« October 23, 2005 - October 29, 2005 | Main | November 06, 2005 - November 12, 2005 »
MPRE, Client Fees and IOLTAs
The MPRE is history for me, I hope. I have no idea. Before the test I was getting 70-80% of practice questions right, and that should be good enough to get a “passing” score for most states. (According to the BarBri review you only need to get 32-38 out of the 60 possible questions correct in order to pass in even the most rigorous states.) So will I be taking the test again in March? I'll know in five weeks.
But while studying I learned something I didn't know about lawyer fees. I haven't ever thought much about fees because I plan on not having to think about them at all for at least the foreseeable future; one of the great things about being a public defender is you don't bill hours or clients (at least in most states). But in studying I learned that when a lawyer is holding a large sum of money for a client for a long period, the lawyer is supposed to put that sum into a client trust account and pay the interest to the client for whom the money is held. If the lawyer is holding a small sum of money for a short period, the lawyer should put it into a pooled trust account (typically a checking account that holds money entrusted by numerous clients) and the interest on the whole pool of money goes to the state bar or to a legal foundation where it's used to fund indigent legal services. These are called “Interest On Lawyer Trust Account” (IOLTA) programs.
Great, right? Except, isn't this just backwards? Why do large sums of interest revert to the client, while small sums go to the poor? Why not just give all the interest—whether from small or large sums, and wether held for long or short periods—to indigent legal services? Why not just tell people, “Hey, if you retain a lawyer and give that lawyer money to safeguard for some reason, the interest on that money is going to go for the greater good.” It would just be one of the costs of legal services.
So whadya say, ABA? Shall we make this little change in our “model” rules?
Posted 10:19 AM | Comments (2) | TrackBack | 3L
spuffy pumpkin picture test
This is a test of posting images from flickr. There are so many great images just waiting to be shared with the world and this blog is so texty texty texty, this may be a great way to break things up a bit.
This image is for M and L, both of whom are Buffy fans. We didn't really do anything for Halloween this year except eat candy so, well, Happy Late Halloween!
MPRE Today
The test is in about 4 hours and I'm busily cramming study questions. I'm not too worried, though. I took the 5-hour BarBri review on Wednesday and I'm armed with the following guide to answering all questions, courtesy of Beau:
Screw your friends, collegues and loved ones, but never screw your clients.
It's a pretty good guide, don't you think? At least for the context of the MPRE. I'll let you know how it goes...
(Note to self: You need to add permalinks to individual comments.)
Posted 08:13 AM | Comments (3) | TrackBack | 3L
Why I don't want to work in a big city
One word: Bureaucracy.
I spent over 4 hours on Tuesday running from office to office, standing in lines and waiting for people to return from random lunch breaks (which sometimes apparently begin at 2:30 p.m.!?), and still I don't feel much closer to where I need to be. The goal was to get a voucher to pay for a transcript of a hearing so I can use that transcript to impeach the cop if he tries to lie. In order to get such a voucher, you have to request authorization and submit your request to the finance office about four blocks from the courthouse. Then, sometime later (maybe a day, maybe two, maybe a week), you have to go to the courthouse and see if your voucher has been issued. If it the office that is supposed to have the voucher doesn't have it, you have no recourse; there is no way to check on whether it's still being processed, whether it was lost, whatever. Your best bet is to start over and come back in another day or two or week and hope it worked the second time. I've now been through this process twice and it looks like I'm going to have to try again.
Bureaucracy, I tell ya....
Oh, if the process ever works, once I get the voucher I have to fill it out and ask the judge to approve it. If the judge approves the expense, I have to then take the voucher to the court reporter and ask them to produce a transcript. Theoretically this shouldn't be a very big deal, but you can see the hoops defense attorneys have to jump through to provide quality representation to their clients.
Anyway, my experience has been that a smaller jurisdiction simply has fewer layers of bureaucracy. Where in D.C. this process requires visiting no less than four offices in two different buildings, the process in a smaller jurisdiction would probably require visiting two offices in the same building. Or maybe not. But the advantage in the smaller jurisdiction is that the people you interact with in this process are less likely to be burned out and overwhelmed because of the sheer mass of humanity that passes through their door each day. You might know their names and they might know yours, and instead of just wanting to get rid of you maybe, just maybe, they'll want to see if they can help you do what you need to do.
In short, my experience has been that smaller jurisdictions are more human, more friendly, and just easier for me to negotiate. I'm sure mileage varies on things like this.
I got a chance to talk a bit w/a friend who worked at PDS last summer and who also worked with me in a smaller public defender's office in the area during our 1L summer. She said PDS is just amazing in terms of the resources it has to defend its clients. For example, whereas in our smaller jurisdiction we always had to battle with the judge to get funds for an expert witness for the defense, at PDS it seems that cost is no object—if they want an expert, they get one and that's that. Each attorney has an investigator and a couple of students to help out with things at all times so the attorneys don't have to mess with investigation or busywork and have more time to prepare for trial. They are “trial machines,” my friend said. And since the prosecutors here never make reasonable plea offers, PDS takes everything to trial. And it wins because it did the work to find every little crack in the government's case and every little fact or bit of evidence that could help its clients. In short, the DC PDS is probably one of the best criminal defense firms in the country.
But you know what? I still don't really want to work there. Ok, PDS wouldn't hire me, so it's not like it's an option, but still, I don't want that kind of pressure, nor do I want to try to plug myself in as a cog in such a huge machine, regardless of how well-oiled it might be. I'm sure the PDS attorneys never have to spend 4 hours running from office to office trying to get a transcript voucher so that would certainly make it better, but still...
So where am I going to work? I don't know. I don't even know where I'm going to sit for the Bar. But I do know that, if at all possible, I will seek out a job in a smaller public defender office in a smaller jurisdiction, maybe something with a dozen attorneys or less. I just think that's the sort of place where I'm going to find a better fit.
Anyway, if anyone's keeping track, my client didn't show up today so I wasn't able to make my arguments about the unconstitutionality of the bail-jumping statute. On closer inspection and thanks in no small part to “Jack” of Gideon's Guardians and his helpful tip, I decided that arguing that the statute was unconstitutional was probably less wise than just arguing that the presumption of willfulness is a very weak presumption that can be rebutted by almost any small amount of evidence showing lack of willfulness—evidence that we just happen to have in this case, I think. I'm sure my client will get picked up again soon and I'll have a chance to try this all out and see how it goes.
Posted 09:52 PM | Comments (1) | TrackBack | 3L crimlaw
Shifting the Burden of Proof and the Sixth Amendment
When does a “rebuttable presumption” shift the burden of proof unconstitutionally from the state to the defendant?
If you're anywhere around the mid-Atlantic region you may have heard recently about the Fairfax County, VA, judge who is tossing out drunk driving cases because he believes Virginia's drunk driving law is unconstitutional.
The judge's argument is that if you presume intoxication at .08, you shift the burden to the defendant to prove his innocence and relieve the state of its Constitutional burden to prove all elements of the offense beyond a reasonable doubt. If a blood test reveals a .08 alcohol level, the state has proven a .08 alcohol level, but has it proven intoxication or impairment? Not necessarily.
So the judge is refusing to convict people accused of DWI if the state is relying only on this presumption and has no other evidence of impairment. This first came up in August and TalkLeft had a thread on it then, and then another last week.
I'm interested in this issue for several reasons, but the big one is this: I have a Bail Reform Act (BRA) trial tomorrow where the statute involved in the case includes the same sort of “rebuttable” presumption and burden shifting as Virginia's DWI law. Should I try to argue that this DC law is unconstitutional?
The D.C. Law is § 23-1327, “Penalties for failure to appear,” which says in pertinent part:
(b) Any failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is wilful.
Section (b) is where the state shifts the burden to defendant. In effect, the statute says: If you don't show, you're presumed guilty until you prove otherwise. That sounds unconstitutional, doesn't it?
Yet, the Second Circuit said that this law was Constitutional. According to the annotations to the statute, section (b):
I don't get it. It's doublespeak. The burden isn't shifted but the defendant has to prove his innocence? How can that work?
But as those TalkLeft threads point out, U.S. law creates rebuttable presumptions all the time. Are all of these unconstitutional, or are there differences among them? And what are the chances a lower court judge is going to say so? None? Yeah, that's what I thought.
Still, I might argue something about this tomorrow. If you have anything to add (esp. cases regarding the Constitutionality of this burden shifting), please share! For example, according to the WaPo:
Does anyone know what those SCOTUS cases are? I haven't had a chance to dig into this so they may be easy to find; no need to do my research for me but if you have them off the top of your head, that would be awesome.
Posted 09:11 AM | Comments (3) | TrackBack | 3L crimlaw
Comments Problemos
Dear Readers,
If you have attempted to leave a comment here in recent weeks and never saw it show up on the site, I apologize. Since I upgraded to MT 3.2, I've been trying to figure out the optimal settings for its new spam filter. Apparently, I had the setting turned too high and all of your great comments were getting junked. I believe I have fixed that and your comments should now appear as soon as you post them (at least for the most part). I will also start watching this more closely in the future. Again, I apologize. Your comments are pretty much makes this worth doing, so please comment early and often. Thanks!
p.s.: Is Typekey authentication working for anyone?
Posted 08:39 AM | Comments (4) | TrackBack | meta-blogging
SCOTUS to Pro Se Criminal Defendants: Screw You
In a per curiam decision, the SCOTUS ruled today in Kane v. Garcia Espitia (PDF) that pro-se criminal defendants have no right to access to legal research materials. In other words, if you want to represent yourself in a criminal matter and you're incarcerated at the time, good luck, bub.
Ok, that's not exactly what it says. So what does it say? Here are your choices:
- The decision shows how out of touch the Court is with the reality of our legal system as it applies to criminal defendants. The court said Garcia Espitia “had declined, as was his right, to be represented by a lawyer with unlimited access to legal materials.” Since when do lawyers have unlimited access to legal materials? Last I checked in most of the country you have to pay for that and some lawyers can't afford it.
- The decision shows how narrowly this Court is interpreting the 6th Amendment.
- The decision shows how the Court uses the AEDPA as another tool to avoid deciding cases it doesn't want to decide.
- The decision shows how awful the AEDPA is for criminal defendants and the Constitution.
- The decision shows the Court respecting the wishes of Congress and declining to decide and issue that has not appropriately arisen for decision.
- The decision shows something else you haven't thought of, you silly little man.
Whadyathink?
Another potentially important criminal case granted cert. today was Hammon v. Indiana in which the Indiana Supreme Court held that a victim’s oral statements to a responding officer were not testimonial and therefore did not violate the confrontation clause of the Sixth Amendment. If the SCOTUS agrees, this could be really good for domestic violence prosecutions and pretty bad for domestic violence defendants.
I learned about both of these cases (and another one about 911 calls that was granted cert. today) via Willamette Law Online's email summaries of breaking legal news. I highly recommend it as a way to stay up-to-date on SCOTUS news (or 9th Circuit or Oregon higher courts, if that's what floats your boat). Good stuff.
Gearing Up for 50k
So what do you do after you've finished your first marathon? Hmm... Why not start your next 50k-word novel? NaNoWriMo 2005 started today and lots of people are already off to the races. You don't need anything but a pencil and paper and a few ideas in your head to get started, but if you're like me, you have almost as much fun with the technology as you do with the writing and wow! is there ever a bunch of technology you can choose from for this “event.”
First and most important in the NaNo tech extravaganza are the writing tools. In the past I've relied on Z-Write or MacJournal to write my novels, but I'm definitely using something new this year. Z-Write hasn't really been updated in quite a while and is a little buggy and aged. MacJournal is great, but it's not really made for this purpose and it's fun to try new things. TUAW reviewed some options recently, and I'm toying with using CopyWrite. It's got lots of cool things, but especially the ability to attach notes to individual documents like chapters or character sketches. (Here's a review of CopyWrite.) Ulysses looks cool, too, but way too expensive. And then there's the Scrivener beta, which looks like the swiss army knife of writing programs. It does all that and a bag of chips, or at least it claims to, but it's beta so you have to wonder about the wisdom of trusting it with your novel. Jer's Novel Writer, appears to be free and filled with all the neato cool things like notes attached to docs and also has a supercool margin notes feature that I imagine I'd use all the time. Finally, there's this Avenir thing that looks interesting, too.
But in addition to writing tools, there are writing counters! Last year I used NaNoWriMoProMe, which makes it easy to show your progress on a blog. But I also used the NaNo Report Card, an Excel sheet that helps you track your progress in multiple ways. You can find multiple versions in that discussion thread, one of which is available here. And if that's not enough, there are more blog word-counters here.
What to do? What to do? Oh, I know, I can play w/technology options all day and not write a word!
Political Theater At Its Worst
While trying to move as little as possible as I recover from the marathon, I've been listening to almost non-stop radio coverage of the nomination of Samuel A. Alito to replace Sandra Day O'Connor on the Supreme Court. I don't know if I've ever heard such a farce. On the left pundits are saying “There's going to be a huge fight; he's a right wing wacko.” On the right, pundits are saying “I don't think there's going to be much opposition; once people get to know him they'll see he's a great guy and they will support him.” I don't believe either side is saying what they think is true. Instead, both sides are taking extreme positions in an effort to shape public opinion. I guess this is how politics works these days: You never hear real opinions and rarely hear many facts; instead, you hear spin. This isn't new; it's just rare that you see it so clearly.
That said, the spin is revealing in itself. The left is arguing from the facts of Alito's long record that he's an extreme Right nominee, while the Right is arguing from nothing more than “he's a really good guy” that he should be unobjectionable. If you had the choice, would you pick a judge based on a concrete record, or would you pick based on whether you thought he was a good guy?
Oh, the Right is also arguing that Alito is “just like Roberts” because Roberts supposedly set such a high standard and everyone loved him. Of course, Alito might turn out to be just like Roberts in terms of how the two would rule in any given case, but we can't know that because we still don't really know how Roberts is going to rule. Roberts turned out to be unobjectionable because he had such a thin record; that's not the case with Alito.
What is certain is that Alito will add nothing to the diversity of the court in terms of background, gender, race, ethnicity, philosophy, experience, etc.
Happy Halloween, everybody. Are you scared enough yet?
Posted 04:08 PM | Comments (2) | TrackBack | law general
Pain Is Weakness Leaving the Body
Ahh. It's over. I “ran” a marathon. The 2005 Marine Corps Marathon was yesterday and I finished 26.2 miles in 5 hours, 15 minutes, and 48 seconds (5:15:48). The top man finished in 2:22 and the top woman finished in 2:47 so I was pretty *cough* close.
I was really hoping for a 5-hour-or-less time, but, well, when you train slower, it's kind of hard to run faster. I hurt today (I'm hobbling around like an old man) but you know what? It was a blast! Yesterday was really a great day and I thank everyone who helped make it happen—all the incredibly generous contributors to my fundraising effort (which will continue until January, if you'd still like to help!), and especially my girlfriend, her sister, and my family, all of whom have been very supportive in every possible way. L. gets the most special thanks for being there through the whole thing, following my split times through her cell phone, racing all over the course to cheer me on, and then being there at the end w/a smile and open arms which was really all I needed to cap off such an amazing experience. Thank you L, and thank you all!
I learned several things running my first marathon. First, even though I hadn't planned on it, it's fun to have a camera with you. I took several photos, some of which I've turned into an MCM Photo Set on Flickr. However, I wish I had taken more photos—especially since I wasn't ever going to set any speed records, I should have taken more time to savor the whole thing a bit more. That said, there were points yesterday where my right arm and shoulder hurt so much I thought I was going to have to quit the race. I've never felt that before and I wonder if it was from reaching around to grab my camera off my hip and raising it to take pics while running and walking. It sounds like these are small things, but every little movement can add up over 26.2 miles.
The other things I learned is that you shouldn't start too fast! My AIDS Marathon coaches told us this repeatedly, but I foolishly didn't listen. I feel badly because I started out as the ringleader in the first few miles pushing the group I was with to keep a 5-hour pace. One of the five of our group went on to finish in 4:58, another in 5:01, and another in 5:12, so the starting out fast didn't hurt them too much. However, I certainly started feeling it and had to slow down, as did my running partner; at about mile 17 (in the middle of the Haynes Point Psychout) we hit a big wall. We got a bit of a second wind after slowing down for a few miles, but we never really returned to our earlier pace. So the lesson is to try to start slower, and maintain a steadier pace. Of course, I wonder if maybe we had just pushed through that wall and tried to keep going, would we have gotten our second wind, anyway? Or would we have pushed ourselves to the point of breakdown and been unable to finish? We'll never know. That's what makes a marathon so tough; it's a mind and balance game, trying to judge what kind of pain you can push though, and what kind of pain is really going to bring you crashing to a halt.
Anyway, for the record, here's what we did: We started at a 4:1 run/walk ratio—running four minutes, walking one. At the 10-mile mark we turned it up to a 5:1 ratio, and at mile 18 or 19 we turned back to the 4:1. For the last 2.2 miles (from the 24 mile mark) I ran through all walk breaks—very slowly, obviously. Here are our mile splits:
1—12:46
2—13:10
3—11:53
4—12:23
5—11:28
6—11:22
7—11:36
8—11:19
9— (missed it)
10—21:53 (/2=10:57)
11—10:50
12—11:02
13—11:19
14—11:15
15—11:56
16—11:39
17—11:58 (we crashed)
18—16:08
19—12:06
20—(missed it)
21—25:37 (/2=12:49)
22—14:00 (we walked an entire 4-minute run period during this mile)
23—12:12
24—13:45 (we again walked an entire 4-minute run period during this mile)
25—11:10
26—13:01
Best mile: 10:50
Avg time: 13:09 (that's about a minute off b/c of the two splits I missed; the real average was 12:02, according to the official results).
I sadly placed 13,403rd out of 19,112 marathon runners—not even middle of the pack. (There were supposed to be 30,000 runners, but the results site says only 19k were “marathon runners.” I have no idea where the rest of them were.) I was the 8,711th man to finish out of 11,294 male marathon runners, and number 1,406 out of 1,714 in my age group. Yeah, that's sad.
Posted 10:14 AM | Comments (13) | TrackBack | marathon
