Native Success Stories (And Aside on Sotomayor and Cultural Experience)

MORE Native lawyers please, especially ones like these three women, who overcame adversity to become successful attorneys who fight not only for their clients, but for their tribes. This story is an inspiration to anyone (man or woman of any race) who faces long odds in their quests to do what they want with their lives.

There's something else about the article that I believe is worth noting:

[Leonika] Charging, 35, grew up in White Shield, N.D., on the Fort Berthold Indian Reservation. Unlike Smith’s tribe, Charging’s people — the affiliated tribes of the Mandan, Arikara and Hidatsa — follow a matriarchal tradition. Women are given more leadership roles and control. That helped spur her to become a lawyer.

When she was young, she heard stories about how the federal government moved her people off their native lands in North Dakota and flooded the reservation to create a lake and park. The move caused decades of trauma that still lasts today, and Charging believes it wasn’t fair.

So she decided to take action to help prevent something like that from ever happening again. She decided to become a lawyer.

It's not that unusual for minorities who are aware-or particularly proud-of their cultures, to feel motivated to do something on behalf of their ethnic group once they achieve a position of influence in society. Or if not that, then at least to find their decisions in their lives and careers informed or influenced by their own personal cultural experiences, or the experiences of their culture and ethnicity as a whole. Many Native Americans grew up hearing about the history of the government's mistreatment of their tribes; perhaps as an attorney, this makes someone like Charging sympathetic to those who are mistreated by the government, or employers, or people who otherwise have some measure of unaccounted for power over their client's life. There's nothing at all unusual about this, which is why it boggles my mind that someone like Sonia Sotomayor can say that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life" and then almost immediately be accused of racism (against-presumably-whites) for that statement. All that she meant was that as a woman of her background, she is familiar with ethnic and sex discrimination (and to a lesser degree oppression), certainly moreso than the average white, male judge who has not faced such discrimination in his life, a familiarity that is likely to make her more sympathetic to those who come before her court who are treated unfairly by those more powerful than they. This is not really that remarkable of a proposition; many white people who never face any discrimination are similarly influenced by their cultural experiences to believe that racial discrimination no longer exists in America. But the idea that a minority might have a better sense of fairness and unfairness is apparently a highly offensive notion to (mostly white) conservatives who believe that, all things being equal, racism, discrimination and unfair treatment has all been but oblitereted in our society.

Sorry Poor People, You're Out Of Luck

Increasing numbers of poor people are being turned away by legal aid services nationwide, just as more and more of them are in need of those services:

The nonprofit Legal Services Corp., which funds more than 900 legal-aid offices nationwide, says that the number of people who qualify for assistance has jumped by about 11 million since 2007, because of the recession. Roughly 51 million people are now eligible for assistance — individuals and families who earn less than 125 percent of the federal poverty level, now set at $27,564 a year for a family of four.

The federal government budgeted an 11 percent increase in funding for legal aid this year. That increase, however, is more than offset by the growing demand for services and a recession-driven decline in state funding, charitable gifts and grants, which together traditionally make up half of legal service funding.

That means that legal-aid programs will turn away roughly 1 million valid cases this year, advocates say, about half the requests for assistance they'll receive.

By valid, they mean cases where the person requesting the service is qualified and has a legal dispute that an attorney could help them out with. Why is this so bad?

Legal aid offices typically handle cases involving divorces, child custody and a host of consumer issues that can include landlord-tenant disputes, foreclosures, evictions, applications for government benefits and battles with predatory lenders. They often represent battered women who need protection, women who are trying to obtain child support or families trying to secure insurance payments.

Each downward turn of the economy increases the need for services. During the first year of the recession in 2008, 93,000 people contacted the Cleveland agency for help. That was up 35 percent from the year before, Shakarian said. This year, the agency is on pace to get 100,000 calls for assistance. Of these, only about 10 percent will be served.

Nationally, experts estimate that 80 percent of low-income Americans who need legal help in civil cases don't receive any. That comprises "not only people who show up at the door and are turned away, which is a large number, but also those who don't even try because it's so hopeless," said Peter Edelman, who teaches poverty law at Georgetown University in Washington.

These are all examples of matters in which legal representation is either of a huge benefit or absolutely necessary, but where it's often hard to come by because there are no contingency fees to be had (and because you can count on attorneys to do free work about as much as you can count on anybody to do so.) Congress is set to increase funding for legal aid, but as the article explains, not to even the levels that existed during the Reagan administration. And of course, conservatives are opposed to increasing funding anyway:

Ted Frank, a resident fellow at the American Enterprise Institute, a conservative policy research center, expressed the conservative sentiment, saying, "There are better ways to help the poor than by sending in more lawyers."

Such as what? Just giving them money to hire their own lawyers?

I wrote about this very subject way back in 2006, addressing an article that profiled then-new Chief Justice John Roberts and his views on the legal system and the poor. What I had to say at the time is just as apropos today:

It's been clear to me for some time that what America's poor need more then anything is more access to the courts, and my year and a half in law school has only reinforced this notion. I'm not talking about car crash victims suing insurance companies for whiplash. Trial lawyers get paid well for that sort of thing, which is why their commercials are all over the place. I'm talking about the sort of situation the author is discussing above, where average everyday people get screwed over by beauracracies or people who can afford lawyers and access to the courts, where they can't. Certainly I'm biased by my education thus far in law, but to me there are fewer things that would make life easier on the poor then being able to turn to a lawyer when somebody is trying to screw them over. But for people like Justice Roberts, who himself has certainly never gotten an eviction notice on the door during the holidays or a threatening letter from a creditor, simply hoping that lawyers will volunteer more of their time is an adequate solution to the problem. It's not.

Surely we all know somebody who was having a hard time, who could've really used a lawyer. Illegal evictions, worker's compensation disputes, illegal firings, sex or racial discrimination in the workplace, divorces, adoptions, domestic violence...the list goes on, and these are all the kinds of problems that should be addressed by an attorney but frequently are not because the cost of an attorney is simply too much for most poor people. When poor people find themselves in these kinds of situations, that's usually just too bad for them, as they have no one to see to the vindication of their rights by law. Can you imagine a society in which it was commonplace for the poor to turn to courts, with the expectation that the would be delivered fair treatment and justice? Yeah me neither, but we could change that if we wanted to badly enough.

Eh, Not That Frivolous

Now I can imagine a few people would read this and immediately condemn this as a frivolous lawsuit without merit. Apparently, Oprah teamed up with Kentucky Fried Chicken for some sort of free chicken givewaway, which required printing out an online coupon and taking it to your local KFC. But instead of getting free chicken, you get the runaround:

Thing is, demand was so high that the company had to scale back the offer, asking customers who had printed the online coupons to visit stores for an IOU voucher that included a free Pepsi. Customers were asked to mail it in and wait for a different coupon that would allow them to claim the meal later on. According to this story, from the Daily Press, those new coupons should get to customers in a week or so.

Apparently that made somebody so mad they're launching a class action lawsuit, claiming KFC profited by using the promotion to get people to spend money at their restaurant that they hadn't intended to spend. Now I know what you're thinking but I have to be honest; if I showed up with a coupon that I'd printed out, and they told me I'd have to take an IOU which I then have to mail in in exchange for another coupon that I use to get my free meal I'd be pretty dang irritated about that. Why can't I just get a different coupon at the store that can be redeemed at a later date? It seems to me that KFC was rather obviously trying to make it more difficult to take advantage of the offer, thus reaping the benefit of promotion on Oprah's show without actually having to give away all that food that would entail. I think I'd decline to sue in the end, but the thought would probably cross my mind more than once. Sometimes you just get tired of a big company messing with you.

Update on UNT Law

Not much more information here, but Texas Lawyer reports that, provided the school can get their own funding, they plan on opening their doors in 2011, with plans to eventually accommodate about 750 students total. That means the school won't turn out it's first grads until 2014, by which hopefully the legal industry will have recovered from the 2008-2009 downturn.

UNT Law to Dallas

The Texas House follows the lead of the Texas Senate in approving the creation of a new law school in Dallas, to be run by the University of North Texas:

Dallas will be home to the state's next public law school under a bill that won tentative House approval today.

However, budget woes mean funding for the law school remains uncertain, at least for the next two years. At that point, officials could come back to the Legislature again for funding, or seek tuition revenue bonds instead.

Still, North Texas lawmakers said simply getting approval for the University of North Texas Law School – which already passed the Senate – is a great achievement. This is the third legislative session in which they've pushed for it.

They've had to make Dallas' case over the requests of other regions for graduate schools, and over the recommendations of Texas' Higher Education Coordinating Board, which said there's no urgent need for a law school in North Texas.

North Texas lawmakers vehemently disagree. They say that while the region has two private law schools – at Southern Methodist University in Dallas and Texas Wesleyan University in Fort Worth – there's no option for students who can't afford private school tuition.

The Dallas-Fort Worth area is the largest in the country without a public law school. Houston, meanwhile, has two, while Austin and Lubbock each have one.

Unfortunately, both sides have a legitimate point. In fact it's a bit of an understatement to say there's no "urgent need" for another law school right now; more law school graduates is only a bad thing for the legal community, which in the wake of the recession we're enduring is experiencing massive layoffs. At the same time it's true that Dallas could use a public law school, given that the only options are expensive private schools which aren't affordable to students who can only obtain federally subsidized student loans. And since the new school isn't actually funded yet, it'll be awhile before any budding attorneys are churned out. Maybe by then, the legal market will be in a growth cycle once more.

Saturday Links

1. More on studies showing that children do not in fact make people happier. I'm not sure how much I can add to what I said last year; children actually make some people happier (as opposed to making them think they're happier) but yes, children also make a lot of people less happy. I don't know why we're pitter-pattering around the obvious truth, which is that there are a lot of people who should never have kids. That does not mean that the people who are having kids are falling prey to a "noble lie."  

2. Senate Democrats are considering increasing funding to the Legal Services Corporation, which in turn funds legal aid programs across the country. The poor in our country are in desperate need of adequate legal representation. This won't provide it, but more money is always better than less.

3. Tribal disenrollments over gambling money? Gambling has benefited Native tribes immensely, but it's hardly made some tribal members less selfish or short-sighted.

4. Disappointingly, the Obama administration indicates no interest in settling the over a decade long case against the Federal government over misappropriated trust funds. The the Federal government's ineptitude has long been highlighted by this case, officials in the Interior Dept. apparently believe that more time in court is the way to go.

5. Afghanistan: Richard Holbrooke, special envoy to Afghanistan and Pakistan, says we need a "complete rethink" of drug policy towards Afghanistan. No ideas what this means yet, but it's better than the more of the same approach that's failed so far. Fred Kaplan breaks down the Obama administration's war plan in Afghanistan; "counter terrorism plus" but again, nobody seems to know what success in Afghanistan will entail.

Early Afternoon Links

For your reading pleasure:

1. Obama's plan for Afghanistan: once again, the key appears to be figuring out what an administration means by "benchmarks."

2. Pakistan: suicide bomber kills upwards of fifty people in a mosque in Peshawar. Part of Baitullah Mehsud's campaign against the Pakistani government?

3. Iraq: U.S. forces are largely withdrawing from the cities as agreed upon, but may remain behind in areas where sectarian violence is still widespread, like Mosul.

4. Building nanobots...with DNA. Incredible.

5. How health care reform benefits small businesses.

6. Lawyer's should not be judged for who they represent...except when they worked for the tobacco companies, and were balls-deep in the tobacco companies' wrong-doing.

Idiot Legal Arguments (cont'd)

Amusing headline to this story: "Judge assails cases doubting Obama's citizenship." Quote:

In an argument popular on the Internet and taken seriously practically nowhere else, Obama's critics argue he is ineligible to be president because he is not a "natural-born citizen" as the Constitution requires.

In response last summer, Obama's campaign posted his Hawaiian birth certificate on its Web site. But the lawsuit argues it is a fake and that Obama was actually born in his father's homeland of Kenya, even though Hawaiian officials have said the document is authentic.

"This case, if it were allowed to proceed, would deserve mention in one of those books that seek to prove that the law is foolish or that America has too many lawyers with not enough to do," U.S. District Judge James Robertson said in his written opinion.

The lawsuit didn't even use Obama's legal name but called him "Barry Soetoro," the name he went by while attending elementary school in Indonesia. It's one of many that has been filed claiming Obama is ineligible to serve as president.

Robertson ordered plaintiff's attorney John Hemenway of Colorado Springs, Colo., to show why he hasn't violated court rules barring frivolous and harassing cases and shouldn't have to pay Obama's attorney, Bob Bauer, for his time arguing that the case should be thrown out.

Emphasis mine. So maybe the case won't end up in one of those books, but it will almost certainly end up on this website if people keep trying to make this stupid argument.

Texas Caps Damages, Predictable Results Follow

According to Texas law, this man's pain and suffering is worth $250,000:

David Fritzgerald, 53, a former apartment maintenance worker, sued RHD Memorial Medical Center in Farmers Branch and several doctors after his treatment in 2003. Last week, jurors in a Dallas County district court found one of those physicians — infectious-disease specialist Meenakshi Prabhakar — negligent.

[...]

Fritzgerald was hospitalized in August 2003 for ulcer surgery and came down with an infection. Several doctors treated him and ordered an array of antibiotics. But they didn’t prescribe a drug that works on MRSA — a particularly stubborn type of staph infection.

By the time physicians realized that Fritzgerald had an MRSA infection, it was too late. He was transferred to another hospital for the amputation of his arms and legs.

[...]

The jury’s award: $6.72 million in economic damages, including money for Fritzgerald’s ongoing medical care; and $11 million for his pain and suffering.

That $11 million instantly plunged to $250,000, because of a state law that has restricted so-called noneconomic damages to that amount since 2003. Fritzgerald’s case marked one of the few instances in which the law has come into play.

In other words, whatever pain and suffering you experience, it's worth $250,000 max. But if it undermines (Democratic) trial attorneys and keeps costs down for insurers and businesses in the health care industry, it's all good.

Supreme Court Rules Against Cigarette Makers

The U.S. Supreme Court has ruled that federal legislation that regulates the labeling of packages of cigarettes does not preempt state lawsuits over claims of deceptive marketing of "light" cigarettes (h/t Adam):

In a 5-4 split won by the court's liberals, it ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote "light" and "low tar" brands.

The decision was at odds with recent anti-consumer rulings that limited state regulation of business in favor of federal power.

Altria Group Inc. argued on behalf of its Philip Morris USA subsidiary that the lawsuits are barred by the federal cigarette labeling law, which forbids states from
regulating any aspect of cigarette advertising that involves smoking and health.

Justice John Paul Stevens, however, said in his majority opinion that the labeling law does not shield the companies from state laws against deceptive practices. The decision forces tobacco companies to defend dozens of suits filed by smokers in Maine, where the case originated, and across the country.

People suing the cigarette makers still must prove that the use of 'light' and 'lowered tar' actually violate the state anti-fraud laws, but those lawsuits may go forward, Stevens said.

Philip Morris v. Williams Redux

Early last year the Supreme Court ruled against the plaintiff in a tobacco lawsuit against Philip Morris, holding that an Oregon state court erred in relying on harm to parties other than the plaintiff in determining the amount of damages that could be awarded. In doing so they neatly side-stepped the issue of exactly how much in punitive damages may be awarded under the U.S. Constitution. Here's what I said at the time:

... I'm not exactly sure how much of a victory for Philip Morris this was. It is at least possible that this case could be remanded all the way down to the state district court, where a jury could award the exact same amount of damages, and the state appellate and supreme court would uphold it.

So at this point I think it's premature to say what the fallout of this case will be (though of course pro-business groups are applauding the decision.) Nor does this say much for the Supreme Court's jurisprudence of punitive damages, as the the Court has definitely taken a step to the side as opposed to a step forward or backward.

I was half right. Instead of sending the case back to trial, the Oregon Supreme Court affirmed the trial court's ruling, this time on separate grounds that (they say) support the extent of punitive damages originally awarded. So now the Supreme Court, to which this latest ruling has been appealed, is in a bit of a bind:

Philip Morris appealed to the Supreme Court, arguing that the Oregon court had defied the high court’s 2007 ruling, and the justices took the case. “When I read that petition,” Justice Breyer said Wednesday, “I thought this is a run-around” by the Oregon court. But as the arguments unfolded, he said, “I’m not sure that I think that now.”

Justice Breyer and several of his colleagues seemed concerned by the implications of ruling for either side. If they were to side with Philip Morris, said Justice David Souter, “we implicitly have to say that the Oregon Supreme Court has to confront state law issues in a certain sequence,” that is, all at once. “What business do we have” getting so deep into the weeds of state civil procedure? he asked Stephen Shapiro, of Mayer Brown in Chicago.

On the other hand, affirming the Oregon court could invite state courts to drum up all kinds of state procedural bars to effectively nullify Supreme Court decisions.

Chief Justice John Roberts proposed a solution to the court’s dilemma. The court, he said, could decide to finally decide whether the Constitution permits a nearly 100 to 1 ratio of punitive to compensatory damages. “Why don’t we just do that?” he asked.

So the court must either second-guess the Oregon supreme court, affirm that court's holding and risk state defiance on other rulings, or as Roberts and the other conservatives almost certainly want to do, directly tackle the issue of how much in punitive damages the Constitution permits. Clearly the conservatives would prefer the latter, as they'd almost certainly seek to limit the ratio of punitive to economic damages in cases like these (and reign in large punitive damage awards overall, in all cases like this.) Philip Morris would like the same, as reducing a punitive damage award to somewhere around only four or five or so times the amount of economic damages would completely eviscerate the ability of states to punish corporate malfeasance, especially for large companies like Philip Morris that rake in tnes of millions of dollars of profit in a week. So far the Supreme Court has been hesitant to wade directly into the matter, granting broad latitude in earlier punitive damage cases and relying on procedure to side-step the substantive issue in more recent ones. That may come to an end with any decision in this case.

Obama and Attorneys

Ezra Klein comments on a post by Dani Rodrik who takes note of the number of lawyers filling up non-legal positions in the Obama administration. Klein:

Harvard Law is heavily represented, but Harvard's Kennedy School of Government didn't get a token appointment. It's a rather sad state of affairs, if for no other reason then it aligns the incentives in favor of a longer, costlier, and less directly relevant education. And beyond that, it's a bit weird that so many folks go to law school in order to not practice law. Government is using law school as a credentialing process rather than an educational tool.

As Rodrik notes in his post "If you are bright and are contemplating a potential career in American politics, you go to a top law school--not a public policy school." Of course it's no secret that many politicians are attorneys, and there's nothing all that scandalous about that fact; after all, someone who's job it is to craft laws ought to have some training in understanding and interpreting them. But it's also true that a career as an attorney can prove a gateway to a public policy position in which the job of being an attorney hardly seems to be a qualification. As I learned in law school, it's not what you know, it's who you know. This is certainly more true in politics than in any other field, where politicians feel it necessary to select for certain jobs persons who have been vouched for by other people that they know (or vouched for by people who are known by people they know) largely out of a desir to ensure competency and loyalty. 

Of course, we shouldn't presume that attorneys aren't competent to deal with the non-legal tasks they are assigned. No one would question that Hillary Clinton, a graduate of Yale, is unqualified to serve as Secretary of State by virtue of the fact that she lacks formal education in statecraft. Many attorneys who rise to these ranks have served in positions that anything but legal in nature, a number of them obtain Master's and PhDs in a non-legal field (Susan Rice, for example) and in truth, many people are attorneys whose interest and talents lie in the fields of politics, economics, statecraft, and so on. 

So what does this mean for all those bright young students at public policy schools? I don't think they should be discouraged. For one, just because the heads of various cabinet-level positions are or were attorneys, doesn't meant there aren't thousands of positions available for those with a demonstrated commitment to public policy. The Kennedy School of Government alone has churned out quite a few prominent graduates. And should not be forgotten that while political appointees may direct the organization, it's civil servants who will turn that direction into practice and policy and who themselves can rise through the ranks. 

Still, it would be interesting if someone would do a study of the graduates of public policy schools and see how their graduates fare (if there is one out there, I can't find it.) I tend to believe that as public policy schools grow more widespread and pre-eminent, more of their graduates will occupy roles in the federal government. 

Randy Turner for Judge

A personal acquantance of mine, attorney Randy Turner, has been endorsed by the Star Telegram for Judge in Tarranty County's 17th District Court. And for good reason, as the Star Telegram explains:

Voters have a choice between two qualified candidates, but one edges out the other based on the length and breadth of his legal experience.

During 28 years of practice, Democrat Randy Turner, 55, has handled civil, criminal and family law cases.

For the past 18 years, he’s focused on personal injury, medical malpractice, deceptive trade practices and products liability.

Turner is board-certified in civil trial and personal injury law, which signifies doing specialized work, taking extra continuing legal education and passing written exams.

And he’s been active in a slew of community work, including animal rescue, lobbying for improvement of laws against animal cruelty and supervising Texas Wesleyan law students doing pro-bono work.

He’s also traveled to Borneo, Indonesia and Zimbabwe to help scientists involved in wildlife conservation.

I know Randy as a result of working with him on animal law issues, and he's intelligent, well-versed in the law, experienced and, importantly for a judge, compassionate and fair. The Star Telegram endorses him, and we most certainly do as well.

Legal Action in Irving

Things are still happening in Irving, although I haven't posted anything on it recently. There are a couple of lawsuits in the works. One is against the City Council's at-large election system and the other is against the school district's at-large election system. Here's the story. The ACLU has been involved in a few lawsuits against at-large election systems, and evidently such systems have been overturned before, especially notably in Dallas in 1988.

One of the tests that any proposed single member district plan has to pass is whether or not it would produce minority leaders. That may be hard to pull off, although while this fight seems to be mainly between Hispanic activists and the city leadership, it should be noted that Irving has a historic African American community. It should be noted that at present the city council is all white, despite a slightly more than 10% African-American community and a 31% Hispanic community as of the 2000 census. Whites make up 64% of the population as of 2000, but control all 9 council seats (including the mayor).

Now one needn't presuppose that an all-white council cannot govern a multi-cultural, multi-racial city fairly and equally, doing justice for all. By and large, the kind of overt racial politics of the Old South are gone. While the focus of some council members on immigration issues evokes suspicion of race-based hostility, the dominant forces of the council are those that are concerned with keeping Irving's economic growth and renovation on track. However, just because people are not acting with racist motives it doesn't mean their efforts don't negatively impact certain groups more than others. Again, as the great apartment debate goes on, we see that the city is cracking down on apartments which appeal to a certain class of people, many of whom happen to be poorer Hispanic people. It might be that if they were free to elect a council member who was looking out for their interests there would be more projects focusing on the improvement of living conditions for Irving's poorest instead of redeveloping those areas into attractions for people with money.

Some people look at Dallas and charge that the single-member districts work to the detriment of the city as a whole, since the council members will work for their own interests (namely the good of their electorate). As is pointed out though, corruption didn't begin with the ending of the at-large elections; it was already well established.

As regards the school district, the numbers are a little more convincing. Irving's school populace is roughly 67% Hispanic, yet not one Hispanic serves on the school board. Two Hispanic candidates were defeated in the elections. It's not like the whites got together and said, "Hey, we can't let those damn Mexicans get on to the school board" or anything. It's just that with at-large elections, the white majority holds sway, even though they represent a third of the school populace. There's got to be something wrong with that.

It'll be interesting when these cases go to court.

Support Representative Edward Markey's Net Neutrality bill

Finally, a bill is being introduced which will legislate Net Neutrality into being. Massachusetts Representative Edward Markey is introducing HR 5353(pdf file). The essence of this bill is that it would prohibit "unreasonable interference from or discrimination by network operators" to "to preserve and promote the open and interconnected nature of broadband networks".

Naturally the telecommunications companies are opposed to this bill:

Markey's proposal was greeted with skepticism by some telecommunications companies. An advocacy group that represents some of the companies, called Hands Off the Internet, said it had no objection to studying the issue but opposed any further regulations.

Such regulations "will create uncertainty for investors and Internet service providers that must build the infrastructure to meet consumer demands," said Hands Off the Internet.

(Read the comments on this post for more information about Hands Off the Internet.)

Read some of my older posts for discussions of Net Neutrality.

I have not changed my position: I strongly favor writing Net Neutrality into law and preventing any possible abuses before they occur, although some may have already. TWM officially endorses Mukasey's bill. If you want to offer your support, go here or look up your politicians through Project Vote Smart and make your voice heard. As always, you can make a difference, so don't be afraid to write your call your elected representatives.

Felony Murder and the Law of Parties

I don't really have any time to write about this, so I recommend you check out Scott Lemieux at Lawyers, Guns & Money, who writes about the injustice of the peculiar law that put a young Florida man in jail for life for loaning his car to someone, the same law that almost got Texan Kenneth Foster killed earlier this year. The problem is not that these men might be innocent of any wrong-doing, but rather that their punishment far exceeds their culpability for the crimes that were committed by their associates. It is a basic tenet of justice that punishment is proportionate to the crime, and this law invites wildly disproportionate results.

Lawyers, Check Your Ethics at the Door

Over the weekend, I read this column in the Washington Post about a mentally ill soldier being criminally prosecuted for attempting to commit suicide and threatening another soldier with her weapon. She faces life in prison if she's convicted at court martial. I didn't have time to write about it, but Scott Horton does today, and there's something he says that I think is worth highlighting. First a quote from the article:

Her hands trembled as Maj. Stefan Wolfe, the prosecutor, argued that Whiteside, now a psychiatric outpatient at Walter Reed, should be court-martialed. After seven years of exemplary service, the 25-year-old Army reservist faces the possibility of life in prison if she is tried and convicted. Military psychiatrists at Walter Reed who examined Whiteside after she recovered from her self-inflicted gunshot wound diagnosed her with a severe mental disorder, possibly triggered by the stresses of a war zone. But Whiteside’s superiors considered her mental illness “an excuse” for criminal conduct, according to documents obtained by The Washington Post.

At the hearing, Wolfe, who had already warned Whiteside’s lawyer of the risk of using a “psychobabble” defense, pressed a senior psychiatrist at Walter Reed to justify his diagnosis. “I’m not here to play legal games,” Col. George Brandt responded angrily, according to a recording of the hearing. “I am here out of the genuine concern for a human being that’s breaking and that is broken. She has a severe and significant illness. Let’s treat her as a human being, for Christ’s sake!”

And Horton's comments:

...now we have Major Stefan Wolfe, who knows that all psychology is just bullshit. Major Wolfe has probably been given an inner vision into this affair by God Almighty, from the sounds of it. He is apparently also ignorant of the rules of professional ethics that require lawyers (yes, including prosecutors) to treat the work and opinions of other professionals with respect.

Horton is making a larger point about the ease with which military commanders simply dismiss "psychobabble" when their soldiers commit acts that would be criminal but for the fact that they're mentally ill. That's an important point, as military commanders are given great leeway to either bring charges against soldiers, or recommend them for psychiatric treatment. As you can well imagine, there are quite a few who make it to commander ranks who are utterly dismissive of even the idea of mental illness as an excuse to "bad" conduct.

But Horton really goes after Maj. Wolfe, who apparently doesn't have a problem with demeaning the defense's legal argument and badgering the defense's witnesses. Now you might be surprised to learn that though lawyers don the uniform when they're sworn into military service, they are still required to adhere to a standard of professional ethics that they also swear to when they're licensed as lawyers. Here for example, is a relevant portion of the Texas Lawyer's Creed, the code that lawyers licensed in Texas are expected to adhere to:

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings.

And under that heading, this section:

I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

In short, don't be a jackass, and don't impugn the credibility or motives of your opponent or his witnesses.

As you can imagine, a lot of trial lawyers forget these standards when they get into the courtroom, where for many the adversarial nature of the American legal system means "anything goes." But what particularly bothers me is not how trial lawyers forget how to behave, but the larger problem of lawyers who go to work for someone forgetting that whatever loyalty they owe their client, they still must adhere to certain standards of conduct that apply to all lawyers wherever they work. As of late this has been particularly problematic in the field of government service, where some lawyers have come to believe it's ok to carry out political prosecutions, make tortured legal arguments supporting the insupportable, or in the case of Maj. Wolfe, demean that arguments of an expert witness as "psychobabble" in the interests of furthering some military commanders prejudices.

Lawyers are poorly regarded by the American public. To some extent this isn't fair, as the American adversarial system encourages lawyers to play it to the hilt to defend their clients against the world. But lawyers should never, ever forget that their interest is not in helping a weasily client get away with something, especially when their weasily client is the U.S. government. Their duty is to see that justice is done, that truth is revealed. This is true no matter what suit or uniform they wear.

Funny Law Stuff

Via Volokh Conspiracy, here's a pretty amusing site that is an index of what the author refers to as "idiot legal arguments" and case citations in which courts promptly reject and demean such arguments. This is actually pretty handy if you're a lawyer up against someone making one of these arguments, or even if you just feel like arguing with those anti-tax nuts who think the income tax is illegal. I'd be hard pressed to pick my favorite, but I think the one about the "phantom " 13th Amendment that outlaws titles of nobility, including the titles of members of Congress, thus somehow stripping of their power to make laws that are being enforced against the offerer of this argument, is so outlandish as to be endearing.* Please note your favorite in comments.





*Though the argument that by virtue of the 1792 Coinage Act Federal paper currency is not taxable is also pretty amusing.

Lawyers Revolt

Say what you will about Pakistan, but their lawyers have some balls:

Police used tear gas and baton charges Monday to break up protests as thousands of lawyers took to the streets across Pakistan in the first significant demonstrations against President Pervez Musharraf's declaration of emergency rule on Saturday.

The largest rally took place in the eastern city of Lahore, where lawyers and police battled each other at the city's High Court complex. Several lawyers were injured, and hundreds were arrested before the protesters were dispersed.

Lawyers vowed to continue their protests in the coming days.

"We are determined that until there is freedom for the judges and the overturn of emergency rule, this war will continue," said Anwar Shaheen, a lawyer in Lahore. "They can't quiet us."

In suits and ties no less, as you can see from related pictures of the protests. In case you haven't been paying attention, about no lawyers in this country have all that eagerly swept into the streets to protest abuses of our Constitution over the last several years.

Not that it'll help much, but if you want to go tell President Bush that it's these people-not a dictator-who we ought to be supporting, you can here.

It's Legal

Or so the Justice Dept said, of certain "enhanced interrogation techniques" more commonly referred to as torture. From this NY Times article emerges the clearest portrait yet of the infighting that took place in the DOJ in regards to the legality of torture techniques, and the lengths to which Alberto Gonzales went to put an end to the dissension:

When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

In other words, according to the NY Times timeline, Yoo and and Bybee authored the torture memo in 2002, which was repudiated by Jack Goldsmith in 2004 (conveniently in time for Gonzales' confirmation hearings) this repudiation which was then secretly repudiated by another memo which listed several of the same techniques utilized by the CIA that are not considered torture even under the language then being considered then by Congress for the Detainee Treatment Act, a memo that members of Congress did not know about even as they were passing the bill.

If you want to know why it's very difficult for persons such as ourselves to take the Bush administration seriously in any respect or believe any claim that they publicly make, this is why. Because they are more than willing to issue opinions, documents or whatnot that will conveniently allow them some political maneuvering room, while at the same time in secret or behind closed doors continuing to do exactly what they've done all along...acting as if no one will actually find out about these games. To think that no Presidential administration does this to some extent is incredibly naive, but the Bush administration has taken it to new levels of egregiousness and insult, and they have done it over matters crucial to our national security and standing in the world. Here's Jack Balkin on this news:

Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper.

What is particularly amazing-- and disturbing-- is that the revelation of the first torture memo had no effect on the Gonzales Justice Department. Instead, they resorted to misleading the public and twisting the law in secret opinions.

It is well worth asking how many other secret opinions the Justice Department has produced during the Bush Administration that justified violations of the Constitution, federal statutes, the laws of war, and international human rights.

And we need to be clear about the purpose of these memos. A memo crafted in secret is never one that is intended to explain or justify to the legality of particular measure the administration is taking in an effort to broadly justify such an approach. Such a memo serves a post hoc purpose; it's an excuse, handy for those who act under the "authority" of the memo who seek to avoid legal liability for what they do, in the way of either staying out of a court or as authority to cite to when they must defend themselves in court. It's a stay-out-of-jail-free card, or a note from mom to your school explaining why you skipped the day before. The memo itself doesn't really have to be legally supportable or believable to any truly rational person; you just have to show that it was good enough for you, an agent of the government, to rely on. That my friends is a pretty low bar given the unwillingness of courts to find government agents legally liable for the actions they take on behalf of the government. It's also a handy way to subvert the rule of law, and the system of checks and balances enshrined in our Constitution that lies at the heart of our democracy. But, small price to pay to be able to slap a few terrorists around, right?