than 250gb of bandwith per month. This means that almost no normal user will have a problem. Except, of course, Scott Greenfield, who uses about 3 trillion GB of bandwith everyday.

Unlike Appellate, who is okay with it, I think it’s silly.

Do you gamble?

The Texas Tornado, by way of the two Justices (Blonde and Western) writes about (what he might as well trademark) the NLS (Nasty Little SurpriseĀ©) strategy and tactic.

The question is simply

why a criminal defense lawyer would not share exculpatory information before trial with the Government.

All three of them hit on the crux of the matter – trust. Trust in the prosecutor assigned to the case and trust in yourself. You want to reveal this exculpatory information to a prosecutor whom you know will not dismiss it outwardly and then try to circumvent it surreptitiously. Thankfully, in my experience at least, such prosecutors are few and far between. It is a very real possibility, however, and one that should be weighed.

Then you have to trust yourself. Do you trust yourself to take the case to trial and present that exculpatory information in the best possible way? Only you can answer that question.

The Tornado then goes on to separate the NLS’ into two categories: the bombshells and the not-bombshells. Both should never be revealed to an untrustworthy prosecutor, he says, and the second category NLS need not be revealed if it won’t make much of a difference in the pre-trial stage.

I don’t know how they do it in Texas or the State of Justices, but here in CT, most pre-trials in Part A are in judges’ chambers, where both sides sit down, talk about the case, give the judge some information (without revealing all the cards, of course) and hash out a number. If the number is too high or too low for one side, you go back two weeks later and try it again (roughly speaking). So if there is some exculpatory information, you might be able to get a Judge on your side and convince the prosecutor to dismiss or nolle the charges. Won’t happen every time, but worth considering.

So, The Tornado argues, echoing Blondie, that you might want to set up the NLS for use at trial – a Perry Mason moment, if you will.

I’m not so sure about that. It seems romantic and all, the star witness recanting on the stand or the air-tight alibi for your client destroying the state’s case. But it’s all a risk.

If the star witness recants, there’s always the prior inconsistent statement. If your client suddenly develops an air-tight alibi, but didn’t reveal that in his confession, then you’ve got credibility issues.

When a jury of six or twelve is sitting in that box, watching every move, evaluating every word that comes out of every witnesses mouth (and the lawyers’ too), then it’s always a gamble. Do you have the perfect factual defense? Maybe, but who the hell knows what juries do. Do you want to take that risk?

I think, for the most part, if you have the exculpatory information that should result in a dismissal, you should try and utilize it pre-trial. After all, that too is part of our jobs as criminal defense attorneys.

(Now, you all probably know that I hate generalizations, so I just want to add that every case is different and every circumstance is different and what I would do would probably depend on the individual case, but as a general rule, I’d rather use the exulpatory information pre-trial.)

Fellow practitioners, what do you think?

And finally, just because it’s been so damn long since I’ve done this:

Raising the Bar

You’ve probably heard by now that Steven Bochco and David Feige‘s Raising the Bar premieres on Monday at 10pm on TNT. It stars Zack Morris as a public defender and Malcolm’s mom as a crazy judge (who, thankfully, doesn’t seem to yell as much in this new role).

I’ll probably tune in, just to see what real world experience brings to a legal show. The reviews have been mixed, but that shouldn’t stop you.

For example, some guy in the Boston Herald writes:

In this universe, justice is dispensed on the basis of personal relationships between the court representatives. The defendants are pawns between rivals, roommates or lovers who look to one-up each other.

Never has the justice system looked so silly.

That’s not silly! I read that and think: “Hey! Maybe this show is true-to-life!” So we’ll see. Will this come close to unseating The Practice as the best legal show of all time? I don’t think anything can, but I’ll be very entertained if it comes remotely close.

If you’ve been living under a rock (or just without TV) and want to get a glimpse of this show, here are some links:


Sneak Peek

But, if you’re using Firefox, you’ll have to download some stupid Turner plugin. Which, in this day and age, is just annoying. So instead, you’re better off using IE for these links (ugh).

Note to TNT folks: There are, like, 200 video plugins out there that don’t require some software install. Use one of them [or just use Flash!?!]. Don’t make me install some special plugin for your website only and under absolutely zero circumstances should you force me to use IE to look at a website. Because once you do that, I’ll never come back to your site.

Just a little guilty

Due to unforeseen commitments, I’ve missed out on a great discussion in the blawgosphere between Scott, Scott, KFPL, Jr., Scott again and then KFPL, Jr. again on the presumption of innocence, actual innocence and not guilt and whether juries should be given that third option of finding a defendant “innocent”.

The gist is this: a defendant, found guilty by a jury, has his conviction overturned on appeal on grounds of insufficiency of evidence. Does he have a right to compensation under the wrongful conviction statutes? If not, why not?

I’ve written about this before and I think it comes down to the distinction between factually innocent and legally innocent. Compensation statutes are geared more toward (and public support of such statutes is based on) factual innocence. Legal innocence (which may very well be the same – and as Scott argues, and I agree, is the same), to the minds of the legislators, is something different.

This distinction places a tinge of guilt on the “legally” innocent: He’s guilty, but they couldn’t prove it.

Which, if you think about it, is exactly the same as the presumption of innocence. He’s not guilty until he’s found guilty. Some lawyers like to ask that question of prospective jurors: “If you were to vote today, how would you vote?” The correct answer, of course, is not guilty, because there has been no evidence presented of guilt.

But that’s perhaps where the problem lies. That we, as lawyers, create and perpetuate these two worlds, where factual innocence and legal innocence are two separate and distinct beasts. That we revere factual innocence and look upon legal innocence as an acceptable alternative.

They aren’t – and shouldn’t be – different. Innocence means just that. Innocent. Whether it is because the state couldn’t prove that you were guilty or because, as all-seeing superbeings we “know” that you weren’t guilty.

The second, as you can see, is an impossible scenario. No one truly “knows”, unless you were there (and even then, given the eyewitness ID failures, it’s hard to believe that someone will always “know”). Requiring someone to show that they are factually innocent, is in most cases, like asking someone to prove that God doesn’t exist. You simply can’t prove that negative.

Indeed, the bulk of scientific evidence and theories is based on hypothesis. How little of it is actually proven? Has anyone actually seen a black hole? Yet we know they exist.

Both physics and astronomy are sciences. So is the law.

Being found not guilty is the same as being found innocent. Let’s not confuse the issue further.