Monthly Archives: June 2011

Reducing Legal Aid in England & Wales

Passing along another interesting article…

I recently became aware of the proposal in the UK Parliament to reduce legal aid funding for England and Wales. Today, the BBC has a noteworthy article on this plan. Give it a read. I hope to post my thoughts on the matter once I’ve had a chance to read the proposed legislation itself and do more research.

-Zachary Cloud


Public Defense v. Private Counsel: A Comparative Look

Passing this along:

From New Zealand, an interesting blog post about a similarly interesting debate: funding criminal public defense.

Give it a read!

-Zachary Cloud

Two Noteworthy Commentaries on Turner v. Rogers Decision

I’ve been informed that Concurring Opinions has a Turner v. Rogers symposium, with various legal experts weighing in with their thoughs about the opinion. Two pieces are up that are particularly worth reading.

Check them out here:

(1) Some Optimism after Turner

(2) Turner v. Rogers: A Force for User-Friendly Courts or Empty Promises?

[UPDATE 6/21/11: Two more pieces have been posted on Concurring Opinions that I find have interesting takes on the opinion. See here and here.]

-Zachary Cloud

Analysis of Turner v. Rogers Opinion

[NOTE: The full-text opinion can be accessed here.]

[AlSO NOTE: For the sake of making my analysis available more quickly, I’ve not proofread this and I apologize in advance for typos!]

A significant moment of foreshadowing occurred in March, when the Supreme Court heard oral arguments for Turner v. Rogers.  During the respondent’s time, Justice Breyer and Justice Scalia got into a bit of an exchange about the consideration of suggestions made by the Solicitor General.  As Justice Breyer, and to a lesser extent Justice Kagan, inquired about how the family court judge assessed Turner’s indigence, Justice Scalia snapped, “I don’t understand all of this discussion. The question presented is not what due process procedures are required in these cases. That is not the question presented . . . . It is simply whether counsel is necessary. Isn’t that the only matter that we should be discussing?” Yet Justice Breyer was not backing down and uttered a set of words that would be predictive of today’s ruling:

 “Fine, but I would like to ask a different question. I’m trying to find out what happened here that was different from what the government suggests. The government suggests provide a piece of paper and ask certain questions. What I would like to know is: What’s different in this proceeding from what the government suggests?  That would have — perhaps no one else, but could have an effect on the way I decide the case.”

Indeed it did have an effect.  Today, Justice Breyer, writing for the majority, vacated Turner’s judgment of sentence in spite of finding that no constitutional right to counsel was mandated by by the Fourteenth Amendment.  The logic to support this decision was that there were other requirements that could satisfy due process but weren’t in Turner’s particular circumstances.  In so holding, the majority not only set forth a new test but went above and beyond the question presented.

Not surprisingly, they took some heat for this.  Justice Thomas dissented and, in a part of his opinion joined by Justice Scalia, Justice Alito and Chief Justice Roberts, wrote: “The majority errs in moving beyond the question that was litigated below . . . .”  This is true, Justice Thomas said, because, “it is the wise and settled general practice of this Court not to consider an issue in the first instance, much less on raised only by an amicus . . . . This is doubly true when we review the decision of a state court and triply so when the new issue is a constitutional matter.”

All of this suggests that in the coming months and years, Turner v. Rogers might become more known for its discussion of judicial activism, rather than the underlying explanation of procedural due process requirements.


At the outset, we should consider what the intended effects of the majority are. I’ve reviewed the factual and legal background in much more detail here, here, here, here, here, here, here, and here. Yet I’ll provide a brief overview for those unacquainted with Turner v. Rogers already. At issue in this case was whether or not an indigent, non-custodial parent has a right to appointed counsel during a civil contempt proceeding where the non-custodial parent is facing imprisonment.  In the instant case, Mr. Turner was an indigent who was placed in jail because he failed to pay child support. Mr. Turner was unable to afford a lawyer to represent him and thus did not challenge the contempt charge by arguing he was unable to pay as a result of his indigence. It is essentially uncontested that if he had been represented by an appointed attorney, his indigence would have been proved in the hearing and he would not have been incarcerated.

Yet that was not the case and, accordingly, he was imprisoned. At this time, pro bono representation helped him appeal, arguing that he was denied his right appointed counsel. The South Carolina Supreme Court disagreed, holding that since the proceeding was civil and not criminal, there was not a guaranteed right to counsel. When Turner appealed this judgment to the United States Supreme Court, it granted cert to hear the case.  In March, oral arguments were held and today the decision was handed down.

The Court ruled on two issues. The first, which I only briefly mention due to its dryness, is a mootness issue. The respondents contested Turner’s ability to bring suit in the first place but the Court found that the case was “capable of repetition, yet evading review” and allowed the case to be decided on the merits.

The big issue was due process. In the beginning of the majority opinion (I-A), Justice Breyer described the legal background regarding child support in South Carolina. In (I-B), he laid out the background of Turner’s specific case. In II, he swiftly disposed of the mootness issue described above.

The heart of the opinion came in III. In III-A, Justice Breyer looked to the law and noted up front that, “the Sixth Amendment does not govern civil cases.  Civil contempt differs from criminal contempt in that it seeks only to coerc[e] the defendant to do’ what a court had previously ordered him to do.” And further, he asserted that, “the Court has made clear (in a case not involving the right to counsel) that, where civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case.”

From that alone, it looked grim for Turner. And indeed, the discussion continued that way as Justice Breyer gave considerable weight to Gagnon v. Scarpelli, 411 U.S. 778 (1973) (holding a criminal offender facing revocation of probation and imprisonment does not ordinarily have a right to counsel at a probation revocation hearing). This lead to an unusual statement, in its wording if not also its logic: “We believe those statements are best read as pointing out that the Court previously had found a right to counsel ‘only’ in cases involving incarceration, not that a right to counsel exists in all such cases (a position that would have been difficult to reconcile with Gagnon).” It’s not entirely clear what this is supposed to mean. Does this suggest that only cases where imprisonment is the only option count? In other words, if civil sanctions besides incarceration are available, there is no categorical right to counsel? If this is not the right way of reading that sentence, how is Justice Breyer’s statement not contradictory?

Yet, for the confusion this causes, it probably won’t make much difference at the end of the day. In III-B, Justice Breyer applied the law as the Court understood it to Turner’s situation. For a moment, it began to look like the Court might go for Turner after all.  Early in the analysis, Justice Breyer wrote: “The ‘private interest that will be affected’ argues strongly for the right to counsel that Turner advocates.”  Bolstering that sentiment, he went on to say that, “[g]iven the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key ‘ability to pay’ question “

But enter the new factors.

After noting the importance of ensuring due process, the Court just as quickly said that three related considerations lead the Court to rule against providing counsel in “every proceeding of the kind before [it.]” First, the Court found that there were straightforward procedures that could determine ability to pay prior to the point at which an attorney would be appointed. Essentially, the idea here is that whatever method is used to determine if appointed counsel is necessary should also be sufficient to determine if the defendant can pay child support. Accordingly, why not cut out the middle-man?

Second, the Court took particular concern over the fact that mothers, who often instigate these child support proceedings, would also be unrepresented. To provide appointment for an indigent defendant would create an “asymmetry of representation” that would be unfair and “alter significantly the nature of the proceeding.”

Lastly, and most importantly in the long run, the Court set down four procedural safeguards other than appointment of counsel that would satisfy due process.  Justice Breyer listed them: “Those safeguards include (1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.”

The Court rounded out its analysis by noting that Turner’s arguments were strong but that, “a categorical right to counsel in proceedings of the kind before us would carry with it disadvantages (in the form of unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that we have mentioned.”

It should not be overlooked that, although the Court introduced new factors for considering when procedural due process was afforded, this was a particularly limited holding. Specifically, the Court made sure to note that it was not making any comments on whether appointment of counsel would be necessary if the State, rather than a custodial parent, was bringing a case against a defendant in arrears on child support. Nor was the Court willing to say that counsel would be unnecessary to satisfy due process in “an unusually complex case . . . .”

All in all, the Court’s holding was both activist and restrained.  While the Court introduced new factors to consider in examining procedural due process, it did not rule on anything beyond the very narrow situation of civil contempt hearings for noncustodial parents accused of not paying child support.


All of the due process discussion above, while important and noteworthy, will perhaps garner less attention than the issue of judicial activism highlighted in the dissent. To begin, it’s worth reflecting on the 5 to 4 split. When one sees a 5 to 4 split these days, it is often indicative of a split along the so-called “conservative” and “liberal” sides of the Court. In reality, this is a somewhat imprecise way of explaining it. In actuality, the split reflects a difference between the judges who are usually deferential to Congress (Breyer is one of them) and those who tend to go looking down textual/originalist avenues. The “swing vote” is widely agreed to be Justice Kennedy. He’s been hard to nail down when it comes to his jurisprudence but a common theory is that he generally supports leaving the states alone, except for when individual liberty is in conflict with that. It seems that such a theory for his jurisprudence may well explain what happened today.

As the four dissenters make clear, they would have found no categorical right and they would have left the South Carolina Supreme Court decision alone. The wording in Justice Thomas’ opinion makes that clear enough. Yet Justice Kennedy sided with the majority today. It seems safe to say that he was the swing vote in the case, and it also seems safe to assume he voted as he did for precisely the reason that he was concerned about individual liberty. Consider the outcome: nothing is changed dramatically. Indeed, the new requirements that South Carolina will have to implement are minimal. Yet, Turner is absolved of his contempt of court charge and a strong commentary was made about the inadequacy of the process he was subjected to. This smacks strongly of Kennedy and I suspect he had quite a lot to do with what went into the opinion. The holding is incredibly narrow; it dodges the issue of illegal immigrants facing deportation (a type of proceeding that the respondents argued would have to also receive appointment of counsel if the Court were to rule for Turner) and leaves the door open for challenges to almost every other type of civil contempt proceeding except the child support type that Mr. Turner faced. In other words, it seems as if Justice Kennedy managed to engineer a delicate balance of preserving states rights while safeguarding an individual’s due process. As much as possible, those two competing interests were reconciled. Indeed, they were reconciled so delicately that surely Justice Kennedy is to thank— the other four majority members have been much more willing to let federal matters trump states’ rights.

Yet this delicate balance required a level of judicial activism that did not go unnoticed. To pull off this delicate maneuver, the majority had to go beyond the question they were asked to answer: does an indigent defendant have a categorical right to counsel in a civil contempt proceeding when (s)he faces incarceration? Instead, the question was transformed into: what satisfies the minimum due process requirements for an indigent defendant in an civil contempt proceeding who is facing incarceration? The distinction is nuanced but significant, for it allowed the Court to introduce new factors (ones it had decided that South Carolina did not meet) and use those to vacate Turner’s conviction. Regardless of whether this was the right result (I personally think it assuredly was), it is no doubt activist. The Court went beyond what was required, as Justice Thomas correctly pointed out.

So this leaves us with a question that hits the very core of judicial philosophy: is going beyond the question presented appropriate? I could give my opinions on it but they wouldn’t be a definitive answer. Instead, I leave you to consider for yourself whether the Court overstepped its role today—and, if it did, whether that’s o.k.

-Zachary Cloud

Summary of Tuner v. Rogers Opinion

I’ve had a chance to read through the opinion and I’m posting a quick summary of it on my lunch break. Apologies for any typos found in my earlier post this morning, I was trying to type on the move with a smart phone…not a good foundation for success.


By a vote of 5 to 4, the Supreme Court vacated Michael Turner’s contempt of court sentence, holding that his Due Process Rights (14th amend.) were violated since he was not given proper notice about the necessity of proving inability to pay. Nevertheless, the Court found that there is not a categorical right to counsel in civil contempt proceedings when a defendant may be facing incarceration. Justices Breyer, Kennedy, Kagan, Sotomayor, and Ginsburg were in the majority. Justices Thomas, Scalia, Roberts, and Alito were in dissent


There were two issues on appeal. The first was whether the case was moot. The Court held that it was not, finding that it satisfied the “capable of review, yet evading repetition” doctrine.

The second issue was whether an indigent defendant facing imprisonment has a categorical right to counsel when faced with possible incarceration during a civil contempt hearing.

While the Court found no categorical right (relying heavily on Gagnon v. Scarpelli, 411 U.S. 778 (1973), it did find that certain procedural safeguards were required to ensure Due Process was afforded. Looking to the Mathews v. Eldridge framework (see 424 U.S. 319, 335 (1976)), the Court determined that the straightforward nature of child support proceedings, the lack of representation by the moving party (i.e. the custodial parent), and the existence other procedural safeguards outside of appointment of counsel all suggested that requiring appointment of an attorney was not mandated in order to achieve due process.

Explaining the “other procedural safeguards,” the Court said that a defendant must have (1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay

Finding that the family court in Turner’s situation did not afford him the proper requirements set forth above, the Court vacated his sentence.


Thomas authored a dissent, which Scalia joined in full and Justices Roberts and Alito joined in part. The main take-away was that the majority improperly went beyond the scope of the questions presented. Thomas and Scalia also made comments regarding the originalist approach to finding no categorical right and remarks about the problems mothers face when it comes to getting money from deadbeat dads.

A more detailed analysis to follow later. For now, I have to get back to work.

-Zachary Cloud

Turner v. Rogers Decision

This morning, the Supreme Court handed down its decision in Turner v. Rogers, 10-10. Breyer, J. wrote fir the majority holding no mandated right to counsel BUT that states must provide some form of procedural protections. However, the Court found that Turner’s DPC rights HAD been violated and vacated the judgment of the South Carolina Supreme Court. Thomas, J. Dissented. The opinio is here

More later once I’ve read the opinion in full.

-Zachary Cloud


How to Improve The Jury System: New Studies and Suggestions

Several interesting studies done on juries have recently come out: one from America and one from the UK. Let’s start with our neighbors across the pond.

According to the Law Society Gazette (the Law Society is the UK’s equivalent to the American Bar Association…well sort of), a new study from Portsmouth University suggests that jury decision-making would be improved by subdiving jury panels into smaller groups. Specifically, the study finds that people in subdivided groups participated more in jury discussions. The researchers suggest a jury composed of twelve people is “artificially large conversational group that forces too may people into silence.”

In fact, this general discovery isn’t new. We’ve known for some time that large groups tend to subdivide themselves during conversations. In fact, I bet you’ve noticed this yourself. When you’re at a large dinner or with a large group of friends, certain conversation groups form. Perhaps the classic example is a party. You’ve probably been to a party or two with a large number of attendees. Within moments of the party starting, people cluster themselves into discrete groups (typically based on their friendships or similarities). The Portsmouth University study merely provides empirical support for the hypothesis that jurors will participate more if they are not forced into large conversation groups.

There is, of course, a question in my mind about whether this is a good approach. Subdividing jurors may cause each individual to participate more but that, in and of itself, may not buy us much. Jurors need to come to a consensus on a verdict. I would imagine that in the small-group setting, each group may come to a consensus (or maybe not!) and then those groups would have to resolve differences between each other’s determinations. At that point, members of the various subgroups will start to debate trial aspects like they would without subdividing into small groups. While the subgroups approach may influence which people contribute to the discussion, I’m not sure it will speed up the process or enhance the accuracy of judicial decision-making. Indeed, I suspect that it might just cause further delay because my hunch is that those who feel strongly about a verdict are inclined to be the talkers (other factors such as gender and age notwithstanding). It follows that those who don’t have strong opinions will talk less. Does it make a whole lot of sense to induce situations encouraging people to talk that don’t have much to say? I’m not sure yet but my inclination is to say no.

While we’re talking about juries and the UK, here’s a sidenote. As this piece from the BBC aptly demonstrates, the problem of jurors contacting parties to a case has reached a new level thanks to social media. As the piece reports, a juror was held in contempt of court because she contacted a co-defendant of a trial (that co-defendant had already been acquitted). That juror now is facing up to two years’ imprisonment for her improper communication. This excerpt demonstrates some of the conversations had on Facebook between the two:

The court heard the initial contact came after Fraill went on the social networking website and tracked down Sewart, saying: “You should know me – I’ve cried with you enough.”

Fraill was said by her lawyer to have felt “considerable empathy” for Sewart as the trial “”gathered in momentum and intensity”.

“Can’t believe they had u on remand,” she said in another one of their conversations, a transcript released by the court shows.

Fraill added she thought she recognised one of the other defendants and when asked by Sewart how the jury was dealing with one of the outstanding charges said: “Cant get anywaone to go either no one budging… don’t say anything cause jamie they could cause miss trial”.

The two continued to talk about the case and used expressions such as “lol” and other internet slang, as well as variants of spelling commonly used in such messages.

Frail also said: “At least then yer all home n dry”.

And Sewart responded: “Ha ha, ur mad. I really appreciate everythin. If i cud of kissed u all i would of done ha ha.”

Now, there are a lot of things that I could say about this incident but what I will say is that this sort of behavior is nothing new. It will certainly become much more obvious and likely more frequent thanks to social media websites but juror misconduct has been happening for years and years and years and years. The constraints of the law in general and a trial in specific are not natural. Our tendency is to consider evidence that is inadmissible, irrelevant, prejudicial, etc… It’s a hard thing to discount things you learn (or could learn) from a decision-making process. This is especially true today when the ability to glean outside information is particularly easy.

Yet this is very dangerous.

In the second study, Christine Ruva and Michelle LeVasseur find that pre-trial publicity can have a profound impact on a juror’s ability to impartially decide a case. The abstract to their article, “Behind closed doors: the effect of pretrial publicity on jury deliberations” reads as follows:

Content analyses of 30 mock-jury deliberations were performed to explore whether pretrial publicity (PTP) affects the content of jury deliberations. The pattern of results suggests that PTP has a powerful effect on jury verdicts and that PTP exposure can influence the interpretation and discussion of trial evidence during deliberations. Jurors who were exposed to negative PTP (anti-defendant) were significantly more likely than their non-exposed counterparts to discuss ambiguous trial facts in a manner that supported the prosecution’s case, but rarely discussed them in a manner that supported the defense’s case. This study also found that PTP exposed jurors were either unwilling or unable to adhere to instructions admonishing them not to discuss PTP and rarely corrected jury members who mentioned PTP. Finally, this research provides insight into how PTP imparts its biasing effect on jury decision making.

Breaking it down, their findings suggest that jurors who came across negative news about a defendant were more likely to interpret ambiguities in a trial in favor of the prosecution and thus were more likely to convict a defendant. Perhaps more concerning on a fundamental level: they were discussing pre-trial publicity in the first place. Now, I haven’t had a chance to read the full-text article so there may be aspects of the study that would merit discussion (e.g. how the mock trials were conducted, what constitutes an ‘ambiguity’ for their purposes, what types of crimes were introduced, etc…) yet the general finding seems intuitively correct based upon other research showing how easily jurors are influenced by and consider improper evidence.

So, are there any positives to this? And what can we do about the obvious negatives? Well, to start, I think there certainly could be a positive. The power of the jury cuts two ways. Jurors can disregard the constraints of law to the detriment or the benefit of an accused person. So, to some extent, the impunity a jury receives might be used to good in instances where news suggested the wrong person was being prosecuted or that the law dictates an unjust result.

Nevertheless, it’s no argument to say that, because something can be used for good, we should feel comfortable ignoring the potential evils of it. In the same way that a bad person doing a good thing has not automatically become a good person, a jury inclined to presume guilt does not automatically ensure justice merely because they can sometimes presume innocence. Naturally, we should seek out ways to improve how juries operate.

The question becomes, however, at what cost? For example, the problem of pretrial publicity has been dealt with in other countries. One particular example is France. As the media frenzy of Dominque Strauss-Kahn’s arrest and “perp walk” has brought to light, the French do not allow the media to publish photographs of accused persons in handcuffs because of the very pre-trial problems highlighted above. But would that ever be appropriate in America? Except to the extent that you cannot use free speech to cause actual harm to someone (e.g. yelling fire in a crowded theater), the 1st amend. squarely protects reporters’ and news agencies’ ability to report the news. To the extent that someone spreads false information about a person which causes harm, there may be a civil action for defamation / libel…but the classic defense is always “what I said was true.” When the media show pictures of defendants, report on case developments, and the like, they are naturally very careful to say words such as “alleged” and “being charged” to indicate that there is no determination of guilt. On their end, they’re dotting their Is and crossing their Ts. And passing legislation to reduce the legality of publicizing information about a defendant seems flagrantly unconstitutional.

Nor would it solve the problem. News coverage makes the problem of rumor and gossip more acute and widespread, but it doesn’t start there. People will talk. As the story of the British juror illustrates, the accountability has to rest not on the media or gossipers but the jurors. After all, they are the ones with a duty and they are the ones who should be performing that duty correctly. How to make them take that duty seriously is the true problem to be solved. I can’t say I have the answer but these are some ideas that I think would be interesting to test. First, we might consider paying jurors more money … a lot more. A sure-fire way to make people take something seriously is to make it seem like a big deal. If the mindset/attitude about serving on a jury was changed, then people may show more deference. This is unlikely to work in practice, however, due to the fact that money doesn’t grow on trees. With debt and financial insecurity as it is, we need other ideas.

To that end, I suggest better education needs to happen about the legal system. I’m not all that old and I can remember elementary school. I can remember junior high and high school as well. At no point was the legal system given the same treatment in my studies as the legislative branch or the executive branch. As one of my family members told me once, “Nobody ever teaches you this stuff [about the law] in school.” That family member is right. And I suggest that if people truly understood the legal system better, they would be better jurors.

Also, I think it would be helpful to hold jurors somewhat more accountable. The secrecy of the jury room is important—to an extent. I think it would be beneficial to have jurors’ deliberations recorded and transcribed anonymously. Such transcripts would be available only for the purposes of appeal and collateral attack in order to determine if the jury misapplied law. The transcripts would not be available to the public; just to the parties and the judges involved in the litigation. This would maintain anonymity while allowing flagrant misapplication of or disregard for the law to be corrected. A less invasive way of doing the same thing would be to require the jurors to fill out anonymous explanation sheets detailing why they find the evidence suggests culpability (or why it doesn’t). Are these perfect solutions? Of course not. Are there others that might improve the jury system? Yes. But these are some steps I think certainly couldn’t hurt.

The jury system is an old tradition, predating England’s Magna Carta. The ideal of providing checks and balances in the legal system and allowing fair trial by peers is noble. But as the studies and news above make clear, there can be a break down between ideal and real, desired and achieved. Research like that above is an important first step in improving how juries make decisions but it would be nice begin implementing some of these suggestions in actual court rooms. Piloting different suggestions is going to be necessary before we can make actual progress. Some places (e.g. Arizona) have played with this idea but most jurisdictions face too much inertia and too much red tape to follow suit. That’s a real shame; one perhaps time will change.

Yet until then, we should keep these finding in mind. After all, one day we might well be jurors ourselves. And make no mistake, if or when that day comes, achieving justice in a jury room will be a battle—these studies make that clear. It will be a battle against our tendencies and behavioral predispositions. Yet, I can’t imagine being armed with a better weapon to combat our bias than knowing about that bias because, as people often say, knowing is half the battle.

-Zachary Cloud