I want to applaud the initiative undertaken by the Department of Justice, but I can't. The agency prosecutes people accused of crime. That's its role. There is no comparable agency devoted to the defense of those accused of a crime.
But now the department is about to launch a program to assist low-income people receive legal help. At some level, this smacks of paternalism: Does the department really care about justice, or does it just want to make sure that the convictions it obtains are bulletproof?
Laurence Tribe of Harvard will soon be hanging his hat at Justice. He'll head a new program called Access to Justice. In fact, he starts work on March 1.
Im not sure what Professor Tribe's brief will be. The New York Times reported as follows: "He will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer — a circumstance known in legal terms as indigent defense."
I think we need more than a high-octane cheerleader to make sure that all Americans have an adequate defense when accused of a crime. Professor Tribe can use all the moral suasion he possesses, but what's needed are dollars and a commitment of resources. The Government gets a Department of Justice, the Federal Bureaue of Investigation and the coordinate efforts of hundreds of local, state and federal law enforcement agencies. The defendant gets exhortation?
A real Department of Justice would be overseen by an administration given oversight of both prosecution and defense. At the head of the agency would be the executive director; below him would be a prosecution and defense division. The same agency that funds prosecution would be required to fund the defense, thus assuring the overcriminalization was checked by something like a unit cost of criminal prosecution. Each prosecution could be audited and a fiscal impact statement be done: Were the two sides provided equal resources? What did it cost to prosecute and defend the case? Lawmakers could review such data and decide whether the people are getting their money's worth in the criminal courts.
And every American would be guaranteed a right to a defense when the Government charges a crime. It simply makes no sense to impoverish the middle class when the Government charges a crime. The presumption of innocence is supposed to mean more than bankruptcy for those seeking the service of a lawyer, investigators, experts and more.
The Times reports that Tribe will be taking a look at the use of drug courts and mental health courts. He will also work on issues related to criminal, civil and family courts. These are welcome initiatives, but, again, why house these efforts in the agency that prosecutes?
Professor Tribe has a unique opportunity to transform the discussion equal justice for all. I hope he thinks outside the box. That means thinking in terms of what can be done to remove this project from the DOJ and to seek an institutional foundation at least equal to that provided to the prosecution.
Sunday, February 28, 2010
Sex Offender Goofiness In Connecticut
Connecticut's nickname is the Land of Steady Habits. Perhaps its time to change the moniker. The State is poised to jump feet first into the front ranks of the lunatic fringe.
Legislation proposed by two central state Democrats would eliminate any statute of limitations for the filing of civil suits alleging sexual misconduct. It's not as though the state has a tight limitations period under the current regime. An alleged victim has until they are 48 years old to bring a claim of childhood sexual abuse.
State Sen. Mary Ann Handley, D-Manchester, and state Rep. Beth Bye, D-West Hartford, don't think that's long enough. They want an alleged victim to be able to bring a claim at any time.
"It's a very lonely kind of abuse," Handley said. "It's a kind of abuse that people try to forget, try to ignore."
Such long statutes of limitation are an invitation to injustice. Don't recall what you were doing ten, twenty or thirty years ago? Let your niece or nephew, together with a bevy of so-called experts on delayed disclosure, incremental disclosure and recovered memories help you recall.
I recently tried a criminal case in which the alleged victim claimed to have been abused ten years before the trial. There was no physical evidence to corroborate her claim. While the case was pending, the accusations cascades from mere touching to cunnilingus. By the time of trial, experts were on hand to explain why it was all so perfectly plausible that the memories were late in taking shape. Of course, the jury was kept from hearing information about the sexually charged atmosphere in which the child was reared -- her father was barred from the home for a time to got to a sex addiction center.
Statutes of limitation serve important purposes. We expect claims to be raised in a timely fashion or not to be raised at all. People have lives to lead beyond the trauma they suffer. And defendants have rights, too. It simply doesn't square with justice to haul someone into court thirty years after the alleged facts and have them give an account of themselves. How do you defend if you have absolutely no idea what the so-called victim is talking about?
Handley and Bye are dead wrong. They're body-suffering in the wake of sex offender hysteria. Lawmakers ought to be narrowing, and not expanding, the manner in which ordinary folks are plucked from their lives and dumped unceremoniously into legal catastrophe.
Here's legislation much needed:
o No person claims to have been sexually abused ought to be permitted to raise a claim beyond a five year statute of limitation unless there is either another witness or physical corroboration of the claim. To do otherwise is to throw open the courthouse doors to folks seeking all sorts of secondary gain from their claims. (I once read a letter seeking admission to a college from a person claiming to have been abused years earlier. It remains unclear what scholarly acumen that portends.)
o Rape shield laws ought to be relaxed in cases in which plaintiffs or victims bring claims beyond a five-year statute of limitations. Clearly, a person who wants to claim the trauma of an ancient event has been marked by many experiences. Let the jury determine whether the testimony offered is fact or a fanciful accretion of a lifetime of hurt.
o If a party seeks to rely on recovered memory or incremental disclosure testimony, the evidence code ought to be amended to permit liberal admissibility of other sources of sexual tension in a victim's home. It is wrong to permit a jury to hear only the memories a victim claims to have recovered, but not other sources of sexual tension and shame that could well remain buried at the time of trial but to which it is reasonable to believe the child was exposed.
The law of sex offenses is a mess. We are in love with every claim of victimhood, but blind to the new class of victims created daily in our courts. Who speaks for those accused based on little more than fantasy? What protections do these men and women enjoy?
Legislation proposed by two central state Democrats would eliminate any statute of limitations for the filing of civil suits alleging sexual misconduct. It's not as though the state has a tight limitations period under the current regime. An alleged victim has until they are 48 years old to bring a claim of childhood sexual abuse.
State Sen. Mary Ann Handley, D-Manchester, and state Rep. Beth Bye, D-West Hartford, don't think that's long enough. They want an alleged victim to be able to bring a claim at any time.
"It's a very lonely kind of abuse," Handley said. "It's a kind of abuse that people try to forget, try to ignore."
Such long statutes of limitation are an invitation to injustice. Don't recall what you were doing ten, twenty or thirty years ago? Let your niece or nephew, together with a bevy of so-called experts on delayed disclosure, incremental disclosure and recovered memories help you recall.
I recently tried a criminal case in which the alleged victim claimed to have been abused ten years before the trial. There was no physical evidence to corroborate her claim. While the case was pending, the accusations cascades from mere touching to cunnilingus. By the time of trial, experts were on hand to explain why it was all so perfectly plausible that the memories were late in taking shape. Of course, the jury was kept from hearing information about the sexually charged atmosphere in which the child was reared -- her father was barred from the home for a time to got to a sex addiction center.
Statutes of limitation serve important purposes. We expect claims to be raised in a timely fashion or not to be raised at all. People have lives to lead beyond the trauma they suffer. And defendants have rights, too. It simply doesn't square with justice to haul someone into court thirty years after the alleged facts and have them give an account of themselves. How do you defend if you have absolutely no idea what the so-called victim is talking about?
Handley and Bye are dead wrong. They're body-suffering in the wake of sex offender hysteria. Lawmakers ought to be narrowing, and not expanding, the manner in which ordinary folks are plucked from their lives and dumped unceremoniously into legal catastrophe.
Here's legislation much needed:
o No person claims to have been sexually abused ought to be permitted to raise a claim beyond a five year statute of limitation unless there is either another witness or physical corroboration of the claim. To do otherwise is to throw open the courthouse doors to folks seeking all sorts of secondary gain from their claims. (I once read a letter seeking admission to a college from a person claiming to have been abused years earlier. It remains unclear what scholarly acumen that portends.)
o Rape shield laws ought to be relaxed in cases in which plaintiffs or victims bring claims beyond a five-year statute of limitations. Clearly, a person who wants to claim the trauma of an ancient event has been marked by many experiences. Let the jury determine whether the testimony offered is fact or a fanciful accretion of a lifetime of hurt.
o If a party seeks to rely on recovered memory or incremental disclosure testimony, the evidence code ought to be amended to permit liberal admissibility of other sources of sexual tension in a victim's home. It is wrong to permit a jury to hear only the memories a victim claims to have recovered, but not other sources of sexual tension and shame that could well remain buried at the time of trial but to which it is reasonable to believe the child was exposed.
The law of sex offenses is a mess. We are in love with every claim of victimhood, but blind to the new class of victims created daily in our courts. Who speaks for those accused based on little more than fantasy? What protections do these men and women enjoy?
Gideon Was A "Nut"?
Last weekend I was groping for inspiration, so I reread Anthony Lewis's Gideon's Trumpet. Frankly, I don't think I'd ever read it cover to cover before. As good a reporter as Lewis was, the details still interest me less than the the holding in Gideon v. Wainwright: indigent persons accused of a felony have a right to appointed counsel.
Tucked away in the Epilogue is the story of Gideon's retrial.
When two lawyers associated with the American Civil Liberties Union arrived to represent Gideon after the Supreme Court ruled in his favor, the defendant was less than impressed. "I want to plead my own case," Gideon told the trial court. "I want to make my own plea. I don't want them to make any plea for me," he intoned.
The lawyers were discharged and the trial judge implored Gideon to let himself be represented by counsel. Isn't there a local lawyer you'd like?, the judge asked. There was. Gideon chose a man named W. Fred Turner, who won the trial.
Writing after his discharge from the case, one of the ACLU lawyers had this to say: "In the future the name `Gideon' will stand for the great principle that the poor are entitled to the same type of justice as those who are able to afford counsel. It is probably a good thing that it is immaterial and unimportant that Gideon is something of a `nut,' that his maniacal distrust and suspicion lead him to the very borders of insanity. Upon the shoulders of such persons are our great rights carried."
This observation about Gideon has weighed heavily on me all week.
The life of a trial lawyer is rarely dull. One of the things that keeps it lively is reacting to the demands of clients. Clients come in all psychic shapes and sizes: The lawyer's job is to translate the law's contours for a client, and to press the law to accommodate the client's expectations. Only in textbooks is the world filled with reasonable people all of who respond in similar ways to life's challenges. In the well of the court, something like the state of nature obtains: raw emotions animate the litigants and sometimes the law of the jungle is all that truly exists.
So Gideon was a nut. He was irrational. He was idiosyncratic. But the law bent to take account of the dignity of individual faced with the overwhelming challenge of meeting the state's attempt to take his liberty. It somehow helped me to learn that Gideon was difficult. It helped because it reminds me that the law is about conflict, and trial lawyers are really just ambassadors for other people's sorrows and other people's perspectives. I need not always agree with my client; but I must respect his perspective if I can.
Of course, there are occasions when the otherworldly demands of a client press too hard. In those cases, the client is free to seek another port. Just like Gideon did. Turning a client away is always difficult; it feels like a failure on my part. But I suppose no less than Gideon, lawyers have their limits.
Tucked away in the Epilogue is the story of Gideon's retrial.
When two lawyers associated with the American Civil Liberties Union arrived to represent Gideon after the Supreme Court ruled in his favor, the defendant was less than impressed. "I want to plead my own case," Gideon told the trial court. "I want to make my own plea. I don't want them to make any plea for me," he intoned.
The lawyers were discharged and the trial judge implored Gideon to let himself be represented by counsel. Isn't there a local lawyer you'd like?, the judge asked. There was. Gideon chose a man named W. Fred Turner, who won the trial.
Writing after his discharge from the case, one of the ACLU lawyers had this to say: "In the future the name `Gideon' will stand for the great principle that the poor are entitled to the same type of justice as those who are able to afford counsel. It is probably a good thing that it is immaterial and unimportant that Gideon is something of a `nut,' that his maniacal distrust and suspicion lead him to the very borders of insanity. Upon the shoulders of such persons are our great rights carried."
This observation about Gideon has weighed heavily on me all week.
The life of a trial lawyer is rarely dull. One of the things that keeps it lively is reacting to the demands of clients. Clients come in all psychic shapes and sizes: The lawyer's job is to translate the law's contours for a client, and to press the law to accommodate the client's expectations. Only in textbooks is the world filled with reasonable people all of who respond in similar ways to life's challenges. In the well of the court, something like the state of nature obtains: raw emotions animate the litigants and sometimes the law of the jungle is all that truly exists.
So Gideon was a nut. He was irrational. He was idiosyncratic. But the law bent to take account of the dignity of individual faced with the overwhelming challenge of meeting the state's attempt to take his liberty. It somehow helped me to learn that Gideon was difficult. It helped because it reminds me that the law is about conflict, and trial lawyers are really just ambassadors for other people's sorrows and other people's perspectives. I need not always agree with my client; but I must respect his perspective if I can.
Of course, there are occasions when the otherworldly demands of a client press too hard. In those cases, the client is free to seek another port. Just like Gideon did. Turning a client away is always difficult; it feels like a failure on my part. But I suppose no less than Gideon, lawyers have their limits.
Wednesday, February 24, 2010
Justice Delayed Is Business As Usual In Connecticut
Want to improve court efficiency, increase public satisfaction with the courts, and save money? Eliminate individual sequestered voir dire. We are alone among the states in picking jurors in this cumbersome manner. And I bet our court backlog is as old as any state in the nation. When I tell friends from other states how long it takes to get to trial in Connecticut, they are stunned.
Every other jurisdiction in the nation picks juries on a group voir dire basis. A party who wants individual sequestered voir dire can always request it. Some states permit it in capital cases. But the norm is to pick juries in the group method.
I credit Superior Court Judge Linda K. Lager as a pioneer in introduction of group voir dire into the state system. Judge Lager is a former federal prosecutor with first hand experience in group voir dire learned in the federal system. She has been encouraging parties to consider waiver of their right to question jurors outside the presence of all other potential jurors for quite some time. I have yet to hear anyone complain that the results of these cases are unjust, or that the right to pick a fair and impartial jury was in any sense abridged.
The Connecticut Bar Association’s litigation committee is forming a task force to study voir dire reform. Any proposals are likely to be met with resistance, especially by folks with a stake in business as usual. Lawmakers should force change. Lawyers can, after all, adapt.
I’ve heard grumbling from the civil defense bar about getting rid individual sequestered voir dire. I suppose that is not surprising. If you are getting paid by the hour, it makes sense to blow a couple days in voir dire before the almost inevitable settlement. Anecdotal evidence suggests that many cases settle on the eve of trial. Is that because the defense bar makes a little more dough by stringing things along?
Getting rid of the Connecticut’s wasteful voir system could force lawyers to focus on their cases earlier in the game. Imagine the savings if there was a delay of only nine months between filing of a suit and the time of trial. I suspect now there is enormous waste incident to nursing a file along for years.
Another source of complaints about the proposal to abandon individual sequestered voir dire comes from the criminal defense bar. In this case, the arguments appear to be less economic than a fear that group voir dire will yield to poorer quality in jurors.
There is no empirical data to support this fear. No other state offers what we do as a matter of right. I have read nothing suggesting that Connecticut is a beacon for other states. No reform efforts are underway to have others copy our slow-as-molasses manner of bringing a case to trial.
Unfortunately, a part of the motive in opposing change in the criminal system is also the fact that, at least in simple cases, it is not uncommon for state and defense to prepare for trial in earnest only once jury selection begins.
The Connecticut criminal justice system borders on incoherence. Parties are expected to consider plea bargains before substantive motions limiting evidence or suppressing statements are even considered by a court. We assign to presiding judges the function of control-tower operators, wheeling and dealing behind closed doors with counsel in an effort to resolve cases. Only when plea bargainning break down is the case assigned to the trial list. And once it arrives on the trial list, it sits, sometimes for years, until it is assigned a trial judge. This judge then decides substantive motions. Criminal cases are managed without a coherent law of the case guiding negotiations. No one would buy a car without kicking the tires or a road test: Yet clients are expected to plead blind.
Defendants plea, often, when the real work is done: At jury selection. Interminable individual sequestered voir dire fostered this nightmare.
We waste time and money picking jurors in a manner for which there is, simply, no real justification. It’s time for a change.
Reprinted courtesy of the Connecticut Law Tribune.
Every other jurisdiction in the nation picks juries on a group voir dire basis. A party who wants individual sequestered voir dire can always request it. Some states permit it in capital cases. But the norm is to pick juries in the group method.
I credit Superior Court Judge Linda K. Lager as a pioneer in introduction of group voir dire into the state system. Judge Lager is a former federal prosecutor with first hand experience in group voir dire learned in the federal system. She has been encouraging parties to consider waiver of their right to question jurors outside the presence of all other potential jurors for quite some time. I have yet to hear anyone complain that the results of these cases are unjust, or that the right to pick a fair and impartial jury was in any sense abridged.
The Connecticut Bar Association’s litigation committee is forming a task force to study voir dire reform. Any proposals are likely to be met with resistance, especially by folks with a stake in business as usual. Lawmakers should force change. Lawyers can, after all, adapt.
I’ve heard grumbling from the civil defense bar about getting rid individual sequestered voir dire. I suppose that is not surprising. If you are getting paid by the hour, it makes sense to blow a couple days in voir dire before the almost inevitable settlement. Anecdotal evidence suggests that many cases settle on the eve of trial. Is that because the defense bar makes a little more dough by stringing things along?
Getting rid of the Connecticut’s wasteful voir system could force lawyers to focus on their cases earlier in the game. Imagine the savings if there was a delay of only nine months between filing of a suit and the time of trial. I suspect now there is enormous waste incident to nursing a file along for years.
Another source of complaints about the proposal to abandon individual sequestered voir dire comes from the criminal defense bar. In this case, the arguments appear to be less economic than a fear that group voir dire will yield to poorer quality in jurors.
There is no empirical data to support this fear. No other state offers what we do as a matter of right. I have read nothing suggesting that Connecticut is a beacon for other states. No reform efforts are underway to have others copy our slow-as-molasses manner of bringing a case to trial.
Unfortunately, a part of the motive in opposing change in the criminal system is also the fact that, at least in simple cases, it is not uncommon for state and defense to prepare for trial in earnest only once jury selection begins.
The Connecticut criminal justice system borders on incoherence. Parties are expected to consider plea bargains before substantive motions limiting evidence or suppressing statements are even considered by a court. We assign to presiding judges the function of control-tower operators, wheeling and dealing behind closed doors with counsel in an effort to resolve cases. Only when plea bargainning break down is the case assigned to the trial list. And once it arrives on the trial list, it sits, sometimes for years, until it is assigned a trial judge. This judge then decides substantive motions. Criminal cases are managed without a coherent law of the case guiding negotiations. No one would buy a car without kicking the tires or a road test: Yet clients are expected to plead blind.
Defendants plea, often, when the real work is done: At jury selection. Interminable individual sequestered voir dire fostered this nightmare.
We waste time and money picking jurors in a manner for which there is, simply, no real justification. It’s time for a change.
Reprinted courtesy of the Connecticut Law Tribune.
Tuesday, February 23, 2010
My Mom Is The Prettiest and Bestest Mommy In The Whole Wide World
I don't think much of those who blog under a psuedonym and hide their identity. If you think it, own it, I say. But folks have their reasons for anonymity. Sometimes it is cowardice or fear of the consequences; sometimes it is a juvenile love of mystery. In Connecticut, a blog called A Public Defender intermittently yields opinion under the pseudonym "Gideon." I generally agree with what is written there, but not always, so I give Gideon a pass on his -- at least I think it's a he -- feet of clay.
But Gideon now blasts me as a cumbersome bloviater for calling for the abolition of individual sequestered voir dire. I suspect what has driven him over the edge is a piece I wrote published in The Hartford Courant this past weekend. The target audience for that essay was members of the Connecticut General Assembly.
It appears from the context of his writing that Gideon is a state employee. In other words, his practice is confined to the state courts. Thus, all he knows by experience is what he has done. And all he has done is trod the same well worn path of individual sequestered voir dire. He has no experience with group voir dire. He can be forgiven for thinking his mother is the prettiest, smartest and bestest woman in the whole wide world, but really, Gideon: Do you really think the quality of justice in the Connecticut state courts surpasses every other jurisdiction in the United States? What empirical evidence supports that?
It is true that some jurisdictions permit individual sequestered voir dire for good cause shown in capital cases. But no other jurisdiction requires the practice as a matter of right in all civil and criminal cases. Only Connecticut does that. Connecticut could, and should, abolish the practice of individual sequestered voir dire as a matter of right. Retaining the practice upon a showing of good cause is not inconsistent with that.
I genuinely admire and even envy public defenders. They get to do the sort of work I love to do without having to bow and scrape for a fee. But when I read a piece like Gideon's I am glad I escaped the monotony of the oxen yoked to a water wheel. When all you know is the same path, the same sights, the same sounds day in and day out, it is small wonder parochialism looks like reason.
You're wrong, Gideon, And what's worse, you toss pebbles behind the veil of a pseudonym. If I didn't like the general tone of your blog, I'd suggest a name change to Public Pretender. The Earth is not flat.
I hope the Connecticut General Assembly will ask the Progam Review and Investigation Committee to study the issue of voir dire reform. I know the Connecticut Bar Association is about to begin a study. I'll be sure to pass Gideon's piece along to both bodies. It is a good piece of parochial pleading. But it sheds little light on anything other than the prejudices of an anonymous and hide-bound dedication to custom for custom's sake. It is quaint, really, in an almost medieval sort of manner.
But Gideon now blasts me as a cumbersome bloviater for calling for the abolition of individual sequestered voir dire. I suspect what has driven him over the edge is a piece I wrote published in The Hartford Courant this past weekend. The target audience for that essay was members of the Connecticut General Assembly.
It appears from the context of his writing that Gideon is a state employee. In other words, his practice is confined to the state courts. Thus, all he knows by experience is what he has done. And all he has done is trod the same well worn path of individual sequestered voir dire. He has no experience with group voir dire. He can be forgiven for thinking his mother is the prettiest, smartest and bestest woman in the whole wide world, but really, Gideon: Do you really think the quality of justice in the Connecticut state courts surpasses every other jurisdiction in the United States? What empirical evidence supports that?
It is true that some jurisdictions permit individual sequestered voir dire for good cause shown in capital cases. But no other jurisdiction requires the practice as a matter of right in all civil and criminal cases. Only Connecticut does that. Connecticut could, and should, abolish the practice of individual sequestered voir dire as a matter of right. Retaining the practice upon a showing of good cause is not inconsistent with that.
I genuinely admire and even envy public defenders. They get to do the sort of work I love to do without having to bow and scrape for a fee. But when I read a piece like Gideon's I am glad I escaped the monotony of the oxen yoked to a water wheel. When all you know is the same path, the same sights, the same sounds day in and day out, it is small wonder parochialism looks like reason.
You're wrong, Gideon, And what's worse, you toss pebbles behind the veil of a pseudonym. If I didn't like the general tone of your blog, I'd suggest a name change to Public Pretender. The Earth is not flat.
I hope the Connecticut General Assembly will ask the Progam Review and Investigation Committee to study the issue of voir dire reform. I know the Connecticut Bar Association is about to begin a study. I'll be sure to pass Gideon's piece along to both bodies. It is a good piece of parochial pleading. But it sheds little light on anything other than the prejudices of an anonymous and hide-bound dedication to custom for custom's sake. It is quaint, really, in an almost medieval sort of manner.
Sunday, February 21, 2010
Goldman Stacks
Like the American Dream, Joe Stacks went up in smoke. The only difference is that in the case of Joe Stacks it happened quickly and he was soon forgotten; in the case or ordinary Americans, the dream disappeared slowly, leaving in its wake a landscape of unawillingvoidable sorrow.
Except on Wall Street, where the ethics of P.T. Barnum has melded with the work product of the U.S. Census Bureau. There are thousands of we suckers born every minute in the United States, and we're willing to pay through the nose to bailout scam artists in pin-stripe suits.
Mike, over at Crime and Federalism, featured a recent article from Rolling Stone about the bailouts. It mis must reading. Link here: http://www.rollingstone.com/politics/story/32255149/wall_streets_bailout_hustle/.
The piece is a searing indictment of an industry sated with cash and accountable to no one. Just a year after massive federal bailouts that will saddle a generation of Americans with new government debt, Wall Street's big boys are back at the bonus trough. And they're still bundling risky securities knowing full well that they are too big to fail.
All of which has me wondering: Did Joe Stacks choose the wrong target when he became America's latest suicide bomber?
I'm no fan of big government, but, let's face it, picking on a couple of hapless IRS workers hardly makes a point. Sure, paying taxes is onerous, and once you fall behind, playing catch-up is difficult. But like it or not, government is a necessary evil. Sniping at IRS agents is really blaming the messenger.
The real puppeteers aren't in Washington. The master manipulators -- the masters of the unviverse to use Tom Wolfe's memorable phrase from Bonfire of the Vanities -- are the big boys on Wall Street. These are the fellows loaded with cash and prepared to spend anything, and seemingly do anything, to retain power.
While many Americans are walking away from homes that are "under water" or are trying to stave off foreclosure, the fat cats at Goldman Sachs are sitting on billions of dollars in new bonuses. This just after begging Congress for a bailout. While you count your pennies, they weight your dollars. It's obscene. Why didn't the bail out simply result in a write down on mortgages for homeowners? That would have eased the debt load of ordinary Americans, freeing up capital to invest. Instead, we chose to make mortgage slaves of the middle class. What genius thought this consistent with visions of a good society? Latifundia anyone?
The Stacks story has disappeared from the media almost as quickly as the flames from the small plane he crashed into a federal office building in Austin were doused. But the frustration and anger of folks whose dreams have been siphoned off by double-dealing tycoons on Wall Street still smoulder. If Stacks had it to do all over again, I wonder whether he would target the IRS.
I may not like paying taxes, but I like roads, libraries and national parks. These things add value to my life. But when I look at the interest my bank makes each month on my mortgage I really wonder what I am getting for my money other than the vicarious satisfaction of imagining the kind of cigars they smoke at Goldman Sachs.
Except on Wall Street, where the ethics of P.T. Barnum has melded with the work product of the U.S. Census Bureau. There are thousands of we suckers born every minute in the United States, and we're willing to pay through the nose to bailout scam artists in pin-stripe suits.
Mike, over at Crime and Federalism, featured a recent article from Rolling Stone about the bailouts. It mis must reading. Link here: http://www.rollingstone.com/politics/story/32255149/wall_streets_bailout_hustle/.
The piece is a searing indictment of an industry sated with cash and accountable to no one. Just a year after massive federal bailouts that will saddle a generation of Americans with new government debt, Wall Street's big boys are back at the bonus trough. And they're still bundling risky securities knowing full well that they are too big to fail.
All of which has me wondering: Did Joe Stacks choose the wrong target when he became America's latest suicide bomber?
I'm no fan of big government, but, let's face it, picking on a couple of hapless IRS workers hardly makes a point. Sure, paying taxes is onerous, and once you fall behind, playing catch-up is difficult. But like it or not, government is a necessary evil. Sniping at IRS agents is really blaming the messenger.
The real puppeteers aren't in Washington. The master manipulators -- the masters of the unviverse to use Tom Wolfe's memorable phrase from Bonfire of the Vanities -- are the big boys on Wall Street. These are the fellows loaded with cash and prepared to spend anything, and seemingly do anything, to retain power.
While many Americans are walking away from homes that are "under water" or are trying to stave off foreclosure, the fat cats at Goldman Sachs are sitting on billions of dollars in new bonuses. This just after begging Congress for a bailout. While you count your pennies, they weight your dollars. It's obscene. Why didn't the bail out simply result in a write down on mortgages for homeowners? That would have eased the debt load of ordinary Americans, freeing up capital to invest. Instead, we chose to make mortgage slaves of the middle class. What genius thought this consistent with visions of a good society? Latifundia anyone?
The Stacks story has disappeared from the media almost as quickly as the flames from the small plane he crashed into a federal office building in Austin were doused. But the frustration and anger of folks whose dreams have been siphoned off by double-dealing tycoons on Wall Street still smoulder. If Stacks had it to do all over again, I wonder whether he would target the IRS.
I may not like paying taxes, but I like roads, libraries and national parks. These things add value to my life. But when I look at the interest my bank makes each month on my mortgage I really wonder what I am getting for my money other than the vicarious satisfaction of imagining the kind of cigars they smoke at Goldman Sachs.
18 Percent Of Teens Are Sex Offenders?
The Pew Research Center's Internet & American Life Project reports that 18 percent of 800 youths aged 14-17 with cellphones reported receiving "sexually suggestive" nude or semi-nude images of someone they know. I suspect the number understates the extent of sexually charged horseplay on cell phones among the nation's youth. But tell me, truly, do you really think each and everyone of these kids is a criminal, or even a sex offender?
Sending a sexually suggestive picture of a minor over the Internet is a crime. The practice of sexting can land you in a federal prison. It can also put you behind state bars. And because sexting is a sex offense, you'll be required to register as a sex offender.
Oh, what I tangled web we are weaving with these silly laws.
My home state, Connecticut, is is guilty of this silliness as the next. But there is a ray of hope on the horizon. In the current session of the General Assembly, lawmakers have proposed legislation to transform sexting from a felony to a class A misdemeanor. It is a small step in a journey that really should end with decriminalization of curiosity and adolescent tomfoolery.
sex-offender registry.
Two Republican lawmakers from Naugatuck are pressing for a law lessen the penalty for sexting between consenting children. State Reps. Rosa Rebimbas and David Labriola propose the measure. Labriola is also a practicing lawyer and a regular in the Brass Valley criminal courts. I am heartened to see him proposing much needed legislation to dampen the hysteria associated with claims of sexual misconduct. The Legislature's Judiciary Committee plans a hearing on the proposal later this term.
It's hard to say where law enforcement stands on the issue. West Hartford Police Chief James Strillacci, speaking for the Connecticut Police Chiefs Association, said officers use their discretion in dealing with sexting. Officers are trying to protect children from the unforeseen consequences of their actions, he said.
But it is small comfort to leave discretion about whether to charge a crime, whether felony or misdemeanor, in the hands of a cop. What such discretion typically means is that the cop's kids and his friends get a pass. Those who are unpopular or unconnected stand a greater chance of falling on the wrong side of police discretion.
I don't want to look a gift horse in the mouth, but why stop at lessening the penalties associated with sexting between consenting minors. Why not decriminalize it altoghter. It shouldn't be a crime to be be curious.
Sending a sexually suggestive picture of a minor over the Internet is a crime. The practice of sexting can land you in a federal prison. It can also put you behind state bars. And because sexting is a sex offense, you'll be required to register as a sex offender.
Oh, what I tangled web we are weaving with these silly laws.
My home state, Connecticut, is is guilty of this silliness as the next. But there is a ray of hope on the horizon. In the current session of the General Assembly, lawmakers have proposed legislation to transform sexting from a felony to a class A misdemeanor. It is a small step in a journey that really should end with decriminalization of curiosity and adolescent tomfoolery.
sex-offender registry.
Two Republican lawmakers from Naugatuck are pressing for a law lessen the penalty for sexting between consenting children. State Reps. Rosa Rebimbas and David Labriola propose the measure. Labriola is also a practicing lawyer and a regular in the Brass Valley criminal courts. I am heartened to see him proposing much needed legislation to dampen the hysteria associated with claims of sexual misconduct. The Legislature's Judiciary Committee plans a hearing on the proposal later this term.
It's hard to say where law enforcement stands on the issue. West Hartford Police Chief James Strillacci, speaking for the Connecticut Police Chiefs Association, said officers use their discretion in dealing with sexting. Officers are trying to protect children from the unforeseen consequences of their actions, he said.
But it is small comfort to leave discretion about whether to charge a crime, whether felony or misdemeanor, in the hands of a cop. What such discretion typically means is that the cop's kids and his friends get a pass. Those who are unpopular or unconnected stand a greater chance of falling on the wrong side of police discretion.
I don't want to look a gift horse in the mouth, but why stop at lessening the penalties associated with sexting between consenting minors. Why not decriminalize it altoghter. It shouldn't be a crime to be be curious.
Eric Holder Lip Syncs About Public Defenders
I was a little startled to read the remarks of Attorney General Eric Holder at the National Symposium on Indigent Defense last week in Washington. I mean, there's the nation's top prosecutor admitting what criminal justice insiders know: the system is broke and in serious need of repair.
I applaud Holder's honesty. I only wish he were bolder. Admitting that all have sinned is but boilerplate theology. What's necessary is salvation. And that will only come with radical reform.
First, the obvious truths. Nearly a half century after the Supreme Court's decision in Gideon v. Wainwright, we are still a long way from achieving the goal of equal justice for all. Juveniles are routinely denied counsel. Public defenders are often overwhelmed and unable to provide effective counsel to those accused of crimes. We do not devote resources sufficient to fund the defense of the accused. True, all true, but what to do about this, Mr. Holder?
Holder calls for bandaids to staunch the bleeding. He wants an ongoing dialogue. He wants greater public awareness. And he wants greater participation by public defenders in policymaking discussions. All good. But tell me, really, what will this change? Here are some proposals with teeth:
1. Passage of a Law Enforcement Parity Act. Legislation of this sort would call for an estimate of the cost of administering a penal statute, including the cost of policing, experts, prosecution. Lawmakers would then be required to allocate funds for the defense of those accused of the crimes. There should be rough parity for the prosecution and defense of all crimes.
2. Anyone accused of a crime should be eligible for the services of a publicly funded lawyer, investigators and experts. Whether these funds go to a government mandated public defenders office, or to a private Legal Aid office, or to some hybrid entity is immaterial.
3. The harmless error doctrine should be eliminated in appellate review of criminal convictions. This doctrine excuses deficient performance by criminal defense counsel by asserting that despite counsel's failure, the client would have been convicted anyway. Thus the actual outrage of written decisions holding that a lawyer who slept through portions of his client's trial was not a violation of a defendant's right to counsel. If we are going to get serious about funding defense of those accused of crime, we need to be prepared to bear the consequence of failure. It is not enough to wink and say it really doesn't matter.
4. Requiring as a condition of bar licensure that all lawyers register and participate in a public defender system. Purists will say that the criminal law is not for everyone. Yet everyone who passes the bar is minimally proficient in the criminal law. A public defender panel could experience rate the counsel on its list. Mr. White Shoe corporate lawyer, the guy making $1,000 an hour and never soiling his suit with courthouse grime, could be assigned the simplest case. Hard to imagine he could screw up. And if he did, an appellate system which refused to excuse mistake as harmless would ensure that injustice was not done.
5. Create a criminal justice agency that oversees the funding of both the prosecution and defense. Obviously, the two functions would comprise different divisions with different leadership, but requiring that both divisions report to a common head would foster even resource distribution and foster a sense that the justice was the goal of the criminal justice system.
These are radical reforms. But they are necessary reforms. I'd like to see Mr. Holder put his shoulder behind measures level the playing field between the Government and those accused of crime. His comments last week at the Indigent Defense symposium sounded a little bit like the emporer's invitation to the weavers and millers living in the castle's shadow to a banquet: "Come to the feast," he said. "I'll be sure to save you some table scraps."
I applaud Holder's honesty. I only wish he were bolder. Admitting that all have sinned is but boilerplate theology. What's necessary is salvation. And that will only come with radical reform.
First, the obvious truths. Nearly a half century after the Supreme Court's decision in Gideon v. Wainwright, we are still a long way from achieving the goal of equal justice for all. Juveniles are routinely denied counsel. Public defenders are often overwhelmed and unable to provide effective counsel to those accused of crimes. We do not devote resources sufficient to fund the defense of the accused. True, all true, but what to do about this, Mr. Holder?
Holder calls for bandaids to staunch the bleeding. He wants an ongoing dialogue. He wants greater public awareness. And he wants greater participation by public defenders in policymaking discussions. All good. But tell me, really, what will this change? Here are some proposals with teeth:
1. Passage of a Law Enforcement Parity Act. Legislation of this sort would call for an estimate of the cost of administering a penal statute, including the cost of policing, experts, prosecution. Lawmakers would then be required to allocate funds for the defense of those accused of the crimes. There should be rough parity for the prosecution and defense of all crimes.
2. Anyone accused of a crime should be eligible for the services of a publicly funded lawyer, investigators and experts. Whether these funds go to a government mandated public defenders office, or to a private Legal Aid office, or to some hybrid entity is immaterial.
3. The harmless error doctrine should be eliminated in appellate review of criminal convictions. This doctrine excuses deficient performance by criminal defense counsel by asserting that despite counsel's failure, the client would have been convicted anyway. Thus the actual outrage of written decisions holding that a lawyer who slept through portions of his client's trial was not a violation of a defendant's right to counsel. If we are going to get serious about funding defense of those accused of crime, we need to be prepared to bear the consequence of failure. It is not enough to wink and say it really doesn't matter.
4. Requiring as a condition of bar licensure that all lawyers register and participate in a public defender system. Purists will say that the criminal law is not for everyone. Yet everyone who passes the bar is minimally proficient in the criminal law. A public defender panel could experience rate the counsel on its list. Mr. White Shoe corporate lawyer, the guy making $1,000 an hour and never soiling his suit with courthouse grime, could be assigned the simplest case. Hard to imagine he could screw up. And if he did, an appellate system which refused to excuse mistake as harmless would ensure that injustice was not done.
5. Create a criminal justice agency that oversees the funding of both the prosecution and defense. Obviously, the two functions would comprise different divisions with different leadership, but requiring that both divisions report to a common head would foster even resource distribution and foster a sense that the justice was the goal of the criminal justice system.
These are radical reforms. But they are necessary reforms. I'd like to see Mr. Holder put his shoulder behind measures level the playing field between the Government and those accused of crime. His comments last week at the Indigent Defense symposium sounded a little bit like the emporer's invitation to the weavers and millers living in the castle's shadow to a banquet: "Come to the feast," he said. "I'll be sure to save you some table scraps."
Forgiving Government White Collar Crime
I'll bet a lot of folks charged with federal white collar crimes are feeling more than a little betrayed today. That's because the government has bared its teeth at claims of private wrongdoing while turning a blind eye to the suspected criminals in its midst.
John C. Yoo and Jay S. Bybee didn't even get their wrists slapped by the Justice Department. This after the department's office of professional responsibility reported that the men might well have violated both federal and international laws against torture. But that's okay with the Justice Department. Times were tough when the men endorsed the use of waterboarding and other forms of harsh interrogation, thus providing legal cover for CIA agents to take off the gloves with those suspected being al Qaeda operatives.
Jay S. Bybee is now a federal judge. And John Yoo teaches law at the University of California, Berkeley. These two men were the architects of the Bush administration's harsh interrogation policies. Judge Bybee and Professor Yoo placed their imprimatur on now infamous memoranda expanding the scope of executive power to an extent that would have stunned the Founders. Why revolt if we're simply trading one George for another?
Lawyers in the Justice Department's Office of Professional Responsibility concluded that the torturesome duo had engaged in "professional misconduct, and ignored legal precedent they didn't like to justify an outcome that was consonant with the idiosyncratic needs of the moment. Justice's tops lawyers looked the rule of law in the eye and they blinked.
But the Justice Department is now distancing itself from the conclusions of its own ethics counsel. The department resorts to a cheap species of the reasons of state doctrine. In a separate report prepared by David Margolis, a career lawyer at Justice, the OPR conclusions are dismissed as giving insufficient weight to the "climate of urgency" in which Yoo and Bybee acted. This is the sort of reasoning that illustrates just how fragile are our federal constitution's guarantees of liberty.
The Fourth Amendment prohibits unreasonable searches and seizures. Yet the terms of that amendment are by no means self evidence. In a famous Fourth Amendment case involving interception of telephone transmissions from a telephone booth, the Supreme Court held that two things were necessary to succeed in raising an claim that the Fourth Amendment had been violated. First, a person must show that he had a legitimate expectation of privacy. That is a subjective test. Next, the person must show that his subjective expectation is one which society is prepared to honor. That's the so-called objective test.
In the wake of the 9-11 attacks, many Americans were prepared to yield liberty for the sake of security. The "national climate of urgency" was a siren song for authoritarians. It is reasonable, is it not, to torture our enemies when a ticking time bomb threatens to explode any moment now? Thus the calculus of liberty was weighted with the constant need to feel safe at all costs. The result was Yoo, Bybee and the waterboarding good boys and girls at the CIA.
That the government now decides to blink at potential violations of the law by senior administration officials is paradoxical. Is the government saying that the perception of exigency justified the potential violation of law? Or did it merely excuse the misconduct? Of is the claim bolder still: that the exigencies of the moment made the misconduct necessary?
Justification, excuse and necessity are common law defenses to crime. These excuses rarely play for those accused of white collar crimes in the private sector. When a government liberty excuses its own misconduct by resort to these defenses troubling questions arise about whether the rule of law means more than picking and choosing which crimes to punish for reasons altogether political.
Representative John Conyers of Michigan got it right in his assessment of Justice's handling of Yoo and Bybee. The judge and the professor "dishonored their office and the entire Department of Justice."
John C. Yoo and Jay S. Bybee didn't even get their wrists slapped by the Justice Department. This after the department's office of professional responsibility reported that the men might well have violated both federal and international laws against torture. But that's okay with the Justice Department. Times were tough when the men endorsed the use of waterboarding and other forms of harsh interrogation, thus providing legal cover for CIA agents to take off the gloves with those suspected being al Qaeda operatives.
Jay S. Bybee is now a federal judge. And John Yoo teaches law at the University of California, Berkeley. These two men were the architects of the Bush administration's harsh interrogation policies. Judge Bybee and Professor Yoo placed their imprimatur on now infamous memoranda expanding the scope of executive power to an extent that would have stunned the Founders. Why revolt if we're simply trading one George for another?
Lawyers in the Justice Department's Office of Professional Responsibility concluded that the torturesome duo had engaged in "professional misconduct, and ignored legal precedent they didn't like to justify an outcome that was consonant with the idiosyncratic needs of the moment. Justice's tops lawyers looked the rule of law in the eye and they blinked.
But the Justice Department is now distancing itself from the conclusions of its own ethics counsel. The department resorts to a cheap species of the reasons of state doctrine. In a separate report prepared by David Margolis, a career lawyer at Justice, the OPR conclusions are dismissed as giving insufficient weight to the "climate of urgency" in which Yoo and Bybee acted. This is the sort of reasoning that illustrates just how fragile are our federal constitution's guarantees of liberty.
The Fourth Amendment prohibits unreasonable searches and seizures. Yet the terms of that amendment are by no means self evidence. In a famous Fourth Amendment case involving interception of telephone transmissions from a telephone booth, the Supreme Court held that two things were necessary to succeed in raising an claim that the Fourth Amendment had been violated. First, a person must show that he had a legitimate expectation of privacy. That is a subjective test. Next, the person must show that his subjective expectation is one which society is prepared to honor. That's the so-called objective test.
In the wake of the 9-11 attacks, many Americans were prepared to yield liberty for the sake of security. The "national climate of urgency" was a siren song for authoritarians. It is reasonable, is it not, to torture our enemies when a ticking time bomb threatens to explode any moment now? Thus the calculus of liberty was weighted with the constant need to feel safe at all costs. The result was Yoo, Bybee and the waterboarding good boys and girls at the CIA.
That the government now decides to blink at potential violations of the law by senior administration officials is paradoxical. Is the government saying that the perception of exigency justified the potential violation of law? Or did it merely excuse the misconduct? Of is the claim bolder still: that the exigencies of the moment made the misconduct necessary?
Justification, excuse and necessity are common law defenses to crime. These excuses rarely play for those accused of white collar crimes in the private sector. When a government liberty excuses its own misconduct by resort to these defenses troubling questions arise about whether the rule of law means more than picking and choosing which crimes to punish for reasons altogether political.
Representative John Conyers of Michigan got it right in his assessment of Justice's handling of Yoo and Bybee. The judge and the professor "dishonored their office and the entire Department of Justice."
Friday, February 19, 2010
Joe Stack: Too Small To Succeed?
What happens when the reality of people's lives becomes detached from institutions attempting to govern? In isolated cases, we diagnose psychosis and call for medication. And we label some behavior deviant and prosecute it as criminal. But what happens when there is wholesale dissonance? When the social realities faced by a people collide with institutions seemingly adrift and indifferent? This is the stuff of a fatal dialectic: Institutions repress; people rebel. The ground quakes with the potential for revolution.
Which leads me to Joe Stack, America's latest suicide bomber. He's the fellow who flew a small plane into a building in Austin, Texas, yesterday. His target was the Internal Revenue Service.
Was Stack a psychotic, or did he see things a little too clearly?
Mike, over at Crime and Federalism, notes that already plenty regard Stack as some sort of martyr. Stack left a suicide note in which he derided a government that bails out the rich, and ignores the poor. William Doriss, a frequest commenter on this page, noted a few weeks ago that there is new mantra in Washington. We bail out the big boys because they are too big to fail. Doriss wonders, do we let the little people founder because they're too small to succeed? Doriss is onto to something. Who bails out ordinary Americans who fell in love with a dream that no longer holds?
At the end of what will now be called the Stack Manifesto is the following:
"The communist creed: From each according to his ability, to each according to his need.
"The capitalist creed: From each according to his gullibility, to each according to his greed."
What happens if ordinary people stop being gullible? What happens if there are other Joe Stacks out there who decide it's not all right to pledge allegiance to a set of institutions that promise liberty and justice for all and then delivers despair? What happens if there are other Joe Stacks out there who conclude that it makes no sense for a tiny handful of Americans to grow rich while the vast majority struggle to meet basic needs? What happens if ordinary Americans just start saying no?
What happens is social revolution. The new wine of frustration bursts the skins of centuries old institutions. The Old Regime crumbles.
Is that what Stack's suicide bombing means? Or is he merely a less literate version of the Unabomber -- an idiosyncratic visionary who took thinks just a little farther than the rest of us were prepared to go?
The dialectic of terror, as Franz Fanon taught years ago in The Wretched of the Earth, works as follows. The oppressed strike at power. Power responds with force. Those at the margin of dissent are pushed into opposition. Further violence ensues. And soon, the terrorist hopes, there is a large enough gap between the social reality of the oppressed and the machinery of power wielded by a tiny elite that room is created for new institutions.
I don't know what Joe Stack's bombing means. But I do know that the while an economic elite debates recovery, a large mass of Americans experience despair. What would happen if those too small succeed started to take themselves seriously? What would happen if they realized that the American Dream has gone the way of the American Century? What if Joe Stack is not an isolated man who snapped? What if, finally, Joe Stack were regarded as a martyr?
I can't say the possibility frightens me. Our political institutions -- lawmakers, the courts, the executive branch -- seems out of touch with the reality of American life. How else to explain that the land of the free incarcerates a higher percentage of its population than any other industrialized society? How to explain that raft of anger and rage engulfing the courts with litigants seemingly unable to conceive of the sorts or reasons judges and lawyers use as tools?
I wonder, finally, whether there are new barbarians crashing at the gates of Rome. These don't come from outside our borders. We are cultivating an entire class of barbarians at home: folks who do not have a stake sufficient in the status quo to care whether the status quo survives. Folks angry enough to kill for the sake of something better.
Is Joe Stack an aberration? What if people started turning anger not against themselves in the form of depression and addiction, but against institutions that promise what is never really delivered? Time will tell.
Which leads me to Joe Stack, America's latest suicide bomber. He's the fellow who flew a small plane into a building in Austin, Texas, yesterday. His target was the Internal Revenue Service.
Was Stack a psychotic, or did he see things a little too clearly?
Mike, over at Crime and Federalism, notes that already plenty regard Stack as some sort of martyr. Stack left a suicide note in which he derided a government that bails out the rich, and ignores the poor. William Doriss, a frequest commenter on this page, noted a few weeks ago that there is new mantra in Washington. We bail out the big boys because they are too big to fail. Doriss wonders, do we let the little people founder because they're too small to succeed? Doriss is onto to something. Who bails out ordinary Americans who fell in love with a dream that no longer holds?
At the end of what will now be called the Stack Manifesto is the following:
"The communist creed: From each according to his ability, to each according to his need.
"The capitalist creed: From each according to his gullibility, to each according to his greed."
What happens if ordinary people stop being gullible? What happens if there are other Joe Stacks out there who decide it's not all right to pledge allegiance to a set of institutions that promise liberty and justice for all and then delivers despair? What happens if there are other Joe Stacks out there who conclude that it makes no sense for a tiny handful of Americans to grow rich while the vast majority struggle to meet basic needs? What happens if ordinary Americans just start saying no?
What happens is social revolution. The new wine of frustration bursts the skins of centuries old institutions. The Old Regime crumbles.
Is that what Stack's suicide bombing means? Or is he merely a less literate version of the Unabomber -- an idiosyncratic visionary who took thinks just a little farther than the rest of us were prepared to go?
The dialectic of terror, as Franz Fanon taught years ago in The Wretched of the Earth, works as follows. The oppressed strike at power. Power responds with force. Those at the margin of dissent are pushed into opposition. Further violence ensues. And soon, the terrorist hopes, there is a large enough gap between the social reality of the oppressed and the machinery of power wielded by a tiny elite that room is created for new institutions.
I don't know what Joe Stack's bombing means. But I do know that the while an economic elite debates recovery, a large mass of Americans experience despair. What would happen if those too small succeed started to take themselves seriously? What would happen if they realized that the American Dream has gone the way of the American Century? What if Joe Stack is not an isolated man who snapped? What if, finally, Joe Stack were regarded as a martyr?
I can't say the possibility frightens me. Our political institutions -- lawmakers, the courts, the executive branch -- seems out of touch with the reality of American life. How else to explain that the land of the free incarcerates a higher percentage of its population than any other industrialized society? How to explain that raft of anger and rage engulfing the courts with litigants seemingly unable to conceive of the sorts or reasons judges and lawyers use as tools?
I wonder, finally, whether there are new barbarians crashing at the gates of Rome. These don't come from outside our borders. We are cultivating an entire class of barbarians at home: folks who do not have a stake sufficient in the status quo to care whether the status quo survives. Folks angry enough to kill for the sake of something better.
Is Joe Stack an aberration? What if people started turning anger not against themselves in the form of depression and addiction, but against institutions that promise what is never really delivered? Time will tell.
Thursday, February 18, 2010
Make Lawmakers Count Cost of Overcriminalization
Are we prepared, as a society, to pay more than lip service to the presumption of innocence? If we are, then it's time to we offered to pay for the legal defense of anyone accused of a crime. Anything less amounts to the most regressive tax of all, a tax which devastates the middle class while encouraging the growth of a government detached from the consequences of its actions.
Let's begin with fundamentals: The United States incarcerates more persons per capita than any other industrial nation on Earth. What's more, the sentences we impose are disproportionately longer than those imposed in other countries. In sum, the land of the free is in the grip of overcriminalization.
Expecting lawmakers to do much about it is like expecting a madam to impose vows of chastity on the working girls. Stirring the passions of voters about crime is just too lucrative a pastime for lawmakers. So legislators pass one law after another, imposing mandatory minimum sentences, enacting new crimes, and supervising the expansion of the penal code.
Until lawmakers are made to understand the cost of their punitive polices, they will continue to prefer severe criminal policies. We permit lawmakers to play with fantasy dollars when it comes to crime. We don't make them count fully the cost of what they are doing. I say change that by requiring the full costs of the criminal justice system to be borne by the public fisc. We can do this by requiring a universal public defender system, and guaranteeing to all citizens the right to a defense paid for by the state.
Indigents are already guaranteed a right to counsel. Ake v. Oklahoma holds that "when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense." Why are we so sparing in our regard to fundamental fairness? Is the middle class any better equipped to face the state when charged with a crime?
In Connecticut, for example, the eligibility for the services of a public defender for a person with three dependents is $44,100 if the charge is a felony. Suppose a married man with two kids is charged with a felony in Connecticut, but makes $45,000. He is above the eligibility threshold. Let's say the charge is manslaughter, and arises from a motor vehicle collision on the way home from a Super Bowl party. The state charges him with reckless manslaughter for driving while intoxicated.
My anecdotal sense of the market in Connecticut is that lawyers called to defend this case will quote a fee for legal services of somewhere between $5,000 to $25,000 for pre-trial work, with a separate fee of $10,000 to $50,000 for a trial. Where does this client come up with the legal fees? And where does the client come up with money for a toxicologist to review the state's work? Or for an accident reconstruction expert to review the police reports? These fees will cripple a middle class family if the family is lucky enough to be able to raise them.
A better criminal justice system would require the state to pay for both the cost of prosecution and defense. A defendant found guilty could be assessed a fine to cover the costs of his defense.
Requiring the state to pay the full cost of defense for all those accused of a crime would avoid impoverishment of middle class families trying to vindicate the presumption of innocence. It may well be that such funding would have to come from a separate state agency, perhaps one that budgeted resources for both the defense and the prosecution so as to assure some rough parity of resources. Focusing the attention of lawmakers on the total costs of prosecution each offense might force lawmakers to make tough cost-benefit decisions about whether some offenses are worth the expense. It would also inspire meaningful overview of prosecutorial discretion.
Reprinted courtesy of the Connecticut Law Tribune.
Let's begin with fundamentals: The United States incarcerates more persons per capita than any other industrial nation on Earth. What's more, the sentences we impose are disproportionately longer than those imposed in other countries. In sum, the land of the free is in the grip of overcriminalization.
Expecting lawmakers to do much about it is like expecting a madam to impose vows of chastity on the working girls. Stirring the passions of voters about crime is just too lucrative a pastime for lawmakers. So legislators pass one law after another, imposing mandatory minimum sentences, enacting new crimes, and supervising the expansion of the penal code.
Until lawmakers are made to understand the cost of their punitive polices, they will continue to prefer severe criminal policies. We permit lawmakers to play with fantasy dollars when it comes to crime. We don't make them count fully the cost of what they are doing. I say change that by requiring the full costs of the criminal justice system to be borne by the public fisc. We can do this by requiring a universal public defender system, and guaranteeing to all citizens the right to a defense paid for by the state.
Indigents are already guaranteed a right to counsel. Ake v. Oklahoma holds that "when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense." Why are we so sparing in our regard to fundamental fairness? Is the middle class any better equipped to face the state when charged with a crime?
In Connecticut, for example, the eligibility for the services of a public defender for a person with three dependents is $44,100 if the charge is a felony. Suppose a married man with two kids is charged with a felony in Connecticut, but makes $45,000. He is above the eligibility threshold. Let's say the charge is manslaughter, and arises from a motor vehicle collision on the way home from a Super Bowl party. The state charges him with reckless manslaughter for driving while intoxicated.
My anecdotal sense of the market in Connecticut is that lawyers called to defend this case will quote a fee for legal services of somewhere between $5,000 to $25,000 for pre-trial work, with a separate fee of $10,000 to $50,000 for a trial. Where does this client come up with the legal fees? And where does the client come up with money for a toxicologist to review the state's work? Or for an accident reconstruction expert to review the police reports? These fees will cripple a middle class family if the family is lucky enough to be able to raise them.
A better criminal justice system would require the state to pay for both the cost of prosecution and defense. A defendant found guilty could be assessed a fine to cover the costs of his defense.
Requiring the state to pay the full cost of defense for all those accused of a crime would avoid impoverishment of middle class families trying to vindicate the presumption of innocence. It may well be that such funding would have to come from a separate state agency, perhaps one that budgeted resources for both the defense and the prosecution so as to assure some rough parity of resources. Focusing the attention of lawmakers on the total costs of prosecution each offense might force lawmakers to make tough cost-benefit decisions about whether some offenses are worth the expense. It would also inspire meaningful overview of prosecutorial discretion.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, February 17, 2010
18B War In New York?
If there is a lawyer alive in New York City surviving on $75 per hour in legal fees, he's probably selling pencils on the side and sleeping in the IRT subway. A ten hour day at such a rate yields $750; a five day week would produce $3,750 at such rates. You can't pay the rent, a secretary, insurance and all the other bells and whistless needed to keep an office afloat at that rate and still earn a living.
Yet lawyers in Manhattan are prepared to go to war over an apparent threat to the current practice of paying counsel for indigent defense at the rate of $75 per hour. The city has promulgated an RFP that has some folks worring that this will spell the end of the so-called 18B lawyer. A war council has been put together to challenge the RFP.
Scott at Simple Justice is whooping it up on behalf of the war council. He sees Big Brother's hand at work here, and the loss of autonomy and independence for the bar. What's more, he uses this proposal as an example of what's wrong with a Universal Public Defender system, guaranteeing to all Americans the right to appointed council when accused of a crime. Scott's tilting at windmills.
I don't practice in New York, so I do not know the mechanics of the 18B circuit. But I suspect one concern the city has is with bundling. Suppose you are handling arraingments at a busy Manhattan court, and you are appointed to represent, let's say, ten clients on a given day. You might spend no more than 15 minutes with each client that day, and perhaps another couple of hours, let's say, three and one half to be generous, in court. That's 150 minutes with the clients, of two and one half hours, plus three and one half hours for court time. Call it a six hour day. What would happen if you billed the City $75 per hour for each client? The day suddenly looks lucrative: your've earned $4,500. Do that for a few days a week, and Manhattan suddenly looks affordable.
Whether this amounts to fraud is an open question. On the private side, I certainly would not double bill for my time if I were on an hourly retainer. If I wait in court cooling my heels for an hour while appearing on behalf of five clients, I just haven't spent five hours of time. But many lawyers will bill each client. There's profit even in the law for economies of scale.
I'm not saying that this is what is going on in Manhattan, but if it is, it's wrong.
I share the frustration over government set rates and fees. Indeed, I am so frustrated by them that I rarely accept work as a so-called Special Public Defender. Several years ago, I resigned in disgust from the federal Criminal Justice Act panel. My office was spending too much time negotiating with court clerks over vouchers: I was spending dollars to chase pennies. But the issue of lawyer convenience sidesteps the issue I am concerned with: Why is the forgotten middle class pressed to come up with legal fees when the prosecution knocks? There ought to be parity of resources for both state and defense. Hence my call for a universal public defender system.
Scott's paen for autonomy for lawyers strikes me as quaint. Sure, we all want to hang a shingle of our own and come and go as we please, and Mr. Smith still pines away for a seat in Washington, too. But its a tough market out there. Making sure we get paid enough to survive presses us into being not just advocates for our clients, but advocates for ourselves.
Hence the war council today among members of the New York criminal defense bar. I hope the group does more than take a shot at the RFP promulgated by the city. Why not consider a class action on behalf of inigent defendants challenging whether the current rate structure provides adequate assistance of counsel? The doctrine of associational standing provides a platfrom for action as a plaintiff. It is an open question whether a lawyer can offer effective assistance of counsel if he or she cannot pay her bills.
The real issue is not whether the rate of $75 per hour should be defended at all costs. The real issue is what it takes to provide effective assistance to counsel.
Yet lawyers in Manhattan are prepared to go to war over an apparent threat to the current practice of paying counsel for indigent defense at the rate of $75 per hour. The city has promulgated an RFP that has some folks worring that this will spell the end of the so-called 18B lawyer. A war council has been put together to challenge the RFP.
Scott at Simple Justice is whooping it up on behalf of the war council. He sees Big Brother's hand at work here, and the loss of autonomy and independence for the bar. What's more, he uses this proposal as an example of what's wrong with a Universal Public Defender system, guaranteeing to all Americans the right to appointed council when accused of a crime. Scott's tilting at windmills.
I don't practice in New York, so I do not know the mechanics of the 18B circuit. But I suspect one concern the city has is with bundling. Suppose you are handling arraingments at a busy Manhattan court, and you are appointed to represent, let's say, ten clients on a given day. You might spend no more than 15 minutes with each client that day, and perhaps another couple of hours, let's say, three and one half to be generous, in court. That's 150 minutes with the clients, of two and one half hours, plus three and one half hours for court time. Call it a six hour day. What would happen if you billed the City $75 per hour for each client? The day suddenly looks lucrative: your've earned $4,500. Do that for a few days a week, and Manhattan suddenly looks affordable.
Whether this amounts to fraud is an open question. On the private side, I certainly would not double bill for my time if I were on an hourly retainer. If I wait in court cooling my heels for an hour while appearing on behalf of five clients, I just haven't spent five hours of time. But many lawyers will bill each client. There's profit even in the law for economies of scale.
I'm not saying that this is what is going on in Manhattan, but if it is, it's wrong.
I share the frustration over government set rates and fees. Indeed, I am so frustrated by them that I rarely accept work as a so-called Special Public Defender. Several years ago, I resigned in disgust from the federal Criminal Justice Act panel. My office was spending too much time negotiating with court clerks over vouchers: I was spending dollars to chase pennies. But the issue of lawyer convenience sidesteps the issue I am concerned with: Why is the forgotten middle class pressed to come up with legal fees when the prosecution knocks? There ought to be parity of resources for both state and defense. Hence my call for a universal public defender system.
Scott's paen for autonomy for lawyers strikes me as quaint. Sure, we all want to hang a shingle of our own and come and go as we please, and Mr. Smith still pines away for a seat in Washington, too. But its a tough market out there. Making sure we get paid enough to survive presses us into being not just advocates for our clients, but advocates for ourselves.
Hence the war council today among members of the New York criminal defense bar. I hope the group does more than take a shot at the RFP promulgated by the city. Why not consider a class action on behalf of inigent defendants challenging whether the current rate structure provides adequate assistance of counsel? The doctrine of associational standing provides a platfrom for action as a plaintiff. It is an open question whether a lawyer can offer effective assistance of counsel if he or she cannot pay her bills.
The real issue is not whether the rate of $75 per hour should be defended at all costs. The real issue is what it takes to provide effective assistance to counsel.
Monday, February 15, 2010
A Nice Tribute To Tony Serra
John Kindley over at People v. State has named the living lawyer who best exemplifies the ideal of a crusader standing tall for the accused. Kindley's choice? J. Tony Serra. Check out People v. State: http://www.peoplevstate.com/.
Serra is a legend. He may well be the best people's lawyer alive.
Serra doesn't own his own jet. He doesn't cultivate followers. His caseload doesn't reek of wealth and the well connected. Indeed, there is plenty about Serra that suggests he has feet of clay. He recently did federal time for tax problems all his own. And he's more than once had the government's cross hairs pointed at him.
I heard Serra speak at the Idaho Criminal Defense Lawyers Association annual meeting in 1999. I was somewhat taken aback. He stood in the conference center in Sun Valley talking about Hegel and conflict. Perhaps I was expecting more pizzazz, but he seemed almost disorganized. He mumbled, groped and stumbled through an hour's speech that left me confused.
Later that day, we had lunch at a local restaurant. I am not sure how the lunch was arranged. The entire experience was somewhat surreal. Somehow, I had been invited to speak at the conference as well. My topic was the intersection of criminal law and litigation arising under the federal civil rights act alleging police misconduct. Frankly, I tried for pizzazz and failed; I haven't been invited back.
Serra and I were given some down time together as speakers far from the madding crowd. He's a cheeseburger and fries kind of guy. I was so dumbstruck with awe during lunch that I am sure I made no impression on him whatever: just another kid working the circuit trying to make a name for himself. Now, a decade older and a touch humbler, I wish I had that hour back. I'd like to ask him more about courage and how he copes with fatigue.
I've been blessed with the opportunity to get to know some of the best renegade lawyers of our time: Gerry Spence, F. Lee Bailey (I am will not share what I learned about the O.J. case late one night in Florida over a couple of bottles of wine) and Serra. Serra did not have Spence's charisma or Bailey's gift of gab. As we ate, I struggled with a sense of my own inferiority. This man was a legend; what did I have to offer him?
The impression that I gleaned of Serra in that one lunch was one of bemused humility. Serra doesn't have the answer. He hasn't mastered the technical literature in the last case he tried. But he is well read. He still nurses the philosopher's stone, and he is still a seeker. Sitting with him, I was reminded of a film I once saw of William Kuntsler reading from Camus to a jury. "Now that's balls," I thought, and conviction: Translating the themes of great literature into the quotidian reality of a trial.
I wrote harshly about Serra and my disappointment in him years ago when he stumbled on his tax returns. What a self-righteous prig I was at the time. I am glad Serra is now out of prison, and I am glad he has attracted admirers like John Kindley. In the dark nights of the soul that become the stuff of trial, it takes a master storyteller to chart a course through the wilderness. Tony Serra is such a master. He sets a high mark for the rest of us to try to meet.
Serra is a legend. He may well be the best people's lawyer alive.
Serra doesn't own his own jet. He doesn't cultivate followers. His caseload doesn't reek of wealth and the well connected. Indeed, there is plenty about Serra that suggests he has feet of clay. He recently did federal time for tax problems all his own. And he's more than once had the government's cross hairs pointed at him.
I heard Serra speak at the Idaho Criminal Defense Lawyers Association annual meeting in 1999. I was somewhat taken aback. He stood in the conference center in Sun Valley talking about Hegel and conflict. Perhaps I was expecting more pizzazz, but he seemed almost disorganized. He mumbled, groped and stumbled through an hour's speech that left me confused.
Later that day, we had lunch at a local restaurant. I am not sure how the lunch was arranged. The entire experience was somewhat surreal. Somehow, I had been invited to speak at the conference as well. My topic was the intersection of criminal law and litigation arising under the federal civil rights act alleging police misconduct. Frankly, I tried for pizzazz and failed; I haven't been invited back.
Serra and I were given some down time together as speakers far from the madding crowd. He's a cheeseburger and fries kind of guy. I was so dumbstruck with awe during lunch that I am sure I made no impression on him whatever: just another kid working the circuit trying to make a name for himself. Now, a decade older and a touch humbler, I wish I had that hour back. I'd like to ask him more about courage and how he copes with fatigue.
I've been blessed with the opportunity to get to know some of the best renegade lawyers of our time: Gerry Spence, F. Lee Bailey (I am will not share what I learned about the O.J. case late one night in Florida over a couple of bottles of wine) and Serra. Serra did not have Spence's charisma or Bailey's gift of gab. As we ate, I struggled with a sense of my own inferiority. This man was a legend; what did I have to offer him?
The impression that I gleaned of Serra in that one lunch was one of bemused humility. Serra doesn't have the answer. He hasn't mastered the technical literature in the last case he tried. But he is well read. He still nurses the philosopher's stone, and he is still a seeker. Sitting with him, I was reminded of a film I once saw of William Kuntsler reading from Camus to a jury. "Now that's balls," I thought, and conviction: Translating the themes of great literature into the quotidian reality of a trial.
I wrote harshly about Serra and my disappointment in him years ago when he stumbled on his tax returns. What a self-righteous prig I was at the time. I am glad Serra is now out of prison, and I am glad he has attracted admirers like John Kindley. In the dark nights of the soul that become the stuff of trial, it takes a master storyteller to chart a course through the wilderness. Tony Serra is such a master. He sets a high mark for the rest of us to try to meet.
Lawyers Can Choose; Can The Middle Class?
One thing that attracts me to the criminal law is the sheer romance of it all. Just me and my wits standing between my client and catastrophe. "Bring it on," I say, although in the well of the court, a judge's steely eyes replace the glare of high noon, and thinking fast is more important than shooting fast. I love going to court, and I love trial.
But I am not at all sure that I love it for the right reasons, and as Aristotle once oberved, virtue consists of doing things for the right reason, in the right way, to the right degree, at the right time. When I am crushed by a defeat there is something like vanity at work. I nurse my sorrows in the comfort of my home; my client goes to prison. Of all the sins, pride can be the most deadly.
I was reminded of this while reading a piece in Simple Justice this morning. Scott wonders whether a universal public defender service, a new mission of mine, might work a disservice to the quality of defense. Will government control or entanglement yield mediocre standards? Will public defenders for all accused of a crime result in a further stratification of legal services, with the rich capable of paying for dream teams and the rest of us settling for waking nightmares? Won't we all be "working for the man" in such a system?
I am not persuaded Scott's suspicions are well placed.
I am defending a man in a capital felony in Connecticut. Jury selection started January 4, 2010 and we are now in evidence. There have been about four weeks of court proceedings during this period. As a result of this commitment, I have been unable to try other cases. I am doing this a special public defender appointed by the State of Connecticut.
I do not do enough appointed defense work any more. Several years ago, I quit the federal Criminal Justice Act panel in protest over the impossible delays and procedures in submitting vouchers. A paralegal of mine was nearly in tears one day when a form had been bounced back from the federal court for a third time. It made no sense to spend dollars of staff time to chase dollars of federal reimbursement. "Take these forms and shove 'em," I said. It felt good saying that. But I was probably wrong to react so.
In the Connecticut case, I am paid the sum of $100 per hour. That may seem like a lot to the non-lawyers out there, but when you consider the staff whose wages I pay, the rent, the insurance, the dues and all the other miscellany that it takes to run an office, the truth is that I lose money at this rate. But it is the top government rate in Connecticut, and, more to the point, the Office of the Public Defender has not yet even winced when I have requested additional funds for investigators or experts. There is no way my client could have afforded to pay a fee and the costs of investigators and experts.
So am I now working for the man? Hardly. I am compensated, but not enough, and my client has an experienced lawyer supported by folks who know their business. No one is telling me how to defend. No one is placing restrictions on what I can and cannot do. As always, I am limited only by the evidence code and my imagination.
I realize the fallacy in my argument thus far: a capital felony is different. What about run of the mill felonies and misdemeanors. Would I be free to defend as I imagine necessary there? The truth, I suspect, is that non-marquee crimes yield non-marquee treatment, and the purse-strings might be a little tighter in such cases.
But shouldn't clients have the right to choose whether they want to be defended at the government's expense? Why do all the choices belong to the lawyers? I don't begrudge the white-shoe types in upscale markets, where big fees can and are paid. I simply don't see those sorts of clients. I live in a small state, where most folks struggle to pay their bills, as do I. There are a few high-rolling lawyers in Connecticut, who are rumored to require that clients take home equity loans and place liens on the property of clients. Both lawyer and client are free to do this if they like. Nothing in a universal public defender system would require people to forego that choice.
It remains my conviction, however, that all Americans should have the right to counsel at government expense when the government charges them with a crime. Prosecutors have virtually unlimited discretion to bring charges, and they are armed with staffs that include not just investigators, but experts from state forensic labs and the efforts of law enforcement at the local, state and national level. Few defendants faced with this arsenal are as well equipped. Were O.J. Simpson a member of the middle class, and not a member of the sporting pantheon, I have my doubts about whether he'd be free today.
Having a unviersal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.
Not all lawyers will seek such appointment. Those who don't want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won't be facing the resources of the state armed only with the wits of the lawyer they could afford.
Scott's undoubtedly a great lawyer. His services will no doubt remain in demand. That won't change, and neither will his ability to take whatever cases he likes at whatever fee he can afford to accept. The right to counsel for all isn't about the lawyer. It's about clients and the forcing the government to bear the costs of the decisions it makes.
It is grim satisfaction for lawyers to play John Wayne when their clients are behind bars.
But I am not at all sure that I love it for the right reasons, and as Aristotle once oberved, virtue consists of doing things for the right reason, in the right way, to the right degree, at the right time. When I am crushed by a defeat there is something like vanity at work. I nurse my sorrows in the comfort of my home; my client goes to prison. Of all the sins, pride can be the most deadly.
I was reminded of this while reading a piece in Simple Justice this morning. Scott wonders whether a universal public defender service, a new mission of mine, might work a disservice to the quality of defense. Will government control or entanglement yield mediocre standards? Will public defenders for all accused of a crime result in a further stratification of legal services, with the rich capable of paying for dream teams and the rest of us settling for waking nightmares? Won't we all be "working for the man" in such a system?
I am not persuaded Scott's suspicions are well placed.
I am defending a man in a capital felony in Connecticut. Jury selection started January 4, 2010 and we are now in evidence. There have been about four weeks of court proceedings during this period. As a result of this commitment, I have been unable to try other cases. I am doing this a special public defender appointed by the State of Connecticut.
I do not do enough appointed defense work any more. Several years ago, I quit the federal Criminal Justice Act panel in protest over the impossible delays and procedures in submitting vouchers. A paralegal of mine was nearly in tears one day when a form had been bounced back from the federal court for a third time. It made no sense to spend dollars of staff time to chase dollars of federal reimbursement. "Take these forms and shove 'em," I said. It felt good saying that. But I was probably wrong to react so.
In the Connecticut case, I am paid the sum of $100 per hour. That may seem like a lot to the non-lawyers out there, but when you consider the staff whose wages I pay, the rent, the insurance, the dues and all the other miscellany that it takes to run an office, the truth is that I lose money at this rate. But it is the top government rate in Connecticut, and, more to the point, the Office of the Public Defender has not yet even winced when I have requested additional funds for investigators or experts. There is no way my client could have afforded to pay a fee and the costs of investigators and experts.
So am I now working for the man? Hardly. I am compensated, but not enough, and my client has an experienced lawyer supported by folks who know their business. No one is telling me how to defend. No one is placing restrictions on what I can and cannot do. As always, I am limited only by the evidence code and my imagination.
I realize the fallacy in my argument thus far: a capital felony is different. What about run of the mill felonies and misdemeanors. Would I be free to defend as I imagine necessary there? The truth, I suspect, is that non-marquee crimes yield non-marquee treatment, and the purse-strings might be a little tighter in such cases.
But shouldn't clients have the right to choose whether they want to be defended at the government's expense? Why do all the choices belong to the lawyers? I don't begrudge the white-shoe types in upscale markets, where big fees can and are paid. I simply don't see those sorts of clients. I live in a small state, where most folks struggle to pay their bills, as do I. There are a few high-rolling lawyers in Connecticut, who are rumored to require that clients take home equity loans and place liens on the property of clients. Both lawyer and client are free to do this if they like. Nothing in a universal public defender system would require people to forego that choice.
It remains my conviction, however, that all Americans should have the right to counsel at government expense when the government charges them with a crime. Prosecutors have virtually unlimited discretion to bring charges, and they are armed with staffs that include not just investigators, but experts from state forensic labs and the efforts of law enforcement at the local, state and national level. Few defendants faced with this arsenal are as well equipped. Were O.J. Simpson a member of the middle class, and not a member of the sporting pantheon, I have my doubts about whether he'd be free today.
Having a unviersal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.
Not all lawyers will seek such appointment. Those who don't want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won't be facing the resources of the state armed only with the wits of the lawyer they could afford.
Scott's undoubtedly a great lawyer. His services will no doubt remain in demand. That won't change, and neither will his ability to take whatever cases he likes at whatever fee he can afford to accept. The right to counsel for all isn't about the lawyer. It's about clients and the forcing the government to bear the costs of the decisions it makes.
It is grim satisfaction for lawyers to play John Wayne when their clients are behind bars.
Sunday, February 14, 2010
Lawyers For All: Sign On
It started as an inspiration and has metamorphosed into a conviction: If the state is to be represented in each and every criminal prosecution by prosecutors, experts and investigators wholly funded, then why aren't defendants? We've begun a journey toward the goal of equal justice for all by assuring that indigents have the right to a defense. Why not a public defender, or, at the very least, a state paid defender for all accused of a crime?
Sure, it sounds like a hare-brained idea at first blush. After all, services for the indigent are scarcely funded. But as a goal, no American should be required to face the state armed solely with resources he or she can muster. Lawmakers hell-bent on criminalizing their own shadows ought to be compelled to ante up for both sides of the aisle.
I've started a website called Lawyers For All. There is a link to it at the right. I hope you will read, spread the word and comment on this idea. Nothing prevents the wealthy from opting out in the same way that wealthy Britons choose to avoid the public health system. But no American should be forced to choose between a lawyer and a necessary expert. And all Americans should be able to meet the state's allegations with a team as good and as well funded as the state's. Or do we care so little for liberty and presumption of innocence?
Sure, it sounds like a hare-brained idea at first blush. After all, services for the indigent are scarcely funded. But as a goal, no American should be required to face the state armed solely with resources he or she can muster. Lawmakers hell-bent on criminalizing their own shadows ought to be compelled to ante up for both sides of the aisle.
I've started a website called Lawyers For All. There is a link to it at the right. I hope you will read, spread the word and comment on this idea. Nothing prevents the wealthy from opting out in the same way that wealthy Britons choose to avoid the public health system. But no American should be forced to choose between a lawyer and a necessary expert. And all Americans should be able to meet the state's allegations with a team as good and as well funded as the state's. Or do we care so little for liberty and presumption of innocence?
Friday, February 12, 2010
Heads A Rollin' At TLC -- What Did You Expect?
I can't tell what's going on at Gerry Spence's Trial Lawyers College. Of course, I haven't tried all that hard. Spence is stepping down and settling into the sunset. At 81, that's expected. Whether the college can survive without his charisma is an open question. Watching folks try to fill his shoes is sort like watching mules tap dance. After a moment or two, it just isn't fun any more.
But this week I received several emails from folks distressed about the doings at the college. It seems as though a group of popular staff members have been told not to return. What is going on?
Mary Peckham, Fredi Sisson, Lynne Brachter and Carl Bettinger have all been shown the door. Sisson, Brachter and Bettinger were earlier forced off the college board. But assurances were given by the new regime that these folks would remain as staff. It now turns out that is not true. Feelings are bruised. The Kool Aid is suddenly unsweetened and hard to swallow.
For those of you ignorant of the ways of God and man in DuBois, Wyoming, things work more or less as follows: A lawyer applies for admission as a student to the college. If accepted, she attends a summer program. If she knocks the socks off the staff at the college, she is invited to return as staff the following year. Thus, each year, the roster of staff persons grows. The growth is necessary as the college sponsors programs throughout the United States. Staff members attending events to "teach" do so without pay. Spectacularly successful staff people sometimes get invited to serve on the board.
Bettinger, Brachter and Sisson all worked their way onto the board. But once Gerry decided to step aside and turn the reigns over to an underling named Jude Basile, these three were "asked" to resign from the board. This past fall, Basile promised alum that these folks would remain on staff. So much for those promises.
When a new CEO takes control of a corporation, heads are expected to roll. The new top dog needs a team he can trust. It comes as no surprise when body count mounts. To the victor goes the spoils. And so they went to Basile. Some old dogs were retired, and new dogs were invited on to the board. Screw democracy: this is corporate politics spoken with a populist drawl.
But removing these folks from the board has some folks wondering where all the love went. David Tarrell, a Nebraska lawyer who writes In The Moment, http://nelawyer.blogspot.com/, is raising questions about broken promises.
What is my take on all this?, Tarrell asked the other day. Let me answer Tarrell's question with a question of my own: Can you imagine Christianity without Paul?
Sure, it takes a crucified Jesus to make a religion. That is the signal event. But the message must be delivered. Paul's gift was his turn of mind and his philosophic bent. He transformed a simple crucifixion into a message, and then he set about delivering that message throughout the ancient world. Paul was the faith's organizational genius.
I realize analogies are dangerous, and I am not going to assert that Gerry Spence is a latter-day Jesus. But I do recognize the man's charisma, and, as Max Weber taught, charisma means gift of God. Spence has unique talents. He is a great lawyer. During the course of a half century's practice, he won cases, mesmerized juries and earned the respect of his peers. But now this gift is going to seed. Can a college devoted to him survive?
Not without a Paul, and, so near as I can tell, Basile is no Paul. In the few public statements he has made since being handed the college's reins last summer, Basile has chattered about his vision and the big things the college will do. So far, these pronouncements amount to little more than hortatory blather. Basile is a great beer and pizza kind of guy, but in the dark night of the soul one looks to him in vain for inspiration. How can the college survive with a lieutenant cast in a general's role?
What's worse, the college seems to be cutting itself off from what made it distinctive. The core curriculum has been pscyhodrama, and the college has developed a cadre of top-flight instructors to teach students powerful story-telling tools using psychodrama. But in the past six months, the board has forced the lone psychodramatist from the board. There's grumbling that the psychodramatists have too much power over the curriculum. This is a dangerous tampering with the core product. When folks weren't coming to TLC events to see Spence, they were coming for the psychdramatic training. This is sort of like Frito-Lay deciding to foreswear the use of potatos. How do you sell potato chips if all you are offering is hot air?
So what do I make of the sacrifice of Bettinger, Brachter, Peckham and Sisson? They are simply the inevitable road kill that comes of corporate change. In spite of the college's railing against corporate America, its behavior is typical of corporate culture. A new CEO has been appointed by a closely-held board -- no elections in this populist heaven. Those perceived as unwilling to kiss the new emperor's ring will be shown the door. Nothing suprising here. It might just as well be Chrsyler as TLC.
I am not going to sit up nights worrying about the doings at Thunderhead Ranch. Just add the college to the list of those in the business of providing continuing education for lawyers. There's nothing wrong with these enterprises. Lawyering is tough work. There is a built-in and guaranteed market for CLE providers. Just add a new set of initials to the list of those trying to make a buck and foster referrals from the CLE game: There's NITA, NCDLA, ATLA and now, the newest kid on the block, TLC.
Kind of sad to see it come to this, though. More was promised.
But this week I received several emails from folks distressed about the doings at the college. It seems as though a group of popular staff members have been told not to return. What is going on?
Mary Peckham, Fredi Sisson, Lynne Brachter and Carl Bettinger have all been shown the door. Sisson, Brachter and Bettinger were earlier forced off the college board. But assurances were given by the new regime that these folks would remain as staff. It now turns out that is not true. Feelings are bruised. The Kool Aid is suddenly unsweetened and hard to swallow.
For those of you ignorant of the ways of God and man in DuBois, Wyoming, things work more or less as follows: A lawyer applies for admission as a student to the college. If accepted, she attends a summer program. If she knocks the socks off the staff at the college, she is invited to return as staff the following year. Thus, each year, the roster of staff persons grows. The growth is necessary as the college sponsors programs throughout the United States. Staff members attending events to "teach" do so without pay. Spectacularly successful staff people sometimes get invited to serve on the board.
Bettinger, Brachter and Sisson all worked their way onto the board. But once Gerry decided to step aside and turn the reigns over to an underling named Jude Basile, these three were "asked" to resign from the board. This past fall, Basile promised alum that these folks would remain on staff. So much for those promises.
When a new CEO takes control of a corporation, heads are expected to roll. The new top dog needs a team he can trust. It comes as no surprise when body count mounts. To the victor goes the spoils. And so they went to Basile. Some old dogs were retired, and new dogs were invited on to the board. Screw democracy: this is corporate politics spoken with a populist drawl.
But removing these folks from the board has some folks wondering where all the love went. David Tarrell, a Nebraska lawyer who writes In The Moment, http://nelawyer.blogspot.com/, is raising questions about broken promises.
What is my take on all this?, Tarrell asked the other day. Let me answer Tarrell's question with a question of my own: Can you imagine Christianity without Paul?
Sure, it takes a crucified Jesus to make a religion. That is the signal event. But the message must be delivered. Paul's gift was his turn of mind and his philosophic bent. He transformed a simple crucifixion into a message, and then he set about delivering that message throughout the ancient world. Paul was the faith's organizational genius.
I realize analogies are dangerous, and I am not going to assert that Gerry Spence is a latter-day Jesus. But I do recognize the man's charisma, and, as Max Weber taught, charisma means gift of God. Spence has unique talents. He is a great lawyer. During the course of a half century's practice, he won cases, mesmerized juries and earned the respect of his peers. But now this gift is going to seed. Can a college devoted to him survive?
Not without a Paul, and, so near as I can tell, Basile is no Paul. In the few public statements he has made since being handed the college's reins last summer, Basile has chattered about his vision and the big things the college will do. So far, these pronouncements amount to little more than hortatory blather. Basile is a great beer and pizza kind of guy, but in the dark night of the soul one looks to him in vain for inspiration. How can the college survive with a lieutenant cast in a general's role?
What's worse, the college seems to be cutting itself off from what made it distinctive. The core curriculum has been pscyhodrama, and the college has developed a cadre of top-flight instructors to teach students powerful story-telling tools using psychodrama. But in the past six months, the board has forced the lone psychodramatist from the board. There's grumbling that the psychodramatists have too much power over the curriculum. This is a dangerous tampering with the core product. When folks weren't coming to TLC events to see Spence, they were coming for the psychdramatic training. This is sort of like Frito-Lay deciding to foreswear the use of potatos. How do you sell potato chips if all you are offering is hot air?
So what do I make of the sacrifice of Bettinger, Brachter, Peckham and Sisson? They are simply the inevitable road kill that comes of corporate change. In spite of the college's railing against corporate America, its behavior is typical of corporate culture. A new CEO has been appointed by a closely-held board -- no elections in this populist heaven. Those perceived as unwilling to kiss the new emperor's ring will be shown the door. Nothing suprising here. It might just as well be Chrsyler as TLC.
I am not going to sit up nights worrying about the doings at Thunderhead Ranch. Just add the college to the list of those in the business of providing continuing education for lawyers. There's nothing wrong with these enterprises. Lawyering is tough work. There is a built-in and guaranteed market for CLE providers. Just add a new set of initials to the list of those trying to make a buck and foster referrals from the CLE game: There's NITA, NCDLA, ATLA and now, the newest kid on the block, TLC.
Kind of sad to see it come to this, though. More was promised.
Thursday, February 11, 2010
DSM V: A Challenge To Lawyers
It was inevitable, really. A new edition of the American Psychiatric Association's Diagnostic and Statistical Manuel of mental Disorders is in the works. And with it will come yet new diagnoses and disorders. The tiny corner of psychic life reserved for the reasonable person just got smaller. Perhaps it's time to admit that we're all chained to pathologies of one sort or another.
The DSM is currently in its fourth, revised, edition. A fifth edition, the product of a board of some 160 psychiatrists – itself a frightening thought – is now available for public comment. It is expected to be published in 2013.
Spend an afternoon with the DSM some time and watch the contours of the law disappear into the fuzzy boundaries of character disorders so broadly defined that we are all, from time to time, ill. Who hasn't experienced enough anger to qualify as suffering from explosive rage disorder? And who is not self-regarding enough to be called narcissistic on a bad day?
The diagnoses in the DSM have worked their way into popular culture. An old friend disappointed in decisions I had made once called me a sociopath. I responded in kind, noting a quirk or two of hers. My diagnosis? Why she was a borderline personality. These words transformed a dispute about issues into a continental divide.
Lawyers depend on the legal fiction of the "reasonable person." We'd be lost without this lodestar. We have objective standards in evaluating evidence or conduct. At the heart of our tort system are expectations about what reasonable people should and should not do. The criminal law revolves around largely unstated assumptions about the psyche of the reasonable person: it would, after all, be unthinkable to punish a sick person.
But the DSM lays waste to the claims of reason. And the new Fifth Edition will advance the battle lines even further.
The most controversial new category of diagnosis will be a designation of "at risk" for patients not yet demented or psychotic, but well on the way to becoming so. These will be difficult judgments to make, no doubt. It strikes me that we are all at risk of all the evil the world can belch. I drive, and am at risk of an accident. The cheeseburger I consume at lunch puts me at risk of heart disease. Does the weight of sorrow I carry bearing other people's sorrow's put me at risk of depression? Probably.
I once heard a wonderful story about a student in a philosophy course. The professor asked a simple question on the final examination, no doubt expecting essays on reason, experience and expectation. "What is risk?" The professor asked. The student answered with three words of his own: "This is risk." The answer was perfect.
The new DSM does not put me at risk of suffering any new malady. I suspect the risk of dementia or psychosis is as real today as it was yesterday. What the new DSM will do, however, is create a new risk of stigmatization. Your neighbor not quite crazy? Well, she is certainly at risk of becoming so. And the odd child with eccentric tastes? He may not be a borderline personality, but he may be at risk of psychosis.
The therapeutic state is about to get a potent new tool.
We lawyers and judges, in the mean time, are still stumbling along with pre-Victorian sensibilities. We believe in reason, free will and autonomy. The judgments and decisions we make reflect this black and white vision of the world. We refuse to train lawyers on the nuances of the psyche and insist on one-size-fits-all doctrines. The justice we administer is rough, too rough, we admit when the lights are turned down low and we can be candid about our craft.
The world is not populated with reasonable men and women all striving for the good. There are darker forces present in even the most benign mind, and these forces often mock the law's sterile categories, pressing ordinary people into the courts. When they arrive on the law's turf, we lawyers and judges are unable to address the nuances of what we see. Injustices are done daily. DSM V is a challenge: Isn't it time to require mental health training for lawyers?
Reprinted courtesy of the Connecticut Law Tribune.
The DSM is currently in its fourth, revised, edition. A fifth edition, the product of a board of some 160 psychiatrists – itself a frightening thought – is now available for public comment. It is expected to be published in 2013.
Spend an afternoon with the DSM some time and watch the contours of the law disappear into the fuzzy boundaries of character disorders so broadly defined that we are all, from time to time, ill. Who hasn't experienced enough anger to qualify as suffering from explosive rage disorder? And who is not self-regarding enough to be called narcissistic on a bad day?
The diagnoses in the DSM have worked their way into popular culture. An old friend disappointed in decisions I had made once called me a sociopath. I responded in kind, noting a quirk or two of hers. My diagnosis? Why she was a borderline personality. These words transformed a dispute about issues into a continental divide.
Lawyers depend on the legal fiction of the "reasonable person." We'd be lost without this lodestar. We have objective standards in evaluating evidence or conduct. At the heart of our tort system are expectations about what reasonable people should and should not do. The criminal law revolves around largely unstated assumptions about the psyche of the reasonable person: it would, after all, be unthinkable to punish a sick person.
But the DSM lays waste to the claims of reason. And the new Fifth Edition will advance the battle lines even further.
The most controversial new category of diagnosis will be a designation of "at risk" for patients not yet demented or psychotic, but well on the way to becoming so. These will be difficult judgments to make, no doubt. It strikes me that we are all at risk of all the evil the world can belch. I drive, and am at risk of an accident. The cheeseburger I consume at lunch puts me at risk of heart disease. Does the weight of sorrow I carry bearing other people's sorrow's put me at risk of depression? Probably.
I once heard a wonderful story about a student in a philosophy course. The professor asked a simple question on the final examination, no doubt expecting essays on reason, experience and expectation. "What is risk?" The professor asked. The student answered with three words of his own: "This is risk." The answer was perfect.
The new DSM does not put me at risk of suffering any new malady. I suspect the risk of dementia or psychosis is as real today as it was yesterday. What the new DSM will do, however, is create a new risk of stigmatization. Your neighbor not quite crazy? Well, she is certainly at risk of becoming so. And the odd child with eccentric tastes? He may not be a borderline personality, but he may be at risk of psychosis.
The therapeutic state is about to get a potent new tool.
We lawyers and judges, in the mean time, are still stumbling along with pre-Victorian sensibilities. We believe in reason, free will and autonomy. The judgments and decisions we make reflect this black and white vision of the world. We refuse to train lawyers on the nuances of the psyche and insist on one-size-fits-all doctrines. The justice we administer is rough, too rough, we admit when the lights are turned down low and we can be candid about our craft.
The world is not populated with reasonable men and women all striving for the good. There are darker forces present in even the most benign mind, and these forces often mock the law's sterile categories, pressing ordinary people into the courts. When they arrive on the law's turf, we lawyers and judges are unable to address the nuances of what we see. Injustices are done daily. DSM V is a challenge: Isn't it time to require mental health training for lawyers?
Reprinted courtesy of the Connecticut Law Tribune.
Sunday, February 7, 2010
Terry Harrington Owes His Liberty To Anne Danaher; His Lawyers Should Share Jackpot With Her
Terry Harrington is now a free man. And he is probably a millionaire. He owes that to a woman named Anne Danaher. According to Harrington's legal advisers, however, Ms. Danaher shouldn't be paid a dime. Shame on the legal advisers.
The name Terry Harrington might not mean anything to you. You most likely know the case as Pottawattamie County v. McGhee, the Supreme Court case involving prosecutorial misconduct withdrawn before a decision could be reached. The case was withdrawn when the county agreed to pay Harrington and another man $12 million to settle their claim that the prosecution had essentially framed them for murder by knowingly procuring false testimony. Harrington was convicted of the murder of retired police officer as a result of that testimony. He spent a quarter of a century behind bars.
Harrington was released from prison in 2003. He would still be behind bars were it not for the tireless work of Anne Danaher.
Danaher was a prison barber in the Iowa Department of Corrections. She cut the hair of men doing long stretches of time. And she listened to the men. Something about what Terry Harrington told her didn't make sense. He wasn't at the crime scene. He had an alibi. No one could have seen him present at the site of the murder. Danaher listened to Harrington and she believed him.
So she started spending her free time tracking down witnesses. She met Harrington's appellate lawyer. She even found undisclosed police reports that pointed to another suspect. She learned that prosecutors never disclosed this material to Harrington's trial lawyer. And she learned about a payment made to a key witness for the state. She took what she learned to a Waterloo lawyer named Mary Kennedy. Kennedy, too, believed in Harrington.
Danaher spent nine years of uncompensated time working on the Harrington case, eventually accumulating 27 boxes of material. Last week, Harrington's lawyers informed Danaher that she shouldn't expect a dime for the work she did on the case. She claims that Harrington promised her consideration if he ever struck the jackpot.
Danaher is bitter and blames the lawyers who ended up with the case -- Gerry Spence and several junior lawyers in the firm. "The prosecutors did it for political gain and Spence and gang are doing it for the thirty pieces of gold," she writes. Danaher claims that Spence and three lawyers in his firm, J. Douglas McCalla, Mel Orchard. III, and Larissa McCalla, want to keep her from being compensated for her work.
"I'm the perfect example of the "little guy" a woman who believed in her fellow man and dedicated her life to finding the truth and bringing a man back to life.... And the big boys want to deny me my worth. Poor Gerry, he has shown what he is all about," Danaher recently told me.
I'm sure there is posturing aplenty going on here. But let's do some simple math. Assume that the $12 million settlement went in equal shares to both plaintiffs in the case, leaving Harrington with a $6 million cut. Assume further that the rule of the high-roller applies and that the lawyers took a 50 percent contingency fee on this file, less expenses. My hunch is that Harrington's take from this settlement is somewhere on the order of about $1.5 million to $2 million.
Whether Harrington compensates Danaher for any of the work she did interests me less than the decision of Harrington's lawyers to leave Danaher in the cold. After all, Harrington's the one who must now live out the remainder of his days shackled to the memory of the living Hell he has endured. That he most likely received only a third or so of the sum due him is troubling.
Shouldn't the lawyers who enjoyed this multi-million dollar bonanza show some generosity to Danaher?
"Oh, but the Rules of Professional Conduct prohibit lawyers from entering partnerships with non-lawyers," the lawyers may chortle in high-minded glee. "We can't cut her in on our share without running afoul of the rules."
It's not that simple. The lawyers did not form a partnership with Danaher. However, Danaher and the lawyers were on the same side. Both were seeking justice, right? Both were on the side of the little guy, railroaded and left for dead by corrupt government officials, right? Justice was done, right? Well why not let the financial benefits that come with this particular incarnation of justice flow in Danaher's direction as well? Nothing prevents the lawyers from recognizing her contribution from their share of the winnings. I mean, isn't this the same firm loosely associated with a Trial Lawyer's College that routinely shakes down attendees for all the cash it can muster to make sure that "people's lawyers" can get adequate training to fight evil? People's investigators have to eat, too.
Terry Harrington's lawyers did a good thing for their client. They fought hard and well, and they won a huge settlement for men horribly wronged. But the hardwork the lawyers did would not have been possible without Anne Danaher. Refusing to honor her contribution is small and petty. It makes the lawyers look like money-grubbing hypocrites.
"I'll fight ... because I'm alive with the warrior spirit and I'm willing to stand in integrity for the truth and go to battle." That's what Danaher says of her dispute regarding compensation.
That's the sort of talk you'd expect to hear from people's lawyers. But in this case all were hearing is the sound of a bank vault closing. Sad. Sad, but predictable. Why not let us hear the sound of a pen's nib hitting paper: Write Danaher a check and share the wealth, Gerry. It's the right thing to do.
The name Terry Harrington might not mean anything to you. You most likely know the case as Pottawattamie County v. McGhee, the Supreme Court case involving prosecutorial misconduct withdrawn before a decision could be reached. The case was withdrawn when the county agreed to pay Harrington and another man $12 million to settle their claim that the prosecution had essentially framed them for murder by knowingly procuring false testimony. Harrington was convicted of the murder of retired police officer as a result of that testimony. He spent a quarter of a century behind bars.
Harrington was released from prison in 2003. He would still be behind bars were it not for the tireless work of Anne Danaher.
Danaher was a prison barber in the Iowa Department of Corrections. She cut the hair of men doing long stretches of time. And she listened to the men. Something about what Terry Harrington told her didn't make sense. He wasn't at the crime scene. He had an alibi. No one could have seen him present at the site of the murder. Danaher listened to Harrington and she believed him.
So she started spending her free time tracking down witnesses. She met Harrington's appellate lawyer. She even found undisclosed police reports that pointed to another suspect. She learned that prosecutors never disclosed this material to Harrington's trial lawyer. And she learned about a payment made to a key witness for the state. She took what she learned to a Waterloo lawyer named Mary Kennedy. Kennedy, too, believed in Harrington.
Danaher spent nine years of uncompensated time working on the Harrington case, eventually accumulating 27 boxes of material. Last week, Harrington's lawyers informed Danaher that she shouldn't expect a dime for the work she did on the case. She claims that Harrington promised her consideration if he ever struck the jackpot.
Danaher is bitter and blames the lawyers who ended up with the case -- Gerry Spence and several junior lawyers in the firm. "The prosecutors did it for political gain and Spence and gang are doing it for the thirty pieces of gold," she writes. Danaher claims that Spence and three lawyers in his firm, J. Douglas McCalla, Mel Orchard. III, and Larissa McCalla, want to keep her from being compensated for her work.
"I'm the perfect example of the "little guy" a woman who believed in her fellow man and dedicated her life to finding the truth and bringing a man back to life.... And the big boys want to deny me my worth. Poor Gerry, he has shown what he is all about," Danaher recently told me.
I'm sure there is posturing aplenty going on here. But let's do some simple math. Assume that the $12 million settlement went in equal shares to both plaintiffs in the case, leaving Harrington with a $6 million cut. Assume further that the rule of the high-roller applies and that the lawyers took a 50 percent contingency fee on this file, less expenses. My hunch is that Harrington's take from this settlement is somewhere on the order of about $1.5 million to $2 million.
Whether Harrington compensates Danaher for any of the work she did interests me less than the decision of Harrington's lawyers to leave Danaher in the cold. After all, Harrington's the one who must now live out the remainder of his days shackled to the memory of the living Hell he has endured. That he most likely received only a third or so of the sum due him is troubling.
Shouldn't the lawyers who enjoyed this multi-million dollar bonanza show some generosity to Danaher?
"Oh, but the Rules of Professional Conduct prohibit lawyers from entering partnerships with non-lawyers," the lawyers may chortle in high-minded glee. "We can't cut her in on our share without running afoul of the rules."
It's not that simple. The lawyers did not form a partnership with Danaher. However, Danaher and the lawyers were on the same side. Both were seeking justice, right? Both were on the side of the little guy, railroaded and left for dead by corrupt government officials, right? Justice was done, right? Well why not let the financial benefits that come with this particular incarnation of justice flow in Danaher's direction as well? Nothing prevents the lawyers from recognizing her contribution from their share of the winnings. I mean, isn't this the same firm loosely associated with a Trial Lawyer's College that routinely shakes down attendees for all the cash it can muster to make sure that "people's lawyers" can get adequate training to fight evil? People's investigators have to eat, too.
Terry Harrington's lawyers did a good thing for their client. They fought hard and well, and they won a huge settlement for men horribly wronged. But the hardwork the lawyers did would not have been possible without Anne Danaher. Refusing to honor her contribution is small and petty. It makes the lawyers look like money-grubbing hypocrites.
"I'll fight ... because I'm alive with the warrior spirit and I'm willing to stand in integrity for the truth and go to battle." That's what Danaher says of her dispute regarding compensation.
That's the sort of talk you'd expect to hear from people's lawyers. But in this case all were hearing is the sound of a bank vault closing. Sad. Sad, but predictable. Why not let us hear the sound of a pen's nib hitting paper: Write Danaher a check and share the wealth, Gerry. It's the right thing to do.
Stickiness and Legal Fees
The contrast between the law's soaring ideals and the more prosaic reality of paying the bills intersect at the moment the attorney-client relationship is formed. Yet in all the great and not so great fiction about lawyers and the law, fees are almost never discussed. Indeed, even the celebrated cases that become the staple of folklore leave the question of fees largely unaddressed. How much, for example, did O.J. Simpson or Imelda Marcos really pay for their defense? Why the silence about fees?
I suspect it has to do with a certain moral ambiguity. There is nothing edifying or easy about asking a person in trouble for money. The ideal of a lawyer as crusader for justice does not easily square with the image of the esquire as businessman. "Sure, sir, I will be happy to defend you, but first on the matter of my fee ..." This is a difficult transition.
Our firm typically charges flat fees for criminal cases. I wonder, sometimes, whether that makes sense. The client buys an ideal, and with it the limitless sense that the lawyer is available 24-7 to discuss his thoughts, feelings, fears and goals. The lawyer, on the other hand, remains bounded by the realities of running a law practice: the demands of trial in another's case, the need to pay the bills, manage a staff and attend to the needs of his other clients.
When these realities collide, the results are rarely pretty.
Scott at Simple Justice has written in recent weeks about the demands of the so-called big fee client. I read his pieces with a gnawing sense of frustration. There really ought not to be multiple standards for clients: all, regardless of fee, should get the same level of commitment and care. But Scott raises an honest point: the market in human suffering is price sensitive. Client's with unlimited means get unlimited time from their lawyers; those with more limited means get less time. The reason is simple: like it or not, time can be transformed into money, and necessity governs a law practice.
The other day a new client of ours expressed frustration that he had not seen enough of me. I've been in trial in capital felony case since early January. When my firm was retained in the new client's case, we were explicit that associates cover pre-trials when I am unavailable. Where I sit, being in trial in a capital felony is a fairly compelling reason not to be in a pre-trial elsewhere. The client thinks otherwise. He needs reassurance, validation of his feelings, face time. He's paid for a lawyer, hasn't he?
But what is the nature of the fee and the relationship between lawyer and client? We're not therapists, at least we're not trained to be therapists. And what is the nature of the fee relationship? A flat fee filtered through the limitless demands for assurances unrelated to the representation quickly transforms the fee into less than the minimum wage.
I once read a book by a famous lawyer who reported that in the days of his youth, when he was just starting out, he'd bill insurance companies for every hour he thought about the case he was defending, even time spent in the shower. I've wondered about that in recent weeks. I am a special public defender in a capital case, and I am paid a rate far below what it takes for me to make ends meet in my firm. But it is the sort of work I love, and so I do it for love. But as I lay abed tossing and turning the other night I wondered whether I should bill for restless night. You see, all night I was honing questions and angles of approach for a cross examination yet to come. I was not so much thinking about the case as the case had, as cases do, taken possession of me. The evidence is never really far from my mind now, no matter what I do. Do I bill for this time?
It seems like a reach to bill for a bad night's sleep: Would I charge a blended rate of half the state's hourly rate?
Not long ago, I had a big fee case that lasted for three-plus years. The client sometimes emailed half-a-dozen times a day. The client challenged every premise of the law and had a particular angle on each fact. Never content to simply accept my assessment, hours, hundreds of hours, were spent on what I thought were wasteful research and debate. But the client demanded the time and paid the bills. Yet even there, I left many hours unbilled. The sheer waste of answering the same questions over and over again overwhelmed me.
So here's the sad reality of the law: We breed expectations in clients that they cannot afford. And we lock ourselves into commitments that, in some cases, we cannot afford to honor. The cases in which this happens most often involve clients all sharing a characteristic I call stickiness: They are the sort who ask a question, get the answer, and then conceive another question. When that question is answered, another question arises and so the dance goes, on and on and on and on into infinity. A sticky client's needs are eternal, but their checkbook rarely is.
How to balance the needs of clients and the need of a firm for fees is a challenge I have yet to master after many years of trying. It is a discouraging reality that even legal fiction refuses to address.
I suspect it has to do with a certain moral ambiguity. There is nothing edifying or easy about asking a person in trouble for money. The ideal of a lawyer as crusader for justice does not easily square with the image of the esquire as businessman. "Sure, sir, I will be happy to defend you, but first on the matter of my fee ..." This is a difficult transition.
Our firm typically charges flat fees for criminal cases. I wonder, sometimes, whether that makes sense. The client buys an ideal, and with it the limitless sense that the lawyer is available 24-7 to discuss his thoughts, feelings, fears and goals. The lawyer, on the other hand, remains bounded by the realities of running a law practice: the demands of trial in another's case, the need to pay the bills, manage a staff and attend to the needs of his other clients.
When these realities collide, the results are rarely pretty.
Scott at Simple Justice has written in recent weeks about the demands of the so-called big fee client. I read his pieces with a gnawing sense of frustration. There really ought not to be multiple standards for clients: all, regardless of fee, should get the same level of commitment and care. But Scott raises an honest point: the market in human suffering is price sensitive. Client's with unlimited means get unlimited time from their lawyers; those with more limited means get less time. The reason is simple: like it or not, time can be transformed into money, and necessity governs a law practice.
The other day a new client of ours expressed frustration that he had not seen enough of me. I've been in trial in capital felony case since early January. When my firm was retained in the new client's case, we were explicit that associates cover pre-trials when I am unavailable. Where I sit, being in trial in a capital felony is a fairly compelling reason not to be in a pre-trial elsewhere. The client thinks otherwise. He needs reassurance, validation of his feelings, face time. He's paid for a lawyer, hasn't he?
But what is the nature of the fee and the relationship between lawyer and client? We're not therapists, at least we're not trained to be therapists. And what is the nature of the fee relationship? A flat fee filtered through the limitless demands for assurances unrelated to the representation quickly transforms the fee into less than the minimum wage.
I once read a book by a famous lawyer who reported that in the days of his youth, when he was just starting out, he'd bill insurance companies for every hour he thought about the case he was defending, even time spent in the shower. I've wondered about that in recent weeks. I am a special public defender in a capital case, and I am paid a rate far below what it takes for me to make ends meet in my firm. But it is the sort of work I love, and so I do it for love. But as I lay abed tossing and turning the other night I wondered whether I should bill for restless night. You see, all night I was honing questions and angles of approach for a cross examination yet to come. I was not so much thinking about the case as the case had, as cases do, taken possession of me. The evidence is never really far from my mind now, no matter what I do. Do I bill for this time?
It seems like a reach to bill for a bad night's sleep: Would I charge a blended rate of half the state's hourly rate?
Not long ago, I had a big fee case that lasted for three-plus years. The client sometimes emailed half-a-dozen times a day. The client challenged every premise of the law and had a particular angle on each fact. Never content to simply accept my assessment, hours, hundreds of hours, were spent on what I thought were wasteful research and debate. But the client demanded the time and paid the bills. Yet even there, I left many hours unbilled. The sheer waste of answering the same questions over and over again overwhelmed me.
So here's the sad reality of the law: We breed expectations in clients that they cannot afford. And we lock ourselves into commitments that, in some cases, we cannot afford to honor. The cases in which this happens most often involve clients all sharing a characteristic I call stickiness: They are the sort who ask a question, get the answer, and then conceive another question. When that question is answered, another question arises and so the dance goes, on and on and on and on into infinity. A sticky client's needs are eternal, but their checkbook rarely is.
How to balance the needs of clients and the need of a firm for fees is a challenge I have yet to master after many years of trying. It is a discouraging reality that even legal fiction refuses to address.
Friday, February 5, 2010
Ghostwritten Blogs? What's The Fuss?
Blawgosphere purists are in an uproar about the practice of some lawyers who use ghostwriters to write material for their blogs. I don't see what the big deal is. Does anyone really protest when a newspaper prints unsigned editorials? It's the masthead that matters.
I confess to a wayward youth. I ended up at Columbia in graduate school with a cushy fellowship but no idea whatsoever of a career path. So I taught for a few years, until I realized that I did not like teaching. My first job after ten years of college and graduate school was editorial writing. I wrote for two Connecticut dailies for a period of five years.
It was a great job in some respects. I'd waltz into the office about nine or so and read a bunch of newspapers. There'd be a mid-morning editorial board meeting, lunch and then an afternoon to research and write an opinion for the editorial board. But it used to grate on me to write anonymously. I envied the columnists who wrote under their own names. I'd rather be George Will or Charles Krauthammer than, as I was, The Hartford Courant or the Waterbury American.
A decade ago, I finally got a chance to become a columnist. Granted, my readership is small, and I am not syndicated coast to coast. I appear weekly in s small legal newspaper, The Connecticut Law Tribune. But I have regular readers, and I enjoy it.
But what is it that I enjoy about it? In part, it is the act of writing. There is intrinsic satisfaction in organizing impressions and trying to find just the right way to put something. But I am no stylist. I'm a first-draft kind of guy. My opinions aren't literature. When I was an editorial writer, I always squabbled with the editors.
But I also enjoy the influence that comes from having a column.
A few summers ago, I decided to quit writing. I wrote a farewell column, and was set to move on. I was stunned by the number of folks who called or wrote to express disappointment; even judges, whom I routinely prod, expressed regret. One asked me to reconsider and to continue writing. So I resumed the column.
Such influence as I possess is a mystery to me. I think it is in part a function of longevity. Writing weekly for a decade creates an expectation that I will be around for a while. But, tell me, truly, would anyone really notice if I hired a ghostwriter to mail my opinions in for me? Wouldn't my influence by the same?
I am aware of a Connecticut lawyer who does just that. A professional journalist writes pieces for him, and then sets about seeking to place them in publications. The journalist even arranges television appearances for the lawyer. Sure, at some level this offends the purist in me, but what, really, is the problem? Isn't the lawyer doing what newspaper editorial pages do all the time? He wants influence, so he hires a writer, slaps his name and mug on the column, and appears to be a wise and well-written soul.
Blogs provide instant gratification for the scribbling class. It yields influence of a sort, too. We can all become columnists sans editors. Blogging is a great way to express yourself, to strut your stuff, to cast what shadow you can. If some lawyers want to hire ghostwriters to help them splash in this puddle of quick and easy thrills, let them. There is nothing deceptive about endorsing the work product of another and making it your own: I have associates write briefs for me all the time, but once my name goes on the brief, I signify that I had adopted their work as my own.
So ghost on, I say. Let the purists fuss and fret. It doesn't really matter in this the most transient of all written worlds. We're all here for reasons all our own. That others read at all is the thrill.
I confess to a wayward youth. I ended up at Columbia in graduate school with a cushy fellowship but no idea whatsoever of a career path. So I taught for a few years, until I realized that I did not like teaching. My first job after ten years of college and graduate school was editorial writing. I wrote for two Connecticut dailies for a period of five years.
It was a great job in some respects. I'd waltz into the office about nine or so and read a bunch of newspapers. There'd be a mid-morning editorial board meeting, lunch and then an afternoon to research and write an opinion for the editorial board. But it used to grate on me to write anonymously. I envied the columnists who wrote under their own names. I'd rather be George Will or Charles Krauthammer than, as I was, The Hartford Courant or the Waterbury American.
A decade ago, I finally got a chance to become a columnist. Granted, my readership is small, and I am not syndicated coast to coast. I appear weekly in s small legal newspaper, The Connecticut Law Tribune. But I have regular readers, and I enjoy it.
But what is it that I enjoy about it? In part, it is the act of writing. There is intrinsic satisfaction in organizing impressions and trying to find just the right way to put something. But I am no stylist. I'm a first-draft kind of guy. My opinions aren't literature. When I was an editorial writer, I always squabbled with the editors.
But I also enjoy the influence that comes from having a column.
A few summers ago, I decided to quit writing. I wrote a farewell column, and was set to move on. I was stunned by the number of folks who called or wrote to express disappointment; even judges, whom I routinely prod, expressed regret. One asked me to reconsider and to continue writing. So I resumed the column.
Such influence as I possess is a mystery to me. I think it is in part a function of longevity. Writing weekly for a decade creates an expectation that I will be around for a while. But, tell me, truly, would anyone really notice if I hired a ghostwriter to mail my opinions in for me? Wouldn't my influence by the same?
I am aware of a Connecticut lawyer who does just that. A professional journalist writes pieces for him, and then sets about seeking to place them in publications. The journalist even arranges television appearances for the lawyer. Sure, at some level this offends the purist in me, but what, really, is the problem? Isn't the lawyer doing what newspaper editorial pages do all the time? He wants influence, so he hires a writer, slaps his name and mug on the column, and appears to be a wise and well-written soul.
Blogs provide instant gratification for the scribbling class. It yields influence of a sort, too. We can all become columnists sans editors. Blogging is a great way to express yourself, to strut your stuff, to cast what shadow you can. If some lawyers want to hire ghostwriters to help them splash in this puddle of quick and easy thrills, let them. There is nothing deceptive about endorsing the work product of another and making it your own: I have associates write briefs for me all the time, but once my name goes on the brief, I signify that I had adopted their work as my own.
So ghost on, I say. Let the purists fuss and fret. It doesn't really matter in this the most transient of all written worlds. We're all here for reasons all our own. That others read at all is the thrill.
Thursday, February 4, 2010
The Little Things Really Do Matter
I was standing on line in a courthouse the other day, waiting for my turn through the metal detector. These waits never really bother me. Courthouses can be violent places. I appreciate the job done by judicial marshals to protect my back.
But then someone waltzed by. The marshals said hello. The metal detecter bleeped and belched. But no one stopped the walker. It turns out that he worked at the courthouse, in the Public Defender's office.
I understand why the Public Defender was not required to stop, empty his pockets, put his belongings through the metal detector, and then, almost inevitably, have a portable metal detector passed over his body. The marshals knew him.
What I didn't understand is why I was treated differently. The marshals know me, too. I go to that courthouse often enough to be on a first name basis with several of the men and women providing security. Why, I wonder, is a visiting lawyer treated differently from one who works in the building?
But I let it pass. I was running late for court.
I was running late because I could not find parking in the courthouse lot. I had arrived a little late that day, having been stuck in traffic. All the spots were filled, except for a few in the area designated for courthouse employees. Even the spots for jurors all seemed to be filled.
I wondered, as I looked at those empty spots next to the building, why lawyers in trial in a courthouse aren't extended parking privileges. After all, I was busy at work in the building, picking a jury in a capital case. Those are pretty high stakes, even if the state was not electing to try to kill my client. What would be the harm of permitting lawyers in trial in a courthouse to park with those employed in the courthouse?
Because I could not find parking in the lot, I searched the streets near the courthouse, finally settling on a spot a block of so away.
I could use the exercise. Walking is good for the soul. But I grumbled some as I had both a heavy briefcase and a load of clothing for my client to carry. The clothing consisted of a hanger with a couple pair of fresh-pressed pants draped in a dry-clear's plastic, and a box of starched shirts. My client, you see, is incarcerated. The care and cleaning of pants, shirts, ties and jackets is part of my job.
I stumbled up to the courthouse with my load and gave the clean clothing to the marshal at the metal detector. The items passed through machine without a bleep. Graciously, the marshal took the clothing into the lockup to present to my client.
I did not think anything of this. Several weeks before, I had dropped off a larger bundle of clothing for my client. The marshal's took it, gave my client a choice about what to wear, and kept the balance in the bowels of the court. At the end of each week, I was given dirty laundry by the marhsals to take with me.
"Norm," a marshal said later that day, blushing, "the boss tells me we don't have the room to store your client's clothing anymore." What changed?", I asked. "I dropped off less today than I left a few weeks ago."
"I know," was the response. "I am just following orders."
At day's end, I went to retrieve the extra clothing. To my surprise, I found it left in a public area, almost casually tossed on a table as though it were garbage.
So much for civility in the courts. It occurred to me all at once that the chief marshal was most likely offended that an incarcerated man would have dry-cleaned clothes delivered to a courthouse. There was no problem storing the clothing two weeks earlier, when I delivered them. A petty soul struts that courthouse.
So I continue on in a lengthy trial and marvel at double standards. Some lawyers working at the building walk in unmolested. They park near the building. And it suddenly becomes onerous to store dry-cleaned clothes. Sure, these are all petty indignities. But they add up and make me wonder why the courthouses are permitted to operate so blatantly under double standards.
Reprinted courtesy of The Connecticut Law Tribune.
But then someone waltzed by. The marshals said hello. The metal detecter bleeped and belched. But no one stopped the walker. It turns out that he worked at the courthouse, in the Public Defender's office.
I understand why the Public Defender was not required to stop, empty his pockets, put his belongings through the metal detector, and then, almost inevitably, have a portable metal detector passed over his body. The marshals knew him.
What I didn't understand is why I was treated differently. The marshals know me, too. I go to that courthouse often enough to be on a first name basis with several of the men and women providing security. Why, I wonder, is a visiting lawyer treated differently from one who works in the building?
But I let it pass. I was running late for court.
I was running late because I could not find parking in the courthouse lot. I had arrived a little late that day, having been stuck in traffic. All the spots were filled, except for a few in the area designated for courthouse employees. Even the spots for jurors all seemed to be filled.
I wondered, as I looked at those empty spots next to the building, why lawyers in trial in a courthouse aren't extended parking privileges. After all, I was busy at work in the building, picking a jury in a capital case. Those are pretty high stakes, even if the state was not electing to try to kill my client. What would be the harm of permitting lawyers in trial in a courthouse to park with those employed in the courthouse?
Because I could not find parking in the lot, I searched the streets near the courthouse, finally settling on a spot a block of so away.
I could use the exercise. Walking is good for the soul. But I grumbled some as I had both a heavy briefcase and a load of clothing for my client to carry. The clothing consisted of a hanger with a couple pair of fresh-pressed pants draped in a dry-clear's plastic, and a box of starched shirts. My client, you see, is incarcerated. The care and cleaning of pants, shirts, ties and jackets is part of my job.
I stumbled up to the courthouse with my load and gave the clean clothing to the marshal at the metal detector. The items passed through machine without a bleep. Graciously, the marshal took the clothing into the lockup to present to my client.
I did not think anything of this. Several weeks before, I had dropped off a larger bundle of clothing for my client. The marshal's took it, gave my client a choice about what to wear, and kept the balance in the bowels of the court. At the end of each week, I was given dirty laundry by the marhsals to take with me.
"Norm," a marshal said later that day, blushing, "the boss tells me we don't have the room to store your client's clothing anymore." What changed?", I asked. "I dropped off less today than I left a few weeks ago."
"I know," was the response. "I am just following orders."
At day's end, I went to retrieve the extra clothing. To my surprise, I found it left in a public area, almost casually tossed on a table as though it were garbage.
So much for civility in the courts. It occurred to me all at once that the chief marshal was most likely offended that an incarcerated man would have dry-cleaned clothes delivered to a courthouse. There was no problem storing the clothing two weeks earlier, when I delivered them. A petty soul struts that courthouse.
So I continue on in a lengthy trial and marvel at double standards. Some lawyers working at the building walk in unmolested. They park near the building. And it suddenly becomes onerous to store dry-cleaned clothes. Sure, these are all petty indignities. But they add up and make me wonder why the courthouses are permitted to operate so blatantly under double standards.
Reprinted courtesy of The Connecticut Law Tribune.
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