Michael K. Ausbrook and the snipe swarm

One of things I love about writing this blog is that it provides me with the opportunity to highlight the good works of young (or younger) lawyers. This is one of those posts. It is about Michael K. Ausbrook of the Peoples Republic of Bloomington, Indiana.

Michael and I became acquainted after I wrote a snarky post about federal habeas corpus cases. It was entitled, The high cost of snipe hunts.

Photo credit: JJ Harrison (jjharrison89@facebook.com) per  Creative Commons Attribution 3.0 Unported license.

Photo credit: JJ Harrison (jjharrison89@facebook.com) per Creative Commons Attribution 3.0 Unported license.

I implied that you simply could not win those cases, and they were ultimately a waste of everyone’s time. Stated differently, finding a winner was next to impossible. That did not sit well with Michael. But let me digress for just a moment.

Micheal and I share a love for the classics and Loren Eiseley. I wrote about Michael, the classics and Loren Eiseley in a post entitled All the strange connections and the classics (“Don’t you see? In some strange way, and if only for a moment, the love of the classics brought Richard Arnold, Michael’s father, Michael and me (and perhaps even Robert Lincoln) together. Eiseley would not have been surprised.”).

From time to time, Michael and I correspond. Some times he sends me blog tips as here. Other times, we just shot the breeze. He is a wonderful writer with all the sensibilities of a gentleman who went to Exeter, taking Latin and Greek, and then majoring in the Classics at the University of Pennsylvania.

It was with this background that I was overjoyed to see that Michael’s work on federal habeas corpus cases resulted in his being honored as the 20th recipient of the annual Gideon Award given by the Indiana Public Defender Council, a branch of the Indiana judiciary. The Council has 1,100 members. The Council’s purpose is to provide a support center for lawyers who represent indigent criminal defendants.

Here’s the blurb about the award that Michael received:

The purpose of the Indiana Public Defender Council’s Gideon Award is to honor an individual who embodies the attributes of a zealous criminal defense lawyer for poor persons in Indiana and has distinguished him or herself in cases or his/her career. The Gideon Award is named in honor of the U.S. Supreme Court’s decision in Gideon v. Wainwright, 372 US 335 (1963), which first articulated the right to appointed counsel in felony cases.

Here is the YouTube video of the presentation and Michael’s thoughtful acceptance remarks:

Why did Michael receive this high honor?

Initially, you need to know his legal background. Michael graduated from the Indiana University School of Law, magna cum laude, Order of the Coif, in May of 1993. He is very smart. He is also an excellent writer and a researcher as his clerkship (1993-95) with the Honorable Frank Sullivan, Jr., Associate Justice of the Indiana Supreme Court evidences. It would be fair to conclude that Michael is among the best and the brightest lawyers Indiana has to offer.

With these extraordinary talents, Michael had an idea.

His idea was this: (1) if you taught yourself everything there was to learn about federal habeas corpus law, including the hideously complex creature that is AEDPA (Antiterrorism and Effective Death Penalty Act of 1996); (2) if you asked criminal defense lawyers from all over Indiana to refer indigent cases to you that might warrant federal habeas relief; (3) if you spent hours and hours determining whether a case could be a winner and you selectively took cases to federal court, under the federal habeas corpus statute, that had a reasonable shot of succeeding; (4) then you could really help indigent criminal defendants and make a living at the same time.

Guess what? Michael’s idea worked. He has won 4 of the 6 habeas cases he has taken to the 7th Circuit.  For context, understand and appreciate that federal habeas corpus petitioners have a national winning percentage of less than 1 percent. Michael’s success was mind-blowing. Along the way, he saved his clients 183 years of prison time.

For two of the many of cases brought by Michael, see Barnett v. Superintendent, 2015 U.S. Dist. LEXIS 70289 (N.D. Ind. June 1, 2015) (state conviction for burglary, battery, intimidation, and an adjudication that defendant was a habitual offender), granting writ of habeas corpus after summary reversal and remand by Barnett v. Wilson, 7th Cir. Case No. 13-2625 (7th Cir. Feb. 4, 2014)); Stitts v. Wilson, Southern District of Indiana Case No. 1:10-cv-765 (S.D. Ind. April 2, 2014) (state murder conviction) granting writ of habeas corpus after reversal and remand in Stitts v. Wilson, 713 F.3d 887 (7th Cir. 2013), reh’g and reh’g en banc denied, cert. denied 134 S. Ct. 1282 (2014)).

Now for a disclaimer. Michael was very concerned about my desire to write about his stunning successes. He absolutely flipped out when I insisted that he post the video of his award and his acceptance speech on YouTube. First, he is a truly humble person. Second, and most importantly, he did not want to be seen as a self-promoting huckster to the judges on the federal trial bench in Indiana or to the judges on the 7th Circuit.

I convinced him, after a bunch of e-mails, to allow me to write this post using the following argument: Michael, your idea is a good one and needs to be considered by others. The ability to practice a fascinating but obscure part of federal law while making enough to support yourself, if only modestly, and to do good at the same time is a rare opportunity. You would by a morbidly obese hog if you kept it to yourself. Besides I am frigging federal judge, you have to do what I say. He relented.

How to sum up? That’s hard. Michael exemplifies the very best of our profession.* More particularly, he has helped, along with others, to repair the near dead soul of a cynical and skeptical old federal trial judge. That’s miraculous.

Thank you Michael. Fiat justitia ruat caelum.


*Michael didn’t tell me, but his Dad was a very distinguished lawyer too in Washington, D.C.


Travels with Rich

Really, really good lawyers for my civil jury trial here in Omaha. A horrific crush injury is involved. Diversity jurisdiction.

Lots of money at stake. I love good lawyers. My job becomes easy.

I have known one of the lawyer for over 30 years. He is 71 and still trying cases ’cause he loves it. He once got 10 of us, who were taking depositions in a big case, into a disco in Denver in the late 1970s by telling the proprietor that he was the body-guard for Paul Volcker of the Federal Reserve System. One of the other lawyers was really tall and he played the part of Volcker admirably. We got comped all night. Afterwards, ten of us piled into one cab, I think. Somehow we got back to the hotel. I don’t remember much more of the evening.

The damn digital audio failed in the middle of the Plaintiff’s opening statement yesterday. It was fixed but the IT guy had no clue why it failed. To make me even happier, the digital audio failed for a bench conference as well. I feel like Ted Mack overseeing the Amateur Hour. Trust me, some IT ass is in for a good chewing.

I had dinner in the Old Market. If you come to Omaha, you must visit the Old Market. Old buildings that used to be the warehouse district for Omaha’s booming trade with the frontier have been preserved. It is heaven for frivolous young people, many with garish art on their bodies. Truth to tell, I like it too.upload-2806080741763048738

My face stills looks bad. The skin began to peel off today. I wore my STFU hat when I went to dinner and pulled it way down. I sat on a sidewalk cafe to eat. That way few people were required to confront a leper slurping white wine and eating a huge BLT. Bacon, bacon, bacon, bacon.

I’m done with my course of anti-viral medication. Still taking Lyrica for the pain. That makes me walk like a drunk. I don’t know why but I literally cannot walk a straight line. My cognitive powers, limited though they have always been, remain the same. I just wobble and weave when I walk.

The College World Series is going on. The government is going to pay through the nose for my hotel room. A lot of Omaha police officers patrol the floors of my hotel. The Vanderbilt baseball team–that made it to the finals for the second time in so many years–is staying here. Almost got into a fist fight last night when several of their older fans laughed and pointed at my STFU hat. But one of them was a particularly nice guy, a lawyer from Tennessee. We exchanged business cards. No fight, just warm greetings. Go Vandy!

The jury pool was only moderately terrified by my scabies and unshaven face. I told them the truth. That is, I was bitten and I am among the walking dead. That seemed to comfort them.IMG_1590


Dear Tony,

The Honorable Anthony M. Kennedy

The Supreme Court

Washington, D.C

Dear Tony,

Please forgive the familiar form of address, but I feel like I know you.

I know and respect and like to the high heavens Pat Borchers, former Dean of the law school at Creighton. He clerked for you on the Ninth Circuit. He has nothing but wonderful things to say about you. And, of course, you reviewed two of my partial birth abortion decisions. As I recall you didn’t like them, but, hey, so what? What’s a little disagreement among friends!

Here’s why I am writing Tony. You stirred up a good part of the legal world when you wrote your concurrence in Davis v. Ayala. You purposefully invited a land slide of litigation on the issue of solitary confinement.

You wrote:

In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or appreciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes, a type of diversion no doubt denied many of today’s inmates.

. . .

These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total solation exacts a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations,self-mutilation, and suicidal thoughts and behaviors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” ” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time. 

576 U. S. ____ (2015) KENNEDY, J., concurring, at slip op. for concurring opinion pp. 2, 4-5. (Emphasis added.)

I got to give it to you Tony. Those references to Dickens and Dostoyevsky are killers. Way to go, bud. For legal literature aficionados who hang out in the stacks at Stanford those are home runs! Once again, the legacy that you care so much about is burnished by your brilliance.

Literate and sensitive you are. Yes, sir.

But, Tony, here’s my problem. First, you (and much of the press you follow) really don’t know anything about “solitary confinement” in the real world. For example, I suggest reading Angola 3’s Albert Woodfox, Not Quite the Posterboy for Reform. In that post, Tamara Tabo found that “solitary confinement” is not what you claim it to be, at least not in the former hell hole known as Angola.

But that is not my major complaint, Tony, my friend. My major complaint is this: Who elected you King (or if you prefer, Queen) for a Day? Why are you stirring up solitary confinement litigation? Judges are not Jesuits. You have no roving commission to go about righting supposed wrongs based upon your peculiar conception of morality or religion. Cases are supposed to come to you. You are not supposed to be a crusading creator of cases.

This is personal in another way, my friend. I care about this, Tony, because I manage the pro se docket. I’m the guy who will have to handle the shit storm you unleashed.

I won’t use the acronym that must never be employed when speaking of the likes of you, because, although fitting, I don’t want to spend an inordinate amount of time dealing with twerps from the legal academy. So, Tony, I will, respectfully and only, say please zip the pie hole shut.



PS.  As an aside, Tony, watch out for John Roberts. He is trying to take your place. He is smarter than you are and better looking too! So, you have to figure out something special to handle him. Think, Tony, think!

Let’s end on a friendly and funny note. I know you don’t take yourself too seriously, so I am sure you will enjoy this cartoon*:Kennedy800


*The cartoon is reproduced pursuant to an Attribution-NonCommercial-NoDerivs 3.0 United States (CC BY-NC-ND 3.0 US) license. dhonig appears to be the creator of the work and hypnoctrites.blogspot.com apppears to claim some interest also. No changes have been made to the image.

Our little old house is worth millions (to us)

We bought the house of our dreams in 1998. It is an old style range house. It was built in 1969. We paid $269,000 for it. It sits on a busy street. The tax guy says it is now worth $330,000. He wants to know if I want to appeal the valuation. The valuation is terribly wrong, but I won’t appeal. That’s because our little old house is worth millions to us.

Photo credit: The damn tax assessor. By the way, our address is 3910 South 27th Street, Lincoln, NE 68502.  For all those freaks who wrote that they wanted me dead after my partial-birth abortion decisions or my flag burning decision, if you show up I plan a warm welcome. I have a 50 year old .22 rifle that fires high velocity Remmington 22 shorts. Out of ten shots this year at the bastard bunnies, I got one. So, be  wary. By the way, fuck the NRA.

Photo credit: The damn tax assessor. Our address is 3910 South 27th Street, Lincoln, NE 68502. For all those freaks who wrote that they planned to kill me after my partial-birth abortion decisions or my flag burning decision, if you show up, I plan a warm welcome. I have a 50-year-old .22 rifle that fires high velocity Remington 22 shorts. Out of ten shots this year at the bastard bunnies, I got one. So, freaks be wary. By the way, fuck the NRA. What a bunch of assholes. 


Our backyard, oh dear, the backyard.

Joan labors daily with her extensive flower garden. I mean labors. She doesn’t like weed killing products. She weeds the very large garden by sitting in the weeds in her old sweat pants. The chiggers bite her. Those bites hurt and itch throughout the summer. She says weeding is relaxing. She doesn’t mind the the chiggers. The old woman can outwork most everyone when it comes to tending gardens. Her Catholic upbringing, so uncommented upon otherwise, is evident in her gardening. Hard work and the pain of the chigger is a gift from God. I don’t understand.

Since I have been sick we have had a lawn guy take care of the grass. My little John Deere tractor that Scott Greenfield mocks, ’cause he has a that big John Deere Gator, sits unused in the three car garage. The lawn guy retired after serving as a fire fighter. He’s my age. He is lean and brown and strong and grizzled. He is profane. I like him a lot. He uses the same swear words that I do. I suppose it is a generational thing. His son, who will follow him in the business, is huge. He smiles as he toils in the 97 degree heat, giving off perspiration in wild streams. He seems content to perform the simple task of mowing. I envy him, and I am grateful for him too.

Our backyard, oh dear, the backyard.




IMG_1583 (1)





Some things are more important than others.


Picking a jury when the judge looks like the walking dead


From the TV series Walking Dead

In a day and a half (this Monday) I will pick a jury in a civil case. As you may remember, my jury orientation is close and personal.

I am absolutely committed to spending an hour with the jury in the courtroom before trial begins so they can become comfortable with me and the process. I tell them exactly what will happen from the beginning of the trial to the end of the trial and their deliberations. I tell them why things are done the way they are.

We walk together around the courtroom. We go up on the bench, sit in the jury box and the counsel tables, sit in the witness-box, tour the jury deliberation room, reveal all the electronic stuff, and so forth. All the time, I am walking with the prospective jurors.

OK, now examine how I look:

IMG_0583 (1)

I have decided to be completely frank with the jury.  I will tell them the whole story about how I got to my present unpleasant looks. I will assure them that I can’t communicate shingles to them.

The virus cannot go air bound. The only way it can be transmitted is by intimate physical contact. Even then, I will stress that those who have had chicken pox or the vaccination (virtually everyone) would be immune anyway.

I don’t embarrass easily. I have paraded around in front of a jury not knowing my fly was open and just laughed it off when I later found out. But this “walking dead” visage?


* I confess something else to you. Joan and I watch The Walking Dead. What’s worse, we like it.

Telling the truth, Tamara Tabo and Fault Lines

One of the things I love about good lawyers is that truth to them means what truth means to regular folks like Joe Friday. “Just the facts, Ma’am.”*

Indeed, one of the things I like about intelligent people, whether those folks are lawyers or law men or layabouts, is that they don’t fall for generalizations. downloadBut there are plenty of times when the “criminals are victims” crew gets going that they purposely ignore facts and rely upon generalizations to further their agenda. The same thing is true for the “throw away the key” folks and most Republican politicians who talk about criminal justice issues. Not to put too fine a point on it, but I hate this type of bullshit.

And that brings me to Tamar Tabo and the “must read” Fault Lines.

TbA4ffZV_400x400I don’t know whether Ms. Tabo is just naturally inclined to pursue facts no matter where they take her or whether she learned that from the famously tough as nails Court of Appeal Judge for whom she clerked, Fifth Circuit Judge Edith Jones. But what is true is that this young lawyer doesn’t like bullshit either. Her excellent writing and research skills are on display in an informative and fascinating post entitled Angola 3’s Albert Woodfox, Not Quite the Posterboy for Reform. Go read it please, and tell me what you think.

As an aside, I want to continue pimping Fault Lines. It brings together a variety of voices to take a hard and honest look at the full spectrum of criminal justice issues. It is a unique and monumental undertaking and, happily, the writers for the project are some of the very best. The diverse voices and diverse subjects that appear on Fault Lines makes the criminal justice site one of those that forces you to confront your own biases. In the words of one of the primary contributors, it is intended to “make you less stupid.”


*MV5BMTYwOTUyMTc4MF5BMl5BanBnXkFtZTcwNTc4NDMxNw@@._V1_SY317_CR14,0,214,317_AL_ Dragnet was a crime series that appeared on TV from 1951 through 1959. It won 5 Primetime Emmys. Sgt. Joe Friday and his partners methodically investigate crimes in Los Angeles. Sgt. Joe Friday was the main character. He was weary because he had seen it all yet he plodded on. He famously told a witness that he wanted “just the facts, Ma’am.” That line is now embedded in popular America’s culture. It is a good operating principle for lawyers to remember as they ply their trade.

If you have never seen the Dragnet series, it is worth finding, renting and viewing. It makes me pine for ’55 Chevys. Chevrolet-1955-Bel-Air-coupe-4524


Evil by the numbers–I don’t want to write today, fuck you

I don’t want to write today. Fuck you.

Joan and I had a small tiff last evening. I went to bed without saying “good night.” I awoke this morning in pain. I had slept on my right side. The right ear covered with shingles hurt like a spook in the night had used a Bic® to set it ablaze. The medication had worn off, and the pain had returned. This morning, early, I swallowed, gulped really, the pills and prayed (ironic choice of words) for the pain to recede.

My consciousness last night and this morning filled with the slaughter in Charleston. The TV had brought me video of the inside of the sanctuary. How beautiful it was. But, there, in all that beauty with specters of black slaves floating in the air, a white man had sat for an hour with a small prayer group. I’m not sure what the prayer group was discussing, but I know all the group, save for the single white man, were gentle souls. Lambs almost. And then the evil white man slaughtered nine of them. I wonder if they screamed like lambs do when a butcher cuts their throats. The imagined scene in that beautiful place is pornographic. A snuff film plays endlessly in my mind.


I am consumed by the thought of evil. I don’t want to write today, but I have already said that. So, what? Fuck you. I don’t want to write because that causes me think of evil. I can’t get it out of my mind. I am mad at Joan, you, the reader, and the world. I hurt like a son-of-bitch. Call me Judge Job.

Evil is all around us. About 2 percent of any population is evil (psychopathic) with another 10 or 15 percent falling into the grey area. See, e.g., Roderick Tweedy, The God of the Left Hemisphere: Blake, Bolte, Taylor and the Myth of Creation, pp. 158-159  Karnac Books (January 4, 2013) (citations omitted). That means evil is around us in huge numbers. By the way, I equate “evil” with the word “psychopath”–a violent person with no empathy. See, e.g.William HirsteinWhat Is a Psychopath?, Psychology Today (January 30, 2013).

Take the two percent figure and multiply it by America’s population of 320 million. The Google calculator will spit out the number 64,000 6.4 million. If you consider the “grey area” and reduce the low number of 10 percent to 5 percent just to be safe and multiply that against 320 million the Google calculator will spit out 160,000 16 million. In short, the number of evil, psychopathic, people in our country is staggering.

I don’t want to write today. Fuck you.



As regular readers know, I am not a religious person. But I believe in evil. Not biblical evil. Just evil.

Credit: Salvador Dali and Classic Values

Credit: Salvador Dali and Classic Values

M. Scott Peck (May 22, 1936 – September 25, 2005) was an American psychiatrist and best-selling author. His first book, The Road Less Traveled, published in 1978, was an international best seller. Peck was a doctor who wrote with exceptional beauty, skill and clarity. He is one of my favorite writers.

Peck also wrote about evil in, People of the Lie: The Hope for Healing Human Evil (1998). In that terrifying book, Peck brilliantly probed into the essence of human evil by providing vivid accounds of evil drawn from his psychiatric practice. If you want to know why I think some people are utterly beyond redemption, and must be caged, read this extraordinary book.

From the horror story on the front page of the New York Times today (“Law enforcement officials identified Mr. Roof, 21, as the suspect in the mass shooting at an African-American church in Charleston on Wednesday night that left nine dead, including the pastor, Clementa C. Pinckney”), let me show you what evil looks like:

Photo credit: New York Times. The photo captures Dylann Storm Roof wearing a jacket with the flags of apartheid-era South Africa, top, and Rhodesia, as modern-day Zimbabwe was called during a period of white rule.

Photo credit: New York Times. The photo captures Dylann Storm Roof, the killer, wearing a jacket with the flags of apartheid-era South Africa, top, and Rhodesia, as modern-day Zimbabwe was called during a period of white rule.

There is evil all about us. Peck saw plenty of it and it scared him. I see it frequently, and it scares me. Evil is why we need plenty of prisons. We don’t need prisons to exact revenge as much as we need cages to make us safe from evil.

That’s all, there is no more to say.



You ought to read the post quoted above that is from Fault Lines (Mimesis Law) today written by Ken Womble. Here is the link.

In fact, the post should be required reading for criminal defense lawyers who worry about the integrity of crime lab scientists and their supervisors. Be sure to click on the link found at these words, “this bombshell of exculpatory evidence on the eve of trial.” The link will take you to some scary shit. (Per crime lab supervisor, don’t follow up on DNA found in a relevant place from someone other than the defendant–an international drug dealer–even though the FBI recommends it.)

By the way, both the substance and quality of the writing in Fault Lines has caused me to look forward to the daily e-mails telling me what’s up next. Since I am both old and jaded, that is high praise indeed! (I suspect that the estimable Scott Greenfield is secretly the editor-in-chief of Fault Lines.)


If you can’t afford civil justice, you don’t deserve it*

download (4)As you know, I am quite like my hero Scrooge before his unfortunate brain washing. This post is another example.

Yesterday, in the New York Times, I came across an Op-Ed written by Theresa Amato, entitled, Put Lawyers Where They’re Needed. The article is well-intended but it is hopelessly naive and, still further, wrong as a policy matter. Greatly condensed and summarized, the thrust of the opinion piece is this: The poor need lawyers for civil matters and we must find the money both privately and publicly so (1) the poverty-stricken can have legal representation in civil disputes and (2) the large number of unemployed lawyers can get jobs. This Op-ed is, frankly, stupid. Briefly, here is why:

First, why in the world should anyone fork over money to employ unemployed lawyers for other people’s civil cases. While I feel more than a little empathy for kids who can’t get legal jobs and face a mountain of debt, that is their problem and not our problem. They are mostly young and dumb and must face the consequences of their own actions. Ms. Amato might as well suggest that we ought to pay the hordes of unemployed PhDs ’cause, goodness knows, they have worked so hard and face so much debt. How about the poor bastard who used to work in the manufacturing plant and got permanently laid off when the company failed during the great recession, shouldn’t we pay him or her as well ’cause he or she has worked so hard and faces a mountain of debt?

Second, there is no public or private appetite for creating what is essentially a right to legal representation in civil matters. For Christ’s sake, Obama care passed with only one vote–and health insurance is a life and death matter. Amato, unintentionally I am sure, acknowledged this truth in her article when she wrote: “The Legal Services Corporation is the closest thing we have to a corps of lawyers for low-income litigants. Yet Congress has consistently underfunded it. For 2015, the corporation received less than $400 million — adjusted for inflation, roughly half its funding in the early ’80s.” Writing a piece about paying unemployed lawyers, out of other people’s public or private pockets, that is published in the Grey Lady is good for Ms. Amato, but it is otherwise good for nothing else. I don’t intend to be nasty, but Ms. Amato’s essay is nothing more than an exercise in mental masturbation by an elite.

Third, much of what “low-income litigants” need could be satisfied by people other than lawyers like paralegals or legal assistants (formerly legal secretaries).** If Ms. Amato was pushing for a relaxation of the “unauthorized practice of law rules,” so that paralegals or legal assistants could attend to the needs of poor “civil litigants,” that would make far more sense. The market economy is more likely to respond positively if paralegals and legal assistants were authorized to charge “low fees” to handle uncomplicated legal matters like a simple divorce or a landlord-tenant dispute or a simple will. (Think H&R Block®.) What Ms. Amato does not admit is that many of the civil problems most folks face, including the poor, do not require the services of a lawyer.

Finally, and most importantly, if the money is there, I am all in for spending it on the defense of the poor in criminal cases. In all cases where a defendant faces a prison sentence, a lawyer is required under the Constitution. Yet in many jurisdictions the criminal defense system is a joke. See, e.g., Rationing Justice: The Underfunding of Assigned Counsel Systems, National Association of Criminal Defense Lawyers (NACDL) (PDF will be generated) (click on “Read the Report” under Part 1) (last accessed June 17, 2015) (“Over the last decade states would have needed to raise assigned counsel rates by 25 percent just to have kept pace with the increased costs of living.”); Five Problems Facing Public Defense on the 40th Anniversary of Gideon v. Wainwright, National Legal Aid & Defender Association (NLADA) (“Inadequate funding leads to attorneys who do not have appropriate access to training, legal research, investigators, experts or scientific testing.  Most Americans support balanced funding for prosecution and public defense, and national standards require it; but governments commonly spend three times as much on prosecution as on public defense.”) (last accessed, June 17, 2015) (emphasis in original). It would be a truly harmful folly to divert funds that should go to the indigent criminal defense systems so that young activists may stir up more civil litigation.

In summary, I have been hard on Ms. Amato and that has been intentional. That said, from what I can tell from her background she is an excellent lawyer and a good person. She deserves praise for what she has done for the poor. Nonetheless, we should remember that the road to hell is paved with good intentions. Ms. Amato’s proposal is one of those hellish roads even if it was published in the New York Times.


* I am only joking, sorta.

**Of course, serious and vigorous regulations of non-lawyers would be required, but that should not be too tough to accomplish.

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