How courts chill effective advocacy
Via Law of Criminal Defense, a lawyer in Detroit is facing contempt proceedings for filing a motion requesting formal notice of whether a victim's mother would speak at a sentencing hearing, following the defendant's conviction for child pornography.
Prior to the sentencing, Freeman filed a motion citing the Crime Victims' Rights Act. In his motion, he said prosecutors were required to give advance notice of the contents of a victim impact statement from the child's mother so he could appropriately respond.
U.S. District Judge Bernard A. Friedman, who ultimately sentenced the defendant to 60 years - twice the amount that the prosecution asked for - says the request was unwarranted and is accusing the attorney of attempting to intimidate the victim's mother by requesting notice of her intent to speak. The National Association of Criminal Defense Lawyers (NACDL) has filed an amicus brief in advance of the contempt hearing.
Detroit attorney James Feinberg signed on to the response in an amicus filing on behalf of the National Association of Criminal Defense Lawyers."The possibility of someone being sanctioned or held in contempt for aggressively and properly representing their client is very scary," Feinberg said Friday. The association "needs to make sure lawyers are free to aggressively represent their clients."
It is unfortunate that, to effectively represent a client accused of a crime, we often are fighting not only the prosecution and law enforcement, but we can find ourselves fighting against a biased court as well - the threat of contempt for zealous representation is not only an insult to the advocate who is likely one of the few doing his job the way he is supposed to, but it has a chilling effect on those watching. There are few attorneys who have the fortitude to stand up to an angry court when they know they are right, and few attorneys who will risk being held in contempt of court - a fine or even jail time followed by the possibility of state bar disciplinary proceedings.
On the other end of the spectrum, take a look at this NY Times article on Texas lawyer Jerry Guerinot, who, according to the article, has had twenty capital clients sentenced to death on his watch, is now infamous for allowing his clients to die while he fails to investigate their cases, and who in 2007 and 2008 handled 2000 felony cases - an exponentially higher case load than what an attorney can ethically or competently handle - and many of which appear to be cases appointed to him by a local judge who is quite pleased with how he handles his cases.
Zealous advocate = scorn and punishment from the court; Incompetence = rewarded with an excess of court appointed cases. What if the courts actually encouraged competence in the courtroom, wouldn't that be something?
Comments
This is BS. The Judge should be holding the prosecution for Rule 5/Brady instead of effin with a defense atty simply doing his job.
Posted by: pluvlaw | May 18, 2010 10:07 PM
I haven't looked at the victim's rights act in it's entirety and I'm not sure, but I thought it did require advance notice.
Posted by: BFrederick | May 18, 2010 10:31 PM
I am a new lawyer but I don't think asking for notice is really "aggressive" representation- it seems like normal course of business for this type of charge. I wonder why Feinberg classified it that way.
Posted by: Shane | May 24, 2010 5:42 PM
That's a good point and I agree. I suppose what makes it "aggressive" is the fact that lawyers do not ordinarily do it. It is above and beyond the status quo.
Judges and prosecutors get used to defense lawyers not doing their jobs, and then they get upset when someone comes along and actually represents their client.
Posted by: BFrederick | May 24, 2010 9:43 PM
I agree with Galler being a Bias Judge.I have been at end of his unfounded decisons for the past two years over a divorce. I was unrepresented the first time i appeared in front of Galler for a protection order.after hearing the complant and i responded that i havent done anything wrong and i still love my wife he sent me to the hall with the petitioners attorney to discuss the case.I agreed to the order with stipluations to keep my daughter out of the courts as was threaten.When back in front of Galler the lies came out and i objected and stated i didnt agree to any of what was just said in the hallway. Galler ignored me and signed the order.These orders will take any chance of a family staying together and work out any issues. Being married for 23 years and missing my wife and daughter i ended up violating the order by leaving a sign in her yard telling her i loved her and want her and my daughter to come home.Wifes attorney took me to court to modify the order. In court Galler stated (now here is a guy with no priors or proof of domestic abuse violates a order and nows hes a abuser)This was done before my court date for the violation i was accused of.Other issues with Galler
Ordered me to sell my home.Has order me to pay eight thousand in attorney fees,The fair and equitable decisson wasnt even close $305,000 to $70,000 and to date i still havent seen any money for s year now.Galler has allowed modifacations to the divorce decree and protection order without any motions being filed.When we asked Galler for the same privlages to inventory my exwifes apartment it was denied and Galler commented (what do you want a pair of black stockings or somthing)i ordered the transcript and the verbage was changed in it.Galler allowed marriage counciling and order us to abide to recomendations from the therapyst.It was agreed that electronic mail between us would be allowed to work on the divorce and family issues.When i sent something my ex didnt like i was thrown into jail again.In front of Galler again over this issue and another modifacation to the order Galler didnt recall his order to allow counciling and said (that he is the one who makes the decisions here because he wears the black robe not a dress) Now i am facing a felony charge at the end of the month for talking to my oldest daughter and conveying how upset i was for my ex putting my house on the market when i was awarded it. Daughter told mom and mom went to police The charge now is violating protection order through a third party.Galler granted a five year exstension on the order with out proper notice to me.When i challenged it with another Judge he vacted it and Galler reissued it for a year based on the alleged third party violation.Seems unjust to me that a Judge can find you guilty before your even heard on the case.His actions have caused irreparable damage to me and my kids.Ive spent 23 days in jail my kids havent spoke to me for over year. We were a close family and planed on still being involved in our kids life together after this divorce. But now Dad looks really bad in the kids eyes because of wifes greed for money and a Judge who doesnt follow the law or care what happens to people or there family because of his i dont care attitude. Im Judge Galler
Posted by: Rick Wilson | January 11, 2011 10:57 AM
One last comment.Galler has allowed more awards than i received between attorney fees and court awarded attorney fees leaves me totally broke and with the case at the end of the month with no resorces ill probably have to plead out and go to jail again.Over a divorce in Minnesota
Posted by: Rick Wilson | January 11, 2011 11:28 AM