Wednesday Writs for 11/14

Wednesday Writs for 11/14


Gideon petition for writ

Wednesday Writs for 11/14

[L1]: In 1961 Clarence Gideon, a career petty criminal from Florida with an 8th grade education, found himself charged with felony burglary, among other things. Having no money, he asked judge to appoint a lawyer to his case. Under Florida law, said the judge, Gideon was not entitled to counsel unless he was charged with a capital offense-that is, one punishable by life in prison, or death. Mr. Gideon faced only five years. He proceeded to represent himself through trial and, as one might expect, found himself convicted. Lawyerless, he handwrote a petition to the Florida Supreme Court. When that was summarily rejected, he wrote another one and sent it to the Supreme Court of the United States.

Not only did they accept Gideon’s petition in our case of the week, Gideon v. Wainwright, but the Court also ruled in his favor, thereby securing the Sixth Amendment right to counsel for all persons charged with a crime in a state court.

[L2]: Speaking of due process, is it legal for police to us their search dogs on your vehicle without your consent?  Here’s a roundup of what you need to know (and in sum: yes.)

[L3]: Lots of talk about sore losers after last week’s midterm elections, but no one holds a candle to this judge in Texas,who took ungracious losing to a whole new level of petty.

[L4]: In last week’s crazy news cycle, you may have missed the release of the first SCOTUS decision of its current term, an 8-0 decision applying age discrimination law to government entities of all sizes, no matter how small.

[L5]: Did you know that he United States government may not hold a copyright, per the Copyright Act? According to the 11th Circuit Court of Appeals, neither may a state.

[L6]: There has been a lot of debate over the legality of the appointment of Matthew Whitaker to temporarily replace Jeff Sessions as attorney general. Here’s the case for illegitimacy.

[L7]: And here’s the counterpoint.

[L8]: Speaking of Trump decrees, he canceled Jim Acosta last week- or, at least Acosta’s press pass. But does a 1977 decision out of the DC Circuit offer the CNN reporter some recourse?

[L9]: Committing crimes while hungry can lead one to make bad decisions, as our dumb criminal of the week learned.

[L10]: Maybe said dumb criminal could argue it was not him, but his evil twin. Does that ever happen?

[L11]: In light of the story circulating recently about the short law school love affair of Supreme Court Justices Sandra Day O’Connor and William Rhenquist, I leave you with the following:

Jackson Browne – Lawyers in Love (1983)


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Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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18 thoughts on “Wednesday Writs for 11/14

  1. L5: Yes, I knew that the feds couldn’t hold a copyright. OTOH, trying to get a copy of software code written by one of the national labs that is nominally in the public domain can be… difficult. Speaking from experience.

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  2. L3: I guess I expected a little worse. A local judge once dismissed an entire day’s traffic docket because the prosecutor wasn’t ready to start. But this judge engaged in a juvenile stunt.

    The prosecutor is complaining about the (temporary) release of violent offenders, but around here, I would assume that the most violent offenders would be shifted into the regular court system. My concern would be about the extent to which juvenile courts serve social service functions in encouraging/forcing therapy or counseling or evaluating the home life situation before being release.

    I would never vote for this guy.

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  3. L1: The handwritten petition in Gideon is technically true and makes for a nice story but the reality is much more complicated. Earl Warren and Hugo Black were looking for a case to establish the right to counsel for criminal defendants. They sent their clerks on a fishing expedition to find a petition like Gideon’s. Not only that, they asked Abe Fortas to represent Gideon in the Supreme Court argument. For those that don’t know, Abe Fortas was one of the founders of the firm we now call Arnold Porter Kaye Scholer. He had been a powerhouse in Democratic politics since the New Deal. At the time, he was probably the best litigator in the United States. Abe Fortas would later serve on the Supreme Court himself briefly and get nominated by Johnson for Chief Justice but needed to step down completely to avoid a corruption or “corruption” scandal depending on your point of view.* Fortas famously wrote the Tinker decision that declared the “constitution does not stop at the schoolhouse door.”

    Gideon was decided correctly but it is a lot less sentimental than the R.F.K. remark about Gideon’s crude handwritten petition changing the wheels of American justice.

    *Earl Warren hated Richard Nixon and did not want Nixon to appoint his replacement. He waited a bit too long to step down though and the GOP was able to mount a rebellion against Johnson’s Fortas nomination.

    Fortas was also the lawyer Johnson hired in 1948 to ensure that he received the Texas Senate seat instead of Coke Stevenson.

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    • Aha. That explains the cryptic “BELIEVE THE VICTIM” post a rightish friend of mine posted on social media this week.

      As it turns out, I do. Of course, I think Avenatti might well be truthful in saying, “she hit me first”, as well.

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      • I don’t believe him, although it’s of course *possible*.

        I have known and know of so many abusers who a) grandstand for abused people in public, and b) then sincerely tell some completely fabulated story about why they physically abused someone…. a story they believe but which has far more to do with their own broken mind than with whatever the other person did or didn’t do. My father does that, the person who shot my cousin does that, on and on… when you grow up intimately involved with violent people, it really changes your perspective on them.

        I honestly have never met an abuser who seems to have been telling the truth about what happened, or even to know what the truth of what happened *was*, least of all the ones who admit to their physical violence but blame someone else for it.

        Pretty much the minute I became aware of Avenatti, I suspected him of being a violent man. The best I’ve ever been able to say is that it may take an abusive asshole to take down an abusive asshole.

        I’d like to think that isn’t true though.

        :/

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        • Avenatti’s ex-wife, the alleged victim, has released a statement via her lawyer saying Avenatti didn’t hit her on the night in question and that she wasn’t at the apartment where the incident reportedly took place. … ??? !!! ?!?

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          • TMZ got the details of who was involved wrong ??? !!!! ?!?!?! FWIW, I’m not particularly invested in this being true, he just strikes me as a violent abusive sonofabitch so I would be completely unsurprised if he did, in fact, commit the crime for which he was arrested. And “coming after you” is never a good look. Avenatti of all people knows about optics.

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