April 11, 2014
When Judges Attack: Prosecutorial Smackdown Edition

An Assistant District Attorney in the Bronx was recently destroyed in open court by a Bronx Criminal Court Judge.  The judge was livid about the D.A.’s failure to turn over exculpatory evidence to the Defense during a rape trial.  The Defendant spent eight months in prison awaiting trial, and the evidence wasn’t disclosed until the end of the trial, after closing arguments.  The judge took the rare step of barring the prosecutor from ever appearing in his courtroom again.  The transcript of the hearing is epic, to say the least:

The Court: I think I’ve heard enough. You can stay standing. 

I was admitted to the bar in April of 1987, and I was, at the time, an Assistant District Attorney in the Bronx DA’s Office.  I’ve always been very proud of that association, until today.  I also served as a defense lawyer and 18B counsel.  I’ve tried homicides; I have tried child molestation cases; and I have tried drug sale cases.

I have now been on this bench nine years and three months.  In all that time, as a prosecutor, as a defense lawyer, as judge, I have never once seen a Brady violation as egregious as this.

To my mind, this is an utter and complete disgrace, not just for you, but for your office in general.  Disgrace.

The excuse you offer, passing the file back and forth, no one looking and no one knowing what anything is, saddens me on one level and makes me sick on another.

For my own peace of mind, I absolutely refuse to believe that you did this on purpose.  However, it is gross negligence on your part to have not found this information, and turned it over to Defense, and for your supervisor to find it and turn it over right after Defense summations.  I emphasize those words: Gross negligence.

I recall the Defense asking before the trial started for any notes that the People had in their possession, and you blithely said, “No, we don’t have any notes.”  It turned out, unfortunately, to be a lie.  Your actions bring disgrace to both your office and to yourself.

But what really concerns me more than anything else is: Where is the justice for your complaining witness?  Where is her justice?  She had the right to have this case heard by a jury and have that jury decide whether or not they believed her allegations.  She’s lost her chance at that justice due to your conduct.

What about [the Defendant’s] justice?  The Defendant had a right to have a jury decide whether or not they believed those allegations.  Where is his justice waiting for his trial?  You have failed on so many levels, on so many levels.

Here are your sanctions:  You’re going to leave this room, and you’re never going to come back.  You can’t appear before me anymore.  I’ll tell you why, because I cannot trust anything you say or do.  I can’t believe you.  I can’t believe your credibility anymore.  The only thing a lawyer has has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this Court.

Step out.

March 13, 2014

There is a long and noble history of lawyers going against popular opinion in this country. John Adams successfully defended British soldiers accused of killing colonists. His son effectively represented the Amistad case. James Horton, the presiding judge in the Scottsboro case, is remembered today as heroic but at the time lost his job as a judge and couldn’t maintain his law practice due to his affiliation with the case.

[…] The campaign to discredit [Debo Adegbile] is reminiscent of criticism leveled at attorneys representing or advocating on behalf of Guantánamo detainees. In 2010 they were vilified and labeled “unpatriotic” in several media campaigns. Responding to an inquiry from Senator Charles Grassley (R-IA), the Department of Justice identified nine of its attorneys as involved in defense work. As a result, these lawyers, along with several other non-government attorneys representing detainees, found their ethics and loyalties under attack for pro-bono work they conducted as a matter of conscience and professional responsibility.

Bar associations and legal organizations defended the Guantánamo lawyers in 2010, speaking out publicly against criticisms of their service on behalf of the detainees. We now object to attempts to vilify attorneys such as Debo Adegbile, and the honorable work of the NAACP Legal Defense Fund, as antithetical to the fundamental rights enshrined in our constitutional system. The Legal Defense Fund’s willingness to represent high-profile, and to some, unpopular, defendants demonstrates a respect for the rule of law. Rather than punish principled legal advocacy, as an elected official who took an oath to uphold and defend the Constitution of the United States, [Congress] should commend it as integral to our democracy.


A Letter sent by the National Lawyer’s Guild (and signed by numerous other Legal Organizations) to U.S. senators who voted not to confirm Debo Adegbile as head of the DOJ Civil Rights Division.  Adegbile is an experienced attorney who represented Mumia Abu-Jamal in the appellate courts.  Many senators shied away from Adegbile as a result of a smear campaign against Adegbile led by the Fraternal Order of Police.  As the letter points out, by denying Adegbile’s nomination, the U.S. Senate is sending the message that “lawyers who fulfill their mission of upholding the U.S. Constitution through representing [unpopular] clients—in this case former death row inmate Mumia Abu-Jamal—should be disqualified from serving in high levels of the government.”

March 3, 2014
"The Supreme Court cannot allow a rule that forces capital defense attorneys to become agents of the state—and consultants about which lethal injection procedures are better than others—to the detriment of their clients."

Andrew Cohen, discussing a recent 8th Circuit decision that forces defense attorneys to propose “alternative” executions for clients when they challenge an existing execution method as Cruel & Unusual.  He adds:

The best answer here, naturally, is the simplest one. Make the injection process more transparent, and give attorneys access to the information they seek, so that they can challenge state action based upon facts and evidence and not merely by allegation. 

February 26, 2014
"Every public defender is going to make mistakes, and those mistakes are going to take a terrible, inexcusable, and unforgivable toll on the lives of the clients you love. It’s just going to happen. You will err, and someone will go to jail because of it. Somehow, to survive in the work, you need to find a way to forgive the unforgivable, to accept and acknowledge that you’ve screwed up, and to recognize the price of that screwup without becoming so paralyzed that you can no longer do the work. As bad as you may think you are, clients need you—they are desperate for decent lawyers. Don’t be your own worst enemy. Forgive yourself—or you’ll burn out in two years."

David FeigeIndefensible, at 254.

February 25, 2014
High court sides with government on frozen assets

This is probably one of the most dangerous Supreme Court opinions the Roberts Court has ever released.  Under Kaley v. United States, any prosecutor who can gin up a probable cause determination from a  Grand Jury may freeze your assets—including money set aside for legal defense—and prevent you from hiring the attorney of your choice.  And they may do so without granting you an opportunity to contest the Government’s probable cause determination at a hearing.

The Court has previously held that the Government can freeze assets set aside for legal defense.  But it has never held that the Government can do so without at least providing a hearing for the aggrieved Defendant to challenge the probable cause determination underlying the asset forfeiture.  Under Kaley v. United States, the Government can now use federal forfeiture statutes as a weapon against Defendants who seek private counsel, and they have absolutely zero recourse.  

Consider the implications of this decision.  People who cannot afford private counsel are usually assigned a public defender.  For much of the past year, the Federal public defender system has been facing a budget crisis.  Much has been written about the lengths that Federal public defender’s offices have had to go to in order to keep their offices running.  Federal public defenders are an extremely talented and dedicated group (I am proud to have worked in a Federal Defender’s Office while I was in law school).  But there are not enough of them to go around, and they lack the resources of the United States Attorney’s Office.

So imagine a USAO prosecutor knows that the local Federal public defender’s office in his district is understaffed.  He knows that staff attorneys in the public defender’s office are being furloughed, and thus has less time to work on their cases.  That USAO prosecutor can now use federal forfeiture statutes to force a criminal Defendant to abandon their private attorney, and instead be assigned a public defender who has less time to work on the Defendant’s case.

This power could also be abused in other ways.  Suppose that the prosecutor knows that the private lawyer representing the Defendant has a long-standing relationship with the Defendant.  The private attorney knows the details of the Defendant’s personal and professional life, making it easier to represent the Defendant effectively.  The prosecutor can neutralize these advantages by freezing the Defendant’s assets and forcing the Defendant to go with a public defender instead—one who is completely unfamiliar with the facts surrounding the Defendant’s personal and professional life.  This is obviously detrimental to the Defendant for equally obvious reasons.

A private criminal defense attorney with more time to work on a client’s case is, ceteris paribus, in a better position than a public defender who is being furloughed.  A private attorney who knows the intimate details of a client’s personal and professional life is often better equipped to represent that client in court.  But  Kaley v. United States allows the Government to manipulate the system to force criminal Defendants to accept legal counsel who may not be able to represent them as well, and it gives the Defendant zero opportunity to challenge the prosecutor’s decision.  It is totally unreviewable.  All they need is a probable cause determination—the second lowest evidence standard in criminal law.  With this decision, federal prosecutors are given a weapon of unbelievable power that can and will be used to force Defendants to take pleas and accept potentially substandard representation.

The Court’s majority opinion tries to give cold comfort to the reader by stating that Congress can easily remedy this situation by amending the forfeiture statute.  But the question here is not what Congress can or should do.  The question is whether the present statute deprives someone of a fundamental Constitutional right.  We are not asking what the Government can or should do, but what it can’t or must do.  It is cold comfort to know that the Constitution allows the Government to effectively choose the Defendant’s attorney for them with zero recourse.

Justice Roberts, with whom I rarely agree, shocked me by dissenting in this case.  He seems to understand that this case is not simply about fundamental fairness or preserving the presumption of innocence, but about an enormous imbalance of power between the Government and criminal Defendants that has now been made even deeper :

The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. 

Money quote:

Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role.

January 23, 2014
Why People Plead Guilty To Crimes They Didn’t Commit

Lordina Youngcourt discusses the incentives built into the system:

[The system] is also set up to get pleas.  In many counties, you get arrested, and when you go to court for the first time, and you get a lawyer, which may be a week or a month down the road, you might still be in jail.  And the plea offer you’re gonna get is “if you can plead guilty to this, you’ll get time served and you get to go home.”  So I’m in the position where I have to tell a client “you can either wait for your jury trial, and the quickest we’ll be able to get that is 70 days from the date you were arrested.  And of course, you will have lost your house, you’ll have lost your job, and your wife may leave by then.  But we can get you a jury trial and you can prove that you’re not guilty.  Or, the prosecutor is saying, and the judge is saying, that if you just plead guilty today, you can go home tomorrow, or today.

Earlier in her remarks, she made related point that bears repeating:

It’s…very difficult for defendants to understand [what’s going on].  In Indiana we don’t have what’s called “Alfred" pleas or "best interest" pleas.  if I have a defendant who’s going to plead guilty, he literally has to go to court and say "I did X, Y, and Z."  Well many times the plea agreement that’s been offered includes him pleading guilty to things that he didn’t do.  So he’s charged with six times and they want him to plead to three, and he says "I did the [first] two, but I didn’t do the third."  And [defendants] don’t understand why this system that’s supposed to applaud honesty is telling him “if you want the deal, you have to lie.”  So the whole plea system is very difficult [and] very ethically troublesome.

But that’s how modern criminal justice works.  For some people this is actually a good thing: the majority (though certainly not all) people who end up in criminal court are guilty of something.  A quick plea from an over-worked prosecutor may (and often does) lead to a better result than if you went to trial.  The problem is that the system is not set up to get to the truth.  It’s set up to get Defendants to take pleas so the Machine can continue chewing people up and spitting them out with criminal records.  Prosecutors can scare defendants into taking pleas by over-charging them and then threatening them with large jail sentences.  Or, alternatively, the painfully slow wheels of justice convince defendants to plead guilty to crimes they didn’t commit so they can go home sooner, and try to salvage the pieces of their life that fell apart while they were incarcerated.

This us why the number of wrongfully convicted people is almost certainly higher than the estimates that appear in scholarly literature.  This sort of thing happens literally every day in courts across America.  There is no practical way to systematically identify every single person who pleaded guilty to a crime they didn’t commit just so they could avoid a prolonged stay in jail, or the potential of facing a catastrophic jail sentence if they go to trial and lose.

A fundamental misnomer that many Americans have is that it’s never in an innocent person’s interest to plead guilty.  It can be and often is.  The system makes it so.

January 22, 2014
"Doesn’t everybody deserve to have somebody stand by them in their darkest hour? I am sure right now that each one of you can think of 10 or 15 minutes during your life where you were ashamed of the way you acted. Ashamed of what you did or what your behavior was. It is my job to stand by those people. Find them a way to get out of it if they can. Or if nothing else, just be the person who stands there with them."

Lorinda Youngcourt, a Public Defender from Indiana.

December 20, 2013
The Tao Of Pre-Paid Legal Services

A fellow blogger writes:

I know as a lawyer you don’t give legal advice etc etc, so maybe you’re not comfortable with this question. But what do you think about pre-paid legal services in terms of if its a worthwhile thing to look into.

Before I dig into the meat, let me offer some clarification: I’m not an attorney quite yet (hopefully I’ll be sworn in  by the end of January).  Non-attorneys (like myself at present) can give “Legal Information,” but not “Legal Advice.”  It’s the difference between telling you where to look to find a statute (legal information), versus telling you how a judge is likely to rule on your case (legal advice).  Attorneys, on the other hand, can obviously give Legal Advice, but they may be reluctant to do so in a free-wheeling fashion, because they don’t want to accidentally create an attorney-client relationship that can create liability for them down the road.

Here is my take on Pre-Paid Legal Services:

Short version

Some Most of them are scams, and with pretty much all of them, you get what you pay for.  But it’s better than having no lawyer at all.

Long version

Pre-paid legal services are great in theory, because they are a solution to the time-honored tradition of attorneys being too expensive for people of modest means to afford.  And in fact, for some people, it’s not a bad deal.  But the devil is in the details.  Let’s look at an example: Legal Shield. 

With Legal Shield, for a monthly fee, you get access to an attorney who will do the following:

1. Make phone calls and write letters on your behalf.

2. Review legal documents and contracts, up to 10 pages in length.

3. Up to 60 hours of trial and trial prep time, with yearly increases divided like so:


Here we have a good example of how a person might get boned on this particular plan.  Namely, the division between “trial prep time” and “trial time” here is a bit strange.  I’ve represented clients in administrative hearings, and I’ve helped a number of attorneys prepare for criminal trials.  I am presently helping an attorney prepare for a civil trial.  In each case, we put far, far more than 2.5, or even 4.5 hours of prep time into the case.  Litigation is hard work.  It takes diligence, and hours of legal research and writing.  It also requires a lot of correspondence with the other party.  For each of my administrative hearings, I spent at least 40 hours total on prep work, including legal research, developing a theory of the case, making discovery demands, reading client documents, drafting correspondence to other parties, writing direct and cross examination questions, developing a closing statement, conducting initial and follow-up interviews with the client, interviewing witnesses, and making sure every “i” was dotted, and every “t” was crossed on the file.  If someone asked me to do all this in 2.5 hours, I would’ve laughed at them.  And this is for a “simple” Unemployment Insurance hearing.

Nonetheless, at $17/month, Legal Shield’s services could definitely help somebody, if only for access to attorney consultations.  Suppose that you live in an apartment in New York State with your significant other.  Suppose further that you are a victim of domestic violence.  One day, after a particularly bad fight with your partner, you decide that you need to leave your apartment.  First, you go to the Family Court and get an order of protection.  Then, you start packing your things.  You call your landlord to tell him what’s going on.  He informs you that your name is on the lease, and if you vacate the apartment, he’s coming after you for the unpaid portion of rent under the lease.  Distraught, you go to your Legal Shield attorney with a copy of the lease.  After perusing the lease and glancing at a statute book, your Legal Shield attorney will be able to tell you that in New York, because you have an order of protection against the abusive partner, and they continue to pose a threat to your safety, you can likely terminate a lease without liability to the landlord for the unpaid portion of rent under the contract.  Your Legal Shield attorney can then draft a letter to the landlord citing the law and informing him that the law protects you, which will hopefully deter the landlord from attempting to file a civil suit against you for the unpaid portion of rent under the lease.

So there is potential value to be had in Pre-Paid Legal Services.  On the other hand, there are a lot of horror stories about people going through Pre-Paid Legal Services as well.  For example, many Pre-Paid Legal Service plans offer a “Simple Will” as part of the membership package.  I’m not sure what that means, but I suspect it’s intended to limit the amount of time your attorney has to spend drafting your will.  If you have any sort of complexity in your estate plan whatsoever, you should already be looking elsewhere.  One shouldn’t expect much for $17/month.

Which brings me to my next issue: Pre-Paid Legal Services are notoriously shady.  It is common for them to use Pyramid-scheme sales techniques to market their services.  Guess where the savings are coming from that allow them to offer such low membership fees?  Here is a complaint from the link above that sums up the potential issues:

As a fully licensed NJ attorney, I seriously looked into this entity before I even thought about participating as an attorney in their network. Thank God I did so. This is like an expensive lawyer referral service. They offer you a “simple will” as a free bonus incentive, but what they don’t tell you is that a simple will is something that you can draft yourself. If your needs are more complicated, then you need an estate planning attorney anyway.

The lawyers give you a free consultation and will write a simple demand letter for you. Anyone who knows anything about “the legal system” knows that a simple demand letter, while sometimes getting results, is simply the “first step” in the process and many times goes right into the trash. But if anything above and beyond a demand letter is needed, you have to pay for the attorney at their “discounted rate”. And since obviously not all attorneys participate in this program, you must be willing to use a participating lawyer in order to even avail yourself of the discount in the first place.

Even more troubling is the MLM structure of the entire business model. They don’t tell you that 95% of the “sales representatives” make less than $200 a year in commissions, and they skew all of their financial and membership numbers drastically to make it appear to prospective sales reps and clients as if this is a legit money making opportunity and a profitable company.

But what really pisses me off is to hear complaints like some of those on this board. Genuine people with genuine legal problems who respond to blogs, classified ads, etc. seeking REAL attorneys and needing real legal advice. Next thing they know, they are getting a call from a Prepaid Legal sales rep. Now you have someone who might not even have a high school education, much less a genuine legal background, giving you advice and trying, in you hour of need, to sign you up to this useless service. They lie to you, insisting that the program can really help you, no matter what your situation, just to get you signed up. How reprehensible and shady is that? Be Careful People. It’s a SCAM. 100%

So in the end, it all comes down to having reasonable expectations about the service you are paying for.  If you are looking for a moderate amount of legal protection from common legal matters, a Pre-Paid Legal Services agreement can probably help you with that.  If you are trying to draft important legal documents, or have a legal issue that will require trial preparation and court appearances, Pre-Paid Legal Services may not be terribly helpful.

2:26am  |   URL: http://tmblr.co/ZMMjnx11kElMg
Filed under: lawyers lawyering 
December 19, 2013
On representing yourself in court


0. Don’t do it. I mean, don’t do it if you can avoid it. Representing yourself in court is a bit like playing with fire. It’s never prudent. But if you’re going to do it, a few basic precautions can help avoid the most dramatic mistakes.
1. If you do not show up, you will not win. Be on time.
2. The attorney for the other side is not your friend. Be careful.
3. Be respectful to the judge.

LTMC: There are some great statistics out there demonstrating how important it is (if possible) to have a lawyer if you wind up in court.  Jeffrey Toobin noted the following in his 2013 commencement speech at Harvard Law School:

You’ve undoubtedly heard in the news media that there is currently an oversupply of lawyers in the country. There are just too many of you—of us. I’ve said it myself. But I think that’s not quite accurate. In the years since the economic crisis hit, it’s become quite apparent that there are actually not enough lawyers out there—at least, in the right places. Here are some melancholy facts. A study of women seeking restraining orders found that eighty-three per cent of those with lawyers secured an order while only thirty-two per cent of those without lawyers got them. Tenants represented by lawyers are three to nineteen times more likely to beat their landlords in eviction cases. Or let’s talk about foreclosures: people facing foreclosure and eviction are dramatically more likely to be able to keep their homes if they are represented by a lawyer.

Given the outrageous unmet need for legal services, there has been some excellent progress on developing pro se educational materials.  Persons representing themselves in Unemployment Insurance hearings in New York State, for example, have access to a Claimant’s Handbook with a lot of helpful information.  The State Bar of Texas distributes pro se divorce handbooks, as does the Connecticut Judicial Branch.  Federal Courts issue manuals for pro se litigants.  The Florida Bar provides an online manual for pro se appellate practice.  It’s not perfect, but it’s better than nothing.

The main advantage lawyers have over a pro se litigant is time and resources.  Lawyers have access to a number of legal research tools (e.g. Westlaw, Lexis) that make legal services much, much easier to accomplish.  These subscription-based research services that cost an arm and a leg, but are much easier to use than a library of musty (possibly outdated) law books which most pro se litigants will have to make do with.

Lawyers also have the luxury of time.  While you are busy working for a living and trying to put food on your table, a lawyer is spending at least part of their day trying to figure out how to get you the best legal result they can.  Even a mediocre lawyer who is phoning it in will probably do better in front of a judge than a pro se litigant—not because pro se litigants are dumb, but because the practice of law is hard.  There is a reason why people need to go to school to learn how to do it competently.  And even then, not everyone who graduates is able to do it well.

So I agree.  If you need to go to court for something—anything—get a lawyer if you can (a) afford one, or (b) qualify for indigent legal services.

9:06pm  |   URL: http://tmblr.co/ZMMjnx11il-Uo
Filed under: lawyers lawyering 
December 10, 2013
"No civilized system of justice should have to depend on … flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department … should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute [these] cases without bothering to disclose [the lawless cop’s] pattern of misconduct."

Judge Alex Kozinski, discussing the misconduct of law enforcement officials in Milke v. Ryan, decided last March of this year.  The Court was so shocked by the scope of the misconduct in this case that it sent a copy of its opinion to the local United States Attorney’s Office to investigate the Phoenix Police Dept. and the Maricopa County Attorney’s Office for systemic civil rights violations.

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