Fiddling with the Blogroll

It's that time again.  I should probably consider deleting a couple of blogs from the list, but it seems wiser to add.  Because you never know.

At one time, and for reasons I can't begin to remember (it might even have been an accident), I removed Matt Kaiser's blog from the list.  But in the last couple of months he's been doing absolutely terrific stuff reporting on wins in the federal courts of appeals.  He's back on the list as of this morning with the Federal Criminal Appeals Blog.

Then there are the blogs that should have been on here for some time.  Walter Reaves, who writes the Waco Criminal Law Blog from the city of the same name inTexas, is always interesting - never more than when he talks about science and bogus science and forensic evidence.  Nathaniel Burney, a criminal defense lawyer in New York, writes The Criminal Lawyer.  

I've also made Eric Meyer happy (though he may not notice), by acknowledging his change of name.  No longer a Military Underdog, his blog now calls itself the Unwashed Advocate.  And so it now appears on the list.

For reasons that may have something to do with blogger, may reflect my own incompetence, or may properly be blamed on sunspots or Dick Cheney or an impractical-joking deity, I still can't get the feed from Norm Pattis's blog to work, so there's a link to the blog but no indication of what he's written lately.  And although I just added Burney's blog to the list, the reference to what's supposed to be his latest post is in fact to one from a few weeks ago.  He's written a bunch since then.  The link to their blogs will take you to the top even if there's no proper rcognition of their work.

And for my last bit of incompetence, I still can't get the Jamison Koehler link to link to his blog rather than his website, though the link to the latest entry does go there.  That really pisses me off, but I'm stumped.

Tennessee Supreme Court Considers Sponsoring a Race to the Bottom

I've written about the problems with indigent defense before. 

I've talked about  Colorado where elected prosecutor Marty Beeson figures that public defenders are abusing the system because they aren't sufficiently supportive of the his efforts to get their clients convicted.  I've talked about  Georgia where capital prosecutions languish because the state can't pay the lawyers.  About California where death row inmates wait an average of 10-12 years while the state tries to find lawyers willing to represent them.

And of course about Missouri where public defenders have refused to take more cases because they cannot do their job competently with excessive caseloads and insufficient resources. Prosecutors there want to shut down the public defender system and replace it with something that costs less and the hell with competent representation.

Here and there I've found good signs.

There was Eric Holder and the Access to Justice Initiative which was something even though it seems primarily to have involved calls for meetings and discussions and a public pronouncement that 

Something's got to be done.

There was the mess in New York that began to be addressed in Hurrell-Harring v. New York.  And Iowa where the high court actually said that it was unconstitutional to put an arbitrary cap in the fees that appointed appellate counsel could earn.

Now we turn to Tennessee where, as Brandon Gee writes in the Tennessean, the Tennessee Supreme Court is considering a switch from underfunded public defense offices to providing indigent defense by "a highway contract-style bidding process."

To rein in the state’s fast-growing indigent defense fund, the court has drafted an amendment to its rules that would allow the cash-strapped state Administrative Office of the Courts to solicit bids and award contracts to lawyers or firms “to provide legal services to indigent persons for a fixed fee.”

Oh, they're not cold-hearted about it.  The court figures that there are only some kinds of cases where screwing the indigent accused with low-bid defense is appropriate.

“With the economy the way it is, we’re just trying to be good stewards of taxpayer dollars,” said Laura Click, spokeswoman for the state courts.
Click said the Supreme Court intends to use contracts only for two types of relatively straightforward cases: contempt proceedings resulting from the non-payment of child support and hearings on whether a person should be involuntarily committed to a mental health institution.
“There are situations where it does and doesn’t make sense,” Click said. “We recognize that. The idea is that when it does make sense, we’d like to put it in place to streamline the process.”

Gail Kerr in the Tennessean gets to the heart of what's wrong with this.

It’s the idea of paying a flat fee per case that makes this so distasteful. What that means is the ambulance-chasing-type lawyers could load up their plate with low-bid cases, collect their payment, and do as little work as possible for their client. Heck, they’re going to get paid the exact same amount if the client cops a plea or goes all the way to a jury trial and through the appeals process. There would be no incentive, other than a strong moral compass, to offer a client the strongest defense possible.

And despite the court's announced intention to limit the categories of indigents the court believes don't deserve adequate, conflict-free defense, the rules the court proposed don't do that.  Gee again:

The language of the proposal, however, is not limited to these types of cases, and many lawyers fear the rule change would open the door to additional cases being awarded to contract attorneys — and preclude other lawyers from pursuing the court-appointed work that is the cornerstone of many practices.

Sadly, this sort of idea isn't unique to Tennessee.  Indigent defense is routinely a poor stepchild.  If criminal defendants generally have no good lobby, impoverished criminal defendants fare even worse.  All they have is the Sixth Amendment.  Even when times are good, that's rarely much.  When times are tough, it's less.

* * * * * * *

One solution, of course, would be for lawyers to decline participation in the sorts of bidding wars that the Tennessee supremes are considering.  After all, we have a duty to represent the clients zealously within the bounds of the law, and that requires time and effort and a commitment to do what the case requires rather than what the low bid permits.  We are, as Scott Greenfield and Brian Tannebaum and Mark Bennett and others regularly and eloquently remind us, a profession.  We have an obligation to refuse the race to the bottom.

Don't hold your breath.

Here's the first substantive paragraph of Kerr's column.

The truth is, members of the bar are a mostly impressive, ethical bunch. But, as in journalism or any field, there’s always a basement layer. There are lawyers who run icky ads to draw clients with few resources and high hopes. Unfortunately, these are the type of attorneys who would jump on a proposal to sell some criminal defendants to the lowest bidder.

See that word lawyers in the third sentence?  In the on-line version of the column, it's a hyperlink (no, I'm not reproducing it here) to Lawyers.com where you can find lawyers hawking themselves like carnival barkers.  (Yes, there are far more offensive services; it doesn't matter; I'm making a point here, not specifically attacking Lawyers.com.)

Kerr, of course, isn't responsible for the hyperlink.  That's a bit of paid advertising.  In context, though, the irony is telling.

* * * * * * *

Justice Brennan, dissenting alas, in McCleskey v. Kemp reminded the Court (a majority of which chose to ignore him) and the public (which mostly has no idea what he wrote) why effecting those rights should matter in words that ought to be prominently tattooed into the DNA of all our legislators and executives and judges.  Members of the bar, too.

Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. 

Planning Ahead in the Buckeye State

I could, I suppose, make this an update to the post I put up a little while ago about the Parole Board's recommendation against clemency for Bill Slagle.

Good news, however temporary and however little it may mean in the long run, remains good news. And its rare enough that it deserves its own place.

Besides, it's not really more than incidentally and coincidentally related to what the Board did.

Kasich called off the killing.

Not permanently.

Not for reason having anything to do with Billy Slagle.

But another month without a killing is something to celebrate.

Billy Slagle's still got a date.  August 7, 2013.

Yes, that's right, 2013.  Just under 2 years from now.

Because we know how to make a to do list in Ohio.

You can look at it as two more years of torture.  Or two more years of life.  Maybe both.

Reprieve.

Slagle Reprieve

So? What's Your Point?

Mercy.

Alas, we're back to that.

As the powers that be try to convince Judge Frost that they'll actually obey they'll actually obey their new protocol despite years (and piles of bodies) ignoring the old ones, the Parole Board issued its report and recommendation in Billy Slagle's case.  Slagle's been sitting on death row for 23 years, sentenced for the murder of Mari Anne Pope 24 years ago.  The Board was unanimous.

• He should be killed.
• The mitigation was examined at trial.
• The aggravating factors outweigh it.
• He's not a nice guy.
• He did other bad things before he killed Pope.
• He may not have gotten in trouble in prison, but he didn't cure cancer, either.

All right.  You got me.  They didn't say the part about his not curing cancer.  But it's true.  He didn't.

Here's what they did say.

Slagle has presented no new reasons as to why clemency should be recommended.   The jury, trial judge and appeals courts have considered the mitigation and arguments and have concluded that the death penalty is appropriate.  The Board finds no reason to recommend an alternate penalty.

Because there's no error to correct.

He's not, after all, factually innocent.

And regardless of whether they mentioned it, he hasn't cured cancer since he's been on the row.

I'm getting to be a broken record here (or Groundhog Day for those of you too young to remember what happened when a record got scratched), but this is nonsense.

Sure, if there's an error to correct, the Board should urge the Governor to correct it.  But if all the Board does is look for mistakes (you know, check to make sure that he isn't about to be executed after the "jury, trial judge and appeals courts" decided that death was inappropriate and he shouldn't have a death sentence), then it's missing the point.

I keep saying that clemency is about us, not them.  I keep saying that this is about mercy and that nobody (none of us) deserves mercy.  (Well, maybe the guy who cures cancer; no, probably not even he.)

Joe Wilhelm, who presented Slagle's case to the Board, talked about mercy.

Attorney Wilhelm stated that they are not questioning the conviction.  They are asking for mercy and that mercy should be considered in light of Slagle's background.
. . .
Attorney Wilhelm closed by reminding the Board that this hearing is an appeal for mercy and that it should not be a rubber stamp of legal appeals, and that there must be room for mercy in our justice system.  Society places a lot of emphasis on a desire to protect children.  Slagle was failed in that regard, and is deserving of mercy.

Which comes close to the point I keep making.  But the Board was no more inclined to hear Joe's pitch for mercy deserved than it is to buy into mine for mercy unmerited.

Because, if we needed another reminder, they don't believe in mercy.

Which is really, and sadly, the point.

Mari Anne Pope - Murdered, August 13, 1987

Billy Slagle - Murder scheduled, September 20, 2011

Slagle Clemency

Your Money or Your Life

As I said yesterday, there's something else beside the usual so-you-affirmed-a-death-sentence-what-else-is-new about State v. Lang. Unfortunately, I have to dip into the arcana of evidence law, and quote a chunk of trial testimony, to explain.  Here's the trial testimony as reproduced in the opinion.

{¶ 65} Michele Foster provided expert testimony about the DNA found on the handgun used in the killings. She stated that DNA was detected from “at least two individuals” at three different locations on the handgun. The prosecutor then questioned Foster about the comparison of Lang’s and Walker’s DNA with the DNA found on the handgun:

{¶ 66} “Q: Do you have an opinion as to a reasonable degree of scientific certainty as to whose DNA appears on that handgun?
{¶ 67} “A: In this particular case, we can say that Antonio Walker is not the major source of DNA that we detected from the swabbing of the pistol.
{¶ 68} “In this case we, based on our comparison, we can say that Edward Lang cannot be excluded as a possible minor source to the DNA that we found on the weapon.
{¶ 69} “Q: When you say not excluded, what do you mean by that?
{¶ 70} “A: Well, in this particular case, because we had such low level DNA, we can’t say to a reasonable degree of scientific certainty that this person is the source.
{¶ 71} “In this particular case, the chance of finding the major DNA profile that we found on that pistol is 1 in 3,461,” meaning that “1 of 3,461 people could possibly be included as a potential source of the DNA.”

The part to pay attention to is the prepositional phrase

to a reasonable degree of scientific certainty.

If you go to law school and study evidence law (which apparently and bizarrely and stupidly many law students never do), you learn that it's one of the touchstones of expert testimony.  An expert's opinion is to be given

to a reasonable degree of scientific certainty.

So we're trained to ask the question asked here in paragraph 66.

Do you have an opinion as to a reasonable degree of scientific certainty . . . ?

We expect the answer to be "yes."  Then we go on to ask what that opinion is.  But it's all about getting to the 

reasonable degree of scientific certainty.

Except, here the answer was

No, can't do that.  But I can tell you what's possible.

Uh, no.  You're not supposed to do that.  At least, that's the rule we all learned.  It's the general rule.  It's the right rule (because, really, anything is possible - some things are just far more likely than others - and are actually understood based on, say, science.  Other things, well there was that Texas case where they found probable cause because Jesus and the angels spoke to the prophetess so naturally.

Anyway, the evidence came in, Lang was convicted and sentenced to die, and the case went to the Ohio Supreme Court which said that expert evidence of possibility was just peachy keen.

They'd laid out that rule before, in Joe D'Ambrosio's case.  (You remember Joe.  He's the guy who even the dissenter agreed was a victim of repeated lying and cheating and stonewalling by the state of Ohio.  But that was something only the federal courts cared about.  We're talking now about the Ohio Supreme Court in State v. D'Ambrosio, Joe's direct appeal (citations omitted)

While several decisions from this court indicate that speculative opinions by medical experts are inadmissible since they are based on possibilities and not probabilities . . . we believe that the better practice, especially in criminal cases, is to let experts testify in terms of possibility. . . .  Evid.R. 702 allows expert opinion that "will assist the trier of fact to understand the evidence or to determine a fact in issue."  Here, Dr. Balraj's testimony helped the trier of fact to understand that, despite contrary appearances, the size of the wound was consistent with the size and shape of State's Exhibit 8A.  Although Dr. Balraj's testimony does not prove that State's Exhibit 8A was the murder weapon, we believe that is an issue of sufficiency, not admissibility.

To which you can say,

Well, maybe.

Except for the one parenthetical.

[E]specially in criminal cases.

Because, see, in civil cases the evidence still has to satisfy that reasonable degree of scientific certainty standard.  And that's the issue Lang's lawyers picked up on as they raised a claim under the Equal Protection Clause of the 14th Amendment.

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

The short explanation of equal protection law is that the law must treat everyone the same.  And because if Lang were a defendant in a civil case that DNA testimony would not have been admissible, the state shouldn't get to admit it in this case.

To which the Supreme Court of Ohio said

Pish tosh.
Sure the rules are stricter in civil cases.  But that's because there's so much more at stake in civil cases.

OK, that's not how they phrased it.  Here's how they phrased it.

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Section 1, commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause does not prevent all classification, however. It simply forbids laws that treat persons differently when they are otherwise alike in all relevant respects. Nordlinger v. Hahn (1992), 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1. Lang’s equal protection argument can be rejected because criminal defendants and civil litigants have vastly different stakes and concerns and are not similarly situated. See Mason v. Home Depot U.S.A., Inc. (2008), 283 Ga. 271, 274-275, 658 S.E.2d 603 (rejecting equal protection claim challenging more stringent requirements for admission of expert testimony in tort actions than in criminal cases).

Which is pretty much the same thing.

Oh, of course the folks in Columbus had to search pretty hard for law saying that they can provide less protection to someone facing death than to someone who might have to cough up some cash.  And they found it in Mason, that Georgia case.  The thing is, Mason only gets where the folks in Columbus (Ohio, not Georgia) took it if you do some serious ignoring of why it doesn't apply. 

Mason sued Home Depot over injuries he said he got using a floor covering product he bought there (sued the manufacturer, too).  The defendants wanted to stop Mason's expert doctors from testifying, and under a special law Georgia enacted shortly before trial, they could do that.  Because even though they would have been allowed to testify in a criminal case, the rules for tort cases were stricter and kept the evidence out.  Mason argued that he was being denied equal protection because he couldn't put on evidence that he could have used had he been a criminal defendant.

Said the Georgia Supreme Court:

From the foregoing, we conclude that, for purposes of evidentiary standards, only those accused of the same offense are similarly situated in the criminal law arena, only those asserting or defending against the same cause of action are similarly situated in the civil law arena, and the parties to civil cases are not similarly situated to those engaged in criminal prosecutions.

So, yeah, that's the rule they cooked up.  But even if it's valid (though it strikes me as designed to be outcome determinative rather than constitutionally cogent), rules don't occur in vacuums.  Context matters.  A lot.

And, simply, there's a big difference between saying that you can exclude something that a private litigant wants to use to prove his claim in a civil case when it's deemed unreliable but you have to let the government use equally unreliable evidence to prove its claims in a criminal case.

Put everything else aside.  Criminal defendants have special rights provided by the Fifth, Sixth, and Eighth Amendments.  The idea is that the balances are supposed to be tipped in their favor.  Not so civil plaintiffs.  But applying the Mason reasoning to criminal defendants violates that underlying principle.

Still, when you look at how much is at stake . . .

Criminal - life and liberty
Civil - cash

You can understand why the courts would think civil matters are far more weighty and deserving of extra protection.

As you'll recall, the court affirmed Lang's death sentence.

Did I mention that sometimes it's just embarrassing?

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