Quote of the Day

“He didn’t even read me mah’ random warnings!”

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:

I may be able to cast some light on how such decisions get made, as I have attended ACLU legal committee meetings. Here in Houston the ACLU legal committee met (it’s been a couple of years since I was involved) monthly. Typically eight or ten lawyers would sit around a table, someone would dump a bunch of — maybe 50 to 100 — letters soliciting ACLU help on the table, and the lawyers will go through the letters looking for anything that they might be able to help with. More than one lawyer would read each letter. Many of the letters asked for help that wasn’t within ACLU’s mission, but that the lawyers themselves could help with; the lawyers would follow up on those individually. A few asked for help that was within ACLU’s mission; individual lawyers would follow up on those as well on behalf of the organization. It was all driven by what the lawyers felt like doing; there was very little adult supervision.

So, anonymous PD, the decision not to help you, as well as the atrocious decision for ACLU Nebraska to support anti-bullying legislation, were likely not made in thoughtful deliberation by a learned committee according to some ACLU playbook, but rather by a volunteer lawyer making gut decisions. That the ACLU in your state has gone so wrong is not a result of the organization’s philosophy but of its organization. There is only one solution: become involved.

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!

Note three things about this:

First, when someone goes to prison for theft or assault, we’re not punishing theft and assault. We’re punishing a person — making a human being suffer. (This is a euphemism similar to “the war on drugs,” which is actually a war on people, or “life” in a capital case, which is actually life in prison.)

Second, the crimes invoked — theft and assault — are much farther removed from the everyday prosecutorial experience than intoxicated manslaughter. Intoxicated manslaughter, after all, is just a really unlucky drive halfway home from the prosecutorial watering hole. Would it be unfair for us to suppose that, when the late prosecutor was drinking heavily at 3:45 on a Friday afternoon, she might have been with other prosecutors?

Third, note the shift in verb mood from the simple present “If I engage . . .” to the subjunctive. “I would hope that I would be treated as any other similarly situated offender” is utter nonsense. Maybe this prosecutor hopes now that he would be treated the same as other offenders, but if the time were to come he would hope to avoid suffering. I hope (and, based on observations of prosecutors accused, expect) that he would hire the best defender he could find to help him avoid suffering.

Another prosecutor wrote:

[Y]ou would do well to at least acknowledge that prosecutors are human, with all the implied flaws therein.
There is nothing nefarious here, nothing hard to understand … it’s not an “above the law” mentality among us, we’re citizens just like the average joe, our job just happens to be prosecuting crimes.

If we violate those same laws, we’ll get the same day in court, and I suspect we’ll be sentenced much more harshly because as the poster above mentioned, “We oughta know better.” It also becomes news if we do these things, resulting in public humiliation of ourselves and our families. The average joe’s DUI doesn’t make the front page.

For a prosecutor to say “that person should suffer for what she did, but I shouldn’t suffer if I did it” would be nefarious. “Just like the average Joe,” though, lots of prosecutors act like they believe it. “Just like the average joe,” they’ll do lots — including abusing their office — to avoid suffering. Just like the average joe, they aren’t admitting it out loud. Incident after incident is swept under the rug, but woe betide the occasional prosecutor whose misconduct makes the papers; her colleagues will throw her to the wolves — not because she “oughta know better” but to demonstrate the sanctimony of the rest.

For a prosecutor to say, “that person should suffer for what she did . . . though it is something that I would do as well” would be hypocritical.

These prosecutors’ comments are neither hypocritical nor nefarious. These prosecutors seem to be saying, “if I were to commit a crime — though I wouldn’t — I should suffer.” The second commentator is right: it’s not an “above the law” mentality, and it’s not hard to understand. It’s a lack of compassion, of understanding, of imagination.

Sad, yes. Ironic, yes. But it should be no surprise to anyone that, without the ability to imagine themselves in the position of accused people and to understand what put them there, prosecutors wish to contribute to their suffering.

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?”)

So what should the court consider in determining what a reasonable, paying client would be willing to pay?

[T]he complexity and difficulty of the case, the available expertise and capacity of the client’s other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case . . .

With me so far?

. . . whether the attorney had an interest (independent of that of his client) in achieving the ends of the litigation or initiated the representation himself, whether the attorney was initially acting pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) the attorney expected from the representation.

So, according to the Second Circuit, a lawyer who has his own interest in achieving the ends of the litigation will be paid less on the market than a hired gun. I have found that the opposite is true — that people are willing to pay me more, not less, because I enjoy what I do and believe that it is right.

In the Arbor Hill case, the plaintiff’s lawyers were betting on the come. Their only chance to be paid was to win. So, according to the Second Circuit’s logic, they were “initially acting pro bono” and therefore were entitled to less pay, rather than to more pay in compensation for accepting the risk. But getting away from punishing lawyers for gambling, and back to punishing lawyers for doing what they feel is right,

[A] reasonable, paying client might consider whether a lawyer is willing to offer his services in whole or in part pro bono, or to promote the lawyer’s own reputational or societal goals. Indeed, by focusing on the hourly rate at which a client who wished to pay no more than necessary would be willing to compensate his attorney, the district court can enforce market discipline, approximating the negotiation that might ensue were the client actually required to pay the attorney’s fees.
. . . .
We are confident that a reasonable, paying client would have known that law firms undertaking representation such as that of plaintiffs often obtain considerable non-monetary returns — in experience, reputation, or achievement of the attorneys’ own interests and agendas — and would have insisted on paying his attorneys at a rate no higher than that charged by Albany attorneys (and there is no cross-appeal).

So a lawyer undertaking representation that “promot[es] the lawyer’s own societal goals” or “achiev[es the lawyer's] own interests and agendas — in other words, doing good — gets to be paid less than a lawyer who is cynically representing the client for nothing but money.

This case is a reminder that the vast majority of lawyers practice law in quiet desperation, with no personal interest in achieving their clients’ ends. The vast majority of lawyers are not practicing law to promote their own societal goals. The vast majority of lawyers are not willing to gamble on the cause. In other words, the vast majority of lawyers aren’t doing what they do because it’s the right thing to do. Doing the right thing is an aberration that, to the Second Circuit, militates in favor of lower fees. (Doing the right thing, of course, might lead to happiness, which is why I see this opinion’s deliberate suppression of fees for lawyers doing the right thing as a blow for puritanism.)

Whether the attorney had an interest in achieving the ends of the litigation should certainly be considered by a court determining what a reasonable paying client would pay. Whether the lawyer is in accord with the client, such that the lawyer’s societal goals match the client’s goals, also should be considered. So should the fact that the lawyer is willing to bet her own money on the case, so that she doesn’t get paid if the client doesn’t recover. But the Second Circuit has it backwards: all of these are reasons that reasonable clients, spending their own money, rationally decide to pay lawyers more rather than less. Every day rational clients choose lawyers who are true believers over lawyers who are cynics; every day rational clients with no money sign contracts promising to pay lawyers huge fees if and only if the lawyers can recover money for the clients’ injuries.

In fact, I would go farther and say not only that lawyers who aren’t practicing to advance their societal goals should be paid less than lawyers who are, but that they should seriously consider not practicing at all. If a client can’t find a lawyer who believes in some aspect of the client’s fight (I think of Anthony Griffin, who was fired from his job as NAACP’s Texas general counsel for standing up for the KKK’s right to free speech), then perhaps the client shouldn’t be going to court.

Hobbies

Every defender should have a hobby. It should ideally be something as far removed from the practice of law as possible — something that takes the mind off the practice. I’m fascinated by the things that other people find fun. Here are some of the things that my fellow Houston defenders do:

Fly airplanes;
Jump out of airplanes;
Golf;
Surf;
Climb mountains;
Shoot guns;
Ride motorcycles;
Hunt;
Bicycle;
Play guitar;
Play croquet (“the serious stuff, not the rinky dink stuff you get at a sporting goods store”);
Play conga drums;
Digital photography;
Run;
Trick roping;
Cowboy mounted shooting (I think it has something to do with horses);
Play harmonica; and
Collect baseball cards.

Here’s a picture of me practicing my chief hobby:

What are your hobbies? Drop me a comment and let me know what I’ve missed.

"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.

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.

In Schmerber the Supreme Court wrote:

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

A catheter is unquestionably a more substantial intrusion than a blood draw. Catheterization is painful, and bears a substantial risk of infection. Schmerber doesn’t support the Sugar Land officers’ action. Not only did they jeopardize the prosecution, but they (and the medical personnel who helped them) lined themselves up as the potential defendants in a large civil lawsuit.

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.

From Freud’s description, though, it would seem that the better generalization is that artists are frustrated lawyers.

If we didn’t have the means of achieving honor, power, riches, fame, and the love of women, what great art we might create!

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.

Scaled questions help to draw some information from those silent jurors who might not have said much during a general voir dire. They get information from people (even people who have not been warmed up with a proper voir dire) in a way that binary (yes/no) questions never will.

I have talked about the inutility of binary questions here. With binary questions, there may be only one “correct” (socially acceptable) answer. For example, when the judge in a federal case asks the panel “can you be fair?” (Federal judges’ voir dires being more worthless even than prosecutors’) everybody knows what answer she wants, and every person on the panel is going to give the judge the answer she wants. The answer to a binary question might lead to a challenge for cause (which a scaled question will never directly do), but only if the juror knows that socially deprecated answers are not “wrong” (see Getting the Jurors’ True Feelings).

With scaled questions, there may be a socially deprecated answer at one end of the scale, and the juror’s perception that this answer is “wrong” might skew his self-evaluation toward the other end of the scale, but there will still be several choices that might reveal something about the juror. For example, if he is asked to rate his feelings about a subject on a scale of 1-10 and his true feeling is a 10 (which he thinks is “wrong”), he can rate himself a 9 or 8. By contrast, if the juror is asked a “yes/no” question and his true feeling is “no” (which he thinks is “wrong”), he can only answer “yes.”
Many lawyers find jury selection an anxious experience. Adding some scaled questions to their repertoires, if they don’t already, should help eliminate the anxiety.

Trial is Like Baseball Because . . .

According to Anthony (a Mets fan),

Your team doesn’t always win.
There are rules (but in baseball the team that goes first doesn’t get to go last too).
Every person has good days and bad days, and any one player’s bad day can change the course of the whole event.
Often a bad bounce can change the momentum of the entire event.
Money, unfortunately, has a lot to do with how well your team plays, and the result.
The game is rarely won in the last inning.