Blawg Review #143

Welcome to the Martin Luther King, Jr. Day edition of Blawg Review. This is the second year in a row that Public Defender Stuff has had the honor of hosting Blawg Review on MLK Day. As Greg (founding editor of PD Stuff) noted last year, there is much in Dr. King’s message that resonates even today within the criminal defense community. Dr. King’s life was a life of service and I must say that public defenders carry on much of the same work. Working without much financial reward to stand up for those that cannot defend themselves is truly commendable work and I am proud to stand among the many that have devoted their lives to keeping the message of equality, justice and fairness alive. Part of that message is the fight of the one against the many; the accused against the government:

In a sense we’ve come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the “unalienable Rights” of “Life, Liberty and the pursuit of Happiness.” It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.”

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we’ve come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.

So, before we start, a reminder of what Dr. King stood for and how he impacted hundreds of thousands of people:

Preparing for this edition of Blawg Review, I struggled to come up with a theme. A theme that would appropriately encapsulate the day, the focus of this blog and ofcourse, incorporate the best posts of the last week. That’s when it hit me: It’s about the struggle. The struggle that those of us in this field encounter on a daily basis, whether it is from the this side of the aisle or that, or from a detached, academic perspective.

With that in mind, I have loosely divided this review in terms of the issues facing the citizen today (let’s be honest: but for the grace of God…) and bothering the criminal lawyer. I apologize in advance for the criminal defense heavy focus of this Blawg Review, but that is all I know. I will try and incorporate other posts as much as I can and have a section at the end for that as well. In addition, continuing last year’s tradition, the very last section will have posts from around the blawgosphere on MLK and MLK day, so check back in as they are updated.

So for those of you who are too busy in other areas of law and may have only a passing interest in the criminal jurisprudence, I present Blawg Review #143.

Ethics

Much of the discussion for the past week (and more) has centered around Harris County DA Chuck Rosenthal’s racy e-mails to his secretary/girlfriend. But that’s not all that troubles those that are involved in the Harris County Criminal Justice system. There seems to be a general perception that prosecutors in that courthouse strike minority jurors for racial reasons. Perhaps that is because prosecutors are aware of the problems faced by black people vis-a-vis law enforcement. Or not.

Texas provides much fodder for the criminal blawgosphere, this time in an attempt to eschew the notion that judges are supposed to be unbiased.

Overshadowing all of this, though, has been the matter of Daryl Atkins. (Yes, that Atkins.) Mr. Atkins’ sentence was commuted to life without parole. This was not because he was the beneficiary of the decision that bore his name, but because counsel for his co-defendant finally came clean about prosecutorial misconduct. The lawyer sat silently as the prosecutor coached his client’s responses to questions. The client got life, Atkins got death. The question is: what took so long?

Interpersonal Relationships

We’re all bloodsuckers, goes the myth. The most famous of all bloodsuckers, ofcourse, is Dracula. As we all know, Dracula isn’t one for niceties and polite conversation. So it goes without saying that, just as that myth is false, so is the idea that we don’t know how to express ourselves: to clients, the media and prosecutors.

Take, for example, the client who wants a new lawyer because of a breakdown in communication, even though there’s no actual conflict. What if the client’s “not all there“? What if there’s nothing to the story?Further down the line, if the client ever files a habeas, alleging ineffective assistance, how do you respond? What if you’re the lawyer filing the habeas?

Representing the client in the media is even more complicated (not that anyone’s watching, but.). The oft-used response is “no comment”. But sometimes even that isn’t appropriate, because you’re too busy chewing the client’s ear off and well, you don’t want to appear in front of a camera with a half-chewed human ear in your mouth, do you? That will just perpetuate the myth.

Of course, our clients aren’t the best at it either, leading some to wonder if we need a “recent perception” exception to hearsay in light of the clarification of the Confrontation Clause.

Executions

The topic of the death penalty is a touchy one and one that generates much discussion. Be it the State that is crumbling under the enormous cost of capital punishment (philanthropy might be a substitute) or the hypocrisy of the campaign against countries that won’t extradite to the US or the humanity of the two people that are closest in the moment of death: the condemned and the executioner.

Innocence

It seems that every week there is another exoneration. Yet, for some, the road is longer and fraught with more obstacles than others and doesn’t necessarily end with freedom.

All of this places an even greater burden on the criminal defense lawyer. There is no worse feeling than going to bed knowing that an innocent man has gone to prison and you couldn’t stop it. You do all you can, but sometimes it’s not enough.

The Indefensible Minority, or, The Prison Industrial Complex

No, I’m not referring to a racial minority. Rather, within the class of criminal defendants (which is a minority in of itself), there is a minority - or sub-group - that may just be the most reviled minority in history: sex offenders and paedophiles. Not only are they subject to the harshest of penalties, but are also shunned upon release into communities (and perhaps even the internet).

Of course, that first link there is the big story. With the Supreme Court’s decision to consider the death penalty for child rape, the discussion in the blawgosphere has swirled around the legality of capital punishment in this context, and more recently, whether it is advisable and the impact it might have on wrongful convictions.

Child rape isn’t the only corrections issue bothering the blawgosphere, however. Some are rightly concerned about health care in prisons, the alarming rate at which we incarcerate juveniles and how we’re going to pay for all of this.

What are other lawyers blogging about?

Yes, I recognize that the criminal law blawgosphere is a tiny component of the larger blawgosphere, so for those of you that skipped the majority of this post, here’s the best of the rest:

• Are minorities selling out?
• Mixing race and golf and was the horse dead?
• There’s a bit of football related talk out there: How far will the NFL go in preventing use of the trademarked Super Bowl and whether the Patriots are responsible for Randy Moss’…altercation.
• A touching tribute to a blogfather’s father.
• The aftermath of being outed as a blogger on the witness stand.
• Be careful what you type (or search for, or bookmark). AT&T might be watching.
• Are different reactions to property theft tied to generational gaps?
• Law schools might finally be getting it: Free tuition for those dedicated to activism.
• Lawyers: Deadlines are important.
• Watching the birth of antidiscrimination law in China.
• Lawrence Lessig’s latest book is now available via a Creative Commons license. Will others follow suit?

MLK Day on Law Blogs

The following are posts in the blawgosphere about Dr. King and MLK Day. I’ll keep updating this section as the day goes on, so come back to check for new posts:

• From the WSJ Law Blog, a collection of Dr. King’s quotes
• From TalkLeft, Billy Moyers on MLK.
• From Bag and Baggage, a child is introduced to Dr. King.
• From TalkLeft, “In Memory and Honor of Dr. Martin Luther King, Jr.”
• From Underdog Blog, “Happy Birthday, Martin Luther King, Jr.”
• From Simple Justice, “Martin Luther King Day Today”
• From Sentencing Law & Policy, “Reflecting on race and criminal justice realities to honor MLK’s legacy”
• From Concurring Opinions, “MLK on social equality, fellowship, and love.”
• From Above the Law, “Happy Martin Luther King, Jr. Day”
• From f/k/a, “MLK, Jr Day: service, justice & nonviolence”
• From Balkinization, “Thurgood Marshall and Martin Luther King, Jr.”
• From Mediation Channel, “Martin Luther King, Jr.: lessons in conflict resolution and negotiation”
• From The Word on Employment Law, “I Have a Dream”
• From CT Employment Law Blog, “MLK Day Wrap Up”
• From The Situationist, “Martin Luther King, Jr.’s Situationism”
• From Feminist Law Profs, “Pink to Soften the Social Justice Message?”
• From Cyberlaw Central, a link to the decision on whether Dr. King’s “I Have a Dream” speech is in the public domain.
• From Feminist Law Profs once more, reminding us of the legacy of Coretta Scott King.
• From Likelihood Of Confusion, “I Have a Dream (c)”
• From Overlawyered, “Martin Luther King Day…and preemption?”

Before we sign off, here’s a link to some rare, previously unpublished pictures of Dr. King released by Life and a musical tribute:

Thanks to everyone who stayed with this edition. It reads like my briefs: long, rambling and not always on point. I invite you to look around this website (in particular, the 2007 Public Defender Blogger Awards and Monday Musings - a series of interviews with public defender bloggers) and if you like what you can see, you can subscribe to us here.

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

License info for image of ladies talking here

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