Legal Ethics Forum

The Hood Case: Unsurprisingly Disturbing

Mr. Hood’s execution did not take place last night, but not because the Texas courts recognized the seriousness of Mr. Hood’s judicial ethics argument.  Rather, the prison had the legal authority to execute Mr. Hood only until midnight, and the legal skirmishes prevented the execution from taking place in time.

I wish I could say that I’m surprised that the Texas courts have failed to address Mr. Hood’s allegations that his judge secretly slept with the prosecutor during Mr. Hood’s trial.  But I can’t.

Our country’s criminal justice system regularly produces disturbing law, particularly in death penalty cases.  Consider that we have a line of cases that turns on how long a public defender can sleep through a trial before the proceedings are considered to be unconstitutional.  (You have to sleep through quite a bit.)  We have prosecutors frequently and willfully concealing exculpatory evidence from defense counsel, and we have a disciplinary system unwilling to punish prosecutors for doing so.  We have public defenders and, more disturbingly, capital defender systems that are so woefully underfunded (see here and here) that lawyers can’t even conduct a basic investigation into serious felony cases.  Judges will even jail public defenders if they aren’t ready to go to trial within hours of being assigned to handle a case.  And we have television reporters who question the motives of criminal defense attorneys for protecting a client’s confidences, but those reporters fail to question why prosecutors and juries would have convicted innocent men.

So as disturbing as it is to discover that Mr. Hood’s judge was sleeping with the prosecutor in Mr. Hood’s case and as disturbing as it is to discover that the Texas courts (and the Texas governor) have so far been unwilling to do anything about it, I can’t say that I’m surprised.  If you are, just dig a little deeper into the Wonderland of capital punishment and you’ll see just how deep this rabbit hole goes. 

Updates on the Hood Death Penalty Case

Following up on Monroe's post below, Mr. Hood was scheduled to be executed this evening.  In light of the legal ethics issues that his lawyers raised and about which Monroe so eloquently and persuasively opined, there is currently a temporary stay with complicated procedural nuances.  Alan Childress is following the story closely at the Legal Profession Blog.

Urgent - Death Penalty Case

     The following is the substance of an opinion I am giving in the case of Charles Dean Hood, who is scheduled to be executed in Texas on Tuesday.  (Citations appear in the attached copy.)  If you are willing to sign onto the opinion, please email his lawyers as soon as possible at [email protected], including a statement of your qualifications.

    Facts

          1.  I have read the letter to Governor Rick Perry from Thomas Scott Smith, Esquire, dated June 12, 2008, relating to the case of Charles Dean Hood.  For purposes of this Declaration, I assume the truth of the facts recited in that letter and of reasonable inferences from those facts.

          2. The judge, Vera Sue Holland, who presided over Mr. Hood’s trial and sentenced him to death, had a romantic relationship with the prosecutor in the case, Tom O’Connell.  The affair was carried on throughout the time of Mr. Hood’s trial and continued for about three years thereafter.

          3.  During the time of Mr. Hood’s trial, Mr. O’Connell was the elected District Attorney, with the likely expectation of seeking re-election or election to a higher office.  Accordingly, Mr. O’Connell’s success or failure as the prosecutor in Mr. Hood’s case could have had considerable significance to the advancement of Mr. O’Connell’s career.  Accordingly, Judge Vera Sue Holland had a personal interest on behalf of her lover, District Attorney O’Connell, in the conviction and death sentence of Mr. Hood.

    Opinion

          4.  Based on those facts, the impartiality of the judge who presided over Charles Dean Hood’s trial, and who sentenced him to death, is subject to reasonable question.  Accordingly, there was a structural defect in the proceedings, rendering Mr. Hood’s trial and sentence invalid per se.

          5.  An impartial judge is an essential component of the American adversary system.  If a judge’s impartiality is subject to reasonable question, there is a “structural defect” in the trial, meaning that vacation of the conviction is required without consideration of the harmless error doctrine.  Indeed, because the right to an impartial tribunal is essential to fundamental fairness, it is one of those “extraordinary” rights that cannot be waived.

          6.  Not only must judges be neutral and detached in fact; they must avoid even reasonable suspicion of any possible interest or bias.  As long ago as 1270, Henry of Bracton wrote:

          “[L]et the suspect judge be removed and one who is not suspect substituted for him.... [I]t is a very fearful thing to litigate under a suspect justice and very often results in the saddest outcomes.

          “But there is only one reason to recuse – suspicion, which arises from many causes....”

As that passage indicates, a principal method for ensuring that judges will be neutral and detached is to disqualify judges from cases in which their ability to be impartial might be reasonably questioned.

          7.  This centuries-old principal of Anglo-American jurisprudence is reflected in the American Bar Association’s Model Code of Judicial Conduct.  Since 1972, twenty-eight years before Mr. Hood’s trial, the ABA’s Model Code has required a judge to recuse herself sua sponte whenever her impartiality “might reasonably be questioned.”

          8.  More important, the U.S. Supreme Court has held that the Due Process Clause of the Constitution requires that a judge “not only must be unbiased but also must avoid even the appearance of bias.”

          9.  For example, the U.S. Supreme Court reversed a conviction on the grounds of due process because a state judge had held a defendant guilty of contempt of a grand jury that had been presided over by the same judge.  As noted by the dissent in that case, the state judge had had no pecuniary interest in the matter, nor had there been any contention that the judge had become embroiled in the matter, or that he had been biased in any way.  Nevertheless, the U.S. Supreme Court reversed the conviction, holding that “to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’”

Conclusion

          10.  Judge Vera Sue Holland’s personal interest in District Attorney Tom O’Connell’s conviction of Mr. Hood is an equal or greater violation of fundamental fairness than was the judge’s interest in the outcome in the grand jury contempt case described above.  Thus, the structural defect in the trial and sentencing of Mr. Hood, rendered the proceedings against him invalid per se.

Sasha Volokh writes, " . . . legal ethics is to actual ethics as Madison, Wisconsin is to James Madison..."

CONTEST RESULTS:

Thanks to everyone who participated.  Declaring the winner is strictly my prerogative and in addition to be arbitrary and capricious, my decision is utterly lacking in any rational basis.

Winner: "Legal ethics is to actual ethics as gold is to the golden rule," submitted by PLR.  It has enough cynicism to be tongue in cheek or brutally accurate, depending upon your view.  It alludes to the mercenary aspect of legal ethics rules, but also can be read more sympathetically as suggesting that legal ethics deals with reality and not with the meta-physical.  If PLR will shoot me an email, I will be glad to send along the prize.  (You might want to take a closer look at that Amazon link to see if you still want to claim the prize.)

Runner-up:  What can I say about the insightful and indefatigable Patrick O'Donnell?  We're always glad to see his comments.  My only problem with his entries was that they were so substantive and so numerous that I had to research some of them to grasp them.

Honorable Mention: John Bickers for "legal ethics is to actual ethics as legal tender is to actual tenderness."  Like the winning entry, this one plays off the monetary against the human.

****************

C'mon readers, we can do better than that.  Post your entries in the comments and the winner (selected solely in my discretion) will get a copy of this book.   We are looking for entries that begin "legal ethics is to real ethics as . . . ."

UPDATE:  I realize that I slightly altered the tone of the comparison.  Volokh's original was "legal ethics is to actual ethics  . . . ."  I got that correct in the title of this post, but then used the formula, "legal ethics is to real ethics . . . . "  So in your submissions, you can use "actual" or "real" or just drop the adjectives and go with "legal ethics is to ethics  . . . . "

UPDATE 2: The contest is almost over, but I will give people through Saturday to add suggestions.

(Nod to Sasha Volokh's comment in  Paul Cassell's post, via Althouse)

The Center for the Study of the Legal Profession at Georgetown University Law Center is seeking an Executive Director

They're doing some fascinating stuff there.  Here's the job description, with more after the jump.

The Center for the Study of the Legal Profession at Georgetown University Law Center is seeking an Executive Director who will work closely with faculty Co-Directors of the Center on a variety of projects furthering the mission of the Center. That mission is to promote scholarship on the profession that is informed by awareness of the dynamics of modern law practice; to furnish practitioners with broad perspectives on developments in the profession, as well as research from a variety of fields that is relevant to law practice; and to provide students with a sophisticated understanding of the opportunities and challenges of a career in practice. The Center expects its projects increasingly to explore the impact of globalization on the legal profession.

What's wrong with appearance-based recusal?

I have not thought about this issue nearly as deeply as Sarah has, but nevertheless I find puzzling the challenge to the appearance-based standard for judicial recusal.  Doesn't appearance matter a lot, not just as a proxy for actual bias, but as bearing a causal relationship to public confidence in judicial impartiality?  And isn't that public confidence a key component of the rule of law?

If appearance is thrown out the window, and we have to wait for a showing (or an admission) of actual bias, it seems that we've eviscerated the recusal inquiry.  Given human nature and the indeterminacy of legal reasoning, how many judges will admit to bias, or will write opinions for which their own bias is the only plausible rationale for the result?

Sure, the appearance of bias is in the eye of the beholder, and thus the facts on which recusal is warranted will shift along with social norms.  But isn't that flexibility a necessary part of maintaining confidence in the rule of law?  If the defendant in the obscenity trial is pushing the envelope of what society will tolerate, it seems highly relevant that (if it proves to be the case) the presiding judge is known to share the defendant's view, against the great weight of public opinion, that such images are "part of life" and even "funny" -- to such an extent that he collects them and shares them with others.  The relevance is two-fold: he might, in fact, be predisposed to resist the imposition of legal norms that reflect the limits of public tolerance for such images; and perhaps even more pressing, his public disclosure of his enthusiasm for such images undermines public confidence that the judge has applied the law.

To take another example, imagine that a judge is presiding over a trial raising the question of whether a government actor's waterboarding of a detainee constitutes torture under the relevant statutes.  On the eve of trial, the judge blogs about the fun he and his buddies have had waterboarding each other on guys' nights out, noting the "thrill" of the experience and the "lack of real danger, provided you trust your friends to administer it correctly."  When questioned about the blog entry by a reporter, he responds "I have no problem presiding over this case; statutory interpretation has nothing to do with my own personal views or experience.  I am obsessively impartial in my judging."

Is recusal appropriate?  Is this judge any less likely, based on his personal experience, to find waterboarding equivalent to torture than Judge Kozinski is to find the images at issue "patently offensive" under Miller given his own experience?  Given that the waterboarding judge is flouting widely held social norms regarding behavior that is at the center of the trial, isn't public skepticism about his impartiality reasonable?  If recusal is appropriate for the waterboarding judge, isn't this an appearance-based standard?   

UPDATE: Larry Lessig makes the most persuasive case in defense of Judge Kozinski I've seen thus far (HT: Volokh), though I still need some convincing on the broader point regarding the imprudence of appearance-based recusal standards.

On the Problem of Appearances

What a week to start blogging.  I recently wrote this article arguing against the use of appearance-based standards in the recusal context, and now this story from the L.A. Times about Judge Kozinski’s personal website and whether he should recuse himself from presiding over an obscenity trial presents a great scenario for getting to the heart of why I find appearance-based recusal analysis unsatisfying.

The L.A. Times story cites Prof. Stephen Gillers as saying the public could reasonably question Judge Kozinski’s objectivity on the subject matter of the trial, now that the contents of Kozinski’s personal website are publicly known.  Prof. Gillers is perfectly correct about the standard for recusal currently applicable to Judge Kozinski: it is indeed appearance-based.  My response here is therefore only a challenge to the theory behind that current standard: 

If it makes sense to say that Judge Kozinski appears unable to preside impartially over an obscenity trial because he has these pictures on his website, why shouldn’t we also second guess the impartiality of a judge who doesn’t have such pictures on such a website?  Might not that other judge have very strong personal feelings on the other side of the issue? We just don’t know.  Only the judge does, and it doesn’t make sense to me to flip the switch just on these facts alone: there is nothing in the article to suggest that Judge Kozinski has an actual predisposition on the legal issues in the trial, any more than any other judge who either doesn’t have such material on a website or simply isn’t yet publicly known to do so.  (Further stories, by the way, report that the website was maintained by the judge's son and it is unclear who contributed what material, making the appearances yet murkier.) 

Prof. Gillers also raises a point in the L.A. Times article about whether it would be better if judges didn’t reveal their private lives to the public.  I’m not a proponent of anyone going out of his way to reveal his private life to the public, but it strikes me that it doesn’t make sense for judges to hide their personal lives just in order not to upset the public, if the things the public would be upset about actually matter to the judge’s decisionmaking.  The public’s awareness or unawareness of what judges are doing in their private lives shouldn’t be the dispositive factor. 

Judge Kozinski himself once wrote on the appearance of impropriety standard (in this law review article from 2004): “Judicial ethics, where it counts, is hidden from view, and no rule can possibly ensure ethical judicial conduct.”  I’m inclined to agree with him on the first point, and on the second to emphasize that reliance on appearances is particularly ill-calculated to ensure ethical judicial conduct.  Judge Kozinski concludes in that same article: “But, to my mind, we'd all be better off in a world with fewer rules and a more clear-cut understanding that impartiality and diligence are obligations that permeate every aspect of judicial life--obligations that each judge has the unflagging responsibility to police for himself.”  If we’re relying on appearance standards, after all, couldn’t we just as easily say there is the appearance from his law review article that Judge Kozinski feels strongly enough about judging impartially to preside fairly over this trial, as over any other, no matter what he's doing off the bench? 

I don't by any means endorse Judge Kozinski's contribution to this website as appropriate.  I just take the position that appearances won't lead us to any reliable conclusions about whether a judge can preside over a trial or otherwise reach judicial decisions impartially.   

Gillian Hadfield: "Legal Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate Legal Markets"

Here's a new paper from Gillian Hadfield  (USC) arguing that regulation of the legal profession has inhibited innovation.  The changes occurring in the UK and Australia, which are addressed in Hadfield's article, may eventually reach the US.  Abstract:

U.S. legal markets are among the most heavily regulated in the economy, with regulation over almost all aspects of legal production exercised in a fragmented and unclear regime by individual state bar associations and state courts, largely driven by decisions of the American Bar Association. These restrictions, presented as ethical regulation by an independent and self-governing body committed to the public interest, control the scope of regulation (what counts as a legal product), who can produce legal products, what law schools must teach, which markets firms that produce legal products can serve, how firms that provide legal products must be organized and financed and many of the terms that must be in a legal services contract. While the implications of professional control over legal markets for price have long been a concern, I argue in this paper that the more costly result of professional regulation, specifically of corporate legal markets, is the impediment to innovation in legal products and services. The obstacles to innovation arise from the top-down standardization of legal products, the homogeneity of the legal ideas pool, restrictions imposed on the achievement of economies of scale and scope and restrictions on methods of financing legal innovation. Substantial deregulation of legal markets in the U.S., which has already been implemented in the U.K. and is likely to spread throughout Europe through the application of antitrust principles to legal provision, is essential to grow the necessary legal infrastructure to support transition to new economic models and globalized competition.

Colorado Chimes In On Metadata

Add Colorado to the growing list of states that have addressed whether lawyers can review an opponent's electronic metadata.  The Colorado Bar's ethics opinion, which was issued on May 17, 2008 (thanks to the ABA/BNA Lawyers' Manual on Professional Conduct for the pointer), concludes that a lawyer should generally be allowed to look at metadata, unless the lawyer knows or has reason to believe that the document contains privileged information.  Here's the summary:

A Receiving Lawyer who receives electronic documents or files generally may search for and review metadata.   If a Receiving Lawyer knows or reasonably should know that the metadata contain or constitute Confidential Information, the Receiving Lawyer should assume that the Confidential Information was transmitted inadvertently, unless the Receiving Lawyer knows that confidentiality has been waived.  The Receiving Lawyer must promptly notify the Sending Lawyer.  Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred.  In some instances, the lawyers may be able to agree on how to handle the matter.  If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.

As with many other opinions on this issue, the Bar cites co-blogger and metadata expert David Hricik, though I suspect David won't agree with the outcome!  My thoughts on the issue are here.  (I also tackle the subject briefly in this article.)

For those keeping track, Alabama, Florida, the New York State Bar, the New York County Bar, and Arizona have concluded that we typically shouldn't be allowed to look at metadata.  And then there's Maryland, the D.C. Bar, Colorado, and the ABA saying that a lawyer should generally be allowed to review metadata.  Finally, there's Pennsylvania, which has staked out a middle ground approach.

What it takes to be a solo

Bill Henderson shares some thoughts.  The points he makes are great risk management advice.  Especially the part about not taking on some clients.