10 years of Blogging

The other day I was browsing the internet and checking out some different blogs when I noticed that Scott Greenfield was celebrating his 11th year of legal blogging at Simple Justice.  First off, congratulations to Scott for writing the best legal blog on the web for 11 years.  He publishes several well-written, scholarly and insightful posts a day.  I am in no way, shape, or form comparing my blog to his here, but it did make me realize that I just passed my 10 year blogging anniversary and had failed to notice it.

My first blog post on this site was January 8, 2008.  Since then, I've written over 1200 posts, had almost 19,000 comments, and 3.5 million page hits.  Although the posts are all mine, some of those comments and page hits actually came from other people!  Looking back at some of my posts, a lot of the topics and a lot of the writing are cringeworthy.  Others are not so bad.  Every once in a while, I find one that I'm actually proud of.

I started the blog when I was a felony chief prosecutor in the 339th District Court under Judge Caprice Cosper.  I was married to a fellow prosecutor and we had a two year old son.  That seems like a different lifetime ago.  Today, I've been a defense attorney almost as long as my career as a prosecutor lasted, I've divorced and remarried, that 2 year old is now 12 and has a 4 year-old younger brother.

Blogging grizzles a man, I tell ya.  Makes him fat, too, apparently.

This blog began anonymously, shortly after the beginning of the e-mail scandal that would ultimately cost then-District Attorney Chuck Rosenthal his job.  The racist and sexist e-mails from our leader had led to a complete backlash against the District Attorney's Office as a whole.  We were getting slammed in the Chronicle and every other media outlet.  At one point, when picking a jury I started asking potential jurors if they already had decided that they hated the State because of who our elected D.A. was.  The answers were distressing.

The public perception of prosecutors had flipped from the "good guys" to the "bad guys" in the space of a few e-mails, and it just seemed to get worse every day.

So, I started writing in a small attempt to push back against all of the negative attention we were getting.  It started slowly at first -- like dipping a toe in the water to see how cold it was.  I didn't want to announce whether or not I was a prosecutor or a defense attorney, because I didn't want to get fired for what I was writing (that worked out well in the end, let me tell ya!)

But how do you publicize your blog without blowing your super secret identity?

Simple -- you just casually mention it to the most talkative person you know and then wait thirty minutes. (Thanks, Alexis Gilbert Bruegger!) By the end of the day, word of an Anonymous blogger was all over the CJC.  It was both exciting and terrifying.

And then came Mark Bennett.

Mark had been running his blog Defending People for some time before I wandered into the blogging neighborhood.  I enjoyed his articles and reading them very much made me want to write, as well.  I had a feeling that once he got word that there was an anonymous blogger out there, he would engage.  I was correct about that.  Mark absolutely engaged the anonymous blogger.

And then he threw out an ultimatum:  tell me who you are privately, or I'll find out on my own and out you publicly.

Well, shit.  That backfired.

So, I gave Mark a dollar.  Told him he was now my attorney and confessed my secret identity.  True to his word, he kept it a secret until I got fired went public.  Over the past ten years, Mark's writing has gone on to be recognized on the national level for some of the great work he's put together.  I've kept my writing on local topics for the most part.  I've semi-jokingly said that my blog was The National Enquirer compared to his Wall Street Journal.  But I would be very very remiss if I didn't point out that this blog would have never existed if it weren't for Mark.

And, of course, Pat Lykos.

During the 2008 election, this blog went nuts with comments on the D.A. race.  In the aftermath, when people would ask me if I was surprised that Lykos fired me, I would always respond, "Not really. I mean, I did compare her to a Bud Lite Lizard."  Politics are such nasty things.

The biggest misconception that I think people have had about my outlook on the Lykos Administration was that I just missed the "Old Guard Ways" of the Holmes/Rosenthal days.  That seems to be the standard refrain from people who disagree with what I write.  They forget that Lykos was an extremely controversial judge who brought her self-aggrandizing and paranoid tendencies to the D.A.'s Office.   And man, those tendencies gave me so much material to work with.

I think that's why I'm so disappointed with the way that Kim Ogg has been running the Office lately.  Lykos took over like an enemy combatant and she wasn't wrong when she thought the rank and file disliked her.  Kim listened to Lykos too much when she took over, but she didn't need to.  The prosecutors didn't hate her like they hated Lykos.  At least, they didn't until she fired about 40 of their co-workers.

But I digress.

Over the years, this blog has had highs and lows.  The motivation to write has ebbed and flowed and the readers and commenters have done the same.  At times, I've thought of scrapping it because it served no real function anymore, only to have something come up that made me really motivated to write.  I've made some amazing friends through the blog and I've made some pretty angry enemies.  I hope that, on occasion, I've helped effect some positive changes here and there, but who knows?

In the end, I keep writing this blog for (more or less) the same reason that I started writing.  I think that the Criminal Justice World is the most fascinating aspect of American domestic life.  It is a convening of heroes and villains, tragedy and triumph, brilliance and profound stupidity, hilarity and bereavement.  I can't imagine being involved in any other profession.  Only those of us who practice within it (not just write about it from the outside looking in) can truly understand what it's like.

This blog just tries to show that to the outside world.  I know I may miss the mark on conveying that effectively more often than not.

But for the past ten years, it sure as hell has been fun trying.

HCCLA and the Former Prosecutor

As I've always said (and truly believed), Harris County, Texas is home to some of the greatest criminal litigators in the Nation -- on both the prosecution and defense side of things.  Therefore, it stands to reason that Harris County would also be home to one of the best (and largest) criminal defense lawyers' association in the form of the aptly named Harris County Criminal Lawyers' Association (HCCLA for short).

Historically, HCCLA has been a highly respected organization with a Who's Who of distinguished and prominent criminal defense attorneys, as well as Lloyd Oliver, on the list of past presidents.  They sponsor numerous CLE seminars that are free to members, have a Strike Force to help attorneys who find themselves on the wrong side of a contempt charge, and a Christmas Party that is the social event of the Criminal Justice Season.

And then there is the Listserve.

In theory, the Listserve is a message board for attorneys to assist each other with legal issues or to ask for advice.  Oftentimes, that actually is what it is used for, and longtime defense attorney Troy McKinney serves as HCCLA's greatest asset when it comes to giving outstanding legal advice to those who seek it.  The Listserve is more often used for gossiping and complaining about prosecutors and judges, and although everyone on the Listserve is sworn to utter secrecy, information leaks out of it like water through the Titanic.

When I left the D.A.'s Office, Mark Bennett and Tyler Flood (who is, coincidentally now HCCLA's President) strongly encouraged me to join the Group.  I did, and I was glad that I did.  I became involved and after a year or so, I ran for the Board and won.  A year or so after that, incoming President Todd Dupont asked me to run for Secretary, which I did and also won.  Despite having a baby on the way and dealing with chemotherapy, I did the best I could with the position.  I co-hosted HCCLA's weekly television show, Reasonable Doubt.  I even planned a CLE from my hospital bed with my then-friend and President-Elect Carmen Roe sitting in the room, helping me.

But my position on the Board didn't sit well with some of the more senior members of HCCLA.  One in particular really didn't like me working as a legal consultant on Cold Justice.   When I ran for Vice President the following year, my good friend Carmen and some others made sure I had opposition.  Incoming President Roe wrote a mass email encouraging people to vote for Mark Bennett over me.  Somehow, I wasn't included on the e-mail and didn't find out about it until somebody else told me.  To this day, I've never felt more betrayed by a closer friend.  We haven't spoken since.

Mark won the election, and I was the first to congratulate him.  I then resigned from HCCLA over his encouragement not to.  I knew it looked like sour grapes, but I just couldn't bring myself to pay membership dues to an organization run by Carmen Roe and others who clearly didn't want me involved in it.

That was three years ago.  I didn't write about my reasons for leaving then.  I still thought that HCCLA was a good organization.  It just wasn't for me -- clearly.  Despite my personal experience, I still encouraged new criminal defense lawyers to join.

But I was reminded of my negative experience with HCCLA this week after the organization's treatment of recent HCDA alum, Nathan Hennigan.

Hennigan, who was one of the 38 prosecutors fired not offered positions under the Ogg Administration, was vocal in the wake of his termination.  He was a senior prosecutor and a District Court chief with a good reputation with the vast majority of the Defense Bar. Shortly after Nathan's termination, the hosts of Reasonable Doubt invited Hennigan to appear on the show and share his thoughts.

The next day, the hosts told him they had to rescind their invitation because someone high up in HCCLA didn't think he needed to be on the show.  The reason he was given at the time was that he wasn't an actual member of HCCLA and therefore their rules prohibited him from being on the show yet.

Of course, that whole thing about having to be a member of HCCLA to be a guest on their show is a bunch of crap.  I should know.  Not only was I one of the hosts on the show for a good chunk of time, I was also invited to be a guest on the show two weeks ago.  As noted above, I'm not a member, either.

Hennigan applied to become a member of HCCLA and his membership came up for a vote before the Board of Directors this week.

His membership was rejected.  When he shared the rejection on his Facebook page, the CJC community went nuts.  Several Board members posted that they had voted for him, although nobody gave any details as to what had happened.  Other members expressed outrage that Hennigan's membership hadn't been approved and encouraged him to reapply.

Obviously I wasn't there, but as I mentioned before, confidentiality within HCCLA is about as leak-proof as the Titanic.  There has been word that a senior defense attorney sent one of his lackeys to convey the message that if Hennigan were granted membership, the senior defense attorney would quit the organization (God forbid).  What happened after that is anybody's guess.

The thing that is interesting about this is that nowhere in HCCLA's Mission Statement does it mention that it only helps defense attorneys that are universally loved.

And apparently, in HCCLA, some members are most definitely more equal than others.

At the end of the day, there are plenty of us who are not members of HCCLA that are doing just fine on our own.  That doesn't mean it isn't a good organization, but it isn't critical to survival.  The Texas Criminal Defense Lawyers' Association offers outstanding support and help like HCCLA does, just without the petty backroom drama.  The Houston Bar Association also has a drama-free Criminal Law section.  As of this writing, my understanding is that President Flood is much more concerned about figuring out how the details of the Hennigan Vote got leaked rather than the larger issue of why one attorney gets to dictate membership.

Ultimately, I'm not sure why any former prosecutor would want to be a part of HCCLA if this is going to be the example the organization sets. 

Blog Spammers [UPDATED]

When I first started blogging, I realized very quickly that I could not run a blog that had no filtering process for the comments.  Back then, there was some Pat-Lykos-supporting-jackass named Kimberly Ann White that kept attempting to post Kelly Siegler's home address on my blog and Mark Bennett's blog.

Over the years, there have been pros and cons to moderating comments.  I try to post everything that people write in as long as it isn't personal and it isn't flat-out lying.  One of the other things that I don't publish is blatant spamming.

Not a day goes by when I don't get some attempt to publish a comment on the blog that reads like it was written by a graduate of Don Hooper's School of Spelling & Grammar.
For example:

Usually, the spamming author will have a link back to an attorney or bail bond company that is nowhere near the Houston area.  The attorney web sites will generally be some sort of mass marketing "DWI lawyer" from Chicago or something or other.  It is annoying, but not really a big deal.

Recently,  I've been getting bombarded by spam blog comments (including the ones shown above) that link back to a local attorney.  I e-mailed both Mark Bennett (who has consistently waged war against attorneys who outsource their advertising) and Paul Kennedy to see if they had been getting similar e-mails.  Paul said he had not, but would be excited to get an additional reader of his blog besides just me.

Mark encouraged me to both publish the comments as well as do a post on the lawyer.  I was torn, because I don't like rewarding bad behavior or giving publicity to somebody who is just shamelessly trying to get some free advertising.  However, Mark correctly pointed out that the idiocy of the website needed to be exposed.

UPDATE:

So I wrote a post about that attorney and it got very mixed reactions.  Some said I went over the top.  Others said it was the only way to make a point.  I spoke with the attorney in question, and ultimately he fired the company that was doing the blog spamming.

I was glad to hear that, so I took out the part of this post that criticized the content of his website.  I'm sure that will get mixed reactions, as well.  Oh well.  That's my call.

In the meantime, I hope that all attorneys who read this blog will remember that our profession takes enough hits in the reputation department as it is without the help of internet marketers who engage in spamming.  

Three Related Elections

While I'm quite comfortable writing about the Elections that are for positions within the actual building of the CJC, I'm much more reserved in commenting on races outside of it.  I don't usually comment on Nationwide elections or even Statewide ones.  I don't talk about the various Courts of Appeals because I don't do Appellate Law.

I make exceptions every once in a while when a member of our CJC community (whom I know well) is venturing off the lily pad to run for a non-CJC office.

This year, I profiled Mark Bennett's race for the Court of Criminal Appeals and Ann Johnson's race for State Representative.  I did not do a post on HCDA prosecutor  Gene Wu's run for State Representative, but not because I don't like Gene.  I just don't know him as well as I know Mark and Ann.

In the end, Gene should be grateful for the lack of attention, as it appears my support may have been the kiss of death for my friends outside of the CJC.  Gene won his race handily.

Congratulations to Gene on his new job description and his lovely new bride, Miya Shay.  Gene is passionate about helping out this community and I have no doubt that he will be a persistent and driving force in politics for years to come.

In regards to Ann's and Mark's races, I'm so very proud of both of them for the races they ran.

Anyone remotely familiar with Ann's campaign knows that she redefined the word "tireless" for the past several months.  She poured her heart and soul into making phone calls, attending events, and walking neighborhoods.  She ran for all of the right reasons and she had a grassroots campaign that loved her for it.  She is a true example of what I wish all politicians exemplified.

Brother Mark ran for the right principle, too.

He's a smart guy and knew that running as a Libertarian was not likely to carry an election for him -- especially not one where he went mano y mano in a Statewide race against an incumbent Republican.  But as he articulates very thoroughly in this post on his blog, winning wasn't the goal -- getting his voice heard was.

Mark's point was to show that a Third Party candidate can directly affect the two major parties in their races.  Mark got 22.1% of the vote.  There was no Democratic candidate.  If there had been, Mark would have been a game changer.

You may not always agree with Mark Bennett.  Lord knows, I don't.  But I think you can agree with the principle that there is something worth discussing when it comes to taking judicial elections away from partisan machines.

I will be interested to see whether or not Mark takes his Libertarian campaign to a county-wide race in 2014.  He may just be onto something.

Congratulations to Gene Wu on his victory and congratulations to Mark and Ann for their well-fought races.

All of you have so much to be proud of.                                                                

One Other Recommendation - Mark Bennett

I was made aware last night that I had forgotten to chime in on Mark Bennett's race for the Texas Court of Criminal Appeals, Place Seven.  I have to confess that I do not follow the Court of Criminal Appeals as far as "which judge votes which way," so I can't really speak to anything about Mark's opponent.

I can speak to Mark, however.

Mark has always marched to the beat of a different drum.  He's made me mad on occasion -- quite furious, actually.

He's also been one of the most intellectually honest and true friends that a person can have.  I don't mean one of those friends that will always go grab a beer with you and tell you how you didn't mess up what you think you just messed up.  He's one of those friends who will always be there to help you because you actually really did mess up and he's going to stand beside you when nobody else will.

I need only to guide you to this post to let you know of one of those times that Mark Bennett was a friend to me.

Mark is guided by his intellect and his ethics, and it occasionally rubs people the wrong way.  I've seen him tick off people from pretty much all sides of the courthouse -- Judges, Prosecutors, fellow Defense Attorneys.  Yet, I've never seen him back away from his position if he believed himself to be right.  Mark has no burning desire to be popular -- and he's doing great at that.  Just kidding, Mark.

Mark is running as a Libertarian for Court of Criminal Appeals, Place Seven.  He knows that he has little to no chance of winning without running under the Republican or Democrat banner.  However, in typical Mark fashion, neither one of those parties accurately represents his beliefs, so he won't join them.

His principles matters more to him than winning an election.

Think about that last sentence for a second.

Wouldn't the world be a better place if all politicians felt the same way?

Good luck, Mark.  You have my vote and my admiration.

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.

The ABA Blog Poll

My good friend, Mark Bennett is in the running on the ABA Journal's Top 100 Blawgs regarding criminal justice.

Help a local guy out by clicking here to vote for Mark's blog for #1 so we can show them that those of us who practice in the Harris County Criminal Justice Center support our own.

Vote early and vote often!

Perhaps Some Just For Men would Help

Ah, poor Mark Bennett.

The polls closed on the "Guess the Age" vote I did in honor of his birthday last week, and the majority of you (29%) guessed that my friend was older than 46 years of age, while only a solitary vote thought he was 35 years old (for which, Mark would probably like to thank his lovely wife, Jennifer).

Well, folks, the gray hair actually disguises the fact that Mark is a relatively youthful 38 years of age. Yes, I was a little shocked, myself. Here I was considering Mark to be some sort of aged speaker of wisdom (much like Yoda), and I find out he's barely two years older than I am!

Somehow, I'm thinking Mark needs to incorporate his age into the portion of his voir dire on Reasonable Doubt, for future reference.

In the meantime, Happy Birthday Mark!

A Good Man

Remember that guy in high school that you were friends with that was your "bad friend"?

The one who smoked weed (and probably did more) earlier than anyone else? The guy who had actually been to Juvie or Rehab? The one who everyone else thought was so cool because he was the guy who just didn't give a crap what his parents, teachers, or the police thought? The James Dean of your high school? The one that the girls wanted to date to piss off their parents, and the one that guys wanted to be like to show that they could be "bad"?

That guy in high school was my best friend. For the purposes of this post, I'll just call him "Jim".

Although we lost touch a couple of years after high school, and actually had some personal differences that led us to not talk to each other for about eight years, you don't forget the people who held the title of "best friend", no matter how old you get.

Today, after having not seen nor heard from him in eight years, Jim showed up at the Harris County Criminal Justice Center looking for me.

When you practice criminal law, and an "old friend" looks you up out of the blue, the reason for it 99.9% of the time is that they are in legal trouble and want some free advice. And given the fact that I hadn't heard from him in a long amount of time, and the fact that he was never really one to turn his back on any drug in the book, I pretty much assumed that was why he was looking for me.

I found him on the first floor by the elevators. He looked fine. He seemed fairly relaxed and he looked just like he did in high school. We exchanged greetings and went to a witness room to talk.

"Are you in trouble?" I asked him.

"Nah, man," he said.

"What's going on, then?"

"Man," he said. "I knew you were probably the only person who could help me."

"With what?"

"Man," he said, as serious as he could be. "I've finally figured out that since I was two years old that my dad has been conspiring with the CIA, the Secret Service, and Queen Elizabeth to kill me. They've been injecting isotopes into my body that allow them to track what I do and control me. My dad can even see everything I see through my eyes."

He meant every word he said.

My best friend from high school, in other words, had become severely mentally ill.

And I had no idea of how on Earth to help him.

It's a strange feeling to sit there across from someone that you used to know like a brother and see that the person he used to be is no longer there. His mind rotted away for whatever reason, whether it be hard core drug use, or just genetics.

It's a painful feeling. It's a hopeless feeling. It's a feeling that I wasn't equipped to deal with in any productive way.

So I quickly thought about who I knew that could possibly help me with the situation. Who would be sympathetic, understanding, and helpful.

I thought about it for about ten seconds.

And then I called Mark Bennett.

Mark answered the phone in the hushed tone that told me he'd been in a courtroom when I called. I asked him if he was in the CJC at the moment, and when he said that he was, I told him I needed his help.

He was there in under five minutes.

I introduced him to Jim, and Mark took over from there.

He communicated with my friend in a way of patient understanding that only somebody who had dealt with the mentally ill and understood what they were going through could do. He didn't condescend to him. He was candid with him that what Jim was saying was logically implausible. But he didn't belittle Jim for what his far-fetched thoughts were.

He spoke to him in words that Jim could understand. Ultimately, Mark told Jim that he needed psychiatric help and that "even if a doctor doesn't believe what you are saying, he can probably help make you feel better about coping with it. Wouldn't you like to feel more at ease?"

And Jim did.

I would like to tell you that we walked Jim down to a psychiatric institute where the people took him in and everything was going to be okay.

But I don't know that everything will ever be okay with Jim.

Mark got me the name of a psychiatrist who specializes in dealing with someone with Jim's type of problem. I talked to Jim's dad this afternoon, and passed along the advice that Mark had given me.

Will it help Jim? I don't know. Frankly, I doubt it.

But the point is that when I needed help, and when my friend needed help, Mark Bennett showed up in the blink of an eye. He stepped in where I would have miserably failed, and dammit, it was pretty freaking impressive.

My dad once told me that the highest compliment that one man can give to another is to call him a "good man".

Mark Bennett and I have disagreed over many topics. He's been blasted on his opinions by me and numerous prosecutors on this blog, and on his own.

But folks, let me tell you something.

Mark Bennett is a good man.

The Prosecutor Translation

Mark. Mark. Mark. Mark. Mark. You were so nice the day after the election, and now you've hauled off and written this crap.

Now, I've grown accustomed to your article comments when you, Steve Gustitis and that Scott Greenfield dude start applauding yourselves as Defense Attorneys like you were from the League of Extraordinary Gentleman, but come on, who appointed you the Gate Keeper to who and who is not going to translate well from the job of prosecutor?

Now, granted, you hedged your bets and said Kelly might end up being a good defense attorney, and then you added:but give ‘em all a few years of proving that their hearts are in the right place as defense lawyers before you even think about trusting them with your freedom.

Isn't that a bit of a Catch-22 for the poor ex-prosecutor?

Now, you clarify your position in your comments that you aren't threatened by the business competition because there are plenty of cases to go around. I agree with that. Most prosecutors (like allegedly myself) don't know doodly-squat about the Federal system, and are pretty much restricted to having a good base of knowledge in the State courts. You, on the other hand, have spent a significant amount of your career, um, fighting the Feds (and, on occasion, the Fashion Police).

But when you say that a criminal defendant can only be well-served by a "true believer", and thus a new former-prosecutor just won't be as good, I think you may be out of your mind.

I've always felt that extremism in any field is foolish and frightening. The Radical Right scares the pee-pee out of me every bit as much as the Radical Left.

The same applies to prosecutors and defense attorneys.

Any prosecutor that believes that "everybody charged is guilty" is as foolish as the defense attorney who believes that every client they have is factually innocent. If you ask me, neither is going to be that swell of an advocate when it comes to trial time.

That type of zeal leads to tunnel-vision, and tunnel-vision leads to mistakes. Sometimes enormous mistakes. For a prosecutor who makes the "facts fit his ideas", the potential for injustice is obvious.

But how about the "true believer" defense attorney who tells his client: "I don't care if you have three videotaped confessions, and the murder was caught on videotape, and the State is only offering you 10 years. If you tell me you didn't do it, then I say, let's tee it up!"

I would suggest to you that a person charged with a crime is best served by an intelligent, well-spoken, hard-working pragmatist. One who can go in and assess the case from both the defense side and the State's side, and offer good advice. If I got charged with a serious crime, I would want somebody that I knew wasn't going to bullshit me, even if I was bullshitting them!

True Believers start thinking of themselves as bulletproof, and that's not good for anybody.

If I ever find myself in trouble with the law, give me a good realist who knows how to fight over someone who thinks that their righteous indignation will carry the day.

(NOTE: As an aside, check out this post by Harry Lime for a great write up on Kelly Siegler. She's clearly the James Bond of prosecuting.)

Real World Experience

Over the past couple weeks, Mark Bennett has been extolling the virtues of "real world experience" before holding any sort of job within the criminal justice system. I would quite describe him as "blasting" prosecutors that don't have prior experience, but he certainly makes his opinion known that he believes they are operating at a disadvantage because they lack some fundamental understanding of life.

In his write-up over his recommendations for the 174th Judicial Race (before March 4th) he advocated John Jocher and Terrance Windham, largely because of their real world experience.

So my question for the day, is (while acknowledging that real-world experience is always valuable), does it mean that an ADA can't do their job effectively if they took the straight path from high school to college to law school to D.A.'s Office?

I pretty much took that route, and I think I turned out okay, so there's your answer.

Okay, well, maybe we can discuss it a little more than that.

What I observed in law school was that the students who came there after having spent time in the "real world" generally did a lot better in law school than those of us 22-year-olds. They understood business and taxes and other things that I didn't. And as a side note, they drank a lot less than us 22-year-olds, too!

However, Mark kind of implies in some of his writings that young ADAs are too sheltered (and thus can't do as good of a job), and I have to strongly disagree with that. In my opinion, nothing opens your eyes more to the fact that life is probably a lot more wild than you realized growing up over on Whisteria Lane than being a prosecutor. I mean, I understand where Mark is coming from, but I don't think that having previously held another job is any type of prerequisite for being a baby prosecutor.

Mark laments that many of the Misdemeanor Chiefs, when they return to Misdemeanorland from their first stint in felony don't have the experience that they should to actually be leading a court.

That point may have a little more merit to it, but I think it all depends on the Misdemeanor Chief and the "real world experience" that they got during their felony stint. I also think that the way a Misdemeanor Chief leads his or her court is usually directly correlated to what they learned from their first felony chief. If their felony chief wasn't reasonable and not open to hearing a defense attorney's version of events, then there was a high likelihood that the new Misdemeanor Chief would be the same way.

My felony chief was so laid-back that I occasionally had to check him for a pulse. He was also a great teacher who offered good advice and let me try some aggravated cases my first time up.

I would like to think that when I went back down as a misdemeanor chief that I was pretty laid-back, as well.

What I'm saying is that my time in felony let me experience what truly serious crimes were, and I knew that when dealing with many (not all) misdemeanors, there was no comparison. I didn't have the type of "real world experience" that Mark advocates ADAs having before they apply for the job of ADA, but I certainly picked up a load of it during my time at the Office.

So, I guess on that issue, it is a debatable point.

I've toyed around with the idea in my head if it would be worthwhile to change the "Position Structure" of the Office. Rather than have a first-time felony three become a chief, change the batting order somewhat. I'm not endorsing this plan, but I have thought about it.

Under the AHCL Plan, the order could go like this:

Start as a Misdemeanor Three (or Four now, I suppose).
Move up to Misdemeanor Two.
Move up to Felony Three (because let's face it, there's nothing that a Misdemeanor Chief tries that a Misdemeanor Two doesn't).
Move up to Felony Two
Then, become a Misdemeanor Chief and when the opening finally comes up, become a Felony Chief.

Just a thought, and the plan probably has more flaws in it than benefits. Not to mention that it would be very challenging to try to change that batting order now (think of trying to re-arrange the cars in a train while the train is in motion).

But as to Mark's argument about "real world experience" outside of the prosecutor's office being a bonus to being a criminal District Court Judge, I do actually disagree. The only exception to that is that I do think that a District Court Judge with both prosecution and defense experience would be good. However, I don't think that if that Judge had been an accountant, or perhaps even a, um, police officer that it would benefit them as a judge.

I guess the only major gripe I have with Mark is the use of the term "sheltered" when he describes prosecutors. I would strongly argue that prosecutors (and defense attorneys as well) are probably the least sheltered members of any community they reside in, just by the mere fact that they are the ones who truly see the underbelly of their society.

Court of Equity/Court of Law

Mark's got a new post up on his site entitled "Do You Love the Law?", that I actually found myself agreeing with more than I do with most of his articles. The whole article is a rant, but it's an enjoyable one:

The law is a street fight. It’s trench warfare. There’s nothing beautiful about it. It’s inelegant, messy and dangerous. Sometimes the right side loses. Often everyone loses.

He cites (in the comments) that what set him off was the latest issue of the Texas Bar Journal that (to use his words) "was filled with pompous asshattery".

But I think he brings up an interesting topic to those of us who practice criminal law.

Do we do what we do out of a love with the abstract "Rule of Law" or because we like to just fight for what we individually believe is the right thing?

It seems in foggy, hung-over haze from law school, I recall learning something about an old-timey justice systems where it was divided into two parts: the Courts of Equity and the Courts of Law. The Courts of Equity always seemed a lot more reasonable to me, um, probably because they were equitable. The Rules of Law were a little stuffy for my taste.

But of course, the problem with the Courts of Equity, (and, by Mark's analogy, our "street fight") is the Equity is often in the Eye of the Beholder. I have a friend of mine who likes to jokingly refer to himself as "The Ultimate Arbiter of Reasonableness". I suppose he would make a great judge in a court of equity, but let's say that, instead of him, we got somebody like Idi Amin.

I'm sure old Idi would think that he would be a tremendous guy in deciding equity. The rest of us, not so much.

My point is that the Law, in my mind, is a necessary evil, and there is certainly little about it to "love". It's there as a protection against the unreasonable mind running a twisted version of "equity".

And the sad thing about the law, is that there is just too damn much of it. And it can all get twisted in an intellectual argument so that God knows whether the true ends of Equity are ever really being served. Mark is right. The wrong side sometimes loses.

There is a bar in Downtown Houston that I went to a couple of times a few years ago. Attorneys go there and drink.

When I went, I noticed that at one section of the bar was a table where a couple of prosecutors sat with a couple of criminal defense attorneys. They were laughing and talking with each other about all kinds of topics that ranged from criminal cases, courthouse gossip, to their home lives. They all seemed very comfortable with each other.

At a table nearby, there were a group of civil attorneys, talking about the majesty of the law, and how through a certain provision in the Code of Civil Procedure, something was going to happen that dealt with a lot of money, or somethingorother. All they talked about was the law.

The members of the two tables never spoke with each other (other than a polite nod or two).

Please don't get me wrong, I'm not making fun of the Civil Attorneys, but I think that when it comes to those of us who practice criminal law, that Mark is also right. We (rightfully) consider ourselves to be street fighters. The civil attorneys are playing with money. The criminal attorneys are fighting for lives. Lives either lost, damaged or in danger of being forfeited.

We do look at the civil guys a little differently, because we have been down in the trenches. We have fought life and death matters. They have not.

It's okay, though. The civil attorneys look at us a little differently too, but that's mainly because we're poor.

The law is often times the biggest obstacle to achieving equity, I think.

I'd much rather live in a world where the kid caught with weed had to call his parents and let them scream at him, rather than get arrested. I'd rather deal with low level narcotics cases with mandatory treatment.

I would imagine the defense bar would like me for my ideas on equity in those kind of cases.

But on the flip side of that, my sense of equity would lead me to a world where people who hurt or sexually abuse children would be beaten to death with two-by-fours. Thieves who just steal for the sake of stealing (as opposed to trying to feed their family) would get a huge kick in the crotch and then released by loss prevention. People who murder? Well, that's just going to depend on the type of case it is. If you committed a mercy killing, you are probably going to be alright in my world of equity. If you killed a child under six years old? You would be wishing for something as peaceful as a lethal injection.

The bottom line is that the law does lead us to be unnecessarily harsh sometimes, and sometimes it is all that keeps us in check. I don't know if I would go as far to call it a "whore", as Mark does, but I will definitely call it a stubborn damn mule at times.

So, I guess we just all have to go back to work on Monday and keep our street-fighting ways going for another day -- striving for life, death, freedom and equity within the Courts of Law.

But none of us will find any sort of majesty in the "Rule of Law".

From the People Who Brought You "Fear"

Okay, I don't know how long this has been up on Bennett's website, but I just noticed this blurb he has in the upper right-hand corner:

Defending People is about protecting the people, one at a time, from the only viable threat to their liberty: their government.

Um, isn't he the one who has been blasting prosecutors for instilling fear in people?

I plan to fully investigate this, but right now, I'm hiding under my covers because the government is trying to get me.