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Criminal Defense Dilemmas
Blonde Justice has had a string of absolutely fantastic posts recently about criminal defense dilemmas. The first jumps off from the witness tampering imbroglio at the Moussaoui trial and asks whether “my supervisor told me to do it” can excuse an ethical breach by an attorney. In the comments, that led to some great discussion, including consideration of the ineffectiveness of relying on lawyers to regulate each other's ethical conduct.
The second post raises an ethical dilemma about the duty of attorney A to tell attorney B about a questionable aspect of a case when A hands off the case to B. The excellent discussion in the comments includes this gem from “jasonpw”:
[A]nybody doing criminal defense work better have a reasonably tuned bullshit detector. If you don't you'd better do something else.
And this from PD Dude:
And finally this from That Lawyer Dude:
It never fails to amaze me how many people sit convicted of crimes because a lawyer refused to believe the story the client told them and wouldn't put it before the jury.
Blondie's third post in this great series about ethical dilemmas is mostly her reaction to the previous discussions, plus a little twist for further consideration. It also addresses the “interview by suggestion technique,” which an attorney can use to guide a client toward a story that fits well with what the attorney thinks is a good theory of defense in the case. For example, if you're accused of possession of cocaine, in order to be convicted you have to actually know the cocaine was in your bag/pocket/car/whatever, and you had to actually know it was cocaine and not powdered sugar or something else. So in the “interview by suggestion” technique, a lawyer might ask you: “So you had no idea what was in that bag, did you?” or “You saw the baggie, but you thought it was powdered sugar, right? I mean, Joey is a baker, isn't he?” (I apologize for the really bad examples, but I hope you get the idea.) Blondie says this technique isn't her style; it's not mine either. I've learned different things from different lawyers about the extent to which this technique is useful, but in my admittedly limited experience it just has never seemed very helpful.
One of my mentors once told me along these lines that instead of asking a client “what happened?” you should ask “what is the government going to say happened?” Of course, your client can't know this, exactly, but it gives the client an initial clue that what's important is not necessarily “the whole truth” (since the client often does know that any more than you do),* but what the cops know and what the government is likely to be able to determine through investigation. I think this approach can be useful in some cases, but I think it can also lead to a troubling lack of candor between attorney and client which can ultimately be unhelpful. It can also lead pretty quickly to the whole “interview by suggestion” and its related problems.
So what is the best way to approach the initial or even second or third interview with a client? As some of Blondie's commentors suggest, “interview by suggestion” is different from hearing your client's story and then explaining possible defenses. My limited experience has been that a client will usually not tell me much about what “really” happened at first. In fact, I'll get nothing but denial. “I wasn't there” or “I didn't do it” or “It wasn't mine.” But after I explain the elements of the crime and what must be proven for my client to be convicted, the client will often mention some bit of info that conforms at least somewhat to a possible defense. Is the client lying at that point? Maybe. But what matters more is what's going to convince the judge (or jury, but I've never been anywhere near one of those). The client can say anything he/she wants and it can all be 100% true, but none of it will matter if the government has a witness or piece of evidence that is going to make the judge tend to doubt the client's version of the story.
Speaking of Criminal Defense Dilemmas, Gideon's Guardians had a good one a while back, too. I have one of my own I've been meaning to write about, but maybe another day.
* The question of truth in the law is too fraught to go into here but what I'm getting at here is that the client can only know what he saw or heard or did. That's part of the “truth,” but, it's not only reliable. The client's story is always filtered through the stress and fear of arrest and possible (or real) incarceration, so even if he thinks he's telling you the whole truth, he might be forgetting or changing things w/out even meaning to. And what about what the cops did or said? Does the client know those things, or have intervening circumstances messed up his/her memories? And many times the client doesn't know what the cops did or said; he was paying attention to something else, such as the fact that he was totally busted. So obviously even the most honest and trustworthy client can only give you a story. The truth? As the Lawyer Dude said, it doesn't play a big role in our system of justice.
Posted 10:38 AM | Comments (1) | TrackBack | 3L crimlaw
MT PD Update: Unclear Progress
In the ongoing saga Montana's transition to a new public defender system and my efforts to get a job in that system, the latest is that one of the Assistant PD's in Billings has had her law license suspended for 30 days [via Public Defender Stuff].
Meanwhile, Billings (or Yellowstone County, of which Billings is the county seat) is advertising for every level of public defender. This comes after the new Public Defender Commission decided that all currently-employed PDs would have to reapply for their jobs, and also after another county named an interim public defender whose job theoretically ends July 1 when the new statewide PD system begins.
I don't get it. As of July 1, the state of Montana itself will be the only employer of PDs in Montana; individual counties will no longer be hiring or employing PDs. So what the heck is Yellowstone County doing? Is it advertising for positions that will basically not exist on July 1, or are they jumping the gun to start getting applications that they will end up forwarding to the state PD office? Is this just an expression of the county's frustration? They clearly need public defenders (the Billings office has experienced a lot of turmoil and turnover in recent months and years), yet, as of July 1, they will no longer be able to do anything about that need. Perhaps they're impatient with the pace at which the state is moving in this transition and they're trying to show that impatience by advertising these positions?
I do not know.
What I do know is that the State Public Defender Strategic Plan is interesting reading—at least for anyone who is interested in how this is all coming together. I have also heard from the state PD office that there are “quite a number of openings all around the state” and that job announcements should be posted here around the week of April 24th. I'll be keeping my eye on it.
Posted 10:56 AM | Comments (3) | TrackBack | 3L Montana
01:02:03 04-05-06
01:02:03 04/05/06.
That will never happen again. Kind of cool, huh?
Yes, very! But it will happen again in a hundred years, won't it? Still, it's definitely a once-in-a-lifetime event for most of us. How should we spend it?
Here's an idea: If you're a student in class at that exact moment, you should stand up and shout “Time!” and then sit down. It will be like a flash mob thing. Speaking of which, what a perfect moment for a flash mob. Let's get a thousand people to storm the WTO bookstore at 01:02:03 today; everyone should shout “Time” and then quickly and quietly disperse. Yeah, me and my 1,000 friends.
Whatever happened to flash mobs, anyway? They seem to be over for some, but don't tell these people.
Posted 08:09 AM | Comments (5) | TrackBack | life generally
Good Poetry, Other, Wigs, and Bb-days
Good Poetry: Thanks to the Scoplaw for a great reading Monday night.
Other: Blawg Wisdom just got its most recent monthly update. Please share any thoughts you may have on GPA in the law school application process.
Wigs: One of the things I detest most about my future as a lawyer is that I will have to wear suits far too frequently. However, today I am reminded that it could be much worse—I could have to wear a freaking wig.
Bb-days: Screaming Bean was three years old Monday. You should go wish Beanie a happy blog birthday. Maybe the positive energy will lead her to the perfect job!
Posted 07:52 AM | Comments (2) | TrackBack | life generally lists
Delay Embargo?
I'm certainly not sad to hear that Tom Delay is resigning his seat in the House, but here's a very little (possibly microscopic) tangent that has me bugged. I just heard a Washington Post reporter on the radio say that they learned this news yesterday around noon, but were “embargoed” and could not publish it until 10 p.m. because that's when Time Magazine was going to release the official announcement.
Huh? “Embargoed”? It doesn't really matter that we had to wait until last night at 10 p.m. to hear this news, but aren't we supposed to have a free press? What kind of screwed up media landscape do we have when major news organizations just sit on stories until they're given permission to publish them?
Posted 10:39 AM | Comments (3) | TrackBack | general politics
Reciprocal Criminal Discovery in MA
Dan Filer comments on the NY Times' coverage of Commonwealth v. Durham, the recent Massachusetts high court decision requiring defense counsel to turn over statements it plans to use to impeach gov't witnesses. As Filer notes, the Times is pretty late to the game here—Woman of the Law posted about this weeks ago. Still, both the Times and Filer add some interesting perspective. My first reaction was that this was awful, and like Filer, I can't imagine it's going to help defendants much. On one hand, I agree with the theory that everyone benefits when we minimize the “gotcha” element of trials and try to make them more about who has the most and best facts on their side. Or, as one off the judges in that case wrote:
On the other hand, we know there's always going to be a gotcha element to trials and the state has many more resources available to gather evidence and overpower defendants, so there's a possible equity in allowing the defense to keep a couple of cards closer to its vest. I also agree with one of the defense attorneys involved that this is just a way to make lying witnesses into better liars. I mean, if you have impeachment evidence for a witness, that means that the witness is already of questionable credibility and therefore more likely than the average person to be willing to lie. This will just give those people time and opportunity to strengthen their stories.
The Times story adds the context that only two other states require this reciprocal discovery in criminal cases—NJ and MN. At least one lawyer in MN said this rule has lead to more dismissals b/c the prosecution sees the impeachment evidence and realizes its case is weak. However, that's just anecdotal. This would be a great topic for research—have these rules really led to more dismissals in NJ and MN?
Only one third of law students take BarBri?
The most recent Ambivalent Question asked: “Which bar review course will you (or did you) take?” After two weeks of voting, the final results were:
- Impeach Bush: 36.4%
- Bar/Bri: 34.8%
- Bar/Bri *and* PMBR: 19.7%
- PMBR: 3.0%
- BarPlus: 1.5%
- Other: 1.5%
- None; who needs 'em?: 1.5%
- Micro Mash Bar Review: 1.5%
- MyBarPrep: 0%
- The Study Group Personal Bar Review: 0%
I can make little of this. At my school (GW), my impression is very much that everyone takes BarBri, but perhaps that's just because they've got our school brainwashed that it's necessary. I've heard faculty simply assume that we'll all take BarBri, and it's in the school's interest that we do if they think it will increase our bar passage rates, so that definitely contributes to more people signing up. Still, I have to think this little poll is not very accurate. Shock.
The bar exam is such a very stupid thing. As I've said before, I agree w/Professor Solove that the damn things should be abolished:
That first problem—the exam as a barrier to mobility—is a huge one for me and the most important reason to get rid of the whole charade. But rather than repeat what Professor Solove and the comments to his posts have said, I propose the following three changes to how people become lawyers in this country:
First, the only even slightly credible reason people offer for having a bar exam is as a barrier to entry to ensure some minimum level of competence in the legal profession. I agree this is a lame reason, but most people in the legal profession have been brainwashed to believe it's horribly important. Therefore, rather than abolish the bar exam, we should simply abolish all but one iteration of it. By this I mean that, rather than each state having its own exam, the ABA should offer one bar exam that qualifies those who pass to practice law anywhere in the country. The Multistate Bar Exam is already in place; tweak that however you like, but please, just make one test count for all 50 states.
Second, put BarBri out of freaking business by making the last semester of law school into a bar review course. Many people already agree that the 3rd year of law school is largely a waste; make it meaningful by making sure it prepares students for entry into their profession.
Third, convince the rest of the states to join Wisconsin in allowing graduates of state law schools automatic admission to the bar in that state.
That's it. Very simple. What do you think?
Another suggestion that would leave the current abominable system in place but eliminate the biggest problem for me would be for states to allow people to take their bar exams whenever they want. Why must every bar exam be given during the same 2-3 days each year? That's stupid and unnecessary. If I want to take an exam, I should be able to schedule it with a state bar examiner a few weeks in advance at the most, show up, and take it. If they want to keep it simple, they can offer the exam only on thursdays and fridays, or they could offer it only once a month if they want to be jerks about it, but this twice/year business (and the fact that all states do it in the same weeks as each other) creates a ridiculous and completely unnecessary barrier to mobility.
Please! Stop the madness!
Other interesting bits about the bar exam:
- Someone named Ryan Walters owns abolishthebarexam.com. I wonder if this is him.
- Professor Solove's first post about abolishing the bar exam.
- Solove's followup post.
- Another followup and summary on de novo.
- A Girl Walks Into a Bar (Exam)...: Last year's popular blog about preparing for the bar exam, including some “potentially useful posts.”
- Jeremy Blachman on studying for the bar exam and especially on paying for Bar/Bri: “But unless a firm is paying, it's kind of expensive - I believe the going rate is $2400 if you sign up the morning you arrive at law school, $2600 if you wait until lunchtime, $3000 plus your left leg as collateral if you wait a week, $4000 if they don't like you, and $500,000 anytime after the first day of classes.”
Posted 01:02 PM | Comments (8) | TrackBack | ambivalent questions bar exam
