Great Post by Mark Bennett

I'm being lazy today and outsourcing my blogging duties to Mark Bennett's Defending People.

He's got a really good article on the D.A.'s Office today.  Check it out by clicking here.

From Around the Web

Brian Rogers and the Chronicle finally jumped on board and started following the story of Pat Lykos investigating the members of the 185th Grand Jury with this article.  As usual, the Chronicle has given it a soft sell -- the linking caption on their home page points out that Lykos merely "used the web" to look into the Grand Jurors, and they also put David Jennings' blog defending Lykos on their home page, as well.

Ted Oberg had a good follow up to last night's story with this one from tonight.  I do have to point out that since Channel 13 now apparently has the Ibarra brothers as legal commentators, I understand why Channel Two settled for Wice.  (Just kidding, Brian.)  In all seriousness, Oberg once again is able to get at what is of real concern and that is Chief Investigator Don McWilliams' use of Accurint.

I wasn't all that familiar with the use of Accurint until today.  Fortunately, Mark Bennett has done a very good piece explaining how it works.  Check it out by clicking here.

A "Must Read" from Mark Bennett

Anyone with even a passing interest in the hearing on the Motion to Compel Rachel Palmer's testimony today in the 185th really needs to read Bennett's post today.  Go there by clicking here.

This means you media types, too.

Mark Bennett & The Time Lines

If you aren't a regular reader of Mark Bennett's Defending People because it isn't quite as wildly entertaining as mine is, you should be.  Both he and Paul Kennedy have been doing an excellent job of trying to keep up with the debacle with the 185th Grand Jury.

Yesterday, apparently, Pat Lykos posted on her website her own time line about the B.A.T. van scandal, and in typical Lykosian fashion, left out the parts detrimental to her and, according to Mark, flat out lied in other places.

You definitely should check it out by clicking here.

In Case of Emergency

Based on some recent events that have occurred around the CJC over the past few weeks, Mark Bennett and I came up with an idea that we wanted to share with our friends and family members of the courthouse. Two weeks ago, a member of the defense bar passed away from natural causes at her home.  Court coordinators knew that she had missed her cases on the docket that day, but had no one to contact to check on her welfare.  The efforts to check on her welfare and notify a relative were made difficult because there was no central location that had that information.

Unlike prosecutors who have the benefit of co-workers and supervisors that will notice almost immediately if they don't come to work without explanation, many members of the defense bar are solo practitioners.  Some don't even have a receptionist or office aide that can be contacted in case of emergency.

In an effort to respond in a "worst case scenario," Mark has created a data base that all courthouse personnel are welcome to utilize if they want.  The list will be completely confidential and at this point, only Mark and I will have access to it.  If you want to sign up for it, you can rest assured that it is not going to be added to an e-mail list for marketing purposes.  It will also not be something that is created so that a coordinator can call and find out why you haven't shown up for docket by 10:30.

The list will be maintained solely for the purposes of having a safety net in place for people in case of emergency.  If you have any questions about it, feel free to ask them.  If you have any suggestions, we'd love to hear them as well.

Thanks to Mark's work, the database is now up and running.  If you would like to put your information in it, you can do it whenever you want.

The link to get there is here.

Not-So-Simple Signs of Faith

Controversy has erupted within the ranks of the Criminal Justice System over the past week as it was brought to light that Criminal County Court at Law # 4 Judge John Clinton had apparently been mixing a bit of Church and State with some of his probationers.  The story landed on KHOU last night.  Both Mark Bennett and Paul Kennedy have done some very thoughtful and well articulated blog posts on the issue and I agree (in most part) with what they've written.

The issue seems simple enough on its face.

If a Judge is adding conditions that include reading a Christian-based book, it seems rather indisputable that he is no longer keeping Church and State separate, right?

Sure, a defendant on probation in Judge Clinton's court would probably love to read a book rather than do the manual labor of community service, but as Mark and Paul aptly point out, this could cause a whole host of side ramifications for people -- from the possibility of non-Christians having to do their community service manually because they don't wish to read the book or a non-Christian being forced to hide his true faith in order to get the book report as a probation assignment.  Clearly, this is prohibited under the Constitution and with good reason.

These issues were brought to the attention of Judge Clinton, who has agreed to not add those conditions to probation any longer.

Problem solved, right?  Apparently not.

Both Mark and Paul, who ironically both have the names of Apostles (and to my knowledge, there was no Murray the Baptist), have expanded on Judge Clinton's misstep by casting doubt on his ability to be a judge at all.  Mark points out:

"If the Judge is so unfamiliar with the First Amendment that this seemed okay to him until the judges' counsel told him otherwise, what hope is there in his court for the Fourth, the Fifth, or the Sixth?"

And Paul echoes the sentiments with:

"If a judge is going to be so cavalier as to ignore the First Amendment's prohibition of state-sponsored religion, how's he going to treat the Fourth, Fifth, and Sixth Amendments?" 

Okay guys, let's not entirely freak out here.  I'm not here to get into a debate about how many wars have been waged in the name of religion or the potential for the End of the World if we still include the words "Under God" in the Pledge of Allegiance, but are we really insinuating that because Judge Clinton let his religious beliefs bleed into a probation condition that he's going to be cool with violating all aspects of the Constitution?

Isn't that kind of akin to saying that each and every one of our shoplifting or DWI clients is inevitably going to turn into a serial killer?

We all believe in something.  Even if that is a firm belief in not believing.  And whether or not you are Christian, Jewish, Muslim, Hindu or whatever, your personal beliefs or lack-thereof affect every thing you do.

I'm not an outwardly religious person.  I have a tattoo of the Cross on my left arm and I've worn a Cross necklace around my neck pretty much since I was 16 years old.  They aren't fashion decisions for me .  They are just the simple signs of faith that mean something to me. I usually thumb through the Bible every morning looking for some inspiration, and I try to teach my little boy those things that I was taught as a child.

But I don't go to Church, and I usually find myself wanting to smoke a cigarette every time I read something in the newspaper about what is being said or done by certain religious organizations.  So, I'm kind of cross-brand version of Christian that nobody can really support, aren't I?  I'm not vocal enough for the Far Right, and I'm too entrenched in my beliefs for the Far Left.  My first ex-mother-in-law told me she was sure that I worshipped trees.

But the point being is that my beliefs filter into what I do every day.  If someone wants to talk to me about religion and their beliefs, I will gladly tell them why I believe.  If I think it will help somebody going through a rough time, I'll share moments of inspiration that I've had in my life.  And no, I'm not a Judge or any kind of government employee (any longer), but I tend to look at Judge Clinton's actions as something that should have been stopped, but nothing that should condemn him as a person or a Judge.

There are law libraries full of cases based on rulings saying that a Judge screwed up.  If every one of those Judges were suddenly deemed unqualified to be a Judge then there literally would be no Judges.

But we come out swinging hard against Judge Clinton because his decision crossed the line between Church and State and the protections of the First Amendment -- therefore, it is inevitable that he will probably violate all the Amendments that follow.

Give me a break.  Judge Clinton made a mistake of law that was a reflection on his belief in God.

You wouldn't be persecuting him just because of his choice in religion, would you?

Let the wailing and gnashing of teeth begin in response to this.  I'm already getting in duck and cover mode for what's bound to be coming from Rage.

Please Vote No on the Texas State Bar Referendum

EDITOR'S NOTE:  Unless you are a practicing attorney, this article is going to mean nothing to you.

Back when I was a prosecutor, I generally paid little to no attention to what the State Bar of Texas had going on within its ranks.  The Office made it easy to do that.  When it came time for Bar Dues, the Office paid them.  If there were elections, or Bar Poll rankings, there was usually an Office-wide e-mail letting us know that we needed to vote or otherwise participate.

Other than that, there was very little interaction.

That changes when an attorney goes into private practice.  You no longer have someone else to act as a liaison between you and the State Bar, and you have to keep a close eye on those votes and referendums that they propose.

I'm telling you this because first thing tomorrow (Tuesday) morning, voting begins on the State Bar's 2011 Referendum on the Texas Disciplinary Rules, and even if you are a prosecutor, I'm hoping you will take time out of your schedule to vote "No" on them.

CLICK HERE TO GO TO VOTING.

If you are anything like I was when I was a prosecutor, you are more than likely asking yourself "why the hell would I care about a bunch of rules that only pertain to lawyers in private practice"?

The simple answer is because sometimes you might end up in private practice.  Even if right now you are pretty sure you are going to be a Prosecutor for Life.

Now, the rules that concern me aren't the ones prohibiting sexual contact with clients.  If a lawyer is stupid enough to enter into a romantic relationship with a client or (God forbid) take sex as a payment for services, then that lawyer has got more freaking problems than the State Bar can regulate.

The ones that concern me are the others, which, if implemented would basically collapse private practice as we know it.  If you are hoping to someday come into private practice, the Regulations that the State Bar's referendum is currently trying to pass will make it more complicated and more restrictive.

And trust me, starting a new law practice is already complicated as it is.

Mark Bennett has been doing an excellent job of covering and analyzing why the proposed new rules are so bad.  Starting with the first proposition that would essentially ban the taking of flat fees from clients an attorney represents.  As Mark put it, the effect of this would ensure that "only the wealthy will be able to afford competent counsel in criminal cases."  Paul Kennedy also does a good job of illustrating what the problem is with this post.

The new rules would, in essence, prohibit a criminal defense attorney for quoting a fee for representation and replace it with hourly billing that (in most cases) is going to cause costs to go up for a person charged.  

For example, let's say I typically quote a client a flat fee of X amount of dollars to represent them for a Possession case.  I think it is the fair amount.  If I resolve the case quickly -- great for me (in a business capacity).  But if I get into a quagmire and I spend a lot more time than I had anticipated (and quoted my fee based on), then the client isn't going to get screwed by me going over (a time) budget.  He has a pre-arranged fee and he isn't obligated to pay me any more money.

The new rules would prohibit that and require hourly billing.  The downfalls of that are numerous.  I'm not going to re-invent the wheel by regurgitating what Mark and Paul (and a host of other attorneys across the State) have written, but I strongly encourage you to educate yourself to the Referendum.

Once you do, I'm pretty sure that you'll see that a vote of "No" is the only appropriate vote if you think there is even the slightest chance that you will ever end up in private practice.

Collegiality, Diplomacy, and the Aspiring Yodas

A week or so ago, I sat down and had drinks with my friend, Pat McCann, and a prosecutor-who-shall-remain-nameless. There was nothing unusual about the fact that I was having a beer with Pat, other than we were having the drinks over at Picazo rather than Char for some strange reason. During our conversation, as we often do, the talk turned to the overall state of affairs at the Criminal Justice System, and Pat made the comment that over the past year, he felt that there had been an increase in the "collegiality" between prosecutors and defense attorneys around the CJC.

I agreed with him, and we talked about the different factors that had contributed to that, which included Rosenthal's departure, the subsequent vulnerability of the HCDA office, Mark Bennett's and my respective blogs, and the passing of some of our friends from the Defense Bar.

Now, before some of you start yelling "how can there be collegiality since prosecutors and defense attorneys have opposite purposes?", I would argue that the common purpose is achieving Justice within the System. We may not always agree with what True Justice is, but both sides are working toward that goal. Prosecutors, contrary to popular belief, are not trying to lock up every person and throw away the key. Defense attorneys, by contrast, are not trying to help absolve the criminal population of ever accepting responsibility.

We work towards Justice -- all of us, in our own way. The collegiality exists, and I've never been more aware of it than when I was welcomed to the Defense Bar earlier this year.

Of course on both sides of the Bar, there are always going to be examples of those who have somehow abandoned the idea of collegiality and replaced it with bravado, arrogance, and often, rudeness. Some prosecutors do it. Some defense attorneys do it. Hell, even some judges do it, I suppose.

It has been my experience that those members of the legal profession often exhibit rude behavior in their younger and less-experienced years. When you've gone to trial and you've both won and lost many tough cases, you don't really have the need for bravado. You are comfortable in what you've accomplished and you don't really feel the need to go around puffing or treating your opposition like crap just to make yourself feel better.

I would like to think that by the end of my career as a prosecutor that I was known for treating everyone with respect, but I know that in my younger years as a prosecutor I could be quite a tool. I remember the day I realized what a tool I was being.

I was giving James Dyer (whom I still fondly refer to as "Chewbacca") a mean-spirited and rude speech. I don't remember what it was about or why I felt my rant was necessary, but I remember what he said to me. He looked at me, sadly, and said "I don't know what I did to make you so mad at me, but whatever it was, I'm sorry."

I felt like a bully and jerk (which I was). There wasn't any need for it, and in his understated way, Mr. Dyer pointed that out to me. If there was ever any "turning point" in my career and who I wanted to be as a prosecutor or a criminal lawyer, in general, that's the moment I can point to.

Prosecutors are normally the ones who get blasted for their rudeness and their arrogance. Nobody has been either rude nor arrogant to me since I left the Office, at least not yet, but I have heard a bit of puffing here and there. But other defense attorneys assure me that it will be coming soon.

Perhaps they are right.

But I think it is worth asking the question of whether or not both sides of the Bar are often contributing to the lack of collegiality. Although James Dyer responded diplomatically and effectively to me many years ago, I wonder if all of today's Defense Attorneys are as interested in such an approach today. Or will there still be some who would prefer to throw diplomacy by the wayside and go on the attack.

Although he is my good friend, even Mark Bennett has taken some potshots at me and my ability to "think like a criminal defense attorney". (NOTE: Don't get me started on that Rage Judicata guy who doesn't even practice criminal law but seems to think he was sent to the Blawgosphere to re-invent the the CJC. ) Even today, in his latest post, Bennett is attacking a former judge for daring to be a defense attorney. Mark notes:

A prosecutor is an advocate; a former prosecutor who spent his prosecutorial career screwing the accused has that fact to fall back on in justification. A judge is not an advocate; a former judge who spent her judicial career as another prosecutor in a black robe needs a change of heart before she is ready to defend the accused.

I guess my question is, who exactly appointed Mark to be the Yoda of the defense bar? Does being President of HCCLA really make him the Gatekeeper for those who are or are not worthy of being a true member of the Defense Bar? Or, is Mark, in his attempt to be provocative, just being a tool (like I was being to Mr. Dyer)? The things that he (and folks like Mr. Judicata) post on the web have questioned my ability to do my job based on what I write.

But isn't it a bit questionable that they've never seen me practice?

My clients (whose opinions actually matter) have registered no complaints with me thus far.

I'm going to keep on writing the way I write, and that includes saying that Harris County prosecutors are the best in the Nation. If you are being prosecuted by some of the best, you are definitely going to need some of the best to defend you, too. (See how that works?)

The vast majority of both the prosecutors and the defense attorneys I know will continue to be kind, professional, and diplomatic to me as they always have been.

Others, will continue to do something different, I suppose.

As for me, I think I may try to be a little bit more like James Dyer.