Stephen Gustitis, in his new blawg The Defense Perspective (yes, another Texas lawyer with a blog.  It’s my understanding that they’re getting subsidized for doing this), writes about what to do when you get arrested.

If only every arrest came with instructions.  While it would certainly make the lawyer’s job easier, the impact on the client’s chances of prevailing would be monumental.  We tend to harp on this subject quite a bit.  In fact, I have dedicated a section on my regular website to this very subject.  I’ve written about it before; No doubt I’ll write about it again.

Nothing will harm a defendant more than the words out of his own mouth.  Police are trained, and I mean trained, to get you to talk.  To spew.  To say something.  Anything.  And then to twist the words, insignificant in the client’s mind, into the most damning statement possible.  

For this reason, I keep pounding on the magic words:  I want to speak with my lawyer.  Say it.  Say it to every officer you meet.  Over and over.  Don’t worry about sounding boring or tedious.  The cops are not considering whether you will make an interesting dinner guest.

I’ve told this to clients many times, and it’s almost comical how they just can’t get the idea that there are magic words.  I tell them to repeat it to me (yes, it makes me sound like a school marm), and they respond, “duh, can I talk to a lawyer?”  NO! NO! NO!  I want to speak with my lawyer.  “Do I need a lawyer”  NO! NO! NO!  I want to speak with my lawyer.  You get the point.

The secondary aspect of this assertion of rights is to stop speaking once you’ve managed to say the magic words.  This is where even the best of defendant’s blows the deal.  The magic words come out.  The client, feeling quite proud of himself for having managed to repeat 7 words correctly, takes a deep and satisfying breath.  Then, without prodding, adds some words of his own.

This may be the gestalt need to explain oneself, by adding something like “I’m in enough trouble already and I don’t need to make it worse by talking to you about the crime.”  Or this may be the mistaken idea that by uttering the magic words, they get a free pass on whatever comes next, so they then spew a total confession (or worse yet, some smart-alec version) thinking that the cops can’t use it because they invoked their right to counsel. 

It’s fascinating how the police officer suddenly puts on that very interested, “I’m really your friend” look when a defendant starts talking.  They can sit there and listen to defendant’s all day long.  Defendant’s truly are fascinating people.  But they still won’t invite them over to dinner.

There are no statistics on how many defendants sink themselves with their own mouths when they could have beaten the case if they had just remained silent.   But my very scientific guesstimate is about 30%.  By the way, there are instructions for getting arrested and every cop gets a set.  They’re called the Miranda warnings.  You have the right to remain silent.  Use it.

The tragic murder/suicide of pro wrestler Chris Benoit has brought Fragile X Syndrome into the news.  When a national story includes something like Fragile X, it is a huge opportunity to alert the public to the existence of a critically important piece of information that most Americans would otherwise never hear about. 

But when the media gets the information wrong, and then repeats it a hundred times over as it becomes part of the “myth” of the story, the opportunity is lost.  Worse yet, they firmly establish the myth in place of the truth.  Now, the struggle will be to undo the myth created by lazy reporting.  This happens in high profile criminal cases.  It happened to Fragile X Syndrome.  Misinformation about Fragile X can be found all over the internet (which is no doubt where the media found it).  Good information can be found here. 

Almost every story about Benoit states that Fragile X is a “rare disease.”  Not only is it not rare, but it is pervasive:  1 in 130 women are believed to be carriers of Fragile X (and this number is likely too low, since most females go undiagnosed because their symptoms are too subtle).  We are not talking about a handful of kids here, but a huge number of children going undiagnosed., with a huge cost of suffering and a very real cost of billions of dollars for schools, social services, medical and lost productivity.  We are throwing billions of dollars away because of our failure to recognize, diagnose and treat children with Fragile X Syndrome, and leaving children and their families to suffer for nothing.

Ignorance about Fragile X Syndrome is a national tragedy, and could have been changed has the reporters on the Benoit story worked just a little harder.  And then there’s autism.  While all over the news (with very little real information, I might add), nobody bothers to mention that Fragile X is the leading genetic cause of autism.  Don’t you think parents of autistic children need to know this?  The physicians don’t know it, so they can’t tell them. The media is clueless.  Somehow, people need to start to connect the dots if we’re ever going to deal intelligently with the issues that plague our children.  This was a great opportunity to do so, and it’s shame that it was lost.

Excellent information is readily available about Fragile X Syndrome at www.fraxa.org, the Fragile X Research Foundation, possibly the best run Foundation in this country.  Every parent of a child who demonstrates autistic symptoms should go there and read.  Every physician should study Fragile X and so that they can recognize it in their patients.  And everyone should send a donation to Fraxa to help their research to effectively treat and cure Fragile X Syndrome.  They are close to doing so, but are not there yet.  And consider the children who can be saved from needless suffering.  Not bad for such a “rare” disease.

Paul Bloom, a founder and VP of marketing of Avvo.com, spend about an hour and a half on the phone with me today.  He’s a good guy.  He’s a good salesman.  He knows how to stick with his talking points.  But one thing he isn’t, and that’s foolish. 

There were a few mantras repeated throughout our conversation.  Avvo isn’t perfect.  Avvo never will be perfect.  Who was I to argue?  But the theory behind Avvo was to provide as much information about lawyers to the public as possible, and give them more than they have now.

Paul’s not a lawyer.  He’s an engineer who spent his wayward youth at Stanford “B” school.  So I had to talk slowly (only kidding, Paul).  We talked about the changes Avvo has made since it launched.  They aren’t insignificant.  They’ve removed ratings from people about whom they have no information.  They’ve changed “trustworthiness” to “professional conduct,” whatever the hell that means.  At least it doesn’t make the lawyer sound like a total scoundrel.  Just a little less professional than the other guy.

His point is that they are listening to the complaints, and the ideas that come from a healthy dialogue, and are trying to tweak things to make it better.  You’ve got to give them some credit for not going into knee-jerk resistance mode to everything. 

One of the most interesting points he makes is that a lawyer’s Avvo profile is, in essence, a free website.  There are many lawyers, particularly small and solos, who don’t have an internet presence.  The profile gives it to them, and for free!  When asked why they didn’t lead with that benefit, Paul told me they tried but it got lost in the sauce.  Too many complaints about the ratings to talk about the tangential benefits. 

We talked at length about the opportunity for abuse.  Lawyers lying about their “awards” to bolster their rating.  Disgruntled clients libeling lawyers for a bad outcome (never mind they were holding the murder weapon on camera when the police took his confession), or puffery by lawyer friends about other lawyer friends, scoundrels all.  Paul noted that each profile has a link to report false information.  Are lawyers rats?  We’ll have to see.

I learned that they have a system that flags claims of awards and publications that don’t fit into a known paradigm, and there is a team that will check it out and remove false information.  As for the client and lawyer endorsement issues, they are hoping that people are good, kind and honest.  Clearly, this remains an open issue.

But down to the hard questions:  As Paul repeated the “we’re not perfect” mantra, I queried about how their presentation of information that is, oh, less than complete or accurate, was a fair way to rate a lawyer.  He explained that they rely on publicly available information, and if that information is not accurate or complete, then Avvo’s will be similarly flawed.  Fighting the urge to scream expressio unius est excludio alterius, I calmly tried to explain how consumers will be mislead by information presented as if accurate.  I then learned about the 47 caveats that appear in the fine print.   Not really helpful, and not particularly convincing.

By the way, the Abe Lincoln and Dick Nixon profiles are in there for a little fun.  They know they’re both dead.  Computer guys are a bunch of cards.

We finally got down to brass tacks.  The profile takes the type of info that lawyer’s typically put into their websites.  If we put that stuff in there, why shouldn’t Avvo?  If we think it worthy of presentation to clients, why shouldn’t Avvo?  Avvo’s just helping us out and doing a little bit of it for us.  This is where Paul and I parted company.

I put that stuff into my website, I suggested, because I can’t write that I cross-examine cops better than anyone else.  But if you’re going to trial, don’t you want to know that I can cross a cop?  Or do you want to know that I’m a member of the criminal bar association?  Which one matters?

Paul offered an interesting response.  If you’re not a member of the criminal bar association, but claim you practice criminal law, don’t you think that says something about you?  Well, he’s got a point.  And if you claim to be an expert in 27 different areas of law, don’t you think a client’s going to pick up on that detail?  The Avvo rating for lawyers places a lower value on the jack of all trades type over the specialist, acknowledging that no lawyer does it all. 

But the root of the problem is the number.  I may never have tried a case, but if I got involved in all the bureaucratic nonsense of bar associations, made a few friends and wrote an article, I would still get a perfect 10.  Paul’s answer is the Avvo does not promote the blind use of the rating number, but says that the rating is just the first step in the consumer’s search for a lawyer.  There’s a link to the 3 things to do to select a lawyer.  You probably missed the link, as did I.  Will anybody read this stuff or just stop at the rating number?  What do you think?

Here’s where the Avvo position gets a little tougher to accept.  If they have all this fine print and 3 step plans that qualify and explain the significance of the big number on the front page of a profile, why have the big number at all?  Boiling complex information into a single number, especially when they admit that they have no way to quantify intangibles that are at the core of what makes a lawyer competent, or better than another lawyer, creates the simplistic impression that one number tells it all.  That was the intention; The interface didn’t happen by accident.

Of course, the reason Avvo does this is quite simple.  If they didn’t, nobody would come.  They know that people wants a quick, easy, simple answer.  Unfortunately, as H.L. Menken admonished, “For every complex problem, there is a solution that is clear, simple, and wrong.” 

Is Avvo better than nothing?  The jury is still out.

My post on the KISS principle apparently got some better heads than mine working.  Mark Bennett (with 2 “T”s) took it one step better, raising the hoary notion of Occam’s Razor (the simplest answer that accounts for all know facts is the correct one).  But Bennett, dissatisfied with mundane and, frankly, generic application, pushed the envelope.

We now have a new theory.  It’s good.  In fact it’s very good.  And best of all, it’s application is directed specifically at criminal law.

The name of this new theory is Bennett’s Chainsaw.  I even like the name.  It goes like this:

The more things you must contest and the more explanations you must provide in order to mount a defense, the more likely it is that you will be convicted.

I told you it was good.

Reading a story about a fellow who contends that he’s been the victim of discrimination by employers who refuse to hire him because he’s covered with tatoos, an argument that brings a reflexive chuckle for me, I thought about the appearance of defendants in court.

I recall going to trial with a defendant from New Jersey.  I instructed him how to dress (as is my way) before the jury.  My client, electing to ignore my instructions, or really to improve upon them in his own fashion, showed up for trial wearing what can best be described as a 1970s velvet orange pimp suit, complete with wide-brimmed hat.  He looked like Huggy Bear from Starsky & Hutch.  If he wasn’t my client, it would have been hysterical.  Alas, he was mine.

My sensitivity to clients’ attire began with a CCE case in Anchorage Alaska many years ago.  I came out from New York with my client’s wife, who was told to bring him clothing to wear in court.  My being young and inexperienced, I offered no specifics on what she should bring.  I left it up to her.

When we arrived at the jail in Anchorage, I pulled the clothing out of a bag.  It included some sort of silk black pantaloons.  A black silk shiny shirt and very pointy toed shows with metal toes.  If he was dressing to be Salsa King, he would have been perfect.  For court in Alaska, it was a bit much. 

When we appeared in court later that day, the Judge expressed “outrage” at the insult to him demonstrated by the defendant’s attire.  I explained that these were the defendant’s finest clothes, and while not of the taste that one would ordinarily pick for court, it was a sign of utmost respect by the defendant, no matter how tacky and inappropriate it was.  He bought it and we dodged the bullet. 

Today, I regularly see defendants show up for court in pants down below the hips, open shirts.  I see defendants and family with tatoos and piercings. Sometimes many piercings, and in unusual places.  I see defendants with huge flashy necklaces and diamond encrusted watches.  And their attorneys try to argue what normal, law-abiding, hard-working, average citizens they are. 

A few years ago, the phrase “dress for success” was the mantra of young entrepreneurs.  What is the message these defendants are sending the judge by their appearance?  Of course, when those tough, young defendants who swaggered their way into the courtroom walk out later all weepy and teary eyed like a little baby, sniffling and crying because they aren’t going to be nearly as cool in Rikers as they were on 125th Street, their choice in clothing and appearance strikes an interesting contrast. 

Carlo Ventre was on trial in Rome for the murder of his California girlfriend, Toni Dykstra.  While on the witness stand, Ventre died of a heart attack.  Thanks to Andrew Bluestone of New York Attorney Malpractice Blog for bringing this to my attention.  As Andrew put it, really simple justice. 

And no appeal.

Every profession and occupation has its share of liars and incompetents.  We may not like to admit it, or publicly acknowledge it, but we know it’s true.  And this applies to criminal defense lawyers.

Gideon, at A Public Defender, called them out today.  I don’t know what happened to him in court yesterday to push him to the point that he wrote what he wrote, but I’m glad he did.  It’s time that we had a real discussion about the fact that this little area of the law has its share of liars.  More than its fair share, I might add.

The false promises part really pisses me off. You know there are attorneys who make them but then when the client gets screwed, will swear up and down that they would never, ever say something like that. Bullshit. 

Well, yeah, bullshit.  It happens.  It happens regularly.  And begs the question why does it happen, and how do they get away with it.

The why is easy.  Many of our clients in criminal defense are poorly educated; some aren’t too bright.  It doesn’t make them bad people, but any real discussion has to begin with a foundation in reality.  The clients (and their families) have some difficulty grasping concepts.  They are much better with concrete assertions, and have no tolerance for ambiguity.  These are the ones who, after thoroughly explaining at an initial interview that we have no idea what the evidence against them will be, and how the variables at trial make it impossible to predict an outcome, then ask:  “But what are we gonna win?”

There are, more often then you would believe, clients who demand a guarantee that, in exchange for the legal fee, they will walk.  It reflects two inherent problems (and possible a dozen tangential problems).  First, they believe that a lawyer has the ability to make a guarantee.  Second, they perceive the lawyer to be on the other side (even though this may not be apparent at first), and thus the person with whom they should negotiate.  They don’t see the lawyers time or skills as worthy of compensation.  They see only outcome. 

A good lawyer understands that outcome is always what the deal is about, but similarly understands that the lawyer and client share the same interest in achieving a positive outcome, though the path to achieving it may be different.  To the good lawyer, outcome is the product of hard work, strategy, perseverance and a healthy dose of luck.  To the client, it’s what he pays for.  For the lawyer, it is the difference between effectiveness and efficiency.  (I would explain this further, but I would be giving up one of my best secrets and so will save it for another day.)

Also posted today is Mark Bennett’s How to Choose a Criminal Defense Lawyer.  Mark takes issue with my view that a personal interview of a lawyer by a client has its problems, as clients tend to mistake “likability” for competence and pick the lawyer who tells the client what he wants to hear.  Mark contends that

I have great confidence in the ability of people working together to tell who is shooting straight with them. While one person (especially one frightened person facing criminal charges) may get snookered by a snake-oil selling businessman, two people working together are much less likely to make the same mistake.

I don’t, not because of a cynical view of people but because of experience.  It happens constantly.  Even after the client crashes and burns, the snake-oil lawyer can explain away the failure by adding new layers of deception, so that people sitting in prison for substantial chunks of their lives STILL think their lawyer was a good guy.  We find out about this when some other person, wife or mother for example, comes to a new lawyer only to learn that the snake-oil lawyer never made a suppression motion, or demonstrated flagrant neglect or incompetence in some other way.  How many of these defendants are sitting there thinking, “Well, at least I had a good lawyer do everything he could for me” when in reality he got sold out on day 1.

So now the second question, how do they get away with it?  This is a multi-part answer.  Part 1 is that clients who are susceptible to being lied to in the first place are just as susceptible to being lied to on the back end.  The lawyers make up excuses for their failure and the client buys it.  But this is only to be expected as the completion of the circle of deception.  The better question is why does the rest of the profession, including judges, sit there with their mouths shut and allow this to happen, day after day after day.

Perhaps other lawyers don’t know about this?  This may occasionally be true, but we absolutely know a great deal of it.  If a lawyer say he hasn’t seen incompetence and deception, you know which side of the fence he falls on.  The sad and pathetic truth is that we, like most professions, don’t police ourselves well enough.  We fear that we might become pariahs amongst our own if we start playing Torquemada.  And are we so pure that we can criticize others?  Isn’t it the responsibility of the courts and bar to weed out the incompetent and deceptive?

All good questions, but the plain old truth is that it hasn’t happened the way it should and our ranks are replete with lawyers who should not be.  It’s wrong for clients.  It’s wrong for honest and competent lawyers. It’s wrong for society.  And yet we cannot bring ourselves to do anything about it.  Except Gideon, who opened up this Pandora’s box.  Thanks, Gideon.

This is critical reading for any trial attorney.  I hate to sound like a shill for Anne Reed (well, I’m actually pretty proud to be able to help), but her stuff is THAT GOOD and missing it would be a crime.

Read this piece at Deliberations.

Anne Reed at Deliberations brings us Voir Dire Questions That Could Have Been Better, about a friendly trial judge who asks the jury two questions, but tells them NOT to raise their hand until both questions have been asked. 

Question 1:  Now, here is the first question. And, again, you don’t need to raise your hand. Listen carefully. This is a question about you personally, you personally as well as any close family member or close personal friend. Is there anyone in that group, either you personally, close family member or close personal friend, who is either presently or previously employed by any law enforcement agency?

Question 2:  Now, if the answer to that is yes, listen very carefully to this question. As a result of that experience that either you had personally or are having right now as an employee, as a result of that experience or as a result of the experience of a close family member or a close friend, . . . do you believe that you, that you personally would be unable to be fair and impartial to both sides if selected as a juror in this case?

Thankfully, the DC Circuit held that the “defect in that question is obvious,” U.S. v. Littlejohn.  For the handful of criminal defense lawyers who actually try cases, consider the implication of finding out after the verdict is rendered that, unbeknownst to you, you had a few agents sitting on the jury who never raised their hands since, either in their own minds decided they could be fair (“I would never convict the defendant until after he had a fair trial”).  Worse yet, what are the chances that they just decide not to raise their hands, and hence nobody has a clue that they’re having a good ol’ time sitting on that jury, getting paid, and just biding their time until they do a little justice by putting the defendant away.

There is no substitute for knowing who you’re potential jurors are, and their inherent bias is subject to scrutiny.  Most people will state with absolute conviction (pun intended) that they can be fair and impartial, even when they’re either in, or connected to, law enforcement.  Clearly, that self-assessment is utterly useless, even if sincere.  The point is to be able to probe, and assess, bias, not to let the juror tell you how pristine and honest he or she is.

In a recent trial, I ended up with two fellows on my panel who were worth a second look.  One was a well known criminal defense lawyer and the other was an FBI Special Agent.  We all knew the lawyer, and it didn’t help that he sat in the front row and was giving us the “hi sign” from the Little Rascals the whole time.

The agent, on the other hand, was unknown to any of us.  He looked like anyone else.  No sign on his forehead.  No telltale bulge in his waistband.  He could have been anyone.

The judge called us to the bench and asked if it was necessary to make this criminal defense lawyer waste his morning, since he obviously could not serve as a witness.  “Obvious?” I inquired.  Why couldn’t a criminal defense lawyer be fair and impartial?  Just because we defend the accused doesn’t mean that we favor crimes.  Hey, we’re law-abiding people who understand duty and obligation as well as the next guy.  Maybe even better.

Nope, the judge responded.  He’s out of here.  The prosecutor, naturally, chimed in with, “Oh, of course, Your Honor is absolutely right.”  What a suck up.  Over my strenuous objections, the defense lawyer was cut loose and sent packing.

But when the agent was put in the box, the world changed.  Of course he could be fair and impartial.  When I challenged for cause, the judge raising an eyebrow at the very suggestion, I was subject to a massive effort at proving how this FBI agent would never consider being anything less the absolutely fair.  He would never be inclined to believe a law enforcement officer over a defendant.  He would never consider a cop to be more trustworthy and honest than anyone else. 

Despite my arguments, the judge concluded that there was absolutely no basis for a cause challenge, forcing me to use a peremptory challenge to throw him off the jury.  And so it goes.

The point of voir dire is to get at the truth. But the truth is a relative thing when its comes to selecting a jury, and the final step of the process, the question that the judge in Littlejohn had yet to ask, is how a person whose career is dedicated to putting the bad guy away, to protecting his brother agent, to overlooking those little details that get fudged at trial with a wink so that “justice is done,” at least in their eyes, can be fair and impartial.  In the good old days when both cops and lawyers were out of the jury pool, these stupid problems didn’t exist. 

Today, they are very real, and we have two problems to deal with.  First, we have to unearth the people with inherent bias.  Second, we have to get the court to go along with the idea that those jurors with pro-police bias should be taken off the jury just like the ones who are anti-police.  The second will prove as much of a struggle, if not more, than the first. 

The Supreme Court has just issued its decision in Morse v. Frederick, the “Bong Hits 4 Jesus” student free speech case.  Thanks to I was the State for alerting everyone to this decision. 

Chief Justice Roberts, writing for the Court, says that while students don’t leave their constitutional rights at the school house gate, they just can say any old darn thing they want (paraphrasing).  So they can have all the free speech they want, as long as it school officials approve of it.  And so the circuit decision (which upheld the Frederick’s right to say stuff that the principal didn’t like) was reversed.

Finally, a bright line test!  The “big picture” rationale related the termination of free speech with a message that was “reasonably viewed as promoting illegal drug use.”  But if we focus in a little tighter, it becomes clear that the message sent by this decision relates to any speech which the school believes is contrary to the message it wants to promote.  Judge Robert’s attributes all evils of drug use to this banner, concluding that there is a compelling need to shut this kid up before every child in Juno, Alaska becomes a junkie. 

The Chief Justice concludes with the recognition of the tough job school principals have, and that the principal in this case had to make a snap decision.  This struck C.J Roberts as being overwhelmingly difficult. 

THIS JUST IN, via Abovethelaw from SCOTUSblog :

Morse is a very limited holding — essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes:

I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”