The Big Apple Shows How Free Lawyers for the Poor Pay for Themselves

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Democracy's Constitution / Repairing the System

Leyla Martinez is a good example of the problem and its solution. Ms. Martinez, a single mother, had just been evicted from her apartment in the Bronx after a year’s struggle representing herself in the New York Housing Court. Then she was able to contact an attorney at the Urban Justice Center; soon thereafter Ms. Martinez and her kids were back in their apartment. Seventy percent of low-income tenants come to housing court without a lawyer, but those who do have lawyers are 75% less likely to be evicted.

Now the New York City Council is considering a landmark bill that would guarantee low income tenants facing eviction legal representation. An added bonus of the proposed legislation is that the legal expenses incurred by the City will be more than made up for by the savings gained by keeping families out of city shelters.

It turns out that lawyers are not only effective; we are also a bargain.

This excellent NYT article tells the full story.


Justice Kennedy’s Selective Amnesia

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The Sjupremes
Supreme Court Justice Anthony Kennedy speaks to faculty members at the University of Pennsylvania law school, Thursday, Oct. 3, 2013, in Philadelphia. (AP Photo/Matt Slocum)

We all hate Citizens United, but sometimes we don’t remember why. So let me remind you.

To take a nostalgic example, let’s consider Jeb Bush’s campaign for the Republican nomination this past year. Under current law if you wanted to support Jeb, you could make a direct contribution to his campaign, but it would have to be limited to 2700 dollars. On the other hand, you could make a donation of any amount to his Super Pac Right to Rise. The advantage of the Super PAC is that there are no dollar limits on the contributions it receives or the expenditures it makes. They can be in the millions. The disadvantage is that the expenditures must be “independent”, not coordinated with a candidate.

Technically, Right to Rise was independent of the Bush campaign itself, but functionally it was an integral part of it. Guileless Jeb once inadvertently admitted as much. He proudly announced, “We just started to advertise…”– then he corrected himself–“our Right to Rise Super Pac started to advertise, not our campaign.” One of many possible examples of coordination was the fact that his “independent” Super Pac paid political operative Trent Wisecup 16,000 dollars for political strategy services. Wisecup was also the Bush campaign Director of Strategy. And Bush’s approach was the rule, not the exception. The “independent” expenditure exception has made a farce of campaign finance reform.

Lee Fang of The Intercept had the clever idea of asking Justice Anthony Kennedy, the author of the majority opinion in Citizens United, what he now thought of the case’s impact. Fang reminded Kennedy that in his opinion he had cavalierly rejected the argument that so-called “independent” contributions by large donors would actually be coordinated with political candidates to have a corrupting effect on the election system. Kennedy’s argument had been simplicity itself:–“By definition an independent expenditure is political speech directed at the electorate and not coordinated with the candidate.” Fang pointed out that history seemed to have proved Kennedy wrong; all candidates now were coordinating their campaigns with allied Super Pacs. Kennedy’s reply was “No comment.”

Kennedy’s error was one of fact, not logic. He didn’t foresee the negative impact his decision would have on the democratic process. While maybe we should have judges who are more aware of how life operates in the “mean streets” of political life, we can’t expect a judge to be a factual expert in all the areas that cases present. After all, Kennedy is a judge, not a lobbyist.

But the fact is that, before he was a judge, Kennedy was a lobbyist, presumably aware of how easy it would be for a technically “independent” expenditure to be covertly coordinated with a candidate’s campaign in violation of the law.

Citizens United was a 5-4 decision.

The Makings of a Great Lawyer

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Book/film List / Legal Fictions

What separates a “great” lawyer from a merely good one? Graham Moore’s new novel The Last Days of Night gives us what I think is a persuasive answer to that fascinating question.

The Last Days of Night tells the story of Paul Cravath, a 26 year old recent law graduate, who in 1888 suddenly becomes lead defense counsel for the industrialist George Westinghouse in one of the most famous patent cases of all time. Thomas Edison had sued Westinghouse for infringement of his light bulb patent. Actually Edison brought 312 individual cases asking for a total of 1 billion dollars in damages. It was one of the biggest cases of all time, but Cravath’s first. The reader gets an extra jolt of pleasure from knowing that this neophyte lawyer will go on to be the name partner in perhaps the most famous law firm in the world.

Moore’s historical novel tells the story of Cravath’s handling of the case and, in so doing, the lessons he learns about the practice of law, and himself. Moore even throws in a romance with a beautiful opera singer who becomes Cravath’s wife. The book also provides the lay reader WITH a comprehensible explanation of the scientific issues behind the case as well as a vibrant portrait of life in New York City at the end of the 19th Century.

One reason that Moore is able to provide us a riveting narrative from start to finish is his liberty as novelist to re-arrange the “facts” to create the most interesting story. He admits that his narrative even presents events as true that may not have happened. This historical fiction may be almost as much fiction as it is history. Still I think his “based on a true story” approach to history does not prevent Moore from providing us not only an excellent entertainment, but also teaching us a lot about how science actually works.

But I recommend the book to you for A different reason– I believe that the qualities that Mr. Moore tells us “make” great scientists are the same ones that make great lawyers like Paul Cravath. Thomas Edison believed that there are three qualities necessary to be a great scientist. First, you have to imagine a new future– a desirable state of affairs that does not presently exist. In the late 19th Century a world where light conquered darkness was such an idea. Then you have TO devise a means to make that hypothetical future a reality. In the “light bulb” case this turned out to be “alternating current”(AC) that allowed electricity to travel long distances. Finally you have to “sell” the idea and the means to the actors who can make things happen. In the “light bulb” case IT was the Wall Street investors who could finance the “wiring” of the world.

I will not spoil your reading pleasure by describing Paul Cravath’s lawyering in detail. But I am confident that readers of Moore’s novel will discover that Cravath’s method in handling of the Westinghouse litigation sounds very much like the idea/ means/, sell triad that Edison ascribes to great science. First, he imagined a “future” that was congenial to his client’s interests. Then he created the legal mechanism that could make that future a reality. Finally, he used his persuasive skills to “sell” both the idea and the means to the parties that had the power to make it a reality.

Albert Einstein once opined that while you have to learn the rules in science, you also have to play the game better than anyone else. In Paul’s case, he had to know the legal rules, but imagination and craft were the weapons that allowed him to play the game to win. Cravath didn’t best his opponents by subtle distinctions of applicable case law. He outsmarted them with creative ideas and clever strategies.

There has always been a temptation to “upgrade” law’s intellectual status by treating it as a “science.” The most recent example is the “law and economics” movement that uses the methodology of economic science to evaluate the “efficiency” of legal rules. Moore’s book illustrates that no matter how we choose to describe the study of law the practice of law remains more an art than a science. Moreover, Moore’s book suggests that the same is also true about the practice of great science.

Winner or Loser?

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Book/film List / Heroes

The new film Don’t Think Twice is my favorite kind of movie; it makes you laugh watching it and makes you think later on. In telling the story of the breakup of an improvisational comedy troupe in NYC, the movie celebrates how a combination of talent and camaraderie can produce infectious excitement. But it is also a cautionary tale about how group success falls prey to individual ambition.

The troupe specializes in taking a random comment from the audience and running with it, each member of the cast riffing on the contribution of the last. The comedic whole turns out to be much more than the sum of the individual contributions. The audience not only feeds off the creativity of the individual contributions, but also shares in the joy the cast members take in their collective enterprise. It’s great to be young, talented, and free to do your own thing, even if the joy is linked to a grad student standard of living and involuntary envy of the stars of hit shows like Weekend Live.

Tensions arise when one member, Jack, receives and accepts an offer to join the cast of Weekend Live. Suddenly this mutual admiration society transforms into a mutual recrimination society. The cast members left behind cannot help but see their colleague’s success as evidence of their own failure. They accuse Jack of selfishness and even plagiarism. He in turn is deeply wounded by his colleagues’ refusal to rejoice in his success, but also finds compensation in the knowledge that he is headed for a larger paycheck and a higher rung on the showbiz status scale.

Watching the film, I could not help but see Jack as a “winner” in moving up the ladder and his colleagues as “losers.” But writer /director Mike Birbiglia is too smart to make it a “winner take all” affair. Gradually the abandoned cast members start to move towards new futures with the knowledge that they had been true to each other and that at least once in their lives they had done something really good on their own terms. Maybe it will happen again.

And Jack finds there is a downside to his success. Not only has he lost his best friends, but he is no longer a creator of original comedy sketches. The head writer of Weekend Live  makes clear that he sees Jack as only a small, well-paid cog in a large entertainment machine that has little interest in him beyond his next performance. It doesn’t look like Jack is going to be a new Richard Pryor or Bill Murray. More likely he will end up as the noisy neighbor on some network laugh-tracked sitcom.

That’s where the thinking starts to kick in. Maybe we’ve got the “winners” in Don’t Think Twice all wrong. It turns out that “winner” has more than one definition. In some contexts, it is the person who prevails in a contest. The Cleveland Cavaliers won the NBA title this year. But an alternative definition is “a good or successful person.” In short, someone we admire. By that definition, maybe it’s the abandoned colleagues who stayed loyal to each other and their work who are the winners.

Of course, if they were indeed “winners,” they were very lucky ones because almost all of them would have accepted an offer if they had received it. But that’s my point. We live in a culture that so magnifies the importance of status and income that we might be persuaded to act against our own self-interest more broadly considered. That is not to say that every disappointment you experience is a blessing in disguise, but some may be. And it’s important to recognize them–either at the time or later.

Is Ryan Lochte a “winner?” He has an Olympic medal so I have to say “yes,” but most of us still view him as a “loser.” I’m not suggesting that he became a “loser” at Rio; I think he just revealed his true self there. How about John Turturro’s character, John Stone, in the HBO mini-series The Night of? Stone doesn’t dress well or make much money, and his peers don’t show him much respect. But he’s a smart lawyer who earns enough to support himself and his cat in a modest lifestyle while representing people who really need representation. He’s a “winner” to me.

And then there’s Colin Kaepernick. Are the sports superstars who remain silent about race to protect their advertising contracts the ”winners” and the struggling quarterback who spoke out about racism as a matter of conscience a “loser?” You tell me.

Let’s Give Law a Chance

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Repairing the System / Repairing The Systen

We are all unhappy about continuing stories of widespread police abuse of African-American citizens, but there seems to be no effective remedy available.

One egregious example was the police killing of  seventeen year old Laquan McDonald  in Chicago.  McDonald  was shot by officer Jason Van Dyke. Van Dyke claimed McDonald  was coming at him with a knife and he only  shot in self-defense. Several of his police colleagues filed statements corroborating Van Dyke’s story. Then a police video was released showing that McDonald armed with a knife, but was walking away when Van Dyke shot him sixteen times. Van Dyke will go on trial on homicide charges, but persuading 12 jurors to find a police officer guilty beyond a reasonable doubt has proved to be a near impossible task. Will this ever end?

Maybe it will.  Chicago Police Superintendent Eddie Johnson (photo) has recently filed charges against the officers who signed false statements about what they witnessed the night McDonald died. If a civilian review board finds that the officers did file false statements,  they will be discharged. The policy is now clear: “If you’re  a liar, you’re fired.”

The moral to this story seems to be “when all else fails, try the law.” The whole idea behind the “rule of law” is that legal rules will be fairly and impartially applied to all citizens. Unfortunately, in our society this simple principle is not honored. The rules are over-enforced against minorities and under-enforced against the politically powerful, a category that includes the police. Superintendent Johnson has made a wise choice in demanding that police officers, like the rest of us, follow the rules if they want to keep their jobs.

Will this strategy work? We will have to wait and see. But I am hopeful. Unenforced rules are ignored. Up to now, an officer who witnessed illegal conduct by a colleague had been placed in an impossible situation. He knew there was no realistic fear of punishment for lying, but a certitude of social recrimination for turning in a colleague. And potential abusers were also aware of this imbalance. Now the incentive structure has been reset. “If you’re a liar, you’re fired.”

I think most Chicago police officers will accept that following the rules is part of the job. The others should find another line of work. Maybe I am guilty of naivete in thinking that fear of loss of a job and pension can prevail over the code of silence we are told is so strong in police culture. Still I am encouraged by some crude, but apt, advice that Theodore Roosevelt once offered: “If you’ve got them by the balls, their hearts and minds will follow.”

A Wise Latina

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Democracy's Constitution / Heroes / The Supremes

Sonia Sotomayor has been a different kind of Supreme Court justice from the beginning.   At her confirmation hearing, instead of putting the Senate committee to sleep with platitudes, she told a male Senator that she thought a “wise Latina” might  have some valuable insights to offer in constitutional discussions. Then she ignored the  tradition for first term justices  to be  seen but not heard by  immediately joining in the colloquies  with counsel  during oral argument.

But, as Adam Liptak points out in this excellent article in  the New York Times, it was only  last term that  Sotomayor  showed how different a justice she could be.  In so doing, she may have started to change the way we talk about constitutional law.  I sure hope so.

Liptak discusses several Sotomayor dissents from last term, but rightfully gives special attention to her dissent in Utah v. Strieff.  Let me give you some background on the case before letting you judge Sotomayor’s  performance for yourself.  Strieff involved a fact situation that has divided the Court for a long time.  A police officer stops and searches a citizen without any reasonable suspicion of illegal conduct.  This is a clear violation of the Fourth Amendment.  But in the course of the illegal search, evidence of illegal conduct is found which the State attempts to introduce at trial.  The defense insists that it be excluded because it stems from an illegal stop and search.

In Streiff, the State argued the evidence discovered, illegal drugs, should be admitted because it was not the product  of the illegal stop; it came from  the officer’s decision after stopping Strieff to check if he had any warrants outstanding and finding there was an arrest warrant outstanding for a minor traffic violation.  Only  then did he arrest Strieff and search him, finding crack in one of his pockets.  The defense replied that this argument was pure sophistry because checking  for outstanding warrants is a routine part of the stop procedure.  To allow such tainted evidence will only invite police to illegally stop and search innocent people. many guilty of no more than having dark skin.

The Court ruled in a 5-3 decision for the State.  Justice Thomas wrote the majority opinion which pretty much tracked the prosecution theory.  Justices Kagan and Sotomayor  wrote dissents which  echoed each other on the law,  but differed dramatically in presentation.   Sotomayor better understands that the defense position may have  logic on its side, but fails on an emotional level because it calls for a guilty person evading punishment.   Also what’s so terrible about the inconvenience of  being stopped  by a police officer just trying to do his or her duty?   Sotomayor wants us to understand– to viscerally feel– that, especially for a minority, a police stop constitutes much more than an inconvenience.

Here is Part IV of her dissent.  It’s a little long for the internet, but I don’t think you will find it boring:

SOTOMAYOR, J. dissenting

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873, 886–887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U. S. 1, 4–5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119, 124–125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014). The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This Cite as: 579 U. S. ____ (2016) 1 This Cite as: 579 U. S. ____ (2016) 11 SOTOMAYOR, J., dissenting involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” Id., at 17, n. 13. The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014). This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this 12 UTAH v. STRIEFF SOTOMAYOR, J., dissenting manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015). By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. * * * I dissent.

After reading this dissent, my reaction was quick and clear– “I hear you!” And it was Sotomayor’s  skillful use of language  that brought me  beyond logic to  feel the innocent minority suspect’s pain.  That’s a great thing about words; they allow  us to understand things we have not  experienced. In her wonderful memoir “My Beloved World” Sotomayor tells us that she learned as a prosecutor that you  need more than logic to win.  You need emotion.   Now she has employed that same wisdom in writing a judicial opinion.

I am sure some readers may  agree that Sotomayor’s  prose is persuasive, but still  fear that her dissent is not sufficiently “judicial.”   Aren’t judges supposed to be above the fray?  While this is a reasonable objection  I think that it ignores some basic facts about the Supreme Court and the role of dissenting opinions. The Supreme Court is not a court in the traditional sense of one judge doing justice in one case. Rather it looks to the future and decides by majority vote.   Any decision can be overruled by a later Supreme Court majority.  A dissent allows a justice to show  why the present majority is wrong.   Sotomayor’s  audience here is not just her colleagues; in a democracy it also includes  her fellow citizens.  Is there any good reason why she  should not  use all the lawyer’s  traditional  skills  in making the most persuasive argument possible?


Guilty Til Proven Innocent– and Even After!

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BurLAWcracy / Repairing the System

Amy Albritton learned the hard way that the American criminal justice system assumes that those charged with crime are guilty, at least until proven innocent, and sometimes even after. This article from the New York Times Magazine sets out Amy’s experience in detail. Amy, the divorced mother of two children, had a good job as the manager of an apartment complex in Monroe, Louisiana when she left with a new boyfriend on a get-away to the bright lights of Houston.

The nightmare began when her car was pulled over for changing lanes without signaling. The officer saw a “white crumb” on the floor of the car which he thought looked like crack cocaine. So he performed an on-the-spot drug test by placing the crumb in a vial of chemicals and noting the color change. He quickly determined it was cocaine and announced to Albritton, “You’re busted.”

This portable field test drug kit is commonly used by police all over the United States. Unfortunately, it is highly unreliable, routinely churning out large numbers of false positives, a fact the many arresting officers don’t know. Estimates are as high as one in three. That’s why the roadside tests are not admissible as evidence at trial in Texas or most other jurisdictions.

But they are good enough to be accepted as the basis for a guilty plea, and 99.5% of drug possession convictions in Houston are the products of plea bargains. Amy at first insisted on her innocence, but her court-appointed lawyer showed little interest. He advised Amy that her best course of action was to plead guilty to felony possession. The upside was that she would only spend a couple of weeks in jail instead of the two years she would serve if she went to trial and was convicted of felony possession. Albritton took the deal, served her term, and went back to Louisiana with a felony conviction on her record.

When she returned home she was immediately fired from her job for missing work; this resulted in also losing her apartment and her furniture. Then her newly acquired criminal record prevented her from finding another job as an apartment manager so she settled for a job as a clerk in convenience store.

Most jurisdictions never check whether the drug test that justifies accepting a drug possession plea is accurate. But, to its credit, Houston sends the evidence to a forensic lab to check whether it is really an illegal drug. When the lab tested the “white crumb” in Amy case, they found it was not cocaine or any other illegal drug. Most likely it was food debris. Amy had been wrongfully convicted

The lab emailed the District Attorney’s Office its conclusion, but nobody at the District Attorney’s Office remembers reading the email. Only when a reporter writing a story about drug convictions in Texas found to be based on inaccurate drug tests inquired if there were any such cases in Houston did the District Attorney contact the lab. The lab told them that there were 212 cases where the lab found the sample not to be an illegal substance, including Amy Albritton’s.

So long after her conviction, the District Attorney’s Office sent Amy Albritton a form letter informing her that she had been convicted on false evidence. Unfortunately, Amy never received the letter because it was sent to the address on Amy’s driver’s license when arrested, the apartment complex that had evicted her after the conviction. It was one of the authors of the New York Times story who read Amy’s file and tracked her down to give her the good news. Her immediate response was “I knew it. I told them.”

Amy’s experience is not unique to Houston. Nationally the situation is no better; probably it is even worse. The authors of the NYT article estimate that at least 100,000 people a year plead guilty to drug charges that rely on the same type portable drug test kit used in Albritton’s case. If one third of these tests are “false positives,” the American criminal legal system is inflicting injustice on a mass scale.

I don’t think that it’s sufficient to just feel sorry for the injustice caused Amy. We owe it to Amy and ourselves to understand how so many apparently innocent errors led to this sad result. Let’s review the facts. The officer who conducted the roadside drug test seemed to think it was state of the art science. The court-appointed attorney thought it cancelled out the value of Amy’s declaration of innocence, and the judge who accepted her plea never mentioned that Amy could move for a continuance until the “white crumb” had been tested in a professional lab.

It gets even weirder. The police lab that discovered the test was inaccurate in Amy’s case sent over 200 emails to the District Attorney’s office notifying them of convictions that were based on false evidence, but never checked up on what action had been taken. In turn, the Houston District Attorney’s office apparently does not read its emails, at least those that inform them they have convicted an innocent person. When finally notified of the injustice visited on Amy, the District Attorney sent her a form letter to an address it knew might be obsolete. That letter makes no apology to Amy for the mistake in Amy’s case or mention any action it will take to see that injustice rectified. It’s Amy’s problem what to do.

And yet Houston appears one of the more progressive jurisdictions in the country in criminal justice matters. What conclusion should we draw from this strange tale of incompetence? Here is what I fear has happened. A silent bureaucratic revolution has transformed the American criminal justice system. The system used to be run on a “rule of law“ model; the primary tool was the jury trial and the reigning assumption was that those accused of crime were innocent until proven guilty. Remember the old maxim “better that ten guilty persons escape than one innocent suffer.”

But our national embrace of the “war on crime” has slowly transformed the system. The rule of law model still operates in some cases, like those of hedge fund tycoons and police officers charged with shooting minority suspects, but in the vast majority of cases it has been replaced by a robotic burLAWcracy more interested in generating large numbers of convictions than getting the right result in each case. Now the primary tool for resolving cases is the “voluntary” guilty plea aided by high bail fees and the threat of draconian sentences for those who dare demand a trial. Innocent defendants like Amy feel they cannot afford to ask for a trial. Cases like Amy’s are seen as acceptable “collateral damage” in the larger war effort.

And the innocent victims are the most vulnerable; in Houston almost 60% of the “bad” guilty pleas for drug offenses involved African American defendants, although African Americans only make up a little over 20% of the population. Amy is white, but her car had an out-of-state license plate. I have to wonder if Texas plates might have protected her from being pulled over for changing lanes without signaling, and the ordeal that followed.

You might ask what happened to the old “better that ten guilty persons escape” philosophy. I think it’s been the victim of death by willful ignorance. Houston authorities must have known of the weakness of the portable drug test kit; otherwise they wouldn’t have sent results to a professional lab to be checked for accuracy. But no one spoke of the test’s weaknesses, read unwelcome emails, or checked up on whether errors discovered had been remedied. The system just kept rolling out more guilty pleas.

Some people will call burLAWcracy a modern innovation in pragmatic problem-solving. But I like the ring of the phrase “with liberty and justice for all.” The criminal justice system should work at least as hard at protecting the innocent as it does punishing the guilty.

“Fight BurLAWcracy!”

Let me know what you think.

My Favorite Villain

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Book/film List / Legal Fictions

Better Call Saul’s Jimmy McGill (Bob Odenkirk) has a lot of qualities I admire. Jimmy is smart, funny, and irreverent, both a friend to the underdog, and a plague on the pompous. What’s not to like?

Still I’m starting to have my doubts about Jimmy. Somehow I feel that he is headed for a bad end. Actually, it’s more than a feeling. Since, like many of us, I have watched Breaking Bad, I know that Jimmy later morphs in Saul Goodman, Walter’s White’s outlaw lawyer who uses his creativity and charm to help Walt spread deadly metamfetamines all around the Southwest, violating both ethical canons and criminal laws in the process. It’s evidence of showrunner Vince Gilligan’s genius that Better Call Saul shows Jimmy as more than an apprentice felon.

Instead Gilligan portrays Jimmy as a tragic hero– a good man eventually done in by the very gifts that make him special. In Season 2 of the series the self-destructive side of Jimmy’s personality starts to appear. Take the “bonus” incident from Episode 7. Earlier Jimmy’s legal career had been revived by a generous offer of employment from a law firm whose senior partner Cliff Main (Ed Begley, Jr.) admired Jimmy’s creativity.

But even though the firm gives Jimmy a generous signing bonus, a fancy car, and an expensive apartment, things quickly go awry. Unhappy with a television advertisement Jimmy airs without notice to the partners, the firm puts Jimmy on probation and assigns a junior associate to “babysit” him. Incensed by this disrespect Jimmy decides to resign, but then realizes that if he quits, he must pay back the bonus.

Jimmy nimbly changes course; he campaigns to be fired. He starts by wearing outlandish outfits to work, attire he knows will offend the partners’ sense of propriety. Then he stops flushing the community toilets as part of an alleged campaign to save water, knowing full well that a public discussion about restroom etiquette will embarrass his uptight colleagues. Finally, he buys a second hand bagpipe and starts using the firm’s offices as a rehearsal hall during working hours. This ploy is especially clever since it allows him not only to disrupt business, but also to parody senior partner Main’s own inexpert attempts to play the guitar.

Jimmy wins. Main fires him and Jimmy keeps the bonus. But since he doesn’t really care about money, Jimmy’s only victory is proving that he is indeed smarter and hipper than his conventional colleagues. But even this is a hollow victory because the intended targets of his ridicule don’t even get the joke. They just think he’s a jerk.

Of course, the “bonus” incident is small potatoes, but soon Jimmy goes further, actually doctoring a legal document in order to give his friend/lover/ partner Kim Wexler (Rhea Seehorn) a leg up in a competition for a client. This is clearly unethical and maybe criminal as well. Jimmy claims he only wants to help Kim secure a client she deserves. While Jimmy was protective of Kim, he also had other scores to settle. The firm competing with Kim happens to be one Jimmy feels had mistreated him in the past. And the victim of Jimmy’s ruse was Jimmy’s older brother, a partner in the firm who failed to support Jimmy in his dispute with the firm. It was about more than an injustice to Kim, it was also payback for past wrongs and an opportunity for Jimmy to prove (to himself) he’s the smartest guy in the room. We start to see Saul Goodman appear on the horizon.

In many ways, Jimmy is a good example of what I call in the book Guile is Good a “trickster lawyer.” The idea is that many talented lawyers resemble the Trickster of myth and fable who uses creativity and guile to best adversaries. I intend the trickster as a positive image for lawyers. The Trickster Brer Rabbit uses wit to escape becoming Brer Fox’s dinner. A trickster lawyer like Gerry Spence showed a similar creativity in crafting his masterful final argument in the Karen Silkwood case.

But sometimes Tricksters are too smart for their own good. They become so obsessed with showing their cleverness that they take self-destructive actions. One example might be doctoring a document that could easily end with the loss of your license to practice law. The legal imagination is a wondrous thing, but you have to know when and toward what ends you want to use it. Our final sighting of Saul Goodman on Breaking Bad finds him working behind the counter at a fast food outlet in Omaha, Nebraska wondering if the next customer will be a DEA agent or a mafia hit man. This is where his cleverness has led Walter White’s brilliant consigliere. And that’s also where Jimmy will end up.

Well-crafted fictions like Beter Call Saul inform as they entertain. There is no scarcity of lawyers in real life who are so delighted with their own deft moves that they have no awareness of how their behavior affects others, or even themselves. And most of them don‘t even have Jimmy McGill’s sense of humor.

Constitutional Law in 500 Words or Less

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The Sjupremes

Everyone knows that constitutional law is very important, but most people don’t understand why. I think the recent Texas case on abortion teaches us why it is so important– and so controversial.

Texas passed a law setting out new requirements for abortion clinics. Now clinics would have to employ a doctor with admitting privileges at a local hospital and buy additional expensive medical equipment. Texas claimed it was trying to make abortions safer, but abortion providers responded that the new requirements would in fact force most clinics to close. The number of clinics throughout Texas would drop from over 40 to 8 or 9.

A clinic sued in federal court, claiming that the requirements violated their patients’ “liberty” to choose an abortion under the Due Process Clause of the Fourteenth Amendment. The Supreme Court decided the case by applying a rule distilled from the constitutional text and prior court decisions—Did the new Texas law place an “undue burden” on the patients’ right to choose an abortion?

In answering this question, the Court looked at the goals Texas claimed the law would achieve and how well it achieved them as well as the obstacles it placed in the way of women seeking an abortion and how serious these obstacles were. Balancing these considerations a five member majority decided that the law was a “substantial obstacle” to the women’s right to obtain an abortion which in turn resulted in an “undue burden” on the protected liberty. The Court held the Texas law was unconstitutional.

The decision is controversial because the key terms in the Court’s opinion (“undue burden” and “serious obstacle”) themselves do not appear in the constitution. These vague phrases are the creations of the justices who also decide what they mean in a particular case. The majority could have just as easily determined that only laws creating an “overwhelming burden” on the woman’s choice violate the constitution. If they had, Texas would have prevailed.

No one can deny that, for all practical purposes, the justices decide what the constitution means. We are told this is “undemocratic” and in a sense it is. But the Constitution was passed in part to protect certain rights, like individual liberty, from democratic abuse. So, since the constitution cannot interpret itself, the Founding Fathers came up with a neat compromise. Supreme Court justices do not stand for election like presidents and senators, but they are appointed by presidents and confirmed by senators who are elected.

That is also why the election in November is so important. Different president, different justices. Different justices, different constitutional law. (429 words)

Irreversible Errors

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Repairing the System / Repairing The Systen

Thomas Thompson was executed by lethal injection eighteen years ago this month at the age of 43. After you read my post from a year ago I think you will agree that there is an excellent chance that Thompson never committed the crime that triggered his death.

My brother, Quin Denvir, was Thompson’s lawyer. Shortly before his death, Quin wrote Governor Brown asking that he end executions in California. I know that, as he wrote that letter, Quin was thinking very much about what had happened to Tom Thompson.

Brown was against the death penalty as a young man. Maybe it’s time he acts to foreclose irreversible errors in the future. You can contact him to tell him that you hope he will commute the sentences of those now on death row.

“Gimme Shelter”

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Repairing the System

A couple of months ago I happened to be walking through San Francisco’s skid row and noticed a beautiful old church. I decided to look inside. At first my eyes were drawn towards the altar, but then I noticed someone sleeping in one of the pews. As my eyes became accustomed to the darkness, I realized that almost the whole church was filled with sleeping bodies.I asked myself “Why are all these people sleeping in a church at 11 o’clock in the morning?” Slowly the answer dawned on me—because the church is locked at night.

This month activists are mounting a campaign in San Francisco to make the homeless more “visible.” My experience in that church not only made the homeless more visible, but also less abstract. They are people who have nowhere to lie down at night and nowhere to hang out during the day.

Here is an article that shows how San Francisco could actually solve the problem.

The Heart as Well as the Head

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Guile is Good! -- the Book (excerpts) / Heroes

“The brain may devise laws for the blood, but a hot temper leaps o’er a cold decree.” (Merchant of Venice,Act I Scene ii, ll. 18-19)

Shakespeare here voices a view of the relationship between reason, passion, and law that still rules our discussions today. Law and reason are partners; passion is their enemy. This image supports the idea of the lawyer as a “cool” technician creating sophisticated legal schemes much like a computer engineer spins out a new algorithm.

But I wish to propose a different image of law, one in which reason and passion are partners in law’s creation. Passion energizes reason which in turn educates and refines passion’s hot temper. The operative word is “synergy,” not opposition. That’s why I believe that the practice of law is most fulfilling for lawyers who feel they are using their skills to accomplish goals their hearts approve. And perhaps that is also why we often hear that highly paid lawyers in elite firms are not as happy in their work as one would expect.

I think this story from Brown v. Board of Education is a good example of the reason-passion partnership in action. Brown is now universally acclaimed as one of our greatest legal and political accomplishments as a nation. But it was anything but a done deal when the Supreme Court heard arguments in the case. One major problem facing Thurgood Marshall and his colleagues as they prepared their briefs was how to answer a question the Court had specifically requested the parties to address: Had the Congress that passed the Fourteenth Amendment intended to ban segregated schools?

It was a difficult question for Marshall and his team to answer because there was some circumstantial evidence that seemed to support the conclusion that the framers had no such intention. John Bingham was the primary author of the text of the Fourteenth Amendment. He also was the author of the original text of the Civil Rights Act of 1866 which outlawed “discrimination” as well as other practices. But when opponents of the Civil Rights Act charged that its “discrimination” language would apply to segregated schools already in existence, Bingham agreed to remove the “discrimination” language from the Act to assure its passage. If Congress, including Bingham, did not intend the Civil Rights Act to apply to segregated schools, why would we think they intended the Fourteenth Amendment’s Equal Protection clause to do so?

At first Marshall and his legal team could not think of a persuasive answer to that crucial question. But they refused to concede it. Marshall insisted that his colleagues find an answer that would reconcile an expansive reading of the Equal Protection Clause, which was necessary for victory in Brown, with Bingham’s concession that segregated schools did not violate the Civil Rights Act passed by the same Congress.

Here’s how one participant said the team saw their task:
“It was not that we were formulating lies; there was nothing as crude or naïve as that. But we were using facts, emphasizing facts, bearing down on facts in a way to do what Marshall said we had to do.” Suddenly, the answer appeared. (“It was like lightning breaking through.”) Bingham agreed to remove the “discrimination” language from the Civil Rights Act because the Fourteenth Amendment’s Equal Protection Clause made it unnecessary. One purpose of the Fourteenth Amendment was to authorize the Civil Rights Act, but another was to go beyond it to ban all state deprivations of equal protection.

Now Bingham’s concession did not undermine a broad reading of the Equal Protection Clause; it supported it. Upon reflection the team came to believe that this argument not only fit their purposes, but was also true.

Passion did not “leap o’er” reason in the Brown case, it directed reason towards a legal conclusion that that satisfied the heart as well as the head.

Note: I discuss Thurgood Marshall and his legal team’s performance in the Brown case at greater length in the book Guile is Good.

Woman Bites Dog!

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You know the well-worn story of the would-be reformer who comes to office only to discover that “real” reform is “unattainable”; the pragmatic decision in the “world of the possible” is learn to accept a half loaf or less. But here’s a new story. Kara Stein, a new appointee to the Securities and Exchange Commission (SEC) either never received the “world of the possible” memo, or has decided to disregard it.

This editorial from the NYT tells how three big banks recently pleaded guilty to felony charges arising out of their attempts to rig the world currency markets, but in reality came out unscathed because the fines imposed were insignificant to these titans of finance compared to the illegal profits they gleaned from their violation of the law. To make things worse, the SEC refused to impose any meaningful administrative disciplinary punishment. The only encouraging sign was that one commissioner wrote a “scathing” dissent.

That commissioner was Kara Stein. This article from Bloomberg gives us some more information about Commissioner Stein. It turns out that she helped write the Dodd-Frank legislation that was designed to prevent large corporations from engaging in anti-social activities like rigging currency markets. When “moderates” on the commission told Stein that the Dodd-Frank legislation did not give the SEC authority to rein in banks in cases like these, she politely told them that was not true. The SEC’s problem was not a lack of legal authority, but a weakness of political will.

Kara Stein is the type reformer we need today. She knows her stuff and is faithful to her principles. And to top it off, she’s not only a lawyer, but to my delight also a former law professor, a member the law professoriate, that under-utilized army of potential law reformers. Let’s hope that her scathing dissent is the first step on the road to future victories in the war to rein in corporate power.