Hmmm

What are the odds she can articulate Marxist theory or what in particular looks like Stalin in this government? Further proof that the best argument against democracy is five minutes with the average voter.

Harmless Error returns

It's been a while since my last post - sometimes life throws things at you faster than you can blog about them. Here's what I've been up to in the last month:

1) Won my first motion to suppress in a DWI case. As with most DWI cases where your client looks really intoxicated on the video, you better hope the initial stop wasn't legally valid and you can suppress everything after that. Such was the case here, to my client's great relief.

2) The Actual Innocence Clinic at the University of Texas School of Law, in cooperation with the Dallas District Attorney and the UT Arlington Innocence Project, obtained our first exoneration. I flew up Friday to the hearing, which was an amazing experience. As I listened to Claude Simmons and Christopher Scott talk about the things they missed while incarcerated, I couldn't help but fight back tears. Claude's father passed away while he was in prison, and he had never been able to say his goodbyes. Chris missed raising his son, who was present in the courtroom. I also thought of Bob Dawson, one of my mentoring attorneys and a founder of our clinic who passed away in 2005. How he would have loved to have seen this. As a student, I loved actual innocence work so much he used to kid me that I would end up marrying a convict. While it hasn't come to pass yet, there's still time. The hearing was a great experience - and a reminder of why I first wanted to go to law school.

What Makes this Job Fun

Considering that my business involves dealing with some of the worst things people can do to each another on a daily basis, one might think that the practice of criminal law is not fun. Oh, to the contrary. Trying getting stories like these out of people who work in normal offices.

Yesterday morning I headed off to the courthouse, as is my custom, to go fight for truth, justice, etc. I arrive to find half of the defense lawyers (and defendants) in town milling around outside the courthouse and the Travis County Sheriff's Office informing everyone that they can't come into the building. I soon learn that something set the fire alarm off, but no one is quiet sure what yet. Despite the unknown cause of the alarm, the sheriff's office decides to let attorneys into the building (wistfully hoping for our demise?), but not any of the other people - leaving the lawyers client-less for court.

Once inside, I learned that the fire alarm going off in turn makes the elevators a potential deathtrap. The sheriff's office, in their collective government wisdom, proceeds to put yellow crime scene tape (three long pieces of it) horizontally across the first floor elevators so people wouldn't use them to go up. The only problem with this approach is that they didn't let the people on the 8 floors above know not to use the elevators, so those folks continued to get into the potential death trap and ride it down. Upon arriving at the first floor, the elevator doors would open, and the occupants would stare in confusion at the crime scene tape trapping them in the elevator. After a short consultation with their fellow elevator-mates, people would then crawl through the crime scene tape to freedom. I watched with enjoyment from a nearby bench as each new round of unsuspecting folks solved the case of the crime scene tape, and couldn't help but wonder - what other job could possibly match the practice of law?

Supreme Court Justice Doesn't Think Innocence Matters?

Being a former staff attorney and current board member for an innocence project, I generally do not blog on innocence-related matters (some would say I'm a little too close to the issue and they would be absolutely right). That being said, I'm going to break with my usual policy. I read something so appalling from one of our Supreme Court justices that it earned a post.

Yesterday, the United States Supreme Court took the highly unusual step of entertaining an original writ of habeas corpus in the Troy Anthony Davis case, ordering a federal district court in Georgia to conduct a hearing and make findings to determine if Mr. Davis could establish his innocence of the crime for which he is sentenced to die. In a deeply disturbing dissent from the majority's decision, Justice Scalia writes:

"This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent . . . If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of 'actual innocence,' it should set this case on our own docket so that we can (if necessary) resolve that question."

I'm going to go out on a limb here - if it violates the Constitution to execute mentally retarded people and juveniles, I'm going to guess that it would also offend constitutional principles of due process to execute an innocent person. Why does the Supreme Court continue to avoid holding what is obvious to any person of decency and morality - that the state-sponsored killing of an innocent person violates the law? It's an idea so simple a five-year-old could grasp it, but for some reason it eludes the highest court in our nation. The idea that the truth doesn't matter as long as we have complied with the law is offensive, and quite frankly, dumb. Too dumb a position for a justice on the nation's highest court to take.

While I love his interpretation of the Sixth Amendment confrontation right, Justice Scalia draws a big boo-hiss for making a comment that I would expect out of Presiding Judge Sharon Keller. Keller, currently on trial for closing the clerk's office at 5:00 p.m. despite knowledge of a last minute death penalty appeal, once stated in an interview to Frontline, "We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important." Seriously, where do we find these people and why are they on any bench, let alone a high court? Further proof that the only thing worse than appointed judges is elected judges.

DWI License Suspension - A Small Victory

For the poor, unfortunate soul arrested for DWI in Texas, many people are surprised to learn that an arrest for DWI triggers not just one, but two cases. The first is the criminal case, in which the State must prove beyond a reasonable doubt that you loss the normal use of your mental or physical faculties. The second is a civil case regarding suspension of your license for refusing or failing a breath test.

Under the Transportation Code, you are entitled to a hearing on the license suspension if you request one within 15 days after receiving notice of the suspension (for most people, notice is given to you by the officer at the time of arrest). The issues at the hearing are pretty straight-forward and the Department must prove by preponderance of the evidence (more likely than not) that:

(1) reasonable suspicion or probable cause existed to stop or arrest the person;
(2) probable cause existed to believe that the person was:
(A) operating a motor vehicle in a public place while intoxicated; or
(B) operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated;
(3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
(4) the person refused to submit to the taking of a specimen on request of the officer.

As a matter of practice, these are pretty much a slam-dunk for the Department. If the officer shows up and says he thought the person was intoxicated, then you lose. Every once in a while, though, something amazing happens.

I had a case this week that involved what's called a "total refusal" - the client refused field sobriety tests and the breath tests. The officer testified at the hearing that her speech was slurred and she was using the car door for balance when she was asked to step out of the vehicle. I offered the video for the judge, in which my client spends 20-30 minutes clearly and articulating telling the officer she does not want to perform his tests. No slurred speech. No balance problems.

Here's the amazing part: I actually won on the merits and avoided the license suspension. Hats off the the ALR judge for not merely rubber-stamping the arrest and making his own call. Many wouldn't have had the guts to do the right thing.

The Right to Cross Examine

In an interesting bit posted by the Washington Post, a Virgina judge threw out a breathalyzer certificate because prosecutors failed to make the person who performed the breath test available for cross-examination. The Virginia court relied primarily on the Supreme Court's most recent confrontation clause decision in Melendez-Diaz v. Massachusetts, which I gleefully posted on last month.

Of particular humor in the article was the comment, "But the prospect of bringing lab technicians and breathalyzer operators to court in every case has sent shock waves through prosecutors' offices across the country." My, my, my - isn't that a first-class example of the malaise of indolence gripping the government? The annoyance at actually being forced to call witnesses to prove their case before convicting citizens. Never mind that the framers (who had quite a few other issues to consider at the time) considered the Confrontation right so important it made the top ten list in the Constitution. This requirement has been in print for over 200 years and the new enforcement of it sends "shock waves." Amazing.

Despite the whines and cries to the contrary (and I assure you, this is whine in its purest sense), this is not going to "paralyze" the criminal justice system or result in mass loads of criminals waltzing out of prison. This kind of predictable scare tactic and misinformation usually emerges when the state doesn't get its way (by the way, come up with some new ones, really). Unfortunately, the claims actually have zero empirical evidence to support them. The vast majority of cases are still going to plead out, as many defendants are not going to risk going to trial on the gamble that a witness won't be available. And if it does end up clogging the system, perhaps the place to start is by re-examining our draconian and completely ineffectual drug laws rather than eviserating citizens' constitutional rights. In any event, it appears that the days of trial by affidavit are over.

Best "Boston Legal" Quote Ever:

Alan Shore: "My problem is the judge. His tiny brain has been calcified by intolerance."

Reading Case Law Depresses Me

So, being a younger attorney and not having the bulk of criminal case law memorized like my awesome mentoring attorneys, I frequently find that I have to go look things up. As I'm quickly learning, reading the law can be a rather depressing experience. Today's to-do involved researching whether or not statements made to law enforcement after arrest but before you were taken to see a judge were admissible.

I start off pretty excited, picking through the Supreme Court's recent opinion in Corley v. United States. There, the Supremes reversed a conviction because after arresting Mr. Corley, federal agents then took him aside and interrogated him rather than promptly presenting him to a magistrate as required by law. Mr. Corley, of course, gave both an oral and written confession, and a mere 29 hours later, he was finally taken to see a judge (to be fair to the agents, they did let him take a rest before he penned his written confession). No, no, said the court. You really do have to take people to see a judge rather than interrogating them in secret. This is America, after all.

Excited that the law appears to be on my side, I begin plotting my motion to suppress. I decide to check and see if Texas law carries a similar provision, and to my delight, it does. Code of Criminal procedure 15.17 requires that after arrest, the officer shall, without unnecessary delay, present the person to a magistrate. This language seems pretty straightforward to me, so the officer's decision to stop at the station and interrogate my client before taking him to a judge appears to be a no-no.

Not so, says the depressing Texas case law. Despite the fact that this law is on the books to prevent that exact abuse, every case I read says the defendant must show a nexus between the confession and the delay. And if they read you your Miranda rights, then it's totally cool. As one of the Supreme Court justices pointed out in Corley, this is not a constitutional issue. It's an issue of fundamental fairness and what kind of justice system we want to have - whether it's done openly or whether we allow people to be secretly interrogated before they get to talk to a judge. In this area, Texas gets an "F" for choosing the latter.

Harmful Error on Harmless Error!

In a state where some appellate courts go out of their way to find trial errors harmless, the Amarillo appellate court deserves a nod for their recent opinion in Mason v. State. The case involved the Potter County District Attorney allowing law enforcement to question witnesses in front of the grand jury, a clear violation of the grand jury statutes. The appellate court's opinion, to put it mildly, blasted the District Attorney for its blasé attitude towards following the law when indicting its citizens.

The opinion begins with this quote: “The greatest dangers in liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” - United States Supreme Court Justice Louis D. Brandeis. In other words, beware of well-meaning but dense people. As I read this, a few people come to mind immediately.

Speaking of dense, here's the State's arguments of why what they did was A-OK:

(1) State: "We misunderstood what the law meant." Appellate court: "Um, no. These statutes have been on the books since 1995 and 1989, respectively. And they were put there specifically to curb abuses in the grand jury process. Try again."

(2) State: "Who cares really? If we break these laws, it will always be a technicial violation that appellate courts will deem harmless error." Appellate court: "Wrong again - we're finding it is harmful error. Because otherwise you'll do this again and again with impunity."

They actually said it a little more firmly than that: "We cannot countenance the State’s purposeful violation of the law . . . If the State is able to avoid a just result in this case, its prosecutors will be able to violate these statutes with impunity and visit an injustice upon every citizen who comes under scrutiny by a Potter County Grand Jury."

Wow. Apparently some appellate judges take following the law pretty seriously. And think the State should too. Here's my favorite quote: "This is particularly unfortunate because the State’s error, as well as this possible cost, could have been avoided if the State had simply obeyed the law. Something the State requires of its citizens on a daily basis."

An appellate court upholding the law and demanding that prosecutors follow it as well? How refreshing. And subject to review by the Court of Criminal Appeals. This decision was about ensuring the integrity of our system - let's hope they let it stand.

My Legal Hero Wins Another One

Congratulations are in order (again!) for attorney Jeff Fisher, who won yet another case in the Supreme Court of the United States. The high court handed down its opinion today in Melendez-Diaz v. Massachusetts, ruling that lab reports are testimonial under the Confrontation Clause. Despite the fact that the decision was pretty clear under the Court's holdings in Crawford and Davis, the Court took over seven months to issue a decision, waiting until the conclusion of this term.

Which leaves one to ponder - what the heck took so long to issue this opinion? After the Crawford decision, which basically held that the Sixth Amendment actually means what it says (you have the right to be confronted with the witnesses against you), the question of whether you can have trial by affidavit in a drug case is a no-brainer. I suspect the practical effect of the decision was part of the reason it took so long to utter it - this means the State will actually have to call witnesses and prove its case. Shocking. Horrendous. And constitutionally required (pesky constitution!).

Jeff Fisher is one of my legal heroes. By age 33 he had argued and won two of the most groundbreaking criminal procedure cases to come along in a while, Crawford and Blakely. I met him at a conference once. I got to shake his hand. I got to tell him he was my legal hero. And I got to hear him laugh at me (not in a mean way - in addition to being an amazing lawyer he's also a nice guy). Hats off to him for continuing to shape confrontation law in a way that remains true to the spirit and purpose of the Sixth Amendment.

What a Relief

So, some days slogging through all of the little tasks on cases can be a bit mind-numbing. At times like those, I try and remind myself of the bigger picture and the payoff that comes from noticing details. You know, hum something patriotric and picture the Constitution in my head. Or take a mental break for a few minutes and surf the internet or check email.

I'm on a number of list-servs, which include some really smart people (and, of course, a corresponding number of really dumb people as well). As I was working through my afternoon to-do, this precious bit appeared in my email inbox from one of my wittier list-serv mates:

"Finding myself unwilling to do real work this afternoon, but unable to admit I'm lazy and simply go home, I turned the Webb County Jury charge into a blank form. I now will share it with the list." Attached was a jury charge on the newly enacted castle doctrine, which strengthened the self-defense law in Texas. My thanks to my refreshingly honest and altruistic list-mate for sharing - and validating that I am not the only one who has those kind of afternoons.
Castle%20Doctrine%20Jury%20Charge.pdf

Finding My Inner Chuck Norris

So, as part of my "get a life outside the law" plan, I actually went out this weekend to have some fun. On the agenda was a bit of shopping I needed to do - which led me to a great discovery. While in the store, I stumbled on a Chuck Norris poster that lists a number of facts that all fellow humans should know. Here's a sampling:

- Chuck Norris does not mow his yard. He stares at the grass and dares it to grow.

- Chuck Norris has a vacation house. On the sun.

- The dinosaurs looked at Chuck Norris the wrong way. ONCE.

- Chuck Norris can divide by zero.

- Chuck Norris can eat just one Lays potato chip.

And so on and so on . . . you get the point. Despite the fact that I am almost 30 years old, it took a great deal of restraint not to snap that thing up right there (ok, I admit it, I'm still thinking of going back for it). The only thing that held me back was where could I put this thing in my apartment without people knowing? Which leads me to my next genius thought - the Chuck Norris meditation. Insert your name instead of Chuck Norris in each of these sentences and you too can feel a sense of superpower welling up in you. I'm thinking it would be a great meditation before going into court. And I'm also thinking I'm going back for that poster.

The Business Side of Law

I detest writing this post because I was trained by a generation of lawyers who said law is a profession, not a business. That being said, every lawyer must learn how to set and collect fees or go the way of the academic. As a younger lawyer (and probably older lawyer too), this can be a difficult balance to strike. You want to help people who need help; you also want to keep the lights on. I take a certain number of pro bono cases each year, and have enjoyed them immensely (one guy hugged me and offered to come change a flat tire for me whenever I get one). The downside is that people you help for free like to refer other people who would like free services. Oops.

My recent challenges in this arena have resulted in what I will call the top 3 biggest misconceptions about lawyers and money. Unfortunately, I hear them frequently enough from clients that I know (and dread) that it's really happening:

(1) Myth: "So and so lawyer said if I paid X amount of dollars, they would get the case dismissed." FACT: WOW. I'm pretty sure that guaranteeing a client an outcome is a violation of ethics rules. How the case ultimately works out is based on the facts, the lawyer's skill, and the prosecutor with whom you're dealing. Any lawyer who guarantees an outcome for some outrageous fee has just guaranteed you one thing - you shouldn't trust them.

(2) Myth: "Can't I just pay some additional money and you talk to the judge/prosecutor and make this go away?" FACT: File this one under "great ideas that are actually a felony." Buying off judges and prosecutors may make a good Grisham novel; unfortunately, it rarely works in the real world and will put you (and your lawyer) in a world of hurt. Again - UNETHICAL, illegal, and not the strategy you want to take. Avoid the lawyer who advises you that this is a sensible course of action - a fifth grader could tell you that it's not.

(3) Myth: "If I pay you more money, can you get a better offer?" FACT: Again - Wow. That's so offensive. I'm working hard on your case for the fee agreement we discussed. If the offer we're getting is not all that great, I'm going to guess it has something to do with the facts or the 5 prior convictions the prosecutor is taking into account. When it comes to getting the best outcome for a client, most of the lawyers I know are motivated by a non-monetary concern for their client's welfare. If your lawyer needs that additional $500 to get motivated, time to start looking for someone who took their oath seriously.

I don't mean to sound Pollyanna or naive about this, nor to gripe endlessly about it. There is a business side to the practice of law - but for the lawyer you want handling your case, it shouldn't be all about business. 'Nuff said.

Confession - Good for the Soul . . .

But really, really bad for the case. I am always astounded at people's willingness to tell others - friends, family, THE POLICE - that they have committed a crime. Really, there are some things that shouldn't be shared, and if they are, can and will be used against you in court.

I've never had a deep, dark secret, so maybe therein lies my confusion about why on earth you would choose to disclose something that could land your ass in prison. I imagine that maybe it's like a pressing weight on your chest, an itch that can never be satisfied - maybe it tugs and tugs at you and the only relief is: (Ah!) to tell someone.

Here's a few reasons why that's maybe not such a good idea:

(1) If it involves harm to a child, whoever you tell it to probably has a statutory duty to report it. This includes, but is not limited to: counselors, clergy, and social workers. Check out Texas Family Code Section 261.101 which requires just about anyone (including a lawyer), to report. Interestingly, the drafters of the statute did not address the little issue of attorney-client privilege and the glaring conflict between this provision and a lawyer's duty of representation. Yikes.

(2) Whatever relief or absolution you get from telling will be pale in comparison to the prison sentence you will have just earned for yourself. Confessions (even false ones) are powerful evidence. With a few rare exceptions for legal reasons, they will likely be admissible against you at trial, and they will help ensure your speedy conviction.

(3) "But they didn't read me my rights!" This is one of my favorites. Somehow mainstream TV shows have convinced the general public that if the police don't read you your "rights," the whole case just goes away. WRONG. Miranda warnings only apply to people in custody: a.k.a. you are under arrest or the functional equivalent. If you voluntarily go down to the police station and give a statement, it's coming into evidence - warnings or not.

(4) "But the police just want to hear my side of the story." A close second on my favorites list. That may be entirely true, but please remember when you cheerfully head down to your local police station to give your side of the story, you will likely not be meeting with Barney Fife who wants to understand your perspective on the matter, but rather a skilled interrogator trained to gain admissions from you. Even if you have a completely innocent explanation, odds are they're not going to buy it. You are the target of the investigation - and their job is to get the evidence to prove it. Do the math, folks.

(5) As in many areas of performance, most people think they are better liars than they actually are. If you have committed a crime and think you can convince the police otherwise with some half-baked version of what happened, you are deluding yourself (except for the true sociopath who can lie without batting an eye).

The moral of the story is: even if you are as innocent as the pure driven snow, our system is not necessarily set up to recognize that (if you don't believe me, google "exoneration" and see how many people have fallen into this trap). Recognize that and contact a friendly criminal attorney near you before talking to anyone.

Travis County MHMR - a little heavy on the MR?

So, in the inane spirit of this week, I had an experience with Travis County Mental Health and Mental Retardation that caused me (yet again) to question the logic of government thinking. MHMR has a division called PES - Psychiatric Emergency Services. Note that the "E" stands for emergency. This will become important later. Here's a tidbit from their website about what they do:

"Our Psychiatric Emergency Services serve residents of Travis County who are experiencing psychiatric crisis. PES is designed as a free-standing walk-in psychiatric emergency service open 24 hours per day, 365 days per year. PES provides psychiatric assessment, crisis intervention services, linkage with resources and physician services to children/youth and adults experiencing psychiatric distress."

In other words, when you are totally losing it and having a meltdown, they provide emergency services to help get you stabilized. They even have a nifty hotline: 24/7 Crisis Hotline: 512-472-HELP (4357).

Earlier this week I had occassion to call this hotline to get help for a client for whom I was really concerned. I dial the EMERGENCY HOTLINE and no joke . . . get a phone tree.

"For English, press 1."
"If this is a psychiatric emergency, press 1"
"To schedule an MHMR appointment, press 2"
A ring . . . and a transfer to some bad hold music, which if I wasn't having a psychiatric episode when I called, I would be after about a minute of that music.

As I was not the one having a mental meltdown, I could appreciate the humor in this. But had I been, let's say, having a psychiatric emergency, perhaps I would not have been able to navigate the phone tree with such deft skill and disarming charm. Or wait on hold until I could talk to a human.

A phone tree on an emergency hotline. Really? No offense, but maybe the MR division is doing a little too much of the thinking at MHMR.

Life's Ups and Downs

After a short (ok, well 4 month) break, I had a day sufficiently weird enough to warrant a blog post. Here's what happened in the last twelve hours:

- Good: I got up early and left gifts for Administrative Professionals Day in the chairs of our office staff. I am particularly proud of remembering this holiday because I rarely remember any holiday. (Ok, ok, the signs in the card section at Walgreens gave me a little extra reminder).

- Not so good: Business day starts with a good dose of humiliation. Walked into a full courtroom with skirt riding up in the back. Despite having passed 10 people in the courthouse who could have said something, it took a nice lady in the front row of the courtroom to say something to me (after I have walked through the full gallery). My thanks to her and I hope she wins her case against the evil, heartless, soulless entity of CitiBank.

- Not so good: My brilliant career almost ended in a random and senseless automobile accident on Hwy 71 because some idiot pulled out directly in front of me. Came to a screeching halt to avoid slamming into the side of their car (thanks sis for hounding me to get that brake job in February), only to watch them blithely continue driving. Considered, then discarded, the idea of homicide.

- Hmmm: A mom duck followed by a bunch of baby ducks waddled through our parking lot. There is no water near our office. They are either Town Lake rebels or lost.

- Good: I won a drawing at my apartment complex and get to knock $150 off next month's rent. I NEVER win anything, so this rocks. Despite almost being killed in a car accident, I suddenly consider myself an extremely lucky person.

- Good: My sister gives me this piece of excellent advice for dealing with a particular difficult person, "Ok, well next time they call, transfer it to the hand and they can talk to that." I am currently eagerly awaiting the chance to use this on someone.

Ah, the life of a young associate. Now that I read it, it doesn't sound all that dramatic. Guess you had to be there. Or be me.

Austin DWI - Refusing a Breath Test

Forget about the 180 day suspension of your license for refusing a breath test. In the ever-increasing penalties for DWI, it's time to add a new one for refusing a breath test: a forced draw of your blood.

The Austin Police Department, along with a number of other metropolitan areas, has started no refusal weekends on major holiday weekends, the most recent being over New Year's. Exercise your right to refuse a blood test? Fine. They'll get a warrant and draw your blood.

Here's why we might want to consider being offended by this practice:

Drawing blood against a person's will is a major invasion - not just of privacy, but of our basic bodily integrity. Normally, there would have to be some compelling government interest to justify an invasion of that magnitude.

And . . . The Legislature (gasp!) apparently thought so too. In fact, they went to the trouble of listing the situations where an officer can take a specimen without consent. And they're pretty serious ones: where someone has died or will die, or where there has been serious bodily injury. They didn't authorize it in your ordinary misdemeanor DWI arrest. And that makes sense. Situations where someone has been seriously hurt justify a procedure that invasive. Your ordinary misdemeanor DWI arrests do not.

Yes, we want to stop the harm caused by drunk driving. But where is the line? How many times have we been told that we need to give up rights in the name of safety? Are we really willing to live in a police state in exchange for a questionable sense of security? For those out there who say yes, or who think this is ok because it only happens to "criminals," consider this: the next person to get pulled over just may be you.

Death Row Inmate Plucks Out Eyeball

This is probably one of the more disturbing stories to come across the wires lately. http://www.keyetv.com/content/news/topnews/story/Death-row-inmate-pulls-out-eye-eats-it/d2WNKvkIXE6BfA5XHm_nRw.cspx. Apparently a inmate on death row pulled out his own eyeball . . . and ate it.

I'll save the lengthy discussion on the propriety of killing people who are obviously this mentally ill. I will say this: if you needed any further proof that mental illness is a major contributing factor to people committing violent crimes, here it is. Unfortunately, this is not the first time I've heard of this happening - it's happened in our local jail as well.

Eek.

Christmas Passes Uneventfully - and It's Back to Work

Usually the Bachman family Christmas is filled with Griswold-esque events such as wasps flying out of the fireplace or backed up septic systems (all true stories). Not so this year. Christmas came and went quietly, without fanfare . . . and without incident. Normally the insanity of the holiday makes returning to work a relief. So it was strange just a mere four days later to find myself back at my desk, not in recovery or shuddering as I relive family bonding in my head, but just . . . business as usual. Oh well. Maybe next year we'll be able to create that grease fire or structural collapse that really gives the holiday meaning (and perspective on work).

Many people said that this year it was hard to get into the holiday spirit. Nonsense. What's more merry and bright than terrorist attacks, massive layoffs, and a collapsing economy? All the more reason to down a few stiff cups of eggnog, strap felt antlers to our heads Rudolph-style, and sing Christmas carols with exuberance that would put that Mormon Tabernacle posse to shame. After all, we're Americans. We can't let a little thing like reality stand in our way. As I'm quickly learning in my professional life, the ability to gleefully maneuver around "facts" is a skill applicable to many, if not all areas of life. And with that, it's back to the practice of law!

Child abuse and the attorney-client privilege

So, tonight at a meeting of the Robert Calvert Inn of Court , a group of lawyers who gather to discuss ethics and civility in the profession, the topic of conversation centered on the boundaries of the attorney-client privilege. And for the first time, I felt compelled to speak up and join the discussion.

The topic that caught my interest was the discussion of Texas Family Code Section 261.101 , which requires any person (including an attorney), who receives information about child neglect or abuse to make a report to the appropriate state agency. The requirement is squarely at odds with the attorney-client privilege, and makes it a crime not to report the information.

This rule has long bothered me, and I emphatically stated tonight that as to events that have already happened, I would not comply with it. It effectively removes the attorney-client privilege for a particular class of people who have been charged or accused of offenses involving children. It also makes candid communication with a potential client impossible. One lawyer tonight suggested that you advise the client at the outset that you may have to report certain things that they tell you to the authorities. I can't imagine a quicker way to shut down communication. In that regard, the rule is actually counter-productive. If you were to tell someone that, they would withhold precisely the critical information sought by the law, which does nothing to protect the child at issue from possible future harm or enable you to represent them effectively. Another person suggested that you inform the court of the information and let them decide what to do - in which case you have still violated the attorney-client privilege.

Maybe it was the two Shiner Bocks I had already had, but I felt the need to bring these points up to the group at large. Surprisingly, like the nerdy kid who is always raising his hand in class with a good answer, the moderator of the discussion asked me to repeat what I said in my "courtroom voice" so others could hear. Oh, the irony. Only in a room full of lawyers could one receive recognition for pointing out a legal justification not to report child abuse. Anywhere else I would probably be greeted with gasps of dismay and disapproving shakes of the head (or maybe tar and feathers). But such is the gift of lawyers - to be able to discuss something like that without the vagaries of emotion getting involved. For what it was worth, I did my best courtroom voice (I don't think I have one - the voice I have is the one I talk with) and made my stand. I pray I'm never put in the position of violating this law, but if I am, I'm glad to know it's only a Class B Misdeameanor - six months in jail is about all I can do on principle.

How much time have I spend on hold? Let me count the ways . . .

As I sit on hold with my dumb mortgage company, I wonder to myself: how many minutes, hours, maybe even days of my life have I spent slogging through phone trees, listening to really bad hold music designed to sedate my will to argue, and using my "inside voice" with intellectually challenged customer service representatives to achieve what should have already happened in the first place? On second thought, I don't think I want to know.

While I'm on the subject, let me take a moment to decry the usage of what I call the "defensive phone tree." In the good old days (1990's), you could just press "0" when you were tired of dealing with a robotic jerk and wanted to speak to a real one. Not so now. The phone tree wants to negotiate with you. It wants to understand. It "just needs some information" to direct you to the "right" person.

Here's her new ploy. In response to "0" she says sweetly, "I'm sorry I didn't understand -" [me pressing "0" again] - "I'm sorry, I still didn't under-" [me pressing "0" again fervently, repeatedly, angrily]. I do that about six more times before she pauses and (no joke) says:

"Are you sure you want to speak to a customer service representative?"

Do I press "1" for "Hell, yes"?

Results for the July 2008 Texas Bar Exam Posted

Congrats to the new army of lawyers who passed the July 2008 exam . . . as a former comrade, I know well the anxiety and fear that was just relieved today!! But as Above the Law notes, this is a invitation to be careful what you wish for - if you have any doubts, check my post on I Contemplate a Nervous Breakdown . In other words, now begins the hard stuff - that you may truly and impartially administer justice. But for tonight, we celebrate!!

Vacation Looms Large!!!

As any lawyer will tell you, the stress of this job can quickly turn you into, well, a piss pot. Such has been my state the last few weeks - cranky, stressed out - an ill-tempered shark with a frickin' laser beam strapped to my head. I'm long overdue for a real vacation - and tomorrow it begins!!

I'm hoping to come back a little more even-keeled, centered, and ready to bear my proverbial fangs in the zealous pursuit of justice. There's nothing like a week away from the law to give perspective on the law. No cell phones, email - just me floating in the ocean. Que Bueno!!

On the Move Again

With my impending vacation just four days away, and my move to a new apartment scheduled for the day after I return, I decide to get serious about the process of packing my life into little 2' x 2' boxes.

Moving, for me at least, is a very illuminating process, and given that I seem to be doing it every couple of months lately, that's a lot of self-examination. With each move, I find myself examining this collection of things that I cart around with me, shedding the things that no longer serve me, and entertaining new visions of what I would like to create instead. What surprises me most is not the things that I want to keep, but the sheer number of things I could care less whether they make it to the new destination in one piece. While my sister is a very meticulous packer and preservationist (read: Pack RAT), I find only a few things give me pause enough to really pack them carefully: a set of candle holders that have illuminated some of my most beautiful memories; family photos in frames carefully chosen by loved ones; a set of pots that my mother bought for me for no reason other than she wanted to surprise me with a gift.

I throw away (and give away) a lot of things when I move. My sister, god bless her, is always right behind me, rescuing things from the trash with a disapproving shake of the head and a "You can't throw that away!" or my favorite, "But you could get money for that!" I could, but really, who cares? For me, those things are a remnant of a life already lived, a relic of the past rather than a part of the future I want to create. And my giveaways create a virtual free-for-all of joy on CraigsList - people calling me at 11:40 at night to come get the free desk or set of left-handed golf clubs. It makes me happy to see those things go onto their new life with no deals, bargaining, or money changing hands. My favorite part is meeting the wonderful people who come to pick up my stuff: parents who needed a desk for their teenage son; a family of five who obviously didn't have much money but were estatic about new couches; a husband who wants to share his love of golf with his wife. Those moments are, in the words of the credit card commercial, priceless.

I Contemplate a Nervous Breakdown

So, here's the thing they don't tell you when you're applying for law school. The practice of law is stressful with a capital "S." As a mere yute (yes, "My Cousin Vinny" references will be used freely in this blog), the practice of law holds promise - a power to right wrongs. There's a wonderful phrase etched into the southern wall of the UT Law School that used to stop me in my tracks: "That they may truly and impartially administer justice." I filled out the application for law school with all of the fresh optimism of youth, having no idea what awaited me around the bend.

Today, a convergence of events had me, quite literally, ready to tear my hair out. As I was driving to meet a friend for lunch, I passed a bumper sticker that said, "If God doesn't give us more than we can handle, then why do people have nervous breakdowns?" A solid point, and one I was ready to acknowledge might be descriptive of my current situation.

Forget my last pollyanna post. The responsibility of having someone's future in your hands at my age is no small thing. It keeps you up a night, makes you sick to your stomach when you least expect it, and invades every area of your life when you're not at work. In retrospect, I think I would have liked to be a poet or a farmer. They get to sleep at night (well, maybe not the tortured poet, but I would have been the contemplative kind). And for folks who think their lawyer doesn't care - just because you can't see it (and I have a professional responsibility not to be freaking out with you), doesn't mean I'm not worrying myself into knots on your behalf.

Which brings me to the concept of professional distance - the strange euphemism that you can somehow shut off your human-ness and be a detached part of what's going on. They actually teach courses in this stuff in other professions, such as medicine, and they probably should start doing it in law school as well. It's a valuable skill that lets you do your job and respond to the situation at hand without disintegrating into a useless pile of jello.

As wracked as I am though, I don't want to be detached. My concern for my clients keeps me working well into the late hours of the night, determined to find the argument or case law that will help make their case. The moment I become apathetic is the moment I need to find another profession. While it may eventually qualify me for prescription meds or a straight-jacket, my concern might just be the difference between a conviction and a two-word verdict. Or so I hope.