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May 27, 2008

"Will death become the exception, not the rule?"

This effective piece from the Houston Chronicle, which reflects on a recent Texas jury decision to reject a death sentencing for a cop-killer, caries the same headline as this post.  Here are excerpts:

If there was one thing that was all but certain in the world of Houston criminal justice, it was that someone who killed a law enforcement officer ended up paying with his life. So inevitable was this simple rule of cause and effect that the rare deviation came with a ready explanation....

But now comes the case of Juan Quintero.  The life sentence given to the illegal immigrant by a jury last week has no such asterisk attached.  The jury decided to spare him, despite the brutal killing of Houston police officer Rodney Johnson, which raises the question of whether any death case — even in the nation's death penalty capital — is a slam-dunk anymore....

Over the past few years, death sentences have declined by almost two-thirds in Texas and the rest of the country.  There is no pat explanation for the drop, said Richard Dieter, executive director of the Death Penalty Information Center, an information clearinghouse opposed to capital punishment.

"I wouldn't attribute it to one reason," Dieter said. "Life without parole has to be included. The emergence of DNA testing and innocence cases has been a factor, maybe even a bigger factor. So many cases were highlighted in the media and on television shows and movies.  There has been quite a pronounced effect that has given some skepticism to jurors when they are asked to impose a death sentence."

May 27, 2008 at 12:07 PM | Permalink

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Comments

Doug:

1. No death penalty case is a "slam dunk." The jury has to be unanimous, for one thing. There is always a chance that you get one holdout, and that's that if you do. This is what happened in the EDVA in the case of Zacarias Moussaoui.

2. On the question "Will death become the exception, not the rule?", the answer is that it has ALWAYS been the exception. As I noted here a few days ago, in the five year period 2002-2006 (inclusive), there were roughly 81,800 murders and 308 executions. That means that, over this recent period, the number of executions was slightly less than four-tenths of one percent of the number of murders. Without getting into statistical fine points, figures like that show beyond serious argument that execution is and has been the exception, not the rule.

Nor am I aware of any serious person who thinks that it SHOULD be the rule, if by "rule" one means that it would be imposed on half or more of all first-degree murderers.

3. Having said that, I believe it to be the case that, over the last ten years, there have been more executions than in any prior ten year period in the last half century. This shows that, while juries are cautious in imposing death, as they should be for such a grave exercise, they will do it, more so in recent times than at any point in a long, long while.

Posted by: Bill Otis | May 27, 2008 12:37:54 PM

Mr. Otis, I think the title of the post refers to the situation of someone convicted of murdering a police officer in Texas, not anything more generally than that.

Posted by: | May 27, 2008 2:30:48 PM

To anonymous,

The article was making a very general point about the reluctance of juries to impose a death sentence, even in the case where a police officer was murdered. Mr. Otis responded to that with very relevant points such as it is very rare for the death penalty to be imposed. That being said, your post didn't really respond to Mr. Otis' points.

Posted by: justice seeker | May 27, 2008 2:46:57 PM

It responded to his point #2 by suggesting that he was responding to an argument that Prof. Berman and/or the linked article weren't making.

Posted by: | May 27, 2008 3:05:19 PM

Here in Harris County, Texas, the DP capital of the world, it has always been a slam dunk.

Posted by: bruce | May 27, 2008 3:11:24 PM

Justice Seeker:

Thank you.


Anonymous:

It's easy for a journalist or anyone else to pick out a single jurisdiction or a single case and use it to bolster a broader point. That in my view is what is going on with the Houston Chronicle article. To extrapolate a supposedly growing, generalized reluctance to impose the death penalty from a single case is, with all respect to the Chronicle, absurd. So far as I am aware, no one here knows whether there was a single iconoclastic juror holdout, or whether the defense lawyer gave a particularly persuasive closing, or whether the court's instructions were presented in a way favorable to the defense, or any of dozens of other things that could account for the outcome.

To find a "trend" from one case is a little like finding, from one unexplained object in the sky, that the earth has been visited by extra-terrestrials. Maybe it has, but a single UFO sighting isn't going to prove it.

As justice seeker and I have tried to point out, if you want to find a trend, the way to do it is by examining data covering a period of years. I have done that and posted the results here. What they show are (1) that over the last decade or so there have been more executions than in any previous decade for about half a century (check the DPIC site and look at the bar chart); and (2) that over the last several years, support for the death penalty has shown slight but steady growth (Google "Gallup death penalty" and look at the graph).

Posted by: Bill Otis | May 27, 2008 3:55:11 PM

I tend to agree with anonymous; as I read the post and the article, their premise is not that death has been the rule with murders generally, but that it has been the rule with respect to murders of law enforcement officers in Texas. The latter is obviously a much narrower category and it is not really responsive to the suggestion that Texas juries are suddenly shifting away from their historical willingness to impose death in all of those cases to point out that death remains the exception with respect to the broad category of all murders.

Posted by: Anonymous II | May 27, 2008 3:58:40 PM

Mr. Otis, I don't disagree with your substantive points. I was addressing one sentence in your comment:

On the question "Will death become the exception, not the rule?", the answer is that it has ALWAYS been the exception.

I suggest that your "answer" misunderstands the question. If your data show that, even among defendants convicted of murdering police officers in Texas, the death penalty is the "exception," then I'm wrong. If not, then, I stand by the very narrow point I made in the initial comment.

Posted by: anonymous | May 27, 2008 4:16:29 PM

Over the weekend, I blogged an interview with the defense counsel from the case described in the Chronicle story. She thought the recent change in Texas law to make the choice LWOP vs. death contributed to the verdict, as did the influence of Batson/Miller El on jury selection and to some extent hubris by the prosecution. Several of those reasons are not case specific and may indeed give reason to believe the likelihood of a death verdict could continue to decline overall.

Posted by: Gritsforbreakfast | May 27, 2008 4:49:33 PM

Anonymous:

We actually have very little disagreement.

I do not have statistics on defendants convicted of murdering police officers in Texas. But even if there had not been a single case of that kind for 50 years in which the death penalty was NOT imposed (which I seriously doubt, but I don't know), the category of offenses and the fact that we are talking about a single jurisdiction make it impossible to support generalized statements about any nationwide trend concerning support for the death penalty, or lack thereof.

The better indicators, in my view, are nationwide surveys covering several years. As I have noted, those data indicate that the number of actual executions is high compared to the experience of the last half century, and that public support for the death penalty has been growing. Indeed, from its low point in 1967 (42%, according to the DPIC), to the 69% support it commands today (according to Gallup), it is fair to say that the growth in support for capital punishment over the last 40 years has been phenomenal.

Finally, I appreciate the analytical, precise and fact-centered nature of your post, and I thank you for it.

Posted by: Bill Otis | May 27, 2008 5:00:17 PM

The death penalty is not greater than necessary to satisfy the purposes set forth in 18 usc 3553(a) for this guy... I imagine it's sufficient for most of those purposes.

Posted by: anonymous | May 27, 2008 5:03:48 PM

wrong post... I meant the identity theft guy.

Mr. Otis, thank you for your responses.

Posted by: 5:03 | May 27, 2008 5:06:02 PM

Gritsforbreakfast:

When the source of the information is defense counsel, it is not entirely surprising that she would see considerable future importance in her achievement. Maybe she's right, but that can scarcely be determined now. What can be determined is the recent history of executions and public support for the death penalty, and I have set forth those things above, with named sources so that anyone can go look for himself.

Posted by: Bill Otis | May 27, 2008 5:07:30 PM

I think that GFB's interview post is informative b/c it shows the taxpayers that defense counsel pointed out how much taxpayer money could be saved, and the DA wasn't having any of it.

Posted by: S.cotus | May 27, 2008 6:10:29 PM

Bill, that was my interpretation, not hers. The attorney said it could have gone either way and the outcomes were specific to the defendant.

However, I think when the lawyer tells us that important factors in the outcome were the recent change in Texas' capital statute (LWOP instead of life with possibility of parole) and the prosecution exercising greater than usual restraint because of Batson/Miller El, it's not a BIG stretch to think that recent changes in the law - both at the legislative and judicial levels - might have broader implications than in just this case.

Regarding public support for the death penalty, btw, the post I linked to included this paragraph:

"Recer believes the case shows people in Harris County 'are not as bloodthirsty as we're generally led to believe.' In voir dire (jury selection), lawyers vetted 126 jurors, and by a 5-1 margin jurors were excluded because they refused to consider the death penalty compared to those who said they would refuse to consider life. She thinks Harris County DA's office "misunderstands its constituency," and that the jury they got was essentially representative of their jury pool and the citizenry at large."

That data interested me b/c it flies in the face of much of the Gallup-style public opinion polling we see on the death penalty. I wonder if an analysis of voir dire strikes in other capital cases might yield a similar pattern? It's one thing to tell a pollster over the phone you support the death penalty, and another entirely to make the decision yourself. If this Houston jury pool is any indication, people's responses when faced personally with that decision may differ from what the opinion polls say.

Posted by: Gritsforbreakfast | May 27, 2008 7:30:23 PM

S.cotus:

"I think that GFB's interview post is informative b/c it shows the taxpayers that defense counsel pointed out how much taxpayer money could be saved, and the DA wasn't having any of it."

We can save even more by closing the courts, laying off the police, emptying the prisons and replacing it all with a smiley face.

Is there a reason we shouldn't do that?

How's that? You say that we get something of value from courts, police and prisons? And that's why we're willing to pay for them?

Right on. The criminal justice system is expensive. People are generally willing to foot the bill if they believe they're getting something they value. The more they value it, the more they're willing to pay.

There are those -- indeed, there are millions and millions of people -- who think that preserving a jury's authority to impose a death sentence on the next Timothy McVeigh is worth quite a bit. If the taxpayers of Texas are not among them, they can certainly make their will known at the ballot box. Until then, how they spend their money, on the criminal justice system as elsewhere, is up to them.

Posted by: Bill Otis | May 27, 2008 7:31:51 PM

We can save even more by closing the courts, laying off the police, emptying the prisons and replacing it all with a smiley face. Is there a reason we shouldn't do that?

A better suggestion is to get rid of 99% of the laws, and leave only those that directly protect people and their property from others. Leave murder, theft (including robbery, burglary, embezzlement, etc.), assault, and rape. Also leave counterfeiting, not paying taxes, and treason. That's it. Everything else should be legal.

Posted by: bruce | May 27, 2008 7:52:03 PM

Gritsforbreakfast:

Quoting the article (and thus not your words): "Recer [the defense counsel] believes the case shows people in Harris County 'are not as bloodthirsty as we're generally led to believe.'"

Gads, "bloodthirsty" again. It would be nice to pass one day here without these epithets, almost always cut loose by those who claim that piety drove them to it.

"I think when the lawyer tells us that important factors in the outcome were the recent change in Texas' capital statute (LWOP instead of life with possibility of parole) and the prosecution exercising greater than usual restraint because of Batson/Miller El, it's not a BIG stretch to think that recent changes in the law - both at the legislative and judicial levels - might have broader implications than in just this case."

But these are not RECENT changes in the law, at least outside this one jurisdiction. Most DP states have had the alternative of LWOP for years. And Miller-El was a fact-specific application of Batson, which has been around for more than two decades. Yet death sentences increased dramatically in the years following Batson.

"She [defense counsel] thinks Harris County DA's office 'misunderstands its constituency,' and that the jury they got was essentially representative of their jury pool and the citizenry at large."

Defense lawyers often think, or say they think, that the prosecutor misunderstands his constituency, or labors under some similarly distorting influence. But this is nothing more than speculation. As I understand your post, counsel admitted that the LWOP sentence was due to factors specific to this particular defendant. That admission is in tension with the conjectural view that the case has broader implications, much less national implications.

Finally, as an indicator of national sentiment, I'll have to take Gallup, if for no other reason than that his sample is incomparably larger and more diverse than the sample you get with one panel of veniremen in one case in one city. I would also note that abolitionists are not shy about citing Gallup or similar telephone polls when they produce some finding useful to their side of the debate.

Posted by: Bill Otis | May 27, 2008 8:04:11 PM

"But these are not RECENT changes in the law"

Yes they are, Bill. I'm afraid you're just wrong. The article in question is about Texas. LWOP wasn't approved here until after Roper, and Miller El is also a recent case.

What's more, since Texas makes up a disproportionate number of executions, your contention that such changes in Texas could not have "broader implications, much less national implications," strikes me as wishful thinking.

Finally, once again, the conclusions drawn about any broader implications were mine, not the attorney's. Her views and mine may be "in tension," but I'm entitled to my own opinion, thank you. Your opinion, by contrast, appears to be based more on biases against defense counsel than any evidence besides a Gallup poll. Merely dismissing a point of view is not the same as mounting an argument against it.

Posted by: Gritsforbreakfast | May 27, 2008 8:30:08 PM

Texas just got LWOP about 2-3 years ago (sept 2005 as I recall). Before that, life meant, at most 40 years before parole eligibility.

Posted by: bruce | May 27, 2008 9:04:24 PM

Grits:

That was some great reporting over the weekend. Your analysis is that this marks a larger trend, juries turning away from death I think is right on the money. What it also signals -- hopefully -- is that the defense bar in Texas, which has some of the most amazingly gifted attorneys I have seen and some of the most shockingly bad, appears to be maturing and that too is cutting back on new death sentences.

I also think that the verdict will send a shot across the bow of the Fifth Circuit as to penalty phase prejudice analysis on failure to investigate and present mitigation evidence.

Posted by: karl | May 27, 2008 9:14:37 PM

Gritsforbreakfast:

You could give quoting out of context a bad name.

I said, IN PART, "But these [life without parole and Miller-El] are not RECENT changes in the law..." This is the portion of my words you quote (omitting the elipsis).

The first paragraph of your response is: "Yes they are, Bill. I'm afraid you're just wrong. The article in question is about Texas. LWOP wasn't approved here until after Roper, and Miller El is also a recent case."

You omitted the rest of what I said, however. Here's the whole paragraph: "But these are not RECENT changes in the law, at least outside this one jurisdiction. Most DP states have had the alternative of LWOP for years. And Miller-El was a fact-specific application of Batson, which has been around for more than two decades. Yet death sentences increased dramatically in the years following Batson."

Why did you cut off the paragraph when the part you omitted was directly relevant to the specific points under discussion? And do you dispute any part of what you omitted? If so, on what factual basis?

Posted by: Bill Otis | May 27, 2008 10:46:36 PM

It's on the way out, I tell you!!

Ummmmmm, except for, as recounted in this current headline on WashingtonPost.com:

"Va. Carries Out First Execution Since 2006

"Kevin Green, who killed a store owner in 1998, is the first person to die by lethal injection in the state since the Supreme Court put cases on hold."

Of course this one case no more establishes a trend than one Texas case. For those who may be interested, however, Green's last-minute appeal for executive clemency was turned down by Gov. Tim Kaine, a liberal-centrist Democrat who has been mentioned as a possible vice presidential candidate.

Posted by: Bill Otis | May 28, 2008 12:01:26 AM

Bill wrote: "Why did you cut off the paragraph when the part you omitted was directly relevant to the specific points under discussion?"

Because your observation was not on point to my argument you were supposedly rebutting, so I only addressed the part that was. This story is about Texas, not other states, and our LWOP is recent. Miller El gave teeth to Batson in a TX-specific case, and it too is recent. You're just wrong so far as your observations apply to the case described in Doug's post. What's more, your anti-defense biases are so up front and overt that I doubt refuting your points would matter. But let's try.

Regarding the question, "do you dispute any part of what you omitted?" Yes. Texas is not "most states" regarding the death penalty. Our numbers drive numbers for the whole country. Last year I believe Texas had the majority of executions nationally, if I recall. Use of the death penalty has declined to a snail's pace in most states that have it, but Texas still churns them out.

The trends you dismiss by saying they applied earlier to other states probably explain those states' decline in use of capital punishment. Now that Texas also has LWOP and is beginning to comply with Batson (b/c Miller El gave it teeth), its rates of death verdicts are declining and cases that would have gotten death a decade ago don't now.

Here's the hypothesis that fits the data IMO, Bill: Other states implemented LWOP and Batson long ago, as you say, and their death penalty numbers declined precipitously. Most states that have capital punishment seldom use it. Texas enacted those same changes only recently, and soon after observers in the press and at the courthouse identified trends that indicate our rates might be heading in the same direction.

The only reason you've given me to think that's wrong is you don't trust anything said by a criminal defense lawyer. Am I missing something?

Posted by: Gritsforbreakfast | May 28, 2008 9:02:26 AM

Gritsforbreakfast, please forgive Bill, he advises the Bush Administration.

Posted by: | May 28, 2008 9:54:52 AM

Grits:

Rather than quote just part of what I'm saying on a specific point, I would think the better practice would be to quote the whole thing and let readers decide for themselves whether it's relevant.

"Here's the hypothesis that fits the data IMO, Bill: Other states implemented LWOP and Batson long ago, as you say, and their death penalty numbers declined precipitously. Most states that have capital punishment seldom use it. Texas enacted those same changes only recently, and soon after observers in the press and at the courthouse identified trends that indicate our rates might be heading in the same direction."

On the numbers available to me, it is NOT the case that use of the death penalty declined precipitously, or at all, in the other 49 states post-Batson. Batson was decided in 1986. If you look at the number of executions nationwide over, say, the next fifteen years, it went way, way up. (Google "executions by year" and the first entry will get you to the DPIC bar chart that documents what I'm saying). And while Texas has more death penalties than any other single state, it does not, so far as I am able to calculate, account for even half the executions in the United States. So Texas is a large factor, but not a controlling one, in these statistics.

I can't track the incidence of death penalties handed down individually in the other 49 states after those states adopted LWOP -- I can't, that is, unless you want to give me a research assistant. It would be a day's work just to find out when each state adopted LWOP. But the post-Batson execution figures alone are so stark that they don't leave a lot of wiggle room no matter what the LWOP data might turn out to be.

"The only reason you've given me to think that's wrong is you don't trust anything said by a criminal defense lawyer. Am I missing something?"

Yup. You're missing specifying the post in which I said or implied that I don't trust anything said by a criminal defense lawyer. The reason you're missing it is that I never said it, nor is it my position.

I am skeptical of some things said by some defense lawyers, sure. Aren't you?

One thing I am NOT skeptical of is the defense lawyer's acknowledgement in this most recent Texas case that the jury's decision to give LWOP rather than the DP was case-specific to facts about the particular defendant. If that is true, the sentencing decision might signify many things, but a "trend" is not one of them.


Posted by: Bill Otis | May 28, 2008 10:17:24 AM

You have to distinguish Harris County (Houston) from the rest of Texas or this discussion makes no sense.

Posted by: bruce | May 28, 2008 11:16:14 AM

This case is silly. Bottom line--there ought to be a law--if you're an illegal immigrant, and you commit murder in the US, the death penalty should be, upon conviction, automatic.

Posted by: federalist | May 28, 2008 11:21:54 AM

Bruce is right about distinguishing Harris County. It's why I didn't bother at first, Bill, with your points about the rest of the country. Most of your observations don't really apply to the case at hand or rebut any points I've made. You're ignoring that Texas and specifically Houston drive national DP numbers. Doc Berman has documented many times in the last couple of years how few states routinely apply the death penalty, and Texas is top dog. So claiming the numbers are increasing then denying any import when the biggest DP state (and county) trends differently strikes me as a little disingenuous.

As for you dismissing crimnal defense lawyers, you wrote, "When the source of the information is defense counsel, it is not entirely surprising ... blah blah blah" and went on to dismiss any validity to her observations with zero arguments to back it up. Sure I'm skeptical of "some" defense lawyers, when I have reason to be. Do you know Danalynn Recer or have any knowledge of her work beyond this case? Do you have any specific reason not to trust her? If so, you didn't mention it. If not, then her profession is the only information you used to dismiss her views. I don't think I misinterpreted your comments one bit.

Posted by: Gritsforbreakfast | May 28, 2008 11:29:51 AM

federalist provides more evidence for the notion that whenever anyone says "there ought to be a law" ... there shouldn't.

In my experience defense lawyers are more honest and trustworthy than prosecutors. As a whole, police officers are the most dishonest people you will ever encounter. Why? Because they know people side with them by default, they know the Blue Wall of Silence will protect them and not expose their lies, and they know that when it's their word against the word of a criminal defendant, they will always win and can never be proven to be lying. And most importantly, they know they are lying for a good cause - to "put away scumbags" and keep them off the streets. So the means (lying) always justify the ends.

Anyone who would trust the word of a cop over the word of a defense lawyer is a moron who loves cops.

Posted by: bruce | May 28, 2008 12:59:17 PM

Grits:

Words have meanings. You claimed, not that I "dismiss" criminal defense lawyers, but that I "don't trust anything said by a criminal defense lawyer."

You attempt to justify that claim by pointing to this passage from me, which you (partially) quote: "When the source of the information is defense counsel, it is not entirely surprising ... blah blah blah"

Only I didn't say blah, blah, blah -- you did. What I actually said was, "When the source of the information is defense counsel, it is not entirely surprising that she would see considerable future importance in her achievement. Maybe she's right, but that can scarcely be determined now."

You omitted the rest of what I wrote because, as anyone can see, it cannot possibly be interpreted as my saying that I don't trust anything said by a criminal defense lawyer.

To claim that I have such undifferentiated, across-the-board distrust based on my view of what ONE criminal defense lawyer said in ONE case is facially erroneous. And to claim it when what I said about that one lawyer was that SHE MIGHT BE RIGHT, but we couldn't know that yet, renders your claim not so much erroneous as preposterous.

Posted by: Bill Otis | May 28, 2008 1:18:59 PM

Bill -
Words indeed have meaning - but owing to the richness of language and the way in which we are able to use it to both convey and extract a wide range of other clues to our mood, attitude, belief, emotion, and more, you are more transparent than you seem to believe. I understand your obsession with literal meaning, but beyond the page of the law there is greater license and value to appreciate and understand the thoughts of your fellow man. Some would argue that that is important also in interpreting even the words on the page of the law. They were, after all, composed by a man.

Posted by: peter | May 29, 2008 3:01:30 AM

Peter:

The problem with Grits's claim against me has nothing to do with the richness of language, literalism vs. non-literalism or any similar consideration.

The problem is really quite mundane. In support of his claim that I distrust everything defense lawyers say, he cited a passage I had written, but omitted the part of that passage that made it clear that his claim was groundless.

It has nothing to do with language giving "clues to our mood, attitude, belief, emotion, and more." It has everything to do with wanting to be quoted honestly. If a point be made of it, however, an honest quotation -- which frequently (and in this instance) means a full one -- does more to respect the richness of lanugage than a truncated one.

Posted by: Bill Otis | May 29, 2008 8:38:34 AM

Bill -
You should observe your own rules if you are going to criticize others:
My words - "It seems that, like Hillary Clinton, (see Washington Post opinion Eugene Robinson - Did She Really Say That) you are in danger of losing your soul."

Yours - "Just saying that one's opponent is without a soul ..."

How easy and tempting it is turn the meaning of words to your own advantage. That said, it informs, as I described earlier, much about the person doing it. Grits, and no doubt others, interpreted your general hostility from the wider content and context of your posts. If they were wrong then I'm sure you are well able to reflect on the balance of future ones.

Posted by: peter | May 29, 2008 9:34:55 AM

What I actually said was, "When the source of the information is defense counsel, it is not entirely surprising that she would see considerable future importance in her achievement. Maybe she's right, but that can scarcely be determined now."

Why didn't you just say "When the source of the information is the winning lawyer, ...."? The fact that you singled out defense counsel (in general) implies you treat statements by defense counsel differently than you treat statements by prosecutors. Maybe that's not what you meant. But it sure comes across that way. In the context of your sentence, "winning lawyer" or "lawyer who was victorious at trial" makes more sense than "defense counsel" at least insofar as you don't want to single out any particular side.

Posted by: bruce | May 29, 2008 10:04:19 AM

Peter:

As I say -- and you don't dispute -- it was a clearcut case of Grits's quoting me, but excising from the quotation the part (which followed immediately) that refuted his point.

I asked him to point to a post of mine that would document his claim that I don't trust anything a defense lawyer says. His response was not, "That's what I take from the wider context of your remarks here." His response was to quote a particular post, but snip off the end of the relevant quotation.

Do you really think that's honest? Is that the way you would like to have quotations from your posts edited?

Posted by: Bill Otis | May 29, 2008 11:13:40 AM

Bruce:

I said "defense counsel" because that was the way the article I was talking about referred to the lady. Not a whole lot more to it than that.

You probably know better than most that Grits's claim is simply false. You are a defense lawyer, and, quite recently, I not only declined to distrust what you said, but affirmatively agreed with a goodly chunk of it.

You have recently made known your own quite skeptical attitude towards prosecutors, but at no point have I accused you of distrusting EVERYTHING prosecutors say, first because I have no evidence for such a sweeping proposition, and second because I doubt it's true. If Grits had taken a similarly moderate view, this dispute wouldn't exist.

Posted by: Bill Otis | May 29, 2008 11:24:24 AM

Bill: I'll take you at your word. No reason not to. Your statement (in full, not as partially-quoted) implied a general distrust of defense counsel, but you've addressed and rebutted that implication.

FYI I am no longer working as criminal defense counsel. I've moved to be general counsel for a large corporation. Criminal defense work is too frustrating, everyone hates you, everyone wants you to lose, every judge favors the prosecution, and every court goes out of their way to rule in favor of the state and affirm convictions. Great example - just look at page 3 of USA v. Martinez from the 5th Circuit this week:

The sergeant testified that he was also suspicious of Martinez because his
years of experience with LSP taught him that Houston was a source city for
narcotics, stolen property, weapons, and illegal aliens. Martinez’s route through
New Orleans on I-10 was unusual for travel to the east coast, because Interstate
12 (“I-12”) provided a more direct route, bypassing the city, and cutting two
hours off of the travel time. Schilleci was aware of law enforcement intelligence
indicating that drug couriers were avoiding the I-12 bypass because of heavy
interdiction efforts along that route. Finally, the sergeant was suspicious of the
time of travel, 11:24 p.m., because, based upon his own experience and training,
the majority of seizures of contraband occurred at night.

So if the defendant drives on I-10 he's damned for intentionally avoiding I-12 due to increased law enforcement drug interdiction efforts on that route. If he had been stopped on I-12, he'd be damned for travelling on a common route taken by drug couriers (so common that law enforcement has increased drug interdiction efforts there). Now the converse of that logic: If the defendant is driving at 11:24pm, he's damned because that's when most contraband seizures occur. However, if he had been driving at 11:24am, he'd be damned for being aware of the fact that most contraband seizures occur at night, and thus driving during the day to avoid a contraband seizure. The cop can say "based on my training and experience..." and justify the stop no matter what the facts are. It's horribly unfair to the defendant, makes a joke of the 4th Amendment, and makes the defense lawyer feel like a jackass.

This is why there's no point to criminal defense. Yeah someone has to do it, but it may as well be inexperienced lawyers right out of law school given too much work and grossly underpaid. The effectiveness of the lawyer makes no difference with respect to the end result, which is an affirmed conviction.

Posted by: bruce | May 29, 2008 12:58:13 PM

Bruce:

You'll have to tell me what it's like to have a job in which you make actual money. Defense lawyers and prosecutors don't get paid the big bucks as a rule.

I'll be out of touch for the next few days, at the Yale reunion. As to what year the reunion is for, I respectfully take the Fifth.

Posted by: Bill Otis | May 29, 2008 3:04:01 PM

Bill: I did okay as a defense lawyer (I was not a PD or anything) but I'm making more now. That was the ultimate reason for changing jobs... offer I couldn't refuse. But I was very disenchanged with criminal defense, even though I really love it in principal.

Posted by: bruce | May 30, 2008 12:10:19 AM

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