Ask Howard Treesong About Law or Lawyering

[MissT74]

HT,

Long time no talk, how the heck are ya??

1. If you're arrested or brought in for questioning for something you didn't do, how long before you should ask for your lawyer?

2. Same question, but you DID do it.

3. El Diablo asked first, but I was going to ask about Law & Order as well.

T

[Howard Treesong]

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HT,

Long time no talk, how the heck are ya??

1. If you're arrested or brought in for questioning for something you didn't do, how long before you should ask for your lawyer?

2. Same question, but you DID do it.

[/ QUOTE ]

On (2), immediately. Prosecutors cannot be trusted to be objective, and you must assume the worst. On (1), I would personally retain counsel immediately for any kind of felony. I would like to think that being up-front with prosecutors is the right move, but Nifong is a good counterexample to that: he simply didn't care that the lacrosse team just didn't commit any crimes. Dealing with that on your own is really tricky, so I'd only try dealing with it on my own if the downside were pretty minor.

[JackInDaCrak]

Howard,

I'm a young attorney, just licensed, and your last job as a civil litigator is exactly what I want to be doing in 5-8 years.

In terms of preparing myself for that, would you say that a job in the DA's office, the City Attorney's office, or a small general practice civil firm would be best?

[Howard Treesong]

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Howard,

I'm a young attorney, just licensed, and your last job as a civil litigator is exactly what I want to be doing in 5-8 years.

In terms of preparing myself for that, would you say that a job in the DA's office, the City Attorney's office, or a small general practice civil firm would be best?

[/ QUOTE ]

Wow, that depends. I think I need to know more. There's great variation among each category, but I think I'd tend towards DA. The one downside of starting out that way is that you don't have the time and resources to litigate things slowly and carefully and find your way -- it's more slapdash, which can cause you to learn some bad habits. Small firm can be OK, but you have to find the right spot --quality in terms of care and thought and discipline really does matter.

[Howard Treesong]

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this is very me specific, but im hoping you could answer anyways:

My brother is debating between law schools and has a full preacceptance scholarship offer from GWU. If he accepts the conditions is he has to go there. Im wondering 1) What can they do if he doesnt? And 2) It is that much more highly regarded than a canadian school like University of Toronto or Mcgill?

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If he wants to practice in the US, he'd better go to GWU. Very few firms of which I'm aware hire foreign nationals to work here in the US. If he goes to GWU (where my dad taught for several years late in his career), he had better finish high up in his class, top quarter to have a wide breadth of options on graduation. GWU is somewhere about 25th or so, although as a poster noted, is trying hard to move up.

[Howard Treesong]

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Why do you think juries are so pro-prosecution in criminal cases? I've seen statistics that indicate conviction rates of 75%+ in some jurisdictions. Given how easy it is for prosecutors to get indictments, There should be a LOT more aquitals in our court system. It's very very difficult to prove that a person did something beyond a reasonable doubt. Especially given constitutional limitations and rules of evidence. Just looking at the design of the U.S. criminal justice system on paper, I would guess the conviction rate should be somewhere between 15-25%.

I think the two factors that contribute most to this phenomenon are the facts that sample of the population that serves on criminal juries is skewed towards excessively pro-government people, and the police/prosecution have exponentially more resources at their disposal than your average defendant.

Any thoughts on this?

Do you think there's a chance that this bug in the system can/will be fixed?

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I think this has much more to do with the fact that prosecutors are largely overwhelmed and thus only choose to prosecute cases they think they can win, and plea everything else. The one exception is, I think, high-publicity cases in which prosecutors might generate headlines.

I'm actually surprised that conviction rates aren't higher than 75%. I was on one criminal jury and there was absolutely no doubt in my mind that the guy was guilty. The prosecutor wasn't very good, but he sure did have an excess of evidence.

[Adebisi]

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I think this has much more to do with the fact that prosecutors are largely overwhelmed and thus only choose to prosecute cases they think they can win, and plea everything else.

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So, if criminal defendants stopped entering into plea bargains with prosecutors, you think the conviction rate would go WAY down? Why don't more people just take their chances at trial? If a defendant has 10% chance of getting 5 years and a 90% of walking, why would he accept any plea that would give him a criminal conviction on his record for the rest of his life?

It just seems like something is really off with the system. The notion that it would be better for 100 guilty men to go free than for 1 innocent man to go to jail seems to have disappeared completely from our court system.

[Howard Treesong]

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I think this has much more to do with the fact that prosecutors are largely overwhelmed and thus only choose to prosecute cases they think they can win, and plea everything else.

[/ QUOTE ]

So, if criminal defendants stopped entering into plea bargains with prosecutors, you think the conviction rate would go WAY down? Why don't more people just take their chances at trial? If a defendant has 10% chance of getting 5 years and a 90% of walking, why would he accept any plea that would give him a criminal conviction on his record for the rest of his life?

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Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas. Prosecutors would probably get a bit sloppier as they had even less time to prosecute cases that they do try. And it's not possible for criminal defendants to organize in the way you suggest for zillions of reasons. But in theory, I think you're right.

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It just seems like something is really off with the system. The notion that it would be better for 100 guilty men to go free than for 1 innocent man to go to jail seems to have disappeared completely from our court system.

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I don't think there's much of that principle that exists now, if it ever did. And while it's appealing at some level, I'm not sure it's right, given the additional crimes that those 100 free guilty guys are likely to commit.

[Adebisi]

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Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas.

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I was thinking more about the individual level than the systemic level here. You seemed to be saying before that prosecutors tend to enter into plea agreements in the cases that they are most unlikely to win at trial. Even if the plea deal encompasses very little jail time (or even none), the lifelong stigma of having a criminal conviction on one's record should push toward more defendants "gambling" on a trial. Obviously this doesn't apply to people that already have criminal records (maybe these people constitute a huge portion of criminal defendants?), but it just seems that from a game theory/economic perspective, something is WAY off in the criminal justice system. Somehow, the game is rigged.

[BretWeir]

Howard,

How did you come to make the transition from big firm to in-house? Was your new employer a former client? How does being an in-house lawyer compare to being a partner at a firm?