A Round Tuit (34)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Each week (well, most weeks), the bulk of the posts gathered in these Round Tuits tend to fall into a couple of broad categories. Sometimes it's a major case decided; sometimes it's a major event; sometimes the stars (of the blawgosphere at least) just happen to align and a particular subject inspires many. It doesn't seem to have happened this week, at least as far as I can tell. Perhaps I've been too immersed in the World Cup to develop a sense of the broader world, but this week's Round Tuit is much more of a box of chocolates than is usually the case.

There were several good posts — as there usually are — on criminal defense-related topics. Walter Reaves highlighted the case of Stephen Meyers, a man who ten years ago had been identified by DNA testing as "a match" for an unknown suspect. Now ten years on, improvements in DNA testing revealed that despite the extraordinarily long odds against that being a false match, it was. Reaves wrote:

The case has a lot to teach us. One is that the estimates provided are just that; they are nothing but guesses, which have no place in a courtroom. The other lesson is that you cannot simply rely on older tests - even those that are incriminating. This was not a case where there were errors in testing. Instead, it was nothing more than new and more comprehensive test.

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What bothers me about this case is how the new testing came about - it was initiated by the DA. The defense lawyer apparently made no effort to re-test the evidence prior to trial. Instead, it appears they were prepared to attack the old evidence. Had it not been for the prosecutor, there is a good chance the defendant would have been convicted, and in prison as I'm writing this.

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I realize that this is not always a cut and dried issue. If the client is guilty, a retest will only provide stronger evidence of guilt. How do you know when to retest? In the end, you have to rely on the client, and your own beliefs. If you believe they are guilty, you must make them aware of the risks. If they are consistently maintaining innocence though, there is no excuse to not do everything possible to prove that, which would involve retesting.

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Lawyers must be advocates, which means challenging all the evidence. Scientific evidence has received a free ride too long. It is up to us to challenge it. Mistakes are made, and evidence is never as conclusive as the scientists tend to believe. Don't get in the situation where you could have proved your client's innocence, and didn't do so.

Jeff Gamso explained that while the odds against DNA false positives are long — just 1 in 6.17 quadrillion, according to some — these are also misleading, based as they are on portions of DNA sequences, assumptions about the lack of sample contamination, and subjective interpretations by analysts. Those long odds shouldn't deter defense counsel from seeking testing where it might exonerate their clients:

While it's true that there aren't anywhere near 6.17 quadrillion people in the world, that doesn't mean that there can't be another person whose DNA profile is the same. Really unlikely? Sure. Impossible? No. Goes back to the idea that the number comes from a profile.

....

Of course, DNA doesn't just convict. It also exonerates. There have now been over 250 people in this country freed after DNA testing revealed that they didn't commit the offenses of which they were convicted. The Supreme Court, though, says that there's no constitutional right to post-conviction DNA testing. And prosecutors routinely resist the effort.

He continued, speaking about the Meyers case discussed by Walter Reaves:

It's a fluke, an oddity, that the prosecutors decided to retest. Reaves sees in this story not just a prosecutor who did the right thing, but a lesson for defense lawyers. When your client insists on his innocence, and after you've had a heart-to-heart about what testing might prove still wants it done, you should have it done.

Don't trust the prosecutor to do your homework for you - or, sadly, to give you the good news if she does. Maybe. But maybe not. Regardless, defense counsel have a duty to investigate, not merely to trust that the prosecutor got it right.

Though he resisted tossing-out a Han Soloesque "never tell me the odds", Scott Greenfield agreed with Gamso that in DNA testing, defense lawyers have a duty to fight for their clients despite the odds against them:

Whether the chances of a DNA mismatch are 6.17 quadrillion to 1 or less, the protestations of our clients count. Sure, there's a good chance that their demands will sink them, although it's never clear that they can be sunk more than they already are. It's just that we're never an arm of the prosecutor or the court, even if that means we have to turn down the opportunity to be one of the gang at court.

Sure, the odds are against us. Very much so. Chances are that the retest will be a waste of money and just more evidence to nail the lid even tighter on our client. But when the client insists he's not the guy. When the client squeezes your arm and says, "please, you gotta do this," there's no choice in the matter. In all likelihood, the test will reaffirm the defendant's guilt. But what if your client is Stephen Myers? You can't take that chance, no matter how easy it is to do nothing.

Jamison Koehler offered a bit of insight into the dynamics of criminal defense practice when he described his thoughts while watching video of a client's interrogation and his struggle to understand that experience:

After 40 minutes or so, the detective wraps up the interview. Perhaps she has concluded that she won’t be able to shake him. She explains the procedure – how he will be kept overnight and brought before a judge the next morning – and then she offers him a glass of water and an opportunity to visit the men’s room. She is pleasant, respectful, and reassuring.

She leaves. The camera continues to record. My client sits motionless at the table, his head down and his hands on the table, and I think how quiet it is in this room that holds us both, my client in front of the camera and me looking on somewhere from beyond. I think of the prosecutor, sitting at his computer, studying this same tape for admissions, signs of weakness, and suddenly there are three of us sitting in this room in silence.

My client shuffles his feet and touches his forehead with one hand, and I wonder what is going through his mind. It occurs to me that, during these moments, during the time before a police officer comes into the room to handcuff my client and lead him back to the holding cell, realization must setting in. My client must understand how an astronaut feels, untethered in space and turning like a planet.

Mirriam Seddiq discussed Koehler's post and why his experience — being able to watch a video of a client's statement — is somewhat rare:

So, why don't cops videotape statements? Well, as we know from Jamison's post, sometimes they do. I tried a homicide case where there was a six hour long statement that was shown to the jury. But, generally, its the cops word against our client's and we know how that usually turns out.

The current state of the world shows us exactly why police officers don't video tape their interactions with the public, as a general rule.

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[T]he real outcome of videotaping the police would be to drastically curtail abuses of power, since I don't have a lot of faith in my fellow man (or woman) anymore and really don't think that people will have sympathy with the person in the interrogation room, because most folks don't think they could ever be the person in that room. Cops may legally be allowed to lie, but maybe they'd feel shittier watching it play out in front of a jury. Cops may feel that they've served the cause of the citizenry in getting a confession even if they had to threaten to arrest someone's wife or sister, but may not do it if they know they'll get caught.

Scott Greenfield commended Koehler's efforts to understand his client's experience, something some other defense attorneys do not attempt to do:

These are the moments that we can't truly share with our clients.

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There is a laundry list of experiences we will never share with defendants. When asked what it's like in prison, we can only repeat things told us by others. We've never been prisoners. We do share the feeling of waiting for the jury forewoman to speak after the jury has shuffled into the courtroom following their fateful note, "we have a verdict." But we don't share it the same way. Whether the forewoman utters one word or two, we still get to go home to our family that night. No matter how depressed and angry we may feel, it can't compare to the feelings of the person who will suffer the consequences for years.

There's a terrible tendency by lawyers to believe that they have a grasp of what's going through a client's head as they endure the rigors of the process. Not just understand, but know better. Certainly, it's the lawyer's job to tell them what they are looking at, how best to deal with it, what things they shouldn't do. But advising isn't the same as understanding.

There tends to be a monumental disconnect between lawyer and client at these stages. We confuse our knowledge of the process with the actual experience.

In another post, Greenfield noted that these limitations in the attorney-client relationship are compounded by the justice system's fundamental misperception of that relationship:

One of the great legal fictions is that a criminal defense lawyer is the "agent" of the defendant. As pretty much any defendant will say, while he depends on his lawyer to do his bidding to the limited extent he both needs the lawyer and has faith in the lawyer's judgment and skills, the defendant is nonetheless at perpetual odds with his lawyer. Like it or not, the lawyer is, at the end of the day, nothing more than a hired gun. Often, he's hired by someone else, leaving the defendant's faith on shaky ground.

Yet the law provides, for sound policy reasons, a liability to be suffered by a defendant for a lawyer's missteps. Should the lawyer fail to object to something at trial, the defendant suffers. If the lawyer's argument is unpersuasive, the defendant suffers. Should the lawyer fail to file a paper on time, the defendant suffers. This is true for the most trivial infraction as well as the most serious.

Recognizing that the quality of lawyering is extraneous to the issue of guilt, the law allows for some safety valves. There's appeal. There are post-trial motions. And there is the ultimate safety valve, the Great Writ, the Writ of Habeas Corpus. It was with us when this nation began, for those of originalist bent, and remained with us since. It was the last ditch effort to come before a court and say, something went wrong.

Reflecting the sense that criminals had it too easy and were taking advantage of the Great Writ, Congress decided to mess with it by passing the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) after the Oklahoma City bombing. Where before a defendant could invoke the Great Writ anytime he wanted, and as many times as needed, Congress decided it had enough of criminal-coddling and imposed a strict limit on the Great Writ, that it had to be brought within one year of the conclusion of direct proceedings.

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The writ remained essentially unmolested, aside from its disgraceful suspension during World War II for fear of Japanese saboteurs, until 1996, when Congress fixed a problem that didn't exist. Since then, we've endured 9/11 and Gitmo detainees. Our Attorney General at the time, Alberto Gonzalez, explained why the Great Writ, "one of our most cherished rights," is not guaranteed by the Constitution. He did not explain how that was possible.

Jeff Gamso discussed how a recent case, Holland v. Florida illustrates the disconnect the AEDPA has created between the efficient administration of justice and actual justice:

[L]awyers blow that 1-year deadline with remarkable frequency.

You'd think basic fairness would kick in to save the client. Sometimes it does, in the form of something lawyers call "equitable tolling." Roughly, the idea is that when the habeas deadline rule would be too harsh, fairness should toll the habeas clock. The problem is that AEDPA doesn't say there is such a thing as equitable tolling.

Gamso explained the differing approaches taken by the Holland dissenters, led by Justice Scalia, and the majority:

If the lawyer screws up, it's treated as the client screwing up, and if it's ever possible to get around that, there have to be two things.

1. The client must not be confused or clueless, unable to understand. Rather, the client must be diligent and energetic, actively trying to get the lawyer to do her job properly.
2. The lawyer's failure can't be the lawyer's fault. There must be an intervening "extraordinary circumstance" that prevented the lawyer from acting properly....

....

The Court accepted all of that.... And it's just like Scalia said it is, only different.

The client must be "diligent" in asserting her rights. And if the lawyer is just negligent, it's OK to kill the client. Maybe it's OK if the lawyer is grossly negligent. Maybe it's OK if the lawyer is really, seriously, grossly negligent. With cooties. But the court of appeals in this case demanded too much. Yes, it said, there's equitable tolling. But the "extraordinary circumstance" can't be negligence.

As is his wont, Norm Pattis was unreserved in his scorn for the difficulty the Court had in sparing Holland's life (for the moment):

A filing deadline for post-conviction relief loomed. The client pleaded with the lawyer to file something on time. The lawyer ignored the client. The deadline passed. By application of the Antiterrorism and Effective Death Penalty Act of 1996, the client was supposed simply to die at this point. His agent, the lawyer, had erred after all.

Of course such a result is unconscionable. A lawyer's mistake costing a client his life? Analogies to medicine break down here. It is not simply the case that some clients, like some patients, die regardless of what a doctor does. Whereas medical errors often cannot be corrected, legal errors can. When a lawyer fails to meet something as basic as a filing deadline it simply makes no sense to hold the client accountable for the error. I'd like to think that even a moral imbecile understands that.

It took a majority of the Supreme Court 22 pages to correct this obvious injustice. There was a separate seven page concurring opinion by Justice Alito. And let's not forget the 15-page dissent by two justices. For more than 40 pages the Supreme Court fussed, fumed and fretted about whether it was all right to let a man die because a lawyer missed a filing deadline.

These next several posts deal with intellectual property topics, but the slender thread connecting them is that all relate to subjects which have occupied me at this blog or in comments at others' in months or years past.

As one can tell from the links at the top of the sidebar, I've been concerned about both the content of the proposed Anti-Counterfeiting Trade Agreement (ACTA) and the abnormal secrecy and rhetoric surrounding its drafting. We had a brief glimpse at a draft of the ACTA, first when it was leaked to the internet and later when the drafters deigned to share that draft with us, subsequent discussions have again been held under a cloak of secrecy. I won't rehash the particulars of the ACTA here; suffice to say, the scope of this agreement is breathtaking and if you're not yet familiar with it, you should become familiar very soon.

Though the ACTA's terms have not become either more palatable or more public this week, the act faced a significant challenge from India, which have indicated recently their opposition to the proposal and the process; they have now made their opposition official, as Nate Anderson reported:

The new standards envisioned by ACTA "could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers," said an Indian representative at the World Trade Organization. "They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals."

....

India also expressed irritation over the fact that "plurilateral processes like ACTA completely bypass the existing multilateral processes" at the WTO and elsewhere.

In the end, ACTA looks like overreach. "The released ACTA text shows a general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure," said India. "Politicians, civil society and IP experts in ACTA members countries, have expressed concern regarding the substance and modus operandi of ACTA negotiations... Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort."

Michael Geist has been the most authoritative voice online concerning the development and impact of the ACTA; this week, he explained the meaning of India's opposition:

The India position, which may well reflect the views of other ACTA-excluded countries, demonstrates that ACTA is emerging as a contentious political issue that extends well beyond civil society and business groups concerned with the agreement. Countries excluded from the ACTA process have to come to recognize the serious threat it represents both substantively as well as for the future of multilateral organizations.

This growing concern from countries such as India represents a major new pressure point on the ACTA discussions. The notion that ACTA countries could negotiate an agreement that would ultimately be used to pressure non-ACTA countries to conform without attracting opposition from those very countries was always unrealistic. If the April ACTA round of talks was marked by the mounting pressure for greater transparency, the late June ACTA round of talks will undoubtedly have developing country opposition as its core concern.

Mike Masnick reports the happy news that the judge in SCO v. Novell has ruled in favor of Novell, seemingly ending this long-running drama, which has at times clouded the development and spread of the Linux operating system. Masnick wrote:

As you may recall, many years back SCO claimed to own the copyrights on Unix, and sued IBM and some other Linux users for infringing on their copyrights -- though, it never actually showed any evidence to back that up. Soon after all this started, Novell came along and noted that, as far as it knew, Novell still held the copyrights, not SCO. So the legal battle shifted to who actually held the copyrights, and SCO has repeatedly come out with the short end of the stick. First a judge ruled that Novell held the copyrights. After an appeals court said that a jury should decide that issue, rather than the judge, the case went back to a jury who also found that Novell, not SCO, held the copyrights. SCO then told the judge that the jury didn't really mean what it said in plain language, and said that the judge should order Novell to hand over the copyrights anyway.

That's not happening. Once again, the judge has ruled for Novell over SCO. In theory, this should end the whole saga. The judge ordered that the case be closed, and without the copyrights, SCO's suit against IBM is dead as well.

The Groklaw blog took a moment to sum-up the end of the SCO litigation:

The door has slammed shut on the SCO litigation machine. The judge writes in the Memorandum Decision and Order about SCOsource, "Finally, while SCO's witnesses testified that the copyrights were 'required' for SCO to run its SCOsource licensing program, this was not something that SCO ever acquired from Novell." He totally got it. He noticed Darl McBride admitted that SCO didn't need the copyrights. It couldn't be any better if I'd written it myself.

Was the jury misled or confused? Not at all, the judge writes: "The jury could have rejected the testimony of SCO's witnesses for a number of reasons, including their lack of involvement in drafting the APA, the fact that there was little testimony on any actual discussions concerning the transfer of copyrights, or that many of the witnesses had a financial interest in the litigation."

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SCO's stock I see is today worth a nickel. I consider that overpriced, personally. It's not worth a plugged nickel.

Lastly, Joe Mullin discussed an important case before the Ninth Circuit, Vernor v. Autodesk:

If the Ninth Circuit affirms the district court ruling in Vernor's favor, many standard software licenses—some form of which cover nearly all consumer software—could become legally meaningless. Fearful of just that result, a major software industry group, the Software and Information Industry Association, has filed an amicus brief in support of Autodesk's position.

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[F]rom [Autodesk counsel Jerry] Falk's perspective, the stakes in the case could hardly be higher for the software industry.

"This is a huge deal, involving one of the most important sectors of the American economy, which has grown and developed on this model," he says. "If somebody thinks it ought to be changed, that's their prerogative, but they've got to go to Congress. There would be hearings... I don't think Congress in a million years would do anything this radical."

I'd agree that a loss for Autodesk would be a shock to the software industry, but I suspect that it would quickly readjust. Frankly, the stakes for consumers and businesses could be higher.

While an available resales market might lower the costs associated with licensing, other costs which are folded-into licensing costs would likely become separate charges assessed periodically; other services presently available to licensees, such as maintenance, update, and warranty coverages might be withheld from subsequent purchasers. The net effect may be that those subsequent purchasers find less-expensive goods available to them in a secondary market, but the goods they buy rapidly lose their value without ready sources of continuing support. Both the industry and consumers will inevitably find a new level if the Autodesk decision undermines the licensing model, but it may not be pretty in the short-term.

A few weeks ago here, I quoted from Justice Louis Brandeis' Olmstead dissent:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.

Brandeis' dissent and his earlier article "The Right to Privacy", published in 1890, remain touchstones for many modern privacy arguments. While it's often cited, Stewart Baker noted that "The Right to Privacy" is less-often-read; he offered a bit of insight into the genesis of the article and of Brandeis' privacy jurisprudence, explaining that both were prompted not by high-minded philosophy but by pique over press coverage of his privately-organized social events:

[Brandeis thought that] it should be illegal for the newspapers to publish harmless information about himself, his partner, and their families. That, he says, is idle gossip, and it distracts “ignorant and thoughtless” newspaper readers from more highminded subjects. It also afflicts the refined and cultured members of society—like, say, Samuel Dennis Warren and his wife—who need solitude but who are instead harassed by the fruits of “modern enterprise and invention.”

What’s remarkable about “The Right to Privacy” is that the article’s title still invokes reverence, even though its substance is, well, laughable.

Is there anyone alive who thinks it should be illegal for the media to reveal the guest-list at a prominent socialite’s dinner party or to describe how elaborate the floral arrangements were? Today, it’s more likely that the hostess of a prominent dinner party will blog it in advance, and that the guests will send Twitter updates while it’s under way. For most socialites, what would really hurt is a lack of media coverage. To be blunt, when he complains so bitterly about media interest in a dinner party, Brandeis sounds to modern ears like a wuss.

Equally peculiar is the suggestion that we should keep such information from the inferior classes lest they abandon self-improvement and wallow instead in gossip about their betters.

That makes Brandeis sound like a wuss and a snob.

Although many current and recently-graduated law students, as well as a number of practicing attorneys, have written about the oversupply of lawyers, the crippling student debt loads carried by new attorneys, and the fading prospects for young lawyers on the whole, few in legal academia have acknowledged the growing disconnect between law schools and the students and profession these purport to serve. Brian Tamanaha broke ranks this past week with a frank wake-up call to his fellow professors; speaking about the frustration expressed in students' and graduates blogs, he wrote:

Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.

Their complaint is that non-elite law schools are selling a fraudulent bill of goods. Law schools advertise deceptively high rates of employment and misleading income figures.

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And for the opportunity to enter a saturated legal market with long odds against them, the tens of thousands newly minted lawyers who graduate each year from non-elite schools will have paid around $150,000 in tuition and living expenses, and given up three years of income. Many leave law school with well over $100,000 in non-dischargeable debt, obligated to pay $1,000 a month for thirty years.

This dismal situation was not created by the current recession—which merely spread the pain up the chain into the lower reaches of elite schools. This has been going on for years.

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What can we do? As a start, we can provide prospective students with straightforward information about the employment numbers of recent graduates. It is open knowledge that many law schools present employment information in a misleading fashion, or don’t disclose it at all. This lack of candor on the part of law schools is itself a telling indication that there is something problematic about the product we are selling to prospective students.

More crucially, law schools must shrink the number of graduates, and must hold the line on tuition increases. (The fact that many students get scholarships is no answer because it simply means that some students, those paying full fare—often the students with the worst prospects—are subsidizing others.) This will be painful: smaller raises (perhaps even salary reductions), smaller administrations, smaller faculties, more teaching, less money for research, travel, and conferences.

The longer law schools delay in undertaking these measures, the more casualties there will be. At some point, law professors can no longer disclaim responsibility for the harmful consequences of this enterprise.

Though lengthy, I can't recommend highly enough the five-parts-long analysis of the Gary McKinnon case posted over the past week by David Allen Green (parts two through five are available here, here, here, and here). If you'd like to get a feel for the background of the matter before jumping-into Green's posts, a good round-up of news reports concerning this case (wherein a British computer hacker is fighting extradition to face charges in the United States) is available at Guardian.co.uk.

Finally this week, the findings of the Saville Report concerning the culpability of British forces in the so-called "Bloody Sunday" killings of thirteen unarmed protestors in Northern Ireland in 1972 were discussed by Charon QC:

I do feel that Lord Saville’s report is a remarkable undertaking and it is right that The Widgery Report is consigned, thereby, to history as a falsehood. I do think it right that David Cameron apologised. Our forces do much good, but it must be right, when they err and break the rules that they are held to account – whatever that form may or may not take in Northern Ireland. They say both sides were forgiven in the Good Friday agreement. We shall see if all sides are prepared to admit truth, apologise and move forward in peace.

While admissions, apologies, forgiveness, and progress may result, in the near-term the controversy over the killings and the Saville Report will continue. BBC News reports this morning that criminal charges against those involved in the incident are being considered but are probably unlikely to result from the findings of the report; nonetheless, paratroopers associated with the events of Bloody Sunday struck-back at those findings and defended the actions of an officer criticized therein. Perhaps an American, William Faulkner, described things best when he wrote, "The past is never dead. It's not even past."

And now, if you'll excuse me, I must get back to the World Cup.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., City Law Centre - Toronto, eil.com, and Paris Odds n Ends Thrift Store.