John Steele has a characteristically thoughtful Legal Ethics Forum post about the dilemma faced by a criminal defense lawyer who is assigned as "shadow counsel" to a pro se defendant -- in this case Maj. NIdal Malik Hasan, charged with 13 counts of premeditated murder and 32 counts of attempted murder in the 2009 mass killings at Fort Hood -- when the "shadow client" plans to use a legally suspect defense. Hasan apparently is planning to use an "defense of another" defense, the "other" being the Taliban. The appointed counsel are said to believe the defense crosses an ethical line. Steele believes the shadow counsel should set aside their
own views and support Hasan "even if the defense is unpalatable and likely
The defense theory Hasan likes is, apparently, that the shootings at the
military base in Texas were done in defense of the Taliban. It's a
"defense of third party" theory. Presumably it would be an "imperfect
necessity" argument: that the acts were done in the actual but
unreasonable belief that they were necessary. That is neither
justification nor excuse. At best, it's mitigation. But it does give the
accused the chance to speak honestly and openly about why he did what
he did. That is a close analog of the defense that the Unabomber wanted
to raise but was prevented from raising because the federal public
defenders deceived him and then put on another defense. (William
Finnegan's classic article about that case, Defending the Unabomber,
is under a paywall, unfortunately.) It's a reasonably close analogy of
the defense that John Brown wanted to raise. In both the Unabomber and
the John Brown cases, the defense preferred to raise mental health
The U.S. should certainly try to prevent terrorist attacks, and there is a lot that government can and has done since 9/11 to improve security in ways that are totally unobjectionable. But it is not rational to give up massive amounts of privacy and liberty to stay marginally safer from a threat that, however scary, endangers the average American far less than his or her daily commute. In 2011*, 32,367 Americans died in traffic fatalities. Terrorism killed 17 U.S. civilians that year. How many Americans feared dying in their vehicles more than dying in a terrorist attack?
One of the more interesting defenses of PRISM comes from the creator of the acclaimed TV series, The Wire. Writing in his blog The Audacity of Despair (great name), David Simon employs the same hot, hip, urgent style of The Wire to say, in effect, much ado about nothing:
You would think that the government was listening in to the secrets of 200 million Americans from the reaction and the hyperbole being tossed about. And you would think that rather than a legal court order which is an inevitable consequence of legislation that we drafted and passed, something illegal had been discovered to the government’s shame.
Nope. Nothing of the kind. Though apparently, the U.K.’s Guardian, which broke this faux-scandal, is unrelenting in its desire to scale the heights of self-congratulatory hyperbole. Consider this from Glenn Greenwald, the author of the piece: “What this court order does that makes it so striking is that it’s not directed at any individual…it’s collecting the phone records of every single customer of Verizon business and finding out every single call they’ve made…it’s indiscriminate and it’s sweeping.”
Having labored as a police reporter in the days before the Patriot Act, I can assure all there has always been a stage before the wiretap, a preliminary process involving the capture, retention and analysis of raw data. It has been so for decades now in this country. The only thing new here, from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data. But the legal and moral principles? Same old stuff.
A panel of the 9th Circuit heard arguments this week in an class action suit about whether Google's interception of unencrypted WiFi signals as it gather street views for Google Maps violates the federal Wiretap Act. Google says that what it has captured are radio transmissions, exempted from the act. The district court rejected that argument, distinguishing "traditional" radio communications from WiFi. Trial Insider covers the story.
The North Carolina legislature has repealed the Racial Justice Act that allowed death row inmates to have their death sentences converted to life
without parole if they could demonstrate that racial discrimination was
a factor in their trial or sentencing. Since the law was enacted in 2009 more
than 150 death row inmates have filed challenges and four have been successful. Research from Michigan State University College of Law (PDF) has been widely cited as the definitive evidence used in the challenges. The status of the unresolved challenges filed under the act before it was repealed is unclear.
A primary sponsor of the repeal, Sen. Thom Goolsby, told The Daily Tar Heel that the repealed act was “simply an attempt to get people off death row by arguing that the
frequency of the death penalty in one race is more than another. It
doesn’t deal with the word ‘bias’ or ‘discrimination.’ The New York Times criticized the repeal in this editorial.
The pending decision in Shelby County v. Holder challenging the Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act was the subject of a Yale Law Journal Online Symposium, whose essays are summarized in a Balkinization post by University of Texas Law prof Joseph Fishkin:
— Ellen Katz starts things off with a question: will the Court conclude that Section 5 is “A Cure Worse Than the Disease?”
She argues that that would be a mistake, and that reliance on this
analogy is dangerous: it “threatens to leave the underlying condition
unaddressed and Congress without the power to address it.” She argues
that the aspects of Section 5 to which some Justices object are really a
matter of statutory interpretation rather than the statute itself, and
that the right solution here ought to be reinterpretation, not
— Looking ahead, Guy-Uriel Charles and Luis Fuentes-Rohwer argue that it’s time to start “Mapping a Post-Shelby County Contingency Strategy.”
The authors imagine a new regime in which what they call institutional
intermediaries—public-interest groups, advocacy organizations, even
political parties—could potentially take over some important roles that
Section 5 plays today. They describe this “emerging ecosystem” and
imagine changes that could make it more effective.
— Justin Levitt’s essay considers “Section 5 as Simulacrum”:
the imaginary statute the Court appears poised to strike down—a sort
of “editorial cartoon” of the statute—as distinct from the statute that
actually exists. He maps out a number of important dimensions on which
the two differ, from the machinery of the coverage rules to the role
that “racial essentialism and racial entitlements” play in what Section 5
permits or requires.
— My own essay for the symposium focuses on “The Dignity of the South”: the striking claim by the Shelby County
plaintiffs that singling out the covered (mostly Southern) states for
special scrutiny is constitutionally suspect because it violates those
states’ “equal dignity.” I argue that the best way to understand this
claim—which the Civil War ought to have foreclosed—is in the context of
the long and surprisingly robust tradition of Southern and
ex-Confederate arguments that aim to restore the lost dignity of the
South. Along the way the essay discusses Chief Justice Rehnquist the
amateur historian, John C. Calhoun in a toga, and zombies. (Ok, not
really, but sort of.)
Patent troll reform hit the news last week when President Obama proposed a number of administrative measures designed to rein in the practice of buying up patents solely for the purpose of negotiating for licensing deals or court-ordered payouts. See, for example, "Tech Firms Back Obama Patent Move" in the Wall Street Journal.
[A]mong a host of dormant patents, some will be found which contain some new principle . . . which the inventor, however, had failed to render of any use in his own invention. And some other inventor, ignorant that such a principle had been discovered . . . had the genius to render it of great practical value . . . when, lo! the patent-sharks among the legal profession, always on the watch for such cases, go to the first patentee and, for a song, procure an assignment of his useless patent, and at once proceed to levy black-mail upon the inventor of the valuable patent.
Art: Illustration by John Bauer in Walter Stenström's childrens' anthology, Among pixies and trolls, 1915.
LAWPRO, a Canadian insurance company that provides professional
liability insurance to Ontario lawyers, says that the top cause of malpractice litigation is now inadequate investigation or discovery of facts, and that claims based on these errors are much more expensive to defend. Fifteen years ago inadequate investigation or discovery of facts was only the fifth highest cause of a claim. Three practice areas are particularly affected: real estate, plaintiff litigation, and wills and estates.
An article in LAWPRO magazine speculates that the growth of the problem stems from "Blackberry advice" (remember, this is Canada), i.e., "answers without context exchanged between people in a rush."
In Michigan, the conversation in the legal community about lawyers and elections has centered around record-breaking judicial campaign contributions and lack of transparency. Although Michigan has the dubious distinction of achieving national attention in both those areas, at least we have largely had the relative luxury of worrying about the appearance of impropriety and impartiality rather than actual corruption. A recent disbarment in Kentucky shows what it looks like when things really go off the rails. From Kentucky Bar Association v Donald [Champ] A. Maze:
After graduating from law school in 1987, Maze returned home and opened a solo practice in Owingsville, Kentucky. In 1990, Maze was elected as the Bath County Attorney and served three consecutive four-year terms until he was defeated in 2002. In 2006, Maze again ran for Bath County Attorney. The primary election that year, which was set for May 6, was rife with corruption and vote buying. According to the vote buying scheme, voting "assistors" would accompany voters into the voting booth, pay them for their vote, and then direct them to cast their ballot for particular candidates. The presence of the "assistors" was justified by the voter's alleged blindness, illiteracy or inability to operate the voting machine. Maze or others associated with him tried to persuade the Kentucky State Police to intervene but the practice continued. Eventually, Maze paid people involved in the scheme to add his name to the list of candidates for whom people were paid and directed to vote. Maze won the election and took office as Bath County Attorney on January 1, 2007.
Maze was suspended in 2007 after pleading guilty to vote-buying and perjury, but continued to practice. The litany of sins recited in the disbarment order also includes jury-tampering.
The argument of the State of Michigan in the habeas case Metrish v. Lancasterprevailed in a 9-0 opinion authored by Justice Ginsburg last week. Today, the Court delivered a more ambiguous result in another Michigan habeas case, McQuiggin v. Perkins, also authored by Justice Ginsburg. The issues were 1) whether, under the Antiterrorism and Effective Death Penalty Act
of 1996, there is an actual-innocence exception to the requirement that a
petitioner show an extraordinary circumstance that “prevented timely
filing” of a habeas petition, and 2) if so, whether there is an additional
actual-innocence exception to the requirement that a petitioner
demonstrate that “he has been pursuing his rights diligently.” The majority opinion effectively answered a stingy "yes" to the first question, but "not necessarily" to the second. The decision says actual innocence exception only “applies to a severely confined
category” — cases in which no reasonable juror aware of the new evidence
would have voted to convict the defendant. And according to an Adam Liptak story in the New York Times, the opinion indicates that the petitioner may well fail on the diligence point on remand to the 6th circuit.