Tag Archive for 'attorney'

Virginia Legislatures Block Judicial Appointment of Gay Prosecutor

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In a move which I’m sure their children will look back upon with great pride, Virginia lawmakers have blocked the appointment of a well-regarded prosecutor to the state’s bench.

Tracy Thorne-Begland serves as Chief Deputy Commonwealth Attorney in Richmond, and is a former Navy fighter pilot. By all accounts his professional record is impeccable, and his supervising attorney stated that he would have made an “outstanding judge.” Nonetheless, the state legislature voted 33-31 to block his appointment, and all of the votes against him came from Republicans.

So, why did state lawmakers choose to deny a judicial appointment to an extremely well-qualified attorney with an incredibly impressive professional record? Because hes gay.

Most of the people who voted against him didn’t even bother with a pretext. They claimed that the fact that he is gay and the fact that he is an advocate for gay rights causes meant that he couldn’t be an impartial judge.

This argument is, to be frank, completely absurd.

The notion that a person could not be an impartial judge because they served as activists in the past makes absolutely no sense. After all, every judge in the world is a person, and every person has opinions on a wide range of issues. You probably wouldn’t have heard anyone complaining if this judicial candidate had previously advocated for, say, environmental causes, or equal rights for African-Americans (or any other racial group). Nobody would speculate that such a record of advocacy would lead to someone pressing an “activist agenda” from the bench.

While this individual case is certainly unfortunate, and I imagine that the state will, sooner or later, see it for the embarrassment that it is; I think in some ways it’s a sign that the anti-gay rights movement is in its death throes. This reeks of a group of anti-gay forces becoming increasingly isolated and in the minority, and are simply lashing out at progress for LGBT individuals in the only way they know how: keeping them out of public life to the greatest extent possible.

However, recent polls show that public acceptance of LGBT rights, including same-sex marriage, is steadily increasing. Even in relatively conservative states like Virginia, the public probably won’t stand for this type of conduct for much longer.

Unfortunately, however, it appears that Mr. Thorne-Begland has little to no legal recourse. Generally, when it comes to voting to confirm judicial and other appointments, Congress, as well as state legislatures, are free to vote for or against a particular candidate, for any reason they like, and they are under no legal obligation to justify their voting choice (the political consequences of these votes are another issue entirely, however).

Furthermore, no federal law bans discrimination in employment based on sexual orientation, and while many states in the U.S. do ban such discrimination, Virginia does not appear to be one of them, and given the recent actions of its legislature, it’s doubtful that such a law is likely to be enacted in Virginia anytime soon. And I think that’s a shame.

In this relatively conservative state, Thorne-Begland has amassed quite a few supporters, with the likes of the governor and high-ranking judges calling the vote things like “embarrassing” and “disgraceful.” I tend to agree with them.

So, what can be done about this? Unfortunately, not much, at least in the short term. As discussed above, there is no legal recourse. And despite the fact that I think the lawmakers in this story did the wrong thing, and, frankly, should be ashamed of themselves, I think that the current method of appointing federal (and most state) judges, which involves an appointment by the chief executive (the president or governor), and confirmation by a majority of one or both houses of the relevant legislative body (Congress or the state legislature) is a good way to select judges.

Traditionally, the United States is seen as having three branches of government: the legislative, the executive, and the judicial. While the executive and legislative branches (the President and Congress, respectively) are both more or less directly elected, the judiciary is not. Typically, judges are appointed by elected officials, and usually serve for life (or until retirement or removal by impeachment or other legal procedure).

This means that we have judges who are more or less insulated from the political process: to keep their jobs, they don’t have to campaign. In fact, they don’t even need to be popular. I think this is exactly how it should be: judges should be as free as possible to answer hard legal questions according to their good-faith interpretations of what the law and constitution require, and they should be as insulated as possible from the ever-shifting whims of public opinion and politics. In general, having major constitutional issues resolved by “unelected judges” (a term only used when a judge rules in a way the speaker doesn’t like) has served us pretty well.

It does come at an unfortunate cost, however: legislatures can decline to confirm highly-qualified judicial appointees for terrible reasons.

However, everything we value as a society comes at a cost: not living in a police state comes at the cost of a slightly higher risk of being a victim of a crime, and protecting our rights to privacy and due process entails a slightly higher risk that people guilty of crimes will escape.

Likewise, ensuring that we have an independent judiciary that is as free as possible from judicial pressure means that judges will sometimes be appointed by people desperately clinging to an old set of views, out of step with an ever-growing segment of mainstream society.

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9/11 Terrorist Defense Attorney Wears Islamic Hijab in Court to Respect Clients

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Attorneys are expected to zealously defend their clients. Cheryl Bormann, however, has taken this expectation to realms previously unheard of.

Bormann represents Walid bin Attash, personal bodyguard and errand boy of the late Osama Bin Laden. Bormann appeared at a hearing last week wearing a traditional Islamic hijab, clothing which conceals all parts of her, with the exception of her face, despite the fact that she isn’t a Muslim. When the judge inquired Bormann why she wore the hijab, she explained it was to show respect to her client’s faith. Bormann then made a motion for other women in the court to dress similarly, as it would distract her client from the hearing and the subsequent trial.

This motion, combined with her client’s erratic behavior, dragged a hearing which should have lasted a couple of hours at most into a thirteen hour ordeal. Attash, who refused to answer the judge’s questions, rejected the translation headphones and launched into periodic prayers, stated that he had been treated poorly in Guantanamo Bay where he has been incarnated since his capture.

This story raises questions about the limits of respect and tolerance. Bormann has the right to dress as she wishes, provided that, as an attorney, her taste in clothing doesn’t interfere with her ability to represent her client. If she believes that wearing a hijab will enable her to communicate with her client more effectively, than I don’t see why she should be forced not to wear it. Bormann’s request that other women dress as she has, however, is another matter all together.

It would be delusional, at best, to believe that the women on the prosecution should comply with Bormann’s suggestion. First, if Bormann has the right to dress as she chooses, then so do other women. As long as all members of the court dress professionally, as defined by the judge, then they should be allowed to wear what they want. Second, the argument that mini-skirts would distract the defendant from focusing on the matters of life and death is flawed. It sounds like the reason Attash can’t control his lust is because of the way women look. This line of reasoning insults men by making men look like pigs unable to control their urges and pins the blame for male irresponsibility on women.

But even if we grant that Attash comes from a culture with a higher threshold for clothing decency, it is obvious from the defendant’s behavior that the prosecution’s clothing isn’t influencing Bormann’s motion. Attash was disinterested in the hearing the whole time. Blaming women’s clothing was a tactic to throw the judge and the rest of the court, not a real concern of the client’s.

However, the most loathsome aspect of the hearing was the fact that family members of 9/11 victims were watching the whole circus unfold. Imagine having lost a parent or a sibling or a child a decade ago to these men’s’ insanity and having to watch, today, an American defense attorney demand respect for the faith of those wrongdoers. A faith which, according to these men, pushed them to commit murder on a grand scale. Many victims would find it respectful if the terrorists were punished without this sideshow.

More importantly though, this hearing was a preview of President Obama’s decision to move terrorists out of military tribunals and into domestic courts for trial. If a hearing like this is being turned into a farce, then the American public can’t expect much from an actual trial. Why should we show respect for these men if they can’t respect us enough to participate in their own trial?

The terrorists of 9/11 are hypocrites of the worst kind, killing over 3000 innocents as a good deed but being afraid of hell for looking at a woman’s legs. Yet we as a country need not sink to their level of hypocrisy. Attash and his fellow terrorists shame Islam with their actions, but Americans honor the Constitution and its values by allowing Attash to be heard in our legal system, as our own principles dictate. That Attash and men like him have a voice full of hypocrisy and venom is not a surprise. The fact Americans allow him to use that vile voice is what separates us from him.

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Government Lawyer Convicted of Hate Crime in Harassment Case

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In a classic case of “he should have known better,” a lawyer (or, more likely, a soon-to-be-former lawyer) in New York has been convicted of a felony for making harassing phone calls to his African-American neighbors, which included threats and the use of racial slurs. He tried to make it look like members of the Ku Klux Klan were responsible for the calls, and routed the calls through an Internet service that prevented the source of the calls from being identified through caller I.D. However, the police were able to track the calls back to him.

This lawyer also happened to work for the government of the state of New York. The calls were made in 2010, and after being charged, he resigned from his $104,000/year job in Albany.

And now, finding new employment in a job market that’s notoriously bad for legal professionals is the least of his worries: the defendant has been sentenced to 1-3 years in state prison for criminal harassment, with a felony hate crime enhancement. The prison term is the maximum allowed for the crimes he was convicted of.

I predict that, on some quarters of the Internet, there will be the predictable howling about how this case is another example of “political correctness” run amok, and how hate-crime laws are chipping away at free speech, they give racial minorities special protection, etc., etc.

I should make a few things clear at the outset: hate crimes laws do not give any particular racial group “special” protection. Hate crime laws do not actually create any new crimes. They do not enhance punishments because of the race of the victim. Rather, they enhance punishments for crimes that were motivated by the victim’s race (or other classification, such as religion, gender, or sexual orientation). So, in theory, a white person who robs, assaults, murders, or commits any other crime against another white person specifically because of the victim’s race, could be charged with a hate crime.

Furthermore, hate crime laws do not have any impact of free speech. They don’t make it illegal to express racist, sexist, or homophobic sentiments, if one is so inclined. However, the First Amendment right to free speech has never been interpreted to allow harassment or credible threats of violence against individuals. So, this man’s conduct would have been a crime even without the racial element.

And the fact that he made racist statements in the phone calls was not, in itself, a source of criminal liability. Rather, it was simply used to prove the fact that his actions were motivated by the race of his victims, therefore warranting the hate crime enhancement.

Reasonable minds can differ on whether or not hate crime laws are a good idea. However, there’s a lot of confusion around about what these laws actually do. And when any high-profile hate crime case enters the public discussion, these misconceptions are often repeated by pundits as if they’re fact, which further increases the public’s misunderstanding of the nature and purpose of these laws.

For example, in 2009, Congress passed, and President Obama signed, a law that extended federal hate crimes laws to apply to crimes committed against individuals based on their sexual orientation.

Conservatives in Congress opposed this, because they claimed it might end up being applied in ways that limit free speech and freedom of religion. Presumably, they were concerned that it could be used against religious leaders who speak out against homosexuality.

Predictably, these fears proved to be groundless. Of course, anyone who knew about how hate crime laws actually work could have told them this, because criticizing homosexuality is not, never has been, and never will be, a crime.

After all, hate crime laws that cover crimes motivated by race have been around, in various forms, for decades. Yet groups such as the KKK and neo-Nazi organizations are still around (and, sadly, have shown signs of growing in recent years). I don’t like those groups, nor do I like homophobia. I do, however, love the fact that such groups are allowed to freely express their views, no matter how repugnant I find them.

And I would strongly oppose hate-crime laws if I believed, even for a second, that they would have any impact on our constitutional right to free speech.

However, I believe that crimes motivated by something as irrational as hatred are particularly egregious, and should be subject to heightened punishment. And it’s not as if there isn’t precedent for enhancing the punishment for certain crimes based on their motivation. For example, in every state, murder is illegal (obviously). However, many states have heightened penalties for certain types of murder. For example, in states that have capital punishment, a murder committed primarily for financial gain (such as contract-killing) is often one of the aggravating factors that can make a homicide eligible for the death penalty.

Now, some would say that we shouldn’t care why a particular crime was committed. Rather, we should simply focus on the result of the criminal’s actions when considering a punishment. This, in my view, is a terribly shallow view of culpability and justice. If criminal punishment is, at least in part, about casting moral blame onto the perpetrators of criminal acts, we should look at their actual culpability. And a person’s mental state when committing a crime is obviously an element of that.

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Facing Huge Cuts, Legal Aid Is Going to Change

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Last year, when Congress was planning one of the biggest budget-cutting sprees in the country’s history, I wrote about how the federal funding to various legal aid organizations across the country was probably going to be significantly cut. What this means for legal aid organizations, and the people who depend on them, remains to be seen.

Well, most of those cuts passed, and now it’s time to pay the piper: many of these cuts are taking effect this year, and a large number of legal aid organizations are planning major layoffs. First, the numbers: the 2012 federal budget cuts funding to the Legal Services Corporation (a federally-owned corporation that’s responsible for distributing federal funds to legal aid groups across the country) by 14% from its 2010 levels. Funding has dropped from $404 million to $348 million. Now, a 14% reduction in an organization’s budget is certainly significant, but it’s probably not catastrophic. However, most of the groups that rely on these funds already operate on a shoestring budget.

A survey of legal aid organizations across the country shows that most of them are planning layoffs of attorneys, paralegals, and other staff. On average, they’ve reported that they plan to reduce their staff of attorneys by 13%, paralegals by 15% and other support staff by 12%. This is obviously pretty significant, especially since the vast majority of these organizations already receive more requests for legal help than they can accommodate. While the exact outcome of these cuts is impossible to predict, one thing is virtually guaranteed: legal aid organizations will have to turn away more clients in genuine need of legal help, who would otherwise qualify.

And we’re still dealing with the consequences of the massive job losses that happened during the recession of 2008 and 2009, so the number of people living in poverty is higher than it’s been at almost any point in our country’s history, meaning that more people will be seeking the services of fewer lawyers.

On top of all this, the layoffs of employees at legal aid centers means that there will be even more unemployed legal professionals seeking work in a legal job market that’s already oversaturated. Of course, if you’re an average person looking for affordable legal help, the fact that there are some out-of-work lawyers is probably the least of your worries. Nevertheless, lawyers are (for the most part) human beings, and a fairly large number of them are going to be out of a job very soon because of the actions of Congress.

In order to compensate for this, it seems pretty clear that legal aid organizations should start looking for alternative sources of funding, reducing their dependence on federal funds. As the last few years have shown, the political climate in Washington can turn on a dime, and small but important programs (funding legal services for the poor, for instance) which were once uncontroversial can suddenly become hot-button issues, and targets of attacks that politicians can use to score political points. Basically, no program is safe.

So, what should legal aid organizations do? Well, most of them get a significant amount of money from private donations. They may want to start diverting their limited resources away from lobbying Congress for funds, and toward soliciting donations from private parties. And while state governments are also cash-strapped, at least some might be inclined to partially make up for the shortfall in federal funds.

For example, California has recently begun implementing a law that provides funding for indigent parties in civil cases which deal with the basic human needs of the party, such as shelter and healthcare. This so-called “civil Gideon” rule, if it proves successful, could serve as a model for other states to follow.

But most state governments, as well as the federal government, seem unable to see past their own noses, budget-wise. They’re concerned about reducing government debt and deficits as much as possible, as quickly as possible. These are both important goals. However, there are other things that need to be taken into account, like the overall economy, which is linked to, but not the same thing as, the budget.

For example, if a person is unlawfully fired from their job, but can’t afford any type of legal representation, and legal aid organizations are unable to help, it’s highly unlikely that this person will have any type of recourse. This person will then have less money to spend, which, when aggregated with many similar incidents, will have a significant negative impact on the economy.

Still, it’s unlikely that many state governments are interested in following California’s lead and guaranteeing access to legal counsel in some civil cases, let alone funding such a mandate. However, I think that such a law would, eventually, pay for itself. By helping consumers pursue legal recourse against unlawful termination, foreclosure, denial of access to healthcare, and other things that significantly impact one’s earning potential, there will be an additional (though admittedly small) layer of security in the social safety net.

If people know that they’re unlikely to be foreclosed upon even when they’ve made all their payments, be fired for unlawful reasons, or suffer other legal harm that occurs in the private sector. This would probably increase consumer confidence, increasing spending, and therefore improving the economy, and creating a larger tax base.

Hopefully, we’ll come to our senses soon.

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Should Stephen Glass Be Allowed to Practice Law?

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Stephen Glass was a journalist for the highly-respected news magazine The New Republic. This would be an incredibly coveted position for any young journalist. So, it was to the surprise of many when it was revealed that Glass had completely fabricated several of the articles he wrote for the magazine. He was caught in 1998, and immediately fired. Obviously, he was completely disgraced as a journalist, and these days he probably couldn’t get a job sweeping the floors at a newspaper.

Over the last 10 years or so, he’s largely kept out of the public eye. While working at The New Republic, he attended law school at Georgetown University. He graduated, and passed the New York bar exam in 2000. However, because of his history of pathological lying, the New York bar refused to grant him a license, on the grounds that he lacked the moral character necessary to practice law in that state. He has spent most of the last 10 years working as a paralegal and performing in a comedy troupe, of all things.

After petitioning the New York bar for several years, he gave up on his attempts to get a law license there. He then took and passed the California bar exam, and is now facing the exact same obstacles to getting admitted to the State Bar of California.

I should note that Glass was not convicted of any crime in connection with his inglorious tenure at TNR. He was never even charged with a crime, as far as I can tell. Indeed, making up a bunch of news stories is not a criminal act.

However, a criminal conviction is not a necessary precondition for a finding that an applicant lacks the moral character necessary to practice law. State agencies tasked with licensing and regulating lawyers are free to look into every aspect of an applicant’s background, searching for conduct that reflects poorly on their character. And they should be free to do this, in my opinion.

Based on his history, the State Bar of California refused to give him a law license. So far, however, Glass has fared better in his efforts to challenge this decision than he did in New York: after a 10-day trial, California’s State Bar Court ruled in Glass’s favor, overruling the State Bar’s initial decision. The Bar Court’s appellate division upheld the trial court’s ruling in a 2-1 decision, agreeing that Glass proved, at the trial, that he had rehabilitated himself, and should be given an opportunity to practice law.

However, the Supreme Court of California has accepted the State Bar’s petition to review the decision. While the state Supreme Court is technically the final arbiter of questions relating to a California attorney’s fitness to practice law, it rarely gets directly involved in these cases, having delegated most of those duties to the State Bar, and the specialized courts it has at its disposal. This is the first time the Supreme Court of California has agreed to review a prospective attorney’s moral character in 11 years.

This indicates that the Court has serious doubts about the decision of the lower courts and, by extension, the issue of Glass’s moral character.

While I haven’t reviewed the entire transcript from Glass’s trial in the lower court, and obviously can’t see into his soul, I think the Supreme Court made the right decision in deciding to take this case, even though I haven’t formed an opinion on how it should ultimately decide.

California’s rules governing the moral character of attorneys are meant to be flexible. There are few offenses that are an absolute bar to becoming admitted to practice law in that state. Instead, the State Bar is given broad discretion, allowing it to view an applicant’s history in the most complete context possible. This also allows them to consider events that took place after the applicant engaged in some type of suspect conduct, to determine if he or she has been rehabilitated.

As I mentioned earlier, the fact that the California Supreme Court took this case (a type of case it rarely accepts) indicates that it has very serious reservations about letting Stephen Glass practice law. And while it may ultimately uphold the decisions of the lower courts, and allow Glass to practice law, I think it’s correct to take a very close look at this case.

Honesty and loyalty are very important in the legal profession, and Stephen Glass has shown in the past that he is (or was) a pathological liar. He may have some type of mental illness or personality disorder that caused his pathological lying. If that’s the case, it’s sad, and he should seek help. But that would not change the fact that a pathological liar is unfit to practice law, regardless of the root cause of their lying.

While I’m not going to second-guess the court’s ultimate decision, my gut tells me that Glass should probably not be admitted to practice law. Regardless of his subsequent actions, he’s shown that he’s capable of telling huge lies to advance his career in journalism, and that he will go to extreme lengths to cover them up. This demonstrates serious issues with his character and/or psychology.

While I think the legal profession should be open to as many people as possible, that doesn’t mean I think it should be open to everyone. Habitual liars are one group that I’m not too worried about excluding from the practice of law.

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