Blaming the Victim

I am baffled by the people in the peanut gallery who blame rape victim Michele Mallin for the failure of the criminal justice system that allowed the wrongful conviction of Timothy Cole. Tragically, Mr. Cole died in prison before he could be exonerated. But it is undisputed that Ms. Mallin was, in fact, raped. The suggestion that she would have knowingly participated in a scheme to arrest and convict someone other than her rapist defies credibility. What’s more, I have no doubt that these same people would have been clamoring for Mr. Cole’s blood if it had been his trial taking place this week rather than his posthumous exoneration.

This paradox is related to the stubborn ignorance that I see when people ask me “How can you represent criminals?” only to have their eyes glaze over if I actually attempt to explain the fact that our constitutional rights and rules of criminal procedure must be exercised in order to prevent the police from getting away with sloppy investigation, suggestive lineup procedures (the real culprits in this case) and worse.

Judge Charlie Baird seems to care about the injustice that can occur when the rules aren’t followed and apply the law accordingly. One can hope that his decision to allow this matter to proceed in his court–and the resulting media circus–will lead to a few more people understanding why that is so important.

4/7/09 Update. Judge Baird issued formal findings in the exhoneration case. Here’s the order, which “blasted the work of the Lubbock police and called on the Legislature to pass criminal justice system reforms” according to this Statesman article.

State Bar Fails to Recognize Importance of Work-Life Balance

Attorneys are notoriously bad at making work-life balance enough of a priority in their lives. This failing can lead to deeper issues  such as depression, alcoholism, and substance abuse, which can in turn compromise our ability to effectively represent our clients. This is not a news flash and is presumably the reason for the existence of the State Bar’s Lawyers’ Assistance Program.

So I was floored when the State Bar denied continuing legal education credit for an excellent program on this very topic that I participated in last month through the American Inns of Court. In the 20 years since Austin’s Inn was founded, this is the only time that it has been denied credit for one of its programs. The stated reason is that a program can’t just be about “personal growth” and must be something that will make the attorney a better attorney. Yet clients are almost always more effectively and more ethically served by sober, mentally healthy, well-balanced lawyers.

The team that put the program together is in the process of appealing the decision to deny credit and is optimistic about its chances. But it’s a sad testament to the State Bar’s priorities that the appeal is even necessary.

2/11/09 Update: After reviewing the petition appealing her decision to deny CLE credit, the State Bar’s MCLE Director changed her mind. The program was therefore approved for ethics credit.

Case of Note: Texas v. Rhine (CCA)

Texas v. Rhine, which was argued yesterday before the Court of Criminal Appeals, is a case worth following. The appellant was charged with criminal penalties under administrative code promulgated by the Texas Commission on Environmental Quality. He argued that the provision is void as an unconstitutional delegation of authority by the legislature. If he were to win, it could have far-reaching ramifications for drug laws, some of which rely on a similar delegation of authority authorized under the Texas Controlled Substances Act.

9/23/09 Update. The Court of Criminal Appeals handed down its decision today, holding that, because the legislature “declared a policy and set standards and limitations on the authority delegated to TCEQ that are capable of reasonable application, provide guidance, and limit discretion, it has not unconstitutionally delegated to TCEQ authority more ‘properly attached to’ the legislature and, therefore, there is no violation of the separation of powers principle.” Nice try, Mr. Rhine. Better luck next time.

1/29/10 Revision. Changed category from “Cases of Note” to “Case Law.”