Chief justice to allow more jury trials
By Sebastian Kitchen, The Montgomery Advertiser
Aug. 31, 2011
Alabama Supreme Court Chief Justice Charles Malone, who is expected to announce today that he is running for a full term in 2012, will also announce that he will allow local circuit judges to increase the number of jury trials after cutbacks earlier this year because of budget cuts.
Malone said reducing the number of jury trials for civil and criminal cases is leading to a backlog of cases, some people sitting in jail longer and waiting longer for justice, jail overcrowding and other issues.
"If you can't call it for trial, there is no way to move the case," said Malone, who was a circuit judge for 10 years before becoming chief of staff for Gov. Robert Bentley earlier this year. "It can sit there for a long time, which has a ripple effect in that cases are continuing to build."
After Bentley declared across the board cuts earlier this year to balance the budget, then- Chief Justice Sue Bell Cobb told circuit judges to reduce the number of weeks they empanel juries.
"What we are trying to do is put back into place the number of jury trials that the circuits had before the cuts were made, and they were not cut out totally," Malone said. "They were reduced but that reduction has an impact on how many cases you can call up."
Also, Malone said, the longer it takes for a case to go to trial the more advantageous it is for the defendant with the risk of evidence being destroyed, people forgetting or moving, and victims becoming frustrated.
He said prosecutors could also become overloaded with cases. "It's not like (cases) stop coming into the system," Malone said.
The response from the president of the Alabama Circuit Judges Association was quick and jubilant Tuesday afternoon. "Praise the Lord," said Jefferson County Circuit Judge Scott Vowell, the presiding judge in the most populated county in the state. Vowell said, when contacted by the Montgomery Advertiser, that he had not heard Malone was ramping up the number of jury trials.
"He said he ... would do everything in his power to do that," Vowell said of Malone. "I did not know he found the funds to do it, and I am absolutely delighted."
Vowell, who has been a circuit judge since 1994, said the Legislature has never adequately funded courts, but that Cobb told judicial officials throughout the state to reduce the number of weeks juries are called in.
Vowell said they were ordered to cut the number of jury weeks for civil trials in half and the number of jury weeks for criminal trials by a third. In Jefferson County, he said, they had 31 scheduled jury weeks for the year beginning Oct. 1 and cut that down to 15.
"It has slowed down the civil docket considerably," Vowell said. Vowell said the change in criminal cases has affected the jail population, "which is already at a critical level."
Malone said he has requested the cost of having more jury trials, but "I understand it is not that significant." He did not have the exact numbers, but said there are variables involved including how many jury trials there are in the state's 67 counties.
"If we have to make cuts in other areas to make sure that happens, we're going to do it," Malone said. "There are other things I would rather look at than jury trials being cut."
Bentley appointed Malone, his friend and a former fellow deacon at First Baptist Church in Tuscaloosa, as chief justice on Aug. 1 following Cobb's resignation. Bentley swore in Malone then, but Malone's ceremonial swearing in, which included him receiving his robe and taking his seat on the court, was Tuesday.
The chief justice seat was already slated to be on the ballot in 2012. Malone has an announcement today to "declare his intentions regarding the upcoming election cycle."
Mobile County Presiding Court Judge Charlie Graddick, a former state attorney general who ran for governor, has announced he is also running for the Republican nomination.
Cobb was the only Democrat on the court. Now, all nine members are Republicans.
Malone also talked to the Advertiser on Tuesday about his first month in office, much of which he said has been consumed by meeting with other justices, other appellate court judges, and top officials with entities that interact with the state's judicial system.
As chief justice, he heads the Administrative Office of Courts, which oversees the state's judicial system including the Supreme Court, courts of civil and criminal appeals, and the circuit and district courts throughout the state.
When asked about the possibility of cuts because of continued budget issues for the state, Malone said "I can't say there won't be.” He said he is "still assessing the finances."
Malone said he has spent about 60 percent of his time with administrative issues such as personnel and the other time dealing with the high court's caseload. He said he reviews cases at home at night, and on Saturdays and Sundays.
Malone said he decided not to have security detail and said he returned the vehicle utilized by the chief justice to the motor pool and will use his personal vehicle.
A large crowd, including an overflow room, viewed Malone's ceremonial swearing in. Those in attendance included Bentley, other state officials, Cobb, state and federal judges, Malone's family, and friends including his entire Sunday school class.
Malone said he would honor the trust Bentley put in him by appointing him chief justice.
"Chuck's always gonna do what's right," Bentley said during the ceremony and said his longtime friend would be a great chief justice. "Alabama will be better for it."
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TN lawyers may soon bid to defend poor
By Brandon Gee, The Nashville Tennessean
August 31, 2011
A person’s right to legal representation could be provided through a highway contract-style bidding process under a proposal being considered by the Tennessee Supreme Court.
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.” The proposal has come under a barrage of criticism from lawyers, judges and state and national legal organizations who warn that flat-fee contracts will put many lawyers out of work, undermine the authority of local judges and deny poor people the effective assistance of legal counsel.
“We think it will compromise the quality of representation that indigent defendants get,” said Laura Dykes, an assistant public defender in Nashville and past president of the Tennessee Association of Criminal Defense Lawyers. “Other jurisdictions (that have tried this) have seen lawyers ignore ethical guidelines.”
When a local public defender’s office can’t represent a poor defendant because of a conflict of interest or a heavy workload, judges appoint private attorneys who bill the state for their services.
Since fiscal year 2004-05, the state’s indigent defense fund has grown from $19.9 million to $37.5 million.
There were 126,000 claims submitted to the state last year, including 24,000 in Davidson County. The growth has prompted lawmakers to ask the Administrative Office of the Courts to look for savings.
“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.”
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.
“The problem is, it’s just impossible to know,” said Nashville attorney James Rose.
“They’re giving all the discretion to a centralized government agency. It’s a slap in the face to a lot of attorneys who have been doing this for a lot longer than me.”
Letters criticize plan
The proposed rule states that contract attorneys “shall be given first priority for appointment to any case where a district public defender is not available or eligible.” Critics say it’s a mistake to take this decision out of local judges’ hands.
“I certainly think it’s judges’ discretion to appoint the attorney that they feel has the best qualifications to provide competent and zealous representation,” said David Howard, a Gallatin attorney and magistrate in the Sumner County Juvenile Court. “I prefer to appoint attorneys who I know will do a good job.”
In a letter to the Supreme Court, the National Legal Aid & Defender Association said fixed-fee contracts actually encourage lawyers to do a bad job.
“Because the lawyer will be paid the same amount, no matter how much or little he works on each case, it is in the lawyer’s personal interest to devote as little time as possible to each appointed case, pocketing the fixed fee and using his time to do other more lucrative private work,” wrote David J. Carroll of the association.
In another letter, Clarksville attorney Elizabeth Pugh said there are more obvious savings to be found within the indigent defense fund.
“The solution is to stop appointing everyone a free lawyer,” Pugh said. “Recently, my firm was doing court-appointed work for a couple whose teenage son had gotten into trouble and their yearly income was $100,000.”
Tennessee already spends less per capita on indigent defense services than the national average, according to a 2006 American Bar Association study and population estimates. The hourly rates attorneys are allowed to bill the state for indigent representation, and caps on their total bills, have not been increased since 1994.
Tennessee Bar Association Executive Director Allan Ramsaur said that while the Administrative Office of the Courts knows how to process claims, it lacks the expertise to evaluate the bids lawyers would submit in an attempt to win contracts. He said the association will urge the court to reject the proposal and instead establish a commission of experts to administer indigent defense in Tennessee.
The Supreme Court is accepting comments on the proposal through Thursday. Click said the court could adopt the proposal, amend it or reject it.
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Anniston federal courthouse project delayed again
The Associated Press
Aug. 28, 2011|
ANNISTON -- Anniston residents will have to wait longer to find out if the town is getting a new federal courthouse.
The Anniston Star reported that Mayor Gene Robinson said the U.S. General
Services Administration will do a third feasibility study on whether to renovate the current 100-year-old courthouse or build a new one. Feasibility studies were conducted in
2001 and 2008.
A proposed site for a new courthouse was announced a year ago, but no work has
been done since then. Robinson said he thinks the new study was prompted by the
recession. GSA officials could not be reached for comment.
The courthouse was built in the early 1900s. An addition was built in 1935 and
remodeled in 1964. It was listed on the National Register of Historic Places in 1976.
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Millions of US court records bound for shredder
By MICHAEL TARM, Associated Press
CHICAGO—Wrestling with the challenges of documents in the digital age, U.S. officials are destroying millions of paper federal court records to save storage costs—and raising the ire of some historians, private detectives and others who heavily rely on the files.
The U.S. National Archives and Records Administration says at least 10 million bankruptcy case files and several million district court files from 1970 through 1995 will be shredded, pounded to pulp and recycled. Files designated as historically valuable, however, will be kept in storage.
Federal archivists spent years consulting legal scholars, historians and others about which files to purge after realizing that sorting and digitizing just the bankruptcy cases would cost tens of millions of dollars. None of the civil or criminal cases up for destruction went to trial, and docket sheets that list basic information such as names of defendants and plaintiffs will be saved from each case.
Such reassurances haven't allayed concerns of some of those whose work relies on the paper documents.
Cornell Law School professor Theodore Eisenberg said it's precisely the mundane, every day records with no clear historical significance that, when looked at as a whole, are critical to establishing legal trends upon which court policy is often based.
"Something really important will be lost here," said Eisenberg, a former clerk at the U.S. Supreme Court for the late Justice Earl Warren.
"We would lose any ability to assess trends over time. This is not just a matter of history, it is a matter of influencing basic policy today."
Christina Boyd, who teaches public law at the University at Buffalo, said only about 2 percent of federal court cases ever make it to trial and little research has been done to explain why that percentage dropped from about 12 percent in the 1960s. One question, she said, is whether federal judges began pushing settlements in the 1970s and 1980s as public aide to indigents dramatically increased, possibly to the advantage of corporations or other institutions being sued by the individuals.
"This was a crucial period in legal history," she said. "We need to understand the trends—and that means looking at files that could be going away."
Marvin Kabakoff, a senior analyst with the NARA who himself holds a Ph.D. in history, told The Associated Press on Thursday that he sympathizes and ideally would want all the records digitized, "but keeping everything is just not realistic." He said it would be "outrageously expensive" and since some documents are mashed or stapled together, merely sorting through the millions of papers would be a gargantuan, labor-intensive task.
By the end of the year, 140,000 boxes of civil case files—out of a total of around 270,000 from the 25-year period—are expected to be destroyed, Kabakoff said. Starting next year, about 390,000 of the 400,000 total boxes of bankruptcy case files from the same period will be destroyed and a far smaller number of criminal case files—about 40,000 boxes—would be destroyed later.
Preparing for this first-of-its-kind destruction, federal archivists decided to keep thousands of records deemed historically relevant or that fell into other categories. With the civil files, for instance, authorities decided to save about 110,000 boxes, including all civil rights or government corruption files regardless of whether those cases went to trial.
Federal documents meticulously detail which files should be saved, including those related to the shooting down of Korean Air Lines Flight 007 by a Soviet jet fighters in 1983 and files on young men accused of trying to evade the Vietnam War draft.
"We tried to be very careful about what we are destroying," Kabakoff said
The issue came to the fore as the federal court system, like other government entities, struggled to cut costs. The pre-1995 files posed a particular challenge because they were created before nearly all court documents were kept electronically. Comparatively, few paper-only documents were created after 1995.
Also, 1970 to 1995 was a period of explosive growth in litigation, creating mountains of paperwork that could only be stored in boxes at courthouses or federal archive centers with dwindling space.
Historians argue that it is impossible to say what records will be historically significant in 10, 50 or 100 years, since a file deemed inconsequential today might one day shed light on someone who emerges to prominence, from a presidential candidate to a murder suspect.
Beyond scholars, among those concerned is Don Haworth, a 35-year veteran private investigator in Chicago who said he frequently uses those same 1970-95 federal records. In his work, the slightest clue in the seemingly most mundane records could make or break a case.
He said that applies to run-of-the-mill bankruptcy records that could show a pattern of a businessman over a 30- or 40-year period of opening a business, then declaring bankruptcy and jilting creditors. He recently found that a target of his investigation lied when she said she'd never been involved in a federal case: She showed up as a witness in a federal case decades ago.
"While a record may not be pertinent to one individual, they may be a gold mine to others," Haworth said.
He also runs into other private investigators, scholars, historians and even writers doing research at Chicago's Federal Records Center, which houses records from Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
But certainly not everyone in the law business is alarmed.
Most trial attorneys deal with civil and criminal cases that arose in recent months or years, and they aren't likely to need decades-old archives. Chicago-based bankruptcy attorney Brad Foreman said he usually only needs to do research dating back seven or eight years, which is readily available online.
"As a lawyer, I am not concerned," he said. "In bankruptcy cases, I can't think of ever once having to go back as far as 1995."
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Beck takes helm as top federal prosecutor
Written by Sebastian Kitchen, The Montgomery Advertiser
August 19, 2011
The man who will preside over federal prosecutions in central Alabama was officially sworn in Thursday, telling a packed courtroom he would go after gangs, drugs and human sex trafficking.
U.S. District Judge Myron Thompson officially swore in U.S. Attorney George Beck, who was nominated by President Barack Obama and confirmed by the U.S. Senate.
Beck, speaking in the federal courthouse where he and his team of attorneys will argue cases, talked to a capacity room of current and former federal and state judges, classmates from Geneva High School's class of 1959, family and fellow attorneys. State and local officials, including Montgomery Mayor Todd Strange, Rep. Alvin Holmes,
D-Montgomery, and Public Service Commission President Lucy Baxley, were also present.
Beck, a lawyer for 45 years, has defended prominent clients including former Gov. Guy Hunt, and won multimillion-dollar lawsuits as an attorney, but as a state prosecutor he also earned a conviction in a key civil rights case.
As deputy state attorney general during the 1970s, Beck prosecuted Bob Chambliss for the 1963 bombing of a Birmingham church that killed four girls. Chambliss was sentenced to life in prison.
"As a lawyer and a man, George was on the right side of that struggle," Kenneth Randall, dean of the University of Alabama School of Law, said about Beck's stance on civil rights. Randall said the conviction was a seminal one in the civil rights struggle.
As a defense attorney, along with representing Hunt, he also represented Nick Bailey, a top aide to former Gov. Don Siegelman who was a key witness against the governor.
Beck said his two goals are to "make the streets safer" and to protect taxpayers and consumers, some of whom he said are vulnerable to scams.
"We've got problems in our backyard and it needs to be cleaned up," he said.
Beck and his office are not handling the largest pending case in the district, the corruption trial of VictoryLand owner Milton McGregor and six others, including a sitting state senator. While his predecessor was in office, Beck said the entire office was recused from the case. At least two veteran prosecutors in the office are working with lawyers from the U.S. Department of Justice's Public Integrity Section.
Beck said he cannot comment on the case. Beck, who lives in the Santuck community north of Wetumpka, said he did become dismayed at times at the duration of time it took for him to be nominated and confirmed, even saying the White House staff was inefficient and unprofessional. Beck began serving more than halfway through Obama's term.
"I was kind of waiting for 23 months," he said. Beck replaced Leura Canary, who was appointed by former President George W. Bush and who served more than half of Obama's term because Obama had not nominated a candidate.
Some Democrats were critical of Obama not appointing a replacement sooner. "I wanna go forward and get to work," Beck said. Beck said he wants to streamline the office and to make it more efficient with all of the attorneys and staff handling a full case load.
Chief Judge Keith Watkins said Beck was a forceful yet respectful adversary in the courtroom. "We are getting an outstanding courtroom lawyer," said Alabama State Bar Association President James Pratt.
Pratt said Beck had a passion for his clients, respect for the law and respect for his fellow lawyers. Thompson, who said Beck was his first boss, said Beck is unique because he has been a prosecutor and a defense attorney.
Thompson said the legal system works well when good lawyers represent those on all sides of an issue. While his official investiture was Thursday, Beck was informally sworn in July 6.
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New Alabama Chief Justice Chuck Malone sees changes coming for courts
By Marian Accardi, The Huntsville Times
August 20, 2011
HUNTSVILLE, Alabama -- Charles "Chuck" Malone takes over as chief justice of the Alabama Supreme Court facing the challenges of a financially-strapped court system.
Still, "I look at it as an opportunity of a lifetime," Malone said Saturday after speaking to the Madison County Republican Men's Club. "I have a vision for the Administrative Office of Courts and courts throughout the state."
But, 19 days into his new job, he doesn't want to reveal details of his plans yet.
He's in the process of getting input on that vision from state legal and budget personnel, the presidents of Alabama's Circuit Judges Association, District Judges Association, Bar Association and Clerk Association as well as presiding judges, probate judges and clerks.
"There will be some changes in the court system that I believe will help the court system," said Malone, 57, who was appointed chief justice on Aug. 1 by Gov. Robert Bentley. "We've got some serious things we've got to address."
Malone said he'll be doing his best "to educate people on the importance of adequately funding our (court system) because it's where we go to resolve our problems."
Malone, whose investiture will be Aug. 30, had been Bentley's chief of staff since January. He was appointed to serve the remainder of Sue Bell Cobb's six-year term, which expires in January 2013. Cobb announced her resignation as chief justice in June.
"I believe I came into this position with all the tools" to uphold the Alabama and U.S. Constitutions and laws, Malone said. He had his own law practice for 20 years in Tuscaloosa, and represented a mix of individuals and businesses. He was elected a Tuscaloosa County circuit judge in 2000 and then re-elected in 2006. In 2003 and again in 2010, he was elected to serve as the presiding judge. He heard all types of criminal and civil cases in 10 years on the bench, he said.
Though Malone might find himself attending the same church as a defendant in a case, "my job was to do what was right and what was just," he said.
"What separates our country from others is our Constitution," Malone said. "We must continue" to uphold it.
Malone hasn't announced whether he will seek election to a full term as chief justice.
Mobile County Circuit Judge Charlie Graddick, a former attorney general, said last month that he plans to seek the Republican nomination for chief justice.
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Time to Deregulate the Practice of Law – [Op-Ed]
By CLIFFORD WINSTON and ROBERT W. CRANDALL, The Wall Street Journal
August 21, 2011
The job market is not looking bright for Americans of all walks of life, even Ivy League college graduates and those with advanced degrees. For example, a new wave of law school graduates has just taken state bar examinations, which they must pass to obtain a license to practice law. But after accumulating as much as $150,000 in law school debt (likely on top of undergraduate debt), many of those test-takers are concerned that jobs in their field are vanishing.
Is there really an excess supply of lawyers? The Senate Judiciary Committee is investigating the subject while the New York Law School and the Thomas Cooley Law School in Michigan are being hit with class action suits claiming that they fraudulently inflated employment statistics to lure prospective students. But the solution proffered by many in the legal community—to put new limits on entry into the legal profession—is not the answer and will make the problem worse over the long term.
The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.
Occupational licensing limits competition and raises the cost of legal services. But those higher costs are not justified when the services provided by lawyers do not require three years of law school and passing a particular test. One example is LegalZoom.com, an online company which sells simple legal documents—documents that should not require pricey lawyers to prepare—like do-it-yourself wills, uncontested divorce documents, patent applications and the like.
The competition supplied by new legal-service providers, who may or may not have some type of law degree and may even work for a non-lawyer-owned firm, will not only lead to aggressive price competition but also a search for more efficient methods to serve clients.
Every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality. For example, most regulated large airlines used to operate with large numbers of empty seats, particularly on longer routes. Once deregulation allowed Southwest Airlines, a smaller regional carrier, and other new carriers to offer service on any route, airline fares declined dramatically and the industry operated with far fewer empty seats and more employees. Deregulation of wireless, cellular telephone services and the entry of new carriers has led to the lowest wireless rates in the developed world and stimulated huge expenditures and associated employment in constructing new networks.
Entry by new firms—sometimes from other industries—spurs innovation. The legal industry will be no different. Ford, Honda and Toyota moved into motor vehicle production from bicycle, motorcycle and farm-equipment production, respectively. More recently, Apple moved from computers into mobile telephones (the iPhone), putting enormous competitive pressure on industry giants such as Nokia, Motorola and Research in Motion (Blackberry). The resulting innovations improved quality and lowered prices while also expanding employment.
Allowing accounting firms, management consulting firms, insurance agencies, investment banks and other entities to offer legal services would undoubtedly generate innovations in such services and would force existing law firms to change their way of doing business and to lower prices.
Entry deregulation would also expand individuals' options for preparing for a career in legal services, including attending vocational and online schools and taking apprenticeships without acquiring formal legal education. Established law schools would face pressure to reduce tuition and shorten the time to obtain a degree, which would substantially reduce the debt incurred by those who choose to go to those schools.
Supporters of occupational licensing to restrict the number of lawyers in the U.S. are wrong to assert that deregulation would unleash a wave of unscrupulous or incompetent new entrants into the profession. Large companies seeking advice in complex financial deals would still look to established lawyers, most of whom would probably be trained at traditional law schools but may work for a corporation instead of a law firm.
Others, seeking simpler legal services such as a simple divorce or will, would have an expanded choice of legal-service providers, which they would choose only after consulting the Internet or some other modern channel of information about a provider's track record. Just as the medical field has created physician assistants to deal with less serious cases, the legal profession can delegate simple tasks.
The track record of deregulation naysayers is hardly impressive—after all, some predicted in 1977 that airline deregulation would lead to a United Airlines monopoly. And while we cannot predict all the effects of legal services deregulation, we are confident that those services would be more responsive to consumers and that there would be more jobs in the legal profession.
Mr. Winston is a senior fellow at the Brookings Institution, where Mr. Crandall is a nonresident senior fellow in the Economic Studies Program. They are co-authors, along with Vikram Maheshri, of "First Thing We Do, Let's Deregulate All the Lawyers" (2011, Brookings Press).
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Addressing the Justice Gap – [Op-Ed]
The New York Times
August 23, 2011
Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.
In civil proceedings like divorces, child support cases, home foreclosures, bankruptcies and landlord-tenant disputes, the number of people representing themselves in court has soared since the economy soured. Experts estimate that four-fifths of low-income people have no access to a lawyer when they need one. Research shows that litigants representing themselves often fare less well than those with lawyers. This “justice gap” falls heavily on the poor, particularly in overburdened state courts.
There is plenty the government, the legal profession and others can do to improve this shameful state of affairs. With the economic downturn, only around two-thirds of law school graduates in 2010 got jobs for which a law degree is required, the lowest rate since 1996. That leaves the other third — close to 15,000 lawyers — who, with financial support from government and the legal profession, could be using their legal expertise to help some of those who need representation.
While the Constitution requires that defendants in criminal cases be provided a lawyer, there is no such guarantee in civil cases. The Legal Services Corporation, created by Congress, gives out federal grants that provide the bulk of support for legal aid to the poor. Over the decades, that budget has shrunk — it was $404 million in 2011, about one-third less than it was 15 years ago, adjusted for inflation. The House Appropriations Committee has proposed reducing that to $300 million for 2012. The cut would be devastating; the budget should, instead, be increased.
Half of the people who seek help from legal aid offices are already turned away. Some offices are so understaffed that they must engage in triage, so that in, say, domestic abuse cases, they will only assist someone seeking a restraining order against a violent partner if that person is in immediate danger of being hurt again.
State bar associations could help address these needs by requiring lawyers to report their pro bono service — such disclosure would likely increase many lawyers’ service to the recommended 3 percent to 5 percent of their paid work. Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.
Legal education must also change. The Carnegie foundation recommends that all law students be given experience in public advocacy, of which providing legal services is one kind. At the same time, law schools should expand loan forgiveness programs for legal services lawyers. A few have such programs, but most schools do not — and not enough schools view tuition as a source to help support future legal-services lawyers.
The justice gap is widening. Government, law schools and the profession need to work together to redesign and fortify the grossly deficient legal services system.
70 years in practice: Mobile's Denniston honored for lengthy career
By Maurice Gandy, Press-Register
August 15, 2011
MOBILE, Alabama — Robert P. Denniston of Mobile was honored in Point Clear on July 16 at the State Bar Association of Alabama annual meeting with an award for which only he is qualified: longest-practicing attorney in Alabama, with a 70-year career (interrupted by 6½ years of military duty), beginning in 1941.
And he is still in practice.
“For the more than 30 years I have known him, Robert Denniston has been the epitome of professionalism in the dedicated service he has rendered to his clients, community and the legal profession. He is as skilled as any lawyer in Alabama, but also one of the most humble men I have ever met,” said Keith B. Norman of Montgomery, executive director of the State Bar Association.
Denniston is one of two people (the other being former Alabama Gov. Albert Brewer) who has twice received the Award of Merit, Alabama Bar Association’s highest recognition, Norman said.
As an 82-year resident of Mobile, Denniston jokes that he was born even farther south: in La Paz, Bolivia, where his father, Harold Siebert “H.S.” Denniston, a native of Brooklyn, N.Y., was a successful businessman and banker.
After his wife’s untimely death in that country, the father and five children moved to Long Island, where the widower met and married Florence Foster of New York.
The Mobile connection was made when the father met Frank Boykin, “a rising business tycoon” (and later congressman from Alabama). Following a visit to Mobile the father decided to move to the Port City for new business opportunities, according to “Lasting Legacies: H.S. Denniston and The American National Bank & Trust Company of Mobile, Alabama.” The book, published in 2000, was commissioned by his lawyer son and authored by USA adjunct history professor Martha Jones Mercer.
In 1929, the elder Denniston headed a group of investors to start a new bank, the American Trust Co., which became the American National Bank and Trust Co. until 1983, when it was merged into AmSouth Bank, according to the book on his life.
In 1928, the family came to Mobile and moved into a newly-purchased antebellum mansion (circa 1833) known as Oakleigh, which they renovated and occupied until 1945. The home is now open to the public as the Oakleigh Historic Museum, operated by the Historic Mobile Preservation Society.
The first child who 8-year-old Robert met in Mobile was Herndon Inge Jr. They became close friends on through Leinkauf Elementary School, Murphy High School and then as attorneys in separate practices in Mobile.
“Bob Denniston is a genuinely fine man, absolutely superior in all respects, and a very outstanding lawyer,” praised Inge, now a retired Mobile County circuit court judge.
His path to becoming a lawyer was not easy, Denniston said. His father, a self-made man and wealthy by the standards of the day, attended only two years of high school in Brooklyn before dropping out to work to support his family. Therefore, he saw no need for a college education. Both of Denniston’s brothers went to work in the bank immediately after high school.
Denniston was impressed by the lawyers hired by his father to do the bank’s legal work, especially Thomas A. Hamilton, a young lawyer whom he later joined in a law practice.
His father agreed to the lawyer idea, but only if his son paid his own way, remembered Denniston, who worked during holidays and summers to gather money to attend the University of Alabama.
Denniston paid his way through college and law school (which could be entered after just two years of pre-law courses at the university) as house manager of his fraternity, Delta Kappa Epsilon.
He started practice in Mobile in June 1941, immediately after graduation and a week before his 21st birthday, doing title clearing work.
Six months later he was called into the Navy for active duty after the attack on Pearl Harbor. He became an ensign, served briefly ashore as a coding officer, then spent the rest of World War II at sea. He served on a submarine chaser and became a commanding officer of a subchaser at 22.
Later, he served as the anti-submarine office aboard a destroyer escort, the USS Weber, which made 20 convoy crossings of the Atlantic protecting merchant ships, according to a Press-Register article, “Veteran spent six years at sea in two wars,” dated Nov. 9, 2000. After the war in Europe began to wind down, the Weber was sent to the Pacific and ultimately to Okinawa to serve picket duty, intercepting Kamikaze suicide aircraft. “My ship was never hit, but they hit other ships in our immediate area,” Denniston said.
Right after the war, his ship was part of a fleet sent to Nagasaki through mine-filled waters to receive American POWs from a Japanese prison camp. Unaware of the radiation danger, the sailors (who came out unharmed) toured where the atomic bomb hit and witnessed “an immensity of destruction beyond comprehension,” he recalled.
The young veteran returned in the spring of 1946 and joined his mentor, Thomas Hamilton, in a law firm which became Hamilton and Denniston.
He continued in the Navy Reserve, eventually becoming the commanding office of a Naval Reserve Battalion in Mobile, according to a 2000 Press-Register story. He also found time for fun and recognition as King of Mobile Mardi Gras in 1948.
Denniston practiced law in Mobile until 1951, when duty called once again for the Korean conflict. He served two years of destroyer duty as executive officer of the USS Barton, first in the Atlantic Ocean and then off Won San Harbor in North Korea, controlling the harbor and denying the North Koreans use of the anchorage.
The destroyer bombarded railroads and highways close to the shore in North Korea and was on one occasion bombarded by shore gun positions in a 90-minute duel. A shell hit the number one stack on the Barton, destroying a 40-millimeter gun emplacement and killing a sailor.
Later, the destroyer joined a carrier task force in the Sea of Japan, assisting soldiers and sailors fighting ashore, before taking a hit from a floating mine which claimed five lives and put the ship out of action. It was repaired and returned to the U.S., according to the 2000 Press-Register story.
Through all of his school and military experiences, Denniston said that he never smoked and very seldom took a drink.
Back in Mobile for good, Denniston took on a variety of cases in a number of venues. He handled cases in real property, estates and guardianships (his professional specialties), criminal cases, and divorce cases in different local courts, around Alabama (about half a dozen before the Alabama Supreme Court) and in Mississippi, he said.
He traveled out west to handle cases in Arizona, New Mexico and a $450,000 judgment in his client’s favor in California. A highlight of his career, he said, was presenting (as part of a legal team) an oral argument before the U.S. Supreme Court in a usury dispute.
While giving blood at the local Red Cross in 1958, he met the head nurse, Juanita Sandlin of Mobile, whom he married in 1961. Their son, Michael Sandlin Denniston, is now a lawyer in Birmingham.
In his spare time, Denniston enjoys doing yard work on about eight acres surrounding his home near the Dog River. He was also an avid long distance runner, participating in the Azalea Trail Run for many years. He still walks a good bit and reads books extensively, having twice read through the entire Encyclopedia Brittanica for enjoyment, he said.
Denniston praises Mobile’s 300-year history and magnificent trees, calling it “a lovely city to drive in, to walk in, and to visit.”
In his award speech on July 16, Denniston encouraged other lawyers, especially those new in the profession, to “give back” and “pay back” with participation in the local and state Bars. Also, he promoted two projects to which he has been devoted: merit selection (rather than election) of appellate judges in Alabama and the Volunteer Lawyers Program, whose members donate legal work for deserving individuals and nonprofit organizations.
Among the many plaques and certificates in his office, he is most proud of the Alabama State Bar award for his service with prepaid legal services, 1977; the Award of Merit for his sponsorship of the merit selection of judges, 1994; and at least three awards from the American Red Cross for serving as president of the local chapter during 65 years of volunteer involvement.
Always ready for a fresh challenge, Denniston is in the process of completing an autobiography called “Lawyer and Sailor,” that should be finished with the next month or two, after five years in the making, said the author. He hopes to combine this book with “Lasting Legacies,” the story of his father’s life and career, to be published as a single volume, entitled "Father and Son (1886-2011--)."
The busy attorney is playing his retirement cards close to the vest. “I am still a practicing attorney,” he said. “Within the next two, three or four months I will finish the cases I am working on and will not take any new cases beyond that. I want to retire when the time comes as quietly as humanly possible.”
Denniston said he plans to maintain his office at Wright, Green, P.C. on University Boulevard where he is presently located, even after retirement.
At that time he will look after his own business affairs, volunteer work, and service on various boards of directors. And keep in touch with the Alabama State Bar which has been so important throughout his career, concluded Denniston.
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Nigerian who allegedly scammed 80 law firms, lawyers out of $31M extradited to US
The Associated Press
August 12, 2011
LAGOS, Nigeria — A Nigerian man who fled to his homeland after being accused of defrauding dozens of lawyers and law firms of more than $31 million dollars has been extradited to the U.S., Nigeria’s anti-graft agency said Friday.
Emmanuel Ekhator was arrested in Nigeria’s Benin City by the country’s Economic and Financial Crimes Commission in August. He was handed over to U.S. marshals in New York on Thursday, said Femi Babafemi, the anti-graft body’s spokesman.
With the latest extradition, ... the message should be clear to anyone who travels abroad to commit crime and run back home to hide that Nigeria is no longer safe for them,” Farida Waziri, the anti-graft body’s chief, said in a statement. “We will get them and hand them over to face the law.”
Court records show Ekhator has yet to be assigned a lawyer. He remained in custody on Friday.
Charging documents from the U.S. District Court in the Middle District of Pennsylvania show that Ekhator and others are accused of mail and wire fraud after using bank accounts in South Korea, Singapore, China and Japan to collect the stolen money.
Federal prosecutors say the complicated scam involved multiple players, with a fraudster calling a U.S. or Canadian law firm posing as someone usually in Asia who needed to collect a debt from a person or organization based in North America. Another scammer poses as the debtor and agrees to pay off the debt — using a fake check, authorities say.
The law firms or lawyers collect the fake check, which gets validated by a third scammer posing as a bank employee over the telephone. Before the victims realize the check is fake, they’ve already used their own money to pay the fake settlement amount to their supposedly Asia-based client.
Prosecutors say the scam ring extorted more than $31 million dollars from more than 80 lawyers and law firms. The group attempted to extort another $100 million from 300 additional victims, the charging documents allege.
Ekhator is one of several people accused of belonging to the ring.
Nigeria, Africa’s most populous nation, is an international pariah when it comes to Internet and banking fraud. The country has tried to police the fraud rackets, but corruption and weak law enforcement allow fraudsters to thrive.
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Threadbare American Justice
The New York Times
August 18, 2011
It is an American article of faith that the path to justice runs through the courts. State courts, which handle a vast majority of civil and criminal cases, are in a state of crisis. Across the country, deep budget cuts and increased caseloads have created long delays and a denial of basic access to justice.
More than 48 million cases, excluding traffic cases, were filed in state courts in 2008. Since then, courts have been flooded with thousands of new foreclosures, credit card cases and other lawsuits driven by economic hardship. At the same time, the recession and the deepening budget crunch have led states to lay off judges, law clerks and other courthouse personnel, which means longer waits for trials and delays even for recording judgments so that cases can be resolved.
Swamped by this huge docket, no state court system now delivers justice as it needs to. In Massachusetts, budget cuts have drastically reduced the number of court-appointed guardians for children who need to have their legal interests represented. In Oregon, cuts have reduced critical support staff, slowing the processing of cases. And these are two of the best-run systems in the country.
An American Bar Association task force led by David Boies and Theodore Olson, the former solicitor general, took on this issue in a valuable report issued last week, called “Crisis in the Courts: Defining the Problem.”
The report rightly says that “even the most eloquent constitution is worthless with no one to enforce it.” As they cut spending on the courts, state legislatures are degrading public safety by delaying the resolution of criminal cases; hurting vulnerable populations like children and the elderly, who need the courts’ protection; and damaging our system of government by weakening the judiciary, a separate and co-equal branch.
The courts in Georgia, the report says, have seen their financing shrink by 25 percent the last two years, so their budget (which also pays for prosecutors) now constitutes less than 1 percent of the state’s overall budget. Most state systems have had significant cuts in the past three years.
The report offers some worthy recommendations that could help provide adequate budgets and increase alternative ways to resolve conflicts. For instance, it calls on states to adopt judicial financing formulas that recognize changes in caseloads. Without these and other reforms, access to justice will continue to contract.
Even this sober report barely begins to convey to national and state policy makers how much cuts to the judiciary have harmed individuals and democracy. As budget-starved courts become more dysfunctional, they lose the confidence of the public, which counts on them for relief, adding to the institutional crisis.
These courts may continue to process cases, but they will be less and less able to deliver justice.
Jefferson County’s debt-laden road has seen other travelers
By Kent Faulk, The Birmingham News
August 1, 2011
BIRMINGHAM, Alabama -- If the Jefferson County Commission votes to file for bankruptcy, it would be the largest municipal bankruptcy in U.S. history. But it wouldn't be the first county or city -- even in Alabama -- to go down that path.
Since 1981 there have been 35 cities, towns, villages, and counties nationwide that have filed for protection under Chapter 9 of the federal bankruptcy code, according to online U.S. Bankruptcy Court records. That includes one county and four cities in Alabama -- and one of the cities filed twice.
Chapter 9 is the section of the U.S. Bankruptcy law under which only cities, counties and other public authorities can file to protect themselves from creditors while they develop a plan on how they will repay the debt. So it's rarely used.
"It is an extraordinary step for a county or municipality," said Buddy Oldshue, a Tuscaloosa attorney who is immediate past chairman of the Alabama State Bar's bankruptcy and commercial law section. "For any county or municipality it would be a choice of last resort,"
Only three counties have taken the step to file for bankruptcy in the nation -- Orange County in California in 1994, Greene County, Alabama in 1996, and Boise County, Idaho, earlier this year -- in the past three decades.
Congress in the 1930s enacted the first municipal bankruptcy laws as just over 2,000 cities began defaulting on debt during the Great Depression, according to a National Bankruptcy Review Commission that met in the late 1990s. The law has undergone changes since then, including some major changes in the late 1970s, according to the review commission's report.
In all, just over 200 bankruptcy Chapter 9 cases have been filed in the United States in the past three decades, according to bankruptcy records. Other than the 32 cities and three counties, most of the others that have filed for Chapter 9 bankruptcy are public authorities, including water and sewer districts and health care and transit authorities.
A number of the Chapter 9 bankruptcies were dismissed for various reasons before the bankruptcy process was completed.
Alabama has had nine public entities to file for Chapter 9 bankruptcy since 1981. That's four cities, one county, and four public authorities, including the one that operated the amusement park once known as Visionland near Bessemer. Among the four cities are Lipscomb and Prichard, which filed twice -- once in 1999 and then again in 2009.
Only three states have had more Chapter 9 filings than Alabama -- that's California, Nebraska and Texas. Among the states surrounding Alabama there have been six in Tennessee, five in Florida, three in Mississippi, and none in Georgia.
Reasons cities or public authorities filed for bankruptcy protection differ in the cases nationwide. Among the reasons are large judgments in lawsuits, mismanagement of money, and large debt owed to a major creditor, according to news reports.
Before Greene County filed for bankruptcy protection, the county was $3 million in debt and county finances were under review after two state audits found rampant mismanagement, according to an Associated Press story from 1997.
Bankruptcy isn't foreign to many Alabamians.
Alabama had the sixth highest per capita bankruptcy filing rate, of total personal and business filings, for the 12-month period ending March 31, according to the American Bankruptcy Institute.
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Vanzetta McPherson: Merit selection best for judges – [Columnist]
The Montgomery Advertiser
Aug. 4, 2011
The resignation of Alabama's chief justice because of the cost of judicial elections, among other reasons, is yet another clarion call for consequential reconsideration of this state's process for selecting judges.
In announcing her resignation, Chief Justice Sue Bell Cobb expressed her preference that judges be appointed or elected in retention races. Many prominent Alabama lawyers share her belief that partisan judicial elections "perpetuate the public perception that judges are selected more on campaign contributions than on ability." Her concerns are valid.
But the cost of elections, while shameful, is not the primary reason for rejecting the popularity contest that every judicial candidate must win before donning a black robe. A merit selection process is preferable for any public servant who qualifies to hold office via academic status and is expected to approach her responsibilities with empiricism and fulfill her responsibility based on objective law.
Governors and legislators represent constituencies, political parties, ideologies, and supporters. No one is surprised when a governor appoints a former law partner to a position or a prominent party official to a cabinet post. Legislators are expected to speak from their constituents' points of view and to propose bills that reflect their interests. The executive and legislative branches are deliberately partisan, and service in those branches is infused with political ideology.
Not so judges. Judges may not favor interest groups, and their party affiliation, personal beliefs and ideologies should not determine their rulings. Litigants should have no defensible expectation of prevailing before a judge based on the aforementioned considerations. However, in Alabama, judges are elected -- and many serve - based on political party affiliation, campaign budgets, the candidate's wealth or race, and church membership. It is beyond ironic that public servants summoned to administer justice blindly are expected to see clearly the differences between rich and poor, liberal and conservative, Christian and non-Christian, donkey and elephant.
Why is a judge's calling so antithetical to popular election? Because, as the chief executive officers of the courts, judges are required to possess college degrees, juris doctorate degrees and law licenses. Presumptively, they are academic achievers with sufficient experience at the bar to understand and analyze intricate legal issues; appreciate the legal precedents that determine adjudications and the public policies that inform them; understand relationships among lawyers and clients sufficiently to manage those relationships reasonably and productively; manage legal proceedings, including discovery, trial, and alternative dispute resolution; supervise chambers and court personnel who perform tasks requiring expertise; write opinions that are clear, fluent, binding and reasonable; and conduct judicial proceedings ethically, temperately, and with due regard for the integrity of litigants, jurors, and the public.
The codified qualifications for judges in Alabama contravene these legitimate concerns. A lawyer between 18 and 70 and licensed to practice in Utah for five years could move to Montgomery one year before an election and qualify for a circuit judgeship. If licensed to practice for 10 years, that same lawyer could qualify for a Supreme Court judgeship.
Until January 2009, there were no experience or minimum age requirements for judges. As a result, during the partisan campaigns that precede judicial elections in Alabama, typical television ads are more likely to highlight a candidate's religious faith, church attendance and political ideology than the candidate's abilities to fulfill the weighty tasks of analyzing legal issues and resolving disputes under the law.
It is a difficult truth: Recommendation from an informed judicial selection commission is a more responsible and credible way to select judges than the subjective, often unknowing, and random preference expressed by voters at the polls. It is also in the public's best interest, since ultimate appointment by the governor preserves the chief executive's authority while assuring that the public is served by highly qualified candidates with the expertise and experience to render important court decisions.
In a 1971 opinion, the Alabama Supreme Court said that the purpose of the state's Competitive Bid Law, which applies to maintenance workers and contractors, among others, was "to get the best quality equipment at the lowest possible price." What a shame that we don't hold our judges similarly accountable.
Vanzetta Penn McPherson is a retired U.S. magistrate judge for the Middle District of Alabama.
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ABA urges clear rules on judicial recusal
By Karen Sloan, The National Law Journal
August 08, 2011
The American Bar Association's House of Delegates on Aug. 8 urged states to establish clear procedures for the disqualification of judges for conflicts of interest and to require the disclosure of lawyers and litigants who have contributed to the campaigns of judges before whom they appear.
No one spoke against a resolution to that effect, and the measure enjoyed the endorsement of the Conference of Chief Justices. William Weisenberg, chair of the ABA's Standing Committee on Judicial Independence, said that the resolution would provide important guidance for state judges. It also would help remedy the perception among the public that judicial campaign contributions influence what happens in the courtroom, he said.
"No one should be a judge in his or her own case," Weisenberg said.
The resolution did not prescribe what measures states should take, but a committee report concluded that the need for clearer procedures and transparency was great.
"In recent years, judicial disqualification has emerged as an important policy issue in several states and an important focus of discussion and debate on ways to improve both the reality--and the public perception--of the fairness and impartiality of our court system," the committee wrote. "That focus has been sharpened because of intense public scrutiny and criticism in several highly publicized cases of refusals by judges to recuse themselves in circumstances where ‘the judge's impartiality might reasonably be questioned.' "
The committee cited the U.S. Supreme Court rulings in Caperton v. A.T. Massey Coal Co. and Citizens United v. Federal Election Commission.
The Brennan Center for Justice at New York University School of Law hailed the resolution for drawing attention to the issue. Before the vote, Senior Counsel Adam Skaggs said: "The Brennan Center has long advocated for reforming recusal practice in the states, and we are pleased the pending resolution calls for rules consistent with our two primary recommendations: providing for prompt, meaningful review when a challenged judge denies a recusal request, and requiring recusal when campaign spending raises reasonable questions about a judge's impartiality."
Since 2007, the committee has been surveying judicial disqualification rules in different states and working to identify problems and propose reforms. The panel urged that states ensure that motions to disqualify a judge are handled promptly. States should have a prompt and clear avenue for review of a denied motion for disqualify, it said.
Under the resolution's provision on campaign financing, the ABA urged states to adopt "disclosure requirements for litigants and lawyers who have provided, directly or indirectly, campaign support in an election involving a judge before whom they are appearing.