The Most Conservative Court in Decades
With the United States Supreme Court under Chief Justice John Roberts ending its fifth term, The New York Times has broken down the ideological shifts of the court over the past 60 or so years. Their conclusion? The Roberts court is the most conservative in decades. While it may not be as right-leaning as it was under Roberts’ predecessor, William Rehnquist, the decisions rendered by the Roberts court—such as amending campaign finance laws—have been markedly conservative. A defining moment for the Roberts court that pushed it to the right was the confirmation of Justice Samuel Alito. The Times projects that if the first five years of the court are any indication of the future, it will likely expand the scope of the Second Amendment, further allow unions and corporations to influence elections, and curb abortion rights.
Read it at The New York Times

Rough justice: America locks up too many people, some for acts that should not even be criminal”

The title of this post is the headline of this new commentary in The Economist. Here is how it gets started:

In 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

The linked briefing is also a must-read, and it is headlined “Too many laws, too many prisoners: Never in the civilised world have so many been locked up for so little.”

When Do a Criminal Defendant’s Compulsory Process/Due Process/Confrontation Rights Trump Evidentiary Privileges?
Eugene Volokh • July 16, 2010 6:50 pm

This is a difficult and recurring question, and arises with regard to a wide range of privileges — lawyer-client, psychotherapist-patient, clergy-penitent, and more. It is particularly difficult when the conflict is with the constitutionally secured privilege against self-incrimination: A defendant argues that to properly defend himself he needs to have someone’s testimony (often a coconspirator’s), but that potential witness refuses to testify for fear of self-incrimination. And similar issues also arise with regard to so-called “rape shield” laws, which preclude the introduction of some kinds of evidence of the victim’s past sexual conduct.

For the most recent example of this, involving the relatively new “victim-advocate” privilege (which is intended as a variant of the psychotherapist-patient privilege for crime victims who go to specialized “victim advocate’ services rather than to traditional psychotherapists), see In re Subpoena to Crisis Connection, Inc. (Ind. Ct. App. July 15). The Indiana court canvasses the precedents from other states (which point in different directions), and holds that the Indiana victim-advocate privilege may have to yield to the defendant’s rights:
In the Indiana case, the trial court has already found that the defendant has met the particularity and materiality criteria, and Crisis Connection has not disputed those findings. The interest in privacy asserted by Crisis Connection, while important, is not strong enough to bar an in camera review of its records. Requiring defendants to meet the three-step test before obtaining an in camera review creates the proper balance between a criminal defendant‘s constitutional rights and an alleged victim‘s need for privacy. This approach is consistent with our decisions addressing other privileges and with the better-reasoned opinions of other jurisdictions. Therefore, we affirm the trial court‘s order.

Jurors, Attempts, and Blagojevich

The Wall Street Journal’s article suggests problems with the prosecutor’s case:
But even a host of character flaws may not persuade the jury that Mr. Blagojevich—who faces 24 corruption counts—committed any crime. Legal experts say the government’s case is strong but cite a big caveat: Jurors like completed acts, and most of the plans Mr. Blagojevich allegedly hatched weren’t carried out.
The U.S. Senate seat he is accused of auctioning wasn’t sold. The Chicago newspaper Mr. Blagojevich was said to have strong-armed didn’t fire anyone. The president of the Children’s Memorial Hospital didn’t give Mr Blagojevich the $50,000 campaign contribution he allegedly demanded.
The jurors will be instructed that in the case of conspiracy, intending to commit a crime is enough, said Ronald S. Safer, a former federal prosecutor turned white-collar defense attorney. And they will be told that prosecutors acted when they did to stop a crime wave before it happened.
But Mr. Safer acknowledged it is a lot easier to convict somebody of doing something rather than intending to do something.

Bailey on Domestic Violence and the Criminal Justice System

Kimberly Bailey (Chicago-Kent College of Law) has posted Lost in Translation: Domestic Violence, ‘The Personal is Political’, and the Criminal Justice System (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
Current criminal justice domestic violence policies have been severely criticized by some feminist scholars as undermining victim autonomy. This criticism is puzzling given the fact that these policies were drafted in response to the activism of feminists involved in the women’s liberation movement and that autonomy, or the agency of women, was a key goal of this movement. This apparent paradox can be explained, however, by the fact that activists involved in the early battered women’s movement and actors in the current criminal justice regime speak in two different “languages”. Thus, complete victim autonomy is a concept that got lost in the translation of some of the goals of the early battered women’s movement into criminal justice policy. While this Article acknowledges that victim autonomy is not the chief goal of the criminal justice system, it still urges proponents of current criminal justice policies to take seriously the fact that a high number of victims currently do not want to engage with the criminal justice system. This number is an important metric in analyzing the effectiveness of domestic violence policies. First, it underscores the fact that improvements need to be made in victims’ interactions with the criminal justice system and in the criminal justice system’s response to those victims who do ask for help. Second, it highlights the fact that the criminal justice system is a limited tool in addressing what is a social, political, and economic problem. For this reason, a criminal justice solution should be part of broader domestic violence policies that address the complexity of this issue. The economic disparities that women experience as a class and the intersectionality of race, class, sexuality, and gender are important aspects of a broader approach to the domestic violence problem.

Guest blogger Robert C. Boruchowitz: On Public Defenders and Excessive Caseloads

By Robert C. Boruchowitz, Director of the Defender Initiative and Professor from Practice at Seattle University:
The Florida Court of Appeals this past week reversed a trial court order that would have allowed a public defender to withdraw from a single case because he was not able to work on the case because of his excessive caseload. Florida v. Bowens, No. 3D09-3023 (July 7, 2010).
Even though the lawyer had more than 100 open felony cases and 900 per year, and had done no work on the case, the appellate court found that the defender had not demonstrated prejudice to the client “separate from that which arises out of an excessive caseload” and that by statute, such an argument was not permitted.
The court also found that neither the defender nor the trial court “has demonstrated that there was something substantial or material” that the defender attorney “has or will be compelled to refrain from doing.”
The court wrote that if it upheld the trial court’s order,
all that the PD11 [the Miami-Dade Public Defender] must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights.
This case is disturbing on many levels. The court impliedly did not accept the ethical integrity of a defender lawyer or office that asserts an inability to provide competent representation. It ignored the factual findings of the trial court. And it refused to confront the constitutional implications of a statute that would force a defender to represent a client even when overwhelmed by cases. Instead it kicked the issue up to the state supreme court.
Florida has a statute that provides:
(1)(d) In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely on the inadequacy of funding or excess workload of the public defender.
Fla. Stat. Section 27.5303(1).
The appellate court certified to the state supreme court the question whether the statute violates an indigent client’s right to effective assistance of counsel and is a violation of the separation of powers as legislative interference with the judiciary’s inherent authority to provide counsel and the Supreme Court’s exclusive control over the ethical rules governing lawyer conflicts of interest.
The court should simply have found that the statute is unconstitutional because it requires lawyers to violate their ethical responsibility to provide competent representation and it seeks to prohibit judges from granting appropriate relief to lawyers who are overwhelmed by excessive caseload.
The appellate court also looked the other way in reviewing the trial court’s findings, and did not refer to them specifically. The judge had found that the number of cases assigned to the defender [Mr. Kolsky] “had a detrimental effect on his ability to competently and diligently represent and communicate with all his clients on an individual basis.” Florida v. Bowens, Case No. F090019364,Eleventh Judicial Circuit Court, October 23, 2009. It noted that this begins at arraignment where the defender holds brief conversations, usually not confidential, with clients he is meeting for the first time.
Mr. Kolsky had between 105 and 164 pending felony cases during 2009. In fiscal year 2008-2009, he had handled 736 felony cases in addition to 235 pleas at arraignment. Because of his caseload, he cannot meet with in-custody defendants until two months after arraignment, and then usually only for 30 minutes. The judge found that “The unrebutted testimony is that Kolsky has been able to do virtually nothing” on the case for which he was seeking an order of withdrawal. His only meeting with the client was at arraignment. He had not investigated the case or discussed discovery with his client. The client was facing a possible life sentence as an alleged habitual felony offender.
The trial court in analyzing the statute and a previous court of appeals decision wrote:
[T]here exists a cognizable difference between a withdrawal based solely on workload, and a withdrawal where an individualized showing is made that there is a substantial risk that a defendant’s constitutional rights may be prejudiced as a result of the workload. This distinction allows for judicial relief where prejudice to constitutional rights is adequately demonstrated.
The judge found that given that because of his workload Mr. Kolsky had not been able to investigate the case or file any motions and had had to request a continuance, giving up his client’s speedy trial rights, Mr. Kolsky had made the required individualized showing. The Court of Appeals ignored this finding.
Contrast the Florida court’s approach with that of a trial judge in Mohave County, who after finding that the public defender’s caseload prevented effective assistance of counsel, wrote that in the future, motions to withdraw need not be accompanied by hundreds of pages of exhibits or extensive legal citation, but that its policy would be “to grant motions and sign appropriate Orders based upon the briefest possible reference to this Order, not to exceed one sentence in length.” Arizona v. Lopez et al, Case No. Cr-2007-1544,Mohave County Superior Court, December 17, 2007
The Mohave County judge, having heard a three-hour evidentiary hearing with expert testimony and reviewed many documents, respected the public defender’s integrity in presenting motions to withdraw based on inability to provide effective representation. The Florida Court of Appeals, despite the record its trial court had made after evidentiary hearings and legal argument on three different days, rejected such an approach.
The caseload Mr. Kolsky carries is staggering and unacceptable. The trial judge recognized that and allowed him to withdraw in the single case presented to him. The Florida Court of Appeals had previously required that challenges to a defender’s competency to proceed must be resolved on a case-by-case basis, not by a challenge to the office’s ability as a whole.[1] When the office did present such an individual case challenge and the trial court granted the motion, the Court of Appeals ignored the reality and the denial of rights to Mr. Kolsky’s client.
The Florida Supreme Court should rapidly reverse the Court of Appeals and grant the Miami-Dade Public Defender’s office the relief to which it is entitled in order to represent its clients effectively.
*****

A six-month suspension has been recommended for an Illinois lawyer who repeatedly criticized a judge, calling him, at one point, a “narcissistic, maniacal mental case” during a telephone conversation with the judge and opposing counsel in a family law matter.

Although Melvin Hoffman has practiced for more than 35 years without any prior discipline, he is not a good candidate for probation because he refuses to admit that he was in the wrong and take recommended steps to correct his behavior, says the Review Board of the Illinois Attorney Registration and Disciplinary Commission in a written opinion last week.

Hoffman contended that his constitutional right of free speech allowed him to express his opinion about the judge.