Blawg Review #91

Martin Luther King, Jr. Day

Blawg Review

Assuming some of you may be unfamiliar with either Blawg Review or Public Defender Stuff, let’s start with proper introductions:

• Blawg Review is a weekly “Carnival” of law blogs. The Carnival travels to a new location each week, facilitated by the good Editor at Blawg Review. Bloggers send in blog posts for inclusion, and the Editor forwards the posts to the upcoming host, who combines those posts with posts of his or her choosing to create the Review. (Information about next Monday’s host is at the end of this post.) This week, obviously, the Carnival is set up right here at Public Defender Stuff.

• Public Defender Stuff brings together news and information about public defenders and indigent defense. The blog has grown since it began last February, and now includes the PD Blog Guide, and was recently host to the FIRST EVER Public Defender Blogger Awards. PD Stuff is primarily a news service, with excerpts from articles and/or blogs about public/indigent defense and related subjects, as well as a daily listing of the public defender blogs with new posts since the previous morning’s list.

And now on with the

Carnival

Hosting Blawg Review on MLK Day is a very special honor for me. Dr. King is one of many influences in my life that have led me not only to do the job I do, but to create Public Defender Stuff. Providing whatever support I can to the attorneys who fight for justice for those who otherwise would be on their own is the best way I know to honor Dr. King’s memory, his life, his Dream. Our Dream.

These Blawg Reviews often have themes, and this one is no different. I’ll be taking my cues from these lines in Dr. King’s Letter From Birmingham Jail (pdf):

“Injustice anywhere is a threat to justice everywhere.
We are caught in an inescapable network
of mutuality, tied in a single garment of destiny.
Whatever affects one directly, affects all indirectly.”

Although Dr. King was referring to the scourge of racial injustice, his words and indeed our very celebration of his life speak to a larger context.

The focus of Public Defender Stuff, of course, is indigent defense. Often struggling with mind-numbing caseloads, public defenders fight day in and day out, and often late into the night, for one thing: justice for their clients.

And they do it while suffering the slings and arrows of virtually everybody: from society, other attorneys, even their own clients. It’s not unusual for PDs to be asked when they will become real attorneys, or to be derisively dismissed as “public pretenders.”

In honor of these incredible men and women, this Blawg Review is for them. I think I can say without fear of contradiction that Dr. King would be proud of them and their essential work on the front lines in the ongoing battle against injustice wherever it may be found.

NOTE: Near the end of this Blawg Review is a section that includes posts from around the blawgosphere celebrating Martin Luther King, Jr. The section will get additions throughout MLK Day as posts appear.

“Injustice Anywhere Is A Threat To Justice Everywhere”

We start in New Orleans, where this past week a judge threw the chief trial deputy of the city’s public defender office in jail for contempt. The reason? There was no public defender in the judge’s courtroom to handle the court’s docket. Turns out the public defender responsible for that particular courtroom was handling cases in four different courtrooms at the same time.

Jeralyn Merritt at TalkLeft begins her post on the story with “This is absolutely astonishing”:

The New Orleans criminal justice system has been in a heightened state of crisis since Katrina. If there aren’t enough public defenders to go around, the state needs to increase the funding to hire more of them — not blame the already overworked, overburdened current defenders who are doing more than their fair share of the work.

Attorney Brian Privor recently signed up to serve six months at the New Orleans Public Defender and is blogging about his experience at Do Not Pass Geaux. His post on the jailing is called “Piling On“:

As if the criminal justice system isn’t under enough strain, here’s an example of how not to solve the problem. Frustrated with the lack of public defenders to represent juvenile defendants, the Chief Judge of the Juvenile Court held in contempt and jailed Steve Singer, the trial chief of the public defender’s office. Brilliant! There aren’t enough lawyers, so toss one of the few experienced public defenders in jail. Fortunately, Mr. Singer was released by day’s end, leading to discussions with the Chief Judge about plans to increase the number of lawyers. What a way to spark a conversation.

For more information about how difficult things have been for public defenders in New Orleans, click on PD Stuff’s New Orleans label.

On another front, Guantanamo Bay detainees continue to be in the news, and a recent story helps illustrate a problem often faced by public defenders: they get equated with their clients. In this case the “evil lawyers” are pro bono attorneys for Gitmo detainees. “Cully” Stimson, the Bush Administration’s deputy assistant of defense for detainee affairs, suggested there should be a boycott of the law firms that are providing the pro bono attorneys who are fighting for the basic legal rights of the detainees.

Eugene Volokh at The Volokh Conspiracy has a very thoughtful post that includes this:

It strikes me as especially wrong for the government to try to drum up financial pressure that would deter lawyers from playing this role. Again, the premise of our legal system is that the courts, and not just litigants, are benefited from quality legal advocacy. If the government frightens away lawyers who are on the other side, it will get an unfair advantage in the judicial process, shortchange the judiciary, and (when it comes to decisions that set precedents) potentially yield legal rules that will give too little protection for the rest of us, and not just the Guantanamo detainees.

Jeralyn Merritt reminds us that the Bush Administration’s treatment of detainees and the rule of law have been abysmal:

Cully is but one cog in the Administration’s wheel of injustice at Guantanamo. Let’s try to keep our eye on the larger issue — that for five years, the Bush Administration has kept people imprisoned without a trial and without a reliable basis to believe that the vast majority of them are terrorists.

Just as bad, the Bush Administration has refused, despite Supreme Court law to the contrary, to allow the detainees to raise challenges in our federal courts. It pushed Congress to pass a law obliterating habeas corpus for the detainees.

These are the larger issues behind Cully’s comments. Regardless of what happens to him, the Administration must not be let off the hook for its unfair, unjust and un-American treatment of the detainees.

Of course, we’ve all heard the word “detainees” until it probably doesn’t mean much anymore. To see what this is all about, please read this Jurist piece by William Teesdale of the Federal Public Defenders Office in Portland, Oregon. Teesdale represents Adel Hamad, who was arrested in Pakistan and has been in Guantanamo since 2003. Then watch Teesdale’s “Guantanamo Unclassified” on YouTube.

More blawg commentary and analysis on the issue:

• Carolyn Elefant at Legal Blog Watch: Should Law Firm Clients Control Law Firms’ Pro Bono Work?

• Jonathan Adler at The Volokh Conspiracy: Discouraging Detainee Defense

• Nicole Belle at Crooks and Liars: Pentagon Shocked That Lawyers Do Their Jobs

• Frank Pasquale of Concurring Opinions: When Government Speaks About Law Firm Patriotism

• LizardBreath at Unfogged.com learned of the news upon her return from vacation and immediately checked in with “I have here in my hand a list…” a reference, of course, to the McCarthy Era.

• Jonathan Adler at The Volokh Conspiracy adds “Defending Detainees – One Last Time“

Back in the U.S., Colorado public defenders also made the blawgs this past week. (Full disclosure: I am an investigator for the Colorado State Public Defender.) A district court judge in Denver published an op-ed piece in the New York Times about a study he and two economists did. Their goal: find out whether clients of public defenders or private attorneys are sentenced to more time in felony cases. Their conclusion: PD clients are sentenced to more time. The judge’s opinion: “marginally indigent” defendants facing felony charges decide whether or not to hire a private attorney based upon a cost-benefit analysis of the strength of the case against them.

The Briefcase takes a look at the study and has this analysis:

In short, the difference in result is because of self-selection by the marginally indigent: public defenders wind up with the obviously guilty and other hopeless cases, while the more defensible cases gravitate toward private lawyers. Keep in mind that doesn’t just show up in conviction rates; cases in which guilt is questionable almost always end up in much better plea bargains, and thus shorter sentences. Private lawyers get better results not because they’re better lawyers, but because defendants think they’re better lawyers and are willing to pay for the difference.

At Fight ‘Em ‘Til We Can’t, tc has this conclusion:

Whatever the case, prominent articles like this that speak to a national audience and say that public defenders aren’t as “good” as private counsel are bound to fan the flames of PD-critics who claim we’re not “real lawyers.” On the side of the silver lining, let’s hope this study encourages states and counties to invest more in their PDs to try to reduce caseloads and improve outcomes for the truly indigent defendants who really don’t have a choice of counsel.

Appellate Law & Practice uses the study to talk about the inherent biases in favor of the well-to-do in both case filings and sentencings.

Public defender blogger Injustice Anywhere… uses the news of the study as the foundation of a post titled “Why Don’t Parents Hire Lawyers For Their Kids?“

Jeralyn at TalkLeft tries to make sense of the study, and includes this gem:

Public defenders (and I have never been one) — particularly in Denver — are exceedingly well trained and provide excellent representation — for lower pay and little glory. This study makes no sense to me.

Thank you, Ms. Merritt. You were already one of my favorite bloggers, and this just seals the deal.

On the subject of the difficulty of being a public defender, and the little things that keep PDs going, audacity (most of the public defender blogs are published anonymously) wrote a post especially for this Blawg Review. It is titled “Motivation” and begins:

I’ve been feeling fairly frustrated lately. Call it the mid-winter slump. Frustrated that no matter what I seem to do for my clients, it doesn’t seem to make a damn bit of difference to them. I get them out of jail, they’re back in jail two weeks later on a new charge. I get them a deal, but it’s not good enough. And on, and on.

Poverty Lawyer 1, author of The Wretched of the Earth, raises the issue of De Facto Segregation:

…here in Dallas, people overwhelmingly live in areas where their neighbors share their skin color. In Dallas it’s pretty simple: for the most part, if you live in North Dallas, you’re white; if you live in South Dallas, you’re not white. There are exceptions, of course, but it’s overwhelmingly the case.

Skelly at Arbitrary and Capricious sheds some light on an unseen tax on those who are cooling their heels in the local jail or serving time in prison: the exorbitant cost of making phone calls:

[New York Governor Eliot] Spitzer said he is eliminating a “tax” that hikes the cost of the collect calls and gives the state a 58 percent kickback on the cost of each call…

Karl Keys of Capital Defense Weekly found enough news over the weekend to post “Weekend Update II“. The lead of the post is a Washington Post article: “Dead End: Capital Punishment: At a Crossroads, or Is This the Exit?“

And David Feige of Indefensible has a well-deserved bragging post about how his book, also called Indefensible, made Kirkus Reviews’ Best Books of 2006 (pdf). David’s book is a non-fiction look at his work at The Bronx Defenders and an excellent way to learn more about what it means to be a public defender.

Of Mutuality, Tied In A Single Garment Of Destiny”

Christopher Bracey has a post on blackprof.com exploring the question of how the younger generation celebrates Martin Luther King, Jr., and the role reality TV has taken as an educational forum:

Is it true that folks in their teens and twenties are learning about race and racism in America through popular culture and, in particular, so-called “unfiltered” reality television? And if so, what impact is this likely to have on the future of American race relations?

TChris of TalkLeft has a post about the lies police put into a search warrant affidavit that led to a “no-knock” raid on a house, resulting in the police killing the 92-year-old woman who lived there:

The facts were bad enough when it seemed that Kathryn Johnston’s death was the result of unnecessarily aggressive tactics in executing a search warrant. Now we learn that the warrant was based on lies. Will the officers involved be held accountable?

Anastasia of Lawsagna explores the issue of how people learn with “What A ‘Jailhouse Lawyer’ Can Teach Harvard Law Students.”

Precedent: The New Rules of Law and Style, a Canadian blawg, shows us that courtroom misbehavior ignores borders:

…defence counsel Reid Rusonik was cross-examining an ex-biker who was one of the alleged victims and got the following response to one of his questions:

If you want to put a noose around your neck, go ahead.

To which Rusonik responded:

You’re so frigging tough, let’s go. You think you’re brave, eh? If you want to step outside right now we can do it the way you want to do it. Let’s just go hand to hand.

Jen Burke of Transcending Gender has a post on bloggers securing of press credentials for the upcoming “Scooter ” Libby trial:

The blogosphere has just experienced a first: four seats of the one-hundred seats reserved for media have been marked specifically for bloggers at the trial of “Scooter” Libby.

Evan Schaeffer (as in Evan Schaeffer’s Legal Underground) has his third podcast on Advanced Deposition Techniques to complement his book Deposition Checklists and Strategies. (First podcast; second podcast.)

Blawg IT: Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout brings us “MLK Day Post – African-American Inventors“, which includes Michael Jackson and a caveat:

There obviously may be some disagreement as to who should, and who should not, make the list of famous African-American inventors. I have tried to include not only those who have contributed to mankind as a whole, but also those African-American inventors we know from other endeavors, or from the fun things they have brought to our lives.

As noted above, most public defender bloggers are anonymous, or at least quasi-anonymous. The Greatest American Lawyer (not a PD) announces in a post titled “To Be or Not to Be…Anonymous” that he will drop his cloak of anonymity on February 10, after a guessing contest in which he promises good prizes:

My last post drew a lot of comments from folks who poked around a little bit and easily discovered who I am. The truth is that there are quite a few other bloggers who I have met at events who know I am. The reality is it is time to come out of the closet.

“Whatever Affects One Directly, Affects All Indirectly”

Of course, there are many areas of the law, and given the nature of precedents, legal strategy and client relations (among many other things), it is important that we stay aware of what is happening in all of those areas.

And what better place to start than with a post from Antitrust Review called “Hot Sexy Models” (the post has photos of bare-chested models, male and female, but purely for your legal edification):

Last Thursday, the Second Circuit issued its decision in Fears v. Wilhelmina Model. The plaintiffs were members of the class who objected to the settlement of a class action alleging that defendant modeling agencies conspired to fix the commissions charged to models.

Overlawyered also has a post about models, this one titled “Skinny Models With Lawyers“:

The Council of Fashion Designers of America will issue guidelines discouraging anorexia-suggestive degrees of emaciation but won’t attempt to enforce any binding rules. “Those people could sue, in America they could sue everywhere for prejudice or discrimination,” said council president Stan Herman when the issue came up in the fall. “I wouldn’t touch it with a 10-foot pole.” (“New York fashion group to issue guidelines on skinny models”, AFP/Breitbart, Jan. 8; “Skinny model ban ‘discrimination’”, AFP/News.com.au, Sept. 16).

Overlawyered also contributes “John Edwards On Wacky Warnings“.

The Feminist Law Professors blog checks in with a post titled “It’s Okay to Read Porn, But Not to Pose Naked in Playboy?”

The Volokh Conspiracy has an analysis of the constitutionality of a Minnesota law barring sex between massage therapists and their former clients:

It’s hard to see how a sexual relationship between a massage therapist and a former patient is especially likely to be improper. Sure, there’s some risk of psychological manipulation and other unsavory behavior — but no more, I think, than in any relationship between two adults.

Another notable post from The Volokh Conspiracy: Has the Bush Administration Claimed New Power to Open Mail?

New York Personal Injury Law Blog asks, “Are Emotional Injury Recoveries Tax Exempt?” and has an intriguing post titled “Sister Permitted to Bring Zone of Danger Claim After Witnessing Brother’s Death.”

Polymorhous Perversity, a new blog that started in December, takes a look at “Married Names and Gender Equality“:

He wants to take her name, which seems simple enough. For women getting married, there’s little more to it than checking a box. But for marrying men, there’s lots of paperwork, a court appearance, and a $300 fee. The SoCal ACLU is on the case.

May It Please The Court reports on some interesting findings in “Computer Survey: ‘Nothing Personal’ Shows How Much Employees Misunderstand Email.”

Eric Goldman posts on Concurring Opinions about his “Favorite Holiday-Themed Cases“:

I can’t imagine doing anything as radical as wearing a chicken suit when teaching the chicken case in Contracts, but I do like to find ways to reinforce classroom pedagogical lessons in entertaining ways. In particular, when timed right, it’s especially fun to teach holiday-themed material on or around the holiday.

David Maister blogs about a subject we’ve all faced: “Offering Advice When It’s Not Been Asked For.”

Language Log has a post about newspapers implying the guilt of a suspect, in a post titled “Accusatory Headline“:

It’s been a very long time since we’ve written about the way newspapers report on people suspected of, alleged to have committed, accused of, or charged with criminal behavior of one kind or another. The usual situation is that a paper, in an effort to avoid asserting guilt, ends up writing that “the unidentified suspect fled the scene” or “so-and-so was charged with allegedly embezzling $10,000″ or the like. But things can go wrong in the other direction as well.

Point of Law, in their Products Liability section, serves up “Canada Permits Silicone Breast Implants.” The blawg also has posts titled “Defend Your Rights, Lose, Pay Punitives” and “Watson v. Philip Morris.”

shlep: the Self-Help Law ExPress has a post about payday loans:

…99 percent of payday loan consumers are “chronic borrowers”, who are the most vulnerable consumers, and the loans are structured so that the borrower is consistently in debt to the lender.

Larry Downes from The Center for Internet and Society of Stanford Law School has “An Unpopular Position on Net Neutrality.”

Jen Burke of Transcending Gender has recent posts on a couple cases worth checking out:

Green v. City of Welch

National Federation for the Blind v. Target Corp.

Trusted Advisor Associates has a tip to “Subsidize Marketing With Sales.”

AdamsDrafting, a blog on contract drafting, has “‘Be and Hereby Is’ – The Lamest Drafting Usage?“

China Law Blog has a post titled “Chinese Court Says ‘No’ To Government – Applause Not Warranted.”

The Common Scold takes a look at environmentally-friendly building management in “Adobe’s Green.”

Special Posts From Around
The Blawgosphere Celebrating Martin Luther King, Jr.

The Volokh Conspiracy: I Have A Dream (video)

TalkLeft: Martin Luther King Jr. Day

Arbitrary and Capricious: Happy Birthday, Skelly Wright

blackprof.com: ‘Celebrating’ MLK, The Commodification of Race and Reality TV

Sentencing Law and Policy: Honoring MLK by Asking Hard Questions

DennisKennedy.com: MLK Day 2007: Holiday Musings

Feminist Law Professors: Today, In Honor of Dr. King, Remember That The First ‘C’ In SCLC Stands For ‘Christian’

Infamy or Praise: Two of the Greatest Men of Our Time

Language Log: Martin Luther King’s Rhetorical Phonetics

Above The Law: Happy Martin Luther King Jr. Day

Freedom To Differ: ‘I have a dream’

Salt Lake Tribune’s Political Writers’ Blog: MLK Day, Utah Style

Pajamas Media: Photo of MLK at the Mahatma Gandhi Memorial

Objective – Justice: Free at last!

Of a Public Defender’s Life: Happy MLK Day!

shlep: MLK and the pro se movement

george’s employment blawg: MLK Day: workplace diversity is good business

f/k/a: injustice anywhere

blackprof.com: Take a Moment to Reflect on MLK

Abolish the Death Penalty: King quotes for this holiday weekend

American Constitution Society for Law and Policy: Wisdom From Dr. King

For more information
about MLK:

Thank you to everybody who sent in posts for this Review, and to those blawggers who are drawing attention to important issues. And a special thank you to all of the public defenders out there. Keep up the great work.

I also want to thank Anonymous Editor at Blawg Review for his trust in allowing me the opportunity to honor Martin Luther King, Jr. in this way. He recently posted a “Living Will” for Blawg Review. Here’s hoping he won’t need it for a very long time.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues, and see Blawg Review Hosts.