Someone turned me on to the trailer for this upcoming movie: Conviction. Based on the true life story of Betty Anne Waters‘ 17 year fight to exonerate her brother, the movie stars Hillary Swank as Waters and Minnie Driver as her best friend Abra Rice.
Abra, incidentally, is now a Connecticut public defender.
I sat in a prison cell yesterday. And not your regular bullpen where they cram in 4 people who’re waiting to go to court. The real deal. Where our clients sleep at night (and often during the day). That of the 60 square foot variety.
There was a bed – a small bed – that was the length of the room. At the foot of the bed a metal toilet, with no cover. Just beyond that the heavy metal door, with a slit for a window. The door was maybe 3 feet wide, if that. At the head of the bed, if you were laying on your right side, you’d be about half a foot away from an ugly metal desk with holes that pretended to be drawers. This could not have been more than a foot long. The bed was flush with one wall. The desk with the opposite.
The bed looked hard, cold and dirty. And that’s it. This particular cell happened to have a window at the head of the bed. A window looking out onto nothing. Any future inhabitant of this particular cell would have it good. It was a single. Across the narrow passageway from this cell was another, identical in every respect except two: it was a double cell and there was no window. (Here’s a post I wrote a while ago about a different take on prisons in a foreign country.)
I didn’t have the courage to ask my escort to have them close the cell door for a minute, locking me in. It was nauseating and claustrophobic enough as it is. Maybe I was having a panic attack, or maybe the air in there was dead, like the spirits of the men that inhabit these cells, but I thought I was going to faint.
I willed myself to stand there, though, for a minute. To look around at the bare walls, the bare desk, the dirty toilet and imagine someone “living” there.
I even briefly closed my eyes and tried to picture myself there, day in and day out, for months, which turned into years, which turned into decades. Continue reading
As you can see, the layout and design has been revamped. It’s still a little buggy, so bear with me as I try to figure it out. As always, if I can’t, I’ll just go back to the old design. Kthxbai.
Change blindness is a visual perception phenomenon in which the human mind fails to detect pretty significant changes in our surroundings and distorts our memory.
The most recent famous example of change blindness and its relative, inattentional blindness, is the “count the passes” experiment, which I’m sure everyone’s heard of by now (read the NYT review of their book on the subject). What that illustrates is that when our mind is focused on one task, we zero in on it at the expense of most things around it. For the criminal defense lawyer and the criminal justice system, this is a particularly troublesome issue.
Eyewitness misidentification has become the number one cause of false convictions and it’s easy to “see” how. During a particularly stressful event, when combined with weapons focus, the human mind zeroes in on one thing and pretends to see the others. It fills in the gaps as it were and it is on this peripheral vision that faces are remembered and convictions are obtained.
But there’s a problem with remembering faces. Look at this video:
Rell, intent on breaking the world record for vetoes and dumbass moves as Governor before she leaves office this year (can that day come soon enough? I say no), vetoed yet another important criminal justice bill yesterday. The bill, which would have created a sentencing commission to evaluate the state’s statutes and sentencing practices and analyze them for disparity – including those of the racial kind – apparently carried a very hefty price tag, which is what prompted her veto.
The gargantuan sum of $130,000 a year easily dwarfed the $150,000 price tag for each of the 9 new judges that she nominated, that the State didn’t need, but were eventually confirmed.
“While I appreciate the need for review of our sentencing statutes and practices, given our State’s ongoing economic challenges, this is simply the wrong time to create yet another state entity,” Rell said. “I have spent much of the last year examining our state budget to find ways to save money so that we would not have to increase the burden borne by our already struggling taxpayers. Some of the cuts we have made were painful; none were easy.”
She said. I rolled my eyes. Continue reading
The internet has changed everything. Every fool with no money has a blog, every newspaper website caters to the lowest common denominator and every twit can Tweet for free. A percentage of these are former and current clients, both gruntled and dis.
Back in the old days, when you walked 20 miles to work, uphill, in blizzards, with no shoes, the only medium for clients to express their displeasure was filing a grievance with the state bar. Now, clients are able to air their grievances in a more public forum, with no restrictions that their complaints be made in good faith or sworn to.
And since you are what the internet says you are, how far can (or should) one go in response, asks Mike C:
What if a former client writes: “My lawyer was terrible. He never returned my calls or e-mails. I had a million-dollar case, and she blew it!”
Some prospective clients might read that blog entry, and thus never call the lawyer. Current clients might get nervous. Other lawyers might decline to refer a case to the bad lawyer.
Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day. He asked the same questions over and over again. After evaluating his case through discovery, we realized his case was marginal. We told him to settle the case for $25,000 – nuisance value. He refused. The trial court dismissed the case on summary judgment. Now he’s angry. By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”
Does that Rule make sense? A lawyer can lose business. Online reputation matters – not for a lawyer’s ego – but for his business. The law offers trademark protection. A brand matters. A lawyer is only as good as her name. Shouldn’t a lawyer be able to breach some aspects of the attorney-client privilege in order to protect her name?
First off, this really is nothing new, at least for those of us in the high-volume criminal defense business. I’ve had clients tell me they didn’t want me to represent them and wanted me to, in the same week, based on what their then-cellmates told them about me. You are as good as your current client’s former cellmate says you are.
Second, the differences between revealing confidences to defend against a disciplinary proceeding and responding to a blog post or newspaper comment are quite obvious. The grievance proceeding requires you to defend against the accusations, for failing to do so affects your livelihood.
But what of Mike’s point of the reputation of the lawyer in this age where more and more people are relying on the internet to secure representation? I have the wherewithal to explore any concerns I might have about a prospective lawyer with real people who know that lawyer and that lawyer’s work, but might a potential client? Why shouldn’t a lawyer have the ability to respond, albeit in a limited fashion to that Festivus tradition?
Scott’s take is similarly multi-faceted. He, too, recognizes the need to permit the attorney to have the ability to respond in some fashion, but cautions us that it is constrained in many ways by our continuing obligation to our clients:
[In response to Mike's hypothetical] I’m not entirely clear that’s accurate. Waiver of privilege is an all or nothing proposition. Once a client discloses confidential communications to others, it constitutes a waiver. It’s the client’s to waive, and there’s nothing to prevent her from doing so. It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship. Once waived, however, the privilege is extinguished. Like pregnancy, it’s not just a little waived. It’s waived. End of privilege.
Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process. While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.
Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight.
I don’t know much about the grievance process and the extent of confidential communications and privileged information that one can disclose in response to a grievance, but there is another area of the law in which confidences are routinely disclosed and that’s the post-conviction setting.
is apparently a crime. C.G.S 53-37 provides:
Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.
Volokh notes that the statute has resulted in 79 convictions since 1995, not a large number by any stretch, but still troubling considering the First Amendment implications:
This strikes me as pretty clearly unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception that covers such speech. Yet the statute seems to be pretty commonly enforced; the Connecticut criminal records database on Westlaw uncovers 79 convictions since 1995. Do any of you know more details on how the statute is enforced, whether there’s some narrowing construction that has been imposed on it (though my Westlaw search reveals no cases doing so), whether it’s been challenged, and so on? Even if it’s limited to race– or religion-based fighting words, that would be unconstitutional under R.A.V. v. City of St. Paul; but in any event, at this point I’d just like to know how the statute is actually being used.
UPDATE: I noticed, by the way, that the statute is listed in various Connecticut government documents — alongside many other statutes — under the “affirmative action” category, for instance see this Affirmative Action Policy Statement and this Affirmative Action — Laws List. I also noticed that the 1999 “Hate Speech on the Internet” report from the Connecticut legislature’s Office of Legislative Research has noted that the statute’s “constitutionality is questionable under the U.S. Supreme Court’s rulings.” But I’d still like to know just how it’s being applied.
Yes. So would I. I’d also add that the statute was enacted in 1949 and hasn’t been amended since. A quick Lexis search reveals only one hit for that statute, and that too in a footnote:
As noted, Section 53a-183 is directly relevant to the issue in this case and provides, in and of itself, a basis for determining that a clear, well-defined and dominant public policy exists prohibiting the kind of conduct which is at issue here. It is worth remembering that there are other state statutes which recognize the particular harm that racially motivated criminal conduct inflicts on society. These statutes include Section 46a-58, which criminalizes cross burning under specified circumstances; 53-37, which criminalizes holding persons up to ridicule on account of race, creed or color; 53-37a, which prohibits the wearing of a mask or hood under certain circumstances; 53a-40a, persistent offenders; and 53-181b, intimidation based on bigotry or bias. Related federal statutes exist as well.
State v. Local 387 of Council 4 AFSCME, 1999 Conn. Super. LEXIS 437 (1999) (which is an interesting case that involves the appeal of a decision to reinstate a corrections employee who was terminated after he called a state Senator and left a message calling him an n-word, after the Senator allegedly referred to corrections employees as criminals).
Anyone? Bueller?