My Articles

This page contains my articles.  In addition to posting various current events and sharing brief thoughts, I strive to provide a regular article of a more in-depth nature.

AUGUST 2012: Does Openly Carrying A Gun Create Reasonable Suspicion of A Crime?

Recently, I’ve come across a few YouTube videos where people who are openly carrying a firearm have encounters with police. See, e.g.herehere, and here. In these videos, the police usually claim that they have to investigate because someone called in saying there’s a guy walking around with a gun. Can that possibly be right?

Many states allow open carry. While a person is generally required to obtain a license in order to conceal a firearm, I do not believe that many states require a similar licensing process to carry a weapon, which is openly exposed to the public. Now, the wisdom of actually exercising this right is questionable but that’s a different topic than the one I want to address. Back to these YouTube videos…from what I can tell, these individuals are all law-abiding gun owners. Here’s how the scenario typically plays out:

  • Individual is walking somewhere out in public
  • Police pull up and stop him
  • Police say they’ve gotten calls that a man was walking around with a gun and they need to investigate
  • Individual asserts that he has a right to openly carry
  • Some arguing goes on about the individual’s rights
  • Eventually police leave after realizing he’s just an antagonist; not a criminal.

And now my question: Is this a legal police stop?

Put differently, when someone calls around 911 and reports that he/she sees a guy walking around with a gun, does that give the police “reasonable suspicion” of a crime sufficient to conduct an investigative detention?

The police’s power to stop a person in order to investigate was explained in Terry v. Ohio, 392 U.S. 1 (1968)Terry and is progeny stand for the proposition that an officer must have reasonable suspicion that a crime has or is about to occur before the officer may detain a person for the purposes of investigation.

That’s all well and good but what exactly is “reasonable suspicion”? How does an officer know if he has it? According to the Court in Terry, an “officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” stopping the individual. Id. at 21. The standard of “reasonable suspicion” is an objective one so we are concerned with whether “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in belief’ that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . .” Id. at 22-23 (citations omitted).

Okay, so how do we apply this to reports that a person is carrying a gun? As it turns out, a number of jurisdictions have already contemplated whether open carry of a weapon gives rise to reasonable suspicion. For example, in the Oregon case of State v. Johnson, 772 P.2d 426 (1989), an officer stopped a frisked a man who was openly carrying a knife in a sheath on his belt. There, the Court of Appeals stated:

[Oregon law] specifically provides that ‘[f]irearms carried openly in belt holsters are not concealed . . . . Like a gun in a holster, a knife carried openly in a sheath on the belt is not ‘concealed.’ Once the officer discovered that the defendant carried his knife openly in a sheath at his waist, he no longer had reasonable suspicion, let alone probable cause, to suspect defendant of wrongdoing. The reason for the officer’s stop of the defendant having dissipated, the subsequent arrest and search were unjustified and therefore illegal.

Id. at 428 (citations omitted, alterations in the original). Similarly, in St. John v. McColley, 653 F. Supp. 2d 1155 (D. N.M. 2009), a man was in a movie theater openly carrying a revolver. There, the federal district court ruled that “Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention.” Id. at 1161.

In coming to this conclusion, the court cited several federal circuit court decisions coming to the same conclusion. For example, in United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000), a man legally carrying a gun at a “crowded celebration” was stopped after someone alerted the police. The Ubiles court held that “the situation was no different than if the informant had told officers ‘that Ubiles possessed a wallet . . . and the authorities had stopped him for that reason.’” St. John, 653 F. Supp. 2d. at 1161 (citing Ubiles). Continuing, the district court cited the Tenth Circuit case United States v. King, 990 F.2d 1552 (10th Cir. 1993). There, police approached a driver and saw a firearm on his thigh. The Tenth Circuit said this alone could not constitute a reasonable suspicion sufficient to conduct an investigative detention. King, 990 F.2d at 1559.

The Pennsylvania Supreme Court has gone even further than these previous cases. In Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997), the court made a point of establishing that police have no duty to investigate allegations that a person is carrying a gun. After holding that “there is no gun exception to the Terry requirement for reasonable suspicion of criminal activity,” the court had this to say:

The Commonwealth takes the radical position that police have a duty to stop and frisk when the receive information from any source that a suspect has a gun. Since it is not illegal to carry a licensed gun in Pennsylvania, it is difficult to see where this shocking idea originates, notwithstanding the Commonwealth’s fanciful and histrionic reference to maniacs who may spray schoolyards with gunfire and assassins of public figures who may otherwise go undetected. . . . In this case, the police acted on an anonymous tip and had no basis for believing that the tip was reliable. They also had no independent reason to believe the suspect may have been involved in criminal activity.

Id. at 657-58.

Did you catch that reference to an anonymous tip? That’s also worth discussion. Even if we set aside the fact that a report of a person openly carrying a gun in a public place is not, in an of itself, an allegation of a crime, there’s still the aspect of the “anonymous tip.”  The Supreme Court has made it clear that anonymous tips are not usually reliable enough by themselves to establish reasonable suspicion. Generally, these occur in the context of a 911 call. Consider Florida v. L.J., 529 U.S. 266 (2000). In L.J., the Court contemplated if a 911 caller’s assertion that the defendant was standing at a bus stop with a gun concealed on his person constituted sufficient reasonable suspicion to conduct a Terry stop. Citing Alabama v. White (a fundamental case on anonymous tips), the Court said: “The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just its tendency to identify a determinate person.” L.J., 529 U.S. at 272.

In other words, a citizen’s assertion that another person is breaking the law needs to be reliable. How could a 911 caller know whether a person was of age to legally carry a weapon or whether that person was a felon in possession…or whether they lacked a requisite license to carry? Surely the caller would have to provide more than “I just saw a guy walking around with a gun!” As I see it, the caller would need to say something like “I know this guy and he’s only 15” or “I know him and he’s on probation for aggravated assault.”

Based on all of this precedent, it seems fairly clear that officers lack reasonable suspicion to stop a man based on reports that he is openly carrying a gun—unless he’s doing so in a state that prohibits such conduct. That’s not to say every single court would agree. There have been a couple coming out on the other side. See, e.g., United States v. Singleton, 2008 WL 2323487 (W.D.N.C. May 29, 2008). And courts may determine that the totality of the circumstances support reasonable suspicion because other factors such as a defendant’s evasive nature must also be considered. But at the end of the day, I just can’t see how a mere report that an individual is openly carrying a gun could possible constitute reasonable suspicion of a crime. In a state where people are allowed to do this, there just is no crime alleged to begin with. Nor would the police have an independent, reliable basis for reasonable suspicion aside from anonymous 911 tips. The law is rather clear on all of this and the police—despite their assertions to the contrary—don’t have any reason to investigate.

That, of course, does not mean the police will follow it.

-Zachary Cloud

MAY 2012: Can Police Copy What’s On Your Phone?

The BBC reports today that the Metropolitan police in London are now going to routinely “extract” data from the phones of arrested suspects. This data will then be stored permanently by the Met police. If you’re like me, you probably had an instantly negative reaction ranging from “that’s an invasion of privacy!” to “I’m glad I live in America where the cops can’t do that!”

Ah, but wait! Are you sure that police in America can’t do that? Say you’re arrested and the police have you in lock-up. Do they need a search warrant to copy the contents of your cell phone?

Here’s the quick answer: “maybe?”

Now, I know you’re wondering, “Maybe? What does this guy mean ‘maybe’?”  Well, an explanation is in order. If you’re arrested, police have the right to “search incident to arrest.” As of today (May 17, 2012), the Supreme Court has not considered the specific question of whether the police may search and/or copy an arrested person’s cell phone without first obtaining a warrant. Some lower courts have and most say that no warrant is needed. See, e.g., United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007).

There are a couple of jurisdictions that have ruled such warrantless cell phone searches unlawful. The best example is the State of Ohio. See State v. Smith, 124 Ohio St. 3d163, 2009-Ohio-6426, at ¶ 29. As a citizen and domiciliary of Ohio, I’m proud to see that my state has rejected the Fifth Circuit’s approach. For those interested in further reading, there are a variety of informative law review articles on the topic. Here’s a recent one: Adam M. Gershowitz, Password Protected? Can A Password Save Your Cell Phone From A Search Incident to Arrest?, 96 Iowa L. Rev. 1125 (2011). For an interesting response to Gershowitz, see Susan W. Brenner, The Fifth Amendment, Cell Phones and Search Incident: A Response to Password Protected, 96 Iowa L. Rev. Bull. 78 (2011).

Ok, ok, but what about copying my phone’s contents? Can they do that? It’s a tougher question to answer than you might think.

There aren’t all that many cases even dealing with officers searching an arrested suspect’s phone, let alone trying to copy what’s on the phone. I’ve only done a cursory search but I’ve found no cases that directly match what the London police are planning on doing. As I see it, the distinction between looking through a phone versus “extracting” its contents is one of search versus seizure. This is a debatable point but let’s come back to that in a little bit.

For now, let’s assume copying a phone’s contents would be a seizure under the Fourth Amendment. It’s fairly clear that, in most jurisdictions, the police will be allowed to look through your phone for evidence of a crime if you’ve been lawfully arrested. Thus, if they find evidence of illegal activity, they may “seize” it under the “plain view” doctrine. So far, no warrant is required. Beyond this point? I don’t see how it could be lawful for the police to copy the contents of your phone without a warrant. In other words, if an officer looked through your phone upon arrest but found nothing suggesting criminal activity then copying would be a violation of the Fourth Amendment.

Now we have to return to this pesky problem: is making a copy of your phone’s data actually a seizure? Once again, the answer is not as easy to learn as you might like. The traditional Supreme Court test asks us to consider whether an owner’s “possessory interest” has been interfered with by law enforcement. See United States v. Jacobson, 466 U.S. 109, 113 (1984). If not, we don’t have a seizure. Well, copying a phone’s contents wouldn’t prevent you from possessing the contents yourself so the logic goes that we’d have no seizure here.

However, as it turns out, courts have actually split on whether copying an electronic device’s contents is a “seizure” under the Fourth Amendment. Orin Kerr has an excellent article directly on-point, in which he suggests that “the most consistent way to apply the Fourth Amendment seizure doctrine to computer data is to hold that electronic copying ordinarily seizes it under the Fourth Amendment.” See Orin Kerr, Fourth Amendment Seizure of Computer Data, 119 Yale L. J. 700, 711 (2010). Kerr actually advances a bit more nuanced of an approach than the quote reveals; he would take into account whether copying occurs before or after viewing the original. Here, he and I disagree but I will refrain from going off on that tangent. The article also gives a robust summary of court cases on point so those seeking more information should check it out. Though most cases actually deal with copying a computer’s contents, I don’t think the computer v. smartphone distinction would change anything.

So let’s return to the opening question. Can the police copy without a warrant what’s on your phone if you’re arrested? The best answer I can give you is that they may be able to do so if they discover evidence of illegal activity on the phone. In most jurisdictions, they’ll be allowed to look through it and so any evidence of criminal activity they find would permit copying under the plain view doctrine. Otherwise, a warrant would seem necessary.

Yet a few caveats are in order. First, there is no controlling Supreme Court precedent that establishes a uniform rule across the country. The upshot: some jurisdictions may not allow the cops to even search whereas some jurisdictions may not consider copying a phone’s contents to be a seizure. Thus, what’s allowed may depend upon where you live. Second, I’m only discussing federal law here. It might well be that state constitution or law would protect an arrested person even though the federal law does not. If you actually need to know whether the police can copy your phone, you should consult a local attorney. I can’t give you legal advice; I can only tell you what the state of the law is.

Ultimately, what the Metropolitan police are about to do in London seems like an affront on privacy to me. And it feels like it’d be completely unconstitutional in America…but it’s really not clear that there’s any Fourth Amendment problem here. Of course, criminal law/procedure in the UK and US differs on some fairly big points (e.g. double jeopardy, sentencing, post-conviction, &c.). Granted, the UK does not have a written constitution enshrining individual liberties nor is there as much acceptance of the quintessentially American value of individualism. Nevertheless, it seems like the concern over the Metropolitan Police’s new policy is not limited to people on this side of the pond; the group Privacy International has condemned the practice as ‘illegal’ and “a possible breach of human rights law.” For what it’s worth, I wouldn’t be surprised if the European Court of Human Rights agrees…which will be fun to watch given the recent tensions between the UK Supreme Court and the ECHR. The policy is new but litigation can’t be far away. We will eventually know what legality of this practice is—both in the UK and hypothetically in the US. It’s just a question of when.

-Zachary Cloud

APRIL 2012: Wherein Kenneth Jost Shows Himself to Be Pretty Ignorant

Kenneth Jost, who authors the blog “Jost On Justice,” has a piece entitled In Trayvon’s Memory, Repeal ‘Stand Your Ground’ Laws. It is a piece that terrifies me.

Note upfront: I’m NOT taking any position on whether Zimmerman has an affirmative defense in the shooting death of Trayvon. I am taking a position on how little Jost seems to know about the criminal justice system and about making persuasive arguments.

First, he opens with references to states that have reacted to “senseless crime[s]” by enacting legislation that is a “lasting legacy to an innocent victim.” This doesn’t have too much to do with the nature of the criminal justice system but I still feel inclined to comment on it. I don’t this find appeal sympathetic or persuasive. Why would a victim need a lasting legacy? In an attempt to right a wrong, you say? But how does legislation do that? The wrong is already done and any restitution that is necessary comes from the prosecution of an individual defendant. Criminal law is at its best when it focuses on making society safer by deterring and rehabilitating. To the extent that legislation might accomplish such a goal then I am not facially opposed to it. Enacting legislation just for the sake of reminding us that someone wronged another at some point seems pretty senseless without any other motivation.

Second, Jost continues to say: “Trayvon Martin, an innocent victim of what is now officially alleged to be a senseless crime . . . .” (emphasis added). Wow!! In less then a sentence, Jost has declared the decedent is a victim, an “innocent” one and proclaims this official because the crime has been “alleged to be” a “senseless one.” Where to begin…

Let’s start with his proclamation that Trayvon was an innocent victim. How does Jost know? I’m 99.99% sure he wasn’t there as a witness so I guess…maybe…no. I’ve got nothing. He’s just relying on whatever the media or the prosecution has put out. I’d give him a pass if the case had already been tried and he had been a juror or heard the testimony presented. Yet, we really know next to nothing. We don’t even have a proper “he said/she said” here. Bottom line: Jost has jumped to a rush judgment about whether Zimmerman has a proper affirmative defense. You’d expect someone with an A.B. from Harvard and J.D. from Georgetown to be a little better at critical thinking and open-mindedness.

I also love how declares that this shooting is “officially alleged” to be a senseless crime. Officially alleged? What does that even mean? I think he’s getting at the fact that there’s now an indictment but if you read the words “officially alleged” even a few times you start to realize how silly this is. It’s a senseless crime because someone said so? If I officially allege that I passed the bar, does that mean I actually did? Do I have to take the bar exam now? [Hint: the answer is ‘yes.’]

If a party to a lawsuit writes something in a complaint or indictment, it is naught but a claim/contention. Its veracity has to be tested in court before we know if its true under the law. It seems a bit foolish to use one party’s mere contentions as the backbone of the assumption that this was clearly a senseless killing.

Third, Jost goes on to suggest that legislatures should rewrite their self-defense laws so that “Trayvon Martin . . . [didn’t] die[] in vain.” See my comments about how Jost rushes to judgment here without any real evidence regarding the propriety of a self-defense claim. We simply don’t know yet if there was any reason to shoot; any justification. There’s not enough evidence and certainly nothing that’s been tested by the rigors of a court operating under evidence law. Crucify Zimmerman in the court of public opinion all you want but don’t recruit legislatures to make more victims rights legislation before we even have a legal determination on whether there’s a victim in this case.

Fourth, Jost spends a few paragraphs saying actually very little about “Stand Your Ground” laws. He ultimately makes the incredibly persuasive observation that “Florida’s law may or may not prove determinative in the case . . . .” Well, gee thanks for this insight. Sarcasm aside, he’s entirely right to point out that the “Stand Your Ground” laws may actually have no real place in this case at all. Indeed, David Kopel has a lengthy post explaining why here. In light of that fact, doesn’t it seem a bit premature to start suggesting legislation in Trayvon’s honor that repeals “Stand Your Ground” when it’s not even apparent that the “Stand Your Ground” law is to blame?

Fifth, Jost has it that the case is in the good hands of the special prosecutor and praises the indictment as “a succinct statement of the evidence supporting the charge . . . .” Really? Have you read the thing? Seems pretty thin to me. And it turns out others in the blawgosphere seem to agree. Scott Greenfield, the author of Simple Justicepoints out several attorneys who have ranged from calling the doc “stunningly weak” to a “piece of crap.” Glad to see I’m not the only one thinking that.

Sixth, Jost wants you to know that “Stand Your Ground” laws have made the public streets more dangerous. Of course, like most of the other things he’s said, he doesn’t really have any first-hand knowledge of this. Rather, he relies on what “law enforcement officials” have claimed. Very persuasive (sarcasm added). Who are these cats? A few officials or a bunch? How do they know this? Is it just from what they’ve seen on the streets? Give me some statistics and methodology of how the regressions were performed. Give me an F score or an R-squared. Or a chi-squared. Give me something more, man! Telling me that some cops have anecdotally found the law makes us less safe is laughable.

The Bottom Line: I’ve never hid the fact that I am pro-defense. I’m nothing if not dedicated to a fair defense. That means I defend you if you’re Black. That means I defend you if you’re White. I don’t rush to judgment; I question everything. And today, I question how much Kenneth Jost actually knows or how carefully he actually thinks. When I was an undergrad at UofC, I learned a valuable lesson: the things we believe most are the ones we need to question the most. This is a lesson Jost still needs to learn.

-Zachary Cloud

MARCH 2012: Observations on the Affordable Care Act Oral Arguments (In 4 Parts)

PART 1

I’m writing this as the first in a series of a few posts detailing my reactions to oral arguments in the Affordable Care Act cases. I am doing this mostly for myself as a way to preserve present observations for future posterity but please come along for the ride if you want!

I don’t have many from today’s session. We only saw 1 hour of argument regarding whether the Tax Anti-Injunction Act bars consideration of the Act until a ‘tax’ is collected for non-compliance.

Some quick thoughts:

• Nothing short of irony that the SG has to argue no tax for T-AIA purposes then turn around argue, ‘yes, tax’ for individual mandate purposes.

• A really fascinating discussion developed during the SG’s time about whether finding that the T-AIA isn’t a jurisdictional bar would allow federal courts to fashion equitable doctrines that would harm the US down the road in other tax-collection situations. Admittedly, it may be something that may only interest those who love Fed Courts issues.

• Justices all seem pretty eager to get to the merits.

• Bob Long did a yeoman’s job in his role as appointed amicus.

• Kennedy may be a crucial vote on the mandate provisions. And I’m genuinely not sure how he’ll come out on this.

Next we get to the juicy stuff that most people will be interested in: is the individual mandate a violation of the Commerce Clause? Before Raich I would have said ‘yes’ but now it’s a hard sell indeed. Not impossible to sell…just tough to sell. I’ll be back with thoughts on day 2 arguments after I’ve listened to them!

Full audio of oral arguments from day 1 here.

SCOTUSblog summarization here.

PART 2

Again, I’m jotting down some of my initial reactions to the second day of oral arguments in the ACA cases. Apologies in advance for typos! Here’s what struck me:

• By and large, no new arguments popped up today. Not that we’d really expect that to happen but I was a little surprised at how everything we heard today has been discussed at length (some might say, ad nauseum) already. Some of that discussion occurred in the lower court cases and some of it outside of the courtoom during press events.

• Kennedy is definitely the key vote on this. I think most Supreme Court followers felt that way going into this … so again, no real surprise. Nevertheless, today made it obvious that the so-called ‘liberal justices’ are going to vote to uphold the law and big federalist justices like Scalia and Thomas will overturn it as being too intrusive on State / Individual rights.

• And on the importance of Kennedy, I think the individual mandate will be found unconstitutional unless he can come up with a  better limiting principle than SG Verrilli has proposed. The SG failed—at least for me—to explain why upholding the mandate wouldn’t set a precedent for letting Congress force individuals into the stream of commerce. The Commerce Clause jurisprudence has never gone that far and I don’t think Kennedy will stand for such a result. He might be able to come up with a legitimate principle that explains why Congress’ power isn’t so broad with a valid individual mandate, vote to uphold the mandate bringing the four liberal justices along, then assign himself the opinion OR he’ll fail, find the scope of Congress power under a valid ACA too broad, and vote to strike it down.

• I was a little surprised at how audibly (I say audibly since I have only heard the audio and did not watch the arguments in person) shaken SG Verrilli was at the beginning of arguments. You could hear his nervousness this morning. Of course, he warmed right up and quickly shook his nerves. Still, such nervousness says something about the epic importance of this case…when a man with as much experience arguing before the Court as Verrilli has gets noticeably shaken up.

• Both the SG and Paul Clement did really well. They hit all their marks. Paul Clement continues to amaze with his appellate advocacy skills. He probably rivals the skills that Chief Justice Roberts used to show when he was an SG arguing before the Court.

• I was actually a little surprised at the liberal justices’ questions. I think they generally could have made strong points for their position. After all, cases like Raich are really strongly in favor of the government here. I’ll note, however, that I do find this case to be distinguishable from pretty much every other commerce clause case we’ve seen so I don’t know that Raich makes this a closed issue or has a particularly strong ‘controlling’ effect on how this case should come out. But, long story short, I think the liberal justices could have more clearly illustrated how stacked the caselaw at least seems to be against the petitioners.

• I’m interested now to hear how the severability arguments tomorrow go. I’m pretty uninterested in the challenges to the Medicaid changes.

That’s what’s on my mind right now. More thoughts after tomorrow’s arguments are up. And of course, SCOTUSblog continues to have excellent coverage of these  cases.

PART 3

I’ve only had a chance to listen to the oral arguments regarding the potential severability of the individual mandate from the rest of the Affordable Care Act. Here’s what I’m left wondering:

• Does it potentially hurt the challengers that they’re pushing for a total invalidation…that is, for the Court to strike down the Act in its entirety? Here’s what I’m getting at: some justices might be reluctant to “throw the baby out with the bathwater” so to speak. If you ask them to take an all or nothing approach they may uphold the entirety of the law. I didn’t get any especially strong indications from Kennedy that this was how he was thinking through the problem but I sort of think that this all-or-nothing approach Paul Clement advances could be detrimental to his position.

• That said, I found the government’s position untenable. Justice Scalia somewhat exaggerated the point but his basic contention has some force: why should the Court have to or even be allowed to go through all 2000+ pages of the Act and systematically determine what stays and what goes? Either Kagan or Sotomayor—I can’t remember which—correctly points out that nothing near that level of work would be required but the philosophical point has at least some force. At the point that the Court has to do more section-by-section analysis it can start to re-write the statute in a sense. And certainly, it violates the basic principle that the Court is only supposed to consider the questions that the parties to the suit present. Thus, it’s not within the Court’s proper place to examine the constitutionality of a section no side argues is unconstitutional.

• There was certainly a feeling that severability might properly turn on how central the individual mandate was to the legislation. Basically, if it is the main portion then all of the law has to go but if it is only portion then the rest of the law can remain intact. An interesting compare/contrast with the Court’s decision in Booker occurred. Booker is a case that struck down aspects of mandatory sentencing under federal sentencing law, making those guidelines discretionary instead (I’m oversimplifying here for the sake of concision).

• I’ve found it interesting to observe how the tone of arguments ahs become more ‘hostile’ or ‘adversarial’ throughout the week. The first day was generally cordial like most oral arguments are. At this point, counsel for both sides have talked over judges and, in the small part of the Medacaid argument I’ve listened to, several of the judges had difficulty hiding their disdain for peitioner’s positions. When Kagan asked Clement about the federal government giving states money, she used a hypothetical where she offered Clement a job for $10 million and asked if he’d really turn that down. When he responded, “it’d depend on where the money was coming from” she had essentially this reaction: really?? You’re actually gonna try to say that? Indeed, her incredulity was palpable and illustrative of the way arguments have grown more contemptuous throughout the week.

That’s pretty much it for now. If I get a chance to listen to the rest of the Medacaid arguments soon, I may post some more thoughts. In a day or two, I’ll probably post some ‘forma’ predictions about what outcome I expect. For now, this will have to do.

PART 4

I’ve had a chance to listen to the entirety of oral arguments in the health care cases now. As always, apologies in advance for typos.

I. MEDICAID ARGUMENTS

There were some telling discussions during the Medicaid arguments. For example, we now have quite clear proof that Scalia will vote to invalidate the individual mandate. During an exchange with SG Verrilli, the SG suggested that “political constraint” (i.e. accountability to the voters) would serve as a check on an unreasonable decision to pull Medicaid funding to states. Scalia had this retort: “I would have thought there was a serious political . . . constraint on the individual mandate, too, but that didn’t work.” Read: “I’d hoped that the ACA wouldn’t pass.”

I was surprised at how spirited the conservatives were regarding the constitutionality of the Medicaid provisions. The key argument against them was that funding was coercive since a state refusing to comply with federal demands could have all of its Medicaid funding revoked. There was a lengthy argument between Justice Breyer and the conservatives regarding whether such a revocation could occur if it were “unreasonable” to do so. Here, I think Breyer’s expertise in administrative law showed up. He’s well-versed in what administrative agencies can do and the general requirement of reasonableness…a requirement that would cut against revoking funding in a coercive way. I reckon what surprised me about the conservatives’ attack on this provision of the ACA is that their arguments seemed reminiscent of what you’d expect a more liberal person to say. They argued that states don’t really have a choice about following federal requirements due to the context of the funding. This is a very environment or “external” type of argument that requires us to assume free-will takes a backseat to the context and outside factors. The kind of argument you don’t often hear conservatives making.

II. HOW “CLEAR” IS IT THAT THE ACT IS (UN)CONSTITUTIONAL?

I also have some overall comments on how this whole series of arguments has been covered. I’ve been annoyed with both conservative and liberal thinkers for their smugness. The broccoli argument is deservedly mocked as is the burial one but the ultimate issue of inactivity / activity is not nearly as ‘insignificant’ as some argue. Nor is it appropriate to respond as the Republican National Committee has (see here) and misconstrue the quality of SG Verrilli’s arguments. Whether you agree or disagree with his position, he did rather well in total. I do agree that his ability to articulate a limiting principle was weak but that is no excuse for doctoring audio or criticizing him.

Here is the truth about what is going on. The supporters of the ACA see cases like Wickard v. Filburn and Gonzales v. Raich as a clear grant of power to regulate health care. They’re not entirely right as I see it. I’ve yet to find a case that really tackles the activity/inactivity distinction head on. Stone compares refusing to hire someone due to race (a violation of the Civil Rights Act of 1964) to refusing to enroll in health insurance. His initial point about the insignificance of calling conduct activity or inactivity is logical enough in the abstract. But of course, telling an employer not to discriminate based on race isn’t really comparable to telling an employer he must maintain a diverse workplace. It comes down to what was labeled “point-of-sale” during the arguments this week. When a person uses emergency room services, they’ve decided to enter commerce. Similarly, when a person applies for a job, the employer is forced to make a hiring decision. That’s the point in time where the “point of sale” occurs. I don’t mean to get too involved with this except to highlight that it’s harder than some suggest to draw perfect correlations between the individual mandate and other laws deemed valid under the Commerce Clause.

There are plenty of similar or close situations but I can find none that quite match what’s going on here. Indeed, the SG’s argument about a limiting principle relied on the uniqueness of the health care system. So, we can play with activity/inactivity distinctions—or lack thereof—all day long and this just goes to show that there isn’t an obvious answer to the constitutional question. If there were, we wouldn’t be able to so thoroughly debate the matter.

This difficulty I discuss also illustrates why the conservative opponents of the ACA have erred in assuming something unprecedented has occurred that violates the Commerce Clause. I have trouble seeing how telling someone they must buy health care is any more troublesome than telling a farmer he can’t grow a little extra wheat for feeding his family. See Wickard. I personally find both especially concerning because they exercise a heavy hand over what we do with our own lives. The justification for regulating both is a sort of utilitarian principle (the needs of the many must prevail over the desires of the individual) based in the empirically-observed aggregate effects that both growing wheat and refusing to buy health care have. Indeed, this utilitarian approach is not different in a philosophical sense from implementing traffic regulations or taxes. I’d prefer to drive as fast as I want and I’d prefer not to surrender my hard-earned money but I have to submit to regulation in both contexts for the good of society. The purest of libertarians take issue with even these regulations but most people will tolerate some utilitarian regulation if the risk of society harm is great or the infringement on the individual is minor. The ACA is a precarious position because many people find the individual infringement significant (economically and intangibly) while also finding the risk of harm (cost increases for others via market shifting) inconsequential. All of that is a long-winded way of saying that this regulation may well be unwanted but is not all that different in degree from what the Court has previously allowed.

III. MY PREDICTION

I’d by no means bet the farm on these predictions. It’s really tough to figure out how Kennedy may go on this. I expect one of two possibilities. The first is that he votes to uphold the mandate but includes some strong language about how the holding is narrow, how Congress has no power to force people into commerce, and perhaps even some language that reads limitations into the ACA. Kennedy has not been shy from getting creative before. As I argued here, I think Kennedy had a lot to do with the new due process considerations announced in Turner v. Rogers…principles that neither party argued for in their briefs or during oral arguments. Similarly, his approach in cases like Boumediene suggests to me that he’s ready to come up with a creative solution that limits the ACA’s reach while upholding it.

Of course, the second option is that he just strikes down the mandate. And this wouldn’t surprise me. Kennedy seemed pretty skeptical about the level of intrusion on individual liberty during oral arguments—a virtue he has repeatedly show he’ll defend. When individual liberty is threatened, we usually see Kennedy standing behind it, which is what probably caused him to split from the other conservatives in the several Gitmo cases. I think that if Kennedy votes to strike down the individual mandate, the rest of the law including the Medicaid provisions will remain intact.

That’s my prediction on the likely outcome for whatever it’s worth. We’ll get to see how wrong or right I am by the end of June.

-Zachary Cloud

DECEMBER 2011: Habeas in the Terrorism Context: A Comparison of UK and US Law

Foolishly, I’m leaving my comfort zone here. I’m rather familiar with habeas in the context of collateral attacks under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). I’ve spent less time familiarizing myself with the use of habeas by detainees and enemy combatants. Fortunately, it’s a nascent field so there’s not as much to know in the first instance. As a caveat, I neither expect nor intend to be exhaustive in this post. Instead, I only seek to bring up the major relevant law then comment on the legal landscape.

Well, now’s as good as any time to ameliorate my disparity of knowledge. If you’re wondering why the sudden interest, it’s because of a shiny new judgment on habeas law from the UK. As the BBC reported yesterday, the Court of Appeal (Civil division) directed “that a writ of habeas corpus be issued[ ]” to test the legality of Yunus Rahmatullah’s detention. See Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor, [2011] EWCA Civ 1540, [54]. The High Court (Administrative division) had refused to issue the writ. See Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor, [2011] EWHC 2008, [34] (Admin). So what’s going on here?

I. BACKGROUND FACTS

The facts of this matter are well-established in the High Court opinion and incorporated into the Court of Appeal’s opinion. The basics are these: Yunus was captured by British forces in 2003 and handed over to American troops as part of a “Memorandum of Understanding.” In 2010, Yunus’ detention was reviewed by the U.S. Detainee Review Board. That board found that Yunus is no longer a security threat. However, he still remains in an American detainee prison – specifically the one in Bagram, Afghanistan.

Yunus’ cousin learned in May 2010 about the detention and filed an application for a writ of habeas corpus in the UK. As far as I have been able to tell, Yunus’ cousin did not petition the D.C. Circuit in the US under 28 U.S.C. § 2241. I bring this up now but table it for some discussion later.

II. THE DIVISIONAL COURT RULING

Laws, LJ, issued a thoughtful opinion refusing to grant the writ. I found his discussion of habeas precedent especially illuminating. He noted that “[t]he common law . . . does not confine the benefit of the writ to British subjects.” [2011] EWHC 2008, [12]. Pay attention to that language; we’ll be coming back to it in a bit. Furthermore, he points out that habeas is not limited to merely remedying unlawful detention but also allows a court to inquire into the legality of the detention. In other words, the writ may be issued in order “to investigate the legality of a detainee’s confinement . . . .” Id. at [13].

Did you catch that? A writ may issue merely to investigate the legality of detention; issuance needn’t be reserved for instances where detention has already been shown unlawful. Wouldn’t it be nice if American habeas law followed this approach? I, for one, would quite like that.

Though Laws, LJ had some insightful words about habeas, he ultimately denied issuance of the writ on the grounds that the United Kingdom lacks sufficient control over Yunus to direct his release / delivery. See id. at [29]. This logic was based on Laws’ notion that “[t]he [Memoranda of Understanding] did not create legally binding rights or obligations; and even if they had, they would have sounded on the international plane only.” Id. at [33].

III. THE RECENT COURT OF APPEAL RULING

On December 14, the Court of Appeal went the other way on the issue of control. The rationale for finding that the UK could exhibit control turns, somewhat oddly, on the “sufficient uncertainty” of the matter. See [2011] EWCA Civ 1540, [33]. The argument goes that because the Memorandum of Understanding allows the UK to demand production of the detainees it hands over to the US, the government “is . . . entitled either to demand [Yunus’] release or to demand his return to UK custody . . . .” Id. at [34].

The reasons that the UK would be entitled to demand Yunus be delivered turns on the Geneva Convention. Both the Divisional Court and Court of Appeal discuss briefly the Geneva Convention and how Yunus’ continued detention probably violates it. As a result, the Court of Appeal noted that “there is a substantial case for saying that the UK Government is under an international legal obligation to demand the return of [Yunus], and the US Government is bound to accede to such a request.” Id. at [35].

And so, because the court found that the UK government could demand production of Yunus, that was sufficient to require them to make such an attempt. As the BBC article I referenced at the beginning of this post notes, this decision will probably be appealed to the United Kingdom Supreme Court.

IV. HABEAS LAW & DETAINEES IN AMERICA

I find so much about these two opinions fascinating but I think it’s worthwhile to focus on the detainee aspect. The “war on terror” has caused habeas to be employed in an original way. In America, the most common use of habeas corpus is by prisoners attempting to attack their convictions. We call these petitions “collateral attacks.” As I noted at the outset of this post, collateral attacks are governed by AEDPA, which is a procedural nightmare. For better or worse I’m developing a healthy understanding of the area.

Things change in the terrorism context. This isn’t surprising – it wasn’t until after 9/11 that the United States began indefinitely holding “enemy combatants” at Gitmo and abroad. Accordingly, there has only been a decade of development in this legal area.

For detainees challenging their detention through the use of US habeas law, the problem has always been one of jurisdiction. How do you even get in the door when the US Government has placed you somewhere abroad that (arguably) cannot be touched by a domestic court? This problem arose in earnest with Rasul v. Bush, 542 U.S. 466 (2004) and reached a plateau in Boumediene v. Bush, 553 U.S. 723 (2008). In between, two other notable cases also came along: Hamdi v. Rumsfeld, 542 U.S. 507 (2004) and Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

I don’t think it’d be useful to go through these decisions in intricate detail. However, a swift summary of this line might be useful. In Rasul, the Court found that the federal courts had jurisdiction under § 2241 to hear habeas petitions even if the petitioners were in Gitmo. In doing this, the Court rejected the notion that Johnson v. Eisentrager controlled. After this came Hamdi. It’s a case that has plenty of interesting things to say but that I mention for only one point: US citizens have a due process right to “meaningful opportunity” to contest his or her detention. This right naturally trumps any Congressional attempt to strip the judiciary of its habeas jurisdiction. After Hamdi, Congress passed the Detainee Treatment Act of 2005, which the Court picked away at in Hamdan.

Then we get to Boumediene, which is still the controlling law. And the Court was busy here. It once again held that Congress had unconstitutionally stripped the federal courts of their jurisdiction (through the 2005 DTA). But the Court went further, explicitly stating that Gitmo detainees have a right to petition under habeas. Thus, the Court flatly rejected the notion that Guantanamo Bay was an “untouchable” area outside of federal court jurisdiction. Lastly, the Court rejected the notion that the Combatant Status Review Tribunals (“CSRT”) established by the Department of Defense could act as a sufficient substitute of habeas to avoid a Suspension Clause problem.

Here, I’ll digress briefly. What do I mean by a Suspension Clause problem? Well, the right to habeas in the US has never been clearly defined from a constitutional standpoint. It is explicitly mentioned in Article I, § 9 of the Constitution. Clause 2 states that Congress is not allowed to suspend the writ of habeas corpus except in cases of rebellion or invasion. Does this presume habeas’ existence? If so, what precisely does it entail? As Lord Blackstone tells us, there were many variants of habeas corpus at common law. The point I seek to make is that it has never been entirely clear—nor is it now—what precisely the Constitution mandates. Nor is it clear that it would be unlawful to do away with habeas entirely. The Suspension Clause, after all, only speaks to a suspension and not to a full dismantling. The bottom line: some things may or may not be sufficient “alternatives” to habeas corpus. Although the CSRTs didn’t cut it, other mechanisms have (e.g. the REAL ID act).

Ok, so what do we know? We know that a detainee can petition for his release through habeas corpus under § 2241. That’s about it, though. It’s far from clear that a non-citizen detainee would ever be able to get any further. Why, you ask? Because we see, at this juncture, a departure from how UK and US habeas law operates. As I pointed out earlier, a British court may issue a writ of habeas merely to investigate the legality of detention. In the US, however, the writ only issues after it has already been determined that detention is indeed unlawful. This raises the huge hurdle that any non-citizen detainee must overcome: proving his detention is unlawful. There’s very little reason to suggest that such detainees have constitutional rights. Without such rights, there is no real leg for a claimant to stand on. I would expect the argument to focus on a violation of Geneva Convention rights but I haven’t been following the detainee litigation closely enough to know.

V. HABEAS LAW & DETAINEES IN BRITAIN

Are you starting to see the challenges that a prisoner faces by filing in district court? It strikes me that those who have access to an alternative route (here, habeas under UK law) are probably going to take that route instead of the US path.

The UK, of course, has no base like Gitmo nor—to my knowledge—any equivalent practice of indefinitely detaining prisoners. I think the closest they’ve come is handing over captured persons to the US. Even if the UK wanted to detain indefinitely, I believe that the European Convention on Human Rights (and likely the Geneva Convention) would prevent such detainment. The result is that habeas law (or an alternative mechanism) hasn’t developed in quite the same in Britain. And remember, habeas in the UK remains (to my knowledge) entirely common-law. Thus, we know from the outset that its contours will be less well-defined than if we were working with a statutory regime.

Yunus’ case (which I discussed above) somewhat highlights the path that British law hastaken. Before his case, there was Abbasi and al-Rawi.

In R (Abbasi) and Anor v Secretary of State for Foreign and Commonwealth Affairs & Anor, [2002] EWCA Civ 1598, the mother of a British national detained at Gitmo brought an action to compel the Foreign Office to take some sort of action on her son’s behalf. The Court of Appeal swiftly refused, noting that there was no legal duty to take diplomatic action. See id. at [107]. It’s worth noting that Abbasi had also filed a petition for habeas corpus in the US. The court’s opinion also has a discussion of the American legal development on detainees up to that point in time. See [9]-[21].

Now to al-Rawi. This is a case that is still being litigated in some respects. But we’ll be focusing on the Court of Appeal decision in R (al-Rawi) & Ors v Secretary of State for Foreign and Commonwealth Affairs & Anor, [2006] EWCA Civ 1279.There, the Court of Appeal considered essentially the same prayer for relief under new arguments. The results were the same, however. See id. at [144].

Yunus Rahmatullah’s case breaks from these prior two cases. Of course, there are excellent reasons why it does. First, there is an argument in Yunus’ case that the UK Government still has ability to exercise control over him. The Court of Appeal says yes, though the Divisional court has said no. In Abbasi and al-Rawi, there was no such “control.” Moreover, Yunus’ cousin sought a writ of habeas corpus whereas neither Abbasi nor al-Rawi did. So, while the Court of Appeal takes a new direction, it’s far from clear that this is a “break” in precedent. And moreover, it’s far from clear that this will be the end of the matter. The UK has indicated its plan to appeal to the UK Supreme Court so things may change yet again.

VI. SOME FINAL THOUGHTS

The intersection of terrorism and habeas is uncharted territory. As the Rasul to Boumediene line in US law shows, indefinite detention of enemy combatants has tested where the limits of habeas are located. Is there jurisdiction over non-citizens? If so, is it geographic or is it more broad? Even if there is jurisdiction, what constitutes unlawful / illegal detention that could be remedied by the Great Writ?

The UK law also shows struggle with jurisdiction – but in a different way. In Yunus’ case, both the Divisional court and Court of Appeal cited older cases (one from the late 19th century and one from the early 20th century) dealing with issues of “control” over the prisoner. There was no suggestion that Yunus’ lack of British nationality and his custody in a foreign country would defeat jurisdiction. That is, the mere fact that British authorities had captured Yunus was enough to make them answerable for the legality of his detention. However, jurisdictional issues creep up with respect to the fact that the UK authorities do not clearly have custody currently.

What a fascinating landscape. The issue of control was never a problem for detainees seeking habeas in America because it’s so patently obvious that the US has control. The problem was how far a court’s authority could extend. Could a court in DC command authorities on leased land in Cuba to do something? The answer, as we know from Boumediene, was ultimately yes. However, what’s noteworthy is that it was a difficult question to answer. Indeed, it led to a 5 to 4 split in the Supreme Court. But this same problem was of little moment to British courts. Why?

Perhaps there are several very defensible answers. First of all, we of course must recognize that habeas in the US and UK have differed in some respects for a while. In the UK, the writ still maintains its place as a proper common law writ that lacks an intricately defined structure. There is no complicated regime of legislation that governs when habeas may be issued. Accordingly, judges are less bound up in considerations of what limits have been placed on them by a political body who wrote the law.

Furthermore, the UK does not have separate “federal” and “state” systems. This is important not because detainees are a matter for the states (it is, indeed, a federal matter). Rather, it recognizes that habeas in America has developed in the context of “federalism” concerns about the reach of federal power. Indeed, the Constitution lists rather explicitly what each political branch can do and in theory (though arguably less true in practice) the federal government does not have “general police powers” akin to what the states have. The result is less freedom to craft the law.

Finally, there is a pragmatic explanation for why UK habeas law is untroubled by the geographical jurisdiction question. Telling the UK government to produce a prisoner does not amount to telling an active military entity how to do its job. In other words, issuing a writ in the British system does not create the same power struggle between judiciary and executive as we have seen in the US. The cases up to and through Boumediene showed clear examples of a power struggle between the Executive branch (don’t tell us how to fight this war) and the Judiciary (don’t tell try to limit our authority by stripping jurisdiction). We can see that asking the UK Secretary for Foreign affairs to get a prison certainly creates a less immediate tension between governing authorities.

That’s what makes the Court of Appeal’s decision in Rahmatullah so fun for a habeas fan like me. We can only expect as time goes on and more habeas appeals are brought that we’ll start to see habeas become more fleshed out in UK law. I for one can’t wait to see how it develops and in what ways it tracks or diverges from American law.

-Zachary Cloud

DECEMBER 2011: Why I Want To Be A Criminal Defense Attorney

It happened again. Tonight, actually. I had someone ask me why I wanted to work for criminals. It’s not the first time I’ve had to explain my reasoning but it is the first time I have been motivated to dedicate a blog post to the matter. Without further ado, some informal thoughts on why I want to be a criminal defense attorney.

I. THE ADVERSARY SYSTEM

At the outset, you should know that I am only really interested in criminal law. Other types of law are mostly uninteresting to me (though I admit a strange, nerdy love of property law).

Now, to understand where I come from, you need to understand a little bit about the American justice system. Like our brethren across the pond, we have an adversarial justice system. What this means is that legal matters are litigated by putting party A against party B and letting a jury of lay people decide if the complaining party proved its case. On the criminal side, that means that the government has to prove beyond a reasonable doubt that the accused actually committed the crime. The defendant doesn’t have to prove a thing…(s)he certainly doesn’t have to prove innocence.

Why?

Well think of the consequences of guilt. A person found guilty is branded a convict, and typically deprived of his/her liberty. Those are the direct consequences but there are collateral ones too. A father put in jail won’t be at home to support his family. He’ll lose any job he had and it’ll be all the more difficult to get one when he returns to society. People will brand him a convict and his reputation will forever be affected. In short, there is a lot at stake. Doesn’t it make sense to put heavy proof requirements on the government before subjecting an accused to such punishments?

I think it does. I think that when we give the State power to ruin someone’s life and reputation, we should make them earn that power. I think we should keep the government honest. You wanna convict somebody for a crime, you gotta earn that conviction.

This line of thinking seems only natural in other aspects of life, doesn’t it? Consider politics. When a politician runs un-opposed, doesn’t it feel wrong? We want someone to oppose them. After all, a victory in a game without an opponent is hollow.

So let’s extend the thinking. Remember that saying “pick on someone your own size”? That too matters in the criminal system. Imagine a system where you’re allowed to defend yourself but only nominally. You’re given far too little money to actually mount a successful defense. Is this any better than being denied a defense entirely? It’s akin to an adult beating up a five year old. It’s a patently unfair fight. How could you expect the five year old to win? You can’t. So what’s the significance of the fight in the first place?

My point to all of this is that a defense attorney has not only a proper but also an important role in the American justice system. If you take away the defense attorney, you make the process of convicting someone hollow. I, for one, would like to know that when a person goes to jail it’s not because of a flawed system but because he actually committed the crime.

II. BUT HOW CAN YOU DEFEND THE GUILTY??

Truthfully, most people acknowledge what I have stated above. They realize that a meaningful justice system allows both parties a fair fight. But it doesn’t matter to them. After all, I just said it takes both sides so why not work for the prosecution? They don’t understand how I could represent someone I knew to be guilty. Systemic concerns surely aren’t applicable any more right? We’re no longer faced with the concern of wrongful conviction, so how can I do it?

Where to begin…

First of all, if there’s going to be a determination of guilt, would you rather one defense attorney do it or twelve jurors? Maybe I learn in the course of representing my client that he’s guilty. Wouldn’t you rather the jury be the final voice on that, not me? I don’t actually think most people want to see a system where an attorney can abandon his or her client upon learning the status of the client’s guilt. And do note, I won’t know up front if my client is guilty. I’d never take the police’s word for it because of course they think he’s guilty. No, my investigation team will do an independent investigation. As a result, it may be several months into the representation before I would know that a client is guilty. You’d really support the idea of abandoning a client halfway through the representation?

Second, representing a client constitutes so much more than just making a guilt or innocence determination. Plenty of defense attorneys negotiate plea deals for their clients each business day. That’s right, a defense attorney is advising his or her client to plead guilty. We recognize that many cases will lose at trial because evidence of guilt is very strong. From this point, our job turns to ensuring that our client receives a fair sentence. This piece of the puzzle is often overlooked by non-lawyers but it’s a huge piece to us in the profession. Even the guilty deserve sentences that are just and fit the crime.

Third, my representation of a guilty defendant does not constitute an endorsement of his behavior or a desire to keep criminals on the street. This particular concept seems especially hard for some people to grasp but I don’t know why. We get this concept in other aspects of American life. “I don’t agree with what you’re saying but I’ll die defending your right to say it” comes to mind. I don’t have to like my clients in order to stand up for their rights to have a fair trial and/or receive a fair punishment.

Fourth, a refusal to defend the guilty connotes a belief in your own righteousness. It connotes the belief that you are better than the man you are asked to defend. I have committed no crime but that does not mean I am free from sin. No man is. I am no better than the defendant I represent though our sins may differ in nature and severity. It is not my place to judge. Judgment is the Lord’s alone.

Fifth, most criminals are not inherently evil. Most are fallible humans who make mistakes. Often times, these mistakes are the result of poverty, addiction, and mental health issues. Who is looking out for these people? The prosecutor trying to put them in prison? No. On the contrary, it is a defendant’s attorney who is in the best position to assist in getting the needed help. The holistic approach to defense is one I believe strongly in. If we as defense attorneys can help address the problems our clients have at the individual level, we can reduce crime on an overall level.

Sixth, because I want the opportunity to protect the innocent as well. This particular point goes to those who say “well sure somebody needs to defend criminal defendants but why you?” To start, we can see that it’s a dubious logic to say, “let someone else do it.” Either you have to turn around to that guy and ask him why he’s representing criminal suspects or you have to believe that some people are less morally blameworthy for representing the guilty. Both approaches are wholly unsupportable.

So why do I pick the defense side? Because the innocent clients make it all worthwhile. And because the government doesn’t need any more help. It has plenty of money and legal mechanisms in its favor. The criminal case is almost always a David v. Goliath story and I like the underdog. Even farther still, I feel uncomfortable with the idea of actively trying to harm someone. The prosecution has to bring a case with the intent to harm a defendant (generally through imprisonment). I would rather be responsible for putting a guilty man on the streets than sending an innocent man to jail or giving a guilty man an unjust prison sentence. I can live with doing the first, I can’t with doing the second.

III. I GET ALL THAT, BUT ISN’T THE PAY TERRIBLE???

Yes. Well, compared to other legal fields it certainly is. For example, in Massachusetts, the rate for defending most matters that you’d bill to CPCS is $50/hour. Not very much. Of course, in private practice, you can charge whatever the market (and the bar association) will let you get away with but most criminals are not able to afford an attorney. In fact, 75%-90% of criminal suspects are indigent and require a public defender / appointed counsel.

Compare this hourly rate with what a first-year associate at a firm like DLA Piper would make. With a starting salary of $160,000 and a yearly billable hour target of somewhere a little north of 2,000 hours, that puts us right around $80/hour.

Now, working for the district attorney prosecuting cases is also low-paying. It’s generally comparable to defense work. Bottom line: you don’t get into criminal law to make money, period.

But what it lacks in monetary value it makes up for in both importance and excitement. Criminal law, unlike corporate law, is never boring. Nor is it ever low-risk. You have an individual’s life in your hands. Make a mistake and you could ruin it. I find that importance and that responsibility thrilling. It’s what got me interested and has held my attention. One thing I refuse to do is a job that bores me. I have the great fortune of knowing what type of work I love and I wouldn’t trade it for the corporate world, even if I was offered a $1,000/hour salary.

IV. CONCLUSION

It’d be rare to find a criminal defense attorney who wants to encourage criminal behavior. The vast majority of criminal defense attorneys believe in the concept “innocent until proven guilty” and have dedicated their careers to protecting the notion. The State has enormous power to ruin a person’s life. But if it wins its case, it should be done “fair and square.” Let a jury of twelve peers decide and make sure the defendant gets a meaningful defense before that decision is rendered.

Moreover, most criminal defense attorneys realize that the status of being a “criminal” or being “guilty” is not black and white. Plenty of guilty defendants receive unjust sentences. Plenty of guilty defendants need attention such as drug treatment. The job of being a successful advocate is not only about trying to save the innocent, it’s also about ensuring the guilty are treated fairly.

I believe in all of this. I believe in holding the system accountable. I believe that most defendants’ status as innocent or guilty is an oversimplification. I believe that working as a defense attorney offers a lot of opportunity to help get treatment to those who need it. And I believe that it’s much easier to sleep at night knowing that I did no harm. We live in a system that claims punishment is about rehabilitation and deterrence when it’s actually about retribution and retaliation. Well I don’t believe in retaliation, I believe in turning the other cheek. And I can’t bring myself to work for the side that seeks to retaliate. I don’t have the stomach for it or the belief system to support it. That’s why I want to be a criminal defense attorney.

-Zachary Cloud

NOVEMBER 2011: Scotland Gets Rid of Double Jeopardy

I recently pointed out a devolution case from the UK Supreme Court dealing with a criminal suspect’s right to waive counsel in Scotland. Well, the ‘fun’ is not over yet…

As the BBC reports here, Scotland has done away with the concept of double jeopardy. According to the article, the Double Jeopardy (Scotland) Act was passed in March and is designed to allow acquitted criminal defendants to be re-tried if the original verdict was “fundamentally flawed.”

The Act has various provisions that allow for re-trial, including but not limited to “tainted acquittals,” instances where “[a]dmissions . . . become known after acquittal,” and situations where new evidence is garnered. Two things immediately strike me about the Act. First, there will almost surely be a challenge to it based on the European Convention on Human Rights (ECHR), which will make its way to the UK Supreme Court. Now, I am not nearly familiar enough with the particulars of the ECHR to make any comment on the substantive merits of such a challenge.

Second, and more to the point, this act would seem to toss aside the basic premise of res judicata. It is a fundamental principle that things should not be fully litigated more than once.  After a court has handed down a final judgment in a matter, that matter should be foreclosed from further adjudication. Nor is this unique to criminal law – it is in full force with civil litigation as well.

Ah, but what about a defendant seeking a new trial, you ask? You might point to the US example of a prisoner collaterally attacking his conviction under AEDPA with every hope that he can have a new trial. Doesn’t such a process harm my argument?

The answer will depend upon how you balance the societal importance of imprisoning criminals against the individual interest in liberty. If you believe that it is better to let ninety-nine guilty men go free than imprison one innocent man then I don’t think there is any problem with foreclosing re-trial to the prosecutor but leaving it open to the defendant. The logic is simple enough: if a jury found a man innocent, we’ll take their word on it. If a jury found a man guilty, we’ll leave that man with options for showing said incarceration was unjust. As you can see, the focus is on sanctifying personal freedom.

On the other hand…

If the concern is about society safety and individual freedom is less important, then I suppose what Scotland is doing is perfectly acceptable. If our concern centers not on liberty but on how much danger a man truly poses to society, then why shouldn’t both sides be allowed re-trial? Why should an adversarial system get in the way of truth?

All of this is to say that the correctness or incorrectness of Scotland’s new legislation ultimately turns on a very philosophical question. For me, and I suspect for many others as well, the answer is that Scotland has passed legislation that is an affront to human rights. Time will tell if the courts agree.

-Zachary Cloud

OCTOBER 2011: “Is the Declaration of Independence illegal?”

The title of this post comes from a fun BBC Article (see here) covering an event in Philadelphia held by the Temple American Inn of Court. America has Inns of Court? I know, I was confused too. I’ve heard rumors about the existence of these American ‘Inns of Court’ before but until now I secretly suspected they didn’t actually exist. Of course, the mere fact that they exist does not make them meaningful. At any rate, the event Temple held is a cool idea. I recommend reading the article and watching the video. That said, the answer to the question debated is quite easy to derive. It certainly requires no lengthy pondering to ascertain.

To the extent that writing such a declaration of independence may have been seditious or treasonous, one can say quite confidently it was illegal for the colonists to author it. Of course.

But doesn’t that miss the point by quite a bit? This is, after all, not about colonists’ right to speak out freely but rather their actual ability to declare themselves a separate sovereign. And that is neither illegal nor legal.

Yes, there’s a difference between “not legal” and “illegal.” For an act or omission to be illegal it must contravene law. To murder is illegal because there is law saying I am not allowed to do as such. Its illegality does not stem from the absence of authorization but from the presence of prohibition. On the other hand, for something to be “not legal,” is only to imply that there is not explicit legal authority to support whatever that ‘something’ may be.

Now, I’m not a legal historian but I would wager that there was no common law or act of parliament expressly prohibiting subjects of the crown from claiming themselves a new sovereign. Rather, it’s one of those things that seems to go without saying. Like the barristers argued at the Temple event in Philly, the US’ reaction to the civil war nicely makes the point. It is no more conceivable that the colonists had an ability to declare themselves sovereign than that the Confederacy had an ability to do so a century later. All of this is to say that there is no legal authority that supports such a declaration. No code, no common law, no statute…nothing can be cited to support the position that separation is a legal action.

So was it illegal to declare sovereignty then? No. Is it now? No. Does that mean it was valid to do so? No. It seems a difficult question for political philosophers but an entirely unproblematic one for the law.

All of that being said, I recognize the debate wasn’t meant to be taken seriously. Nor do I want to discourage the effort – I very much like the idea of getting American lawyers and British barristers together to debate legal questions. I’d merely submit that next time around, Temple Inn should come up with a more debatable question.

-Zachary Cloud

OCTOBER 2011: On Rare Forms of Federal Habeas And A Hollow Victory For Rhode Island

Those who know me are aware that I’m a devoted student of federal habeas corpus, codified in 28 U.S.C § 2241 et seq. Something about collateral attacks fascinate me. But there’s a much rarer form of habeas than the typical § 2254 action we all know and love (or hate, if you’re big on federalism). That form is the writ of habeas corpus ad prosequendum. It’s codified at 28 U.S.C. § 2241(c)(5). Unlike the typical habeas petition filed after a prisoner’s judgment of sentence becomes final, these are filed before proceedings have even begun. For students of latin, the writ’s name says it all: it’s designed to facilitate prosecution.  And indeed, the subsection bears this out: “(c) The writ of habeas corpus shall not extend to a prisoner unless— (5) It is necessary to bring him into court or for trial.” So this provision is available but it’s, in relative terms, rarely used.

So why do I bring this up? What am I getting at?

Ah, I’m glad you asked. There’s been some stirring in the blawgosphere over a recent First Circuit opinion about what can only be seen as a David v. Goliath story. The original opinion can be found here.  However, it’s so ghastly typeset (by using Courier and underlining citations) that I felt it my duty to re-typset a better version for you, which can be found here. The opinion is quite informative but my explanation that follows may be a little less intimidating for the uninitiated.

Defendant-Petitioner Jason Pleau (“Defendant”) is accused of armed robbery and murder at a Rhode Island gas station. He is currently in a Rhode Island prison serving an eighteen-year sentence and has agreed to plead guilty to state charges relating to this robbery/murder for a LWOP sentence.

But the U.S. Attorneys want him too. They would like to charge him with:

  1. Robbery affecting interstate commerce. See 18 U.S.C. § 1951(a).
  2. Conspiracy to commit robbery affecting interstate commerce.
  3. Possessing, using, carrying, and discharging a firearm in relation to a crime of violence. See 18 U.S.C. §§ 924(c)(1)(A), (j)(1).

It is possible that Defendant could receive the death penalty if convicted of these crimes. Yet, to prosecute him on these charges (which stem from the same state charges to which he has agreed to plead guilty), they need to get him into federal court…and that’s a problem since he’s in a Rhode Island prison. Can they do it?

Yup, there’s an Act for that. So in theory, yes.

The Interstate Agreement on Detainers (IAD) deals with just such problems. Codified in 18 U.S.C. App. § 2, the IAD allows for authorities to request custody of an inmate from the jurisdiction said inmate is already incarcerated in. Requesting a prisoner under the IAD is typically naught but a formality. In other words, there’s no need to look back to that ad prosequendum writ; the IAD will do nicely.

But will it? We all thought it would. However, producing the prisoner is not mandatory under the IAD. Indeed, “there shall be a period of thirty days . . . [wherein] the Governor of the sending State” can refuse to honor the request. 18 U.S.C. App. § 2, art. IV(a).

And that’s just what Rhode Island’s governor did here. In a move that everyone seems to agree is of first impression, the governor refused because of Rhode Island’s “longstanding policy” against the death penalty. Handing Defendant over to the feds would open him up to that punishment – and why else would they want him considering he’ll already be LWOPing it up in RI?

Not to be deterred, the US Attorney’s office filed a § 2241(c)(5) petition in federal district court, which Defendant promptly opposed. The district court ruled that Defendant lacked standing and granted the writ. Then the governor stepped in and helped out. On appeal, he was an amicus arguing that the effectiveness of the § 2241(c)(5) petition was nullified by the peremptory IAD denial…and the First Circuit agreed! In a split panel, the majority held that:

[O]nce the federal government has elected to seek custody of a state prisoner under the IAD, it is bound by that decision. Any subsequent ad prosequendum writ is to be considered a written request for temporary custody under the IAD and, as such, subject to all of the strictures of the IAD, including the governor’s right of refusal.

It seems like a win for the little guy, right? Like David has beaten Goliath? Well I’m not sure that’s at all right. Note carefully what the First Circuit says. Ifthe federal prosecutor files an IAD request first, any subsequent § 2241(c)(5) request will be considered naught but a further written request for custody under the IAD regime. But, the court readily acknowledges that “[t]he federal government is not required to seek custody under the IAD; it may elect to seek custody by means of a habeas writ. In that case, the Supremacy Clause requires states to conform to the habeas writ.”

Right. What we have then is an incredibly narrow holding not likely to repeat itself…like ever. AUSAs, in the First Circuit at least, won’t bother going through the IAD anymore. They’ll just go straight to the ad prosequendum petition in the first instance. Why not? What sense would it make to put yourself at risk of being rejected when you can guarantee compliance? Thus, David beats Goliath but it’s a Pyrrhic victory.

Of course, it’s not clear that the battle is over. I suspect that the First Circuit will rehear the case en banc and might well reverse the panel ruling. Of course, that might not even be the end. It could potentially end up at the Supreme Court…and what an interesting case that’dbe. The typical proponents of States’ rights are the same Justices who don’t like preventing states from carrying out the death penalty. When the tables are turned, could we expect someone like Justice Kennedy or Thomas to stay true to their pro-states bent and side with RI? Or would it end up being a repeat of Gonzales v. Raich, 545 U.S. 1 (2005)?

I certainly have no crystal ball. I can only see what’s in front of me but what I see is a hollow victory for Rhode Island and a rare form of habeas that’s about to become a lot less rare.

-Zachary Cloud

SEPTEMBER 2011: First Thoughts on Fighting Gangs in Civil Court

I noticed recently that the suburb of Cicero is attempting to “use lawsuits to combat street gangs that engage in criminal activities.” I’m struck by three thoughts: (1) how?? (2) what a bad idea, and (3) prosecutors must be getting tired of that “beyond a reasonable doubt” standard.

The original Chicago Tribune article is here. Unfortunately, it doesn’t give very many details as to how this new program works. Apparently Cook County has put into place some sort of program where a city can sue alleged gang members for monetary damages and, presumably, obtain injunctions. In fact the article actually says “one thing a judge could do, for example, is order an individual not to be in a gang. ‘If they violate the court order, they may be subject to contempt of court,’ Pechous told the board.” This seems laughable to me and, I suspect, most other people. If threat of imprisonment under the criminal system doesn’t deter people from joining gangs, how could the civil system even possibly be an effective deterrent? As a quick sidenote, programs like this one have been in existence for some time…and apparently they’re nothing new to Cicero. For a solid background and discussion of this, see Stephanie Smith, Comment, Civil Banishment of Gang Members: Circumventing Criminal Due Process Requirements?, 67 U. Chi. L. Rev. 1461 (2000).

Yet there’s a cynical side of me that worries nonetheless. There are several problem. First, the burden of proof in civil matters is significantly lower. One needs only find that a plaintiff has made its case seem more probable than not. Mathematically speaking that’s p > .5  Although there has been significant legal scholarship about the paradoxes of expressing burdens of proof in terms of statistical probabilities (there are many paradoxes and logic traps that the law conveniently sweeps under the rug). This lower burden means it takes less evidence to find a person ‘liable’ for what they’re accused of doing. In other words, claims that couldn’t be proved by a prosecutor who is held to the “beyond a reasonable doubt” standard could be won in civil court potentially. In fact, the O.J. Simpson case makes this point nicely. He was acquitted in the criminal trial but found liable in the civil trial.

Second, the 6th amend. right to counsel only applies to criminal matters. As the Supreme Court’s very recent decision in Turner v. Rogers, 564 U.S. ____, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011), reinforces a defendant facing civil liability does not have a constitutional right to appointed counsel. Thus, if a suit is filed against a person allegedly involved in gang activity, not only will it be easier to adjudge him/her liable but (s)he won’t have a guaranteed right to an attorney who could defend him/her. This compounds the likelihood that the city will win most of its civil cases.

Third, when it does win such cases, the monetary options may likely have no meaningful effect but the contempt of court options might. As Turner v. Rogerssupra, also counsels, civil contempt of court is a unique beast. Because there is an idea that the defendant “holds the keys to his release,” imprisonment can be indefinite. The “keys” here are the actions necessary to comply with the court order. Many times that’s money. Most gang members don’t have much money– that’s why they joined a gang in the first place. If a judgment is entered against a poor person how will they pay? If they don’t, do they fact the possibility of being held indefinitely until they can comply? If they’re in jail, is there even the slightest chance they could earn money which is the “key to their release”?

I don’t know much about the specifics of Cook County’s program yet but my initial reaction is that it’s both stupid and dangerously unfair. One the surface, it will likely provide no deterrent or remedial effect with respect to gang activity. What it likely will do is make it easier to accuse people of gang activity then hold them in contempt of court for who even knows how long. After all, they probably won’t have the money to afford an attorney and the state won’t have to give them one. Ergo, not only will they be more likely to face an unfair fight but when they lose they will have an enormous time managing the outcome. I’ll try to find out more details about the program but my initial reaction is one of great concern.

-Zachary Cloud

JULY 2011: Was Humberto Leal’s Execution Legal?

I’ll give you the answer out front: yes and no. Now I’ll explain.

You might be aware of Texas’ execution of a Mexican national, Humberto Leal Garcia. When the United States Supreme Court denied a stay of his execution, it caused a brief media flurry. Here are articles from just a few of the organizations reporting on the matter:

The general theme is that Texas breached the Vienna Convention when it carried out the execution of Mr. Leal. The reason: the United States is a member of the Vienna Convention on Consular Relations, and all parties to that treaty have agreed that they will allow foreign nationals accused of crimes in their countries to have consular access. Article 36(1)(b) of the treaty defines a nation’s obligations, requiring that:

if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph[ . ]

Put simply, in addition to the typical Miranda warnings that police must give to an accused, foreign nationals must also be informed that they have a right to consular access. Mr. Leal was never informed of his right to access. To that end, it is clear that Texas violated the treaty.

But it’s not that cut and dried.

This was not the first time Texas has failed to inform an accused. In Medellin v. Texas, 552 U.S. 491 (2008) (Medellin I), the United States Supreme Court dealt with this same general issue. Medellin is worth reading if you have the time because it actually covers a fair bit of explanatory ground, but the key holding for our purposes is that the Vienna Convention is not a “self-executing treaty” automatically enforceable against the states by the federal government. See 552 U.S. at 498-99. What does this mean?

With respect to American law, there are generally two types of treaties: those that are self-executing and those that are not. In other words, some treaties become binding upon the states as soon as the United States signs on to them. Most don’t—the Congress has to pass appropriate legislation making them binding on the states. Since the Vienna Convention was held to be non self-executing, the Court found that Texas was not bound by the treaty.

In Medellin v. Texas, 554 U.S. 759 (2008) (per curiam), the Court again dealt with the matter. This is a separate opinion, which typically is called Medellin II.  In this opinion, the Court rejected Medellin’s claim that his execution should be stayed due to future legislation not yet enacted. As the Court quoted in its order denying a stay for Mr. Leal, “Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in [Medellin I].”  Leal Garcia v. Texas, 564 U.S. ____, ____ (2011) (per curiam) (quoting Medellin II, 554 U.S. at 760).

All of this established that, currently, the various states are not subject to the Vienna Convention on Consular Relations. Thus, a foreign national has no right to consular access in America. That’s US law, plain and simple, until Congress passes the appropriate legislation.

And that’s where Mr. Leal’s case comes in. In his request for a stay, he and the United States as an amicus argued that, because there is legislation currently pending to make the Vienna Convention binding on the states, his execution should be stayed until that legislation is passed. In a 5 to 4 per curiam order, the Court rejected that argument by saying

[i]t has now been seven years since the ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare introduction of a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now.

Leal Garcia, 564 U.S. at ____. The Court went on to reject the argument espoused by the United States government and Justice Breyer that executing Mr. Leal would put a serious strain on US-International relations:

Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority to stay an execution in light of an ‘appeal of the President,’ presenting free-ranging assertions of foreign policy consequences, when those assertions come unaccompanied by a persuasive legal claim. 

Id. at ____ (citation omitted).

Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented. Writing on their behalf, Justice Breyer mostly took issue with the harm that proceeding with the execution might do to US-International relations. Yet, the more compelling argument (in my opinion at least) comes at the end of the dissent. Justice Breyer noted that the Court would “almost certainly grant the petition for a writ of certiorari, vacate the judgment below, and remand the case for further proceedings consistent with that law” when Congress passes the pending legislation. Id. at ____ (Breyer, J. dissenting).  Accordingly, a stay would be appropriate to “preserve . . . ‘potential jurisdiction.’” Id. (citingFTC v. Dean Foods Co., 384 U.S. 597, 603 (1966)). Indeed, Breyer argued well that “it is difficult to see how the State’s interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations that support additional delay, perhaps only until the end of the summer.”  Id.

All of this is to say that Texas both did and did not violate international law. Based solely on the text of Article 36(1)(b), Texas clearly did breach the treaty. However, based on the United States Supreme Court’s precedent, this doesn’t matter because Texas wasn’t bound by the treaty. That’s where the real controversy lies. There is disagreement not only externally (i.e. the UN v. the U.S.) about whether states must follow the treaty but also internally (i.e. the Obama administration v. the Supreme Court). Whether this tension is resolved soon remains to be seen.

-Zachary Cloud

JUNE 2011: 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.

I. DUE PROCESS AFTER TURNER

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,herehereherehereherehere, 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.

II. POLITICS OF THE SUPREME COURT

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

JUNE 2011: 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 piecefrom 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 Iwill 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

MAY 2011: Are Public Defenders Any Good?

It’s been a long while. For over the past month, I’ve been incredibly busy and blogging about much of anything has managed to be at the bottom of the priority list. I won’t say that I’m “not busy” but I really wanted to get a new post out. Today, I bring you another informal perspective on criminal law. This is an essay that I probably should have written and posted when I first started this site but somehow I’m just now doing it. Without further ado, an essay on the critical role public defenders play in American legal society.

I. INTRODUCTION

The infamous Miranda warning, which takes its name from Miranda v. Arizona, 384 U.S. 436 (1966), is one I bet you could repeat to me word for word.  We deem it vital that criminal suspects are informed of their legal rights, including the 5th amend. right to be free from self-incrimination and the 6th amend. right to counsel. However, the term “public defender” is synonymous with bad lawyer in most peoples’ minds. Take any criminal justice show on television, watch it long enough, and you’ll likely find a dig at public defenders. Ask a person on the street if they’d want a public defender representing them and the answer will probably be uniformly “no.”

Why is this? Is it accurate? Are public defenders any good? These are some of the questions I hope to answer in this essay.

II. BACKGROUND

We should start at the outset by coming to a consensus on what exactly a public defender is. In America, a public defender is the term used generally to refer to attorneys appointed to represent criminal defendants who are too poor to afford an attorney.

In America, an indigent criminal defendant has a guaranteed right to appointed counsel if counsel is desired. This right originates from the 6th amendment to the United States Constitution, which provides in pertinent part that, “In all criminal prosecutions, the accused shall have the right to . . . Assistance of Counsel for his defence.” The United States Supreme Court held in Gideon v. Wainwright, 372 U.S. 335 (1963) that the 6th amendment right was incorporated via the 14th amendment as binding upon the states. Prior to Gideon, states had not been legally obligated to provide counsel to indigent defendants. See Bretts v. Brady, 316 U.S. 455 (1942) (holding that the 6th amendment right to counsel was only mandated for federal cases);Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights were not binding upon the states). Today, the right to counsel is a constitutional threshold that all states must meet for indigent criminal defendants– though it is worth noting that most state constitutions similarly provide for this right.

In response to Gideon, multiple systems have appeared throughout the country for handling representation of indigent defendants. States such as New York and Massachusetts rely primarily on private attorneys. In these systems, criminal defense attorneys take on caseloads with primarily indigent defendants and bill their time to the government. In New York, particularly, there have been major monetary concerns about such a system.

Another format is contracting cases out to a private firm for a flat fee. In general, this typically is about the worst way to provide representation because it encourages reduced work to increase profit. Several counties in California have properly taken flack for using such a system.

In areas where crime is low and/or population is small, there may be a less structured approach. I remember an attorney from a rural area once telling me about the judges in his town assigning pro bono cases to the younger attorneys and how it was a rite of passage. Everybody did ’em. Tax lawyer? You did ’em. Divorce lawyer? You did ’em. I’d guess about the only lawyers who didn’t were those in the district attorney’s office.

Yet the best system, generally only seen in larger urban areas, is a dedicated office that handles public defense work. The Public Defender Service for the District of Columbia and the Philadelphia Public Defender Association are widely recognized in the criminal defense community as the gold standards to which all other public defender offices aspire. I’d personally suggest that the Orleans Public Defenders, which serves New Orleans, is right on the heals of the two big guns above…which should come as no surprise since it was revamped after Hurricane Katrina by former DC office attorneys. All of the above offices are home to a large staff of full-time attorneys who are paid by state and federal funding to work exclusively on cases for indigent defendants. Additionally, theses offices have well-trained in-house investigators to support attorneys and a large clerical staff to provide administrative assistance. In cities with such a system, it’s completely fair to say you’d be lucky to have your case handled by a public defender.

It’s my contention that the organized public defender office I just described will probably exist in cities with major crime problems. Because crime and poverty are very highly correlated, in cities such as New Orleans the vast majority of people charged with crimes are unable to afford legal representation. In New Orleans, the number is nearly 90%, in Philadelphia it’s around 75%. Two conclusions logically follow. First, such heavy legal representation requirements demand a structured system for handling them and second, there’s little business for private criminal defense attorneys in such cities.

III. STEREOTYPES

There are a number of stereotypes that seem to attach to the words “public defender.” The most common, and most accurate, is that public defenders are overworked. To say that public defenders usually have too many cases is but a truism. The American Bar Association consistently finds that average public defender work loads exceed the recommended maximum.

This typically-accurate perception tends to lead to another one, which is not necessarily as correct: public defenders are too quick to push for plea deals. Do some public defenders too hastily push their clients towards a plea deal? I’m sure they do. But, this may be more of a problem with their resources than their competency. Without proper investigative support, an attorney simply may not be able to prove in court that his/her client is innocent. If that’s the case, trying to bargain for the most favorable outcome is far from incompetent or hasty. And even with investigative support, sometimes there is no avoiding the reality that the client is guilty … or that his innocence simply cannot be proved convincingly to a jury. In other situations, the risk may be too great. If going to trial means risking twenty years in jail whereas taking a plea bargain means serving only one or two years, taking the del still may be a perfectly proper thing to suggest a client should do. All of this means that many public defenders urge clients to take deals. This is not, in and of itself a bad thing. Indeed, with the court dockets as full as they are, it is an important way of improving judicial efficiency.

The more stinging stereotype is that public defenders are the bottom of the barrel attorneys not smart enough or skilled enough to work in private practice. This is truly the most misguided belief people have regarding public defense. Yet it’s easy enough to understand how people came to such a belief. Students at the top of their law school classes and/or top law schools in the nation sought and won jobs at big corporate firms because those firms pay big bucks. Indeed, most of the Am 250 firms have starting salaries of over $100,000 for their first-year associates. Coming out of law school with around that much in debt, the opportunity to start making big bucks fast is hard to turn down if you’re fortunate enough to be in the position to get such a job. Government-funded jobs, on the other hand, are notorious low-paying in all areas and the law is no exception. Rational economic actors choosing between a low salary and a high one will naturally take the latter. {And that’s truly a shame because many of these people will take the high-paying job not because they love corporate law but because of the salary and will end up whining on and on about how horrible the law is and how everybody should avoid law school and how terrible life as a lawyer can be. The legal profession will get a bad name all because some vocal @$$holes decided to blame their problems not on their poor career choices but on the consequences of those choices.} All of this is to say that those entering the public legal sector generally didn’t want to be there. Regardless of your skill or intelligence, you’ll never do an effective job if you have no interest in the task.

Thankfully, in later years, increased emphasis has been placed on getting young talent into public defense. Government and private incentives such as loan forgiveness have been made more available to encourage students to serve the public and the result has been generally positive. Offices such as Orleans Public Defenders regularly attract some of the brightest law students this country has to offer. Of course, this is only a start since passion is a key ingredient to doing a truly outstanding job. Even still, such trends indicate that many public defenders are excellent attorneys.

Aside from the push to motivate top law students to work in government, the truth that most people (yes, even seasoned lawyers) seem to overlook is that there is perhaps public defenders are among the most experienced litigators in the legal profession. The positive side to high case loads full of criminal matters is frequent court room experience. Many associates in private practice won’t enter a court room for years and certainly won’t be lead counsel on any major case until they make partner (if they even make partner). Public defenders necessarily get a lot of trial experience rather quickly. Indeed, it’s not uncommon for a senior criminal trial attorney to have tried literally several thousands of cases in court. Make no mistake, they are not to be underestimated. {Of course, it’s important to note that prosecutors are the one other type of attorney that can rival a public defender in courtroom experience}. Indeed, if you want to pursue a career in criminal law, there’s no better place to cut your teeth than either a district attorney’s office or public defenders office.

The last stereotype that’s particularly concerning is the general public’s belief that public defenders are only out to set criminals free. Once again, such a view is deeply misguided and fails to understand the basic nature of the American legal system. We live in what’s known as an adversarial system. In other words, two parties go head to head and theoretically their opposing forces should cancel out leaving the fact-finder with the truth. There is no safeguard that ensures a fair trial beyond having a defense that attacks the prosecution’s case. No judge, no watchdog will come on and save a defendant from a bad, malicious, or otherwise unjust prosecution. This job rests solely on the shoulders of the defending attorney. Thus, if you take him or her out of the equation, you’re left with a highly biased and unjust system. Imagine a fire that’s aggressively consuming a forest. The proper application of water can oppose this fire and keep it from moving too far and destroying homes. If you take away the water, the fire is left free to consume everything in its path including peoples’ property. Thus it’s vital that there be opposing forces to ensure that no one side goes too far.

This concept is admittedly an abstract and admittedly may be idealistic. When communities are plagued with crime, when we feel confident in a person’s guilt, it can seem like any attempt to defend what feels so clearly criminal is a threat to our safety. But our nation has always recognized that we cannot sacrifice our values at the altar of pragmatism. The phrase that “you have to stand for something or you’ll fall for anything” is especially true in a criminal system driven by parties with a biased interest in a particular outcome. Election after election, judges and prosecutors run for office on campaigns promising to be tough on crime. Such a platform and such an expectation from their voting base provides little incentive for one to go out of ones way to ensure a defendant is not being falsely prosecuted. The presumption of innocence until proven guilty is such a critical hallmark of our legal system that the job of a defense attorney is crucial to ensuring that hallmark is realized and not reduced to a meaningless phrase that rings hollow.

I say all of this not to suggest that prosecutors or judges are bad. Their place is of equal importance. Without the prosecution of behavior that harms society, safety would be scarce. Yet my emphasis on the importance of defense in general and public defenders in specific stems from the weight placed on their shoulders. It’s a lot easier to tear something down that build something. In other words, it takes little effort to ruin an man’s life with a prosecution. It takes a lot to ensure that this doesn’t happen to an undeserving defendant. All throughout this country, every day public defenders are responsible for the future of their clients’ lives. This responsibility is not as immediate as that of say a surgeon but it is arguably just as great. A half-hearted or incompetent defense can ruin a defendant’s life. As such, their role is of great significance in our system. Far from villains trying to keep criminals on the streets, public defenders are the last bulwark an accused person has. So long as we believe in the philosophy of innocent until proven guilty, we must support this bulwark. We must appreciate and respect this wall for its role in protecting that philosophy.

IV. CONCLUSION

I wish I could tell you that every public defender everywhere is good. I wish I could say that the stereotypes about being overworked, incompetent, unintelligent, defenders of evil are entirely false. I cannot say that. Of course some public defenders have too much work and some are lacking in the desire to zealously defend clients. Nor are all public defenders ‘A’ students. And yes, some may even have bad motives for defending clients.

But.

On the whole, public defenders are far better than both the general population and the legal community wish to acknowledge. Public defenders are generally very capable, highly experienced trial lawyers who make the most of their resources and stand for ensuring that people receive a zealous defense. Public defenders are the last line of defense (and the only line of defense) against the presumption of guilty unless proven innocent. Are public defenders any good? You bet. These people are dedicated either on a part-time or full-time basis to ensuring that the size of one’s pocketbook doesn’t determine the availability of one’s legal representation. We should count ourselves lucky that we live in a country that stands for values and ideals enough to see the importance in such a cause and provide for ensuring its actualization. Public defenders are truly the unsung heroes of the criminal law. Their plight is similar to a soldier’s in that people may respect their cause but will never envy their job. But those willing to do it are by and large precisely the people you’d want doing it. They are compassionate, they value justice and fairness, they are gracious, they are humble. Not only are they good, they believe in doing good. And when it comes to the law, it’s hard to ask for much more.

-Zachary Cloud

MARCH 2011: Reactions to Turner v. Rogers Oral Arguments

It’s been a little over a week since the United States Supreme Court held oral arguments for Turner v. Rogers. This evening I sit down to look at what happened and what is likely going to happen in the case.

First, let me note that you might have an interest in hearing the audio from oral arguments. You can download that here and the transcript here. As the audio shows, all three attorneys (the petitioner, respondent, and counsel for the Solicitor General) argued quite well. The petitioner’s counsel during arguments was Seth Waxman, who has quite a distinguished reputation when it comes to Supreme Court litigation. He’s currently employed by WilmerHale and does lots of things for them including representing clients before the Court. Respondents’ counsel was Stephanos Bibas. Mr. Bibas arguably has an even more distinguished reputation; though he’s a bit younger than Mr. Waxman, he was a law clerk to Justice Kennedy and is widely considered one of the top scholars in criminal law and procedure. He taught at my alma mater for a few years and he currently heads up the University of Pennsylvania Law School’s Supreme Court clinic.

The styles of these two in their arguments, which is quite discernable in the audio, is captivating. While Mr. Waxman had a very conversational approach with the bench (not surprising given the over 25 cases he’s argued in the Supreme Court), Mr. Bibas took a tone reminiscent of a public speech. Throughout the arguments, the way Mr. Bibas answered had a distinctly professorial flavor to it– as if he was teaching the Court about law.

Both speakers held their own and made their points well. But what did the justices think of those points?

That is where I start to become concerned. Of the 9 justices, I got the impression that only Justice Kagan was decided pro-Turner. It might work well to consider them in-turn. First of all, we didn’t hear anything from Justice Thomas, which is not a surprise; he rarely speaks during oral arguments. We also did not hear a whole lot from Chief Justice Roberts, though what we did hear seemed to lean towards a limited holding of due process rights akin to what the Government argued in their amicus brief. Mr. Bibas’ old employer Justice Kennedy seemed to struggle with what exactly the Court should do. He seemed particularly concerned about what impacts a ruling for Mr. Turner might have on the system of child-support enforcement. Justice Scalia seemed focused on two points: first, that defendants must be ensured due process– a term that need not necessarily equal lawyer; second, that the question before the Court didn’t allow for considerations of what the Government was advocating (using a case by case rather than bright line approach). Justice Alito also seemed to follow in Justice Scalia’s thinking by wondering why counsel as opposed to other mechanisms was necessary. Justice Ginsburg seemed especially concerned about the plaintiffs in child support suits (typically mothers). This is not a big surprise given Justice Ginsburg’s dedication to women’s rights. The other women at the bench may not have felt quite the same way. Justice Sotomayor seemed particularly concerned about what mechanisms other than an attorney would be sufficient for due process. Justice Kagan was quick to agree, calling the Solicitor General’s suggestions “remarkably anemic.” Finally, Justice Breyer indicated that the relative burdens on plaintiffs and defendants in a contempt hearing might have some impact on his ruling, though Justice Scalia found this line of questioning to be irrelevant.

So, what are my predictions now? Well scratch what I said in my pre-argumentsprediction post. I think Mr. Turner will lose. I hate to say this, but it seems quite likely to be true. Here’s why:

First, much of the court seemed very leery of holding that a right in situations like Mr. Turner’s should be categorical or per se. A LOT of questions were dedicated to inquiring about how a case-by-case situation might work and even the justices who seemed sympathetic towards Mr. Turner indicated their hesitation about saying a right should be triggered by being in the category of indigent.

Second, a large number of opinions coming from the Court this term has been strongly pro-states. What do I mean? Well, when we speak of constitutional law in America, a big question is what should the balance of federal and state power be? This question is as old as the Constitution itself and was litigated in such cases asGibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (the first defining case on the federal government’s ability to regulate interstate commerce). Although the Court in twentieth century showed sweeping deference to Congress to regulate state matters, Justice Rehnquist is credited with having redefined and pulled back on federalism. This tendency to take a deferential, hands-off approach to what the states may do has been seen repeatedly this term (for two examples, seeHarrington v. Richter and Premo v. Moore, which I discussed here).

This trend should suggest that the Justices (or at least a majority of them) are going to try to leave the states alone when possible and Turner v. Rogers is a particularly easy case in which to do that. The child support system and family law in general are very much a state vehicle that each state tailors as it desires. It wouldn’t be a hard argument for a Justice to say that a state, say Kansas, may need to use procedures to secure child support that don’t work in, say, Rhode Island. And if you don’t hold for a categorical right to child support then you have to articulate an even murkier case-by-case standard that may prove cumbersome in some states and perfect in others. So, better to leave the matter alone entirely.

All of this is to say that it looks bad for Mr. Turner. I might have been able to set aside my concerns regarding the hands-off, let-the-states-do-what-they-want approach had the Court warmly embraced Mr. Turner’s argument. But given their hesitation about that during oral arguments, I think it’s a fairly safe bet the Court will affirm the South Carolina’s holding.

So of course, you may be wondering when we will know. Well, the likelihood is that we won’t see the opinion come down until June. It is always possible that it will be released before then but unlikely given the pace of the Court this term. For example, Snyder v. Phelps was argued in October and handed down in March. Now, a five-month waiting period for the decision in Turner v. Rogers is unlikely since the Court will devote all of May and June to getting opinions finished and out the door before the summer recess. Still, I wouldn’t expect it any earlier than mid to late June.

When it does come down, I’ll be covering it and going through the opinion in detail to explain it all. Until then, I’ll be taking a break from the case to discuss other things (read: jury psychology) and also to deal with the utter doom of law school finals.

-Zachary Cloud

MARCH 2011: Summary of Oral Arguments in Turner v. Rogers

In the next day or two, I hope to write up a reaction to the oral arguments. Right now, unfortunately, I’m very busy and can only give a summary.

I. PETITIONER’S ARGUMENTS

Things got off to a very rough start for Seth Waxman, the counsel arguing on behalf of Mr. Turner. Within the first few seconds, he was interrupted by Justice Scalia suggesting that he had misrepresented just how limited the right to counsel was. Justice Alito was quick to jump in, asking Mr. Waxman how siding for Turner would not create an imbalance, as respondents suggested in their merit brief, between indigent plaintiffs and indigent defendants. Justice Scalia seemed to latch on to this line of argument, asking if it wouldn’t be a better idea to argue for counsel in instances where one had been provided to the other side. Mr. Waxman was willing to agree that this would be fair and quick to suggest that a very limited number of cases would require the court to provide counsel.

Justice Ginsburg then brought up another issue: scope. She asked if petitioner was arguing for counsel only in child support instances or with civil contempt in general. Mr. Waxman answered that a broader categorical right for counsel when incarceration was a possibility was the correct path. Justice Kennedy wondered if this would extend to witnesses refusing to testify. For example, if an indigent witnesses refuses to testify and the judge order the “bailiff, [to] take him out until he complies” would this instance require appointed counsel? In response, Mr. Waxman suggested that this should properly turn on the difference between direct and indirect contempt. He then returned to Justice Ginsburg’s question and suggested that if he had to advance a more limited rule it would certainly turn on the affirmative burden placed on a defendant to show indigence or face jail. In other words, it should be dispositive that the prima facia case has been made and the defendant is presumed guilty unless he shows otherwise.

Justice Sotomayor seemed to wonder if the appointment of counsel was really necessary, asking Mr. Waxman to explain why a defendant couldn’t answer the questions necessary to show inability-to-pay as a defense.

Justice Roberts asked if the petitioner’s case would be weaker had the burden been on the plaintiff to prove his ability to pay. Mr. Waxman noted that it probably would be more difficult but that such a shift in burden would not defeat a need for counsel.

Justice Kagan hinted at some sympathy, asking, “suppose the Court looks at this record and thinks this is a broken system and a violation of due process, but requiring a counsel in every case may go too far, and there may, in fact, be alternative procedures that a State could adopt that would comply with due process. And I know that this is not your submission, it’s instead the Solicitor General’s submission, but if pressed on that point, what procedures do you think would be capable of giving a person in this situation a fair shake of it?” To this, Mr. Waxman claimed that there would be none in the current adversarial set-up.

Ever the originalist, Justice Scalia wanted Mr. Waxman to identify the earliest case that would indicate a right to counsel for someone facing incarceration due to contempt.  While Mr. Waxman had no precedent, he did appeal to Justice Scalia’s interest in history by laying out some of the background behind contempt proceedings and when counsel was provided. Following this, Justice Ginsburg and Justice Scalia inquired about whether this appointment of counsel should require the “full dress” of criminal procedure. Justice Scalia quipped that the civil/criminal distinction was “an illogical [one].”

Justice Alito seemed on board with the Solicitor General’s suggestion that a right to counsel may not always be required and that other alternatives may exist. Yet it was Justice Ginsburg that asked perhaps the most interesting of questions. She suggested that Lassiter showed us we do not always supply counsel and that these decisions (in that case it wasn’t contempt but losing custody of the child) should be case-by-case. Accordingly, if such a method was alright for depriving a mother of her right to see a child, why would it not be alright for this context?

Before getting into a satisfying answer, Mr. Waxman reserved the balance of his time.

II. SOLICITOR GENERAL’S ARGUMENTS

While Justice Kagan had inquired about if alternatives to counsel might satisfy due process during petitioner’s arguments, she pressed Ms. Kruger (arguing for the government) why anything short of counsel would suffice. Indeed, she suggested that the government’s list of alternatives were “anemic.”  Ms. Kruger responded by explaining different possibilities that staes have taken and suggested that what was fundamentally required is that the defendant actually be able to have the keys to his jail cell— a reference to the adage that civil contempt is not punitive because a defendant can release him or herself by complying with the court order. Such an adage proves problematic when the defendant is indigent and the key he is said to possess is money.

Justice Sotomayor wanted a clearer understanding, nevertheless, of what a State procedure would look like. Justice Scalia suggested that perhaps the right thing to do would be to make sure the judge him or herself was satisfied that there was a willful failure to comply with the orders (here, to pay child support). Ms. Kruger replied by suggesting the issue lie with retrospective versus prospective intent and arguing that the question here is a prospective one. Justice Scalia seemed satisified with this but before questioning continued, Justice Roberts asked Ms. Kruger to clarify her position on the question presented. Her response was that South Carolina did not act unconstitutionally here…a strange answer for a party supporting reversal of that State’s decision.

Justice Ginsburg asked Ms. Kruger if there was a particular state employing a model she would suggest to the court for alternatives to providing counsel. Ms. Kruger responded in the negative but suggested states like New Mexico, which have social workers inquire about finance then determine if the case should be forwarded on for possible contempt, illustrate an effective approach. In response to this Justice Ginsburg wondered if an aid that was not a lawyer but knew the system would be an appropriate person to help an indigent defendant. Ms. Kruger responded that she thought that would be a proper approach. Continuing on this, Justice Ginsburg and Ms. Kruger discussed what a form might require, if it were used to review a defendant’s ability to pay.

Justice Kagan was still interested in the nature of the system, however, and wanted some elucidation about the frequency with which the State as opposed to the mother is proceeding against defendants. Ms. Kruger noted that the State is often proceeding and represented by either a lawyer or other official such as a caseworker. With that, Ms. Kruger’s time elapsed.

III. RESPONDENTS’ ARGUMENTS

Mr. Bibas, for the respondents, was quick to lay out both points. First, that the case is moot and second, that a categorical right to counsel is not necessary to satisfy due process. Up to this point, the jurisdiction had not been mentioned whatsoever.

But, as I predicted, the jurisdiction issue didn’t receive sympathy. As he began to explain why Mr. Turner’s case was not capable of evading review, Justice Ginsburg asked why it should matter that Mr. Turner did not get a stay since the South Carolina Supreme Court granted his case after he was released from jail. Justice Roberts added that states have different concepts of mootness than the Federal court system and their understanding of whether Mr. Turner’s case was moot should control here. To this, Justice Sotomayor asked why Mr. Bibas would expect South Carolina to grant a stay if they saw no sixth-amendment issue and, under that scenario, how Mr. Turner could ever evade mootness. She asked Mr. Bibas if he could point to any cases where South Carolina has granted a stay in child support cases.

Though Mr. Bibas made several attempts to explain, pointing to a somewhat close South Carolina case, he was stopped by Justice Kennedy wanted to move to the substantive issue. He asked if both respondent and petitioner’s claims could fit in a Matthews v. Eldridge framework. While Mr. Bibas was hesitant to say that, he leaped at this opportunity to address a question Justice Kennedy had asked of Mr. Waxman. Here, Mr. Bibas suggested that an outcome for Mr. Turner would create a broad right beyond child support that would apply to “tnes of thousands of immigration and extradition cases.” He also suggested that ruling for Mr. Turner would create “massive change” and that a trial judge would need to know ahead of time whether a criminal or civil set of procedural rules applied to the case at bar.

Justice Ginsburg was ready to tackle this point. She asked if it wasn’t true that most states hold this as a constitutional right. Mr. Bibas suggested that it wasn’t and described that 15 states consider it to be, and 11 states by a state instrument (statute, rule, etc…), but that 17 do not view it as a constitutional requirement and the other seven are ambiguous on the point. Yet Justice Ginsburg was not to give up, asking if it wouldn’t really just affect a very small portion of the cases coming through family courts…the ones where defendants were truly indigent. Justice Kennedy came to Mr. Bibas’ aid by saying “I suppose you could say that in – in advance that the judge and the appointing authority simply wouldn’t know.” Mr. Bibas agreed with this assessment adding that this was important to protect judges since they would need to know if civil or criminal procedural rules applied before entering the courtroom.

Justice Sotomayor was the first to ask for the respondents’ position on the government’s approach. Mr. Bibas called the governments suggestions “interesting” but undeveloped and did not take a position. Justice Scalia then asked him to define what due process protections South Carolina was not affording to defendants like Mr. Turner. As it turns out, this was a lead-in to a comment by Justice Scalia that the government had essentially tried to inject a new question into the case…one not up for decision by the Court.

Justice Sotomayor asked Mr. Bibas if perhaps the question presented was already answered, noting that the phrasing was important. While Mr. Bibas disagreed about how the question should be read, Justice Sotomayor said they would handle it later. Justice Scalia came to the aid of Mr. Bibas in suggesting that the right to counsel may be too specific…that if minimum due process was not afforded, procedures must be changed to afford due process…procedures perhaps more broad than a right to appointed counsel.

Justice Breyer stepped in to ask a question of what happened, factually, and wondered why the state would put him in jail if “he ha[d] no job.” When Mr. Bibas explained that the judge did not believe Mr. Turner, Justice Kagan interjected that there wasn’t really any indication the judge took Mr. Turner’s financial considerations seriously; instead, ignoring the issue. As she put it, “Well, we couldn’t really tell could we, Mr. Bibas. Because he completely ignored that question. … Mr. Turner talked about how he had no money and was disabled. The court completely ignored him. The court also ignored the questions on the form for the order of contempt about whether he had any money. The court ignored that as well.”

As Mr. Bibas tried to craft a resonse, Justice Scalia stepped to his aid, wondering what the significance of such a discussion was and saying it wasn’t relevant to the question presented. Yet Justice Breyer wanted to remain on the general topic and said it could have an impact on how he, even if nobody else, decides the case. While Justice Scalia resisted, Justice Breyer pressed on: “What I’m trying to figure out…is this: What, in general, is the fairness of such situations in where the woman is normally the one with the child, the man is normally the one who doesn’t pay? Is it true, for example, that in most such situations across the country, the woman has a lawyer but the man doesn’t?” Mr. Bibas was unaware of specific studies or information on that point.

Then, an interesting question posed by Justice Roberts: “Do you know why we’re not hearing from the State of South Carolina?”  Specifically, he wanted to know why they weren’t present to defend their procedures. Mr. Bibas noted that while it might be because their interest in the matter was no longer a direct one, he was not sure specifically.

Justice Scalia wanted to return to the mootness question, asking if there was precedent arguing in the manner that respondents do for why the capable of repetition standard was not satisfied. Though Mr. Bibas started to answer, Justice Roberts suggested that he was just wrong, noting that acquiring a stay cannot possibly be the requirement since “[the Court has] cases applying the rule that this is capable of repetition yet evading review. If the rule were you have to get a stay, we wouldn’t have any of those cases.” Mr. Bibas attempted to distinguish this case from the typical ones using the standard (election and abortion cases for example).

There was a bit of return to questions Justice Breyer and Ginsburg asked before Justice Alito seemed to raise his own concerns about the total lack of inquiry by the family court judge regarding Mr. Turner’s claims of being indigent. Then Justice Kennedy interjected his desire to know what factors, if any, should be laid out in the opinion. Justice Scalia added onto this but when Mr. Bibas began to suggest possible relaxed procedures Justice Kennedy wondered if “all those things are properly before us.”

Mr. Bibas returned to the point of the child support context as being relaxed and informal and noting that all previous situations where the Court had deemed counsel necessary were ones much more formal and demanding in nature. With that point, he ended his arguments.

IV. REBUTTAL

On his rebuttal, Mr. Waxman laid down three points: (a) how complex proving inability-to-pay really is, (b) how much of a burden will providing counsel be on the States, and (c) if the Utah and New Jersey models would be a way to “square this circle.”

Mr. Waxman then pointed to issues such as the drug use, attempt to get a job, disability, etc… Mr. Turner explained as legal questions rather than factual questions. In other words, how do the answers to those affect a finding of indigent status? That such questions arise is evidence that the matter cannot be easily resolved with naught but a form the defendant fills out.

Then Mr. Waxman moved on to the burden on the state, noting that 15% of South Carolina’s imprisoned population are non-custodial parents that have not paid child support. Mr. Waxman noted that this was costing between $13,000 and $17,000 a year per defendant. Following this, Mr. Waxman noted that South Carolina is already paying $72 million to the U.S. Government for failure to comply with requirements of the Federal program.

The last question of arguments (and only question on rebuttal) was by Justice Alito, who asked if Mr. Turner would automatically be vindicated had the judge had credited a form showing Mr. Turner was unable to work and was indigent. Mr. Waxman said yes, qualifying that a mere assertion is “not the marshalling of evidentiary support that’s required to carry the burden.”

With that, Mr. Waxman’s time elapsed and the case was submitted at 11:12 a.m.

-Zachary Cloud

MARCH 2011: Turner v. Rogers Briefs Part 3: The Petitioner’s Reply Brief

As I mentioned in my last post, I learned that counsel for Michael Turner had filed a reply brief. Today, I finally had a chance to look the brief over. While I’m not going to address the document in great length (see my posts on thepetitioner and respondent merit briefs for more depth), here are the basics:

I. JURISDICTION
The problem with jurisdiction in this case is that the petitioner is no longer in jail and that he did not file a stay pending appeal. The respondents argued in their merit brief that since Mr. Turner is not in jail his case is no longer active and the matter is moot.

Now, that’s not necessarily a bad argument– after all, the Supreme Court does not issue advisory opinions on matters. However, there are instances where a case is “capable of repetition yet evading review” because the time it would take for the case to reach the Supreme Court is longer than the duration of the event in question. It is this exception that is under dispute in Turner v. Rogers.

Respondents argued in their merit brief that petitioner will not face incarceration again unless he does not make future child support payments and they argue that the Court should presume any lack of payment will be voluntary on his part. Petitioners here respond by pointing out that if we’ve assumed him indigent for the purpose of this case, it follows that he will continue to be found in contempt unless afforded a right to counsel. That makes his case capable of repetition.

The issue of a stay pending appeal is also addressed. Petitioner notes that the South Carolina Supreme Court considered and ruled on his case after his jail time sentence had expired without any questioning of possible mootness. While procedure is important, it runs the risk of becoming incredibly boring, so I’ll move on to the substantive arguments.

II. RIGHT TO APPOINTED COUNSEL
In the last half of the reply brief, we see the rebuttal to what respondents said concerning right to appointed counsel. For the most part, the arguments made are the ones I advanced when I discussed the respondent’s brief. For example, I suggested that respondents inappropriately attempted to extend Middendorf v. Henry, 425 U.S. 25 (1976), a military tribunal case, to the civilian context. Petitioner also notes this in his reply brief. Another example is the criminal/civil distinction. Petitioner argues, as I have, that such a distinction is but a “formalism” that is untenable in face of reality. You can call a rose a carnation all you want; it’s still a rose.

Interestingly, petitioner also argues with the factual contention of respondents that proving indigent status in a family court context would be “simple” and would not require legal counsel to do. Citing to amici briefs, petitioner says that this is quite simply wrong. Also a good point, petitioner notes that having the defendant himself or herself prove indigent status would be inappropriate because a judge could simply chose to discredit this testimony. Instead, argues the petitioner, counsel is necessary to support this assertion with evidence.

Lastly, we see an attack respondent’s assertions that requiring right to appointed counsel would place an unfair burden on pro se plaintiffs and on the state. Petitioner points out that since the South Carolina DSS handles prosecution of non-paying parents, there is no disadvantage to a mother like Mrs. Rogers. In fact, petitioner makes a very good point that since (a) DSS automatically begins proceedings when payments fall behind and (b) the defendant is presumed guilty until he proves inability to pay, the only significant burden to bear falls upon a defendant.

The final arguments lie with the United States’ suggestion that a case-by-case approach, rather than a categorical holding, would be sufficient to ensure due process to indigent defendants. This argument is one that I did not cover previously since it is mostly contained in the United States’ amicus brief– which I’ve only had a chance to skim. For those more interested in this aspect of the argument, I recommend giving the Solicitor General’s brief a read here.

III. CONCLUDING REMARKS
Nothing in the brief was a surprise. Most of the rebuttals are what I would expect and it seems that this case is pretty well developed. Oral arguments are this Wednesday morning, March 23, 2011. Transcripts from oral arguments should be up by close-of-business on Wednesday so expect a post from me on Wed. night with play-by-play analysis of the proceedings.

-Zachary Cloud

FEBRUARY 2011: Julian Heicklen’s Indictment and the Problem with Jury Nullification

Yesterday, I learned of a story published in the New York Times that I think bears some careful consideration. Since that article has been published, it’s garnered various media coverage including posts like thisone from Simple Justice (with an included video and very good information regarding factual details of Mr. Heicklen’s case). The various articles out there are definitely worth a read but here’s my brief summary of what happened:

A retired Pennsylvania State University Professor of Chemistry has beenindicted for handing out fliers encouraging jurors to disregard the law and instead decide cases based on conscience. Since 2009, the defendant Mr. Heicklen has stood outside of various courthouses handing these fliers to people walking by in the hopes that some of them might land in the hands of jurors.

This type of action in and of itself is a fairly easy case of protected free speech. The complicating factor for Mr. Heicklen is that his advocacy includes holding a sign with “Jury Info” written on it and answering questions people may have. He noted that sometimes people think he’s an official. As a result, the United States Attorney’s office has charged him with jury tampering under 18 U.S.C. § 1504 (1994). So the question is: what result?

My first inclination was to start to answer that question. I’d pulled up Lexis with the intent to do some research but I’ve changed my mind. The specific legal criterion is not what I want to focus on. Rather, I want to discuss the theory of jury nullification and why I think it’s unsupportable.

Jury Nullification is an approach to justice that essentially suggests that we as citizen-jurors should use our power to negate or nullify laws (and/or legal results) with which we disagree. In Mr. Heicklen’s case, this was probably driven by his beliefs regarding the illegality of marijuana, which he protested earlier in life by smoking it in public to make a statement (yes, he was arrested for said marijuana smoking).

The title or position of juror truly is a unique one. In some ways, jurors are imbued with a highly democratic power that perhaps outshines the right to vote in political elections. Rather than chose people to make decisions, the citizen him/herself does…it’s empowering. It could almost lead a person to believe they have the power as a juror to make decisions regarding the law itself.

But that’s not the case.

The idea of a trial by jury is nothing new; its history was already highly developed by the time Sir William Blackstone wrote his seminal treatise in the 1700s. As he puts it, “In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention…” 3 William Blackstone, Commentaries *349. The role of the jury has been fairly constant throughout the many hundred years it has been an institution. Namely, it seeks to make sure to promote fair evaluation offacts in trials. By dividing up who makes the findings of fact (the jury) and who makes findings of law (the judge), we promote what is essentially a system of checks and balances that seeks to ensure no one person can hijack the decision-making process.

Whether or not the jury actually achieves this theoretical division of labor is unclear. The practice of jury nullification would suggest that it does not. When jurors choose to disregard the law this means that they ignore what the judge instructs them and decide based on their own rationale. Accordingly, the legal decision-making process goes from being a joint endeavor to a unitary one. Now, just as the jury is not a new institution, this approach to justice has been around for some time. For example, contemporary legal scholar Nancy King advances the claim that jury nullification was a useful tool for allowing American colonists to “shield against British oppression before the Revolution.” Nancy J. King, The American Criminal Jury, 62 Law & Contemp. Probs. 41, 50 (1999).

In criminal trials, the usefulness or advantageousness of jury nullification lies almost exclusively on the side of a defendant. Because of the double-jeopardy clause in the fifth amendment, a defendant cannot be tried for the same crime twice. Thus, if (s)he is acquitted due to jury nullification, the government is barred from prosecuting again. However, if jury nullification leads to a conviction, the defendant always has the option of requesting a new trial or other relief on appeal. I’m less familiar with civil litigation so I can’t make any particular claims to how big of a role jury nullification plays in trials for damages.

Yet, regardless of whether the case is civil or criminal, the problem I see with jury nullification remains the same. When we condone jurors going outside the constraints of the laws they’re supposed to be bound by, it makes the laws themselves rather pointless…indeed, it makes the law-making process itself rather pointless. It doesn’t matter that jurors may only sometimes nullify law or that, when they do, it will be with good cause; regardless of their reason, they break the predictability and denigrate the reliability that the justice system provides. We have a justice system because we have decided as a nation that this is the best method for adjudicating disputes and righting wrongs. We have laws because we elect officials to represent and promote our interests. If we have disagreements with what our representatives do on our behalf, the proper course of action is not to put a rip in the garment of justice that those representatives sewed for us. No, the proper course of action is to get a new fabric maker. After all, what makes law successful is precisely that it is uniform and covers all of us. Putting a rip in that fabric does nothing but obfuscate the purpose of a justice system by which we are all bound.

Jury nullification may not seem that bad. Sometimes, when good people are in the defendant’s chair, it might even seem like the right thing to do. Yet it is a threat to the fairness of the legal system. The task of the juror is to evaluate evidence, weigh it, and determine if it satisfies a legal standard. It is not to play judge or lawmaker. Doing as such is beyond what’s asked of the juror and it’s wrong. When laws appear inappropriate, when upstanding people are facing criminal or civil liability, when seemingly-malicious cases are brought…well, these might also be wrongs. We might feel like these wrongs need to be made right. But, remember what your mother told you all because it’s especially true here: two wrongs don’t make a right.

-Zachary Cloud

FEBRUARY 2011: Turner v. Rogers Briefs Part 2: The Respondents’ Merit Brief

Last week, the respondents in Turner v. Rogers, Docket No. 10-10 filed their merit brief. I’ve now had a chance to get the doc, read it, and share my analysis / comments. Remember a general rule in advocacy: if the law is on your side, argue the law. If the facts are on your side, argue the facts. Respondents’ brief is a prime example of this. As I’ll discuss in detail infra, the brief uses the messy facts to great advantage. Mr. Turner is painted into quite the villain here. That said, let’s get to business.

I. PRELIMINARY MATTERS

The respondents’ brief lists two respondents: Rebecca Rogers and Larry E. Price, Sr. These persons are represented by:

(1) Stephanos Bibas (the counsel of record), and a team of others working in the University of Pennsylvania Law School Supreme Court Clinic.

(2) Stephen B. Kinnaird of Paul Hastings’ D.C. office. For those unfamiliar with the firm, Paul, Hastings, Janofsky, and Walker, LLP is a major ‘Big Law’ firm that has numerous US offices and a strong international presence as well.

One last item: appendices are attached to the brief. Over 60 pages worth of material from the record is available at the end of the brief for those interested in more details.

II. QUESTION PRESENTED

The respondents’ team comes out swinging, stating:

“A child’s indigent mother repeatedly appeared pro se in a series of civil-contempt actions to enforce a child-support decree against the child’s father. At his sixth hearing, the father admitted fault and was confined for civil contempt. His appellate lawyer sought no stay, and he completed serving his twelve-month term of confinement. …”

They then go on to ask the two questions presented, although rewording the second question as follows: “In a mother’s pro se action to enforce a child support order, does the father have a categorical Sixth or Fourteenth Amendment right to appointed counsel before he can be confined for a limited time for civil contempt?”

For those unfamiliar with the term of art pro se, this indicates that the mother represented herself. Any person has a right to represent his or herself if desired, although it’s rarely a wise choice. In civil cases where a poor person wants to instigate proceedings, it may be the only choice however. The protections of Gideon v. Wainwright, 372 U.S. 335 (1963)and its progeny have never been extended beyond a defense context. In other words, when a person is accused of something or otherwise threatened by government action that seeks to limit his physical liberty, the due process concerns are great enough that they warrant a constitutionally mandated right to appointed counsel. However, the law has yet to suggest that a person who wants to bring a suit (a plaintiff) would be denied due process if he or she couldn’t afford an attorney…and at any rate this is usually a moot consideration since many lawyers will work for plaintiffs on contingency fees (e.g. you don’t pay unless we win, and if we win, I’ll get attorneys fees). The respondents make it clear from the get-go that no such arrangement was made in Mrs. Rogers’ situation. Creating sympathy from the start…arguing the facts.

III. PARTIES

When I discussed the petitioner’s brief, I made note of the fact that the parties section is completely unremarkable…usually. As with his brief, there is something to take note of when looking at what the respondent has to say.

We have an explanation of how Larry Price, Sr. factors into the case. The respondents write that:

“[b]ecause of her poverty, Mrs. Rogers had to relinquish physical custody of B.L.P. to her parents, Judy and Larry E. Price, Sr. Accordingly, in May 2009, the Oconee County Family Court redirected future child support payments from Mrs. Rogers to Mrs. Price. When Mrs. Price passed away in June 2010, Mr. Price retained sole physical custody of his granddaughter B.L.P., and the family court redirected future child support payments to him. Thus, Mr. Price is a second named respondent. This Court granted his motion to intervene when it granted certiorari. …”

The brief also explains in more detail what exactly is going on with the South Carolina Department of Social Services (DSS). Are they a party? Are they not? According to the respondents, the DSS is not involved. While the respondents attempted to add them, DSS refused to intervene stating that it was not a party to the early suit in the South Carolina Supreme Court. I’m a little surprised they wouldn’t want a piece of the action given what a direct interest this ruling will have on child support hearings…but c’est la vie. For one reason or another, they’re staying out of this.

IV. STATEMENT OF THE CASE

I think it’s also worth discussing the respondents’ statement of the facts and law here because it gives us a clear picture of how they justify their position. The section begins by trying to arouse sympathy. Mrs. Rogers, a poor person herself, acted on her own numerous times over eight years to make an unsupportive father care for his child. They say, “millions of noncustodial parents (usually fathers) willfully avoid paying [child support], often by working off the books.” (emphasis added).

While that’s more or less true, the next point they suggest most certainly isn’t: “Child-support civil contempt proceedings…are straightforward and informal, so lawyers are unnecessary.” This argument doesn’t get us very far. I may find a traffic violation proceeding to be straightforward (show up, plead guilty, pay the fine, go home.) but that doesn’t mean I shouldn’t have a right to representation if I might facing jail time or the like (e.g. in a DUI case).

As if that argument weren’t silly enough, the next one adds insult to injury. The argument is advanced that allowing indigent defendants to have appointed lawyers would give an unfair advantage to them and ‘’unlevel’ [my made up term] the currently even playing field that pro semothers have. …

What??

First of all, when discussing the reason why lawyers aren’t necessary, one of the points suggested is that, “When lawyers are involved, they do little that requires legal expertise.” If that’s true then how would it make the playing field any less even? These two arguments (a. that lawyers are unnecessary due to the simplicity of the proceeding and b. that allowing lawyers to defendants would be unfair) cannot be reconciled so I will have to assume they are proposed as alternative arguments.

That being so assumed, the second argument is still very flawed. It presumes that a plaintiff has some right akin to the due process rights of a defendant. The reason we provide counsel to indigent criminal defendants is not focused on a “level playing field” for that necessarily requires a relative reflection on the quality of both parties’ legal representation. Indeed, defendants in civil cases have not generally been given a right to counsel…this hardly smacks of a level playing field. No, on the contrary, we provide indigent criminal defendants right to appointed counsel regardless of the other side’s representation. We do it not to craft an ideally-balanced adversarial environment but rather to make sure the individual right to due process is not abused or done away with entirely.

I could go on in much more depth about this point but we haven’t even gotten to the actual arguments yet…so I’ll restrain myself.

Also interesting in this section of the brief is the respondents’ explanation of the background facts. I recently posted a version of the background taken from the South Carolina Supreme Court opinion and Mr. Turner’s merits brief. Here, we get a different viewpoint (not surprisingly) of what happened that led up to this case. Mr. Turner was 19, Mrs. Roger 17, when B.L.P. (the child) was born. After Mrs. Rogers sought child support through DSS, Mr. Turner went through a series of different jobs including automotive, construction, and painting work. Nevertheless, Mr. Turner regularly fell behind on his payments and this led Mrs. Rogers to ask the family court (at a hearing on Sept. 14, 2005) to place him in confinement. The judge refused on the grounds that he’d need to know what Mr. Turner’s excuse was before he could determine proper sentencing (talk about innocent before guilty). Of course, as both sides note, Mr. Turner was placed in jail not long after that when he was haled into court on a bench warrant.

One other interesting detail of history: respondent says that Mr. Turner—more than just being a drug addict—sold drugs in 2009 and 2010. One incident mentioned was a buy and bust involving Xanax in 2009; this past November (not long after the Court granted cert. to hear this case), Mr. Turner pleaded guilty to three outstanding drug-related offenses. As it presently stands, he is serving suspended sentences for those drug counts, a year of probation for the Xanax offense, and a six-month suspended sentence for another offense relating to drug possession.

Respondents naturally suggest that someone dealing drugs and able to post surety bonds relating to these offenses (he did indeed post a $10,000 bond) obviously could have been paying his child support but was simply evading the matter. The facts are what they are, this may be true or it might be an unfair representation. Either way, I don’t think it bears much if any relevance on the legal issues of this case. Both the nicest and meanest people have constitutional rights, and they have those rights not because of their character but their citizenship as Americans.

V. ARGUMENT

So enough with the facts and how they’re being construed; let’s get into the argument. The brief lays out four specific positions, which I’ll list below and address in turn:

  1. The Court lacks jurisdiction because the case is moot.
  2. The right to appointed counsel is limited to criminal prosecutions, not pro se child support proceedings
  3. Due Process does not create a per se right to appointed counsel in all cases that might result in confinement
  4. Neither a case-specific balancing test nor the acting Solicitor General’s novel approach of “additional procedures” is properly before the Court

A. Jurisdiction

The respondents attempt to argue that the case should be considered moot because the petitioner did not seek a stay pending appeal. This matters since the year-long prison sentence in question has been completed. The brief points out that the petitioner does not specify what relief is sought anywhere in his brief. Further, the petitioner’s argument that his claim falls under the “capable-of-repetition-yet-evading-review” exception is squarely attacked because petitioner is not the only person who could bring this type of claim. Also criticized is the argument that petitioner is likely to be in this situation again if the Court does not address the matter. Further, it is suggested that since this is not an exceptional case but rather one seeking an advisory opinion, the exception should not apply. Even still, respondents do nothing to try negating the authority of 28 U.S.C. § 1257(a), which the petitioner relies upon in arguing that jurisdiction is proper.

B. Limitations on the Right to Counsel

It’s no surprise that the respondents want to keep the criminal/civil distinction intact.– they have to if they want to have any legal ground to stand on. But they mistake the point in suggesting that “Potential Loss of Liberty Does Not Turn a Civil Case Into a Criminal Case,” as argued in their point heading. The issue is not whether right to counsel should apply to criminal or civil cases– it’s whether the right should apply to people facing incarceration. Respondents rely on dicta from a military case, Middendorf v. Henry, 425 U.S. 25 (1976), to suggest that civilians are similarly without a categorical right to counsel when facing a loss of physical liberty. Moreover, the respondent again mistakes the point.Middendorf was talking more about defining criminal versus civil, not about when due process is threatened. Respondents drive home this argument about the criminal / civil distinction under the theory that the reason we protect criminal indigents is because they’d be up against professionals without attorneys of their own. So the theory goes, since most civil contempt proceedings are “straightforward” and instigatedpro se, the indigent is not at a distinct disadvantage.

This argument is weak. As I touched on supra, this level playing field argument must lose because due process is not about how competent your opponent is…the right to counsel is categorical because of your lack of knowledge of the system irrespective of the other side’s skill level.

The respondents also make arguments about civil contempt as opposed to criminal contempt. For the most part, these arguments are what you would expect and I will direct those who have more interest in this aspect to read pages 35-40 of the brief itself.

Along with the arguments on criminal / civil distinctions above, the respondents argue that finding for the petitioner would “flood courts with litigation seeking to extend other criminal prosecutions to civil cases.” For the reasons I’ve suggested in my post, Turner v. Price: Thoughts on Civil Contempt, I still disagree.

C. Per Se Right to Appointed Counsel

Now we get to the arguments of what satisfies due process. It bears noting here that the argument respondents take up is that a right to counsel is not categorical here. In other words, they argue that the mere possibility of imprisonment does not automatically suggest due process is threatened if counsel is not appointed for indigent defendants. In so arguing, they attack the petitioner’s explanation of Lassiter v. Department of Social Services, 452 U.S. 18 (1981), suggesting that the case cannot be relied upon since it was not addressing an imprisonment situation. True enough, Lassiter was about a mother facing loss of custody of her child. Even still, the Court did say quite clearly there that the one thing guaranteeing a right to counsel was imprisonment.

Of course, the brief advances a strongly deferential approach to evaluating the constitutional claims of the petitioner. To very quickly summarize the point made at length: family law is a state issue best left to the state. The Court shouldn’t intervene unless there is some incredibly egregious injustice occurring.

Then comes my hot-button issue. The brief calls for highlighting the pro se aspect of civil contempt proceedings. It argues at some length that this case should be decided within the context of parents proceeding as plaintiffs pro se. Specifically, two arguments are made: (1) proceedings in these types of matters are simple enough that defendants don’t need lawyers, and (2) plaintiffs (and their children) will be disserved by appointing counsel to defendants in these proceedings.

I have a real problem with these notions. It is suggested that indigent defendants have no great need for representation because lawyers would contribute little in such proceedings and because defendants would have to prove essentially the same facts (lack of sufficient income) in order to get a court-appointed lawyer as they would to avoid civil contempt.

So what?

It does not follow to say that, because defendants don’t necessarily face insurmountable odds, they shouldn’t have a right to counsel. The test has never been whether or not defendants are have the skills to try a case themselves but rather, whether or not they are poor. The presumption is that all laypersons, regardless of income, lack sufficient legal skills to ensure they receive a fair trial. With that as a fundamental assumption set down in Gideon, the question then turns on whether or not a person has access to legal representation and what happens if they do not. It would be one thing if Mr. Turner was wealthy or if he was facing court fines yet this is not the reality. The reality is that Mr. Turner faced incarceration (and indeed was incarcerated) and that he could not afford an attorney. Here, I will admit that if the respondents’ assertions about Mr. Turner’s own ability to pay are correct, the right to an attorney obviously does not exist. However, this case takes up the question of indigent rights. If we operate on the assumption that Mr. Turner was unable to pay for an attorney, we necessarily must admit that he is of precisely the vulnerable population Gideon seeks to protect. It should make no difference what court he is in, how stringent the rules of procedure are, or how sophisticated the substantive claims are. Whatshould matter is that he was threatened with jail time.

It is equally unsatisfying to dwell on the plaintiff’s rights. I have a great amount of sympathy and compassion for mothers…especially for those like Mrs. Rogers who are living below the poverty line. But for all my sympathy, the law is nevertheless clear on this point: there is not a duty to make sure indigent plaintiffs have representation. Though this may seem cold, the policy behind it is sensible. We must draw a line somewhere with respect to when tax-payer money will support a person’s legal representation. Both the respondent and I are in agreement that this line does (regardless of whether or not it should) fall short of purely civil matters. Both the respondents and I agree that an indigent defendant facing a personal injury suit does not have a constitutionally mandated right to appointed counsel…and that’s the party at risk. When a plaintiff brings an action it generally occurs after a wrong has happened (with the caveat of preliminary injunctions and temporary restraining orders readily acknowledged). My point here is that when we draw a line, we look to preventing or minimizing the risk of unjust harm befalling a person. This is the logic that underlies the “innocent until proven guilty” mantra. By the time of trial, the party at risk is no longer a plaintiff, who already alleges some harm, but rather a defendant. If the plaintiff loses, the status quo is preserved. If the defendant loses, he or she may face serious consequences that disrupt the status quo. That is why we have determined that appointed counsel is crucial to indigent defendants facing serious charges; there’s physical freedom at stake. One can argue, as I’m sure someone already has in a law review article, that plaintiffs who are indigent deserve more rights than they currently have. That might be true…but it is harder to justify providing a plaintiff representation than it is a defendant. If we must draw a line somewhere, as respondents argue we must, then we certainly cannot abide the notion that we must be concerned with the disadvantage brought to a plaintiff.

I am sympathetic to the arguments that the respondents close on in this section, noting that imposing requirements for representation would strain already-scare public resources. I recognize all too well the difficulties facing public defenders across this country. I also share sympathy for the mothers who desperately need child support. It doesn’t change my view however to say that these reasons are good enough to refuse a right to counsel. All but a handful of states have this policy in place; the handful that don’t are not experiencing any more effective payment of child support funds to mothers nor are they experiencing lighter loads on public defender offices. It is a mistake to argue under the logos of fear; it gets us nowhere. Similar arguments were advanced whenGideon came down in 1963 yet I doubt anyone would be willing to say it was the wrong decision because of all the work it created for public defenders. Sure poverty is a strain but it’s a strain regardless. The least we can do is work to ameliorate the inequalities of legal representation that are pervasive for the financially disadvantaged. I cannot agree that we should not hold for Mr. Turner merely because it will create a burden on the State or the system.

D. Rejection of Case-Specific and Additional Procedures Tests

I won’t discuss this section in too much detail. The basic are these: the respondents urge the Court not to adopt two tests or legal theories as a way of determining when court-appointed counsel is necessary. The respondents do not address these in depth but rather argue that the Court’s task at hand is to only examine the absolute, constitutional right of a defendant. As such, the respondents argue that the tests mentioned do not have a place in the Court’s analysis or ruling. This is in response toamicus curiae briefs that I’ve not yet had a chance to read. Thus, I’ll leave the matter for later consideration.

VI. CONDLUDING REMARKS

All in all, the brief is quite well-written. It’s evident that the counsel for the respondents are experienced. It’s also obvious that the brief is strongly fact and policy laden. It makes an emotional appeal to us. It asks us to think about the poor mothers, desperate for child support, who are battling the reprehensible deadbeat dads trying to avoid helping their own children. Further, it makes strong arguments about the burdens a ruling for the petitioner would create. Nevertheless, I think the arguments on the law are rather weak for the most part. As I said earlier and had predicted, this brief is about arguing the facts.

The strongest arguments are probably the ones relating to jurisdiction, actually. I think the respondents did a very convincing job of arguing that the Supreme Court has no place to hear this case. However, I don’t see this argument gaining much traction because a nearly identical argument was attempted in Kentucky v. King. There, the respondent argued that, since her client had already been freed from jail by the Kentucky Supreme Court, the case was moot. When she tried that argument in court, Chief Justice Roberts got fairly upset about it. Specifically, he noted that since the Court had obviously chosen to take the case and hear arguments, she’d be better off arguing the substantive issues rather than the procedural ones. I suspect a similar attitude will be taken here.

It will be very interesting to see what gets discussed and questioned in oral arguments. I’m hoping to do a post in the near future on how I expect the justices to fall. I’m also hoping to get some time to read theamicus briefs but that’s less likely. At any rate, if anything else happens between now and March 23 with Turner v. Rogers, I’ll be sure to post about it.

-Zachary Cloud

JANUARY 2011: The Story Behind Turner  v. Rogers

“I paid a little bit here and there. And, when I finally did get to working, I broke my back, back in September. I filed for disability and SSI. And, I didn’t get straightened out off the dope until I broke my back and laid up for two months. And, now I’m off the dope and everything. I just hope that you give me a chance. I don’t know what else to day. I mean, I know I done wrong, and I should have been paying and helping her, and I’m sorry. . . .”

That’s what Michael Turner tried to explain to the South Carolina Family Court in Oconee county on January 3, 2008. It was surely a heartfelt plea but it mattered not; he was sent to the Oconee County jail for being $5,728.76 in arrears for the child support owed to the State of South Carolina on behalf of Rebecca Rogers. In fact, this was not the first time he was placed in jail. On three other occasions from 2003 to 2008 the state had successfully brought “rule to show cause” proceedings against Mr. Turner. In each instance, the proceedings resulted in Mr. Turner’s incarceration and, in the last instance, liens being placed on the Social Security disability benefits Mr. Turner was to receive.

The facts are all-too-familiar. In 1996, Ms. Rogers gave birth to B.L.P. Seven years later, she sought child support for B.L.P. and, with assistance from the State, determined that the father was Mr. Turner. In June of 2003, the Oconee Family court ordered a determination of financial responsibility and ruled Mr. Turner had an obligation to B.L.P. When this order was entered, Mr. Turner was held responsible for payments of $51.73 each week retroactive to the date that proceedings were instigated, meaning he was automatically in arrears.

Thus the start of a cycle. Mr. Turner struggled to find employment and battled drug addiction. When he would be unable to pay his weekly requirements, the clerk of courts would automatically order a rule to show cause hearing pursuant to the South Carolina’s procedural requirements. Mr. Turner would go to jail where he would be unable to pay or even look for work. When he got out, it wouldn’t be long before he was once again haled into court. At the Jan 2008 hearing, Mr. Turner tried to explain his situation but without counsel, he was unable to demonstrate his indigent status and inability to pay. With the aid of counsel, he could have avoided jail– yet the South Carolina law on point was silent as to an indigent’s right to appointed counsel in civil contempt proceedings.

After this 2008 ruling, counsel acting pro bono decided to help Mr. Turner by appealing this ruling on the grounds that he was entitled to appointed representation. The challenge was filed in the South Carolina Court of Appeals but not taken particularly seriously by the Department of Social Services— they didn’t even respond. However, the South Carolina Supreme Court acted on its own initiative and certified the appeal to itself before the appeals court could take any action.

Just a little less than a year ago, the South Carolina Supreme Court came down with a ruling, finding that Mr. Turner’s case didn’t warrant court-appointed counsel because his incarceration was not “unconditional” but rather could be relieved upon his payment. Price v. Turner, 691 S.E.2d 470, 472 (S.C. 2010). In their ruling, the South Carolina Supreme Court made an acknowledgment: they were taking a minority view. Id. Most states would mandate legal representation for Mr. Turner.

This March, the United States Supreme Court will take up that logic in Turner v. Rogers, 10-10. The case will generate a lot of contemplation on the legal requirements set down by Gideon and its progeny, people will make predictions on how the Justices will rule, legal scholars will opine on the substance of the arguments, and it will become easy to forget that behind these abstract legal questions about 6th amendment rights there is a man– a humble, indigent, father who’s had his share of struggles in life.

It will be easy to forget that, but let’s try not to. Let’s try to remember that the foundations of this case rest on a poor man, his 15 year-old child, and a mother struggling to pay the bills. Let’s try to remember that this case is ultimately an unfortunate testament to the difficult realities facing parents and their children living below the poverty line.

-Zachary Cloud

JANUARY 2011: Turner v. Rogers Briefs Part 1: The Parties’ Merit 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. RogersTurner 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 manyamicus curiae (“friend of the court”) briefs.

I. PETITIONER’S BRIEF

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. VIXIVGideon v. WainwrightArgersinger v. HamlinScott v. IllinoisAlabama 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.

II. RESPONDENT’S BRIEF

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.

III. CONCLUDING REMARKS

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

JANUARY 2011: A Summary of Today’s Oral Arguments in Kentucky v. King

A big issue in criminal procedure is search and seizure. Okay, that last sentence was a bit of an understatement. It’s a huge issue— one that is at the heart of the U.S. Constitution’s fourth amendment.  Today, the Supreme Court heard oral arguments in Kentucky v. King to find some consensus about an exception to the fourth amendment known as “exigent circumstances.”  I was particularly interested in this case and thus I give you a summary of the oral arguments today.

I. Basics of Search and Seizure

First, however, some background for the uninformed reader. The law is clear that police need warrants to search our home, car, apartment, etc… However, like always, there is an exception when police can conduct a search without first getting a warrant. Known as “exigent circumstances,” this doctrine allows the police to act when there is an imminent threat that physical evidence is going to be destroyed and there is not time to first obtain a warrant.

But there’s an exception to the exception (isn’t law fun?), which prevents officers from abusing the exigent circumstances doctrine. Put simply, an officer cannot intentionally create exigent circumstances just to work around the warrant requirements of the fourth amendment. But how far is the scope of this? Does it only apply to unlawful acts of a police officer (e.g. misrepresenting that you have a warrant and will burst in when you actually don’t have a warrant at all) or does it apply regardless of the officer’s intent? That was the primary issue before the Court this morning.

II. Background of Kentucky v. King

The facts were, for the most part, set aside in today’s arguments. However, a bit of context is useful. The defendant was arrested and tried after an undercover drug buy that took place in Lexington, KY. The police conducted a buy operation with a dealer, who walked out of sight. As officers entered the apartment, they were unclear about which of two units he entered. Smelling a marijuana odor coming from one door, they knocked on the door “loudly” and announced themselves as police. When the officers heard what they allege were sounds consistent with the destruction of evidence (this point is hotly contested by the defense as even arising to a level that would create an impression of exigent circumstances), they entered the apartment. When they found marijuana, the defendant was arrested.

The Kentucky Supreme Court ruled that the officers had created exigent circumstances and thus they could not avail themselves of this doctrine. Not surprisingly, the Commonwealth took exception to this interpretation and appealed. The defense held and continued to hold today that the Supreme Court was an improper forum since the defendant’s case had already been dismissed by the Kentucky Supreme Court and there was no further action to be taken in this specific action. It was , in my opinion, a rather clever argument but one the Court was not willing to entertain. In granting certiorari, it asked parties to brief only the exigent circumstances question.

III. Today’s Oral Arguments

Arguments commenced this morning at 11:00AM, with Joshua Farley, Assistant Attorney General for Kentucky arguing on behalf of the Commonwealth and sharing his time with amicus Ann O’Connell, Assistant Solicitor General. Ms. Jamesa Drake, Assistant Public Advocate, represented the respondent King.

In the beginning, the justices seem to take particular interest in the distinction of probable cause before and during the fact. Specifically, why prior probable cause of illegal activity was a necessary prerequisite to being able to enter a home/apartment from the smell of drugs seem to come. The Chief Justice particularly seemed to hint that he didn’t think any prior probable cause beyond smelling marijuana as an officer walks by an apartment would be necessary.

During Mr. Farley’s arguments, Justice Scalia highlighted an important point in asking what would happen if, rather than attempting to destroy evidence the defendant answered the door when the officers knocked. The assistant attorney general suggested that police here would be required to come back with a warrant rather than entering, prompting my favorite quote from the proceedings:

“JUSTICE SCALIA: So basically the – the police were taking advantage of the stupidity of the criminals, is that right?  That’s terrible, that’s not fair is it?”

The Assistant Solicitor General pushed for the court to assume an exigency occurred for the sake of arguments— a suggestion the Court seemed perfectly willing to entertain. The solicitor also seemed to suggest that the exception to exigencies (that an officer may not intentionally create an exigency just to work around warrant requirements), should not be maintained. When Justice Kennedy asked her, “Is it your position that the police can do anything that’s lawful, even if the purpose of doing so is to create exigent circumstances” her response was: “Yes …as long as there is no violation of the Fourth amendment, that is ok.” Justice Breyer really pushed her on this point, asking why requiring an absence of bad faith shouldn’t be implemented. While the assistant solicitor resisted giving ground on her position, Justice Sotomayor also seemed troubled by it, asking: “what makes that different than knocking on the door and saying, open the door or I’m going to kick it in?”  No real resolution to that question occurred before it was time to hear the respondent’s arguments.

And Ms. Drake hardly got off to an auspicious start. When she tried to preserve the factual issue of whether or not there was indeed an exigency in King’s case, the Court (Chief Justice Roberts and Justice Kennedy specifically) seemed much more interested tabling that issue and instead discussing whether or not the police can create exigencies in a general sense. Further, the Court brushed aside the problem that defense has been repeatedly arguing— namely that there is no further action for this case since it was dismissed prior to oral arguments being granted.  Throughout the remainder of Ms. Drake’s arguments, it continued to remain clear that Chief Justice Roberts was not her biggest fan. His questions were sharp, almost snarky. Overall, I would have to admit that I was not overly impressed with Ms. Drake’s performance. Several times, the Court pushed Ms. Drake to focus on the issue raised earlier regarding whether an officer’s intent should matter in considering if exigent circumstances overcome a lack of warrant.

It’s not clear that the Court was in love with the petitioners either, however. The Justices, while seeming generally unimpressed with Respondent’s arguments and proposed test, also expressed great concern about the possibility of abuse should they rule in favor of the petitioner. Several judges specifically probed the petitioner for an explanation of how ruling in the Commonwealth’s favor wouldn’t lead to widespread abuse of the exigent circumstances exception. Petitioner suggested no answer that seemed to convince the Court.

IV. Possible Outcome

To say that “it could go either way” would be cliché so I won’t. The Court made it clear throughout arguments that it accepted this case to resolve multiple approaches to this exigent circumstances issue across jurisdictions. Of some importance, thus, was what sort of test it would propose to unify jurisdictions in their approach. While I don’t think that the respondent’s counsel did a particularly amazing job, I also get the impression that the Court has some very serious concerns about ruling that an officer should be allowed to create exigent circumstances so long as it does not violate the law. I would not expect the Court to adopt the proposed “unreasonable” test advanced by the respondent but I wouldexpect to see a ruling that upholds Kentucky’s ruling and sets forth a modified version of the standards in Kentucky. The specifics in how the Court’s test will vary from that of the Kentucky Supreme Court is likely going to come down to differences in the Justices’ legal philosophy. Nothing new there. Now we’ll just have to wait for the opinion to come down. For attorneys on both sides of criminal law, I reckon it’ll be a long and impatient wait.

DECEMBER 2010: An Informal Introduction to Jury Psychology Research

One of my main academic interests is jury research.  Today, I thought I’d sit down and write informally about the state of our understanding of how juries operate.  I’m not aiming to make any particular arguments or to use this as a primer on jury research so excuse the lack of prolific citation to journal articles here.  However, I do hope to pass along a general sense of what we do and don’t know and how we’ve reached this point.

I. HISTORICAL BACKGROUND

First and foremost, it is important to note that there have been a variety of different fields that have undertaken the task of understanding American juries.  I personally categorize them into three groups: (1) descriptive, (2) normative, and (3) pragmatic.  Researchers in the descriptive category have primarily been psychologists and sociologists; academics trying to investigate the jury institution as an aspect of the individual and social existence.  The next group of persons is normative because these researchers usually are doing research for the sake of making a policy argument.  Typically, researchers in this field find their home in the legal field (e.g. law professors, public interest groups, etc…).  These people have concerns about how effective some aspect of the jury system is and perform studies to test how legitimate said concerns may be.  Finally, there is the field of pragmatic research.  Unlike the first two categories, which attempt to discover findings that can be generalized, pragmatic research is usually pinpointed to a particular case.  Those inside of the legal profession probably are already quite aware of consulting firms that aim to assist lawyers in picking the best possible jury for a trial.  These consultants will seek to analyze a potential jury pool and build a profile of jurors that may be favorable to a defense or plaintiff/prosecution team.  They may also put together mock juries and help a legal team assess what aspects of their case could play out well and which aspects they may want to adjust.  Jury consulting firms such asNational Jury Project and Keene Trial Consulting are just two examples of this type of research.

Naturally, the pragmatic research isn’t easily available to the public since it’s too fractured, case-specific, and—most importantly—subject to work-product privilege.  Descriptive and normative research is readily accessible however.  Here is a bit of history on how it has developed.

A. The Chicago Jury Project and its Progeny

I’m sure there were researchers studying juries before the Chicago Jury Project but it was this research project that really put jury research on  the map.  Social scientists and legal scholars at my alma mater University of Chicago performed a number of studies in the 1950s examining jurors.  The one that has always stuck with me, and that I think made the biggest impact, was a studying showing that judges and jurors reached the same verdict a majority of the time.  This contradicted the presumption that jurors lacked the necessary legal training to come to effectively arrive at an accurate verdict.

In the decades following the Chicago Jury Project, researchers in the economic and statistical fields set down to do what they do best: model things.  They tried to create formal, mathematical models of how jurors would behave and published these in peer-reviewed, academic journals.  Things were swell.

B. Enter Psychologists

Starting in the late ‘80s, juries began to see the psychologist treatment.  Researchers began to start publishing behavioral studies.  Such work covered areas as differences in male and female jurors, how jurors take cues from the presiding judge in a trial, how race of jurors and of the parties to suit matters, etc… The psychological treatment, as I term it, called into question how psychological tendencies affect a trial’s outcome.  Researchers such as Nancy Pennington, Reid HastieNeil VidmarSteven Penrod, and many others have helped build the body of empirical evidence we currently have on how juries operate.  For a great introductory book into modern jury research, check out: Inside the Jury.

Along with this behavioral research movement came research by legal scholars arguing for changes in how juries operate.  Continuing questions that policy advocates rightly bring up are: how does racial bias affects juries, how capable are juries of handling cases involving lots of expert testimony, to what extent do juries understand/regard the instructions read to them by the judge at the end of trial, is the number of jurors important to a just trial outcome, so forth and so on.  These inquiries continue to drive research even today.

C. Recent Trends & Developments

One of the more major developments in the field of jury research has occurred thanks to the State of Arizona.  In the past, studying juries was always a game of approximation.  We could conduct mock trials and we could interview jurors after a trial but when it came to observing the juror in action (deliberating during trial) we were empty-handed.  Not surprisingly, most local and state governments haven’t been keen on the idea of letting psychologists or other researchers come in and record what jurors are doing.  Indeed, the secrecy of the jury has often been touted as a major selling-point: a jury was free to sit down and tackle tough cases without fear of public criticism regarding their performance.  Beyond that, concerns that jurors in the criminal context might even receive threats if someone learned that they had been pushing for a conviction was a strong incentive for keeping jury deliberations off the record.  However, Arizona boldly went where few have gone and agreed to let researchers in to see how jurors deal with actual trials.  Neil Vidmar and Shari Diamond have been putting out findings since early 2000 on data collected in this project.  Opportunities like this one give us a wonderful chance to conduct research that is not only empirical but also has strong external validity.  I would personally hope that other jurisdictions start allowing for this similar method of research as it would provide for a previously-unavailable way of analyzing how juries differ across the United States.

II. WHAT WE KNOW

With over sixty years of solid research, one might properly ask what we’ve learned?  The answer is a lot…sort of.  I say “sort of” since most of this work has been based on experimental designs aiming to approximate the jury experience and I, as well as many others, have concerns about how generalizable these findings are to real courtroom experiences.  With that caveat, here are just a few of the things we know.

A. Demographics Matter

Maybe they shouldn’t.  Maybe justice should be blind to color, age, gender, and the like.  But juries, at least, aren’t.  Numerous studies by researchers such as Nancy King have provided evidence that the racial composition of juries as well as the racial identity of parties to a suit can have an impact on outcomes.  I doubt this really comes as a surprise yet sometimes formal data is necessary just to verify what we know intuitively.

B. Jurors Don’t Think Like Lawyers

This is, again, probably not much of a surprise.  After all, juries usually don’t have lawyers on them (though I’ve known a few friends who have had to serve jury duty despite being lawyers).  One example is a somewhat-debated model proposed by Reid Hastie and his colleagues in the ‘90s suggests that jurors follow a “Story Model” and weigh the evidence by trying to put together a cohesive story of the events discussed at trial.  One may or may not feel that this conflicts with how a legally-trained mind would analyze the facts— that gets into a question of jurisprudence philosophy that I will set aside for now.

C. Jurors Don’t Disregard Inadmissible Evidence

If you’ve ever suspected that juries don’t follow a judge’s orders to disregard inadmissible testimony, you’re right.  While not a universal rule, jurors do tend to discuss and deliberate information that was stricken or ruled inadmissible.  And indeed, this is why you will often see a skilled trial attorney ask a question (s)he knows will elicit an objection.  Even if something is ruled as inadmissible, getting it into the jury’s consciousness may be enough to do the trick— a fact that continuous to infuriate wide-eyed idealists.

D. Politics Matters

In my own research, I’ve found the most consistent predictor of conviction rates is a person’s political ideology.  The more conservative you are, the more likely you will be to convict someone.  This trend is so stable that, even if I don’t know any other fact about you, I can rather confidently predict how you’ll come down on criminal cases…at least cases where reasonable minds can differ.  In my scholarly writing, which I’m happy to share with those interested in it, I’ve suggested a number of reasons for this phenomenon.  I think a lot of it has to do with differences of philosophy in the underlying goals of a criminal system: is it for the sake of retribution or for the sake of public safety?  Those with the eye-for-an-eye philosophy are much more likely to support conviction and lengthy prison sentences.

E. Not All Hope Is Lost

Despite all of these characteristics suggesting jurors may not be models of legal reasoning, many researchers have provided evidence that we may be worrying needlessly.  Many jurors take their roles quite seriously and try to pursue justice.  Even in my own interviews with people who have served on juries, I’ve gotten the feeling that there is a general respect for the institution and belief in it.  Of course jurors will not be paragons of legal reasoning yet that’s not their job.  A juror is a fact-finder, not a judge of law.  As an underlying policy, the legal system presumes that the people most suited to trying and finding facts are peers of a defendant and not legal minds.  To that end, jurors are doing their jobs quite well.

III. MY RESEARCH

My own interests are a blend of all three categories I described supra.  As a researcher and academic, I’m always looking to see what psychological mechanisms are helpful to promoting just outcomes in trials.  As a soon-to-be lawyer with a passion for trial advocacy, I’m also interested to see what helps and what hurts a case.  I feel that there are still several areas of jury research that remained under-researched.  To that end I have attempted to investigate them.  For example, I’m particularly fascinated by juror decision-making at the individual level and what impacts the jury (as a group) has on the individual in coming to an informed decision as a fact-finder.  The effects that a group can have on the individual is a thoroughly researched aspect of social psychology and it only makes sense that other jurors impact how we process and evaluate evidence presented at trial.  Nevertheless, research on this area is sparse and I’m interested in exploring how the individual juror goes about processing a trial.

Another area that I’m hoping to research in the future speaks to differences in region and population density.  I’ve long been fascinated by how rural-urban divides and geographic divides (e.g. Northeast vs. West Coast) affect politics and would love to examine how this plays out in the legal system.  Admittedly, studying this is complicated by procedural and substantive differences in the law from one jurisdiction to another.  Nevertheless, it is definitely an under-explored aspect of research in academia that needs elucidation.

Finally, I would also like to examine the importance of specific allegations more thoroughly.  By this, I mean the type of crime a defendant is charged with or the type of civil liability a defendant faces.  It seems more than reasonable to believe that jurors may be more biased against defendants charged with sex crimes or with sexual harassment than with those alleged of something like trespass or possessing marijuana.  It seems to me that the more severe and or morally reprehensible an allegation is, the more a juror may be biased.  These are points in the literature that have little evidence, however.  Hopefully at some point, I’ll have a chance to explore them and perhaps author some research of my own on them.

IV. CONCLUDING REMARKS

Few legal institutions are as iconic as the jury.  We see it in movies, in television shows, in books…. and even though fewer and fewer cases go to trial these days, we prepare cases with the end possibility that a group of jurors will be evaluating our legal claims and making decisions about how strong our evidence is.  As such, understanding the mechanisms that drive jurors and juries is a crucial part of being an effective litigator as well as being, more generally, an enlightened member of society.  Research runs from the purely academic to the purely practical, from investigations into the juror as a member of society to investigations of what will win a particular case.  These differing approaches have all shown one thing if nothing else: the jury as a concept is an incredibly flexible and hard-to-pin-down target.  Because the composition of a jury changes from trial to trial, city to city, state to state, etc…. we have a very difficult time in describing what the American jury looks like and how theAmerican jury acts.  A better approach is to explore how we as people operate and how these psychological mechanisms carry over to the legal world.  This latter approach is one that I’m excited to be a part of and hope to continue contributing towards for many years to come!

Hopefully in the next week or so, I’ll have the time to sit down and write a more formal primer on jury research, exploring different methods of conducting research, different aspects of research, and different findings that have substantial evidentiary support.  For now though, just a note on the field.

Until next time, Merry Christmas and Happy New Year!

-Zachary Cloud

NOVEMBER 2010: A Commentary on Three Recent Publications (In 3 Parts)

Part 1 of 3

Well the season of law school finals is almost here…and that means I can’t devote as much attention as I’d like to all of the exciting things happening in criminal law as of late.  However, I did want to take a portion of time to discuss three noteworthy publications.  I think the best method will be to discuss them in three separate posts.

I will dedicate this article to laying the framework of criminal justice reform, then I will discuss a pseudo-study released by the Sentencing Project that acts as a nice companion/response piece to this article.  Finally, I’ll approach recent Gallup data regarding how we as Americans are perceiving crime rates.

THOUGHTS ON “REIMAGINING CRIMINAL JUSTICE”

The first matter I wanted to comment on briefly is a rather overarching paper by Klingele and colleagues from the University of Wisconsin Law School.  The paper is entitled Reimagining Criminal Justice and is forthcoming in the University of Wisconsin Law Review.  You can find the draft here (you can also find it on SSRN).  Like most law review articles, it’s not very short.  However, I’ll do my best to quickly summarize the arguments.

The article examines the aims of criminal justice from three points of view: efficiency, efficacy, and equity.  All of these possible goals are advanced in the name of public safety, which the authors suggest would be much more frequently achieved if we were to focus on prevention instead of reaction.  Perhaps the points most important to take away are cited theories from earlier work…work which propose that any crime has the following three impetuses: a motivated offender, a suitable target or victim, and an environment lacking capable guardianship.  Thus, the theory is that if you take away any of those three components it becomes impossible for crime to occur.  The authors suggest that there are three ways of taking away the aforementioned elements: (1) make crimes harder to commit, (2) increase the chance of detection, and (3) reduce the benefits derived from criminal activity.

As a whole, the article pushes for a much more participatory as opposed to authoritarian approach to criminal justice.  I like that but I suspect, based on my past psychological research, that there would be a significant divide between liberals and conservatives about the correct approach.  After all, these are essentially societal vs. personal accountability arguments at their heart.

Now, to my chagrin, the article spends no real time talking about the role of criminal defense attorneys in the process, instead considering the police, prosecutors, judges, and corrections officers.  I think it is a rather fatal flaw to not, at the least, acknowledge the profound role that public defenders and private defense attorneys play in shaping criminal justice.  But, c’est la vie.

The authors readily admit their arguments are heavily policy laden, and further admit that their point is more to encourage implementation of methods and tactics that research shows are working to great effect.  I do not disagree with their main goals but I do think their article may be a bit misleading.  Their aim is not actually to reimagine criminal justice but rather to redesign how we perceive and work to ensure public safety.  Given the significance of inchoate and victimless crimes in our current system, there is a lot more to criminal law than just public safety.  Whether or not criminal law should be about more than public safety is an entirely different consideration that I will not presently undertake.

Overall this law review article is definitely worth a read.  It offers some valuable points and, at the very least, a nice compilation of various data sources you might want to check out if you’re looking for information about the state of the criminal justice system (broadly defined).

In my next post, I’ll consider a recent paper that seeks to answer which is more effective: increasing the harshness of sentencing or the likelihood of being incarcerated?  Stay tuned; it’s coming in the next day or two!

-Zachary Cloud

Part 2 of 3

In my last post, I gave a general summary and reaction of a forthcoming law review article suggesting policy changes to the criminal justice system.  Today, I follow up on that post by discussing a briefing by the Sentencing Project.

THOUGHTS ON “DETERRENCE IN CRIMINAL JUSTICE”

First of all, some background.  I learned of this through the Sentencing Law and Policy blog, which I follow regularly.  You can download the report I’m discussing here.  It’s much shorter than the law review article I discussed previously, I promise!

The main thrust of the report is that certainty, not severity, of imprisonment is what works to effectively deter crime.  As with the law review article I summarized, this article places public safety as the bedrock goal, which we should be attempting to achieve.  The report contains collected research from criminologists which all advance this sentiment: “severity of punishment will have little impact on people who do not believe they will be apprehended for their actions” (found on page 2 of the report).

This is, doubtless, true.  There is an issue nevertheless with focusing on certainty, which the author does briefly acknowledge.  The author suggests that increasing certainty of incarceration across the board may not be very effective; if your likelihood of getting caught for even minor crimes increases then the result may only be reduced stigmatization of criminal behavior.

My own argument differs.  I suggest you cannot have effective deterrence without both severity and certainty.  Does it matter much that I will be caught of stealing a candy bar should I think that the punishment will only be a slap on the wrist?  Of course it does not.  Take any minor offense where jail time is an unlikely outcome and you will again find that likelihood of being caught does not matter much.  A crime has to, after all, appear unattractive to the committing party.  A potential offender needs to believe not only that he will be caught but that being caught is a meaningfully bad thing he wants to avoid.

There is another problem with the report.  It rightly points out that the rationality assumption required by formal economic models of deterrence makes little sense when nearly half of all criminals are under the influence of mind-altering substances when committing crimes.  Yet, if we accept this, why would we expect a potential criminal to form an accurate probability assessment?  Both risk calculations (certainty and severity) require rationality as their cornerstone.  Economic models can tolerate isolated irrationality but they cannot tolerate 50% irrationality.  I fail to see how the author has distinguished certainty evaluation from the problem she accuses severity of having.

My biggest complaint about this report is different still.  This report presents a decent review of past criminological work showing that increased certainty also increases deterrence.  It presents data that severity alone has not been working as is evidenced by recidivism rates.  It presents a strong argument that our tax dollars are being spent on policies that don’t work very well to deter.  Yet it provides basically no solution to how we can change the current setup.  I ask, what would lead to increased certainty of being caught?  Is it smarter policing?  More community involvement?  Education reform?  All of those possibilities are suggested by the law review article I previously reviewed.  I think those methods have merit but are not without costs of their own.  It would be nice to see this report address that.  Regrettably, it did not.

I don’t want to diminish the value of this report.  It might get some people to listen and consider reform.  It might put statistics and data in the hands of people who are otherwise uninformed.  Nevertheless, it unnecessarily reduces the interdependence of severity and certainty.  It fails to acknowledge their symbiotic relationship and their mutual reliance on rationality.  I find that hard to overlook.  I do recommend reading it and using it for any data you might want … just don’t expect an airtight analysis.

I think the real value of this piece is the conversation it can be placed into.  It pairs well with the law review article in considering what might work to reform or “reimagine” criminal justice.  It gets us thinking, which is always a great place to start.  To that end, the article is actually quite helpful.  Yet there is another piece to the puzzle of reform: the public.

Getting a community (or the public in general) on board will present new difficulties.  In my next post, I will discuss that in some detail by using a recent Gallup poll to illuminate the issue.  Stay tuned!

-Zachary Cloud

Part 3 of 3

First of all, Happy Thanksgiving everyone!!  I hoped I’d be able to write this earlier but free time has been in short supply lately.  If you’re like me, just having some downtime is a big thing to be thankful for.  Anyway, with the turkey almost done and most of the other stuff finished, I’m sitting down to finally close out my three-part commentary.  So, to that end, I present a discussion of recent Gallup data on Americans’ perceptions of crime.  As a heads up, I’m writing this between tending to the kitchen so I apologize in advance for typos or other inconsistencies.

THOUGHTS ON “AMERICANS STILL PERCEIVE CRIME AS ON THE RISE”

This recent Gallup publication caught my attention not only from a legal perspective but also from a psychological one too.  The article is a part of the annual Crime data that Gallup has been collecting since the early ‘70s.  As I first mentioned in an earlier post, they have recently released the 2010 data.  The poll aims to investigate what our perceptions of crime are both locally and nationally.  The web press release focuses on two variables: perceived crime rate and perceived crime severity.  Gallup also collects data on the respondent’s personal experience with being a victim of crime (e.g. “Please tell me which, if any, of these incidents have happened to you or your household within the last twelve months?”), which is an important thing to know in analysis; we might want to know if being a victim of crime makes one more likely to perceive crime as a problem.  Thus, I took it upon myself to dig deeper than what the web article displays and do my own analysis.  I downloaded their methodology report then copied and graphed the data tables provided for various questions asked.  I will first discuss their methodology, then discuss the local versus national distinction.  After that, I will turn to individual victim rates and what their impact may be, finishing with how this ties into my previous two articles on improving criminal justice.

Gallup’s Methods. This year, Gallup polled 1,025 adults (18 years or older) across the nation.  This polling was conducted by phone using random-digit dialing to ensure an un-biased sample.  Further, Gallup implemented a cell phone quota requiring that 150 respondents must be “cell phone only” and not have a landline.  I don’t know how they determined the exact ratio of cell phone to landline as it is not discussed in their methods report.  Nevertheless, the cell phone issue is a nice touch because many polls have been criticized for leaving out those who have gotten rid of their landline.  In fact, one of my family members has done this.  It certainly seems to be a growing trend and it’s becoming increasingly important to account for these people in a system that traditionally had not acknowledged them.

Two sample groups were taken based upon question rotation.  Put in plain English, half of the respondents were asked about local then national issues.  The second half were asked about national then local issues.  This way we can rule out or cancel out order effects.  Group A had a ±4 % margin of error at the 95CI, whereas Group B had a ±5 % margin of error.  Both are considered acceptable.

Gallup weights the results based on the typical demographic variables: gender, age, race, education, region, and type of phone they were polled on.  The only gripe I have is that they do not list n values for the previous years of the survey.  They only give summary statistics (in percentage of respondents), which makes what I can do with the data limited.

My Methods. Because all I have to work with are the frequency tables that Gallup provides, I couldn’t really dig into the regression models I’d hope to explore.  I was especially interested in examining crime perception as controlled by our personal experiences with crime.  In my own work, I have found this to be a somewhat less meaningful predictor variable than you might think.  Sadly, all I can do is take a look that what the descriptive data tell us.

Therefore, I copied the data tables provided by Gallup and graphed them using templates I used to employ when I was still doing psychological work.  A careful reader may note a couple things.  First, there is a lack of consistency in the‘90s with respect to data collection, which is why some of the years in that decade are not seen on this graph.  I do not specifically know if Gallup did not collect data in those years or if it simply chose not to provide the frequency responses.  Either way, the discontinuity in the earlier portion of the time series is attributable to Gallup, not me.  Second, I noted in tabulating the data Gallup provides that some of the years will have over or under 100% (always within ±1%) response when adding all of the categories together.  I double-checked my data entry and tried several times to figure out why this is but I cannot say for sure.  My best guess is simply sloppy rounding up or down.  Lastly a side note.  Some of the more artistic among us may not like the lack of color on these graphs.  That is intentional.  I was trained to avoid bias in every way possible and that includes color.  Using colors like red and green can convey subtle meanings, which I want to avoid doing.  I want the data and just the data.

Local v. National Crime Perception. Below I have displayed Figures 1 and 2.  Figure 1 shows how Americans perceive crime increase locally.  Specifically, this data shows a response to the question, “Is there more crime in your area than there was a year ago, or less?”  Four categories are measured for answers.  Respondents either answered more, less, same, or indicated that they did not have an opinion.  Figure 2 displays the same information but is responsive to the question, “Is there more crime in the U.S. than there was a year ago, or less?’  Figure 2 also indicates that Gallup collected this data in 1993 while the local crime rate perception was either not collected or not reported in their methodology.

Respondents' perceptions of local crime levels
Figure 1. Local Crime Perception
Respondents' perception of national crime rates
Figure 2. National Crime Perception

What we see first and foremost is the same general trend in both local and national assessments: from the early ‘90s to 2001, fewer and fewer people perceived crime as on the rise.  In 2001, the trend changed and more people started indicating crime is on the increase.  All of this is fairly intuitive.  The early ‘90s saw some of the highest crime rates our country has experienced so it only makes sense that people would pick up on that.  It’s also not so surprising to me that people would start perceiving crime as on the rise in 2001.  The September 11 attacks no doubt made all of us feel a bit less invulnerable and probably primed fear responses not previously active.

My issue with this data lies in the way Gallup has reported it.  Gallup was right to point out that actual crime rate levels are down all across the country … at least according to the Federal Bureau of Investigation statistics (data than can be particularly problematic when applied and interpreted the wrong way).  However, Gallup suggests that respondents’ answers of perceiving more crime flies in the face of the reality (decreasing crime rates for the past several years).

I disagree.  First of all, both on a local and national level, fewer people perceived crime on the rise than last year (on the local level, that falls within the margin of error however).  It’s indicative that, on the aggregate level, people are starting to respond to reduced crime.  Nevertheless, it’s interesting that nearly 70% of people said crime is up nationally when compared with only 50% who felt it was up in their area.  My hypothesis is that this is the same effect we see when applied to politicians, “I hate Congress; I love my Congressman.”

Also noteworthy is the comparison of people who felt that crime was the same on the local and national levels.  On the local level, this response has stayed at just under 20% since 2004 whereas it has stayed under 10% on the national level excepting 2003 and 2004.  This shows some support for my earlier hypothesis.  People have more information about their area and can judge it a bit more accurately.  On a national level, most people have only the media to inform their beliefs.  With crime a consistent go-to topic for news outlets, it should come as no real surprise that people feel it is on the rise across the country.   Let’s look at a little bit more detail and see if we can’t pinpoint what is going on.

Respondents' perceptions of how serious local crime is.
Figure 3. Perceived Seriousness of Local Crime
Respondents' perceptions of how serious national crime is.
Figure 4. Perceived Seriousness of National Crime

Above, are Figures 3 and 4.  I have decided to provide these in color because things start to get too confusing without it.  These two graphs are illustrative of how serious respondents perceive crime to be on a local and national level.  This data was only available for the last decade (and in fact, 2001 and 2002 were not provided either) so unfortunately I cannot look back into the ‘90s.  Here, respondents were asked, “Overall, how would you describe the problem of crime in [the United States the area where you live] – is it extremely serious, very serious, moderately serious, not too serious, or not serious at all?”  Figure 3 shows the results for local seriousness. Figure 4 shows results for national seriousness.  Also important to note, as the question wording above implies, these were counterbalanced so that half of people were asked about national seriousness first and the other half last.  That helps ensure that answers to one aren’t driven or influenced by the other.

What we notice here is that a decent portion of people thought crime wasn’t too serious or only moderately serious in their own area.  Indeed, more people thought crime was not serious locally than thought it was very or extremely serious.  On the national level, we see a distinctly different picture.  Here, people felt that the crime went from being moderately serious to very serious since 2009.  Both of those categories have remained well above the other ones (10 % or higher) since data collection began in 2000.  Also significant is that more people think that crime across the nation is “extremely serious” (just over 20%) than that it is not too serious or not serious at all.  Indeed, this trend has also been consistent since polling began.  Moreover, more people report having no opinion than believing crime is not serious nationally.

Again, I think this data may suggest that people are more in touch with their local area. Here’s what I mean.  Where are you most affected by crime?  Where you live or on some vague, national level?  No doubt, crime affects you where you live.  If we would expect one to be seen as more of a problem to you, would it not be the one that hits closest to home (quite literally)?  Of course.  Why then do people perceive crime as a more serious problem where it has a much less significant (if any) impact on their own day-to-day lives?  My proposed answer is that this data actually is showing a level of knowledge on the part of the respondent.  In your own area, you learn of crime not only through news outlets but from your own experiences, your conversations with co-workers, family, friends, and the like.  You have a range of instruments with which to estimate the crime situation.  On a national level, your information is more-or-less limited to what you can glean from the news.  And now we run into problems with how frequently you watch the news, what medium you consume (print, tv, online, radio, etc..),  so on and so forth.

Victim Rates. I think it’s also important to consider the data Gallup provides on victimization rates.  In particular, I have pulled out two variables that caught my attention.  The first measures personal or household experience with crime in the last year.  The second expands on that by examining the number of times the respondent or his/her household was a victim of crime.  The data are presented in Figures 5 and 6 below.

Respondents' personal experience with crime
Figure 5. Member of Household Victimized by Crime
Respondents' number of encounters with crime
Figure 6. Number of Times A Member of Household Has Been Victim of Crime

Figure 5 is an aggregation of positive responses to a variety of different crimes (e.g., being burglarized, being assaulted, etc…)  It demonstrates that the clear majority (around 75%) did not have any personal experience (measured as either to themselves or a household member) with crime in the last year.  It also shows that these trends have remained quite constant – far more so than people’s perceptions of crime.

Figure 6 expands on this by showing the number of times the respondent had personal experience with crime in the last year.  As we saw in Figure 5, the majority have none.  Of those that have any, around 15% had only one encounter and 10% had two ore more encounters with crime.  That these latter two numbers are so close (nearly within the margin of error) is suggestive to me that those are the respondents actually living in problematic areas.

I find this data interesting and I really wish I could cross-tabulate it against perception reports.  Yet, since I don’t have access to the raw data, I cannot do more analysis beyond what I have.  My suspicion is that those who have personal experience with crime tend to perceive crime as on the rise and as being more serious (a pretty uncontroversial hypothesis) but it calls into question those who have had no experience with crime.  These graphs show some of the most stable trends of all the data I’ve reviewed.  Logically speaking, it allows us to infer that actual victimization rates are much more stable than people believe them to be.  Admittedly, drug sales complicate this picture.  They are victimless yet very real crime that people may be aware of and report.  In general though, public perception of crime is not matching up with reality as both these two graphs and FBI statistics indicate.

Public Perception and Criminal Justice. Ultimately, I’m left wondering not only why this disparity exists but what its impact is on our criminal justice system.  I think information availability and diversity play a significant role in the perception process.  Few people are likely going to their police station to get crime data, fewer still are probably going to the FBIs website to see national trends.  Most of us are just busy people that briefly consume information when it happens to come our way.  Fair enough…but how will that affect our ability to improve criminal justice?

Perhaps not as badly as you might think.  Community involvement is repeatedly cited as a necessary element in crime prevention and deterrence.  The “it takes a village” approach has been tested with great success in a number of cities and it seems a promising way to help treat the root causes of crime.  Of course, this approach requires people to become engaged, which rarely happens when people don’t see something as a problem.  In a way, peoples’ misunderstanding of crime trends may be a blessing in disguise because it may motivate them to become proactive in helping reduce the issue.

This does not come without a drawback however.  Facilitating community involvement has to work in concert with traditional methods of criminal justice (e.g. policing, prosecuting, rehabilitating, etc…)  If local government is ready to embrace holistic approaches to crime deterrence then this misperception of the public could be helpful.  If the local government is only wanting more of the same (e.g. elect me; I’ll be tough on crime) then this public misperception is certainly to the detriment of everyone.  Voting for the “tough on crime’ candidate is the easy way out.  Beyond that, it rarely accomplishes the intended goal.  Too often, prosecutors and judges aim for appearing tough on crime rather than actually effecting justice, at great cost to everyone who is fed through the system.

I certainly have some uneasiness as an academic about the public lacking accurate data or, at the least, choosing not to seek it out.  I also have uneasiness that this lack of accurate info could be harnessed to merely promulgate the current trends rather than actively improve them.  However, I must admit there is a certain silver lining in all of this.  It might, just might get people proactively involved.  And if that occurs, we’re certainly on the road to a better place.

-Zachary Cloud

NOVEMBER 2010: An Essay on Improving the Criminal Justice System

I want to be a bit less formal today.  Some of my past writing has, by way of necessity, been quasi-legal in nature; not this time.  No new cases or issues are going to be introduced.  Instead, I want to explain what I meant in my lastpost when I said that it’s a bad idea to make private attorneys take pro-bono work.

I. FOUNDATIONS

Let me begin with a very (perhaps frustratingly so) broad question: what is the point of our legal system?  No doubt, it has a wide range of purposes yet at its core is an ability to reduce uncertainty.  Humans hate uncertainty; we deplore it.  It’s why we seek answers.  It’s why we ponder whether or not there is a God, and it’s why we have government.  Without government we have anarchy (in the pure sense of the word).  Applying a set of authorities and laws to people provides predictability if nothing else.

For example, we don’t have to wonder about what will happen if someone tries to take over our town and establish themselves as the town’s new leaders; we know what will happen.  We know that anyone who tries such a thing will be subject to a standardized procedure: they’ll be confronted by law enforcement, then charged with varying crimes, then processed through the court system, and finally a judgment as to their guilt or innocence will be made.  It’s the same in every state and territory.

Indeed, we don’t even have to wonder about who will have authority to create such a structured system for dealing with crime (or any other aspect of life, for that matter).  We know that there will be elected representatives who we, as a people, vote for and send to a legislature to make laws.  Do we know who will be elected or what precise laws will be proposed and passed?  Of course not.  What we have is an instrument that reduces uncertainty and allows us to know the mechanisms that will apply to us in varying situations.

What is my point?  It is that the goal of our justice system does not start with being fair or just.  Those are, doubtless, goals of it yet they are not the fundamental aim of it.  If what we want is predictability in the criminal law system then we certainly have it.  We know about 80-90% of people charged with crimes will be poor and that most of those people will be minorities.  We also know most of those defendants plead out.  I’m writing this not to say that we need to fix the system but rather improve it.

II. IMPROVING THE SYSTEM

So, how can we do that?

Well, there are a lot of ways.  Some of them are more tenable than others.  At a base level we could do away with an adversarial system for criminal matters and assume an inquisitorial one.  An adversary system is pretty much what it sounds like: two sides go head to head and one wins.  The idea is that opposing biases will cancel out in favor of the truth but it seems like, at the very best, a clumsy way to arrive at the truth.  At its worst, it creates incentives for two sides to do whatever they can to win thus throwing common sense and ethics out the window.

I have personally seen this happen both with prosecutors and defense attorneys.  Take the Connick v. Thompson case that is being considered by the US Supreme Court.  There, the DA of New Orleans (Harry Connick Sr., father of the famous singer) created a system of “closed” discovery because he didn’t want defense attorneys having anything other than what was absolutely required.  That zealous pursuit of winning cases was at the expense of justice and nearly cost an innocent man his life.  Prosecutorial misconduct is nothing new but what drives it?  A desire to win, to look tough on crime, so forth and so on.  A natural consequence of the adversarial system.

The trend occurs with defense attorneys as well.  I’ve worked in a couple public defense firms with a dedicated “conflict” division.  You know why it exists?  Because when two defendants are arrested together, the best strategy usually involves blaming the other guy, regardless of what actually happened.  A more appalling strategy is seen in a rape case, where the defense might well use the “she was asking for it” argument.  These are once again products of an adversarial system.  Both sides have an obligation to put on the best possible case for their clients…and that doesn’t always lead to making a case that exposes the truth.

An inquisitorial system would help reduce or perhaps eliminate this obfuscation of the truth in search for a win.  In such systems, a (hopefully impartial) judge takes an active roll in fact finding as well as resolving matters of the law.  Lawyers are still present here, but take a back-seat role.  We are close to such a system in areas like family law where a judge may have substantial involvement in dealing with divorce issues, custody arrangements, etc… and it works very well.  However, the adversary system is heavily ingrained in American criminal law and such a wide overhaul is unlikely to occur any time soon, if ever.

Therefore, we are constrained to improve aspects of the pre-existing system.  Can it be done?  You bet.  A big improvement would be in making changes to how indigent representation occurs.

In large American cities, there is almost always a dedicated public defenders office, which deals exclusively in defending people accused of crimes who cannot afford attorneys.  In most suburban and rural environments, a different approach is employed.  There, private attorneys may be appointed to represent indigent defendants.  This method may be employed for varying reasons: not enough defendants come through the system to warrant funding a dedicated office, not enough crime occurs in general to warrant a dedicated office, etc…   Some places, such as Washington D.C., utilize a sort of hybrid: a dedicated firm deals with serious charges and minor charges are dealt wit by private attorneys.

There is a problem with “privatizing” or “subcontracting” legal counsel for indigents.  The biggest problem is that many places do not limit this “outsourcing” to criminal defense attorneys.  I have heard of situations where a tax lawyer was assigned a criminal defendant who was poor.  While I have nothing against tax lawyers, they are not usually equipped adequately to mount a vigorous defense in a criminal trial.  Trying a criminal case is an art form that requires skill and practice…and a tax lawyer who usually doesn’t even see the inside of a court room has neither the skill nor the practice to put on the show a jury has to see in order to exonerate a client.

Another huge concern is the conflict between paid and unpaid work.  Some jurisdictions provide compensation to attorneys for performing this indigent defense obligation … but many do not.  Faced with the issue of determining where you should focus your time and efforts, it’s impossible not to remember which cases are paying the bills and which ones are not.  This means that, from the start, the indigent client never receives the same quality of defense that a person with a bigger pocket book gets.

Aside from those matters, there is a reality that most private firms do not have access to the necessary resources.  A well-made criminal defense requires investigators (private or in-house), it requires access to search people-search databases that are extremely expensive (and require a background check before being granted access).  All of these things and more are crucial for properly defending a client … and they are not cheap.  Most private firms do not have or are not willing to allocate the necessary funds to ensure such tools are in place for instances when pro bono work may come their way.

For all of these reasons, creating a dedicated public defender office is a crucial element to approaching fairness and justice in the legal system.  A public defender system is dedicated to handling criminal defense of poor persons and thus dedicates its resources to the tools and staff it needs in order to provide zealous defense.  Are public defenders typically overworked?  Yes.  Is there still a quality gap between private and public criminal defense?  In too many places, yes.  But it is still better than asking private attorneys to do the job.  First you crawl, then you walk, then you run.  Before we focus on reducing the workload on public defenders (which unavoidably brings prosecution levels into the equation), we need to increase the number of places that rely upon a dedicated office instead of outsourcing.

It’s far easier said than done because, after all, this is a funding issue at heart.  If all governments could afford well-staffed public defense organizations, they wouldn’t be outsourcing in the first place.  The process of putting indigent defense in private attorneys’ hands is a method of cost defrayment (it costs very little if anything to do).  And doubtless, the funding issue cuts yet another way: determining who gets how much.  By that, I mean how much of available funds go to a prosecutor’s officer and how much to a public defense office?  I know from personal experience that in New Orleans, the prosecutor’s office usually received 2 to3 times the amount of money as the Orleans Public Defenders.

Now, a hasty person may suggest that clearly the fairest thing to do is to give them both half.  That’s not necessarily true because the prosecutors will go after defendants who are not poor which implies that OPD does not have the exact same workload burden as the prosecutors.  But it definitely seems fair to suggest that a budget should be proportional to what is necessary for properly processing cases.  What those numbers are is no doubt a more complicated formula than I want to deal with right now, but I’m willing to bet the margin is more narrow than 3 to 1.

III. CONCLUDING REMARKS

The truth is, there are continual challenges to how we can make a legal system fair and those challenges are magnified under an adversarial approach.  The theoretical “canceling out” of bias can only occur if both adversaries have equal capabilities; we know for a fact that this is most often not the case.  Still, that doesn’t mean we can’t or shouldn’t work to reduce the disparities that exist.  On the contrary, it’s more than doable and certainly worthwhile.  What it requires is a balancing act of funding; of providing cities, towns and villages with money for a dedicated public defense firm and determining how to divvy up money between prosecutor and public defender.  Now, I’m no public policy expert nor economist so I don’t know exactly what the best methods of acquiring and distributing funding might be.  All I can say is that it’s time we stopped outsourcing criminal defense.  Some cities have done this; too many haven’t.  If this subcontracting could get the job done at the desired level of quality, I’d have no issue with it.  Unfortunately, this approach just doesn’t work.  It produces subpar results and I’m not comfortable with subpar results when they affect a person’s physical liberty.  The beauty is that there is hope.  The system is not broken it just needs some improvement.  And that, I think, is more than achievable if we just make it a priority.

-Zachary Cloud

NOVEMBER 2010: Turner v. Price: Thoughts on Civil Contempt

Last week I wrote a general article introducing Turner v. Price, a case on the Supreme Court’s docket, which will be heard sometime in early 2011.  The primary issue in the case is whether or not an indigent defendant is entitled to have a court-appointed attorney when (s)he faces a civil contempt hearing for failing to provide child support.  I want to discuss some follow-up thoughts I have had since last week and advance some positions about the matter.  I will first provide a quick summary of the arguments on both sides of the case so that we’re on the same page.  Next, I’ll discuss some of the specifics about the civil contempt context and what makes it unique.  Finally, I will list some of my thoughts and arguments regarding the case.

I. SUMMARY OF THE ARGUMENTS

The right to an appointed counsel in criminal matters is well-established, both in the Bill of Rights and Gideon v. Wainwright, 372 U.S. 335 (1963).  Like every challenging legal issue that we face, the difficulty lies in figuring out how this right applies in murky situations.  In Turner v. Price, we meet such murkiness head-on.  The matter is a court hearing for unpaid child support.  It has seemingly nothing to do with the criminal law world whatsoever — a fact that would typically mean there is no Constitutional mandate for a court to ensure legal counsel.  Granted, like every other imaginable aspect of the law, there are some limited exceptions where civil actions may require indigent representation. See, e.g., Lassiter v. Dep’t of Soc. Servs, 452 U.S. 18 (1981) (finding an indigent parent may have a right to counsel when losing custody of a child could result).  Nevertheless, those limited exceptions are just that: limited.  What complicates Turner is the possibility of civil contempt.  Because Mr. Turner had failed to pay child support as ordered by the court, he was held in civil contempt and faced a number of punitive possibilities as a result.  One of those possibilities was jail time, which was exactly what he received.  What would otherwise be a clear civil matter is complicated by seemingly criminal concerns.  Are those concerns enough to make this case fit under Lassiter or is Mr. Turner without recourse?  That is the issue that the Supreme Court will have to work out.

II. SPECIFICS OF THE MATTER

Since I wrote last week, I have gleaned some additional information on contempt hearings, how they fit into the child support framework, and what the rights to counsel are from jurisdiction to jurisdiction.  For a very thorough treatment, see 32 A.L.R.5th 31 (1995).  As the aforementioned article suggests, the rights to an attorney during a contempt proceeding can vary from state to state quite a bit.  Nevertheless, the clear majority trend among states is to guarantee any indigentperson facing incarceration the right to counsel, regardless of whether the hearing is a criminal or civil matter.  In other words, in most places a defendant like Mr. Turner would have no need for concern because the state has guaranteed a protection above and beyond what is clearly covered in the U.S. Constitution.

However, there are still states that are not willing to make such an extension and South Carolina is one of them. Mr. Turner’s matter shows a fundamental “catch 22.”  The only way a defendant who owes child support can avoid contempt is to prove (s)he cannot afford to pay.  The only way (s)he can prove a lack of funds is to hire an attorney.  If the defendant could afford an attorney, (s)he could afford to pay the child support in question thus having an attorney would make little difference. As such, the problem becomes clear: what state you go to court in could determine whether or not you go to jail.

The interesting twist is a distinction between civil and criminal contempt.  Ironically, you could potentially face more jail time if found in civil contempt because the judge has more discretion over the sentence.  This is of particular importance, because it implies something else: a judge has more freedom to find alternatives to incarceration in the civil contempt context.

One might question the necessity of alternatives.  Does a judge need that many options?  Do we want such wide latitude in these matters?  To answer that, I would submit, we need to know a bit about the types of people that may face civil contempt and what we hope to accomplish with the instrument.  I will focus on the child support context.  According to the amicus curiae brieffrom the Center for Family Policy and Practice, a great majority of unpaid child support can be attributed to parents below the poverty line (see pages 7-8 of their brief).  Who is bringing the claims for child support?  Consider the usual scenario: a couple splits up, with the mother retaining custody of the kid(s), which happens almost every single time.  The father is to pay child support should the mother request as such.  Quite often, the mother requests support in the first place because she herself is living below the poverty line.  When that is the case, the government does the legwork.  And so, the typical scene plays out like this: the government comes after the non-paying father.  Unless he can prove an inability to pay, he’ll face some consequences that are likely to be determined widely by the presiding judge.

III. MY THOUGHTS AND ARGUMENTS

The difficulty of this issue is not lost upon me.  On the one hand, a method of imposing sanctions for non-compliance is crucial if anyone is to have an incentive to pay his or her due financial support.   On the other, so many of the cases where payment isn’t made involve a parent who truly cannot pay.  What is to be done?

I suggested earlier that we need to give careful consideration to what the goal of contempt is to answer such a question.  Is it merely to incentivize compliance?  Is it to ensure the mother (or less often, father) gets the money she needs in order to raise her child(ren)?  The court certainly might hope for both, I imagine.  They do not seem to be competing goals, but they may not both be achievable in each case.  If a parent is thrown in jail, (s)he is certain to lose any job and thus any way of paying.  The support-seeking parent is no closer to seeing a check than before the matter went to court.  So what should be our top priority?  If you’re reaching for the “it depends” answer, then I think you’re right.  Yet, I’d ask you to identify upon what it depends and  I’d like to submit that it depends upon the good faith of the non-compliant parent.  After all, how can we feel a great need to exact punishment on a parent who made every effort to provide and yet was still unable?  On the other hand, how can we excuse the parent who intentionally refuses to provide support for no better reason than “I don’t want to?”

These difficulties suggest differing approaches are suited to differing situations.  The good faith parent might be better suited to register with a temporary employment agency and take steps to acquire a job.  The intentionally evasive parent may require a bit harsher treatment such as jail time.  It is not so unbelievable that a good faith actor could quickly turn into the latter, intentional evader should (s)he not comply with an initially merciful sanction.  Are harsher punishments necessary in such instances?  I think it seems fair to say yes …but I’d ask how many times is such a devolution likely to occur?  And is that number so high that the state couldn’t afford to provide attorneys in such situations?  After all, that’s a key argument for the Ms. Price side.  The respondents in Mr. Turner’s case suggest that requiring states to provide legal counsel to every indigent, non-paying parent haled into court would create a huge financial hardship on the state.  It is an argument I reject.

I reject it for several reasons.  First, there is no reason why every non-paying parent should have to face a possibility of jail time.  Such a measure should be reserved for situations where lesser deterrence mechanisms have not or will not work.  Remember, a parent in jail is a parent who cannot contribute any money to a child’s custodial parent.  Do we really want to put someone in jail for failure to pay unless it’s the last resort?  I, for one, can answer that question with a definite no.

Even if that argument fails to persuade, consider the reality.  Most states do require a right to counsel for indigent defendants facing civil contempt.  Are they hurting?  No.  Do the few states not willing to afford such a right appear to be doing better off financially?  No.  Even the most punitive-focused person would have difficulty suggesting that a legal counsel requirement would actually create a significant financial burden.  Especially since there are ways to implement the requirement without incurring any expenses: private attorneys could be made to fulfill pro-bono requirements at no cost to the state government or its citizens.  Now, I personally think those methods of public defense are a bad solution (see here for why), but it would admittedly be an important start…and certainly better than no representation at all.

Finally, I would argue that, regardless of the previous two reasons, undue financial burden is no excuse for not providing legal counsel to those who may face jail time.  There is strong caselaw support for the right to counsel being a fundamental, constitutional right (as I discussed last week).  There is a good reason for that.  We subscribe to, above all else, three fundamental rights all Americans have: life, liberty, and pursuit of happiness.  Our liberty is not a right to be limited lightly.  It matters not if restriction of physical liberty follows a robbery conviction or a failure to pay child support; it’s a huge thing to lose.  This is the logic behind a right to counsel.  Few people have the legal aptitude to properly defend themselves, which is why a lawyer is crucial to ensuring a person receives an adequate defense.  Without an attorney, we face a great possibility of unfairly losing our right to liberty and that’s a fact that remains true regardless of whether the punishment is deemed “criminal” or “civil.”  The undue financial burden argument couldn’t pass muster in Gideon and it’s hard to see how distinguishing between what’s a civil or criminal punishment is anything beyond semantics if the end result is a jail cell either way.  Even if imposing a right to attorney requirement on civil contempt hearings would create significant costs, it seems hard to argue this would outweigh the importance of protecting due process.

IV. CONCLUDING REMARKS

The difficulty of weighing and prioritizing competing interests is no new challenge for the court system in America.  However, when push comes to shove, almost nothing is placed above our right to physical freedom.  It’s why we have public defense rights.  We believe the cost of providing such an infrastructure is worth it if the end result is preserving our due process rights.  There is no reason for me to believe such logic should not apply in a civil contempt hearing such as the one Mr. Turner faced.  The good news is: there is little reason to believe it should have to be an “either or” situation.  Most states have successfully implemented public defense into the civil contempt framework without incident.  And even if the remaining states are unconvinced, they need only remember that civil contempt proceedings allow for a wide range of outcomes — jail time being only one.  There are a lot of alternatives and many of them would probably be more effective anyway.

Will the Supreme Court see it this way?  Now that’s a question that only time will tell.  But of course, I’ll keep following the case and keep posting updates along the way.  For now, it’s just a waiting game.

-Zachary Cloud

OCTOBER 2010: Turner v. Price and its Importance in Indigent Defense.

I wanted to take some time out of my schedule to discuss Turner v. Pricewhile it’s still recent and I remember my thoughts on the matter.  First, I will provide some basic background on the case.  Then, I will discuss the basic legal and policy arguments of the case.  Finally, I will turn attention to my predictions and the importance of this case for indigent advocacy in general.

I. HISTORY OF THE CASE

What is this Turner v. Price case I’m talking about?  The answer, thankfully, is rather straightforward.  This case involves two indigent parents involved in a dispute over child support.  The mother, Ms. Price, brought a straightforward court claim against Mr. Turner for child support he owed to their daughter.  So far, nothing out of the ordinary.

The noteworthy aspect of the case is that Mr. Turner is indigent, a formal term for a person who is poor; presumably below the poverty line.  In terms of full disclosure, both Ms. Price and Mr. Turner were indigent parents.

The court in this case held Mr. Turner in contempt for failing to pay for his child support obligations.  A proper defense to this failure is an inability to pay based upon lack of necessary income.  If that’s the case, why did the judge hold Mr. Turner in contempt?  There is both a broad and specific answer.  The broad one is that the poverty defense is an affirmative one — one that a defendant must prove in order to avoid being held in contempt.  The specific answer is that Mr. Turner lacked an attorney, who would have certainly asserted this defense.

In these situations, a person can typically be held in either civil or criminal contempt, the specifics of which vary by jurisdiction.  This case occurred in South Carolina, where a person facing civil contempt may be incarcerated as a result.  That’s what occurred with Mr. Turner, who was sentenced to serve jail time for being what most us know in lay terms as being “a deadbeat dad.”

Mr. Turner appealed his case all the way up to the South Carolina Supreme Court on the grounds that he was entitled to have an attorney appointed for him since he could not pay for one on his own.  The South Carolina Supreme Court disagreed with his claim and, as a result, he petitioned the US Supreme Court to hear his case.

Yesterday, it agreed to do that.

II. LEGAL BACKGROUND

The arguments in this case are quite well stated in the various briefs that have been submitted to the Supreme Court and for those interested in more detail, I recommend reading them.  Here, I aim only to provide a basic summary of the various points to be made.

A. Background on the Legal Right to an Attorney

This case probes at a murky area of an otherwise-clear aspect of the law: an indigent’s right to counsel.

If you have ever watched a detective TV show, you’re probably familiar with the Miranda warning that a suspect gets read to him/her when arrested.  Among the rights defendants are informed of are rights to counsel.  “You have the right to an attorney.  If you cannot afford one, you will be provided one by the state.”  Indeed, this right is as fundamental as the 6th amendment to the United States Constitution, which says in relevant part that, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”

Although this right originates from the Bill of Rights, it is understood through the modern lens of Gideon v. Wainwright, 372 U.S. 335 (1963).  TheGideon case is one of those biggies; one of those cases like Brown v. Board of Education or Palsgraf v. Long Island Railroad Co. that every student of the law is bound to learn about.  In Gideon, the court held that the right to counsel in criminal matters is one that states must provide for due to the 14th amendment.  There, the rationale was straightforward: most people lack the legal skill and expertise to properly defend themselves in court.  Therefore, this is an even more acute problem for poor people, who are statistically less likely have adequate education and resources… or the know-how to seek someone who does have the requisite skills.  Put another way, indigent defendants are a vulnerable population.

Behind this logic was an important consideration: the severity of the outcome.  In a criminal matter, a person faces not merely the possibility of economic damages but the very real chance of loosing personal freedom.  To restrain liberty is a serious matter the Court was not willing to take lightly.  It seemed only natural then that failing to provide a poor person an attorney was therefore failing to afford him or her due process.

Less natural was just how far this extends.  In the context of a person accused of a crime, a right to have a public defender or court-appointed attorney is obvious.  But what about in a civil proceeding?  If I sue a poor person for hitting me in a car-crash and causing me injuries, do they have a Constitutional right to an attorney?  Cases relying on Gideon have come to the conclusion that the general answer is no.  Such cases include Scott v. Illinois, 440 U.S. 367 (1979)Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981); and Alabama v. Shelton, 535 U.S. 654 (2002).

The case of Scott cited above worked to clarify another court ruling:Argersinger v. Hamlin, 407 U.S. 25 (1972).  In Scott, the court held that a criminal defendant could not be sentenced to any term of imprisonment (regardless of how short) unless (s)he had first been afforded the right to have assistance of counsel.

Lassiter is the big case that contemplates whether this extends beyond imprisonment.  That case was a family law issue concerning the potential that an indigent mother might have her child removed from her custody by the State.  There, the court considered the possibility that depriving a parent of custody over his or her child might be so serious as to invoke the due process concerns typically raised under more traditional Gideonsituations.  The court in Lassiter said a lot that we still abide by today.  They provided a litmus for determining when indigent civil defendants must be afforded an attorney.  More to the instant matter, they determined that the one clear situation where an indigent has a right to counsel is when physical liberty is threatened (i.e. possible imprisonment).  Unlike other cases that had suggested only a criminal defendant has a right to an attorney, Lassitertells us that anyone facing the possibility of jail has a Constitutional right to counsel.

Alabama acts as a reinforcement of Lassiter, confirming that what triggers a right to counsel is not the limited scenario of a criminal defendant facing a trial, but anyone facing imprisonment at any stage.  In this case, the matter was one of a suspended sentence.  The Supreme Court determined that even after being convicted, an indigent still has a right to counsel when issues of sentencing may arise that would alter the inmate’s physical liberty.

All of these cases point to a common, unifying theme.  Your right to be free is a fundamental one; one that we have determined as a society cannot be cast away lightly.  This right is indeed so important that the courts have required federal and state governments to ensure that the poor have a right to legal counsel, regardless of their ability to pay.  Without this provision, the deck would be stacked against the defendant from the very beginning, tipping the balance of power in favor of the government and creating a de facto environment of guilty until proven innocent.

B. Indigent Rights in the Civil Contempt Context

The case of Turner v. Price raises a really interesting problem, albeit one I do not believe is hard to resolve.  The law is very clear in the criminal context and almost as clear in the civil.  Because civil cases do not usually have any bearing on a person’s physical freedom, the courts have usually held that there is no right to a court-appointed attorney should the defendant be indigent.  Now, there is a rather compelling argument that this rationale is flawed (for a thorough treatment, see this article in the Georgetown Journal on Poverty Law and Policy) but the courts have not been quick to open the doors wider than they already are.

The situation in Turner mixes the two a bit.  What is ordinarily a straightforward civil action for money (specifically, child support) crosses into the criminal world to the extent that it threatens defendants with jail time should they not make good on their legal obligations.

On the surface, it seems like a fair enough thing to do, at least if we view it in the context of a nefarious parent intentionally trying to duck child support without any good reason.  To that end, many have advanced the argument that jail time in such a situation is not comparable to jail time in a criminal action because the defendant “holds the key to his release.”  What does that mean?  It means that as soon as the defendant pays his/her child support, (s)he is free to leave prison.  Unlike a criminal matter where the judge sets a term of prison time that a defendant must accept, the idea here is that a defendant has direct control over his or her incarceration.

This argument makes little sense in the indigent context because that “key” to freedom is money … something a defendant who is poor clearly does not have.  For that reason, a large number of advocates have likened this case to a debtor’s prison, where the defendant (in this case, Mr. Turner) is imprisoned simply because he cannot pay.  I think this analysis is correct but that the argument is not even necessary.  It is quite clear that the courts have deemed right to counsel to be crucial in any situation where a person might be imprisoned.  The notion that it would apply in every context except the civil contempt hearing makes little sense if any.  Indeed, it is every bit as important in a civil contempt hearing because jail time is a highly likely result unless a defendant can prove his or her poverty.  In other words, there is a presumption of guilt in the absence of evidence to the contrary.  If we believe defendants deserve attorneys when they are presumed innocent, why in God’s name wouldn’t we believe that defendants deserve counsel when the default option is that they will be ruled against?

To me, the matter is quite clear.  An indigent is already a member of a vulnerable population.  Beyond just lacking the actual resources (i.e. money) to litigate matters effectively, they generally lack the knowledge of where or who to turn to in getting help.  The argument that an indigent somehow has more control in the civil contempt setting or that such a situation is distinguishable from the point of Gideon is a grand stretch.

III. PREDICTIONS & IMPLICATIONS

As I noted earlier, the Supreme Court has agreed to hear Turner v. Price, which means that we will (hopefully) get an answer to what rights an indigent has in the civil contempt setting.  Whether or not the answer will be favorable to indigents and how widespread its implications will be are what I will now discuss.

A. How The Court Might Rule

I think the case is not that difficult of a matter to resolve.  Generally, the caselaw is fairly clear on the matter that when imprisonment is a possibility for a defendant, there is a right to counsel that a government must support. However, the Court asked both parties to answer an additional question in their briefs: does the US Supreme Court have proper jurisdiction?

What’s going on here?  I’m no veteran reporter of the Supreme Court nor do I have an “in” at the justices’ chambers.  However, my guess is that this is indicative of a tension between justices regarding the 14th amendment issue.  I suspect one or more of the justices were hesitant to consider this a constitutional matter and agreed to grant cert on the condition that the parties persuade them of it.  Based on the same logic I cited in the previous section, I think the due process matter is a fairly obvious one.  Nevertheless, it would seem that someone on the Court is not so convinced.

It may also be that the court is looking for a way to rule in South Carolina’s favor without overturning the traditional Gideon logic.  Attacking Mr. Turner’s claims on their substantive merits will almost certainly redefine much broader conceptions of what an indigent’s rights are and the Court may, for good reason, want to avoid doing that.  Now, as to why they’d want to give this one to South Carolina?  I honestly don’t know.

My prediction is that, so long as the jurisdiction question doesn’t hijack this case, the Court will rule in Mr. Turner’s favor.  The respondent’s arguments are weak and make little sense in the context of the current Gideonlandscape (for all of the reasons I noted earlier).  On the other hand, the plaintiffs arguments are well-made and on point.  Without some major innovation on Ms. Price’s part, it seems pretty easy to say this one goes to Mr. Turner.

B. Implications of this Case

The very interesting consideration is what effect this case will have on indigent defense in general.  Here, the Court has a lot of power and it ishere, that I think it becomes much harder to predict what the court will rule.  I said previously that I think this case is a fairly straightforward win for Mr. Turner.  But how far will that win go?

Will the Court narrowly construe a finding to apply only in civil contempt cases or will they find that civil defendants more broadly have a right to counsel?  They already suggested that circumstances other than jailtime might warrant right to counsel, as we saw in Lassiter. Would they be willing to clarify that in a new opinion or perhaps even extend it?  These questions may give us some hope but I doubt that the Court will go very far.  That the Court brought in a new hurdle for parties to overcome is suggestive of their cautiousness with this case.  Moreover, we know that the court is not especially liberal these days and may not be in favor of a sweepingly progressive change in the way indigent defense is conducted across the country.  My prediction is that the court will hold in favor of the plaintiff, but only in the very narrow circumstances of civil contempt proceedings threatening imprisonment.

Even should they rule that way, might it still have an impact on lower courts to further extend an indigent’s right to counsel?  I think it is entirely possible but qualify this by noting it really hinges on just how specific the judges are in the final opinion.  If they take great care to be specific, I think lower courts will feel necessarily bound to apply Turner v. Price in a very narrow set of circumstances.  However, if the justices are less careful with their words then I think we might very well see courts running with this opinion.

I think the most realistic assessment is that Turner will lay groundwork for further improvements and extensions of indigent rights.  This may and probably will not be the case that makes great advances beyond the limited criminal context.  However, it’s an important precursor and building block for future cases.  Hopefully, I think we will see Turner as opening the door that had previously been so decidedly shut on any case that wasn’t criminal.  And even if that’s all it does, I think it will be a major victory for all of us that are so invested and committed to improving indigent rights.

IV. CONCLUDING REMARKS

I think this case presents an interesting take on indigent rights with a fairly clear answer.  What exactly the Court will do is always hard to predict but we may get a better idea once oral arguments are held.  And when that occurs (the specific date has not yet been scheduled), you’ll be hearing from me again!

-Zachary Cloud

© 2010 Zachary Cloud

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