Defending People has received lots of hits today from the Language Log. It’s a good match, I think; words are criminal-defense lawyers’ tools, and at Defending People we love words and are not shy about using them. We’re not even above making up a word, on occasion, when there isn’t already one that works.
Criminal lawyers (on both sides of the bar), like many other professionals, have their own argot. We office together (a coinage that, according to Clifford Irving [reliable source, right?] Houston’s criminal defense bar created) instead of forming partnerships because we don’t want to be conflicted out when codefendants come in needing representation.
Once we get a client, we enter an appearance and start going to court appearances. At these settings, we sometimes have to plead clients to agg time (that is, with an affirmative finding) or, if they’re lucky, to non-agg or maybe to deferred. The difference is that they might be parole-eligible earlier if they take non-agg time than if they take agg time. We might even go open to the judge or, in other words, plead without a rec. If my guy or my hero has been in trouble before he might be enhanced, or if we’re charged with our third felony, we might be habitualized or a habitual, looking at 25-to-life.
You see, we don’t talk about sentences in terms of “years in prison”; instead in felony court it’s five to do (or a nickel) or ten to do (or, of course, a dime) or simply life. In misdemeanor court it’s 30 or 60 or 90; sometimes it’s 120 in county. In felony court, as well, sometimes our clients plead to county time. Our language is context-sensitive — 30 in misdemeanor court is, of course, very different from 30 in felony court.
In most districts there’s not as much plea-bargaining in federal court; sometimes we can do some charge-bargaining and sometimes we have to choose between going to trial and pleading to the indictment. If we are convicted in federal court, the probation department writes a PSI or PSR. Some defendants in federal court flip or roll in an effort to get a 5K1. When one person is working on a 5K1, sometimes he’ll invite other defendants to get on the bus and share the benefit.
When cases don’t plead, we try them. If we don’t want to go to trial, we might ask for an adjournment (in New York) or a reset or continuance (in Texas); if we’re asking for a reset on a day when the case is not on the docket, we’re asking to off-docket it. Once we’re up though, in New York we’re on trial and our clients are in trial; in Texas it’s the other way ’round. We voir dire the jury, pronounced vore dire south of the Mason-Dixon line and vwahr deer north of it. Before the judge’s voir dire in some jurisdictions we can ask for a shuffle. After the other side’s witness testifies, we take him on cross. If he’s an expert, we might interrupt the other side’s direct to take him on voir dire before our adversary passes the witness. Then we might object to foundation. Or our objection might be 402 or 403 or even 404(b), among many others. If our adversary’s objection to one of our questions is sustained, we might make a proffer or a bill to show what the witness would have said. It’s important to make a record in case we have to take the case up.
Some cases are whales and others are dogs. If the case is a whale, then a trial might be a slow plea; the best that we can hope for is to beat the rec. If we fail to beat the rec, we hope to hang them up, but the judge will probably give them an Allen charge before declaring a mistrial. If the jury gets a 38.23 charge in Texas, it’s more likely to give a two-word verdict, which is a good thing for the defense, but a bad thing for the prosecution. A murder case that has a tail might be a misdemeanor murder. On the other hand, a small-time offense that the prosecutor is gung-ho about might be a capital misdemeanor. There’s a little snapshot of our special language. I’m sure some of my fellow defenders of the citizen accused will chime in with something I’ve missed. The best of us, even if we don’t provide (or commit) IAC, will sometimes make mistakes. Enjoy the blog.