June 8, 2013
When Prosecutors Cross Over

An Assistant DA in Texas was recently fired after she flashed her badge during a traffic stop while she was sitting in the passenger’s seat of her friend’s car.  Apparently, it wasn’t her attempt to “pull rank” that got her fired, though—rather, it was the sound legal advice she gave to her friend:

A Bexar County assistant district attorney has been fired following an incident in which she was mentioned in a friend’s driving while intoxicated arrest report for advising him not to submit to a breath test.

Tara D. Richardson, who had worked as a misdemeanor family justice unit prosecutor for less than a year, also “flashed her badge” during the May 25 encounter, according to the San Antonio Police Department document.

In some states, this would be bad legal advice.  In New York State, for example, there is an draconian “implied consent” law which states that refusing a breathalyzer test is grounds for an automatic license suspension for one year, plus a $500 fine.  The police officer does not even have to inform you of this consequence, and the suspension applies “whether or not the person is found guilty of the charge for which such person is arrested or detained.”  So assuming you don’t have a large record, one should submit to a breathalyzer test in New York.

The law is presumably different in Texas.  I’m not familiar with the Texas criminal code, but the prosecutor clearly knew something her friend didn’t.  And apparently, someone upstairs didn’t like the fact that this prosecutor was giving away the game.  As Mark Bennett said, “imag­ine what would hap­pen if peo­ple learned that even pros­e­cu­tors advised their friends not to blow.”

It’s always interesting to see how prosecutors behave when they’re on the other side of the law.  Prosecution work has a tendency to corrupt you, in the sense that staring into the abyss of criminal justice from on high makes you a bit self-righteous.  I’ve heard enough career prosecutors speak passionately about putting crooks in jail to know what their priorities are when it comes to defining “justice.”  It’s not that fair-minded prosecutors don’t exist—they do.  But they exist in spite of their institutional incentives, not on account of them.  Working as a prosecutor tends to make you a bit more retributive-minded than you otherwise would be.  For some, all it takes is a few horror shows to permanently change your opinion of humanity.  For others, they get caught up in the thrill of “the hunt.”  Crime fighting becomes a competition, a game where convictions are lighting up the scoreboard.

But all that changes when all of a sudden, it’s your friends getting questioned by the cops.  All of that changes when you are in the passenger’s seat, and you’re sitting next to a scared friend who’s just been pulled over, and they’ve got just a touch too much alcohol in their system.  

Tara Richardson may have crossed the line when she flashed her prosecutor’s badge.  If she was fired for doing so, it’s understandable.  But if she was fired for advising her friend “not to blow,” it’s a shame.  All she was doing was advising her friend of his legal rights—something prosecutors are supposed to respectful of anyways.  Now, she’ll probably never work in a prosecutor’s office again, although she probably has a promising career as a criminal defense attorney, now that she’s experienced what it’s like to be on the other side first-hand.

12:16am  |   URL: http://tmblr.co/ZMMjnxmrPX-Z
(Notes: 20)
  
Filed under: politics lawyering prosecutors criminal law criminal justice 
June 6, 2013
A Cautionary Tale For Future Law Students: The Rule Against Perpetuities

There is a concept in law known as The Rule Against Perpetuities.  This Rule arose out of the common law as a prophylactic created by judges who wanted to ensure that property did not remain subject to the desires of a former owner long after the owner was dead and gone.  Without such a Rule, many forms of property might inadvertently become inalienable (non-transferable) for many years after the original owner parted with the property.  This would prevent future generations from using the property in an efficient manner, because they would always have to mind the encumbrance of the former owner.  

The idea behind the Rule is to prevent owners of property from making “remote” gifts to future generations that are so far in the future as to make their existence either unascertainable or unreasonably time-consuming.  Usually, it’s some combination of both.

The Rule was most succinctly stated by Professor Gray, who stated:

No interest is good unless it must vest, if at all, not later than twenty-one years after the death of some life in being at the creation of the interest.

This definition leaves a few details out, but it gets the basic idea across.  If you transfer a property interest to someone else, and you do so in such a manner that the recipient may (or may not) take possession until some future date, that property must be transferred in such a way that it will absolutely vest (or fail to vest) in someone’s favor within 21 years after the death of a person who was alive at the creation of the interest, and who had the power to affect the interest in some way (this is sometimes called “the validating life,” since identifying such a person validates the gift).

So for example, consider the following conveyance:

“O gives Blackacre to A for life, and upon A’s death, an equal share of the land shall go to each of A’s children who reach the age of 25.”

The second part of this conveyance violates the Rule.  If A has a child 1 year before A dies, the gift would not vest (or fail to vest) within 21 years after A’s death.  Same goes for O: A might have more children after O dies, none of whom would obviously reach the age of 25 within 21 years of O’s death. Since there is no validating life in this example, it violates the Rule Against Perpetuities.  On account of this, the future interest conveyed to A’s children is struck out, and A is left with a Life Estate in Blackacre.  O retains a reversion (i.e. he gets the property back when A dies).

This all makes sense in theory.  But the Rule is notoriously difficult to apply in practice.  The only reason I can explain the above example safely is because it’s a well-recognized, simple example of a conveyance that violates the Rule.  But in practice, the Rule is so difficult to apply that the California Supreme Court has actually held that it is not legal malpractice for a lawyer to accidentally draft a will or trust instrument that violates the Rule against Perpetuities. The court described the Rule as follows:

The complaint, as we have seen, alleges that defendant drafted the will in such a manner that the trust was invalid because it violated the rules relating to perpetuities and restraints on alienation. These closely akin subjects have long perplexed the courts and the bar. Professor Gray, a leading authority in the field, stated: “There is something in the subject which seems to facilitate error. Perhaps it is because the mode of reasoning is unlike that with which lawyers are most familiar…. A long list might be formed of the demonstrable blunders with regard to its questions made by eminent men, blunders which they themselves have been sometimes the first to acknowledge; and there are few lawyers of any practice in drawing wills and settlements who have not at some time either fallen into the net which the Rule spreads for the unwary, or at least shuddered to think how narrowly they have escaped it.” (Gray, The Rule Against Perpetuities (4th ed. 1942) p. xi; see also Leach, Perpetuities Legislation (1954) 67 Harv.L.Rev. 1349 [describing the rule as a “technicality-ridden legal nightmare” and a “dangerous instrumentality in the hands of most members of the bar”].) Of the California law on perpetuities and restraints it has been said that few, if any, areas of the law have been fraught with more confusion or concealed more traps for the unwary draftsman; that members of the bar, probate courts, and title insurance companies make errors in these matters; that the code provisions adopted in 1872 created a situation worse than if the matter had been left to the common law, and that the legislation adopted in 1951 (under which the will involved here was drawn), despite the best of intentions, added further complexities. (See 38 Cal.Jur.2d 443; Coil, Perpetuities and Restraints; A Needed Reform (1955) 30 State Bar J. 87, 88-90.)

Thankfully, many jurisdictions have adopted rules that attempt to ease the application of the rule.  Other practitioners have adopted uniform “failsafe” language that they place in all their wills and trust instruments, which create a “default” beneficiary in the event that a property interest does not vest (or fail to vest) within 21 years after the death of a life in being at the creation of the interest.  This is particularly true in jurisdictions where, unlike California, a lawyer who inadvertently violates the RAP can be held liable for legal malpractice.

Nonetheless, law schools still teach the rule as-is, and most state Bar Examiners expect graduating law students to be able to apply the rule on the bar exam.  So if you’re thinking about going to law school, just keep in mind: this is what you’ll have to look forward to.  A “technically-ridden nightmare” that is so difficult to comprehend that even lawyers who specialize in property law screw it up.  If the massive amounts of debt and questionable job prospects haven’t scared you away from Law School, perhaps the Rule Against Perpetuities will.

4:39pm  |   URL: http://tmblr.co/ZMMjnxmkkCTg
(Notes: 12)
  
Filed under: lawyering rule against perpetuities 
May 22, 2013
"For some reason when it comes to my indigent ghetto clients, it becomes easy to forget that people, including those who break the law, are complicated and often charming. That they too contain multitudes. Oddly, no one has trouble understanding the humanity of White crooks. We mythologize them all the time—Bonnie and Clyde, John Gotti, Carolyn Warmus—all are complex people we find ways to relate to and even admire. At the movies we cheer for Butch and Sundance, Scarface, or [the] Ocean’s Eleven crew. The fact that John Gotti was a ruthless killer who wreaked havoc on far more lives than any of my clients ever touched never eclipses the public memory of him as big, handsome, and defiant. People loved Gotti’s resistance to governmental authority. But put a Black face on Gotti and no matter how dapper a don he is, the press, the prosecutors, and the public only read menace. I’ve often represented people as “big,” “handsome,” and “defiant” as John Gotti, yet when I invoke the humanity of these faceless robbers and killers, it sends most listeners from the land of mere confusion to that of utter incomprehension. To this day, I wrestle with where this understanding goes off the rails. Fundamentalist Christians constantly speak passionately about seeing the possibility of redemption in everyone, and no one bats an eye. But make this same point in the secular context of the criminal justice system, and rather than praiseworthy piety it is head as liberal gibberish."

— David Feige, Indefensible: One Lawyer’s Journey into the Inferno of American Justice, pg. 53–54,

11:08am  |   URL: http://tmblr.co/ZMMjnxlaAJy3
(Notes: 134)
  
Filed under: politics criminal law criminal justice lawyers lawyering 
May 20, 2013
The Yale Law Journal Online - The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct

A fabulous Essay from Yale Law Journal:

On March 29, 2011, the Supreme Court—by a vote of five to four—overturned a $14 million jury verdict in favor of John Thompson, a Louisiana man who spent fourteen years on death row because prosecutors withheld exculpatory blood evidence from his defense attorneys. Thompson had sued the Orleans Parish District Attorney’s Office based on a failure-to-train theory, arguing that the office had denied him due process of law through its deliberate indifference toward the need to train its attorneys in proper disclosure procedures. Thompson’s failure-to-train theory relied on Brady v. Maryland, a 1963 Supreme Court decision that requires prosecutors to share evidence with defendants in criminal cases when that evidence is “material either to guilt or to punishment.” The Connick Court, in an opinion authored by Justice Thomas, disagreed with Thompson’s argument. According to Justice Thomas’s majority opinion, a single Brady violation—i.e., a one-time failure to disclose “material” evidence—is insufficient to establish liability on a failure-to-train theory.

Emphasis added for one of the many reasons I drink at night.

2:31pm  |   URL: http://tmblr.co/ZMMjnxlRBJXT
(Notes: 11)
  
Filed under: politics brady violations lawyers lawyering criminal law criminal justice 
April 28, 2013
"Leo Branton Jr., a California lawyer whose moving closing argument in a racially and politically charged murder trial in 1972 helped persuade an all-white jury to acquit a black communist, the activist and academic Angela Davis, died on April 19 in Los Angeles. He was 91."

— Leo Branton Jr., Activists Lawyer, Dies at 91

11:20pm  |   URL: http://tmblr.co/ZMMjnxjnkfM7
(Notes: 11)
  
Filed under: politics lawyers lawyering 
February 2, 2013
Fighting From The Inside

Harvey Silvergate reviews Jess Bravin’s “The Terror Courts,” and relates the story of brave military lawyers who pushed back against the federal government’s post-9/11 assault on Due Process and civil liberty:

Marine Lt. Col. Stuart Couch, for example, is an ROTC lawyer who repeatedly refused to prosecute terrorist suspects whom he concluded had been tortured by CIA agents. And Navy Lt. Commander Charles Swift, the lawyer appointed by the Pentagon to try to wrest a guilty plea from captive Salim Hamdan, ignored his marching orders and instead advised his client to fight rather than engage in a plea bargain. The ultimate result was the Supreme Court opinion in Hamdan v. Rumsfeld (2006), which imposed legal constraints on the Bush administration’s program for trying alleged terrorists by military commission.

This, to me, is a good example of how people of conscience can and should get themselves into positions “on the inside” in order to try to prevent harm where they can.  It’s also an excellent example of lawyers taking their professional obligations to the Bar seriously.  Based on this abbreviated summary, Lt. Com. Swift took his duty to zealously represent his client more seriously than his duty to take orders from DOD.  By doing so, he set an example for young lawyers everywhere, for whom the duty to their employer and the duty to their profession can and do often come into conflict.

4:19pm  |   URL: http://tmblr.co/ZMMjnxdF3fh_
(Notes: 3)
  
Filed under: politics lawyering military war on terror 
January 12, 2013
"The study offers further depressing insights. Not only did the male pretend jurors prove “significantly more likely” to find the obese female defendants—rather than the slim ones—guilty, but the trim male participants were worst of all, frequently labeling the fat women “repeat offenders” with “awareness” of their crimes."

—

Study: Male Jurors More Likely To Find Heavier Women Guilty - ThinkProgress (via brooklynmutt)

Defense attorneys pay close attention to studies like this.  They often make decisions about how to represent their client based on findings like the one above.  For example—based on this study, if I were defending an obese female client in a criminal trial, I would not be zealously defending her if I didn’t do my best—within the bounds of the law—to overload the jury box with women—or at the very least, keep skinny men out during jury selection.  

Now, to be sure, this is only one study.  One study does not a scientific consensus make.  Furthermore: is it a foregone conclusion that every juror will manifest biases like this?  Of course not.  But if there’s even a chance that a juror might have a subconscious bias against my client, I need to do everything in my power to protect her during jury selection.  You can bet that if I was representing an obese female defendant, I’d be doing everything in my power—again, within the bounds of the law—to ensure that the jury box was mostly women, and that the men leaned a little on the heavy side.

It is the worst kept secret in American Criminal Justice that psychology does more to determine jury verdicts than evidence.  Conscious biases can be rooted out during the “Voir Dire” portion of jury selection, but unconscious biases cannot.  The best defense attorneys are aware of this, and know that criminal trials—particularly close ones—can be won or lost during jury selection.  Unconscious biases are mostly the reason why.

(via brooklynmutt)

1:32pm  |   URL: http://tmblr.co/ZMMjnxbbBxjV
(Notes: 1,421)
  
Filed under: politics criminal law juries criminal justice lawyering 
December 5, 2012
statehate: sarahepotts: Lawyer for me? In that dirty cheap ass Mercedes with a taillight out? No, I don’t think so. I find it interesting that people feel this way about professionals.  It’s a pretty common debate within legal circles — whether prospective clients are more likely to be put off by a professional in a beat up car or an expensive luxury car. I’m of the opinion that the former is true. If I’m looking to hire a lawyer or accountant, and he pulls up in a Ford Focus that costs $15K, my inclination is to think that maybe he isn’t very good at his job, otherwise he’d be able to afford a nicer car.  But some big law firms apparently frown upon their associate attorneys driving expensive cars because they think it gives the perception that they’re charging their clients too much money. I don’t buy it. People expect attorneys to make good money, and it isn’t unreasonable to anticipate that your attorney would drive a nice car. But if you’re driving a crappy car, it looks like maybe you got your law license out of a crackerjack box. LTMC: It would be interesting to me to see if the same people that complain about how expensive lawyers are happen to be the same people who complain when lawyers aren’t driving expensive cars.  It admittedly seems silly to suggest that lawyers would charge less “if only” clients weren’t subconsciously biasing themselves towards the services of more expensive lawyers based on appearances.  Then again, we shouldn’t overlook the fact that the photographer of this picture put it through an instagram filter.  That adds at least another $10 an hour this lawyer could charge, in my view.

statehate:

sarahepotts:

Lawyer for me? In that dirty cheap ass Mercedes with a taillight out? No, I don’t think so.

I find it interesting that people feel this way about professionals. 

It’s a pretty common debate within legal circles — whether prospective clients are more likely to be put off by a professional in a beat up car or an expensive luxury car. I’m of the opinion that the former is true. If I’m looking to hire a lawyer or accountant, and he pulls up in a Ford Focus that costs $15K, my inclination is to think that maybe he isn’t very good at his job, otherwise he’d be able to afford a nicer car. 

But some big law firms apparently frown upon their associate attorneys driving expensive cars because they think it gives the perception that they’re charging their clients too much money. I don’t buy it. People expect attorneys to make good money, and it isn’t unreasonable to anticipate that your attorney would drive a nice car. But if you’re driving a crappy car, it looks like maybe you got your law license out of a crackerjack box.

LTMC: It would be interesting to me to see if the same people that complain about how expensive lawyers are happen to be the same people who complain when lawyers aren’t driving expensive cars.  It admittedly seems silly to suggest that lawyers would charge less “if only” clients weren’t subconsciously biasing themselves towards the services of more expensive lawyers based on appearances.  Then again, we shouldn’t overlook the fact that the photographer of this picture put it through an instagram filter.  That adds at least another $10 an hour this lawyer could charge, in my view.

6:07pm  |   URL: http://tmblr.co/ZMMjnxYkdUiA
(Notes: 23)
  
Filed under: lawyering lawyers 
November 27, 2012
In 1970, shortly after being elected Attorney General of Alabama, 29-year-old Bill Baxley reopened the 16th Street Church bombing case — a racially motivated act of terrorism that resulted in the deaths of four African-American girls in 1963 and a fruitless investigation, and which marked a turning point in the Civil Rights Movement. Baxley’s unwavering commitment to the case attracted much hostility, particularly from local Klansmen, and in 1976 he received a threatening letter of protest from white supremacist Edward R. Fields — founder of the “National States’ Rights Party” and “Grand Dragon” of the New Order Knights of the Ku Klux Klan — in which he was accused of reopening the case for tactical reasons. Bill Baxley’s famously succinct reply, which was typed on his official letterhead, can be seen [above]. LTMC: It’s funny to think that a response like this today would almost certainly lead to Bill Baxley getting his hand slapped by the bar for lack of professionalism.  Though I’m not sure vulgarity in correspondence outside of a Tribunal actually violates any specific Model Rule.  They’d probably just fit it in under 8.4(d), under “conduct prejudicial to the administration of justice.”  Though arguably, in this case, the opposite was true.

In 1970, shortly after being elected Attorney General of Alabama, 29-year-old Bill Baxley reopened the 16th Street Church bombing case — a racially motivated act of terrorism that resulted in the deaths of four African-American girls in 1963 and a fruitless investigation, and which marked a turning point in the Civil Rights Movement. Baxley’s unwavering commitment to the case attracted much hostility, particularly from local Klansmen, and in 1976 he received a threatening letter of protest from white supremacist Edward R. Fields — founder of the “National States’ Rights Party” and “Grand Dragon” of the New Order Knights of the Ku Klux Klan — in which he was accused of reopening the case for tactical reasons.

Bill Baxley’s famously succinct reply, which was typed on his official letterhead, can be seen [above].

LTMC: It’s funny to think that a response like this today would almost certainly lead to Bill Baxley getting his hand slapped by the bar for lack of professionalism.  Though I’m not sure vulgarity in correspondence outside of a Tribunal actually violates any specific Model Rule.  They’d probably just fit it in under 8.4(d), under “conduct prejudicial to the administration of justice.”  Though arguably, in this case, the opposite was true.

(via interruptions)

12:32am  |   URL: http://tmblr.co/ZMMjnxY8UgaB
(Notes: 25)
  
Filed under: politics lawyering 
July 26, 2012
A Good Lawyer

Bruce Godfrey recalls one of his most satisfying moments as a lawyer in the comments at Simple Justice:

One of my happiest days as a lawyer - not most profitable financially, but happiest - occurred 6 months ago in District Court in Montgomery County, MD. A pro se defendant was being prosecuted for alleged driving while suspended case which, in MD, is theoretically jailable and as charged was perhaps really jailable. The prosecutor was getting a great deal of hearsay and self-incriminating material into evidence from the officer, but made a fatal mistake in failing to get the officer to ID the location of the offense, which under MD’s constitution and basic principles of due process should kill the case.

I was in court having pled out my own paying client’s case on very favorable terms, and was awaiting a dispo[sition] sheet from the burdened clerk. Seeing this unfair beat down going on while waiting, I stood up at the end of the State’s case and requested of the bench that I be appointed as pro bono counsel for the Defendant. The judge looked mildly surprised, then said it was fine if the defendant was fine with it, which he was. I shook the defendant’s hand, told him to say NOTHING in his defense and let me make a motion. 

The court then dismissed the case on my defense motion for acquittal for lack of subject matter jurisdiction, since location is jurisdictional and not mere venue in MD criminal cases. I sat down with the thanks of the Court and to the smiles and nods of a room full of my sisters and brothers in the Bar. I suspect that the judge might have dismissed the case on her own, but who knows? Glad my client didn’t find out.

For non-lawyer types:

Pro se

Subject-matter jurisdiction

Venue

10:24pm  |   URL: http://tmblr.co/ZMMjnxQAnoM4
(Notes: 9)
  
Filed under: lawyering 
Liked posts on Tumblr: More liked posts »