A needed reprieve – [Editorial]
The Birmingham News
July 31, 2008
The Alabama Supreme Court blocked today's execution of Thomas Arthur, and thank goodness for that.
Start with the fact another inmate this week claimed he committed the murder that sent Arthur to Death Row. Add to it the fact, disclosed just Wednesday, that state prosecutors can't find some of the evidence which could be used to prove or disprove the belated confession.
As such, on Wednesday the Supreme Court voted to delay Arthur's execution, at least for the time being.
Let's hope the court's 5-4 ruling allows lawyers time to get to the bottom of a sworn statement issued this week by Bobby Ray Gilbert, a convicted killer now housed in the St. Clair Correctional Facility. In it, Gilbert claims he, not Arthur, shot Troy Wicker to death in 1982 at the behest of Wicker's wife, Judy. Mrs. Wicker initially had claimed an intruder raped her and killed her husband. She implicated Arthur after making a deal with prosecutors to get out of prison. She insists that is the truth and says Gilbert is lying.
No doubt, Gilbert's story merits skepticism. But it would have been outrageous to kill Arthur if Gilbert's story could possibly be true.
Unfortunately, prosecutors revealed Wednesday they can't produce some of the crime scene evidence that could prove whether at least part of Gilbert's story is true.
Clay Crenshaw, the head of the attorney general's death penalty office, said in a sworn statement he hasn't been able to locate the rape kit collected from Mrs. Wicker the day of the murder - a rape kit that state records show included both semen and saliva.
Which is just great. Although other biological evidence was collected and should be DNA-tested - assuming the state can find it - it's beyond troubling to think the state was prepared to execute Arthur when what could be crucial evidence is nowhere to be found.
DNA tests could have and should have been conducted, even without Gilbert's confession. It's not that we're convinced Arthur is not guilty. It's that we believe the state must be certain he is guilty before putting him to death.
Gilbert's statement raises questions that must be answered before an execution takes place. So does the issue of missing evidence.
Chief Justice Sue Bell Cobb and Justices Champ Lyons, Tom Woodall, Patti Smith and Glenn Murdock deserve credit for demanding the questions be answered before Arthur's execution takes place.
As Alabama State Bar President Mark White said in a statement praising the judges: "Our system of justice must find a way to avoid the situation where DNA exonerates a person after execution."
Amen to that.
An execution can't be undone. The state can't afford to get it wrong. Wednesday's ruling got it right.
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Justice at any price – [Editorial]
The Birmingham News
Wednesday, July 23, 2008
THE ISSUE: Alabama is generous with what it spends to elect judges. But it is stingy with poor defendants who need legal representation.
The scales of justice need recalibrating in Alabama. That much is clear from Sunday's Birmingham News.
One story outlined Birmingham lawyer Mark White's goals as president of the Alabama State Bar:
To change the way Alabama selects judges, a reform he says is needed because our expensive, partisan elections have fueled a perception, rightly or wrongly, that justice is for sale.
To find a way to increase the money available for legal services for the poor. Alabama ranks behind every other state and even Puerto Rico in providing legal services to the poor, White said.
White offered one comparison that linked the issues and put the problem into shocking focus: In 2006, he said, 15 state judicial candidates spent more than $17 million on their campaigns. That same year, less than $7 million was spent on providing legal services for the poor in civil court.
That's a striking imbalance.
In neither case are we talking about government funds.
The state of Alabama provides some money (though not enough) for indigent criminal defense. But it spends nothing on the civil side, White said. Civil legal services for the poor are largely funded from interest earned on lawyers' trust accounts.
And, as most of us know, money for judicial races comes from individuals, businesses or groups that back the candidates. They usually come from those with an interest in judicial rulings, which is another reason judicial elections are so problematic.
Alabama has long been known for its outrageously expensive court races. Indeed, it's become a cautionary tale for other states tempted to go down a similar path.
While there has always been an argument about whether the special-interest money actually affects justice or merely appears to, there can be no argument on the other side of White's comparison: Poor people who can't get proper legal services aren't going to get justice in our civil courts. Period.
This is a chronic problem, and it's not just a complaint from lawyers who would benefit from more funding. In criminal courts, even publicly paid prosecutors who have nothing to gain from seeing more resources directed to indigent legal defense acknowledge the problem. Well, they have nothing to gain except a fairer system of justice.
If anything, it's even worse on the civil side, where there's no such thing as a right to a lawyer. Poor people often are shut out of the justice system, unless it is through those contingency or class-action deals that business interests abhor.
White wants to work both sides of the problem to correct the imbalance.
He plans to at least push for nonpartisan judicial elections in the hopes of lowering the amount of money spent on court races. And he hopes to support the ongoing work of a commission trying to come up with ways to provide more funding for indigent legal services. Among the ideas on the table are imposing bigger fees on out-of-state lawyers and trying to bump up interest rates on some of those legal trust accounts.
"We need to create a sound business model for funding that will benefit the least of us," White said.
There might be room to quibble over what the best answer is, but there can be little room to doubt what it isn't: a system in which monied interests spare no expense in their efforts to get friendly judges, and the poor can't even get in the door.
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Bar chief White seeks balanced justice - Lawyer wants focus on the poor, judicial selection
By Eric Velasco, The Birmingham News
July 20, 2008
If J. Mark White needs a theme to summarize his goals as newly minted president of the Alabama State Bar, it might be "justice for all."
He wants to reform the method of selecting judges to help change the perception that justice in the state's highest courts is purchased, and only by the most generous campaign contributors. He also wants to use his bully pulpit as head of the state's nearly 17,000 lawyers to advocate better funding of legal services for the poor in criminal and civil courts.
"Alabama has been rated 52nd in the country (behind the other 49 states, District of Columbia and Puerto Rico) in providing legal services to the poor," said White, a Birmingham lawyer and partner in the firm White Arnold & Dowd. "We need to create a sound business model for funding that will benefit the least of us."
White, 61, was tapped as bar president earlier this month at the state bar's annual meeting, and will serve through June 2009.
White said he would continue the state bar's decades-old effort to end the partisan political battles that have earned Alabama a national reputation for contentious and expensive Supreme Court races. Those campaigns have drawn $54 million in contributions since 1993 - the most in the nation - from businesses and tort lawyers. That creates a bad public perception, White said.
"People are tired of negative judicial campaigns," he said. "What we're seeing throughout the country is that judicial candidates running negative campaigns lose."
White also cited a national survey in which 78 percent of respondents said they believe campaign contributions dictate the outcome of judicial rulings.
"It doesn't matter for my purposes if it's a perception or a reality, which I don't think it is," White said. "I have to treat it as a reality. And if people perceive it's that way, we've failed. Justice needs to be perceived as fair."
But look for White to take a different tack on judicial selection reform than his predecessors. Last year the state bar backed legislation allowing the governor to select appeals court judges recommended by a nominating commission, with the judges running solo for retention after six years.
White said he supports an incremental approach advocated last year by Chief Justice Sue Bell Cobb, starting with a switch to nonpartisan races. White said he also plans to work with corporate contributors to reduce the amount of cash flooding judicial races.
Trial-level judges representing about 60 percent of the state's population now are nominated by a local committee, then chosen by the governor. Those judges run in open elections after a six-year term. That is a model that should be spread to trial courts in the rest of the state, White said.
White cites a statistic when he discusses improving access to the civil courts for the poor. In 2006, 15 judicial candidates spent more than $17 million on their races. But less than $7 million that year was spent on providing legal services to the poor.
Most of the money for indigent legal services comes from interest earned on lawyers' trust accounts in banks. No state money is spent on indigent legal services, White said.
A task force appointed by the chief justice is studying ways to improve funding. Possible solutions include increasing the fee out-of-state lawyers pay and ensuring that all banks pay a fair interest rate on the lawyer trust accounts.
But it still won't be enough, White said. "It probably will only move us from 52nd place to into the 40s."
White, an Auburn University graduate, served two years in the Navy before graduating from Cumberland School of Law in 1974. During his 34-year career, he has represented white-collar criminal defendants, corporations in civil matters and complex litigation, and handled election law cases.
The Birmingham resident likes to cook, predominantly on the grill these days. "The only other thing I considered doing was going into the restaurant business," he said. "Justice (Oscar) Adams once told me: If you're going to be a lawyer, you've got to be a good cook. Presenting a case before a jury is like presenting a meal. You go through your recipe, think backwards and break it all down: what I need to buy, how I want to cook it, when I need to prepare it."
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Supreme Court Gets First Negative Approval Rating
By Debra Cassens Weiss, ABA Journal.com
July 28, 2008
Only 39 percent of U.S. voters approve of the way the U.S. Supreme Court is handling its job, while 43 percent disapprove, the first negative approval rating for the court in five years of polling.
The court got its highest approval rating in May 2007, when 58 percent approved of the job being done by the court. The Angus Reid Global Monitor noted the results.
In the latest survey, conducted by Quinnipiac University, 42 percent said the court is moving in the wrong direction while 33 percent said it is headed in the right direction. Twenty-five percent said the court is too liberal, 31 percent said it is too conservative and 33 percent said it is about right.
The respondents were also asked to weigh in on a debate on original intent. Forty percent said the Supreme Court should consider only the original intentions of the authors of the Constitution when making decisions, while 52 percent said it should consider changing times and current realities.
When asked for their opinion of Chief Justice John G. Roberts Jr., 57 percent said they hadn’t heard enough about him to have an opinion.
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Japan Seeks to Add Lawyers and Dispatch Them Beyond Cities
By Debra Cassens Weiss, ABA Journal.com
July 29, 2008
Japan has a goal of licensing 3,000 new lawyers a year and sending some of its law graduates to underserved rural areas to practice.
Toward that end, the country opened 74 new law schools in the last four years and reformed the bar exam, the New York Times reports. The exam had been open to anyone but was so difficult that only about 3 percent were able to pass.
The number of new lawyers is falling short of the goal. Yet some law graduates are still being dispatched to towns such as Yakumo in northern Japan, which never had a lawyer until lawyer Katsumune Hirai arrived in April.
On a per capita basis, the number of legal professionals in Japan is about one-third the number of lawyers in the United States, the story says. In Japan, tax accountants and notaries perform some work that lawyers do in the United States, and the comparison includes those professionals.
Outside of Tokyo, there is only one lawyer for every 30,000 people. Now Hirai is one of them. He located his office so it faces the train station in Yakumo, a town with a population of about 20,000. He hopes the prominent location will combat the idea that seeing a lawyer is shameful. “If I’d settled instead in a more secluded part of town, people might think that this is a shady business after all, and that I’m a bad guy,” he told the Times.
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Courthouse threats: Judges, attorneys face risks on the job
By Marty Roney, The Montgomery Advertiser
July 30, 2008
Judges get threatened. They know it comes with the territory.
But when it happens, like it did not too long ago in Chilton County, it's a somber reminder of the risk that all court officials -- prosecutors and defense attorneys, too -- take every day.
In the River Region, the court officials willing to talk about threats are quick to point out that they're few and far between, and they aren't taken lightly.
"It's very serious when any threat is made," said Griffin Sikes, who directs the legal division of the Administrative Office of Courts, which oversees all courts in the state. "Judges, and all officers of the court, prosecutors and defense attorneys have to feel they are safe in doing their jobs."
The office doesn't keep records of threats made on court officers, but spokesman Dean Hartzog doesn't recall any in his eight years on the job except the one made against Chilton County Circuit Judge Sibley Reynolds earlier this month.
In federal courts across the country, 2,000 judges and 5,520 other officials -- prosecutors, defense attorneys, baliffs and court reporters -- received 1,140 threats or inappropriate communications last year, according to the United States Marshal's Service, the agency responsible for the officials' safety.
Most other states, like Alabama, don't collect statistics on threats. However, a 2006 report conducted by the Bureau of Justice Assistance showed 16 state and local judicial employees, including eight judges, and 42 court clients were killed from 1970 to 2005. In that same period, more than 40 judicial officials and 53 court clients were assaulted.
Reynolds, the Chilton County judge, has received only two threats in his 15 years on the bench, including the one made a couple of weeks ago.
Authorities moved quickly to protect Reynolds after learning about the threat from a citizen who overheard it, according to District Attorney Randall Houston, who represents Autauga, Elmore and Chilton counties.
Chilton County Sheriff's deputies watched Reynolds' house at night and, in conjunction with the Alabama Bureau of Investigation, made an arrest within days.
"You are more concerned about the effect it has on your family," Reynolds said. "We were in good hands until he was arrested."
Charles Mefford, 38, of Verbena is charged with threatening Reynolds. He remains in the Chilton County Jail on $500,000 bond.
Mefford, according to Houston, was upset with Reynolds for the way he presided over the trial of his mother, Linda Mefford, who a jury found guilty of stealing about $3,000 from the Autauga County Humane Shelter. Reynolds also revoked bond for Linda Mefford, sending her to jail to await sentencing Aug. 26.
After being threatened, Reynolds recused himself from the case. Mefford could not be reached for comment and court records don't show if he has an attorney.
On the bench, Reynolds and the other two judges of the circuit -- Autauga County's Ben Fuller and Elmore County's John Bush -- protect themselves with handguns they carry under their robes.
An avid shooter and trained marksman, Reynolds has a reputation for being a crack shot.
"Threatening Judge Reynolds is a dumb thing to do," said Whit Moncrief, Autauga County Circuit clerk. "If things ever get bad in the courtroom, you know Judge Reynolds knows how to take care of things."
Fuller received a threat about 10 years ago from a plaintiff in a divorce case. ABI officials later arrested the man.
"The case was over," the judge said, "and apparently he thought I had given his ex-wife too much property."
Fuller doesn't think about receiving threats during a case
"It's a hazard that goes with the job," he said. "If something does happen again, I'll rely on our law enforcement agencies to keep me safe."
Bush did not return calls seeking comment.
Across the river in Montgomery, Sheriff D.T. Marshall wouldn't divulge if the nine circuit judges in his county carry weapons.
"We take security very seriously," Marshall said. "I'm not going to comment specifically on security measures."
Montgomery Circuit Judge Will O'Rear was threatened once while serving as a temporary probate judge. He took over for Circuit Judge John L. Capell about a month ago.
"I don't think I've been here long enough to make someone mad enough to threaten me," he said.
Montgomery circuit judges Johnny Hardwick, Truman Hobbs Jr., Tracy S. McCooey, Charles Price and Eugene W. Reese also did not return calls seeking comment.
Circuit Judge Patricia D. Warner referred security questions to Price, the presiding judge in the circuit, and Circuit Judge Anita Kelly declined to comment.
Circuit Judge William Shashy has received threatening letters, which he simply turned over to law enforcement officers and tried not to think about.
"You can't let it affect your work as a judge," Shashy said.
For Houston, the Autauga County prosecutor, a March 2005 courthouse shooting spree in Atlanta that eventually left four dead -- a judge, court reporter, sheriff's deputy and federal agent -- was a reality check.
Brian Nichols was being escorted to a courtroom, where he was on trial for rape, when he overpowered the deputy guarding him, stole her gun and went on the shooting spree. Nichols is on trial right now for the murders. A verdict, according to The Associated Press, isn't expected for several months.
"Atlanta changed everything," Houston said. "It showed us we had to take everything seriously."
In the 19th Judicial Circuit, sheriff's deputies are often assigned to courtroom security.
"If there is an emotional case, or a sentencing for a big case, we will send enough deputies over to make sure things stay orderly," said Ricky Lowery, chief deputy of the Elmore County Sheriff's Office. "There are often officers from other law enforcement agencies in or near the courthouse pretty much all the time. When the call goes out on the radio that the judge needs an officer, there's plenty of help that shows up."
Houston said his assistant district attorneys are also armed.
"They complete the same handgun training that law enforcement officers have to go through," he said.
Prosecutors in Montgomery County aren't armed, said Daryl Bailey, chief assistant district attorney for District Attorney Ellen Brooks.
The easiest way to keep everyone safe is to keep weapons out of the courthouses in the first place. In Autauga, Elmore and Montgomery counties, members of the public must go through metal detectors and have their packages screened by X-ray machines.
"Most of the time, if we find a knife, it's an honest mistake," said Marshall, the Montgomery sheriff. "The person just forgot to leave it in the vehicle before they tried to get in. We had one person come into the courtroom with a pistol in their pocket. They had a permit for the gun; they just forgot to leave it in the car. They were very embarrassed, but the guards just told them to go back to the vehicle and leave the gun there."
The security checkpoint in the Autauga County Courthouse has been operating about a year, but Sheriff Herbie Johnson is convinced that just the sight of uniformed officers can keep the public in line.
"When the first thing people see when the walk in the courthouse is two or three uniformed deputies, it tends to send a message," he said. "Emotions can run high during a trial. But you only have a few people who would even consider causing problems in the first place, and those few will behave with an officer around."
There have been fights in the Prattville courthouse. About 10 years ago, Johnson had to help break up a brawl involving a group of men.
"Occasionally, you will have a crazy suspect that you're worried about," he said. "But most of the time the real problems come out of divorce cases or child custody cases. Those are cases where emotions are really at the surface and it doesn't take much for them to bubble over."
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Candidates urged to cool it
By Jake Armstrong, The Times-Union (Jacksonville, FL)
July 25, 2008
ATLANTA - Don't drink the Kool-Aid.
That's the message one group is trying to impress upon judicial candidates seeking election in an era that has seen judicial campaigns take on big money and partisan overtones. Its members say such campaigning weakens public confidence in the court system.
Thursday, the Georgia Committee for Ethical Judicial Campaigns, a coalition of attorneys, legal scholars and business people, asked candidates for the Georgia supreme and appeals courts to pledge to keep their campaigns free of the trappings of most political campaigns.
False and misleading statements are out, as is taking positions on the campaign trail rather than in the courtroom, according to the pledge.
Mark White, of the National Center for State Courts' campaign oversight committee, said going negative is now a sure ticket to a losing campaign, as evidenced by 53 incumbent Texas judges who recently lost election challenges after steadily attacking their opponents.
Former Georgia Supreme Court Chief Justice Norman Fletcher said judicial campaigns have become more expensive in the past decade, drawing attention from special-interest groups that launch attack ads and erode the public's faith in the judiciary.
In fact, fundraising in judicial elections soared in recent years, with Supreme Court fundraising alone lurching from $38,888 in 2000 to just over $4 million in 2006, according to the League of Women Voters of Georgia.
They've also become noisy.
In the past two Supreme Court election cycles, manufacturers' organizations launched a salvo of expensive attack ads against incumbents they believed included personal views in their decisions, which prompted reciprocal attacks. However, the two Supreme Court justices up for re-election this year, Robert Benham and Harris Hines, drew no opposition.
Three appeals court candidates who attended an event at Emory Law School signed the pledge Thursday - Sara Doyle, Christopher McFadden and Bruce Edenfield. Committee members will follow up with candidates Michael Meyer Von Bremen, who attended by phone, Tamela Adkins, Perry McGuire and Mike Sheffield. All seven are competing for the same open seat.
Polly McKinney, executive director of the League of Women Voters of Georgia, said the public can't depend on fair decisions if judges are beholden to the prevailing political winds.
"It shakes the stability of everything we do," she said.
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Keeping judicial elections nonpartisan: California needs a way to do it, but a constitutional amendment goes a bit too far – [Editorial]
The Los Angeles Times
July 24, 2008
Every two years, a handful of California's Superior Court seats open up without the governor appointing new judges to fill them. Lawyers who are impatient with the appointment process, or don't believe they have a chance with the governor, or tried it and failed, take the other available course -- they ask voters to elect them to the bench. But voters struggle with a dearth of information about the candidates.
Good-government groups, bar associations and editorial pages such as this one try to fill the gap by rating or endorsing or at least offering information on candidates' competency, experience and judicial temperament. But political parties and special-interest groups know that they can spice up otherwise boring judicial elections -- and at the same time stock the bench with jurists they believe will be more favorable to their causes -- by eliciting and relaying information aimed at voters' emotions. They have begun peppering candidates and appellate jurists with questionnaires to lock them into positions, and the responses find their way into glossy mailers sent to voters and donors.
It's a step down a dangerous road. Such questionnaires are bald attempts to coax candidates into publicly endorsing one special interest or another and to threaten sitting jurists with removal if their positions and rulings don't pass muster. But banning such questionnaires would violate the candidates' 1st Amendment rights.
In many other states, courts already are heavily politicized, perhaps beyond redemption. When trial judges and even state high court justices run on partisan tickets or raise millions of dollars from labor, business or political groups for their campaigns after taking public positions on issues that may come before them, the public can no longer have faith that rulings are based on law rather than patronage.
Former Gov. Pete Wilson has offered an unusual solution -- a state constitutional amendment that would express the public's wish that candidates decline to take positions on controversial issues. It would avoid a clash with free-speech rights because a candidate could still fill out a questionnaire. But an opponent would be able to flag the fact that the decision to fill it out goes against the public desire expressed in the amendment.
An unenforceable amendment to the state Constitution would be a poor precedent, but Wilson is to be commended for broadening the discussion. California courts are still relatively free from partisan and special-interest politics, and the Commission on Impartial Courts should consider some version of Wilson's suggestion -- short of a
constitutional amendment -- in the report it issues later this summer.
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Public financing for Supreme Court races?
By James Nash, The Columbus Dispatch (Ohio)
July 31, 2008
On the heels of a report showing the continuing influence of money in Ohio Supreme Court elections, two public-interest groups are calling for public financing of judicial campaigns.
Common Cause/Ohio and Ohio Citizen Action said publicly financed campaigns would curb the influence of campaign contributors over the state's highest tribunal.
In a letter to Chief Justice Thomas J. Moyer, the two groups called on Ohio's seven justices to follow the lead of Wisconsin Supreme Court justices in calling for a system of taxpayer-financed elections. The Wisconsin justices were unanimous, but not specific in their request.
Moyer backs the idea, spokesman Chris Davey said today, but that doesn't mean all seven Ohio justices do. Some have argued for the current system, which has limits on contributions. Shutting down private contributions in favor of government funding is an attack on free speech, they say.
The letter from Common Cause/Ohio and Ohio Citizen Action says that private contributions corrode public confidence in the judiciary.
"In a climate where political campaigns are dominated by big money and special interests, it is imperative that the judiciary maintains its independence and that it is perceived by all as fair, neutral, impartial and nonpartisan," the letter says.
White to lead state bar, will push judicial election reform
ERIC VELASCO, The Birmingham News
July 15, 2008
Birmingham lawyer J. Mark White has become president of the Alabama State Bar and will serve the next year as head of the organization of nearly 16,000 lawyers.
White, a founding partner of the Birmingham firm White Arnold & Dowd, was tapped Saturday during the state bar's annual meeting, held in Florida.
White said he would continue the organization's effort to change the way judges are selected in Alabama. The current method of partisan elections has given the state a national reputation for nasty and expensive state Supreme Court races.
In 1999, White created the state's first Judicial Campaign Oversight Committee to help govern candidates' conduct in court races. He received the Distinguished Service Award in 2007 from the National Center for State Courts for his work on behalf of that organization's committee on judicial campaign conduct.
White has been active in the Birmingham Bar, having served as its president in 2004. He was a state bar commissioner, 1995-2004. White also was a member of the House of Delegates for the American Bar Association, 1995-2001.
He served on the Alabama State Judicial Inquiry Commission, 2001-2007.
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Birmingham's Mark White new Alabama Bar president
The Associated Press
July 15, 2008
MONTGOMERY, Ala. (AP) — Birmingham lawyer J. Mark White is the new president of the Alabama State Bar.
White was installed at the group's weekend meeting in Destin, Fla. He will lead the State Bar's nearly 16,000 members for one year.
White says his goals as president include removing the barriers to justice for Alabama's poor and continuing efforts by the State Bar to change the way judges are selected in Alabama.
White graduated from Cumberland School of Law at Samford University and is president of the law school's national alumni association.
He succeeds Samuel Crosby of Daphne as head of the state bar.
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Mark White named president of Alabama State
by Crystal Jarvis, Birmingham Business Journal
July 15, 2008
J. Mark White, a founding partner of Birmingham law firm White Arnold & Dowd PC, was elected as this year's president of the Alabama State Bar.
As president, White will oversee the 15,700-member organization.
His primary goal this year will focus on removing "barriers to justice for Alabama's poor, to embark on an immediate course to change the nature of state judicial elections and to champion efforts that increase the public's confidence in our system of justice," he said in a news release.
"In talking with Alabama attorneys from Phenix City to Demopolis, I've learned that these issues resonate with all of us," White said.
White earned his undergraduate degree from Auburn University in 1969 and later served in the U.S. Navy between 1970 and 1972. He earned his law degree from Samford University's Cumberland School of Law.
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Alabama needs Missouri Plan
July 14, 2008
The Press-Register's June 24 editorial, "Alabama needs to flee 'tort purgatory'," supports the adoption of the Missouri Plan of judicial appointment (by merit selection) and retention elections.
The Alabama State Bar is an organization comprised of all the lawyers licensed to practice in Alabama. It also supports the adoption of the Missouri Plan of merit selection of appellate court judges in Alabama with retention elections.
On Dec. 3, 2004, the governing board of the Alabama State Bar passed a resolution supporting the concept of merit selection with retention elections to replace the current system of partisan election of appellate court judges in Alabama.
Ironically, some of the same groups who are complaining about our judicial system are also impeding the legislative efforts to improve the system by opposing the adoption of the Missouri plan.
Lawyers and judges throughout the state are working hard on a daily basis to ensure that justice is administered in a fair and impartial manner.
SAMUEL N. CROSBY
Editor's note: Crosby is outgoing president of the Alabama State Bar. This letter was first published July 7, but contained a typographical error that significantly altered the meaning of a sentence.
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Ways to protect judges from politics
Bob Egelko, San Francisco Chronicle
July 16, 2008
Two former California governors who once said judges who issue objectionable rulings should lose their jobs have offered suggestions to a state commission on how to protect the judiciary from politics.
Ex-Gov. Pete Wilson says the state Constitution should be amended to help judicial candidates fend off political questionnaires. His successor as governor, Gray Davis, suggested a law that would give voters more information about candidates for trial courts.
Both stressed the need for judicial independence - Wilson disparaged "those who would seek to make political hay (by) criticizing the judiciary," while Davis said partisan forces pose an imminent danger to the courts.
Wilson, the state's Republican governor from 1991 to 1999, and Davis, a Democrat who governed from 1999 until his recall in November 2003, both testified Monday at a Sacramento hearing of the Commission for Impartial Courts.
Both said in interviews afterward that they had little recollection of past comments that seemingly pulled in the opposite direction from their current endorsements of judicial independence - Wilson's statement that then-Chief Justice Rose Bird should be recalled if her court overturned a 1982 crime initiative, and Davis' observation that his judicial appointees should resign if they didn't go along with his views on issues such as the death penalty.
Chief Justice Ronald George established the courts commission last year to recommend changes in state laws on judicial appointments and elections, saying he was concerned that recent multimillion-dollar campaigns for control of courts in other states would spread to California.
California's judges have largely stayed out of the political spotlight since 1986, when Bird and two state Supreme Court colleagues were removed from office in a campaign that focused on their votes to overturn death sentences.
But the role of the judiciary will be an issue in this year's battle over a Nov. 4 initiative, Proposition 8, that would amend the California Constitution to overturn the state Supreme Court's May 15 ruling that legalized same-sex marriage. Jennifer Kerns, spokeswoman for the Prop. 8 campaign, said Tuesday that one of its themes will be that "activist judges ... brazenly overruled the will of the people."
George, who wrote the ruling, and Justice Carlos Moreno, who was part of the 4-3 majority, are scheduled to be on the 2010 ballot seeking new 12-year terms.
At Monday's session, several witnesses said political pressure on courts around the nation has grown since the U.S. Supreme Court ruled in 2002 that states can't prohibit judicial candidates from discussing issues that they might later consider as judges. Would-be judges now regularly receive questionnaires from interest groups seeking their views on such issues as abortion and same-sex marriage, Ohio Chief Justice Thomas Moyer told the California commission.
Saying such inquiries endanger the courts' neutrality, Wilson suggested a state constitutional amendment that would urge judicial candidates in California not to answer political questions and that would require all questionnaires to include that advice.
Davis said one way politics creeps into the courts is in Superior Court elections, where voters typically "don't have a clue" about the candidates. One remedy, he said, is for the State Bar commission that now does background checks of a governor's potential court nominees, and presents confidential evaluations to the governor, to conduct the same review for all judicial candidates and make the assessments public.
Both ex-governors were interviewed afterward about their past statements on judges and politics. Wilson said he remembers criticizing Bird in 1982 - during his successful U.S. Senate campaign against Democratic Gov. Jerry Brown, who had appointed the chief justice - but doesn't recollect urging her recall.
News accounts at the time, however, quoted Wilson, then the mayor of San Diego, as saying he would support a recall if Bird's court struck down a prosecution-backed crime initiative that voters had approved earlier in the year. Such a ruling would be "flaunting the public will," he said.
The State Bar's Conference of Delegates passed a resolution in September 1982 condemning Wilson's remarks as an attack on judicial independence. The court later upheld the initiative's key provision, with Bird among the dissenters.
Davis was quoted in February 2000 as saying his judicial appointees should reflect the positions that helped him get elected, such as support for capital punishment and abortion rights. Judges he appointed "are not out there to be independent agents," he said, and those who reached views that opposed his positions should leave the bench.
That wasn't what he really meant, Davis said Monday. He said his point was that he tried to screen judicial candidates carefully and choose those who shared his positions.
"Every governor hopes his appointees are more or less in sync with his governing philosophy," Davis said. "Once they're appointed, they're free agents, obliged to follow the Constitution and the law."
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Angry chief justice disputes study of court; Campaign donor bias charge invalid, he says
Susan Finch, Times-Picayune (New Orleans)
July 11, 2008
A recently published statistical study whose authors say it shows Louisiana Supreme Court members are significantly influenced by campaign donations in deciding cases is a baseless and flawed attack on the court, Chief Justice Pascal Calogero says.
The study was conducted by Tulane University comparative law professor Vernon Valentine Palmer and Loyola University assistant economics professor John Levendis.
After the study appeared in the Tulane Law Review last month, it came in for sharp criticism on the Supreme Court's Web site from Calogero, two partners in the Christovich & Kearney law firm and three economists from Louisiana State University and the University of New Orleans.
"This article . . . is replete with numerous errors in data (including such basic mistakes as if and how a justice voted in a particular matter), flawed and outdated statistical analysis and methodology, and substandard scholarship, all of which invalidate the article's conclusion," Calogero said in a posting he said aimed to reassure citizens, litigants and lawyers that the justices "decide cases in an unbiased manner."
Palmer, however, said Thursday he stands by the study, which he said is based on a statistical analysis of how the nine Supreme Court justices voted on 181 civil cases involving their campaign donors between 1992 and 2006.
The study concluded that statistically speaking, campaign donors have a favored status among litigants appearing before the court, which the study's authors say indicates that campaign cash may have eroded the qualities most needed in such a court: independence, impartiality and adherence to the rule of law.
"We still believe in the study and according to our information, it is still solid," he said. "We will give a detailed response when Professor Levendis returns from abroad" early next month.
Palmer said earlier this year the study results convinced him that the Supreme Court should change its rules to require its members to recuse themselves from deciding cases that involve litigants or lawyers who have contributed to their campaigns.
In his posted comments, Calogero said the court had been "handicapped in responding because Palmer began an unfair media assault without sharing the article or the underlying data."
After finally receiving a draft of the article, Calogero said, the court found numerous errors and brought them to the law review's attention. "Publication was delayed, and the final version was substantially rewritten, but many errors remained," he said.
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Feds knock; a business is lost – [NOTE: This is an excerpt of the entire article]
By David J. Lynch, USA TODAY
July 9, 2008
HUNTSVILLE, Ala. — As Alex Latifi walks through his empty factory, the only sounds are his footsteps and the dull hum of the wavering fluorescent light overhead. The lathes and drill presses that once churned out a steady stream of critical parts for the U.S. military are still.
The ghostly silence at Axion is the result of a four-year government probe that targeted Latifi for allegedly violating U.S. export law by sending to China classified drawings of an Army Black Hawk helicopter part and falsifying related tests.
Armed federal agents raided Latifi's home and business in 2004 and 2006, seizing computers, cellphones and cardboard boxes full of records. Prosecutors froze $2.5 million of his assets in 2006, dealing what may prove a fatal blow to his 24-year-old business.
Finally, in March 2007, U.S. Attorney Alice Martin unveiled a multiple-count criminal indictment in Birmingham, Ala., placing the Iranian-American immigrant at the intersection of two of the country's most emotionally charged national security worries: Iran and China.
"Keeping sensitive U.S. military technology from falling into the wrong hands is a top priority for the Justice Department," Kenneth Wainstein, assistant attorney general for national security, said at the time. "This indictment and other recent illegal export prosecutions should serve as a warning to companies seeking to enhance their profits at the expense of America's national security."
But rather than deterring renegade exporters, the Latifi case now appears as a cautionary tale of what critics call an overzealous prosecution. It is also a reminder that the innocent can pay an enormous price while the gears of justice grind. "The government's case itself it seems to me was sloppily prepared. … Their prosecutorial zeal caused them to overlook some deficiencies in their case," says Clif Burns, an export law attorney at Powell Goldstein in Washington, D.C., who was not involved in the case.
During a seven-day trial last fall, the government's case swiftly unraveled. The informant who tipped Army investigators to Latifi's alleged misdeeds turned out to be an Axion employee who was simultaneously embezzling company funds. Prosecutors also conceded that the government had failed to mark the sensitive technical drawing that Latifi, 60, was accused of illegally exporting with the warning language Defense Department regulations require.
In her Florence, Ala., courtroom, U.S. District Court Judge Inge Johnson called the government's case "sloppy" before swiftly dismissing all charges. The judge also ordered the government to pay Latifi nearly $364,000 for his attorney's fees, a move the local U.S. attorney called "unprecedented."
For the government, the defeat was a rare loss in the export-control arena. For Latifi, the ordeal — he faced up to 40 years in prison if convicted on all counts — struck at the ideals that defined his life as an engineer and as an immigrant. "I paid with four or five years of my life. I lost my company. … This is like the Gestapo. This is not the United States," Latifi said in a joint interview with his wife, Beth, in which they recounted their experiences with federal law enforcement officials.
The drama may not be over. Latifi's attorneys have filed a formal complaint with the Justice Department's office of professional responsibility (OPR) accusing Martin and her deputies, David Estes and Angela Debro, of "prosecutorial misconduct" for allegedly stating in conversations with the defense attorneys that their goal was to put Latifi out of business whether or not they won the case. Latifi is seeking access to the government's case files, which his attorneys say will prove that prosecutors failed to disclose evidence suggesting his innocence.
Martin's 6½-year tenure already has been marked by high-profile trials and controversy. The Republican appointee's handling of prosecutions of former Alabama governor Don Siegelman, a Democrat, and HealthSouth CEO Richard Scrushy has been criticized as politically motivated, most recently in an April 17 report by the Democratic staff of the House Judiciary Committee.
Mark White, incoming president of the state bar association, says the Alabama legal community is concerned with "the attitudes and positions taken by the U.S. attorney's office. … They are seen as being political."
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VLG Co-Founder Starts Virtual Law Firm
By, Zusha Elinson, The Recorder (San Francisco)
Craig Johnson, the Silicon Valley lawyer-entrepreneur who brought you the Venture Law Group, is onto his next big thing: a virtual law firm.
Johnson and 14 other lawyers unveiled the new firm, called Virtual Law Partners, on Friday. The idea is to have more work-life balance, work from home, save on overhead, charge clients less, and forge a new model for the legal industry.
"It just seems like an idea whose time has come," Johnson said by phone on Monday, sitting outside his Portola Valley, Calif., home. "Billing rates at large law firms have just gone up and up -- it's not unusual to find partners in the Bay Area billing $600, $700 or $800 an hour ... They have to pay high salaries for associates, high profits per partner, and they feel they have to have prestigious offices -- it's just a situation that can't continue."
Johnson, 61, co-founded Venture Law Group, or VLG, in 1993. After a strong run representing startups like Yahoo and Hotmail, often in exchange for equity, the firm struggled after the dot-com bust and merged with Heller Ehrman in 2003.
The new firm, VLP, will target all types of companies for all types of legal work aside from litigation. Although working remotely isn't new for lawyers, Johnson said VLP is different because it aims to be like the other top firms in the country, with hundreds of lawyers, just without offices.
Peter Zeughauser, a law firm consultant and founder of the Zeughauser Group, said the VLP model may have a place, but it won't be the next big thing. "I think Craig is brilliant," Zeughauser said. "But I think if you look at VLG, it wasn't the next big idea -- nor is this."
Zeughauser said that while the office-less model works for smaller matters and small groups of lawyers, heavier infrastructure is necessary for the type of work done by big law firms.
But at least one general counsel was intrigued by the idea, especially the lower rates. "It's very rare that you go to a law firm these days and have face-to-face meetings," said Alastair Short, general counsel of 3Par, a Fremont, Calif.-based computer storage company. "If what a virtual law firm means is that there's no central office and the lawyers work from home and that would save me money, I would be happy to use them."
VLP was founded after two lawyers running their own small virtual law firms –
RoseAnn Rotandaro of Armor Legal Counsel and Andrea Chavez of Lion Tech Law -- came to Johnson for advice.
Rotandaro and Chavez -- president and executive partner, respectively, of VLP -- decided to combine forces with the financial backing of Johnson, who is CEO of the new firm. They've recruited other lawyers from law firms and in-house departments.
"The people that we've targeted are people that want a work-life balance," said Rotandaro. "They don't have to make a million dollars a year to make them happy."
Johnson and Rotandaro said they're eschewing the normal math that's used by large law firms where one-third of the revenue goes to salaries, one-third goes to overhead, and one-third goes to profits. They're also getting rid of minimum billable hour requirements and high-priced associates.
Instead, attorneys will get 85 percent of what they bill. And without having to pay for offices and associates -- the firm will instead employ a few specialized paralegal types with all attorneys being partners -- those billing rates will be about half of what big-firm lawyers bill, Johnson said.
Although VLP lawyers can set their own rates, he estimates that an average billing rate might be about $400 an hour.
"The thing that makes it almost a slam dunk is the incredible price umbrella from the big firms," Johnson said. "When you charge $400 an hour and have clients think it's a bargain, how could you not succeed?"
The lawyers who've joined the firm have their own clients. Rotandaro is bringing client PLX Technology, while Chavez does work for patent stockpiler Intellectual Ventures.
As for Johnson, he won't be practicing law. For the past couple of years he's been working at his own venture capital firm, Concept2Company Ventures. But he's excited to be back in the legal mix, having retired from Heller Ehrman in 2005, though he continues as the chairman of the Venture Law Group board of advisers.
Johnson insists VLP is the wave of the future. But even if it's not, it at least might make Big Law squirm a little.
"It's a bit fun for me to tweak the tail of the American legal industry," he said.
Attorneys Predict Hardship From Hikes in Fla. Court Fees
Bud Newman, Miami Business Review
"Justice is going to be very expensive."
That is how David Mankin, supervising attorney in the housing unit of Broward Legal Services in Plantation, Fla., describes the impact -- particularly on the poor -- of legislatively mandated increases in 144 court fees taking effect statewide today. Even the fee to apply for indigent status, which lets poor litigants pay other court costs in installments rather than all at once, goes up by 20 percent from $40 to $50.
Seeking justice through the court system "wasn't free before, but it was obtainable" for low-income people, Mankin said. The increases may change that, he said.
"These are pretty significant increases in the costs to get into the courthouse," he said. "It's really a hardship on the tenants" who sue landlords to get them to address problems such as broken air conditioning.
West Palm Beach, Fla., solo practitioner Dennis Koehler, a former county commissioner, said the new and higher fees also will hit hard at people who want to file their own cases instead of using a lawyer. "It's going to hit the pocketbooks of the folks who file pro se," he said. "It's the little guy that's going to be hurt."
Ross Baer, the supervising family law attorney at the Palm Beach County Legal Aid Society, said he is bothered by the increase in the cost of filing for divorce and a new fee to file a counterpetition. Divorce petitions cost $409, up 12 percent from $364, and the new fee for a counterpetition in a divorce case is $295.
"My clients couldn't afford the $364; the $409 is really difficult," he said. "It's going to cost $295 when it used to cost nothing. The impact on people who don't have money in today's economy obviously is not good."
But the state also is claiming poverty. Budget cuts produced 34 courthouse layoffs also effective today in South Florida, and more vacant positions were eliminated.
Baer acknowledged "it's probably fair to have a user fee" to help cover the cost of providing court services, but he said, "I don't think it's fair to have a user fee for people who can't afford it."
Palm Beach County Clerk of the Court Sharon Bock said in an interview that the new and higher fees are designed to raise $121 million statewide. She did not know how much would be raised locally. The entire amount will go into the state's general revenue pool, she said, but only $75 million, or 61 percent of the new collections, will be earmarked for courts, prosecutors and public defenders. Even though she operates a fee-based office, Bock said none of the new fees will reach her. She said the state Legislature decided which fees would go up and by how much, and her office had nothing to do with the decisions, even though her office is the collection point.
Bock said she shares the concerns of attorneys representing the poor about the issue of access to courts.
"All of us are very concerned about access to the courts for the poor," she said. "We're going to be watching it extremely closely."
The Legislature hiked the fees to avoid even deeper funding cuts and minimize the number of layoffs. The largest increase in terms of dollars and percentage is for tenant eviction. The old fee of $80 has more than tripled to $270. On the other end of the scale, some fees are rising only 50 cents or $1. Nearly 30 current fees, such as the $93.50 to apply for a marriage license, did not change.
The fee to file a case in circuit court has increased 18 percent to $301 from $256.
Mankin noted "these are lean, mean times" economically, and expressed the hope that "once the economy flips around, they might even consider reducing fees."
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Report of the United Nations Human Rights Council Special Rapporteur on extrajudicial, summary or arbitrary executions
Scott Horton is a New York attorney known for his work in human rights law and the law of armed conflict, as well as emerging markets and international law. In April 2007, he joined Harper's Magazine as a legal affairs and national security contributor, and he currently authors the No Comment blog at Harper's Online.
A friend of his, Philip Alston, the U.N. Special Rapporteur on Extrajudicial Killings, has completed his study mission to the U.S. (see editorial below).
He picked out two states for closer study: Alabama and Texas. His comments about Alabama are of particular interest. He says the state has an extraordinarily politicized judiciary and he critiques the stomach-turning way in which death penalty cases are handled as a sort of public affairs spectacle in which the politico-judges strut their virility. Most of his team had the same reaction from their trip to Montgomery--they could hardly believe this was the United States. It was more like some banana republic; indeed, even Texas looked pretty good by comparison.
Alabama on the world stage – [Editorial]
The Birmingham News
July 03, 2008
THE ISSUE: The United Nations' look at Alabama's death penalty highlights unsavory facts, and our state's blithe acceptance of them.
If the report were aimed at some backwater on the other side of the globe, perhaps our reaction would be different.
We'd read: "Government officials seem strikingly indifferent to the risk of executing innocent people." And, surely, we'd be at least a little outraged.
But this damning assessment isn't about some place across the world. It's about Alabama.
It's included in a report made Monday to the United Nations.
Philip Alston, a law professor who reports to the U.N. on such things as arbitrary executions, looked at two of America's death penalty leaders, Texas and Alabama, and found similar problems. But at least he found "significant recognition" in Texas that changes are needed.
Not so in Alabama. Alston found our government officials were maddeningly willing to ignore weaknesses in the justice system, even those that could end with the wrong person being put to death for a crime.
"It is entirely possible that Alabama has already executed innocent people, but officials would rather deny than confront flaws in the criminal justice system," Alston wrote.
State leaders' stubborn refusal to "engage with the facts" on this issue should not, alas, come as a bitter shock. For years, Alabama's elected officials have refused to address obvious problems with the death penalty, despite a growing body of evidence that the criminal justice system is not as infallible as many assumed it to be. DNA exonerations alone have called into question the reliability of everything from eyewitnesses and jailhouse snitches to confessions.
In Alston's report, two particular problems in Texas and Alabama were cited:
Shoddy systems for providing criminal defense lawyers for those accused of death penalty crimes. This is a problem area Alston said even Alabama officials acknowledge. Yet, in Alabama as in Texas, he said, "money-saving half-measures are being discussed when what is needed are statewide, well-funded, independent public defender services."
Elected judges who may feel pressure to impose and uphold death sentences. In Alabama, the concern is even greater because elected judges hold the power to inflict death sentences even when a jury advises against it. "When judges override jury verdicts, it is nearly always to increase the sentence to death rather than to decrease it to life, and a significant proportion of those on Death Row would not be there if jury verdicts were respected," Alston wrote.
Those are real problems, and they work to the detriment of justice in Alabama.
Alston said both states should study the issues and institute reforms. Alabama, he said, can draw on the findings of a recent review by the American Bar Association of the state's death penalty practices.
More broadly, Alston argued that Congress, rather than trying to speed executions, should pass laws giving federal courts more leeway to hear death penalty appeals.
Amen on all counts. Alston, a professor at New York University School of Law, didn't tackle this report from a perspective of doing away with the death penalty. His report was designed to see how well the world's understanding about justice and due process is reflected in two of the nation's most active death chambers.
The picture isn't pretty. Alabama, which has the highest per-capita rate of executions, desperately needs to ensure that the ultimate punishment is imposed fairly and accurately.
But that's hard to do when our leaders either won't admit there's a problem or just don't care.
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Kentucky public defenders file suit against state
Business First of Louisville (KY)
July 1, 2008
The Kentucky Department of Public Advocacy, which provides indigent clients with criminal defense attorneys, and the Jefferson County Public Defender Corp. have filed suit in Franklin Circuit Court over the lack of funding for poor clients.
The agencies sued the state on Monday, the day before a new fiscal year began, and the state's budget cuts for the department went into effect.
Kentucky's budget for the department for fiscal 2008-09 is $37.8 million, a $2.3 million cut from last year, which the department says will lead to a reduction in staffing by as many as 75 people, including 60 trial attorneys.
The department and the corporation want a judge to declare that public defenders may decline to represent a client if they have too many clients to adequately represent them all.
They also want a declaration that when this happens, the court must appoint a qualified attorney to represent the client and force the state to pay the attorney for his representation.
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