The Revolution Will Not Be Forced

A new blawg, Public Defender Revolution, has joined the blawgosphere, with an interesting 6 year old tale of being pushed to trial unprepared. By the somewhat anonymous carol d, a 15 year veteran of the trenches:

Six years ago, when a judge ordered me to conduct a trial for which I was not prepared, I was shocked. . . Before that day, I knew that a judge would respect the fact that I had conducted over 100 jury trials, and that when I said I wasn’t ready, I wasn’t ready. And if I wasn’t ready, it would be unconscionable to order me to trial.

The judge rejected her request for time.

When the judge denied my motion to continue, I was dumbfounded–the judge had just been appointed to the bench and had never practiced criminal law, but I didn’t know what to do when he said, “I understand why you are not prepared, Ms. Defender, and I find it is not your fault, but the citizens of Washington have the right to have this matter resolved, and you have to start the trial on Monday.”

Her reaction to this order was to post a “panicked” inquiry to the Washington Association of Criminal Defense Lawyers, an association she had recently joined, looking for “support and advice.”

After considering the advice–most of which was to proceed with trial while making a careful record–I decided that I was going to refuse to conduct the trial.

She then explains:

This post isn’t about that decision process (because many of the factors were case-specific), but my philosophy can be summed up by the “You Can’t Make Me” icon: You can’t give me too many cases, too many clients, too many prosecutors, and then tell me I have to conduct a farce of a trial when you know I am not ready. A system that will force me to betray my client by failing to represent him adequately at trial, is a system I won’t play along with. You can’t make me fail my client.

Ultimately, carol d’s trek through judicial coercion, panic and bad advice to the ultimate decision to put the client’s interest first, to not “fail [her] client,” isn’t unique, but a fascinating insight into the fortitude required of the criminal defense lawyer and the obstacles in the way.

The story bears similarities to the Portage, Ohio public defender who was ordered to go to trial on one day’s notice and refused. He was held in contempt and jailed for his insolence. But the differences stand out more than the similarities. Fortunately for Carol, another lawyer came to her aid, and her judge backed down, allowing her 6 weeks to prepare.

But in the Portage case, the PD didn’t post a panicked email to a listserv. The PD said no, he would not sell out his client, and took the hit. He didn’t need support and advice. He knew what his duty was. Ironically, the predominant response Carol received from her WACDL colleagues, by her description, was to cave in to the pressure. Make a “careful record,” but go with the flow. How very defense lawyerly of them to be so circumspect with the defendant’s life by suggesting she make a careful record as he was railroaded.

To her credit, Carol didn’t heed those for whom CYA is the first rule of criminal defense. It may have taken her a bit longer than necessary to recognize to whom her duty was owed, but she did. That a fellow member of the bar came to her aid is a much finer reflection of what it means to be a criminal defense lawyer. It’s a shame that others on her listserv would urge her to place her own interest above that of her client’s, but that’s the nature of listservs, plenty of advice, most of it horrible. Nothing reveals a lawyer’s inadequacies, and causes a loss of respect, more than reading his “off the cuff” responses on a bar association listserv. And yet, this is where lawyers seek friendly advice.

After recounting her story, Carol launches into her pitch against excessive caseloads for PDs:

We have to refuse excessive caseloads, and to do this, we have to be bold, but smart. First, we already have powerful legal authority to support refusing excessive caseloads–ABA Formal Opinion 06-441 not only permits us to refuse to accept too many cases, it requires us to refuse them when the excessive nature prevents effective assistance of counsel.

When refusing additional cases, we should also get an expert opinion from an ethics professor and/or a statement from an organization like NACDL to support the refusal to accept cases. I hope to recruit a number of criminal law and ethics professors who are willing to assist us.

Then, when we say, “You can’t make me!”–whether we are making this point to a compromised boss, or a court, or a department of assigned counsel, we need to have lawyers with us to help enforce not only our client’s right to have effective assistance of counsel, but also our right to render it, and to show that we mean business.

Yep, we can!

While the concept isn’t exactly treading new turf, given how public defenders offices have threatened, and in fact refused to accept new cases in the face of their crushing caseloads that preclude their ability to provide effective representation, I guess every lawyer has their epiphany in their own time, no matter how well-worn the path. But she shouldn’t wait for some ethics professor, or worse still, a statement by the NACDL (as if that will carry the day), to do the heavy lifting for her.

The whole point of that “zealous defense” thingy is that one person, a criminal defense lawyer, is charged with the duty to stand between the defendant and the world. Panic won’t help you nearly as much as keeping an extra toothbrush in your bag. Just in case you have to be a criminal defense lawyer today.

COA To Lege: Man Up on Judicial Pay Raises

There was great doubt as to whether this day would ever come, with far too many good reasons for the New York Court of Appeals to punt a decision that was political as it gets. But they didn’t, to their credit, and despite the reluctance of so many judges to believe it was worth what was consistently called an “unseemly” effort, the court decided that the Legislatures failure to consider raising the pay of judges without tying it to their own or otherwise stuffing appropriations add-ons into the mix was unconstitutional.

The decision, in the three consolidated cases, was 5-1, with Chief Judge Lippman recusing himself as he was a plaintiff from back when he was the state administrative judge. Judge Eugene Pigott wrote the majority opinion, with Judge Robert Smith dissenting. Though rejecting most of the claims, the court held:

Although a function of the Legislature is to approve the compensation of each of the three branches, this fact underscores only the checks and balances of the system; it does not rebut the fact that the compensation to be paid to members of each particular branch must be determined separately and distinctly from the others. Indeed, whether the Judiciary is entitled to a compensation increase must be based upon an objective assessment of the Judiciary’s needs if it is to retain its functional and structural independence. Simply put, by failing to consider judicial compensation increases on the merits, and instead holding it hostage to other legislative objectives, the Legislature “[w]eaken[s the Judiciary] . . . by making it unduly dependent” on the Legislature.

The court noted that while the Governor and Legislature may haggle over budgetary issues, the judicial branch can’t engage in such political squabbling.

Judges and justices, on the other hand, are not afforded that opportunity. They have no seat at the bargaining table and, in fact, are precluded from participating in politics. The judicial branch therefore depends on the good faith of the other two branches to provide sufficient funding to fulfill its constitutional responsibilities. Given its unique place in the constitutional scheme, it is imperative that the legitimate needs of the judicial branch receive the appropriate respect and attention. This cannot occur if the Judiciary is used as a pawn or bargaining chip in order to achieve ends that are entirely unrelated to the judicial mission.

Recognizing that the Lege has used judicial compensation as nothing more than a bargaining chip in efforts to obtain its own goal of increased legislative compensation, a perpetually unpopular political cause that stymied raising judicial salaries, the court held:

But by failing to consider judicial compensation independently of legislative compensation, the State defendants have imposed upon the Judiciary the same restrictions that have been imposed on the Legislature, and have blurred the line between the compensation of the two branches, thereby threatening the structural independence of the Judiciary.

The decision is enormously bold, given how wrapped it is in the nature of both Albany politics and the open reluctance of judges to appear self-serving in deciding their own pocketbook issue. But it had to be done.

In dissent, Judge Smith doesn’t so much dispute the point of the majority, as recognize that the failure to increase judicial pay hasn’t resulted in the inability of the judiciary to find qualified people or the failure of the judiciary to perform its function. Thus, he’s constrained to conclude that it hasn’t affected judicial independence.

The last pay raise received by New York judges was a COLA increase in 1998. Since then, the caseload increased from 3.5 million to 4.5 million. The net result was a de facto reduction in spending power of one third. While this doesn’t constitute a salary reduction, which itself would be unconstitutional, it highlights how using the salaries paid to a co-equal branch of government became a political football for the others. It was wrong. It was manipulative. And left to their own devices, there is no reason to believe that the political branches of government would have changed their evil ways.

Despite the fact that the court’s decision is open to criticism from a variety of different directions, I applaud the court for making it, as I’ve no doubt it was painful to do. No judge wants to put him or herself directly in the political crosshairs, and yet that’s precisely what they’ve done. The Court of Appeals called out the Legislature, as well as the Governor, and stated that it is unconstitutional for those branches to screw with this branch.

Of course, paving the way for a freestanding decision on judicial salaries, unencumbered by the weight of collateral political issues, doesn’t guarantee the judiciary of a pay raise. The court didn’t order the Lege to raise salaries, and the Lege may still, whether as payback or given the state’s budgetary shortfall, decide that judges get squat.

Should the Lege either refuse to increase judicial salaries, or provide some insignificant increase just to shut the judges up, however, at least it will be a based solely on judicial compensation rather than as part of some general appropriations mashup. And if the people aren’t happy about it, or the judges aren’t happy with it, they will bear the political consequences of their decision. No more hiding their own pay issues behind judicial salaries, and this is how it should be when it comes to performing a constitutional duty for a co-equal branch of government.

Guess Who Got Screwed? (Update)

Answer: All three of them.

Liptak at the New York Times writes about the unbearably unseemly Texas death penalty case of Charles Dean Hood, where it was learned after Judge Verla Sue Holland dropped the gavel hard upon his head that she was letting the prosecutor, Thomas S. O’Connell Jr., have some ex parte time with her.

Naturally, the Texas Court of Criminal Appeals saw nothing wrong with this, deflecting the nastiness by hiding behind the time bar.

Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.

Was it a “love affair?” That makes it sound so very romantic, as was more fully described in the Texas decision.

Judge Cochran took a stab at characterizing the relationship in a footnote. It was misleading, Judge Cochran wrote, to say that Judge Holland and Mr. O’Connell had “an intimate sexual relationship,” though she conceded that the phrase was “literally true.”

“Theirs was hardly the torrid relationship of romance novels,” Judge Cochran clarified. It was, rather, “a close personal relationship that, on a few rare occasions, dipped into intimacy.”

Spare me. What a shame that they didn’t let Hood in on the elicit love, so he could challenge it earlier. Perhaps they could have had a ménage à trois.

The Hood case is one of the most absurd imaginable. Even for Texas, where sleeping lawyers provide effective assistance of counsel. The defense has sought review of the affirmance by the United States Supreme Court.

Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.

“A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself,” the brief from the ethics experts said. “Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.”

You think? This may be one of the most embarrassing failures of the law in years, made all the more hilarious by the efforts of the Texas Court of Criminal Appeals to white wash the problem. Except it’s not likely as funny to Charles Dean Hood, the fellow who was sentenced to death after oral argument.

Update: The Texas Court of Criminal Appeals has reversed Hood’s death sentence and sent it back for resentence. Why? Hint, not because Judge Verla Sue Holland wears support hose:

The new hearing has been ordered by the Texas Court of Criminal Appeals because the court found that Hood’s jurors did not have an adequate opportunity to consider circumstances that would call for a sentence other than death – circumstances such as Hood’s family background and allegations that he was abused as a child.

And not a word about the nookie. Now that’s the way for a dignified court to act. I’m still waiting for them to give Hood a new trial before a judge who isn’t naked under the robes. ~~Or at least a bit younger~~.

H/T Ed at Blawgreview

The Other Death Penalty

For those who believe that the death penalty is a brutal, wrong, racist, unconstitutional punishment, a primary argument against it is the availability of life without parole as a substitute. Should a defendant later be proven innocent, as happens with unfortunate regularity, they can be released from a sentence of LWOP. They can’t be resurrected.

Via Doug Berman, it appears that the argument in favor of LWOP rather than death has created a conflict.

This new press release provides further evidence that the pro-life-imprisonment advocacy by the anti-DP crowd is not appreciated by everyone. This release is headlined “The Other Death Penalty Project Announces Letter-Writing Campaign to Anti-Death Penalty Groups”, and here excerpts:

Today, thousands of prisoners around the country will be mailing letters to numerous death penalty abolitionist groups asking them to stop advocating for life without the possibility of parole as a supposedly humane alternative to lethal injection.
The Other Death Penalty Project, a group comprised solely of prisoners serving life without possibility of parole — the other death penalty — categorically rejects this hypocritical position taken by too many death penalty abolitionists. Death at the hands of the state, whether by lethal injection or lethal imprisonment, is the death penalty.

Challenges to LWOP as being some sort of gracious alternative to death was the subject of a post by Jeff Gamso, where he pointed out that it was as much a death sentence, but only took longer to execute.

Taken individually, it’s easy to understand how one could support both the abolition of the death penalty as well as life without parole. But from an intramural perspective, it’s clear that the anti-death penalty forces are undermining the anti-LWOP forces. To do otherwise is to take away their best argument, and to demand a stretch in reasoning, that not only should those who would otherwise be executed be allowed to live, but allowed to someday walk free, that much of the public would find wholly unpalatable. While they may believe it, they can’t sell it, and they know it.

The Other Death Penalty Project plans to call these anti-death penalty groups out to a public accounting by speaking for the close to 40,000 men and women sentenced to face “worse than death,” in the words of New Mexico Governor Bill Richardson. These prisoners live on the much bigger, much less well-publicized, death rows all around this country.

The numbers don’t lie. Nearly 40,000 prisoners serving life without parole dwarfs the 3,279 on death row. Clearly, there’s more bang for the buck in fighting LWOP. On the other hand, the arguments against capital punishment are far stronger than those against LWOP. While some will argue that Bill Richardson’s assessment, that it’s “worse than death,” is true, that’s a value judgment that few of us are equipped to make. My sense is that neither side has the moral upper hand on this point.

Rarely are we faced with an intramural dispute between sides with which agree, but which present such a clear and insurmountable internal conflict. I don’t want to side against either position, but realize that taking such a position is just a cop out since one undermines the other. In the past, dealing individually with the issues arising from each sentence, it was unnecessary to pick sides. The Other Death Penalty Project forces the issue, and it’s understandable that they do.

While my gut is that life without parole, the death penalty prolonged, is a horrible fate, execution is worse. But it’s no longer as clear to me as it was before. This is a real dilemma.

The Fisc Isn’t Much Better For Prosecutors

On the defense side, forces are scrambling to come up with both a means and reason to preserve the existence of 18b in New York City in the face of an RFP that, on its face, would appear to spell the death of a mainstay of the financially viable criminal defense practice. While the posturing pits various interest groups within the defense bar against each other, and today’s president wants only to be loved by all in his effort to offend no one, it took an old-timer, NYSACDL past President Larry Goldman, to spell out the problem.

Of course the City’s goal is to save money. By shifting the work from 18b to institutional defenders, especially via an RFP that compels them to provide an array of important ancillary services to their clients that suggests that the City has a meaningful concern for defendants and which 18b lawyers are incapable of providing, the City hopes to do right by indigent defendants as well as its taxpayers. There’s nothing wrong with that. In fact, from a removed position, it’s quite an admirable goal.

At the same time, the move will have a severely adverse impact on a broad swathe of the criminal defense bar. Some suggest it’s about time. Others disagree. I’m amongst those who disagree, though it would be much better if this opportunity was used to substantially improve the mechanics of 18b to eliminate that segment of the 18b bar that no one wants to admit exists. That would take strength and honesty, two virtues that are long forgotten.

But these concerns all stem from one side, the defense. Larry asks why the other side would care. While today’s President George Goltzer wants to present a stinging rebuke to the City for not caring enough about the welfare of NYSACDL members, it didn’t dawn on him that the City doesn’t care, has no reason to care, and owes its fealty elsewhere.

Past President Lisa Schreibersdorf called George’s resolution “simplistic”. George called it “simple” in a “stick your head in gravy” sort of response, George backs up his argument with war stories about himself. Lisa wins, and Larry’s question remains unanswered. Why should the City care more about providing a revenue stream for lawyers than providing indigent defense at the lowest possible cost?

The point is made clearly by Ken Lammers, who left the side of truth and justice to work for the dark forces of the Commonwealth of Virginia.

Please, Gentlemen and Ladies of the General Assembly and Mr. Governor, if you are going to cut my pay, just cut my pay. You can give me extra vacation – you can even mandate it if you want. However, a slight cut every two weeks beats a forced furlough wherein I have a significant portion of my salary for that month disappeared and have to figure out how to pay my rent, gas, food, etc. with a weeks’ pay missing.

I understand that packaging it as a furlough allows you to keep everyone’s salary up and may actually be better for me in the longer term. Therefore, I suggest a reduction in salaries with a two year sunset provision and any bonuses or raises linked to what salary will be after the sunset law has passed.

I’m not really against your proposal. I hope it saves jobs. I just would like to see it implemented in a better form.

While Ken’s preference as to where they suck the lifeblood out of his personal economy doesn’t quite jive with the fine political distinctions of furlough versus temporary pay cut, or any other variation on a theme, the fact remains that Ken is a prosecutor and the State is going to tap dance on his wallet just like everyone else’s.

No one needs to convince the Legislature why prosecutors are necessary and important to their law enforcement function. They would be more inclined to build a shrine to prosecutors than do anything to make their lives unpleasant. Yet money is tight. For everyone. In New York City, criminal defense lawyers fear the loss of their entitlement. In Virginia, a prosecutor wonders how he’s going to pay for food during the furlough. The difference is that Lammers understands that he’s a part of the whole in a government that needs to bridge a budget gap, much as it may love and appreciate what he does otherwise. He’s willing to take the hit, though he would prefer it be done in a fashion less harsh than more.

In New York City, the 18b lawyers worry about their future. Lofty expressions of purpose are used when reality is too harsh to face. There is no discussion of how the system can be reformed or improved to both maintain its basic existence (and its positive attributes) while providing greater value and economy to a cash-strapped city. Such a discussion would require lawyers to admit that things aren’t wonderful, and they aren’t wonderful. If you want to be loved by all, you don’t concede that there are problems. Anyone who says otherwise is an enemy of criminal defense.

It’s unlikely that Ken’s complaint about the furlough plan will change the way his pay cut is handled. It’s unlikely that a stinging resolution that the evisceration of 18b will reduce the number of people who want to pay dues to the NYSACDL will change the City’s RFP. Of the two, Ken’s position is more persuasive to the government because they care more about keeping their prosecutors happy than about the number of members willing to shell out cash to the Association. And yet the dialogue remains all about what’s good for criminal defense lawyers who rely on 18b to survive.

Who’s Who, Police Version

With all the sophisticated means available to law enforcement to identify individuals, the norm remains your name. If the police are looking for someone named Joe Smith, and you happen to have a name like Joe Smith, the police may be looking for you. So what if you aren’t that Joe Smith. Arrest first and let the courts sort it out.

This is what happened to Denver’s Christina Fourhorn, as she was about to pick up her daughter from school.

(CNN) — Three police cars pulled into Christina Fourhorn’s front yard one afternoon just before she was supposed to pick up her daughter at school. The officers had a warrant for her arrest.

“What do you mean robbery?” Fourhorn remembers asking the officers. Her only brushes with the law had been a few speeding tickets.

She was locked up in a Colorado jail. They took her clothes and other belongings and handed her an oversize black-and-white striped uniform. She protested for five days, telling jailers the arrest was a mistake. Finally, her husband borrowed enough money to bail her out.

As it turns out, the warrant was for a woman named Christin Fourhorn from Oklahoma. Oops. Sorry. Accidents happen, you know.

The ACLU took this case as part of their effort to demonstrate that misidentity arrests are commonplace and require changes. It took Christina almost two years to have her record expunged after her case was dismissed for mistaken identity. The problem, of course, is multifold, as one would surmise that even if the cops were so sloppy and incompetent as to arrest the wrong person based on something so clearly capricious as the same, or in this case similar, name, the rest of the system would immediately crank up to correct the error. No such luck.

It’s not that people arrested for mistaken identity don’t let anyone know about it. They invariably do, and loudly. It’s that the system, from cop to court, would rather err on the side of covering their butt than believing the “perp”. Better to keep the potential defendant in jail than risk the front page of the paper for letting the bad guy go free.

While this concern might serve as impetus for being a bit more cautious in exercising discretion in the first place, like arresting someone based on a warrant that’s close (but no cigar) only after doing everything possible to ascertain whether they’ve got the right person, the fact remains that it happens with some regularity. Whether based on a name, a variation of a name, an alias or some other indicator that reduces a law-abiding citizen to a wanted murderer, once the cuffs are slapped on, the presumption is that you’re the bad guy and it shifts to you to prove otherwise. This is often difficult to do from a jail cell, or without knowing anything about the real perp, or without having evidence beyond the mere fact that you just aren’t someone else. Proving the negative is always a problem.

As the CNN story notes, this problem is significantly exacerbated by the prevalence of identity theft, where names have become fungible and may be widely bought, sold and used.

The gut reaction to these fiascoes is that we should, given technology, be able to absolutely identify people through more reliable methods, such as fingerprints or DNA. Yet the unintended consequences of such notions, providing the government with a vast database of “inside information” about people is rife for abuse, both now and in the future. Further, these “more reliable” methods aren’t nearly as reliable as people assume, and can lead to the same mistaken identity problems, but are even harder to correct.

My solution is decidedly low tech: Think harder before doing something stupid. In almost every instance, there are a variety of factors available to police to ascertain whether they have the right person or not. Rather than rely on only one factor, name for instance, check all the descriptors, check the person you are about to nab to find out if they have been an upstanding member of the community for the past 30 years and never lived in Oklahoma. Just think before you act.

For those police officers who shrug off these mistakes as an unfortunate, but unavoidable, consequence of trying to do their job, I offer one thought. You wouldn’t be so cavalier if it was your wife who was arrested, or your daughter who was left at school waiting for mom to pick her up. Would it kill you to try a little harder not to cause as much harm as possible?

A Victim’s Guide

At Injustice Everywhere, Packratt has crafted something that, to my knowledge, has never before existed: a guide for victims of police misconduct. And Packratt should know, having unceremoniously entered the game when he, out of nowhere, found himself thrust into the role of victim.

That’s usually how it happens, ordinary person in the wrong place at the wrong time, suddenly on the wrong end of a police officer’s baton and attitude. To the cop, it’s not worth a second thought. Beat a person and he’s a perp, no matter whether it’s a bad person or a citizen. It happens that the wrong guy gets whacked, but once the deed is done, there’s no turning back. As Packratt learned, what happens afterward can be just as difficult to navigate and as bizarrely incomprehensible as the initial act of abuse.

There are 6 steps in the Guide, plus some additional thoughts that reflect sound experience. As Packratt notes, and I reiterate, the guide will not perfectly cover every scenario, nor every jurisdiction. No guide can be that comprehensive given the variables. But it’s an excellent overview and speaks to some overarching truths that a victim needs to know.

The fly in the ointment, if any, is that most victims of police misconduct won’t be aware of what to do until after they’ve made several mistakes, most notably the shift in attitude of being the outraged citizen screaming at the top of his lungs to the beaten victim,remaining silent. The problem, of course, is that no one anticipates being a victim, and therefore no reason exists to be aware of the guide beforehand.

Included in the Guide, as Steps 4, Organize Your Thoughts and Build Your Case, and 5, Find A Lawyer, But It’s Harder Than You Think. is some critical insight that Packratt learned the hard way.

Why? Again, as a person who has received a lot of letters from police misconduct victims seeking help, 9 out of 10 times they are writing while still in a state of shock and what they write barely makes sense, is missing a lot of necessary information, and is not going to help them find a lawyer who will want to take their case. Usually, it’s all a confusing jumble, but that’s mostly a symptom of the trauma and shock caused by the incident, so it’s understandable, but it can cripple their chances at finding help.

People come to lawyers with a laundry list of perceived wrongs, each of which is the worst thing that’s ever happened to anyone since the beginning of time. It’s like telling the doctor that your pain is the worst ever. It informs only that you’re angry, but not whether you have a viable claim. We need factual information, not feelings. You’ve only got a certain amount of time to explain what happened, and if you use that time to explain how you feel about what happened, you’ve wasted your time.

While every single minute detail may be critical in your mind, its unlikely to be significant legally. I’ve heard a description of the 30 second beating take more than an hour to describe. You aren’t going to get an hour to describe it. It’s not because no one cares, but because you’re one of many who want to use up the same hour, and we only get to spend it once. By organizing your thought around the salient facts, you make good use of your time. By oozing every iota of angst, you tell the lawyer that what you really need is a therapist, and provide no useful information from a legal perspective.

Sure, you were probably told that the ACLU takes any case they hear about or that lawyers would be crawling out of the woodwork to take your case… Well, you were misled. The ACLU only takes a fraction of cases, usually based on whether the case will make precedent or make a lot of headlines, they are very selective about what they take and not helpful otherwise.

Lawyers don’t like to take on police misconduct cases either. They are difficult to win and take a lot of time to build… and most police misconduct victims don’t have the money to pay them up front. So, when lawyers aren’t being paid upfront lawyers have to gauge the risks involved in taking your case against how likely it is they would win and if what they would stand to win would pay for all that time and expense they’d spend on your case. Don’t feel bad if they turn you down, it’s all business since they have to make a living too.

Common wisdom, defined as ideas that get you into worse trouble than you started with, is that anybody can find a lawyer willing to take their case just for the asking. After all, we constantly hear about frivolous lawsuits, and certainly yours is absolutely valid and filled to the brim with merit. Lawyers should be begging to take your case. As Packratt learned the hard way, it’s just not true.

Contrary to the expectations of many, not every harm caused by police will give rise to a cause of action. Cops are given more latitude in their conduct than anyone else on the street, and what normal people would perceive as an egregious act of violence becomes a mere mistaken when committed by a police officer. If you don’t like it, remember when next you vote for some law and order candidate. Even if your circumstances give rise to a cause of action, lawyers need evidence. Your swearing that you would never lie isn’t the same as medical reports and photographs. Without evidence, the best case goes south.

And then there’s the nasty issue of “damages”. Damages means compensable injuries or harm. Even if the rest of the stars align, this aspect tends to be the crushing blow for most victims. Worse still, it’s delivered not by the cop, but by the lawyer. Most of the time, the victims of police misconduct suffer little compensable harm. A day in jail, some bruises and humiliation, a dubious criminal charge (with an equally dubious disposition), and there will be no pot of gold at the end of the rainbow.

When delivering this news, the victim invariably looks at the lawyer in shock, proclaiming that her injuries are enormously significant to her. No matter how empathetically the bad news is framed, I’ve never seen a victim not blame the messenger. It can be heartbreaking, but as Packratt correctly notes, it’s a business decision. Lawyers can’t run a practice by bringing lawsuits in cases without adequate damages. And, given that few victims can pay the freight for the suit, and seek a lawyer who will take a contingency fee (a percentage of the recovery), the recovery has to be sufficient to make the suit financially worthwhile. It’s not a matter of greed, but survival. Lawyers’ children need to eat just like yours.

While Packratt advises to keep trying and to be patient and professional in your efforts, the sad truth is that many, perhaps most, police misconduct cases will never result in a lawsuit. The lawyers who do this sort of work are very picky, learning early that taking on the wrong case can destroy a practice. There are far more wrongs in the world than the law is capable of redressing, a sad but hard truth. It’s not that we don’t sympathize or agree, but we’re forced by necessity to make hard choices. We don’t want to add to your pain, but we often do.

This is an excellent piece of work by Packratt, and one that should be read by every victim of police misconduct as soon as possible. If nothing else, his experience, painful though it was, will serve to help others who find themselves in this nightmare. Again, Packratt has shown his generosity of spirit in using his horrible experience to help others. He will never receive the appreciation that he deserves for what he’s given others, and my thanks for his efforts pale in comparison to all he’s done.

The Justice Factory

One of the newest and brightest additions to the blawgosphere, Jamison Koehler, at his as yet unnamed blawg,* writes a post about ordinary injustice from his days as a Philadelphia public defender. The post exists on two levels, the surface being the point he’s trying to make, about a judge who grew annoyed with him for “wasting” her time.

After years of doing this work, I had developed a good system for pulling up the things I needed to know at a single glance at my cheat sheet. But that was only half of the battle.

The other half was to walk the client through the options and to come to a decision that the client was comfortable with.

You are doing all of this with other clients knocking on the door because they need to speak with you. You are doing this with the court crier coming out to tell you the judge is getting impatient and you’d better get your ass back in the courtroom. And you are doing this with angry and confused clients, many of whom are distrustful of you as a public defender.

On that particular day, Jamison’s daughter sat in the courtroom to watch her father at work. He tried to make sure the judge knew his daughter was there, so that she might show a bit of kindness in her demeanor and not embarrass a father. Still, he had a hearing to do at the insistence of his client, which was, in the judge’s eyes, “frivolous”, and clients to speak with, which pulled him away from the well when the judge wanted to dispense “justice” at a more rapid pace than Jamison’s conferring allowed.

Despite his having sent word via the clerk to the judge that his daughter was in the gallery, the judge’s attitude did not improve.

Later, during a break, I asked her what had happened. “You won’t believe the things they said about you when you were out of the room,” she said.

“Who said things about me?” I asked, expecting that she had heard some grumbling from within the gallery.

“The judge and the court people.”

This was a lesson for his daughter, but not the one he hoped would be learned that day. Rather than gain respect for the system, or the court, the lesson was that the law is more assembly line than bespoke. Slow down the factory that cranks out “justice” and you will annoy the foreman. The foreman doesn’t want to be annoyed. Ironically, as Jamison writes, the judge (with whom he was otherwise friendly) wanted to know if his daughter planned on becoming a lawyer after her experience in court. The foreman had no idea that her impatience and disrespect might possibly be a bit off-putting. To the foreman, the smooth running factory is paramount and, apparently, attractive.

But there was also a subtext to Jamison’s post that likely wouldn’t occur to anyone who became so inured to working in the justice factory. While Jamison takes well deserved issue with the judge’s assembly-line approach to her job, and annoyance with him for doing his too well, this part of his description is troubling.

Of the 40 or so clients I had on the list that day, probably 25 or 30 were there for trial. And for each and every person on that category, I needed to know what the charges were, what prior convictions they had, whether or not a new conviction would violate the terms of probation or parole for one of those convictions, what the prosecution alleged, what my client had said, and whether or not we had any witnesses of our own. If we did have witnesses, I needed to talk with those witnesses to assess their credibility and to determine if their testimony would help our case. If the defendant was planning to testify, I needed to make the same determination with respect to credibility and prepare him or her for what was to come.

After years of doing this work, I had developed a good system for pulling up the things I needed to know at a single glance at my cheat sheet.

This is unimaginable to me. He’s staring at 25 to 30 trial ready cases, and first needs to speak with witnesses? He’s got cases ready for trial where a defendant wants to testify but has yet to be prepped? The reasons for this are obvious; he’s a public defender with a list of defendants to represent. Every day, there’s a new list. Every day, there are new people to defend. The list grows longer, the hours in the day do not. He’s trying to do everything he can to provide an adequate defense for every human being whose life is in his hands. He’s “developed a good system” to do so. It’s a good system within a very bad system.

That Jamison would be expected to go to trial without weeks of preparation, inspecting evidence, visiting the crime scene, meeting with potential witnesses, prepping those you intend to call, preparing in limine motions, memoranda of law, jury instructions, tagging evidence, reviewing documentation at least twice, if not three times, is disturbing. There is so much to do to properly defend a person. There is no time to do any of it when you have 25 to 30 cases ready for trial.

Like Jamison, judges sometimes grow impatient with me when I announce that I am not yet ready for trial because I haven’t had an adequate opportunity to review the prosecution’s belated turnover. I’m often told that, “I’m sure a lawyer of your experience can figure it all out over lunch,” or some similarly half-flattering, half-insulting, dismissive comment intended to keep the assembly line of justice moving forward. I refuse to bite on such comments, invariably replying that while I appreciate the court’s faith in my abilities, I nonetheless require preparation time lest my inadequacies deny my client his right to an adequate defense. I do not embarrass easily.

It’s easy for Jamison to overlook the fact that, as a public defender, he had 25 to 30 cases ready for trial for which he was wholly unprepared. That’s was his ordinary life as a public defender. Ordinary injustice is what the factory produces, and it cranks out a ton of it every day.

______________________
* Jamison, attempting to straddle the marketing blawgosphere and the substantive blawgosphere, goes by the name Koehler Law Blawg in the hope that it will draw business to him, while allowing him to write substantive posts and participate in the blawgosphere. While his posts are interesting, his writing is excellent and he’s got much to offer, my emphasis on the substantive blawgosphere rather than the marketing blawgosphere precludes my linking to his “marketing name.” I hope that asides such as this will push Jamison to forego the marketing angle and give his blawg a real name, so that I can provide more helpful link love in the future.

Educate Me

In my recent post about the kiddie swarm attacking Amy Alkon for not being politically correct, a number of comments were posted by nasty little children that never saw the light of day. One poster, a newcomer to SJ (as is often the case when I post on a subject of interest to those not normally inclined to concern themselves with issues of criminal law) decided to take me on, and I allowed a series of his posts to show.

He was clearly some kid who was going to teach me a lesson for trying to challenge the wisdom of the Flies. For all I know, he may be the Lord of the Flies himself, given that his email name was “worldruler”, which, when I called him out on this detail, he responded that I was a superficial idiot to judge him for this. Oddly, I understand his point, since every child these days believes that he’s the ruler of the world. Or should be.

But in his final comment, he caught me by surprise, saying something that revealed far more than he could possibly realize.

It’s sad, really. You’re like Alkon, unable (or perhaps unwilling) to understand the culture of the Internet. So you take offense at our customs and violate our most sacred taboos, and when someone comes to educate you, you blow him off as a “narcissi(s)tic idiot.”

Note that one of his side issues was that I was a “regular idiot” for my failure to use spellcheck when I called him a “narcissitic idiot.” This was a critical, and inexcusable, flaw to the child. The old man, proud of the day he bought his first IBM Selectric II, failed to use spellcheck. There are no typos in a spellcheck world.

For all the lawyers who’ve endured my ridicule of the Slackoisie and their mentality of entitlement and narcissism (spelled correctly without benefit of spellcheck), and who are bombarded with self-proclaimed experts telling them to change the world to make their slacker lives more fun and pleasant, this is what you are up against. They aren’t satisfied with work/life balance. They won’t love you because you care deeply about their global values evolution. You can’t win their hearts by giving every one of them a trophy.

What you don’t realize, and the experts don’t know, is that they believe they already own the world. They have their own customs. They have their own sacred taboos. What they are doing is educating us, the dinosaurs who still stumble around until we finally collapse and die, about how they will change everything once they seize control. They, we are told, come from the culture of the internet. We are history.

Some say that this is just typical generational squabbling, as our father said of us and our grandfathers of them. It means nothing, and the children will mature when the responsibility of carrying on is placed in their hands. They will manage, as did we and our fathers before us. This is wrong. The World Ruler is right. The culture of the internet has changed the game.

There can be no question that the digital world has fundamentally altered the way we exist. It’s made information remarkably available to anyone for the asking. It’s changed the nature of human interaction. These are both good and bad things, but for those who grew up with the internet, it’s simply the way things are. Much has been lost to the internet, the ability to distinguish between good information and bad, the beauty and depth of true interaction and real thought.

The digital world has empowered every kid to believe that he’s got nothing to gain from human experience, that he not only knows everything there is to know, but is fully prepared to hold a place at the table with the rest of society from the moment his fingers can dance on a keyboard.

Many of my contemporaries won’t believe me. Their lives haven’t changed that much. They haven’t experienced the brilliance or wrath of the Slackoisie. They exist in a transitory time warp, where the old continue to exist as they always have, using some of the peripheral aspects of the digital world and thinking that makes them hip and savvy. They have no idea of the culture that has grown up around them, but of which they know little. They laugh at kids texting, with their cute little shortcuts and emoticons. Harmless childish stuff.

What they don’t see is the empowerment of the lowest aspects of human nature in children, their disdain for duty, responsibility and honor, quaint phrases for which no shortcuts exist because they are never uttered. They chalk up the children’s simplistic and self-serving expressions as lack of maturity. “They’ll grow up when it’s their turn,” they say. What they don’t recognize is that these are children whose ideas have been reduced to 140 characters, and who will always seek an expedient way to shortcut understanding of more complex problems. They will not find solutions because their world is built around magic bullet answers. They are proof that H.L. Mencken was right. They are Oscar Wilde’s cynics. They will not learn. They will just Google the question.

And what makes me know this? One of the benefits, if one can call it that, of blogging is that I hear from a wide swathe of people with one thing in common. They spend time on their computer in the digital world. When old men try to stick their nose into this world, using the mechanisms that worked well in face to face interactions, they often appear foolish and disconnected. To many of the Slackoisie, that’s how I appear. I refuse to use words like “tweet”, and have been viciously castigated by children who inform me that I’m so uncool that they can’t bear to read me. I can live with that.

Others find that their lack of computer savvy, their reliance on personal credibility in a world where credibility no longer matters as every anonymous day-tripper believes that he’s the center of the digital universe, taints them. Sometimes, they deserve to be treated like internet pariahs, where the only thing that stopped people from telling them that they were boors and intellectually deficient before was that it was poor form to insult someone to their face. Now that no one need actually look into another person’s eyes, insults are easy and old fools aren’t immune from the truth any longer.

My child commenter, the World Ruler, is wrong, yet right. There is a culture of which I am not a part. While I may know more about it then most people of a certain age, it moves so quickly and morphs in ways I would never anticipate that it’s impossible to stay on top of it while watching from the outside. And I have no delusion that I’m not on the outside.

By denying this is happening, by denying this is a problem, by believing that support, encouragement and acquiescence is enough to overcome the Slackoisie, we do our children a horrible disservice. Life is not limited to what happens on a computer screen. By the time they realize that every problem they face, and they will face as many as we did, does not have a magic bullet solution that can be expressed in 140 characters of less, they will have done themselves grievous harm. We need to stop encouraging this now. It’s not just a harmless prank. If we help to perpetuate this immaturity, they will never grow up and take responsibility.

Client Service, And All That Guff

The email from Stephanie West Allen at Idealawg pondered what exactly was meant by the linked post by self-proclaimed Leadership Expert Andrew Hughes. I had to first get past the leadership expert part.

Andrew Christopher Hughes

Andrew Hughes is a Leadership Expert and Master Coach, helping businesses and individuals develop courageous and authentic leadership patterns that produce superior and permanent results. Andrew is an experienced and successful leader with impressive leadership credentials in the legal industry as part of the senior leadership team of a national law firm. He is now a Director of Dare2XL and is located in Newcastle, Australia.

Where do these people come from? Who buys into this crap that they are experts in anything? We are inundated with self-proclaimed experts busily selling their guru-dom to the intellectually challenged. Are there really enough weak-minded losers to keep an industry of snake oil salesmen afloat? Apparently so.

The post that Stephanie referred to was another of the Slackoisie, the world is changing so you better change with it, bits of nonsense. The sort that seeks to justify selfishness and entitlement, the typical Slackoisie traits, as the new rage for lawyers in place of those nasty, old-time characteristics of hard work, responsibility and excellence in representation. Here’s what our grinning expert had to say:

Values have changed
As illustrated by the ‘problems’ firms are experiencing with X and Y geners, there has been a global values evolution. These generations are less willing to accept the same incursions on their family and social lives in return for rewards in the future. They are also less tolerant of organisations that fail to give them the opportunity to be part of a larger cause, one that exists outside of a profit motive or the meaningless client service guff that is often dished up.

Meaningless client service guff? I wonder what the clients think about that. I wonder whether the clients agree that they’re paying lawyers so that they can feel good about themselves, have their newly-changed values indulged, on the clients’ dime and at the expense of their representation. After all, isn’t lawyer happiness the primary concern of clients?

He’s certainly right that firms are experiencing “problems” with generations X and Y. (No, not you. You’re wonderful, just like mommy said. It’s the other ones I’m talking about.) That they believe that their professional responsibility is all about what makes them happy, and pays for the Beemer, is bad enough. We certainly wouldn’t want the young set to do anything that required effort or inconvenience. That would conflict with their values, and as our leadership expert informs us, we can’t have that.

But that this expert informs us that client service is “meaningless guff” is fundamentally absurd. The only reason lawyers are given their ticket is to serve clients. Without clients, we would be sweeping streets, provided anybody would hire us given the lack of sweeping skills. Clients are why lawyers exist. And yet our expert has it the other way around, that clients exist to provide a fun and profitable place for lawyers to go during the day so they don’t have to sit on the couch eating Cheetos and watching Oprah.

Given that lawyers are having such difficulty dealing with the Slackoisie, and for the most part cannot comprehend how new lawyers have so fundamentally misconstrued the reason why they are handed a very substantial paycheck every other week, people are searching for ways to make things work. The young set sees posts like this expert’s and believes that they are right to demand changes that make them happy and fulfilled. Older lawyers, who are discontent with the law fail to notice the absence of logical nexus between their discontent and the Slackoisie solution (though they will figure it out soon enough when the college tuition bill arrives) see acquiescing to the demands of the Slackoisie as the path of least resistance. And everyone looking for an excuse to indulge their weaknesses and self-interest at the expense of their clients will embrace this nonsense.

When lawyers forget that its all about clients, then it’s over. Our purpose is lost, together with all the good perks we get for being lawyers. Does this mean that leadership isn’t all about work/life balance and new values? I’m afraid it does. Sorry.