This is certainly an odd week to be hosting the MLK Day edition of Blawg Review and almost all of it has to do with the events in Arizona, late last week. There will be much written tomorrow, juxtaposing the powerful non-violent philosophy employed by Dr. King with the all-too-violent assault on democracy in Tuscon. I will attempt to supplement this post throughout the day tomorrow as posts are written and published. A reminder, as in years past (#91, #143, #247), that it is incredibly difficult to find a unifying theme for a Blawg Review such as this, so the topics and posts below aren’t specifically linked to any neat idea, but merely a clustering to bring a semblance of coherence to my usual ramblings.
Being fully cognizant of Dr. King’s approach to life and his likely frowning upon my taking joy in the misery of others, I’ll give you the first link of this edition of BR before I get to Dr. King and his legacy:
Tom DeLay, welcome to the receiving end of your policies:
The system has eaten one of it’s own. The Hammer got 3 to do, and 5 for 10. The same tuff on crime ethos that Tom championed for years has finally bitten him in the ass. Here’s newly minted felon, Tom DeLay, on crime
Robert Guest, proceeding to list all the “smart on crime” bills and initiatives DeLay voted against. Okay, now that I’ve gotten that out of my system, onto the serious stuff.
From the “We Really Should Pay Attention to Dr. King’s Message Again” category:
Violence as a strategy for social change in America is nonexistent. All the sound and fury seems but the posturing of cowards whose bold talk produces no action and signifies nothing.
Dr. King, writing in 1966. Never have those words seemed more relevant than this week. All of you know the story by now, so I won’t bore you with details, but maybe the close temporal proximity of these two events is just what the country needs to get a grip on its increasingly vitriolic hyperbole in political debate.
But more than mourning the loss of the abstract concept of civil discourse, it would serve us well to mourn the loss of six lives, among them a promising 9 year old and a reputable public servant. Chief Justice John Roberts issued this statement:
Chief Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction, as attorney and judge, for more than 35 years…Chief Judge Roll’s death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it.
Judge Roll, an advocate for greater resources for the courts, had been the subject of threats in the past, a trend that seems to be rising. Although not a traditional “blawg”, Garrett Epps, writing at the Atlantic, has this terrific post on the Giffords shooting and the impact that SCOTUS’ decisions in Heller and McDonald have had on further enshrining guns and gun culture into our society:
I’m not saying, either, that the Court should “change” the Second Amendment if the Justices think it has bad consequences; I am saying that in every new legal question, every new claim for definition of a constitutional right, there is and must be a heavy dose of practical analysis as well as historical learning and textual parsing. There were no Glocks and no 33-round magazines in 1789; there were few crowded cities, no drug problems, and no massive firearms industry pumping out new weapons. Applying the “right to bear arms” to these new weapons and new situations really does require careful balancing.
This may be wishful thinking. My salient intellectual flaw is optimism; I like to think that judges, even those I disagree with, are in fact judges, who recognize that law must be applied to facts. It may be that this Court includes ideologues who, like the Bourbons of France, have learned nothing and forgotten nothing. But there may not be five of them.
I also like to think that constitutional law can recognize the special place of guns in American history while also making it less likely that judges, legislators, and nine-year-old girls will be gunned down if they go to the supermarket. Every extension of gun rights by the Court–and every thump of the formalist tub about the fundamental right to a Speedloader–convinces people more fully that it’s normal and sustainable to live a society where the strange guy in the taxi is carrying a Glock and 90 bullets.
The evidence is pretty clear that it is not.
It seems that the shooting has also spurred an interesting debate on the role of the First Amendment and there, it seems, has been some talk on how to curb vitriolic speech. Eoin O’Dell has a collection of the coverage and offers his own thoughts. Interestingly enough, during that bizarre show on the floor of the house where the Constitution was read – for hours – it was Rep. Giffords who read out portions of the First Amendment (and do you know how much restraint it took not to make a Sad Boehner joke?):
On a similar note, Rick Horowitz writes today about freedom and why that’s not what’s killing people. Speaking of freedom, John Green, father of slain 9-year old Christina Green, has this exceptional quote, via Popehat who recognizes the strength of character of Mr. Green:
This shouldn’t happen in this country, or anywhere else, but in a free society, we’re going to be subject to people like this. I prefer this to the alternative.
It seems, though, that while Mr. Green and many others get the concept of freedom in order to maintain a strong society, the government does not. Remember the Patriot Act? It’s still out there, steelin yor liberteez, and it has come time for yet another perfunctory extension without any debate, national or otherwise.
Of course, since this is a blog about criminal law, I would be remiss to not end this section with a note about Loughner’s lawyer, Judy Clarke. Eric Turkewitz mentioned her in his post on the heroes of the Arizona massacre, reminding us to celebrate the defense lawyer:
Why celebrate the defense lawyer? Because here is a person that will:
* Represent a hated individual;
* Receive death threats from other wackos out there;
* Be outgunned by the Department of Justice;
* And move from a private practice in Southern California to Arizona in order to do it, and do it for public dollars as opposed to more lucrative private ones.
And while we’re on the broad subject of a free and open society, let us not forget Julian Assange and the ongoing Wikileaks saga. Earlier this week, a Wikileaks volunteer was detained at an American airport, attempting to re-enter the country after a vacation. He tweeted his experience, and this one in particular made me smirk:
Twitter, incidentally, had been the recipient of subpoenas ordering the release of information related to the accounts of Wikileaks supporters and Julian Assange. As this Wired piece cleverly states, Twitter beta-tested a new feature without telling anyone: a spine. That’s because the subpoena was accompanied by an apparently standard gag order, preventing Twitter from revealing the fact of the subpoena even to those who account information was sought:
To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.
Scott Greenfield took note, writing favorably about the actions of Twitter’s legal counsel, Alexander Macgillivray:
There isn’t a criminal law specialist at major law firm in this country who would have advised this fledgling behemoth to fight the government. There isn’t a former associate fed into the corporate counsel system who would have stood tall. Despite the inability to offer straight advice at almost any other juncture, on their they would universally agree: Don’t piss off the government to save someone else’s butt. Not one. Well, maybe one.
Alexander Macgillivray must not have gotten the memo. Instead of stepping onto the slippery slope of government obsequiousness and risk aversion, What was he thinking? Princeton and Harvard Law educated, with some Silicon Valley law firm time behind him before he jumped to Google, then Twitter, one might expect him to toe the line, know his place, advise his enterprise to not make waves.
Instead, he took a stand and protected the privacy of twitter users.
Glenn Greenwald has more, including a copy of the order. Finally, Antonin Pribetic wrote an excellent post on the thorny issue of just who has personal jurisdiction over Julian Assange and also in the same post has a great roundup of the latest legal angles in the Assange saga.
From the “I don’t think you understand who Dr. King was” category: this week Jeh C. Johnson, the Defense Department’s general counsel had this to say:
I believe that if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation’s military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack.
Yep, that’s exactly what he said in this speech:
If we assume that life is worth living and that man has a right to survive, then we must find an alternative to war. In a day when vehicles hurtle through outer space and guided ballistic missiles carve highways of death through the stratosphere, no nation can claim victory in war. A so-called limited war will leave little more than a calamitous legacy of human suffering, political turmoil, and spiritual disillusionment. A world war – God forbid! – will leave only smoldering ashes as a mute testimony of a human race whose folly led inexorably to ultimate death.
Yes. One is just like the other. And because no post here at “APD” would be complete without many, many videos, here’s the powerful voice of Dr. King:
From the “These Were Your Rights; Remember Them Well” category: Radley Balko has this write up on oral argument [Orin Kerr provides his thoughts here] before SCOTUS in Kentucky v. King, a case that will further erode decide the scope of the “exigent circumstances” exception to the Fourth Amendment. CrimLaw has this listing of all the pending criminal justice related cases in the Supreme Court and boy are there a lot of rights hanging in the balance.
David “Hollywood” Feige linked to this NYT story about the tortured (and profitable) bail process in New York, which often leads to the exact opposite of what bail is supposed to do: disenfranchising the poor further and leading them to be locked up, rather than free:
Vague laws and insufficient oversight have allowed some bondsmen in New York to return defendants to jail for questionable or unspecified reasons, and then withhold thousands of dollars to which they may not be entitled, according to lawyers, judges, state regulators and even some bondsmen.
Those cases turn the system on its head: Those who are supposed to give poor defendants a shot at freedom while their cases are pending are instead the ones locking them up and disenfranchising them further.
The Agitator, again, writing about the story of a botched DEA raid in the Hudson Valley, where the federal agents broke into and terrorized the occupants of the wrong home. This wasn’t a “may we enter your home and poke around?” raid. This was a “we’re going to make your 8th grade daughter vomit and faint” raid:
The officers were screaming for someone named Michael, McKay said. When he tried to explain that no one named Michael lived at the house, McKay said the police pulled him outside his home in his underwear in the freezing cold.
McKay said officers yanked his eighth-grade daughter out of her bed at gunpoint. The girl later vomited, fainted and had an asthma attack.
Don’t you feel safe now?
Scott Greenfield writes about a decision by the Texas Court of Criminal Appeals that effectively ends litigation on the constitutionality of the death penalty:
In the case of John Edward Green, in whose name all of this is happening for the benefit of the rest of us as well as him, a trial will be had. During the trial, issues may be raised about the quality and validity of the evidence being used to convict him. Those issues will be constrained by the concepts of materiality and relevance. That’s how evidence works.
Should Green be convicted of murder, the death penalty will be the focus of punishment. By then, however, the questions of whether a person can be constitutionally put to death based on crap evidence will be moot because he’s already been convicted of the crime.
The Texas Court of Appeals says that the issues that were being raised and presented to Judge Fine could be resolved at “the appropriate time.” They say this knowing that there will never be an appropriate time. Case closed.
From the “While We’re on Texas” category: the big story setting the blawgosphere ablaze this week was started by Mark “Texas Tornado” Bennett, writing about a change proposed by the Texas Bar that would make flat fees refundable to clients:
The State Bar’s position—or, more accurately (as I shall discuss tomorrow) the position of some nonpracticing ethics experts, which they haven’t yet managed to get any court to sign off on—is that a) until representation is complete, a fee may be refundable; b) if a fee may be refundable, it is unearned; and c) if a fee is unearned or may be refundable, it belongs to the client.
In order for the State Bar to be right about generations of Texas criminal-defense lawyers acting unethically, they must be right on all three propositions. If any of the three is untrue, the State Bar’s position fails. They are wrong on all three propositions.
He concludes with these chilling words:
Society needs criminal-defense lawyers. Forbidding flat fees in Texas criminal cases will be the beginning of the end of the criminal-defense bar: when the private criminal-defense bar is eviscerated, the existence of any criminal-defense bar will “depend on the largesse of the government. The day they cut off the fee spigot, there will be no more criminal defense lawyers.“
That quote is from this post written by Greenfield:
No decent criminal defense lawyer can live with himself if he’s not doing right by his client. We fight because it’s a fight that needs to be made. We compromise because it’s in the client’s best interest. We can do this because money isn’t in issue; we are not in a conflict with our client. This will change.
Just at the moment in their life when they need us most, legal fees will prove an impenetrable divide between lawyer and client. They owe it and they don’t have it. We are forced to choose whether to work for free or hurt a client. This is an untenable situation. This situation cannot happen without undermining our purpose for being lawyers. Worse still, they don’t necessarily mean to stiff us on the fee, yet you can’t get blood from a rock. The lawyer gets screwed and has to eat the loss.
With that as a future, who would want to practice criminal defense?
Paul Kennedy, also a Texas criminal law practitioner, joins Bennett in lamenting this proposed rule change:
We don’t bill by the hour. We bill for our service. A prospective client either agrees to pay our fee or they find someone else who will charge less. I charge a flat fee for DWI defense. While I have a good idea of what needs to be done on the case, I don’t know going in how much time I’m going to have to spend working on it. How much discovery is there going to be? Witness interviews? Pretrial motions? It’s not practical on a criminal case to call your client up and tell them they need to bring in more money because the case has gotten more complicated than you first estimated. Most of our clients don’t have the money.
We are also bound by our ethical obligations to provide a vigorous defense. But what if a client can’t ante up halfway through a case? It would put both the attorney and the client in untenable positions.The basis of a criminal representation is the relationship between the attorney and the client — let financial issues get in the middle of that relationship and something’s got to break.
Brian Tannebaum, writing from the cozy confines of Florida, reminds us that we all need to be paying attention:
I am a Bar-type. I mill around those Bar committees in my khakis and blue shirts (no-tie) while the masses of civil lawyers in suits with briefcases tagged with their initials in gold who “tolerate” us, cast us off as part of the problem in the profession – disregarding that their precious billable hour is the definition of fraud. I am a Bar-type, I pay my own way to meeting after meeting, speaking up when I hear our criminal defense bar maligned, and constantly trying to convince my colleagues there is a good answer to “why do you go to all these meetings?” They all think I’m doing it for my resume, or some judicial aspiration, and are still wondering why after 16 years, neither has been true.
Until the criminal defense bar infiltrates state bars, gets on every committee, and participates at the same table as the manicured civil bar, we will continue to beg for our constitutionally mandated existence.
From the “While We’re On Lawyers” category: Lawyers, law schools and the legal profession have been much in the news in the past week, starting with the sad-yet-comical story in the NYT about the grads who have $250,000 in debt and are unable to get a job at the local McDonald’s. Jamison Koehler writes this magnum opus on the subject, which I can best classify as tl;dr. This was quickly followed by the news that the ABA is considering making the LSAT optional. Writes The Legal Satyricon:
Ultimately, the LSAT will still be the best predictor of law school aptitude, even if an objectively bad one, but allow schools to admit more subjectively interesting candidates without this admissions priority being reflected in its LSAT or GPA reporting. The same kind of Worldcom-style accounting that controls employment reporting for law schools will come to its admissions statistics as well. Beyond defeating the utility of sites like lawschoolnumbers.com, this decision would make admissions a black box process at schools that choose to go along with it.
By obfuscating student quality, the employment prospects all but 5-10 elite schools would suffer, as employers would not be sure just what quality of students they were getting. While a law school has time to pay its recent graduates $8/hour to sift through applicants who couldn’t be bothered to take the LSAT and find the touchiest, feeliest application of them all, a law firm does not have that luxury. Nor does it want to. The best thing a lawyer can have is information, and for law schools to deprive employers of that vital resource is a disservice to its students. Nobody, rationally, would buy something of unknown contents or quality.
From the “These Didn’t Fit Within My Loosely Defined Categories” category:
- Ohio man charged with having sex with a corpse that he didn’t realize was actually a corpse.
- The Amy Chua brouhaha.
- SCOTUS “punts” on issue of unanimous juries.
- Paul B. Kennedy writes about putting an end to criminalizing school discipline.
- Gamso weaves together disparate threads to write about the Constitution, race and Huckleberry Finn.
- Mirriam “the best criminal law blogger in the country” Seddiq writes about a VA Supreme Court decision effectively invalidating Padilla v. Kentucky.
- Of particular interest to criminal defense practitioners should be the cert grants in these two ineffective assistance of counsel cases.
From the “Because Everyone Should See This Once” category:
From the “Because We Can’t End On Such Silliness” category:
MLK, Jr. day posts from around the ‘sphere:
- I’ll add them as and when you write them.
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.