Saturday, March 18, 2006

Victory on appeal

I forget to mention, an event from last week. In my last job, I worked for a couple of guys who are well-established in the South Metro area. One has been practicing for more than two decades and has a sterling reputation. Because I had worked at the Federal Court of Appeals before coming to work for him, he asked that I help him write an appeal. Which I did.

The case was pretty straight forward. The client was in her car at a closed gas station late at night and a cop rolled up, concerned for her safety. Because she gave inconsistent answers about what she was doing, the cop asked for her license, which he never returned. Eventually, she admitted that she had some methamphetamine on her, and she was arrested. The trial court denied the motion to suppress and we appealed.

Last week, we found out that we won. The opinion contained this fantastic language: "This case graphically illustrates that liberties and rights are always an interpretation away from extinction, unless jealously and zealously guarded." I called my old boss, and we patted ourselves on the backs.

I also happend to belong to the state criminal defense association. We have a very active list-server, from which I probably receive 50 or 60 messages a day. As I may have mentioned before, the state I live in recently reformed the public defender system. So, the guy in charge of the state-wide public defender system posted a message to the criminal defense association list-server, lauding our result on appeal. In fact, he called it "damn good defense work." As a result, I was receiving congratulations from colleagues on the list-server and well as my own co-wrokers, and was feeling pretty good about just about everything.

And then I went to court on Wednesday to represent the inmates.

All in all, I have cooled off over what happened in court. And I'm beginning to feel good again about our win. The client on appeal can put this whole three-year ordeal behind her, and the client who is still in jail at least knows that we are looking our for him.

Wednesday, March 15, 2006


I think that I was very close to going to jail myself today.

There is a guy in jail, who has been there since the middle of December, largely because his case was in a municipal court and then got transferred to our court. He has been sitting on a bond that he can't post and that is uncharacteristically high.

He wrote to our office and we received the letter yesterday. Another attorney in the office scrambled to get the guy into the first available courtroom. We notified the prosecutor that we were planning on bringing the guy over, but I omitted to notify the Judge. Mostly because I wasn't all that involved in making the arrangements, but still, 2 minutes of effort late yesterday afternoon would have saved me an ass-chewing today.

In any event, guys were brought over this morning from the jail, and after almost all of the other cases had been heard and well before lunch, the prosecutor mentioned that there was an add-on. The Judge then wanted to know why the guy was added and he wasn't notified. He then turned his ire on me and vented vociferously. He chewed my ass, and let's just say he ate until he had his fill. I mentioned that the guy had been in jail since December and the Judge actually said, "I don't care, no one comes over to my court unless the prosecutor requests them or I say it is okay." Eventually, the Judge took a softer tone, after he discovered that I was not the person who requested the guy. (I wasn't going to mention it, as it is my courtroom and I don't have respect for others who try to shift the blame.)

Obviously, the Judge wants to maintain control of his docket. And, with the caseload we carry, that is understandable. The problem is that the guy is going to sit until Monday when he can be heard in the courtroom that his case is assigned to. I don't think I can properly express the depth of my disappointment.


Ever since I started trying cases, I have been concerned about witness coaching and about where the line is between "prepping" and "coaching." I've ultimately decided that, as long as I'm not suborning perjury, anything is fair game.

Now, when I say suborning perjury, I basically mean getting a witness to say something that they wouldn't have said unless I pointed out a legal advantage.

Today, I was reading another blog which pointed out that the problem with the Moussaui trial is not "coaching," but the fact that the Court's sequestration order was violated. Afterall, all lawyers talk with witnesses about what they saw and heard and remember. We try to test the memories and we probe and we look for ways in which the story is internally consistent.

The problem here was that the Judge had ordered the witnesses not to discuss their testimony with other witnesses. The point of a sequestration order is to keep witness testimony pure, if you will. Witnesses aren't supposed to talk about the case and unconsciously align their testimony.

Intrigued by the question "just what exactly is coaching," I did a quick search on Westlaw in my jurisdiction and didn't find anything particularly instructive. A google search did reveal an article that appeard in the Cardozo law review. The article is a little too empirical for my taste, breaking coaching into categories and such. But in it I saw another central interest of mine arise, and that is the fallibility of memory. Of the convictions that were set aside because of DNA, the majority involve inaccurate identifications by an eyewitness. I have been struggling for some time to find some way to deal with this issue at trial. Everybody can accept the proposition that "he saw it plain as day, so it must have happened." The problem is that memory is malleable and fallible. I'm still struggling with how to most effectively address the issue with juries. But a good step is a sequestration order, and kudos to Judge Brinkema for sanctioning the government for the violation of her order.