EVENTUALLY, records showed that the city had bought 45,900 disposable gowns for the jails from July 2002 to August 2007, but many of them never left a central warehouse, said Elizabeth S. Saylor of Mr. Emery’s firm. During that time, 145,587 searches were done on people being held on misdemeanor charges. The city didn’t come close to having gowns for each and every one, as the jail officials had sworn. Shortly after turning over these records, the city conceded that there had been a “pattern and practice of strip-searches.”

Faced with a new lawsuit in summer 2002, officials in the administration of Mayor Michael R. Bloomberg settled that case for $5 million and promised that things would change. No longer would people sent to Rikers Island on charges like fare beating, pot smoking or shoplifting be automatically subject to public inspection of their rectums and vaginas.

“Perhaps naïvely,” the judge, Gerard E. Lynch, wrote five years later, “the court accepted D.O.C.’s representations that, whatever its past derelictions, there would be no future violations.”

“Practically every single person we deposed from the Department of Correction swore that they never have seen a strip-search,” said Richard Emery, whose firm, Emery Celli Brinckerhoff & Abady, brought the lawsuit. “They all said, ‘We give everyone gowns, they go into cubicles, and we search them like the Queen of England.’ 

Many people argue that twitter is an utterly worthless waste of time, premised on the prevalence of twits about what someone had for breakfast or whether they’re off to the grocery store followed by the dry cleaner.  Some people really enjoy such twits.  These are people who get vicarious thrills out of someone else’s chores, a sad bunch at best.

These twits, however, are not the sort that I, or the people with whom I engage on twitter, do.  Not to blow my own horn, but I wouldn’t waste your time reading about the mundane aspects of my life.  They bore me, and certainly would mean nothing to anyone else.  Instead, twitter is used for some fooling around, dissemination of a bit of socially useful information, the occasional rallying of thoughtful and like-minded folks for an important cause such as #HankSkinner, and every once in a while, a substantive discussion of law.

Such a discussion was begun yesterday by Bryan Beel, with David Sugerman jumping in moments later, about whether a prosecutor has a duty under Brady to test all DNA evidence.  A few twits in and Trace Rabern, a New Mexico criminal defense lawyer, who jumped in on the subject of whether the prosecution was under a duty to disclose the existence of DNA evidence and allow the defendant access to test it per Brady and Kyles v. Whitley.  The problem, if it isn’t already clear, is that Trace and I went back and forth in an interesting discussion, but for the fact that we were twitting about entirely different things.

Twitter is fine, sometimes even great, for some things.  Legal discussions are not one of them.  I should have realized earlier that Trace had come into the discussion midway in, and having missed the intro, was working off some midway twits.  Her view of what we were discussing was wholly appropriate, but the problem stems from the shorthand used on twitter that could make a twit appear to be discussing any one of a dozen subjects, or aspects of a subject, and lead one down the wrong path. 

Since I was there from the outset, I should have realized earlier on that we were twitting at cross-purposes. My bad.  Because it was twitter, I was jumping in and out while doing other things, as I expect was everyone else, and neglected to realized what should have been obvious.  Trace apologized for jumping the shark.  I apologize for being a bonehead.  Jumping the shark sounds way cooler than being a bonehead.

This isn’t the first time that misunderstandings happen on twitter based upon somebody coming across a twit that strikes them a certain way.  In fact, it happens all the time.  It has the negatives of other forms of electronic communication, lack of expression, inflection, such that humor, sarcasm, irony, all the good stuff, is lost.  The setup also serves to deny ready access to parts of conversations involving twits from others you aren’t following, leaving twitterers on the outside of a discussion without their knowledge.

Then there’s the big Kahuna problem, that not every idea is well expressed in 140 characters.  But that’s twitter.

Most onliners are deeply enamored with the newest and grooviest forms of electronic communications.  The gurus tell us about the joys and wonders, how they will connect us with our tribes so that we can be authentic and genuine (and ultimately get rich by tribe members sending us vasts sums of money which we, in turn, send back to them in a never ending tribe circle, until the chief of the tribe puts it all in his pocket and moves to parts unknown without WiFi access or gets a new screen name).  It’s invariably positive, leading us down the garden path to digital Nirvana.

Sometimes, the new doesn’t always work as well as the gurus say, at least not for all purposes.  I thought you should know.

Amongst the issues swirling around the Hank Skinner case is that DNA tests now sought, which may or may not tend to exculpate him, could have been done before trial, but were not.  His trial lawyer, Harold Comer, chose not to have additional DNA testing done.  The ABA Journal writes:

It’s not for lack of concern or appreciation, but just lack of time.  When I wrote of Blawgospheric Darwinism, I wasn’t being snippy, or arrogant, or self-important, but stating a harsh reality.  We work for a living.  We have real clients with real cases that require our time and attention.  It’s not that the blawgosphere is just a game or diversion, but that it takes time to stay abreast and read all the things that it offers.

Still, it pains me that I haven’t properly acknowledged the fine efforts of many new, and not so new, comers.  I was a newbie once, and others who were already here welcomed me to the blawgosphere.  The least I can do is pay it forward.  Some of the following blawgs have already been mentioned or discussed, some in a less than entirely favorable light because of a particular post or assertion, but they all offer substance and have their virtues.  Some will appeal more than others to a particular audience, but that’s for the reader to decide.

Check these out and see if they are good fit for you.

Trial Theory
Not Guilty, No Way
Affirmative Links
Jamison Koehler’s Still Unnamed Blog
Liberty and Justice For Y’all
Public Defender Revolution

They aren’t all my cup of tea, and they may not be yours.  But you’ll never know if you don’t check them out.  Whatever you think, it would be a shame for fonts of wisdom to run dry merely because no one knew they were there.  Take a look.  It won’t kill you.

The United States Supreme Court granted a stay of execution to Hank Skinner about an hour before the Texas death machinery had a chance to put on a show.  The stay will terminate of its own accord should Skinner’s petition for a writ of certiorari be denied, meaning that it’s a baby step toward the goal of the only issue blocking his execution, DNA testing to either confirm his guilt or not.

Jeff Gamso has links to the relevant documents and an array of posts on Skinner.  Mark Bennett provides the procedural history leading to this point, not to mention a bit of blawgospheric trickery to get those otherwise disinclined to care to become aware of the issue.  Brian Tannebaum takes on the simple minds who are incapable of understanding why there’s any issue at all.  And a broad group of lawyers online spent a good deal of time yesterday spreading the word as far and wide as they could.

We’re not so delusional as to believe that it was our twitter campaign that moved the Supremes to grant an 11th hour stay, or had Texas Governor Rick Perry cowering in the corner of his governor house hiding from the digital townspeople with their pitchforks and torches.  But it showed that they cared enough about the right thing to act.  If it played any role, even to merely encourage those engaged in the real fight to stop the possible execution of an innocent man, it served a purpose.  If it played no role whatsoever, at least we didn’t turn our backs.

It was a day of gross juxtaposition, however.  While some blawged, some twitted, some did both, in the name of keeping Hank Skinner alive long enough to make sure he was guilty before killing him, other lawyers were occupied with doing the things most important to them.  They had no time to notice the impending execution of Hank Skinner.  They were busy with more important things.

There was marketing to do.  There were ten tips on how to best use social media to connect with your tribe to be told.  There was a delicious luncheon to describe.  And somewhere, there was a conference being held on how to make lawyers more money.

Self-promotion depends on making others like you, think you’re fun and interesting, want to engage with you.  Nobody wants to love you when you’re busy being a downer, harping on some unpleasantness like the execution of some guy in Texas.  It’s not like the guy is a member of the family.  Or even a friend.  Hey, people die every day. What’s one more?  It’s not like life doesn’t go on, you know.

Life does go on.  No one expected any lawyer anywhere to go on a hunger strike yesterday to protest the impending execution of Hank Skinner.  Enjoy that delicious luncheon.  It would be terrible shame to waste fine food.  But going about your life doesn’t exclude your ability to be aware of, care about, do something about, a pretty big issue happening within your sphere of concern as a lawyer.  Even if it’s only to join in the chorus, one more voice makes the hosanna louder.

It made me proud that I could be a part of the group of lawyers who raised a hand, maybe only a finger, to be part of the solution.  It may have meant absolutely nothing to the grant of a stay or the transitory extension of Hank Skinner’s life, but it’s better to try than not.  In contrast, the swell of lawyers who were too busy going about their daily lives online, eying themselves in the mirror to see if their hotpants made their butt look fat, may have found a new client while we were trying to save a life.

These are the choices that lawyers have to make in this digital age.  Social media can be put to good use, but it’s up to each of us to decide what a good use is, and whether trivial, self-serving interests are sufficient to make you feel that you’re day wasn’t wasted.

If there’s one thing that’s clear, it’s that lots of colleges and universities covet a law school. The reasons vary. For research universities, a law school serves to complete a portfolio.  For smaller schools, it can place them on the map.  And finally, there are a few schools that are simply built to make money.  At the moment an institution decides to start down the law school path, it has to face a crucial choice: start-up or merger.  For-profits and smaller non-profit schools usually have little choice but to start fresh; few existing law school see a benefit from linking up with these smaller fish.   I want to focus a bit on bigger institutions: private research universities and state universities.  They can choose to build or merge.

The biggest advantage to a start-up is faculty quality.

Another big plus for a start-up is the ability to create both an agenda and a culture.

Oral argument was held yesterday before the Court of Appeals in Hurrell-Harring v. State of New York, where the NYCLU seeks reinstatement of its action on behalf of 20 plaintiffs to hold that “the current system for representing poor defendants creates an unacceptably high chance that defendants’ constitutional right to adequate legal counsel will be violated.” 

Under persistent questioning by Judge Robert S. Smith, New York Civil Liberties Union attorney Corey Stoughton conceded that lawyers for plaintiffs in the case do not know how much it would cost to significantly improve the effectiveness of counsel assigned to indigent defendants.

 “That’s absolutely true, I have no idea,” Ms. Stoughton replied.

“Isn’t that a problem with systemic failure questions?” Judge Smith persisted. “What you’re really doing…by upholding the complaint, you’ve signed a blank check that someone is going to have to fill in later?”

That’s all it is?  Money? 

From the standpoint of  Gideon, my favorite public defender, yes, money is the answer.  Not an answer.  Not part of the answer. The answer.  “We’re only as good as our funding.”  I know it’s meant with the best of intentions, but money is a false god.

There is no public agency/service that doesn’t say it could do better with more money.  That should be engraved over the door of every government building.  I’ve no doubt that it’s true, particularly when it comes to indigent defense, where lack of funding has been a perpetual problem.  But there’s another view of the big picture that can’t be ignored.

The NYCLU is seeking class action status for the plaintiffs, who contended their counsels did not appear in court, failed to keep them apprised of the status of their cases, did not properly investigate their cases or otherwise provided inadequate representation.

In the case of lead plaintiff, Kimberly Hurrell-Harring, her lawyer had her plead guilty to a felony, when it should have been a misdeamnor.  How much money would it cost to correct that incompetence?  Her public defender was informed by a lawyer from NYSDA in advance of sentence of the problem.  He still didn’t bother to raise the issue.  How much money for that?

It’s not to say that adequate funding isn’t critical to the functioning of indigent defense.  It most assuredly is.  But funding a broken system doesn’t fix the system.  It just makes it a more costly broken system. 

The Chief Judge, Jonathon Lippman, asked an incisive question of New York’s Solicitor General, Barbara Underwood:

“Do we have a particular role to play here, given that this is about the justice system, the court system—that it works?” he asked at one point. “Or can we take just a hands-off approach and say, ‘Listen, there is no real controversy here, just have the individual cases go through to completion [and correct mistakes post-trial]. It doesn’t matter that this is about the justice system, about the courts.’ Should it matter to us?”

There’s no way to answer that the courts shouldn’t have a role to play in making certain that the court system works.  And Underwood acknowledged that, but added that concern alone doesn’t make a claim justiciable.  While Judge Lippman pressed on whether the only thing the court could do is correct mistakes afterward, Lippman argued that there was no assurance that allowing this case to proceed would prospectively produce effective assistance of counsel for anyone.

In tacit acknowledgement, the NYCLU told the court that it would drop the suit if the state forms a “statewide independent indigent defense commission.”  This is what’s really needed, together with funding.  And it’s something the court can’t order.  There must be money available to pay the cost of indigent defense.  There must be a system that assures that the money spent will result in an indigent defense system that serves poor defendants by providing effective representation.  It’s not just money.

It’s heresy within the criminal defense community to question any action that would produce more funding for indigent defense, and to the extent this suit will do so, and I’ve no doubt that increased funding will help to provide effective assistance of counsel, it’s hard not to support it.  But if the goal is true effective assistance for indigent defendants, then the system for delivering effective representation must be improved, and neither this case, nor even a blank check, will fix a broken system.

Texas will put Hank Skinner to death today. 

For those who feel comfortable with the death penalty, Hank Skinner’s death may also be the death of their comfort.  The issue here is that there is untested DNA which may well show that Skinner isn’t guilty, but the State of Texas will take no chance of upsetting its conviction and sentence.  They could have tested it all and, if it went badly for Skinner, still kept his date with death.  Instead, they fought it off.

Mark Bennett explains it as confirmation bias.  While accurate, it’s too sanitary.  It makes it sound clinical when it’s anything but scientific.  The officials of Texas, a state inclined to put people to death more so than any other, who believe that the death penalty must be used at all costs, fear that science will create doubts in their legitimacy, so they won’t take the chance of letting science intervene in their execution.

Even for those who believe that the death penalty is a necessary and viable deterrent, the question looms why Texas wouldn’t let the Skinner team have the rest of the evidence tested for DNA.  If guilty as sin, then the DNA will show it.  That Texas refused, stonewalled, fought and, upon the death of Hank Skinner, will have won, leaves a lingering doubt that no amount of blind faith can ignore.

There is no platitude that covers the execution of Hank Skinner to make us feel good about his execution.  It doesn’t matter what the outcome of the DNA tests would be.  It only matters that Texas managed to avoid the tests and kill him anyway.