Monday, March 23, 2015

Right to Counsel at Bail Hearing?

This report begins with a discussion on the current state of the law concerning access to counsel for criminal defendants, reminding us that because the law presumes everyone innocent unless proven guilty, the law favors pretrial release. It describes the far-reaching and well-documented adverse effects of denying counsel at the earliest stages of a criminal prosecution, a situation that presents numerous constitutional concerns. Without a lawyer at these preliminary stages to marshal resources and advocate on the accused’s behalf, judges are more likely to order a financial condition on release before trial, which results in low income and poor defendants – who are disproportionately people of color – remaining incarcerated, and for longer periods of time. In addition, without the advice of a lawyer, an unrepresented defendant who is unaware of and untrained in the law may speak or remain silent at a bail hearing to his or her later detriment. Defendants incarcerated from the point of arrest also experience substantial prejudice in their ability to conduct an immediate investigation, prepare for trial and build a defense. Collateral consequences also flow from unnecessary pretrial incarceration: the accused may lose a job, his or her home, and the ability to support loved ones. A lawyer’s effective advocacy is a vital safeguard against bail-setting practices that often are excessive for economically disadvantaged people.
The impact is felt not only by the individual, but by society as a whole. State and local governments needlessly add to the taxpayer’s burden by, prior to trial, incarcerating many individuals who pose no public safety risk, but who were simply unable to effectively advocate for themselves. In short, there is no question that early assignment of counsel not only has a significant and positive impact on individual cases, but also promotes better societal outcomes. Thus, when a poor person about to go before the court for the first hearing after arrest asks, “Don’t I need a lawyer?” the unequivocal answer is “Yes.” 
Although early access to counsel has taken hold in some jurisdictions, too many indigent defendants across the country face the daunting specter of representing themselves when courts fail to appoint counsel and then determine whether an accused will remain free or incarcerated in the days, weeks, or months before trial. Accordingly, this report recognizes that a concerted effort from all branches of government is needed to make the early availability of counsel a reality. The report is intended to inform and guide judges, defenders and prosecutors as they carry out their duties to safeguard the rights found in our Constitution. It is also meant to assist policymakers in developing solutions to the problem of absent counsel in first judicial appearances, and sets out six pragmatic recommendations for the local, state and federal governments to bring the promise of effective counsel at the first judicial bail hearing to fruition.
p. 1.

Wednesday, March 18, 2015

Big-Dollar Judicial Campaigns

Former Alabama Supreme Court Justice Sue Bell Cobb decries the effect of money on judicial campaigns: I Was Alabama's Top Judge. I'm Ashamed by What I Had to Do to Get There. Politico, March/April 2015.

Cobb cites a 2014 report by Emory law professors Joanna Shepherd and Michael S. Kang that found a strong link between campaign spending and ruling against criminal defendants: Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices' Decisions in Criminal Cases.

Cobb is one of four former chief justices of Texas and Alabama who submitted an amicus brief urging the Supreme Court to uphold Florida's rule that bans direct solicitation by judicial candidates. The case is Williams-Yulee v. Florida Bar (docket number 13-1499), which was argued in January. On the other side, the ACLU has an amicus brief arguing that the ban infringes free speech. For much more about the case and the arguments, see SCOTUSblog.

Quality of briefs matters!

A fascinating study of briefs opposing summary judgment in a particular class of employment discrimination cases—a topic with conflicting cases within the circuit—found that a majority omitted available case law that would have countered the defendants' arguments. And it makes a difference: "while bad brief-writers lose summary judgment at a remarkably high rate (86%), good brief-writers do not (42%)."  Scott A. Moss, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs’ Briefs, Its Impact on the Law, and the Market Failure It Reflects, 63 Emory L.J. 59, 65 (2013).

Here's the author's abstract:

For a major field, employment discrimination suffers surprisingly low-quality plaintiffs’ lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for win-loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses.

These findings are puzzling. In a major legal service market, how can clients persistently choose bad lawyers, lawyers persistently perform so poorly, and judicial and ethics authorities tolerate this situation? Answers include poor client information, ethics authorities’ limited ability or will to discipline bad lawyers, and two troubling lawyer behaviors: (1) overoptimistically entering the field without realizing, until suffering losses, that it requires intensive research and writing; and (2) knowingly litigating on the cheap, rather than expending briefing effort to maximize case value, because contingency-paid lawyers may profitably run “mills” and live off quick, small settlements. A survey of the worst brief-writers’ law firms hints that the problem may be a mix of the former (nonspecialists in over their heads) and the latter (knowingly litigating cheaply).

This Article offers the following reforms that, while no cure-all for a problem stemming from stubborn market forces, could help: (1) expanding educational efforts, including law school experiential learning, bar resource-sharing, and bar exam reform; (2) enhancing client access to information on lawyers by liberalizing ethics rules restricting expertise claims and public access to court files; (3) broadening the supply of competent lawyers by liberalizing rules restricting the standing to sue of discrimination “testers” and ethics rules on corporations owning law firms; and (4) toughening ethics enforcement against the worst offenders, who almost all go unpunished now.
There's lots to think about here, from many perspectives: employment discrimination law, civil procedure, access to justice, legal ethics, and (of course) legal research and writing.