a public defender

A number of changes to the Practice Book went into effect on January 1, 2010 here in CT. Of particular importance to this blog and criminal defense practitioners in the State are the changes to the discovery rules.

The regular discovery section was amended to add the following language:

Without the prior approval of the prosecuting authority or the court, defense counsel and his or her agents shall not provide copies of materials disclosed pursuant to Section 40 -13A to any person except to persons employed by defense counsel in connection with the investigation or defense of the case.

Note the use of the very specific “defense counsel”. Most criminal practice book provisions use the phrase “the defendant” as a substitute for either the defendant himself or his lawyer. But the use of “defense counsel” is particularly notable. The section seeks to exclude the defendant himself from possession copies of police reports, statements, affidavits, etc.

The only way for the defendant himself to get copies is through the permission of the prosecutor or the court. And even then, I suspect (as is the practice for many defense lawyers) they would require that names and addresses be redacted.

The changes to the section were actually agreed upon by a joint task force, comprising prosecutors and defense attorneys. The “compromise” was a much expanded discovery provision, making disclosure of all statements, affidavits and reports mandatory upon written request by the defense.

Or: Didn’t your mother ever teach you not to speak ill of the dead, David Martin? David Martin, of course, is the man who “represented” Cameron Todd Willingham, the possibly innocent man executed by Texas on the basis some rather dubious arson evidence.

Willingham is dead, there is a controversy over his innocence and David Martin was apparently missing the limelight. So he decided to give an interview to the press in which he said the following:

The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die.

“I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies,” Martin said. “I think that he was guilty, that he deserved death and that he got death.”

This is a man that, at least in name, represented Willingham. A lawyer, a member of the bar and a capital criminal defense attorney. I use the quotes around the word represented because:

Martin’s case was brief, with just two witnesses. The first was the family baby sitter, who testified there was an oil lamp in the hallway, suggesting it might have spilled and spread flammable liquid. The second was a jail inmate, who was going to dispute the testimony of a jailhouse snitch who claimed Willingham had confessed. But the judge forbid most of his testimony as hearsay.

But of course, one cannot keep a champion fool like Martin quiet. This is not the first time he’s opened his mouth about Willingham and his belief in Willingham’s guilt. A mere few months ago, when the arson story broke, he gave an interview on Anderson Cooper:

[youtube]http://www.youtube.com/watch?v=L5cFKpjRnXE[/youtube]

I must’ve missed it, but my good friends over at Defending People and Simple Justice didn’t (see Mark’s post for links to other posts on Martin’s stupidity).

As Scott summed it up:

While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong.  David Martin’s comments are a disgrace of the lowest order.  And, for good measure, just as criminal defense lawyers aren’t expected to believe in the innocence of every client, they similarly aren’t endowed with the superhuman ability to know when a person who professes innocence is in fact guilty.

I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I’ve ever heard from the mouth of a lawyer.  Never, but never, smear your own client.

I’m glad to say that no one I know would act like Martin did (although one has come close).

You want bread? Three dollars!

Eeny, meeny, miny, moe, goes the counting rhyme, the primary use of which is to select someone random to be “it” in a game. As anyone who’s ever used this rhyme knows, it’s rather easy to manipulate the rhyme (or where you start it) to “randomly” select a predetermined person.

The prosecutor’s office in San Diego is rather more blatant about its singling out of a judge to be “it”:

San Diego Superior Court Judge John Einhorn, who has presided over many high-profile cases, [...] is under a boycott from the District Attorney’s Office.

For about two months, Einhorn has been under a “blanket challenge” by the prosecutor’s office. That means any time a case is assigned for trial to Einhorn, prosecutors use a legal tactic called a peremptory challenge to block the case from going to the judge.

If this happened in Texas, I’d shrug it off as another installment of “It only happens in Texas”, but this is California, the land of the free and the home of the Governator.  Maybe some of our California brethren can inform us what this “peremptory challenge” is. Is it a device of state law or just state procedural rules? Regardless, the fact that the prosecutor’s office has employed this tactic against a solitary judge for two months straight should raise some eyebrows and concerns about their motivation and their role, aka “justice”. When asked for comment, this is all the prosecutor’s office could muster:

“This decision was made after careful consideration and thoughtful review over an extended period of time,” she said. “It is a judgment call made in the best interests of our clients, the People of the State of California, and the cases we are prosecuting.”

Normally, one would replace those sentences with something like this: “This decision was made after some anecdotal evidence that this Judge doesn’t accede to our every demand and seems to have some sympathy for criminals who rape and murder your children and those illegals who cross over the border to steal our jobs. Thus, since he has respect for the Constitution and there is no place for such liberal namby-pambying in the criminal justice system, which means we can’t bully our way into raising our conviction numbers which is all we really care about, we’re going to throw a hissy fit and say to him: NO SOUP FOR YOU!”

Okay, maybe not that last bit. But here, there seems to be no reason for the prosecutor’s office to be disenchanted with Judge Einhorn:

Here. Let’s play a game. I give you a sentence, you fill in the blanks. Everyone wins.

You know you’re _____ when you’re an ______ on _____ _____ in _______ and your _______ misses _______. ___ ____ ____.

Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys

Because getting that appeal heard may be the best thing that can happen to you. The worst, of course, is getting executed. But there’s so much middle ground: important middle ground that these people are losing out on. Specifically the Constitutionally mandated review of their claims.

Yes, I know, everyone is human and we all miss deadlines. But if you’re in the capital defense business, you better damn well make sure that you make every date you’re supposed to. If you don’t, the worst can happen:

you so cute...now gimme your money!

Times are tough. Everyone is going through an economic crunch and we all need money. The State needs money, you need money and I most certainly need money (what, you think this blog comes for free?).

So it was surprising when almost $2 million was stolen a few weeks ago, without many batting as much as a single eyelid. To make it worse, the money was stolen from victims! Victims of theft and fraud, I might add.

So who is this criminal with such audacity? Who is this person or entity that engaged in such a daring daylight heist? Why, the State of CT of course.

Last week, the CT legislature, as part of the Governor’s budget bill, passed legislation co-opting $2million from the Client Security Fund. The client security fund is a fund into which all 36,000 lawyers are required to pay $110 per year. There’s also a proposal to alter the Attorney Occupation Tax to remove the exemption for state employees. More after the jump.

Lawyers hate proving the negative, unless of course they’re asking other lawyers to do so. In which case, game on!

For reasons that are not very exciting, I was helping someone research the mandatory CLE (continuing legal education) requirements for lawyers in New York. CT doesn’t have any CLE requirements, so I wasn’t aware of how harrowing it can be for someone who lives in a state that does. Here’s what NY requires if you are a new lawyer:

• 32 credit hours are required of newly admitted attorneys during the first two years after admission (16 credit hours per year)
• of the 16 credit hours each year, 3 are to be in the areas of ethics and professionalism; 6 in the area of skills; and 7 in the area of law practice management and various areas of professional practice

Now 32 credit hours may not sound like a lot, but I imagine it is, as with all else when it comes to lawyers and hours, deceptive.

Since the last post was mostly tongue-in-cheek, I couldn’t include #11: be honest, or intellectually honest.

The legal profession, despite the number of students graduating from law school every year, is small and insular. The local bar is small. The attorneys who practice in your given field are even smaller. And when you deal with the same attorneys over and over again, there is nothing more valuable than your reputation and your integrity.

Which is why it is imperative that you be honest. That you be intellectually honest. Opposing counsel and judges can see through your prevarication.

The law is not always friendly to you or your client or the position you want to take. It happens to all of us. That doesn’t give you a license to lie, or to make up arguments that ignore the law or the facts of the case.

how did I end up back here?

One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.

Sanders, in the post title, refers to a CT Superior Court decision: Sanders v. Warden¹. Obviously, OJ wouldn’t get the benefit of this particular case, because, as much as Mohegan Sun wants it to be, this is not Vegas. The principle Sanders stands for is borrowed from a 1996 Second Circuit decision: Boria v. Keane.

One of the primary reasons I started blogging was to express my thoughts and feelings about the criminal justice system. But the more I blogged, the more I realized that what it was really about was learning and sharing: learning new things and sharing experiences. Learning how to be a better lawyer, really. For the most part, the blawgosphere has served that purpose and it has enriched me as a lawyer and as a person.

There are times, though, when the blawgosphere exposes its ugly side. Slowly but surely, the blawgoshpere is moving away from actual conversation and closer to pure marketing. Everything is about the blogger and the blogger’s business or promoting their business. It’s getting a little dirty. Take, for example, this: Accident Prone, a public defender blogger, wrote about a common experience a few weeks ago:

Dear Private Attorney,

I know you think you know more than I do. Hell, maybe you do. I know that you think dispensing legal advice without, oh I don’t know, “reading the file” or “knowing about what the evidence is” is a good idea.

In the future, if you’re not going to do either of those things, please do not tell my already deluded client that he “should be able to get” a misdemeanor disposition from a felony. Or else, take the damn case and get what he “should be able to get” for him. Oh wait, what? You can’t/won’t/don’t have a valid legal license to do so? Then shut the f&*$ up!

This was clearly a post about an experience the blogger had in real life, but still was instructive: Remember that it’s about the client and not about drumming up business. It’s not about making a name for yourself, but rather for doing something that’s in the best interests of the client. If you do a good job, you’ll get a good reputation and the business will follow and so on. Really, everyone should know this. I know I keep harping on it, but you’d be amazed how infrequently other lawyers actually act in this fashion. Take this response to Accident Prone’s post from a private attorney:

Dear Public Defender,

I am sorry that I can get a better deal for your client than you can. Maybe it is because I have been practicing law for about as long as you have been breathing. False confessions, eye-witness allegations and testilying cops don’t frighten me. I plea bargain, but I do so from a position of power, even when I am the “underdog”. I give your client a feeling of protection and ability.

Chances are I know, taught, mentored or helped elect the judge or prosecutor you are dealing with and s/he will take a chance on a client I represent because I bring a sense of reliability that you don’t enjoy. That is likely because your investment in our legal community is limited to telling your fellow lawyers what rubes we all are or rolling your eyes as we invite you to belong to our bar associations.

Oh don’t forget that while you are guaranteed a salary,I am not. Hence, you don’t work on every holiday or go in on weekends or even return calls… I do.

I give my clients my private cell number and my e-mail address. I am available to him or her 24/7. I am still in my office at 11pm on a pretty regular basis.

I did my time in Legal Aid. I appreciate the work that you do and I enjoyed it when I was doing it, but let’s face it, if I didn’t describe you, I described many PDs who get a lot of credit for dedication, but aren’t always as dedicated as they think. That is why their client is in my office begging me to take his case, and why I can’t. You can take it though, and you could win his undying loyalty and respect, but it’s not free, you have to earn it.

Warmly
Private Lawyer

Sigh.

This is what I mean. A large part of that comment is purely self-serving. It also belies a fundamental lack of understanding of what Accident Prone’s complaint was and what the greater, more deep-seated problem is that we as public defenders face. This is not a contest between public defenders and private attorneys, yet there is a consistent percentage of the private bar that engages in such divisive behavior.

The real problem is the willingness of some to put aside their professional responsibility and duty to the client to make a quick buck. The real problem is the maligning of the public defenders in order to do so. I know you have a business to run, private lawyer. I don’t begrudge you that. But when you start lying to clients or spreading misinformation that makes my job tougher, without taking responsibility for it, I will not sit silent. Just to make that extra $1500 (and I know it is a tough economy), you are willing to stick your nose into a file, give bad advice and then hold up your hands when asked to deliver. That doesn’t work, won’t work and shouldn’t work.

Look, I’ve said to clients on occassion: “why did you hire so and so?” or “I bet you won’t hire so and so again, will you?” But that’s not because I want him to be my client, but rather because I care about the client and want to see him get good representation and certain attorneys have certain reputations.

Our goal is the same and our clients are the same. We should be working together, side-by-side for the benefit of our clients. Your client today may very well be my client tomorrow. It doesn’t serve his interests for you to bad-mouth me now or promise him the moon.

It is our responsibility, both as members of the private bar and public defenders to quash this nonsense when we see it. I can’t tell you the number of times I’ve seen clients – mine and that of fellow public defenders – get enticed by the promises of the huckster. “Well, you can only get me the minimum on murder, he can get me manslaughter”. No, he can’t and I’ll tell you he can’t, but it’s your money and your life. If you want to do it, I can’t stop you, Mr. client. “Well, if I pay him $500, he can get me a program.” Right and so can I, because you’re eligible for a program. Not because he’s in bed with the judge. And this is the problem. Sometimes we’re fighting the fight on four different fronts: the judge, the State, the client and some unscrupulous members of the private bar.

We don’t need to be doing that. All of us in the profession should put our clothes on in the morning with the singular goal of doing something to help a client that particular day. If we don’t, the entire profession gets a bad name.

Scott, to whom I showed this exchange last night, offers his take from the perspective of the private bar. You’ll find some of the same notes being struck there, because he gets it. Let’s hope, after reading these posts, “private lawyer” gets it too.

[We tried to synchronize our posts, but lazy old me got behind. Sorry Scott.]

[Further: Forgive the disjointed thoughts in this post. I wrote and re-wrote it 5 times, so there are leftover fragments from previous iterations.]

Prosecutors are special. They have their own little section [pdf - Rule 3.8] in the rules of professional conduct. For the most part, they’re people like you and me, trying to do their job, abiding by their special duties and responsibilities.

Then you come across prosecutors like Ben Field of Santa Clara County, so intent on furthering his career that he doesn’t care who stands in his way: defense lawyers, rules of professional conduct, rules of evidence, the U.S. Supreme Court or the bar grievance committee. Here’s the full investigation conducted by the Mercury News that, in part, led to the following.

Back in May, Field faced a disciplinary hearing, which was based on alleged misconduct in three cases dating back to 1995:

The state bar case includes charges of misconduct in connection with a 2002 murder case, when Field failed to tell defense attorneys that a key prosecution witness may have taken part in the crime. The judge called it a “blatant” violation of requirements that prosecutors hand over any evidence that could help prove innocence.

The bar also has accused Field of misconduct in connection with a 1995 rape charge, which involved questions about whether the defendant was old enough to be tried as an adult. Four times, different judges told Field to file a motion and receive court approval before ordering the physical examination, according to the complaint.

Field went ahead and requested the exam anyway. The evidence was not allowed in court and the case was dismissed. In that case, the complaint alleges, Field “willfully disobeyed a court order.”

In the Auguste case, Emerson told Field that he wanted the prosecutor to turn to him for approval before conducting any further searches for evidence. Four days later, armed with the approval of a Colorado judge, a Santa Clara County district attorney’s investigator joined authorities in searching the Colorado home of Donna Auguste. She was not there at the time.

Prosecutors were beginning to get up in arms back in May. That was just the beginning. Last month, the grievance committee recommended that Field be suspended for three years. This is shocking to many because it shows that the bar committee has teeth and is downright earth-shattering to prosecutors because they may finally be held accountable for their actions. Here’s what the recommendations said about Field:

Field “still does not understand that he stepped far outside his professional obligations and committed serious misconduct,” states the filing of bar trial counsel Donald R. Steedman and Cydney Batchelor. The bar prosecutors also questioned Field’s claim that he will be more careful in the future, contending that Field “evinced no change in the arrogant attitude” throughout those cases, and up through the disciplinary hearing.

The bar contends the four cases demonstrated repeated “acts of dishonesty and an intent to subvert the proper workings of the criminal justice system.” In one case they cited, Field concealed from defense attorneys that he knew the location of a witness whom the defense was having trouble locating. Instead, he urged that defense efforts to win a new trial be rejected because the witness was missing.

Naturally, they’re not happy. The decibels have gone up several levels. So they’re doing what they do best – appeal try to change the law to restrict the power of the bar to suspend attorneys. I kid you not.

In the wake of a disciplinary hearing against a top local prosecutor, the union that represents Santa Clara County prosecutors and public defenders is asking the California District Attorneys Association to sponsor a bill that would essentially curb the power of the state bar to punish all lawyers.

[T]he draft calls for a two-year statute of limitations for bringing any charges against attorneys.

This two year statute of limitations is quite ridiculous, btw. Many convictions are found to have been wrongful years after they are finalized. In some cases, prosecutorial misconduct may not come to light for a while. If justice is the goal – as prosecutors love to say – then there should be no limit on innocence and certainly no limit on punishment for those that subvert it.

“Are we doing this solely in response to Ben Field? No,” said union president and prosecutor Kevin Smith. “But when a member gets tried, you learn how the process works, and this process is unfair.”

It’s also particularly ironic that the prosecutors are complaining that Field didn’t get a fair trial when he was on trial for depriving defendants of a fair trial.

There’s a reason there is a special section for prosecutors in the Rules of Professional Conduct. It’s not to let them know they are special and exempt from the ethical requirements, but to remind them that their duty is and responsibility is greater than that of the ordinary lawyer and that additional demands will be made of them.

Not whining about being finally held accountable for ethical violations isn’t one of them, but it should be.

Thanks to loyal reader LJS for the tip.

Say it ain’t so, David F.! Last night’s episode of Raising the Bar included a storyline about a client of Bobbi the public defender, who had been waiting two years for a trial, but which the prosecutor kept putting off because she wasn’t ready. Then the prosecutor bluffed and put the trial on the “ready list”, knowing full well that the client really shouldn’t go to trial. With me so far?

In another subplot, Zack Morris has a client who is (again) getting screwed [and there's this innovative tangent about how the warrant is defective because it doesn't state the chemical name of Ecstacy. Oh, this client is also the gay clerk's secret lover]. In order to convince the prosecutor to give him a misdemeanor, he agrees to convince Bobbi to not object to a continuance in her case where the guy has been waiting forever.

The last I remember of this subplot was that Bobbi told Zack to stuff it. I even remarked in the liveblog that that particular loose end had not been tied up and I wondered whether they’d pick it up in the next episode.

Perhaps it was toward the end of the show and I lost interest, but Miranda today informed me that, actually, the implication was that Bobbi agreed to continuance because Zack asked her to. This is hinted in the second to last scene, when they all congregate in the bar. As Zack enters, he sees Bobbi and the rabid prosecutor sharing a drink and laughing. Zack comments that Bobbi has a new best friend and she tells him that the prosecutor bought her a drink and that now Zack owes her.

I totally missed it. So chime in if that happened and if that’s your interpretation of the scene. Because if it is, then I’m really disgusted.

The implication, obviously, is that we trade cases. You give me something on this case and I’ll give you something on that case.

I can’t tell you how many times clients have told me that they felt they “got sold” in previous cases. That their lawyer “traded” them in for a favorable result in another.

Not only is it completely unethical, but also quite disgusting. We have a duty to each client and no self-respecting public defender that I know would do something like that.

For Feige to suggest that – and with the character of the intelligent, passionate and no-nonsense Bobbi no less – is a surprise.

Scott wrote a while ago about “the bank” going out of business. I don’t think this is the kind of bank he had in mind. If it was, then I’m glad it went out of business.

You absolutely do not – ever – compromise the rights of one client for another. You fight for both. I don’t care how difficult the prosecutor is. You lose all credibility when you start leveraging clients against one another.

I’m absolutely flabbergasted that David F. would include this in his show and insinuate that such things actually occur. This does nothing to dispel the commonly held misconceptions that we work for the state, we don’t care about our clients and we’re evil.

On the show itself: I think it has stopped being a legal show and has turned into a pure and simple drama that happens to be located in a courthouse. That’s how I will continue to watch it.

But not if this shit happens again.

Babel babble

One of the hurdles we have to deal with as criminal defense attorneys is the language barrier between us and our clients. A fair percentage of our clients don’t speak English or don’t speak it well enough for us to effectively communicate pertintent information.

The Court system provides for this by employing interpreters who stand next to defendants and translate anything that is being said verbatim. But that’s not good enough and doesn’t cover all communications between client and attorney. It’s also not fool-proof.

I could regale you for you hours with stories of interpreters that stretched the limits of their job description and started conversing with the clients. But I won’t – you’ve all been there.

Translating in court isn’t all that an interpreter is required for. What about letters to clients or phone calls or visits in person? Here, in CT, the interpreters office will send interpreters along on legal visits (if you ask for one) and will translate letters for you. This practice has inherent problems: the most important being confidentiality.

Any time you have a conversation with a client where a third party is present, confidentiality is waived. Anything you say at that meeting can be repeated in court. So what do we do? What do you do? Short of becoming fluent in Spanish and spanish-legalese, are there any options available? Without the assistance of the interpeter, one cannot communicate with the client, but if one does, then the conversation is not confidential.

Perhaps for those of you in private practice, there is an out. You use your own investigator who is fluent in Spanish. Those communications are probably still privileged. But for those of us in the public defender system, it creates a difficulty.

Ideally, there should be an independent interpreting service that enters into a contract with the pd’s office, wherein one of the conditions is confidentiality.

With the judicial interpreter’s office, there is only an implied confidentiality and, in reality, there is none whatsoever.

No one would actually try to use the information gained from such a meeting (or from “confidential” visiting rooms and telephones in prison) because the outcome would be a massive lawsuit and lots of headaches for the State, but that doesn’t mean that if push comes to shove, there actually is a cloak of confidentiality.

How does your State do it? For those in CT, how do you do it? Have you found a suitable workaround? Please share.

Gideon made his promise a long time ago and States began providing indigent defendants with counsel in criminal cases. Much has been said over the years about the promise being fulfilled and states not providing counsel, but the Brennan Center for Justice at NYU Law tackles the flip side of the problem in a new report [pdf]: just who is eligible for counsel?

The report examines guidelines across the nation and determines that there is no one consistent standard for determining eligibility. People who really should get counsel don’t and people who shouldn’t, do. SCOTUS has never defined what the eligibility standards should be, so States have been free to set their own. I know CT follows the Federal Poverty Guidelines, but other states do not. Some states disqualify defendants if they own a home or a car. Given the cost of private counsel, it may not be feasible for even people with “equity” to hire their own attorneys. This results in them either hiring bad lawyers or representing themselves and taking bad deals.

The report makes several recommendations and offers guidelines for eligibility determination:

• Screen people seeking the appointment of counsel to ensure that they are financially eligible.
• Apply screening criteria and processes uniformly, and commit them to writing.
• Ensure that screening is performed by someone who does not have a conflict of interest.
• Ensure that counsel is provided to those unable to afford it.
• Streamline screening to speed up the process and save money.
• Ensure that required procedural protections are in place.

The third recommendation above is the product of some interesting findings. For example, in some jurisdictions, prosecutors make the initial eligibility determination. (!) In other jurisdictions, they can challenge a determination of eligibility.

The report also suggests that it is unethical for the public defender’s office itself to make eligibility determinations, because it creates a conflict of interest.

Defenders’ personal interests come into play in several ways when they are asked to screen their own clients. For example, in order to provide adequate representation to their clients, public defenders must maintain manageable caseloads. For salaried defenders, and defenders with a contract to represent all defendants in a given geographic area, this may create an incentive to conclude that potential clients are ineligible for representation. Thus, an assistant public defender in Schuyler County, New York, told investigators from the NAACP Legal Defense and Education Fund “that he uses eligibility requirements to limit the number of clients he will represent.” Defenders may also have an incentive to reject cases that are time-intensive, controversial, or undesirable in some other way. The Schuyler County defender exemplifies this risk, too – he reported “telling eligible defendants that if they are willing to work out a deal with the DA that day, he will represent them.”

This is interesting and I’m not sure I agree. In CT, usually it is the investigator from the public defender’s office who does the intake and determines eligibility. This job is also charged to the public defender’s office by statute. I’ll have to give this conflict angle more thought.

The report does recommend, however, that if public defenders are making eligibility determinations, such determination not be made by the attorney who will represent the client.

Overall, I think these are good recommendations and my experience in CT has been that we err on the side of caution and try to represent as many clients as possible. It’s not like this will get any easier. According to a new report, prosecutions are up.

What’s your experience in other states?

I was going to write about the silly comments made by the attorney for the Judge that presided over Hood’s original trial, but that has been pre-empted by this late breaking news that Hood’s execution, set for tomorrow, has been stayed.

Tuesday’s reprieve was granted over a technical issue regarding instructions given to the original jury, and a hearing will be scheduled on that issue.

Btw, I love how instructional error is called a “technical issue”.

Now here are the asinine comments:

Earlier in the day, [attorney for Judge Holland] Mr. Boyd said Judge Holland is “saddened” and “disappointed” by the allegations of an affair at the time of the trial.

He also criticized Mr. Hood’s attorneys for filing a civil action in the case in an attempt to elicit a stay of execution from Texas Gov. Rick Perry, or to force consideration of new appeals in a criminal court.

“This is not about getting money damages for Hood or his estate,” Mr. Boyd said of the civil action. While lauding their “creativity,” Mr. Boyd noted that the case happened 20 years ago and in all those years, “nobody has filed a grievance between either of these two people.”

Right, it’s not about money, but “just the small matter of his life”.

Sorry Judge Holland, but I am “saddened” and “disappointed” by your attempts to obfuscate and to possibly deny this man a fair trial before his life is taken by the State.

Judges are supposed to recuse themselves from cases if there is even the slightest appearance of impropriety. Sleeping with the prosecutor in a capital case goes far beyond that. Everyone knows that there are some judges who are in bed with the State, but when it actually happens – literally – it should be enough to stop the trial or reverse the conviction.

The Judge that ordered the depositions of the judge and prosecutor was quite right in saying:

he was interested in preserving the integrity of the judicial system

Good to know that not all judges in Texas are like Judge Holland.

Also known as “mic in face make lawyer say lots of things”.

A long time ago I wrote two posts on the propensity of some lawyers to blabber too much in court, either with or without the media present (incidentally, two of the most popular posts here at apd).

Then yesterday I happened to read this post by the prolix (his word, not mine) David Giacalone at f/k/a. Essentially, he coins the phrase “Defenders Red Herring Credo” and is disappointed at the blatant nonsense put forth by a particular set of defense lawyers in defense of their clients – to the media. Read the post, which, while rather long, does not seem that way because of his writing style.

The thrust is this: Why are defenders so tied to making some form of statement proclaiming their clients’ innocence or ridiculing the State’s evidence to the media, no matter how patently absurd and does it not show criminal defense lawyers in a poor light and lead some credence to the general perception that we are not to be trusted?

Scott, in the comments, agrees with me for the most part that the less said the better and it probably is best if you say nothing at all. No one I know of was convicted because his lawyer said “not guilty” on the courthouse steps.

But he also threw this in:

But the one thing to remember is that the defense has no duty of fairness to the public. It’s only duty is to its clients within the bounds of the law.

I agree completely, but in the case of CSS*, I don’t think they’re mutually exclusive. Our duty to the client should encourage restraint on the courthouse steps. Just because the clients (or more likely the media) want some outward showing of their “innocence”, doesn’t mean we have to give it to them.

First, we should believe what we’re saying, because if we don’t, it comes across pretty clearly. Second, as lawyers thinking two steps ahead, we should be careful of what we assert, because people and the media and the internet have long memories and if we can’t prove it later on…well, that doesn’t look too good either.

Finally, and most importantly in my opinion, today’s 10pm news watchers are tomorrow’s potential jurors. Much has been written in the blawgosphere over the past months about what best convinces a jury. Credibility was oft repeated. A jury will be more inclined to believe your client’s version of the story if they’re more inclined to believe you.

But if they remember you as the smarmy lawyer they saw spout nonsense on TV, will they be more inclined to believe your next client? Maybe, maybe not. Do you want to take that risk?

*not to be confused with Cascading Style Sheets