Attorney Ethics

Mississippi has tried Curtis Flowers six times for allegedly murdering four employees at a furniture store. Flowers is black and three of the four alleged victims were white.

Mississippi has not been able to convict Flowers because the prosecutor(s) handling each trial are flaming racists who got caught doing something no trial attorney should do. At the first two trials, they struck (e.g., removed with a peremptory challenge) all of the qualified black prospective jurors. Both juries convicted Flowers and sentenced him to death, but the Mississippi Supreme Court reversed the convictions because of prosecutorial misconduct. At the third trial, the State used all 15 of its challenges to strike black prospective jurors, and the jury again convicted Flowers and sentenced him to death. The Mississippi Supreme Court reversed again, this time because of a violation of Batson v. Kentucky, which held that once a defendant establishes a prima facie case of discrimination concerning the manner in which challenges are being used, the State must give race-neutral explanations for its challenges, and the trial judge must determine whether those reasons are valid or just a pretext for discrimination. The fourth and fifth trials ended in mistrials. At the fourth trial, the State used 11 challenges against black prospective jurors. No racial information concerning the prospective jurors at the fifth trial exists (or it was at least conveniently omitted from the State’s papers). At the sixth trial, the State used six challenges. Five were directed against black prospective jurors. One black juror was seated. Flowers raised a Batson claim, but the trial judge found that the State’s proffered explanations were race-neutral. The jury convicted Flowers and sentenced him to death, and the Mississippi Supreme Court affirmed. The United States Supreme Court vacated the judgment and remanded the case, but the Mississippi Supreme Court affirmed again.

The United States Supreme Court reversed, finding that the surrounding facts and circumstances demonstrate that the trial judge’s conclusion at the sixth trial that the State’s reasons for striking one of the black prospective jurors were race-neutral was clearly erroneous. In doing so, the Court noted that four categories of evidence factored into its decision, where the State had a persistent pattern of striking black prospective jurors at each trial. Continue reading ›

This blog focuses almost exclusively on criminal law and criminal procedure, making this posting something of a oddity. With that said, however, this posting may certainly be viewed as a comment on an issue that is significant in any criminal case, which is the selection of defense counsel. When it comes to choosing a lawyer, the obvious things that come to mind are knowledge of law and procedure, years of experience, and whether the attorney has previously handled cases involving the charge at issue. But a criminal case is a highly stressful experience, and one of the most important factors in selecting legal representation is something that many clients do not consider until it may be too late. An astonishingly large number of clients fail to ask themselves if they can work with the lawyer they are thinking of using under highly pressured circumstances for what may be an extended period of time. The likelihood of a positive result in the case frequently diminishes with the extent to which the defendant is at loggerheads with their attorney.

Most clients shop for attorneys the same way they shop for everything else. They seek attorneys online, and start their search by viewing websites. The New Jersey Supreme Court’s Committee on Attorney Advertising recently recently issued a Notice to the Bar dated May 4, 2016, reminding all New Jersey attorneys that certain items currently appearing on many attorney websites may be presented in a way that is misleading and/or easily taken out of context. This Notice appears to have been issued after the receipt of numerous grievances from clients who may have thought their lawyer was “Super” or “the Best” when the case started, but apparently changed their view before it was over.

Specifically, an attorney’s website may state that the lawyer is a “SuperLawyer”, one of the “Best Lawyers in America”, one of the “Best Lawyers in New Jersey”, and on and on and on. These are all designations issued by various organizations, business entities or publications, and come with attractive shields or badges that the attorney receiving the designation may – and almost always does – post on their website. The Notice observes that such awards have little if anything to do with an attorney’s actual knowledge, skill, experience, or ability to handle people. In fact, many of them are are little more than popularity contests between and among attorneys. Because they are frequently given based upon the number of endorsements that the recipient received from other attorneys, the award process often degenerates into “I’ll endorse you if you endorse me”. Thus, the recipient did not necessarily receive the award or designation because they are really good at what they do; rather, they received the award because they know a lot of attorneys who are willing to endorse them in return for the same favor, and the person who knows the largest number of attorneys willing to issue an endorsement wins the purported prize. Further, these awards may also be given based upon simple membership in an organization, the payment of money to the issuing entity, or the recipient’s willingness to respond to legal questions on the issuing entity’s website. In fact, there is at least one website that claims to be able to rank attorneys numerically. However, this site also appears to be driven by attorney advertising. The site tells consumers that its purpose is to assist them in navigating the legal jungle, while simultaneously telling attorneys that its purpose is to assist them in growing their practices. This begs an important and obvious question – is the site’s numerical rating of an attorney influenced in any way by the amount of advertising the attorney purchases? If so, this is one of the concerns of the New Jersey Supreme Court, and its Committee on Attorney Advertising, as articulated in the Notice. (If any of this is inaccurate, I will certainly be more than willing to correct or edit it.) Continue reading ›

Articles Posted in Attorney Ethics

Flowers v. Mississippi – Striking Prospective Jurors Because Of Race

Is Your Lawyer Really “Super”? A Posting on Attorney Advertising and Selection of Defense Counsel