16 February 2011

A Round Tuit (56)

A Round Tuit

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.


One certainly doesn't need to be a practicing attorney or legal academic to recognize the names of important legal cases. High school and college courses, the news media, and popular culture have made names like Gideon and Miranda familiar ones. Nonetheless, few laypeople — and few attorneys — know the stories of the people behind those notable names. For us, the Supreme Court's ruling is the end; for the people whose names identify those cases, the Court's decision is an intermediate step on a longer journey through the American legal system.

For most criminal defendants, success before the Supreme Court does not secure their liberty or ensure that the remainders of their lives are happy ones. Consider just two notable examples — Clarence Gideon and Ernesto Miranda. Though Gideon v. Wainwright prompted the release of thousands of prisoners, Gideon himself was not initially among them; it took a second trial — this time with the assistance of counsel — to secure his release. After prison, Gideon passed the remainder of his life unproductively and was buried in an unmarked grave. After the Supreme Court remanded his case, Miranda was convicted again and served a number of years in prison. His life ended in a bar fight less than a decade after Miranda v. Arizona.

In 2009, Luis Melendez-Diaz' conviction was overturned by the Supreme Court, which held that defendants must be permitted to question the analysts and technicians whose crime lab reports are used at their trials. In discussing the ruling in Melendez-Diaz v. Massachusetts, Lyle Denniston wrote:
Justice Antonin Scalia, the Confrontation Clause’s most devoted defender on the Court, wrote for the majority: “There is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts.”

The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.

Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst. It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated.
For Melendez-Diaz himself, as for Gideon and Miranda before him, the win at the High Court did not free him, but instead allowed him another chance at trial. As Brian Tannebaum noted this week, a chance was all he needed (though it will still be a few years before he can savor his victory):
Yesterday, Luis Melendez-Diaz, was acquitted in his re-trial.


So now the chemist testified.

...during Melendez-Diaz's retrial, a chemist from the state Department of Public Health testified that the substance allegedly found in the back seat of a police cruiser with Melendez-Diaz and two other men tested "positive for the presence of naturally occurring cocaine."

But the jury said no, not guilty.

Bittersweet for Melendez-Diaz, he's serving a 10 year sentence - for another drug trafficking conviction.
Scott Greenfield wrote:
We tend to forget about the people after the big story has been told. After all, the Melendez-Diaz decision changes the landscape for those courts where papers proved the crime instead of people. But for Luis, the celebration wasn't quite complete. He may have won the point, but he still had a trial to face.

And he was acquitted. Not that he walked out of court afterward, as he is serving a ten year sentence for another drug case, but it beats a consecutive sentence any day.


Lest we forget, the National Academies of Science isn't impressed with crime labs. It's report was damning. Nothing has changed. Nothing except that labs have to produce living, breathing witnesses in court so that they can't just submit the official looking piece of paper that conclusively proves that a very scientific test was performed and the defendant is guilty as sin.

And Luis was acquitted.
Jeff Gamso discussed the testimony of the state's crime lab technician in Melendez-Diaz' new trial and the "special resonance" of the words "not guilty":
This time, the state called as a witness the lab technician who tested the stuff that got him convicted before.


I don't know if that made a difference to the jurors. I don't know what the cross-examination was like. I don't know what the other evidence was.

Here's what I know: The Constitution said that a criminal defendant has a right to challenge the state's evidence and to confront the state's witnesses. And when the state's witness actually testified, the jury decided that Melendez-Diaz was
Not Guilty.
With that special resonance.
Bobby Frederick was amongst several this week who, prompted by Melendez-Diaz' acquittal, remembered the fates of Clarence Gideon and Ernesto Miranda.

Having both a Supreme Court victory and a trial court victory, Luis Melendez-Diaz probably values the latter more. I hope that he'll avoid Miranda's unpleasant fate and accomplish more with his remaining years than Gideon did.


Observers sometimes speak of various online forums as marketplaces of ideas where the barriers to entry are low — usually just a willingness to join in and play by a few general rules is enough. The legal blogosphere is such a place, though there are certainly no prizes for just showing up and there's certainly grief to be had if you're here just to self-promote. Here, the price of admission is an ability to defend one's opinions intelligently and persuasively.

Wikipedia seems to be another marketplace of ideas, wherein a good deal of argument underlies the information we use there everyday. A recent New York Times article suggested that a significant percentage of women are unwilling to compete in Wikipedia's wide-open marketplace of ideas accounts, thus creating a gender imbalance amongst the editors of the site. Though it didn't pertain directly to legal issues, that article generated a considerable amount of discussion in the legal blogosphere this week.

Mike Cernovich touched-off that discussion when he ventured that women's unwillingness to compete in an open, high-conflict forum might account for the Wikipedia gender imbalance, but simple disinterest seems as likely:
Wikipedia has even lower barriers to entry than blogging. To start a blog, you need fives minutes. You must create a free account at Blogger of Wordpress, or pay out the big bucks for an account at TypePad. To participate in Wiki, you just need to hit, "Edit."


Yet women somehow face unique problems on Wikipedia. Like?
“It is ironic,” he said, “because I like these things — freedom, openness, egalitarian ideas — but I think to some extent they are compounding and hiding problems you might find in the real world.”

Adopting openness means being “open to very difficult, high-conflict people, even misogynists,” he said, “so you have to have a huge argument about whether there is the problem.”
That's one theory. Another theory is that women care less about facts and information than men do. Women instead care about superficial gossip.


Why should anyone be surprised that a demographic who uses its off-hours to read celebrity gossip aren't on the Internet sharing useful knowledge, and provoking interesting discussions? Why should anyone blame men?
In responding to Cernovich's post, Carolyn Elefant wrote that "Objectively speaking, there are fewer women than men who blog or contribute to wikipedia or are partners at AmLaw 100 law firms... but I surely don’t blame men for holding them back." She suggested, however, that indulgence in gossip magazines is not the problem, as Cernovich suggested, but a symptom of it. She posed a series of questions to illustrate that the greater childcare and household demands placed on women leave little time for any diversions except frivolous ones:
...I’ve got an Oprah Magazine right on my nightstand, next to my ipad that’s loaded with the New Yorker, New York Times and the Harvard Business Review. Trouble is, most nights, I’m so exhausted when I get into bed that Oprah or something even more trashy is really all that I have the energy for. And I suspect that the same is true of many of those professional ladies who you see at the gym with their noses buried in trashy, guilty pleasures.

As I said at the outset, I don’t think it’s sexism that’s behind the fact that there are fewer blogs by women than men. But I do think it’s sexism – or a deep disrespect for women – that’s behind Mike’s blog post.
Mirriam Seddiq could see something in both sides of the argument. She knows a thing or three about handling the competing demands of home and practice; what's more, she's managed to find a way to make it work — for now, for her — and still finds time to blog about it now and again:
Carolyn writes that the reason why there aren't more women bloggers is because women bear the brunt of housework and child rearing so when deciding what to do and when, blogging takes a backseat (I'm not even going to touch the Wikipedia angle because, like I said, Wikipedia is stupid). I think Carolyn makes a good point as well. It's not the life I live since my husband is a true partner in every aspect. He knows I'm growing a business and that takes time and effort so he picks up a lot of the slack. However, he works ridiculous hours and I'm beholden to his schedule. I've had to cancel late evening or early morning appointments because he hasn't been able to get the kids, but hey, it's life and we manage to make it work.

Look, I'm not going to lie, this having kids and being a full time solo practice go-to-court and represent clients lawyer thing is hard. It takes a lot out of all parties involved and it's a lot of ducking and weaving and bobbing sometimes to get through the day. I meet clients after the kids go to bed. I work on Sundays. I make most meals (because I am a much better cook) but I don't do laundry (I take mine to the fluff and fold, it's my one indulgence). I choose to blog with a little less frequency since I've had to make choices on how I spend the little time I've got left in a day.


I don't think Mike is sexist. I don't think Carolyn is an idiot for reading Oprah (I mean, Oprah though, really?) But then again, the new feminist agenda is not something I've spent a lot of time thinking about in the recent years because I've been trying to run a law firm, have kids, raise kids, then run a law firm. Which, I thought, is what our feminist forerunners were trying to make sure we would get to do.
As parent to three young children and practitioner of a growing legal practice, Eric Mayer has taken on a lot; he points out that this is both by choice and by necessity and, moreover, that it's not a gender issue at all:
...I must do all the things that a parent (not a mother, not a father, a parent) must do to sustain a family and set our children up for success. It’s not a choice, it is a requirement because I give a damn. If a person can’t handle the heat, they had better get out of this kitchen. Being a father is one helluva manly thing, but being a parent is one helluva human thing. Just like the law, it’s not about female or male. It is about people who give a damn and want to make a difference one case at a time–or one child at a time. It matters not whether someone is heavy on the estrogen or the teststosterone. When we dole-out the house duties, we must do so consciously, deliberately, and purposefully. I do what I do by choice. I hope the same goes for other professional parents.

We should never complain or establish superiority because of the things we must do. It’s unbecoming. Those who rely upon us–be them children or clients–are not chits to be bargained or compared. They are ours to serve quietly and professionally. Sometimes we bear a majority of the burden. Other times, not so much.


Ultimately, in our profession, excuses do not count. Our clients deserve better. In my case, they are all fighting for their freedom, good name, or families (or a combination of the three). They deserve an attorney who is dialed-in at the highest possible level. If you can’t manage that responsibility, you need to take a cut in cases and pay (which I’ve done).


If you can’t manage an aspect of your life, start cutting stuff away. If you can’t serve your clients, don’t take cases. Need more time with the kids? Don’t expect to get paid as much for work. Wife or husband won’t pull their share? You’re the one who chose to marry them. If you choose to shoulder most of the household load, remember that it is a choice above all else.
Though my life isn't nearly as frenetic as Mayer's (or, most likely, Seddiq's, Elefant's, Cernovich's, or yours), I can appreciate what he says about choices. We make them and we sometimes have them made for us; we all live with them, or should. Some choose to balance career and family duties; some choose to split these duties with a partner; some choose one and forsake the other. We all choose and I don't expect you to applaud or pity my choices any more than you should expect me to applaud or pity yours.

It's fair to venture that on the whole, the legal blogosphere is comprised primarily of people with little spare time. We've chosen to spend that time, or at least a bit of it, blogging. That a greater proportion of men than women make that particular choice (or choose to contribute to Wikipedia) is worth considering, but dwelling on what occupies the greater part of their time seems like an unproductive way to do it.

Odds n Ends Shop

Of late, the Above the Law site has been adding some impressive names to its list of regular columnists. This week saw the debut of a new feature focusing on smaller law firms written by Jay Shepherd, who also blogs at Gruntled Employees and The Client Revolution. In his inaugural column Shepherd related his path to Small Law. Dumped by his girlfriend a week before 1L finals, he saw his grades drop him below the Big Law radar; no time as a summer associate meant no associate's position and in a tough job market, he found himself in a small firm:
But the funny thing is, it’s exactly where I belonged. Even though I spent most of law school thinking that I had to go to a big law firm, the truth is that I wouldn’t have lasted about six seconds in one. I know this now: many of my friends and classmates work in BigLaw, and my wife (whom I never would have had the good fortune to start dating if the blonde hadn’t dumped me when she did) is a partner at an Am Law 100 firm here in Boston. Basically, it would have been a footrace to see if they fired me before I quit.

It’s not about intelligence or work ethic. It’s about personality type. White shoes just don’t fit me.

I wish I had known more (read: anything) about small firms while I was in law school. If I had, I might have realized that I belonged there. Instead of ending up in small firms by happenstance and a departing girlfriend, I might have gone purposefully. Not accidentally.
I have an abiding interest in British law and regularly read a number of UK legal bloggers. Still, I never feel like I understand any British legal issue until Carl Gardner and Charon QC discuss it in one of their occasional podcasts together. This week, they discussed a recent vote in Parliament to defy the European Court of Justice, which has ordered the extension of voting rights to most prisoners.

Probably the best bit of legal advice I've ever heard, received, or given is this: "Don't answer any police questions without your attorney present. Look at the person next to you. If that person is not your attorney, shut up." It seems simple enough and as Rick Horowitz writes, he's offered such advice so often that he's taken to printing it on the backs of his business cards. Still, it seems not to sink in for many people, including one of Horowitz' recent clients:
Not too terribly long ago, I had someone come to my office about representation. As the story proceeded, I learned that the potential client had already spilled her guts to the po-po. As I often do, I pointed to my business cards near the corner of my desk and suggested she take one. The backs of my cards contain the following statement:
This is the only thing you have to say to anyone from the government (for example, police officers):

Before answering any questions, I want to speak to attorney Rick Horowitz. I will not speak to anyone, answer any questions, respond to any accusations, waive any legal rights, or consent to any search of my person, papers, or property, until I have first obtained the advice of attorney Rick Horowitz.
It then says, in large capital letters,
She didn’t reach for the card.

Instead, she said, “Here’s the sad thing: I have your card. I know what’s written on the back of it.”

“Why did you talk?,” I asked.

“Because the cops scared the shit out of me,” was the response. You see, as they nearly always do — whether they’re in court testilying under oath, or just chatting with you on the street — the officer lied to her. He made her think that he knew more than he knew, telling her that he had evidence and eyewitnesses which he did not have.


[M]ost people are used to being told — even that potential client had been told — not to talk to the police. Hopefully, most of them also understand they shouldn’t be talking to anyone else about crimes they may be suspected of committing, either.

What many don’t know, though, is that unless specifically instructed differently by their attorneys, they should not even be talking to their attorneys about crimes they are suspected of committing.

In other words, if you come to my office, unless I specifically ask you, I do not want to know that you are guilty.


You have the right to remain silent. When it comes to being a witness against yourself — that is, when it comes to spilling the beans about your guilt — no one, including me, can compel you to do that.

So don’t.
Finally this week, Scott Greenfield marked the fourth anniversary of Simple Justice, which is either the finest legal blog around or an astonishingly accurate facsimile of it. It's so central to the legal blogosphere that it seemed incredible to read that it's been around for only four years. By the time I'd recovered my senses, its fifth year was already underway with a post about the American Bar Association's plan to end prosecution gamesmanship with Brady disclosures by passing a resolution to create a committee to make a checklist:
A checklist? Because it works so well for grocery clerks?

What about the idea of dealing with the reasons why Brady has been such a monumental non-starter, like prosecutors playing games with Brady, or courts ignoring the disclosure coming in the middle of trial, or a day after the verdict?


One reason Brady has been such a miserable failure in action is that efforts to make it real seem to invariably fall into the lawyerly fantasy that it's not that prosecutors don't want to give the defense exculpatory evidence, but that they just really can't figure out what it is. If only someone would hold their hand, wipe their brow, show them the way, then the prosecution would happily fulfill its duty to the defense. Gag me.

So here's my checklist:

1. Find anything that could possibly show, or lead to something that could possibly show, the defendant isn't guilty or that a prosecution witness is wrong.
2. Hand it over.
3. Now.

Let's see how that pans out.
I won't join the chorus of those asking for four more years of Simple Justice. I won't even ask for four more months or four more posts. Instead, I'll just continue to read and enjoy whatever Greenfield chooses to write for as long as he continues to write. I know that he does this for his own enjoyment, not for my admiration (or anyone else's). He has my admiration nonetheless; call it "Simple Appreciation".

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Criminal Defense blog (Brian Tannebaum), The Lede blog (New York Times), and Paris Odds n Ends Thrift Store.

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