The Criminal Lawyer

A year and eight days ago, the Supreme Court took the unusual step of granting an “original writ,” and handed down a novel decision directing a federal court to revisit the murder conviction of Troy Anthony Davis by allowing Davis to put on evidence of actual innocence.  (See our original post on the decision here.)  Davis was convicted after trial of shooting a police officer to death in 1989.  He always claimed he was there, but didn’t shoot anyone.  Several witnesses said otherwise, and the jury found him guilty.  After some of the witnesses recanted, however, and evidence was discovered that indicated that the prosecution’s star witness was the real shooter, the issue of actual innocence was put into play.  With some serious debate among the Justices, the Supreme Court sent it back specifically for the district court to determine whether there was evidence not available at the trial would “clearly establish” his innocence.

Yesterday, the federal court finished hearing the evidence of actual innocence, and found nothing worth reversing the conviction.  “Mr. Davis vastly overstates the value of his evidence of innocence,” the court found.  ”Some of the evidence is not credible and would be disregarded by a reasonable juror. … Other evidence that Mr. Davis brought forward is too general to provide anything more than smoke and mirrors.”  You can read the CNN story here, and the decision itself here (part 1) and here (part 2).

“This court concludes that executing an innocent person would violate the Eighth Amendment (barring cruel and unusual punishment) of the U.S. Constitution,” ruled U.S. District Judge William T. Moore Jr.  “However, Mr. Davis is not innocent.”  Although the state’s case ”may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of officer MacPhail’s murder.”  Repeating a phrase, it went on “ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

We’d be surprised if there wasn’t yet another appeal.  We’ll save you our rant on why this process is precisely why capital punishment doesn’t work.  If you’re interested, you can read it here.

The 9th Circuit judicial conference wrapped up yesterday.  Hundreds of lawyers spent the last several days discussing this and that in Maui, and finished up with a speech and some Q&A from Justice Kennedy.  He had a lot of different things to say, most of which are unremarkable (such as the Court will be “different” somehow with Stevens gone and Kagan there).  But one thing he said made us sit up and pay attention.

At a panel discussion earlier in the week, the conferees had decided that most terrorism cases ought to be tried in civilian courts, and not in military tribunals.  In his speech, Kennedy said he agreed.  He said that the use of military tribunals was an “attack on the rule of law,” and that it has failed.  “Article III courts are quite capable of trying these terrorist cases.”

He completely missed the point.  The courts have nothing to do with most terrorism, acts of warfare launched from abroad.  But Kennedy’s been in the courts for so long, that that’s his whole perspective.  Not only does he think the courts should try individuals suspected of engaging in terrorist acts, and fighting against the U.S. military on behalf of the terrorists, but he thinks the contrary position is an attack on the rule of law.  Law, he fails to realize, doesn’t enter into it. 

Well, no, that’s not entirely correct.  Law enters into it insofar as our rule of law and sense of fair play become weapons used by enemies without such civilized ways.  And he fails to realize that his attitude is precisely that which our enemies rely on.  His comments play right into their hands.

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As we’ve mentioned before, most terrorism is an Read the rest of this entry »

The news is full of reports today about the hung jury in the Blagojevich trial — they found the governor guilty of a single count of lying to federal agents something like five years ago, and hung 11-1 in favor of conviction on the remaining counts.  All kinds of pontificators are pontificating about why this happened.  Scott Turow, for example, says it’s because corporations have too much freedom to contribute to political campaigns, so bribery becomes perceived as the norm. 

That’s a bit of a stretch.  It’s hardly likely that the jurors were considering such things as the corrupting consequences of the extension of First Amendment protections to corporate campaign contributions.  Like most commentors, Turow seems to be slapping his own politics on top of a more prosaic observation — that to some, the governor’s actions just don’t seem criminal.  This observation, without all the other nonsense attached to it, was actually quite astute.  According to the jury foreman, the holdout appears to have thought Blagojevich’s actions were “just talk,” and nothing criminal.

From what we’ve seen in the newspapers, that’s not an insane perspective here.  It sure reads as if Blagojevich was just thinking out loud sometimes, or bouncing stupid ideas off people that never got carried out.  And the forman says the other jurors respected the holdout’s right to her position here.  It doesn’t seem like an unprincipled, irrational vote.

But other reports highlight a different take on the holdout’s position.  Another juror is on record saying that the holdout wanted more clear-cut evidence, tantamount to a videotape of a murder, before she’d ever have convicted.  And if, as is likely, the holdout was Jo Ann Chiakulas, then she had already made up her mind weeks beforehand that the governor was innocent.

Both takes ring true to us, and are not mutually exclusive.  It seems probable that the holdout had decided weeks ago, after the close of the prosecution’s case, that the government hadn’t given her that whatever-it-is she would have needed to vote to convict.  Jurors vote to acquit all the time, in even the most solid rock-crusher cases, and the most common reason given is that “there just wasn’t enough evidence,” or they “needed more.” 

Jurors can never articulate what “more” they would have needed.  That’s because this is humanspeak for Read the rest of this entry »

We’re taking the week off to go camping with the wife and kids up in Maine.  With any luck, we won’t see a computer till we return. 

We know you wanted to read what we’ll have to say about the Blagojevich verdict when it comes down, or about the latest absurd contretemps in the law.  Sorry, but you’ll have to wait.  To tide you over, we are thrilled that the jury did the right thing, we are appalled that the jury failed in its duty, we think the new law is stupid, we think the new law is just fine no matter what everyone else is saying, we think the court made the right decision must missed the point, we think the court’s decision is at odds with its overall jurisprudence, we think a burrito would taste really good right about now, and we know for a fact that our readers are the best-looking folks in the whole blawgosphere.

See you when we get back!

So we’ve been hearing about this new blog, “UnemployedJD.com,” where some guy named Ethan is documenting his hunger strike “to bring awareness to the concerns of [his] classmates. Their primary concerns are inaccurate employment statistics, ineffective career counseling, and rising tuition costs. [His] intention is to have these concerns addressed by law school administrators.”

Really?  A hunger strike?  Because most law students aren’t guaranteed a high-paying job on graduation?  We figured it had to be a joke.  Some hipster irony, or an Onion article being taken seriously, or something like that.  But no, it turns out this kid is totally serious.  (Well, not totally.  He’s letting himself drink juice.)

Putting aside his sincerity, it’s a stupid tactic.  It’s not as if awareness needs to be raised — the news has been saturated for a couple of years now with stories of law firms cutting back, not hiring, and law schools continuing to pump out graduates without jobs.  And it’s not a problem that law school administrators can fix, much less one that they ought to fix.  It’s up to the students, not the school, to make sure they’ve built the necessary transcript and resume to get the job they want.  The school can provide the opportunity, but only the student can do the work.  It’s not the school’s fault if the student didn’t do what had to be done.

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Here’s the deal: High-paying entry-level law jobs are extremely rare.  They are offered to the top sliver of students from the top sliver of “national” law schools.  Top students from regional schools will be in the running for local firms, but not for firms in other parts of the country.  And if you’re not a top student from a top school, you can forget about getting a big-money job.  Period.

Of course, if you’re going into the law for the money, you don’t belong in the law.  There’s nothing wrong with making a good living as a lawyer, but if that is the reason for wanting to be lawyer you simply don’t belong in the profession.  People who are going into law school because it seems like a meal ticket are doing it for the wrong reasons.  Ditto for people who go to law school by default, because it seems like a safe placeholder until they figure out what they want to do with their lives or until the economy picks up again.  They’re wasting all that time and money on law school, for all the wrong reasons.

And if you’re going to a lesser law school, in order to make the big bucks when you get out, you’re not just wrongheaded but stupid.  The school you go to really does matter to what kind of job you get on graduation.  If you weren’t good enough to even get into a top school, what makes you think you can compete with those who not only got in, but outperformed everyone else who also got in?  To think that somehow you’re entitled to a high-paying job after graduating in the bottom of your class from a second- or third-tier school… that’s beyond unrealistic.

Apart from the money, nobody has ever guaranteed Read the rest of this entry »

Yesterday, President Obama signed S.1789, the long-awaited sentencing fairness act that reduced the appalling 100-to-1 sentencing disparity between crack cocaine and powder cocaine.  It still doesn’t go all the way to undo the hysteria of the crack epidemic, however.  For powder cocaine there’s a 10-year minimum for selling or possessing with intent to sell 5,000 grams — for crack cocaine the figure was just 50 grams, but that just went up to 280 grams.  There’s a 5-year minimum for selling/possessing with intent 500 grams of powder — for crack that just went up from 5 grams to 28 grams.  So there’s still a roughly 18-to-1 sentencing disparity.  And the 5-year mandatory minimum for mere possession of crack — personal use here — was eliminated entirely (it had applied to possession of 5 grams for first offenders, 3 grams for second offenders, and 1 gram for third offenders).

That’s all good news.  Getting rid of the mandatory minimum for mere possession is the best part, because throwing people in jail for mere possession is stupid, wrong, unjust, and doesn’t solve the problem.  Drug court and treatment diversion programs work very well.  (The new law also requires a federal report one year from now on just how well the federally-funded drug court programs are doing.)  Reducing the sentencing disparity from the appalling (and racist) 100-to-1, to the merely shocking (and still racist) 18-to-1… well, it’s better than nothing.  Powder and crack are equally bad, there is no disparity in their effects, their addictiveness, or anything meaningful.  There shouldn’t be any disparity at all.  But reducing it is a step in the right direction, and the new law is rightly praised for so doing.

But in all the hoopla, the press (and the defense bar) seem to have overlooked the other provisions of the new law — provisions which can dramatically increase some drug sentences.

There are now 2+ level enhancements for drug crimes involving violence or the threat of violence (not unheard of).  There are now 2+ level enhancements if premises were used for the manufacture or distribution (very common).  There will be 2+ level enhancements if the defendant was using his girlfriend to mule the drugs, or an addict to sell the drugs on the street in exchange for a freebie, or any other typical buffering relationship.  There will be 2+ enhancements if they sold to, or involved, someone under 18, someone over 64, or someone who was pregnant (common).  There are 2+ enhancements if the defendant made his living by selling drugs (a majority of cases, no?). 

That’s just a partial list of enhancements.  But you can see how a typical drug defendant can now wind up facing significantly more time now than before Obama signed “the Fair Sentencing Act of 2010. ”

We can think of a number of ways to describe the new law.  “Fair Sentencing” is not one of them.

On May 8, 2005, we were having a party.  It was our birthday, and our firstborn had just turned 1 a few days before, so it called for a big celebration with friends and family.  For us, it was a time of new beginnings.  But for Jerry Hobbs, May 8 2005 was the end.  He found his 8-year-old daughter and her 9-year-old friend brutally stabbed to death, in a park in Zion, Illinois.  He immediately called the police, who immediately made him their number-one suspect.  He’d just gotten out of jail in Texas, after all, so why investigate further?  He was subjected to a long, intense interrogation, and eventually made a statement that sounded like a confession.  He recanted the statement, saying it was coerced, but that didn’t matter, and he was charged with the murders.

Shortly after his interrogation, the police found DNA on the girls’ bodies that didn’t match Hobbs.  The DA discounted it, saying it must have been cross-contamination and couldn’t have been relevant to the crime.  But the DNA was in semen found on the girls’ bodies — and inside one girl’s vagina — and that’s not cross-contamination.  The DA insisted that it was still irrelevant, and that the semen must have been on the ground before the attack.  Seriously.  Hobbs remained in custody, charged with the double murder, for more than five years, though his case never went to trial.

He was in jail until a couple of hours ago, that is.  As it happens, that DNA on the girls’ bodies was extremely relevant.  Jorge Torrez, who had lived in Zion at the time, was arrested in Arlington, Virginia a few months back, and charged with the abduction and repeated rape of one woman as well as attacking another woman.  Virginia, unlike Illinois, takes DNA samples along with fingerprints when someone is arrested.  The DNA taken at Torrez’s arrest went into the database, and popped up as a match to the DNA found on the girls.  The Illinois prosecutors dithered for weeks, but this morning they finally released Hobbs from prison (though they refused to issue an apology, insisting they and the police had done everything right).  Still, an innocent man went free at last.

And if Torrez’s DNA had not been swabbed on arrest?  Hobbes’ coerced, false confession might well have resulted in yet another wrongful conviction.

This raises a lot of issues.  There’s the misuse of DNA evidence, and there’s the false confession, but those are topics for another time.  (If you’re interested in learning ways to defend such cases, you can check out our “Hope for Hopeless Cases” CLE series, particularly lectures IV and V.)

Today, however, our beef is with the civil liberties argument against taking DNA samples at arrest.

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The argument is that people who haven’t yet been convicted of a crime should not be compelled to give DNA samples.  It smacks of “Big Brother” and “Minority Report.”  The government might conceivably Read the rest of this entry »

Over on the Volokh Conspiracy, Prof. Jonathan Adler posted another critique on Sunday of the New York Times’s silly article claiming the Roberts Court to be the “most conservative in living memory.”  Adler makes some of the same points we did last week, finding fault with the Times’s definitions of “conservative” and “activist,” but he goes further to point out that the Roberts Court is actually the “most restrained — or least activist” Court since WWII.  We recommend taking a look.

Over the weekend, the NYT printed an article calling the Supreme Court under C.J. Roberts the “most conservative in decades.”  “The court not only moved to the right,” the article said, “but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”

We admit to reading the article with a fair amount of skepticism.  Whenever political science folks or sociologists or others of their ilk start talking about the Court being “conservative” or “liberal,” we get uncomfortable.  The words have very different meanings for politicos than they do for jurists.  A judicial conservative is not necessarily supportive of right-wing politics.  A jurist who is politically conservative may well be fairly liberal in his jurisprudence, especially if he’s using his opinions to further a political agenda. 

The article did nothing to assuage our discomfort.  As we feared, it conflated the concepts of political and judicial conservatism.  The article really focused on whether rulings were more or less likely to be favored by conservative political platforms. 

To be fair, the headline really is misleading.  The article itself says at least twice that “the recent shift to the right is modest.”  And it does point out not only that ”the court’s decisions have hardly been uniformly conservative,” but also that “the court’s decisions are often closely aligned with or more liberal than public opinion.”

But the basis of any analysis is its presumptions.  And the presumptions applied here are beyond simplistic.  “In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal.  Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.”  Forget being beyond simplistic, it’s downright misleading.

Notice that the focus is on who prevailed in the case, not why the Court sided with them.  Just because a criminal defendant won his appeal, for example, that does not mean the justices were being liberal when they sided with him.  The Melendez-Diaz case, after all, pretty clearly restrains the prosecution and favors defendants, by requiring chemists to testify at trial as to their analysis of alleged drugs.  Who wrote the majority opinion?  Scalia.  Hardly a liberal.  His reasoning?  Very conservative: this is little more than an application of existing 6th Amendment law under Crawford.  Scalia is one of the most conservative justices, and yet he’s also the Court’s biggest protector of 6th Amendment rights.

Similarly, just because a civil-rights claim prevails, that has nothing to do with whether the decision itself is particularly liberal.  And if the civil-rights claimant loses, that doesn’t mean the decision was conservative.

The analysis is flawed from the get-go, because it focuses on the wrong thing entirely.  The focus should not be on who won, but why they won.

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We also made a face when we read this bit: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts.  But the ideological direction of the court’s activism has undergone a marked change toward conservative results.”

No, no and no.

Judicial activism is not measured by finding laws unconstitutional.  Judicial activism is creating new law where none existed, or legislating from the bench — it is another way of saying the court is exceeding its authority.  When the law is different from how a judge thinks it ought to be, an activist judge changes the law.  Merely applying existing constitutional law, however, and finding that the legislature has passed a statute that happens to be unconstitutional — that is precisely what the courts are supposed to do in the first place.  It is the opposite of judicial activism.

Reversing precedent isn’t so much a measure of activism, either.  Some precedents ought to be reversed for perfectly good reasons, such as a change in societal circumstances that necessitated the precedent in the first place.  There is nothing activist about saying “applying the Constitution to fact set A resulted in rule X, but now we have fact set B and rule X doesn’t follow any more.”  What is activist is deciding not to reverse a no-longer-applicable precedent, in order to advance some policy interest.  (Grutter, anyone?)

Recently, there’s been an Orwellian movement on the left to redefine the phrase “judicial Read the rest of this entry »

“There has been a spate of particularly brutal and senseless attacks on the police,” according to Eugene O’Donnell, professor of police studies at John Jay College of Criminal Justice, and a former police officer and prosecutor. “It seems to me, [there is] an unprecedented level of disrespect and willingness to challenge police officers all over the place.”

What a telling quote.  (We’d have missed it, too, if Scott Greenfield hadn’t written about it today.  Apparently this was quoted on Fox, and we’ve never gotten around to actually watching or reading Fox News.  We get our news mostly from Fark and the WSJ.)  We have no data with which to verify the claim that police are getting attacked more often.  Nor are we aware of any studies showing an unprecedented level of disrespect for the police.  But like all good anecdotal claims, it seems right because it meshes with our own perception — regardless of whether our perception accurately reflects the truth.

In other words, it’s telling not because it is true, but because it feels true.

Perception is everything.  Reality has a way of catching up.  It’s true of almost every human endeavor except pure math and the most rigorous science.  Perception either is truth, or it becomes truth.

And the perception is that people have “an unprecedented level of disrespect” for the police.  Accurate or not, it’s fast becoming the truth.

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So how come?  That’s easy.  Disrespect must be earned.  People tend not to disrespect others until they’ve been given a reason to.  But once respect is lost, it is practically gone forever.  Reputation works that way.  And when people lose respect for an authority figure, the effect is even worse.  There’s a sense of betrayal.  A violation of trust.  When a trusted authority figure has betrayed that trust, the natural response is not mere disrespect, but hostility.

In recent weeks, there has been talk of more and more people getting arrested for videotaping the police.   It’s nothing new — we’ve been reading such stories for several years now, ever since cell phones started being kitted out with video cameras.  Still, it’s a topic of the day, and we’ve had a few conversations with people on both sides of the issue.  Leaving aside the whole wiretapping issue, however, (a typical explanation for such arrests in states without a one-party-consent rule, though it’s still bogus when the taping is in public and not remotely unlawful eavesdropping), it sure seems like cops are making these arrests because they’re afraid of being made to look bad.  Perception matters.

Are they afraid of misperception?  Sure.  “The camera doesn’t lie,” folks say.  But that’s demonstrably false.  Look at that famous video of Rodney King getting clubbed by a swarm of cops.  It sure looks like he’s getting hit for no good reason, doesn’t it?  But the video doesn’t show King going 80 mph through residential neighborhoods after a 100+ mph freeway chase, it doesn’t show King acting like he was flying on PCP when he got out of the car, it doesn’t show him fighting off multiple officers who tried to handcuff him.  The video actually shows the cops acting by the book, doing exactly what they were supposed to do — get him on the ground and keep him there.  He got hit with batons when he kept trying to get up, and the cops struck him to keep him on the ground.  The jury acquitted the cops, because they did it by the book.  But there was rioting and mayhem as a result, because the perception was different.

The camera does lie, because it doesn’t tell the whole story.  Cops suddenly rushing up on a guy for no apparent reason, frisking him, and arresting him — that looks bad if you didn’t know the guy had sold crack to an undercover a few minutes before.  But the camera didn’t catch that.  But guess what, that’s still the cops’ problem, and rightly so.  Eyewitnesses in the community didn’t see it, either, after all.  Is it any wonder why some communities have a strong perception that the cops keep grabbing people for no good reason?  Because that’s what they see.  Right or wrong, that’s the perception. 

And it’s the cops’ job to manage that perception.  Nobody else’s.

But the cops have to be afraid of legitimate perceptions, too.  The camera does happen to catch a whole lot of real police misconduct.  Cops abuse their power all the time.  They do lock people up without good reason.  They do hit, shoot, tase people without good reason.

This misconduct is nothing knew.  There have always been Read the rest of this entry »

The police need a warrant to search your home.  Except when they don’t.  The warrant requirement of the Fourth Amendment is there to protect your privacy, and sorry, but sometimes your privacy isn’t the most important thing at the moment.

One exception to the warrant requirement is the Emergency Exception.  In a nutshell, it says the police are allowed to go into your home without a warrant when there is good reason to believe that someone inside is seriously hurt, or in danger, and needs their assistance right away.

Different states define the rule in different ways.  In New York, the rule was set in 1976 in the Mitchell case.  Mitchell has two objective conditions, and one subjective condition.  If all three are met, then the police are allowed to go in without a warrant.

Objectively, the circumstances have to be such that a reasonably prudent officer would have thought there was an emergency at the time.  Objectively, the officers on the scene had to have probable cause to believe that there was an emergency inside the house.

Subjectively, the officers had to actually be going inside to help.  They couldn’t be using the emergency as a pretext to really look for drugs, for example.

So far, so good.  Sort of.

One problem is that there is no requirement here that the police actually believe there is an emergency.  There is no subjective requirement that the police on the scene be aware of the circumstances that would lead a reasonable person to think there was an emergency.  There is no subjective requirement that the police on the scene actually think there’s an emergency.

That’s not a huge problem under the Mitchell rule, because the no-pretext prong sort of implies that the police need to subjectively believe there’s an emergency.

But what happens if you take away that no-pretext prong?  You get an absurd rule.  Police who did not themselves believe there was any emergency could still go in without a warrant — and hope that some clever prosecutor down the road can come up with a scenario where an objective cop, aware of all the circumstances that the police themselves might not have been aware of, might have thought there was an emergency.  And if you think no New York police officer would break down your door in the hopes that it can get justified down the line (if your case even gets that far)… well, the word “naive” springs to mind.

Well, guess what?  Back in 2006, in its Brigham City decision, the U.S. Supreme Court specifically rejected the no-pretext prong of the Mitchell rule.  The Court was being true to its 15-year trend of rejecting subjective rules in federal Fourth Amendment law.  The Supreme Court line of cases does not care whether the police had some pretext or ulterior motive.  So long as there was some legitimate basis for the police conduct, they don’t really care what the police themselves were thinking.

But New York hasn’t had to deal with the issue though.  Not, that is, until a case we argued earlier this year.  

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This January, we found ourselves before the Second Department one month after the Supreme Court had reaffirmed Read the rest of this entry »

We’re one of the few Republican defense lawyers out here — and perhaps the only one living in Manhattan, so it’s odd that we’re so intrigued by the race for the Democratic nomination for the Florida Attorney General race.

Well, maybe not so odd.  The issue of character has come up, and that always gets our interest.

We’ve been pretty outspoken about the role of prosecutors.  Judgment and strength of character are the key prerequisites for those who would exercise the awesome discretion we give them.  We may have been spoiled by our formative experiences in the SDNY and Morgenthau’s Manhattan DA’s office, but we’re frequently appalled by the very lack of judgment and character we find among prosecutors in some other offices.  (And with respect to Florida, we often tell the story of how we got up and walked out of an interview with the Dade County DA’s office back when we were in law school.  It had come out that their office philosophy was to zealously try to convict anyone the cops arrested, regardless of the justice or the rightness of doing so.  We’d thought they were just testing us, but when it turned out that the interviewers were deadly serious we politely informed them that we couldn’t work for them.)

A state attorney general is a prosecutor. An AG’s role is a combination of consumer protection and crime-fighting.  As head of the office, an AG sets the tone for everyone working there.  Every assistant AG investigating an insurance scam is going to be influenced by the culture of the office, which comes straight from the top.  There’s a reason why the Manhattan DA’s office is so vastly superior to nearby Nassau County’s office, and it has everything to do with who’s running the show.  So even though the elected official never handles a case him- or herself, the character of that official is of the highest importance to the citizens of the state.  (We remember a few years back, after Andrew Cuomo took over as New York’s AG, there seemed to be a general exodus from that office of our former Manhattan colleagues who had gone there.  Character at the top seemed to us to be the primary reason for their leaving.)

And that brings us to the Democrat nomination for the Florida AG, and why we’re taking the time to write about it.  The candidates for the nomination Read the rest of this entry »

Over on the Volokh Conspiracy, Prof. Ilya Somin has a good post today on whether the bar exam ought to be abolished.  He agrees with Elizabeth Wurtzel that the exam “is primarily a test of memorization,” the bulk of which will be irrelevant to any given lawyer’s actual practice.  We are not fans of the bar exam, either, but we think the solution is not to abolish the exam, but more and better bar exams.

Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer.  It doesn’t test judgment, reasoning or understanding.  More importantly, it doesn’t test actual skills that lawyers need to know — it doesn’t test to see if a transactional lawyer can put together a contract that does the job, or to see if a trial lawyer knows how to get his evidence admitted, or to see if an estate lawyer can craft a plan that will carry out the client’s wishes with a minimum of fuss.

We remember Prof. Whitebread’s lecture from our Bar/Bri course back in ’97, where he admonished us not to seek a perfect score on the bar exam.  “You only need a passing grade,” he said.  “You don’t need to get them all right; you only need… a gracious plenty.”  And he was right.  The bar is not all that high.  As a barrier to entry, the bar exam doesn’t really do a whole lot.

Prof. Somin would abolish the bar exam, he says, because it keeps out too many lawyers.  “The high salaries of lawyers combined with the high cost of even very basic legal services show that we have too few lawyers rather than too many.”  He is wrong.  The bar exam hardly keeps anybody out.  The profession does not have too few lawyers; it has too few good lawyers.

We usually argue the point from the other angle, when it comes up in conversation.  “It’s not that there are too many lawyers,” we say, “but that there are too many bad ones.”  And it’s true.  The profession has a glut of licensed practicing lawyers who are not terribly good at what they do.  We encounter them on a daily basis.  They’re out there, they’re all over the place, and they make the rest of us look bad.

All they had to do was stick out a few years of some law school and get a barely passing grade, then memorize some of this and some of that and barely pass the bar.  For the rest of their careers, these lawyers will never again have to demonstrate any actual competence in anything in order to remain licensed practicing lawyers.

This is where the bar exam needs to change.  We should definitely abolish the one we’ve got.  It’s just a holdover from the bad old days when Read the rest of this entry »

Our jury system is supposed to maximize justice.  So how come our system only makes it harder for jurors to do the right thing?

Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients.  A hundred pages of instructions.  Which the jurors are expected to absorb through their ears.  Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.

Nobody really believes that jurors remember the details of their instructions, of course.  And nobody really believes that they apply those instructions to the letter.  It’s just a useful fiction.  Like so much of the law, what’s important is that the litany was spoken.  Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.  

The system is more interested in finality than with the truth, is why.  The truth is nice, and something to be hoped for, but it isn’t necessary.  The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts.  The judge can then apply the law to these official facts, and then everyone can close the book on that matter.  It’s a kind of justice, perhaps, but it’s not about truth, and it never has been.  The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.

That’s really not a huge task.  Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward.  In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.

Nevertheless, we sure make it hard for them to do even that.

The elements they are to consider, after all, are in the judge’s instructions.  And the judge won’t Read the rest of this entry »

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.) 

After reading the complaint in its entirety, we have to say that it’s mostly stupid. 

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint]. 
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint]. 
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2]. 
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3]. 
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.  
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit. 

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only Read the rest of this entry »