Looking Anew at Campaign Cash and Elected Judges
By Adam Liptak, The New York Times
January 29, 2008
Vernon Valentine Palmer, a law professor at Tulane University in New Orleans, could not understand how justices of the Louisiana Supreme Court could routinely hear cases involving people who had given them campaign contributions. It seemed to him a raw and simple conflict of interest.
So he wrote polite letters to each of the seven justices, urging them to adopt a rule that would make disqualification mandatory in those cases. Six months passed without a single response, and he wrote again. “I used seven more stamps,” he said, “and I still got no reply.”
Professor Palmer is a senior member of the Tulane law faculty and the director of its European legal studies program. He is not an expert on judicial ethics, but he knows a thing or two about the rule of law.
Peeved, he decided to take a closer look at the Louisiana Supreme Court. He recruited John Levendis, an economics professor at Loyola University in New Orleans, to help with the statistics, along with a half-dozen law students to crunch numbers and code cases. Their conclusions, to be published next month in The Tulane Law Review, are not pretty.
In nearly half of the cases they reviewed, over a 14-year period ended in 2006, a litigant or lawyer had contributed to at least one justice, sometimes recently and sometimes long before. On average, justices voted in favor of their contributors 65 percent of the time, and two of the justices did so 80 percent of the time.
The conventional response to such findings is that they do not prove much.
Judges do not change their votes in response to contributions, the argument goes. Rather, contributors support judges whose legal philosophies they find congenial and, incidentally, sometimes benefit when their judges apply those philosophies in a principled and consistent way that just happens to benefit them.
You may think that is a distinction without a difference, which is why you do not teach judicial ethics.
Professor Palmer was, in any event, able to address that objection by asking several additional questions.
He looked first at cases in which no one involved in the lawsuit had ever made a contribution, before or after the suit was filed, to establish a baseline. Some judges tended to vote for plaintiffs, others for defendants.
Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing.
“It is the donation, not the underlying philosophical orientation, that appears to account for the voting outcome,” Professor Palmer said.
Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.
“The greater the size of the contribution,” Professor Palmer said, “the greater the odds of favorable outcomes.”
A similar study of the Ohio Supreme Court conducted by The New York Times in 2006 continues to echo in that state. It appeared about a year after an appeals court there threw out a $212 million jury verdict in a case involving a business dispute between two companies, and it caused the lawyers on the losing side to take a look at who had contributed to the campaign of the judge who wrote the decision. It turned out that the judge, William G. Batchelder, had received a lot of money from Robert Meyerson, the chief executive of the company on the winning side, the Telxon Corporation.
The lawyers for the company on the losing side, Smart Media, asked for a rehearing and got one, sort of. In November, a substitute panel of appeals court judges refused to undo the earlier decision, saying there was no procedure to allow that. Judge Robert Nader, dissenting, could barely contain his disbelief, saying the initial decision was infected by “approximately $1 million in contributions from a very financially interested individual” to Judge Batchelder, a Republican, and to the local Republican Party.
This was, Judge Nader wrote, “a classic scenario giving rise to every nuance of political influence in our courts which calls for self-disqualification.”
The case is now before the Ohio Supreme Court. Mr. Meyerson, the executive, has given money to two of its justices as well.
A couple of weeks ago, the United States Supreme Court said the Constitution had nothing to say about the way New York elects its judges. But several justices went out of their way to question the practice of electing judges. Justices Anthony M. Kennedy and Stephen G. Breyer said, for instance, that campaign fund-raising in judicial elections might be at odds “with the perception and the reality of judicial independence and judicial excellence.”
But you do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts around the nation. All you need to do is listen to Professor Palmer. If a judge has taken money from a litigant or a lawyer, Professor Palmer says, the judge has no business ruling on that person’s case.
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Former Alabama judicial ethics director Margaret Childers dies
The Associated Press
January 28, 2008
MONTGOMERY, Ala. (AP) — Margaret Childers, who was widely known as an expert in judicial ethics and directed the Alabama Judicial Inquiry Commission during its probe of former Chief Justice Roy Moore, has died. She was 54.
Childers died Saturday at a Montgomery hospital after undergoing treatment for cancer.
Alabama Chief Justice Sue Bell Cobb said Monday that Childers will be missed by Alabama's judges because the people's respect for them depends on their ethical conduct.
"Quite simply, judges should be held to a higher standard, and Margaret Childers dedicated her life toward that end," Cobb said.
Mark White, president-elect of the Alabama State Bar, called Childers "one of the smartest people I ever met."
White said Childers wasn't a high-profile state official because the Judicial Inquiry Commission is cloaked with confidentiality when it reviews complaints against judges. But he said that after she became executive director in 1998, she quickly developed a national reputation as an expert in judicial ethics.
"She was recognized throughout the whole country," he said.
White, who served on the commission for eight years during Childers' tenure, said it considered several tough cases, but none was as high profile as Moore's.
In August 2003, the commission charged Moore with violating six canons of ethics for disobeying a federal judge's order to remove a Ten Commandments monument that Moore had installed in the lobby of the state judicial building.
In November 2003, the Alabama Court of the Judiciary agreed with the commission and removed Moore from office for having "placed himself above the law."
A funeral mass for Childers is scheduled at 11 a.m. Tuesday at Holy Spirit Catholic Church in Montgomery, with burial following in St. Margaret's Cemetery.
Childers, a native of Midland, Mich., received her bachelor's degree from Loyola University and her law degree from Harvard University. She moved to Montgomery in 1978 as one of the first attorneys hired to help poor people through the Legal Services Corp.
In 1988, she joined the state attorney general's staff, where she argued cases before the Alabama Supreme Court and the 11th U.S. Circuit Court of Appeals. She also served as counsel for the Judicial Inquiry Commission and became its executive director in 1998.
She stepped down in April 2007 as executive director, but continued to serve as a consultant.
Childers had served on the faculty of the American Judicature Society and as the chair of the administrative law section of the Alabama State Bar.
Survivors include her husband, Larry Childers; her mother, Elizabeth Hahn Scholten Neumann, and five brothers and their families.
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Overseeing lawyers
Supreme Court should maintain its regulation of legal profession – [Editorial]
Spartanburg Herald-Journal (South Carolina)
January 28, 2008
The legislative branch of South Carolina government already controls its own branch, most of the executive branch and elects judges. Lawmakers shouldn't consolidate their control of the judicial branch by taking over the regulation of the legal profession.
The state constitution gives the Supreme Court the authority to license and discipline the state's lawyers. A pair of bills introduced in the House would change that. They would allow the General Assembly to establish a 13-member commission under the control of the Department of Labor, Licensing and Regulation to take that job from the Supreme Court.
S.C. Chief Justice Jean Toal doesn't believe that's a wise idea. She pointed out that no other state in the union has such a system.
That sounds familiar, doesn't it? No other state in the union has a Budget and Control Board either. That board allows the General Assembly to control most of the executive branch of government. A new commission to regulate lawyers would give lawmakers more control over the judicial branch.
Such a commission would technically be part of the executive branch of government, but it's unlikely lawmakers would give the governor control over the commission. It's much more likely lawmakers would give themselves the power to appoint the members of the commission.
It's precisely the wrong direction.
South Carolina has too many agencies reporting to boards appointed by lawmakers. It fragments responsibility and makes accountability to taxpayers impossible. Lawmakers saw this when they learned the Department of Transportation, which was governed this way, wasted millions in state money. Still, they were unwilling to give up control of the agency to the governor.
Now they are considering making the problem worse rather than better.
They should refuse to pass the bills regarding the legal profession. They should leave that responsibility with the court.
Then they should disassemble the other boards and commissions governing state agencies and departments. These bodies should be placed in the governor's Cabinet as part of the executive branch of government. That way the governor can be responsible for running the executive branch, and voters will have an elected official to hold accountable for any problems in that branch.
Lawmakers should not only refuse to establish another backward institution unique to South Carolina, they should also get rid of the Budget and Control Board.
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Freedom and fairness depends on lawyers – [Letter to the Editor]
Birmingham Business Journal
January 28, 2008
Editor:
I am a lawyer. I am proud to be a lawyer, and grateful that I practice law in the United States of America.
Lawyers are the subject of many jokes and criticisms in our culture. Some are even funny and perhaps true. But recent headlines have caused me to have a greater appreciation for my profession, our country's justice system and the contribution we make to our society.
In Pakistan, Aitzaz Ahsan, a Cambridge-educated lawyer who is the president of the country's Supreme Court Bar Association and a member of former Prime Minister Bhutto's political party was freed from house arrest recently only to be thrown into the back of a police truck, arrested again and threatened with the death of his son. His crime? Mr. Ahsan is a member of a political movement calling for an independent judiciary in Pakistan and calling for the country's Supreme Court to be restored.
-R. Scott Colson, Chair, Alabama State Bar Committee on Lawyer Public Relations & Information
[NOTE: This is an excerpt from the entire letter]
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Missouri group wants to change judge-selection
Kansas City Business Journal (Missouri)
January 30, 2008
Add another group to the list of organizations that hope to make changes to Missouri's process for selecting appellate, state supreme court and some circuit court judges.
Better Courts for Missouri has launched a Web site and begun circulating word about purported flaws in what is widely known as the Missouri Plan. The Missouri Plan creates a nominating committee to vet judicial applicants and then forwards three nominees to the governor, who then selects one to fill vacancies on some court benches.
Many lawyers and the Missouri Bar describe the Missouri Plan as a fair and nonpartisan process for selecting judges.
Better Courts for Missouri, much like the Adam Smith Foundation did before, describes the process as secretive and one that gains undue influence from lawyer associations. The organization's Web site does not clearly spell out an alternative to the Missouri Plan but says it isn't seeking elections as a solution.
No phone number is listed for the organization, and an e-mail to the group wasn't immediately returned Wednesday.
The organization's formation comes in a year when several legislative proposals are being discussed for making alterations to the plan. In 2007, the appointment of Patricia Breckenridge became a contentious issue as Gov. Matt Blunt publicly stated that he thought the way the appellate nominating commission decides whom to forward to the governor had too much secrecy.
Missourians for Fair and Impartial Courts, an organization that supports keeping the Missouri Plan unfettered, issued a statement denouncing Better Courts for Missouri.
"The only thing that's transparent about this so-called coalition, and others like it, is their plan to destroy Missouri's courts," lawyer Chip Robertson, a partner with Bartimus Frickelton Robertson & Gorny PC, said in a written statement. "Missourians deserve fair and impartial courts, not shell groups playing shell games with our justice system."
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Who’s Cuddly Now? Law Firms
By LISA BELKIN, The New York Times
January 24, 2008
IN the last two decades, as working schedules became flexible, and even accounting firms, of all places, embraced the mantra of work-life balance (at least on paper), there was one unbending, tradition-bound profession: the law.
That is why it is so remarkable to watch the legal world racing — metaphorical black robes flapping — to catch up. Over the last few years and, most strikingly, the last few months, law firms have been forced to rethink longstanding ways of doing business, if they are to remain fully competitive.
As chronicled by my colleague Alex Williams in the Sunday Styles section earlier this month, lawyers are overworked, depressed and leaving.
Less obvious, but potentially more dramatic, are the signs that their firms are finally becoming serious about slowing the stampede for the door. So far the change — which includes taking fresh looks at the billable hour, schedules and partnership tracks — is mostly at the smaller firms. But even some of the larger, more hidebound employers are taking notice.
“There are things happening everywhere, enough to call it a movement,” said Deborah Epstein Henry, who founded Flex-Time Lawyers, a consulting firm that creates initiatives encouraging work-life balance for law firms, with an emphasis on the retention and promotion of women. “The firms don’t think of it as a movement, because it is happening in isolation, one firm at a time. But if you step back and see the whole puzzle, there is definitely real change.”
Last month, Ms. Henry’s ambitious proposal was published in the magazine Diversity and the Bar. Her plan, called FACTS, takes on law-firm bedrock — billable hours, which are how lawyers have calculated their fees for more than 50 years.
At nearly every large American firm, lawyers must meet a quota of hours. During the ’60s and ’70s, the requirement was between 1,600 and 1,800 hours a year or about 34 hours a week, not counting time for the restroom or lunch or water cooler breaks. Today that has risen to 2,000 to 2,200 hours, or roughly 42 hours a week. (Billing 40 hours a week means putting in upward of 60 at the office.)
FACTS is an acronym. Under Ms. Henry’s proposal, work time can be: Fixed (allowing lawyers to choose less high-profile work for more predictable schedules), or Annualized (intense bursts of high-adrenaline work followed by relative lulls); Core (with blocks mapped out for work and for commitments like meeting children at the bus); Targeted (an agreed-upon goal of hours, set annually, customized for each worker, with compensation adjusted accordingly); and Shared (exactly as it sounds).
Ms. Henry’s proposal came at the end of last year, when firms had already started backing away from the billable hour. Some have gone so far as to eliminate it. The Rosen law firm in Raleigh, N.C., one of the largest divorce firms on the East Coast, did so this year, instead charging clients a flat fee.
Similarly, Dreier, a firm with offices in New York and Los Angeles, now pays its lawyers salaries and bonuses based on revenue generation, not hours billed.
At Quarles & Brady, a firm with headquarters in Chicago, not only have billable hour requirements been eliminated, but parental leave has been expanded. Women can now take 12 weeks with pay, men 6 weeks. And that time can be divided, meaning a father can take a few weeks off when his baby is born and a few more after his wife returns to work.
Other firms are making smaller changes. Strasburger & Price, a national firm based in Dallas, announced last October that it was decreasing the hours new associates were expected to log, to 1,600 from 1,920 annually. (Lest you think those lawyers will be able to go home early, however, note that newcomers will now be asked to spend 550 hours a year in training sessions and shadowing senior lawyers.)
Howrey, a global firm in Washington, is tinkering not only with how much associates bill, but also with their pay. Traditionally starting salaries for new lawyers at large firms are all about the same, as are associates’ raises each year.
Beginning this year, Howrey’s starting pay, $160,000, will match the industry average, but further increases will depend on merit, not seniority. This will allow some to reach partnership sooner and others later. It will also allow associates to work at their own pace, with the understanding that a less insane life can be had for a somewhat lower salary.
That is also the message behind changes at Chapman & Cutler, a midsize firm in Chicago, which rolled out a two-tier pay scale in September.
Associates can choose to bill 2,000 hours a year and be paid accordingly. Those who would like to see their families a little more can opt for 1,850 billable hours. Both groups will have a chance to become partner, albeit at different paces. Given the choice, more than half took the reduced schedule.
It should be noted that this is not the first moment when the profession has seemed poised for change. It has been six years since the American Bar Association issued a report calling for the end of the billable hour.
But the law moves slowly, at least when it comes to itself. While change in other fields was driven by pressure from working mothers, it took additional motivating forces for law firms to entertain the idea of reform.
“What is happening now is not just about the needs and demands of women,” said Lauren Stiller Rikleen, who directs the Bowditch Institute for Women’s Success.
Law is responding to a confluence of factors, said Ms. Rikleen, the author of “Ending the Gauntlet: Removing Barriers to Women’s Success in the Law” (Thomson Legalworks, 2006).
First, clients, reacting to spiraling legal costs, have begun insisting on flat-fee deals.
In addition, “you can’t ignore the generational piece,” Ms. Rikleen said. On one end of the spectrum are baby boomers, nearing retirement and mindful of the flexible schedules that did not exist at the start of their careers. At the other end are Gen Y workers, some nearing 30 and in want of a life.
A group of students at Stanford Law School, for instance, shook up the legal world in 2006 when they formed Law Students Building a Better Legal Profession. The Stanford group has more than 130 members, and other elite schools like Yale and New York University have formed chapters. The Stanford organization has published a ranking of firms based on how they treat employees; members vow not to work for those who don’t rate well.
Andrew Bruck, a president of the Stanford group, told the Legal Times: “Just because something always has been doesn’t mean that it always must be.”
A harbinger of changing times might well be the brief filed by the hard-driving white-shoe firm of Weil Gotshal & Manges of New York, asking a judge to reschedule hearings set for Dec. 18, 19, 20 and 27 of last year.
“Those dates are smack in the middle of our children’s winter breaks, which are sometimes the only times to be with our children,” the lawyers wrote.
The judge moved the hearings.
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Panel to study conduct rules on judges' public comments
Sheri Qualters, National Law Journal
January 31, 2008
BOSTON — In the wake of national criticism of a Massachusetts state court judge's release of a convicted murderer on personal recognizance, the Massachusetts Supreme Judicial Court tapped an ad hoc advisory committee to study rules about public comment by judges in the state's Code of Judicial Conduct.
Massachusetts Superior Court Judge Kathe Tuttman released Daniel Tavares Jr. last July after he served 16 years for killing his mother and while he was awaiting trial on charges of assaulting prison guards. When Tavares was charged with shooting a newlywed couple in Graham, Wash., last November, former Massachusetts Governor Mitt Romney was criticized on the presidential campaign trail for appointing Tuttman.
The public debate about the Tuttman ruling sparked discussion about whether the state's rules on judicial comments are clear enough or should be changed, said Massachusetts Superior Court Judge E. Susan Garsh, who chairs the committee.
The state's code was last revised in 2003, and American Bar Association has since issued a model canon about public comments by judges, Garsh said.
"People have expressed different views about what a judge is or isn't permitted to do, Garsh said.
The Massachusetts code says a judge "shall abstain from public comment about a pending or impending Massachusetts proceeding in any court," but is allowed to explain the court's procedures, general legal principals "or what may be learned from the public record in a case." The 11-member committee, which includes eight judges, two lawyers in private practice and a Harvard Law School professor, will recommend that the Supreme Judicial Court clarify or change the rule.
The court has asked for a committee recommendation in three months.
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Ala. chief justice says don't raise court costs on tickets
The Associated Press
January 22, 2008
MONTGOMERY, Ala. (AP) — Alabama's chief justice urged legislators Tuesday not to raise the court costs on traffic tickets to help ease the state's upcoming budget shortfall.
"I believe court costs in Alabama are too high," Chief Justice Sue Bell Cobb told the Legislature's joint budget committee Tuesday.
Cobb, who oversees Alabama's court system, said legislators have raised court costs too often in the past to address state budget problems, and Alabama's court costs are higher than most other Southern states.
Court costs are levied on top of the fines for traffic infractions. The money helps finance the state General Fund budget. "A speeding ticket will cost $200. For a lot of people that's what they make in a week," she told the committee.
Due to the economic slowdown and other causes, the budget committee is expecting less revenue for next year's state budgets than is being spent this year.
On the other hand, department heads are seeking more money to cover increased costs for employee benefits and a 3.5 percent raise for state employees that the Legislature has already mandated for fiscal 2009.
Cobb said the state court system needs its budget raised from $155.8 million this year to $174.6 million next year. About half of the $18.8 million increase is to cover fixed costs, including benefits and the pay raise, she said.
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A Conversation with Fred Gray
By Lynn McMillon, The Christian Chronicle
January 21, 2008
CIVIL RIGHTS ATTORNEY discusses racial progress, in America and the church, as he reflects on a lifetime spent fighting social injustice.
One of the nation’s leading civil rights attorneys, Fred Gray served as Martin Luther King Jr’s. first civil rights lawyer. He also represented Rosa Parks in the historic case that led to the Montgomery, Ala., bus boycott in 1955.
Born in 1930, Gray has spent a lifetime fighting social injustice. His cases have not only championed justice but also frequently set precedent as in Browder vs. Gayle, which integrated buses in Montgomery in 1956. Gray took NAACP vs. State of Alabama to the Supreme Court, winning the right of the NAACP to do business in the state.
A past president of the National Bar Association, Gray was the first African-American elected president of the Alabama State Bar Association.
Bus Ride to Justice: Changing the System by the System provides an autobiographical account of his life, from the ghetto of Montgomery to his work as an eminent civil rights attorney. Gray is also a man of God. He preaches whenever possible and has served an an elder of the Tuskegee, Ala., church for more than 25 years.
Gray is married to the former Carol Porter. He has four children and six grandchildren.
Who were the persons of greatest influence in your early life?
My mother, Nancy Gray, was the greatest influence in my life until I was grown. My father died when I was 2, and she raised me. Several ministers in my home congregation of Holt Street in Montgomery, Ala., influenced me to want to be a preacher. One of those, brother Sutton Johnson, took me to Nashville Christian Institute in Tennessee (a school for African-American Christians). While at NCI for my high school education from 1943 to 1947, Bonnie Matthews, dean of boys, was the closest thing to a father to me.
He recommended me to brother Marshall Keeble, who took me and others on several of his preaching trips to the West, Florida and Mississippi, where we established the church in Natchez.
How did you become interested in a law career?
After going to Nashville. I came back to Montgomery with the idea of becoming a teacher and a preacher. From my return in December 1947 until May 1951, I saw many people mistreated on the Montgomery buses. I soon realized that we not only needed preachers, but we also needed proper legal representation.
While a student at Alabama State College, I made a secret commitment that I would finish college, finish law school, return to Alabama, pass the bar exam, became a lawyer and “destroy everything segregated I could find.” In September 1951, I enrolled in law school, and I graduated in June 1954. My first civil rights case was that of a 15-year-old girl, Claudett Colvin, who was arrested nine months before Mrs. Rosa Parks.
Were there major differences in how black and white congregations viewed your role in the Montgomery bus boycott?
That is a question someone else is in a better position to evaluate. From December 1955 to December 1956, the Holt Street congregation in Montgomery, along with other congregations, participated in the Montgomery bus boycott. My brother, Thomas Gray, was a member of the Montgomery Improvement Association. We had no contact with white congregations at that time.
What are the special moments when you were elated or saddened by the response of your Christian brothers and sisters concerning your role in the civil rights movement?
I was especially appreciative of what they did at the National Lectureship, which met in Cincinnati last year, in recognizing my work. I didn’t get involved in any of this for recognition.
The greatest disappointment is that if we had just followed the example of Jesus, none of this would have happened in the first place. Generally, I thought that once people in authority saw what African-Americans could do and how they could perform well on all levels, they would accept us as equals; not because a court ordered it, but because it is right. In my state, it has not happened.
What progress has been made in resolving racial problems in your home state, the city of Tuskegee and in the church where you serve as an elder?
I would like to believe that every Church of Christ would have its doors open so that if any person of any race wanted to come in, they would be able to do that and not be referred to another congregation. I think that no church would do that now and would welcome everyone into their service.
With respect to our church in Tuskegee, we once had a black church and a white church. There were only a handful meeting in the black church, and we quietly merged the two congregations with no problems. Unfortunately, over the years the older members have passed on, and so there are no white members now.
Alabama now has a few churches where blacks are in leadership roles.
How did you and others feel at the closing of Nashville Christian Institute, and how did you and other disappointed supporters resolve that issue?
The closing of Nashville Christian Institute was made without giving the black brotherhood an opportunity to support the school that had been supported by whites. We felt it was wrong — with only one black person on the board — and we filed a lawsuit, trying to prevent the closing and stop the endowment funds from going to Lipscomb University. We felt funds should have gone to Southwestern Christian College rather than Lipscomb. We lost that case.
Describe some of the unrecognized efforts of Christians like yourself to help ease racial tensions? Who are your heroes of racial unity and social justice in our fellowship?
I am sure there are some, but I just don’t know who they are. My knowledge is so limited. A lot of people do quite a bit of work in their area, but we don’t know about them or their work. They are not doing it for the purpose of being known but because it is the right thing and it is their Christian duty. When I hear people talk about the church not being completely involved in the Civil Rights Movement, I know that isn’t the truth. I was involved. Most of the members in our church were involved. I think the Lord played a major role in bringing about civil rights.
There seems to be an unspoken distance between black and white churches in many places. What insights do you have as to why and what can be done to improve?
I think they maintained segregation in the congregations just as the law required segregation. However, when the law changed, the churches did not change. When people become accustomed to doing something over a period of time, it becomes a habit and it doesn’t change. In that case, overt action must be taken in order to bring change. Then you have those who occupy positions of leadership and don’t want to share their roles. They are comfortable and don’t want others involved who might upset the apple cart.
Racism is still alive in this country to a great degree, and it is also alive in the church whether we realize it or not. It has not gone away by itself over all these years. If we do what we have been doing in the past, we will get the same results. To bring about true racial harmony in the Lord’s church, we must have a plan, but a plan is no good if it is not executed. We must execute the plan. Once we do that, we can stop the problem.
What is your dream for the future?
That people truly get to know each other. It’s not just a color question. Too many people visit our congregation and then go out and the members never learn who they are or make them a part of the church. We should learn to love others and “do unto others as you would have them do to you.”
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Lawyers champion judicial reforms - Investigative panel proposed as Scruggs-related bribery allegations continue to unfold
Jerry Mitchell, Jackson Clarion Ledger (Miss.)
January 20, 2008
Some Mississippi lawyers are calling for the creation of a commission to study and suggest reforms in the state's judicial system amid the FBI's expanding investigation into corruption.
"The time to do it is now," said Jackson lawyer Wayne Drinkwater. "There may not be another time."
Lawyers Timothy Balducci and Joey Langston, along with former State Auditor Steve Patterson, have pleaded guilty in U.S. District Court in Oxford to schemes to bribe judges.
Lawyers Dickie Scruggs, son Zach Scruggs and law partner Sidney Backstrom, all of Oxford, face a March 31 trial on federal bribery charges involving a lawsuit in Lafayette County Circuit Court over $26 million in legal fees connected to litigation on behalf of Hurricane Katrina victims.
They all have pleaded not guilty. If convicted on all counts, each faces up to 75 years in prison and $1.5 million in fines.
Scruggs' attorney, John Keker of San Francisco, insists his client knew nothing about bribes aimed at getting rulings in Scruggs' favor.
A dozen years ago, Scruggs appeared at the first meeting of the Federalist Society of Mississippi, publicly discussing the contingency fees he'd received from representing the state of Mississippi in litigation against asbestos manufacturers.
Last week, the group sponsored another panel, this one to talk about the charges against him and the fallout so far from the probe. "The Mississippi Bar has an unfolding bribery scandal, and no one knows where it's going to go," said Brad Prewitt, co-president of the society.
No judges have been charged in the scandal. The judge in the Lafayette County case, Henry Lackey, notified authorities when he was approached about a bribe.
Some questioned whether the state bar has done enough to combat corruption.
Adam Kilgore, general counsel for the bar, responded that the bar's function is to investigate complaints when they're filed and to take disciplinary action when needed.
Lawyer Scott Newton, a former FBI agent and federal prosecutor, said he's not sure the bar could have done anything because the alleged bribery took place secretly.
"We hope and pray what's going on now out of Oxford are isolated incidents," said Bobby Bailess of Vicksburg, president of the Mississippi Bar.
He had no clue anything like this was happening, he said. "I'm shocked. I'm disappointed. I'm angry. The practice of law is a privilege."
Drinkwater suggested a commission be created and funded by lawmakers that would review the entire judicial structure for possible reform. "Sometimes I think it's easier for legislators to react to the report of a commission rather than independently look at it," he said.
But others say such a commission would be influenced by the person making the appointments. "It would be controlled by politics," said Joey Diaz, president of the Mississippi Association for Justice, formerly known as the Mississippi Trial Lawyers Association.
Jackson family lawyer Mark Chinn said the time for change is now.
A century ago, Mississippi towns spent much of their budgets to construct courthouses in the middle of town, signifying that justice should be at the center of life, he said.
The assumption with the current structure is that through the adversarial system, "somehow truth will come out," he said.
As an attorney, he's been asked his win-loss record, he said. "Court is not a game. It's not a place to win a divorce case. Court is a place to resolve a case civilly."
As for judges, the state Constitution, mandates they be elected by popular vote every four years in contrast to federal judges who are appointed by the president to life terms.
Drinkwater said he believes a hybrid would be the best solution by having a judicial nominating committee recommend three candidates to the governor, who would pick from one of those three. If he rejected them, the committee would return with another three choices.
Rather than appoint the judges for life as in the federal system, votes could be held on whether to retain judges, he said.
Such a system "would prevent the governor from picking political hacks," Drinkwater said.
The change also would help ensure judges who have to make tough choices won't have to fear public backlash, he said. "If federal Judges William Keady and Frank Johnson had to go the polls, the South would still be segregated."
Carlton Reeves, president of the Magnolia Bar, said he supports popular elections for judges, pointing out that few African Americans have been appointed as federal judges in Mississippi.
Although a judicial advisory study committee exists at this time, Drinkwater said he believes a separate commission should be created with regard to this issue.
Overall reforms in the judicial system need to be tackled now instead of later, however, Drinkwater said.
"You'll never eliminate corruption, but you can make changes that make it less likely to occur again in the future."
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Legal system needs a close look – [Editorial]
Jackson Clarion Ledger (Mississippi)
January 20, 2008
What's the difference between a good lawyer and a great lawyer? A good lawyer knows the law. A great lawyer knows the judge.
Ha. Ha. Another lawyer joke. There are thousands of them. Lots of laughs.
But lawyers being cozy with judges is not a laughing matter in Mississippi in recent days. The unfolding judicial bribery scandal in federal court in Oxford has the intense interest of lawyers and judges throughout the state. Most are shocked, but most will privately express concern about just how far it will go. All worry about its impact on the public's opinion of the judiciary and legal profession.
Series of hits
In Mississippi, the legal profession has been hit with a series of high-profile controversies that are now culminating in this nasty affair coming out of Oxford.
The highest-profile trial lawyer in the state, Dickie Scruggs, has been indicted for bribery along with his son, Zach, and law partner Sidney Backstrom. The charges involve allegations of a bribery attempt of Lafayette County Circuit Judge Henry Lackey for a favorable ruling in a lawsuit involving $26 million in legal fees. Lackey reportedly told the FBI of the attempt and a sting has resulted in several guilty pleas.
Former state auditor Steve Patterson and lawyers Joey Langston and Timothy Balducci have pleaded guilty to conspiracy to bribe. The probe has involved a Hinds County fee case handled by Circuit Judge Bobby Delaughter, with alleged involvement by former Hinds County District Attorney Ed Peters. DeLaughter has denied any wrongdoing.
All are politically connected, setting off a flurry of rumors.
This comes on the heels of the conviction of high-profile lawyer Paul Minor for bribery involving two Gulf Coast judges.
Politics and judges
It's not just the criminal matters, but the politicization of the judiciary as well. Judicial races in recent years have been high-money, special interest-driven affairs.
The ongoing brutal political battles between the trial lawyers and defense lawyers and medical and business community are not unnoticed by the public.
The tort reform battles created a perception that justice was not possible with some juries with some judges in some counties.
The bribery scandals are just the topping.
Lawyers gathered last week in Jackson for a meeting of the Federalist Society were concerned.
Adam Kilgore, general counsel for the Mississippi Bar, hears complaints about lawyers and is always concerned about public perceptions of the profession.
"It is certainly going to have an impact," he said. "It is going to feed the concerns that people have. We have to restore the public trust, not only through work of the Bar Association but through individual attorneys."
Jackson lawyer Wayne Drinkwater called for a commission to look at the judicial system, criminal and civil, from top to bottom, including the controversial issue of elective judges.
"If we don't do it now, it never will be done," he said.
Drinkwater is right.
The legal system cannot function without public confidence. People must have faith in the law and courts to fairly administer it. It's time to reexamine that system with reform in mind. No joke.
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Legal Aid Programs Spend Money on Perks
By LARRY MARGASAK, The Associated Press
January 17, 2008
WASHINGTON (AP) — Legal aid programs serving poor people spent federal money on booze, interest-free loans for staff, late charges on overdue bills and even lobby registration fees.
The parent organization that distributes grants to programs in all 50 states, Legal Services Corp., failed to monitor how the money was spent by state and local legal aid officials, according to congressional investigators in a new report. It did not specify how much money was misspent but questioned use of more than $1 million in payments.
The new report, obtained by The Associated Press, was based on examination of spending at 14 of 138 legal aid programs financed by the Washington-based Legal Services Corp.
The top officials of the Legal Services Corp. responded, "We have no tolerance for any spending of grantee funds outside the law or the regulations of the LSC, and have formally referred all potential violations noted in the report to our Office of Inspector General."
"We will take whatever actions are warranted when all of the facts are known," said corporation President Helaine Barnett and Board Chairman Frank Strickland.
Among the organizations whose activities were questioned in the report: Nevada Legal Services Inc.; California Indian Legal Services Inc.; Legal Aid and Defender Association of Detroit; Legal Services for New York City; Philadelphia Legal Assistance Center; Wyoming Legal Services; and Laurel Legal Services Inc. of Greensburg, Pa.
Some of those groups were not identified in the GAO report, but congressional offices disclosed they were among the ones targeted by GAO investigators.
After an April 2006 visit to the Las Vegas office of Nevada Legal Services, the GAO cited the conclusion of inspectors' checking the program's performance: "Overall, this program is in very good shape. Its delivery structure is sound, its management is excellent, and its case handling staff are performing at a high level."
But less than one year later, during a February 2007 visit by compliance inspectors and congressional investigators, federal officials decided to investigate questionable transactions, including a complex $3.6 million real-estate deal.
The Legal Services Corp., a nonprofit corporation that is funded by Congress, distributes grants to legal aid groups in all 50 states. The state and local groups help poor people involved in civil cases, including domestic violence, child custody, housing foreclosures, veterans and Social Security benefits, consumer problems and health issues. Three of four clients are women, mostly mothers.
Congress gave the group $348.6 million for the last fiscal year.
The Associated Press previously reported on extravagant spending on hotels, meals, limousines and other perks by the corporation's presidentially appointed board of directors and top staff in the Washington headquarters.
The latest report angered two lawmakers who have been monitoring the program's problems.
"It is not acceptable to Congress or the taxpayers for scarce funds to be spent on the enrichment of others instead of on legal services," said Sen. Mike Enzi, R-Wyo., senior Republican of the Committee on Health, Education, Labor and Pensions.
Sen. Charles Grassley, R-Iowa, senior Republican on the Senate Finance Committee, said the findings were "more documentation of abusive and wasteful spending that is jeopardizing the ability of the Legal Services Corporation to provide legal assistance to people in need."
Among the findings:
The New York City, Detroit and California Indian Legal Services programs used federal money to buy liquor. Federal guidance for nonprofit corporations states that costs of alcohol are unallowable with no exceptions.
The New York officials did not return telephone messages by the AP requesting interviews. An official in Detroit declined to comment.
The California program didn't violate any rules, its executive director, Devon Lomayesva, told the AP. She said her group was willing to discuss the matter with the parent corporation's inspector general.
The GAO said the Detroit executive director acknowledged her program paid another organization for beer and wine costs for a reception.
The New York City executive director told GAO investigators, "LSC funds are no longer used to purchase alcohol."
In Detroit, a contractor was paid far more than staff members, about $750,000 between 2004 and 2006, to operate computer servers and maintain the computer network. When asked by investigators why he was not an employee, with a commensurately lower salary, "he stated that there were benefits to being an independent contractor," the GAO said. The GAO said there appeared to be little distinction between the contractor and other legal aid employees in the same office.
The Philadelphia office gave employees the perk of interest-free loans, which were used for college tuition, downpayments on homes and purchases of personal computers. The GAO said there are no rules that would permit such loans.
The Philadelphia office did not return telephone messages left by the AP.
In New York, the group used grant money to pay for lobbyist registration fees. With only limited exceptions, recipients cannot use grant money for lobbying. Each payment was only $50, but the executive director there agreed the payments violated its rules and promised it will not happen again, the report said.
California Indian Legal Services, the New York City program and Wyoming Legal Services used funds to pay late fees on overdue accounts. In Wyoming, a vendor who was angry over unpaid office rent "threatened to place a lien against the goods in the unit and sell them at a public auction," the GAO said.
Wendy Owens, executive director of the Wyoming organization, told the AP, "Those late payments occurred under the tenure of a previous executive director and we have long since corrected those issues."
The GAO said all three executive directors agreed there was no excuse for failure to make payments on time.
In Greensburg, Pa., the executive director as questioned by GAO about a $30,000 payment to another organization. The director "stated that the previous executive director entered into the agreement and that she did not know anything about the agreement, other than the fact that she continued to pay the bill every year," the GAO said.
The executive director, Cynthia Sheehan of Laurel Legal Services Inc., disputed the investigators' conclusion, saying the money went to a bar association's free legal help program.
"I can assure you I did know what it was and that the Legal Services Corporation approved the contract every year," she told the AP.
The Las Vegas office purchased its building with federal and non-federal funds and then agreed to sell it to a developer for $3.6 million, the GAO found.
When the sale fell through, the organization was able to keep $280,000 that the developer placed in an escrow account as "earnest money."
However, the $280,000 was placed in an account that was immune from any controls by the Legal Services Corp.
Investigators described the deal as an "unusual transaction." Legal Services officials eventually concluded the funds should have gone to a restricted account and kept under their scrutiny.
Nevada Legal Services officials declined to comment.
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Allow nonlawyers to keep providing mundane legal services – [Editorial]
Honolulu Star-Bulletin
January 22, 2008
THE ISSUE: The Hawaii State Bar Association is proposing that nonlawyers not be allowed to select, draft or complete legal documents for clients.
Hawaii's lawyers are asking the state Supreme Court to approve a protectionist rule aimed at eliminating competition from nonlawyers performing the simplest legal chores. The American Bar Association rejected such a "model" rule after a protest from the Justice Department and the Federal Trade Commission. Hawaii's high court should do the same.
Like other states, Hawaii prohibits lay persons from practicing law, punishing offenders by up to a year in jail and a $2,000 fine. The Hawaii State Bar Association is proposing that the unauthorized practice of law include "selecting, drafting or completing documents that affect the legal rights of another person."
Such a rule was adopted by the Washington Supreme Court in 2002, as an ABA task force proposed a similar model for other states to follow. In a letter to the national association, Justice's antitrust division and the FTC objected. They defended consumers considering "all relevant factors in selecting a service provider, such as cost, convenience and the degree of assurance that the necessary documents and commitments are sufficient" in areas where "formal legal training" is unnecessary for the provider.
The letter said it "is impossible to develop an exhaustive list of all the instances of lawyer-nonlawyer competition that might be eliminated" as a result of such a prohibition. For example, it said, Realtors "routinely fill out and explain purchase and sale agreements," and consumers use inexpensive electronic software to complete wills, trusts and other legal documents provided by nonlawyers.
Others that could be affected by such a prohibition are tenants' associations informing members of renters' rights, human resources employees advising their bosses of state labor laws or safety regulations, and income tax preparers, accountants and investment bankers advising clients about various laws, according to the letter. Doctors could be forbidden from providing living will forms to patients without going through a lawyer.
Betty Marais, a former paralegal and legal secretary whose Honolulu company, Legal-Ez, prepares documents for divorces, living trusts, wills and incorporation of businesses for clients, told the Star-Bulletin's Ken Kobayashi that such a prohibition would shut her business down.
Processing of application and issuing of car insurance policies now handled by nonlawyers would have to be turned over to attorneys, and the extra cost "would be passed on to the policy holders," said John Schapperle, president of the Hawaii Insurers Council.
The ABA backed away from the task force's initial proposal, finally agreeing five years ago to urge states to craft their own definitions of unauthorized practice of law. Instead of allowing nonlawyers to help clients fill out mundane documents, Hawaii's bar association is proposing that the state Supreme Court adopt the Washington state rule -- the same as that rejected as a model by the ABA -- at what would be the soaring expense for consumers.
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Alabama's juror pay is far too low – [Editorial]
The Montgomery Advertiser
January 4, 2008
When the compensation for jurors was last updated in 1977, it was a pittance -- $10 per day and 5 cents per mile in travel reimbursement. But in the past 30 years, inflation has made those modest sums even more paltry.
Just to have kept up with inflation since 1977, juror compensation in Alabama today should be about $35 per day and 18 cents per mile for travel reimbursement.
At least one district attorney in Alabama thinks the current compensation is too low, and would like to see the Legislature increase it.
"That's not much pay for the very important job they do," Lauderdale County District Attorney Chris Connolly told the The TimesDaily recently.
Connolly is right, of course. The role of jurors in the nation's court system is crucial, and the modest compensation they receive does not come close to reflecting the importance of a juror's contribution to society.
But it wasn't designed to do so. Historically, jury duty has been seen in the same context as voting -- a basic duty of a citizen, something good citizens should do regardless of compensation. However, that comparison can go only so far. Citizens aren't required to vote, but unless they have good reasons, they are required to serve on juries.
And while full-time workers in Alabama do not usually suffer financially as a result of jury duty -- state law requires employers to pay them their regular pay -- jury service can be a major financial hardship for the self-employed and some others.
The federal government pays $40 per day plus travel expenses for federal jury service. But it is difficult to compare jury compensation from state to state, because states approach it in so many different ways. Some states pay nothing at all for short jury service -- one to three days, for instance -- but have graduated pay scales for long trials. So pay actually ranges from nothing at all up to $50 per day for basic pay.
Arizona even has a controversial new law that pays jurors up to $300 a day to serve, but only for civil trials that last more than 10 days. The controversy over Arizona's Jury Patriotism Act comes not just because of the amount of the compensation, but because jurors are compensated based on lost income, meaning all jurors will not be paid the same amount.
But no matter how it is figured, Alabama is among the states with lower compensation for jurors, and there is ample reason for the Legislature to consider adjusting it.
However, Alabama lawmakers should not just willy-nilly raise the compensation for jurors. Several national groups have looked closely at juror compensation and its effects on the jury system, including the American Legislative Exchange Council and the National Center for State Courts. It would be wise for the Legislature and the Alabama court system to work together to consider changes to jury compensation, possibly including graduated pay for longer trials.
While this is the sort of change that should only be made after considerable study, it is clear that some improvement in jury compensation is overdue in Alabama.
One thing is clear: Whatever changes are made, the state will never be able to pay good, dedicated jurors what they are worth.
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Enrollment decline reported for minority law students
Vesna Jaksic, The National Law Journal
January 4, 2008
Columbia Law School has launched a Web site documenting the declining trend of minority students' enrollment in law schools.
The site calls the trend disturbing and says that while African-American and Mexican-American students have applied to law schools in relatively constant numbers over the last 15 years, their representation has fallen by 8.6%, from 3,937 in 1992 to 3,595 in 2006. The site points out that this is occurring at a time minority students' leading admissibility indicators have improved and the number of law schools has increased to provide room for nearly 4,000 more students.
The Web site was created by Columbia Law School's Lawyering in the Digital Age Clinic, in collaboration with the Society of American Law Teachers, or SALT. It contains 12 graphs and nearly 200 data points based on yearly Law School Admission Council statistics.
"We need diversity in our legal profession to promote better legal education and fairness in our system of justice," Conrad Johnson, clinical professor of law at Columbia and a member of SALT's board of directors, said in a news release.
The site also includes an analysis of Grutter v. Bollinger, the 2003 U.S. Supreme Court decision that reaffirmed the limited use of affirmative action in university and law school admissions.
Columbia Law School students Christina Quintero and Jeffrey Penn helped created the Web site as part of their Lawyering in the Digital Age Clinic. The clinic provides hands-on experience in digital technologies that help shape the legal profession. Through the clinic, students work with public interest lawyers and members of the judiciary and handle issues such as eviction cases, advocate to restore government benefits and help organize pro bono efforts.
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Main decides against Supreme Court bid
The Montgomery Advertiser
January 4, 2008
State Finance Director Jim Main issued a statement Friday that he will not seek to replace retiring Supreme Court Justice Harold See.
In his statement, Main cited upcoming financial challenges for the state's general and education funds:
"With qualifying for the 2008 Alabama Republican primary ballot opening today, potential candidates across the state are faced with making hard decisions. I am no exception to that fact.
It is no secret that the state's General Fund and Education Trust Fund budgets will face serious fiscal hurdles in the coming year. Finding solutions to these financial challenges will require undivided attention and sound judgment.
Because of these financial factors, I have decided I can best serve my state and my governor by focusing my efforts on our complicated budgets, not campaign ballots. Therefore, I will not be a candidate for associate justice of the Alabama Supreme Court in the upcoming elections."
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A raise that's hard to justify: Fed. judges exhibit no link between performance and pay – [Opinion]
By Scott Baker, The Los Angeles Times
January 4, 2008
On Jan. 1, Chief Justice John G. Roberts Jr. again urged Congress to raise judicial salaries. Low judicial pay is causing a constitutional crisis, he says. It means we cannot attract good judges or keep the good judges we have. This sentiment is echoed by other justices, leading members of the bar, law school deans and the American Bar Assn. And some members of Congress are listening. The House Judiciary Committee overwhelmingly approved a bill to increase federal judges' salaries, and the full House will take up the bill soon.
Before Congress gives some of the highest-paid members of the federal government a raise, however, it should study and weigh the evidence. And currently, there is virtually no evidence that higher pay means better judges or that lower pay means lousy judges. In fact, the available evidence shows no correlation between judicial performance and judicial pay.
There are three main arguments in support of raising judicial salaries. The first -- that our federal judges will leave the bench for the more lucrative private sector if we do not raise their pay -- is easily addressed. In the last seven years, only 15 out of 810 active judges have left the bench before qualifying for retirement, according to the Federal Judicial Center. If anything, the problem is not too much turnover, but too little.
The second argument is that our best-paid, and presumably most-talented, lawyers would make good judges, and these attorneys won't join the bench because it costs them too much. Partners at some law firms earn more than $1 million a year. A federal judgeship pays less than $200,000. Only by raising judicial salaries, the argument goes, will we have a prayer of enticing any of these lawyers to become judges.
But who says the best-paid lawyers would make the best judges? And even if they did, who says that society as a whole would be better off if they switched roles? That is like saying the highest-paid baseball players would make the best umpires, and baseball would be more enjoyable if Alex Rodriguez traded his bat for an umpire's mask.
Different jobs require different skills and temperaments. A talented trial lawyer should zealously represent his clients, know how to value a case and when and under what circumstances to settle it, and be able to push or pull the law's direction, as necessary, through creative arguments and advocacy.
A good judge, on the other hand, serves the law. She is independent and not partisan. She should speedily and consistently explain her reasoning in the form of written opinions. And she should have the respect of, and be cited by, her peers. Applying these criteria for judicial performance, the research shows that paying judges more will not necessarily lead to better judges.
The Boston University Law Review will soon publish a study in which I estimated how much money a number of federal circuit judges gave up to become a judge. Some judges gave up a fortune; others gave up little. Regardless, the evidence shows that the financial sacrifice a nominee made to become a judge had no effect on his or her judicial performance. It did not affect how they voted in controversial cases, how fast they rendered decisions or whether those decisions were cited by other judges.
A study by law professors Stephen Choi, Eric Posner and Mitu Gulati that focused on state Supreme Court justices reached a similar conclusion. Salary levels had no effect on their independence, the number of opinions they wrote or the strength of those opinions.
Finally, the specter is raised that, without higher salaries, all our federal judges will come to the bench from lower-paying government or public-interest legal jobs, and we will lose the perspective of lawyers from the private sector. Roberts correctly notes that the composition of the federal judiciary has moved in this direction. However, the two studies discussed here found little evidence that judges who come directly from the private sector acted differently from those judges coming from government ranks. Other studies have found some differences, but the evidence is mixed.
In a time of strained budgets, both Democrats and Republicans need to make hard choices on spending priorities. Federal judges earn six figures. Why choose to pay judges more -- as opposed to equally deserving, lesser-paid federal employees such as park rangers, members of the military or FBI agents -- if it ultimately makes no difference to how well the judges perform their jobs?
Scott Baker is a professor of law at the University of North Carolina- Chapel Hill School of Law.
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A capital idea in Jefferson County – [Editorial]
The Birmingham News
January 04, 2008
THE ISSUE: The county's criminal court judges have signed off on a plan that promises a better legal defense for death-penalty defendants.
Jefferson County's criminal court judges have signed off on a plan that should ensure people facing death-penalty charges receive a quality defense, at least locally.
The standards aren't mandatory, but they call for judges to appoint two-lawyer defense teams in death-penalty cases, with at least one of the lawyers having extensive capital trial experience and both specially trained in this serious and complex area of the law.
This is great news, for those who oppose capital punishment and for those who support it. A high-quality legal defense can go a long way to address complaints of both sides.
One of supporters' chief complaints about capital punishment is what often happens between sentencing and execution: endless appeals, reversals, new trials and delays. Opponents, meanwhile, complain about a lack of fairness, improper conduct by police and prosecutors, and the awful prospects of executing an innocent person.
The surest way to address all of these issues - short of abolishing capital punishment, which would be this editorial board's preference - is to make sure every defendant receives vigorous and capable legal representation throughout the entire process.
Unfortunately, Alabama doesn't have a good track record in this regard. Statewide, appointed lawyers in death-penalty cases are required to have at least five years of experience in criminal law, but that could mean five years of representing shoplifters and check-kiters. The lawyers aren't required to have additional training or particular expertise in the area of death-penalty law. Some lawyers have admitted they tried capital cases in Alabama without ever fully reading the death-penalty laws.
This approach to justice is not only a disservice to defendants, it's a disservice to the families of victims and to the citizens of Alabama. It has reaped a wholly predictable whirlwind - mistakes at trial that resulted in reversals in appeals courts, costly retrials and, worst of all, wrongful convictions.
A study by Columbia University in 2000 put the national error rate in capital cases at an astonishing 68 percent - and an even worse 77 percent in Alabama. Although some have quibbled with the numbers, nobody can reasonably argue that serious mistakes haven't occurred in death-penalty cases - or that, when it comes to miscarriages of justice, competent, well-prepared defense lawyers are the first and best line of, well, defense.
"As long as Alabama will keep having capital punishment, we have an obligation to provide defendants with a quality defense," said Scott Vowell, the presiding judge in Jefferson County. " It is our best guarantee against a person being wrongfully convicted and wrongfully punished."
Or, to be more specific, wrongfully put to death for a crime someone else committed.
The voluntary guidelines adopted by Jefferson County judges don't mean death-penalty cases no longer require extra attention from appeals courts. May the courts always serve as a vigilant and dogged check on our state's awesome power to take life.
But to the extent the new guidelines are followed, Jefferson County's death-penalty defendants will get better representation, serious problems with evidence or investigations will be more likely to be addressed on the front end, and there should be less chance for mistakes.
That's a good thing for defendants, for victims' families, for all of us. Now, if the state of Alabama will only follow Jefferson County's lead.
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Lawyers Learn How to Be Businesslike
By JONATHAN D. GLATER, The New York Times
January 9, 2008
When Gabriel R. Munson graduated from law school in 2003, his goal was to have his own practice someday, modeling himself after Atticus Finch, the small-town lawyer in Harper Lee’s classic “To Kill a Mockingbird.”
“He’s pretty much the idea of what a great lawyer should be, and a good human being,” Mr. Munson said. “Courage, compassion, rationality — he’s what kind of inspires me and makes me strive to be a better lawyer.”
But when Mr. Munson set out on his own last spring, after leaving his first job with the Legal Aid Society, he quickly realized that whatever he knew about law would not help him much in private practice, which is essentially running a small business.
“It’s a totally different mind-set,” said Mr. Munson, 42. “You’re thinking, how do I generate a salary? Should I hire an employee? How do I go about doing that?”
Mr. Munson is getting answers to those questions through a so-called incubator program established by his alma mater, the City University of New York School of Law, for its graduates.
The program aims to help and encourage new lawyers to go into private practice on their own in communities where there are few lawyers, and where people cannot afford to pay hundreds of dollars per hour for legal service. For 18 months, it offers training by experienced practitioners in all matters of building a law practice: drumming up business, keeping accurate books, and hiring and firing.
“We’re helping lawyers, and we’re providing them with support and professional development skills, but it’s all done with the goal of having them set up practices where access to justice is extremely limited,” said Fred Rooney, director of external relations at CUNY School of Law and one of the creators of the incubator. “That’s most of the city.”
The effort is financed by CUNY and with money from the state. Participants pay a low monthly rent for office space and supplies on Fifth Avenue, at 27th Street, in the office of Laura Gentile, a CUNY law graduate who has a small firm. She is also one of the teachers in the program.
“I will teach them everything from how to analyze and select a malpractice policy, to how to manage their money so they never fall off the edge of doom,” Ms. Gentile said. She also tries to teach about coping with uncertainty, which she said was a critical real-world skill.
“Sometimes you realize that in two months you’re not going to have the rent,” Ms. Gentile said. “It can be really scary, but the solution does come.”
Six lawyers are in the program now, with space for two more. Mr. Rooney said he plans to expand the initiative to 12 lawyers next year.
Fatai O. Lawal, a Nigerian lawyer who has passed the New York bar and who worked at CUNY’s law school as a security guard after coming to the United States, is one of this year’s participants. Mr. Lawal said he already had several clients with immigration matters, so far mostly citizenship applications.
“Before I heard about this incubator program, I was working from home,” said Mr. Lawal, who is building his practice while also working for the city’s Correction Department as a legal coordinator with inmates at Rikers Island. “This is a great opportunity to get an office in Manhattan, for a cheaper price.”
Mr. Lawal said he tried to keep his fees low, adding that he charged one financially strapped family $250 for helping with an application to move additional family members to the United States. Another lawyer had wanted $1,000, he said.
The CUNY program raises a question that law schools are increasingly grappling with: Why are their students, after three years of intellectually demanding training, not ready to practice as soon as they pass a bar exam?
“Law schools have an aspiration to be a part of an academic research community,” not trade schools focused on teaching practical skills, said Deborah L. Rhode, a law professor and the director of the Center on Ethics at Stanford, who has written about access to legal representation in the United States.
Even though students may participate in clinical programs in which they represent real clients, Professor Rhode said, “We don’t teach practice management skills, we don’t teach human resources, we don’t teach lots of what students need to run an effective practice.”
Mr. Rooney said he wanted to start the program in part because of his own painful learning experience in 1987, when he first hung out his shingle because the pay in his public-sector job was too low to support his young family.
Without mentors or teachers, Mr. Rooney recalled that he had to learn how to find clients and how to make and handle money. “With a lot of hard work and sacrifice and sweat equity and you name it, we created an economically viable practice,” he said, “but I wouldn’t wish that on my worst enemy.”
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