The criminal defense lawyer: three jobs in one

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.

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?

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.   

Law School Reform: More Practical Legal Education? Not Yet.

The blogs are buzzing these days about law schools.  It’s now widely believed that even after the recent freefall in law school applicants, and the corresponding (but less severe) decline in law school enrollment across the country, we’re still producing more than two lawyers for every available law job.  (And, many argue that the law degree isn’t terribly helpful—and possibly even harmful—in an unemployed lawyer’s attempt to land a non-legal job.)  But my main problem with law schools isn’t that they turn out way too many lawyers.  Instead, as a practicing lawyer, I’m still peeved about the way that law schools turn out lawyers (and future judges) who can’t understand basic legal principles.

Law School Management 101 (or how to deal with your school’s looming fiscal crisis)

If memory serves, when I started law school about 16 years ago tuition was about $13k per year, which made me very hesitant to enroll in the first place.  And by the time I graduated, tuition was fast approaching $20k per year.  I remember wondering how much longer most law schools could continue to exist.  In other words, who would want to go to law school at these prices?  It turns out that I was more price-sensitive than most, and my concern was actually about 10 years premature.  Much to my amazement, law school applications and enrollments kept climbing over the next decade, even as tuition continued to skyrocket well above the rate of inflation.

When is a bribe not a bribe?

I love the 1995 case U.S. v. Boyd.  After sitting through a four month trial that ended in a guilty verdict, the trial judge overturned the conviction and granted the defendant a new trial.  Why?  The prosecutor's star witnesses against the defendant were actually incarcerated themselves.  That, in itself, is rarely a problem.  Instead, what bothered the trial judge was that the prosecutors were bribing their prisoner-witnesses leading up to and during the defendant’s trial.  The gifts and favors included providing the prisoner-witnesses with access to illegal drugs, access to visitors with whom they had sexual relations, prosecutor-funded birthday parties, multiple items of clothing, and even phone sex with the prosecutor’s paralegals.  In fact, the litany of gifts and favors was literally so amazing that it makes the case worth reading in its entirety—something that can rarely be said of a judicial decision.

Sex, money, juries, and administrative bodies

I don’t mind when a juror is deadpan or stone-faced.  What does bother me, however, is when I see jurors sighing, eye-rolling, sleeping (literally), and complaining in the courthouse hallways about how they don’t want to be there.  (Is watching a jury trial and protecting a fellow citizen from a wrongful conviction really that much worse than their regular jobs?)  Some jurors just don’t seem to realize that it could easily be them sitting at the defense table instead of in the jury box.  If they understood this, they would instantly appreciate the importance of having an alert (or at least conscious) jury.

But despite my own feelings on the subject, one recent criminal defendant must have been furious with his jury.  The evidence showed that he had taken a passing interest in a woman who—oops!—was an undercover cop.  He was then criminally charged with propositioning her for sexual intercourse, which required the state to prove that, roughly speaking, he (1) requested sexual intercourse (2) in exchange for money. 

The law school industrial complex: “Will somebody please incentivize me?”

Law professors have it pretty easy.  First, they make a lot of money—sometimes "between $320,000 and $410,000 per year" when you count their stipends, bonuses, and other creatively-labeled cash payments.  (In fairness, though, a prof’s total salary at most law schools typically falls within the $110,000 - $225,000 range.)  Second, they teach only three or four courses per year—that’s right, per year—and the word “year” in law school-speak equates to about eight months out of the calendar year; in other words, summers off.  Third, while requirements vary, typically a law professor will only have to publish four articles in seven years in order to get tenure.  To put this into context, in my most recent seven-year span I’ve published more than three times that much—ten articles and two books—in addition to actually practicing law.

Now, high pay and lax job requirements are fair game for criticism (especially if you’re a recent, unemployed law grad who had to foot the bill for the professors’ laidback lifestyle), but what really upset me was that two professors actually published an article about how to “incentivize scholarship”—something that is already part of the highly-paid law prof’s job.  Stated another way, professors are publishing articles about how to get professors to publish articles.  No kidding.  Here are ways for law schools to “provide greater institutional support for their faculty's research efforts”:

The difference between doctors and lawyers

A law degree is really just a second bachelor’s degree.  Sure, you need a B.S. or B.A. (or B.-something) to get admitted to law school, but there are no other prerequisites.  In other words, a B.F.A. in puppetry with an emphasis in children’s theatre from the University of West Virginia will get you into law school just as easily as a B.S. in bioengineering from Cal Tech.  (In fact, the law degree used to be called the LL.B., or bachelor of laws, but its name was changed to J.D., or juris doctor—probably in an effort to gain respect and prestige.)  But medical schools, on the other hand, require very specific and rigorous coursework before an applicant can even be admitted, let alone graduated and licensed.  (Puppetry majors need not apply.)

What’s Your Motive?

Criminal law is riddled with double standards.  For example, suppose that two seventeen-year-olds get into fisticuffs in the state of Wisconsin, and one of them gets a bruise on the cheek.  Typically, the winner of the fight gets prosecuted regardless of who started it, so let’s further suppose that the kid without the bruise gets charged with felony child abuse.  How can this be?  In Wisconsin, he’s considered an adult because he’s seventeen, and therefore can be charged criminally in adult court.  But wait: the kid who got the bruise on his cheek is also seventeen, so how can this be “child” abuse?  Because there’s a double standard: when considering the age of the accuser, seventeen-year-olds are considered to be mere children, rather than adults.  But as absurd as this double standard is, it pales in comparison the double standard for motive and the third-party defense.