Just wondering if anyone has any thoughts on who the US Attorney for the District of South Dakota will be once President-elect Obama takes over.

I haven't heard any names myself.  I can speculate on some prominent Democratic lawyers who I think might be good at the job (and who have USA and or extensive criminal prosecution/defense experience or are just very fine attorneys).  Here's my list in no particular order:

• Jeff Viken, Rapid City, chief federal public defender
• Tim Langley, Sioux Falls, assistant federal public defender
• Dave Nelson, Sioux Falls, retiring Minnehaha County states attorney
  
• Rob Gusinski, Rapid City, assistant US Attorney
• Jim Sword, Hot Springs, private attorney
• Jana Miner, Pierre, assistant federal public defender
• Brendan Johnson, Sioux Falls, private attorney (and Sen. Johnson's son)
• Tom Hensley, Sioux Falls, private attorney
• Linda Lea Viken, Rapid City, private attorney
• Mike Butler, Sioux Falls, private attorney
• Ron Volesky, Huron, private attorney
• Roberto Lange, Sioux Falls, private attorney
• Nancy Turbak Berry, Watertown, private attorney
  

Any of these folks would be excellent picks.  I'm sure there are others who would also be great.  I could also see a Native American attorney because of the large number of federal prosecutions in Indian Country in the District of South Dakota and Obama may want to diversify the USAs.

Who's on your list?

Today at this month’s Second Circuit Bar luncheon, proponents and opponents to Amendment H, IM 9 and IM 10 spoke to a good chunk of the Sioux Falls area bar.

One of my colleagues wondered aloud following the presentations on IM 10 whether the act would cover court appointments.  Court appointments are basically a “no bid” contract.  Lawyers are on a panel.  They accept cases at a given rate.  They are appointed by a judge.  There is no bidding or competitive process.

I spoke with both Dena Espenscheid from Yes on 10 and Dave Owen from the State Chamber of Commerce (representing No on 10) about this.  They were both presenters on 10.

Dena didn’t think it was a no bid contract as there is a pool of attorneys who can be picked from.  Dave thought it might be a no-bid contract as attorneys don’t bid to do the work for less than another attorney.

I think it is important to figure this out as it could have a profound impact on attorneys who might want (or not want) to take court appointments for criminal cases, abuse and neglect cases, civil and alcohol commitments, and guardianship cases.

There aren’t enough public defenders or pro bono organizations to take care of the case load this would cause if private attorneys start opting out of court appointments.

Any thoughts?

This is a blog that deals with the law (once in a while)—and entertainment (once in a while).

So…

Enjoy this sneak preview of a new lawyer show—Raising the Bar—on TNT.

As I noted yesterday, I was a little concerned about our (South Dakota's) good U.S. Senator, Tim Johnson, on the Wall Street Giveaway.

Afterall, he had received quite a bit of campaign money over the years because of his position on the Senate Banking Committee and he helped screw consumers to the benefit of credit card companies in 2004 and 2005 with his support of bankruptcy "reform."

But Tim came through like a champ in crunch time and voted against the revised bailout measure which passed the Senate.

I had no such hopes for Sen. John Thune as he's basically Bush's toady.  But I do note for the record that Kansas' two very Republican Senators, Pat Roberts and Sam "Every Sperm Is Sacred" Brownback also voted with Johnson against the Greedy Capitalists Socialism Act.  Nice to see that the Senators in my other home state have some ya-yas.

Thanks Tim (and Pat and Sam).  Now, Stephanie (Herseth Sandlin (D-SD), please hold the line like a good little Blue Doggie and vote against this version again in the House tomorrow.

I am quoted today in a Sioux Falls Argus Leader story about the expanding use of teleconferening in South Dakota's state courts.

Video a key player in SD courtrooms
Sioux Falls Argus Leader - Sioux Falls,SD,USA
Sioux Falls lawyer Todd Epp is among the more receptive to the technology, which he said is an improvement over phone conferences....

I like being a lawyer. I get to do some interesting things. Plus, I get paid to argue. Which is a good thing as I like to argue. Might as well get paid for it.

But contrary to what a lot of lay people think, being a lawyer is not usually the most exciting job in the world. It can be one of the most stressful, busy, and frustrating jobs in the world, as well as a job where you do a lot of reading, sitting, and staring at a computer screen.

But today was one of the crazier days.

I was up early, preparing from home for two hearings. Just sitting in my underwear, drinking coffee, and reading pleadings and making notes. (Yes, me sitting in my underwear is a frightening thought.)

Then it was off to the Federal Courthouse—no time for breakfast, the most important meal of the day—for a three hour hearing we all thought might take an hour. Then it was off to Olivet, the county seat of Hutchinson County, with only time to go through the McDonald’s drive through for road food.

After a mad dash to Olivet (I’m running late, of course, for my hearing there in state Circuit Court), I nearly drive through town (which is about four blocks long) and almost pass the courthouse, which looks more like a church or an elementary school.

The prior hearing runs long so I get a chance to meet my clients for the very first time. We have the hearing then I talk to my clients about what happened outside by the flagpole.

Olivet is a quaint little town nestled in a valley by the James River. It really is a lovely little place. But they have the bitingest flies in South Dakota. While talking to my clients, flies try to bite every uncovered part of our bodies.

Then it is back across US 18, US 81, and SD 42 to Sioux Falls, just in time to check my voicemail and head off to ref a soccer game.

As a lawyer, I’ve also argued before the South Dakota Supreme Court, the U.S. Court of Appeals for the 8th Circuit, taken depositions in Dallas, appeared in Federal District Court in Detroit, and even visited a client in Syria. But most days aren’t like that. They’re more like today only with fewer flies.

We lawyers take the fall for everything.

Now, it's apparently our fault that the McCain Campaign failed to properly vet Gov. Sarah Palin.

Geez.

From The American Lawyer:

Palin Disclosures Raise Questions About Lawyers' Vetting Process

The revelations that GOP vice presidential nominee Sarah Palin's 17-year-old daughter is pregnant, and that Palin's husband was once arrested for drunk driving, are raising questions about how thoroughly Sen. John McCain's lawyers -- led by O'Melveny & Myers Chairman Arthur "A.B." Culvahouse Jr. -- vetted the Alaska governor. But several lawyers contacted by The Am Law Daily say that McCain didn't do Culvahouse any favors by giving his team a tight time frame in which to conduct such a complicated process.

I’ve been busy traveling, going to meetings, or seeing my Dad and one of my law professor friends while here in Topeka. But it has been an eventful day or two so far. Some highlights:

• Hung out with Rodney, my Dad, who lives in Augusta, Kansas.
• Hung out with Myrl Duncan, one of my law professors from Back In The Day at Washburn Law School.
• Shook hands with keynote speaker, Kinky Friedman, writer, satirist, singer, former Texas governor candidate.
  
• Saw Gov. Kathleen Sebelius, often mentioned as a possible running mate for Sen. Barack Obama.  She’s also quite babalicious.
  
• Had about the best tacos de carnitos ever at Pepe and Chelesea’s in Topeka.
• Saw the “Rev.” Fred Phelps and his band of anti-gay bigots protesting outside of Topeka High School, the site of the annual Bar Show. They have industrial strength metal protest signs that they can take on the road for their protests.
• Had a great seminar on closing statements and presenting a pie chart on damages in personal injury cases.
• The Bar Show features local dancing, singing, and acting lawyers.  It is a tradition that goes back to 1936.  It’s nice to see my colleagues step out of their sometimes stuffy roles as lawyers and judges.
  

More stuff today then back home to Harrisburg then back on the road to Chamberlain, SD tomorrow.

Technorati Tags: Fred Phelps, Topeka, Kansas, Kathleen Sebelius, Barack Obama, Kinky Friedman

Here’s some news to make my artist buddy Scott Ehrisman smile—the NEA says there are twice as many artists as lawyers in the U.S.

From the ABA Journal:

Ever dreamed of giving up your legal career to become an artist? If you did, you would find yourself in a more popular occupation, at least in terms of numbers (and perhaps in terms of public sentiment).

The National Endowment for the Arts has studied the U.S. census data and concluded that nearly 2 million people earn their living as artists, the Washington Post reports. That compares to 1 million people who work as lawyers.

I’m guessing the average Joe can name more famous artists than famous lawyers. Heck, I’m a lawyer and can probably name more famous artists than lawyers.

But on a serious note, both artists and lawyers serve important roles in our society. Though most people might like to hang a lawyer in their living room, they typically don’t and hang a painting instead. Which is good business for both groups.

Technorati Tags: lawyers, attorneys, artists, NEA, ABA, Scott Ehrisman

Sorry for the late posting. The jury came back in my federal drug conspiracy criminal case late Thursday night. I was wiped out Friday and mostly slept.

Anyway, the jury convicted my client of the greater offense of conspiracy to distribute 50 grams of crack cocaine. Two of the other defendants were also similarly convicted but one of the defendants was acquitted on all charges. That’s good for him—he goes free—but makes my job on appeal to the 8th Circuit more difficult as the jury obviously considered the evidence separately as to the four defendants.

Even though the feds have a conviction rate of 97% or so, I really thought my client had a chance. Four eyewitnesses could not identify him in court. Countless others didn’t know his name. Still others never mentioned his name.

Frankly, I thought I gave a really good closing argument that wove the facts and my theme—that these cases are like Play-Doh where the Governments stretches things to make whatever they want. I thought I had an attentive jury.

But that’s not how 12 citizens thought it went. I have to respect the jury’s decision. That’s the basis of our system of justice.

However, that doesn’t mean I don’t think they’re right.

All the attorneys in the case did a great job—John Haak, the Assistant US Attorney, put on a well organized case. He was nothing but a professional and a gentleman. I can’t say enough about fellow defense attorneys Dave Pfeifle, Mike Hansen, and Tom Wilka. They all fought hard, fought fair, and with passion and intelligence. Dave actually got his guy off. It was a pleasure litigating with all of these attorneys. I also learned a lot from them that I have put in the back of my mind for my next trial.

So, I’ll be filing some post-conviction motions and a appeal. We’re not done yet!

Meanwhile, Monday, it’s also back to my other clients and their needs.

I probably enjoyed trying this case more than any other case I’ve had. When you are in the courtroom fighting for someone’s life, it is both serious and exhilarating. Even though I disagree with the result, it is a marvelous process and I am reminded that I work in a noble profession.

Technorati Tags: criminal law, federal district court, drugs, conspiracy, law, lawyers

Sphere: Related Content

Sorry for the lack of updates on my big federal drug conspiracy case. I’ve been working literally night and day in preparation and researching issues. Plus I’ve had other issues in my practice to deal with.

I’ll provide more of an update later. Suffice it to say the case is in the hands of the jury right now (5:50 p.m. CT). They’ve had it for about two hours. I’ve been instructed to stay in town in case the jury has questions or they come in.

I feel good about my client’s chances but we’ll see.

Technorati Tags: criminal law, drugs, federal district cout, law, lawyers, trials Sphere: Related Content

 

All the trial techniques literature and studies I read say that jury selection is the most important part of the trial. Frankly, however, it is often the most overlooked by attorneys. I’m probably no exception, though each time I pick a jury, I prepare more and more and try to devise a strategy going in.

But there is also a practical problem. How do you track all the comings and goings of jurors in the pool? In USA v. Ayodele, et al, Todd’s Big Case (I’ve changed the name from Anatomy of a Criminal Case), we had at least 30 prospective jurors prior to preemptory strikes. We also had a lot of prospective jurors coming and going because of challenges for cause before that.

So, how to track that?

I’ve used everything from boxes on a legal pad (not enough room and too messy) to using small Post-It notes on a legal pad (neater but still too small).

So, this time I used a 16” x 16” magnetic dry marker board and small Post-It notes. I used one color for the initial pool of jurors and a different color for jurors who were struck for cause. I could hold the board in my lap and carry it to the podium for my turn at voir dire. I also could make the names big enough so I could read them and address a prospective juror by name. I also had enough room for some key notes about the juror’s responses.

I still didn’t quite have enough room for all the juror names but it worked pretty well. I’ll probably use it again for my next jury trial but with a few tweaks.

The prosecution used a modified system that seemed to work pretty well too. They had a large sheet of heavy paper with boxes drawn on it. They would then use one color of Post-It notes for new jurors then another color for jurors who were struck in preemptory strikes.

Thank God for Post-It notes! They are so useful to attorneys for not just this but for marking passages in documents or key points on legal pads.

 

Technorati Tags: Post-It notes, voir dire, trial techniques, jury selection, dry marker boards, federal district court, criminal trials, jury trials

A pretty good first day for a trial.

My colleague Dan Fritz pulled a legal rabbit out of hat to start things. I found a major untruth in the grand jury transcripts we just received. Basically, his client was indicted based on false information. Dan made a great argument before trial and his client walked out the door a free man.

Let me tell you something. That doesn’t happen very often. The Government can still recharge his client but as far as great results go, that’s about as great as they get.

Dan did some marvelous lawyering. I’ve known Dan since 1997. It was fun to witness him get this incredible result.

As far as motions in limine went, well, we defense counsel lost most of them like we thought. Better to have moved and to have lost than to have never moved at all, I guess.

Jury selection took longer than expected. Judge Piersol did a very thorough job. I introduced my “theme”—that the Government’s conspiracy case is like Play-Doh—you can mold Play-Doh into just about anything, including a conspiracy case.

I enjoyed the voir dire process. It’s kind of a game to try and coax complete strangers to be brutally honest about their beliefs—but vitally important.

The jury is actually quite a bit younger than I thought we were going to get, considering how old many of the jury wheel members were.

We got through opening statements and the Government started putting on its case in chief. My client seemed to like both my voir dire and my opening statement. When I get time, I’ll post it.

Daughter Sarah, my temporary legal assistant, was a real trouper. Whenever the prosecutors objected during my voir dire or opening statement, she would get really mad. At the breaks she told me how much it ticked her off. I told her it’s all part of the gamesmanship of trial—I try to see how far I can go making argument and inserting personality into the process (and a few shots about the Government’s case) and the prosecutor tries to limit that to just the facts, ma’m.

I’m pretty philosophical about those things now; my daughter wants to roll up her sleeves and go belt someone. I like that fire. But I also have to think straight and be dignified as well. Can’t do that when you’re an angry attorney.

She was also a good sounding board about what seemed to be working and not working with my presentations and cross examinations. I told her this was a time she could be brutally honest with her old man. And she has been. And it has been helpful.

Driving to the federal courthouse, she asked me about the trial. She asked me about who would be witnesses against my client. I said, “A lot of crack cocaine addicts.” Her response was straight forward. “Dad, everyone knows crackheads lie.”

Might just save that one for closing argument.

More Government witnesses tomorrow. The government will probably call over 20 people. Don’t plan to be a lawyer, witness, judge, juror, federal marshall, defendant, or court staffer without a iron bottom to take all the sitting.

Off to bed!

Technorati Tags: federal court, criminal law, crack cocaine, lawyers

Less than a day now until The Big Trial.

So many things to do, so little time.

As much work as a trial like this is, it is also kind of fun. (Yes, we lawyers have an odd idea of what “fun” is.)

Every once in a while, I like a good fight. There’s hardly a bigger fight than trying to keep your client from going to prison for a long time. It’s fun to box with a worthy opponent like the Government. You throw some punches, land some punches—and take more than just a few.

It’s kind of like playing in the big game. Very exciting.

There’s also kind of a Zen aspect to a big case like a federal criminal case. Life becomes very focused. My life right now is eat, sleep, work on criminal case, see family, repeat. Unfortunately, my friends’ calls and emails go unanswered or answered late. My colleagues at Galland Law Firm have been gracious to help me with my other clients and their matters while I am eyebrow deep in this case.

Most of the time as a general practice lawyer like me, you can’t focus for long on any one thing as you have a diverse and demanding caseload.

A big case like this is sort of a luxury to think about just one thing.

But boy, when this is done, I’ll have a backlog of phone calls and emails to deal with!

Back to work!

Technorati Tags: trials, criminal law, federal district court, drug cases

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