August 2014

According to the American Bar Association Journal, public schools nationwide are backing down from entrenched zero-tolerance policies. While public school administrators may sincerely like to move toward a system where they can exercise discretion in the handling of serious disciplinary cases, I don’t foresee real change on the horizon because funding systems rewards expulsion of the students who get in serious trouble at public schools.

For all of the children I have represented before school tribunals, in appeals to local school boards and to the Georgia Board of Education, I recall receiving one inquiry in my career involving a serious disciplinary matter at a private school. Why is it that public schools have embraced zero tolerance and private schools seem to handle business in a more creative if not retention-oriented manner? My untested hypothesis is that it comes down to incentives.

I have long been a fan of Charlie Munger. In a lecture back in 1995, he spoke about the power of incentives in human misjudgment.  He cites as an example a time when Federal Express employees were paid by the hour. Nothing that the company worked to get packages through night facilities in a timely manner. Then FedEx changed its policy to one where employees were paid per shift. Immediately, the packages were processed in a more efficient manner.

So, here is likely why public schools are very much in the zero tolerance camp. Private schools have an incentive to do everything they can to keep students enrolled. After all, the student, or rather the student’s parents, are the customer. Student retention is customer retention. There is a high cost involved in converting a potential student into an enrolled student, and this cost is much greater in the middle of an academic year when new pupil enrollment is less likely. If a student were expelled from a private school halfway through the year, with expulsion comes the possibility that a tuition payment will no longer be coming to the school. Also, if it is a private school that serves kindergarten through 12th grade, the lost tuition from that student is whatever that student is being charged for tuition multiplied by the number of years he has remaining in primary or secondary education (with an assumption that tuition rates will rise over that time). The school has financial reasons to retain the student and find a creative solution to a disciplinary situation.

By contrast, a public school students is not a customer. A public school student is an expense — a metaphorical line item on the expense side of a budget. Public schools are allotted a set number of dollars at the beginning of the budgetary year. And that budget is set. The reduction in the number of pupils by the number of people who get in serious disciplinary situations is a cost savings. There are many places in the disciplinary process for incentives to play out. The principal takes on the role of prosecutor in the tribunal hearing. The role of judge is played by a disciplinary hearing officer or tribunal panel. However all of these individuals receive salaries from the same school board. They all work for the same agency. Presumably, each player in the tribunal process has a shared financial incentive to drop the student from the roll. 

I have been in tribunals, however, where the incentives worked differently, and I’ve come out ahead.  For instance, if the student has a good academic track record and tests well, she is likely to test well on future standardized tests. If the student will be tested again, and the test result comprises part of a performance metric for the school, then there is an incentive to keep the student in the data pool.

If the student is a star athlete or does something else that brings the school positive attention, then there may also be an incentive to keep the student around. If the student helps an athletic team perform well, the student’s continued enrollment may have in impact on ticket sales, concession sales, the ability to attract better coaches, etc.

A student who tests poorly, who is average in terms of extracurriculars, or who has an aptitude in something that makes little difference to the school’s image (say, a moderately above average member of the chess team), is fairly low on the asset side of the equation and fairly high in the liability column. This student likely has a losing tribunal ahead of him. Bring in all the pastors, karate teachers, aunts and uncles you want, the mitigation may not be the kind of mitigation that matters.

Students who are likely to drive the school’s overall standardized test results down may be better off, from the school’s perspective, out of the data pool. And a student who requires extra resources, such as special education services, is even more of a liability. Such a student would be well advised to mind her p’s and q’s

When looking at zero tolerance policies and why they exist in the public school setting, the reason may not be that administrators are myopic. It may well be that they are operating under a set of incentives either at the conscious and subconscious level.

If school boards or legislators are interested in putting an end to zero tolerance policies, then perhaps a reform might be for the State to fund a centralized school tribunal office or administer tribunal hearings through the Office of Administrative hearings. Or perhaps the neighboring school district could supply tribunal hearing officers. Of course, in that situation there could be an incentive to keep marginal students enrolled to the extent that the neighboring school district is competing in the athletic arena or for scarce resources that are rewarded through the result of test scores.

USA Today reports that a petition was submitted to the Obama administration advocating a policy that would require law enforcement to be equipped with a camera to record any interaction with the public. I suppose it would be something akin to a mandatory Google glass at all times for law enforcement. That sounds awfully good on paper. Certainly, the technology exists for law enforcement to audiotape if not video just about everything. However, such policy would not be a cure-all that it would sound like. Law enforcement already have the ability to record any conversation that takes place with a suspect or witness. Anybody with a phone, particularly a smart phone, has the ability to record a conversation practically any time. And many police cars are equipped with a camera that a police officer can manually initiate or which can initiate within seconds of the activation of emergency lights. Most police cars come equipped with a video camera to record interactions with the public after a traffic stop. The backseat of most police cars has recording equipment, and most police officers are equipped with the body might to record any interaction with the public.

And yet, I still encounter situations where law enforcement did not, for one reason or another, record what is reported to be an incriminating interrogation or, in the traffic stop situation, egregious driving behavior. In those situations, the police officer explains that he found himself somehow without the ability to record an event. Or the camera was out for repair. And when the recording equipment was not working so well, law enforcement agents report that my clients really began to incriminate themselves. It strains credulity to believe that there are so many mishaps with recording equipment in criminal investigations. But there it is.

And most of the judges before whom I appear are willing to believe this reported series of unfortunate events with law enforcement and recording technology. So for all of those proponents of body cameras, I offer countless examples from my own practice where the technology was in place but ceased to work somehow at the moment when it was needed the most.

Part of the job I love the most is travel. I don’t mean exotic glamour travel. When I say travel, I’m talking about prison visits. And when I talk about prison visits, I’m talking about South Georgia (and sometimes Northwest Georgia). When I come back to the office, I can’t help but tell people about the restaurants and little oddities along the way. Those stories either earn me stares or the occasional interested exclamation of, “Tell me more. I’ll definitely check that place out if I ever find myself taking I-75 to Macon, then taking I-16 for 60 miles, exiting, driving on a two-lane road for an hour and a half, and I need a great lunch spot in a place that isn’t on the way to any place in particular.”

It has been suggested that I write a guidebook for habeas corpus attorneys for the best places to eat near Georgia prisons. Of course, I’m not sure that a publisher would agree to take on a book with an audience of about three people. That said, I do have some favorites. And maybe I can begin the first draft of that book here.

The Drug Store. Hands down, the very best prison visit food ever can be found at The Drug Store in downtown Reidsville, Georgia. That is actually the name of the drug store. It has an old school diner in the back. After a morning spent slugging it out with the Atty. Gen. or going through security, The Drug Store is a good way to return to the outside. The front of the place sells all of the things that women might give each other a bridal showers. There is lots of upscale University of Georgia merchandise, different bags and gifts, and other sundry that one might expect to find in a small town drugstore. But in the back at the grill you will find the best burger that you will find anywhere. The burgers there are absolutely huge. Note, do not go to the drugstore if you have to go back to court for further habeas corpus proceedings in the afternoon. You will fall asleep.

Zunzi’s. If you are lucky enough to have a client house at Coastal State Prison in Savannah, Georgia, then it is worth the trip on into town for lunch here. This place doesn’t look like much, but it sells pretty fantastic African food delivered to you in a Styrofoam box. Don’t miss the African Sweet Tea. This place is favored by Savannah College of Art and Design students and one hungry appellate and post-conviction lawyer. It is well worth the few extra miles down Interstate 16.

Paradise Garden. Now, to the other side of the state. This is not a restaurant recommendation as much as it is something to see. If you go to Hays State Prison, then you must go see the previous home and now Art Museum associated with primitive artist, Howard Finster. Weird and old time religious at the same time and utterly cool.

Yoder’s. This is a can’t miss restaurant for a visit to Macon State Prison in Oglethorpe/Montezuma, Georgia. It is a Mennonite restaurant serving up fine repast. Try to get there before the buses hauling elderly Baptist groups arrive. Even if you do, get in line. It’s worth the wait. Great grub, low prices, and a sincere waitstaff in period costume.

Cracker Barrel and Subway. I don’t love it, but if your prison visit doesn’t yield a great stop like some of the ones listed above, then you will end up at a Subway or Cracker Barrel. Either that or you will end up at that ubiquitous stable of small-town breakfast, lunch, dinner, snacks that is the downtown Dairy Queen. If you’ve really taken a drubbing from the Atty. Gen., a dipped cone on your way back north up interstate I 16 can make things seem somehow better. Two bites into this chocolate and vanilla goodness, and you’ll be saying to yourself, “that wasn’t so bad. After all, the judge didn’t say no. He wants to read a brief, and I just know I can turn him around with that brief.”

There are other haunts that I love on prison visits and habeas corpus trips. Perhaps I will post others on a slow blog day. But these are my absolute top. Feel free to post any suggestions you have for prison visit gems.

 

A lawyer wrote me yesterday with an interesting question. The lawyer is writing a Brief of Appellant where the client was convicted of child molestation. The lawyer’s question was whether it was proper to use the victim’s name in the Brief. Are there any rules or traditions that govern the use of the victim’s name?

Of course, how you label or name people is an important strategic consideration no matter what the age of your prosecuting witness. It is also a strategic consideration when you are referencing the judge in the lower court, the prosecutor, witnesses and other components of your appellate cast of characters. The government thinks about this stuff, also. It’s why your client is called “the defendant” before the lower court and the “appellant” in the Court of Appeals. It’s why you call the person that the State calls “the victim” the “complaining witness” or the “prosecuting witness.”

Most of the time, the trial court is the “court below.” A few years ago, the judge in “the court below” had been removed from office by the JQC, the agency that governs judicial ethics. The whole matter became a public spectacle. By the time that case reached the appellate courts, the lower court was changed to the judge’s name, a name I used throughout the brief. Sometimes, my opponent is the “appellee,” sometimes my opponent is “the State” or “the Government.” Recently, in a case where a DA had met a similar fate to the judge in the JQC matter, the State had a name, too.

When it comes to minors, it’s generally best to be classy and respectful. My default is to use initials. Although how you reference the minor is really a matter of preference as long as the name of the witness is listed in the indictment and is referenced in the transcript. The cat is already out of the bag, so to speak. If the complaining witness is a very young child, and the issue is that she was victimized by folks who influenced her memory and testimony for their own ends, then initials are the way to go. In that instance, perhaps the word “victim” is okay, too. She was victimized by those who twisted her words or memory to lie about  your client. If the complaining witness is older, perhaps a teen, and your defense is that she has fabricated a story for some selfish reason, then perhaps it would be okay to use the name. If you want to emphasize maturity and sophistication, then Ms. Jones or Ms. Smith is the way to go. A “Ms.” sounds older than a first name, after all, and much older than a Miss. But even then, I’d use the same sparingly and for those witnesses with the most serious of palpable credibility problems.

There’s no real rule here. What do you do in these situations? Would love to see some comments in this regard.