University of Louisville Law Faculty Blog
The Kentucky Supreme Court recently provided very useful guidance on a very uncomfortable problem of criminal representation. A real representational conundrum occurs when a lawyer believes that a client plans to take the stand and perjure himself or herself.
In Brown v. Commonwealth of Kentucky, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court has attempted to shed some light on proper conduct, especially in the criminal context.
The Court acknowledged the lawyer's ethical obligation under Rule 3.3 by stating that the attorney must bring the conflict to the trial court's attention. To do so the lawyer must make "[a] clear statement of the nature of the problem" but need not give a "detailed evidentiary statement of the disagreement."
The lawyer should proceed in this way only if she "in good faith" has "a firm basis in objective fact for her belief, beyond conjecture and speculation, that the client will commit perjury. "
The Court directed the attorney to follow the instruction of the trial court. The Court noted that allowing the defendant to testify in narrative form is acceptable, with the lawyer present to provide representation such as objections to cross-examination and with regard to matters not involving the perjury.The Court found that in the matter before it the criminal defendant was deprived of the right to counsel because the defendant's lawyer left the courtroom during the defendant's testimony and thus could not make objections with regard to the cross-examination.
As David A. Strauss so cogently recognized, in his article, Persuasion, Autonomy, and Freedom of Expression, 91 Colum. L. Rev. 334, 337 (1991): "[T]yrants suppress speech because they fear it will be persuasive."
This fear explains some of the major developments in free speech history. For example, after Johannes Gutenburg invented the printing press in 1436, governments moved to suppress this new "technology" because people could use it to communicate more efficiently and effectively with each other. Prior to this invention, the people could communicate with each orally, but it was difficult to efficiently communicate with large audiences. The printing press changed the dynamic by allowing people to print multiple copies of texts and disseminate them widely.
At the same time, this "democratization" of technology struck fear into the heart of government which previously had exercised a semi-monopoly over the means of communication. In an attempt to address the potential "evils" that might result from unrestrained communication, governments enacted licensing laws (which prevented individuals from publishing without a license, and required that proposed texts be vetted through governmental censors), and England (in particular) enacted seditious libel laws (which made it a crime to criticize the government, and punished truthful communications more severely than untrue communications on the theory that they were more likely to have impact).
Though no Kentuckian has warmed its benches since Fred Vinson died suddenly in 1953, the U.S. Supreme Court apparently loves Kentucky litigants, most recently inviting first David Friedman's and then Teddy Gordon's clients up to Washington to chat about courthouse decorations and the Louisville public schools. Next year, some Frankfort attorneys will be making the trip, this time to defend the Kentucky death penalty and, in an unrelated case, its Kentucky retirement plan. (Contrary to belief, Eddyville's Kentucky State Penitentiary is not part of the retirement system).
In Baze v. Rees, 07-5439, the Court will decide whether the risk of pain and suffering inherent in execution by lethal drugs makes the method unconstitutional under the 8th Amendment's prohibition against cruel and unusual punishment. The justices will also examine whether Kentucky pension plan engages in age discrimination when it uses age as part of its formulae (Kentucky Retirement v. EEOC, 06-1037).
Details on the cases, including the cert briefs, can be found on SCOTUSBlog.
The New York Times' Freakonomics blog has an interesting post today about an upcoming study of first-time-taker bar exam results. In an upcoming Journal of Legal Education article, St Louis University professors Douglas Rush and Hisako Matsuo test the theory that students with lower GPA scores will be helped to pass the bar by a heavy diet of bar courses. Their data suggested no significant relationship exists between passage rates and law school courseload for lower and higher GPA quartile students. Generally, students in the upper two GPA quartiles passed at high rates while students in the lowest quartile passed at significantly lower rates, without regard to the number of bar courses they had taken. (Interestingly, there did seem to be some benefit to such a coursework plan for third quartile students, but there is little analysis of why that might be the case).
The article is a welcome addition of metrics to this debate, although somewhat unsatisifying in its narrow scope and analysis. You want to say "yes, but what if...," but the the "what if" data isn't there. The authors note that "more research is warranted."
Kentucky Library Association Annual Conference
"University of Louisville Libraries Digital Collections: Connecting Communities and Collections"
Presenters: Rachel Howard, Weiling Liu, Virginia M. Smith
September 20, 2007
3:10 PM - 4:00 PM
Rose Room, Marriot Downtown Louisville
As a result of having attended the Idea Festival this past weekend, I’ve been inspired to exercise my civil liberties by blogging.
The 3-day conference was sponsored in part by the University of Louisville. With my employer's encouragement, I attended a multitude of free sessions on a diverse array of topics ranging from sustainable architecture and green landscaping, worm holes and parallel universes, to an update on Darfur by the Pulitzer Prize winning New York Times columnist, Nicholas Kristof. It was during a panel session on the topic of Peace and a presentation by international bloggers, that I learned from Bahrainian journalist, Amira Al Hussaini, that both Turkey and China have banned the use of WordPress, an open source blogging platform that the Law School utilizes.
As a librarian and concerned citizen, I am passionate about disseminating information and believe that removing political and technological barriers to access is essential to preserving our democracy.
Conference attendees were encouraged to scribe their ideas on a note pad and post them to a logo-laden car provided by the Geek Squad, another conference sponsor. Here, I’d like to share one of my ideas and posit a challenge to the University of Louisville to install a speaker’s pulpit similar to the Speaker’s Corner in London’s Hyde Park, outside of the SAC or some other prominent location on campus to encourage an ongoing exchange of information and ideas within our community.
To participate in the global conversation, visit: www.globalvoicesonline.org
In his article, The Seven Deadly Sins of Deaning, Dean Steven Smith (Cal. Western), a former colleague here at Louisville, points out that:
"DEANS sin. There are the petty offenses: the occasional missed reception, the student's name forgotten, or the parliamentary gaff at a faculty meeting. These are generally forgiven and dismissed before the next graduation.
There are, however, the more serious decanal transgressions that are not so easily forgiven or forgotten. The worst of these are deaning's Seven Deadly Sins, the wrongs that will rot a deanship. They may destroy the trust that allows a dean to function, dissipate the opportunity for the law school to make progress under a dean, or interfere with the collegial environment that supports learning and discovery."
So, you might ask, what are the "deadly sins?" Dean Smith summarizes them as follows: deception, revenge, narcissism, pessimism, taciturnity, disloyalty and aimlessness. In subsequent blogs, I will talk about some of these "sins."
The Wall Street Journal Law Blog has an interesting post about former federal judge, Michael Mukasey, who President Bush will name today as his nominee as U.S. attorney general. First, his name is pronounced Mew-KAY-Zee. Always good to get that kind inside info, especially since President Bush will likely call him Moo-KAZ-Zee, or just "Mookie." Also amusing is an anecdote about the judge's opinion of the USA PATRIOT Act--specifically, the act's name, not the act itself:
I think one would have to concede that the USA Patriot Act has an awkward, even Orwellian, name, which is one of those Washington acronyms derived by calling the law “Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism.” You get the impression they started with the acronym first, and then offered a $50 savings bond to whoever could come up with a name to fit. Without offering my view on any case or controversy, current or future, I think that that awkward name may very well be the worst thing about the statute.
Senate Majority Leader Harry Reid seemed favorable to the selection and promised that confirmation hearings would be arranged soon.
- Judge Mukasey's Patterson Belknap Webb & Tyler LLP biography.
- His official Federal Judicial Center biography.
- New York Law Journal biographical sketch.
--Aesop (~550 BC)