How To Behave After You’re Convicted At Trial

Charged with a criminal offense, you, as it is your constitutional right, decide to take your case to trial. You play Mr. Bigg “Trial Time” on repeat.  Your attorneys prepare your case, investigate it thoroughly, and present the best defense available. But in the end, a jury of your peers renders a verdict of guilty.

Now all you can do is wait; you conduct yourself solemnly, like a Buddhist monk.  You pray.  You give to charity.  You show remorse.  On the day the judge sentences you, you beg for forgiveness, acknowledge you were wrong, and hope the judge is lenient.  You shed tears on the stand.  Your family wails in the galley.  Your attorneys argue and offer evidence and tell the judge you are a changed man who deserves a second chance at life.

Yea, right.  Thats what a chump does.  A wimp cries.  A loser says he was wrong.  Tree huggers and new-age hipsters beg for forgiveness.  You are a badass.  And maybe a sociopath.  You don’t say sorry.  Instead you do the noble thing and after you are convicted you give interviews.  You scream obscenities and talk down to the jury.  You say things like “each and every one of you are mentally f–ing retarded and you should be euthanized because, as Darwin said, you have naturally selected yourself.” At least, thats what a man does!

Well, actually, thats what an idiot does.  Indeed, thats what Joe Francis did. Like a crazy s.o.b. he ranted and raved and even added that he is well hung.  Then you beg the reporter to not make you look crazy. Delusional rants are key, guys.  If grand statements aren’t your thing, you can always try reverse psychology. (See full insane interview here.)

You could give an interview, tell the world you want the death penalty, and then at the sentencing phase of your trial, tell the jury, psyche! Life in prison is what I really want!  That whole, please-kill-me interview was an act!  The best thing, jurors, is life in prison.  Thats what Jodi Arias did.  And, hey, now she is famous.  Which is totally not what she wanted.  Or is it? (See more here.)

Reverse psychology.  Works every time….

The Art Of Getting Clients

Before I started my criminal law practice, I spent a a couple of weeks preparing: I read books, met with experianced lawyers, talked to local judges, and I even googled “how to start a solo criminal law practice.”  

People have given me great advice along the way.  The best advice given to me was that you should treat every single person–the lawyers, judges, bailiffs, clerks, secretaries, court reporters–with respect.  When I first heard that, I thought “duh!”  ”Why wouldn’t you be nice to everyone you work with?”  But everyday I see new (and old) lawyers walk into courtrooms and act like they are better than everyone else.  So apparently, the advice is not that obvious.  

But, a lot of the things people have told regarding the practice of law are not obvious.  For example, getting clients.    

I often sought (still seek) advice on how to build a client base.  In criminal law clients are either appointed to you by the judge, or a client hires you privately.  Attorneys have shared with me several ways to get more clients.  For example, one lawyer told me to put my cards in magazines and donate the magazines to the local prisons.  Another lawyer told me to walk around the lobby of 201 and shout out random names as if I was looking for a client: the theory is that other people who need a lawyer will then realize “hey that guy looking for his client is a lawyer; I want to hire him.”  

Then there is the obvious advice that if you do a good job for one guy, he will tell his friends.  So I work my ass off for every client–whether its a driving case or a robbery.  Its also important to note that in criminal law to get more clients, you don’t need a rowdy website.  Clients don’t google me.  Nobody has hired me because I am a social media maven (self-proclaimed maven is the best kind of maven). 

Why do people hire me then?  Is it my courtroom skills?  Yes!  Maybe that’s it.  People must see me in court taking care of business and wait until I leave and then run me down because I was the best they saw in court that day and…yea, its not that.  If taking care of business means praying I don’t completely mess up or vomit when I talk or have my pants rip or sound retarded or forget the rules of evidence and botch the whole operation, then, yes, I take care of business, every single day! 

Its not my smile.  How do I know this?  From experience, that’s why. I read that smiling makes people like you more, and figured this would make people want to hire me.  So one day I walked around 201 smiling. All day long I smiled—when I used the bathroom or drank out of the water fountain, gigantic grin across my face.  

And yet nobody hired me that day.  Worse my jaw hurt the next day.  And still even worse than a sore jaw, my genius smile plan made me look like the dude from those ridiculous Cialis ads. At least I wasn’t whistling that ridiculous song from the commercial.  What am I saying?  I basically looked like a dumbass all day.  

So how do I get hired?  All kidding aside: I still don’t know.  I do know that word of mouth is huge.  There is no better way to build a client base than working your ass off for a client.  Communication, clear and open lines of communication has helped me get more business.  Also, clients—and this is solely based on my extensive 5 months of practicing—will hire me oftentimes when I am inside a courtroom, rather than when I stand with the other lawyers in the lobby. 

But that’s not an absolute.  I have gotten clients outside of the courtroom.  Sometimes I walk around and pretend to look for a client, and one time I tried walking around having fake phone conversations with “clients.”  

One time on the elevator, I complimented a guy’s badass Grizzlies hat and then he hired me.  (He was a great client, by the way.)  A few times clients have hired me when they see me visiting other clients in jail. 

In short, there are no shortcuts or clear paths to getting clients.  You have to put in time and effort.  You have to go to court every single day.  You have to love what you do because the days will be long and the pay sucks.  Your clients, even the ones who received the best possible outcome in a case, will be unsatisfied and yell at you and accuse you of “jammin’ them up.” When you win, nobody will pat you on the back.  If you are the type who needs “atta boys” after every win, then this is the wrong place to look.

Starting your own practice is hard.  Your work, and the effort you put in, will go unrecognized.  Clients will call at all hours and yell at you.  Some prosecutors will bully you, some people will tell you failure is certain.  You will struggle financially.  You may fail.  But if you never try, you fail by default–which is, as any good commencement speech on YouTube will tell you, the worst way to fail.  

Nothing good is easy.  Work hard, call your clients back and maintain good client communications, and be honest.  Thats the best way to get more clients; and in fact, its really the only way.  

Starts With A Fart, Ends With A Fight

Let me tell you something about guys.  For guys, farts–and especially farts in someone’s face–are funny.  Hilarious, really.  Eddie Murphy, in one of the best stand-up specials ever, even has a bit about how guys think farts funny.  (This was before Eddie became Dr. Doolittle; back when Eddie wore leather suits and talked about how much ass he got.)

Now, before you start your flatulent face-bomb campaign, I need to warn you.  Do not fart in your girlfriend’s face.  She won’t think its funny and she won’t like it.  Not even a little bit.

Seriously.  One woman, in particular, will stab you for farting in her face.  Her name is Deborah Ann Burns and yesterday she threw a knife at her boyfriend after he farted in her face.  When the police arrived and asked what happened, she (of course) told them everything. (Source.)

I don’t know exactly what she said to the police, but I can imagine it was something along the lines of “well, what had happened was, we had got into it, and he farted in my face, and so, ya know, I stabbed him.”

A fart leads to a fight.  Thats not just funny; that, as women are prone to say, is SO funny.

How The Process Is The Punishment In Criminal Court

In Memphis, Tennessee, people charged a crime have to go to the Criminal Courts located at 201 Poplar.  The building stands tall over downtown, the roof is covered with barbed wire and satellite dishes, and the bricks are a brown hue that really brings out the ominous Cold War feel of the place.  Once you walk inside, the interior design is even more comforting.  There are no signs to show you where the courtrooms are, and there is nothing on the walls–except for some early nineties  grey crime posters featuring catchy slogans like “Gun Crime Means Jail Time.”  

Aside from the aesthetics, the other thing people notice is how painstakingly slow the criminal system is: people rarely dispose of their case at the first or second or even third court appearance.  In fact, most people make the strategic decision to go to court several times before even considering whether to hire a lawyer.  So after several court appearances–and stern judicial admonishment–some finally hire a lawyer.  Regardless of their decision to hire an attorney at the first court appearance or their third or fourth, every person who has had to face criminal charges knows the system is slow.  Like real slow.

Some of my clients understand this and are patient; most of my clients unfortunately understand this, but refuse to accept it.  They are the clients who demand I get another court date because they have to be somewhere else.  A lot of times these clients demand me to hurry up even though they haven’t paid me-yet again-and even though this is the fifteenth criminal charge they have faced–yet again.

I am sympathetic, don’t get me wrong.  Having to pay for parking, take off work (haha yea like criminal work!), drive downtown, and spend a few hours waiting is not fun.  Then once they are done waiting and their lawyer appears before the judge, the ACTUAL time it takes is less than a minute.  Simply put, you wait hours for one minute in court.  That is how a normal court date works.

But delay works in the defendants favor.  Everyone–except the defendants–knows this. As William Glaberson observed in a recent article ”the true masters of delay are the defense lawyers. For them, muddled memories and lost witnesses — the passage of time itself — are the ingredients for getting clients off.”  So delay becomes the game.  Both for the lawyers and the clients.  Until the final disposition date is set, that is.  Then its game on–plead or go to trial.  

So what are we to do about a system where the process is the punishment?  

David Feige’s recent New York Times Op-Ed says the solution is simple: “treat criminal cases more like civil cases by excusing defendants from appearing in court until the prosecution is actually ready to try them.”  And while that solution is simple, it is a solution for the criminal courts in gum drop, fairy and unicorn land.  

Personally, I benefit from my clients having to show up for court each time.  Some change phone numbers often.  Most do not meet with me except when they have court.  So thats the only time I get to talk to them about their case.  Unfortunately, some of my clients don’t show up and then face another criminal offense, separate from the one I already represent them on.  For those clients, its not the delays that are the problem.  Its the people that are the problem.

Possession is Nine-Tenths Of The Law

For some reason, people think if the drugs are not actually in their pocket or hand, then they cannot be guilty.  Recently, for example, a client informed me that “possession is nine-tenths of the law” and, since he did not get caught with the drugs on his person, his charges should be dropped.

First problem: the adage my client quoted is a common law property theory.  It really doesn’t apply to criminal stuff.  Second problem: in Tennessee, possession may be either actual or constructive.  So if four men are in a car and the police find drugs in the center console, ALL four men constructively possess the drugs because they each have the ability to reduce the drugs to actual possession.

But just being in the presence of someone where drugs are discovered is not enough to convict.  Its enough to arrest, though.  And that is important.

While you may have had no idea drugs are sold out of your friend’s house, if the 50 show up and you are in the kitchen and there is a pound of weed in your friend’s room, you will probably be arrested along with your friend.  Then, when you go to court, the prosecutors will not simply drop the charge based on what you say.  Even if you codefendant pleads guilty, guess what?  You will probably still be on the hook. (I say probably because all criminal cases are different, and hell, maybe you could get lucky.)

So the argument “I didn’t have the weed on me” is a horrible argument.  The courts will use what they call a “totality of the circumstances test” to determine whether you possessed the weed, gun, or stolen property.

So if the cops pull you over and find drugs in your car and you admit you knew about the drugs, your fingerprints are on the bag of drugs, and the drugs are under your seat chances are that you are going to jail.  And this is true even if the person who ACTUALLY bought the illegal drugs takes the heat for them, you will likely still go to jail.  

Because, and this is the most shocking part for some people, the law says so, and sometimes what the law says doesn’t comport with what you think is fair, and that is just how it goes.

How To Find Out Who Is In Jail And (Most Importantly) Why

Whether you practice criminal law in Memphis, Tennessee, or just like knowing who is in jail, there are three important websites that are a must know.

If you need to know who is currently in jail, 201 Poplar set it up so every minute a list is updated with their name, race, and criminal offense.  The website shows the Active Inmate Lists (http://injail.shelby-sheriff.org/kiosk.php) and you just enter in a person’s name and hit search.  

If you want to know somebody’s criminal history, or when their next court date is, you go to this website known around 201 Poplar as JSSI: (http://jssi.shelbycountytn.gov/).  Once you go there, you have some options.  To find someone’s general sessions criminal record, you go to the top left tab and a list will scroll down.  You can search under their name, or RNI number (which is a number given to anyone who is processed into 201).  If you want their criminal record for stuff involving felony arrests, you go the tab that says CR.  And you search it the same way.

Finally, if you see someone is in jail or was arrested, but you want to know more about why, there is a website that has arrest warrants and misdemeanor citations.  All you need is the booking number (which you can pull from JSSI) and you put the number in, press enter, and if the arrest occurred after 2011, the person’s arrest warrant you are loooking for should pop-up.  If it did, click the view button and a pdf of the arrest warrant will open.  It usually is a brief paragraph explaining the essential facts that established whatever criminal charge the person was arrested for.  Its a great website.  And an important starting point in almost every case.  You can find it here: Affidavits and Misdemeanor Citations https://documents.shelbycountytn.gov/Affidavits/

 

Noura Jackson Goes To The Tennessee Supreme Court

Noura Jackson‘s appeal has reached the top!

Lawrence Buser, in his recent article in the Commercial Appeal (found here), delivered the news yesterday, explaining that the Tennessee Supreme Court has agreed to hear Mrs. Jackson’s appeal; Mr. Buser also noted that the Supreme Court did not explain why they granted certiorari.  Certiorari means review, basically.  And its legal gobbledygook, indubitably.

The Supremes–which is the nickname the five justices of the Tennessee Supreme Court often never refer to themselves as–will hear her appeal sometime in November, according to Buser.

Supreme Court review is rare and, as Mr. Buser points out in his article, “[t]he high court grants only a very small percentage of appeals and usually does so, according to legal experts, only when some or all of the five justices want to re-evaluate a lower court’s legal reasoning, conclusions or a combination of both.”  (I love the use of the unnamed team of “legal experts.”  To me its like saying “what I am saying is a fact; trust me, some random, unnamed people in court today told me so.”)

What Mr. Buser fails to mention is the rare cases that are reviewed, rarely win.  And sometimes, even when the Supreme Court does find there was an error during the trial, that error will be chalked up as “harmless” and the conviction stands.

Noura Jackson, who currently is riding out a 20-year prison sentence for her second-degree murder charge/conviction in 2005, was denied relief by the Court of Criminal Appeals earlier this year.  But some people still believe in her innocence.  There is even a Facebook page supporting Noura.

Some of those people may not think Noura is innocent; but that she deserves a new trial because the trial was unfair due to constitutional violations: specifically, Noura’s appeal argues that the search of her car was illegal (Fourth Amendment violation) and that one of the prosecutor’s violated her Fifth Amendment Rights during the closing argument.

I doubt the Supreme Court agrees with the fourth amendment violation arguments.  And personally I don’t think they will agree with the lower appellate court judges who said that the closing argument was a constitutional violation.  At any rate, if they do find it was an error, I think they will conclude by saying it was harmless error; evidence of Noura Jackson’s guilt was overwhelming. Get back to prison.

The defense has also raised an argument that the evidence was insufficient to convict because it was all circumstantial.

This argument will fall flat on its unmerited face.

For those who don’t live in Shelby County, at trial, prosecutors argued, successfully–obviously!–that Noura killed her mom because her mom was, in my words, cramping her style.  Noura wanted to party, and do drugs, and skip high school class, and throw parties, and get paid.  Noura’s mom didn’t let her do those things.  Noura then stabbed her mom 50 times.

But the defense says there was direct evidence.  There was no confession, no eyewitness to the stabbing.  Thats baloney(!)

Although the case lacked direct evidence Noura killed her mom, there was heaps and mounds of circumstantial evidence evidencing her guilty.

Some people erroneously think you can’t be convicted if there is only circumstantial evidence.

In fact, a police officer and I discussed circumstantial evidence the other day.  As I waited for a detective in the lobby of a local precinct, me and the dude working the desk were shooting the breeze.  The officer was taking a criminal justice quiz–he wants to be in the FBI–while I waited.  One of the questions asked whether circumstantial evidence is enough to convict someone of a crime.  That is, in a case with no or little direct evidence, can you convict with only circumstantial evidence?

The answer: it depends.

First, understand that circumstantial evidence is basically any evidence other than eyewitness testimony, which, I feel its necessary to point out, includes confessions (if you confess to a crime, then its eyewitness testimony).  Circumstantial evidence is evidence that allows you to deduce or infer a fact.

Standing alone, one piece of circumstantial evidence is probably not going to get someone convicted.  Circumstantial evidence is strongest when the pieces of circumstantial evidence add up and corroborate each other, excluding any other inference or alternative explanation other than guilty.  Like a puzzle: It takes several pieces that all fit together to form a single picture.

Evidence of motive–he killed her because she slept with his friend–and DNA evidence, like fingerprints on a gun are examples of circumstantial evidence. A witness who testifies about the defendant’s odd behavior after a crime is circumstantial evidence.  Basically, every criminal conviction–I am going on a limb and will even say–literally EVER involved some type of circumstantial evidence.

So to argue that Noura Jackson is innocent because the state of tennessee proved she stabbed her mom to death ONLY with circumstantial evidence, is like saying “I didn’t steal your car; I ONLY borrowed it forever.”  That just doesn’t make no sense.

The biggest reason why she is guilty (in my book, of course): Motive.  The State persuasively argued that she killed her mom because her mom was being to strict, and because her mom had an insurance policy Noura would stand to inherit.  Simply put, Noura murdered her mom so she could party all the time.

Thats a story I can hang my hat on.  The defense tried to make the argument that this was a random act by a stranger.  And alluded to that stranger being the on-again, off-again boyfriend.  That argument failed.

But hey.  Its all just circumstantial evidence (which is what “smoking gun” evidence is!).  This type of evidence shouldn’t put someone behind bars for murder.

You have to have DIRECT evidence to do that, guys!

Isn’t that right Charles Manson? Isn’t that true, Timothy McVeigh?