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Tuesday, October 31. 2006
Late this morning I learned the sad news that Jim Jeans passed away yesterday. The now-late James W. Jeans, Sr., was on the original faculty of the Trial Lawyers College, where I first and last met him in 1995. I regret that I last spoke with Jim when I called him a few months after that year's Trial Lawyers College session. It was not intentional to let so much time pass by. Jim spent the entire time at the 1995 TLC from beginning to end. He was caring and selfless at every turn. Googling showed that Jim Jeans was most recently a law professor at Liberty University in Lynchburg, VA. (This is not the time for me to opine about Liberty University). Jim’s biography page at Liberty University's website is here. Had I known Jim was there, I would have called him this past June, which was my only time in Lynchburg. Jim was on the original faculty of the National Institute for Trial Advocacy. True to character, this article at pdf page 68 quotes Jim as saying that trial lawyers must yearn for the tooth and nail. For those who knew Jim, here is some information about his memorial service and funeral: - A memorial service will be held at Liberty University's Pate Chapel, Lynchburg, Virginia, Thursday, November 2, at 11:00 a.m. - The funeral will be in Kansas City, Missouri. No date has been set yet. I went too many years not contacting Jim. It is critical to show thanks to people while they are still with us, and a mistake to wonder whether heartfelt words of thanks will mean much; they will. Jon Katz.
Tuesday, October 31. 2006
On this Halloween day, here is some chilling reality, mixed with hope: Jails and prisons are cages that warehouse and restrain legions of people (1) presumed innocent and awaiting trial, (2) who are innocent but wrongfully convicted, (3) convicted of crimes that should not be crimes in the first place or should be heavily decriminalized, (4) sentenced too harshly (e.g., draconian mandatory minimum sentences for nothing worse than an addict who -- a second time around -- gets caught selling one crack cocaine rocks in exchange for a one-rock commission for every three rocks sold), (6) unfairly thrown back in jail and prison for probation and parole violation findings, often being sent back for too long, (7) dehumanized in the court system and dehumanized in jail, (8) suffering from racism from prison authorities, government authorities and fellow inmates, (9) sitting on death row under a system of legalized government-sponsored murder, and (10) fattening government revenues through prison labor ranging from manufacturing license-plates to providing outsourced telephone customer service from within the prison walls, because prison labor is cheap and captive. The United States has so many prisoners that the prison system -- and court, "criminal justice", prosecutor, and police systems that prosecute and sentence prisoners -- is so economically and socially entrenched that too many prisoners become mere numbers in too many people's eyes. The more that everyone knows each prisoner as an individual human being, and the prisoner's story, the more humanely prisoners and ex-prisoners will be treated by society, by the court system, by the prison system, and by the rest of the overgrown government bureaucracy. This is not to detract whatsoever from the humanity that is due to crime victims and everyone else; everyone must be treated with humanity -- including criminal suspects, defendants, and prisoners -- for us to have a humane society. While I believe that prisons have their places -- but that they have been overused and abused for too long -- my friend Jun Yasuda takes a more radical -- or perhaps more hopeful -- approach than mine. Jun-san -- who has been on many a peace walk for prisoners, and has vigiled and fasted for Mumia Abu Jamal (a days-long fast ingesting nothing but a drink of water at the midpoint) -- says: "All living things are sacred. Punishment is no solution; putting people in cages is no solution; more killing is no solution. These things happen because of fear. We believe in taking care of each other in a human way, with compassion." The time to start taking care of our fellow human beings is from birth, continuing to all stages of life. This can be done without instituting more socialism, and without enforcing social engineering, so long as more people help others from the goodness of their hearts, rather than living isolated lives of going to work, providing for their families, staying wired to the Internet and their home entertainments systems, and doing nothing else to better society. As to racism and the prison system, the more overt racism that previously existed in the prison system was not fully eliminated by the integration of prisons and sensitivity training seminars, just as racism in the rest of society did not go away -- but overall reduced and became less virulent -- merely due to Brown v. Board of Education and other court and government actions. Racism might never go away entirely, but we all must work to eliminate it. A picture tells a thousand words. Here is a documentary of segregated black prison work crews in 1966. Here is a shorter YouTube clip; the full version is here. Thank you to GFB's Scott Henson for blogging about this documentary.
From http://www.folkstreams.net/film,122 : Afro-American Work Songs in a Texas Prison. by Bruce Jackson, Toshi Seeger, Peter Seeger, and Daniel Seeger You can make a difference in providing compassion and more humanity for prisoners. After all, accumulated feathers still sink the boat. Every little bit helps, and every larger step helps all the more, including getting on the backs of your lawmakers and the other government powers that be; spreading the word of justice for prisoners and criminal defendants to your family, friends and acquaintances; and visiting inmates (and even offering to provide them classes in your areas of strength, be it academic, creative, supportive, or otherwise) and giving them moral support. The Human Kindness Foundation has an excellent webpage about how to easily arrange to visit with inmates and what to do with the visits, and sends the following message through its director: "What can you do? "First of all., if you become the victim of a crime, insist upon meeting your assailant. Insist upon being involved with the process of his or her restoration. Join or create a VORP (Victim-Offender Reconciliation Program) in your community. Tour your local jail or prison to see firsthand what your taxes pay for. Go in with a church or civic group to meet inmates. Become a pen pal to a prisoner who is seeking to change his/her life. Talk to your friends and colleagues about employing ex-cons (in nationwide surveys, most employers admit they won’t hire a person with a criminal record, so where are they supposed to work?). Reclaim your power and your responsibility, because the retributive system you have deferred to is not serving your best interests. Please take the issue of crime and punishment personally, because it is an issue which definitely affects you and your family and your descendants for generations to come. "We have to realize that we are all a part of this problem. If you vote, if you pay taxes, if you are afraid to walk alone at night, you are already involved. And so we have a choice to be involved solely in negative, destructive ways, such as home security systems, car alarms, personal weapons, etc., or in constructive ways which might actually change the problems. We all must make real changes — not just political ones, but also in our personal attitudes and lifestyles. America will not thrive, nor will we and our children be happy, by becoming a nation behind bars." (From webpage of the Human Kindness Foundation's Prison Ashram Project, http://www.humankindness.org/project.html ). Jon Katz.
Continue reading "When governments cage people / See this powerful video."
Monday, October 30. 2006
After I recently blogged against waterboarding, vice president Cheney asserted recently that nothing was wrong with dunking a terrorism suspect in water if it saved lives. Your vote counts. Jon Katz.
Monday, October 30. 2006
More law firms apparently are more often looking overseas to outsource support staff work. The October 27, 2006, New York Times details this trend. A recent trial lawyer listserv posting mentioned one particular company offering such outsourcing: Manthan Services in Bangalore, India. This outsourcing situation goes to the heart of the cost of providing quality legal services, and the higher prices American lawyers are able to charge due to rules against the unauthorized practice of law by non-lawyers. In the United States, quality lawyers can command substantial pay. Quality legal secretaries command salaries that can approach or exceed the pay of recent law graduates at smaller and medium-sized law firms. The more that lower-cost legal staffing -- including for lawyer work -- is offered by outsourcing companies abroad, will lawyers in the United States feel competitive pressures to reduce their prices and also to use such outsourcing companies? The whole issue points to the effect of high-cost legal services in the United States. For instance, corporations pass their huge legal expenses onto consumers; legions of civil litigants scramble around the courthouse pro se without the funds to hire quality lawyers, and many individuals go into deep debt to hire lawyers. How does such overseas outsourcing affect our law firm? Our firm does not use such services; we believe in treating our support staff as family, and need to assure the quality of our support staff and their work. We rely on in-house staff (we have two lawyers and four full-time support staff) supplemented by outside local contractors and consultants for such work as investigation and expert advice for our cases; computers and Internet (for the Internet, we use Daytona Networks in Florida); accounting; and phone systems. When it comes to outsourcing lawyer work overseas, criminal and Constitutional defense lawyers are difficult to outsource, as are immigration lawyers; these areas constitute our law firm's focus, and we would not outsource such work overseas. However, it is conceivable that such lawyer work as the drafting of contracts, wills, and other legal documents will go overseas more often (if law firms and corporate law departments can get around hurdles of the unlicensed practice of law). An important question is the extent to which law firms will use overseas outsourcing more as a way to pass on cost savings to clients, more as a way to make more profit, or more as a way to provide high-quality services. I could imagine many law firms and corporate legal departments wishing to try law clerks, paralegals legal secretaries, and even lawyers from abroad to work for lower cost. All sorts of issues arise from there, including the extent to which American law firms will be required to follow United States labor protection laws (including laws against employment discrimination, and requiring payment of minimum wage and time and one-half for overtime) with the overseas outsourced assistants, the comfort level (or lack thereof) of taking advantage of less expensive labor abroad (on the other hand, companies perhaps have the option of paying significant gratuities to the outsourced staff, to offset their otherwise lower pay), and the comfort level of charging so much to clients to the point of not serving equal access to justice. Of course, overseas outsourcing and overseas manufacturing have been common for legions of other American businesses. I have written further here about the high cost of legal services, and how our law firm addresses it. Jay Marks and I focus on maintaining a moderate number of clients so that we may focus sufficient attention, time and energy on each client; this amounts to our charging significant legal fees. We offset this by providing a variety of pro bono and low bono services both to better achieve equal access to justice, and also to serve people and causes that stir our passions and interests. Jon Katz.
Monday, October 30. 2006
In the midst of the many government violations of civil liberties comes a five-year-old civil liberties organization called the Bill of Rights Defense Committee. The BORDC's vision follows: "BORDC believes that this cycle can be broken and the targeting of groups ended by: - Education to know our rights,
- Staying vigilant to threats to our rights and to the rights of others, and
- Organizing using protections guaranteed in the Bill of Rights to defend our rights.
Too many civil liberties violations are running rampant today to stand silent. Please speak out effectively. Please join with like-minded activists. Please donate to and join the ACLU, BORDC and/or other worthy causes. Meanwhile, the attached notice announces the BORDC's open position for East Region Organizer. Jon Katz.
Sunday, October 29. 2006
Unfortunately, we are far away from a society that provides equal access to justice and the courthouses. The criminal defendant with the most money has more lawyers to choose from and to pay. The defendant with money has a wider and more flexible and immediate choice of expert witnesses. The defendant with money is able to pay restitution for theft and other cases more immediately, so as sometimes to have a stronger negotiating advantage. In Virginia, money sometimes can make a whole host of misdemeanors go away through the satisfaction and discharge process that gives a judge full discretion -- without any power in the prosecutor to do worse for the defendant -- to decide whether to dismiss a criminal prosecution upon written confirmation by the alleged victim that s/he has received satisfaction for the injury (so long as the alleged victim is not a law enforcement officer or, generally, a family or household member; and so long as the alleged offense is not alleged to have been committed riotously or with the intent to commit a felony). What do I do about this lopsided state of power affairs for people with money and people with less or no money? The solution is not for the people with money to be unable to pay for justice, but to overhaul the criminal justice system (including decriminalizing much of it, and increasing resources for indigent defendants and those who barely fail to meet the requirements to obtain indigent defense) so that the people with less money can catch up with this money gap. Jon Katz
Sunday, October 29. 2006
For those interested in my trial techniques presentation at the October 23 Maryland Trial Lawyers Association criminal defense continuing legal edcuation seminar, here are my handouts for the presentation: Trial techniques overview, criminal trial outline, and introduction to protecting immigrants in criminal court. Also, check out our website, this blog's archives, and our April-October, 2006, blog archives for additional in-depth legal information and analysis that we have been posting for seven years. Jon Katz
Friday, October 27. 2006
Persuasive talk is more than words, but is the very passion, rhythm, and music with which those words are presented. One of my favorite passionate vocal messengers is Gil Scott-Heron, who proclaimed that the revolution will not be televised: "The revolution will not be televised. The revolution will not be brought to you by Xerox In 4 parts without commercial interruptions. The revolution will not show you pictures of Nixon blowing a bugle and leading a charge by John Mitchell, General Abrams and Spiro Agnew to eat hog maws confiscated from a Harlem sanctuary. The revolution will not be televised." Recently, I checked out what Gil Scott-Heron has been up to. I learned that he was jailed for two to four years this year in New York, having been sentenced for a probation violation finding. I have insufficient information to give much of an opinion about this probation violation situation. Perhaps this unfortunate experience will lead Gil to spread all the more of a persuasive message about the dysfunctions of the prison and criminal justice system. Letters of support can be sent to Gil at this address: Collins Correctional Facility Gil Scott-Heron, #06R3165 P. O. Box 340 Middle Road Collins, NY 14034 Jon Katz
Thursday, October 26. 2006
The news is so over-saturated, that sometimes I miss such important stories as the "ghetto" party hosted and attended earlier this month, off-campus, by some University of Texas law students. Cox News Service reports that photos from the party "showed the students holding 40-ounce bottles in brown paper bags and wearing Afro wigs, gold teeth and such gang-related attire as bandanas, according to students who saw the images. Some of the party-goers wore name tags with names such as 'Tanika' or 'Jesus' to play on a black or Hispanic stereotype, the students said. The photos are no longer online." The First Amendment fully protects the right to host and attend such a party, and also gives people the right to state their views about such a party, which I do here. Unfortunately, the legal community often has lagged too far behind in becoming more enlightened about race relations. For instance, bar association after bar association (including the American Bar Association, at least into the 1930's) barred black members right into this century. The University of Texas law school (until the Supreme Court forced integration in 1950) and the University of Maryland law school, to name just two, previously barred black law students, to the point that the late Justice Thurgood Marshall was ineligible to attend the University of Maryland law school, which sits in the same city where he grew up. Until Washington's Cosmos Club accepted women members in 1988 when faced with the prospects of discrimination litigation, high-powered male lawyers hob-nobbed there for lunch, with women entering only at a male member's invitation. The Brethren reported that former Chief Justice Earl Warren -- for all he did to benefit individual liberties -- still ate at a lunch club with his law clerks, that barred blacks. The list clearly goes on and on. Notice how party attendee and first-year law student Nick Transier -- who uploaded party photos to the Internet, but then removed them -- asserts "We had no intention by any measure to choose a group or class of people and make fun of them." How many times do we hear such excuses over actions that dehumanize others? Race relations problems are not limited to the legal community, of course. Nevertheless, since lawyers and judges often are at the forefront of racial justice issues, it is particularly troubling to see such attitudes persist by students attending one of the top-rated law schools. Graduates from top-ranked law schools have more professional opportunities -- including federal judicial clerkships and federal judicial positions; it is important to know what members of the legal community are doing or not doing about race relations. I am not one to advocate legal solutions to every social ill. I do very much favor shining the light on social ills, because such light-shining is necessary as part of solving the problems. The National Lawyers Guild and its United People of Color Caucus condemned as weak the UT law school administration's response to this matter, and demanded that the "University take more aggressive steps to educate students and adopt an anti-racist curriculum." Law school dean Larry Sager met with some of the party's attendees, stated his views about the party, and said no disciplinary action was planned. This activity is First Amendment-protected, so disciplinary action at this government-run law school would violate the First Amendment. Where to go from here, then? Minorities and women still continue to be underrepresented at law firms, including in the partnership ranks; the Supreme Court has only one woman justice; and the list goes on. The legal community needs to become color-blind, and this effort becomes all the more a challenge the more that an old boy network culture permeates so much of the legal community. Jon Katz
Wednesday, October 25. 2006
Getting to yes is negotiating with an eye towards fulfilling some key goals of each party to the negotiations, rather than negotiating on positions. A recent negotiation further illustrated the benefit of this approach. My client was criminally charged with possessing marijuana and marijuana paraphernalia possession. The prosecutor refused to offer first-time offender diversion, and instead offered for my client to plead guilty to possession of drug paraphernalia, which is not jailable for the first conviction, but which can create problems later on. I countered to the prosecutor my client's willingness to do a diversion program of sorts on his own, through a state-licensed weekly drug education program, together with a substantial number of community service hours. The prosecutor at first would not budge. However, time was on our side. The prosecutor had a huge docket. I had plenty of time to talk with the three police officers in the case. I suggested to the prosecutor that such a case did not justify keeping three police officers waiting to start the trial, nor for the chemist to have to come to court. The prosecutor asked why our client would not "just plead guilty" to drug paraphernalia, since it was not jailable, and I told the prosecutor that a guilty verdict either for marijuana possession or for paraphernalia each could harm my client's job security. She said she would discuss my negotiation offer with the police officers, which often means the prosecutor will accept our counterproposal. That was the situation in this instance; the case was then placed on the inactive/stet docket, conditioned on completing the drug education program and community service. Numerous times, prosecutors do not give me better negotiation offers in misdemeanor cases until I invest the time for negotiations backed up by our readiness to go to trial. The waiting can tax a client's discomfort/"I want to get it over with" factor, and those concerns must skilfully be addressed, while reassuring the client of the wisdom in taking the lawyer's recommended path. Jon Katz
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