TLC_035: NOT GUILTY BY REASON OF INSANITY

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

AbandonedNYInsaneAsylumIn This Episode: I pull back the curtain on the the plea of Not Guilty By Reason of Insanity.  How does it differ from Diminished Capacity and Competency to Stand Trial? Contrary to what the media often portrays, the insanity defense is pled  in approximately 1% of all criminal cases and is only successful about 25% of the time it is used. The defense is used very rarely and frequently misunderstood by the general public. We explore some famous cases where the insanity defense was used successfully: John Hinckley Jr and Andrea Yates. Both defendants were acquitted of their crimes based on insanity defenses. Both defendants remain in custody however. In fact, studies show that defendants who successfully plead insanity often spend as much time if not more (sometimes double) than their counterparts who were convicted on a staring guilty plea.
To see how each state treats the insanity defense, click HERE.
 TRIAL LAWYER MENTOR Quick Tip:
I talk briefly about the need to define terms of art in your industry, especially terms that have made their way into the common language but are used in ways that may subtly alter their original definition.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

 

TLC_034: COLLATERAL CONSEQUENCES of a CRIMINAL CONVICTION

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

GavelHittingPersonIn This Episode: I pull back the curtain on the Collateral Consequences of a Criminal Conviction. What rights and privileges are affected beyond the punishment imposed under the law. We explore gun ownership issues, denial of government benefits, licensing issues as well as immigration issues and the two most egregious ones in my mind: disenfranchisement and exclusion from jury duty.
To see the ACLU map of the UNITED STATES color coded by which states have felony disenfranchisement, click HERE.
 TRIAL LAWYER MENTOR Quick Tip:
I talk briefly about deciding WHO the HERO of your story is and why it is so important to have one in order to get your point across effectively.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

 

TLC:033 PUBLIC DEFENDERS and PRIVATE LAWYERS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

PublicPrivateIn This Episode: I pull back the curtain on the difference between public defenders, appointed counsel and private lawyers. So often the injustices involved in the system are blamed on the performance of a lawyer rather than an inherent bias in our society against those we choose to marginalize. The episode explores why it is so necessary to adequately fund offices that provide defense for those defendants who cannot afford to hire their own attorney.
The Rand Study of the Philadelphia Public Defender System can be found here.
 TRIAL LAWYER MENTOR Quick Tip:

There was no Tip this week due to the length of the episode, however I do highly recommend Malcolm Gladwell’s latest book DAVID and GOLIATH. There is a link below to purchase the book which has an overall theme of understanding why the underdog is so often successful seemingly against all odds as well as a truly insightful discussion about California’s Three Strikes Law.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

To read the CALIFORNIA LAWYER magazine cover story, scroll down to the post below or click HERE.

 

David and Goliath: Underdogs, Misfits, and the Art of Battling Giants

CALIFORNIA LAWYER

Screen Shot 2014-04-01 at 6.16.12 AMI was honored recently to be featured in a cover story about the Los Angeles County Public Defenders Office. We recently celebrated 100 years of zealous advocacy on behalf of indigent clients. As a trial lawyer, I would have preferred more mention of the trials that we do, but I think this does shed some light on the issue of plea bargains. As you may know from my episode on plea bargains I think the practice is a necessary evil in our current system, but I would like to see it reformed to be more transparent and so that  defendants are not pressured into plea deals by draconian maximum sentences and exorbitant bail.

To read the article from California Magazine, click HERE.

TLC:_032: BAIL, BONDS and BOUNTY HUNTERS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

BailIn This Episode: I pull back the curtain on BAIL, BONDS and BOUNTY HUNTERS. What is the difference between bail and bonds? What do Bounty Hunters do and how are they regulated and paid? Why does a monetary issue like Bail have such a huge impact on the integrity of the criminal justice system as a whole?
Click HERE to see and hear the NPR story from Texas about how bail burden keeps US jails stuffed with inmates.
 TRIAL LAWYER MENTOR Quick Tip:

There will come a time when you are asked to give a presentation or you are making a closing argument and you must explain a complicated and dull bit of science or information. In this tip we discuss ways to pace your presentation so that you don’t lose your audience during these portions of your talk.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

 

JD BLOGGER INTERVIEW

jdbloggerI was honored to be interviewed by John Skiba, the creator of JD Blogger, Smart Legal Marketing for Attorney Entrepreneurs.

Click HERE to hear the interview and read the post on his website jdblogger.com

TLC_031: ATTORNEY CLIENT RELATIONSHIP

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Being Heard QuoteIn This Episode: I discuss the Attorney Client Relationship. I will leave attorney client privilege for another episode. Here we delve into how do we, as lawyers, and especially as public defenders, establish a relationship with our clients so that they trust and respect us and are willing to follow our advice.  Establishing this relationship is one of the most important skills a lawyer can acquire and one of the least taught or discussed aspects of our practice.  The quote above by David Augsburger keeps me grounded and helps me set my intention when meeting with clients:
Hear how one epic fail with a client early in my career helped me to learn what was really important to my clients and changed the way I practiced law.
 TRIAL LAWYER MENTOR Quick Tip:

I truly believe that fundamentally what each and every one of us want from the people in our lives is to feel heard and understood. We discuss tips and strategies for how to convey to someone that you hear and understand them in the moment.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

 

TLC_030: PROBATION

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

ball-and-chainIn This Episode:I pull back the curtain on PROBATION.
What is it and how does it differ from parole? Probation is granted by the court on the condition that the defendant fulfill certain obligations and promises over a certain period of time in exchange for not receiving the maximum sentence allowed by law.
Judges have great leeway to implement conditions of probation. They can include the universal admonitions such as, “You must obey all laws” as well as some more crime specific conditions such as requiring those convicted of a DUI to attend an alcohol awareness class. The creative use of probation can be the cornerstone for reforming our system and working towards restorative justice for non-violent and property related crimes.
 TRIAL LAWYER MENTOR Quick Tip:

There will come a time when you are asked to give a presentation or you are making a closing argument and you must explain a complicated and dull bit of science or information. In this tip we discuss ways to pace your presentation so that you don’t lose your audience during these portions of your talk.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

TLC_029: DESIGNER DRUGS and MEDIA PANIC

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

DEA-Bath-Salt-PackageIn This Episode:I pull back the curtain on Designer Drugs and Media Panic.
In the wake of the tragic death of actor, Philip Seymour Hoffman, the media latched on to speculation that designer drugs were likely to blame for the overdose.  Several articles and commentators went on at great length about the pain drug fentanyl. This pain relieving drug generally prescribed to cancer patients has been added to heroin to give the user a new high. Police and/or drug enforcement agents chose to exploit Hoffman’s high profile death to bring attention to the “scourge.”
Media outlets could not get enough of this tantalizing designer drug story.  The only problem was preliminary tests showed no fentanyl in the baggies found in Hoffman’s apartment. Why should those interested in the criminal justice pay attention to the media scare about the latest new drug panic? Because this is the first step in what often leads to new laws with draconian punishments.
Many people remember the BATH SALTS scare that was widely reported after after a vicious assault by a man who chewed off the face of another man in Florida in 2012.  The media went crazy talking about the dangers of this synthetic hallucinogen. The problem was, there were NO BATH SALTS found in the perpetrator’s system. In fact, the only illegal substance detected in that case, by two separate forensic toxicology labs, was marijuana. For an excellent discussion of this case and the ensuing drug panic, see Frank Owens’ article from December of 2012 in Playboy magazine titled “The Miami Zombie”We, as a society, would rather blame the “boogie man” personified by the latest drug than admit that we do not adequately provide for members of our community who suffer from addiction and mental illness.TRIAL LAWYER MENTOR Quick Tip:

Tip about how to incorporate a message you have learned to deliver well into each of your persuasive presentations. If you break down the presentations you give you will find core commonalities in each of them. Once you find a way to express a concept that resonates with you, don’t re-invent the wheel, a few minor tweaks for personalization is all you need to use that explanation over and over again in each of your persuasive talks.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

TLC_028: MANSLAUGHTER

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

man-in-prisonIn This Episode:

I pull back the curtain on the laws relating to the LAW OF MANSLAUGHTER.
There are 3 types of manslaughter: Voluntary, Involuntary and Vehicular.  Within these categories we find issues of reckless disregard for human life and acts committed during misdemeanors and non-dangerous felonies. The main distinction between a charge of murder and a charge of manslaughter is the lack of the element of malice in the killing. The distinctions within the manslaughter laws themselves have to do with the intentionality of the killing itself.

Manu cases have been in the news in the past several years involving the charges of manslaughter. Some of the more famous include the case of Dr. Conrad Murray convicted of involuntary manslaughter in the death of Michael Jackson, Josh Brent, the former Dallas Cowboy convicted of vehicular manslaughter in the death of his friend and teammate Jerry Brown and the case of George Zimmerman where some felt that if charges were going to be filed at all that murder was inappropriate and manslaughter was the appropriate charge.

The punishment for manslaughter is ofter drastically lower than the punishment for murder, especially involuntary manslaughter. The law recognizes that the circumstances surrounding the act of killing determine a person’s culpability. The role of the defense lawyer is to investigate those circumstances and present them to the trier of fact in such a way as to argue for the appropriate charge and punishment for the unlawful killing.

TRIAL LAWYER MENTOR Quick Tip:

Some ideas about making your presentation more relatable and thereby more persuasive. We talk about how you can incorporate “universal” examples, metaphors and analogies into your talk to hook the audience and get them to relate to your speech. Also, a brief tip on finding “universals” within small niches.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

 

 

TLC_027: MURDER

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Chalk-Scene-MurderIn This Episode:

I pull back the curtain on the laws relating to the LAW OF MURDER.
First degree murder is the unlawful killing of a human being with malice aforethought carried out in a willful, premeditated and deliberate manner. 2nd Degree murder lacks the willfulness, premeditation and deliberation but malice is implied by the conduct, the circumstances or the conscious disregard to human life.

Murder trials are often viewed by trial lawyers as the pinnacles of their career. If television shows and infotainment “news” programs are any indication, the general public is fascinated by these unique, often complicated and dramatic trials as well. In states where the death penalty is used, there are very specific circumstances (often called special circumstances) under which a murder is committed that allow the state to seek to impose the ultimate punishment. Some of these have to do with the actor himself, such as a repeat offender, others have to do with motive, as in murder for financial gain, murder that is racially motivated. Some have to do with the actions themselves being above and beyond what is necessary to kill a person, such as torture. And still others have to do with the identity of the victim, such as the killing of a police officer, an elected official, a witness, a juror or a judge.  Some states still have a catch-all circumstance that the murder was particularly heinous or horrendous.

There are also specified felonies that if a killing during the course of their commission, the murder is deemed first degree even if a killing was not the original intent of the perpetrators. In California, these include: murder by weapon of mass destruction, by an explosive device, murder with a weapon whose ammunition is designed to pierce metal or armor, poisoning, lying in wait (ambush) and torture. Other states will list different felonies but all will be crimes that in their commission evidence that violence and harm could result form their commission.

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for keeping in check your perspective when dealing with situations that may be considered minor or less important than other situations and how refusing to “call it in” will make your presentation or relationship more compelling.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

 

 

TLC_026: OBJECTIONS and SIDEBARS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

OBJECTIONIn This Episode:

I pull back the curtain on the laws relating to OBJECTIONS and SIDEBAR CONFERENCES.  The law allows both sides in a criminal or civil case to object to certain questions or answers that are being asked or elicited in open court. There are Rules of Evidence that govern what the jurors can and cannot hear.  When one side feel the other is violating those rules, an objection is posed. If the objection is “overruled” that means that the Court is disagreeing with the side making the objection and the judge will allow the question or the answer to stand. If the objection is “sustained” that means that the Court is agreeing with the party making the objection and the question will not be allowed or the answer (if already given) will be struck from the record. 

Sidebar conferences occur at the discretion of the court. The judge can order the parties to “approach the bench” to discuss a matter to be heard outside the presence of the jurors and the lawyers can also request a “sidebar” to argue a point of law. Many times the sidebars are for the purpose of arguing legal issues that the jurors cannot be privy to, but just as often they are for the more mundane purposes of scheduling or requesting bathroom breaks.

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for giving your audience an “insider’s” secret that will help make your presentations more compelling and your message more memorable.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

TLC_025: DOMESTIC VIOLENCE LAWS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Domestic-ViolenceIn This Episode:

I pull back the curtain on the laws relating to Domestic Violence. We explore how and why it is treated differently than other types of assault. We also discuss why these cases are difficult for all participants in the legal system. Frequently prosecutors are unwilling to negotiate a plea bargain for fear that if the perpetrator reoffends, they will be held accountable. Prosecutors are faced with recanting witnesses who through fear, love or financial need will often come to court and ask that the charges be dropped, despite serious injuries in some cases. When the allegations are falsely made, which does happen more often than many care to admit, the lives of the accused can be ruined by the fact of the allegation itself.

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for finding the context, focus and perspective when you are crafting your next persuasive presentation.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

TLC_024: DURESS/NECESSITY

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

JusticeIn This Episode:

I pull back the curtain on the concepts of Duress and Necessity. In Duress, the law recognizes that there are times are free will may be so compromised by threat of bodily harm or death that we should not be held criminally liable for crimes we commit while under the influence of these threats. Further and even a more radical notion, Necessity shows that there are times when the system allows our individual judgement to supersede the law when the harm we create is less than the harm we are trying to prevent under exceptional circumstances. Obviously very specific circumstances must be met to benefit from these concepts, but its important to note the fact that our criminal justice system does take context and circumstances surrounding our crimes into account when deciding not only punishment, but guilt itself.

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for establishing context in your presentation to make it more real and persuasive to your audience.

 LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial. And be sure to check back soon for a special offer exclusively for attorneys!

Download AUDIO here (MP3)

 

TLC_023: PROSECUTORIAL MISCONDUCT

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Illustration: Truth and LieIn This Episode:

I pull back the curtain on Prosecutorial Misconduct.  Recently a Texas Judge was disbarred, sentenced to 10 days in jail and 500 hours of community service for criminal contempt.  He was accused of lying to a judge in 1987 while he was a prosecutor trying the murder case of Michael Morton.  Mr. Morton spent 25 years in prison for a crime he did not commit. After DNA tests exonerated him of the crime, his lawyers obtained the original files which showed that the detective and the prosecutor had in their possession witness statements which tended to show Mr. Morton’s innocence and they failed to turn those over to the defense. Beyond that breach of ethical duty, the prosecutor was accused of lying to the Judge about the existence of these statements just before the original trial.  This is just one recent example of the system being corrupted by a corrupt prosecutor. What sets this case apart is not the egregiousness of the conduct (unfortunately such conduct is not rare) but that the prosecutor was actually punished for this conduct.

We will explore the Brady Rule and the new proposals that are being set forth to try to prevent these gross and deliberate miscarriages of justice. For a look at some other examples of prosecutorial misconduct see the following: 

The Untouchables: America’s Misbehaving Prosecutors and the System that Protects Them

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

 

TLC_022: WHO’S WHO IN COURT

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

WhosWhoIn This Episode:

I pull back the curtain on Who’s Who in a criminal courtroom. What are the various roles and responsibilities of all the players. Most of us know the basic functions but you might be surprised to learn lesser known duties of the various court personnel. From bailiffs, court reporters, judicial assistants, interpreters, lawyers judges and commissioners all the courtroom personnel play a myriad of roles in the system. Find out what the difference is between a commissioner and a judge and what it takes to run for or be appointed to these judicial positions

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

 

TLC_O21: ENTRAPMENT

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

EntrapmentIn This Episode:

I pull back the curtain on Entrapment. How far can a government agent go to induce an ordinary citizen to commit a crime.  Some states focus on the predisposition of the defendant, while other focus solely on the actions of the government.  The issue of whether it was outrageous police misconduct or merely legal deception by law enforcement is one for the jury to decide based on the facts and circumstances of each individual case.

Courts have stated that “a line must be drawn between a trap for the unwary innocent and a trap for the unwary criminal.”  Here is a fascinating expose on one federal agency’s program that purports to target violent drug dealers and robbers.  View the video below of USA Today’s coverage of the ATF sting operations and read more about it here:

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for using props in your next persuasive presentation.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

 

TLC_020: EYEWITNESS IDENTIFICATION

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

CottonLineUpIn This Episode:

I pull back the curtain on Eyewitness Identification. Often the most powerful evidence presented in a criminal trial, mistaken identification is the overwhelming cause of the majority of wrongful convictions in this country. Jurors put a great deal of weight on this type of evidence yet in many jurisdictions there are very few protocols in place to ensure that this evidence is “collected,” “preserved” and “untainted” like there are for physical evidence.

Click here to read an article by Elizabeth Loftus and Gary Wells: “Eyewitness Memory for People and Events” which makes a compelling argument for the metaphor of treating human evidence like trace evidence in terms of developing guidelines to safeguard its accuracy.

Click here to read about the wrongful convictions overturned by the Innocence Project that were based on mistaken identification.

As referenced in the episode Jennifer Thompson was a rape victim who mistakenly identified Ronald Cotton as her attacker. DNA evidence cleared him and they forged a friendship that transcends their case as they work together for eyewitness identification reform.  Their compelling story is told in the book Picking Cotton (mistakenly referred to in the podcast as a movie) See the book trailer below:

 

TRIAL LAWYER MENTOR Quick Tip:

Quick Tip for helping you ORGANIZE your next persuasive presentation.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

TLC_019: SELF DEFENSE

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

GunHomeSignIn This Episode:

I pull back the curtain on Self Defense. The concept of self defense comes from common law and has always been a part of the American justice system. Over the years, issues have arisen over whether a person has a duty to retreat before using deadly force or whether an individual is entitled to stand his ground.  While the laws vary from state to state, the issue always boils down to: What were the circumstances surrounding the use of deadly force?

TRIAL LAWYER MENTOR Quick Tip:

Tips for helping to put your audience or your jurors in the shoes of your client to get them to at least empathize with or at the very best root for the protagonist of your story.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

TLC_018: FALSE CONFESSIONS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

False-confessionsIn This Episode:

I pull back the curtain on False Confessions. What would possibly compel an innocent person to take responsibility for a crime he did not commit?  We will explore the psychological studies that have delved into this phenomena as well as some famous cases where a suspect’s confession has been proven false.

The Innocence Project estimates that of the 300 cases where DNA testing led to the release of the wrongfully convicted, nearly 25% involved a false confession. Many people believe they would never confess to a crime they did not commit, but overturned convictions and academic studies prove this is a misconception. It’s not just the vulnerable, the young, the mentally ill and the developmentally disabled that can be coerced, but the odds are greater in those cases.

See below for a video from National Geographic showing the actual interrogation of 14 year old Michael Crowe who was suspected of killing his sister, Stephanie. He was subjected to what the courts deemed “psychological torture” leading him to confess to the crime even though he had nothing to do with her death.
:

Another famous case of a wrongful conviction occurred in Norfolk, Virginia where four men gave false confessions to a brutal murder. They have come to be known as the Norfolk Four.

Two noted academic studies dealing with false confessions: Kassin and Kiechel, The Social Psychology of False Confessions and Dervan and Edkins, The Innocent Defendant’s Dilemma.

TRIAL LAWYER MENTOR Quick Tip:

Tips for dealing with dense and often bland statistical information, academic studies or other dry data that you need to include in your persuasive presentaion.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

TLC_017: DISMISSED ON A TECHNICALITY

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

U.S. ConstitutionIn This Episode:

I pull back the curtain on the legal rulings that result in cases being dismissed on a technicality. When a case is dismissed on a technicality in the criminal justice system, it usually means that a court has determined that the evidence sought to be used against the defendant was obtained in violation of his constitutional rights.

The disallowance of this evidence is the product of the exclusionary rule. This is the remedy the courts have fashioned for constitutional violations. Hear the history of the rule and why it became necessary to fashion this remedy for the flagrant violations of citizens rights.

TRIAL LAWYER MENTOR Quick Tip:

A brief discussion on the power of naming and defining themes on your terms.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

TLC_016: CAMERAS IN THE COURTROOM

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Cameras_In_CourtroomsIn This Episode:

I pull back the curtain on  cameras in the courtroom.   What effect do cameras have on the participants and the viewing audience in a criminal trial? While the right to a speedy and public trial is guaranteed to us in the 6th Amendment of the United States Constitution, this does not necessarily lead to the conclusion that electronic media ought to be permitted in criminal jury trials.

When CourtTV first made its application to feature “gavel to gavel” coverage of jury trials, they claimed it would be an educational endeavor, offering viewers an insider’s look at the criminal justice system. Sadly, the coverage of trials now is more akin to gladiator contests where men’s lives are at risk and the media is standing in the arena, selling tickets and placing bets.  Learn where the law stands now, how it has evolved and one solution that would balance the public’s right to know with the right of the accused to receive a fair trial.

TRIAL LAWYER MENTOR Quick Tip:

Tips and strategies for finding your own “focus groups” or what I like to call “The Poor Man’s Guide to Mock Juries.”

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

TLC_015: CIRCUMSTANTIAL EVIDENCE

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

http://www.dreamstime.com/royalty-free-stock-photos-smoking-gun-image25394858In This Episode:

I pull back the curtain on  Circumstantial Evidence.  Learn the major misconceptions about circumstantial evidence and how defendants and the general public often underestimate the power of this type of evidence in a trial.  We will explore some high profiles cases over the last several years that were based mostly on circumstantial evidence such as: Casey Anthony, Robert Blake, Scott Peterson, OJ Simpson and another recently arrested professional athlete.

TRIAL LAWYER MENTOR Quick Tip:

Tips and strategies for finding several different ways to explain a complicated concept to your audience or jury.  When an important point is somewhat complicated,  the more options you give your audience to learn that concept, the more likely it is they will understand.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

TLC_014: DEFENDANTS TESTIFYING

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Witness-StandIn This Episode:

I pull back the curtain on defendants testifying on their own behalf. We explore the myths surrounding why a defendant would choose to testify or choose not to testify. There are a variety of factors that lawyers use to decide whether to call their client as a witness. Some have to do with the charges, some with the client himself and some even have to do with the prosecutor assigned to the case.

In high profile cases, the pundits play armchair quarterback, lauding or mocking other lawyers’ decisions to call their clients to the stand, but the reality is, it is nearly impossible to second guess the decision of the trial lawyer. He or she alone is armed with the necessary information to make that call and the facts from inside a case are often much different than the facts available to outside commentators.

TRIAL LAWYER MENTOR Quick Tip:

The process for deciding which witnesses to call to the stand can be helpful for anyone putting together a compelling argument or persuasive presentation. Learn how to use the same factors to keep your presentation focused and move your argument forward.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

TLC_013: PLEA BARGAINS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

http://www.dreamstime.com/royalty-free-stock-images-forced-confession-agreement-image23017509In This Episode:

I pull back the curtain on Plea Bargains.  Justice Kennedy of the United States Supreme Court wrote, “Criminal justice today is for the most part a system of pleas, not a system of trials.” Justice Scalia wrote, “We accept plea bargaining because many believe that without it, our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.”

Plea bargaining seems to be vilified by both sides of the political spectrum. Those who favor mass incarceration feel that criminals should be punished to the fullest extent of the law and not given lesser sentences on the basis of judicial expediency. Those who fear the number of innocent people coerced into pleading guilty feel that prosecutors should not be able to threaten life sentences in order to procure pleas in weak cases.

The Supreme Court has dealt with the issue sparingly. There are pros and cons to plea bargaining and the system is fraught with great potential for unfairness and unequal treatment, but there seems to be no viable alternative to its existence.  Hear the pros and cons in this episode and lest you believe that you would never be coerced into pleading guilty to something you did not actually do, check out a recent study published in the Journal of Criminal Law and Criminology. Authors Lucian E. Dervan and Vaness Edkins found that more than 50% of college students in the study who were falsely accused of cheating wound up admitting guilt anyway in return for a perceived benefit.

TRIAL LAWYER MENTOR Quick Tip:

I offer two strategies to consider when you are engaged in negotiations and trying to come to a meeting of the minds.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

TLC_012: JURY NULLIFICATION

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Jury_RoomIn This Episode:

I pull back the curtain on Jury Nullification. Jury nullification occurs when a jury acquits a defendant even though they believe the case was proved beyond a reasonable doubt.  This can happen when they believe the law itself is unjust or it would be unjust to apply it in this particular case.

While nullification is a powerful and awesome power, it is not codified in the law and jurors are never instructed that they have this power. In fact, lawyers are not allowed to openly ask jurors to nullify.

However, once a “Not Guilty” verdict is entered, short of a claim of jury misconduct, the court will never inquire into the WHY of that verdict.  The 5th Amendment’s protection against double jeopardy means that this verdict is sacrosanct and it is the final judgment.  This makes nullification one of the most mysterious yet powerful principles in our criminal justice system.

Learn the historical basis for this principle as well as a potential real life recent examples of when a jury may have engaged in this practice.

TRIAL LAWYER MENTOR Quick Tip:

I offer a quick introduction to the concept of “seeding” your speech or persuasive presentation in order to compel your audience to act without coming right out and asking them to act.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter where I share in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

TLC_011: THE DEATH PENALTY

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Death_ChamberIn This Episode:

I pull back the curtain on the Death Penalty.  I discuss what makes a person eligible for the death penalty versus life with the possibility of parole. I also explain my multi-layered opposition to the Death Penalty and how, regardless of one’s belief in the righteousness of the penalty, one has to consider the disparate ways it is currently enforced. There is a difference between thinking a person deserves to die for the crime he has committed and believing that the Government has the right to kill them.

In the podcast I reference TWO men who most legal scholars believe have been wrongfully executed: Carlos De Luna and Cameron Todd Willingham.  To read more about Carlos De Luna, click here for an extensive review of the evidence prepared by Columbia Law School professor James Liebman and his team of law students.

To read more about Cameron Todd Willnghmam, click here for an extensive discussion of the case published in the New Yorker Magazine written by David Grann.  Also, there is a movement afoot to gain a posthumous pardon for Mr. Willingham, click here, to read more about that legal battle.

TRIAL LAWYER MENTOR Quick Tip:

I offer tips on how not to bore jurors and your audience to death when you need to cite statistics in your presentation or case.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter that offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

 

TLC_010: BEYOND A REASONABLE DOUBT

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

scales_of_justiceIn This Episode:

I pull back the curtain on the legal standard of proof: Beyond a Reasonable Doubt. It is the highest burden of proof in the American justice system and reserved only for trials where life or liberty are at stake.

I discuss the other standards proof in the legal system: Preponderance of Evidence and Clear and Convincing Evidence as well as the origins of the burdens of proof and how their definitions continues to evolve.

TRIAL LAWYER MENTOR Quick Tip:

I offer tips on how the use of very specific examples can help you be more compelling and persuasive in your next trial, speech or presentation.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter that offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download AUDIO here (MP3)

TLC_009: PRESUMPTION OF INNOCENCE

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

 

img3In This Episode:

I pull back the curtain on the Presumption of Innocence. A defendant in a criminal case is presumed innocent unless and until the prosecution proves his guilt in a court of law beyond a reasonable doubt.

I discuss the law applying to the presumption, why the court is required to instruct the jury on it, as well as the origin of the concept and the ways it is sometimes eroded in courtrooms across the country.  I also answer the question about why it is necessary to apply the presumption of innocence even in cases where the guilt of the accused might seem patently obvious.

TRIAL LAWYER MENTOR Quick Tip:

I offer tips for making your point in any persuasive presentation with the use of analogy and why its so important for the analogy to be dead-on to the point you are making as well as topical to your audience.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter that offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download Audio here. (MP3)

 

TLC_008: MIRANDA WARNINGS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

mirandaIn This Episode:

I pull back the curtain on Miranda warnings: You have the right to remain silent.  Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, one will be appointed to you free of charge before questioning.

Do you understand each of these rights? Do you waive them and give them up so that I can speak with you now?

While it seems that these days any school child can recite the warnings by heart, many people don’t know how they came into being and why police are required to read them to suspects in custody before they are interrogated.  Learn about the warnings and the defendants behind the cases that led to this staple of the American criminal justice system.

Also, I will reveal the biggest misconception about the laws related to the Miranda warnings and the actual consequences when the laws are violated.

TRIAL LAWYER MENTOR Quick Tip:

In light of a discussion about the right to remain silent, I offer an explanation about one of the most valuable pieces of advice I ever received as a new lawyer that applies not only to cross-examination and arguments but to any persuasive presentation: “Never miss a good opportunity to keep your mouth shut.”

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter that offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download Audio here. (MP3)

TLC_007: DUI DRIVING UNDER THE INFLUENCE

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

http://www.dreamstime.com/-image21537912In This Episode:

I pull back the curtain on the laws relating to DUI: Driving Under the Influence, or
DWI: Driving While Intoxicated (commonly called drink driving). Learn about what police officers look for when they are on patrol for impaired drivers, what B.A.C. or blood alcohol content is and how it’s measured; the common punishments for DUI and all about the contraption known as the Ignition Interlock Device.  Also I offer an overview of how we as a society have tried to combat driving under the influence and my own offbeat suggestion on how we can do more to help curb this common crime.

TRIAL LAWYER MENTOR Quick Tip:

I offer some ideas on things to think about just prior to crafting your next argument or persuasive presentation. When you know your audience, you can craft messages to resonate personally with each one of them.

LAWYERS and LAW STUDENTS:

Click here to sign up for our free newsletter that offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download Audio here. (MP3)


TLC_006: DRUGS AND THE WAR ON DRUGS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

http://www.dreamstime.com/royalty-free-stock-photography-crack-image4199927In This Episode:

I pull back the curtain on DRUGS and DRUG LAWS. I’ll explain how the most common street drugs are sold and discuss why the war on drugs is not working. The evil in these laws is not a matter of a misguided effort to be  tough on crime, but rather an insidious attack on the basic fairness of the criminal justice system.

 TRIAL LAWYER MENTOR Quick Tip:

I offer three quick tips to keep in mind in order to make any argument or presentation more persuasive.

LAWYERS and LAW STUDENTS

Click here to sign up for our free newsletter offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download Audio here. (MP3)

THE WAR ON DRUGS

COMMON STREET DRUGS

The most common street drugs are cocaine, in either powder or crystal form, heroin, methamphetamine, prescription drugs and ecstasy. There are a myriad of other drugs out there but these are the ones we see most often in the criminal justice system. (See images below)

According to one study, the war on drugs is costing us about $500 per second. That is not a typo – per second. The way we choose to enforce these laws results in mass incarceration of certain segments of our society and does little to stem the use or sale of illicit drugs. Currently there are 2 million citizens in metal cages in the United States, of those some studies estimate that 25% of them are there for non-violent drug offenses.

THE HOUSE I LIVE IN

A film by Eugene Jarecki explores the failure of the war on drugs and the devastating consequences these laws have had on families and whole segments of society. I highly recommend this film for anyone who wants to truly understand why we have spent billions on this “war” and have nothing to show for it. Below is the trailer for this film: please note some of the images in the trailer are graphic.

 

PLEASE SEE THE RESOURCE PAGE TO GET YOUR OWN COPY OF THIS FILM

 

 

  Powder_Cocaine1POWDER COCAINE

Derived from the Cocoa leaf, powder cocaine sells for about $100 per gram. Its high lasts approximately 1 hour per hit and it became popular in the 1970’s era of dance clubs and high society parties.

 

Crack_CocaineCRACK

Crack is derived from powder cocaine. It sells for about $2 to $10 per rock. The high is much more intense than powder cocaine, but the effects last around 30 minutes.

 

 

Powder_Meth

METHAMPHETAMINE

Meth is a purely synthetic drug, not derived from any natural or plant based substance, it is purely chemical. It sells for approximately $25 for a 1/4 gram. (these are rough estimates as prices and quality vary throughout the country).

 

tar_heroinHEROIN

Heroin is derived from the poppy plant. A hit can cost anywhere from $10-$20. I have had clients tell me that as a daily user their habit costs them between $150-$200 per day.

 

 

These statistics and images are offered to help explain what drugs we are talking about when we speak of the war on drugs and the estimates of cost are based on interviews with clients, other attorney and reference materials.

 

TLC_005: FROM ARREST TO TRIAL

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Under ArrestIn This Episode:

I reveal what happens to a person from the day they are arrested for a crime to the day their actual jury trial starts. If you cannot afford to post bail, you may spend up to 3 months in jail waiting for your trial to begin. Some trials take years to prepare. You will also learn about plea bargains and why they are necessary but are also how they are used to deny defendants their right to trial.

Do you ever wonder why you are sometimes called for jury duty only to spend a whole day in the waiting room and never get called into a courtroom? I’ll explain what may be the cause of that frustrating day.

 TRIAL LAWYER MENTOR Quick Tip:

I offer some advice on tag lines and stories. Whether you are trying to persuade a jury to acquit or your boss to give you a raise or your prospective client to hire you, it all comes down to the story you tell. The best way to structure your story is to boil it down to the TV GUIDE taglines of old.

LAWYERS and LAW STUDENTS

Click here to sign up for our free newsletter offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download Audio here. (MP3)

 

TLC_004: BAD LAWS

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

http://www.dreamstime.com/-image11473350In This Episode:

I expose Bad Laws: Laws that were passed to placate us and make us believe we are “tough on crime”, but in reality  do more harm than good and often are not worth the money it costs to enforce them. Specifically addressed are the “THREE STRIKES” law and laws requiring lifetime registration for all sex offenders.

 TRIAL LAWYER MENTOR Quick Tip:

I offer some advice on how to start your jury selection when your client is accused of a crime that carries a horrific social stigma.

LAWYERS and LAW STUDENTS

Click here to sign up for our free newsletter offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download Audio Here (MP3)

TLC_003: THE HEARSAY RULE

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

http://www.dreamstime.com/-image15686058In This Episode:

I answer a listener’s question about the HEARSAY rule. What is Hearsay? Why is it so dangerous? And if it is so darn bad, why are there so many exceptions to the rule?

TRIAL LAWYER MENTOR Quick Tip:

I offer some advice for how to deal with the testimony of a law enforcement officer who claims your client “confessed” to him, but the confession isn’t written down and isn’t recorded.

LAWYERS and LAW STUDENTS

Click here to sign up for our free newsletter offering in depth tips and strategies for mastering the Art of the Jury Trial.
Download Audio Here (MP3)

TLC_002_DEFENDING THE GUILTY

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

img2In This Episode:

I answer the most common question I hear whenever anyone finds out I am a criminal defense attorney: “How can you defend someone if you think he is guilty?” Or “How can you defend someone who is accused of a heinous crime?”

 TRIAL LAWYER MENTOR Quick Tip:

I offer some advice for dealing with your client when your client has told you he definitely does NOT want a  trial and now he is rejecting the plea bargain offer, and there is no third option.

 LAWYERS and LAW STUDENTS

Click here to sign up for our free newsletter offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download Audio Here (MP3)

 

I’LL STAND BY YOU

DEFENDING THE GUILTY

Whenever someone finds out I am a criminal defense attorney they want to know, “How can you defend people who you know are guilty?” I want to ask them, “How can we not?” … more

SHOULD THEY STAY OR SHOULD THEY GO NOW

JURY DUTY AND JURY SELECTION

As lawyers gain more experience they become aware of what type of people they relate to and what type of people just don’t “get” them.

Every case is different, but we all have developed litmus test questions  that we believe helps us to weed out jurors who we think won’t be fair to our clients. … more

TLC 001 – JURY SELECTION AND JURY DUTY

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

In This Episode:

Hear how lawyers decide which jurors they want to keep on their jury and which they want to excuse. Jury selection is a lot like speed dating. You have a very limited amount of time with  strangers to decide if you want to keep them around or if you never want see them again. Also I offer tips to make Jury Duty a lot less painful.

 TRIAL LAWYER MENTOR Quick Tip:

I offer a strategy for getting better at jury selection faster and how you can use this same technique to improve all aspects of your trial practice.

 LAWYERS and LAW STUDENTS

Click here to sign up for our free newsletter offering in depth tips and strategies for mastering the Art of the Jury Trial.

Download Audio Here (MP3)

TRY TO SEE IT MY WAY

OPENING STATEMENT

In state court, both sides are allowed to address the jurors before any testimony is offered.  Legally we are supposed to merely lay out the facts of the case, telling the jurors who they will hear from and what they will hear. … more