Monthly Archives: January 2011

I’m Featured on Now!!

That’s right, the legal humor website Big Legal Brain has been so kind as to name drop for me quite a bit in this recent post I just discovered. Check it out here!!

[Full Disclosure: It’s not actually talking about me. It’s just talking about clouds in general.]

-Zachary Cloud

Anecdotal Evidence: Problems with Privatizing Public Defense

In a past article, I’ve squarely criticized the government tendency to “subcontract” indigent defendants’ cases out to private attorneys. This morning I came across this effective illustration of both the situation and the potential disadvantages. The piece was written this past August detailing some California counties’ use of a contract-firm to replace their public defenders offices. I highly recommend you give it a read. My thanks to Elizabeth Renter, the author of this equally effective summary piece about indigent defense in America, for linking to it in the first place.

-Zachary Cloud

Castration as Creative Punishment?

I just thought I’d pass along this post from Sentencing Law & Policy today. The post links to an article regarding a Virginia state senator’s proposal to castrate rather than incarcerate men found guilty of being sex offenders.

I’m not sure this is a novel idea…I’ve definitely heard family members suggest basically the same thing. But what do you think, is this punishment worse than incarceration? Is it cruel and unusual? I think this poses a rather difficult question of legal philosophy worthy of careful reflection.

-Zachary Cloud

Turner v. Rogers Briefs Part 1: The Parties’ Merits Briefs

It’s a lesser-known fact that I started this blog right after Turner v. Price, 10-10 (now renamed Turner v. Rogers) was granted certiorari to the United States Supreme Court in the end of October 2010. I had been on the fence about starting a blog before that time but this case was the “straw that broke the camel’s back.”

So why do I care about it? Put simply, because it raises a question near and dear to my heart: how far does the right of counsel extend? Those who know me realize that indigent defense is a passion of mine. Naturally, then, I pay attention to any cases that might have an impact on what the legal rights of indigent persons are.

Today, I wanted to return to the case in order to consider the briefs on the merits. For those wanting more background information on the case, I encourage you to read my earlier posts (Turner v. Price and its Importance in Indigent DefenseTurner v. Price: Thoughts on Civil Contempt, A Quick Update: Turner v. Price is now Turner v. Rogers, Turner v. Rogers (aka Turner v. Price) Oral Arguments) or briefs and lower court opinions themselves.

My hope is to post a series of articles following this case. Of course, the life of a law student is always busy so I make no promises. That said, today I wanted to talk about the briefs on the merits– the briefs that the parties will rely upon to make their arguments to the court. In subsequent posts, I’ll deal with the many amicus curiae (“friend of the court”) briefs.


Let’s start with petitioner Michael Turner. Writing for Mr. Turner are

(1) Derek J. Enderlin, esq. (of Ross & Enderlin, P.A. in Greenville, South Carolina),
(2) Katherine H. Hudgins (of the South Caroline Commission on Indigent Defense),
(3) Seth P. Waxman and a group of other attorneys from Wilmer Cutler Pickering Hale and Dorr, LLP (a ‘Big Law’ firm).

You can find the brief here and if you visit that link, you’ll see that it’s a 66 page long document. I never grow old in marveling at the irony of how long ‘briefs’ usually are. Anyway, have no fear cause I’ve got the brief covered for you.

A. Question Presented

Pursuant to the Supreme Court’s request, this brief poses two questions: (1) did the Supreme Court of South Carolina err in determining that an indigent defendant has no constitutional right to appointed counsel in a civil contempt proceeding leading to incarceration? (2) does the U.S. Supreme Court have jurisdiction to review the South Carolina decision?

B. Parties

Usually this section of a brief is unremarkable. Here, however, there are two points that bear consideration. The first point, a Mr. Larry Price has been allowed to intervene as a respondent. This was actually granted in November. I’m going to do more research on how his interests are at stake here but I do not presently know (if you do, drop me a line!). Second, there seems to be some issue about whether or not the South Carolina Department of Social Services is or is not a respondent. Apparently, the DSS filed a brief in opposition to granting a writ of certiorari and in that brief it claimed it was not a party. Nevertheless, it is listed on the Supreme Court’s electronic database.

C. The Question of Jurisdiction

When the Supreme Court granted cert to this case, it asked that the parties brief a second question: why did the Court have jurisdiction to hear this case? The role of the U.S. Supreme Court in hearing appeals from state supreme courts is an issue that dates back to Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). Petitioner writes that this falls squarely under 28 U.S.C. § 1257 (1988), a statute that addresses when the Supreme Court can review final judgments rendered by state courts. I agree that it seems fairly clear that this case falls within the purview of §1257(a).

The brief then addresses the two points that respondents had advanced in their opposition briefs. The first contention was that Turner had not asserted a federal right-to-counsel properly during his state proceedings. Petitioner rejects this argument on the grounds that the state supreme court specifically addressed and ruled on the federal issue. The second contention that respondents asserted in their opposition brief was that this is no longer a live case or controversy (an argument similar to what the defense in Kentucky v. King tried to argue). In handling this, the petitioner cites to cases dealing with the “capable of repetition, yet evading review” standard and points to the high likelihood that Mr. Turner will just be in the same situation again if no ruling on this matter occurs.

D. The Right to Counsel

Naturally, the heart of the brief lies here in the second issue. I think it might be helpful to list the main arguments laid out then address them respectively. Petitioner presents three arguments: (1) precedent establishes that the right to counsel applies when a defendant is facing incarceration, (2) appointing counsel is necessary in civil contempt proceedings in order to ensure that the sanction maintains its civil purpose and character, and (3) fundamental principles of due process confirm that that alleged contemnors facing possible incarceration are entitled to having an appointed counsel.

1. Precedent

The authority that petitioner relies upon is, for the most part, the precedent you’d expect: U.S. Const. amend. VI, XIV; Gideon v. Wainwright; Argersinger v. Hamlin; Scott v. Illinois; Alabama v. Shelton; and of course Lassiter v. Dep’t. of Soc. Servs. This section of the brief also makes liberal usage of quotes from other opinions that highlight the necessity of an attorney to ensure adequate representation. My opinion is that this part of the brief is not all that different from the arguments advanced in the petition for cert. brief.

2. The Character of Civil Contempt Proceedings

I rather like this section. One of the blurry lines in this case is the civil/criminal distinction. Typically, when we consider differences between the two, distinctions regarding burden of proof, ‘remedy,’ and who brings the suite arise.

For the most part, the distinction is pretty clear. Criminal matters are brought by a prosecutor representing the general public, not by a specific plaintiff or plaintiffs representing individual interests. Moreover, the point of civil trials usually revolves around money (compensatory damages, sometimes punitive damages, sometimes nominal damages) or injunctive relieve (an equitable remedy designed to preserve the status quo). It does not revolve around limiting a person’s physical liberty (through incarceration, probation, house arrest, community service, etc…). In this case, however, it would appear we have a sheep in wolf’s clothing: the charge says civil but the result looks criminal. Petitioner addresses this in a way I think is well-done.

This sentence perhaps sums up petitioner’s argument best: “The state supreme court in this case […] placed excessive reliance on a categorical distinction that may not reflect actual practice or prove workable in many cases.” Brief for Petitioner at 38, Turner v. Rogers, No. 10-10 (U.S. Jan. 4, 2011).

In truth, this section may be the most central to the argument as a whole and I would not be surprised to see it become a main area of discussion in the oral arguments. Why? Because petitioner goes on to discuss the general distinction between criminal and civil contempt as being between punitive and coercive respectively. Petitioner suggests that, “Although a court may order incarceration in a civil contempt proceeding that lacks the protections applicable to criminal contempts, it may do so only because, and only when, civil contempt sanctions are coercive and conditional and may in fact be avoided through obedience to the underlying court order.” Brief for Petitioner, supra, at 40. Clearly, this sets up a fine line to walk. If one determines that Mr. Turner could have avoided the contempt through obedience (and prima facie it seems he could), then petitioners would suggest that his circumstances are excluded from the protections afforded to criminal defendants. The argument petitioners naturally advance is that here, he actually could not comply since he was indigent and lacked an attorney.

I believe this might be affording the whole “the defendant holds the keys to his jail cell” adage too much credulity. Rather than saying, “a court could normally do what they did here…Mr. Turner’s case is an exception to the rule since he can’t pay” I’d personally prefer to see an argument averring, “When a court threatens prison time, there is an inherent criminal component to the case.”

It’s not that I disagree with petitioner’s substantive argument. Certainly, there is a risk of erroneous incarceration here, but why should that be the reason for requiring appointment of counsel to indigent defendants in civil contempt proceedings? Here, the matter is intertwined since his contempt is for not making payments. But imagine when an indigent defendant is facing some other civil contempt matter. Let’s say he’s representing himself pro se and fails to comply with a judicial order. Let’s go further and say he’s now facing jail time as a result of this failure to comply. Are we really to say that here, he has a lesser right to counsel merely because his potential incarceration would not be erroneous? I argue that first, he should have had an appointed attorney in the first place and that incarceration would be erroneous– that argument will lose. Defendants do not generally have a right to counsel in civil cases. Seeing that this argument will lose, I argue second that regardless of what rights he had before, at the point he might face jail time, due process requires he have appointed counsel unless he waives it. Lassiter is clearly controlling on this point.

3. Fundamental Due Process Concepts

Finally, the petitioner argues that, even if there was no precedent for the Court to rely upon and this was a matter of first impression, the answer is still the same. Petitioner cites to Foucha v. Louisiana, 504 U.S. 71 (1992) in highlighting that the fundamental concern of the due process clause. This is the section where I start seeing language that I like. Strong constitutional arguments that you can call a rose whatever you want— it’s still a rose. In this case, a defendant faces potential deprivation of physical liberty and many controlling cases set down that these circumstances require protection of due process. The petitioner also advances an argument that requiring South Carolina to provide counsel would not be unduly burdensome on their resources. Indeed, this is a point I discussed in my previous post Turner v. Price: Thoughts on Civil Contempt.  The argument here seems to generally track the points I made in that post.


It hasn’t been submitted yet. Respondents have until February 9 to file their response. When they do, I’ll be sure to cover it.


Generally, the brief is well-written and reflects the arguments made in the petition for certiorari. I’ll be very interested to read the respondent’s brief because, frankly, I think Mr. Turner’s arguments are very strong. There’s a general rule of thumb in appeals: if the law is with you then argue the law; if the facts are with you, argue the facts. The thing here is…well… the facts are really quite clear. I suspect that the argument will boil down to a question of the criminal / civil distinction and the “defendant holds the key to his release” adage. We’ll know pretty soon.

In my next post, I’ll be discussing the amicus briefs. There are a lot of them so I may have to break their treatment into several posts.

-Zachary Cloud

Blog Updates

I just wanted to give an update on the status of the blog. Things are progressing but I still have things I want to refine– truly, it’s a work in progress. I’ll be doing some updating and adding here in the next week or so in order to make the site better. I figured I’d better jump on this while the semester is still early and I’m not inescapably overworked. Be on the look out for, among other improvements, a new piece on jury psychology and the return of my weekly articles. Stay tuned!

-Zachary Cloud

Two Opinions on Federal Habeas and Ineffective Assistance of Counsel

As astute followers of the U.S. Supreme Court already know, two opinions were released yesterday dealing with the properness of federal habeas reviews. The first case is Harrington v. Ricther and the second is Premo v. Moore. Both cases involve prisoners brining ineffective assistance claims: Richter for his trial attorney’s choice not to hire experts for blood analysis; Moore for his attorney’s decision to push an early plea deal. There were no dissenting opinions in either case although Justice Ginsburg authored brief concurring opinions in both indicating that she agreed with the judgement and suggesting she might be more receptive to the substantive ineffective assistance claims than the rest of the Court.

I have read both of the opinions and I’ll probably write up a proper summary of these two cases in a day or so. For right now, here are the basic points I took away:

(1) The Supreme Court is fed up with the 9th cir. willingness to grant federal habeas review.

(2) The Court is similarly fed up with every unhappy prisoner bringing an ineffective assistance claim just so he can sneak his way into federal court.

(3) The Court is not willing to infringe upon the sovereignty of states’ rights to prosecute and punish. Justice Kennedy (the author of both opinions) made a point of this in both cases. He undeniably is less than comfortable with the power of federal habeas to overstep or second-guess the states.

(4) Criminal defense attorneys probably should feel relieved. I’m still on the fence about this point. On the one hand, the Court has made it difficult for someone pushing a federal habeas review. On the other, what trial attorney wants to be easily found to have rendered ineffective assistance? That’s an attorney’s worst nightmare— now it will be a less salient one.

-Zachary Cloud

Buy “Typography for Lawyers.” Just do it.

The legal world is abuzz these days. Whisperings and mentionings of some book called Typography for Lawyers. Perhaps you’ve heard about it; maybe you haven’t. Either way, you should definitely buy it.

I’m a  visual person so it’s not surprising that I was immediately intrigued by the title when I heard it referenced. Blawgs such as Defending People and The Jury Room both made reference to it in posts. I quickly arrived at Matthew Butterick’s website, the forerunner to the book. I was fortunate enough to have some spare Lexis points so I cashed ’em in for my copy, which I now keep handy right beside the Chicago Manual of Style and Bluebook. These books are ones that can be found on my desk in perpetuity.

Why is this book good? Because it might, just might, make lawyers stop following all of the bad formatting habits of the profession in their writing. Court documents, memoranda, contracts, etc… are treated as utilitarian documents by most attorneys, with little to no emphasis being put on how these documents look. Before Butterick’s book, the few who hated this utilitarian reality were in an awkward position– they could march to the beat of a different drummer with the likely result being admonition or they could acquiesce to the world of ugly typography in legal documents. Now, there is an authority we few can rely upon to support our typographic decisions.

Okay, but why else is it good? First, it’s easy to read. The text is accessible and does a good job of assuming you’re an intelligent yet uninformed reader. Second, the book makes great use of examples. All throughout the book, Butterick provides visual examples of what is effective and ineffective— true proof by example. Third, the book explains the mechanics of of how to accomplish the desired effect. Even if your experience level with a word processor is limited, there are instructions for the major options (e.g. Apple’s Pages and several versions of Microsoft Office). I could continue but I think it’s best to let you see for yourself.

Coverage of this book has grown like wildfire all over the blawgosphere, which means you might soon be left in the dark if you don’t get your hands on a copy. Soon, more and more lawyers will be following Butterick’s guide to varying extents. The chances you interact with one of these people is only going to get higher so you’d do well to not have the uglier of the two briefs, pleadings, etc… The book retails for $25 USD and is available on Amazon. It’s a small price to pay so go out and get it. Just do it– you’ll be glad you did.