NJ considering imposing pro bono requirement for admission (as in New York)

A working group appointed by the NJ Supreme Court has released a report and recommendations in which it urges the adoption of a 50 hour law-related pro bono service requirement as a condition of admission to the NJ Bar.  The proposed rule is modeled after, but not identical, to the recently adopted rule in New York.   For more information and description of the proposed rule go here and here.

It is interesting to note that, surprisingly, there was a good deal of negative reaction to the adoption of the rule in New York, particularly from proponents of pro-bono programs.  I believe these proposals do have good intentions, but I am not sure that they are needed nor that they are a good idea.  I am willing to be convinced but most of the arguments I have seen have been negative and pretty convincing.  For more go here, here and here.

Brady v. Maryland turns 50 while many articles lament comment on how it has failed to fulfill its promise

About ten days ago Brady v Maryland turned 50 years old.  That landmark decision, one of those so important most lawyers will recognize it by name, recognized that prosecutors have a duty to disclose exculpatory evidence to criminal defendants.  This duty was later expanded as part of Model Rule of Professional Conduct 3.8.

Unfortunately, it is well known that failure to abide by the duty is a common argument in support of post-conviction relief claims.  In some instances (as in the cases of Smith v. Cain and Connick v. Thompson) it has been claimed that prosecutors' offices routinely violate the duty.

A number of articles during the past few days have discussed the issue.  Here are a few links:

The New York Times laments in an editorial that "there is good reason to believe that violations [of the Brady rule] are widespread" and that "[the rule] has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases."  You can read the full article here.

Seeking Justice comments on the NYT editorial here.

Seeking Justice also wished Brady a Happy Birthday here.

The Atlantic published an article on Brady here.

Prof. Bruce Green has published an article proposing a possible new approach to the duty under Brady that would address the fact that discovery is far narrower in federal criminal cases than in federal civil litigation.  You can access the article here.  (thanks to The Legal Ethics Forum for this link.)

Finally, for a comment on Bruce Green's article go to Otherwise.

For the professors going to the ABA National Conference in San Antonio...

For those of you planning to attend the upcoming ABA National Conference on Professional Responsibility in San Antonio, I would like to let you know of two activities organized by the Professional Responsibility section of the Association of American Law Schools.

First on May 30th at 12:05, the section will host a lunch for the law professors attending the conference at Michelinos. If you would like to attend PLEASE contact me at abernabe@jmls.edu before May 21st. We need an accurate count to make the reservation. 

Second, on June 1st at noon, Carol Needham will be moderating our annual Scholarship Roundtable. This will be an opportunity  to get together to discuss works in progress or recent articles. For information please send a message to Carol at needhamc@slu.edu with "Roundtable Speaking Slot" in the subject line.

I am looking forward to seeing you in San Antonio!

New York D.A. to Review 50 Murder Cases for Possible Wrongful Convictions

A NY Times Sunday front page article reports: The Brooklyn district attorney’s office has ordered a review of some 50 murder cases assigned to an acclaimed homicide detective, an acknowledgment of mounting questions about the officer’s tactics and the legitimacy of the convictions.  Seeking Justice has more on the story here.

Witness preparation and the uncontrollable witness

Prosectuor's Discretion has published a short comment by a prosecutor with some good advice on how to prepare a witness and the concerns over what he calls "uncontrollable witnesses."  The most interesting part of the comment relates to the concern over witnesses giving media interviews, which states, in part, "[i]t is never a good idea for a witness to give media interviews. The interviews are taped and are now prior statements where even the slightest misstatement may come back to haunt them at trial. The more interviews, the more possible inconsistencies. Plus, a person's hidden past might emerge once the media begins digging."  Go here to read the full comment.

The one thing I would add to the advice is to remind client's and witnesses about the risks of using social media.  It is surprising how many people post things on Facebook and other sites not realizing it how easily their comments can be read by others!

Prosecutorial misconduct

I have often commented on how it is important for courts to take prosecutorial misconduct seriously.  What incentive is there to stop acting improperly, if courts give the conduct a pass?

Seeking Justice, a blog I discovered recently on prosecutorial misconduct, agrees with me.  Commenting on the case in Texas where the former prosecutor is facing charges for not having disclosed exculpatory evidence, Seeking Justice states that prosecution of prosecutors is a rarity, but it has to be done.  It concludes that "we urge all attorneys who seek justice to demand that prosecutors be held to the highest standards and abide by the laws they swear to uphold.  Anything less renders any notion of  Justice a farce."

I couldn't agree more.  See the full story here.

New Arizona opinion on Groupon for lawyers

Long time readers of this blog will remember previous posts on whether it is permissible for lawyers to use pre-paid discount services like Groupon to advertise and finance their legal services.  There are a number of state opinions out there now but there does not seem to be a general consensus on the matter.  The NY Bar Association has approved participating in Groupon (see here), as have North Carolina, South Carolina and Maryland (see here).  On the other hand, the Alabama State Disciplinary Commission has ruled attorneys can't use Groupon (see here).

And now, the State Bar of Arizona has issued the most recent opinion on the subject.  It found that although perhaps not impossible, it would be very difficult for an attorney to justify participating in Groupon given all the rules that would be implicated.  For a discussion of, and a link to, this new opinion you can check out the discussion over at the Legal Ethics Forum.

Advice from a public defender: what to say when the DA insists you agree to the amount of bail the DA wants

Go here for the answer.

Seeking Justice: a blog dedicated to prosecutorial misconduct

Thanks to the Legal Ethics Forum, I recently found out about a blog called Seeking Justice which is dedicated to commenting on issues of prosecutorial misconduct.  It describes itself as a blog that "exists to provide both a source of current information and a forum for those who have experienced or  witnessed misconduct by federal prosecutors in particular.  We are especially interested in seeking reform of the legal system in the way it deals with “Brady violations” or the prosecutors’ suppression of evidence favorable to the defense."  You should check out Seeking Justice here.

The Atlantic: "What is the most important Supreme Court case no one's ever heard of?"

The Atlantic Magazine asked a number of "experts" (law professors, lawyers, judges, authors, etc) for their opinion on the most important, yet not widely known, Supreme Court case.  Their responses are very interesting and you can read them here.  One author picked Strickland v. Washington, stating that

Decided in 1984, Strickland v. Washington created a procedural rule that makes it virtually impossible for a criminal defendant to successfully argue that he or she has been denied the “effective assistance” of counsel—and thus the Sixth Amendment right to a fair trial. The ruling is directly responsible for thousands of Americans’ incarceration after trials in which their lawyers drank, or were using drugs, or were sleeping, or were otherwise clearly incompetent.