Why am I here? Part 1 (Military Criminal Defender)

July 30, 2010 § 1 Comment

I’ve been asked this a couple of times since starting this blog. Why am I doing this job?

The short answer is that it is the most rewarding professional endeavor I have ever undertaken.  But, this does not really answer your question. You want to know what caused me to find it rewarding.

Fair enough, but don’t expect the explanation to be easy or quick. I labeled this as “Part 1″ because I do not anticipate finishing my thought today.

In the courtroom during my previous life

People ask me the question often because of my background. I appear to be the ultimate in modern conservative values. I was raised a Methodist in Kansas (Bob Dole country). I did well in school, excelled in sports, and earned a slot at the United States Military Academy despite growing-up in a lower-middleclass family. From college, I entered the Army Infantry where I earned the Ranger Tab and Expert Infantryman Badge. From outward appearances, I am a poster child for WASP conservatives. That’s why people are a bit perplexed.

The answer is not simple, nor can it be traced to one single event or isolated chain of events. Instead, it comes from a history of random events dating back to my adolescence.  Don’t worry, I won’t give you the full 25 year history from that point forward. Rather, I’ll take the key events one at a time, and in no particular order.

Go to the year 2005. Consider a young Army Private named Boudreaux.

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Defining a Complex Case

July 29, 2010 Comments Off

“Have you ever had a murder trial?”

That question arises in conversation again and again. When someone discovers my job as a trial lawyer for military criminal cases, it is inevitably one of the first questions they ask.

Finally, I started asking why.

Their answer? It must have been hard, exciting, or both.

I don’t blame them for the perspective. Murder cases make movies and episode after episode of Law and Order and CSI. They look titillating, full of twists, turns and exciting posturing on the part of the attorneys. They involve a dead human.

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Teachers Suspended for showing “Flex Your Rights” Video

July 28, 2010 Comments Off

I sincerely hope there is more to this story than what we see here. If not, my faith in public school administrators might fall another notch.

Evidently, two high school teachers in Virginia were suspended for showing the video “Busted: The Citizen’s Guide to Surviving Police Encounters” and distributing a flyer designed and distributed by an organization called “Crimethink.” The video is produced by the folks at Flex Your Rights whose primary goal is to encourage an educated population that understands its constitutional rights.

The last paragraph of the post at FlexYourRights.org summarizes their position:

Indeed, no American should ever be ashamed to assert their Bill of Rights protections, and our educators should be praised, rather than reprimanded, when they teach constitutional rights in the classroom. Withholding this important knowledge from students is gravely irresponsible and we’ll vigorously oppose any effort to silence or mischaracterize the work of our organization.

Here is the video,  posted on YouTube by Flex Your Rights.  I encourage you to form your own opinion after you watch the video and read the news article, the Crimethink flyer, and FlexYourRights response.

See the post at FlexYourRights.org here.

See the original news report here.

The flyer that was distributed is posted here.

So, what do you think? Is the school administration properly safeguarding young Americans and holding faculty accountable for missteps?  Or, are you fearful that their copy of the constitution might get burned with the other books in the library (at a cozy 451 degrees F, of course)?

Frankly, I support any effort to teach constitutional rights–especially from a practical perspective. Considering how many of my clients confess before I become their lawyer, I have little faith in the traditional methods of teaching high school civics.

A Sobering “Success” Story

July 27, 2010 Comments Off

Sign, Wapello, Iowa. This was put up in reacti...

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Last night, I read a post on the blog “Simple Justice” which is owned and operated by Scott H. Greenfield, an attorney in New York City. It is a disturbing post. With both sarcasm and irony, he titles it “A Success Story.” I encourage you to read it before proceeding further.

Essentially, it highlights a suicide note he received from a man who was convicted of internet solicitation (in a gay chatroom). Over 8 years ago, the man accepted a deal as recommended by his attorney (not Scott Greenfield) with the understanding that his record would be expunged following 3 years of probation. Now 8.5 years later, he continues to be registered as a sex offender. He lives in his own personal hell. No public defender exists to help him to correct his situation, and he lacks the money to retain assistance.

Many argue that sex offender registration is not a punishment. You could have fooled me. For these individuals, it is a perpetual purgatory preventing them from obtaining meaningful employment and moving forward socially. Is it necessary for some? Perhaps. Have we taken it too far? Absolutely.

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The Influence of Gerry Spence

July 26, 2010 Comments Off

My intent is to tell the truth as I know it, realizing that what is true for me may be blasphemy for others. Gerry Spence – Give Me Liberty

I confess that I am not a graduate of the Gerry Spence Trial Lawyer’s College, though several of my friends are. I also confess that I have never met Gerry Spence nor spent hours studying his various books and essays, though I occasionally peruse his blog. I know he has an amazingly dedicated and vocal following–akin to that of Apple Computer. Success speaks for itself. I cannot say that I agree with everything he says, but he and I generally inhabit the same ballpark.

I certainly appreciate his zest for raw advocacy and appealing to human, rather than legal, aspects of representation. I also appreciate his influence on several of my colleagues who improved their practice dramatically after attending one of Gerry’s seminars. I am actually a beneficiary of someone who often works with the Trial Lawyers College, Joshua Karton, and he provided me with invaluable insight into my abilities as an advocate. If the Trial Lawyer’s College mirrors the experience I had with Josh, then I wholeheartedly recommend it.

I also enjoy Gerry’s insight on Liberty. He voices his appreciation for our human rights while heaping [largely deserved] condemnation upon those who he perceives as a threat to the same. As a libertarian, I believe strongly in a broad and empowering interpretation of our Bill of Rights, and I maintain that our government’s main role should be to ensure that these ten principles are allowed to continue and flourish. The thing that gives us strength as Americans is not our form of government, but the rights it is intended to protect.

I appreciate anyone who loves advocacy as much as Gerry. He cut a successful path away from mainstream lawyering and created a brand of advocacy that is both effective and illuminating. Someone once told me that they hoped to follow in his path. I will not. I suspect he would not want me to.

Instead, perhaps I will borrow his machete for a little while as I create my own path.

Damn the torpedoes.

We need more lawyers (Part 2)

July 26, 2010 Comments Off

(Part 2 of 5)

Previously, we discussed one of the five major issues influencing client satisfaction and dissatisfaction: lack of responsiveness.  Before moving forward, it must be abundantly clear that I feel strongly about complaints regarding a lack of responsiveness because it is a bedrock complaint. It is a factor that causes or aggravates most other complaints. As other problems manifest themselves, the attorney becomes less motivated to confront them because they become annoying, time-consuming, and an area of frustration for all parties involved. This is an example of human nature. To illustrate this point, consider a situation once faced by many of us.

Each of us has returned to our residence to notice our answering machine blinking, and we know it is not a message we want to hear. The red, LED light pulses rhythmically, gently illuminating the room. It seems to warn us of the message contained in the little box. Perhaps it is a disgruntled significant other, a bill collector, or a family member asking for money. Either way, we do not want to face the situation because it will cause us discomfort. So, we don’t push the button on the machine.  Instead, we allow the message to languish unattended for the night, and perhaps the next day, and perhaps longer. It may reach a boiling-point where you find yourself huddled behind your couch as the offended party raps at your door incessantly. The feeling is the same. Your feeling of dread overwhelms the fact that you know you must face the problem.

When we provide services as attorneys, we must suppress this natural response to unsavory confrontation. Our motivation is our duty–the duty we earned after 3 years of postgraduate study and an insanely difficult bar examination. Here, there are no excuses. Our duty is to push the button on the machine, regardless of the pain we feel from the knots in our stomach. It’s not easy. Then again, our job is not supposed to be easy.

As you know from before, I am using these points to lobby for more attorneys to share the many clients out there.

Now, the second point generating client unhappiness deserves attention.

Cost and Billing.

Let’s start with two assumptions before I proceed to conclusions.

1. Attorneys deserve to get paid for the value of their services.

2. Clients deserve to know the value of what they are getting.

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On Vulnerability and Fraud

July 24, 2010 Comments Off

Being the subject of a criminal investigation, trial, or other adverse process is amazingly taxing for any human. It drains a person emotionally, physically, and sometimes spiritually.

Due to this, these people are often in an emotionally compromised position. Their suffering causes them to reach-out for anything that purports to provide comfort, understanding, and hope. This makes them especially vulnerable to a wide variety of flim flam, charlatans, and con artists.

Unfortunately, I’ve seen the direct result of these con artists, and it always ends badly (even with the best case scenario, my client still has a lighter wallet). Purveyors of quackery and false (but expensive) hope congregate their shops near the gates of most military installations hoping to quickly deprive servicemembers of a portion of their government paycheck.

Several individuals are working to protect consumers against such fraud. They include James Randi and Michael Shermer, and I hope they make significant headway soon. Mr. Randi appears in the video below, where he takes a lethal dose of “homeopathic sleeping medication” in front of his audience.

My clients are at a vulnerable point in their lives, and when they fall prey to this type of con, it makes me sick.

What is my interest in Public Health?

July 23, 2010 § 2 Comments

What is my interest in public health?

First, public health concerns itself with the overall health of communities, and it includes physical, mental, and social health education and disease prevention. It is extremely broad in scope and addresses health on a macro, community-based level.

Let me first qualify something. I have no formal public health education. I have no specific degree in the discipline, nor have I participated in a certificate program. In that respect, I am uneducated and untrained in the field.

On the other hand, I followed my wife through her MPH (Masters in Public Health) and her current course study for a DrPH (Doctor of Public Health Leadership). She uses me as a sounding board as she prepared projects and papers and now as she develops a doctoral thesis. As she focuses on her classes, I draw parallels with my criminal defense practice, and its applicability to the field are striking. In fact, one overriding theme repeats itself in almost every scenario, topic, or discipline that she studied:

Criminal behavior is caused, in part, by a failure or oversight in a community’s public health system.
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We need more lawyers (Part 1)

July 22, 2010 Comments Off

(This is the first of a 5 part essay.)

The title of this essay probably sounds like a wonderful joke to some, a perplexing/disturbing admission to others, and a self-serving sham to the rest.  But, its true. I believe we need more attorneys in the world.

The general population has a stereotype for lawyers, and that will never change. Jokes with dead lawyers in the punch line will not go away just because there are more or less of us. So, this essay does not concern itself with the macro-level public approval ratings of attorneys.  Besides, when those folks get in a jam, they will look for the best attorney they can find, just like the rest of us.

We need more attorneys because of what our clients say. In surveying various authorities on the problems with attorney representation, I found a succinct list of 5 areas for improvement compiled and explained by Jeffrey Miller and Jill Kohn at the Lawmarketing Portal. They distill complaints into these 5 areas:  cost and billing, lack of response, incompetence, not understanding the client’s needs, and conflicts with partners or staff.

Let’s take this one out of order, to an extent.

Lack of Response. This complaint rears its ugly head constantly. Every attorney I know, including myself, has been accused of this at one time or another. Frankly, I was guilty of it–especially when I was balancing a number of cases or in a busy court week as a military public defender. I’m not proud of it, but its true. Looking at the why of this complaint, the response is nearly universal among my colleagues–workload.

I talked with a paralegal once who was lamenting about her boss, an attorney. The prior week, she assisted him in hauling over 60 divorce files to the courthouse for action. Over 60! Those were only the cases he had in court for that day. What about the next week? Month? How does a person remember the names of their clients, their specific needs, and display the level of advocacy necessary to truly represent their client during what is, undoubtedly, one of the most significant stages of their life. Several of these clients became my clients for separate matters. In some way, they all asked “I hope you’ll return my calls, because my last lawyer didn’t.”

Considering that each of these cases likely generated $1000-$2500 in fees, the attorney received a significant paycheck for that week/month, but at what cost?
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Humbled…

July 20, 2010 Comments Off

I truly feel humbled when receiving compliments, and that aspect of my personality seems to strengthen with age.

As a Senior Defense Counsel, I always deflected compliments and found a way to send them in the direction of one of my subordinate attorneys or paralegal. I was not being disingenuous. Rather, I truly felt that their assistance and presence made the difference.

Once again, I find myself in a position to credit others.

Ruth Carter, now a 3rd year law student in Arizona who interned in the Fort Leonard Wood JAG office, wrote in her blog that I inspired her (in part) to seek ways to perfect her advocacy skills–even by taking summer classes.  She interned in the summer of 2009, but I never had the privilege of having her or either of the other two interns work in my shop (Trial Defense).  What I do remember is that I faced 9 courts-martial (military trials) in a 3 month period.  It was the busiest summer of my life, and I struggled constantly to remain afloat.  Luckily, everything seemed to work out well for my clients, and those interns were able to see a ton of advocacy.

What they saw, however, was not just me.

My clients were worth my time and efforts.  I learned something from each of them, and those lessons enable me to be a better person and attorney. Helping them was always a pleasure.

I am where I am because many wonderful people took time to work with me–Dave Koon, Chuck Briscoe, Mike Hoeflich, Cully Stimson, and the incomparable Josh Karton. Without that team of friends, I would not be the advocate I am today.

So, Ruth, thank you for the kind words and recognition.  My wish for you, as well as every other aspiring advocate, is that you are surrounded by a team akin to the amazing one that nurtured me.  True success comes not from you, but from those who surround you.

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Spaghetti Sauce and Criminal Defense Representation

July 19, 2010 Comments Off

I am a huge fan of TED Talks. They explore a collage of ideas several times a year through presentations and film in various locations throughout the world. The talks range from the environmental impacts of oil spills through the Gulf of Mexico to the joy experienced through LEGOs.  Some ideas are brilliant, while others leave a bit to be desired. Nonetheless, I enjoy any endeavor that encourages and rewards the sharing of new, innovative ideas.

A while ago, I saw one that moved me more than others. It was a talk given by Malcolm Gladwell who, at the time, enjoyed great public anticipation for his book, Blink. I am a fan of Malcolm, and I’ve taken the time to read The Tipping Point, Blink, and Outliers. I enjoy his depth of research as well as his analysis and presentation. In his TED talk, he discusses the influence of Howard Moskowitz on the soda and spaghetti sauce industries.  Thankfully, TED posted the video.

So, how does this apply to a criminal defense practice? There is no perfect defense. There are only perfect defenses. Every client is different. Some matured in an abusive, unhealthy, and ugly environment filled with mental, emotional, and physical suffering, and others were nurtured in a loving home in suburban America. Presenting each person’s story requires a high level of customization. A simple heuristic does not do the average client justice, and they each require a high degree of understanding and study. Also consider the possibility of presenting a case to a jury (or panel in the military) where you must cause 3-12 people to identify with the soul who placed his life and livelihood in your hands. Again, the clients’ story must be molded to fit the nature of the venue.

Some of my colleagues (successful ones, I might add) employ the following formula:

Debunking Government Evidence + Destroying the Character of Government Witnesses = Defense

That is, they looked at the crime, the nature of the crime along with ways they can downplay and tear at the opposing party’s witnesses, and they formulate the bulk of their defense upon these impersonal factors. Notice what is missing? The Accused? Check. His/her family? Check. Abuse potentially suffered as a child/adolescent/young adult? Check. History of positive contributions to society? Again, check. The list is endless, and proper representation should involve dozens of facts and factors.  Is it necessary (most of the time) to debunk government evidence? Sure. Is it sometimes necessary and desirable to focus on the character of government witnesses? Absolutely. However, those two factors are but a small part of the overall case.

The ingredients for that proper sauce are numerous and varied.  Time is required to gather, prepare, and adequately simmer them together. As I see it, my clients (as well as anyone else’s clients) deserve a high level of care, interest, and preparation. Each is unique, with different tastes and needs. One thing is clear, we members of the criminal defense bar owe our clients time and understanding. Without it, we lose touch of what it really means to advocate for the life and livelihood of a fellow human. We must prepare to tell their story–their whole story.

Why I defend…

July 18, 2010 Comments Off

Me wearing polyester in the Ft. Leonard Wood courtroom

Its a question faced weekly by those who practice criminal defense: “How can you represent those people.” I italicized the word “those” because that is typically the way it is communicated to me. In their minds, the simple act of sitting at a table with “those” people is a reprehensible act–one to be devoutly avoided if I am to maintain some semblance of personal and professional self respect. They imply that such representation should make a person feel dirty or unethical.

I couldn’t disagree more.

Frankly, I find every act of representation to be an honor and privilege. Several reasons account for this.

First, the person I represent is placing me at the helm of what is likely the most important event of their adult lives. It is a process that (typically) impacts their freedom, their rights, and future opportunities. Imagine, this person chooses me to represent them at such a dire and important hour of their life. They assimilate me into their lives, share their innermost thoughts and feelings, introduce me to their family, and allow me to advocate for them and their interests. Many, but not all, of these people are servicemembers who have already made an incredible choice in their lives–to give a portion of their adulthood to serve the United States. For this, I am grateful, and it further enhances the respect I have for these individuals.

Second, almost all of my clients are good people who made a bad choice or found themselves in a bad situation. Some suffer from a mental ailment that prevented them from making a full, conscious choice. Many need help in coping with past events. Others made a bad choice, not because they are bad or evil, but because they acted impulsively, negligently, or (more likely) immaturely. They are hardly the monsters that Hollywood depicts in order to sell tickets and DVDs. In fact, they are more ordinary than most of us realize, and I refuse to be ashamed to sit at the same table with these human beings. The headlines you read only tell a fraction of a person’s story.

Third, I love the Constitution of the United States. I love the individual rights we have, and I enjoy our system of checks and balances. The fact that we have a justice system that allows for representation, the right to a fair trial, and the right to have the government prove our guilt is a victory for freedom every day it exists. While no system can ever be perfect, it is as fair as any system that can be conceived at this time.

Fourth, I believe in the importance of the defense bar. That is, I believe that a strong collective group of defense attorneys are essential to our society remaining free. It is no exaggeration to say that they constantly protect us from tyranny. Defense attorneys consistently hold law enforcement and other government entities responsible for their actions, and they ensure that the Constitution applies to anyone in jeopardy of losing their freedom. I am proud to serve alongside these men and women.

Finally, I shudder to think of an innocent person punished for a crime they did not commit. Deserving of strong, capable advocacy?  You bet.

Rationality in Criminal Behavior?

July 18, 2010 Comments Off

Recently, Dr. Michael Shermer published an article about doping in cycling in his Skeptic blog. He utilizes the principles of the Omerta Rule and Nash Equilibrium in order to suggest an explanation for the behaviors of Floyd Landis and other professional cyclists in disobeying both law and cycling rules.

When an idea such as this surfaces, I can’t help but consider applications within my criminal law practice. In essence, it demonstrates the rationality of some bad conduct, rather than the irrationality that most presume must be inherent in such decisions.

Once again, I am reminded that most “criminals” are not blatantly so. Irrational? Perhaps. Reckless? Maybe. Hardened criminal minds? Hardly.

More to follow on this.

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