Ask Allison: October 12, 2016

Dear Allison,

I am scared of going to trial. I haven’t admitted this out loud to anyone yet, but I’m absolutely petrified that I am going to have to actually go to trial one of these days. I’ve been practicing for a couple of years, and I thought it was coming, but it hasn’t yet, which is making it even worse. I’m ashamed to admit that I’ve never been to trial, and I’m afraid that prosecutors can tell I don’t want to go to trial and are taking advantage of me. What can I do to get over this?

Yours,
Scaredy Steve

 

Dearest, Darling Steve,

I understand. I do. In this system where so few cases actually end up going to trial, it can be hard for a private practice attorney who is just starting out to get enough cases to get some trial experience. Which is why you need to sit with other, more experienced lawyers who are going to trial. Volunteer and they will love you for it. Everyone needs an extra pair of eyes and ears at trial, and, despite what everyone’s saying about law school right now, your education is worth something.

But aside from sitting with other lawyers (which will, I promise, greatly ease your anxiety about trial), how can you deal with this now, during your ongoing negotiations?

First of all, your vision of your first trial is really skewed. You see yourself, frantic and panicky, sitting next to your scared client. You see yourself facing down a jury, who are silently, effectively judging you, and having nothing to say, or not being able to come up with the proper objections or responses in the split of that hot second. But, dear friend, that’s not what it looks like because you are not going to be alone. Your darling Allison will be with you, in flesh or in spirit.

Your first trial is not a death penalty case (thankfully, because based on some war-stories I’ve heard from our older compadres, it seems like that actually sort of used to happen to people). Do not listen to other attorneys who brag long and loud about how they’ve never tried a misdemeanor case, or they started out with a murder and won an acquittal on their first ever trial by themselves. IF those stories are true, it’s nothing you need to aspire for. Those cases, when they happen, are anomalies and generally the result of some combination of (1) an older lawyer realizing what was going on and getting heavily involved behind the scenes and (2) pure-ol’ dumb-f**k luck. We don’t risk our bar card and our client’s life for bravado.

Your first trial is a misdemeanor or a non-violent, low-level felony (if you must) and you have a second-chair to sit with you. You will not go alone. Prosecutors don’t go to trial alone, and there’s no reason you should, either.

Some counties have programs where judges will even sign off on timesheets and pay second-chairs for trial fees, though those are admittedly difficult to come by. If you can’t find anyone to go with you that you trust, you need to contact the public defender’s office. At least at our office, in Fort Bend, we have plenty of lawyers who will sit with you fo’ free (as long as your case is court-appointed), and we are right across the street. If none of the PD’s office lawyers are able to join you, I promise you, Steve, I will personally help you find someone. If your case is retained, the PD’s office can also refer you to young hungry lawyers, much like yourself, who could use the experience. You are not alone. Do not go alone. It is not brave, it is not valiant, it is not wise. In trial, as in everything else, it’s easier with a friend.

When I was in law school advocacy classes, I kept hearing people say, “You have to treat the courtroom as if it were your living room.” Fat chance. When you first start practicing, the courtroom is more like an ornate, confusing interview room where you’re expected to know where everything is without anyone ever showing you, and you’re terrified that you’re going to touch something and it will break and everyone will stare at you, horrified, that an imposter has made it through the gates and you will be seen for what you are: the fakiest fake faker who ever faked. OMG!

Don’t worry. It gets better.

Because you’re not a faker, and everyone else feels that way, too.

I can’t tell you, Beloved, how many hours I have spent trying to nonchalantly wander around courtrooms and find the reset forms. I didn’t want to ask anyone because then, you see, they would know that I was a noob. Do you know how silly that is? Lawyers ask me where reset forms are all the time and I don’t think twice about it. But when it’s our own sweet selves, we assume everyone sees every mistake and misstep, because we are so vain.

No one really notices us, though. Think of the last time you saw someone else do something embarrassing. I have a hard time coming up with anything, because I generally am not watching others so closely, or even if I do notice something, I don’t think twice about it. That time in 7th grade that I was talking really fast in class and a spit-covered jawbreaker fell out of my mouth and bounced three of the slowest, loudest bounces you’ve ever heard in your life across the tile floor to the feet of the teacher…that’s burned in my memory forever, though.

The key to life and trial is to banish our vanity. It’s an ongoing struggle, and most of us will never achieve the end goal, but the pursuit is worth it.

In my experience, Steve, the thing about it is that it just takes time. The more times you appear in court, the less you are afraid of it. The more times you fall, the more times you realize that the fall won’t kill you, and eventually you stop flinching. The nerves don’t ever totally go away, though, or at least they shouldn’t. Even Cicero, the greatest orator who ever lived, reported that the first minute of his speeches he was a quaking, shuddering, nervous wreck. We should never forget the awesome responsibility we have to our client, but I promise, dear Steve, that the terror will subside.

Take That S**t To Trial,

Love Always,

Allison

Every week attorney Allison Jackson answers a question sent in from our readers. Have a question for Allison? Write to her at askallison AT hcclatv.com.

Ask Allison: October 5, 2016

Dear Allison,

I saw something horrible on the internet the other day. A story about how Hillary Clinton offered to represent a child molester and then used some legal tricks to get the case to go away. Apparently, she even tried to make it sound like the little girl who was molested “liked older men.” Like that’s some kind of excuse. I am disgusted. What kind of person does that? I thought about you, and about your column, and I wondered if you had any defense for this sort of thing? I know you’ve written before about how you have a duty to defend people, but seeking out that kind of guy and then pulling a bunch of trickery to avoid justice being served is just unethical no matter what. I get that everyone has a right to a fair trial, but this was just a slick lawyer sliming a criminal’s way to freedom. I can’t imagine you’d do that. Would you?

Yours,
Disgusted Don

 

Dearest, Darling Don,

Yes. I would.

Though I will shy away from any political aspects of this question, from a legal ethics standpoint, I don’t think she did anything wrong. First, I think it’s fair to point out that Clinton didn’t offer to represent the guy, but was appointed by a judge. She had recently started a legal aid clinic at the University of Arkansas School of Law, which provided low-and-no cost legal services to poor people. A judge was presented with this case, and with a defendant who was too poor to hire a lawyer, and the prosecutor involved with the case recommended to the judge that Clinton handle it.

I’m just going to stop right here and tell you that most prosecutors probably wouldn’t endorse me to take a case. If a judge asked one of them who they thought should take a case, they’d probably say someone who they knew was just going to roll over and take a plea- not someone who was going to fight and push and test.

There’s evidence-from the prosecutor- that Clinton tried to get off of the case and told the prosecutor, “I don’t want to represent this guy. I can’t stand this. Can you get me off?” After communicating with the judge, Clinton was not allowed off the case and had to continue to represent him.

Most of the time, dear reader, when people say “he got off by legal tricks” or “loopholes” or “technicalities” in criminal cases, what they mean- what the correct legal terminology is- would be “constitutional rights violations” or “serious evidentiary problems.” Judges, both at the trial and appellate level, are extremely reluctant to let someone they think is guilty of a heinous crime back on the streets and it usually takes a lot of pretty wild violations to get that to happen. Additionally, there are specific rules that dictate what evidence is admissible at a trial and what is not- and those rules are all related to whether or not the evidence is reliable. If something is not admissible, it’s because it’s not reliable.

As a defense attorney, my job is not to “seek justice.” That sounds terrible, doesn’t it? But the reason that’s not my job is because it’s someone else’s job. The prosecutor’s job. It’s his job to seek justice for the State. My job is to represent my client and his best interest to the best of my ability no matter who he is and how much I don’t like him personally– because no one else is going to do that.

Sometimes, I think, seeking justice and zealously representing my clients go hand in hand. Frankly, I don’t think it’s ever justice to lock someone up in a box for the rest of their life, especially when our system is so remarkably, overwhelmingly biased and flawed. There are many times what I’m advocating for as my client’s best interest (drug rehab rather than prison time, for example) is also in society’s best interest (rehab is cheaper and decreases recidivism, for example). But sometimes it’s not.

This isn’t me foisting off social responsibility. This isn’t me trying to be a slimy lawyer. This is me telling you that legal ethics dictate that I represent my client zealously- and if I can’t do that, I shouldn’t represent him at all. This is me telling you that if I were your lawyer, or your son’s lawyer- you would expect that of me, too. This is me telling you that it doesn’t matter whether I think you’re guilty or not, I still have to do my job. And that the State should do theirs.

My understanding of Clinton’s case is that she requested that the Court order a psychiatric evaluation of the complainant, which is normal and routine in cases like that. In her motion, she highlighted for the Court that she had been informed that the complainant had made previous allegations about older men, and she cited a child psychologist who had said that sometimes troubled children confuse fantasies with reality and romanticize things inappropriately. All her motion sought to do was have an examination performed to determine if there were psychological issues present that might have influenced the young girl’s statements. This is not underhanded. It’s not victim-blaming. It’s not saying that the young girl had a thing for older men, and that justifies a rape. This was investigating whether or not the girl was credible, which is something, when we are seeking justice or to zealously represent our clients, we are obligated to investigate. Why are we afraid of that investigation? Shouldn’t we want the truth? And if the State’s case is so strong, and this guy is such a monster, what are we afraid of?

There were also issues with the evidence that made some of it inadmissible. Inadmissible means that the evidence was not relevant to the case or that it is unreliable- so people shouldn’t consider it when they’re deciding if the defendant is guilty.

There can be a lot of reasons evidence is unreliable and shouldn’t be considered- but a lot of the time it’s because the State didn’t do their job. They didn’t test it correctly, they didn’t use scientifically proven methods to test it, they didn’t preserve it in a way that ensures it wasn’t tampered with, or it was collected in an illegal way, etc. Evidence that the State seeks to introduce at trial is problematic because of the way it was gathered by the State or presented by the State. It is not an ethical failing in a defense attorney for pointing that out. That’s the State’s fault. If the evidence against this guy was really so overwhelming, why didn’t the State do its job?

The case didn’t even get dismissed. According to court documents, he plead to a lesser charge of “Fondling a Child Under 14” and was sentenced to a year in jail and four years of probation. That offer is something that the State extended. It’s not something that Clinton somehow forced the Court to do. The way plea agreements work is that the prosecutor evaluates his case, discusses issues with defense counsel, and decides what he is willing to agree to instead of going to trial. If the evidence was that this guy was really a horrible rapist, why didn’t the State do its job?

The truth is that most people charged with sex crimes against children don’t really get a fair shake at trial. The truth is that juries see a man charged with something awful like that, and they think there must be some truth to the allegation, and if not, he must have done SOMETHING wrong just to be there, charged with something so horrible. Prosecutors know that, and there’s no reason not to try the case before a jury when you know the advantage is in your favor.   So why didn’t the State do its job?

Whatever you think about Hillary Clinton as a presidential candidate notwithstanding, the fact that she acted as an attorney for a man accused of a terrible crime who could not afford a lawyer, and then provided him with zealous legal representation should not tell you anything negative at all about her character. I hope, in fact, that it tells you something positive about her character: that she believes in the Constitution of the United States and believes that its protections apply to everyone.

Love Always,

Allison

Every week attorney Allison Jackson answers a question sent in from our readers. Have a question for Allison? Write to her at askallison AT hcclatv.com.

Ask Allison: September 28, 2016

Dear Allison,

I know you personally and happen to have discovered that you are somewhat surprisingly, although not so secretly, quite domestic. By this I mean that I know you’re a pretty good cook and that you eschew lunchtime invitations for whatever you’ve brought with you. At the risk of over-reaching, what are some good on-the-go breakfasts or courthouse appropriate lunches I might brown bag to save an extra nickel?

Yours,

Hungry Harriet

 

Dearest, Darling Harriet,

I think your question is delightful. I am, as you mention, somewhat surprisingly but not so secretly, rather domestic. You might be able to tell from my generous proportions that I am also not a fan of skipping breakfast, even on a rushed courthouse morning.

My (favorite) husband often says he doesn’t have time for me to make him breakfast (I know…turning DOWN breakfast made by someone else? Especially your lovely lawyerly wife? He doesn’t know how good he has it). This is never actually true, though, and I demonstrate for him regularly that toasting an English muffin and scrambling an egg to put on top of it, slapped with a slice of cheese and a wheel of tomato takes about 1.5 minutes total.

Mark Bennett, longtime mentor and lawyer extraordinaire, may not wish for me to reveal his secret in such a public forum, but I will tell you that one of the very first things he ever taught me about trial work was that one should eat a decent, low-carb breakfast prior to trial. The low-carb part prevents a sugar crash when, invariably, you must spend your lunch break pondering, about the latest kink in your case, “What fresh hell is this?”

I tend to agree with Bennett, and encourage you, Sweetest Fig, to plan ahead. Hard boil some eggs the night before while you binge-watch reruns of “Orange is the New Black” and try to convince yourself that it counts as legal research. Two eggs and a string cheese will get you far, my friend.

On non-trial days, when carbs are in the picture, nothing beats toast. Think about it. Toast is delicious, easy, and reasonably healthy. But when was the last time you made toast? Why did you forget about it? Toast has always been there for you. I am a fan of the trending avocado toast, but I believe firmly in adding a schmear of hummus, a slice of turkey, or a sliced, hardboiled egg to up the protein value. Alternatively, you can do what I actually do most mornings and get a nice slice of sweet, grainy wheat bread, slather it thickly with Kerrygold butter, and then top it with Hagelslag. Hagelslag are the Dutch version of sprinkles. Especially chocolate sprinkles. Don’t look at me cross-eyed like that. I’m not a farmer just because I eat sprinkles on toast. These are different. Friends, we have been deceived by the sprinkle lobby- we have been eating brown crayon shavings for years. Hagelslag are real chocolate and they are amazing. If you like Nutella, you will LOVE this.

As far as courthouse lunches are concerned, I try to avoid anything especially pungent. I recently started bringing Pho-Kits, a term my dear brother coined. A large Tupperware container with chicken bouillon, cilantro, bean sprouts, dry rice noodles, thinly-sliced onions, and spinach leaves or other vegetables, a little sriracha, and a little lime juice. If you have access to a refrigerator, you can even add some thin slices of meat or some frozen dumplings. At lunch, fill the whole vessel with boiling water and voila! Fresh soup, with no spills. It’s amazing how quickly all that stuff cooks in there, and you can throw it together in the morning in about three minutes.

Also, let’s not underestimate the value of fresh fruit. I’ve had several people comment on my wonderful perfume when, in fact, I had just covertly eaten a tangerine. I’m a fan of the multi-tasking.

Once, when your darling Allison was a very new lawyer, indeed, she sat in a courtroom, head pounding from poor decisions the night before. In the door walked her dearest law partner. “Here,” he said, “I brought you some juice with Sprite in it.” Nectar of the Gods. Uncertain what courtroom rules pertaining to non-water beverages were, she leaned over to the bailiff. “Hey,” she whispered. “Can I have juice in here?” “Yes,” he whispered back, looking like he understood, “as long as it’s plain, nothing fancy.” She nodded, thoughtfully, and proceeded to sip. Crafty Allison did not tell him that this was pomegranate, the fanciest of all possible juices, and pretended, instead, that this was but lowly cranberry. It can be done. Nutrients can be had in the courtroom.

We encourage our clients to take care of themselves, and we should, too. Besides, it’s hard to maintain our best face at happy hour when we haven’t had anything to eat since yesterday.

In Solidarity,

AJ

Ask Allison: September 21, 2016

Dear Allison,

Why do my clients always seem to know what “the law” is when it comes to evaluating their case, but whenever they talk to police officers, they seem to have no idea what their rights are? For example: frequently my clients will be pulled over for a minor traffic violation, and then just volunteer to the police that they have drugs in their cars, or, even more frequently, just tell the cops to go ahead and search. And yet, when it comes time for me to talk to them about the case, they’re suddenly trying to spew legal doctrines at me. What gives?

Signed,
Snarky Susan

 

Dearest Darling Susan,

Oh boy, do I feel you there. Once, when I was sorting through random defendants as attorney-of-the-day (an attorney who talks to and helps reset cases for unrepresented people on the docket), a young man told me that he didn’t have an attorney and didn’t need one. You see, the backpack he had with him was full of “evidence” of his innocence, and he was ready to file a discovery “alpha-david” to show the prosecutors what-for. Fortunately I was able to convince him that he needed to apply for a court-appointed attorney and let the attorney discuss with him what sort of alpha-davids to file and not file.

I also gotta tell you, Susan-of-my-Heart, that I have long, involved daydreams about the kind of justice I would like to render to the person who started this dumb-ass rumor that “everyone is entitled to one 12.44(a).” (For my non-attorney friends, 12.44(a) is a provision of Texas law that allows, with certain restrictions, at the discretion of the court, for a low-level felony to be punished like a misdemeanor). There’s an attorney visitation booth in the Harris County Jail where one frustrated soul scratched “Waah, waah, I want my 12.44(a)!” into the paint on the lawyer’s side of the glass (it always amused me how much graffiti was on the attorney-side of those booths. Apparently going to graduate school and becoming a professional adult does not decrease the human desire to scratch four-letter words into gummy paint with a Bic when no one is watching). It’s easy, dear friends, to lose hope.

And it’s not just the clients, it’s also their families. An attorney friend of mine once recently texted a client’s father, who was employed in the aerospace industry, “Hey, if you’ll stop practicing law, I won’t send anyone into space based on what I saw on Star Trek.”

It’s easy to forget when you’re beleaguered and battle-weary, dear Susan, that our clients are suffering. They are suffering because that’s the human condition. They are suffering because most of them are not super self-aware. They are suffering because they are frustrated and forgotten and things suck and it’s hard already, without being under onerous bond conditions or stuck in jail. They miss their families, or they’re withdrawing from drugs, or they’re not getting the medication they need, or they’re worried that, despite your best efforts, you are not going to be able to help them or that maybe you forgot to ask the prosecutor for a dismissal. That you aren’t going to fight for them. That you didn’t know about this area of the law.

If your client is indigent, I think this adds a whole other layer to it. Most of my clients have been arrested before. Most of my clients have had court-appointed lawyers before. Most of them have been underwhelmed by their previous lawyers. But they sit in the tank with some other guy who’s been through the system a few times and wants to drop a little knowledge, and he’s speaking things that they want to hear, and that jailhouse lawyer all of a sudden has more credibility than you do.

Think about your client alone at night in jail, or in his house, and how afraid he is. Think about the life he is living, and how much trust he is forced to hand over to you, Stranger. Think about how horrible one day in jail would be to you, and try not to get so used to the buzz of the system, the slinging-about of big numbers, that you don’t consider the impact of each day of incarceration on your client. That you don’t know why he would balk at 10 but jump at 8.

Seek to understand. And if you are frustrated with him, it’s because you don’t understand. Try to internalize that as something you can work on, not something he is actively doing to you. But, I mean, also, DID you remember to ask the prosecutor for 12.44(a)?

Love Always,

Allison

Every week attorney Allison Jackson answers a question sent in from our readers. Have a question for Allison? Write to her at askallison AT hcclatv.com.

Ask Allison: September 14, 2016

Dear Allison,

I did one of those online searches to show where all the sex offenders in your neighborhood are. Gah! I am besieged! There are sex offenders everywhere! How is this possible? Is everyone a pervert these days? Should I make my kids stay inside all the time? Should I stay inside all the time?

Yours,

Fearful Freddy

 

Dearest, Darling Freddy,

Fear not! It’s safe to go outside! It’s just not as bad as those sex offender maps make it look. The world is a wild and frightening place, but it’s not so scary as you’d think. Calm down and soothe yourself with some facts:

Fact: there are approximately 1 bazillion things someone can be on the sex offender registry for. Approximately 90% of those things are decidedly Not That Bad. Some things people can be forced to register for across the US include: flashing your boobs at a concert, taking naked pictures of yourself (if you’re a minor, this can be considered child pornography in some jurisdictions), hiring some…ahem…company for the evening, peeing on the side of the road, and having sex with a minor when you, yourself, are also a minor.

While none of these offenses are things that I would want to put on my business card, I’m also not terribly worried about people who have done these sorts of things at some point in their past.

I would also point out that sex offenses are the kinds of things that defendants often plead out to, even when there’s not a lot of evidence against them. There are a few reasons for that, one of which is because there is such a huge stigma against sex offenses (and not without reason, beloved reader, not without reason), that many defendants truly wouldn’t be able to get a fair trial just because of the name of the offense they’re charged with. When a jury hears, “Super Aggravated Sex Assault of a Child,” they’re not thinking about how this guy could possibly be totally innocent, they’re thinking about how to bury him UNDER the jail.

In fact, the interweb is replete with stories of wrongfully accused persons who ended up on a sex offender registry out of fear rather than guilt. Take them for what they’re worth, but when a scary prosecutor is telling you that you’re going to get decades in prison if you go to trial, or you can take a probation with lifetime sex offender registry, a lot of folks just don’t want to roll those dice.

Fact: Sex offenders have the lowest rate of recidivism of all offenders. Period.

I know, it sounds like that’s absolutely bunk, right? We picture some trench-coated, drooling troll who can’t control himself enough to avoid engaging in unspeakable acts of moral turpitude, but the truth is that most sex offenders will never reoffend. In fact , in a 2003 Department of Justice study of thousands of violent sex offenders who were released from prison, only about 5.3% were rearrested for another sexually-related offense in the years after their release, and only 3.5% were actually convicted of that offense.  That study was done with offenders released in 1994, before a lot of breakthroughs in cognitive behavioral therapy and before a lot of that was accessible in prisons and to parolees. Not only that, but notice that the study also focused on sex offenders classified as violent. That means they didn’t include the boob-flashers and the nekkid picture-takers in there. These are the ones you would think of as the real baddies.  97.5% of them never pick up another sex-related offense.   

In fact, the rate of violent crime in the US has decisively plummeted in the last couple of decades. The US Department of Justice noted that in 1993, there were 79.8 violent crimes per 1,000 residents age 12 and up. In 2013, there were just 23.2 violent crimes per 1,000 residents.  Your children are safer playing outside today than you were when you were a kid.

In short, dear Freddy, I don’t think you should be more than reasonably cautious.  As someone who has worked in this field for a while and dealt with a considerable number of somewhat horrifying cases, I would tell you that I think I am less frightened of random acts of violent crime now than I was when I began this job. It’s just not as common as the media would have one think.  The thing I worry about more than the sex offender down the street is the fact that someone can go to a bar, get ridiculously loaded, and then drive their car the wrong way down the freeway and cause a fatal accident. That’s way more realistic in my mind.

Don’t get me wrong, I think that there is probably a legitimate reason to have a sex offender registry in some form, but the one we have now primarily serves to freak out good citizens and prevent concert-boob-flashers from living in decent neighborhoods.

One in six adults in the US have genital herpes. One in five children in Houston is living in a food-insecure household.  Fourteen percent of people registered to vote believe in Bigfoot. There are a lot of numbers we should be worried about. The number of sex offenders in our neighborhood is fairly low on that list.

Love Always,

Allison

Every week attorney Allison Jackson answers a question sent in from our readers. Have a question for Allison? Write to her at askallison AT hcclatv.com.