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Posts Tagged ‘Michael Cicchini’

Had I waited another day, I could’ve added one more head shake to my last post. Last night, the Arizona Republic reported Jodi Arias prosecutor Juan Martinez would not be disciplined over the publication of his book about the Jodi Arias murder trial.

Several bar complaints were separately filed against Martinez last year in connection to the internationally notorious murder case. In its story, the Republic makes particular mention of the bar complaint filed by the local defense lawyer bar that in part accused Martinez of violating ethical rules regarding “the existence and content of certain exhibits previously sealed by court order.”

There’s little doubt the complaining defense lawyers aren’t pleased with the decision of the Arizona Supreme Court’s Attorney Probable Cause Discipline Committee. The Committee reviews Arizona State Bar recommendations for attorney discipline.

It is also a group which parenthetically happens to have a petition pending before the Arizona Supreme Court that would permit the imprudent entrenchment of its current membership by removing the two consecutive three-year limitation on members’ terms of office.

https://upload.wikimedia.org/wikipedia/commons/thumb/c/c8/%22As_we_see_%27em%2C%22_a_volume_of_cartoons_and_caricatures_of_Los_Angeles_citizens_%281900%29_%2814589842549%29.jpg/163px-%22As_we_see_%27em%2C%22_a_volume_of_cartoons_and_caricatures_of_Los_Angeles_citizens_%281900%29_%2814589842549%29.jpg

According to the news report, the Committee dismissed a charge filed against Deputy Maricopa County Attorney Juan Martinez for writing the book, Conviction: The Untold Story of Putting Jodi Arias Behind Bars.

The story quotes from the Committee’s decision, “This matter is being dismissed as respondent obtained permission from his employer to disseminate information relative to his representation in the state v. Arias case. Similarly, while his book made general reference to the existence of sealed testimony and exhibits, the references did not contain specific content and was, in some circumstances, publicly available despite the court order(s) sealing the testimony and exhibits.”

Interestingly, demonstrating that book writing about a trial is not the sole province of the prosecution, Arias’ former defense lawyer Kirk Nurmi was disciplined over an ethical violation involving publication of a ‘tell all’ book without client consent, Trapped with Ms. Arias: Part 1 of 3 From Getting the File to Being Ready for Trial.  However, in Nurmi’s case, the sanction was disbarment. See “Jodi Arias’ defense lawyer agrees to be disbarred over tell-all book rather than face disciplinary hearings”

There’s an ethical rule, ER 1.9, that prohibits a lawyer who has formerly represented a client in a matter from thereafter using information relating to the representation to the disadvantage of the former client except as permitted by the ethical rules “or when the information has become generally known.” The trick, of course, comes in defining what is “generally known.”

The rule is not without its critics, one of the most notable being Michael Cicchini. Also see Cicchini’s “On the Absurdity of Model Rule 1.9,” 40 Vermont L. Rev. 69 (2015) and his “Petition to Modify SCR 20:1.9(c).” filed last year with the Wisconsin Supreme Court

File:"As we see 'em," a volume of cartoons and caricatures of Los Angeles citizens (1900) (14773300391).jpgVagaries of Proportionality.

There are rules governing the imposition of lawyer discipline. But when it comes to when and how those rules are applied, weighted, and especially how sanctions are proportioned remains anybody’s guess. One wonders, for instance, if another lawyer similarly situated but less well-known than Martinez would have received the same pass on discipline?

No less than the Arizona Supreme Court has recognized that when it comes to reviewing similar cases to assess the proportionality of the recommended sanction, proportionality review is “an imperfect process.” In re Owens, 182 Ariz. 121, 127, 893 P.3d 1284, 1290 (1995). This is because no two cases “are ever alike.” Id

Frankly, there are times when the sanction meted out appears to bear little resemblance to so-called similar cases. See, for example, the disciplinary case of Edward Moriarity where pursuant to a settlement the accused attorney was disbarred in Arizona — a sanction no other reciprocal jurisdiction opted to follow. Indeed, the sanction was subsequently criticized by a federal judge as noted in Board of Prof’l Responsibility v. Moriarity 345 P.3d 51 (2015). Also see “Wyoming Supreme Court Censures Montana Attorney.”

After reviewing the attorney’s notification of the Arizona disbarment, Judge Dana L. Christensen, Chief United States District Judge for the District of Montana, issued an order declining “to impose any discipline at this time. However, if the Montana Supreme Court decides to levy discipline, this Court will revisit the matter at that time.” Moreover, Judge Christensen discussed “substantial reasons not to order identical discipline” not the least being that it “was grossly disproportionate to Moriarity’s alleged misconduct.”

To further make his point, the judge cited an earlier case where the Arizona Supreme Court had suspended an attorney for six months after the attorney was found to have filed multiple frivolous actions over the course of several years whereas by contrast, Moriarity was disbarred on the accusation of having filed “only one frivolous lawsuit.”

To protect not to punish.

File:Stuart Chapin and Company (3093686330).jpgHas there ever been a disciplined lawyer — let alone a zealous bar counsel prosecutor — that hasn’t deemed the sanction imposed a punishment? The state supreme court, however, steadfastly demurs reflexively noting it “has long held that ‘the objective of disciplinary proceedings is to protect the public, the profession and the administration of justice and not to punish the offender.’” Alcorn, 202 Ariz. at 74, 41 P.3d at 612 (2002) (quoting In re Kastensmith, 101 Ariz. 291, 294, 419 P.2d 75, 78 (1966).

All the same, one can’t help but be reminded of the oft-quoted spare-the-rod-spoil-the-child sop: This hurts me more than it hurts you.” Like sanctions ‘to protect not to punish,’ the words are counterintuitive cold comfort for those on the receiving end.

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Photo Credits: Dog gif “Really,” at Giphy.com; “As we see ’em,” at Wikimedia Commons;“As we see ’em,” at Wikimedia Commons; Building gif, at Giphy.com; Stuart_Chapin_and_Company_(3093686330).jpg at Wikimedia Commons, public domain.

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https://cdn.morguefile.com/imageData/public/files/a/almogaver/preview/fldr_2008_11_07/file000136151699.jpgYesterday, Arizona took one more step toward reforming the way lawyers are regulated in the state. By a vote of 31-29, the Arizona House passed HB2295. This bill splits the State Bar of Arizona into two subsets. One preserves the mandatory membership character in order to function as an independent regulatory quasi-agency that makes paramount the protection of the public from unethical lawyers. The other subset becomes a voluntary organization that engages solely in the kinds of non-regulatory activities more traditionally associated with professional trade associations. It’s worth watching the HB2295 floor debate here starting at the 3:34 minute mark.

A conflicted identity.

Politicians 81Like mandatory bars elsewhere, the Arizona Bar suffers from what former Wisconsin State Bar President Steven Levine once described as “a schizophrenic identity.”

In a just published post at The Legal Watchdog, Wisconsin lawyer, blogger, author and scholar Michael Cicchini mentions the article, State Bar’s limits on financial transparency create budgetary blind spots (subscription required) where author James Briggs writes that “The State Bar straddles a line between being a state agency, under the jurisdiction of the Supreme Court, and a private corporation, which is not compelled to share financial information even with the people elected to govern it.” The author then quotes Levine on the Wisconsin Bar.

FunHouse 119But Levine could just as easily be referring to Arizona’s Bar while talking about Wisconsin, “When it comes to the advantages of being a state entity . . . they claim to be a state agency.  But when they want to act in private or in secret and avoid all public requirements state agencies are required to follow, they say they’re just a private organization.”1

Case in point when I filed a public records request last July with the State Bar of Arizona asking for lobbying expenditure disclosures concerning its opposition to bar reform legislation, the Bar’s response included the following lawyer doublespeak: “However, without waiving our right to assert any future objections applicable to a nonprofit organization either by rule or statute, this organization believes in transparency and will provide answers when possible.”

arizona_bar_frank2

Can’t serve two masters or walk around with two heads.

Two hats for two heads.2

By deunifying the regulator/trade association functions, HB2295 solves the longtime problem the State Bar of Arizona has been burdened with, which is trying to serve two masters by wearing two hats for two heads. The result has been an irreconcilable conflict of interest. Why? Because the interests of the public and the interests of lawyers are not the same. More often than not, they are in conflict.

Consequently, the State Bar should not simultaneously serve the interests of the public and the interests of the legal profession. If it truly means to protect the public, then the interests of the public have to be foremost. Because HB2295 separates the State Bar’s regulatory and disciplinary functions from the State Bar’s trade association services and activities, it improves the protection of the public from lawyers who violate the canons of professional ethics.

Moreover, by dividing the regulatory and disciplinary functions from its lawyer trade association activities and transferring all regulation to the Arizona Supreme Court, HB2295 helps to bring lawyer regulation more fully compliant with the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. FTC.

In Dental Examiners, the nation’s high court ruled that state regulatory bodies controlled by “active market participants” – such as practicing lawyers -­ are not immune from federal antitrust laws. The solution then, as provided under paragraph B of HB2295 is “active supervision” by the state Supreme Court or by an independent body under the Court — not controlled by practicing lawyers. Despite the recent work of a Court State Bar task force, the State Bar of Arizona continues to operate under a lawyer-dominant governing board elected by lawyers.

HB2295 now moves to the Arizona Senate where the State Bar of Arizona hopes its lobbyists and well-paid executives can sustain a firewall sufficient to stop the spread of reform.

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1 Some 14 years ago, in a First Amendment suit against the State Bar of Arizona brought by former bar member Edmund Kahn, the U.S. District Court for Arizona in an unpublished opinion discussed whether a state bar was entitled to Eleventh Amendment immunity. The Arizona Bar, which usually asserts it’s a private association not a state agency, tried in this instance to hide behind the Eleventh Amendment by claiming a “level of integration between the State Bar and the Arizona Supreme Court.” The Court distinguished the cases the State Bar invoked, which were Bates v. State Bar of Arizona involving lawyer discipline; Hoover v. Ronwin concerning bar exams and another discipline case in O’Connor v. State of Nevada. The District Court stated that when it comes to cases that generally challenge either the state bar’s disciplinary function or its function administering bar exams and admitting new lawyers, “the state bar clearly acts as an arm of the Arizona Supreme Court in regulating the practice of law.” But the District Court next made a most critical distinction, “In this case, Plaintiff challenges the way in which the state bar spends mandatory dues on non-regulatory functions and the bar’s procedures for addressing objections to its spending. Because this suit challenges the bar’s spending on non-regulatory programs, the link between the state bar and the Arizona Supreme Court is more tenuous.” The Court then went on to declare that the State Bar, a “non-profit corporation” did not qualify as a state agency for Eleventh Amendment purposes because among other factors, it also maintained “its own treasury and any award of damages would come from the state bar’s funds rather than the state treasury.”

2 Cartoon inspired by a bar executive’s email reference to a lawmaker last session counterintuitively overlooking the Bar’s own 800 lb Chimera in its parlor when describing a bifurcated state bar as “Frankenstein.”

 

 

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https://cdn.morguefile.com/imageData/public/files/l/larryfarr/10/l/13817963898k84q.jpgOver the holidays, I finished reading lawyer and social activist Bryan Stevenson’s extraordinary memoir, Just Mercy. Not only does Stevenson humanize the incarcerated by telling their stories but he goes marrow deep in describing endemic injustices in our criminal justice system.

Perhaps it’s because so many of the lawyers I’ve come to like and admire are criminal defense attorneys that I’ve found myself reading to understand their work. The best of them are lawyers who despite the odds remain willing to represent defendants who New Jersey Supreme Court Justice Barry Albin once wrote are “treated as just another fungible item to be shuffled along on a criminal-justice conveyor belt.”

In reading books like Just Mercy, I follow a thread begun when I first picked up David Cole’s 1999 seminal standard, No Equal Justice: Race and Class in the American Criminal Justice System. I later read John Grisham’s The Innocent Man: Murder and Injustice in a Small Town. Grisham’s nonfiction book left me disgusted and angry. That book was followed by Steven Bogira’s Courtroom 302: A Year Behind the Scenes in an American Criminal Courthouse.

And more recently still tripping the outrage meter, there’s been Radley Balko’s Rise of the Warrior Cop: The Militarization of America’s Police Forces and Michael Cicchini’s Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights.

These aren’t books just for lawyers. Every U.S. resident should read them. Forewarned is forearmed. Indeed, Cicchini’s latest, the equally excellent, Convicting Avery: The Bizarre Laws and Broken System behind “Making a Murderer,” to be published in April, will hopefully all but ensure average citizens do all they can to stay far away from the machinery of criminal justice. Too many times, it seems, the sad message for the Average Joe and Jane coming from unequal justice literature is if you don’t have money for a defense — you’re going to get screwed.

https://cdn.morguefile.com/imageData/public/files/c/click/preview/fldr_2008_11_08/file000521358819.jpgAll of which gets me back to Just Mercy and what’s stayed with me since reading it. It was the chapter almost near the end of the book where Stevenson talks about the one night 25 years into his fight against excessive punishment, mass incarceration, and racial and economic injustice, and when at extremely low ebb, he despairs over our “broken system of justice.” He is ready to stop. “I can’t do this anymore,” he writes. “I can just leave. Why am I doing this?”

But through his soul crisis, he comes to a powerful epiphany. Stevenson writes: “My years of struggling against inequality, abusive power, poverty, oppression, and injustice had finally revealed something to me about myself. Being close to suffering, death, executions, and cruel punishments didn’t just illuminate the brokenness of others; in a moment of anguish and heartbreak, it also exposed my own brokenness. You can’t effectively fight abusive power, poverty, inequality, illness, oppression, or injustice and not be broken by it.

“We are all broken by something. We have all hurt someone and have been hurt. We all share the condition of brokenness even if our brokenness is not equivalent.”

https://cdn.morguefile.com/imageData/public/files/o/Oleander/12/l/1418846725d5h3t.jpgAnd then in one of the book’s most arrestingly inspirational passages, Stevenson cites a quote  once heard and attributed to writer Thomas Merton, “We are bodies of broken bones. I guess I’d always known but never fully considered that being broken is what makes us human. We all have our reasons. Sometimes we are fractured by the choices we make; sometimes we’re shattered by things we would never have chosen. But our brokenness is also the source of our common humanity, the basis for our shared search for comfort, meaning, and healing. Our shared vulnerability and imperfection nurtures and sustains our capacity for compassion.

“We have a choice. We can embrace our humaneness, which means embracing our broken natures and the compassion that remains our best hope for healing. Or we can deny our brokenness, forswear compassion, and, as a result, deny our own humanity.”

In his Ted talk below, Bryan Stevenson revisits this and more, including “The opposite of poverty is justice.” For more insights watch the video and read Just Mercy.

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Credits: Morguefile.com, no attribution license.

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It's A Dry Heave | by cogdogblog

This is the time of year where anywhere is better than being trapped in Satan’s boxers. Sure, we missed the 120 weather forecast on June 19th. Just the same Phoenix spent the month breaking infernal records.

And now we’re bedeviled with the glistening humidity and demonic heat of monsoon season. What a combination. But how fitting for filing the following under WHAT. THE. HELL.

  1. Utah v. Strieff: The erosion of fundamental Constitutional freedoms continues.

On Monday, June 20, 2016, a 48-year Phoenix temperature record was broken when the thermometer hit 116 by 3 pm. On the same day, the nation’s highest court further undermined the part of the Fourth Amendment that safeguards individuals from unreasonable government searches and seizures. In Utah v. Strieff, No. 14-1373, the U.S. Supreme Court weakened the “exclusionary rule.” It’s the rule that excludes evidence from trial obtained by unconstitutional police conduct.

Bill of Rights | by GruenemannThe case involved police officer Douglas Fackrell who without probable cause stopped Edward Strieff after Strieff left a South Salt Lake City house under police surveillance thanks to an anonymous drug tip. Strieff was arrested after Officer Fackrell discovered an outstanding arrest warrant for a minor traffic violation. A search of Strieff turned up methamphetamines and drug paraphernalia.

But if the stop was unlawful, shouldn’t the drugs have been excluded? Or did the existence of an outstanding arrest warrant weaken or attenuate the connection between the government’s misconduct and the discovery of the evidence?

Writing for the majority, Justice Clarence Thomas wrote that the evidence obtained was admissible “because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

In spirited dissent, Justice Sonia Sotomayor declared:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

Justice Sotomayor particularly warned about the risk of “treating members of our communities as second-class citizens.”

“It is no secret,” she wrote, “that people of color are disproportionate victims of this type of scrutiny.” And she added, “. . . this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Just 5 years ago, criminal defense lawyer Michael Cicchini deconstructed the ongoing erosion of our fundamental rights in Tried and Convicted. On the heels of Strieff, the bad news is that our individual rights continue being “hammered and softened by high court judicial decisions.” These rights are “intended to protect us from the vagaries of the criminal justice system” and from the “government agents” who “are easily able to bypass, and in fact destroy, our constitutional protections.” 

           2.   Brock Turner and Raul Ramirez: Racial and ethnic disparity in sentencing persists.

Unequal Justice in America | by DonkeyHotey

As though Judge Aaron Persky wasn’t facing enough opprobrium for sentencing Stanford swimmer Brock Turner to only six months in county jail for rape, The Guardian reported last month that the same Judge Persky had approved a much harsher three-year prison sentence for Salvadoran immigrant Raul Ramirez for committing a similar crime. And unlike Turner, Ramirez expressed genuine remorse and plead guilty, which should have mitigated his sentence. See “Stanford sexual assault case revealed racial bias.”

By itself the disparity in Ramirez’s sentencing is nothing unusual. It’s commonplace. It’s only newsworthy because of the light touch administered on Turner.

According to Census and Dept. of Justice analyses by the Sentencing Project, racial disparity in sentencing and incarceration is real. Indeed, research by Dr. Ashley Nellis bears out that prosecutors and judges often treat blacks and Hispanics more harshly in their charging and sentencing decisions.

“Sentencing policies, implicit racial bias, and socioeconomic inequity contribute to racial disparities at every level of the criminal justice system. Today, people of color make up 37% of the U.S. population but 67% of the prison population. Overall, African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences. Black men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men.”

WHAT. THE. HELL.

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Credits: “It’s A Dry Heave,” by Alan Levine at Flickr Creative Commons Attribution; “Bill of Rights,” by John W. Schulze at Flickr Creative Commons Attribution;”Unequal Justice in America,” by DonkeyHotey at Flickr Creative Commons Attibution.

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Wisconsin lawyer Michael Cicchini dropped another provocative “truth bomb” this week at The Legal Watchdog entitled, “The lawyer job market.”

https://i1.wp.com/img.wikinut.com/img/buwi66ndxqe7rzbw/jpeg/0/Talking-with-Hands-Wikimedia-Commons.jpeg

Cicchini posted about how ridiculously difficult it still is for jobless lawyers who are forced to choose self-employment when they’re unable to find full-time paying law firm work. An advertisement he recently received for work at the pleasure of the Racine Circuit Court made his point.

Despite an improving economy, new lawyers face daunting challenges. Blame the continuing glut of lawyers as well as irreversible changes to 21st century client expectations impacting the legal profession’s cost, profit and pricing structures.

While the good news is that the number of persons taking the Law School Admission Test has reached record lows, the transformative economic strictures continue to hold sway.

Preposterously penurious pay.

As for the advertisement Cicchini received, the County Circuit Court in Racine, Wisconsin is looking for an “advocate counsel” and the pay is an unbelievable $25,000 per year. Don’t expect expense reimbursement or job security. It’s terminable at-will.

The ad then goes on to state that “attorneys may be assigned any type of felony [including homicide], misdemeanor, juvenile, criminal traffic, and probate cases and any other action as the court orders . . . It is estimated that there will be about 70 – 80 assignments in 2015 per attorney.” Read the rest of Cicchini’s post here.

The quality of unfairness.

As an experienced criminal defense lawyer, Cicchini properly points out that this kind of caseload is “nearly impossible” for any lawyer — let alone a newbie hoping to do thorough, ethically unimpeachable legal work for clients.

Admittedly, there was more than enough in the court’s advertisement to annoy any lawyer — not the least being the overt professional discourtesy of lawyers trying to screw over other lawyers, i.e., those desperate enough to apply for such a demanding job at such penurious pay.

And who were the one’s being so discourteous? Cicchini speculates “this proposal was presumably authored with input from the Racine County judges themselves.”

But beyond exploiting economically hard-pressed young lawyers, there’s another even more disturbing consideration. What does this job say about exacerbating the continuing disparities of justice meted out to indigent defendants by overburdened, under-resourced public defenders? Studies have amply demonstrated that “public defenders do not have enough time to conduct thorough investigations, or meet with and provide quality representation for their clients – many of whom are low-income earners and people of color.” See, for instance, System Overload: The Costs of Under-Resourcing Public Defense.”

Ethical hazards.

But beyond the above-mentioned concerns, it was the potential ethical minefields created by the job that also got my dander up. As one commentator observed, “the deck is stacked” against solos as it is. Writing at “Ethical Hazards of Solo and Small Firm Practice,” Benjamin Cowgill axiomatically notes that nationwide, solos and small firms bear the brunt of most bar complaints. One reason, among many, arises from their chosen areas of practice, criminal defense being one of the riskier.

So what does this lousy job in Racine with its heavy caseload at rock-bottom pay say about how far ethical concerns are discounted in Cheesehead Land?

Politics Law & Finance 43Just a few years ago the Milwaukee Journal-Sentinel ran an excellent comprehensive investigative report about the sorry state of Wisconsin’s attorney discipline system. The newspaper reviewed almost 24,000 Wisconsin lawyers against state and federal court records and “found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.” It went on to underscore the patently obvious that “Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.

“Unlike many other states, where the licenses of lawyers convicted of serious crimes such as fraud are immediately suspended to give regulators time to determine the proper sanction, Wisconsin sometimes allows criminals to keep their law licenses even while they are behind bars.”

Hilariously hubristic hypocrisy.

So front and center comes this challenging low-paying job in Racine that just reeks of potential ethical hazard for the unwary and overburdened.

And yet, maybe I’m overstating the hazard? After all, it appears not much has changed since 2011, at least when it comes to lawyer discipline in Wisconsin. Indeed, earlier this summer there was a lawyer discipline case reported by “The Legal Profession Blog” ironically highlighting “Calls to Reform Wisconsin Attorney Discipline” made by none other than Chief Justice Shirley Abrahamsom and Justice David Prosser. Given the facts of that case, both expressed agreement on the need to study and reform the Wisconsin attorney discipline system.

But here was the irony and the not insignificant brass. Along with Justice Ann Walsh Bradley, the Wisconsin high court has hardly been an exemplar of professional comportment.
Some 6 months after the Milwaukee Journal Sentinel ran its investigative series on the state’s embarrassing absence of meaningful attorney discipline, Justice Bradley made headline-grabbing allegations involving her purported physical altercation with Justice Prosser. See “Bradley says Prosser choked her.”

But after all the he-said/she-said, no criminal charges were ever filed although Justice Prosser did get charged with ethics violations. However, lo and behold and consistent with how things apparently roll in Wisconsin, multiple recusals led to no quorum, which meant no determination of discipline could be made against Justice Prosser. So, the charges were dropped. Later the same year, he eked out a 7,006 reelection win over Joanne Kloppenburg.

And so he sits on the high bench in 2014 opining along with his chief justice who he previously disrespected about how Wisconsin’s attorney discipline system needs reform.

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Photo Credits: Talking with Hands, Wikimedia Commons; Half the pay, twice the work by Truthout.org at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License; Defense Counsel by Matt Freedman at Flickr, Attribution; bad jpg file in encrypted folder by Mike at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License.

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File:RandyOrton-chokehold.jpgHow’s that for an arresting quote? Haven’t heard such talk since my barrio East Los Angeles high school days. But as an instance of failed judicial temperament? Who’d of believed it?

I must need a recollection refresher as it’s been awhile since I last posted on judicial temperament and how justice But having just finished reading Kenosha, Wisconsin criminal defense lawyer Michael Cicchini’s excellent Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights and with overnight news that a judge allegedly opened up a can of whoop-ass on a public defender — well, I’m compelled to post today.

The incident caught on courtroom camera, except for the off-camera hallway fracas, took place in Brevard County, Florida. In one corner was Judge John C. Murphy, a Dayton Law School grad admitted to the bar in 1983 and an elected and reelected county judge the past 8 years. And in the other corner and on the receiving end of the judicial ire and supposed fisticuffs was Public Defender Andrew Weinstock. From the raw video, it’s reasonable to surmise some preexisting tension between the two purported combatants.

Tale of the tape.

https://i2.wp.com/i735.photobucket.com/albums/ww355/btothemo86/CanofWhoopAss375.gif

But what’s also clear, at least from the tape, is that the strained relations went beyond a loss of judicial patience with a public defender. No, it’s my opinion the judge was likely ‘pissed off’ by Weinstock’s unwillingness to plea out his client; and to succumb to court pressure; and to waive his client’s right to a speedy trial. “You know I’m the public defender. I have a right to be here and I have a right to stand and represent my client,” Weinstock is heard saying in response to Judge Murphy’s “You know, if I had a rock I would throw it at you right now.” 

Sixth Amendment Right to Speedy Trial.

But what about an accused’s right to a speedy trial? Read Chapter 8 in Cicchini’s illuminating book to learn how that works in the real world. Cicchini calls it another one of our “soft” constitutional rights. Consequently, it’s not so speedy and it’s honored more in the breach than observance. And then there are the consequences visited upon both defense lawyer and accused for presuming to insist on their rights.

Given Cicchini’s other recitations in his concise 163-page book about how government agents (police, prosecutors and judges) routinely circumvent our constitutional protections, I think that rather than an angry jurist, it’s the public that ought to be royally pissed. But we’re not. With civics hardly taught in school; with our fount of knowledge reduced to movies and television dramas; and with our tendencies toward holier-than-thou self-righteousness when someone else’s accused of a crime — our blissful ignorance keeps us pacified.

As for the Sixth Amendment right to a speedy trial, as Cicchini tells it, speedy-trial demands are discouraged. And judges will “not-so-subtly punish defense lawyers who make them.”  That said, I don’t think that when Cicchini wrote those words, even he envisioned what’s supposed to have occurred in Brevard County court yesterday.

But then again, my esteemed brethren and sistren of the criminal defense bar are NOT going to be shocked by such tales told in or out-of-school. Indeed, I bet most of them could add their own chapters and real-life examples to Cicchini’s book. They know all too well about what passes for the preservation of individual rights in criminal court. See for a recent example, Arizona criminal defense lawyer Matt Brown’s latest post, “Real Monsters,” about an octogenarian cancer patient and alleged victim caught up in a dilemma worthy of Franz Kafka. Or take this other instance of what passes for impartiality between a judge and his BFF prosecutor just posted by Pro Publica at “Startling Sidebar: Brooklyn Judge Gave Political Advice.”

man sleeping at deskAs for the rest of us still walking around with our eyes closed about the purported sanctity, inviolability and indomitability of our individual constitutional rights — save for the clueless knuckleheads applauding in Judge Murphy’s court — most of us are taken aback by such unseemly conduct and the report of a Judge accused of hitting attorney.” But most won’t read pass the titillating headlines to understand it was because of the lawyer’s defense of his client’s Sixth Amendment right in all criminal prosecutions to a speedy and public trial. And too bad our attention will be fleeting. Soon our self-assurance and complacency returns.

A teachable moment.

Politics Law & Finance 43Still it was no surprise the story made the newswires and even the morning news shows. Or by necessity that I had to parenthetically refer to Cicchini’s timely and topical take-down of “the world of criminal justice” and about the sorry state of our “soft” and “malleable” constitutional rights.

At the risk of invoking the banality of the ‘teachable moment,’ the stuff he writes about needs to be taught in our schools and not so as to, perish the thought, undermine our rose-colored faith in the system. No, it has to be taught to wake us up “about what really happens to ordinary people on a daily basis” when they’re caught in the maws of the criminal justice machine. Forewarned is forearmed. I urge every person reading this post to get a copy of Tried and Convicted.

And as a final add on the Brawl in Brevard, according to the Statement from Chief Justice John Harris, Judge Murphy will be taking a temporary leave of absence and has agreed to seek anger management counseling. Public Defender Weinstock took some time off. After the din dies down, I don’t expect much to happen to Judge Murphy (and hopefully nothing to lawyer Weinstock) although Florida’s ever tireless lords of discipline will almost certainly be poking proboscis into the matter.

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Photo Credits: Randy Orton chokehold, by Sean Refer, at Wikipedia Commons, Creative Commons Attribution-Share Alike 2.0 Generic license; can of whoopass, via photobucket, http://i735.photobucket.com/albums/ww355/btothemo86/CanofWhoopAss375.gif.

 

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roughing it 54“Why are lawyers killing themselves?” That was the sensational headline to a CNN story that ran a few days ago.

Talk about implicit assumptions. Talk about a leading question. Long on anecdote, short on data but no matter for CNN — if it bleeds, it leads.

And lest I be accused of callous disregard, let me quickly add that even one death by suicide is one too many. As John Donne famously said, “any man’s death diminishes me, because I am involved in mankind.” And yes, regardless of occupation, depression is a very real problem. I only wish CNN really knew what it was talking about.

A widespread problem?

So is there an epidemic of suicide in the legal profession?

According to the last available U.S. data from the Centers for Disease Control and Prevention, (CDC) — across all age groups, genders and racial groups, there were 38,364 deaths from suicide in 2010. And those numbers break out differently by age, gender, race and location, which means there’s a great deal of variability given the comparatively small populations involved.

Businessmen uid 1But out of that number, how much self-inflicted death occurs among the approximately 1.3MM lawyers in the U.S.? No one really knows for sure. Certainly, the risk factors that impact all people also encompass lawyers.

Men, for instance, are about four times more likely than women to die from suicide and the CDC also highlights risk factors like previous suicide attempt(s); a history of depression or other mental illness; alcohol or drug abuse; family history of suicide or violence; physical illness; and feelings of isolation. But as for an increase in lawyers killing themselves, the ‘proof’ seems mostly anecdotal extrapolation and pure conjecture.

Not much data.

Sure lawyers get stressed out and anxious — but more stressed out than firefighters, police officers, pilots, and military personnel? According to CareerCast’s recently published list of the 10 most stressful jobs, lawyers don’t even make the list. And with the caveat, “data on occupational suicide is hard to find,” lawyers aren’t on the list of 13 careers where you’re most likely to commit suicide. Dentists come in first on that list — but even that is challenged as “Urban Legend” — the myth of the suicide-prone dentist. And coming in at No. 5 are authors who are supposedly 2.60 times more likely to commit suicide than average. Are male lawyers who blog at greater risk?

Ronald Maris, Ph.D., Director for the Study of Suicide and Life Threatening Behavior at the University of South Carolina, points out, “Occupation is not a major predictor of suicide, and it does not explain much about why the person commits suicide.” Indeed, even the American Psychological Association says of “Suicide by profession: Lots of confusion, inconclusive data.”

So corroborating evidence tying suicide by occupation is sparse. Some researchers even maintain that “occupation may not be much of a factor in suicide. Psychologists have long documented that among the top predictors for suicide are diagnosable mental disorder, co-morbid substance use, loss of social support and availability and access to a firearm.”

File:ChurchBell.jpgNevertheless, CNN still tolled the bell and highlighted Kentucky where it says at least 15 attorneys have committed suicide since 2010. USAToday in their own report last June, reported a different number and said 12 lawyer suicides have taken place in Kentucky during that time. Either way, these are tragic incidents, especially for the families left behind. But either number represents less than one percent of Kentucky’s 17,500 lawyers. Indeed, across the country, the CDC lists suicide as tenth among the leading causes of death. Heart disease and cancer are 1 and 2.

Mandatory mental health.

Woman covering her eyes uid 1But leave it to your friendly state bars to respond to the supposed crisis with the usual knee-jerk overreactions and pious prescriptions. Mistaking action for achievement, they hold meetings, create task forces, and in several jurisdictions, impose mandatory continuing legal education programs on mental health. Recalling my undergraduate Jesuit logic and philosophy class — it’s argumentum ad populum — ‘if many believe so, it is so.’

Which brings me to a recent commentary on the purported prevalence of new lawyer anxiety and the usual state bar claptrap to supposedly fix what ails these new lawyers.

Written by Wisconsin lawyer at “The Legal Watchdog,” the title says it all, “State bar recommends new lawyers do free legal work to reduce their anxiety from not having money or legal training.” It’s worth reading and is reblogged below with express permission of the author.

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State bar recommends new lawyers do free legal work to reduce their anxiety from not having money or legal training.

By Michael Cicchini, MBA, CPA, JD

Young business man standing pulling his pockets inside out uidIn November, 2013, a special task force report by the State Bar of Wisconsin concluded that a large number of new law grads can’t find jobs to pay off their staggering student debt loads.  In addition, many of those who were fortunate enough to be employed (or underemployed) were afraid to practice law because they didn’t know how.  Here’s a nice excerpt of a summary of the report from the bar association’s e-newsletter:

“My debt is higher than a mortgage for a nice house. It’s all I think about. And I know I will be strapped in a job I don’t want paying debt for the rest of my life,” said [one new lawyer].

“I’m buried under debt. I’m terrified that this is what the rest of my life is going to look like. I’m also scared to start my own practice, because I don’t have the practical litigation experience. I can’t afford a pet, let alone kids. I live paycheck to paycheck. It’s very, very scary and disheartening,” was another response from a new lawyer.

Another lawyer said the job search left the lawyer feeling “suicidal” and “terrified.” The lawyer also feels alone and scared of making a mistake in practice but is hesitant to tell anyone about these mental struggles for fear of being disbarred.

. . . [A] task force member and past president of the State Bar’s Young Lawyer’s Division[] said the lawyers who made these sorts of comments “are fast becoming your average member of the State Bar.”

So, in short: lots of stress due to high debt loads, no jobs, and the fear of practicing law because of the lack of training and the related risk of disbarment.  So what is the state bar’s solution?

j0439359In December, the state bar sent out an email to all members titled “Reduce your stress with exclusive benefits for State Bar of Wisconsin members.”  One of those “benefits” was the “opportunity” to do pro bono legal work, because “volunteering can help improve people’s mental heath.”  Fortunately, “Whether you are an experienced lawyer or just getting started, there are pro bono opportunities available to you throughout the year.  Visit the State Bar’s online volunteer directory[.]”

Now, in fairness, even though this email came out after the state bar’s “special task force report,” the person who slapped this email together probably didn’t even know the task force report existed or, if he did, probably never had any reason to read it.  But although these two documents are not related, the irony is rich.  First, the state bar acknowledges that new grads are stressed out (to the point of having suicidal thoughts) because they don’t have any money and don’t know how to practice the profession they just paid handsomely to learn.  And second, to alleviate this stress the state bar recommends that these new lawyers offer free legal services to real people with real legal problems.  This is almost too much for me to process, but two thoughts come to mind.

People 3050First, while I appreciate the softball my mandatory state bar just lobbed me, this whole “giving back” culture is starting to grate on me—in fact, this is the classic stuff of law schools and state bar organizations.  Granted, this particular state bar’s email thinly disguises the “giving back” theme with a self-interested twist: give back for your own good—it will reduce your stress!  (No thanks.  Practicing law creates stress, and I’ve done enough involuntary unpaid legal work this year.  I’ll just sit on my couch and watch a bowl game instead.)  But more to the point: new law grads are saddled with staggering debt, haven’t been taught how to file a motion let alone try a case, and, if they are lucky enough to find legal work, are unwillingly thrust upon an unsuspecting public—and now they’re supposed to worry about giving back?  I think they’ve been drained of most of their life force already.

And second, while I can’t do anything about the legal job market and its approximately one legal job for every two law grads, I can do something about teaching grads and students how to practice law—at least in my field of criminal law.  So, if a state bar wants to hire me to design a training program for newly licensed attorneys, or if a law school wants to hire me as a prof to design and teach a series of courses on criminal law, procedure, and practice, let’s talk.  And don’t think of my salary as an additional “expense”—think of it as “giving back” to your membership or students.

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