Andrea D. Lyon (DePaul University – College of Law) has posted The Promise of Effective Assistance of Counsel: Good Enough Isn’t Good Enough (The Champion, June 2012) on SSRN. Here is the abstract:

As a part of the National Association of Crminal Defense Lawyers perspectives on Gideon v. Wainwright’s 50th anniversary, this article examines the promise of effective assistance of defense counsel, and how low that standard is and its deleterious effects on justice.

Senior District Court Judge Tanow in US v. Beals, No. 10-5264 (6th Cir. Oct. 16, 2012) (available here),  has an thought provoking  concurring opinion discussing plea agreements.

In this case, Miller’s plea agreement contained a waiver of appeal unless her eventual sentence was “above the sentencing guideline range as determined by the district court.” The Court finds, and I agree, that based on language of her waiver, Miller’s eventual sentence was not above the guidelines range as determined by the district court — though the district court’s determination of the guidelines range was contrary to the stipulated facts in her plea agreement.

The Court holds that Miller “could have bargained” for a narrower waiver, for instance by including language that she reserved the right to appeal whether “the Court incorrectly determined the guidelines range.” The Court thus implies that Miller consciously chose to forego a more narrow waiver for some unstated advantage, or that she was simply deficient in her bargaining and unnecessarily exposed herself to the possibility of a higher sentence.

My point is not to question the Court’s holding that Miller’s waiver was knowing and voluntary, but rather to note that requiring sophisticated bargaining by criminal defendants to retain the right to appeal a sentence likely contributes to uncertainty regarding whether a plea was knowing or voluntary.  It does not seem to me that justice is served by permitting plea agreements that (bargaining aside) result in defendants agreeing to a plea that they did not intend or properly understand.  Moreover, defendants may have less incentive to accept guilty pleas if they are concerned that they are actually at risk of a higher sentence than they thought had been agreed to in their plea agreement.

I would recommend that counsel for both defendants and the government strive to create plea agreements that state in plain terms the maximum possible sentence a defendant might receive.  Defendants who plead guilty based on an agreement that provides a clear statement of the maximum likely sentence are adequately forewarned of the possible consequences of their guilty plea, even in a “worst case” scenario where, as here, a court construes the evidence and sentencing guidelines differently than a defendant expected when agreeing to their plea.

If discussion of the maximum possible sentence is required in plea agreements the result is to eliminate ambiguity in the guilty-plea process, surely an important goal given the interests at stake….

The plea agreement in this case does not mention the actual maximum possible sentence that Miller might have (and did) receive.  While a stipulation in a plea agreement cannot bind a sentencing court to a particular sentence, plea agreements should state the maximum possible sentence that a defendant might receive and, if subjected to a sentence above that maximum, waivers of appeal should not be enforced.

The Kansas Supreme Court has upheld the state law that caps the damages awarded in medical malpractice cases.  The long-awaited ruling found that the $250,000 cap on non-economic damages — damages awarded for pain and suffering — did not violate the Kansas Constitution.
The 5-2 ruling was a victory for the state’s medical and business community and a loss for trial lawyers and organizations including AARP and the AFL-CIO. The justices did, however, suggest state lawmakers raise the cap in recognition of decades of inflation

Read more here: http://www.kansascity.com/2012/10/05/3849007/kansas-high-court-upholds-malpractice.html#storylink=cpy. The Kansas Supreme Court’s decision is directly contrary to the Missouri Supreme Court decision on pain & suffering damage caps. The Missouri Supreme Court found  a $350,000 limit on jury awards for “pain and suffering” in medical malpractice cases unconstitutional. The cap on malpractice awards was established by a 2005 state law that was   part of a “tort reform” push.

In a 4-3 decision, the Missouri Supreme Court  said the cap “infringes on the jury’s constitutionally protected purpose of determining the amount of damages sustained by an injured party”

The Center for American Progress has an interesting new report on campaign contributions and judicial elections. The report states, “As this year’s election approaches, political attack ads are flooding the airwaves, fueled by unprecedented sums of money from corporations and wealthy individuals funding “independent” political ads. Much of the money is funneled through nonprofit organi­zations that do not disclose their donors.”

In August 2012 the Center for American Progress issued a report on how campaign donations from big business have come to dominate judicial elections, resulting in courts that favor corporations over individual citizens. This new report concludes with recom­mendations for strong rules that require reporting of all ads that mention candidates, including information on those who gave money to independent spenders. States should also respond to Citizens United by requiring corporations engaged in political spending to disclose that information to their shareholders.

Although disclosure laws usually apply to elections for all branches of government, these recommendations were made specifically with judicial campaigns in mind. Judicial elec­tions involve unique interests that make the need for transparency in campaign finance even greater than in other elections. The full report can be found at: http://www.americanprogress.org/issues/civil-liberties/report/2012/10/16/41451/policy-solutions-to-the-corporate-capture-of-state-supreme-courts/

It seems so simple. You are a judge, not a mathematician, and yet there is a lot of truth in Justice Stephen Breyer’s observation, “You explain to people first, why is it that I think what I think? You’re not trying to prove a point. Law is not mathematics. If I am a mathematician, I am trying to prove why ‘A’ follows from ‘B.’ But this is not the nature of this discipline. The best I can do is explain to a reader what my reasons are for adopting this particular conclusion.”

In 2006–2007, Bryan Garner interviewed eight of the nine Justices about legal writing and advocacy. These are the complete interviews:  http://www.lawprose.org/interviews/supreme-court.php?vid=breyer_part_1&vidtitle=Associate_Justice_Stephen_Breyer_Part_1

Because the files are large, the videos may take a few moments to start

LawProse is making these interviews available as a public service. Anyone may freely use these videos for educational purposes, with appropriate attribution to Bryan Garner or LawProse. 

No matter what court we sit on, becoming a better writer surely is something all of us can do.

Admired @ Work: Start Where You Are

In our interviews with the world’s highest achievers, one after another told us how important it is to do your job better than anyone has before you.  “Do it like you’re going to have it forever,” Jeff Immelt advised over coffee one afternoon.  Don’t spend all your energy and talent focused on “the next job; learn something – learn a lot – about the job you have today.  First go deep, then go broad.”  First develop a skill set and demonstrate that you’re good at it, and then you will earn the attention to be offered more opportunities. 

Ironically, people are so busy looking for the perfect job or the dream opportunity they forget to pay attention to the job they have.  The most valuable people in your life – your boss, your colleagues, your organization, your significant others/family – will remember if you tried your best and treated others with respect.  They will want to help you as you helped them and that may mean an amazing job opportunities or key connections that change your life forever.  On the other hand, no one will thank you for keeping one foot out the door, waiting for your change to move on to a better place.  And opportunities might just pass you by because of it. 

If you don’t feel you can add value where you are, think about where you could add value and get yourself there.

Excerpts taken from “Admired – 21 Ways to Double Your Value” by Mark C. Thompson and Bonita S. Thompson

Jason Mazzone (University of Illinois College of Law) has posted Batson Remedies (Iowa Law Review, Vol. 97, pp. 1613-1633, 2012) on SSRN. Here is the abstract:

Batson v. Kentucky and its progeny hold that discriminatory uses of peremptory challenges in jury selection are unconstitutional. However, the appropriate remedy for the constitutional violation is unclear. The Batson Court addressed remedies in a single ambiguous footnote that identifies two possible remedies: discharging the venire and selecting a new panel or reseating the improperly stricken juror. This footnote did not, however, specify whether these are the only permissible remedies, and it did not explain when one of the two is more appropriate than the other. Subsequent Supreme Court cases also do not clarify what the appropriate remedy is for a Batson violation, and the Court has never overturned a remedy imposed by a trial judge. This essay, prepared for a symposium marking the twenty-fifth anniversary of Batson, canvasses the remedies that state courts have imposed for Batson violations and discusses some underappreciated opportunities that Batson presents to state courts to address discriminatory uses of peremptory challenges. Recent case law from the Supreme Court distinguishes between the authority — vested ultimately in that Court — to define a federal constitutional violation and the authority of state courts to determine how best to remedy the violation. Read in light of this case law, Batson gives state courts considerable leeway to adopt their own unique measures to respond to discrimination in jury selection practices.

Justice At Stake reported a very troubling situation in Wisconsin. Judges, no matter what their position….from limited jurisdiction to the Supreme Court, are occasionally called upon to make a decision that is politically unpopular with some people. But if courts are to be fair and impartial, if judges are to contribute to maintaining our democracy, fear can’t drive decisions, and there is no place for retribution in reaction to honestly drafted orders. 

“Dane County Judge Juan B. Colas has gotten outraged letters and calls after ruling against parts of Act 10, Wisconsin’s law that restricted collective bargaining for many public employees.

Judge Colas was accused of being a “cheap political hack for the Marxist Democratic Party” in one letter, and a “damned liberal activist kangaroo jurist” in another. Some angry individuals cited his race. The comments followed Governor Scott Walker’s petition assailing Colas for his ruling.

Chief judge of the Fifth Judicial Administrative District, Bill Foust, criticized as inappropriate the harsh responses to Colas’ ruling as well as Gov. Walker’s assault on the judge. For more, see Gavel Grab.”

For most judges we read stories like this and think something along the lines of “could have happened to me.”

Perhaps we need to do something more, like sending a note to Judge Colas saying our profession is with you.