Posts
I just read one of the most surreal oral argument transcripts I have ever seen. Wednesday at the U.S. Supreme Court, the justices heard the case of Pottawatamie County, Iowa et al vs. Curtis McGhee et al. The case started back in 1977 when McGhee and Terry Harrington were prosecuted for murder. But the prosecution was flawed from the start as the prosecutors failed to turn over evidence of another suspect and coached the witness who proved to be the key witness against the two. In short, the prosecutors told that witness what to say to frame these two defendants.
Cut to 2003 when the convictions unraveled. Once exonerated, the two defendants sued a bunch of people, including the two prosecutors. The prosecutors responded that they were protected by the absolute immunity courts have previously afforded to prosecutors engaged in their trial duties. Wednesday's oral argument centered around this question of whether prosecutors who fabricate evidence in the investigation stage should be immune from civil suit if they then use that fabricated evidence at trial. Of course, the prosecutor's attorney also argued there wouldn't have been any Due Process violation if the prosecutors had fabricated evidence and then it had NOT led to convictions. Basically, prosecutors can truly do no wrong. Well, they can never be sued for it, at least. Either they're immune or there's no liability.
The transcript of this argument was oddly seductive, even as a part of my brain screamed about how ludicrous this all is. The Court spent a lot of time arguing about when, or if, a Due Process violation occurs if a prosecutor fabricates evidence and whether a prosecutor who fabricates evidence can protect himself from subsequent suit by actually using that evidence at trial (because then the absolute immunity at trial would kick in). As I read it, I kept screaming in the back of my head, "We're talking about prosecutors fabricating a witness' testimony that was used to convict two innocent boys of murder!" It was easier than you might think to get sucked in to the prosecutors' argument about why absolute immunity should prevail. They use big, shiny words and innocuous phrases that make it all seem so reasonable to declare prosecutors have immunity for their activities. I could see that these prosecutors truly believe it would have a chilling effect on prosecutors if they are able to be sued for misconduct during pre-trial investigations. Prosecutors will be afraid to do their jobs if they think they might be sued later! While that sounds good, the rational part of my brain kept muttering, "Umm, is fabricating evidence really a part of their jobs?" I could see justices were also quite willing to buy into this idea that it would be a terrible policy idea to allow wronged defendants to sue their prosecutors, overlooking the idea that it's terrible policy to allow prosecutors to fabricate evidence and use that evidence at trial without fear of reprisal.
But as soon as you step away from the world of sterile legal concepts and legalese, stop reading the transcript and put down the briefs and case law, there's really only one rational answer: OF COURSE defendants should be able to sue prosecutors who fabricate evidence against them to secure convictions. OF COURSE that behavior should not be protected in any way, shape, or form. OF COURSE such a ruling should (we hope) have a chilling effect on prosecutors: they might think twice before coaching a witness in exactly what to say to implicate an innocent defendant!
Sure, like any case, it may lead to some non-meritorious law suits, but shouldn't we be able to trust our trial system to weed out the frivolous suits? That seems like a small price to pay so that the truly wronged defendants, like Curtis McGhee and Terry Harrington can sue the crap out of the prosecutors who stole over 20 years of their lives. After reading that oral argument transcript, though, I'm not all that optimistic that such a clear, obvious, rational answer will prevail.
Wednesday, November 4, 2009
He did not just do that!
Oh, but he did. Here's the video that's making the rounds in the criminal defense world today. It's about 10 minutes long, so if you don't want to watch the whole thing, I'll recap it. But it's worth watching if you haven't seen it yet just because it's so unbelievable.
Here's the short version: While the defense attorney is standing at the podium with her client, presenting her case for sentencing to the judge, the sheriff's deputy who is in the courtroom comes to stand right behind the defendant, between counsel tables. From there, he looks down at the defense attorney's file, which is on the corner of her counsel table, right behind the attorney. The deputy sees the bottom of a piece of paper in the middle of the file, so he pulls it out. He then motions to another deputy in the room who comes over, takes the paper, and leaves the courtroom. It's only then that the defendant alerts his defense counsel that something is amiss.
There are several reactions to this situation. First, this all happened in the judge's direct line of sight. There's no way she couldn't see the deputy's actions. How did she not react to this happening right in front of her? As a defense attorney, I need to be able to trust that any judge I practice in front of would have my back, or rather my client's back, in a situation like this. For a deputy to be looking at defense counsel's file is a gross violation of attorney-client privilege and the judge ought to make sure any deputy working security in her courtroom would never do such a thing.
Then you have to wonder about the prosecutors who had to have been able to see this deputy. Not one of them thought to pull the deputy aside and quietly order him to put the paper back? Not one of them thought to stop the other deputy from leaving the courtroom with whatever was stolen from the confidential file?
Next, I can't let the defense attorney herself off the hook. She probably shouldn't have turned her back on her confidential file, although, like her, I want to believe that I can trust grown professionals in a courtroom to respect my privileged materials without my having to watch those materials like a hawk for every second. Also, I wouldn't have been so agreeable to holding a hearing at some later date in some less private location. I would have probably gone a little nuts (ok, a lot nuts) and demanded that we get an explanation from the deputy right then, before he could have time to create a plausible excuse for his behavior.
A judge who heard evidence on this issue last week has so far bungled the thing hideously by finding that the pilfered document was privileged, but he couldn't find the deputies in contempt unless the defendant would waive his privilege so they could discuss the contents of the document in an attempt to defend their actions. Yes, that is as ridiculous as it reads. Because if the document was privileged, there is no defense. If the document was privileged, the deputy had no business taking it. And, of course, regardless of the contents of the actual document, the deputy had no business sidling over to the table and peeking through the file to find that document.
Lots of other blog posts and articles have already been written expressing the outrage about this situation. Here and here for a start. I am sure you all can guess that I think it's utterly outrageous that a sheriff's deputy feels entirely free to walk up to defense counsel's confidential file, rifle through it, and remove a document for copying. I would raise holy hell if this happened to me and my client.
But the thing that I really want to say is this: There's a school of thought out there that we don't need the exclusionary rule. We don't need to exclude evidence that was obtained in violation of the 4th Amendment because we have sufficient other means of deterring bad police behavior. And, most notably, we no longer need the exclusionary rule because of "the increasing professionalism of police forces, including a new emphasis on internal police discipline." This isn't just an argument being pushed by prosecutors or law professors. This idea of the "new professionalism of police" comes straight from the top: Justice Scalia himself wrote it in Hudson v. Michigan in 2006, openly questioning whether the exclusionary rule should remain the law. As Scalia wrote, "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously."
Well, your honor, is this sheriff's deputy brazenly taking privileged documents from a confidential defense file the sort of new professionalism you wrote about? Is this more evidence that law enforcement across this country takes constitutional rights (like the right to counsel) seriously? I would submit this incident is Exhibit A for why we most definitely need an exclusionary rule: because sheriff's deputies feel no compunction about rifling through the defendant's confidential materials in open court.
Here's the short version: While the defense attorney is standing at the podium with her client, presenting her case for sentencing to the judge, the sheriff's deputy who is in the courtroom comes to stand right behind the defendant, between counsel tables. From there, he looks down at the defense attorney's file, which is on the corner of her counsel table, right behind the attorney. The deputy sees the bottom of a piece of paper in the middle of the file, so he pulls it out. He then motions to another deputy in the room who comes over, takes the paper, and leaves the courtroom. It's only then that the defendant alerts his defense counsel that something is amiss.
There are several reactions to this situation. First, this all happened in the judge's direct line of sight. There's no way she couldn't see the deputy's actions. How did she not react to this happening right in front of her? As a defense attorney, I need to be able to trust that any judge I practice in front of would have my back, or rather my client's back, in a situation like this. For a deputy to be looking at defense counsel's file is a gross violation of attorney-client privilege and the judge ought to make sure any deputy working security in her courtroom would never do such a thing.
Then you have to wonder about the prosecutors who had to have been able to see this deputy. Not one of them thought to pull the deputy aside and quietly order him to put the paper back? Not one of them thought to stop the other deputy from leaving the courtroom with whatever was stolen from the confidential file?
Next, I can't let the defense attorney herself off the hook. She probably shouldn't have turned her back on her confidential file, although, like her, I want to believe that I can trust grown professionals in a courtroom to respect my privileged materials without my having to watch those materials like a hawk for every second. Also, I wouldn't have been so agreeable to holding a hearing at some later date in some less private location. I would have probably gone a little nuts (ok, a lot nuts) and demanded that we get an explanation from the deputy right then, before he could have time to create a plausible excuse for his behavior.
A judge who heard evidence on this issue last week has so far bungled the thing hideously by finding that the pilfered document was privileged, but he couldn't find the deputies in contempt unless the defendant would waive his privilege so they could discuss the contents of the document in an attempt to defend their actions. Yes, that is as ridiculous as it reads. Because if the document was privileged, there is no defense. If the document was privileged, the deputy had no business taking it. And, of course, regardless of the contents of the actual document, the deputy had no business sidling over to the table and peeking through the file to find that document.
Lots of other blog posts and articles have already been written expressing the outrage about this situation. Here and here for a start. I am sure you all can guess that I think it's utterly outrageous that a sheriff's deputy feels entirely free to walk up to defense counsel's confidential file, rifle through it, and remove a document for copying. I would raise holy hell if this happened to me and my client.
But the thing that I really want to say is this: There's a school of thought out there that we don't need the exclusionary rule. We don't need to exclude evidence that was obtained in violation of the 4th Amendment because we have sufficient other means of deterring bad police behavior. And, most notably, we no longer need the exclusionary rule because of "the increasing professionalism of police forces, including a new emphasis on internal police discipline." This isn't just an argument being pushed by prosecutors or law professors. This idea of the "new professionalism of police" comes straight from the top: Justice Scalia himself wrote it in Hudson v. Michigan in 2006, openly questioning whether the exclusionary rule should remain the law. As Scalia wrote, "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously."
Well, your honor, is this sheriff's deputy brazenly taking privileged documents from a confidential defense file the sort of new professionalism you wrote about? Is this more evidence that law enforcement across this country takes constitutional rights (like the right to counsel) seriously? I would submit this incident is Exhibit A for why we most definitely need an exclusionary rule: because sheriff's deputies feel no compunction about rifling through the defendant's confidential materials in open court.
Tuesday, November 3, 2009
Yes, John Couey's appeal is dead
It occurred to me this morning that oral arguments were supposed to be
heard today in the direct appeal of the man who committed the crime
that spawned Jessica's Law. (Yes, my memory is that freaky.) When
Couey died, I questioned whether that would be the end of his appeal.
So I checked the Florida Supreme Court's website today and learned
that Couey's attorneys had voluntarily dismissed the appeal.
heard today in the direct appeal of the man who committed the crime
that spawned Jessica's Law. (Yes, my memory is that freaky.) When
Couey died, I questioned whether that would be the end of his appeal.
So I checked the Florida Supreme Court's website today and learned
that Couey's attorneys had voluntarily dismissed the appeal.
So there you go. I have no idea whether this appeal had any
meritorious issues or how motions to keep appeals going after a
defendant's death are usually received by Florida courts. I do know
I'm glad I practice in a state that simply proceeds with the appeal so
I would never have to be in the position of giving up on one of my
cases.
Sent from my iPhone
Big day, Maine
Today, the voters in Maine will vote on Question 1: "Do you want to
reject the new law that let's same-sex couples marry and allow
individuals and religious groups to refuse to perform these marriages?"
reject the new law that let's same-sex couples marry and allow
individuals and religious groups to refuse to perform these marriages?"
The legislature in Maine has already passed a law allowing same-sex
marriage, making this ballot question unique in the history of the gay
marriage debate. The polling has been close and this is an off-year
election, so I have no idea what to expect from this vote. Plus, it's
an oddly worded question. It reads to me as a compound question that
can't necessarily be answered with just a yes or no. I hope the voters
in Maine understand exactly what the question is asking. And I hope
the answer by the majority is a great big "no!"
Today's vote could be a huge step forward towards marriage equality.
But if the vote does come out the other way, I still won't lose faith.
I believe this war for equality will be won. It is only a matter of
time.
Sent from my iPhone
Monday, November 2, 2009
Please don't touch my pens
I am very finicky about my pens. My pen thing perhaps borders on the OCD. Seriously, if you ever ask to borrow my pen, I will let you borrow it, of course, but I will not let that pen out of my sight. I am VERY attached to my pens. In college and law school, my backpack looked like an office supply store. Because when I sat down to do my homework, I couldn't have just one pen and one notebook. I needed a pen to take notes with. That pen had to be a particular kind of Pilot pen, black ink, fine point. (No, Pilot did not pay me for this post, but if they want to send me a box of my particular style of ball points, I would accept it.) It had to be the Pilot ball points because they were the best at producing a fine point that wasn't scratchy. I can't stand a scratchy pen.
But that pen was only for taking the notes in my notebook. Then I needed a particular type of gel ink pen for underlining in the book itself. Black, of course. (Always black. I can't stand a blue pen.) And fine point, of course, so nothing like those old felt-tip pens our teachers always had. (I can't stand a thick-writing pen.) This pen had to be very, very smooth, to produce the perfect, straight, unbroken line underneath the text. But not everything in the book got underlined; some things need to be highlighted. And there was a color-coding system to the highlighting. (In the interest of full disclosure, I also had a system of little post-it notes and index cards that were also color-coded.)
And, always, whether it was ball point, gel ink, or highlighter, all of my writing implements had to be thin. None of those thick highlighters for me. My small hands like thin pens. (And the thin pens were easier to do that debater-spin thing.)
I was in crazy-pen-lady heaven the year I found thin pens that had highlighters on one end and perfect underlining pens on the other.
I was always a procrastinator. I would invent all sorts of reasons to delay my studying just one more minute. I'd get all settled and then realize I needed a blanket or a drink or a different piece of paper before I could really get going. I'm pretty sure my pen thing was just a way for me to set up roadblocks to my own studying. Everything had to be just right before I could study, so the more pens I needed to have, the more things that could get me off the hook for studying. I mean, I couldn't be expected to read my civil procedure readings if I didn't have my underlining pen handy!
Now that I'm no longer a student, I might have hoped that the crazy pen thing would lighten up a bit. But, no. I still need just the right pen before I can get my work done. I won't sign a motion or a brief or a letter with just any pen. It's got to be the smooth, gel pens. I can't read transcripts without my hand Pilot pen for note-taking, just like back in school. And I can't sit down to start writing ideas for a brief unless I have a really good, exceptionally smooth gel pen. As a lowly public defender in the midst of a budget crunch, I have finally come to the realization that I just have to provide my own pens, or I will never get any work done. I have provided all of my own Pilot pens up til now, but I've usually been ok with the gel pens the office provides. But the last batch has been decidedly inferior. Scratchy. Uneven. Half the time, the cheap pens won't even write on my normal-looking legal pad. I spent very little time today actually working. Instead, I spent my time in a futile search for a decent pen.
I'm sure if I just could have found the right pen today, I would have written a brilliant issue. I'm sure I'm not suffering writer's block at all. Nope. I'm not putting off writing my brief at all. I was definitely not procrastinating. I would totally pound out that brief if I could find the right pen. It's just a pen thing.
But that pen was only for taking the notes in my notebook. Then I needed a particular type of gel ink pen for underlining in the book itself. Black, of course. (Always black. I can't stand a blue pen.) And fine point, of course, so nothing like those old felt-tip pens our teachers always had. (I can't stand a thick-writing pen.) This pen had to be very, very smooth, to produce the perfect, straight, unbroken line underneath the text. But not everything in the book got underlined; some things need to be highlighted. And there was a color-coding system to the highlighting. (In the interest of full disclosure, I also had a system of little post-it notes and index cards that were also color-coded.)
And, always, whether it was ball point, gel ink, or highlighter, all of my writing implements had to be thin. None of those thick highlighters for me. My small hands like thin pens. (And the thin pens were easier to do that debater-spin thing.)
I was in crazy-pen-lady heaven the year I found thin pens that had highlighters on one end and perfect underlining pens on the other.
I was always a procrastinator. I would invent all sorts of reasons to delay my studying just one more minute. I'd get all settled and then realize I needed a blanket or a drink or a different piece of paper before I could really get going. I'm pretty sure my pen thing was just a way for me to set up roadblocks to my own studying. Everything had to be just right before I could study, so the more pens I needed to have, the more things that could get me off the hook for studying. I mean, I couldn't be expected to read my civil procedure readings if I didn't have my underlining pen handy!
Now that I'm no longer a student, I might have hoped that the crazy pen thing would lighten up a bit. But, no. I still need just the right pen before I can get my work done. I won't sign a motion or a brief or a letter with just any pen. It's got to be the smooth, gel pens. I can't read transcripts without my hand Pilot pen for note-taking, just like back in school. And I can't sit down to start writing ideas for a brief unless I have a really good, exceptionally smooth gel pen. As a lowly public defender in the midst of a budget crunch, I have finally come to the realization that I just have to provide my own pens, or I will never get any work done. I have provided all of my own Pilot pens up til now, but I've usually been ok with the gel pens the office provides. But the last batch has been decidedly inferior. Scratchy. Uneven. Half the time, the cheap pens won't even write on my normal-looking legal pad. I spent very little time today actually working. Instead, I spent my time in a futile search for a decent pen.
I'm sure if I just could have found the right pen today, I would have written a brilliant issue. I'm sure I'm not suffering writer's block at all. Nope. I'm not putting off writing my brief at all. I was definitely not procrastinating. I would totally pound out that brief if I could find the right pen. It's just a pen thing.
Sunday, November 1, 2009
Like most lawyers I know, I take my ethical duties pretty seriously. Yes, lawyers have ethics. Go ahead and get your lawyer jokes out of your systems now before you resume reading. We have a whole big list of rules we have to follow. We have to take a class on those rules to graduate from law school. And aside from the bar exam, we also have to take a special test just on those ethical rules.
(Happily, as a public defender, I don't have to worry about all the rules that deal with clients' money because those seem to be the ones most likely to get your ticket punched.)
In this state, one of the rules states that we are required to report when we observe ethical violations by our fellow attorneys. Failing to report another attorney's misdeeds is in itself an ethical violation. In theory, I appreciate this rule. We should all be tasked with keeping our profession honest and ethical. But in the real world, it's the hardest ethical rule to live with. Because it's not always that easy to know when you've witnessed an ethical violation. Some are obvious, but they aren't all so clear.
Especially since Rule 1.1 is "Competence." So I'm ethically obligated to report the attorneys that I think are incompetent. Oy. Obviously, not all lawyers are the same. Some are really good at research. Some are great in front of juries or argue well. Some are better writers. The best lawyers combine all of those skills. But even the best lawyers can have an off day. They might fail to catch a relevant case or leave some embarrassing typos in a brief. Not every oral argument can be memorable oratory. And there are some mediocre lawyers, too. But there's a difference between mediocrity and incompetence. So if I see a performance that I think is particularly poor, does that truly mean that particular lawyer has violated Rule 1.1? In short, how bad does a lawyer have to be to be considered "incompetent?"
I struggle with this because on the one hand, I want to protect those clients who have placed their trust in someone who did not deserve it, but on the other hand, judging a colleague to be incompetent is not something I want to take lightly. It's a very uncomfortable position to be in. Going to the disciplinary board with an accusation that a fellow lawyer is incompetent is a pretty big step. It's especially big to report someone for that rule. That label of "incompetent" is so, so harsh. No lawyer wants to get that letter. Knowing how much anxiety I would feel upon getting that letter, I don't want to subject any other lawyer to that. But, back on that first hand, some lawyers really are incompetent and shouldn't be allowed to take money from people.
So how do you decide which lawyers are the incompetent ones who really should be reported to the disciplinary folks? I have yet to figure that out.
(Happily, as a public defender, I don't have to worry about all the rules that deal with clients' money because those seem to be the ones most likely to get your ticket punched.)
In this state, one of the rules states that we are required to report when we observe ethical violations by our fellow attorneys. Failing to report another attorney's misdeeds is in itself an ethical violation. In theory, I appreciate this rule. We should all be tasked with keeping our profession honest and ethical. But in the real world, it's the hardest ethical rule to live with. Because it's not always that easy to know when you've witnessed an ethical violation. Some are obvious, but they aren't all so clear.
Especially since Rule 1.1 is "Competence." So I'm ethically obligated to report the attorneys that I think are incompetent. Oy. Obviously, not all lawyers are the same. Some are really good at research. Some are great in front of juries or argue well. Some are better writers. The best lawyers combine all of those skills. But even the best lawyers can have an off day. They might fail to catch a relevant case or leave some embarrassing typos in a brief. Not every oral argument can be memorable oratory. And there are some mediocre lawyers, too. But there's a difference between mediocrity and incompetence. So if I see a performance that I think is particularly poor, does that truly mean that particular lawyer has violated Rule 1.1? In short, how bad does a lawyer have to be to be considered "incompetent?"
I struggle with this because on the one hand, I want to protect those clients who have placed their trust in someone who did not deserve it, but on the other hand, judging a colleague to be incompetent is not something I want to take lightly. It's a very uncomfortable position to be in. Going to the disciplinary board with an accusation that a fellow lawyer is incompetent is a pretty big step. It's especially big to report someone for that rule. That label of "incompetent" is so, so harsh. No lawyer wants to get that letter. Knowing how much anxiety I would feel upon getting that letter, I don't want to subject any other lawyer to that. But, back on that first hand, some lawyers really are incompetent and shouldn't be allowed to take money from people.
So how do you decide which lawyers are the incompetent ones who really should be reported to the disciplinary folks? I have yet to figure that out.
Subscribe to:
Posts (Atom)
