On the Record

Slate has an interesting article today on research showing that about one-tenth of criminal defendants in Maryland may have been given the wrong sentences. The article is based on a University of Maryland economics student’s dissertation.

Writer Ray Fisman explains that before sentencing a defendant, a judge gets a recommendation, which is based on factors like the nature of the offense. The Ph.D. student, Emily Owens, discovered that errors in the sentencing worksheets filled out by prosecutors and signed off on by defense attorneys were leading to judges getting incorrect recommendations. Fisman writes:

With the stakes so high—months and years of freedom gained or lost—how could Maryland’s Sentencing Policy Commission have been so sloppy? For academic research—a matter trivial by comparison—it’s common to have data entered independently by at least two typists, whose output is then cross-checked for accuracy. Yet it turns out that complacent bureaucrats weren’t to blame for the sentencing mistakes. The work sheet had to be filled out by the state attorney prosecuting the case, with the final form signed and approved by the defense attorney (who, if he was doing his job properly, would have done the work sheet calculations independently). The commission had, by design, handed off the task of work sheet completion to parties that it assumed would have every incentive to get the numbers right, but it apparently never accounted for widespread incompetence in Maryland’s legal profession.

Owens discovered that judges, who don’t have to follow sentencing recommendations, were definitely influenced by them. They gave longer sentences to those whose recommended sentences were mistakenly inflated and short sentences to those who wrongly got too-short recommendations. When she looked at how much time the offenders actually spent in jail, she found that the parole board managed to more or less normalize the sentences of those who had been incorrectly sentenced to too little time, but not the sentences of those who got too much time.

It turns out the attempt by lawyers for a capital murder defendant in Anne Arundel County to subpoena all 24 top prosecutors in Maryland was not a first.

Ocean City lawyer Skip Townsend tells me that back in the 1980s, he and his co-counsel in a capital case in Montgomery County called all of the state’s attorneys to testify about how they decided when to seek the death penalty. The argument, then as now, was that the death penalty is applied differently in different counties.

Unlike the Anne Arundel case, where the judge yesterday quashed the subpoenas as irrelevant, in Townsend’s case he was allowed to bring in the top prosecutors. All but three attended. “It was fascinating and it was fun,” Townsend said.

The defendant, James Calhoun, got the death penalty anyway for the killing of a police officer and an alarm system technician during a robbery. The Court of Appeals gave him a new sentencing hearing, and the second time, he was sentenced to life without parole.

I wrote a story for today’s paper on a Court of Appeals opinion concerning a medical malpractice case. The main issue was whether the expert witness spent too much of his professional life as, well, an expert witness. (The Court of Appeals said that yes, he did, and was therefore properly disqualified from testifying in the case.)

In the course of writing the story, I rediscovered this gem from 2007, when the case went to trial. It’s a story from The (Erstwhile) Examiner, and it deals with the clash between two high-profile, ego-rific “titan”  litigators: Steve Snyder and Billy Murphy. Snyder represented the plaintiffs (on appeal, the case was handled by Snyder’s one-time partner Andy Slutkin) and Murphy was one of the lawyers for the doctor and the hospital.

The article’s worth a look in case you missed it the first time around, and even if you caught it then but want to relive the magic. This thing got ugly. Some highlights:

“After Mr. Snyder found out, for the first time today, that I was being retained by the University of Maryland to be in this case, frankly he lost his cool,” Murphy told Baltimore City Circuit Court Judge Lynn Stewart, according to a transcript of the proceedings. “What he said to me was, in a voice loud enough for the defendant to hear … he said, ‘I’m going to tear him apart.’ And then he turned around and literally screamed at Dr. Zoarski, ‘I’m coming after you! I’m going to get you!’ And he said it several times.”

At one point, Snyder told Murphy in open court that he didn’t like him anymore. Eventually, the judge got beyond frustrated:

Finally, Judge Stewart had had enough.

“This is it. Last warning to everybody,” she said. “No finger-pointing, children. No stomping your feet. No screaming. No yelling. No dancing around. No calling names. No throwing sticks and stones. No putting gum in each other’s hair.”

Oooh, and let’s not forget what happened when the race card was played:

Snyder took particular offense to Murphy’s late appearance in the case, because Murphy and several members of his team are African-American, as was the judge and several jurors.

“I think it’s racially motivated,” he told the judge.

After hearing that, Murphy replied sarcastically to Snyder’s comment in court: “We’re just some colored lawyers. We’re not trying to hurt nobody.”

I wish I’d been there. Sounds like a journalist’s dream trial. But here’s the best part: After the trial ended in a defense summary judgment, Snyder told the Examiner reporter:

“Billy Murphy can take no comfort in the victory,” he says. “It will be very short-lived. I have no doubt that it will be reversed. In fact, I will quit law if it doesn’t get reversed.”

I’ve put a call in to Snyder to see if he wants to make good on that threat. No word yet.

Law school — at least evidence class — hasn’t changed much since I last stepped into a classroom as a student during Bush’s presidency (the father’s, not the son’s).

Hearsay is still generally inadmissible at trial because it is “an out-of-court statement introduced for the truth of the matter asserted.” And a bunch of exceptions to the hearsay rule remain, including, but not limited to, “past-recollection recorded,” “present-sense impression,” “business documents” and “excited utterances.”

So, much of what I learned 18 years ago came flowing back to me as I sat in on Professor Paul Rice’s evidence class Monday afternoon at American University’s Washington College of Law (pictured), from which I graduated in December 1991.

But some things have definitely changed: For example, each student had a laptop computer and Internet access, made possible by Wi-Fi and electrical outlets by each seat.

Back in the Dark Ages (the late 1980s and early 1990s), we students had to get by with pens, highlighters and notebooks (the paper variety).

Just as I was feeling like Cro Magnon man, the good professor came to my rescue as he tried to illustrate for the students that just because a document has a date doesn’t mean that an event occurred on that date.

Rice, who has been teaching at the school for 35 years , asked the class if anyone knew what it meant to “kite” a check.

The students, born into an era when deposited checks are recorded automatically, stared blankly.

Meanwhile, the professor and I shared knowing smiles.

Here’s my problem with the spork, that staple utensil of school cafeterias: it did neither of its jobs well. It never stabbed into food deep enough as a fork, nor easily scooped food as a spoon. No matter what you did, you had to end up using your fingers in some capacity.

So maybe that’s why a first-grade student in Delaware brought his “favorite camping utensil” to school for lunch one day last month. An actual knife, fork and spoon in one - how can you go wrong?

Six-year-old Zachary Christie was going to find out; he was facing a 45-day suspension for bringing the utensil to school. Until Wednesday, that is, when the local school board voted to reduce such punishments to less than five days. The revised rule covers kindergartners and first-graders who take weapons to school or commit violent offenses.

Score another one for common sense.

The two law school students picked the right hearing for their assignment in a civil procedures class.

Judge Ruth Ann Jakubowski ruled on 21 motions in one case Tuesday morning in Baltimore County Circuit Court, according to court records. I had to refer to court records even though I was in the courtroom because I lost count during the two-hour hearing.

The case, Alatortsev v. H& J Motors Inc. et al, drew my attention because it was one man against eight defendants, including several BMW dealerships. I was all prepared to write a humorous blog post about all those defense lawyers playing musical chairs at the defense table to be heard. (I felt especially bad for the court reporter, who could have used name tags to keep track of everyone.)

But then the hearing began, and it wasn’t quite as funny. The case has consumed seven volumes since Vadim Alatortsev filed his complaint in August 2008. From what I gathered, he alleges there were multiple problems with a used BMW he purchased in late 2007.

Alatortsev cited COMAR several times, held up reams of paper and said he “always reads the small print,” but apparently he wasn’t clear on the rules of procedure and discovery.

Judge Jakubowski denied all 11 of the plaintiff’s motions, which ranged from requesting a court-appointed forensic scientist to review allegedly forged paperwork to seeking a protective order to prevent the defense from obtaining personal information about Alatortsev and his wife through discovery.

“Once you file a lawsuit, you become an open book,” said Jakubowski, who, as chairwoman of the Maryland State Bar Association’s Judicial Administration Council, is developing guidelines for attorneys facing self-represented litigants.

Jakubowski also denied Alatortsev’s motions to sanction the defense lawyers for their actions, explaining that the lawyers are simply doing their jobs. She ordered Alatortsev to allow the defense experts to examine his car, and ordered him and his wife to sit for depositions within the next 45 days.

“At some point in time, with the pleadings in this case, you’re going to subject yourself to attorneys’ fees or the case’s dismissal,” Jakubowski said. (One of the defense laywers indicated in court that he would seek attorneys’ fees from Alatortsev.)

The whole hearing got me thinking – is this an extreme case of the perils of self-representation? Or is this more common than I think? If you don’t want to leave a public comment, please e-mail me.

There’s just too much good law-related stuff out there this morning to tell you all about! Here’s a special, miniature (fun size, if you will) law round-up:

• John Bratt of the Baltimore Injury Lawyer Blog says he’s glad he doesn’t work for Doug Gansler. Bratt noted my colleague Steve Lash’s report that assistant attorney general Brian Kleinbord is the attorney of record for Maryland v. Shatzer, which Gansler argued in the Supreme Court yesterday. “You know what that means?” Bratt writes. “It means that Kleinbord and the other lawyers wrote the briefs and did all the work. Now that it is time for argument, the guy at the top of the letterhead is swooping in to take advantage of all of the attention, and the glory if he wins.”
• The guy who wants the military to combat proselytizing of soldiers and cadets is suing to get a former Navy chaplain to “stop asking Jesus to plunder my fields… seize my assets, kill me and my family then wipe away our descendants for 10 generations.” The former chaplain says he was just quoting Scripture and never incited violence against Mikey Weinstein, though he said he “pray[s] the Psalm that his days are few.”
• This line from The National Law Journal’s account of the opening day of the Supreme Court term yesterday is hilarious: “Justices Breyer and Clarence Thomas spent several minutes during arguments peering at the marble friezes of lawgivers on the walls of the Court high above them, apparently noticing new features they hadn’t seen before from their earlier vantage points.” I really can’t add anything to that.

On the Cover:  Welcome to the first Monday in October! This morning marks the Supreme Court debut of Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia Anderson Davis, who will argue over a Hagerstown man’s child sex abuse conviction. The question is whether a request for counsel, years earlier, should have stopped police from questioning the suspect without a lawyer after they obtained additional information. Read the main story, some advice from Gansler’s predecessor, and a preview of the new term.

In the News: The Court of Appeals heard argument in a legal malpractice case that challenges the “case within a case” methodology … the ban on self-represented lawyers claiming attorneys’ fees applies even to bad faith or frivolous actions, the Court of Special Appeals holds … Maryland Legal Services Corp. renews its quest for a higher filing-fee surcharge … Sen. Ben Cardin finds a civil audience for his health-care talk at UB Law… and a former CBS Early Show personality appeals a ruling that knocked out his medical malpractice claim.

Also:

• Paul Tiburzi remembers the time he argued against the D.C. lawyer who went on to become Chief Justice of the United States;
• An Owings Mills man got a $588,000 verdict in his lawsuit against a home-improvement contracting firm, but will also seek to hold the contractor individually liable;
• Read the Week in Review and our Law Digest, this week with cases from the Court of Appeals, the 4th Circuit and the U.S. District Court for Maryland.

Happy Monday! Here are a few law links to start your week off:

•  U.S. Attorney Rod Rosenstein probably isn’t going anywhere, MainJustice.com says. The prediction comes in an article about how a third of the country’s U.S. Attorney’s offices are still run by Bush-appointed prosecutors.
• Page Croyder applauds The Sun for coming down hard on Pat Jessamy’s office.
• Slate reports that female judges tend to be less qualified than male judges by traditional measures (they went to lower-ranked colleges and law schools, had less prestigious clerkships and spent less time in private practice) but are just as good at actually judging.
• Happy opening day of the SCOTUS term! Sandra Day O’Connor says she’s “disappointed” at the changes in the court and feels some of her decisions “are being dismantled.”
• It’s unclear where this video, “The Streetwalking Lawyers of Aurora Avenue,” comes from, and it appears to be old, but it’s new to me and very funny.

Sorry, University of Maryland and University of Baltimore law school students – you don’t have a shot of clerking for U.S. Supreme Court Justice Antonin Scalia.

An ABA Journal story about the composition of current and past clerks at the highest court in the land quotes Scalia telling an American University Washington College of Law student earlier this year she should look elsewhere for a clerkship: 

By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?

(The real chutzpah of the quote is that Scalia said it on AU’s campus after being invited by the law school.)

For this upcoming term, the Harvards and Yales of the world still dominate the clerkships, although Justice Samuel A. Alito Jr. “caused a stir” by picking a Seton Hall alumnus as his one of his clerks, according to the story. The universities of Georgia and Texas and George Washington University are also represented this term.

One former justice who didn’t automatically gravitate to top-10 law schools was Byron White, who hired ”interesting people,” including a man who worked in a coal mine.

“Look, there are a hundred people a year that could to the job adequately,” the NFL-player-turned-justice told biographer Dennis Hutchinson. “I might as well have someone who’s interesting, and that doesn’t mean the ones that the fancy law profes­sors recommend.”