Category Archives: Big Picture

Articles and posts focusing on the broad political and policy issues underlying points of the law.

Recent Study Suggests Older Jurors Are More Likely To Convict

I saw that the folks at The Jury Room blogged today about a study from 2012 examining how age affects one’s likelihood to convict. Unsurprisingly, the authors found that a jury with an average age over 50 were more likely to convict. From what I can tell, the researchers ran stats on actual juries and their verdicts…which necessarily precludes the ability to control for the “strength” of the prosecution’s case. But it seems worth a closer look. I’m traveling for Christmas so hopefully I’ll have some time to review the article and follow up in a few days with a full commentary.

Merry Christmas and Happy New Year in advance!

-Zachary Cloud

Do We Need Specialty Licenses in Law?

Houston Criminal Defense Lawyer Mark Bennett recently posted about a baby lawyer—less than 1 year practicing—who has taken a paying client’s death penalty case. In response, I think blogger Grits for Breakfast raises a fascinating and very accurate point: “Ironically, if the defendant were indigent, he’d be entitled to a better lawyer.”

This is true, Grits points out, because Texas rules governing appointment of counsel in capital cases require any court-appointed attorney taking a death penalty case to have significant experience. For the sake of precision, when I say “appointed” I mean that the defendant cannot afford to hire an attorney and so the court appoints one who is reimbursed by the government. The attorney might be a full-time public defender or a private lawyer who has agreed to do some court-appointed work.

In contrast to those who are appointed by the court, private attorneys don’t generally have to do anything beyond pass the bar in order to take whatever work they like. If a tax lawyer’s client wants to retain him to defend a criminal case, the tax lawyer is allowed to do that.

This is not a new problem. As the California Court of Appeal noted back in the 70s:

It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable defender. Often the arraigning judge appoints the public defender only to watch in silent horror as the defendant’s family, having hocked the family jewels, hire a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners … .

People v. Huffman, 71 Cal. App. 3d 63, 72 n.2 (1977).

In reality, the problem here is one of backward-looking rules. A private counsel is not technically allowed to take a case he or she is not prepared to handle but the rules on this only punish after the fact rather than acting as a barrier to taking the case in the first place. I’m referring to the rules of professional conduct, which require the private attorney to “provide competent representation to a client.” In other words, having “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” See ABA Model Rule of Professional Conduct 1.1. The thing is, you can be punished by having your law license suspended or by disbarment if you violate the rules but the rules are not a barrier to entry. You can still take a paying client’s case without proving that you have the competence required by Rule 1.1. It’s only if you mess up and are reported that the rule comes into play—after the damage is done.

Now let’s consider attorneys who want to be court appointed to represent defendants who cannot pay. As an example, in Massachusetts, the Committee for Public Counsel Services (CPCS) requires any attorney to go through their training and be licensed to take court appointed work. In fact, CPCS has different levels of certification; some attorneys are only certified to take lower-level, district court cases whereas some attorneys are certified to take murder cases. Unless you are properly certified, you cannot just walk in to court and take a poor person’s criminal case.

Many states do this to varying degrees, as does the federal system. Especially in jurisdictions where the death penalty exists, there are barriers to taking a court-appointed case from the outset. This seems wholly appropriate. We want to ensure a minimum standard of quality. It is not enough to have a backward-looking rule that punishes those who were not up to the challenge—we need rules that prevent harm from occurring in the first place. That is called consumer protection…and it’s supposed to be the whole point of law licensing.

As far as I know, states don’t place such barriers to entry on private counsel with paying clients. I get the general notion that a person should be free to pay whichever lawyer he wants because it is, after all, his money and his decision. Indeed, I’m generally skeptical of regulation and trying to play “parent” to consumers. However, I acknowledge that there are some fields where consumers are not in the best position to size up the quality of their choice. As one example, regulations on prescription drugs are useful to me because I don’t have the time or expertise to separate the wheat from the chaff. Or look at the medical profession: not all doctors are qualified to perform heart surgery and I am not the best person to evaluate that.

We in the legal profession should employ some sort of barrier to entry that assures private counsel are minimally competent in the field of representation. Anybody who has graduated law school and passed the bar exam knows that this is not enough to prepare you for actual practice. The bar exam didn’t test my ability to argue bail, do a jury trial, represent a client who is facing immigration consequences, use a motion to suppress as a discovery tool, negotiate with prosecutors, maintain good records, deal with family members that want me to disclose confidential information, the list goes on… These are skills I’ve learned through internships and job training.  Nor do I have any doubt that I am woefully unprepared to develop an estate plan or advise someone on their liability under securities law. I could probably learn how to if I put my mind to it and was appropriately mentored…but the fact that I am a licensed attorney, by itself, does not make me qualified to do either.

The shame of a baby lawyer taking a capital case that he is not prepared for is merely a reflection on the larger problem that law licensing needs change. The very reason that we require people to pass the bar in order to practice is so that we can protect consumers. We’re not protecting them one bit, though. The bar exam does not test a person’s ability to competently practice in any particular area of law; it merely assess general knowledge across a wide variety of fields…and that’s not enough. State bar authorities should consider creating a system of specialty licensing. At a minimum, voluntary specialty licensing. This could help train new lawyers to actually practice in fields of interest and serve as a verification (a “seal of approval” if you will) that the particular lawyer is capable to do so. And indeed, a voluntary certification scheme might be enough to push consumers toward those attorneys who have taken the time to be so certified.

Or perhaps we should do as they do in England. There, barristers and solicitors must do pupilages and trainee stints with actual firms. These are basically lengthy apprenticeships that give the new lawyer on-the-job training on how to practice in a particular field or fields of law.

But we need to do something because the current system isn’t protecting consumers as intended. For God’s sake, a client just hired a brand new attorney to keep him from being executed. That shows a level of failure that goes beyond the client’s poor judgment.

-Zachary Cloud

“Stop & Search” in the UK

Quickly passing along a notable video and article from The Guardian. For those of us who followed the NYPD Stop & Frisk cases, this will be of particular interest. It’s a look at the equivalent being used by Metropolitan Police in London.

The video runs around 12:00 min but is worth watching.

Stop and search: police battle for control of London’s streets – video

Accompanying article

-Zachary Cloud

Some Interesting Criminal Procedure Cases Before the Supreme Court This Term

I’ve said it many times before, I’m a federal habeas corpus nut. And so, when the good folks at Habeas Corpus Blog previewed the upcoming SCOTUS term, I found myself a little disappointed that there wasn’t more habeas action at the top court. Burt v. Titlow poses some interesting questions and White v. Woodall has potential but that’s the extent of the cases currently scheduled for oral argument. So I went digging to see what other criminal procedure cases might be on the menu. Here are some cases worth following:

Criminal Procedure

First Amendment Issues

McCullen v. Coakley: Is Massachusetts’ “selective exclusion law” preventing people other than employees or agents of abortion clinics from standing on a public way or sidewalk within 35 feet of the clinic a violation of the First Amendment? [ARGUMENT NOT SCHEDULED YET]

Fourth Amendment Issues

Fernandez v. California: does a defendant have to personally present and objecting to law enforcement ask his co-tenant permission to enter the unit or does a previously stated objection suffice to bar consent? [ORAL ARGUMENT ON NOV 13, 2013]

Navarette v. California: If a law enforcement officer receives an anonymous tip regarding a drunken or reckless driver, is he required to corroborate the dangerous driving before stopping the vehicle? [ARGUMENT NOT SCHEDULED YET]

Fifth Amendment Issues

Kansas v. Cheever: Does it violate a defendant’s Fifth Amendment privilege against self-incrimination when, after the defendant introduces expert testimony that he lacked the required mental state to commit murder, the state rebuts with evidence from a court-ordered mental evaluation? [ARGUED OCT 16, 2013]

Civil Forfeiture / Right to Counsel

Kaley v. United States: If the government freezes an individual’s assets after indictment through an ex-parte restraining order and this prevents the defendant from retaining counsel of choice, do the Fifth and Sixth Amendments require a hearing on the underlying charges in which the defendant may challenge the sought restraining order? [ARGUED OCT 16, 2013]


Paroline v. United States: What nexus between the defendant’s conduct and the victim’s harm must be shown in order for the victim to be entitled to restitution under 18 U.S.C. § 2259? [ARGUMENT NOT SCHEDULED YET]

Substantive Federal Criminal Law

Armed Career Criminal Act / Mens Rea

Rosemond v. United States: Does the offense of aiding and abetting the use of a firearm require intentional facilitation or encouragement as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh circuits or is simple knowledge sufficient, as held by the Sixth, Tenth and DC circuits? [ARGUMENT ON NOV 12, 2013]

United States v. Castleman: Does the defendant’s Tennessee misdemeanor conviction for misdemeanor assault qualify as a misdemeanor crime of domestic violence under 922(g)(9)? [ARUGMENT NOT SCHEDULED YET]

I am particularly interested by McCullen, Fernandez, and Navarette and will be watching them carefully. It’s been a while since I followed any Supreme Court cases on this blog but I think the time is right. Indeed, I may post more on each case as the term progresses and arguments are held on each of them. That’s the docket for now; we’ll see if any new interesting cases are granted cert in the upcoming weeks and months.

-Zachary Cloud

Bronx Defenders Didn’t Invent Holistic Defense—We Did

Okay, I jest a little. I promise this won’t be a Boston v. New York thing. I’m actually a big fan of the way in which Bronx Defenders has integrated representation across criminal, housing, family, and other types of cases. Sometimes, however, I lament the notion that this is a “new” idea.

Before BxD, there was Neighborhood Defender Service of Harlem (“NDS”). Some may quibble over whether NDS fits into the same category as BxD but I think they share an important core: community-oriented defense.

And long before either organization came to be, a group of young ambitious lawyers in Boston created the Roxbury Defenders. A few months ago, Roderick Ireland, the Chief Justice of the Massachusetts Supreme Judicial Court, penned an article fondly reminiscing on his time working at the Roxbury Defenders. Reading his piece, I was struck by many of the features of community-oriented, holistic defense that the organization exhibited at its inception. The attorneys would hold regular know-your-rights meetings and even did a 1-hour radio show each week where local callers could seek answers to basic legal questions. Moreover, Roxbury Defenders recognized and implemented the importance of social services advocacy, drug treatment, prison outreach, and the like.

Things change over time. Roxbury Defenders still exists but now as a unit of the Committee for Public Counsel Services (“CPCS”). And yet the spirit and commitment to holistic defense is still going strong in our organization and I’m proud to be connected (even if indirectly) to that history.

Sometimes reading through the literature on public defense, you can get the impression that mixing civil and criminal legal services, doing community outreach, and going beyond narrow representation is a brand new invention. It truly is a great goal but there’s nothing new about it. It’s retro, baby. It’s retro.

-Zachary Cloud

Is That High Price Attorney Worth It?

Happy Labor Day! I was reflecting on today, laboring, and the like and decided to post some impromptu thoughts. I count myself among the lucky few in the legal profession who can say that I love the type of work that I do. I didn’t go to law school because I wanted to be rich or because I didn’t know what else to do with my life; I went because I wanted to be a trial lawyer. I also went because I wanted to fight for the voiceless, the little guy, the poor yearning to breath free…

I get to do that now and it’s a pure joy. Along the path to this point in my life, I’ve seen some things that have made me seriously question the wisdom of paying a lot for some private attorney—at least in the context of criminal defense. Let me pass along a couple of anecdotes that help explain.

1. Giving Up The Dismissal

During the summer between my second and third years of law school, I worked as a “student practitioner” at a public defender’s office. Essentially, under state law I was allowed to handle my own cases so long as a licensed attorney in the office supervised me.

One of the cases I got was an 18 year old man charged with possessing alcohol under age. This gentleman had no prior involvement with the criminal justice system and was doing well in school. Moreover, I had enough experience observing and negotiating with the prosecutor assigned to this client’s case that I knew it was highly likely we could negotiate a dismissal, perhaps in exchange for some minor community service requirement. This would be an excellent resolution because my client wouldn’t be pleading guilty or giving up any rights and state law would allow him to have the matter immediately expunged (a.k.a. erased). It’d be as if he’d never been arrested.

When I called up the client a few days before the first pre-trial conference, he told me that his parents had hired a private attorney to handle the case. I thanked him for letting me know and wished him well. A few days later, I was in court when his attorney resolved the case in a manner that was far less favorable. The client pleaded no contest, gave up his rights to trial, and essentially was placed on what amounts to unsupervised probation. His parents probably paid close to $1,000 for a worse outcome than I could have gotten their son for free.

2. A Self-Solving Problem

I was talking with someone who told me that members of their family had fallen on hard times. This person went on to explain that a member of their family had been charged with a fairly serious felony and other family members had spent a lot of money to hire an attorney to “take care of” the case. The case stemmed from a domestic violence charge.

I don’t know very many of the details but I have a fairly good feel for what happened. Domestic violence cases typically happen without other witnesses—only the alleged victim and defendant were present and know what happened. Indeed, many times alcohol or other substances consumed prevent anyone from knowing exactly what happened. Many prosecutors hate domestics because it’s incredibly common for the alleged victim to refuse to cooperate.

As a defense attorney, this opens up an easy way to prevail: the alleged victim will approach the defense team actively seeking to help the defendant or will tell a defense investigator that nothing happened. Now there’s a fifth amendment issue to work with because even if the alleged victim is forced to testify, (s)he can claim the privilege against self-incrimination.

How, you ask? Well, either what the witness told the police was a lie (i.e. filed a false police report) or what the witness will testify to creates a risk of perjury because what they will testify to (their story) has changed since we talked to them. Either way, the witness can typically claim the privilege and validly refuse to testify.

The long story writ short is that domestic violence cases often resolve themselves because the person who called the police recants. In other words, it is not the skill of a high-priced, veteran criminal defense lawyer that makes a positive outcome likely—much of the problem is self-solving and unaffected by what type of lawyer is handing the case.

3. The Out-of-Towner

I sat in the jury box of a small courtroom in my hometown recently, doing a little bit of court watching. For context, my hometown is rural and Appalachian and everybody knows each other…or so it often seems.

As I was watching afternoon pre-trial conferences, one of the defendants came in accompanied by a lawyer who was from a city about an hour and a half away. From what I could tell—admittedly, not much—neither the lawyer nor the defendant had major ties to my town. The charge itself was a license suspension case I believe and, presumably, the defendant was just driving through when he was stopped.

Here, I need to make a confession. I have no reason to believe this particular attorney got a less favorable result for his client than someone who was local. I don’t practice in the state, I wasn’t privy to the case’s history, and I didn’t see anything that appeared obviously anti-outsider to me. However, one of the advantages to being local is seeing what the “norm” is. Put differently, you start to see what the judge is likely to do, what the other side will typically offer, what police practices are, and even how a jury might react to certain types of cases. Knowing these things is important when advising the client because clients are expecting you to provide information about what is likely to happen. Indeed, knowing what is likely to happen plays a part of providing competent representation by allowing the client to make informed decisions.

My guess is that this out-of-town attorney probably charged more than anyone local. Could he have done a better job than a local lawyer? I admit that I don’t have a definitive answer here. Maybe he’d see some creative motion than local counsel wouldn’t think of or perhaps his lack of connection to the area would allow him to fight more zealously without fear of being ‘punished’ down the road by an unhappy judge or prosecutor. However, the lack of knowledge surrounding local practice/custom could just as easily prevent him to give good advice. Not to mention the possibility that locals prey upon his ignorance—a possibility that leads down a rabbit hole I don’t care to explore right now.

4. What Does It All Mean?

I chose these preceding three examples because I think each shows the fallacy of “you get what you pay for” when it comes to criminal defense. Any bargain hunter out there knows the value of looking beyond the price tag. Can I find this item at an outlet mall? Can I find it online for less money? Is most of the price tag just because of the designer label? Sometimes we buy things precisely because of who made them…we find a value to having the Coach purse or Armani suit that is independent of the item’s quality. It makes us happy, in part, because it announces to the world that we have enough money to blow on such an item.

I wonder if we do the same thing with lawyers subconsciously? Do we see the veteran attorney with the fancy car and seek his representation because we believe he’s qualitatively better than some other attorney? I mean, he’s probably better at taking your money but does he consistently get better outcomes than other attorneys?

I acknowledge that these are questions I’m still working through but I have come to believe that there are plenty of factors most consumers probably don’t take into account when taking out a second mortgage or cleaning out their child’s college fund just to hire a high-priced attorney. Has the attorney regularly practiced where the client’s case is? Has he consistently achieved better results than other attorneys handling the same types of cases? Has he come up with creative arguments in previous cases? What does his written work product (e.g. briefs, motions) look like? How are his trial skills?

I’d want to know these sorts of things and see for myself. I have no problem with a highly skilled attorney earning his fair share but would be leery of those who charge more merely because of how long they have practiced or who they know. The 20 year prosecutor-turned-defense attorney might just be more interested in getting along with his old pals and the judges than he is in zealous advocacy. The exceptional personal injury lawyer may not practice enough criminal defense to do any better than another attorney who charges less. You get the idea… As my anecdotes demonstrate, the outcome of a criminal case turns on more than just how much money you paid for an attorney. There is a lot at work including how well your attorney knows the law, how well he knows local practice, how clever he is, and so on and so forth. Should you ever find yourself in a situation where you’re considering hiring an attorney, think carefully and critically about the choice. And if you’re assigned an attorney for free such as a public defender, don’t be too quick to dismiss the capabilities of those who represent the 75-90% of defendants and are likely the most experienced people you could get. You might be surprised to find that your public defender is the best attorney money can’t buy.

-Zachary Cloud

File Under “It’s About Time”: SDNY Judge Finds Unconstitutional NYPD’s “Stop & Frisk”

I’m on vacation, spending much of my time in places with no cell phone service and doing a lot of work with my hands. It’s been great. But I’m popping in to post about what has been a long time coming. Today, Judge Scheindlin handed down two opinions in the class action suit against the New York Police Department—she has ruled the NYPD’s policy of stopping and frisking people violates the Equal Protection Clause of the Fourteenth Amendmet because of the practice’s disparate impact on racial minorities.

I’ve previously expressed my dismay that the Stop & Frisk program was being carried and—and especially that it was being praised by city officials. You can find the two opinions Judge Scheindlin issued on the Southern District for New York’s webpage. They’re collectively quite long but nevertheless worth a read. I’ll leave you with one of my favorite quotes:

I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

I love it! I will probably be sitting down in the next few days to write up a post about the continual revelations regarding NSA data collection/inspection and perhaps a post about encryption. Since I learned of the telephony metadata, PRISM, and attendant surveillance programs, I have made it a major hobby to get up to speed on everything related to encryption and I have some observations you might find worthwhile. Until the next post…

-Zachary Cloud