Tuesday, April 5, 2011
Congress discusses the future of legal aid
Rep. Frank Wolf (R-Va.), chairman of a House appropriations subcommittee said today the largest source of funding for legal aid, the Legal Services Corp., still faces proposed cuts from the House’s new Republican majority. LSC and its local partners should turn to resources from large law firms, state bar dues and law schools, he said and added that private-sector lawyers aren't doing enough to help the nation's poor with legal problems. He warned that they might need to make up for expected cuts in federal funding. Go here for the full story.
Supreme Court stops two executions due to lawyers' conduct
The Supreme Court has sayed two executions scheduled for later this week in Arizona and Texas. By doing this, the Court has put itself in a position to take on an issue that has lingered unresolved for two decades: whether there is a constitutonal right to a lawyer performing effectively in a new challenge started after a conviction has become final. For more on this go here.
Monday, April 4, 2011
Podcast on ethics issues related to websites that "rate" and review lawyers
Saturday, April 2, 2011
Podcast on e-discovery and Facebook
In the April edition of Law Technology Now, host Monica Bay interviews Craig Ball, author of the Law Technology News’ column, “Ball in Your Court”. They discuss recent e-discovery cases and developments, including Facebook’s decision to create a “one-button” tool to collect user data on its social media site. To listen to the podcast go here, here or here.
ABA Commission releases paper on multi-jurisdictional practice
The Legal Ethics Forum is reporting that the ABA’s Ethics 20/20 Commission has released an issues paper (here) relating to multijurisdictional practice. It identifies possible mechanisms for liberalizing cross-border practice and asks for feedback on whether such changes would be desirable.
Another comment on Connick v Thompson
Lisa McElroy of the SCOTUS blog writes:
"Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines: Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority’s decision. Indeed, the facts of Connick are pretty upsetting and powerful: Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable. He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed. The catch? Prosecutors never told Thompson’s lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case. Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial.
So it is no surprise that Thompson and the dissenting Justices were upset with the majority’s holding in Connick. Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee’s actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors. But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson’s lawyers. Connick should have been able to see that his office’s failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered – including many years on death row and several near executions."
"Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines: Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority’s decision. Indeed, the facts of Connick are pretty upsetting and powerful: Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable. He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed. The catch? Prosecutors never told Thompson’s lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case. Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial.
So it is no surprise that Thompson and the dissenting Justices were upset with the majority’s holding in Connick. Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee’s actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors. But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson’s lawyers. Connick should have been able to see that his office’s failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered – including many years on death row and several near executions."
Supreme Court decides Connick v. Thompson on the possible liability of a DA's office
Last Tuesday the US Supreme Court announced its decision in the highly awaited case Connick v. Thompson. For my previous posts on the case, including links to the oral argument go here, here and here.
In a five-four opinion by Justice Thomas that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference.
In this case, the defendant conceded that the prosecutor in a case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before the truth came to light.
In a dissent joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg stated that "The evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Officebears responsibility under §1983."
As usual, the opinion has generated much attention in the media. Here are some of the links I have seen, most of which are courtesy of the SCOTUS blog:
The legal ethics forum has some comments here.
Bob Barnes of the Washington Post reports that Connick is “the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench.” Barnes adds that the decision “marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence.” The New York Times, USA Today, Constitutional Law Prof Blog, the Los Angeles Times, CNN, JURIST, Crime & Consequences, Courthouse News Service, and ABA Journal have additional coverage.
In a five-four opinion by Justice Thomas that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference.
In this case, the defendant conceded that the prosecutor in a case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before the truth came to light.
In a dissent joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg stated that "The evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Officebears responsibility under §1983."
As usual, the opinion has generated much attention in the media. Here are some of the links I have seen, most of which are courtesy of the SCOTUS blog:
The legal ethics forum has some comments here.
Bob Barnes of the Washington Post reports that Connick is “the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench.” Barnes adds that the decision “marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence.” The New York Times, USA Today, Constitutional Law Prof Blog, the Los Angeles Times, CNN, JURIST, Crime & Consequences, Courthouse News Service, and ABA Journal have additional coverage.
Friday, April 1, 2011
How not to practice law: claim that everything is confidential
The ABA Law Journal is reporting today that a federal appeals court has imposed a $1,000 fine on an attorney from the law firm Katten Muchin Rosenman for "extensive use of improper confidentiality markings." Go here for the story.
Monday, March 28, 2011
Proper punishment or abuse of discretion?
At the end of 2009, I posted a comment on the issue of whether humiliation is a proper punishment in our criminal justice system or whether it should be considered an abuse of prosecutorial or judicial discretion. A few days later I posted an editorial on the subject by Prof. Jonathan Turley published by USA Today (here)
Now comes news that a judge and prosecutor have demanded that Willy Nelson sing a song in court as part of a plea agreement in a simple marijuana possession case. Prof. Turley, consistent with his position in the article cited above, wrote today "I hate to be a cold blanket, but find this neither funny nor tolerable for a legal system. Both the judge and the prosecutor appear to be intoxicated by celebrity crime. . . . If these facts are correct as widely reported, there should be an investigation by the bar of both the role of the prosecutor and the court. Dean-Walker can still redeem herself by treating Nelson like other defendants and sanctioning the prosecutor if he did in fact demand this condition for a settlement." You can read his comment here.
Now comes news that a judge and prosecutor have demanded that Willy Nelson sing a song in court as part of a plea agreement in a simple marijuana possession case. Prof. Turley, consistent with his position in the article cited above, wrote today "I hate to be a cold blanket, but find this neither funny nor tolerable for a legal system. Both the judge and the prosecutor appear to be intoxicated by celebrity crime. . . . If these facts are correct as widely reported, there should be an investigation by the bar of both the role of the prosecutor and the court. Dean-Walker can still redeem herself by treating Nelson like other defendants and sanctioning the prosecutor if he did in fact demand this condition for a settlement." You can read his comment here.
Can an attorney respond if the judge asks whether the attorney knows why the client is missing?
Suppose that night before a hearing is supposed to start, the mother of a criminal defense attorney tells the attorney that her son (the client) is not going to show up. Then, when the judge notices the defendant is missing, the judge asks the lawyer where the client is or whether the lawyer knows why the client is not there. What should he lawyer do?
A short ethics opinion by the San Diego County Bar Association concludes that, under the California Rules of Professional Conduct, the attorney can't do anything. The attorney simply can't answer the judge’s question. If the attorney says she does not know, she is being dishonest with the court in violation of her duty of candor, and if she discloses the information provided by the mother, the attorney would be in violation of her duty of confidentiality.
Thus, the only proper response by the attorney would be that she can't answer the question. The Opinion (SDCBA Legal Ethics Opinion 2011-1) is available here.
Thanks to the Legal Profession blog for the link.
A short ethics opinion by the San Diego County Bar Association concludes that, under the California Rules of Professional Conduct, the attorney can't do anything. The attorney simply can't answer the judge’s question. If the attorney says she does not know, she is being dishonest with the court in violation of her duty of candor, and if she discloses the information provided by the mother, the attorney would be in violation of her duty of confidentiality.
Thus, the only proper response by the attorney would be that she can't answer the question. The Opinion (SDCBA Legal Ethics Opinion 2011-1) is available here.
Thanks to the Legal Profession blog for the link.
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