Month: February 2016

Adult Prison Is No Place For A Child

This week National Public Radio reported that, following a mass trial, Egypt sentenced a 3-year-old boy to life in prison in what is now being called a case of mistaken identity.  It may surprise many of my readers to learn that sentencing children to prison for life is not only also practiced here in the United States, but that we lead the world in such sentences.  Furthermore, when it comes to sending children to adult prison, my home state of Florida prosecutes and sentences more children as adults than all other states in the nation combined.

The issue of children in prison has been one that has interested me since my days as a law student.  At that time the case of Lionel Tate, a 12-year-old black child here in Florida who was convicted of murder with a mandatory life sentence, was in the news.  My interest in Lionel Tate’s case led me to a law journal article about children in prison by FSU Law Professor Paolo Annino. During my second year of law school I actually left City University of New York School of Law for two semesters to come to Florida State as a visiting student in order to work with Professor Annino, who remains in my life as a friend and mentor to this day.  A few years ago PBS has made a documentary film called “15 to life” on Professor Annino’s work and research that was used to successfully argue before the United States Supreme Court that life-without-parole sentences for juveniles who commit crimes other than murder is unconstitutional.

My first job after graduating from law school was as a juvenile public defender.  I spent 2 years defending children accused of crimes ranging from stealing cookies from school lunch lines to sex crimes and murder. I never got to represent the children accused of murder for very long because, regardless of age or their level of involvement, they were always removed to adult court almost instantly. Transferring a child to adult Court in Florida is not a decision made by the Judge after a hearing. Instead, it’s entirely up to the prosecutor and no judicial review is available.  I often witnessed this authority being used to try to force children to plead guilty when the State’s case was weak.  The threat was, fine, go to trial, but you’ll do it in adult court and risk prison rather than a juvenile facility if you do.  

The United States Supreme Court has said that, for crimes other than murder, life without parole sentences for children are cruel and unusual and therefore unconstitutional. However, this doesn’t mean that children who have never killed anyone aren’t being sent to adult prison for life with no possibility for release.  Understand, a murder charge doesn’t mean the child actually killed someone, just that they were part of a crime in which someone was killed.  This is the felony murder rule, which has been severely limited, done away with, or ruled unconstitutional throughout much of the developed world. However, the felony murder rule remains in full force in the State of Florida and in force to varying degrees in 45 other states.  If you are a child and you accompany an adult to commit a crime such as a burglary or to buy drugs, and that adult then kills someone, the child can be found to be as legally guilty of murder as the adult who pulled the trigger.  A murder conviction in Florida carries with it a mandatory life sentence without parole. This means that children, often with no prior legal history, who have never actually killed anyone, are sent to adult prison with no possibility of ever leaving – an outcome that, according to Amnesty International, happens in no other nation in the world.

Imprisoned man, looking down, seized to a few barsMy experience working with juvenile defendants left me deeply impressed with the idea that juvenile crimes do not occur in a vacuum.  I have yet to meet a child who committed a serious crime who was not also a victim of untreated trauma, abuse, or mental illness that was either untreated or inadequately treated.  This harm is further compounded when you send a child to prison.  Adult prisons are not equipped to handle the needs of children.  Consider what happened to 13-year-old, Jessica Robinson, whose clemency petition I worked on with Professor Annino. Her story of abuse and neglect while in state custody was profiled by This American Life and is worth listening to.  I, along with other law students, drafted and argued her clemency petition before then-governor Jeb Bush who denied the petition after a year. 

It is fine and noble that we Americans condemn the human-rights violations of other nations such as the life sentence given to the Egyptian child, but we lack any real integrity or moral authority when we do.  As a nation we have refused to give even the most basic legal protections to the status of childhood. Of the United Nations member states, only the United States and Somalia have refused to sign onto the Convention onto the Rights of the Child, the most widely accepted civil rights treaty in the world.  Consider that for a moment, the legal rights of children in the State of Florida are among the lowest in the nation that brings up the rear in the developed world when it comes to providing legal protections for its children.  Until we remedy this situation it will be very difficult for Floridians or Americans to speak with any authority or integrity to try to advance the lives of children in the larger world.  It is long past time for us to get our own house in order. 

In closing, I’m left with a questions, but no answers.  America was once a place of renewal where we believed that people could evolve and change.  What happened that made us give up on our children?  When did we become the people of the developed world whose version of justice for children is only found in the parts of the world with the most questionable of human-rights practices?  Lastly, how do we redeem ourselves from this place?

 

Harper Lee and Shakespeare – Fictional Lawyers Who We Aspire to Be

“Kill all the Lawyers” was a comment in an email I received this week as part of a group discussion on a safety issue I raised as part of a community group where I donate my time.  In some ways, the timing of the comment is somewhat ironic given that Harper Lee, author of “To Kill a Mockingbird” and creator of the iconic lawyer character, Atticus Finch, died this week.

It is impossible to know how many legal careers were inspired by 8th grade English classes reading “To Kill A Mockingbird.  The book continues to resonate with readers and greatly influences how we view lawyers.  In many ways, Atticus Finch is the lawyer that we all aspire to be.  A noble advocate fighting for justice on behalf of an innocent client against the biases and prejudices of an unjust world. 

As someone who practices law in the South, and often in rural communities, it’s impossible to escape the shadow of Atticus Finch.  I remember thinking of him years ago during one of my earliest cases when I stood to address the Court in a small county courthouse and I heard the boards of the wooden floor creaking under me.  The nostalgic atmosphere of the century old building put me in mind of the story and reminded me of the nobility of defending those who live on the margins of our society. 

Confederate Solider - Gadsden County, Florida Courthouse
Confederate Solider – Gadsden County, Florida Courthouse

My world isn’t really that different from the book.  I regularly enter old courthouses set in the center of town with monuments to confederate soldiers standing guard before the main entrance.  I currently have an elderly black client who grew up in the segregated south and raised his family with money he earned by picking tobacco. Of course, the world and the law are not static and things have changed.  For instance, a Black female Judge now is the sole judge sitting on the County Court bench of the courthouse pictured to the left with the confederate soldier.

Equally impossible to escape are the comments such as the one I received in the email seeking to vilify lawyers, often misquoting the phrase, from Shakespeare’s play “Henry VI”, which goes: “First thing we do, let’s kill all the lawyers”.  This phrase is probably one of the most misconstrued phrases of all time.  As explained by Professor Stephen Gey, during an FSU Law School graduation ceremony several years ago, the phrase was uttered by the bad guy in the play.   You can view Professor Gey’s excellent and entertaining talk on You Tube here:

https://www.youtube.com/watch?v=1i0MNOwNNsM

Both Harper Lee and Shakespeare created works of art that reflect elements of truth about law and lawyering.   Despite the common misunderstanding of Shakespeare’s quote, both Harper Lee and Shakespeare speak to the nobility of the law and the legal profession.

Courthouse, Quitman, Ga.
Courthouse, Quitman, Ga.

However, it would be inaccurate to simply declare the law as perfect and lawyers as always championing the cause of justice.  One cannot forget that  slavery and segregation were once given sanction under the law.  The truth is that law often fails to protect the weak and vulnerable and it often fails to deliver justice.  Atticus Finch did not win his case in “To Kill A Mockingbird.”  This outcome parallels real life. Harper Lee’s father was a lawyer who, in 1919, defended two black men accused of murder.  The men were convicted, hanged, and their bodies mutilated. It is said that Harper Lee’s father never tried another criminal case.

When I was a law student I attended a lecture by Morris Dees, founder of the Southern Poverty Law Center.  I’ll never forget when he told our group of law students that in the law it doesn’t matter what role you have, but how you conduct yourself in that role.  Being a criminal defense attorney or a prosecutor isn’t nearly as important as the ethics you bring to the role.  You can be a corporate attorney and exist as the conscience of the organization, or you can simply be a hatchet man using the law to oppress and bully those who are weaker or have less legal resources.

The truth about laws and lawyers is complex.  I know that I work in an imperfect system where justice is sometimes sacrificed for that which is predictable and efficient.  I have long believed that law’s primary function isn’t justice at all, but to maintain the power structure of society in all but the most egregious cases.  However, I also know that, as a lawyer, I can sometimes make a difference and create justice and truth where it wouldn’t otherwise happen.   When I think about Atticus Finch, I’m reminded that as a lawyer I can bring optimism, hope, and voice to injustice. 

Scalia’s Legacy of Civility

The death of United States Supreme Court Justice Antonin Scalia is an unexpected and massive change in the American legal and political landscape.  Consider for a moment the length of Justice Scalia’s tenure on the Court.  He was appointed in 1986 by President Regan and served for nearly 30 years.  His time on the bench spanned 5 Presidents.  He joined the Court while Thurgood Marshall, the first Black Supreme Court Justice, was still a member and the first female justice, Sandra Day O’Connor, had only joined the Court a few years earlier.

It is ironic that Justice Scalia, who joined the Court during a time of modernization and diversification, has become iconic to many for being antiquated in his thinking and unreasonably rooted in the past.  For Justice Scalia, the answer always seemed to begin with the question, “What did the framers intend?”  It always seems to me that Justice Scalia rejected the idea that one generation should interpret the constitution any differently than the generations that came before it.  In legal circles he is what we call a “textualist”, that is, he looked, almost exclusively, to the text of the Constitution.  Emerging understandings of justice and human rights had no place in his analysis. When interpreting the Constitution, his approach was to always seek to understand the issue from the perspective of the framers and view the issue from the perspective of the 18th century.   His answer to injustice, as viewed from the modern world, contained within the Constitutional text, wasn’t reinterpretation based upon new understanding, but amendment.  I think it is fair to say that he did not see the Constitution as a living document, but as a static piece of writing.

I believe that the accurate perspective of Justice Scalia is to view him as a fundamentalist.  He did not seek out deeper meaning in the text, but simply viewed it at its most fundamental level, looking at little more than the simplest meaning of the text.  He was not one to look at the spirit of the language or the document.  In his opinions, especially his dissents, he writes as if problems of unjust outcomes are beyond his and the Court’s concern.  One can’t help but read is writings and wonder if he lacked compassion, or if empathy was lost at the expense of his adherence to dogma.

This is not to say that Justice Scalia never raised thought-provoking questions or persuasive arguments.  Many times I’ve read his writings in which he argued positions with which I disagree, but I came away thinking that he raised interesting arguments.  Sadly, I often can’t help but wonder if his arguments would have been more compelling absent his often denigrating statements about those justices and people who disagreed with him. 

Perhaps the most interesting thing to me about Justice Scalia is his close friendship with Justice Ruth Bader Ginsberg, a justice with whom he rarely agreed.  This is really the quality that I most admire about Justice Scalia.  Regardless of his almost unwavering loyalty to his fundamentalist legal dogma, he was able to find connection with a person who completely disagreed with the reasoning that he used to define himself. In many ways, Justice Scalia and Justice Ginsberg were a model for the civility that should exist between lawyers.  Indeed, it should exist at some level between all people.  Yes, we may disagree, we may see the world from very different perspectives, but we have to look beyond that and see the commonality and the beauty that exists in our fellow human beings.

 

 

Getting Off The Avvo Merry-Go-Round – Can You Trust Online Attorney Ratings?

The current dominant website for attorney referrals and ratings is Avvo and I’ve decided not to participate. I don’t believe the Avvo online reviews and rating systems are a reliable method of determining whether or not to hire an attorney. I actually think the systems developed by Avvo and other similar companies are misleading to consumers and that they use poor methodology to determine their rankings of lawyers.

My Avvo rating as of the date of this writing is 7.7 out of 10, which, according to Avvo, makes me a “very good” attorney. My rating was higher before I removed all the information I could from Avvo, which I will discuss shortly. The absurdity of the Avvo rating system becomes readily apparent when you compare my rating to the rating they give to Lewis Killian, Jr., which is currently 6.7 out of 10, which equals a “good” lawyer.  A non-lawyer looking at this rating system is likely to think that I’m a stronger and more experienced attorney than Lewis Killian, Jr.  This is hardly the case. Lewis Killian, Jr. is a retired US Bankruptcy Judge, now in private practice, who served for more than 25 years as the Chief Bankruptcy Judge for the Northern District of Florida. In the world of bankruptcy law, he is a virtual superstar.  While I consider myself to be a competent bankruptcy lawyer, Lewis Killian, Jr. has probably forgotten more bankruptcy law than I currently possess.  The complexity of cases and issues he has dealt with far exceed my experience.  He has been licensed to practice law for 39 years, compared to my 13 years. He is a West Point graduate, and retired military JAG officer. What he hasn’t done is claim his Avvo profile, provide material for the Avvo website, or seek out endorsements from other lawyers or clients. Therefore, Avvo doesn’t rank him very highly.

Next consider the online reviews.  I have a number of positive reviews from lawyers; this is one of the tricks of the Avvo rating system.  The idea is that in order to get a higher ranking we’re supposed to invite our friends to the Avvo platform to endorse us and in exchange we do the same for them.  Basically, the more a lawyer feeds the Avvo system, the higher the rating.  The more questions you answer, the more you get your clients and peers to interact with the Avvo website through endorsements, the higher your rating. 

The website allows anonymous “reviews” by “clients”, but doesn’t really have what I consider a meaningful quality control system for this aspect.  I currently have one glowing review and two negative reviews.  All the reviews are anonymous, so there’s no way to know if they were left by actual clients, a competitor, or a disgruntled defendant in a lawsuit I have filed for a client. One review that calls me worthless doesn’t connect with any work I’ve done over the past few years.   The other doesn’t even claim to come from a client, but someone who says I refused to take their case following a consultation.  I’ve contested both with Avvo, but they say there’s no way for me to find out who left the review or to provide me with evidence that the anonymous reviewers were even clients of mine.  Avvo says my solution is to encourage more of my clients to go to their website and leave reviews.  However, I questioned the Florida Bar’s attorney ethics hotline about asking my clients for reviews and I don’t see asking for reviews as an option.  According to the Florida Bar’s rules that govern attorney advertising, when I ask a client for a review, I am responsible for ensuring that anything my clients write about me complies with the rules for attorney advertising. Given that I have no ability to edit what is written or to even identify the author, the likelihood of an ethical violation is enormous.

The lawyers who are hurt the most by Avvo are those who have committed some form of minor bar infraction.  Avvo flags these lawyers with a warning at the top of their profile regardless of the severity of their mistake. The reality is that good lawyers sometimes make mistakes and find themselves subject to bar discipline.  This doesn’t make them unsafe or incompetent to practice law.

It seems to me that Avvo’s solution for an attorney seeking to protect or build his or her reputation is always the same, create more content for the Avvo website and drive more people to use it.  In other words, in order to preserve our reputations, we’re compelled to constantly feed the Avvo website content and user interactions. In my mind, this makes Avvo useless as a measure of attorney quality.  For me, I’ve decided to jump off the Avvo train.  I’ve dismantled my profile as much as possible.  I no longer am willing to give or seek endorsements from other lawyers.  I don’t link my website to or from Avvo. To the extent that I am able, I am dropping out of the Avvo game. My job is helping my clients by practicing law, not feeding someone else’s website.  So far, I don’t notice any difference in my practice.  My phone rings just as much as it ever did.  I will leave it up to others to decide whether or not to continue their relationship with Avvo, but as for me, I’m getting off the merry-go-round.

Trolls, Cyber-Bullies, and Other Misfortunes of Social Media

I love YouTube videos and have wasted countless hours watching videos of people pranking each other and the cockpit action during take-offs and landings.  However, beyond the time wasting potential, there is a serious downside to our prolific sharing. These days just about anything we do has the possibility to end up posted online for the world to see. 

I saw the recent viral YouTube video of a young Miami neurology resident taken while she was on a drunken rampage with an Uber driver who was refusing to carry her as a passenger (I’m deliberately not linking to this video in order to preserve the young woman’s dignity).  Without a doubt, her actions were ridiculous and abusive towards the driver.  According to an ABC news story, the video has now been viewed more than 5 million times.  During an interview with ABC News she told about the vicious cyber-attacks she’s now suffered, of the death threats, the comments that she should be raped, that her family is now fearful because their address has been publically leaked and they have also been threatened.

Accusation guilty person. Sad upset woman looking down many fingers pointing at her backThis reminded me of a recent NPR This American Life Podcast that I listened to in which another woman, writer Lindy West, who writes about feminist issues, spoke about the cyber-bullying and troll attacks that are inflicted upon her anonymously through social media. In her case, one troll went so far as to impersonate her recently deceased father online and use that false persona to insult and denigrate her in online social media postings.

Now, at first glance, you might think that there is a distinct difference between the condemnation of a drunk woman acting badly and the online stalking and abuse of a woman who simply writes articles that challenge our ideas about gender, beauty, and politics, but I don’t think the difference is as great we might try to make it out to be.

Yes, the drunk woman was acting badly. She herself admits that her behavior was inexcusable and that she has made amends with the Uber driver she abused (I would note that he refused to press charges against her).  She has been suspended from her training pending an investigation and her biography and images have been removed from the websites of her medical school and residency program. She has taken down her social media profiles which were flooded with condemning comments from viewers of the video.

In her interview on ABC she asks for forgiveness from the larger public, although I’m not clear how it’s any of the public’s business at this point.  However, she continues to suffer from calls that she is forever unfit to practice medicine, and that she should be killed or raped.  People who have never encountered her as a physician have flooded the online rating systems to basically trash her online ratings.  She now has to live with the fear that this YouTube video that captured just a few brief moments of her life will come to define her as a person and haunt her for the rest of her life.   

When I view the video, I see something that is all too familiar to me.  The pressure on young physicians, especially those who are in their residency, is beyond extreme.  Residency training programs are often inhumane and cruel, working young doctors beyond exhaustion while demanding perfection and while the young physicians deal with the most complicated and emotionally difficult medical cases.  Having worked as a nurse alongside residents and being married to a physician, I have seen the mental and physical toll their residency programs take on their lives.  Young physicians are ripe for substance abuse problems, depression, and other forms of stress-induced physical and mental illnesses.  When I view the video, I don’t see an evil person or someone who is unfit for a medical career.  I see a young person who drank too much and is acting badly.  Does she have a drinking problem?  Maybe, but she will need to determine that for herself along with those who know her much better than I do.

What I do know is that the connection between the drunk physician and Lindy West, is the people who anonymously, feel that they somehow have the right to abuse another human being, based upon whatever justification they make up for themselves and the websites that profit from their activities. The anonymous trolls and internet bullies reduce their victims to a single dimension upon which they feel entitled to pass judgment.  They become judge, jury, and executioner with near impunity, and in the most vicious ways possible.  In a disproportionate number of cases their victims are women.

What is most sad, and often overlooked, is that our most vulnerable and imperfect moments can be stolen from us simply by someone with a cell phone who takes a video and uploads it to a public site where it then becomes a commercial product where others to profit from our shame and misfortune. Social media sites such as YouTube, Facebook, Twitter, newspapers that allow article comments, and the multitude of internet quasi-journalists all compete for clicks that sell advertising dollars. Too often, these clicks are derived from the selling of another’s shame story or the invitation to torment an innocent person.  

American laws have not yet caught up with the internet and social media.  In much of the world people have the right to have embarrassing content removed, especially when it is old content that no longer represents the person.  The idea is that privacy includes the right to have one’s past forgotten.  American law does not provide us such a right.  Perhaps it’s because, as a society, we Americans seem to have given up on the idea of redemption and the possibility of change.  That’s too bad really.  I think we’re all diminished without the hope that we can be a better person tomorrow than we are today.