The weekend edition of USA Today leads with a story on the sanctions law schools are facing based upon poor bar passage rates. The ABA will convene a conference to require accredited schools to ensure that at least 75% of graduates pass the bar within two years. Right now 75% of student must pass the bar within five years of graduating. The article point out that, because of various loopholes within ABA standards, schools with passages rates as low as 50% are not being sanctioned. The article includes a searchable index of bar passage rates for all law schools in the nation.

Where does the problem originate? It has long been a reality that there are too many people with law degrees chasing too few jobs. But that reality became even more dire in the mid-2000s when the legal industry suffered from the economic collapse. As law school admissions declined, law schools became less selective, to the tune of admitting students with little hope of passing the bar. The ABA has been slow to respond.

As law school graduates are finding the bar impossible to pass, student loans are coming due. And, where law graduates have previously struggled to find a job, they are now struggling to earn a license to even look for a job.

The cynical side of me doesn’t envision ABA standards to actually tighten given that law schools have a financial incentive to do what it takes to keep tuition dollars coming.

At yesterday’s GACDL Winter Seminar, Dean Strang spoke, not so much on Making a Murderer but on systemic failures of the criminal justice system that are on display in the documentary series. Those issues include poverty, the fact that the treatment of juveniles has not caught up with the research on brain development, and issue with the media.

However, my takeaway was when Dean spoke about social media. When asked about media attention, he revealed that he has no social media presence. A shy person, he pointed out that he doesn’t always feel particularly social and that he sees no real need to “mediate” some sort of online social presence.

Without social media, he cannot be harassed on it. And he reports having perhaps ten uncomfortable moments since Netflix premiered the documentary (versus many death threats while the trial was going on). But there’s an even bigger lesson.

Cal Newport may well be right when he says that social media is not at all crucial to career success. It turns out that the lack of Facebook, Twitter, or Instagram isn’t a hindrance from becoming well known and respected all over the world.

The New York Times ran an article this week about a lawyer in Galveston, Texas, who was penalized by a judge for working took hard on his cases. The matter is the subject of a Federal lawsuit. The lawyer was appointed by the judge to represent a man charged with breaking into a car. The defendant faced a year in jail. After the lawyer did a rigorous investigation, the case was reduced to a misdemeanor. When the lawyer submitted his bill for the work on his case, the judge cut his bill more than in half. The lawyer appealed the cut in his bill, and the amount was sustained. Over time, however, the lawyers stopped getting court appointments. And he was removed from some of his cases.

The practice of cutting the bills of court-appointed lawyers is so common that lawyers pretty much take it  for granted. The Times article underscores some of the systemic issues in the court appointment system. In a 2011 study, the RAND Corporation found that indigent clients fared better when they were represented by a lawyer from an independent public defender organization rather than a court-appointed lawyer. The conviction rate was 19% lower. The chances of a life sentence were reduced by 62%. And the expected length of sentence was 24% shorter.  According to the study, “judges have incentives to appoint counsel who file fewer pretrial motions, ask fewer question during voir dire, raise fewer objections, and present fewer witnesses.”

It’s a fairly open secret that bills are often cut by judges. It can be difficult to secure funding for experts and investigators on cases on appointed cases. And yet, as private counsel, the biases are hard to see. Generally, I find that judges enjoy a rigorous motions practice in my cases. But I’m not before any particularl judge every day. Perhaps if I were, all of the things I do would be perceived as a docket-clogging nuisance.

The headline of the article is “His Clients Weren’t Complaining But the Judge Said This Lawyer Worked Too Hard.” And why would a client complain about your hard work? When you are retained, you have an incentive to work hard. The person you represent and the person who is paying you is the same person. And your interests are aligned with one another. In the court appointed system, the person paying you is not the person you are helping. And sometimes the incentives can pull the lawyer in alternate directions. This scenario has played itself out with the situation in Galveston.

I can recall my first years of practice when my local county had a court appointed system. I would come to Magistrate Court when the  judge appointed lawyers. I’d get the form, interview the clients, interview the arresting officer, then do a  bond hearing. And I would walk out with three or four new clients. I took for granted that the judge would ultiamtely cut my bill. But I didn’t much care. I had no name or presence. And I knew that doing a great job for these clients was the best way to become known. Eventually, I quit doing appointed cases. But those appointed cases were my start. So, I did not particularly care if my bill was cut. I saw the experience as an extension of law school. If it were medicine, that experience was my residency.

However, most of the lawyers who were there hanging out with me on those days were not young lawyers trying to prove themselves. Many of them were lawyers in their 60s who were there to try to make ends meet. I’m pretty sure that the clients who had those lawyers had a bumpy ride. And, for that reason, it is good that we moved to a state-wide indigent defense system. The Time article doesn’t reveal anything new. It reveals a perennial problem.

The Georgia Association of Criminal Defense Lawyers has a new podcast up. In episode 1, I interview criminal defense attorney and author Jason Sheffield about his new novel. But we get into some other topics such as attorney-client relationships, law practice management, and the good and bad of law school education in America. This was a fun interview. And I think you will enjoy it, too.

We have another episode recorded and in production

The podcast is available on iTunes and Soundcloud. Please go to iTunes and leave us a comment or a rating. And please reach out to me to suggest a guest for an upcoming show.

In the wake of recent stories in the Washington Post where women have accused Republican Senate candidate Roy Moore of inappropriate sexual contact with them when they were teens and when Mr. Moore was in his 30s, there has been much discussion of the legal concepts of “innocent until proven guilty” and “proof beyond a reaonsable doubt.” A popular refrain from the right is that it is unfair for Mr. Moore to be evaluated as an unfit candidate for Senate when he has not been confronted by his accusers in court and where a jury has not weighed in on guilt beyond a reasonable doubt. This is not a policital post. If it were, I would discuss how odd it is to hear folks with certain political and religious leanings suddenly embracing core civil liberties concepts. And I would express my hope that their sudden interest in these concepts will remain with them when the accused is not a Republican candidate for the United States Senate.

What I would like to do, instead, is talk a bit more about where proof beyond a reasonable doubt and the presumption of innocence matter and where they don’t. I offer this perspective from having represented folks for years who are accused and who have been convicted crimes.

Proof beyond a reasonable doubt is necessary to overcome a legal presumption of innocence where a person has been formally accused of a crime and is facing trial for that crime in court. And, beyond that limited space, those concepts mean very little.

The overwhelming number of people accused of crimes do not wish for the opportunity to make a prosecutor prove their guilt beyond reasonable doubt. They would rather forego that opportunity in favor of a dismissal of charges, a plea to a lesser offense, a deal that results in no record of a conviction, or even an admission of guilt in exchange for probation. But the arena of proof beyond a reasonable doubt is a terrifying one. I suspect that the candidate, himself, and his followers would wish to forego the opportunity. That whole system, by the way, comes with some major flaws and a whole bunch of risk. We lawyers go to classes and read books to help us use marketing principles to influence juror behavior — both sides do it. Proof beyond a reasonable doubt and presumption of innocence are patriotic concepts that we run to when we feel an affinity for the accused. But the reality of all that is very messy.

Where else does the presumption of innocence and proof beyond a reasonable doubt matter beyond a criminal court? I am straining to think of a place outside of court where it actually matters. Consider the collateral consequence of being merely accused of a crime or of working out a case short of a pronouncement of guilt.

  • For employment purposes, a mere arrest may be sufficient for termination. This is particularly the case in employment at will states. I’ve had this discussion with many folks accused of crimes. And vast numbers of employers do not apply anything close to a beyond a reasonable doubt standard.
  • Licensing and Immigration. Many States offer deferred adjudication and dismissal opportunities such as Georgia’s First Offender Program. In the eyes of the criminal justice system, there is no conviction beyond a reasonable doubt. Indeed, the accused stands legally acquitted. Immigration will view the disposition as a conviction as will many licensing agencies for such things as real estate, insurance, law, and teaching.
  • Newspaper Articles and Candidate Evaluation. If proof beyond a reasonable doubt were the standard to run a news article, then there would not be much news being produced. Different papers have different standards for what it takes to substantiate a claim. Check out All the President’s Men to get a sense for what it takes (or once took) to run an expose in the Washington Post. Alas, voters are left to vet candidates for political office without the benefit of a criminal jury deciding whether something actually happened. And we can do that short of a jury trial on matters of character.

We make choices every day based upon truths derived other than by a criminal jury under a proof beyond a reasonable doubt standard. And many peoples lives turn upon an accusation of committing an act that would be a crime but where the claim is not tested by a jury. I’m not sure that we should give candidates a pass just because a claim hasn’t been tested by a jury. If that was the requirement, I’m not sure that we would have a way to choose. Or, in the alternative, many candidates would be getting charged with crimes for political purposes.

Do I wish the world worked differently? When I put on my criminal defense hat, the answer is yes. I have had many tearful meetings in my office with people whose lives are turned upside down by a criminal accusation who find that, after we win the court case, it is still very much upside down. That is how things work. It has been that way for a long time. Alas, there is not a Republican candidate for Senate loophole for any of it.

I make no judgment here about whether the Worth County Sheriff is a good man, a good sheriff, or whether it was a good idea to lock down a high school and conduct a massive drug search of the student body without probable cause (he sounds like he has poor judgment). I write about whether he is guilty of obstruction for what he did to stop the GBI from interrogating his son. Based on what I read so far, I’d take his case to trial.

The Sheriff’s son was arrested for possession of marijuana with intent to distribute and criminal trespass. The young man, who was seventeen years old at the time, was being questioned at the Worth County Jail when the Sheriff and his wife (an employee of the Sheriff’s Department) burst into a room where the boy was being interrogated to advise him to invoke his right to remain silent. At this point, the GBI agents ceased the interview.

Under Georgia law,  “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Yet, for a youthful suspect, the absence or presence of a parent is a factor for voluntariness. And the young man had a right to remain silent (I bet the agents read to the young man from a form that said he had a right to remain silent). If a lawyer had been present, a lawyer would likely have advised him to remain silent. Would an attorney, giving the young man the exact same advice, be guilty of obstruction? Or, had the sheriff told his son not to go to an interview, would he be guilty of obstruction? What is different about these facts?

Finally, the fact that the agents chose to cease the interview makes the whole thing an inchoate act. We really do not know whether the young man would have taken dad’s advice. It may well be that the interview would have run its course. I wonder if the attorney general will seriously charge the Sheriff with criminal attempt to obstruct an officer.

Also, does the presence at the Worth County Jail make the difference? Could GBI agents come to the sheriff’s home, enter the son’s room and interview him? If so, would the same interruption be obstruction?

It is not as if the Sheriff ran in and tackled the agents to stop the interview. Here, the sheriff came inside a room at his sheriff’s department and gave his son a solid piece of advice that would be perfectly legal for me to give him as an attorney. Indeed, it is my job to “obstruct” interrogations per the Fifth and Sixth Amendment to the United States Constitution. How is it a crime for the Sheriff to do the same thing?

Irma has been an adventure. It was an adventure that started last Friday when I drove down to Mitchell County, Georgia (about as far Southwest as you can go in the state and not be in Florida or Alabama). I drove down to see a habeas client for final preparations for what would have been a habeas corpus hearing in that county this morning. On the way south on the interstate were drivers headed out of Florida about driving about about 10 miles per hour. So, I saw my client and headed back north via backroads. I received an email about the time I arrived back that there would be no court in Mitchell County on Tuesday due to the hurricane. Mitchell was my only court appearance this week.

Other colleagues were not so lucky. Eventually most of the courts were canceled for Monday and Tuesday. But what I noticed was a lack of any kind of uniform coherent way to know. In one court, some of the judges canceled but others were holding out. And when the announcements went out, there was no system. In some instances, the president of the local bar broke the news. In others, there was an announcement on the Court’s website. Some courts, though, either have no website or a very bare bones one. And my colleagues who had administrative hearings were struggling even more. I saw no end of email, group texts, tweets, Facebook posts, and instagram posts from lawyers trying to figure out what to do. And for every lawyer wondering what to do, there were witnesses, experts, court reporters, and staff trying to figure out what they should do with their time.

Georgia has almost 200 counties, each function in their own little world. And in many of those counties there are individual judges who function in their own sub-kingdom.

As we clean up tree limbs and wait for utilities to come back on, we should take stock at how poorly organized out courts are in announcing cancelations for inclement weather. And perhaps now would be a good time to develop a system or centralized place to turn for information so that we are not trying to tune in to the grapevine to figure out. Why would we worry on Sunday night as Irma was inching its way toward us? Because every lawyer has appropriate anxiety regarding that one mercurial judge we know who might Order us to appear on penalty of contempt even if the route to court were paved through three funnel clouds. With a uniform system, we wouldn’t need to guess.

IMG_0018Robert Mueller recently made a serious move. He brought in an appellate guy. Michael Dreeben has argued 100 cases in the United States Supreme Court and has been with the Solicitor General’s office since 1988. The move indicated, even to the people at Fox News, that things are about to get serious. This investigation now has an Oceans 11 feel to it.

No matter what your politics might be, there is a lesson to be learned here. If you are serious about your upcoming trial, adding an appellate person to your team indicates that things are about to get real. It will help you preserve a record for appeal. And a solid motions practice often creates better plea offers.

There has been much ado about a controversy at Duke Divinity School. I will leave aside, for purposes of this blog the elements of race, gender and politics. Those articles and blog posts are being written. For a few paragraphs here, I want to discuss this controversy as an opportunity for a practice pointer when it comes to sentencing or any other presentation you might wish to bring to a judge that is discretionary in nature.

The controversy, in summary is this. A Duke Divinity School professor received a mass email about a two day racial sensitivity training. From what I can tell, the training was not mandatory. There was a link to click to enroll, and space was limited. The professor replied to the entire faculty that the seminar would be a waste of time to attend. I don’t know any of the actors beyond reading their emails. But it appears that the professor was more of a curmudgeon than a bigot. However, he chose to touch the third rail of campus politics — identity politics. And things quickly spiraled downhill. And he has now resigned. The controversy has occupied much faculty and student attention. along the way. And now the controversy has become fodder for conservative blogs and periodicals.

The professor’s email, the one that began the whole thing, is worth quoting in its entirety:

Dear Faculty Colleagues,

I’m responding to Thea’s exhortation that we should attend the Racial Equity Institute Phase 1 Training scheduled for 4-5 March. In her message she made her ideological commitments clear. I’ll do the same, in the interests of free exchange.

I exhort you not to attend this training. Don’t lay waste your time by doing so. It’ll be, I predict with confidence, intellectually flaccid: there’ll be bromides, clichés, and amen-corner rah-rahs in plenty. When (if) it gets beyond that, its illiberal roots and totalitarian tendencies will show. Events of this sort are definitively anti-intellectual. (Re)trainings of intellectuals by bureaucrats and apparatchiks have a long and ignoble history; I hope you’ll keep that history in mind as you think about this instance.

We here at Duke Divinity have a mission. Such things as this training are at best a distraction from it and at worst inimical to it. Our mission is to thnk, read, write, and teach about the triune Lord of Christian confession. This is a hard thing. Each of us should be tense with the effort of it, thrumming like a tautly triple-woven steel thread with the work of it, consumed by the fire of it, ever eager for more of it. We have neither time nor resources to waste. This training is a waste. Please, ignore it. Keep your eyes on the prize.

He may actually have a point. An argument could be made the he was right. And, giving him the benefit of the doubt, he sought to challenge his colleague to engage in a dialogue about race and gender in a more rigorous way. But surely he knew the temperature in the room. His message, in its particular form, was likely not going to move the ball down the field.

I am reminded of the task of preparing witnesses to testify at a sentencing hearing or at a motion to terminate probation. Or I am reminded of what it is like to collect letters on my client’s behalf for the parole board.

The people who will offer their testimony are deeply suspicious and (very often justifiably) distrustful of the judge, DA, law enforcement, and the judicial system as a whole. And they see their moment on stage as a time to stand up and vent that frustration or speak out about what they perceive to be right. In their mind, it is time to take a noble stand.

And in those instances, I have to remind the witness — “is this a hill that you are prepared to die to defend?” In other words, I may tell the client’s mom or wife, you could use your moments with the judge either to (1) inform him that he is biased in favor of the state and does not know how to run a courtroom fairly; or (2) persuade the judge to let my client out of prison. But the witness cannot do both.

Sometimes it may be better to role your eyes and delete an email instead of using a mass email situation to make a point. It may be better to raise the level of conversation over time than to use the medium of mass email to tell your colleagues that the training is a waste of time. Some hills are worth dying to defend (when you know that you surely will die) and others are not. Of course, if we do not get the result we wanted, the witness is often resentful that we did not take the stand. But, I always think, we chose to defend the right hill even if our efforts in that regard were futile.

participation.jpg~c200Awards are catnip for lawyers. We like praise. And unless you’re a prosecutor or civil defense attorney, you do not often get it from judges or appellate courts. And, even when you win the case, you can be hard pressed to receive it from clients. And yet we lawyers hold ourselves in very high regard.

So, there is an industry out there that exploits the lawyer mindset. We shall call it the Lawyer Award Industrial Complex. We must be careful in discussing the Lawyer Award Industrial Complex to our fellow lawyers, particularly after they have been named as a recipient of a lawyer award. We are often blissfully unaware of the workings of the lawyer award industry, and our egos are fragile. Yes, Virginia there is a Santa Claus. And, yes, R. Rex Smith, III, you are, indeed, the most distinguished practitioner of real estate closings in the entire Southeast for this decade. The award proves it.

If you do not yet know what I am talking about, there are whole companies out there that exist to award lawyers. I could not possibly name them all. The industry leader is Super Lawyers. There is also Best Lawyers. Every year or so, I receive a letter in the mail notifying me that I have been named to some sort of list. I cannot remember the name of it, but it is out of Dothan, Alabama, which I was unaware served as any sort of headquarters of a lawyer hall of fame. For a Georgian, “having arrived” in Dothan has generally meant that you are getting closer to Panama City.

Once you are the recipient of a lawyer award, you wait for the other shoe to drop. Sometimes, the shoe is that you must pay the award company to have your name included in their directory. Or the shoe is that your name will go on the directory/magazine/brochure, but in tiny letters you can only see with an electron microscope. But you can pay to have your name printed bigger in that publication, all the way to a full-page ad or the cover. And there are other things you can purchase. They will sell you certificates and lacquered plaques for your waiting room or the “love me” wall of your office just behind the high backed leather chair.

I was recently in court where a judge was hearing habeas matters. And a trial lawyer was on the stand being questioned by the habeas lawyer on an ineffective assistance of counsel claim. The Assistant Attorney General then had the lawyer on cross. And the AAG’s first question to rehabilitate the lawyer on cross was “Isn’t it true that you’re a Super Lawyer?” I almost spit the water I was drinking out in a South Georgia courtroom as I thought “is that all you got?”

Now to my story. Yesterday I learned of a more subtle entrant to the Lawyer Award Industrial Complex. A publication that I read and respect notified me that I had received an award and would be honored at an upcoming dinner at a downtown Atlanta hotel. If you know me and have read what I regularly write here, you will know that I am often skeptical and always deeply neurotic (in a charming way). I emailed a reporter at the publication to ask if this was all legit. Some lawyers I respect were also named, but then there were mainly big Atlanta law firm names I recognized. Though I did not know the names of the individual recipients who were going to receive awards. I was re-assured in response that this was an honor for my outstanding leadership and results from 2016. I ran a marathon in 2016. But otherwise 2016 feels to me in retrospect like a fairly ordinary year. But this newspaper says that it was an extraordinary year. So, I declared it also to be so.

Then today I received an email. While my ticket to attend the event where I am to be honored is free, it will cost $650 ($650!) for any guest I would like to bring with me. I thought that a $650 plate of food also included the purchase of a political candidate.Or for a cool few thousand bucks I can purchase a whole table. And virtually everything else about the event is for sale. I can pay to give introductory remarks, to have my name on the napkins, or anything else one might imagine.

The other shoe dropped. Congratulations to me.