My Last Word Addresses Justice on Tribal Lands

Arizona Attorney’s “End Notes,” from the early 2000s.

One of the biggest challenges every magazine faces is: What do you do with your back page?

Specifically, that means the inside back page, typically the last “edit” page in the magazine, followed by a page or more of advertising. After the cover and the contents page, it is typically the most-read page in a magazine (aside from lawyer discipline, in our case!).

When I started at Arizona Attorney Magazine years ago, we tried a variety of things, including a page dedicated to legal trivia (and even incorporating a quiz), called “End Notes.” But as time went on, we gravitated back to a traditional inside last page with commentary from folks we thought readers would appreciate (or respond to, or both). We call the page The Last Word.

Our “stable” of regularly recurring columnists has varied, but it has stayed the same over the past few years (though we are open to ideas for people to add as a regular columnists; send a note to me at arizona.attorney@azbar.org).

Over time, though, we found that there were more diverse voices among Arizona lawyers that should be shared. These are those people who may have no interest in writing regularly, but who have one great and compelling column in them. They have a message they feel should be conveyed. Aside from a letter to the editor, where is the magazine space for them?

Arizona lawyer Don Bayles. Jr.

That’s when we developed My Last Word—identical in appearance and word count to The last Word, but open to any lawyer who has something to say. (Like all content, submissions are reviewed for appropriateness, timeliness and relevance.)

If you or someone you know is interested in pursuing a column, write to me (arizona.attorney@azbar.org).

The May issue contains a compelling example of My Last Word. Written by Don Bayles, Jr., it addresses the heartbreaking problem of violence against women and girls in Indian reservations. The challenges include jurisdiction and vast distances, and they are substantial.

Here is how Don opened his column:

“Horrific violence toward women and children on southwestern tribal lands continues to disappoint. Up to 90 percent of girls in Hopi villages can expect to be sexually molested, according to a September 2012 interview with Arlene Honanie, the wife of the tribe’s vice chairman. Ms. Honanie said that this happens, at least in part, because offenders are so rarely punished. A nearby advocate for reservation victims offered a similar observation in cases involving the Navajo Nation. Speaking to a New York Times reporter, Caroline Antone said, ‘I know only a couple of people who have not been raped, out of hundreds.’ If these reports are even roughly accurate, the Rule of Law within our adjacent Indian nations has lost credibility. As one human rights leader has said, ‘If you’re not safe, nothing else matters.’”

You should read Don’s entire column, here.

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Was Suspension of Miranda After Boston Bombings Appropriate?

Gary Stuart speaks on Miranda rights.

How central is Miranda to our constellation of rights? When and how would we ever agree it would be acceptable to abrogate the rights gathered under the Miranda rubric?

That issue never arises on the easy cases, of course. In the workaday world, every police officer in the United States knows that the reading of the Miranda rights is an essential part of their role.

Arrests following a terror attack are not the easy cases.

That’s what we saw after the arrest of a suspect in the bombings at the Boston Marathon. The federal government announced that it was interrogating the suspect in advance of reading his rights.

We’ve understood for years that there may be emergencies that militate toward questioning-before-rights. For instance, if officials believed there could be timed explosive devices secreted around the city, they arguably should begin questioning immediately. Time will help explain if that is the situation that faced officials.

This Sunday, Gary Stuart examined the uneasy choices we make when we set aside basic rights. Gary is an experienced lawyer and author of “Miranda: The Story of America’s Right To Remain Silent.”

In his Arizona Republic op-ed, he traces the history of Miranda and subsequent rulings that have carved out exceptions to the rights.

Cagily, he leaves his powerful conclusion for the last three paragraphs. In case you are as impatient as I am, here they are:

“We should be wary about doctrinaire Miranda compliance in terrorist cases, especially where the public safety is at risk—as the Boston Marathon bombing clearly was.”

“Even so, balancing too far in favor of gathering intelligence by minimizing suspects’ rights might reverse five decades of Miranda application. While we want to win the war on terrorism, it cannot come at the price of returning to the bad old days before Miranda, when law enforcement was silent on the rights of suspects.”

“If law enforcement is silent and suspects are not, we might advance the war. But if domestic suspects have no rights, especially in terrorist cases, then those seeking to destroy democracy itself and replace it with a radically fundamental theocracy will have obtained one of their objectives.”

Read Gary’s entire editorial here.

What are your thoughts? Do we risk too much when we allow the pendulum to swing? Or does the government adopt a permissible position when it acts as it did in Boston?

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Pioneer Hotel Fire Case Covered by @60Minutes

The Pioneer Hotel burned in downtown Tucson, December 1970.

[Note: A previous version of this story indicated that the Pima County Attorney's Office is housed in the structure that formerly was the site of the Pioneer Hotel. We were misinformed; the PCAO is across the steet from that site. We apologize for the error.] 

Last evening, the TV news magazine 60 Minutes screened a compelling news story about the Hotel Pioneer fire case, from 1970.

The Tucson fire killed 28 guests, and 16-year-old Louis Taylor was arrested before the fire was extinguished. The black teenager was convicted by an all-white jury.

The news program (screen shots below) was peppered with commentary by Taylor’s Arizona lawyer, Ed Novak, a Polsinelli partner (and former President of the State Bar of Arizona). As the story says, Novak “is now leading Louis Taylor’s defense team, which is made up of volunteer lawyers, students and law professors from the Arizona Justice Project.” That team has sought a new trial for Taylor.

Novak and the team reviewed all the evidence, and conducted depositions of individuals such as the original fire investigator, Cy Holmes. That work was followed by recent findings that the cause of the fire was undetermined; that meant arson was just one of a number of possibilities.

“The last time I checked,” Novak said, “we don’t convict people on a ‘possibility.’”

In the story, Steve Kroft reported that 60 Minutes had sought an interview with Pima County Attorney Barbara LaWall, to no avail. So Steve approached her on a Tucson street. That interview is captured in the broadcast.

But, as the story indicated, a new trial will likely never occur. Taylor has accepted a deal that gave him release from prison—where he has spent two-thirds of his life—but through which he must declare no contest to the charges.

You should read the script, and view the story, here.

Later this week, Taylor’s lawyers will have a press conference on the case’s outcome. I’ll report their statements.

Here are some screen shots from the 60 Minutes program:

This slideshow requires JavaScript.

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Arizona Lawyers, @AZStateBar Aid Veterans in StandDown Event

Volunteer lawyers counsel veterans at the 2013 Arizona StandDown. (photo: Alberto Rodriguez)

Today, I share some great news from the State Bar of Arizona, as communicated by my colleague Alberto Rodriguez. Congratulations and thank you to all the Arizona lawyers who participated:

On Friday, March 8, and Saturday, March 9, the State Bar of Arizona and 24 of its members participated in the 2013 Arizona Veterans StandDown. The State Bar and volunteer attorneys joined several service providers at the three-day event that offered a variety of health and human services to homeless and at-risk veterans in our state. Volunteer attorneys from across the valley fielded legal questions via one-on-one consultations with veterans seeking legal advice.

Volunteers Roger Ferland and Kay at the 2013 Arizona StandDown. (photo: Alberto Rodriguez)

The “Civil Law Clinic” organized by the State Bar offered legal consultations by members who practice Family Law, Bankruptcy/Foreclosure/Tax Law, Elder/Mental Health Law, and Real Estate/Landlord & Tenant Law.

Volunteer attorneys provided 322 consultations during the two-day civil law clinic for the 254 veterans who were seen. In addition, many attorneys offered pro-bono legal services to veterans who needed representation.

The following is a list of committed attorney and logistics volunteers:

Attorney Volunteers:

Jennifer Alewelt

Jennifer Boucek

Steven Clark

Stasy Click

Kristen Coyne

Patrick Derksen

Ben Dodge

Tracy Essig

Meredith Flori

Kirk A. Guinn

Stacey L. Johnson

Harry Keidan

Cynthia Kelley

Katherine Kraus

Joseph W. Kruchek

Alyssa Medina

Bill Miller

Judy M. Miller

Kay A. Nehring

Louis G. Parker

Jane Proctor

Ryan Scott

Charles Sears

Gosia M. Zawislak

Logistics Volunteers:

Ann Bean, Dodge & Vega

Roger Ferland, MLAC Chair

Donene Olmstead, Dodge & Vega

Kay Nehring, Nehring Law Office

Veteran Edward Cook, alongside a photo of his younger self, at the 2013 Arizona StandDown. (photo: Alberto Rodriguez)

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50th Anniversary of Landmark Case Gideon v. Wainwright

Clarence Earl Gideon

March 18, 1963, was the date on which the United States Supreme Court ruled in favor of a petitioner who was also a Florida convict. And through that ruling in Gideon v. Wainwright, Clarence Gideon initiated a sea change in American law.

Monday, of course, will be the 50th anniversary of the ruling, and we still marvel at the change he wrought: It embedded the legal cornerstone that a criminal defendant who cannot afford to hire a lawyer must be provided with an attorney at no cost. It could be argued that no single decision has more affected the ability of defendants to achieve fairness in legal proceedings.

So impressive was the result that it received a shout-out at a Phoenix event yesterday. I will write later about the continued success of the annual Learned Hand Awards luncheon. But at Wednesday’s event, Arizona Justice Scott Bales, emcee for the festivities, took a moment to mark the Gideon anniversary and to praise public defenders and all those who represent the indigent. Exactly right.

In honor of the anniversary, the American Bar Association Section of Litigation has created a resource page exploring Gideon’s legacy. Included on the page is a reproduction of the actual hand-written petition that Clarence Gideon drafted in a Florida prison. It is worth a read.

Also included is a video capturing a January panel discussion regarding Gideon. It is quite good, and I have posted it below. But among its gems is its replaying a 1964 CBS News piece on Gideon, the man and the case. It begins at 2:40 and runs to 13:03, and you should watch every minute.

Is your agency, firm or organization recognizing Gideon in any way on the 50th anniversary? Let me know.

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Symposium at @ASUCollegeofLaw To Address Criminal Justice Challenges

Today, some news from a noteworthy journal at the ASU College of Law:

“On March 1, join the Law Journal for Social Justice for a daylong symposium featuring attorneys, judges, community advocates, and legal scholars as we examine how to transform an inherently unfair criminal justice system into one that values fairness and efficiency.”

“Featured speaker Paul Charlton, former U.S. Attorney for the District of Arizona, leads off the day with a discussion about ethics and sentencing reform. Other panel topics include vulnerable populations in the criminal justice system, the mental health crisis within the criminal justice system and ways to reform the system in a more fair and efficient way.”

More information on speakers, the agenda and a link to register are here.

And be sure to follow the journal on Facebook here.

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Martin Luther King’s Letter From Birmingham Jail, A Place That Held Us All

Martin Luther King, Jr.

Many fortunate Americans will find themselves at home today, in honor of Martin Luther King, Jr., Day. That may also mean they’re not reading blogs, but that’s how it goes.

A few years ago, I started a small personal tradition on this day dedicated to MLK: I re-read his letter from a Birmingham Jail.

Sure, the rest of the day may be given over to relaxation and the enjoyment of being free from work. But for a short period—the time it takes to read his eloquent letter—I recall a sorry part of our nation’s history, and the response of a man and a movement.

The letter is sometimes still assigned in schools, and I think that’s great. King’s insights speak to us just as powerfully today as they did in 1963.

King’s courage is well documented. But what we sometimes forget—and what this letter reminds us—is that he had to be just as courageous with his “allies” as with his enemies. And that is what makes this letter such compelling reading for me. He wrote not (just) for a larger audience; instead, he wrote to fellow clergymen, many of whom were tsk-tsking his efforts to fight segregation.

Many of us can be loud and proud as we face a full-throated opponent. But how many have the courage and character to explain in loving and compassionate detail why our view should win the day? That was King’s task here, and his great achievement.

This speech is the origin of some famous phrases well known to Americans:

“I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

You can read the entire letter here. I encourage you to take the 15 or so minutes it will require. It’s a worthwhile reminder to all of us about our history and the personal and societal tasks that still stretch out before us.

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Community, Solitary Confinement Explored in @hermansfilm Tonight at @_SMoCA (by @weissguy )

Tonight, a film will be screened at the Scottsdale Museum of Contemporary Art that may interest lawyers and many others who seek to examine the U.S. corrections system. (Jump to the bottom for times, tickets, etc.)

Herman’s House is a feature documentary that explores what the filmmakers understatedly call “the unlikely friendship between a New York artist and one of America’s most famous inmates as they collaborate on an acclaimed art project.”

The inmate is Herman Joshua Wallace, who was sentenced to 25 years in prison on a bank robbery sentence. While he served his sentence, though, he and a fellow prisoner were accused of murdering an Angola (La.) prison guard, which landed him in solitary confinement. Though claims have been made that he may be innocent of the death charge (including claims by a widow of the guard), he has remained in solitary confinement for decades.

The film opens with an artist forming and sanding a uniquely shaped object: Is it an egg? Perhaps a stylized womb?

 

Forensic Evidence Changes Slow To Be Adopted

Time flies while little happens.

That’s what occurred to me the other day, when I came across the April 2009 issue of Arizona Attorney Magazine. In that issue, I wrote an article exploring the implications of a hot-off-the-presses report from the National Academy of Sciences. The NAS report was titled “Strengthening the Forensic Science System in the United States: A Path Forward,” and it described in sometimes stark detail many of the problems with the current forensic science system.

And it’s worth recalling that forensic science is the stuff used in court, marshaled in an effort to convict people and send them to prison—or worse.

That 2009 spring was a whirlwind of activity, as the report’s launch was announced, delayed, and announced again. Until the week we went to press, we weren’t sure we could manage to have a timely story.

But what I never really doubted was that the report would have a significant effect on courts and policy. I’m not typically a sunny-side up guy, but the scholarly report was the work of a blue-ribbon panel to end all blue-ribbon panels. It was headed up by a respected jurist. And the writers included a wide variety of people (translated, not just scientists or law professors).

But more than three years later, the report has made few ripples. And this week, a blog post describes the reasoning behind at least some courts’ rejection. In the story, the D.C. Court of Appeals is the focus (note: That court is the District’s highest court; it is not the D.C. Circuit Court of Appeals).

In the case discussed, a lawyer sought to use sections of the NAS report that questioned the reliability of fingerprint analysis. The trial court denied this, and the court of appeals affirmed. The appellate court found:

“that the sections of the report at issue weren’t a ‘learned treatise,’ a term referring to a text that is considered authoritative and can be used to question experts. The appeals court found that [the] lawyer failed to present any evidence that the section on fingerprint analysis was a ‘reliable authority’ and accepted by the scientific community.”

True; that is the standard. But how long do courts wait until the scientific community accepts a report that eviscerates that very same community in significant ways. I’m not sure what the Latin is for “don’t hold your breath,” but I may look it up.

Yesterday, though, I saw this story out of Miami, in which a trial court judge ruled that fingerprint evidence should be restricted.

Note that he did not rule that such evidence should be excluded. He merely read the NAS report and decided that language like “a match” in direct testimony would be overreaching by a forensic expert.

Time will tell whether other courts begin to make granular changes such as this—and whether they will be upheld by appellate courts. But it grows more likely that change stemming from the NAS report will be more grassroots and less global; more lawyer-driven than chief justice- or legislature-driven.

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Maricopa County Attorney Forum Today at @phxlaw

Event images have been added to the bottom of this post.

At 11:15 this morning, the one and only forum of candidates for Maricopa County Attorney will occur. I encourage you to attend.

First of all, I have to divulge: I will be moderating the forum. But as we know, the moderator’s main job is to speak little and to let the candidates do most all the talking. Though that may not always work well (yo, Jim Lehrer), that is my plan and I’m stickin’ to it.

The more important reason to attend is that this is an incredibly important elected office. Even if there is little doubt about the race’s outcome between Libertarian Michael Kielsky and Republican Bill Montgomery (no Democratic candidate was fielded), I still think that hearing what people stand for counts for a lot.

The topics themselves are some of the most noteworthy in our communities: charging, sentencing, immigration, drug use, medical marijuana, campaign finance, prison alternatives, capital punishment, identity theft. And those are just a few of the things we may cover.

You and others may participate in a few ways. First, of course, you can come to the forum. It’s from 11:15 a.m. until 12:15 p.m., at the Phoenix School of Law, One N. Central Ave., Room 1715. Your questions will be welcomed at the end of the hour.

The other way to be a part of the process: Send me a suggested question. You can post it below, or email it to me at arizona.attorney@azbar.org. I will check my email right up until we begin at 11:15, so fire away.

I hope to see you there.

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Here are some images from the debate panel:

L to R: Candidate Bill Montgomery, Phoenix School of Law Professor Keith Swisher, candidate Michael Kielsky

L to R: Candidate Bill Montgomery, Phoenix School of Law Professor Keith Swisher, candidate Michael Kielsky

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