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Friday, November 23, 2007

Lawyers and judges

Lawyers take a lot of shit in American popular culture, and a lot as well from well funded efforts to paint lawyers as the enemy of the people by driving up prices (especially insurance prices) with expensive, frivolous lawsuits.*

I think for a lot of us, we don't really have much contact with those in the legal profession on a daily basis, and when we do, it's usually because we're in trouble or getting screwed. so it's easy to look unkindly upon those whose profession allows them to get paid even while we're forking over the last of our paychecks.

But i think lawyers in general get a bad rap. After all, the Founding Fathers thought highly enough of the legal profession to guarantee our right to a jury trial in civil cases.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Never mind that this particular amendment is now about as well enforced as the one that guarantees us protection against unwarranted searches and seizures. It's still, technically, the law of the land.

But a couple of articles today really got me thinking about the legal profession, those who practice it, and just what it is, exactly, that we're teaching in law schools these days.

In the N&O, Titan Barksdale writes about the case of Staples Hughes. Hughes is a longtime attorney in the state's Office of the Appellate Defender. (That means he represents those appealing their convictions who can't afford their own attorneys.) Twenty some years ago, one of his clients confessed to a murder. Hughes, being bound by attorney/client privilege, kept that knowledge to himself, and watched as an innocent man was convicted of the crime. Hughes' client died 5 years ago and he recently came forward with his information. Turns out the rest of the evidence against the guy who's been in jail for the last 20 years wasn't so hot either.

However, the judge who heard Hughes' information not only dismissed it, and refused to grant a new hearing for the convicted man, but now a complaint against Hughes has been filed, which may lead to his disbarring. So, it's better that a man be wrongfully convicted and serve over two decades in prison for a crime he didn't commit than that a lawyer reveal what a man dead for 5 years said twenty years ago? I'd like to hear the upside of disbarring Hughes, or even of rejecting his testimony.

Second, Spencer Ackerman over at TPM, writing about a piece in the WaPo reveals that the US government has essentially carte blanche to monitor "real time tracking data" associated with cell phones, without having to show probable cause.
. . . in December 2005, Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, approving a request for cell-site data, wrote that because the government did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed.

that's the kind of legal reasoning that makes people wonder just who it is that the law is supposed to serve. And why so many people in the legal profession are willing to take these really unforgivable positions.
*note - i'm not making the claim that this case was "frivolous" but it certainly got played that way in the popular press.



  • 60 Minutes and the Washington Post are also following Staples's story, from the angle of the lack of validity of bullet-testing as a form of evidence. Just what NC needs - another case of someone wrongly convicted (accused) because of a lack of credible evidence and testimony, brought to the national level. You'd think the Duke Lacrosse boys would be all over this one, especially since one of their attorneys is the chair of the commission that oversees Staples and NC indigent defense.

    By Anonymous Anonymous, at 10:34 PM  

  • Why would you think that?

    By Blogger Barry Ragin, at 11:31 PM  

  • Well, they were so outraged when they were accused and had to spend, what, less than three hours in jail? This poor guy's been in jail for 22 years. If I was trying to get 30 million from Durham as retribution for having suffered, I'd put some of that money towards helping others who are in the same situation.

    By Anonymous Anonymous, at 1:47 PM  

  • I don't know about NY, but in NC, magistrates aren't required to have a legal education, and indeed the vast majority don't have one. I'm never surprised when a magistrate screws up the law - and they do so on a routine basis.

    By Blogger crc128, at 7:13 AM  

  • According to news reports, the person who rejected Hughes' testimony and is filing the complaint against him is a Cumberland County Superior Court judge, not a magistrate. I'm pretty sure that judges are required to be licensed to practice law in the state.

    By Blogger Barry Ragin, at 8:56 AM  

  • Judges have to have a law degree and be a member of the bar. Magistrates need to have a law enforcement background. Some states require a law degree as well, but in NC magistrates are so underpaid and overworked that no lawyer would want the job.

    By Blogger Emily, at 9:47 PM  

  • If I was trying to get 30 million from Durham as retribution for having suffered, I'd put some of that money towards helping others who are in the same situation.

    Sometimes, assuming that other people would act the same way as you would in similar circumstances is a mistake.

    By Blogger Barry Ragin, at 10:40 PM  

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