Access to Justice

By Benjamin G. Davis This commentary first appeared in the Toledo Blade on June 17, 2012. On Sept. 11, 2001, I lost a friend from high school who had gone to the World Trade Center in New York City that day to make a speech. I cannot imagine…

Judicial vacancies restrict access to the federal courts, make litigation more expensive, and insidiously undermine the credibility of government. And a confirmation process that prevents qualified candidates of an elected president’s party from taking office sways the judiciary further to the right despite an election where voters said civil liberties, clean air, privacy, reproductive rights, social justice, and corporate accountability were important issues for our federal government to maintain and safeguard. The Alliance for Justice has created a fantastic resource to help educate voters and civic leaders about the state of judicial nominations. The Judicial Selection Project has a running count of vacancies in the district and circuit courts, along with profiles of all of the current nominees. It’s a great lesson in the advise & consent function of the Senate, or at least what can go wrong with it.

By Hugh Mundy During its October 2011 term, the Supreme Court issued two well-publicized decisions severely curtailing the already tenuous Fourth Amendment rights of the accused and incarcerated.  First, in Howes v. Fields, the Court held that prisoner interrogations held “in private” about “events occurring outside the prison” do not require Miranda warnings.  In addition, in Florence v. Board of Chosen Freeholders, the Court sanctioned jailhouse strip searches of arrestees without reasonable – or any – suspicion of criminal activity.  Even as the Court further eviscerated the Fourth Amendment rights of those in custody, two other rulings, Maples v. Thomas and Martinez v. Ryan, extended the Sixth Amendment right to counsel for incarcerated litigants.  Still, unlike the obvious damage to prisoner’s rights wrought by the Fourth Amendment cases, the utility of the Maples and Martinez for inmates seems murky at best. In Maples, the Court held that a death row inmate established good cause to excuse his failure to move for post-conviction relief after his lawyers missed a filing deadline in state court. While the case made headlines as Maples’ pro bono attorneys hailed from the prestigious New York firm of Sullivan & Cromwell, its precedential value appears limited.  Indeed, in determining that Maples demonstrated good cause for his delinquency, the Court narrowly tailored its ruling to the unique case facts surrounding the botched appeal.  Those “unusual and extraordinary circumstances” included a “mail room mix-up” at Sullivan & Cromwell, a failure by Maples’ local counsel to file a notice of appeal, and an admission by Maples’ trial attorneys that they “were stumbling around in the dark” during the sentencing phase of his trial.  In a concurring opinion, Justice Alito noted that Maples was entitled to relief due to the “perfect storm of misfortune” that engulfed his appeal. Martinez, by contrast, received comparably little media attention.  The case may have been overlooked because it deals, in large part, with complicated state procedural rules governing access to federal habeas corpus review.  As a result, the opinion is not easily reduced to sound-bites or headlines. 

This morning NPR broadcast a report on the millionaire contributors to the various Super PACS which will only fuel the vitriol of this presidential election cycle. The list of contributors, those who have given a million or more and to which PAC, is available on line. Robert Smith, the NPR reporter, focused on Steven Lund, who had set up a phony corporation to hide the fact that he had given $1 million to Restore our Future, the Super PAC supporting Mitt Romney. I could have easily slipped into cynicism, believing that Citizens United (2010) was indeed the death knell of our democracy. I could have slipped deeper into despair thinking that the U.S. Supreme Court might overturn Citizens United, but not before the Super PACS had done their damage and gotten Obama out of office. At first I tried to elicit Stephen Colbert’s satire, his Super PAC, Making a Better Tomorrow, Tomorrow. But even Stephen’s wicked humor didn’t help. That’s all I could conjure was a scene of depressed and disappointed would-be voters who might just sit out this election. I was recognizing the symptoms: cynicism, passivity, and victimhood. These are self-government’s deadly enemies.

  Written by Raquel Aldana, University of the Pacific, McGeorge School of Law Today was a historic day for Guatemala. A few hours ago, after a long day of heady hearings, a Guatemalan court opened a criminal case for genocide against Retired Military General Efraín Ríos Montt and ordered him…

I think the major problem with David Segal's November 19, 2011 article in The New York Times, like much of what has been written in the vein lately, is that the perspective is way too narrowly on the large law firms and the elite law schools. While many law schools follow the lead of the elites, many also do not, but most of the schools who do not follow the model as closely are the lower ranked schools. The large law firms could solve some of their problems by recruiting at law schools that actually do produce practice ready graduates. USNews is also a big factor and could change the ranking formula to account for practice ready curriculum and teaching excellence. I realize that there has been a trickle down effect in the legal job market so that all new graduates are likely to find themselves competing with more experienced lawyers for any openings, but that is likely a very short term effect, and many of the newly unemployed former associates from large firms will find that they actually did not get much useful transferable experience during the first couple of years at those firms.

Two weeks ago SALT collaborated with The John Marshall Law School and Northern Illinois University College of Law to bring to practitioners and recent graduates of color some of the ways to “break into” the legal academy from practice, public interest, and government service. During one of the panels, Rogelio Lasso, commented that back when he was first looking to get a job as a professor, Michael Olivas as the founder of Latino Law Professors, maintained his own list of qualified Latina/Latino attorney-scholars and recent graduates who were ripe to join a law school faculty. Whenever a dean or hiring chair complained that there were no qualified applicants, Michael would pull out his list. Now SALT’s programs, along with LatCrit and the various People of Color conferences, make those secret handshakes and unspoken rules more transparent. The consequence is a slow and steady push towards greater diversity within the faculty ranks of the legal academy. This past weekend, SALT, along with Seattle University School of Law and its Fred T. Korematsu Center for Law & Equality and University of Washington School of Law, presented the third biennial “Promoting Diversity in Law School Leadership” workshop, hosted at Seattle University School of Law. An enormous thank you goes out to Robert S. Chang, associate dean for research and faculty development and executive director of the Korematsu Center for his extraordinary efforts to plan this workshop, recruit the panelists, and ensure that the discourse was subtle, complex, and helpful to candidates, new deans, and those serving on dean search committees.

Amidst the discouraging stream of newspaper articles and blogs this summer demonizing law school deans, accusing university presidents of raiding law school tuition revenues, and suggesting a giant conspiracy to cover up the fact that there are very few $160,000 a year jobs for recent law school graduates, it appears that only the oblivious might consider enrolling in law school this fall. I beg to disagree. Now is the right time to encourage students from diverse racial, ethnic, and economic backgrounds to consider a legal education. We cannot allow the legal profession a detour from its mission to produce lawyers and leaders from all communities due to the economic downturn.

By Benjamin G. Davis, Associate Professor, University of Toledo College of Law A colleague brought to my attention this week an article concerning the effort to extradite former Acting General Counsel John Rizzo of the Central Intelligence Agency to places such as Pakistan for him to stand trial for murder with regard to persons killed by drone strikes.  This article struck a chord with me because John Rizzo played the key role in authorizing drone strikes on individuals in  this administration, but also was a key player as detailed in the Department of Justice Office of Professional Responsibility Report released by Attorney General Holder in seeking legal cover/clarity for the CIA persons engaged in the torture under the Bush Administration.  Rizzo also spoke at my law school last year as part of a law review symposium on the Military Commissions in which persons from the floor raised issues about his role in the torture.  This article also struck me as I work this summer on topics related to accountability in our federalism and separation of powers for a law review article looking at state criminal prosecution of a former President. The legality of drone strikes has been the subject of much debate as persons have argued whether they should be analyzed under the legal regimes of international humanitarian law, international human rights law, domestic law such as the Authorization for Use of Military Force, or a construct that has sought to be seen as emerging that might be called international self-defense law.  The analysis of the torture over the past years has also sought to look for treaty, customary international law, and domestic federal statutes.  For example, we have recently been made aware that two criminal cases concerning torture and the CIA are going forward at the suggestion of US Attorney John Durham.  Durham was tasked by the Attorney General at the Department of Justice to review 101 cases regarding detainee treatment and the CIA to see if there were any cases where the treatment was outside the boundaries of the legal advice given.  Finally, the definition efforts for the crime of aggressive war in the Rome Statute that recently occurred at Kampala are another aspect of  trying to articulate rules for criminal responsibility for actions taken by state actors.

Written by Stacy Caplow, Brooklyn Law School We need a structured program for recent law graduates to provide legal services to poor, unrepresented immigrants while developing skills and knowledge to improve the level of competency of the immigration bar for the long haul. Words like "crisis," "disgrace" and "disaster" were used to describe the state of the immigration adjudication system at a newsworthy colloquium earlier this month at which retired U.S. Supreme Court Justice John Paul Stevens addressed a crowd of several hundred concerned lawyers. The audience for the event, held at Yeshiva University Benjamin N. Cardozo School of Law, included immigration court judges, as well as lawyers from major law firms, small immigration firms, nonprofit organizations, government agencies and academia. Everyone in attendance shared the view that a system in which individuals charged with even minor crimes are guaranteed a lawyer whereas that same person facing deportation could be removed from family, work and friends without any legal representation is an unfair system indeed. The plight of many immigrants in the New York state region facing deportation without the assistance of counsel was dramatically revealed in data released at the conference, prepared by the New York Immigration Representation Study, a two-year project of the Katzmann Immigrant Representation Study Group and the Vera Institute of Justice. With the benefit of counsel, a nondetained immigrant represented by a lawyer had a 74% chance of avoiding deportation, whereas a detained immigrant without counsel had only a 3% rate of success. The transfer of huge numbers of individuals from New York to detention facilities in Texas, Louisiana and other faraway states, making it almost impossible to obtain the help of a lawyer, exacerbates this stark contrast.

Written by Hazel Weiser As the U.S. Supreme Court winds down its term with several more controversial split decisions yet to come, we are reminded once again of how important an independent judiciary is to the maintenance of a democracy.  Back in 2007, when General Musharraf of Pakistan closed shut that country’s Supreme Court, lawyers took to the streets in their black suits and ties to protest the action.  In Guatemala, the lack of an independent judiciary is preventing survivors and families from seeking redress for the atrocities committed during that nation’s extended civil war.  Here in the United States, we wonder whether the ideological underpinnings of this Supreme Court ensures that our next president will be elected by WalMart or Goldman Sachs rather than by an informed electorate. That’s why a 2008 documentary about the South African judicial system called “Courting Justice” might be a good addition to your summer viewing.  “Courting Justice” will certainly raise your spirits, hope, and confidence that change is possible with a whole lot of determination, discipline, and collective action.

Professor Douglas Colbert Meet Our Members: A Q & A with Professor Douglas Colbert on Access to Justice Interview by Olympia Duhart Professor Douglas Colbert is the Jacob A. France Research Professor of Law at the University of Maryland School of Law. He joined the faculty at Maryland in 1994 after directing the criminal justice clinic and teaching civil rights at Hofstra Law School and visiting at Northeastern and Utah Law Schools. In addition to teaching the Access to Justice criminal defense clinic, Professor Colbert also teaches Criminal Law, Constitutional Law, International Human Rights, and Race and Criminal Justice. Professor Colbert has written extensively about professional responsibility, indigents’ right to counsel, the Thirteenth Amendment, race discrimination in jury selection, affirmative action, police misconduct, politically sensitive trials, and legal scholarship. His latest scholarly activities focus on the profession’s ethical responsibility to meet its public citizen/pro bono responsibility to ensure access to counsel for people who cannot afford a lawyer, and on reforming states’ criminal justice system to guarantee counsel at the bail stage. Currently, Professor Colbert serves as the co-chair of SALT’s Access to Justice Committee, along with Pamela Bridgewater (American).  We spoke to him about the Committee’s efforts to encourage law professors to engage students more deliberately about a lawyer’s ethical pro bono responsibilities as a “public citizen having a special responsibility to the quality of justice” and to educate students about the legal system’s deficiencies in denying most people access to justice.

By Olympia Duhart When I went to see the movie Biutiful, I was especially looking forward to experiencing (at least on film) parts of Barcelona, Spain. My friend Diego, from Barcelona, promised me that once I saw the film I would be eager to visit his stunning city. He has never been more wrong. Biutiful, the intense and sometimes disturbing film by Alejandro González Inárritu, is many things. But an advertisement for Barcelona tourism is not one of them. The film is relentless in its visceral exposure of a naked and desperate city that is plagued with modern-day ills.  In 148 minutes, Biutiful challenges us to consider mental illness, health care failures, racism, homophobia, police brutality, the exploitation of undocumented workers and poverty. Although set abroad in one of the most beautiful European cities, it could be set in almost any city in the world.  The story would almost be undisturbed, for instance, if it were filmed in my own home town – Miami. The conflicts that propel the story, frustrate the protagonist and overwhelm the audience are all too common. Uxbal, the 21st century construction of The Bible’s Job portrayed by Javier Bardem, is struggling to balance a life amidst utter chaos. He also is trying very hard to protect his family and though he falters, he never abandons his quest to restore his damaged moral compass. He is a complicated and troubled man who is trying to make some money in the seedy underground business world and navigate several personal trials. His special connection to the after-life is entirely overshadowed by the turmoil of his grueling life here on earth. He has to worry about the police, a mentally ill wife, a dishonest brother, a serious illness and generally surviving life in the ghetto. Bardem has said of his role that it was “the heaviest movie I’ve done in my life and one of the heaviest I will ever do.” It’s easy to see why.Biutiful refuses to glamorize the difficulties inherent in each of the obstacles blocking Uxbal’s path to redemption. It presents a host of maladies with raw and tragic realities. For example, mental illness is difficult to diagnose, impossible to manage without professional help and likely to disrupt even the most precious love. It is made more dangerous among poor people who cannot afford treatment. Though mental health disorders are now pervasive throughout the United States, many sufferers do not receive treatment. Sometimes cultural bias restrains mentally ill people from accessing the mental health care they need. The results wreck entire families. Uxbal’s trials with his mentally ill wife demonstrate these truths.