Rush to judgment

Trial lawyers, good ones, adopt "trial themes" to help convey the essence of their case to jurors. It's a way of framing the evidence so that it paints a clearer picture. Or, some might say, a way of distorting the evidence to make an unclear picture.

One of the most common criminal defense themes is "rush to judgment." The theme is repeated and reinforced through questioning of the witnesses, especially cops, to indicate that the police quickly decided who was guilty and didn't bother looking for the "real" perpetrator.

Now, if you're a reader of this blog it may be that you read defense lawyer blogs, too. And if so, you'll know there are 100 of those for every prosecutor blog. And most of them are excellent, I've linked to a few here.

One of the best is by a DC lawyer called Jamison Koehler, who is an intelligent, thoughtful, and unusually articulate blogger.

But today I'm gonna beat him up. :)

You see, I've noticed a rush to judgment on the part of defense lawyers and other bloggers who are just too dashed keen to criticize cops. Heaven knows there are cops who deserve criticism and always require close scrutiny. But what I'm seeing is either an extrapolation of one event to suggest all cops are corrupt/violent/lazy or, as with Jamison's post, an extrapolation from an event that may not even have happened to criticize cops in general, and then to circle back and end with the assumption that an event occurred.

Read this post. Basically, some dude got drunk at a baseball game, threw up on a cop and his daughter, and got arrested. In his mugshot he has a black eye. Jamison states up front, like any honest blogger, that he doesn't know the facts. He doesn't know how the guy got a black eye.

Here are some possibilities:
-- he had a black eye when he went into the ball park
-- he got whacked by a baseball while in the park
-- a nearby spectator gave it to him for being a drunk jerk
-- while being arrested he fought the police and got the black eye while being subdued
-- the cop/father punched him for throwing up on his daughter
-- the cops decided to beat him up for revenge/fun.

Six options. Two of them are not okay, with me or (I'm sure) Jamison: the last two.

In his blog post, though, he goes straight to the last one, then talks about how so many of his clients and other people in mug shots sport physical injuries on their faces. But again, the options don't start and end with "The cops did it gratuitously."

So here's why I care:

1. There are very few blogs out there supporting the cops, telling people what a tough job they have. In contrast, there are hundreds of defense lawyer blogs slamming cops and prosecutors. I don't like that the view is so one-sided, that there are so many voices on one side of the debate, and I like it less when so many good cops are tarred with the sweep of a single brush. I feel like the public's view of officers lies in the hands of people who are looking for reasons to get 'em.

2. Police officers are not being extended the same benefits being offered the people who are so often actually guilty. I can imagine, for example, someone reading my protestation that the cops didn't beat this guy up, and saying "Oh, come on." But those who would say that would be horrified if I, or the cops, accused someone of a crime with flimsy evidence and said, "Oh, come on. He was there, of course he did it."

Now, I'm not saying cops don't deserve more scrutiny in their actions, I'm just saying let's not assume their guilt when we wouldn't for anyone else.

Finally, I want to say that Jamison's blog is one of the first I read in the morning for all the reasons I've mentioned. And I encourage you to do so, too. I don't want this to seem like I'm attacking him personally (perish the thought!), I'm not. His blog entry just happened to catch me when the issue was on my mind.

Jury trial verdicts

Ooops, I forgot to update with a couple of verdicts from the week of May 17. Here they are:

331ST JUDICIAL DISTRICT/ JUDGE PERKINS

Defendants: Charles Lott
Offense: Aggravated robbery
Prosecutors: Amy Meredith and Marianne Powers
Defense attorney: Rick Reed
Disposition: Jury found guilty; jury assessed punishment at 30 years TDC.

403RD JUDICIAL DISTRICT/ JUDGE KENNEDY

Defendants: Willie Marshall
Offense: Sexual assault of a child
Prosecutors: Beverly Matthews and Joe Frederick
Defense attorney: Lucio del Toro

Disposition: Jury found guilty; jury assessed punishment at 26 years TDC.

Some courthouse myths exposed

Looking through past blogs and encountering questions from friends who don't enjoy the criminal lifestyle, I often come across questions or comments that make me think, "Huh, don't people know that . . .?"

Here are a few random answers to questions that no one has asked in recent days. But they have in the past, and they will in the future.

1. Trial Transcripts. This comes up mostly from jurors during trial, actually. "Can we see the transcript please?" Or, if they aren't feeling greedy, "Can we see the part of the transcript dealing with Witness X's testimony?"

No. No, you may not.

There is, in fact, no such thing as a transcript. Oh sure, there's a gifted court reporter taking down everything word for word, but it all gets sucked into her (hi Joni!) little machine and stays there, a million tiny words all jostling together nonsensically and in no way accessible to jurors or anyone else.

A trial transcript is a typed document that said court reporter (hi again Joni!) puts together Lordy-knows-how in the weeks after trial, so the defense and prosecution can have it for the appeals process. She can't just hit a button and have it all spew out for immediate consumption, her stenotypinggraphicalrecordinator just doesn't work that way.


2. Appeals. Here's the question I get: "So, if you lose a case, do you handle the appeal or does someone else do that?"

First of all, I don't lose.

Very much.

Second of all, no. Nope. Non. Nein. Niet. If the prosecution loses at trial, it's over. We do not get to appeal a not-guilty verdict, no how, no way.

Heaven knows, I've tried.


3. Public defenders. And the question this time: "Is it true that the public defenders are all overworked and hopeless?"

The misconception here is that we have a public defenders' office at all. We don't. Fifteen counties in Texas have one version or another and they operate like the flip side of the DA's office - housed in the courthouse and paid by the county, on a salary.

What we have in Austin (Travis and Williamson counties, technically) is a system whereby private defense attorneys get appointed to cases by the courts. So local defense lawyer Jamie Spencer (for example) may be in court representing a fee-paying client, the Prince of Thieves, and a court-appointed one, the Pauper, at the same time.

I've not studied the fee forms, but I think they get paid on a set schedule according to what they do - so a plea would be so much, a trial so much more. I am pretty sure that no one gets rich this way. Right Jamie?!


4. Trial duration. I surprise people with this one a lot because many often think or assume that a jury trial automatically lasts several weeks. They also think that jury selection is a days-long process.

Now, I guarantee that listening to windbag lawyers as they try and assess a jury panel feels like it lasts days but, except for capital murder cases, jury selection usually lasts just one afternoon.

As for trials, the vast majority are over in one week. In fact, the vast vast majority are over in two or three days. A DWI trial, for example, might consist of a single police officer witness, and that's it. Even murder cases tend to last a week or less -- very often people kill people at night, in the dark, away from witnesses. Which makes calling hundreds of witnesses rather hard.

Any other burning questions / conceptions you want answered / challenged?!

Jury trials this week

427TH JUDICIAL DISTRICT/ JUDGE CORONADO

Defendants: Albert Rivera
Offense: Aggravated kidnapping
Prosecutors: Erika Sipiora and John Hunt
Defense attorney: Tom Weber

Verdict update

Congratulations to Monica Flores and Beverly Matthews on a well-tried case and a great disposition for the victim.

299TH JUDICIAL DISTRICT/ JUDGE BAIRD

Defendants: Jose Alejo
Offense: Aggravated sexual assault of a child
Prosecutors: Monica Flores and Beverly Matthews
Defense attorney: Eloisa Ontiveros and Brad Urrutia
Disposition: Jury found guilty on all ten counts.

*NEW*: Jury assessed punishment at 75 years TDC.

Come here, my pretties . . .

Twice in the past week I've seen the same issue pop up - the alleged disparity in the criminal justice system based on whether someone is good looking or not.

First, fellow Texas blogger Grits for Breakfast addressed the issue on Wednesday, quoting a CBS story that cited a Cornell University study claiming that: "unattractive defendants are 22 percent more likely to be convicted than good-looking ones. And the unattractive also get slapped with harsher sentences - an average of 22 months longer in prison."

A lot of 22s there, friends, and that's a real specific number for something so imprecise.

I saw it again, reading a book review of The Beauty Bias (written by an ugly person, apparently) in the Christian Science Monitor.

Grits rightly questions the use of undergrads in the Cornell study but says, "one imagines it might be possible to devise a study that tested this finding empirically."

I doubt it, myself, but he's a smarter man than I am, so I read on. He suggests this:

"Take a subset of cases that went all the way to a jury. Rank defendant mug shots by attractiveness (perhaps using focus groups). Then chart the outcomes, grouping similar types of cases, for the homely and handsome alike, following up with juror interviews to round out the dataset with oral accounts."

Sounds like a decent idea, to me, in principle. Certainly it would be fascinating to know how much attractiveness plays a role in jury trials.

But here's the thing. Just because we (a) want to know something, and (b) live in a scientific world, that doesn't make knowing that thing a scientific possibility.

And here's why not, in this particular instance.

First, you have the problem of nailing down what is "attractive." Without knowing what that means, an answer is impossible. I suppose, on the left and right of the bell curve it's easy enough (Lyle Lovett v. Brad Pitt, for example) but it gets very hard from there on in. Grits makes a decent enough suggestion ("Rank defendant mug shots by attractiveness (perhaps using focus groups")) but at the end of the day you are left with a puddle of subjective opinions that forms a shape on the floor, and calling it immutable doesn't make it so. I mean, anyone ever pick a mate using a focus group? Remember that in a focus group you can have twenty people thinking a dude is hot, and one who doesn't. But in a jury it only takes one person to spoil the party. Just one.

You next have the larger problem of comparing cases, and this I would suggest (and have mentioned before in posts) is impossible. Within one "case" the following things are never identical:

-- the victim's role (provocateur, total innocent, etc)
-- the impact on the victim (sensitive soul, tough guy, etc)
-- the degree of harm (broken bone, snapped spine, amputated leg, etc)
-- the degree of intent to cause the harm (reckless, knowing, intentional, etc)
-- the defendant's criminal history (dude is always breaking people's spines, or did it just once, etc.)
-- the degree to which the defendant takes responsibility (pleads guilty but goes to jury for punishment, pleads not guilty, pleads not guilty and testifies to blame victim, etc)
-- likelihood of rehabilitation for defendant (smart guy with family support, not that, etc.)
-- the whiteness of the defendant's teeth (just kidding! Some don't even have teeth.)

See, with all these jelly-like variables being used to assess the impact of a jelly-like variable called "attractiveness" you are simply wasting time.

And please, feel free to waste time. Yours, of course, not mine.

Look, I wouldn't dispute the claim that in general attractive people often have an advantage over ugly mugs. But I don't think that means it's true in the criminal justice system -- the jurors I have always spoken to have taken their roles very, very seriously, looking at the evidence and not injecting their opinions as to irrelevancies like the size of someone's boobs or how nice their hair is. They don't do that for the women, either.

I suppose my point is that there are some absolute, unarguable, definitive problems with our justice system that could be studied and addressed. The quality of defense lawyers appointed to represent the indigent. The dearth of treatment and education programs for offenders. Low pay for dedicated (and very handsome) prosecutors. ADAs forced to look out the window at jail cells all day. The dearth of on-site, free massages for county employees.

You know, that kind of stuff.

New cases this week

Seems like a while since I've had a batch of new cases (crime must be down in Austin, yay!) and I know it's been some time since I've shared them.

Here's what came in yesterday and today:

Eight new cases for seven new defendants (although one defendant already has four pending cases). Here are a few details (ages are approximate).

1. Possession of controlled substance by fraud -- 3rd degree felony -- defendant is a mid-40s female
2. Burglary of a habitation -- 2nd degree felony -- defendant is a 30 yo male (has the four pending cases, all theft-related)
3. Possession of controlled substance -- state jail felony -- defendant is a 30 yo female
4. Failure to comply with sex offender registration -- 3rd degree -- defendant is a 60 yo male
5. Agg assault causing serious bodily injury -- 2nd degree -- defendant is a 50 yo male
6. Agg assault with a deadly weapon -- second degree -- defendant is a 35 yo male
7. Possession of controlled substance -- state jail felony -- defendant is a 35 yo male
8. Possession of controlled substance -- 2nd degree -- defendant is a 35 yo male