The
defense lawyer often has to do three jobs at once: the prosecutor’s job, the
judge’s job, and his own job. That is,
when the prosecutor does something illegal at trial—whether intentionally or “accidentally”—the
defense lawyer had better jump on it, bring it to the judge’s attention immediately
and in exactly the preferred manner, and then ask for the proper remedy
at precisely the right time. If
the overwhelmed defense lawyer missteps in any respect, and if the defendant
loses at trial and appeals, the appellate court will blame the defense lawyer
for not freezing time and correcting the prosecutor’s cheating (or ineptitude)
at the time of trial. But the law
doesn’t just require that the defense lawyer keep one eye on the
prosecutor while also doing his own job; the law requires that the defense
lawyer do the judge’s job as well.
Saturday, October 27, 2012
Socrates on politics: cancel the election
I
had my fill of politics this season as soon as I tuned-in to one of the
presidential debates. First, I heard Romney
claim—and I’m paraphrasing here from my flawed memory—that “President Obama raised
taxes on the middle-class by $3,000 per household.” Then, I waited just long enough to hear Obama’s
response. Again, paraphrasing: “I’ve cut
taxes on the middle-class thirteen times during my term.”
I
had just about enough by that point. My
interest in politics died nearly as quickly as it began. Instead of making any effort to get to the
bottom of their respective and mutually exclusive claims, the participants and
the moderator moved swiftly forward, with each candidate trying to prove that he
was more forceful, articulate, confident, and likable than his adversary. It
quickly became obvious that the so-called “debate” was nothing more than a live
political advertisement for each party.
And, as Socrates knew, “Politicians are concerned only with making cheap rhetorical points” rather than getting to the underlying truth of the matters
at hand.
So
what’s Socrates’ solution? Skip the
election. Flip a coin instead.
Legal fees: You get what you pay for?
From
a defense lawyer’s standpoint, the simplest cases to defend are non-domestic fights. You know, the good old-fashioned fisticuffs,
often taking place in a bar or related setting, and often involving a
self-defense claim. The reason they’re
“simple” cases is that they don’t involve complex pretrial or trial
issues. Normally, you simply have some eyewitnesses
who testify as to what happened, and each side cross-examines them about their
biases, motives, ability to accurately recount what they saw (or what they
think they saw), etc. Then, each side
argues about the strength of the evidence, burden of proof, etc. Unlike other cases, these self-defense cases
usually don’t involve lengthy motions to suppress evidence, or time-consuming
preparation for expert witnesses, or witness recantations to muddy-up the
waters, or complicated “other acts” motions, or complex hearsay issues that can confuse the judge. In other words, the
classic battery case with a self-defense claim is the ideal case for a
second-year law student’s trial advocacy course, or even for the new attorney
fresh out of law school. So how did one
attorney get $100,000-plus in fees to defend a client in a four-day battery trial
stemming from a simple throw-down at a trendy New York
bar?
Saturday, October 20, 2012
The college football halftime interview: a toxic, airborne event
Maybe
I’m a little edgy today. Maybe I’m still
upset by the recent death of the great Beano Cook. Maybe I’m irritated that Notre Dame will
likely win again against BYU before suffering the first of its two inevitable
losses next week. But whatever the
reason, it’s time to call-out college football and demand a change. No, I’m not referring to putting the
“student” back in “student-athlete”; I’m referring to the dreaded halftime
interview.
The next bailout
Stop the medical studies already!
Knightly sniffs out some legal goodness
The
Legal Watchdog is pleased to introduce Popehat, “a group complaint about law,
liberty, and leisure.” Popehat covers
topics that typically fall outside of the Dog’s reach, and does so without
pulling any punches. For example, Popehat
exposes how the state of Minnesota
intrudes into its citizens’ lives to control what they can learn and how they
can learn it. As another example—and
this post is my favorite—Popehat illustrates the extreme dangers of limiting our free speech rights. So check out
Popehat, and learn what our numerous governments are doing to infringe on our
rights in areas other than our criminal justice system.
Saturday, October 6, 2012
Dear appellate court judges: prosecutors are laughing at you
When
reading my weekly cases, I just saw that yet another prosecutorial misconduct decision was handed down by the appellate court. Reading the decision reminded me how prosecutors
are allowed tremendous leeway to blatantly violate the basic rules of trial
practice—for example, by hiding evidence of innocence from the defendant or
making improper comments to the jury—in order to win convictions. And when defendants appeal their convictions,
the appellate courts repeatedly decide that it’s not their job to deter
prosecutorial misconduct, so they routinely tell the defendant: “yes, the
prosecutor cheated, but too bad, your conviction stands.” Now, that’s a big problem in itself, and I’ve
written about it in the Seton Hall Law Review and the Marquette Law School Faculty Blog. But it’s what
happens next that really has our nation’s prosecutors holding their sides in
laughter.
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