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November 2006
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January 2007

New Year Sentimentalism

I'm allowed, once a year, to not be as cranky as someone on the editorial boad of the National Review.  So what's something you did this past year that you felt made a difference in your life?  It can be profound or banal.  For me, it was losing weight (forty pounds so far).  What's something you did that made you happier or changed your outlook on life?

Will Mike Nifong Hire a Lawyer?

The State Bar of North Carolina has filed a bar complaint against Mike Nifong.  If found guilty of the alleged conduct, Nifong would face suspension or disbarment.

When the Duke defendants hired lawyers, Nifong snidely remarked that they must be guilty.  Only guilty people, according to Nifong, need lawyers.  I take this to mean that Nifong will not retain counsel to assist in his defense.  Right?  After all, he is innocent of these charges and therefore need not hire a lawyer.

Psychologists As Associates?

I hung up on a client yesterday, and in the dead of night I wondered whether this will yield a grievance. Sure, it was uncivil of me to do so. But civility is a two-way street. What rule requires a lawyer to answer the same question five times? And what training have we as lawyers to deal with folks who only hear what suits them?

Every litigation firm has a handful of clients whose needs overwhelm paralegals and lawyers alike. New ethics rules on client communications create a quandary for litigators. Increasingly, we are called upon to serve as social workers. The role of counselor now encompasses more than mere advice on legal options. We are wedded now to the sorrows of strangers who need help we do not know how to give.

In personal injury firms, nurses are often hired to help sort through the paper work and to manage files. I am wondering whether any firms have experimented with hiring a psychologist to handle difficult clients.

I am sorely tempted to hire a psychologist. Most often clients find themselves, or have placed themselves, at crisis-laden crossroads. The legal signposts are clear enough. But accepting the reality of what the law provides is often traumatic. Who better than a psychologist to understand and cope with a client in crisis?

Anyone out there aware of any case law on this topic? I am not proposing a joint venture in which clients come to a law firm for analysis or psychotherapy. I am simply looking for a way to meet client needs while actually engaging in the practice of law. Increasingly, my firm is turning away cases in which clients are simply too needy, most often in employment cases. I wonder where those clients go to address their woes.

Connecticut Courts Divided On Ethics Rules

Come January 1, 2007, new Rules of Professional Conduct will take effect in Connecticut. Perhaps the most significant change is in the rules regarding client communication. Lawyers will soon be required to obtained their clients informed consent in writing about the risks and benefits of the course taken in litigation.

The rules are not clear about when informed consent is required. Must a client sign off on the filing of a discovery motion in a criminal case, for example? And if the client refuses to consent to a given course, must a lawyer then adopt another plan of action, even if it runs counter to his or her professional judgment?

The issue was on display in the United States District Court a couple of weeks ago. A lawyer in a criminal case was chastised by a judge for filing a pro forma discovery motion in a criminal case. She wondered why the motion had been filed when the standing orders for discovery in the district covered the request.

"My client wanted the motion filed," the lawyer explained. The judge was not moved.

I have a co-defendant in the case, so I chimed in. "Judge, do the people who draft the Rules of Professional Conduct actually think about what they are doing? The new rules require informed consent on judgment calls of all sorts. In this case, how can a lawyer refuse to file what the client demands?"

The judge was ready with an answer. "As you probably know, the federal bench has not adopted the new rules," the judge said. "You are still under the old rules."

Frankly, I did not know that the federal courts disagreed with their lowly state-court brothers and sisters about what is required. But I am relieved that in at least one court in Connecticut a lawyer is still free to exercise professional judgment about how to sculpt litigation.

It is nonetheless puzzling that federal judges and state judges can't see eye to eye on the duties of a lawyer. It looks like 2007 will be a banner year in Connecticut for lawyers representing lawyers in ethics disputes.

Rape Charges Dropped in Duke LaCrosse Case

The Associated Press is reporting:

Prosecutors dropped rape charges Friday against three Duke University lacrosse players accused of attacking a stripper at a team party, but the three still face kidnapping and sexual offense charges.

According to court papers filed Friday by District Attorney Mike Nifong, the accuser told a prosecution investigator on Thursday that she now does not know if she was penetrated during the alleged attack.

The full story is available here.

Bruton and "Co-Conspirator" Statements Made to a CI

The Sixth Amendment guarantees the right "to be confronted with the witnesses against" you.  This includes the right to confront your alleged co-conpsirators.  What happens, though, when your alleged co-conspirator makes inculpatory statements about you to a confidential informant?  May those statements to the CI be admitted against you?

I don't see how, unless you are first allowed to cross-examine your co-conspirator.  After all, "[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990).  How can we know whether statements made by an alleged co-conspirator are reliable?

In Bruton v. United States, 391 U.S. 123 (1985), two defendants were tried jointly for armed robbery.  Bruton’s alleged co-conspirator gave a statement that inculpated Bruton.  Over objection, the prosecution introduced this statement into evidence.  The Supreme Court held that this was reversible error.  Accomplice statements, the Court wrote, must be “tested by cross-examination.”  Id. at 136.   To allow otherwise posed too great a “threat[] to a fair trial[].”  Id.

The Court noted that allowing untested co-conspirator’s testimony  “overlook[ed] alternative ways of achieving [a conviction] without at the same time infringing the nonconfessor's right of confrontation.”  Id. at 133-134.  Moreover: “Where viable alternatives [to admitted recorded or written statements] do exist, it is deceptive to rely on the pursuit of truth to defend a clearly harmful practice.”  Id. at 134.  “The Supreme Court has long concerned itself with the likelihood ‘that the admission of [co-defendants' statements] will distort the truthfinding process.’”  Howard v. Walker, 406 F.3d 114, 124 (2d Cir. 2005) (quoting Lee v. Illinois, 476 U.S. 530, 542 (1986)).

Wouldn't Bruton bar the introduction of untested co-conpsirator statements made to a confidential informant?

Which Amendment Requires That We Praise Jesus?

Jesus "did everything in his power to make sure that you could go to heaven, so much so that he took your sins on his own body, suffered your pains for you, and he's saying, `Please, accept me, believe.' If you reject that, you belong in hell."

True or false: This is part of the standard curriculum in any good public high school offering an advanced placement course on American Constitutional law.

Apparently, it passed muster in Kearny, New Jersey, where a high school teacher named David Paszkiewicz plays Billy Sunday on school days. The 38-year-old high school teacher was slinging this fundamentalist hash during school hours at the Kearny High School, along with such other gems as that dinosaurs are really about Noah's Ark. Praise God and please pass the Bill of Rights.

Matthew LeClair, a junior at the school, taped the classes, for fear no one would believe what he and his classmates were hearing. The school board is not saying what it has done in response to the teacher's proselytizing, but it does say it has "corrected" the teacher. The student has received at least one death threat. The boy's father is a lawyer, and some townspeople think that the teacher was baited into turning the lectern into a pulpit.

It is one thing to explain the role that religious belief has played in the behavior of the American people. The Great Awakening, for example, had vast social and political consequences. It is quite another thing to try to create an awakening of one's own in a high school history class.

The next time someone does a story about what's wrong with American education, I suggest the situation in Kearney be studied. When we start talking about dinosaurs in an advanced placement course on the Constitution, we're in deep, deep trouble.

Double Standards

A well-known maxim of criminal jurisprudence is this: "If possible, find a way to side for the prosecution."  Courtesy of the Connecticut Supreme Court, here is a great example of this principle in action.

In State v. Luzietti, 230 Conn. 427 (1994), a jury convicted a defendant, and the trial court sentenced him to prison.  Six weeks into defendant's sentence, the trial court granted the defendant's motion for judgment of acquittal. On appeal, the Connecticut Supreme Court held that this was improper.  In so doing, they drafted a bright-line rule: "[O]nce judgment has been rendered and the defendant has begun serving the sentence imposed, the trial court lacks jurisdiction to modify its judgment []."

We can all agree that the Luzietti rule is clear, can't we?  How do you think this "clear" rule was applied to a criminal defendant's case?

In State v. Waterman, 264 Conn. 484 (2003), the defendant was convicted of sexual-based offenses.  He was sentenced to prison.  After he had begun serving his sentence, the trial court re-opened his case and told him he must register as a sex offender.  Under Luzietti, did the trial court have this authority?

Do I even need to tell you what result the Connecticut Supreme Court reached?  I didn't think so.