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Recent Blog Posts
In Comal County, a Big Deal for Indigent Defense
Following on my last two posts...
The complicated problem is that the Gideon decision created attorney-client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States.Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.
Avoiding the Criminal-Defense Confidence Game
In The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession, Abraham S. Blumberg's major thesis is that criminal-defense lawyers are turned from their duties to the client by the system to get their clients to plead guilty. This is a fair characterization overall, but not universally. Most criminal-defense lawyers put the client first-before personal and professional relationships and "clients"-to some extent.
Those at the "lesser" end of that spectrum are clearly derelict in their duties; those at the "greater" end are paragons of Sixth Amendment virtue. ((Even a paragon puts her own interest in behaving ethically ahead of the client's interest in being free. There are lines that not even a paragon will cross for the sake of the client.)) Most criminal-defense lawyers are neither derelict nor paragons, but somewhere in between. There are few who could not do a better job of subjugating all else to the client's interests.
Everyone Hiring a Criminal-Defense Lawyer Should Read This
In Casual cruelty–part two Judge Kopf mentioned "Abraham S. Blumberg's 1967 classic entitled The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession."
Confidence games, law, and the cooptation of the profession? That sounded right up my alley. I found a copy in the wild. After reading it a couple of times, I am convinced that it is something that everyone needing to hire a criminal-defense lawyer should read and understand. It is poorly written ("classic"?) and unsourced, but utterly cynical and mostly true.
Read it.
(sorry, the link is unavailable)
A Few Words for Dr. Michael Parsa
Most Western European and North American social and medical systems operate under the primary ethical principle of autonomy. This principle allows the individual to determine the degree to which he or she will participate, or not, in any specific activity, including health care. For the patient to exercise autonomy, he or she must have a degree of understanding of his or her choices. Hence, medical providers have a subsidiary ‘‘duty to inform'' the patient about possible diagnoses and obtain informed consent for performance of indicated tests. This allows the patient to consider a risk/benefit ratio meaningful to him or her.
8 Academic Emergency Medicine 12, at 1197.
The principle of autonomy and the duty to obtain informed consent are such commonplaces that the authors of that article didn't even find it necessary to provide a citation: Rest. Obv.
How peculiar, then, that twelve years later one of the authors, Dr. Michael Parsa, should be sued for performing intrusive medical procedures on a patient against the patient's express wishes.
5th (and Final?) Annual Criminal-Law Blog Post of the Year
Over at Simple Justice, Scott Greenfield is taking nominations for the 5th Annual Jdog Memorial Best Criminal Law Blawg Post:
It's that time of year again! Time to recognize the effort and thoughtfulness of criminal law blawgers with our annual Best Criminal Law Blawg Post, which has been dedicated to the memory of our dear friend Joel Rosenberg.Unlike the other Beauty Pageants in the blawgosphere, the idea here is to provide a platform to revisit the excellent work done over the past year.
Defending People is a small-batch blog, with a limited but discerning readership. I'm certain that each of you has seen posts on other blogs that deserve nomination for Best Criminal-Law Blawg Post of 2013. Please do visit Greenfield's post and nominate your favorites.
Here are a few other criminal-law blogs with particularly good writing to add to your "must read" list, if you aren't already doing so:
Parsa and Cabanillas, Medical Abusers
From the Plaintiff's Complaint in Jane Doe vs. El Paso County Hospital District, No. 3-13-CV-406-DB, in the United States District Court for the Western District of Texas, El Paso Division:
9. Defendant Michael Parsa is a medical doctor employed by the University Medical Center of El Paso. At all times relevant to this Complaint, he was acting in the course and within the scope of his employment. He is sued in his individual capacity.10. Defendant Christopher Cabanillas is a medical doctor employed by the University Medical Center of El Paso. At all times relevant to this Complaint, he was acting in the course and within the scope of his employment. He is sued in his individual capacity.* * * * *35. Without obtaining consent or obtaining a detailed medical history, Defendants Doctor Christopher Cabanillas and Doctor Michael Parsa (collectively called "Doctors") continued the search for drugs along with agents Portillo and Herrera.36. Medical Center staff wheeled a portable toilet into the room and directed Ms. Doe to ingest a laxative. CBP agents Portillo and Herrera removed the tape from Ms. Doe's pants and remained in the room with her while the laxative took effect. The agents observed Ms. Doe have a bowel movement. No evidence of internal drug smuggling was found as a result of this search.37. Defendant Cabanillas, in consultation with Defendant Parsa, ordered an X-ray of Ms. Doe's abdomen. Medical Center staff X-rayed Ms. Doe, subjecting her to unnecessary radiation. According to medical records, the exam produced "[n]o evidence of radiopaque foreign bodies."Ms. Doe's Anus and Vagina Were Probed Without a Warrant, Consent or Any Suspicion of Internal Drug Smuggling38. Even though prior searches resulted in no evidence of internal drug smuggling, CBP agents and the Doctors continued the intrusion on Ms. Doe's body without her consent and without a warrant.39. After the X-ray, Ms. Doe was again handcuffed to the examination table. CBP agents Portillo and Herrera and Medical Center personnel were present in the room. Defendants left the door to the examining room open, and Ms. Doe could see hospital personnel at the nurses' station in the hallway. She was angry that CBP had not released her and scared about what would happen next.40. Defendant Parsa entered the examination room and barked an order that Ms. Doe spread her legs. She complied.41. Ms. Doe was mortified. Defendants did not even have the decency to close the door to the examining room so that Ms. Doe would not also be subjected to being observed by passersby as she endured a forced gynecological exam.42. Defendant Parsa then conducted a series of examinations. While agents Portillo and Herrera and other Medical Center staff watched, he inserted a speculum into Ms. Doe's vagina and observed the interior cavity. According to medical records, Defendant Parsa did not see any foreign objects or evidence of internal drug smuggling.43. Defendant Parsa also stuck his fingers into Ms. Doe's vagina while palpitating her abdomen. This bimanual cavity search was negative: According to medical records, Defendant Parsa did not feel any foreign objects or evidence of internal drug smuggling.44. Defendant Parsa also conducted a rectal examination: he inserted his fingers into Ms. Doe's rectum and probed the orifice for foreign bodies. According to medical records, Defendant Parsa did not feel any or find evidence of internal drug smuggling.45. While her rectum was being probed, agents Portillo and Herrera and Medical Center staff watched. Ms. Doe felt that she was being treated less than human, like an animal.46. Ms. Doe was shocked and humiliated by these exceedingly intrusive searches. That an audience of CBP agents and Medical Center staff observed her being probed compounded her feeling of degradation.The Government Continued Searching Ms. Doe Even After Visual and Physical Inspections of Her Vaginal and Rectal Cavities Produced No Evidence of Internal Drug Smuggling47. Still not satisfied, CBP and the Medical Center employees subjected Ms. Doe to yet another procedure.48. Defendant Cabanillas, in consultation with Defendant Parsa, ordered a CT exam of Ms. Doe's abdomen and pelvis. During the CT scan, Medical Center staff barraged Ms. Doe's body to create a three dimensional image with more detail than a typical X-ray. In so doing, they forcibly exposed her to "between 150 and 1,100 times the radiation of a conventional x-ray, or around a year's worth of exposure to radiation from both natural and artificial sources in the environment." According to medical records, the exam resulted in "[n]o... evidence of ingested radiopaque objects."49. After the CT scan, a CBP agent presented Ms. Doe with a choice: she could either sign a medical consent form, despite the fact that she had not consented, in which case CBP would pay for the cost of the searches; or if she refused to sign the consent form, she would be billed for the cost of the searches. She refused. The Medical Center consent form reflects that Ms. Doe withheld consent: "Refusal to Sign" is written in the patient signature line, a refusal witnessed by Jessica R.
The Lawyer and the Psychic
I feel for Michael Busby. According to him, he was having marital trouble, so he went to a professional. He paid good money-$530-for a solution to his problem. And things went wrong. The professional took another $2,700 from him, which he says he put in a box for the professional to cleanse and return to him. Ten days later she had not returned it. So he sued her.
It'd be so easy to snark: A lawyer, a professional upon whose judgment people in distress rely, loses his money by giving it to a blatant charlatan and then publicly admits it by filing a lawsuit.
And yet...
Yet Busby went to the psychic for love. Love makes people-even lawyers-do desperate, foolish things.
And rather than be embarrassed at having done a foolish thing for love, Busby went to the courts to seek redress, to get money back for himself, and to protect-it is hoped-other people from the depredations of crooks. For while we might expect lawyers to know better than to give money to psychics, we don't expect this of everybody-clearly many people get ripped off by psychics, because if psychics didn't rip people off, psychics wouldn't exist.
Affluenza?
A sixteen-year-old kid gets a bunch of buddies in his truck. They steal a couple cases of beer and go speeding down a dark road with lots of blind corners.
Suppose that he gets pulled over at mile marker 20 and is taken into custody for DWI. It's his first brush with the law. Should he go to prison?
I suspect that the answer is "no." Prison is gross overkill for a sixteen-year-old's first DWI. We expect sixteen-year-olds to do stupid things, and we don't toss kids in prison for being kids. Juvenile court is about the need for supervision; driving drunk indicates a need for supervision, but not for warehousing. The kid on probation can be guided to make better choices and can be taught to work to make the world a better place. Meanwhile, there's a sword hanging over his neck: if he violates the probation, he can be sentenced to custody. Prison is for people we are afraid of. Probation is for people we are mad at. Prison is a school for crime. Send a sixteen-year-old to prison, and you're creating a lifelong criminal.
A Rakofsky Do-Over
Remember Joseph Rakofsky, who took a murder case straight out of the law-school gate, a mistrial was granted, the judge said mean things about his ineffectiveness on the record, the Washington Post picked up the story, the practical blawgosphere picked up the story, he sued the Internet, and he got poured out (after settling with a law school, seeking counsel on Craigslist, and an absurdist novelsworth of hijinks)?
Yeah. That Joseph Rakofsky.
If you could go back in time to before the trial started-when Rakofsky just knew he was going to win-and say something to young Joseph Rakofsky, what would it be? Would you tell him something to help protect his client? To help him save his own reputation and career?
Here's your chance.
Maverick Ray has taken a capital murder case in Walker County, Texas (Huntsville is the county seat; think "juries packed with prison guards and their families"):
Unmockable
The law is a self-mocking profession. There's no need to make fun of it or its practitioners because so many of them are doing such a great job of making themselves the subject of fun. They just need a little spotlight for the comedy to come alive. I like to think that from time to time I provide that spotlight, and maybe a little context so that the layperson can better appreciate the jokes.
I know that there are some stuffy establishment lawyers who think that it's bad for lawyers to cast the profession in an unfavorable light, but I disagree. Only those who think the profession depends on fraud for its prestige ought to object to the casting of a truthful light on the profession. To those who believe that this venture in which we are engaged is a worthy one that stands on its own merits, there is no downside to casting light on the unethical and the clownish on the bench and in the bar. When I call your attention to the hijinks of some yahoo lawyer or judge, I'm increasing knowledge and improving the profession.
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