lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Prosecutors at Dallas County DA Office Reflect on Exoneration

In the wake of exonerations for 17 men in Dallas County, released after DNA evidence revealed they were innocent of the crimes they had been convicted of and were serving time for, Texas Lawyer tracked down some of the prosecutors involved in Witnesses to the Prosecution: Current and Former ADAs Who Helped Convict Exonerated Men Reflect.

Some of the lawyers don’t remember details of the cases they tried years ago. But others remember them like the cases happened yesterday. One was even driven to tears when recalling the trial of a man she helped send to prison for 15 years who has since been pardoned.

Most of the 17 cases are strikingly similar — a victim of a sexual assault positively identified her attacker in a photo lineup or in court, testimony that was nearly impossible to contradict at the time because of the limitations of forensic science. In the early 1980s DNA testing was not available. And while DNA testing was used in the 1990s it became even more sophisticated a decade later. In each of the 17 cases, it was DNA evidence that helped set the men free after years of wrongful incarceration.

“In the criminal justice system, people are being convicted on one-witness cases. And what this says to me is we’ve got an inherent problem about how many of these cases we’re getting wrong. And it’s still going on today,” says James Fry, a former Dallas prosecutor who helped send a man to prison for 27 years for a crime he didn’t commit. “My question to everybody involved in this across the state and across the nation is what are we going to do about this? I don’t know.”

Writ Writer on PBS Independent Lens

The PBS series Independent Lens features the documentary Writ Writer featuring jailhouse lawyer Fred Cruz.

By most measures, Cruz was an ordinary criminal. But in prison he studied law in order to file an appeal of his conviction and 50-year prison sentence. Before long the harsh field labor, brutal corporal punishments and arbitrary disciplinary hearings experienced by prisoners prompted Cruz to file lawsuits against the prison system. He was classified as an agitator and transferred to the Ellis Unit—“the Alcatraz of Texas”—a maximum-security prison overseen by C.L. McAdams, the most feared warden in Texas.

Under pressure from McAdams and his guards to drop his lawsuits, Cruz was subjected to long periods in solitary confinement on a bread and water diet. Despite the isolation and confiscation of his legal papers, he managed to help other prisoners with lawsuits. In 1968, when an inmate was caught with legal papers prepared by Cruz for Muslim prisoners who alleged that their civil rights were being violated by prison authorities, tensions mounted and came to blows. The uprising that ensued drew the attention of outsiders, including attorneys Frances Jalet and William Bennett Turner, who assisted in Cruz’s watershed case, Cruz v. Beto.

Told by wardens, convicts and former prisoners who knew Cruz, WRIT WRITER weaves contemporary and archival film footage to evoke the fascinating transformation of a prisoner and a prison system still haunted by their pasts.

The next showing in Houston ‘s KUHT (Channel 8) is Friday, June 20, 10:00pm

via the Fifth Circuit Blog

Looking for the Key to Unlock the Floodgates in Climate Change Litigation

Stephan Faris’ Conspiracy Theory in the new issue of the Atlantic posits climate change as this era’s Tobacco settlement, profiling the efforts of Steve Susman and Steve Berman.

As scientific evidence accumulates on the destructive impact of carbon-dioxide emissions, a handful of lawyers are beginning to bring suits against the major contributors to climate change. Their arguments, so far, have not been well received; the courts have been understandably reluctant to hold a specific group of defendants responsible for a problem for which everyone on Earth bears some responsibility. Lawsuits in California, Mississippi, and New York have been dismissed by judges who say a ruling would require them to balance the perils of greenhouse gases against the benefits of fossil fuels—something best handled by legislatures.

But Susman and Berman have been intrigued by the possibilities. Both have added various environmental and energy cases to their portfolios over the years, and Susman recently taught a class on climate-change litigation at the University of Houston Law Center. Over time, the two trial lawyers have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina—where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

If there’s a guy worth watching as a student for insight into the business of law, it’s Susman. After reading John Jenkins’ The Litigators, my passing interest is perhaps bordering on obsession. Although I’m skeptical of the merits and/or chances of climate change litigation, the fact that these guys are after it makes me more than a little intrigued, particularly about how exactly they plan to make such a case.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

This second charge arguably eliminates the need for a judge to determine how much greenhouse-gas production—from refining fossil fuel and burning it to produce energy—is acceptable. “You’re not asking the court to evaluate the reasonableness of the conduct,” Berman says. “You’re asking a court to evaluate if somebody conspired to lie.” Monetary damages to Kivalina need not be sourced exclusively to the defendants’ emissions; they would derive from bad-faith efforts to prevent the enactment of public measures that might have slowed the warming.

Noted Harris County Prosecutor Kelly Siegler Blogs

Harris County Criminal Justice Blog notes that Kelly Siegler Takes a Shot at Bloggingwith There’s No Such Thing as “Closure” on the Women in Crime Ink Blog

Can you imagine the bottomless pain that a parent endures when they have learned that their child has been murdered? As many times as I have met with and counseled with parents suffering through that agony–and told them that we are there to do all that we can to make sure that the defendant is convicted and punished justly–I have also had that “other” conversation with them.

You see, in our world, the world of a prosecutor who handles such cases (as I have, far too many times), we also talk about the fact that as parents, they shouldn’t put their lives on hold waiting for a defendant to be charged or arrested . . . or waiting for a trial to commence . . . or waiting for an appeal to be exhausted or even waiting for an execution to happen. I tell them that too many other parents, who have walked in their steps and truly do know their pain, have told me the truth.

The truth. The truth is that there is no such thing as “closure.”

Sure, you hear it all of the time. You hear that closure is what we should be seeking on behalf of victims everywhere. You hear experts and psychologists and even law enforcement officials all over the country talking about closure as if it is some “state of mind” that we can help a mommy and a daddy, who have learned they will never see their baby again, obtain.

But when you ask those same victims if any of that–the arrest, the conviction, the sentencing, the execution–ever truly helped them gain “closure,” you know what they all say? They all say no. They all say there is no such thing. They all say they are glad that phase of the process of the criminal justice system is complete. They all say thank you, and then they go back to having to figure out how to get up again the next morning and live another day in a world that no longer has the same color and light and joy in it that it did “before.”

Great stuff. Hopefully she keeps it up.

The Waiting Game…

All over America law students are wait for grades to come in. As 1Ls these seemingly have apocalyptic consequences – these are the grades you interview with, get on to law review or another journal with, that decide if you spent part of your summer writing a 30-page note, etc. These grades can take forever and for good reason – I had approximately 60 classmates in my section 1L year, over a 3-hour exam, it’s not at all uncommon to churn out 15 or more pages. That’s 900 less-than-scintillating reading for professors to look forward to. I for example, took my last exam on May 2nd and just today received the grade on tuesday (June 10th I believe).

The way of the law school world being what it is, there’s not a whole lot an impatient student could or would want to do to hurry a professor along. I couldn’t help but laugh at this plaintive comment on the Volokh conspiracy, for a post by George Washington Law Professor Orin Kerr -

A comment to this

I will no longer read any Orin Kerr blog until he finishes his grading for last semester.

We love you Professor Kerr, but we need our grades.

-G-Dub Student

Ah, anonymous threats of blog-boycotting, I doubt this would inspire the good professor to grade any more quickly than he already planned, but it did at least inspire a response -

[Deleted by OK: Check the Portal, Blog strike, as all my grades have been submitted. And good luck at the firm this summer!]

It makes me wonder what it would look like if David Lat sat down and wrote his version of the Paper Chase for today’s law school. ;-)

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