Zealous Advocacy

Turns out it’s a self-serving myth.

The link is worth quoting at length:

The actual extent of the supposed duty of zealous advocacy has been the subject of careful scrutiny by the American Law Institute:
The Preamble to the ABA Model Rules of Professional Conduct (1983) . . . and EC 7-1 of the ABA Model Code of Professional Responsibility refer to a lawyer’s duty to act “zealously” for a client. The term sets forth a traditional aspiration, but it should not be misunderstood to suggest that lawyers are legally required to function with a certain emotion or style of litigating, negotiating, or counseling. For legal purposes, the term encompasses the duties of competence and diligence.

If that’s all there is to it, what is the genesis of this non-existent duty? One scholar has traced the history of the phrase back to a comment in a speech to the English Parliament in 1820 by Lord Brougham:

The Restatement view [that the term merely encompasses the duties of competence and diligence] is in line with a more nuanced understanding of the Lord Brougham defense, which was never intended as a maxim of legal ethics. Brougham made his statement in the context of a parliamentary debate, not a judicial proceeding, and the speech was intended as a veiled political threat to King George IV. In any event . . . it can hardly be argued that the Brougham speech describes the prevailing norms of the English Bar in 1820. It certainly has no general applicability.
So that’s it for the role of the zealous advocate: the duties of competence and diligence. And those duties are adequately described in the Colorado Rules. The phrase “zealous advocacy” is full of sound and fury, signifying nothing…The duty of zealous advocacy may be empty of meaning, but it is not without import. Put simply, the duty to be a zealous advocate is the single most common justification used to claim that the duty to the client is paramount, and that a lawyer is therefore justified in minimizing or even ignoring the other duties expressly stated in the Colorado Rules. It is often treated as synonymous with a duty to be ruthless — even dishonest.

The quoted article is from 2005, and notes that the giant jurisdictions of Arizona and Montana had by that time removed the references to “zealous advocacy” from their ethics codes, hoping that Colorado would soon do the same.

This is an important and maybe even interesting discussion.  And a couple of recent posts by some colleagues are fortuitously pertinent.

First, Jeff Gamso quotes Scott Greenfield, in relation to a subject we touched on at roughly the same time, that being the FBI’s recent admission that its hair analysis testimony was all wrong for decades:


Scott Greenfield rightly points out that it didn’t matter that we’ve been screaming about the incompetent/dishonest forensic faux-science for years – and nobody gave a shit.

While we’ve been screaming about this forever, nobody cared. Nobody listened, because we aren’t trusted government officials and it’s just us criminal defense lawyers complaining about stuff, like evidence and constitutional rights, again.

That the FBI admitted it is what stunned the legal community (of which, apparently, criminal defense lawyers are too minor a part to be worthy of recognition), because they are official.  Now the legal community cares. That’s stunning. Us, not so much.

We have often chafed at the same double standard.  It’s hard to describe the sense of frustration – and yet at the same time a kind of curiosity and bewilderment – when the exact same evidence that is deemed not newsworthy or not significant or not credible when a mere lawyer offers it suddenly becomes the holy grail of truth once someone more “official” signs off.  One is tempted to blame journalists and judges and others bitterly for their slavish devotion to faith in the status of the speaker rather than the quality of proof.  We have occasionally succumbed to that temptation ourselves.

But we have also not spared ourselves, or our brethren and colleagues, having described this phenomenon as at least to some degree a self-inflicted wound.

Dear reader!  We can’t get over the serendipity apparently at work here, because just the other day there was an even more pertinent discussion over at SJ.

Let us summarize.  You have a criminal case out of Chicago where the defendant is a cop charged with reckless homicide and the judge renders a judgment of acquittal, at trial, at the close of the prosecution’s case because the defendant was a cop and that would never happen for anyone else because the cop had fired into a crowd and the mens rea didn’t fit the facts.  Commenter Marc R. wonders why the defense didn’t raise that issue pre-trial, and SHG notes in response in his own comment:

Bennett [that is, Mark Bennett – ed.] makes a better point, that had they moved to dismiss before jeopardy attached, the prosecution could simply reindict for murder and it would have been worse.

So there are times you might refrain from bringing a legal issue to the attention of court because your client will be better off if the judge grants relief after jeopardy attaches?  That was one of the issues in a case called United States v. Basurto, 497 F.2d 781 (9th Cir., 1974), where the defendant’s attorney deliberately waited until trial to raise the issue that one of the prosecution’s witnesses had committed perjury before the grand jury.  The perjury had been admitted by the prosecutor and he had communicated that to the defense lawyer shortly after it occurred, well before the trial and well before the time for bringing defense motions.

In other words, the defense attorney gamed the procedure to put the prosecutor and judge in the position that they would have to grant a dismissal because of the admitted perjury, and the prosecution could not proceed again because of double jeopardy.

Did “zealous advocacy” require this gamesmanship?

Before you answer that question, consider the fallout from Basurto, which we have discussed before:

In 1983 the manual dealt in a rather cursory way with the “due process” problem of prosecutor misconduct in knowingly presenting perjured testimony to a Grand Jury.  It was a cursory treatment because the mostly unambiguous instruction was that indictments obtained with such testimony would be dismissed, citing the 1974 case of United States v. Basurto, 497 F.2d 781 (9th Cir., 1974):

Importance:  In Basurto, prosecutor did not become aware of perjury until after indictment (but before trial); indictment was still dismissed.

By 1991, though, the DOJ Grand Jury Manual said this:

A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

You see, because of the gamesmanship by the defense attorney in Basurto, the outcome of that case was not well received either by prosecutors – or by a lot of courts:

Although a few subsequent decisions have followed Basurto, see, e.g., United States v. Ciambrone, 601 F.2d 616 (2d Cir. 1979); United States v. Smith, 552 F.2d 257 (8th Cir. 1977); United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States v. Goldman, 451 F.Supp. 518 (S.D.N.Y.), aff’d, 573 F.2d 1297 (2d Cir. 1978); United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975), more recent opinions have “not only cut back on the reach of Basurto, but [have] also questioned its continuing validity.” United States v. Cathey, 591 F.2d 268, 271-72 (5th Cir. 1979), citing United States v. Bracy, 566 F.2d 649 (9th Cir. 1977), stay of enforcement denied, 435 U.S. 1301, 98 S.Ct. 1171, 55 L.Ed.2d 489, cert. denied, 439 U.S. 818, 99 S.Ct. 79, 58 L.Ed.2d 109 (1978). Accord, Talamante v. Romero, 620 F.2d 784, 790 n.7 (10th Cir.), cert. denied, 449 U.S. 877, 101 S.Ct. 223, 66 L.Ed.2d 99 (1980). Indeed, a panel of the Ninth Circuit itself noted that prosecutorial misconduct must be “flagrant” to violate due process, a rather strict application of Basurto, if not an entirely new standard. See United States v. Bettencourt, 614 F.2d 214, 216 (9th Cir. 1980), citing United States v. Vargas-Rios, 607 F.2d 831 (9th Cir. 1979), and United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). See also United States v. Cederquist, 641 F.2d 1347, 1352-53 (9th Cir. 1981); United States v. Thompson, 576 F.2d 784, 786 (9th Cir. 1978); United States v. Brown, 562 F.2d 1144, 1149 n.3 (9th Cir. 1977); 8 J. Moore, Federal Practice, ¶ 6.04[2] (2d ed. 1981).

We also doubt the total validity of Basurto and, therefore, decline to follow its broad holding…

So, in that same period in the 1980’s the Department of Justice picked up on the hostility of many jurists to the holding in Basurto, a hostility that was not grounded in a tolerance for the deliberate use of perjury before a grand jury but rather the concern that Basurto’s holding opened an avenue for acquittals by defense lawyer gamesmanship.

But in practice, as we now know, repudiating the holding in Basurto could not help but engender a tolerance for the deliberate use of perjury before grand juries, and anything that is tolerated is fair game for…the “zealous advocate.”

Do prosecutors get to be zealous advocates, too?  In the mind of some members of the criminal defense bar, well, sure:

The best response I can offer is that if, as a “straight up” prosecutor, I believed that there was probable cause to pursue a civil rights violation, I would do so, do so zealously, obtain the indictment in the ordinary course and try the case with the same zeal as any other, within the bounds of the law…And if, having done the foregoing, the jury acquits, then I will take comfort in knowing that I did what I believed the law allowed and required of me.

So here’s the thesis:  the “zealous advocacy” gamesmanship practiced by the defense attorney in Basurto was part of what caused a judicial reaction that propagated an error in the law.  That error was thereupon formally adopted by the Department of Justice and “zealous” prosecutors all over the country.  The error was the belief that the deliberate use of perjury before a grand jury did not violate a defendant’s right to due process of law.

The error then proliferated for decades, causing confusion in the federal courts of appeal,  resulting in many wrongful convictions, and imposing an enormous burden on us here at Lawyers on Strike to expose and correct the pernicious error because we just wound up in the position to do that, as if by accident, like getting hit by a bus when crossing the street.

The question on the table, then:  to what extent is the cult of “zealous advocacy” criminal defense responsible for what has happened to us, and our client?

We invite thoughts from “zealous advocacy” advocates.  We are truly interested and won’t be mean.


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Moody v. Tatum: On Second Thought….

We don’t like this as a “vehicle” for presenting the issue.  We mean, the issue is of supreme importance, maybe the most significant due process issue in the last 50 years.

Maybe the most significant due process issue ever.

And so we shouldn’t have squishy facts.  But that’s what the (government) Petitioner wants:

There is nothing in the record to indicate either Pulido or Moody were aware of these informal discovery requests but deliberately withheld the information…

If it isn’t conceded by the state that the police or prosecutors deliberately concealed evidence then the case presents the issue only if those facts are found even though they are not conceded.

Notice that the government brief doesn’t concede, but doesn’t dispute either.  And this is the government’s approach in case after case where this issue – that is, the government deliberately concealing exculpatory evidence or deliberately fabricating evidence – crops up:  they are coy about it.

Coy, by the way, can be fine in romantic contexts.  But where life and liberty are at stake it is a disgraceful pose for the government to strike.  Government proclaims itself to be the protector of life, liberty and property.  If it’s flippant enough to be coy about its basic responsibilities that is already a serious problem.

One reason that coyness in this situation is highly objectionable is that, like other cases, the evidence in Moody shows unequivocally that the conduct by the officers in suppressing the exculpatory evidence was indeed deliberate, but it takes some explanation to understand how and why, and people lose patience with details and facts.  Especially the SCOTUS, where everyone believes that such trifles should be attended to by lesser minds further down the pecking order in the trial courts.

Petitioners assert, without record support, that they did not believe that there was a connection between the robberies with which they charged Walker and those for which Smith was convicted.
… The courts below and the jury rejected this assertion: “It defies common sense to believe that more than one demand – note robber of retail stores was operating in Southwest Division in the summer of 2005, both matching the same general description, and both misspelling the word ‘start’ on their demand notes.”

That’s taken from the Respondent’s brief in opposition.  If you read quite a bit more you’ll see that what is stated there is unarguably correct, but….you have to read quite a bit more, and maybe even think a little.

In any case, what the Petitioners are trying to do is fudge the facts in order to give the “conservative” justices the idea that the cops here got screwed because there was no deliberate wrongdoing. Or at least leave room for the justices to have that idea because they like that idea more than the alternative.

So the likelihood is that for that reason, among others, the SCOTUS taking up this case has a good chance of confusing things more, not clarifying them.

And on this issue, things desperately need to be clarified.  It’s been screwed up for decades, and that’s long enough.

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Two Important Things (Updated)

First, the Department of Justice has come clean about one aspect of the “forensic science” they have advocated:  it was almost complete bullshit.

We assume they won’t be using hair analysis anymore, but you never know.  It’s nice that they have come out publicly and admitted this.

Well, maybe ‘nice’ isn’t quite the right word.  In any case, we congratulate them on their candor and hope for the exoneration of those wrongly convicted with the bad science – that is, science that apparently wasn’t science.

Second – and this is the far more significant of the two, even though the first is pretty staggering – we present the SCOTUS blog’s “petition of the day” from yesterday, Moody v. Tatum.

Where to begin?

Let’s start with SCOTUS inside baseball.  Out of the many thousands of petitions for certiorari filed in the Supreme Court (SCOTUS), SCOTUS blog selects a few and designates them “Petition of the day” on the theory that there’s a good chance the SCOTUS will grant review.

What are the criteria for assessing such a likelihood?

Probably the first is that it’s the government, state or federal, that is seeking review.  The government, as we have often pointed out, is a favored litigant, and nowhere is that made more explicit than at the very top – the Supreme Court of the United States.

In Moody v. Tatum, the government is seeking review.  So, check that box and put that petition in the preferred stack.

Then, as you can see from the link, the government’s petition was filed February 17th and a few days later the Respondent (that is, the disfavored litigant) waived her right to respond.  In SCOTUS speak, that is a diss.  The Respondent is saying that it isn’t worth her time to respond, and of course if it isn’t worth her time how could it be worth the SCOTUS’ time to take it up?

See how this works?

But at this stage, anyway, someone at the SCOTUS is not having any of that.  So a few days after that, the SCOTUS requests a response from the Respondent.  Only takes one justice to do that, remember.  There could be more, but we know for sure there’s at least one.

So on April 7th a response is filed, and now the Respondent is represented by Mayer Brown, which is one of those firms.  We don’t like them especially, though we don’t dislike them either.  In any case, from here there is a two week lull, upon which time the petition will be “DISTRIBUTED” for another conference date, like it was on March 4th for the March 20th conference date.

In other words, on April 21st the petition will probably distributed for one of the following conference dates.  Probably not April 24th (too soon), so looking at May it could be the 1st, the 14th, the 21st or the 28th.  There’s a good chance it will be one of the last three.  In the meantime, the government petitioner (Moody) can reply to the Respondent’s response and try harder to make the SCOTUS grant review.

Okay.  So what is this whole Moody v. Tatum Petition about?

In a word – and we can do this here at Lawyers on Strike because this is our issue – Moody v. Tatum is about this.  And if we wanted to elaborate, we could add that it’s about this.

Now if you want to continue you really need to click the links, because we’re not going to repeat ourselves.  But we will review in a summary fashion, although unless you read the links or are already familiar with them you won’t understand our summary review either.  So click the links of you are interested.  And you should be interested, whether you are a lawyer or not, because this is important.

There are two aspects to the conflation of Brady and Mooney, and they both stem from treating Brady as if it had limited Mooney instead of having extended it.

The first is that Brady was about prosecutor disclosure of exculpatory evidence to the defense by the time of trial.  Everyone kind of agrees that Brady material should be disclosed as soon as possible, but courts have been reluctant to find that there’s an actual violation of the Brady rule unless the disclosure didn’t happen by the time of trial.

This is a quandary for Brady issues but not for Mooney issues, although the SCOTUS really has to clear that up, as the Pottawattamie case demonstrated in 2009.

And this issue is presented quite plainly by the Moody v. Tatum petition.  For that reason alone, the SCOTUS should take it up.

The second aspect of the Brady-Mooney conflation is the “materiality” requirement.  Under Brady, assuming there is a violation, a court is supposed to go on to determine whether the evidence the prosecutor failed to disclose is material – that is, would the evidence have changed the outcome?  If it would have, then the poor schmuck disfavored litigant criminal defendant gets a do-over.  But if it wasn’t “material”, then it’s no harm no foul.

How does the reviewing court know whether the evidence would have made a difference?

Let’s not go there right now because for present purposes it’s not important.  What is important is that this whole “materiality” inquiry doesn’t apply to a Mooney violation, because in a Mooney violation the prosecutor deliberately suppresses (hides) or fabricates evidence.  When it’s deliberate, the question of whether it’s material evidence doesn’t arise, having been conceded in advance since, if it wasn’t ‘material’ evidence why did you go to all the trouble of deliberately hiding it or fabricating it?

Judicial estoppel, doncha know.  The courts have to protect themselves from being mocked by those arguing before them.  Especially the SCOTUS.  Not that they’ve done a very good job when one of those arguing before them is a government of some kind.

Anyway, the SCOTUS should take up Moody v. Tatum, because it succinctly and fairly presents the first aspect and the SCOTUS can clear this up.  The poor schmuck in Moody was held in jail on charges for 27 months.  The case never went to trial, because towards the end of that 27 month period the powers that be learned that the charges were unwarranted, but they also learned that they should have learned that much earlier, except that a couple of cops deliberately lied about evidence that fairly exonerated the poor schmuck.

So after he’s released the poor schmuck sues and wins a lot of money, and now the State wants the SCOTUS to take it all away because…..under Brady there’s no violation of his rights when there has been no trial and since he wasn’t tried it doesn’t matter that the cops lied.

The State, of course, should be embarrassed to make that argument and they should be both excoriated and eviscerated for doing so.  By the SCOTUS would be nice, but of course they can’t do that if they don’t take up the case in the first place.

As an aside:  the poor schmuck, having won his judgment, doesn’t want the SCOTUS to take the case up because he has nothing to gain, and if you read the response from Mayer Brown the gist of it is that the SCOTUS shouldn’t take it up.  But if the SCOTUS does take it up, the poor schmuck will still win, because that’s the only reason the SCOTUS would take it up.

At least we hope so.  Because someone up there has been reading over here, and the guys at Mayer Brown have been, too.  That, after all, is why the Mayer Brown brief for the poor schmuck cites Mooney, Pyle and Napue:  because we have cited those same three cases abundantly over here.

And also because if Mayer Brown had done the work on their own, instead of just piggy backing on us, they would have cited this case, because it makes a critical point that Mooney, Pyle and Napue don’t that is especially relevant to their argument.

It’s okay.  I’m on their side, although I hope the SCOTUS takes this one up.  And if they can’t figure out why that extra case is relevant (I’m sure they can, but I’m not always absolutely right about everything) they can contact me privately this time.

I’ll respond.

Update:  “Distributed” for the conference of May 14th.  Right on schedule.  We learn the result either that day or when the order list comes out on May 17th.  Could be granted, denied, or relisted.  Interesting, at least to us.


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Freak Show

I don’t know anything about the case, not even the name of the Defendant.  But I think somehow we have crossed a line, where court proceedings have degenerated into theater.  Very poor theater:

I guess the woman was claiming self-defense.  The jury must have rejected that defense, no doubt having been assailed with gruesome photos of the decedent.

The judge is so out of line.


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Large Hadron Collider: Science Or Mysticism?

Now, look.  We know virtually nothing about quantum physics and whatnot.  And so we have an open mind, and $3 billion doesn’t seem like a lot of money for a facility and project like the Large Hadron Collider.

Have at it, we say.  And it certainly looks way cool:


But the whole thing doesn’t sound so much like “science” as some weird 21st century form of mysticism:

Our guide introduced herself as a researcher of dark matter. Like a United Nations for science, more than 10,000 researchers from over a hundred countries work at CERN. They are collectively tackling questions like: What is the universe? What is it made of? How did we come about? How did life begin? How does it work?

As we said, we’re open minded.  But when “science” expressly endeavors to exceed its traditional boundaries there is cause for skepticism, and maybe even a little concern:  We wouldn’t be the first:

Prometheus was also a myth told in Latin but was a very different story. In this version Prometheus makes man from clay and water, again a very relevant theme to Frankenstein, as Victor rebels against the laws of nature (how life is naturally made) and as a result is punished by his creation…Prometheus became a figure who represented human striving, particularly the quest for scientific knowledge, and the risk of overreaching or unintended consequences. In particular, he was regarded in the Romantic era as embodying the lone genius whose efforts to improve human existence could also result in tragedy: Mary Shelley, for instance, gave The Modern Prometheus as the subtitle to her novel Frankenstein.

The question “What is the universe?” isn’t really different in substance from “Why is there something rather than nothing?”  The latter has traditionally been the concern of philosophy, not science.  The former is just a science-y way of putting it.

Perhaps all areas of inquiry run out to their extremes….meet.  Do you think CERN would give us $3 billion or so to test that hypothesis?


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Completely Unjustifiable

We’ve gone over this before, the double standard between deference to jury determinations depending on whose ox is being gored:

There are some out there who are old enough to remember when large jury verdicts in personal injury cases were a regular news cycle feature.  But you rarely hear about large jury verdicts in such cases anymore.  The reason is that whereas no judge will interfere if a jury awards too little or zero after a trial, judges are very keen to interfere and “set aside” jury verdicts that they feel are “too high”; and in fact appellate courts more or less mindlessly affirm almost everything that is appealed from lower courts – except unusually high jury verdicts in personal injury cases.  Those are routinely overturned.

But this is really, really too much.

It is so illustrative.  $36 million is a lot of money, of course.  At least for most people, in most contexts.  But in the grand scheme of things?  It’s comparable to the size of an annual budget for a small town.  In other words, it’s not really an amount of money that should generate a lot of interest in an appellate court, if indeed courts should be noticing that at all.

And it wouldn’t, except for the fact that the status differential in this case is too big, and the transfer of wealth is too dramatic, which also shouldn’t matter.  But does.*

Anyway, what struck us about this particular case is that it’s simply unwarranted tinkering with the amount a jury awarded, based on nothing at all other than some judge’s unarticulated feeling that the jury shouldn’t have awarded so much.

There’s a 7th amendment issue on these kinds of results.


*  I should qualify that in a large, abstract sense, a transfer of wealth that takes place in a court case is an important part of a court doing its job.  It is frankly admitted, in international law circles, that one of the consequences of the collapse of the rule of law is wealth inequality.  In fact, we think that the case we have posted about here is a great example of how badly our courts are failing in this important public service.

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Touchy-Feely Theism

One of the most stubborn pop-culture canards of the modern era is this frankly unsupportable opinion that whereas atheism or agnosticism is a sober and rational view, theism in the strict sense – that is, a belief that there is a God – is a sub-rational and/or emotional devotion.

Case in point.  With defenders like this, theism certainly needs no enemies:

Rationality is a specialized aspect of the higher brain, but it’s not the end-all and be-all of life as anyone can tell you who has experienced love, music, art, compassion, self-sacrifice, altruism, inspiration, intuition — indeed, most of the things that make life worth living.

More or less conceding the point.  Ugh.

We can’t speak for every religious tradition, but in western civilization the ‘belief’ in God begins with the earliest known Greek thinkers, predating Christianity by centuries.  Without getting into the depths of epistemology – from which no one ever returns – it is fair to say that the existence of a God is inferred from a few self-evident postulates, perhaps chief among them that reason is a more reliable truth finder than empirical observation.  Thus, from this perspective the question: “If God is real why can’t I see him?” is too childish and ignorant to get bogged down with, yet of course that is precisely what happens with atheists.

None of which is to say that the chain of reasoning that yields the conclusion that there is a God and that God is eternal and maybe a few other attributes beyond that – none of this is perfect.  But so what?  Bring epistemology into that question – or any other, for that matter – and you’ll never reach the bottom.

The point is that within the parameters of the kind of reasoning we do all the time, upon which our very lives depend, there’s a good argument to be made that the existence of God is a certainty, and that argument was actually made centuries ago, long before the Christian religion, to which there is so much hostility, was even around.

It is atheism that requires endless intellectual digressions and contortions just to be plausible.  You might say that it flows naturally from radical empiricism, but that simply proves the point:  there is almost no view of reality less natural – and in many ways frankly stupid – than radical empiricism.  That it has been a popular intellectual affectation for more than a century is a testament not to any compelling claim to empiricism’s truth but rather to the impoverished condition of our intellectual class.

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