Barely Legally

confessions of a moot court bailiff

Crab Cribs and Shrimp Sales

If you’re as obsessed with the true-crime podcast Serial as everyone else is, this Vox interview with Colin Miller may be right up your alley. Miller is a law professor who has taken to writing about legal issues that come up in the podcast.

Vox: How difficult is it to prove ineffective assistance of counsel? My impression is that it’s very hard — there are people whose lawyers fell asleep during the trial, and they didn’t win on that appeal.

Miller: If you are looking at it empirically, there are a number of studies that look at what actually happens [in ineffective assistance of counsel cases]. That claim is successful between 1 and 8 percent of the time.

In terms of the legal standards, Strickland v. Washington [a 1984 court case about when ineffective assistance of counsel violated the Sixth Amendment] set up a two-pronged test. The first prong asks: was there an error or errors by defense counsel that caused the performance to fall below a prevailing standard of reasonableness?

The first season of Serial is wrapping up later this week, but the fun doesn’t have to stop there. Miller is up to sixteen posts about the legal issues involved. We can law nerd all over this, guys! I’ll get the highlighters and you get the index cards.

Superlawyers

In this wonderful article, Reuters goes deep on the Supreme Court. You probably know that the highest court in the country is selective about which cases it accepts. Very selective, actually. They get about 10,000 petitions for certiorari each year, and grant just about 80. If you’re a math whiz, you may have already worked it out: that’s less than one percent.

Reuters has some fascinating numbers about the 66 “superstar lawyers”, or “superlawyers” who can improve your odds of hearing a case just a little bit:

They are the elite of the elite: Although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide from 2004 through 2012.

Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Whoa! What’s their secret? Well, according to Reuters, half of these “hyperattorneys” or “ultrabarristers” used to clerk for the Supreme Court’s justices. Others just socialize with them.

Um. Okay, well, it’s good work if you can get it. So what kind of trade are these “megacouncillors” plying?

Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.

Really? You get the greatest endorsement the legal field knows how to provide, and you apply it for personal gain? Come on, man. (And almost all of them are men. Naturally.)

You know, part of why I lionized President Obama back when he was just Senator Obama is this quote from Obama’s law school classmate Bradford Berenson:

He turned his back on what would normally be the standard route for any president of the Harvard Law Review, which is to take very prestigious judicial clerkships, probably including a clerkship at the Supreme Court of the United States. And he returned to Chicago instead to begin political work and community work.

From the perspective of people on the Review in 1991, that was an unfathomable, unheard-of decision. The clerkships only take – even if you do get a Supreme Court clerkship – two years. And they’re an extraordinary experience, an extraordinary credential, an extraordinary opportunity to serve the country and serve the judiciary.

Oh, sure, that Obama guy did all right for himself in the end, thanks to that whole memoir he wrote, with the over-the-top publicity tour that helped move a few million copies. Clearly, there are avenues to personal gain that don’t involve making a beeline for SCOTUS and BigLaw and milking every last dime out of every opportunity for personal enrichment.

For the other folks, the ones who don’t turn their backs on the Supreme Court clerkships? It would be nice if more of them, the ones who ascend to such lofty heights, would direct their ambitions toward public service instead of private enrichment. You just rounded third base, and we’re all excited for you, but maybe share some of that love. Especially when so many of you didn’t hit a triple at all; you were born on third base.

The Reuters examination of the Supreme Court’s docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Read the whole thing. It’s enlightening.

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Use a New Font

Your briefs probably suck. I mean, I think they’re fine, but Chris Mincher has some advice for you:

The use of monospaced characters on typewriters led to another obsolete yet stubbornly persistent practice — putting two spaces between sentences. With uniformly spaced type, a period has the same space between the last letter of the sentence it’s finishing and the first letter of the next sentence. In this case, an extra space helps create an easier visual cue signaling the start of a new sentence. However, these days, word processors and proportionally spaced fonts place the period flush with the previous letter, thereby leaving plenty of room to serve that function.

Putting an extra space on top of that is absolute overkill, and if those gaps happen to coincidentally align vertically, it can lead to a disrupting ribbon of white running down your document. Two spaces are therefore not only totally unnecessary, but also a potential obstruction to readability, and you should never, ever use them. Anyway, just wanted to get that off my chest.

Amen, brother! Actually, the bulk of his post is about typography – your choice of font, spacing, margins, and so on. Like me, Mincher has read Butterick’s Typography for Lawyers, and is more competent a designer as a result. If you’re lawyering and you’re using Times New Roman, you owe it to yourself to read this. Mincher is a good place to start.

Superhero Silliness

This article on New York City’s burgeoning superhero movement started out earnestly. Although as a matter of procedure, it seems dishonest to refer to costumed vigilantes as either super or heroes, I’m sure it’s hard to resist the temptation to romanticize something so instinctively American.

There are hundreds of superheroes in cities across the nation. New York’s superheroes patrol the nighttime streets for crime, putting themselves in situations that ordinary citizens do their best to avoid. […] Though New York City’s crime rate has drastically decreased from its notorious heyday between the 1960s and the 1990s, it has recently seen an uptick. There are dark gaps in the city’s terrain where some superheroes believe the watchful eye of Commissioner William Bratton’s police force does not reach, and where they believe they are needed. One of these heroes is Dark Guardian.

Okay. I’m in. This is totally badass. Dark Guardian is out for justice, courageously standing up for the downtrodden and disaffected among us. Where the cops won’t get their hands dirty, he alone will uphold the law.

Where does he patrol? The rough and tumble neighborhood of Brownsville? East New York? The wretched hives of scum and villainy of … uh … Little Felontown? DoRiTo? Okay, I clearly don’t know where criminals hang out.

It is eleven at night on a Sunday. I’m standing under a traffic signal on the corner of Christopher Street and Seventh Avenue waiting to meet Dark Guardian. We’re going to patrol Greenwich Village.

You’ve got to be kidding.

For those of you who aren’t familiar with New York City’s endless series of boutique neighborhoods, Greenwich Village is one of the nicest parts of Manhattan. In this “hardscrabble” part of town, you can live the authentic life in a 4 bedroom, $5 million apartment. It contains three of the most expensive zip codes in America. How absurdly ritzy is Greenwich Village? Celebrity residents have their own category on Wikipedia.

That being said, it’s not some wonderland without any crime at all. While there were literally zero murders in this neighborhood in 2013, check out the statistics. While Greenwich Village sees below-average crime in almost every category, the rate of Grand Larceny is almost four times higher than the city’s average.

For those of you keeping score at home, Grand Larceny is when you steal:

  1. Anything worth more than a thousand dollars; or
  2. A credit or debit card; or
  3. Anything directly from a person.

There are other ways to get to Grand Larceny (11 different kinds of 4th degree Grand Larceny alone!), but those are your most common.

Well, all right. I stand corrected. Initially, I did a spit take upon reading the “we’re going to patrol Greenwich Village” line. But apparently, there are a lot of muggings there. You go, Dark Guardian. Break up the purse snatchings and the apple pickings, and do Batman proud.

Jurisprudence, Interesting Quirks Of

Paige Williams, writing in The New Yorker, on Alabama judges with superpowers. Specifically, in Alabama, judges sitting specific courts can exercise the “Judicial Override.” An override is when a judge sentences a guilty defendant to death after a jury declines to impose the death penalty.

In effect, there are two opportunities for defendants to be sentenced to death: once by a jury and another time by a judge, sua sponte. In addition to all the usual concerns over the death penalty, like how black criminals are over 300% more likely to be executed than white criminals, and how there are hundreds of innocent people on death rows right now, there are extra problems with Alabama’s override system:

Every six years, Alabama elects circuit judges (who hear capital cases) and members of the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Judicial overrides tend to spike in and around election years. According to a 2011 study by E.J.I., thirty per cent of the state’s death sentences in 2008, an election year, were imposed through override, compared with seven per cent the previous year.

I’m reminded of the Israeli parole boards, which grant fewer and fewer applications the longer their day goes. Humans aren’t machines, and seemingly trivial factors can have significant effects on our cognitive processes.

In this case, it’s not difficult to see the connection. Elected judges order the execution of more people in election years to make for cool TV:

Every election season for decades, television ads have shown aspiring judges posing with a hunting rifle or saying things like “I’ve looked killers in the eye and sentenced them to death.”

Yeah, that’s pretty horrifying.

It Gets Worse

Like most states, Alabama has egregiously loose campaign finance laws. When judges are elected (on the basis of sentencing people to die after a jury decided the opposite), there’s often an absurd campaign finance angle.

For example:

The state allows lawyers to contribute money to the campaigns of judges who may preside over their cases, and they do so routinely. Randy McNeill, the prosecutor who asked Judge Gordon to sentence Shonelle Jackson to death, had contributed to Gordon’s campaign fund.

McNeill, a deputy district attorney who some thought would make a good D.A., donated the money in April, 1991, with his wife, Margaret, who had clerked for Gordon. The McNeills gave fifty dollars, because Gordon, who was running unopposed, had personally capped contributions at that amount.

Oh, good. The judges have created their own campaign finance regulations, for money they accept from lawyers who argue in front of them.

You know, in other states, judges can’t even be Facebook friends with lawyers. Alabama’s letting them flat out exchange money. That’s an interesting twist on that whole “impartial judge” thing.

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