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Recent Blog Posts
The ACLU's Decision Making Process
An anonymous public-defender commentator to my last post wrote:
So, long story short, I contact the local ACLU chapter to see if they were interested in an amicus brief or in helping me appeal the the U.S. Supreme Court. I was shocked to hear that the NCLU could not assist me as they believed that the due process rights of students to attend school trumped my client's right to call people offensive names in school. Not only that, but the NCLU was even sponsoring anti-bullying legislation and for that reason would be also unable to assist.In other words, what I thought of as the great defender of free speech was one of the parties eagerly chipping away at it, unconcerned with the collateral damage.
That sounds to me like a really bad call on the part of the NCLU. Preventing bullying is not really part of ACLU's brief. Sponsoring legislation that gives the government more power to interfere in people's lives (as does all criminal legislation) is the opposite of what the ACLU should be doing. (For those watching at home:
Sad and Ironic but Not Surprising
Over at Blonde Justice the Blonde has two posts (Sad Irony and More Sad Irony) about a DuPage County, Illinois prosecutor who killed herself and maimed another driver in a car crash. The prosecutor was driving a county car; her BAC was 0.25 at 3:45 in the afternoon. The "sad irony" is that the prosecutor had, in 1998, sent another woman to prison for 13 years for intoxicated manslaughter.
Prosecutors responded to the Blonde's first post on the subject. One said:
The fact that I might be tempted to steal or commit an assault doesn't and shouldn't make me less dedicated to the idea that theft and assault are crimes and need to be punished. If I myself engage in those crimes, I would hope that I would be treated as any other similarly situated offender: in fact, I should perhaps be punished more severely since I oughta know better!
Doing the Right Thing? It Could Cost You!
The Second Circuit has struck a blow for puritanism (as defined by H.L. Mencken - "the haunting fear that someone, somewhere, may be happy") in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany. In that case the court considered the standard that should be used for approving lawyers' fees in a civil case in which the statute provided for the loser to pay the loser's fees.
The winner's lawyers, Manhattan's Gibson, Dunn & Crutcher, may have violated the hog rule (pigs get fat, hogs get slaughtered) when they asked for $107,000 in fees for a "single-issue" appeal with six pages of argument (New York Times editorial). The district court slashed their fees, and they appealed.
The Second Circuit held that fees should be "what a reasonable, paying client would be willing to pay." (Since a district court will only be awarding legal fees to the winner, though, shouldn't fees be "what a reasonable, paying client would be willing to pay for assured victory?")
Warrantless DWI Blood Draws, and a Urinary Catheter
Harris County intends to get a search warrant to draw blood from anyone who, having been arrested for DWI this (Memorial Day) weekend, refuses to provide a breath sample (Houston Chronicle). A judge will be on call to sign warrants and MADD will provide nurses to draw the blood.
In the 1966 Supreme Court case of Schmerber v. California the Court approved a warrantless blood draw based on probable cause for DWI on the theory that an emergency existed because the accused's blood alcohol content might diminish while the police awaited a warrant. This weekend (when a warrant can be obtained within 10 or 15 minutes of a driver's stop) such an emergency won't exist, so if the police don't get their PC affidavits and warrants right the blood test results will be suppressible.
Meanwhile, a Fort Bend County lawyer reports that the Sugar Land, Texas Police Department, after drawing blood, forcibly inserted a catheter into the penis of a DWI arrestee who had refused a breath test.
“The Question” and Compassion
Ed Chernoff, who blogs beautifully but infrequently, writes here about "The Question" and an encounter with a dove.
(It seems that nobody ever asks me "The Question" anymore. I don't know why that is; I may just be associating with more compassionate people than I used to.)
Ed's cat Willie brought Ed a dove. Ed saved the bird. Then, writes Ed, "Willie watched it go, and then looked up at me with what I perceived to be pity." To Willie, doves are prey. The fact that they are prey (and cats are cats) only by an accident of birth does not change that fact. Cats have no compassion for doves.
Most people are like Willie. They can't understand why we try to deprive them (society) of their (its) prey. Without compassion nobody will ever understand why we defend; with compassion nobody will ever need to ask.
The Artist as Frustrated Lawyer
In On Acting, by legendary acting teacher Sanford Meisner, Meisner's assistant reads to his acting class an excerpt from Sigmund Freud's Introduction to Psychoanalysis:
The artist has also an introverted disposition and has not far to go to become neurotic. He is one who is urged on by instinctual needs which are too clamorous; he longs to attain to honour, power, riches, fame, and the love of women; but he lacks the means of achieving these gratifications. So, like any other with an unsatisfied longing, he turns away from reality and transfers all his interest, and all his libido too, onto the creation of his wishes in the life of fantasy....
Someone once told me, and I long accepted, that all lawyers are frustrated artists. Lots of lawyers have creative hobbies - music, theatre, writing, painting, photography - that they think they would pursue if only they had the time or the temperament or the talent. The only job that I can think of that I would have than my own is Jimmy Buffett's - a job for which I am transparently and immutably unqualified.
Scaled Questions in Jury Selection
I often use a scaled question or two near the end of jury selection, and find such questions to be very useful tools for getting potential jurors to rate themselves (essentially, though not explicitly).
A scaled question is a question that calls for an answer on a continuum. For example, "On a scale of one to ten, with ten being most important and one being least important, how important is it to you that the guilty be punished? On the same scale, how important is it to you that the innocent go free?"
The example is a two-part scaled question; I would ask both questions at the same time, writing them up on the board for the panel's reference. When the time came to deselect the jury, I would subtract the first from the second. I wouldn't choose my strikes based solely on this number, but a negative difference (first number higher than second; "punish the guilty" more important than "free the innocent") or a zero or one would be a warning sign that might make me reconsider a decision not to strike, or (more likely) solidify a decision to strike.
The Other Problem With Hourly Billing
Scott Greenfield writes about why hourly billing doesn't work for defenders:
First, sometimes our clients are criminals, and hence a tad short of trustworthy. Second, our clients can be mercurial, and their desire to pay fluctuates with their impression of how the case is going. Third, "stuff" happens, so even the best intended clients may find themselves about to go on trial and suddenly lacking in the wherewithal to carry the load. For obvious reasons, this creates a rift between lawyer and client that cannot exist if the lawyer is to maximize the potential of winning. The lawyer must focus on one goal, and one goal only. If his focus is split between the client and his fee, there will be problems.As for me, I have a somewhat different reason that pushes me far, far away from hourly billing. I do not want someone who has no idea how much time and effort I put into a defense to start questioning why I spent 7 hours "thinking".
How is Baseball Like Trial?
I am in New York right now helping a person accused in a federal drug case that's pending in the Southern District of New York (in Manhattan); last night I got to watch the Yankees play the Mets at Shea Stadium (which isn't going to be around much longer - they're building the new park next door).
As a lover of metaphor, I feel that any worthwhile human endeavor bears similarities to every other, but I guess I don't know enough about baseball to say how baseball is like trial (and Google provided absolutely no help).
Any thoughts?
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