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A new “study,” if you want to call it that, has been made public which concludes that those appellate advocates who have more questions thrown at them by the judges on a given panel stand a much more substantial likelihood of losing.  Actually, this study is simply a batch of anecdotal conclusions generated by a young lawyer up in D.C. who decided to sit down and track the number of questions put to a lawyer appearing before the Supreme Court.  She then tabulated who won or lost as the case may be.  That side grappling with the greater number of questions lost nearly twice as often as the other side.  But she only looked at a handful of cases. 

When Chief Jusice Roberts heard about this, he did his own bit of research.  Since he was a very busy advocate before the Court, having argued over thirty cases before the high court, he was in a unique position of falling back on his own experience as well as looking at hard numbers.  And yet, with the increased number of cases at his disposal, he came to the same conclusion.  The lawyer who finds that he or she is having to deal with more questions than the other side can expect to lose.  It’s that simple.  And then of course, you have to consider the kind of questions and the language incorporated within those questions.  And that’s exactly what some professors have done by looking at some 2,000 arguments and perhaps 200,000 questions.

The professors reviewed the content of the questions, looking for friendly words and phrases and that language which they termed hostile or skeptical.  Again, their findings only echoed that of the young lawyer and C.J. Roberts’s conclusions.  The theory isn’t simply that the sheer number of questions decides who wins or loses.  Rather, it goes deeper.  It’s indicative of the mind-set of the judges and what they are thinking, even before the appellate lawyer opens his mouth.  The judges have already come to some kind of conclusion and are using the questioning process to win over who they see as holdout votes on the panel.  They are simply using the lawyers and the interrogation process as a blackboard to persuade other judges to come over to their side. 

Some experts have concluded that if this preliminary research really holds water, then the key to a successful appeal - that is, either keeping your judgment intact or getting it reversed - is maneuvering the appeal and drafting the brief so that the other side is the one that gets hammered and you sit pretty.  It all sounds good and so easy but getting to that point where you can sit down with confidence before the panel or the court en banc with the smug satisfaction that you have set up your opponent for failure would take, I would think, some real Machiavellian finesse.  Besides, I don’t need a study to know that if I’m the one getting pounded, whether it be by a “friendly” Amarillo appeals court panel, the stoic, stone-faced Court of Criminal Appeals or a Fifth Circuit panel made up Judges Jolly and Edith Jones, I know my fate and that of my client’s.

When you first see it, you really can’t believe what transpires before your eyes.  But there it is.  The video captures a high-speed chase of a van.  The driver swerves to avoid a spike-strip thrown down by an officer, hitting him in the maneuver.  Within seconds, the driver of the van loses control, careening into a ditch.  As the van flips over onto its side, eventually ending upside down, the driver is tossed through the open driver’s side window.  His body lands on the earth like a bag of dirty laundry.  As the man lies unconscious, five officers attack.  One of the officers kicks the prostrate man, some pummel him with their fists; another even uses a billy club.  The shocking attack last about ten to fifteen seconds. 

No one knew about the existence of the video until prosecutors for the Jefferson County D.A.’s Office were preparing the case against Anthony Warren, the driver.  Warren eventually pleaded guilty to first-degree assault on the officer injured during the chase.  And the release of the video to the public resulted in the automatic termination of the five officers involved in the beating.  The combined law enforcement experience of the five terminated officers was 50 years, erased in a span of ten seconds of violence.

The existence of the video was known within the Birmingham P.D. for the past several months and apparently had been viewed by several high ranking officers and supervisors within the department.  Of course, the question posed is simple.  Are the actions of those superiors in suppressing knowledge of the existence and content of the tape criminal?  There’s no doubt that the video was evidence in the prosecution of Warren.  He has recently filed suit against Jefferson County, claiming permanent injuries due to a severe concussion and fractured skull.  Take a look at the actual video and judge for yourself if the terminations are an adequate response to the incident or whether prosecution is in order.   

The San Antonio appeals court handed down a decision on April 22, holding that a warrantless search carried out with a minimum of “reasonable suspicion” and authorized by term of probation that the defendant was bound by (by virtue of his being on misdemeanor community supervision) was “reasonable” under the Fourth Amendment to the U.S. Constitution.  It specifically did not address the defendant’s involuntary consent argument under Tamez v. State, 534 S.W.2d 690 (Tex.Crim.App. 1976).  That would have involved analysis under the Texas Constitution, requiring a finding that defendant’s “consent” was freely and voluntarily given under the more exacting “clear and convincing” standard.  Practitioners need to be aware of this case and its clear implications for all those who may be subjected to these kind of warrantless searches of their residences or cars which they may be riding in or possess.  Go to Significant Decisions page; Townes v. State, No. 04-08-00392-CR. 

Who do you think gets lied to more often by the accused?  Those down at the cop-shop or the defense lawyer, newly retained or appointed?  I’m willing to wager it’s the latter, hands down.  Over the years, I’ve amused myself by trying to determine just how much honesty comes out during the client interview and how much is fairy tale.  Let’s face it - we don’t have anything to rely upon to base our opinions about the client’s mendacity or truth-telling ability for that matter.  All those signs and cues that anecdotally we think are indicators of lying are bogus.  Liars do not avert their eyes in an interview on average any more than people telling the truth.  Nor do they fidget, slump down in their chairs or heaven forbid, sweat.  That’s just a sign of stress, nothing more or less.  And don’t get me started about the polygraph, a/k/a known as the “truth box.”  I know some lawyers really believe in them but they haven’t been hooked up to the damn things.  You want a fair assessment of the lie detector machine?  Just remember that Tommy Fine sat through one with Hutchison County law enforcement when they were investigating the drowning of his unfortunate brother-in-law and the police gave him an FDA Grade A rating.  Only problem was he was lying through his teeth the entire time.  Dogged, old-fashioned investigation by Amarillo lawyer George Whittenburg brought the whole tragic affair to light.  The Fine family, a feast of snakes as there ever were, are all, with the exception of father Tom Fine, in federal prison where they rightly belong. 

But now there’s a new approach which law enforcement has been utilizing as of late and one that I have found myself using, even if subconsciously.  The method is simply to focus on the content of the story given by the subject.  What’s required is not so much a structured interview but more along the lines of a chat in a bar.  That and having the client go over the parameters of the essential story to the case more than once.  Mind you, the lawyer has to listen carefully to what the client is saying.  That means really listening and not just taking notes.  And then going over the same subject matter again and again if necessary.  Something becomes apparent.

People concocting a story prepare what they are going to say according to a set script.  It’s as if they select a version, etched in stone, and they’re sticking with it.  By contrast, the client trying to tell his or her story and working at being open and honest has no script.  Hence, their story tends to be a little “sloppier” and brings in additional extraneous tidbits than the time before.  As long as the general theme remains the same, they strive to remember more details.  Their recitation is richer in descriptive decor.  What’s going on is that the repeated interview triggers the associative aspect of a person’s memory.  Each rendition tends to dredge up more details of the incident.  That’s how memory works.  It’s not like a DVD recorder where one just hits the play button.  It has to be prompted with questions and follow-up cues.  If you’re telling the truth, mental repetition of context and circumstance triggers more and more detail.  But if you’ve concocted the story, well, you’re locked in and it’s not changing.  The lying client sticks to his version, regardless of the physical facts or gross inconsistencies. 

Of course, it helps to know as much about the factual situation as possible.  This can be accomplished by having read as much about the case, usually from offense reports and witness statements, before the series of interviews with the client.  These are crucial to be sure, especially if you sense that the case is one that simply cannot be pled and will eventually proceed to trial.  But the new approach is on to something, I’m convinced.  It’s not the external signs of shifting eyes, sweaty palms or fumbled speech.  It’s all in the actual content of the story itself.  

Well, let’s see.  The Preakness.  What to make of it.  I can’t think of a time in recent memory where the Derby winner came back to the second leg of the Triple Crown series with a morning line of 6-1.  But logically, it’s the right call.  Mine That Bird freaked in the Derby and the rest of the field ran, quite honestly, a plodding-type race.  Just think: what if MTB hadn’t popped that 108 Beyer with the rail-skimming run and Pioneerof The Nile had nipped Musket Man at the wire in the closest finish since Silver Charm head-bobbed Captain Bodgit in ‘97?  Would we all be talking about PON marching toward a possible Triple Crown after having ran a lowly 95 Beyer speed figure?  I don’t think so and possibly, the guys who calculate the Beyer (maybe including Andy himself) would have gone back and reconfigured.  But it didn’t happen and MTB did win in the slop and now we have the girl against all these boys.  Let’s take it from there. (more…)

Yesterday, the Amarillo Court of Appeals handed down its opinion in Milo Williams v. State of Texas, No. 07-08-0109-CR.  Williams was convicted in the 2001 shooting death of an Amarillo convenience store clerk and sentenced to life in prison.  My connection with the case is tangential.  I, along with Amarillo sole practitioner Van Williamson, represented Sedrick Jerone Ryan who was originally indicted for the same murder.  Van and I worked together well and I’m proud to state that we secured an outright dismissal on behalf of Defendant Ryan.  Although the D.A.’s Office indicated that ”new information” had come to light which necessitated the dismissal (what the new information was we were never made privy to), both of us firmly believed that getting the district court to enter discovery orders with a firm deadline was instrumental in forcing the State’s hand, causing them to re-evaluate their case.  We felt then, as we do now, that a rare occurrence took place - an innocent man dodged a near fatal bullet without having to go through the ordeal of trial.  OK, we get to toot our horn and get that out of the way.  However, while reading through the opinion this morning, I came across the following in the factual statement of the opinion and it made me stop dead in the water.  I’ll reproduce the portion that prompts this post: (more…)

Horton Foote and his wife, Lillian, were in attendance at a New York theatre back in 1957 watching a play “The Midnight Caller.”  Among the cast was a young actor named Robert Duvall.  His performance so impressed Lillian that she remarked to her husband “that boy who played that forlorn drunk, he could play Boo Radley.”  And, of course, for all of us who have made the cinema part of our culture of growing up American, he did just that, making his film debut as Radley in the 1962 classic “To Kill a Mockingbird.”  For the uninitiated, Horton Foote wrote the screenplay to the movie.  The movie garnered a slew of Oscars, rightly so.  Horton went on to write the screenplay for yet another Oscar winner, “Tender Mercies” with Duvall playing, again, a forlorn drunk who cleans up his act with the help of a good woman and her son in need of a decent father.  Duvall was in New York last night paying homage to Foote, who died in March at the age of 92, and the written legacy he left behind.  Although Foote will be best remembered for those two perfect screenplays, the bulk of his work was devoted to the theatre, the medium he truly loved. 

He won the Pulitzer Prize in 1959 for his play “The Young Man From Atlanta” and followed that up with many other plays.  Whereas Faulkner had his fictional Yoknapatawpha County and McMurtry writes of Thalia in place of Archer City, Foote based many of his plays in the fictional small town of Harrison, Texas.  It’s based on his hometown of Wharton, Texas but I wonder if he lifted anything from my old hometown of Marshall since it’s the county seat of Harrison County.  The characters and dialog from some of those plays belie a sensibility straight from the folks in and around the East Texas piney woods.  And even up to the ripe age of 92, Foote never lost his drive or skills.  His most recent Broadway production, “Dividing the Estate,” was nominated for a Tony Award for best play in 2008. 

Others who appeared at the memorial Monday night were playwright Edward Albee, actor Harris Yulin (who played a very, very good Wyatt Earp in “Doc” with Stacy Keach and Mel, the crooked cop, in “Scarface”).  Maybe Albee got the best reaction out of the audience when he compared Foote’s work to that of Thornton Wilder whose “Our Town” is enjoying a revival in Greenwich Village.  “They both wrote serious, tough plays about real people - not neurotic city folk,” said Albee, drawing a chorus of laughter from the mainly, probably-most-likely city folk packed into New York’s Lincoln Theatre.  Albee concluded his pithy comments by noting that “Horton Foote wrote tough, serious plays about people to whom nothing happened, except that they lived their lives.  He never wrote a character in any of his plays.  Horton only wrote people.” 

Federal judge Samuel Kent who presided over the Galveston court for nearly twenty years was sentenced on Monday to 33 months in the Bureau of Prisons after having pled guilty to one count of obstruction of justice.  That was the deal he and his lawyer cut with the Department of Justice just as his trial was getting underway in February.  In return, the Government dropped five charges alleging that he repeatedly groped and fondled two women in his office staff.  Prior to the judge’s plea, he had vociferously denied that he had ever touched the women inappropriately.  But during the plea hearing, Kent admitted under oath that he forced himself on both women, in stark contrast to his earlier statements made to a Fifth Circuit judicial council that both women had agreed to his advances.  He also admitted that he lied to the judicial council, headed up by Chief Judge Edith Jones, when he stated that his only contact with the second complaining office employee, secretary Donna Wilkinson, consisted of a single kiss.  That lie was the basis of the obstruction of justice count to which he pled. (more…)

Some years ago, I got into a snit with another lawyer, the reason which isn’t important now.  But the cause of our disagreement over the issue boiled down essentially to what I called the matter and importance of experience - sheer, vulgar experience - in influencing, if not ultimately determining, one’s views about the law and that of life.  I couldn’t divorce my attitudes from the feelings and memories that I extracted from my experiences in specific cases spread over the years.  Perhaps the other lawyer operated from an identical posture.  I couldn’t tell.  But at the time, I was convinced in my own mind that the wealth and breadth of my experiences on the given subject over which we violently disagreed gave me a keener perspectiveand, I believed, a more realistic, flexible one.  I felt that my opponent suffered from an over-the-top virtuous attitude which many, including me, refer to as the holier-than-thou effect.  You know the kind. (more…)

Below are a few (with thanks to Blackie Sherrod):

There is a distinct possibility that plumbers are the greatest heroes of all.

It’s not the income, it’s the outgo.

At the track, better a short price than a long face.

You are welcome to Dennis Miller.

Before you can become an accomplished writer, you must become an accomplished reader.

Bring back Bob Uecker’s beer commercials.

A doubter will never be perfectly happy but neither will he be hopelessly disappointed.

Stop smoking if you can.  If you can’t, you must. (more…)