Defending People

Posted By Mark Bennett on May 14, 2013

A recent Gallup poll names the Hous­ton, Sugar Land, and Bay­town region among the least safe U.S. metro areas, accord­ing to res­i­dent con­fi­dence in the safety of where they live.

Only 63 per­cent of those polled in the Hous­ton area responded that they felt safe walk­ing alone at night in the area they reside.

* * * * *

Com­pare that to the 80 per­cent in the Minneapolis-St. Paul area who feel totally secure walk­ing after dark. Tex­ans might scoff that with frigid Min­nesota tem­per­a­tures, crim­i­nals would be stymied to com­mit vio­lent acts in five lay­ers of cloth­ing. Hous­ton must have crime-friendly weather, for the most part.

(Hous­ton Chron­i­cle.)

Maybe. Or Min­neapoli­tans might more real­is­ti­cally scoff that Hous­to­ni­ans are more fright­ened than their crime rate merits.

The head­line on the Chron­i­cle arti­cle is Poll of res­i­dents puts Hous­ton on list of least-safe U.S. cities. “Most-frightened” would have been more accu­rate: there is no strong cor­re­la­tion between violent-crime rates and res­i­dents’ fear.

Accord­ing to FBI Uni­form Crime Report­ing Sta­tis­tics for 2010*, Houston’s violent-crime rate (as reported by HPD) edges Minneapolis’s (as reported by MPD) only nar­rowly: 1071.3 vio­lent crimes per 100,000, com­pared to 1062.3 for Min­neapo­lis. (So much for the “too cold in Min­nesota to jack peo­ple” theory.)

Jack­sonville res­i­dents are as scared as Hous­ton res­i­dents, with a violent-crime rate one-third lower (664.4).

Res­i­dents of San Bernardino, with a violent-crime rate of 773, are more fright­ened (61% “yes, safe”) than either Hous­to­ni­ans or Jack­sonville res­i­dents (63%).

New Orleans has an even lower violent-crime rate (754.4) and more fright­ened (59%) residents.

Mem­phis res­i­dents’ fear is more in line with their dan­ger. In line, but not nec­es­sar­ily pro­por­tional. Whereas out of 100,000 Mem­phis res­i­dents 1,607.8 will be vic­tims of vio­lent crime in a given year, fifty times as many don’t feel safe walk­ing alone at night.***

“Math is hard” is my short­hand for Amer­i­cans’ ten­dency to treat fear as risk, and this Chron­i­cle arti­cle typ­i­fies the prob­lem. Hous­ton is one of America’s least safe cities (in the top third of the biggest 50, albeit safer than Tulsa, Nashville, or Indy, among oth­ers); there are solid sta­tis­tics to put it there. A Gallup poll show­ing that Tex­ans aren’t as brave as they like to pre­tend doesn’t show that Hous­ton is unsafe; it shows that they’re unbrave.

*UCR stats are by police depart­ment rather than by met­ro­pol­i­tan area. I’m using the major city in the area as a proxy for the entire area. Crime rates are gen­er­ally lower in the sub­urbs, so metropolitan-area crime rates are gen­er­ally lower than city-only crime rates. The image is of the fifty largest cities, sorted by vio­lent crime rate.

**Nei­ther Detroit nor Chicago res­i­dents appear to have been included in the sur­vey.

***The fear of vic­tim­iza­tion is partly self-fulfilling. The more peo­ple are afraid to be out­side at night, the fewer peo­ple are out­side at night and the greater the like­li­hood that any of them will be vic­tims of vio­lent crime.

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Posted By Mark Bennett on May 12, 2013

When I got a copy of Mark Ger­a­gos and Pat Harris’s Mis­trial: An Inside Look at How the Crim­i­nal Jus­tice Sys­tem Works … and Some­times Doesn’t in the mail, I was primed to be either out­raged or bored.

I’ve expressed my view of L.A. legal cul­ture and lawyers who rep celebri­ties qua celebri­ties before and clients who hire lawyers who rep celebri­ties, and I was pre­pared to be bored, when read­ing Mis­trial, by Mark Ger­a­gos and Pat Har­ris, by a self-adulatory story book about the criminal-justice sys­tem for the TMZ set. The pub­lisher sent me the book for free; I resolved to read at least fifty pages of it, no mat­ter how atro­ciously celebrity-worshipping.

Pat Harris’s intro—in which the fomer Ten­nessee PD describes meet­ing Mark Ger­a­gos acci­den­tally while look­ing for a high-profile lawyer to take his girl­friend Susan McDougal’s case for the media cov­er­age, chal­lenged my resolve to read at least fifty pages. A for­mer pub­lic defender, of all peo­ple, should rec­og­nize that some of the best lawyers get the least pub­lic­ity, and that “for the pub­lic­ity” is a lousy rea­son for a lawyer to take a case (on that point, if pub­lic­ity is the only cur­rency you have, that’s the cur­rency you spend). A for­mer pub­lic defender, of all peo­ple, should not shy away from tak­ing an unpop­u­lar case, as Har­ris later describes doing with the Scott Peter­son case.

But I plugged on, and after I’d read those first fifty pages I tweeted a brief pre­lim­i­nary review: “doesn’t suck.” 

Ger­a­gos and Har­ris see the criminal-justice sys­tem through a Cal­i­for­nia lens. They see a cou­ple of things wrong (in what uni­verse are judges “held to a very high stan­dard by judi­cial com­mis­sions across the coun­try”?); they’re nar­cis­sis­ti­cally churl­ish two or three times (before they were removed from the defense of Michael Jack­son, “[t]he case had become such a slam dunk that we doubted it would even get to trial”), but they’re right about the prob­lems with the sys­tem, and they illus­trate some of those prob­lems well with anec­dotes both from the defense of celebri­ties and from the defense of ordi­nary clients.

And mostly they’re right about the solu­tions. They close the book with nine mer­i­to­ri­ous sug­ges­tions for improv­ing the Amer­i­can criminal-justice sys­tem, which if adopted would make the sys­tem much more fair and just (and one atro­ciously, hideously, ridicu­lously bad idea, which deserves to be mocked in a sep­a­rate blog post).

And here’s a prob­lem that this book solves: if you’re an ordi­nary trench lawyer and you write a blog or a book—even an emi­nently read­able and enter­tain­ing book such as Mis­trial—about the prob­lems that slant America’s criminal-justice sys­tem unfairly against the accused, then most of your read­ers are going to be peo­ple such as me (and Green­field, and Lat, and prob­a­bly you) who already rec­og­nize that there are prob­lems that bias America’s criminal-justice sys­tem unfairly against the accused. Most Amer­i­cans, who have been sold by the Angry Blond White Women on the idea that the sys­tem gives guilty! guilty! guilty peo­ple too many breaks, are going to pass over your book—they’re too busy watch­ing Nancy Grace, and if they’re read­ing any­thing law related, it’s The Com­plete Idiot’s Guide to the Crim­i­nal Jus­tice Sys­tem. This is a func­tion of con­fir­ma­tion bias: most peo­ple, hav­ing con­cluded that the world is a cer­tain way, will seek out evi­dence to con­firm their con­clu­sion and actively avoid evi­dence that might refute it.

So if a lit­tle bit of name-dropping by Ger­a­gos and Har­ris will get a few of those folks whose view of the criminal-justice sys­tem is informed by the talk­ing heads on TV to read it—if they’ll come for the celebri­ties and stay for the diag­no­sis and the prescription—if the book itself helps cure one of the dis­eases it diagnoses—then god­speed to Ger­a­gos and Harris.

Can you think of some­one who doesn’t already know that the sys­tem is screwed, but who might be open to the idea? Tell me about them in the com­ments; I’ll send my copy of the book (I resisted the strong temp­ta­tion to anno­tate it) to the most wor­thy recipient.

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Posted By Mark Bennett on May 9, 2013

One of the few great virtues of Amer­i­can crim­i­nal jus­tice is that it is com­mit­ted in the light of day. Courts are open to the pub­lic, and generally—not always; anony­mous juries are becom­ing more com­mon, which iron­i­cally means that the ter­ror­ists have won—the accused gets to know who is judg­ing him. In any case, he gets some say, through the process of jury selec­tion, in who judges him.

He doesn’t get any say in who makes the accu­sa­tion against him, but in Texas, where there is a con­sti­tu­tional right to be tried on a grand-jury indict­ment, he can at least know who the grand jurors were.

Arti­cle 19.08 of the Texas Code of Crim­i­nal Pro­ce­dure lists the qual­i­fi­ca­tions for a grand juror:

1.  The per­son must be a cit­i­zen of the state, and of the county in which the per­son is to serve, and be qual­i­fied under the Con­sti­tu­tion and laws to vote in said county, pro­vided that the person’s fail­ure to reg­is­ter to vote shall not be held to dis­qual­ify the per­son in this instance;

2.  The per­son must be of sound mind and good moral character;

3.  The per­son must be able to read and write;

4.  The per­son must not have been con­victed of mis­de­meanor theft or a felony;

5.  The per­son must not be under indict­ment or other legal accu­sa­tion for mis­de­meanor theft or a felony;

6.  The per­son must not be related within the third degree of con­san­guin­ity or sec­ond degree of affin­ity, as deter­mined under Chap­ter 573, Gov­ern­ment Code, to any per­son selected to serve or serv­ing on the same grand jury;

7.  The per­son must not have served as grand juror or jury com­mis­sioner in the year before the date on which the term of court for which the per­son has been selected as grand juror begins;

8.  The per­son must not be a com­plainant in any mat­ter to be heard by the grand jury dur­ing the term of court for which the per­son has been selected as a grand juror.

Only by know­ing who the grand jurors are can the accused know that they have over­come these low hur­dles. For­tu­nately, under Texas Code of Crim­i­nal Pro­ce­dure Arti­cle 19.42 grand jurors’ names are a mat­ter of pub­lic record: 

Art. 19.42. PERSONAL INFORMATION ABOUT GRAND JURORS. 

(a) Except as pro­vided by Sub­sec­tion (b), infor­ma­tion col­lected by the court, court per­son­nel, or pros­e­cut­ing attor­ney dur­ing the grand jury selec­tion process about a per­son who serves as a grand juror, includ­ing the person’s home address, home tele­phone num­ber, social secu­rity num­ber, driver’s license num­ber, and other per­sonal infor­ma­tion, is con­fi­den­tial and may not be dis­closed by the court, court per­son­nel, or pros­e­cut­ing attorney.

A bloated sen­a­tor from Wichita Falls, Craig Estes, would change that, amend­ing Arti­cle 19.42 to make the names of grand jurors secret, reveal­able only on a show­ing of good cause. Estes’s bill has passed the Sen­ate, and is up for hear­ing on Mon­day in the House.

Estes styles him­self a “con­ser­v­a­tive”; I don’t think that word means what he thinks it means: there is noth­ing con­ser­v­a­tive about turn­ing grand juries into star chambers. 

Aside from the effect on the accused’s abil­ity to ensure that he has been indicted by a law­fully com­posed grand jury, there’s the lit­tle mat­ter of the public’s right to know what its gov­ern­ment is doing. If Estes has his way and grand jurors are allowed to go to work dis­guised with hoods (quick: in your mind, are those hoods black or white?) sto­ries like this one will never come to light.

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Posted By Mark Bennett on April 23, 2013

Read Scott Greenfield’s clos­ing keynote address for Lawyer­nomics this week in Las Vegas. There’s a race to the bot­tom in lawyer online mar­ket­ing—“ultra-competitive busi­ness land­scape,”* as Lawyer­nomics huck­ster Avvo would have it—Lawyernomics is there to psych lawyers up for that race—using Yelp! Twit­ter! Google! Vir­gin America!**—and Green­field will*** exhort Lawyer­nomics atten­dees to go out there and win it:

* * * * *

What­ever sleazy thing the vir­tual lawyer does that angers you, frus­trates you, makes you won­der why you checked the “Yes, I’m a’coming” box on the Coo­ley response card, don’t let it get you down. Just lace up those run­ning shoes and be one step sleazier, one lie bet­ter, and you become the win­ner in the race to the bottom.

Until, of course, the vir­tual lawyer will then slide in beneath you. But there is always some­thing you can do to go lower. Just don’t be like me and blush, or you will never make it in the ultra-competitive land­scape of inter­net marketing.

Now, go out and be the best vir­tual lawyer you can be. Remem­ber, you can always go lower.

Read it all.

*N.B. not “pro­fes­sional” but “business.”

**Wait, what?

***won’t really

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Posted By Mark Bennett on April 23, 2013

For­mer Williamson County pros­e­cu­tor (and now Williamson County Dis­trict Judge) Ken Ander­son has been charged by a court of inquiry with 1) crim­i­nal con­tempt of court; 2) tam­per­ing with or fab­ri­cat­ing phys­i­cal evi­dence; and 3) tam­per­ing with gov­ern­men­tal records for his pros­e­cu­tion of Michael Mor­ton. (Find­ings of Fact and Con­clu­sions of Law, PDF, OCRed.) Which is nice—prosecutors who tam­per with evi­dence and records to con­vict peo­ple of crimes (most espe­cially, but not only, a pros­e­cu­tor who, like Ander­son, “does not believe in the release of [excul­pa­tory] evi­dence if it may result in free­ing an indi­vid­ual that he believes is guilty”) should be pros­e­cuted, and should have to do every day of the sen­tences that their mis­deeds brought their victims—but to lit­tle effect.

The statute of lim­i­ta­tions for tam­per­ing with gov­ern­men­tal records with intent to harm another and for tam­per­ing with phys­i­cal evi­dence, both third-degree felonies, is three years. There is no “dis­cov­ery rule”—no argu­ment that the statute of lim­i­ta­tions begins to run when the bad acts are dis­cov­ered. Anderson’s bad acts were in 1987.

I have been told that some Texas lawyers think the crim­i­nal con­tempt alle­ga­tion is not barred by the statute of lim­i­ta­tions. Crim­i­nal con­tempt is not a felony—the max­i­mum pun­ish­ment is six months in jail and a $500 fine—but six months in jail will do more to deter future Ken Ander­sons (I see incip­i­ent Ken Ander­sons in the Har­ris County Crim­i­nal Jus­tice Cen­ter every year) than will nothing.

I haven’t seen the argu­ment fleshed out yet. But I don’t see how it works. Arti­cle 12.41 of the Texas Penal Code defines as a Class B mis­de­meanor any offense that “is not a felony” and has jail as a pos­si­ble pun­ish­ment. The statute of lim­i­ta­tions for a Class B mis­de­meanor is gen­er­ally two years. Crim­i­nal con­tempt is not a felony; it has jail as a pos­si­ble pun­ish­ment. Unless it is not an “offense” Anderson’s alleged crim­i­nal con­tempt is a Class B mis­de­meanor with a two-year statute of lim­i­ta­tions. There are many Texas cases in which crim­i­nal con­tempt is described as an offense, includ­ing sev­eral apply­ing the Block­burger test (whether each offense requires proof of an ele­ment that the other does not) to deter­mine whether a crim­i­nal con­tempt con­vic­tion barred pros­e­cu­tion for the same act).

Ander­son wins on lim­i­ta­tions, and I have no faith that all those vot­ers who have fled the scary urban milieu of Austin (white flight from Austin?) to live in the Con­sti­tu­tional back­wa­ter of Williamson County will return him to pri­vate life based on the mon­stros­ity that he com­mit­ted twenty-five years ago.

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Posted By Mark Bennett on April 22, 2013

Every­one knows the Miranda warn­ings. We have heard them ten thou­sand times on TV.

Not every­one knows their significance—clients often ask me whether it’s sig­nif­i­cant that they were not read their rights when they were arrested. It is not; the rule of Miranda is this: A state­ment made by a defen­dant as a result of cus­to­dial inter­ro­ga­tion is not admis­si­ble against him unless, before mak­ing the state­ment, he was advised of cer­tain of his Con­sti­tu­tional rights. So the police only need to read you your rights when they are going to ques­tion you while you are in cus­tody. Under Texas law the mere read­ing of rights has no legal significance—the read­ing must be doc­u­mented by audio record­ing or acknowl­edged in writ­ing by the defendant—so Texas cops don’t bother to read arrestees their rights.

In New York v. Quar­les the Supreme Court cre­ated a “nar­row” excep­tion to the Miranda rule. The rea­son­ing was that pub­lic safety trumped Miranda’s stated goal of ensur­ing that sub­jects of police inter­ro­ga­tion knew their rights:

The doc­tri­nal under­pin­nings of Miranda do not require that it be applied in all its rigor to a sit­u­a­tion in which police offi­cers ask ques­tions rea­son­ably prompted by a con­cern for the pub­lic safety.

In a sense, any ques­tions call­ing for incrim­i­na­tory answers might be seen as “rea­son­ably prompted by a con­cern for the pub­lic safety.” But that’s not the sense in which the Court decided Quarles:

The police in this case, in the very act of appre­hend­ing a sus­pect, were con­fronted with the imme­di­ate neces­sity of ascer­tain­ing the where­abouts of a gun which they had every rea­son to believe the sus­pect had just removed from his empty hol­ster and dis­carded in the super­mar­ket. So long as the gun was con­cealed some­where in the super­mar­ket, with its actual where­abouts unknown, it obvi­ously posed more than one dan­ger to the pub­lic safety: an accom­plice might make use of it, a cus­tomer or employee might later come upon it.

(Mr. Quar­les was not thought to have an accom­plice, so this is really about guns being so ter­ri­fy­ing that the pos­si­bil­ity of a law-abiding cit­i­zen find­ing one cre­ates a suf­fi­cient dan­ger to pub­lic safety to change the rules. Scratch that: it’s really about nib­bling away at the Constitution.)

For a sit­u­a­tion to jus­tify unwarned inter­ro­ga­tion, the infor­ma­tion sought is—by definition—important inde­pen­dent of its admis­si­bil­ity. If some­thing is going to be trumped by pub­lic safety, it should not be the pro­ce­dures the police must fol­low if they want the infor­ma­tion they obtain to be admis­si­ble. It should instead be the police desire that all infor­ma­tion be admissible.

Even before Quar­les, if the police wanted infor­ma­tion that they thought they wouldn’t get from an arrestee who knew his rights, they could seek that infor­ma­tion with­out advis­ing the arrestee of his rights. Before there was a Quar­les public-safety excep­tion to Miranda, soci­ety was no worse off for the police deci­sion to con­duct an unwarned inter­ro­ga­tion seek­ing inad­mis­si­ble infor­ma­tion rather than giv­ing the warn­ings in hopes of gar­ner­ing admis­si­ble information.

The press has talked about the gov­ern­ment “invok­ing the public-safety excep­tion,” but the excep­tion is not some magic spell that gives the FBI forty-eight hours to talk to a heav­ily drugged arrestee with­out Miran­diz­ing him and then use the infor­ma­tion obtained at trial. Quar­les clearly does not cover infor­ma­tion gleaned with ques­tions other than those “rea­son­ably prompted by a con­cern for the pub­lic safety,” and while the gov­ern­ment may want to broaden it, they can­not with­out the coop­er­a­tion of the courts. When the Boston Police Com­mis­sioner says, “We’ve told the peo­ple of Boston we feel that they’re safe at this point in time,” that’s a good indi­ca­tor that fur­ther inter­ro­ga­tion is not prompted by the “imme­di­ate neces­sity” that existed in Quar­les.

But where the Supreme Court makes an excep­tion, the Supreme Court always broad­ens the excep­tion. Quar­les is the top of the slip­pery slope…the jack­booted foot in the door…the flesh-eating camel’s nose in the tent.

Oth­ers have pointed out that the police do not need to get admis­si­ble evi­dence through inter­ro­ga­tion if they have enough against him already. Maybe what Tsar­naev tells the FBI won’t mat­ter to the trial of his case. Maybe the gov­ern­ment will have a cut-and-dried case against with­out using the prod­uct of his inter­ro­ga­tion. Maybe the admis­si­bil­ity of the prod­uct of his inter­ro­ga­tion will never be lit­i­gated. But “maybe” implies “maybe not,” and here I sus­pect not.

I expect that the admis­si­bil­ity of Tsar­naev unwarned state­ments to the gov­ern­ment will be lit­i­gated, and I expect that the out­come of that lit­i­ga­tion will not be con­vivial to our free­dom. The spirit of the times, care­fully cul­ti­vated by the gov­ern­ment and the media, is one of fear, and the courts will move in rhythm with that spirit, mak­ing it eas­ier for the gov­ern­ment to put ter­ror­ists in boxes.

But when the gov­ern­ment talks about “ter­ror­ists,” they’re talk­ing about the peo­ple who they can claim are ter­ror­ists. And when they are talk­ing about the peo­ple who they can claim are ter­ror­ists, they are talk­ing about you and me. 

Five years from now we’ll be talk­ing about U.S. v. Tsar­naev as another step closer to tyranny.

(See also Gideon and Green­field on Quar­les, Bur­ney on Miranda, and Green­field again on two-step interrogations.)

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Posted By Mark Bennett on April 17, 2013

This is from the arrest war­rant affi­davit in the case of Kim Williams, the wife of Eric Williams, the for­mer jus­tice of the peace who is sus­pected of mur­der­ing three peo­ple in Kauf­man County, Texas:

On April 16, 2013 an inter­view with defen­dant, Kim Lene Williams was con­ducted at the Kauf­man County Law Enforce­ment Cen­ter. Dur­ing the inter­view, Kim Williams con­fessed to her involve­ment to the scheme and course of con­duct in the shoot­ing deaths of Mark Hasse, Michael McLel­land and Cyn­thia McLel­land. Kim Williams described in detail her role along with that of her hus­band, Eric Williams whom she reported to have shot to death Mark Hasse on Jan­u­ary 31, 2013 and Michael and Cyn­thia McLel­land on March 30, 2013. Dur­ing the inter­view, the defen­dant gave details of both offenses which had not been made public.

Kim has a priv­i­lege not to tes­tify against Eric. She can waive it, though, and tes­tify about what she saw and heard, includ­ing com­mu­ni­ca­tions made to enable him to com­mit a crime.

But if her claim that he shot the three to death is based on his telling her about it after it was done, he has a priv­i­lege to keep her from tes­ti­fy­ing about that. She can­not waive that privilege.

So:

He loaded his gun and drove toward the McLel­lands’ house she can tes­tify to, but doesn’t have to.

He told me, “Honey, this is what I need you to do…” she can tes­tify to, but doesn’t have to.

He told me, “Honey, this is what I did…” she can’t tes­tify to if he says no.

I don’t think the “Fur­ther­ance of crime or fraud” excep­tion to the spousal-communication priv­i­lege has been widely lit­i­gated, but I fore­see it get­ting a thor­ough work­out here.

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Posted By Mark Bennett on April 9, 2013

I heard Thane Rosen­baum on NPR yes­ter­day, and was instantly struck by how juve­nile this law professor’s under­stand­ing of jus­tice and human nature is. (Green­field wrote last week about Rosenbaum’s Chron­i­cle of Higher Edu­ca­tion piece.)

Rosenbaum’s stated premise is that jus­tice equals revenge: “A call for jus­tice is always a cry for revenge.” This is trans­par­ently false. There are many dif­fer­ent notions of jus­tice, and often when an injured per­son calls for jus­tice he seeks restora­tion rather than retribution.

Rosen­baum asks, “Now, in cases where we have the worst of the worst, where there’s no ques­tion of someone’s guilt—heinous murders—why is it that we’re so ambiva­lent about actu­ally pro­vid­ing just desert?” One answer, obvi­ous to any­one who has ever shook hands with the crim­i­nal jus­tice sys­tem, with ethics, or with Phi­los­o­phy 101, is that the result of our actions is not nec­es­sar­ily an accu­rate mea­sure of what we deserve.

In the CHE piece Rosen­baum writes, “Amer­ica is no less civ­i­lized or law-abiding because bin Laden was assas­si­nated.” This is at best arguable. I get the impres­sion from lis­ten­ing to and read­ing Rosen­baum that he is try­ing to make his per­sonal impulses the norm. But soci­ety serves to mod­er­ate, rather than amplify, per­sonal impulses.

On fur­ther reflec­tion, I can’t believe that a law pro­fes­sor is really so much of a sim­ple­ton. It’s not that Rosen­baum has a juve­nile under­stand­ing of jus­tice and human nature. I think it’s that he’s trolling us.

There is an inter­est­ing dis­cus­sion to be had of the proper role of ret­ri­bu­tion in the Amer­i­can crim­i­nal jus­tice sys­tem: ret­ri­bu­tion is a nat­ural impulse; why should it yield to our moral intu­ition that pun­ish­ment should be pro­por­tional to respon­si­bil­ity? Why should soci­ety strive to be “bet­ter” than its mem­bers, where being “bet­ter” means not sat­is­fy­ing mem­bers’ unde­ni­able ret­ribu­tive impulse?

Unfor­tu­nately for that dis­cus­sion, Rosen­baum over­states his case to the point of triv­i­al­ity to get atten­tion (you’re wel­come) and to sell books.

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Posted By Mark Bennett on April 9, 2013

Quoth Papa Green­field:

Shortly after an instruc­tor first arrives at Cardozo’s Inten­sive Trial Advo­cacy Pro­gram, after set­tling in with a bagel and cof­fee, Ellen Yaroshef­sky would give a speech about how to cri­tique the stu­dents’ per­for­mance. It’s been the same speech for years: First, tell them some­thing they did well. Give them praise. Then, when you tell them what they didn’t do so well, be gen­tle and con­struc­tive. End up on a pos­i­tive note.

This is the new rule of teaching.…

This is not the new rule of teach­ing; it is an old rule of man­age­ment. I remem­ber hear­ing it from my dad some thirty years ago: when  you are giv­ing a cor­rec­tion to some­one you’re super­vis­ing, sand­wich the neg­a­tive between positives. 

It is a broadly accepted social con­ven­tion. The ques­tion is, is it an obsta­cle or an aid to teaching?

Green­field seems to think it’s an obstacle:

The direc­tions to say some­thing pos­i­tive first, offer “con­struc­tive” crit­i­cism (and I use [doubt] quotes because con­struc­tion is in the eyes of the stu­dent) and close on a pos­i­tive note, cre­ates what the study aptly describes as a Praise Sand­wich, designed to make the stu­dent feel good at the expense of teach­ing the stu­dent to do better.

I am unconvinced.

Teach­ing and trial lawyer­ing have a lot in com­mon. In trial, we tell our client’s story the way we tell it not because of some idea of the “cor­rect” way to tell a story, nor to con­vince some ide­al­ized jurors, but because we think that the way we tell the story will be the most effec­tive way to get the actual jury to agree with us.

Scott, who would never try a case as though to ide­al­ized jurors, wants to teach as though to ide­al­ized law students:

While one might hope, even expect, law stu­dents to be both tough enough and inter­ested enough to be capa­ble of han­dling more seri­ous instruc­tion, includ­ing the occa­sional harsh recog­ni­tion that they are totally off the mark, the evi­dence is oth­er­wise. They can be just as frag­ile, enti­tled and nar­cis­sis­tic as any kinder­gart­ner.  Should they end up before a judge or jury one day hold­ing another person’s life in their hands, their praise sand­wich isn’t going to do them much good. But as long as they feel they were fab­u­lous, that’s what really matters.

Yes, law stu­dents can be just as frag­ile, enti­tled, and nar­cis­sis­tic as any kinder­gartener. So, for that mat­ter, can criminal-defense lawyers, even very suc­cess­ful ones. But just as the trial lawyer’s job is to con­vince real jurors, the trial advo­cacy instructor’s job is to con­vince real stu­dents. The Sand­wich The­ory has become social con­ven­tion because it works. It works because most human beings—not just law students—are frag­ile; by sand­wich­ing con­struc­tive crit­i­cism between slices of praise, the teacher sends the mes­sage that the crit­i­cism is not personal.

And yes, criminal-defense lawyers should be tougher than that. But the Sand­wich The­ory is a teach­ing tool—perhaps an effec­tive one—and if you want to teach peo­ple you’ll use what­ever tools come to hand.

There’s an ongo­ing philo­soph­i­cal debate among those of us (we happy few) who think about such things: whether, when a lawyer’s request for help reveals that he is out of his league, it is bet­ter to pro­vide him with the help he asks for (enabling his con­tin­ued blun­der­ing, but help­ing his cur­rent client) or to decline to help (not help­ing his cur­rent client, but not encour­ag­ing the lawyer to con­tinue punch­ing above his weight). Should we help the accused at the cost of nur­tur­ing incom­pe­tence, or make incom­pe­tent prac­tice dif­fi­cult at the cost of the accused?

At some point those who aren’t cut out for this job need to fig­ure it out. Those who can’t stand being told that they are wrong, wrong, wrong should find their way into other ven­tures (like pros­e­cu­tion, or bon­sai gar­den­ing). This is likely to hap­pen even­tu­ally, though clients may be hurt in the interim.

But law school is not the place for this cull to be made, and where the Sand­wich The­ory is the advo­cacy program’s rule, it is not the instructor’s role to weed out those stu­dents who aren’t going to make it.

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Posted By Mark Bennett on April 7, 2013

Last week I was in trial (my first bench trial in fed­eral court; we came in second).

I was also excited to be sched­uled to speak to Pro­fes­sor Ray Moses’s “Open­ing and Clos­ing” class at South Texas Col­lege of Law. I’ve spo­ken to the class the last cou­ple of years, and it has always been stim­u­lat­ing and fun. I’d had it on my cal­en­dar for two months.

As Thurs­day evening approached, I was at the office fig­ur­ing out what to talk about and how, when I received an email from Pro­fes­sor Moses: My stu­dents are sorry you missed the class last night. Have a nice life.

I screwed up. There’s no excuse. I hope Pro­fes­sor Moses’s students—who are assigned this blog as part of their required reading—will for­give me. 

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