Supreme Court Justice Doesn't Think Innocence Matters?

Being a former staff attorney and current board member for an innocence project, I generally do not blog on innocence-related matters (some would say I'm a little too close to the issue and they would be absolutely right). That being said, I'm going to break with my usual policy. I read something so appalling from one of our Supreme Court justices that it earned a post.

Yesterday, the United States Supreme Court took the highly unusual step of entertaining an original writ of habeas corpus in the Troy Anthony Davis case, ordering a federal district court in Georgia to conduct a hearing and make findings to determine if Mr. Davis could establish his innocence of the crime for which he is sentenced to die. In a deeply disturbing dissent from the majority's decision, Justice Scalia writes:

"This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent . . . If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of 'actual innocence,' it should set this case on our own docket so that we can (if necessary) resolve that question."

I'm going to go out on a limb here - if it violates the Constitution to execute mentally retarded people and juveniles, I'm going to guess that it would also offend constitutional principles of due process to execute an innocent person. Why does the Supreme Court continue to avoid holding what is obvious to any person of decency and morality - that the state-sponsored killing of an innocent person violates the law? It's an idea so simple a five-year-old could grasp it, but for some reason it eludes the highest court in our nation. The idea that the truth doesn't matter as long as we have complied with the law is offensive, and quite frankly, dumb. Too dumb a position for a justice on the nation's highest court to take.

While I love his interpretation of the Sixth Amendment confrontation right, Justice Scalia draws a big boo-hiss for making a comment that I would expect out of Presiding Judge Sharon Keller. Keller, currently on trial for closing the clerk's office at 5:00 p.m. despite knowledge of a last minute death penalty appeal, once stated in an interview to Frontline, "We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important." Seriously, where do we find these people and why are they on any bench, let alone a high court? Further proof that the only thing worse than appointed judges is elected judges.

The Right to Cross Examine

In an interesting bit posted by the Washington Post, a Virgina judge threw out a breathalyzer certificate because prosecutors failed to make the person who performed the breath test available for cross-examination. The Virginia court relied primarily on the Supreme Court's most recent confrontation clause decision in Melendez-Diaz v. Massachusetts, which I gleefully posted on last month.

Of particular humor in the article was the comment, "But the prospect of bringing lab technicians and breathalyzer operators to court in every case has sent shock waves through prosecutors' offices across the country." My, my, my - isn't that a first-class example of the malaise of indolence gripping the government? The annoyance at actually being forced to call witnesses to prove their case before convicting citizens. Never mind that the framers (who had quite a few other issues to consider at the time) considered the Confrontation right so important it made the top ten list in the Constitution. This requirement has been in print for over 200 years and the new enforcement of it sends "shock waves." Amazing.

Despite the whines and cries to the contrary (and I assure you, this is whine in its purest sense), this is not going to "paralyze" the criminal justice system or result in mass loads of criminals waltzing out of prison. This kind of predictable scare tactic and misinformation usually emerges when the state doesn't get its way (by the way, come up with some new ones, really). Unfortunately, the claims actually have zero empirical evidence to support them. The vast majority of cases are still going to plead out, as many defendants are not going to risk going to trial on the gamble that a witness won't be available. And if it does end up clogging the system, perhaps the place to start is by re-examining our draconian and completely ineffectual drug laws rather than eviserating citizens' constitutional rights. In any event, it appears that the days of trial by affidavit are over.

Best "Boston Legal" Quote Ever:

Alan Shore: "My problem is the judge. His tiny brain has been calcified by intolerance."

Harmful Error on Harmless Error!

In a state where some appellate courts go out of their way to find trial errors harmless, the Amarillo appellate court deserves a nod for their recent opinion in Mason v. State. The case involved the Potter County District Attorney allowing law enforcement to question witnesses in front of the grand jury, a clear violation of the grand jury statutes. The appellate court's opinion, to put it mildly, blasted the District Attorney for its blasé attitude towards following the law when indicting its citizens.

The opinion begins with this quote: “The greatest dangers in liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” - United States Supreme Court Justice Louis D. Brandeis. In other words, beware of well-meaning but dense people. As I read this, a few people come to mind immediately.

Speaking of dense, here's the State's arguments of why what they did was A-OK:

(1) State: "We misunderstood what the law meant." Appellate court: "Um, no. These statutes have been on the books since 1995 and 1989, respectively. And they were put there specifically to curb abuses in the grand jury process. Try again."

(2) State: "Who cares really? If we break these laws, it will always be a technicial violation that appellate courts will deem harmless error." Appellate court: "Wrong again - we're finding it is harmful error. Because otherwise you'll do this again and again with impunity."

They actually said it a little more firmly than that: "We cannot countenance the State’s purposeful violation of the law . . . If the State is able to avoid a just result in this case, its prosecutors will be able to violate these statutes with impunity and visit an injustice upon every citizen who comes under scrutiny by a Potter County Grand Jury."

Wow. Apparently some appellate judges take following the law pretty seriously. And think the State should too. Here's my favorite quote: "This is particularly unfortunate because the State’s error, as well as this possible cost, could have been avoided if the State had simply obeyed the law. Something the State requires of its citizens on a daily basis."

An appellate court upholding the law and demanding that prosecutors follow it as well? How refreshing. And subject to review by the Court of Criminal Appeals. This decision was about ensuring the integrity of our system - let's hope they let it stand.

My Legal Hero Wins Another One

Congratulations are in order (again!) for attorney Jeff Fisher, who won yet another case in the Supreme Court of the United States. The high court handed down its opinion today in Melendez-Diaz v. Massachusetts, ruling that lab reports are testimonial under the Confrontation Clause. Despite the fact that the decision was pretty clear under the Court's holdings in Crawford and Davis, the Court took over seven months to issue a decision, waiting until the conclusion of this term.

Which leaves one to ponder - what the heck took so long to issue this opinion? After the Crawford decision, which basically held that the Sixth Amendment actually means what it says (you have the right to be confronted with the witnesses against you), the question of whether you can have trial by affidavit in a drug case is a no-brainer. I suspect the practical effect of the decision was part of the reason it took so long to utter it - this means the State will actually have to call witnesses and prove its case. Shocking. Horrendous. And constitutionally required (pesky constitution!).

Jeff Fisher is one of my legal heroes. By age 33 he had argued and won two of the most groundbreaking criminal procedure cases to come along in a while, Crawford and Blakely. I met him at a conference once. I got to shake his hand. I got to tell him he was my legal hero. And I got to hear him laugh at me (not in a mean way - in addition to being an amazing lawyer he's also a nice guy). Hats off to him for continuing to shape confrontation law in a way that remains true to the spirit and purpose of the Sixth Amendment.

The Business Side of Law

I detest writing this post because I was trained by a generation of lawyers who said law is a profession, not a business. That being said, every lawyer must learn how to set and collect fees or go the way of the academic. As a younger lawyer (and probably older lawyer too), this can be a difficult balance to strike. You want to help people who need help; you also want to keep the lights on. I take a certain number of pro bono cases each year, and have enjoyed them immensely (one guy hugged me and offered to come change a flat tire for me whenever I get one). The downside is that people you help for free like to refer other people who would like free services. Oops.

My recent challenges in this arena have resulted in what I will call the top 3 biggest misconceptions about lawyers and money. Unfortunately, I hear them frequently enough from clients that I know (and dread) that it's really happening:

(1) Myth: "So and so lawyer said if I paid X amount of dollars, they would get the case dismissed." FACT: WOW. I'm pretty sure that guaranteeing a client an outcome is a violation of ethics rules. How the case ultimately works out is based on the facts, the lawyer's skill, and the prosecutor with whom you're dealing. Any lawyer who guarantees an outcome for some outrageous fee has just guaranteed you one thing - you shouldn't trust them.

(2) Myth: "Can't I just pay some additional money and you talk to the judge/prosecutor and make this go away?" FACT: File this one under "great ideas that are actually a felony." Buying off judges and prosecutors may make a good Grisham novel; unfortunately, it rarely works in the real world and will put you (and your lawyer) in a world of hurt. Again - UNETHICAL, illegal, and not the strategy you want to take. Avoid the lawyer who advises you that this is a sensible course of action - a fifth grader could tell you that it's not.

(3) Myth: "If I pay you more money, can you get a better offer?" FACT: Again - Wow. That's so offensive. I'm working hard on your case for the fee agreement we discussed. If the offer we're getting is not all that great, I'm going to guess it has something to do with the facts or the 5 prior convictions the prosecutor is taking into account. When it comes to getting the best outcome for a client, most of the lawyers I know are motivated by a non-monetary concern for their client's welfare. If your lawyer needs that additional $500 to get motivated, time to start looking for someone who took their oath seriously.

I don't mean to sound Pollyanna or naive about this, nor to gripe endlessly about it. There is a business side to the practice of law - but for the lawyer you want handling your case, it shouldn't be all about business. 'Nuff said.

Confession - Good for the Soul . . .

But really, really bad for the case. I am always astounded at people's willingness to tell others - friends, family, THE POLICE - that they have committed a crime. Really, there are some things that shouldn't be shared, and if they are, can and will be used against you in court.

I've never had a deep, dark secret, so maybe therein lies my confusion about why on earth you would choose to disclose something that could land your ass in prison. I imagine that maybe it's like a pressing weight on your chest, an itch that can never be satisfied - maybe it tugs and tugs at you and the only relief is: (Ah!) to tell someone.

Here's a few reasons why that's maybe not such a good idea:

(1) If it involves harm to a child, whoever you tell it to probably has a statutory duty to report it. This includes, but is not limited to: counselors, clergy, and social workers. Check out Texas Family Code Section 261.101 which requires just about anyone (including a lawyer), to report. Interestingly, the drafters of the statute did not address the little issue of attorney-client privilege and the glaring conflict between this provision and a lawyer's duty of representation. Yikes.

(2) Whatever relief or absolution you get from telling will be pale in comparison to the prison sentence you will have just earned for yourself. Confessions (even false ones) are powerful evidence. With a few rare exceptions for legal reasons, they will likely be admissible against you at trial, and they will help ensure your speedy conviction.

(3) "But they didn't read me my rights!" This is one of my favorites. Somehow mainstream TV shows have convinced the general public that if the police don't read you your "rights," the whole case just goes away. WRONG. Miranda warnings only apply to people in custody: a.k.a. you are under arrest or the functional equivalent. If you voluntarily go down to the police station and give a statement, it's coming into evidence - warnings or not.

(4) "But the police just want to hear my side of the story." A close second on my favorites list. That may be entirely true, but please remember when you cheerfully head down to your local police station to give your side of the story, you will likely not be meeting with Barney Fife who wants to understand your perspective on the matter, but rather a skilled interrogator trained to gain admissions from you. Even if you have a completely innocent explanation, odds are they're not going to buy it. You are the target of the investigation - and their job is to get the evidence to prove it. Do the math, folks.

(5) As in many areas of performance, most people think they are better liars than they actually are. If you have committed a crime and think you can convince the police otherwise with some half-baked version of what happened, you are deluding yourself (except for the true sociopath who can lie without batting an eye).

The moral of the story is: even if you are as innocent as the pure driven snow, our system is not necessarily set up to recognize that (if you don't believe me, google "exoneration" and see how many people have fallen into this trap). Recognize that and contact a friendly criminal attorney near you before talking to anyone.

Austin DWI - Refusing a Breath Test

Forget about the 180 day suspension of your license for refusing a breath test. In the ever-increasing penalties for DWI, it's time to add a new one for refusing a breath test: a forced draw of your blood.

The Austin Police Department, along with a number of other metropolitan areas, has started no refusal weekends on major holiday weekends, the most recent being over New Year's. Exercise your right to refuse a blood test? Fine. They'll get a warrant and draw your blood.

Here's why we might want to consider being offended by this practice:

Drawing blood against a person's will is a major invasion - not just of privacy, but of our basic bodily integrity. Normally, there would have to be some compelling government interest to justify an invasion of that magnitude.

And . . . The Legislature (gasp!) apparently thought so too. In fact, they went to the trouble of listing the situations where an officer can take a specimen without consent. And they're pretty serious ones: where someone has died or will die, or where there has been serious bodily injury. They didn't authorize it in your ordinary misdemeanor DWI arrest. And that makes sense. Situations where someone has been seriously hurt justify a procedure that invasive. Your ordinary misdemeanor DWI arrests do not.

Yes, we want to stop the harm caused by drunk driving. But where is the line? How many times have we been told that we need to give up rights in the name of safety? Are we really willing to live in a police state in exchange for a questionable sense of security? For those out there who say yes, or who think this is ok because it only happens to "criminals," consider this: the next person to get pulled over just may be you.

Death Row Inmate Plucks Out Eyeball

This is probably one of the more disturbing stories to come across the wires lately. http://www.keyetv.com/content/news/topnews/story/Death-row-inmate-pulls-out-eye-eats-it/d2WNKvkIXE6BfA5XHm_nRw.cspx. Apparently a inmate on death row pulled out his own eyeball . . . and ate it.

I'll save the lengthy discussion on the propriety of killing people who are obviously this mentally ill. I will say this: if you needed any further proof that mental illness is a major contributing factor to people committing violent crimes, here it is. Unfortunately, this is not the first time I've heard of this happening - it's happened in our local jail as well.

Eek.

Child abuse and the attorney-client privilege

So, tonight at a meeting of the Robert Calvert Inn of Court , a group of lawyers who gather to discuss ethics and civility in the profession, the topic of conversation centered on the boundaries of the attorney-client privilege. And for the first time, I felt compelled to speak up and join the discussion.

The topic that caught my interest was the discussion of Texas Family Code Section 261.101 , which requires any person (including an attorney), who receives information about child neglect or abuse to make a report to the appropriate state agency. The requirement is squarely at odds with the attorney-client privilege, and makes it a crime not to report the information.

This rule has long bothered me, and I emphatically stated tonight that as to events that have already happened, I would not comply with it. It effectively removes the attorney-client privilege for a particular class of people who have been charged or accused of offenses involving children. It also makes candid communication with a potential client impossible. One lawyer tonight suggested that you advise the client at the outset that you may have to report certain things that they tell you to the authorities. I can't imagine a quicker way to shut down communication. In that regard, the rule is actually counter-productive. If you were to tell someone that, they would withhold precisely the critical information sought by the law, which does nothing to protect the child at issue from possible future harm or enable you to represent them effectively. Another person suggested that you inform the court of the information and let them decide what to do - in which case you have still violated the attorney-client privilege.

Maybe it was the two Shiner Bocks I had already had, but I felt the need to bring these points up to the group at large. Surprisingly, like the nerdy kid who is always raising his hand in class with a good answer, the moderator of the discussion asked me to repeat what I said in my "courtroom voice" so others could hear. Oh, the irony. Only in a room full of lawyers could one receive recognition for pointing out a legal justification not to report child abuse. Anywhere else I would probably be greeted with gasps of dismay and disapproving shakes of the head (or maybe tar and feathers). But such is the gift of lawyers - to be able to discuss something like that without the vagaries of emotion getting involved. For what it was worth, I did my best courtroom voice (I don't think I have one - the voice I have is the one I talk with) and made my stand. I pray I'm never put in the position of violating this law, but if I am, I'm glad to know it's only a Class B Misdeameanor - six months in jail is about all I can do on principle.

Results for the July 2008 Texas Bar Exam Posted

Congrats to the new army of lawyers who passed the July 2008 exam . . . as a former comrade, I know well the anxiety and fear that was just relieved today!! But as Above the Law notes, this is a invitation to be careful what you wish for - if you have any doubts, check my post on I Contemplate a Nervous Breakdown . In other words, now begins the hard stuff - that you may truly and impartially administer justice. But for tonight, we celebrate!!

I Contemplate a Nervous Breakdown

So, here's the thing they don't tell you when you're applying for law school. The practice of law is stressful with a capital "S." As a mere yute (yes, "My Cousin Vinny" references will be used freely in this blog), the practice of law holds promise - a power to right wrongs. There's a wonderful phrase etched into the southern wall of the UT Law School that used to stop me in my tracks: "That they may truly and impartially administer justice." I filled out the application for law school with all of the fresh optimism of youth, having no idea what awaited me around the bend.

Today, a convergence of events had me, quite literally, ready to tear my hair out. As I was driving to meet a friend for lunch, I passed a bumper sticker that said, "If God doesn't give us more than we can handle, then why do people have nervous breakdowns?" A solid point, and one I was ready to acknowledge might be descriptive of my current situation.

Forget my last pollyanna post. The responsibility of having someone's future in your hands at my age is no small thing. It keeps you up a night, makes you sick to your stomach when you least expect it, and invades every area of your life when you're not at work. In retrospect, I think I would have liked to be a poet or a farmer. They get to sleep at night (well, maybe not the tortured poet, but I would have been the contemplative kind). And for folks who think their lawyer doesn't care - just because you can't see it (and I have a professional responsibility not to be freaking out with you), doesn't mean I'm not worrying myself into knots on your behalf.

Which brings me to the concept of professional distance - the strange euphemism that you can somehow shut off your human-ness and be a detached part of what's going on. They actually teach courses in this stuff in other professions, such as medicine, and they probably should start doing it in law school as well. It's a valuable skill that lets you do your job and respond to the situation at hand without disintegrating into a useless pile of jello.

As wracked as I am though, I don't want to be detached. My concern for my clients keeps me working well into the late hours of the night, determined to find the argument or case law that will help make their case. The moment I become apathetic is the moment I need to find another profession. While it may eventually qualify me for prescription meds or a straight-jacket, my concern might just be the difference between a conviction and a two-word verdict. Or so I hope.

Exciting Monday Morning News

Some people anxiously await the start of their favorite television series. Others can't wait for the beginning of a sports season - baseball, football, you name it. I don't really follow either. Here's what made my Monday morning: the realization that the 2007 Supreme Court audio has been released. I've been checking on and off for the last month, knowing it was coming, and today my diligence paid off. While I'm partial to Jeff Fisher arguments (and am listening to Kennedy v. Louisiana as I type), the 2007 term had a number of interesting arguments on criminal procedural issues. The 2008 term looks to be busy as well, with the Court taking on a number of Fourth Amendment cases and a further examination of the scope of the confrontation right in Melendez-Diaz v. Massachusetts. Like all sports and TV series fans, today's rush of contentment and excitement will inevitably fade into a dry spell in the time following these arguments but preceding next year's release. In the meantime, I'm savoring each one. :)