Monthly Archives: May 2016

The Promised Rose Garden Wilts

The New York Times bemoans the “broken bargain” with college graduates, following up on President Obama’s commencement address to students at Rutgers, who are already starting out at the deficit of being in New Jersey:

In his recent commencement address at Rutgers University, President Obama focused on the noneconomic reasons for going to college. The skills gained in college, he said, are tools to help “make the right choices — away from fear and division and paralysis, and toward cooperation and innovation and hope.”

No, no mention of his imploring the kids not to be such fragile teacups. That’s not the broken promise. This is:

It was an important reminder, well suited to the times and the occasion. But it also came across as if the economic benefits of college were a given. In fact, the familiar assumption — graduate from college and prosperity will follow — has been disproved in this century. College-educated workers have not seen meaningful pay raises, and public policy has failed to address the stagnation.

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Trees, Forests and Clouds: The A2J Fantasy

In a bit of typical twitter silliness, a truncated discussion broke out following the Stanford Law School CodeX lie-fest. Too mean? Okay, how about circle jerk? Still too mean? Jeez, tough crowd. Let’s try, well-intended but clueless gathering. That’s the best I’m going to do, so suck it up.

One piece of the discussion addressed the self-serving contention that legal tech was the savior of the poor and downtrodden who couldn’t afford legal representation, access to justice, or A2J. I called bullshit.

They wrap themselves up in their white knight armor under the A2J banner, all the while concerned only with whether they can sell their gadget and make a fortune. Don’t be shocked at the hypocrisy and ignorance. These are desperate people, constantly staring failure in the face, in critical need of facile excuses that shift the blame for their ugly, unwanted babies to anyone but them.

How absurd are these self-proclaimed heroes of the poor? When I twitted that if they were serious, they would want serious lawyers to speak at their insular conferences about what law is, lawyers do, clients need, so they would stop creating shiny, worthless gimmicks that fail miserably. The response from the “dumber than dirt” side (apologies to dirt) was: Continue reading →

Sotomayor’s Empathy: Lawyers Pay The Price

Supreme Court Justice Sonia Sotomayor opened a can of worms at the American Law Institute when she announced that she was in favor of “forced labor,” a very curious choice of words.

U.S. Supreme Court Justice Sonia Sotomayor said Monday that all lawyers should be required to provide pro bono legal services.
“I believe in forced labor” when it comes to improving access to justice for the poor, she said during an appearance at the American Law Institute’s annual meeting in Washington. “If I had my way, I would make pro bono service a requirement.”
Sotomayor made the comment in response to a question from institute director Richard Revesz about the dearth of legal services for low-income individuals.
The justice said she was aware of programs—like New York state’s—that make pro bono work a requirement for admission to the bar. She also acknowledged that some critics say lawyers who are compelled to work for free “may not give their best effort” to the task.
But professional and ethical duties require it, Sotomayor insisted. “It has to become part of their being,” she said.

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The Crime Of Leveling The Playing Field

In the grand scheme of piss-poor analogies (edit: and the beloved metaphor), leveling the playing field is a winner. First, it’s not a game. Second, the field is so grossly unlevel that no matter what the defense does, it can’t touch the advantage the prosecution enjoys. Forget all the platitudes that people use about the legal system; it’s meant to be unfair, to favor the prosecution. Anyone who doesn’t realize this doesn’t “get” the system.

But there was a private investigator who found a crack in the system. The crack was an NYPD sergeant, Ronald Buell, who wanted to earn some extra money. Cops like to earn extra money, and this was a particularly easy way to do so, and far less nefarious than other ways, like copping spare dope from dealers or pocketing the piles of cash found in stash houses. Buell sold access to his police computer.

To many defense lawyers, Joseph P. Dwyer, a retired New York police officer who became a private eye, was guided by justice — a highly sought investigator who uncovered key information to help their clients.
But that came at a price: Mr. Dwyer had been paying a police sergeant for information from a restricted law enforcement database, prosecutors charged. And in a sentencing memo this week, the government said Mr. Dwyer’s motivation had been “a desire to enrich himself,” citing his billings of about $500,000 from 2011 to 2014 from public funds used for indigent defense.

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No Subreddit For Old Lawyers

One of my snappy retorts to commenters here when they lose connection to reality is that Reddit called and wants them back. This, of course, is a swipe at Reddit, a website built of insular communities that tend to have a specific issue focus.

It was once the paradigm of the internet, the wild west, self-policing its content and members. Cross a line, such as dox (reveal the identity of) another commenter and be banned. Moderators were chosen from its more involved and respected members. While some of this has changed, as Reddit became touchy-feely over purported misogyny and subjects that gave some people the willies (often with good cause, but that’s just my sensibilities), it still provides a forum for like-minded folks to discuss matters of interest.

This is good. And terrible. And helpful in a damning sort of way.

At a subreddit called “Bad Cop, No Donut,” a mod who went by the handle FritzMuffKnuckle started having some doubts. He reached out to me. He had an issue with a poster there, a guy who said he was a lawyer, who appeared to be knowledgeable about the law, and who was schooling others about the “meaning” of stories posted. He asked me whether this commenter was for real, knew what he was talking about. Continue reading →

The “Right To Privacy” Sword Swings Both Ways

Is there a “right to privacy”? The answer, apparently, is whether you want there to be one for whatever outcome you’re trying to achieve. Cristian Farias makes the point in noting how the Alliance Defending Freedom, an evangelical legal advocacy group, has discovered the right and seized upon it in opposition to the government’s transgender overreach.

As a result of the government’s overreach, students “will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms and locker rooms with members of the opposite sex,” wrote lawyers for the faith-based Alliance Defending Freedom, a legal advocacy group representing the plaintiffs.
The “right to privacy” is a peculiar claim for Alliance Defending Freedom, which over the years has supported “religious freedom” litigation before the Supreme Court and lower courts in a number of high-profile disputes. A recent Mother Jones report suggested the group may have played a role in the wave of similar bathroom bills appearing in a number of states.
The reason ADF’s appeal to “bodily privacy rights” or the “fundamental right to privacy” may seem out of place — especially in light of recent constitutional history — is the lack of an explanation for where the right comes from. The lawyers provide no legal citations or support for its source.

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Less Than “Great” Deference To Judge Posner

In his concurrence in United States v. Dessart, Seventh Circuit Judge Richard Posner takes issue with the obsequiousness of review of a warrant under Franks v. Delaware, and that’s terrific, because Franks is a ridiculous decision decided by the Supreme Court of Fantasy Land where a judge will review a warrant, whether issued by him or one of his pals at the judge cafeteria, and, with a completely open mind, opine that he or the other judge was a blithering idiot for signing off on the warrant.

Except, Posner can’t seem to focus on the ridiculousness of the Franks decision, but lapses into a rant against the words, the rhetoric, used by courts in their opinions.

I do not criticize the majority for re‐ citing them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination. First is the proposition that when a judge issues a warrant, whether to search or to arrest, the appellate court “must afford ‘great deference’ to the issuing judge’s conclusion” that there was probable cause. United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008). This proposition derives from Illinois v. Gates, 462 U.S. 213, 236 (1983), where we are told that the Supreme Court has “repeatedly said that after‐ the‐fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’” Why great deference? Because, we’re told in Ornelas v. United States, 517 U.S. 690, 698–99 (1996), “the Fourth Amendment demonstrates a ‘strong preference for searches conducted pursuant to a warrant,’ Illinois v. Gates, supra, 462 U.S. at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate’s probable‐cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.” Continue reading →

The Dream Team, If Dream Means Failure

It’s bad enough to be on the receiving end of tons of flackcrap, announcing the critically important news that some lawyer won a case or some federal agency managed not to totally screw up the job for which it exists. But once in a while, I open a press release for kicks to find that some publicist hit send after taking a massive dose of a forbidden narcotic. This one was special enough to share.

The new Legal Dream Team!
Hi Scott,
When you hear “dream team,” you’re likely to think of the 1982* United States Men’s Olympic Basketball Team.
But what if we told you there was a legal “dream team” right in the heartland … this one comprised of all-women.
Meet Cathy Kelaghan, Pam Williams and Kathy Kiefer, who lead Anthem Insurance’s Legal Department, based in Indianapolis. Continue reading →

Clearing The Backlog: Rape Kits To Nowhere

Emily Winslow was raped in 1992. To call what happened to her rape raises no red flags, as rape was still rape in 1992, before the word lost all meaning and it became fashionable among one’s friends to be a rape “survivor.” This was the rape that forms our disgust and hatred of the crime. And, under the circumstances as they played out, there is no reason to doubt that she was raped.

Winslow wrote about it, reflecting a knowledgeable understanding of why, 20 years later, the rape kit prepared in 1992 wasn’t tested.

MY rape kit was created on the evening of Sunday, Jan. 12, 1992, at Magee-Womens Hospital in Pittsburgh. Tiny pieces of evidence were swabbed, plucked and combed from me: bits of me and, they hoped, bits of him, to be used in court one day to prove who had done this to me. Like many evidence kits collected at that time, it was not analyzed for DNA, and became part of what is called the backlog: untested rape kits across the country, which number at minimum in the tens of thousands.

Rather than bemoan the backlog, Winslow took the time to understand it. Continue reading →

Cross: Robin Steinberg, The Bronx Defender

May 18, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Robin Steinberg, founder and Executive Director of the Bronx Defenders.

Q. Berkeley in the ’70s was still a hotbed of radicalism, and you graduated in 1978. Did you go in ready to change the world? What was your major? Where did you plan to go with it? Was law always the plan for the future? Were there any alternatives in the mix? Was Berkeley as wild as they say back then?

A. Growing up in the 1960’s and 70’s in New York City, I was aware of a far-away land of revolutionary thought called “Berkeley,” but honestly, I had no idea where it was or that it was even part of the University of California. During my teenage years, it was the Utopian place that I was going to run away to when I was enraged at the world, or just furious at my mother.
But as fate would have it, my mother decided to marry a Californian, so in my senior year of high school we moved to Los Angeles. To say that I was angry about this cross country adventure would wildly underestimate how I felt. So when my new stepfather asked me where I wanted to go to college – a question I had never been asked by anyone – Berkeley was all I could say. It was where I needed to run – and run, I did.
Once there, I promptly fell in love with a radical long-haired, bearded teaching assistant in the University’s Economics Department. I wasn’t exactly Emma Goldman, “Living My Life,” but I was close. Living in a studio apartment, sleeping on a mattress on the floor, using candles as my lighting source at night and using chopsticks at every meal – I was living my dream.
I immersed myself in politics, radical thought and feminism. I attended pot lucks with smart, radical thinkers, listened to political music (The Red Star Singers, Holly Near, County Joe and the Fish, Odetta, Malvina Reynolds and the Berkeley Women’s Music Collective to name a few) and proudly shopped at the local food co-op where, with each purchase, I proudly announced that my profits should go to the Berkeley Women’s Heath Collective.
As if Berkeley wasn’t counter-culture enough, I joined the alternative school within the University – Strawberry Creek College. It was ironically and intentionally housed in an old wooden structure that once housed the ROTC and attracted interesting students and faculty. There, I took small seminar classes with like-minded students and professors. I excelled academically but resolutely refused to participate in any of the mandatory trust building exercises like closing your eyes and falling backwards, believing that your seminar mates would catch you. “Sorry, I would say, but I’m from New York and there is no way that I am going to do any such thing.”
During those years, becoming a lawyer was the farthest thing from my mind. Too traditional, too mainstream and besides, what did lawyers do anyway? I declared a major in Women’s Studies – then a new discipline – and was a proud member of the first class to graduate with a B.A. in Women’s Studies. I wasn’t sure what to do with my degree, or my feminist passions, I just knew that I wanted to change the world.

Q. When you decided to leave the left coast behind and go to NYU Law School, were you already interested in criminal law? What made you come east? Why NYU? Was there anything else that interested you other than law? Did you ever wonder, “what was I thinking?” During law school, what were your activities, your focus? Did you consider a nice life in the corner office of a Biglaw instead of a future in the trenches?

A. I may be simultaneously one of the most practical and one of the most idealistic people around. Changing the world was my goal – but how to do that was a very pragmatic decision. I assessed calmly that a law degree would give me credibility and some power to put my feminism to work and make a difference.
I approached the decision about which law school to attend in the same pragmatic way. I found a list of the top 20 law schools in the country and when the time came to decide which law school to attend, I combed through catalogues looking for something that would appeal to my feminist ideals. NYU had a list of clinical programs, one called “The Women’s Prison Project,” Honestly, all I saw was the word “women” in the title and I was sold. The fact that “prison” was connected to the program wasn’t important. As it turns out, it changed my life forever.

Q. Your first job out of law school was with the Nassau County Legal Aid Society. Why Nassau? Was that a choice, or was that just where you ended up? Where else did you seek work? Did you ever consider working as a prosecutor? Why not? What was it like doing indigent defense in one of the last bastions of the Republic political machine?

A. It’s possible that I was the least engaged law student to ever attend NYU. I was socially uncomfortable and intellectually uninterested. The work was tedious, the load overwhelming and I could see almost no connection between what I wanted to do with a law degree – forward social change – and what I was learning. NYU Law School was not the hot bed of public interest lawyering that it is today and few wanted to engage in the larger political context of the law, talk about how the law favors the affluent and powerful or even general conversations about justice. So I disappeared. I just stopped going to class. I never considered quitting – its just not what I do. Instead, I found a way to survive the experience with my soul intact.
I threw myself into the clinical program and traveled to Bedford Hills Correctional Facility to visit the women who were our clients. That experience changed me forever and set me on the path that I have been on for over 30 years. These women generously shared their stories. They inspired me, broke my heart and made me angry – always a very powerful agent for change for me. Injustice makes my blood boil. My work at Bedford Hills consumed my second year of law school. But it also made me begin to question what was happening in the criminal justice system that doomed these women to a life behind bars. So I joined the Criminal Defense Clinic in my third year of law school. And, as they say, the rest is history.
I did not flirt for a moment with the possibility of working for a big law firm, a small law firm or even a government agency. I wanted to work on behalf of the disenfranchised, the marginalized and the powerless. So when I walked into criminal court, and saw the inhumanity, and the hundreds and hundreds of low-income people of color waiting hours for a one-minute court appearance that passed for justice, I couldn’t walk away. I vowed to become a public defender.
The fact that I would spend my days and nights defending mostly men, in a system that was then dominated by men, did not escape me or deter me. I threw myself headlong into my new career and have never looked back – not for a moment.
I applied to dozens of public defender offices with the hope that someone would hire me. I wanted to stay in New York City and work for the Legal Aid Society, but they wouldn’t hire me, so I accepted an offer at Nassau County Legal Aid. I was happy to be there and grateful to have the opportunity to be a public defender even though practicing in Nassau County was incredibly difficult for many reasons, not the least of which was the conservative nature of the county. The judges, prosecutors and juries were conservative, intolerant and harsh. Everything was a battle – internally and externally. It made me cry a lot but it also made me strong, determined and willing to push back against what seemed like — and often were — insurmountable odds. Those lessons have served me well.

Q. Every criminal defense lawyers has a “first trial” story, whether about the glorious victory, the agonizing defeat, the over-preparation or the ignominous screw-up. What’s your “first trial” story? Were you as great, or terrible, as you thought you would be? Looking back now, knowing what you do, what would you have done differently?

A. It may be that every criminal defense lawyer has a first trial story but honestly, I can’t even remember whose case I tried first. I remember every loss. Every mistake I ever made and every client I might have failed – in a trial or plea bargaining context. But with each failure, and each disappointment, I learned how to be a better lawyer and I carry those lessons with me everyday.

Q. From Nassau LAS, you went to the wilds of Manhattan. How was New York County Legal Aid different? Was there a difference in the practice at 100 Centre Street? Crack was the epidemic of the day, and drug prosecutions were overwhelming, with arraignments running 24 hours a day, 7 days a week. What was it like doing indigent defense then? What was the burden on a Legal Aid lawyer?

A. Going from Nassau to NYC Legal Aid was a seismic shift. Clients were still being ground up in the system, but the amount of jail time being served was radically different. For months, my biggest fear was that I would counsel a client into a terrible plea because it looked great compared to Nassau County. From my perspective, everything was easier in New York City. Caseloads were relatively reasonable, my colleagues were empowered, the judiciary was more diverse, the juries were better and the Legal Aid Society had more organizational independence.
There were very few women in positions of authority – either in Nassau or New York City – a fact that made it hard to feel comfortable in my own skin or feel supported in the way I think is important for young lawyers. Without women role models, I tried valiantly to be the best “man” I could – until I finally realized that I had to chart my own path and develop my own style.

Q. From Legal Aid, you went to the Neighborhood Defender Service of Harlem when it first opened its doors. Why? You left before the Legal Aid strike. What did you think of the strike? How did that change things for indigent defense? Neighborhood Defenders brought a “team” approach to representation. What was that all about? Was this better than the way LAS handled its caseload? Was there any “competition” between Legal Aid and NDS? Should there have been?

A. When Rick Finkelstein and Chris Stone asked me to be a team leader and part of the inaugural team of lawyers starting at NDS, I jumped at the chance. Both Rich and Chris were brilliant, inspiring and dedicated to improving the quality of justice for Harlem residents. How could I say no? As much as I loved my job at Legal Aid, nothing could have kept me there. Change and innovation felt impossible and I knew we could do better for clients – so when NDS called, I jumped.
NDS in the early years was incredible. The caseloads were much lower, offering opportunities to interact with clients and the Harlem community in ways that were very different from what I had experienced at LAS. And the team approach, while very complicated and bumpy at first, offered a real glimpse at what an integrated public defender office could be. I couldn’t have asked for more dedicated colleagues and brave defenders in those early years at NDS. And I built upon those experiences in creating and growing The Bronx Defenders.

Q. In 1997, you were one of the founders of the Bronx Defenders, an upstart organization to handle indigent representation in perhaps the toughest systems in the nation. What were you thinking? How ambitious was the idea? How crazy was it to think you could create a new organization for The Bronx? What was it like to start up an indigent defense organization out of nothing?

A. Starting The Bronx Defenders was simultaneously the most frightening and exhilarating thing I have ever done. There were eight of us at first, in a tiny office between a Radio Shack (remember them?) and a Rent-A-Center. In truth, I’ve never worked harder in my life. We started on a Sunday night, and covered five arrangement shifts that first week – with only 8 people. We had almost one hundred 180.80’s that first week, and were staffing up way too slowly to keep pace. By week three, after several of us had done a dozen arraignment shifts I think we were all about to keel over. But we juggled like crazy and with fierce determination, kept the lights on.
I picked the Bronx precisely because it was the poorest, most over-policed and under-resourced borough in New York City. Initially, we just wanted to prove ourselves in the courtroom to a system that wanted nothing to do with us. So we dug down. I suppose the real answer here is that I wasn’t thinking. Because If I had ever stopped to think about what we were trying to do, the magnitude of the problem, the breath of our vision, I would have been paralyzed. I never could have imagined then what we are today—a committed collective of 250 lawyers and advocates that offer holistic defense services to over 30,000 clients a year.
Our model of holistic defense grew out of really listening to clients—hearing their stories and engaging in a deep and profound way with their communities. Hearing how far the tentacles of criminal justice involvement reached into every aspect of their lives, how a criminal case so often meant losing a child, a job, a home, or even one’s life in America. That made it clear to me that we needed, once and for all, to break down the silos of legal practice and equally important –the false distinction between a direct service organization, and one that does impact, organizing and policy change. Advocating for clients means more than solving individual problems in criminal cases. It means touching lives, sheltering the most vulnerable from the crushing impact of the system, and salving the multiple wounds that criminal justice involvement can inflict. And it means being an engine for systemic change for a community that needs it desperately.

Q. At some point, you switched from trial lawyer in the trenches to administrator to head honcho, one of the most innovative voices in indigent defense in the nation. Did you want to leave the trials behind and become a boss? Was it all it was cracked up to be? While it’s given you the opportunity to speak about indigent defense and receive some significant awards, it’s also brought some painful responsibilities, as reflected in the disinvitation from the Harvard Women’s conference and the “Hands Up” music video fiasco. Is it worth it?

A. I was the Executive Director of The Bronx Defenders from day one so I knew that I was making a transition from trial lawyer to manager. I refused to give up being a defender for many, many years – managing the office, growing it, managing the staff and still doing arraignment shifts, representing clients and trying serious felony cases in Supreme Court. With the growth of the office, and more administrative responsibilities, I eventually stopped representing clients. I miss it. I really miss it. But I have learned to enjoy thinking more widely about indigent defense and creating an office that has a vibrant culture, a spirit of innovation and an expectation of fearless and courageous lawyering on behalf of clients. I get restless of course – it’s in my nature.
But I think that restlessness allows me to consider change and movement and growth with an open heart and mind. The Bronx Defenders is what it is – one of the most impactful defender organizations in the country – because we continue to innovate, assess client needs, tinker with our model, experiment with new ways of doing things and encourage young lawyers and advocates to develop professionally and personally. I still feel lucky every day that I am part of this incredible organization and get to work with some of the most brilliant and dedicated advocates anywhere.
And yes, with responsibility comes hard times. Certainly, the fallout from “Hands Up” was an experience that changed me forever. The heartbreak of losing two dedicated lawyers, and my inability to stop that from happening, will haunt me always. My own experience being vilified in the press and being the target of the police was incredibly hard, but it also brought me closer to understanding how clients, and their loved ones, might feel when they can’t change a negative narrative about them and people in power want to destroy them. The terrifying experience of fearing for my life – I got daily death threats and hate mail – and having my character being assailed in such a public way, left its scars. But it also taught me an enormous amount – about how power really operates, who my allies really are, what mayoral politics looks like, how scary the police union can be and how fear and threats have the potential to prevent even good people from speaking out.
But is it worth it? I think the answer to that lies with the hundreds of thousands of lives we’ve touched over nearly two decades in the Bronx. Certainly for me it’s been worth it. I have a job I love, with colleagues that I adore, in a place I helped to build that does righteous work that I’m proud of every single day. Not bad, all things considered.

Q. As one of the leading national voices in indigent defense, what is your take on Orleans Parish Public Defender Derwyn Bunton’s decision to refuse to take on clients that his office can’t competently handle? Is it time to force the issue, to put the system to the test of either paying for enough lawyers to provide zealous representation or let the system crash? Will it work? Will government ever care enough about the constitutional rights under Gideon to commit the resources needed? Is there anything else to be done?

A. Defender Chiefs like Derwyn Bunton are faced with unconscionable choices – represent clients in a system that is grossly underfunded and do the best you can or refuse to work under conditions that make it impossible to do a good job and walk away from clients who desperately need you with the hope that your short term strategy will ultimately be better for clients. Derwyn is a fearless leader with enormous integrity and is acting in the best interests of the client community in the long run and his staff.
It’s been over 50 years since Gideon. Our criminal justice system is our national shame. The fact that government does not adequately fund indigent defense is a huge part of that. It’s hard, but hard isn’t a reason to quit. Our clients’ lives are harder and they need great lawyers and fierce advocates. We have no choice– we must continue to advocate for our clients, fight for what’s right, and refuse to give up.

Q. In the aftermath of Kalief Browder’s suicide, and recognition that the delays in the Bronx are a systemic disaster that’s gone on unabated forever, Bronx Defenders decided to sue. What made now the time to say “enough”? Well-meaning voices, from Mayor di Blasio to former Chief Judge Jonathan Lippman, have all agreed that the problems are a disaster, but talk is cheap and nothing changed. What needs to be done? Does anyone have the fortitude to make change happen? What about the new Bronx District Attorney, Darcel Clark? What about the judges in the Bronx? Is there any hope that you can get past the point of cheap talk and make the system work?

A. The system in the Bronx is dysfunctional and everyone knows it. Something had to be done. No one should have to wait over 800 days for a trial – especially people who live in the poorest borough of the City and are struggling to survive, feed their families and put a roof over their heads. The economic and psychological burden of having a criminal case hanging over your head because the system is so underfunded that it can’t provide you with even your most basic constitutional right to a speedy trial – is unconscionable.
We decided to bring a class action lawsuit over delay in the Bronx when all other avenues for change failed. We hope that the lawsuit will compel action by criminal justice stakeholders and funders. Our clients simply can’t afford to wait any longer. And it would have been wrong for us to delay for even one more day.