BREAKING UPDATE: Florida Supreme Court Chief Justice Canady has extended the no jury trial order until July 2, 2020. It's a start. And of course, as we all know, the easiest time to get a jury panel is two days before the 4th of July holiday, so that makes sense. Not. Canady couldn't have suspended trials until Monday July 6? Or is that too logical? Safety wise, he needs to suspend trials until the week after the Labor day holiday in September.
Coach Shula has passed away. The idiots are congregating in parks without masks, and the government is trying to re-open. We have a lot to cover, so pay attention.
When the news broke Monday that legendary coach Don Shula had passed away, we imagined legions of millennial lawyers and judges briefly pausing to reflect that the "guy who built that road I drive to work on died" before getting back to the serious business of selfies and Insta-whatever.
It's not just that Shula was one of the greatest coaches of all time. It's not just that he is the only coach in the history of professional sports to coach a championship team to an undefeated season. And followed that season with another super-bowl winning season. It's not just that he is the all-time winningest coach in professional football. It is that at a time when Miami was emerging as city of national importance, Shula helped put us on the map with the Miami Dolphins of the 1970's. Professional sports teams bring an identity to a city and can sometimes carry a city through hard times. The Pittsburgh Steelers of the 1970's assumed the identity of the hard steel town, bringing Pittsburgh through the recessions and the change from steel manufacturing to tech and health care.
While Miami did not suffer those economic hard times, the Dolphins and Shula brought to this town something that Miami never had before- a winner. And a winning attitude. Shula became more than the Miami Dolphins. He became part of us. And that, dear readers, is why there is an expressway named after him. We will examine Coach Shula's career, and perhaps the best coaching year of his career (hint- it's not the 72 undefeated season) in more detail this weekend.
COVID 19 UPDATE:
Three thousand Americans will die every day in June from Covid-19. Two-hundred thousand new cases will be diagnosed every day in June. If you take away the declining numbers in New York, the curve in the United States is sharply rising, not falling. We are NOT on the other side of this pandemic. We are in the middle of it.
In February and March we shouted as loud as we could to close the courts and society down. Initially, no one listened. Hopefully decision makers are listening now.
KEEP COURTS SHUT DOWN THROUGH THE END OF JULY.
KEEP OUR CITIES AND TOWNS CLOSED.
Very simply, we tell you this. If judges open courts, if politicians open cities for dining and recreation, millions of Americans will die and our economy will be destroyed. We will be involuntarily quarantined in the fall and winter because going out will mean illness with little hope of treatment at a collapsed health-care system, and possible death
There are some potential bright spots on the horizon. Pfizer along with Biontech, using new RNA technology, has started a small clinical vaccine trial in humans with possible approval for emergency use in the fall. BUT assuming the vaccine is successful, companies still need to scale up for the production of BILLIONS of doses of the vaccine. And that doesn't just mean securing the chemicals for the new vaccine. It means securing the glass vials for storage; securing the delivery systems for the vaccine, be it oral or with syringes. It is a monumental Apollo-type project with several thousand moving parts that must be coordinated. And coordination shouldn't be a problem with a federal government led by a smart, science oriented, motivated president who listens to scientists and makes decisions based on the best interests of all of the citizens of this country....And coordination is going to be a very big problem with no one in the federal government able, or willing to lead.
Happy Cinco De Mayo. Have a tequilla (at home) on us.
THE CAPTAIN REPORTS:
WHAT'S THE DIFFERENCE BETWEEN BEING A PROSECUTOR & BEING A DEFENSE LAWYER? .....
Houston Oilers football coach Bum Phillips, famously once said about legendary Hall of Fame Coach Don Shula, "He can take his'n and beat your'n and take your'n and beat his'n".
We all learned in Moot Court to always be ready to argue both sides of the case. A lawyer that knows his opponent's case better than his opponent, is a successful lawyer.
But, sometimes, when you argue the facts, and that doesn't work, and you argue the law, and that doesn't work either, then what's left for the defense lawyer?
KNOW YOUR CLIENT. As a young CLI, it was the first thing we were taught. Go over to the jail and interview your client. Get to know him/her better than they know themselves.
I always took it one step further. When I spoke with the ASA or the Judge in Court, I knew my client so well, that both were convinced I had known my client for many years. And I would do it without notes.
Recently, a Houston criminal defense lawyer, (and former prosecutor) was asked to write on his Blog about what the difference was between being a prosecutor and being a defense lawyer. You can read his Blog by going here:
Here is how he answered the question:
An Important Breakfast
In the Spring of 2009, I met my friend and mentor, Pat McCann, for a drink at Char Bar. We talked about all of those things going on in our lives, and he was genuinely interested in what changes in perspective I had now that I had left the District Attorney's Office.
"I think you need to do a blog on the differences between being a prosecutor and being a defense attorney," he told me.
"I've been a defense attorney for about five minutes," I replied. "I don't really think I've got the depth of experience on this side to do that blog post quite yet."
Over the past five years, I've revisited that conversation frequently. There have been times that I thought I could write a big, overarching blog post that could point out the minutia of differences in the job of a defense attorney versus that of a prosecutor. It could even be humorous. I've started THAT blog post several times, but the end product was so cheesy that I couldn't bring myself to publish it. Not to mention that a post about the difference between prosecutors and defense attorneys was prime to alienate both of those groups of people -- leaving me with no friends, whatsoever.
In the back of my mind, however, I did have an idea for a blog post. It focused on one simple theme.
That theme was brought home to me this morning when I had breakfast with a client of mine in a small county outside of the one most of us regularly practice in.
I'm not going to give any details of my client's case. They aren't really relevant -- other than to say he was charged with a low level misdemeanor. My client was a blue collar guy. He was quiet and polite, but, outside of the facts of his case, I didn't really know all that much about him.
A couple of months ago, as we were leaving his court appearance (after yet another reset because of a delinquent offense report), he asked me if I wanted to go grab breakfast. Unfortunately, I had to be back in Harris County for a setting, and declined.
This morning, we were set for one of those "plea or trial" settings, where my client had to make the decision whether or not he wanted to take the prosecutor's plea bargain offer or set the case for trial.
We had met two weeks ago in my office and we had gone over every last detail of his case. I answered all of his questions and at the end of our meeting, I told him that I thought it was in his best interest to take their deal. In the terms of factual evidence, it wasn't a very debatable point. Despite my clear advice, he said he wanted to think about it. I understood.
We talked on the phone a week ago and he said that he was still mulling it over. He said he would call me back later in the week and let me know what his decision was. I told him that was fine.
We talked again over the weekend and yesterday, he asked me if I would have time to go have breakfast with him before court today.
So this morning, we met for breakfast at a greasy spoon restaurant. I got there before he did and ordered a coffee. He arrived a few minutes later. We talked briefly about the pros and cons of his case and I gave him my advice. He listened intently, but he didn't really say much.
There was an uncomfortable silence while we ate our food. I didn't want to press him for an answer as to whether or not he wanted to take the prosecutors plea offer. I knew he was processing the information. Anyone who knows me at all, however, knows that I am terrible with uncomfortable silence. So, I made small talk with him. The more small talk I made, the more I realized how very little I knew about my client's personal life.
"You know," I said. "I don't even know if you are married."
"I was," he said. I was about to make a joke about how many times I "was" married, but for some reason, I refrained. I'm glad I didn't say anything.
"We were married for 29 years," he continued, "but she died of breast cancer in 2009."
"I'm sorry to hear that," I said, and we talked about cancer and treatment for a little bit.
"I broke my back in two places in an accident the next year," he said. "I haven't really been able to move right since." He went on to tell me about a cancer scare that he had gone through earlier in the year and how he had to have a surgical procedure later on this month. He wasn't trying to elicit sympathy from me. He was just telling me about himself.
He told me about his two grown children and how his granddaughter liked to play with his iPhone if she could get her hands on it.
"Yeah," he laughed, "I wasn't paying attention and she messed with it so much that I got locked out of my security screen!"
At the end of breakfast, I picked up the check. He thanked me for breakfast, but more importantly for meeting him for breakfast. When he did so, I realized that I should have taken the time to have breakfast with my client long before "plea or trial" day. As we were leaving, he told me to see if I could work on a few of the conditions of his plea offer, but otherwise he would take the deal offered by the prosecutor.
When we got to court, I talked to the prosecutor. Objectively, she was reasonable. She said that she would agree to a "time served" offer, but she was going to raise the fine significantly. I told her about the different hardships my client had in his life, but she felt firm in the fairness of her offer. She wasn't all that interested in what he had going on in his life.
And the case was resolved.
So, what does this have to do with the conversation that I had in the Spring of 2009 with Pat McCann?
What I have slowly learned over the past five years as a defense attorney is that prosecutors have a tendency to take a part (i.e., the alleged crime) and apply it to the whole. Generally, their judgment of a person is based on the crime they are charged with. I don't say that in an accusatory manner. That was how I operated as a prosecutor when I held that position.
As defense attorneys, we look at the person accused as a whole -- not just the crime he or she is accused of or even their entire criminal history. We get to know our clients.
Or at least we should.
I should have done a better job of getting to know my client long before "plea or trial" day. I could have done a more effective job of letting them know that I was representing a good man who got arrested having a bad day. I could have done a more effective job of letting them know that the raised fine they were so arbitrarily slapping on would result in countless hours of work for him.
I could have done a better job of letting them know that my client was not defined by the crime he was charged with.
So, I guess the short -- but by no means "simple" -- answer to Pat McCann's question is that as a Defense Attorney, I look at cases in terms of the person charged, as opposed to the act. A Prosecutor has more of a tendency to look at the act alleged and then judge the person.
That's the difference. Everything else flows from that.
What do you think are the differences between being a prosecutor and being a defense lawyer? Is it the job of the prosecutor to know your client? If you are a practicing criminal defense lawyer and you don't spend the time to learn as much as possible about your client, and then use what you've learned during plea negotiations, then you are stealing from your client with every fee you take.
CAPTAIN OUT ..........
Captain4Justice@gmail.com