Loyola Project for the Innocent Ushers in Rule on Prosecutorial Ethics

Loyola Project for the Innocent smooths way for passage of Rule 5-110 by the California Supreme Court. The rule, Special Responsibilities of a Prosecutor, defines their obligations to the defense.  "This will have a lasting imprint on the entire profession, and we played a leadership role in it," said Professor Laurie Levenson, LPI founder.

Read Rule 5-110 in full below.

Loyola Professors Enrich Supreme Court Conversation

Loyola Law School, Los Angeles professors continue to enrich the dialogue about U.S. Supreme Court jurisprudence after the court concluded its 2015 term in June with commentary on cases ranging from evidence collection and affirmative action to immigration and abortion access. Their analyses reached millions of people nationwide via such outlets as NPR, the Wall Street Journal, the Los Angeles Times, Politico, Bloomberg and more on an array of cases:

AFFIRMATIVE ACTION: FISHER v. UNIVERSITY OF TEXAS AT AUSTIN

Professor Kimberly West-Faulcon, the James P. Bradley Professor of Constitutional , weighed in on the U.S. Supreme Court’s 4-3 rejection of a challenge to the affirmative action-based admissions policy of the University of Texas at Austin. West-Faulcon, a nationally recognized expert on standardized testing and reverse discrimination claims, filed an amicus brief in the case. She provided analysis to several outlets:

“Surprisingly, Facts Rule the Day in Fisher II,” SCOTUSblog, June 24, 2016

Yesterday’s decision in Fisher v. University of Texas at Austin marks the first time Justice Anthony Kennedy has ruled in favor of a racial affirmative action policy in the twenty-eight years he has served on the Supreme Court. Unwilling to sound the death knell on racial affirmative action in higher education, Kennedy ventured down a path he had never taken before. He upheld the race-conscious component of the University of Texas at Austin’s admissions policy as satisfying the stringent strict-scrutiny standard of review. Instead of siding with rejected white applicant Abigail Fisher or ruling that affirmative action is per se unconstitutional as Fisher’s lawyers contended, Kennedy upheld the policy Fisher challenged as unconstitutional despite an oft-articulated constitutional aversion to race consciousness.

“Supreme Court Upholds Use of Affirmative Action at Universities,” Los Angeles TImes, June 23, 2016

“This is momentous,” said Kimberly West-Faulcon, a law professor at the Loyola Law School in Los Angeles. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse. This is a significant departure.”

“Scholars: Fisher Decision Gives Colleges ‘Breathing Room’ to Consider Race in Admissions,” Diverse Issues in Higher Education, June 23, 2016

Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School in Los Angeles, said Kennedy’s decision represents a “significant departure” from his previous decisions in affirmative action cases.“This is momentous,” West-Faulcon said. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse.“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date,” West-Faulcon continued, referring to Kennedy’s votes against affirmative action policies in two higher education cases — Grutter and Gratz — as well as other cases.

POLITICAL CORRUPTION: McDonnell v. U.S.

Professor Jessica Levinson, who teaches Laws of the Political Process and Money, Politics & the Supreme Court, opined on the Supreme Court’s vacating of the political corruption conviction of former Virginia Gov. Bob McDonnell. Her commentary appeared in several stories:

“Politics As Usual Is Not Illegal,” Sacramento Bee (Op-Ed), June 28, 2016

As a result of the court’s opinion, plenty of really disgusting behavior, like that of McDonnell, is now legal. This is because the court significantly narrowed the types of behavior that are impermissible under the federal bribery statutes by reading the term “official acts” as requiring more than “merely arranging a meeting, attending an event, hosting a reception, or making a speech.” Instead, in order to be found guilty anofficial must “make a decision or take an action on (an) action or matter.”

“Supreme Court Throws Out Corruption Conviction of Ex-Virginia Gov. Bob McDonnell,” Wall Street Journal, June 27, 2016

The decision “kind of blesses a lot of activities that are problematic,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “If I were a prosecutor, I would be more circumspect.”

“McDonnell Ruling a Big Blow to Corruption Law,” Politico, June 27, 2016

"It allows for a great deal of activity that really sidelines the average person who can't give a Rolex, a Ferrari or throw a wedding for someone," said Loyola Law School professor Jessica Levinson. "It essentially acknowledges that business as usual in political means money talks really loudly."

SUPREME COURT COMPOSITION: Effects of Scalia’s absence on court’s jurisprudence

Professor Allan Ides, the Christopher N. May Professor of Law and a former clerk to U.S. Supreme Court Associate Justice Byron White, deconstructed how the alterered Supreme Court composition affected case outcomes.

“How a Bench of 8 Justices Changes Supreme Court Decisions,” KPCC-FM’s Take Two, June 24, 2016
Professor Allan Ides discusses the effects of Associate Justice Antonin Scalia’s death on the Supreme Court at it wraps up its 2015 term.

“Supreme Court Limps to Finish,” The Hill, June 26, 2016

“For run of the mill cases this is having no effect, but the high-profile cases — Friedrichs, the contraceptive case, immigration — it has had an impact and you can see it where the court has been unable to resolve the case or tried to find some gimmick to send it back to the lower court,” Allan Ides, a professor of law at Loyola Law School in Los Angeles, said about the impact of a short-handed court."

IMMIGRATION: U.S. v. Texas

The co-directors of the Loyola Immigrant Justice Clinic – alumnae Marissa Montes and Emily Robinson – were go-to sources of commentary on the Supreme Court’s opinion in U.S. v. Texas, which struck down President Obama’s executive action on immigration, Deferred Action for Parents of Americans (DAPA).

“Deadlocked Supreme Court Fails To Revive Obama's Immigration Plan,” NPR, June 24, 2016

Marissa Montes, Co-Director of Loyola Law School, Los Angeles’ Immigrant Justice Clinic, joins Morning Edition to discuss the Supreme Court's tie vote, which blocked an attempt to help millions of unauthorized immigrant families. The case goes back to the court of a conservative federal judge in Texas.

“After Supreme Court Deadlock on Immigration, What's Next?” Dallas Morning News, June 24, 2016

"We would be naive to think he is going to side with the immigrant advocates in this country who want protections," Emily Robinson, co-director of the Loyola Immigrant Justice Clinic in Los Angeles, said in an interview Friday.

EVIDENCE COLLECTION: UTAH v. STRIEFF

The Supreme Court opinion in Utah v. Strieff allows into court evidence found during an unlawful stop if the suspect was later found to have an outstanding warrant. Loyola professors opined on the impact of this decision in several stories:

“Illegal Evidence Allowed in Court,” Bloomberg Law, June 20, 2016

Professor Laurie Levenson, the David W. Burcham Professor of Ethical Advocacy, analyzed for Bloomberg BNA the Supreme Court opinion that On why this type of evidence is not considered fruit of the poisonous tree: “The court was using the Attenuation Doctrine. It’s never been used before in this situation,” said Levenson. “ The only thing you had here intervening was the arreseting officer finding an outstanding warrant.”

“Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police,” Summary Judgments, June 21, 2016
Professor Eric Miller, who teaches Criminal Procedure and related cased, assessed the impact of the Supreme Court’s decision in Utah v. Strieff, which opened the door for police evidence to be presented in court even when obtained without a search warrant and without initial probable cause. His commentary appeared on the Summary Judgments faculty blog, “The police can now target high-crime neighborhoods in which individuals have greater likelihood of warrants and engage in random stops with virtual impunity. In a city like Ferguson, Missouri, where the number of outstanding warrants is larger than the number of citizens, the right to avoid the police is a chimera.”

Miller's commentary was featured on SCOTUSblog.

O’Bannon v. NCAA: Antitrust case In which Athletes Seek Payment for Likenesses in Videogame

Professor Jennifer Rothman has closely followed the case of O’Bannon v. NCAA, a case in which NCAA athletes are seeking payment for the use of their likenesses in a videogame. The case involves right of publicity issues – an area on which Professor Jennifer Rothman, Joseph Scott Fellow, is a nationally renowned expert. Rothman runs Rothman’s Roadmap to the Right of Publicity. Her filing of an amicus brief to the Supreme Court received coverage:

DC Antitrust Group, Law Profs Back NCAA's O'Bannon Appeal,” Law 360, June 17, 2016

Another brief from 28 legal scholars, dated Monday, focused on what the professors described as a problem with the Ninth Circuit’s First Amendment analysis. The 28 law professors are represented by Eugene Volokh of the UCLA School of Law and Jennifer E. Rothman of Loyola Law School, Los Angeles.

LIABILITY UNDER FALSE CLAIMS ACT: Universal Health Services, Inc. v. United States ex rel. Escobar

Professor Paul T. Hayden's book, "The Law of Torts," is cited in the U.S. Supreme Court's opinion turning on when liability arises under the False Claims Act.
[Excerpt from the opinion]

We need not resolve whether all claims for payment implicitly represent that the billing party is legally entitled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying information—can be actionable misrepresentations. A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674 (1931) (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase.” Ibid. Likewise, an applicant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)).

Criminal Justice Issues & Election 2016

By Professor Laurie Levenson

Although there are critical issues facing our criminal justice system today, precious little has been said by this election’s Presidential candidates. However, if one checks their websites, important differences among the candidates emerge.

Prof. Levenson Co-Authors Report Assessing Criminal Informant Practices in Orange County

Professor Laurie Levenson was part of a committee that today released the "Orange County's District Attorney Informant Policies and Practices Report" after reviewing the facts regarding informant use that ultimately prompted a judge to dismiss the entire OC District Attorney's Office from prosecuting the case of Scott Dekraai, who was charged with 2011 mass shooting in Seal Beach, Calif.

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.]

Prof. Levenson publishes review of American Founding Son: John Bingham and the Invention of the 14th Amendment

By Professor Laurie Levenson

Professor Levenson's review, "When Legislators Actually Mattered," appeared in the Los Angeles Review of Books.

Excerpt:

PROFESSOR GERARD MAGLIOCCA spares no detail in his comprehensive review of John Bingham's life and his drafting of the 14th Amendment to the Constitution. For history buffs, constitutional scholars, and civil war experts, the book is a smorgasbord of facts about a critical period in America's history. The reader is taken step by step through the political and legal hurdles required to enact one of the most significant post-Bill of Rights provisions of our Constitution.
The 14th Amendment makes America the country it is today. Without it, Reconstruction following the Civil War was unlikely to have succeeded. Without it, there would be no limits on the states' ability to restrict freedoms of speech and religion, nor any guarantee that local law enforcement would honor citizens' rights against unreasonable search and seizure.

Read the complete review.

Loyola Professors Draft Bill on Defense Attorney Recording Privileges

Professors Laurie Levenson and Brentford Ferreira were quoted in the Daily Journal about a bill they drafted that would give defense attorneys similar surreptitious recording priveleges to prosecutors and law enforcement. Levenson and Ferriera, who recently joined Loyola as an adjunct professor and supervising attorney of Loyola's Project for the Innocent, hope to have the bill introduced into the California state Legislature.

Excerpt:

Brentford Ferreira, a former Los Angeles County prosecutor, and professor and project head Laurie Levenson recently penned language for a bill that would provide defense attorneys and their investigators with the ability to secretly record conversations with witnesses in criminal cases. The idea is that surreptitiously recording witnesses could help defense attorneys recognize and prove that a witness has given conflicting testimony. That could pave the way for defendants to prove their innocence or help wrongfully incarcerated defendants clear their names. 

"Faulty eyewitness identifications result in the convictions of innocent people," the authors note in the would-be bill's statement of purpose. "Witnesses often recant their previous identifications."
Ferreira and a group of Loyola law students hope to convince a lawmaker to introduce the draft bill in next year's legislative session. 

... 

"If law enforcement's taping is focusing on ongoing criminal activity, then it might make some sense as to why they have additional investigative powers," she [Levenson] said. "However, if all they are doing is secretly taking witness statements, then it is unclear why they should have a tool that the defense does not have. Both sides should want to get the true testimony of the witness."

Policing L.A.'s Sheriff

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

This op-ed originally appeared in the Los Angeles Times.

It is time to seriously consider a civilian oversight board for the Los Angeles County Sheriff's Department. The Board of Supervisors is scheduled to consider such a proposal next week. If approved, it could be a big step toward remedying some of the ongoing problems in our county jails.

The last few years have been tough for the department, which has been plagued by jail scandals, committee inquiries and even a federal investigation. Despite the efforts of committed professionals within and outside the department to monitor abuses in the jail system, the problems have continued. Meanwhile, the public has only been invited into the process once the situation has reached crisis dimensions.

A citizen oversight board has the advantage of providing a constant outsider view of the operations of the Sheriff's Department, very much in the same way that the Los Angeles Police Commission monitors the Los Angeles Police Department. Rather than gearing up to deal with the next inevitable crisis, the Board of Supervisors should focus on what monitoring will be the most effective in preventing scandals in the first place.

The Importance of Judicial Diversity

By Professor Laurie Levenson and Courtnee Draper '14

This op-ed originally appeared in the Friday, Feb. 15, 2013 edition of the Los Angeles and San Francisco Daily Journal.

As Thomas Jefferson proclaimed, "The most sacred of the duties of a government is to do equal and impartial justice to all its citizens." To accomplish this goal, it is imperative that we have a diversified bench. Recent national studies show that minority groups lag far behind in their confidence in our judicial system. While 62 percent of white voters view the courts as fair and impartial, only 55 percent of non-whites feel the same. In fact, 85 percent of some minority groups believe there are two systems of justice: one for the rich and powerful, and one for everyone else.

Overall, judges of color account for just 12 percent of all state court judges chosen since 2000. In California, we have a long way to go until our bench reflects the population that it serves. For example, Asians comprise 15 percent of the state's population; however, they represent only 5 percent of all judges. A more concerted effort has been made to appoint African-Americans to the California bench. African-Americans constitute 6 percent of the state population, and they too represent only 5 percent of the current judges.

The greatest focus has been on the appointment of Latino judges. Since January 2011, 15 new Latino judges have been appointed to the bench, increasing the representation of Latino judges to 8.2 percent. Yet in a state where 37.6 percent of the population is Latino, there is still a long way to go before the bench is diverse enough that Latinos are anything other than "token" appointees.
We also need to focus on other underrepresented groups in judicial appointments. For example, there is still a significant gender gap in our state's judicial appointments. Women comprise almost 40 percent of California's lawyers. However, they still represent only 33 percent of the judicial appointments. Of course, women of color face the double challenge of being both a woman and a minority when a seeking judicial appointment.

Nor do the challenges for minorities and women end once they are appointed to the bench. Sometimes, they are more vulnerable to challenge in retention elections, particularly if they have foreign-sounding names. While the public might like to think that in 2013 there is no longer racial or gender bias, the statistics suggest otherwise. It is still tougher for certain groups to attain leadership positions, including seats on the bench, because of factors completely unrelated to their qualifications to be a judge.

Loyola Professors Release Journalist's Guide to American Law

Reporting on the legal system without a law degree can be challenging. A team of Loyola Law School professors aimed to fix that by writing The Journalist's Guide to American Law. The book, published by Routledge and released on Monday, Dec. 10, serves as an essential reference for journalists whose coverage area includes the law. The authors are Professors John Nockleby, Laurie Levenson, Karl Manheim, Jay Dougherty, Dean Victor Gold, Allan Ides and Daniel Martin.

From the publisher:

> How do you report on the latest sensational criminal trial or newest controversial legislation without a basic understanding of how the American legal system works?

> This easy-to-use guidebook offers an overview of American law that should be found on the desk of any journalism student or professional journalist. It provides an overview of major legal principles and issues in simple terms for journalists who cover any aspect of the legal system. The Guide can be used in two ways: first, as a sit-down read that gives an overview of American law; and second, as a reference that can be used every day under deadline pressure for a specific purpose. Every feature of the book is designed to serve both functions. Thus, the book's organization captures both the birds-eye view of a subject; and, alternatively, permits a quick review of a given section when the professional needs to understand a distinct concept. The areas covered range from professional concerns such as the First Amendment, cameras in the courtroom, Sunshine laws, and access to government documents to general legal matters such as the institutions of law and lawmaking function of the judiciary; core constitutional principles such as separation of powers and judicial review; and how courts function.

> The book is ideal for use in general newswriting and reporting courses, particularly those with a focus on legal or court reporting, and may also be used as a supplementary text in Media Law courses.

Prop. 34 and the Death Penalty

Professor Laurie Levenson was quoted in a Guernica Magazine story by Casey Michel titled, "California's Death Penalty Decision," published on November 5.

Levenson on what separates this proposition from previous attempts to repeal the death penalty:

"This round's not really about a morality issue--it's a cost issue," says Levenson. "The pitch this time [from the repeal camp] is that when we can't fund our schools, can't fund our highways, why are we funding this program that already has these exorbitant costs?"

To support Levenson's argument, Michel references Adjunct Professor Paula Mitchell's 2011 report on death penalty costs in California.

Michel writes:

"A report from 2011, authored by Judge Arthur Alarcon and Prof. Paula Mitchell, found that switching those on death row to life imprisonments without parole-as Prop 34 would accomplish-would save the state $170 million per year, tallied to $5 billion over the next two decades."

Levenson also spoke about proposition's chances of passing:

"I don't know what's going to happen, but this is the most traction I've seen the death penalty repeal get in decades," Levenson noted. "We can't shorten the process. We can't take shortcuts. There's too much at stake."
Read the full article here.

In evaluating Prop. 34, Prof. Levenson assesses effectiveness of death penalty

Professor Laurie Levenson assessed the effectiveness of the death penalty in a recent story about Californai's Prop. 34, which would eliminate the death penalty in the state.

"There is no showing the death penalty does anything good. It's not a deterrent, all it does is suck in money and you would hope the public would say, 'we can we do better with that money,'" she siad.

She continued: "I think it is an emotional response. Emotionally, some people say I think killers have to die, and emotionally some people say I don't want to be killing in the name of the state. Often times that is what the debate comes down to.

Read the complete story.

What's New with Venue?

By Professor Laurie Levenson

[This article was originally posted in the Los Angeles Daily Journal.]

The fundamental rules of venue are not that difficult. The government must prosecute an offense in a district where the crime was committed. See U.S. Const. art. III, § 2, cl. 3; U.S. Const., Amend. VI; Fed. R. Crim. P. 18. Generally, venue requirements for criminal cases are set by statute. See 18 U.S.C. §§ 3234 - 3244. If a crime takes place in multiple venues, the prosecutor usually has discretion as to where to charge the crime.

Despite these basic rules, interesting venue issues arise all the time. In the past year, there have been several cases addressing venue challenges in federal court. For example, in United States v. Gonzalez, 2012 U.S. App. LEXIS 13149 (9th Cir. 2012), the Ninth Circuit once again ruled on a challenge to venue in a conspiracy case. Circuit Judge Richard C. Tallman began his opinion by noting that "[d]etermining where an offense occurred can be quite tricky - particularly for continuing crimes, like conspiracy, where the conspirators' activities often have a ripple-like effect that may involve numerous districts." Id. at *1.

In Gonzalez, defendant was charged with conspiring to sell drugs. During the alleged conspiracy, Gonzalez never set foot in the district where the crime was charged. Rather, venue was based upon two telephone calls to Gonzalez's cell number that a confidential informant ("CI") made at the direction of the Drug Enforcement Administration ("DEA"). Nothing in the stipulated facts indicated whether Gonzalez knew or suspected that the CI was calling from another district at the time of the calls. However, the Ninth Circuit panel held that it did not matter. Because the calls were used to negotiate the sale and delivery of drugs, venue was proper in the district from which the calls were made.

The Fullerton Beating Case & The Lessons of the Rodney King Trial

Laurie Levenson, Professor of Law, William M. Rains Fellow and David W. Burcham Chair in Ethical Advocacy, was quoted in a previous article published by The Orange County Register on May 9, 2012 which discussed the Kelly Thomas trial. This is Levenson's response to recent case developments.

In some ways, the Kelly Thomas beating case is, in the immortal words of Yogi Berra, "deja vu all over again." Having watched the Rodney King trial, I can appreciate the enormous challenge of prosecuting police officers. Jurors tend to give them every benefit of the doubt. After all, police do the difficult job that many of us do not want to do. Yet, even police officers can cross the line. The Orange County District Attorney's Office must not only prove that this was bad police work, but that it rose to the level of criminal behavior that put defendant Ramos in prison for the rest of his life.

The video of the beating is powerful. It is hard to watch, but it is even harder to listen to. As Thomas cries, "I'm sorry, I'm sorry," and pleads for help, one cannot help but have a visceral reaction. However, a visceral reaction may not be enough to win a murder case. If the Rodney King case is any type of precedent, we should also look for other evidence that will prove what was going on in the defendant's head. Did Officer Ramos realize he might kill Thomas? Did he act with deliberate indifference? Did he try to cover up what he did? Did he laugh and joke, like the King officers did, about what he did? What statements did he make about his actions? Why did he do it? Did his acts even cause the death?

This case is only in its early stages. As it moves through the criminal justice process, it is best to keep in mind that this will not be an easy trial. It is also important to remember that one criminal prosecution cannot cure all of the ills of our criminal justice system. We have a problem with how police interact with the mentally ill. That issue must be addressed, regardless of the outcome of this case.

Then & Now: Images From the Same Spot as the L.A. Riots 20 Years Later

Professor Laurie Levenson , David W. Burcham Professor of Ethical Advocacy, was quoted in an LA Weekly article titled, "Then & Now: Images From the Same Spot as the LA Riots 20 Years Later.

Read the full article here.

Supreme Cour's Rulings on Ineffective Assistance at Plea Bargaining Stage Call for New Efforts by Not Only Defense Counsel but Also Prosecutors and Judges

Professor Laurie Levenson , Professor of Law, William M. Rains Fellow and David W. Burcham Chair in Ethical Advocacy, wrote the following article titled, "Supreme Court's Rulings on Ineffective Assistance at Plea Bargaining Stage Call for New Efforts by Not Only Defense Counsel but Also Prosecutors and Judges," that was published in Bloomberg's Criminal Law Reporter on Wed. April 25, 2012.

"It is a big year for U.S. Supreme Court cases. Health care, affirmative action, GPS devices, stripsearches--the court selected many of the hot-button issues to decide this term. Among the most important cases are Missouri v. Frye, 2012 BL 67235 (U.S. 3/21/2012), and Lafler v. Cooper, BL 67236 (U.S. 3/21/2012). In these opinions, the court recognized that plea bargaining lies at the heart of the way that the current criminal justice system operates. Thus, the court's decision to set standards for defense counsel's assistance during plea bargaining has the potential to dramatically affect how plea bargaining is handled in this country.

Read the full article.

Prof. Levenson reviews 'Death on a High Floor'

By Professor Laurie Levenson

What do criminal law professors do in their spare time? Read legal thrillers, of course. This year, Charles "Chuck" Rosenberg, has given us a gem of a book and it will be particularly fun to read for those even vaguely familiar with some of the high-profile cases Los Angeles has hosted. It is a book that expertly provides an autopsy of what makes our criminal justice system tick.

Rosenberg is a survivor of the so-called Trials of the Century. He cut his teeth as a consultant for such prime time television shows as "L.A. Law," "The Practice," "Boston Legal" and "The Paper Chase." He sat through every moment of the O.J. Simpson trials (criminal and civil). He is an expert in law and popular culture, using his position as an adjunct professor to teach students how the arts mirror real life and how real life can start to mirror fiction.

In his first novel, "Death on a High Floor," Rosenberg takes a candid look at the mega-law firms today by using a most unusual literary vehicle -- an unsolved murder case. With tongue firmly planted in cheek, Rosenberg starts his work with the line, "I am a lifer." The "lifer" is not a person on death row (at least, not yet), but rather refers to Robert Tarza, a senior partner at a major law firm who has been accused of killing one of his fellow partners, Simon Rafer. Tarza may be a brilliant civil litigator, but he is an idiot of a client whose mistakes at the beginning of the investigation give the police much too much probable cause to believe he is the killer.

Nothing is ordinary about this case. Tarza picks a "kick-ass associate" named Jenna to be his counsel. There are many reasons she might not be the expected choice to lead one's murder defense. Start with the fact that she has never handled such a case. Add to it the fact that she had slept with the victim and lives with the defendant, and you have a most unusual attorney-client relationship. Jenna, in turn, has the good sense to dredge up the lifer, a seasoned defense lawyer who has played the field forever. He knows murder cases and he knows (often intimately) the judges who handle them. But, his life of experience also makes him jaded, leading him to spar with his client and Jenna over their approach to the case.

The book winds through the discovery of the murder, to the pretrial investigation, to the witness-by-witness description of the preliminary hearing. Jenna is much more than a pretty face. She is a lawyer who has natural instincts for how to work a courtroom. Preparation is key, but being able to read people is probably the most valuable courtroom skill that someone in her position could have.

Maples v. Thomas: Putting the "Just" Back into Justice

By Professor Laurie Levenson

Last week, the United States Supreme Court decided Maples v. Thomas, 565 U.S. ___ (2012). Technically, the case was about whether Cory Maples, who had been convicted of murder and sentenced to death, would be able to overcome a procedural hurdle in the federal habeas corpus laws and seek relief in federal court. The problem arose when Maples' pro bono lawyers from the prestigious law firm of Sullivan & Cromwell abandoned him, causing him to miss the deadline for appealing the denial of his state habeas corpus petition.

The Supreme Court unquestionably reached the right result when it ruled that there was cause for the procedural default and that Maples' lawyers' blunder should not undermine his ability to seek habeas relief. However, what was most interesting about the decision was not the technical legal analysis. It was the language Justice Ginsburg used to emphasize why the Court would be ruling the way it did.

She began her decision by stating that "no just system would lay the default at Maples' death-cell door...." (emphasis added). In other words, it is time to put the "just" back into "justice." The laws are full of procedural hurdles for defendants seeking to attack their convictions, but defendants should not bear the brunt of mistakes committed by their lawyers. This is especially true in a system where some states cap defense attorney fees at $1,000 for out-of-court work and these lawyers are paid only $70 per hour. Clients abandoned by counsel should not be left without recourse. The goal should be a "just "system. That system has costs and it is time to open our eyes to them.

While Justices Antonin Scalia and Clarence Thomas dissented, conservative Justice Samuel Alito concurred. He stated that this case presented the "perfect storm of misfortune" leading to the deprivation of Maples' legal representation. He may be right that this was the perfect storm, but the forecast for future cases does not look particularly sunny. Given the lack of qualified death penalty counsel and the absence of resources to pay them, there will inevitably be more storm clouds ahead.

KPCC's Madeleine Brand Show covering Project for the Innocent as part of yearlong documentary

KPCC's Madeleine Brand Show will be covering the first year out of prison for Obie Anthony, the client for whom Loyola's Project for the Innocent secured a release on Oct. 4 after working on his claims since 2008. Students, under the direction of Professor Laurie Levenson and post-graduate fellow Adam Grant, drafted habeas claims and interviewed witnesses. Most recently, students participated in a September evidentiary hearing.

The complete story is at KPCC.org.

Just Do It: The importance of training law students in public advocacy

By Professor Laurie Levenson

This op-ed was originally published by the Los Angeles Daily Journal.

Last month, The New York Times published an editorial calling on law schools to help fill the "justice gap" by training all law students in public advocacy. See N.Y. Times, "Addressing the Justice Gap" (Aug. 23). The "justice gap" represents America's failure to provide meaningful access to justice for low-income litigants. According to a report by the Carnegie Foundation, four-fifths of low-income people in the United States have little way to obtain the representation they need in order to succeed in our justice system. These litigants cannot afford a lawyer; without a lawyer, they stand little chance to win their cases.

While the Sixth Amendment provides indigent defendants in criminal cases with the right to appointed counsel (Gideon v. Wainright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 58 (1938)), there is no such right in civil cases. Just this term, the U.S. Supreme Court held in Turner v. Rogers, 131 S.Ct. 2507 (2011), that even when a civil litigant faces incarceration for civil contempt, there is still no automatic right to counsel. So long as there are adequate procedures to govern the proceedings, civil litigants must provide for themselves.

The net result is that many people in society, often the most vulnerable among us, are unrepresented in the civil justice system. Among these individuals are immigrants, prisoners and those whose civil rights have been violated.

At the same time, there is a desperate need to provide practical education to law students to prepare them for the "real world" experiences they will face after graduating. See William M. Sullivan, "Educating Lawyers: Preparation for the Profession of Law" (Jossey-Bass 2007). After more than 25 years of teaching, it has become abundantly clear to me that there is only so much that a student can learn from a book. To become a "real" lawyer - a lawyer who is prepared to interact with and fight for a client's interests - a student must be given the practical experience in law school of working on real cases. We need to teach our students to be "lawyers," not just students of the law.