Ethics and Tribulations of a Young Lawyer: Sam Akhwale on Integrating Real-World Examples in Advocacy Ethics Training

Sam Akhwale is an Advocate of the High Court of Kenya with 17 years post-qualification experience. He teaches Trial Advocacy at the Kenya School of Law, the Bar School in Kenya. Before that he had worked at Private Law firms, with the Office of the Director of Public Prosecutions and with a Human Rights NGO. Sam is a gifted teacher and advocate. He brings a kind and gentle, yet disciplined, approach to advocacy teaching.

At the 2015 Trial Advocacy course for Kenyan lawyers hosted by the Mombasa Law Society at the Coastal city of Mombasa in Kenya, East Africa, among the items on schedule was a discussion on ethics. To set the discussion going, some hypothetical problem questions were posed to the participants in the training.

One of the questions went: "You are a young advocate, and have been sent by the partner in the firm you work for, to travel to and file a motion in a court 150km away from your head office, for stay of execution of an award of damages against your client, pending appeal. You have travelled all that distance, then just before you file the motion papers in the registry, you notice the supporting affidavit drawn in the partner's name has not been signed by him. You call him and he tells you, "just sign it". What do you do?".

“IS JUSTICE FOR SALE?” WHAT’S OUR ROLE AS TEACHERS?

Judge Robert McGahey submitted the following post:

About ten days back, Chris posted a very thoughtful piece (link here) which was inspired by an article in Politico. I read that article and would offer these comments as both a judge and a teacher.

In addition to teaching Trial Advocacy courses, I also helm the Judicial Externship Seminar at DU Law School.  Per the ABA, every judicial externship requires an academic component, and that's my task.  I try to focus on issues that aren't always talked about in law school and the last class session always focuses on the how judges are selected, and the influence of politics and money on judicial decisions. I tell the students that the class is about the value of an independent judiciary in a free society – and I have them watch Judgment at Nuremberg to see how perverted a justice system can become. Knowing that some students will poo-poo the movie with "it can't happen here," I assign as extra reading articles like the one in Politico, as well as cases like Caperton v. Massey.

If Justice is for Sale, Does Advocacy Even Matter?

I had an interesting telephone conversation with my good friend Joshua Karton a couple of days ago. He wanted to know whether I thought online advocacy classes would push budding advocates further away from the human connection in the courtroom that is such a vital component of the trial advocate's art. He spoke of the relentless forces that already hinder access to courtrooms and wondered whether technology is becoming yet another barrier to justice for the poor and the powerless.

Last summer, I taught an online advocacy course. I intend to write more about that experience in an upcoming blog post. In the meantime, I must admit that my conversation with Joshua caused me to take a mental step back and try to see the big picture of the adversary trial system and identify the forces that might interfere with the search for truth and justice. 

This afternoon, I read an article in Politico Magazine online that gave me pause. In the article, I Was Alabama's Top Judge. I'm Ashamed by What I Had to Do to Get There: How Money is Ruining America's Courts. Sue Bell Cobb, a former Chief Justice of the Alabama Supreme Court writes about the corrupting influence of campaign donations on the justice system. She asks a provocative question: "How do we convince Americans that justice isn't for sale--when in 39 states, it is?"

Perception and Persuasion: Musings on How the First Affects the Second

One of my research assistants dropped by my office this morning so I could sign her time sheet. We spent a few minutes discussing work and life. Knowing that I am not always aware of current cyberspace events that are common knowledge to Millennials, she recommended that I take a couple of minutes and look up the online controversy about the white and gold dress. A quick Google search took me to this New York Times story entitled Is That Dress White and Gold or Blue and Black?

For those of you who were, like me, heretofore unaware of the controversy, it involves the impact of perception on determining the color of a dress in a photograph. Some people believe it is white and gold in dark shadow, and others believe it is blue and black washed out in bright light.

Telling Case Stories in Social Media: Do We Teach This? Should We?

From Judge Bob McGahey of Denver:

A recent article in the New York Times caught my attention enough that I forwarded it to a number of my advocacy teacher friends, especially those interested in storytelling in the courtroom. (link: http://nyti.ms/1EGD8Z4.) The article discusses how the explosion of social media and online access to court filings is changing the way some pleadings are drafted: "Now some plaintiffs' lawyers, calculating that they will be protected from defamation suits when making charges in civil complaints, distribute the first filings online as a way of controlling the narrative." It was that phrase "controlling the narrative" that really jumped out at me. That impacts on ideas of storytelling.

Selby Reviews "Speaking Secrets (Sex and Sexuality as Public Property)"

Book Review of Speaking Secrets (Sex and Sexuality as Public Property), Sue Joseph,  Alto Books,  www.altobooks.com.au, 2012, paperback,  ISBN 9781921526183,  Aus. $24.95, also available at Amazon.com

I heard about this book when the author, Sue Joseph, was interviewed on radio about it. Talking about people who live with 'taboos' and how to interview them caught my attention because advocates require that witnesses speak secrets in many court cases, and especially so in sexual assault trials.

What will they become?

As an advocacy teacher do you sometimes wonder, “Is this worth it?” Faced with a student for whom ‘in your face’ is a life motif have you ever wondered, “What will they become?”

One of my recent students, out and about to fulfil my court watching assignment recently encountered an answer to both those questions. Read on.

You Look Just Like "Boo": Anthony Murray's Speech to Students at Southern Illinois University

One of the best parts of my job is serving as a faculty advisor to Southern Illinois University School of Law students who work with the Illinois Innocence Project (IIP).  The IIP is a unique organization that involves all three public law schools in Illinois, as well as undergraduate and graduate students at the University of Illinois at Springfield.

Last fall, the IIP was able to help secure the release of Anthony Murray, a man who was wrongfully convicted of first-degree murder in 1998 and served 14 years, 11 months and 3 days of a 45-year sentence (link to stories about his case and release here). Murray did not receive a full exoneration. Rather, after his conviction was dismissed, the state's attorney for Marion County, Illinois, brought charges again but offered Murray the opportunity to plead no contest to 2d degree murder in return for a sentence of time served. Murray chose the certainty of going home to facing trial a third time in a system he no longer fully trusted. (If you read some of the articles in the above link, you'll note that no one in the IIP was satisfied with the offer from the state's attorney, but Murray did not want to risk a third trial in the same county, with the same perjurious witnesses, for the offense.)

Murray spoke to the students at SIU this afternoon. As with all exoneree presentations I've observed, his speech was inspirational, heartfelt, and heart-wrenching.

Teaching Professionalism in Law Schools

Judge E. Lamar Battles of Florida's Thirteenth Judicial Circuit and I have been corresponding via email about the efforts the Florida Bar has made to encourage law schools to emphasize the teaching of professionalism in law schools. He provided me with the following links that will be of interest to those who are concerned with the direction and future of legal education.

Article: Who is an Ethicist in Law School?

Article: Being a Professional Involves Having a Contract with Society

Florida Bar Center for Professionalism: Index Law School Report

Article: John Berry Receives Stetson Public Service Award

Illinois State Bar Association Recommends Changes to Legal Education

Recently, the Illinois State Bar Association commissioned a study and released a report (available here) recommending changes to legal education. An ISBA synopsis of the report is available here. As outlined in the ISBA synopsis, the recommended changes include the following, some of which will be of interest to the advocacy teaching community:

The Special Committee made a series of recommendations to mitigate the law school debt crisis and transform legal education to focus on educating lawyers at an affordable price.

• Congress and the Department of Education should place reasonable limits on the amount that law students can borrow from the federal government.
• Rather than allowing all accredited law schools to enroll students receiving federal student loans, Congress should restrict federal loan eligibility to schools whose graduates meet certain employment and debt-repayment outcomes.
• The federal government should ensure that funds available in these programs are targeted to students most in need.
• Law schools must have the ability to experiment with new models of legal education to find the best ways to control costs while still delivering a quality education.
• Law schools themselves must transform their curricula to more emphasis on practice-oriented courses, with greater focus during the second and third years of school on helping students transition to practice through apprenticeships, practical courses and teaching assistantships, rather than the more traditional doctrinal courses. Needed reforms also include changes to law school faculty.

The final recommendation is particularly relevant to advocacy teaching, because advocacy courses already are designed to accomplish this objective. And yet, as some of you know and personally experience, not all law school faculties are receptive to practice-oriented courses or the people who teach them. This has been a periodic topic of discussion at EATS, as I imagine it will be for years to come.

I think the ISBA report is significant because it represents an organized effort by the practicing bar to help shape the nature and future of legal education. I've read the entire report, and although I do not agree with all of it, I cannot dismiss any of it. The report recognizes that a professional education cannot be entirely academic in nature, and it outlines the challenges faced by the graduates and the practicing bar when law students don't obtain the training and skills they need while in law school. At one time, the generally recognized purpose of law school was to teach students to "think like a lawyer," with the expectation that additional skills training could take place after graduation. As we know, law firms and government agencies no longer have the resources or inclination to provide such training.

To underscore the significance of what the ISBA is telling us, our law school hosted our annual Beatty Jurist in Residence this past week. This year's jurist in residence came from Florida's 11th Judicial Circuit in Miami. At a faculty lunch, several of my colleagues asked her about her perception of the readiness of recent law graduates to practice, as compared to when she graduated from law school. Without naming schools, she said there is a clear difference in practice readiness in the graduates of different law schools that appear before her. Some of them know what they're doing: they know how to analyze a case, prepare for court, conduct a trial, and so forth. Some of them, unfortunately, do not. Her message to us, and to our students, was that preparation while still in law school is more important than ever before. She spoke to my criminal law class and advised them to seek out clinics, externships and internships to learn how to be a lawyer, and she cited her own clinical experience in law school as being absolutely critical to her career development.

I found it interesting to consider that the differences from school to school are so apparent, but this matches my own experience when I taught trial advocacy recent to law school graduates at the Army JAG School. There really were differences--and sometimes, very stark ones--from school to school. And truth be told, some of the graduates of the so-called lower-tier schools were much better prepared to actually practice law than their counterparts from more prestigious schools.

Take the time to read the ISBA report (available here), or at least the synposis (available here) , and please feel free to comment about it in the comment section of this blog posting.

Joseph Anderson Jr's 'Effective Courtroom Advocacy'

Review of 'Effective Courtroom Advocacy',  Joseph F. Anderson Jr.,  2010, NITA (and through Lexis Nexis), ISBN  978-1-60156-124-4,   to order click.

New to trial work?  Buy this book. Not new but wondering why you're not much good?  Buy this book. Experienced and wanting to give a useful gift to a much less experienced, but capable of learning advocate. Buy this book.

With the 'who can benefit' issue now out of the way let's have a look at the interwoven 'why' and the 'what'.

This book doesn't just give examples of good advocacy.  Anderson succinctly, clearly and persuasively explains why a number of them are good. And sometimes he is wickedly funny. Evidence and advocacy teachers should use his mock trial ' how, when and why to make objections' script as a timeless teaching tool.

Those readers who understand that 'decision maker indoctrination' trumps 'sadistic endeavour' as the hallmark of effective cross-examination can convince the rational doubters by showing them what attorney Roy Black achieved when he crossed a prosecution witness in the Smith rape trial.  The transcript still sings.

Anderson comments that he once heard that, 'the definition of a nanosecond is the amount of time it takes for a newly appointed judge to forget what it is like to be a lawyer after taking the judge's oath'.  He thinks that is something of an overstatement. It might be added, however, that too many of those judges who choose to publicly comment enter an 'evidence free zone', substituting assertion for the evidence (rather like those advocates who do bad directs).  But not Anderson.  Here's that rare trial judge who gathers evidence of what happens in his court room over many years and then uses that data to offer useful insights to those of us with much less experience, no aggregated data, and so only ad hoc anecdote to guide us.  Maybe some of those advocates who keep on talking, talking, talking will read his lessons that juries want us to learn, reflect and finally fathom that being repetitive, turgid and boring is not the way to win the hearts and minds of decision makers.

For all of us there's a useful two page checklist of 'do's and don'ts' for closing argument.  Put it in your trial reference folder, use it as a tool to bring some objective critique to the closing you'll deliver after lunch or tomorrow morning.

While reading this book I dropped into three criminal jury trials and witnessed 36 jurors being driven to despair by advocates and trial judges who were oblivious to juror interests.  The jurors’ body language was unambiguous. It's hypocrisy to laud the jury as a great democratic institution, while treating them throughout the trial as though they should be passive, unfeeling, put up with anything automatons. Such failure to think about the jury's needs and wants is one of the 'common mistakes to avoid' that Anderson addresses.

Why so many advocates are blind and deaf to those decision makers sitting so close to them is a great mystery.  Anderson cites the 1993  National Law Journal report that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when opening statements are done;  about 15 % when the prosecution/plaintiff rests;  a bit less than 50% when the defence rests; up to 75% after the closings and judge’s instructions;  with 25% taking place in jury deliberation. With those kind of figures any rational advocate would pay a lot of attention to decision makers.

Talking about judges, their strengths and foibles, Anderson admits that he knows of judges who bully.  There is not much you can do, he says, 'except respectfully and steadfastly hold your ground'.  That, however, takes courage of a sort rarely seen. I watched from the public gallery recently as a judge got down into the ring to ask some questions.  The witness’s advocate, quite properly, stood to object.  The judge cut her off with a ‘Sit down’.  She did.  I felt for the witness, paying out good money for nothing.

Paying out money for this book though is well worthwhile.  It should sit alongside some other texts that have more to say and suggest about questioning techniques.  Anderson’s comments on those matters reflect the orthodoxy of the past.  We know more now than the late esteemed Irving Younger about effective questioning, especially about story telling and picture building on direct and indoctrination of the audience on cross.

So if you’re one of those many who should have this book let it join those other ‘how to do it’ trade books, and let it become as well thumbed and ragged as all such books should be.

Hugh Selby ©  March  2013.

Storytelling, Experience and Prosecutorial Misconduct: A Response to a Reader E-mail

A couple of days ago, I received the following email from a blog reader in response to my blog post about using a Youtube clip of a story from the television series Breaking Bad to help students see good storytelling in action: 

Interesting - Please relate your views of story telling with your recent posts concerning perceived prosecutorial misconduct in criminal proceedings and put all of that in context to the trials you have either prosecuted or defended.  Would also be interested in civil experience.

Please be specific to assist us in assessing your analysis.  Would you agree that experience is the best teacher?  Looking forward to your continued analysis.  

This is an intriguing email. I found it thought-provoking. The author asked me to link some subjects together in a way I hadn't thought of before, and so I've spent the last couple of evenings thinking about how to relate storytelling with my thoughts about perceived prosecutorial misconduct. 

Context

Let me start with the context question. Nearly all of my live courtroom experience (to this point) occurred during my service in the United States Army JAG Corps from 1995 to 2006. During that time, I was a trial counsel (military prosecutor) for about 18 months at 10th Mountain Division and Fort Drum, New York, a defense counsel at Fort Drum for about a year, and a senior trial counsel for a little more than six months at Fort Riley, Kansas. I also served as a part-time military magistrate at Fort Riley for over two years, conducting pretrial confinement hearings and issuing search authorizations. In addition, as the chief of administrative law at Fort Riley, I was a legal advisor to numerous summary court-martial officers.  

As with any young JAG officer with a similar service profile, I had many opportunities to try courts-martial before military court-martial panels (sometimes called military juries, though the term is a bit misleading) and military judges.  I also tried a number of administrative board hearings, both as a "prosecutor" (the Army term for the prosecutor in an administrative board is "recorder") and a defense counsel. I didn't keep track of the numbers of cases I handled in these positions, but I would estimate that I was involved as counsel in several dozen courts-martial (this includes both fully contested cases and guilty pleas--which also contain a contested sentencing phase) and a couple dozen administrative board hearings. 

The last four years of my military career I was stationed at the US Army JAG School in Charlottesville, Virginia. I taught evidence and trial advocacy in the Criminal Law Department there, taking over for Charlie Rose when he left the JAG School to become the Deputy Staff Judge Advocate at Fort Eustis. (As an aside, Charlie and I have been close friends for close to fifteen years now, ever since we first met at a US Army Trial Defense Services conference in 1998.)

During my time in the military, I had the opportunity to receive some of the finest advocacy training available in the United States. I believe the Army's Criminal Law Advocacy Course, which I took as a young captain and taught several times as a young major, is one of the premier advocacy courses available anywhere. In addition, as both a prosecutor and a defense counsel, I had numerous opportunities to participate in additional advocacy training opportunities and conferences. 

As a defense attorney, I was well-supervised, had a manageable workload, and had access to investigative and research resources that were truly top-notch. If I needed something, it was available to me. Sometimes I'd have to file a motion and work hard to get it, but the military takes its criminal justice system seriously, and looking back on it, sometimes I'm amazed at the resources that were available to me.

During my time in the military, I personally faced just one case that, in my opinion, involved prosecutorial and investigative over-reaching. I would not say that case involved misconduct, just a level of obtuseness and indifference that could very well have led to the conviction of an innocent man, physical evidence to the contrary notwithstanding. 

The case involved a false confession to a rape.  As a defense counsel, I was able to hire, at government expense, one of the top three confession experts in the United States to assist me. Because my caseload was manageable, I had the time to research and prepare my case, and I prevailed at trial. A few days after the trial, one of the military jurors approached the chief of military justice at the installation and delivered a reprimand for even bringing the case to trial in the first place. Although there was physical evidence linking someone else to the rape (and no physical evidence linking my client to it), the government steadfastly refused to consider the possibility that anyone else could have committed it. After all, my client had confessed! No one confesses to something they didn't do!

I fervently hope that I never committed prosecutorial misconduct. I do know that I was a much different prosecutor my second time in the position. After serving as a defense attorney, I was much less interested in filing lengthy charge sheets against an accused. I think my case analysis skills and ability to consider justice from different angles improved as a result of my defense experience.

I do not believe my experience in the military was exceptional in any way. For the most part, the military justice system is a fair system in which the rights of the accused are scrupulously protected. There are exceptions to this general rule. I believe the Bradley Manning case, currently being tried, may well be one of them.

Since leaving the military, I've taught evidence, trial advocacy, criminal law, and military law (as well as a few other subjects from time to time) at the Southern Illinois University School of Law. I joined the Illinois bar in 2009. Since then, while trying to do all the things a new professor must do to obtain tenure, I've worked pro bono on the rehearing of  a murder case and a DUI case. Both cases ended in guilty pleas (full disclosure--my co-counsel and I withdrew from the murder case for one of the few reasons one can withdraw from a criminal case shortly before the guilty plea, although we were on the case for nearly two years and several motions hearings). In both cases, in two different jurisdictions, I felt that the prosecutors handling the cases were fair to my clients and represented the interests of justice very well. 

I have never tried a civil case, although I am currently co-counsel on a civil qui tam case that is in its early stages. I have been an expert witness in one civil case, which was settled not long after the parties finished deposing all the experts.

The Innocence Project and My Views on Wrongful Conviction

A couple of years ago, our law school became involved in the Illinois Innocence Project. The Project is headquartered at the University of Illinois at Springfield and also includes all three public law schools in Illinois (Northern Illinois, University of Illinois and Southern Illinois). It is also part of the National Innocence Network. My colleague Bill Schroeder and I are the faculty advisors for the program at SIU. Our students read and evaluate requests for assistance, analyze case transcripts, search for evidence, interview witnesses, file motions and work in all phases of post-conviction relief and the executive clemency process. 

It is impossible to be involved with the innocence movement and not realize that there is a very real, and empirically quantifiable, problem with the criminal justice system in the United States. To learn of these cases and situations has been an eye-opening experience for me, because as I said earlier, I do not personally have any experiences with actual prosecutorial misconduct. At last year's Innocence Network conference in Kansas City, nearly 200 exonerees attended. I had the opportunity to talk to many of them, and I asked them what they thought about their defense attorneys at trial. Not very many positive comments came from those conversations.

Brandon Garrett, a professor at the University of Virginia School of Law, conducted empirical research on 207 cases in which innocent people were convicted and later exonerated by DNA. His book, Convicting the Innocent, does a fantastic job of analyzing the causes of wrongful convictions. Among those causes is prosecutorial misconduct and ineffective defense work. 

I believe that wrongful convictions constitute only a minority of the convictions in the United States. As my friend Bill Schroeder says, "Ninety-five percent of criminal defendants are more or less guilty of ninety-five percent of the charges against them."  Indeed, our students' experience in evaluating wrongful conviction claims for the Project is that most such claims are without merit.

Nonetheless, DNA exonerations have opened many peoples' minds to the fact that innocent people can be--and have been, much more often than we would like to believe--convicted of crimes they did not commit. So, what does storytelling have to do with this?

Storytelling, Prosecutorial Misconduct and Wrongful Convictions

I personally believe that storytelling may be at the root of wrongful convictions resulting from prosecutorial misconduct. When a prosecutor (or any attorney, for that matter) chooses a  story that is not fully supported by the evidence, the investigation, trial, and post-trial process become a series of efforts to validate the story. Justice and the truth take a back seat to the story. 

Stories are powerful. They matter. The wrong story, unsupported by or in spite of the facts, can have a powerful impact nearly impossible to overcome.

As an example, last January, a group of law students and I presented a petition for a posthumous pardon to the Illinois Prisoner Review Board for a man named Grover Thompson (link to stories here and prior blog post on the case here).Grover, who was crippled and walked with a pronounced limp, was convicted in 1982 of aggravated battery of a woman in Mount Vernon, Illinois. She lived in a basement apartment and reported that an intruder came through the window, stabbed her while she was getting out of the shower, leaped back up through the window when a neighbor responded to her cries for help, and escaped. She identified the intruder as a black man. Unfortunately for Grover Thompson, he was the closest black man available. Just minutes after the stabbing, someone remembered seeing a black man sleeping in the lobby of a nearby post office. This was Grover. Despite the fact that he had no blood on his clothing and could not physically have either made it into or out of that basement window, he was convicted of the crime and died in a maximum security prison 16 years into his 40-year sentence. Grover always maintained his innocence, from the first time police approached him to his death in prison.

The defense attorney in the case put on a good defense. He had Grover walk to the witness stand, demonstrating the limp (one leg was considerably shorter than the other), and Grover testified that he didn't do it.  But it didn't matter. The prosecution's story was that a black man had committed the stabbing, and the physical disability of this black man and impossibility of committing the offense was immaterial. The story was what was important.

Many years later, a cold case investigator in Carbondale discovered that Timothy Krajcir, a convicted serial killer and sex offender who committed a string of rapes and murders in a three-state area during this time frame, had actually committed this assault. Krajcir has since confessed to the assault, providing details that were never released to the public and that only the assailant could have known. Krajcir drew, from memory, more than 20 years later, an accurate map of the bathroom and the window.  Krajcir was extremely athletic and could easily have entered and exited the basement as described by the victim. Though he is Caucasian, he was dark-complected and was often described as dark-skinned or black by survivors of some of his sexual assaults.

The initial response of the Mount Vernon police to Krajcir's confession was that Grover Thompson must have boasted about the stabbing to Krajcir while they were both serving time at the same maximum-security prison and that Krajcir was confessing to get attention. The likelihood of Krajcir--who was Caucasian--and Thompson, who grew up in Mississippi during the Jim Crow era--developing such a relationship in a maximum-security prison is slim at best. Krajcir had, by the way, already confessed to a number of other unsolved cases, every one of which was verified by investigators.

The point is that years later--even when confronted with an actual, credible confession to the contrary--the original story still held sway. A black man had assaulted the victim. Residents had seen a black man within walking distance of the crime scene. A black man was at the described location. Therefore, the black man police found must have been the assailant. Never mind the inconvenient facts, the physical impossibility of this black man committing the offense, or the fact that a dark-complected white man actually did it. The initial narrative was--and to the minds of some, remains--all-powerful.

To me, this case and others like it are why stories matter so much and why storytelling is so important at trial. I maintain, however, that the story must be accurate, and it must be supported by the evidence. This is where prosecutorial misconduct in a criminal case--whether it is withholding evidence, ignoring exculpatory evidence, falsifying evidence, or misrepresenting evidence--is so egregious. These prosecutorial sins are used to create powerful stories that have real impact on the lives of others.

Experience as the Best Teacher

I think there is much truth in the adage that experience is the best teacher. In our modern era, however, we must recognize that many of our students will not be able to obtain the volume of experience of past advocacy masters. This is particularly so in the civil arena, where relatively few cases ever make it to trial. 

Furthermore, outside of well-funded governmental agencies, opportunities for training outside of law school are increasingly limited. Law firms aren't paying for training as they once did. Many public agencies have limited training budgets.

As educators, we have to provide training that can meaningfully prepare students to practice law--to tell stories and be good advocates--and that substitutes for experience. One of my recent graduates got a job at a prosecutor's office in the area. She had taken trial advocacy and been on the trial team, which gave her more trial experience than many of the newer members of the office. Within a week or two of starting the job, she had her first jury trial because of the experience level she had obtained in law school. None of the other younger attorneys in the office felt competent to take the case. This is not an uncommon experience; I've heard similar stories from many graduates in the past few years.

I think the era in which lawyers can learn at a client's expense has passed. This creates a tremendous responsibility, and opportunity, for those of us who teach advocacy.

Advocacy, Strategy and Fairness: A.S. Dreier Responds to Selby's Review of His Book

We received the following from A.S. Dreier, author of Strategy, Planning & Litigating to Win: Orchestrating Trial Outcomes with Systems Theory, Psychology, Military Science and Utility Theory, in response to Hugh Selby's review of his book published on this blog in December.  

I haven't read the book yet, but after reading Hugh's review and Andrew's response, my interest is piqued. It is now at the top of my reading list.

I think the debate between Selby and Dreier raises some valid and fascinating issues about advocacy, ethics and teaching. Please comment and join the debate!

Advocacy, Strategy and Fairness

A.S. Dreier

Since publishing “Strategy, Planning & Litigating to Win,” two advocacy instructors have separately asserted that the techniques of Strategy described are “unfair.”  I understand the concern—the methodology allows an attorney to deny their opposing counsel the ability respond effectively to unfolding events.  However, the claim of unfairness simply highlights a longstanding unfairness in the trial system.  Sophisticated (i.e. well-educated, intelligent, experienced) attorneys have always been able to dominate ill-prepared or less-intelligent adversaries.  The inclusion of the tools of Strategy simply resets the bar for “well-educated” and “well-prepareto include those with an understanding of Strategy.  The playing field will return to the status quo ante when formal tools of Strategy are incorporated in the education of trial advocates; until then, those who know Strategy will have an edge over the larger pool of trial advocates who do not.

The real problem, though, the issue highlighted by the claims of unfairness with regard to Strategy, is the fact – highlighted by the header to this blog, that the advocates skill affects (and sometimes wholly determines) the outcome of trial by court.

Modern trials differ from medieval trial by combat (where the litigants or their representatives dueled physically, allowing God to grant victory to whoever had the just case) in that rather than relying upon combat prowess or divine intervention it calls upon jurors to weigh relevant evidence. Evidence, however, may be (and often is) unclear and subject to multiple interpretations.

Advocacy leverages the need for interpretation in a variety of ways. For example, we develop a theme and theory in order to provide a favorable context to the evidence. We use primacy and recency, preempt our opponents arguments and counter-arguments, shift emphasis to favorable facts and away from unfavorable ones, extract from witnesses information that advances our preferred interpretation of events, and use techniques of persuasion to influence the way jurors perceive.

If we possess but do not use these skills, are we in breach of our ethical duty to our client?  If I am an experienced, well-educated advocate capable of crafting an argument that glosses past its flaws in a way that I am certain the unsophisticated, in-experienced (i.e. slow-witted) opposing counsel is likely to miss and so have no effective response to, am I being “unfair,” or am I serving my client?  Am I committing malpractice if I tell opposing counsel or the court about the weaknesses of my client’s case?

So, while trial by court gives some weight to the facts, we still have the trial by combat issue of having outcomes altered or even determined by skill rather than objective concepts of justice.

The techniques of formal Strategy—leveraging the OODA Loop (capitalizing on information the other party does not possess due to privilege or work product, shaping the context in which they receive and assess information, channeling the decisions they make, or taking actions that preempt or disrupt opponent's actions), using economic game theory to shape situations, and drawing upon tools from other strategic schools of thought—simply adds an additional layer of skills that opponents will either be capable of confronting or not.  “Strategy, Planning & Litigating to Win” points out that the techniques of Strategy are sometimes already intuited and used by practicing counsel, so any unfairness in them already exists in the system.  SP&LTW simply puts the techniques within the reach of all attorneys, and clarifies when they are or are not advisable. 

The "Paradox of Skill" states that greater levels of skill among the participants in a competition increases the degree to which “luck” affects the outcome. In the attorneys' case, "luck" may be having the facts and law on your side--in short, the more equally skilled the attorneys, the more likely the trial has a “just” outcome. So, once all attorneys can bring to bear the techniques of Strategy, the system will tend more toward justice.  Since these are techniques are already in use by some intuitively strategic counsel, by publicizing them, my book actually levels the playing field against the intuitively gifted rather than creating unfairness.

To ensure fairness, we could either require all attorneys remain equally ignorant of Advocacy and Strategy, or we can try to make all counsel competent in Advocacy and Strategy while ensuring they follow the rules of ethics (rules which allow persuasion, create disparity in the information available (privilege and work product—work product that includes the attorneys theme and theory).

I hope some of you post thoughts on this topic—Should we stop teaching advocacy? Should the Bar require trial attorneys be proficient in Advocacy and Strategy before entering the well? Should we say that some currently ethical techniques are unethical? How do we deal with the unfairness created by an adversarial system that allows outcomes to be swayed by attorneys of unequal skill?

Strategy,Planning and Litigating to Win: A Dismal Sign of Our Times

Book Review of ‘Strategy, Planning and Litigating to Win’ , a monograph by Lt. Col. Andrew S. Dreier of the US Army JAG Corps. (published as an Ebook on Amazon Kindle, 2012, 87 pages plus some appendices.)

Trial and appellate case planning is important, but it receives scant attention in many ‘advocacy textbooks’ which emphasise the tactical processes of questioning and submissions rather than the underlying strategy from which the questioning and submissions should flow. To the extent that there is a strategic case plan the most common approach is linear and, as often as not, it assumes a static, even comatose opponent.

Effective strategy, by contrast, anticipates what will happen; it develops an integrated pro-active plan of how to handle the law, the facts, evidential and procedural requirements, along with environmental factors such as prevalent prejudice; and, it enables the advocate to respond artfully to the unexpected.

Hence the title, ‘Strategy, Planning and Litigating to Win’ is exciting. The concept is attractive. It is made even more so by the sub title promise of reaching winning outcomes by applying systems theory, psychology, military science and utility theory. The organisation and choice of topics is also attractive: what a formal strategy can do; manoeuvre philosophy (by way of the OODA loop); concept of friction (a force that interferes with progress through the loop); the nature of the loop; and how to affect the actions of the opponent.

If this book could deliver on its title and its topics then it would be a very good book.

The early explanation is interesting: First introduce the manoeuvre theory of cycling through ‘observe, orient, decide, and do(act), repeat the sequence of OODA’ . Next, within that cycle apply the ‘line of operations’ concepts (apparently used in counterinsurgency operations). These concepts include comprehensive planning, capacity to understand the opponent and be reactive, and keeping the eye on the main game.

But, wait a minute, is that the intended order for effective planning? Should it be the other way around: ie. first, line of operations attention to the whole and then apply the cycle to the implementation? As a reader I’m confused when I should be nodding agreement. The author reports on surveys of user groups who, apparently, were grateful for the insights. That, however, doesn’t validate the method. It merely confirms that something is a lot better than nothing for trial planning.

The author correctly points out that any strategic success needs tactical skill to be successful. Sensibly the author then introduces a case study. Sadly it’s a very bad one and reveals a lamentable approach to prosecuting.

The prosecution case –endorsed by the author - is that the defendant, a visitor to the (intended) neighbour victim’s home, deliberately left a back door unlocked so that he could return with the intention of raping the victim. He entered, locked the back door, then went to her bed to do evil. She awoke, she recognized him and screamed, he fled through the front door – one that she claimed to have locked before going to bed.

The defence case is that the accused went to the front door to return some food, found the door open, heard the woman screaming, and went to her room – a story that is innocent enough.

Let's be quite clear: there was no evidence – in this book - that the accused ever went to the back door, let alone that he unlocked it and relocked it. There’s no sighting of him at the back door, no fingerprint or other forensic evidence to tie him to the back door. Nevertheless, the prosecutor has chosen to present this bald, unsupported hypothesis to the jury as though it was supported by evidence. Bad, very bad. So bad that the book and its author never recover.

The pity of it is that, apparently, the defence failed to move immediately for a mistrial when this unsupported hypothesis was introduced. Given that this book draws upon military strategy to which the laws of war apply, I can sum up the problem by drawing the parallel that a prosecutor’s strategy is subject to the ethical requirement that there be good evidence, not just speculation, to back up an hypothesis.

It gets worse: ‘Maneuver in litigation does not attack arguments or evidence conventionally; it targets an opponent’s ability to function’. It would follow from this assertion that ‘playing dirty’ is OK, that the pursuit of a just outcome is mere prattle.

Later in the book we readers learn that the defendant was also being tried on unrelated acts of sexual harassment in the workplace that had no connection in time, place, or even ‘modus operandi’ with the alleged assault upon his neighbour. Just how that was allowed to happen is not explained – but it shouldn’t have. The author writes, “Unfortunately for the prosecutor, X (an observer) was a highly effective witness (apparently based upon his pre-trial interview and statement)…” [in asserting that he would have seen the defendant if the defendant has gone into an alleged victim’s space and he was insistent that he did not see the defendant]. Hum, too much concern yet again with winning, and too little with understanding the prosecutor’s duty to present a case fairly and fully: ‘unfortunate’ witness for a ‘win no matter what’ prosecutor, but a thankfully observant witness from the defence perspective.

That matters have gone awry is amply demonstrated by the prosecutor deliberately omitting that part of the victim’s witness statement which dealt with the defendant’s alleged entry into her room. Apparently that then allowed the prosecutor to ‘fail’ to ask the observer about ‘not seeing the defendant go into the room’.

The game is given away when the author states, “to achieve a stiff sentence, the lines of effort (that are parts within a Line of Operations) were co-ordinated for presentation to the jury in a way that would build a picture of a dangerous escalation in defendant’s sexual aggression”. Never mind the evidence, the spin is everything.

Moreover, “ Because allowing the [observer] to contradict the [alleged victim] hurt [the prosecutor’s main aim], the prosecutor did not hesitate in his decision to abandon [the alleged victim’s] most serious allegation”. Scandalous.

This is not to say that this text is devoid of ‘ethical content’. It gets a mention in chapter 5 – in a discussion of how to stymie your opponent.

I read this book twice, the first time because I had high hopes for it, the second time because I was professionally affronted by the lack of ‘lets play fair’. But I do think that many lawyers should read this book, not for the undoubtedly positive reasons that lead the author to labour so long and hard to write it, but because it demonstrates how quickly one can slide excitedly down the slippery, oh so dangerous slope when the wrong ends justify the means.

--Hugh Selby

Why Trials Matter . . . Julie Rea and the Long Path to Exoneration

This afternoon, Julie Rea spoke to a packed courtroom at the Southern Illinois University School of Law, telling the story of her wrongful conviction and eventual exoneration for the 1997 murder of her 10-year-old son, Joel.  An intruder broke into her home and stabbed Joel to death.  Julie fought with the intruder, who fled the home.  She was convicted of the murder by a jury in 2002.  Shortly after her conviction, Tommy Lynn Sells, a serial killer on death row in Texas, confessed to murdering Joel.  He confessed multiple times in the next few years, and his confession was corroborated by investigators working with the Downstate Illinois Innocence Project.   Investigators also brought to light evidence of police perjury in Julie's original case. An appellate court in Illinois vacated her conviction in 2004, but prosecutors immediately re-arrested her for the crime and brought her to trial a second time.  With the help of Northwestern's Center on Wrongful Convictions, Julie was acquitted in 2006 at a second trial.  She subsequently received a certificate of innocence from the State of Illinois.  You can read more about this case by accessing the now-renamed Illinois Innocence Project's website. A link to Julie's page on that website is here.

One of the central tenets of her message is that what happens at trial, from jury selection all the way through to closing arguments, makes a tremendous difference.  In her first trial, an outgunned public defender represented her, alone, against two special prosecutors brought in solely for her case.  Her attorney persuaded her not to testify--in her words, would not let her testify despite her frequent pleas to do so.  Investigative misconduct, policy perjury and evidentiary error all occurred, unremedied, at the first trial.  Her attorney lost every phase of the trial.  Interviews with jurors after the trial revealed that they did not understand the burden of proof, their role at trial, or the role of the defense in a criminal trial; jurors commented that they were just waiting for her attorney to pull a rabbit out of a hat, or for her to look them in the eye and tell them she didn't do it. Julie said she knew as soon as jury selection began that she was in trouble. 

The second trial was a complete contrast to the first. This time, with legal resources at hand and zealous, tenacious counsel, she won at every phase of trial. The jurors not only found her not guilty, but they affirmatively proclaimed her innocence and condemned the prosecutors and police who brought the case against her in the first place.  

Ironically, to date county officials have not seen fit to bring charges against Tommy Lynn Sells for Joel's murder.

Julie's case, and many others like it, teach a powerful lesson about the importance of zealous, competent, prepared advocates who have the resources to do their jobs properly. I share it with you because it highlights, in stark and tragic detail, the central reason for training advocates in an adversarial system: trials matter, and in an adversarial trial, the skill and zeal of advocates can literally mean the difference between life and death.

I think it's important to keep these stories in mind as we go about our work of teaching advocates. In reality, we aren't just teaching them how to lay the foundation for a piece of evidence, to perform a scripted show at a trial competition, or to earn an A in an advocacy class.  We're teaching them the skills and ethical foundation they need to make our justice system function.

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Saluki v. Kangaroo Cage Match a Success

A few hours ago we finished the experimental competition between mock trial teams from the SIU and UMKC schools of law.  As you may recall from my earlier post, this competition featured jury trials from voir dire to verdict, with jurors drawn from the local community, presided over by state court trial judges.  Afterwards, the teams shared a meal and spent some time together socially.

The competition exceeded my expectations.  I thought I'd follow up my earlier post with some comments and feedback about the competition.  I'm aware of the possibility that I might be suffering from a huge case of confirmation bias, so I welcome debate, comments and questions on this topic.  Please use the comment feature of the blog to do this so others can read them.  If you are receiving the blog via email, click the hyperlink at the bottom of your email.  This will take you directly to the blog entry itself, where you can easily add comments.

• Voir Dire.  Although one of my favorite parts of a trial is voir dire, I've shied away from teaching it in my trial classes, largely because of perceived resource deficiencies and a lack of time.  Based on my experience in this competition, I'm going to change that.  I taught my trial teams a  a crash course in voir dire on Tuesday.  They practiced it on Wednesday before some live panels of law students.  They refined their voir dire questions on their own in preparation for trial.  Both the SIU and UMKC students conducted effective voir dire.  The jury panels opened up and talked to the attorneys, creating connections for both sides.  It was interesting to watch different jurors respond to the questions and the attorneys and gratifying to see the attorneys pick up on nods, smiles and body language cues.  To be sure, there were differing skill levels for voir dire; some of the students did it better than others.  But overall, the voir dire seemed to pave the way for both sides to discuss important themes, concepts and issues with the jurors in a real give and take.  (As an aside, I actually had jury duty this summer and watched voir dire for several panels of juries.  All of these students, from both schools, did a better job on voir dire than what I saw in this summer's trials, which was, by the way consistent with my past experience.  Most attorneys don't do voir dire well.)  We did a couple of things in the interests of time and preserving the feelings of our volunteer jurors.  The attorneys were not allowed any peremptory challenges.  They were allowed to make challenges for cause, but if granted, the juror would be allowed to sit for trial and only told before deliberations they had been selected as alternates.  As it happened, the judges did not grant any challenges for cause, on the grounds that the attorneys did not sufficiently develop the bias or inadequacy of the jurors to sit.  From what I saw, both from my own students and Rafe's, this was a fair comment from the judges.  Our attorneys hit all the right themes and got the jurors talking, but they did not obtain enough evidence on the record of any bias or infirmity of the jurors.  To improve voir dire next time, I would do a few things differently.  First, I would increase the size of the panels (we used 6-person juries).  Second, I would permit a peremptory for each side, because in at least two of the trials I saw, both sides correctly instinctively identified jurors that would be dangerous for their case but could not get them stricken for cause and had no peremptory to fall back on.  Third, I would permit actual challenges for cause and dismissals.  I think that volunteer jurors would understand this if advised of it in the beginning.  Fourth, I would allow more time for voir dire.  We gave 20 minutes per side.  I think a half-hour, or even an hour, would be better.  

• Time Limitations.  When I originally decided to use this competition format, my idea was that we would use a larger case file with more than two witnesses per side.  I figured we would have voir dire and opening statements in the morning, take a lunch break, and then try the rest of the case in the afternoon.  Instead, Rafe and I decided to try a morning trial and an afternoon trial.  This necessitated using a smaller case file, as well as imposing an overall time limit for the trial, including a hard time limit for jury deliberations.  While this permitted us to involve more students, there was a cost to the realism element of the trial.  Next time, I'd like to try a full-day trial.

• Professionalism and Ethics.  As I expected, no problems here.  First, Rafe and I both drilled into our students that they would behave professionally.  This included the No-Jackass rule (I've written about it before here) for witnesses and attorneys.  Second, as I suspected, the jury was a moderating influence.  One of the UMKC students told me after the trial, "There were several times I could have objected, and if I was trying to get points, I would have.  But then I thought about how it would sound in front of a jury, and I bit my tongue."  This was a successful strategy for him and perhaps a contributing factor to his successful verdict in the case.  By the time trial started, these attorneys had a relationship with the jury, and I don't think they wanted to jeopardize it.  We did not have a competition committee.  There were no protests.  This does not mean the students were always happy with their opponents, especially those playing witnesses.   But they had to figure out a way to work through these issues without whining or jeopardizing themselves in front of the jury.  From what I could see, they all managed to do this.

• The Verdicts.  We tried a civil case, including comparative fault and damages.  The students had to negotiate and stipulate to the damages instructions and the verdict forms.  The case was tried four times today, with each school presenting two plaintiff's cases and two defense cases.  Here are the results:

Trial 1.  Verdict for the defense.  0% fault for defendant.  (UMKC won)

Trial 2.  Split liability.  Defendant 70% at fault for defendant, plaintiff 30% at fault.  $750K in damages.  (SIU won)

Trial 3.  Verdict for defense.  0% fault for defendant.  (SIU won)

Trial 4.  Split liability.  Defendant 20% at fault, plaintiff 80% at fault.  $50K in damages (SIU won)

This type of verdict spread would drive a competition director at a large regional competition insane.  But it was perfect for what Rafe and I were trying to accomplish.  It was fascinating to see the facts and themes that led to the differing verdicts.  The students were able to talk to jurors and find out what worked and what did not.  We learned that in one trial (one of the defense verdicts), one juror was able to sway all the others to vote against the plaintiff, even though they had all wanted to vote for the plaintiff.  We also learned that the attorneys' instincts about the jurors that ought to be stricken was absolutely correct, and they were able to take away a powerful lesson about voir dire and developing challenges for cause.

I want to emphasize something that I think is very important here.  I don't think our format would work for a large tournament.  Furthermore, if the object is to judge advocacy skills in isolation of their actual persuasive effects with a real jury (as seems to be the case in most competition score sheets), this format would not work.  I am not faulting the large competitions here.  What Rafe and I did was different.  It has different goals.  I happen to like what we did better than the typical trial competition, but it is not the same thing as a typical trial competition.

• Timeframe for Competition Prep.  After Rafe and I agreed on the case file, we gave the students exactly two weeks with it to prepare for trial.  I think this ought to be the standard even for larger competitions.  Why?  Because two weeks puts a greater emphasis on case analysis and actual trial skills, and much less emphasis on the scripts and theater-like preparation involved in current trial competitions.  There is enough time to prepare a case, but there is not enough time to write and rehearse a performance.  Now, does this mean that all the students walked up to the podium and woodenly read to the jury from their legal pads?  Absolutely not.  The quality of advocacy was superb.  All advocates from both schools did their openings, closings and witness examinations without notes.  I train my students to work that way whenever possible, and it seems to me that Rafe does as well.  They worked like dogs for two weeks to get ready, primarily on their own.  I served as a judge for one round of trials and worked with them on voir dire, but otherwise, they were left to their own devices.  And they did well.  One of the UMKC students gave a particularly good opening statement.  I knew him from a study abroad program in Ireland I taught a couple of years ago, and we talked after the trial about his opening.  He wrote it the morning of trial after thinking about what he wanted to change about his old opening on the drive from Kansas City to Carbondale.  Haven't we all had the experience of doing some of our very best work under time pressure, without a team of coaches to edit or write it for us?

• The Dinner Afterward.  All I can say is this: if you like homemade barbecue and soul food, come to Carbondale.  I'll take you to Mo Wallace BBQ.  Then you'll know what a wonderful meal we all shared together afterward, complete with a short awards ceremony and comments from the coaches.  We had ribs, catfish sliders, fried chicken, pulled pork, potato salad, cole slaw, baked beans, collard greens and cherry cake. Plus, we all left as friends and colleagues, having shared both a competition and a meal together.    You can't find a better ending to a trial competition.  

Michaelle Tobin, a teaching fellow at UMKC who helped coach these teams, has promised a blog post about the competition next week.  Stay tuned!  In the meantime, I'd like to do another of these in the spring.  If you're within about a 6-8 hour driving radius of Carbondale and are interested, give me a call.  We can work out a dual meet at either your place or ours.  And I'd love to hear about other people trying this format or variations of this. Maybe we could start a league!

Why we need to train young Public Defenders and a few thoughts about how

The following post was written by L. Richard Walker, a Public Defender who attended the Advocacy Teaching meeting at Stetson (Watch for info about the 2012 meeting on this blog). As with all posts we hope that his thoughts generate comment and provoke more posts so that we are all better teachers and our students better advocates.

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There is a compelling need for effective representation for indigent defendants charged with criminal offenses. This has been said for decades. It remains true. Lawyers and many non-lawyers know that the constitutional right to legal counsel for the accused was established decades ago by the precedent of the Supreme Court of the United States. See Gideon v. Wainright, 372 U.S. 335 (1963).

Since 1998, I have worked as a public defender almost continuously in state and federal courts. I began in law school at Temple University, Philadelphia, Pennsylvania, gaining invaluable experience as a legal intern at a criminal court in the area. This was a battleground, in the constitutional sense, and one of the many locations across the country where the work of indigent defense really gets done.

This post is neither a tribute to Clarence Earl Gideon, nor a celebration of the Court’s 1963 decision. The opinion, of course, is hugely important, but it has been praised many times by more prominent people. Instead, it is an argument, based on my personal experience, that not enough has been done to uphold the constitutional right in actuality. In my conclusion, I will discuss what I’ve done about the problem.


The Needs of the Indigent Defense Profession.

Now, more than ever, there is a need for skilled and dedicated trial lawyers willing to handle criminal cases on behalf of indigent defendants. First, criminal trials are the exception. More than 90 percent of federal criminal cases are settled with a plea of guilty. State courts are not much different. Often, this is done by way of plea agreements, which include bullet proof waivers of appellate rights. This means that the government is almost never required to meet its burden of proof beyond a reasonable doubt. This was not the intent of the Sixth Amendment to the Constitution of the United States. It also means that, without appeals, the common law is not developing in a natural and free manner, which is antithetical to the idea of a common law system.

Second, the government is strong. I am, of course, referring to the U.S. Department of Justice, FBI, DEA and the other federal agencies charged with investigating and prosecuting criminal offenses in the United States. Since the war on drugs began, the government has had the upper hand in criminal trials. It dedicates, for all intents and purposes, unlimited resources and unlimited personnel to criminal prosecutions. In terms of criminal trial work, the government is the ultimate adversary.

Third, there is no shortage of substandard representation. Anecdotally, in the last two or three years alone, I have seen numerous cases that have fallen well below the standard for “effective assistance of counsel”. I take no pleasure in detailing a few examples:

In the case of United States v. K.A., the government charged a Jamaican man who worked in Manhattan with a large cocaine conspiracy, involving multiple people and extending through the northeastern United States. As the case progressed, the government turned all co-defendants against the defendant. When the evidence seemed overwhelming, the defendant decided to enter a plea of guilty based on a written agreement with the government. The defendant did not fear prison time, provided he could remain in the United States upon release where his entire family lived.

The defendant’s retained counsel did no legal research and failed to confer with an immigration attorney. The attorney expressly advised the defendant during the guilty plea hearing that the conviction for drug trafficking was not grounds for removal. Once the defendant settled in federal prison, U.S. Immigration and Customs Enforcement entered a detainer for removal proceedings. The attorney’s advice was 100 percent wrong!

To be sure, there are federal offenses that do not constitute grounds for removal. The attorney should have attempted to negotiate a settlement based upon such a charge, rather than pushing forward without care as he did. If that was not possible, trial would have been the more attractive option, despite the challenges presented by the evidence.

In the case of United States v. D.S., the state charged the defendant with misdemeanor domestic violence. The defendant was innocent, but entered a so-called plea of convenience and served no jail time. However, the appointed lawyer – who was paid $124 to handle the case – failed to mention that a misdemeanor domestic violence conviction renders one a “prohibited person” who cannot possess a firearm under federal law. The judge and the prosecutor overlooked this, too. A few years later, the defendant called 911 for assistance with his unruly teenage daughter, and the police observed his firearms collection. The Bureau of Alcohol, Tobacco, Firearms and Explosives took an interest and the defendant was charged in federal court with a felony firearms offense, which carried 10 years in prison.

Then there was a drug case involving the charge of conspiracy to distribute in excess of 50 grams of cocaine base. That normally carries a 10-year minimum mandatory prison penalty. The particular defendant, however, had two prior convictions for serious drug offenses. The government filed an information and invoked 21 U.S.C. § 851, which increased the minimum mandatory penalty from 10 years to mandatory Life in prison. The attorney for the defendant negotiated a plea agreement based on the conspiracy charge. The attorney failed to realize, however, that the recidivist enhancement applied and that the penalty under the plea agreement would be mandatory Life in prison, i.e., the same as if convicted after trial!

Taken together, these points make it clear: more needs to be done in order to ensure that our justice system is fair and that defendants – especially indigent defendants – have a true voice. Rather than point the finger or complain, I decided to teach interested law students and new lawyers about the importance of indigent criminal defense.


Training for Indigent Defense Work in Criminal Court.

Prior to learning criminal trial advocacy, interested law students and emerging public defenders naturally must have a solid understanding of Criminal Law, Evidence, Criminal Procedure, and Legal Ethics. Students should begin to develop this knowledge in law school and during preparation for the state bar.

Then instructors should introduce students and new lawyers to reliable secondary sources, which clearly and accurately outline the cases, statutes, rules and procedures of their specific jurisdiction. For instance, most state public defender systems develop comprehensive training manuals and, at the federal level, there is Defending a Federal Criminal Case, by the Federal Public Defenders. Sources like these are essential starting points and will serve as the playbooks for the first couple years of practice.

It is equally important for instructors, early on, to offer formal training sessions. These should include substantive discussions along with traditional trial advocacy skill sessions. Like an advanced trial advocacy class, the instructors should focus on each phase of a criminal trial. Importantly, in my opinion, instructors should utilize files from actual criminal cases, rather than contrived or modified trial problems, which are often limited and unrealistic. The extent of the critiques and the number of skill sessions for each phase of the criminal trial will depend upon the ability of the students. These formal training sessions should conclude with mock trials so that no young lawyer, much less a law student, is asked to handle an actual criminal jury trial without at least one live and authentic mock trial experience.

In addition to trial advocacy skill sessions, law students and emerging public defenders should utilize the Internet if they have not already done so. There are thousands of videos, articles, transcripts, blogs and instructional resources relating to trial advocacy in criminal court. Nobody knows it all. Indeed, there is probably no method here. But students and emerging public defenders should probe it deeply. I suggest using the Internet to shadow the best trial lawyers of criminal courts, including, but not limited to, F. Lee Bailey, Jerry Spence, Roy Black and the late Johnny Cochran. If students and emerging public defenders study video of these criminal trial lawyers, they will be prepared and inspired during their first trial.

On a different note, instructors of law students and emerging public defenders should pay close attention to the needs and circumstances of the client. Indigent defendants in criminal court face many obstacles. They are poor and often at risk. Many are mentally ill and under-educated. In many cases, their lives have disintegrated as a result of incarceration. The public defender must be supportive of the client and empathetic. Instructors should encourage an open-minded approach. Students and young lawyers should do their best to understand the life experiences and hardships of the client and be attentive and engaged whether the client is having a good day or bad. That is not always an easy task, but that is the only way to develop a productive and trusting relationship with the client. Without that foundation, it is highly unlikely to win at trial or otherwise obtain the best result in a case.

Similarly, once students and emerging public defenders are able to embrace the client’s perspective, they can tell the client’s story. We all know that’s what good trials are about. Jurors care about people. Jurors listen to and are moved by compelling stories and ultimately make decisions based on what fits best within their natural sense of right and wrong. I do not know the best way to teach or improve storytelling, but I read scores of children’s books to my kids. The old favorites capture the essence of storytelling. Our top selection, if you are wondering, is Rikki Tikki Tavi, by Kipling.

Finally, we must teach students and young public defenders to be strong and zealous advocates. Public defenders are never the winners of the criminal justice popularity contests. Rather, they are often criticized even when they are doing what is legal, right and required by their ethical duties. The clients – especially in high-profile cases – are characterized by the media and others often as society’s greatest enemy, even when they turn out not guilty. Therefore, it is critical for those entering the public defender profession to understand that they might lose more than win. Some days will be frustrating. Many will have a dim view of the public defender’s clients and work. But none of that means that these lawyers are performing poorly. In fact, the contrary is true much more often than not. We must teach that, through it all, public defenders need to have courage while they fight within the law and try many cases.2


Endnotes

1. L. Richard Walker, Esq., is the Senior Litigator at the Office of the Federal Public Defender for the Northern District of West Virginia and a Trial Team Coach for the West Virginia College of Law.
2. Richard plans to illustrate the ethical issues facing public defenders and perhaps more about the need for courage in a later contribution to this blog.

A Debate and Solution on Tweaking the Model Competition Rules

This post is a collection of e-mail conversations between Eddie Ohlbaum, a law professor at Temple University and principal author of a new model code for mock trial competitions, and Gerald R. Powell, a law professor at Baylor University School of Law. Jerry's comments are in plain text, and Eddie's responses are in italics. They have given me permission to reproduce their e-mail exchange in this blog post.

Their debate is a valuable one. Please add to it by commenting on this post using the blog's comment function.

1. (Jerry) It seems to me that there are really two different abuses that we have seen. One type – inventing facts not in the problem – was largely exterminated by the model code at TOC, and that's a great thing. The other – using the competition rules as an offensive weapon – still occurred. I don't think you will ever legislate away that type of misconduct because you will always have some kind of competition rules and, as Eddie says, there is always a closed universe of facts. Nonetheless, we should try to tighten up the code and give innocent victims a remedy against rules gamers if we can. How about a rule that permits the witness to invent non-material facts in response to a cross question that inquires about a fact outside the record? Eddie, I can feel you cringe all the way across the country, but would that be so bad? We don't want witnesses to invent fingerprints not in the problem, but what's the harm in inventing the name of the teacher? The object is to deter the rules gamer from planning the game, and so we might never even have a remonstration on the invented non-material fact issue.

(Eddie) Thanks, Guys. I've included Susan Poehls on this list because she is in the process of deciding whether to use the MRMT at the NCTC next week. Jerry's "fact-finding" comports with mine. No facts were invented. But a few crossers stepped over the line. It's important to note that this was no simply "gaming the system" or finding a "weakness" in the MRMT. These gamers violated the rules.

Here's my reservation about the "Powell" exception. As I understand this suggestion, a team will be able to respond on cross with "non material facts in response to a cross question that inquires about a fact outside the record." I fear there is no way to adequately define "non-material facts." I'd be satisfied/delighted to adopt an exception for "personal or professional background facts" but, there, too, the line can be easily crossed. If I cross examine on the lack of fingerprint training (and there is nothing in the file one way or the other), is the witness free to make up having a level of experience which would qualify him to offer an opinion? Do we want to invite a contest on what constitutes a material fact? Remember, the rules currently permit cross examination on the lack of evidence and procedure -- see MRMT 2.3. Gerry (and I) were champions of this type of robust cross. If we allow teams to answer beyond the record, how do we control that? Am I then (as the impeaching team) permitted to impeach by omission? If so, must the witness answer, "your right, in my complete answer to your questions about my experience, I never mentioned anything about. . . ." Big problem, yes?

Here's what should happen under the current rules:

Rule 2.0 bars fact invention and provides that the file is a "closed universe." Rule 2.0(d) states, "A team may not invent 'anything' about a witness's background which is not specifically stated in the file." Comment 4[b] particularizes this concern in the context of "background info." Rule 2.2 requires a "good faith basis for asking questions." There is no good faith basis for asking a witness about the kind of background information which was at issue at St Johns (PhD thesis, courses, names of profs, etc.). The file says nothing about it. AND IT IS NOT THE KIND OF "CROSS-EXAMINATION ON THE ABSENCE OF EVIDENCE" PROVIDED IN MRMT 2.3'--WHICH IS THE CROSS-EXAM RULE FOR GOING OUTSIDE OF THE FILE. I will re-draft rules 2.0, 2.2 and 2.3 to specifically address this issue. Those rules need tweaking, not scrapping.

THE COACH AND ADVOCATES WHO DID THIS VIOLATED THE RULES. The question then becomes, protest and penalty. What we need is a straightforward and succinct explanation of how this works. I'm happy to draft one for approval. As well as the stones to enforce it.

2. (Jerry) Eddie, I see your point – the rules do address this very situation. But, the answer in the model rules is a remonstration trying to get the cross-examiner to admit that he did not have a good faith basis for the cross. So, if remonstration fails (and it will with a team willing to do this cross), then the judges must decide whether there was "good faith." The burden of proof is on the complaining party (the victim of the rogue cross) to show the cross examiner did not have good faith.

The cross-examination exception that I am suggesting permits the witness to answer a beyond-the-file question with a non-material fact answer. Then, if there is a remonstration, the judges must decide not whether the cross-examiner was in good faith, but whether the fact was material. And the burden of proof is still on the complaining party, but now the complainer is the cross-examiner (the rogue himself) to show that the fact was material.

To me, that is a standard more easily understood by the trial lawyers who are judging. Also, it places the burden of proof on the real wrongdoer. As trial lawyers we deal with materiality every day. On the other hand, if the issue is good faith of the cross-examiner then I fear the judges will be loath to conclude someone was in bad faith, especially when they are not themselves very familiar with the case file.

Most importantly, though, the exception sends a message to the schools that would try this kind of cross: if you do it, the ploy won't likely work because the witness does not have to say "I don't know." That deters the misconduct. If you incorporate clear examples of non-material facts (the ones at issue here seem very appropriate ones), then the team calling the witness can point to the code examples in defense of the answer given.

(From Eddie) Hi Gerry:

Thanks for continuing to advance the ball with yet another well thought-out and balanced approach. I think we're close. The "abuses" of the Code -- from my reports -- were as you summarized. I don't know the primary offender(s). It was not widespread, which makes the reaction somewhat surprising. My suspicion is that the 3+ hour coaches meeting and the "let's try something new which sounds radical but really isn't" was too much for many to handle. You are also right that the "no inference rule" had a positive impact -- no complaints of anyone making up facts as has been true of TofC and other competitions in the past. The problem, as you articulated it, was the gamesmanship (gamepersonship) on cross

Let me specifically comment on your observations and proposal -- the spirit of which is spot on -- and offer what I hope will be a friendly tweak.

Your suggestion: "How about a rule that permits the witness to invent non-material facts in response to a cross question that inquires about a fact outside the record? Eddie I can feel you cringe all the way across the country, but would that be so bad?" First, I am not cringing. I have been taking anti-cringing meds, which have helped. I am, however, "crechtzing" (the ch is a gutter "h") which means kvetching with emphasis. Here's why: Without the bad actors and the strayers (for whom, after all, these blessed rules exist) among us -- some of whom are coaches who have won major championships -- your rule makes sense and would be rarely invoked since there would be very little gamesmanship. But substiting the phrase, "non-material facts" (even if limited to cross) draws the same battle lines but with a different name. Instead of arguing about whether an inference is reasonable, the fight will now be about whether a fact is non-material. I am especially concerned about new MRMT 2.3 (for which you and I and others passionately championed) which permits crossing on the absence of evidence, the failure to perform tests or exams or conduct an investigation or search which would have been reasonable for the witness of the institution to which the witness belongs to conduct . . ." Given past over-reaching (see MRMT 2.0, Comment 3 for examples of hall of fame cheating), I'm concerned that we open ourselves us to a return to the past. One persons "that's a non material fact to which you opened up the door by asking it on cross" is another's "that is a material fact which goes to the merits of the exam." Some may read this change as permitting witness's to make up information which would provide the witness with special competency qualifications which the file did not provide. Eg. Q: "You're an internist?" A: "Yes." Q: But you have no special training in "child sex abuse." A: "Yes I do." (Is that material--if the file calls for the witness to provide an expert opinion on CSA. Of course it is and all would agree. But what if the crosser asked, "you took no courses in child sex absue, did you?" Is the answer, "Yes, I did, and the names of two were, 'CSA I and CSA II.'" Are those answers material. Of course they are if the issue is whether the Doc is qualified to offer the opinion. Do we want to invite that debate?

My friendly tweak is directed to this type of silly background info and will both bar these types of questions and provide relief to beat back the gamers who can't help but ask them. New paragraph to MRMT 2.3: "An advocate may not cross examine a witness on non-material personal or professional background information which is not contained in the fact pattern. Non-material information is information which does not impact on the witness's competency to express an opinion or generally credibility. This type of question includes, but is not limited, to information about the names of spouses and children and the names of schools, professors, employment sites and supervisors. Where a witness is cross-examined about this type of non-material background information, the witness is permitted invent a non-material answer. See Comment _____.

3. (Jerry) Eddie,

This makes my head hurt. Is there a Yiddish word for that?

Your tweak places a new restriction on the cross-examiner ("An advocate may not cross examine.…") in addition to providing the witness a way to answer without violating the rules. I fear the law of unintended consequences to the innocent cross examiner. How about rearranging the sentence, and cutting the restriction on the cross-examiner?

If a witness is cross-examined about non-material background information not contained in the case file, the witness is permitted to invent a non-material answer, even though it is not contained in the case file. Non-material background information is information about a witness which does not affect the witness's credibility or competency to express an opinion. This includes, but is not limited to, information about the names of spouses and children or the names of schools, professors, employment sites and supervisors.

Since the cross examination abuse is relatively rare, and the model rules do seem to chill the abuse of invented facts on direct, I will support your model rules whether you decide to adopt some version of a cross examination exception or not. I think it is worth more "trial."

(Eddie) Thanks, Jerry. Great job. I am totally on board. Your proposed language is better than the language I suggested for the reasons you put forward. This addresses the problem . . . while still preserving the "non inference rule" which most--but not all--thought chilled the propensity of some folks to invent facts under the guise of "reasonable inference." I will amend MRMT 23. accordingly.