Does 'privileged' communication in custody really exist?

By Professor Laurie Levenson, David W. Burcham Chair in Ethical Advocacy

This op-ed originally appeared in the July 29, 2014 edition of the Daily Journal.

Excerpt:

Recent reports suggest that federal prosecutors are increasingly intercepting emails between incarcerated defendants and their counsel for alleged security reasons. In the process, they are discovering incriminating evidence that they seek to offer against the defendants at trial. If true, this practice raises significant issues for the courts.

Communications between a defendant and his lawyer are supposed to be confidential. Yet, government officials are also allowed to monitor phone call and email communications. Courts must now decide when monitoring crosses the line and becomes improper interference with a defendant’s Sixth Amendment right to counsel.

The basic rule of custody is that inmates have no privacy rights - not when they are on the phone, not when they send emails, and not when they talk to other inmates. While attorneys are supposed to get confidential time with their clients, in-person meetings are difficult. And, under certain circumstances, even these may be monitored.

The net result is that it is increasingly more difficult for defense counsel to prepare for trial when the client is incarcerated. A single visit to jail to meet with a client may consume the attorney’s entire day. Even when arrangements can be made, there is precious little time for the attorney to solicit information from the client. Defense lawyers are left with the job of preparing a client’s case without much client input and clients are left feeling stuck on the sidelines as their case moves forward. Not only does this affect defense counsel's ability to represent a client, it also diminishes clients' trust in their counsel.

[Read the complete story at www.dailyjournal.com.]

California Recounts Are Rare, and Should Be Fair

By Professor Jessica Levinson

This post originally appeared in The Sacramento Bee.

Until former Assembly Speaker John A. Pérez called it off Friday, we were in the midst of what was likely to become the biggest election recount in California history. If anything good comes of this political tempest, it is to remind us how badly we need to reform our recount laws.

The race to be the next state controller was excruciatingly tight. Fresno Mayor Ashley Swearengin, a Republican, is now set to face off against Board of Equalization member Betty Yee. Four hundred eighty-one votes separated Pérez and Yee, both Democrats. After the recount, which cost approximately $30,000, Perez picked up 10 votes.

For the complete story, click here.

Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Since the World Cup is over, and the best team won, this is my last post on soccer, refereeing, and policing, I promise.

This is my last post on soccer, refereeing, and policing, I promise. In the dying minutes of the group-stage game between Ivory Coast and Greec, the Greek striker Samaras tangled with an Ivory Coast player, and the referee awarded a penalty. Foul? Flop? The penalty certainly looked really soft. What provoked some ire from my friends on Facebook was, not only the fact that the penalty seemed to be an overreaction, but that it was an overreaction to a foul committed by a black person on a white one. Was bias at play here.

The—by now familiar—answer is: probably. My buddy Song Richardson has written some great articles explaining how implicit bias works. Because officiating requires the referee to make instant fact-based determinations in highly stressful circumstances, these judgements prove susceptible to an unconscious, implicit bias. Implicit biases affect all of us, regardless of our race. But they impact us in strikingly racially differentiated ways.

Richardson is concerned to demonstrate the relevance of recent innovations in cognitive science for the Fourth Amendment in general, and police encounters with racial minorities (primarily African Americans) in particular. Her argument is both simple and powerful: the current Fourth Amendment doctrine on stop-and-frisks promotes a form of policing that is racially biased and practically inefficient. The cause of the inefficiency is unconscious cognitive biases that the officer may not be aware of; the problem is that such biases decrease the efficiency with which an officer is able to separate criminal from non-criminal activity.

Supreme Court Health Law Update: Abortion, Contraception & Gay 'Conversion Therapy'

By Professor Brietta Clark

This Supreme Court term has been another important one for health care. The Court was presented with several cases that questioned the scope of the government's power to enact laws regulating health care access or quality, when such laws are viewed as burdening religion or speech. The two cases receiving the most attention -- Burwell v. Hobby Lobby and McCullen v. Coakley -- involved challenges to laws protecting women's access to reproductive health care. But there were two other noteworthy cases -- Pickup v. Brown and Welch v. Brown -- which involved challenges to a law that bans a discredited health care practice that is harmful to the mental and physical health of sexual minorities.

Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. For those who envision a robust regulatory role for government in protecting and promoting health -- especially for groups that have historically been the targets of health care discrimination -- this term brought some good news and some bad news.

Is Rote and Mindless Legal Practice Our Standard?

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Last week, I suggested that the legal academy could do with providing a more concentrated study of legal materials to prepare students for practice. I actually think the case could be made stronger: for many, not only is knowledge of the legal materials in a given doctrinal area our core competence: it is the central obligation of the legal academy to provide competence in legal doctrinal knowledge.

I chose criminal law as my central example. But my point was supposed to apply more generally to torts, contracts, family law, and so on across the curriculum. In short, the argument is that concentration in a particular practice area should not simply mean a wider range of courses, it should primarily mean greater interaction with the extant doctrine.

My claim is that the substantive version of "practice ready" does not require the academy to match practice. I think that is especially the case if the bulk of practice involves the equivalent of agency capture, so that the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy. That may be a feature of production-line litigation, and the criminal law may be more prone to that style of litigation than other fields (although tort law shares some of these characteristics). But equipping lawyers to recognize complexity and co-option when it occurs should be part of our teaching mission. Where judges and co-counsel fail to see the issues.