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May|June 2004
An Illegal Arrangement By Cynthia Joyce
...Join 'Em By Geoffrey Gagnon
Double Blind By Clive Thompson
The Snap-on Wives By Brian Montopoli
The Prudent Jurist By Stephen Gillers
Cases & Controversies
Breaking Up Isn't Hard to Do By John Swansburg

The Prudent Jurist

By Stephen Gillers

James Hamm graduated from law school and passed the bar in Arizona in 1999. He wants to practice law, but there's just one problem: Hamm is a felon who was convicted of murdering a man during a drug deal two decades ago. Should the Arizona Supreme Court allow him to become a lawyer?

AS WITH ALL HARD QUESTIONS, IT DEPENDS. Courts have admitted felons to the bar, including convicted murderers. And lawyers who are disbarred following convictions can reapply in nearly every state. A lawyer who commits a felony and is disbarred is surely less deserving of our concern than an applicant who committed a similar crime years before studying law.

A court should consider the amount of time since the conviction (the longer, the better), the nature of the crime (Is it a crime of dishonesty?), the applicant's age when he committed the crime (the younger, the better), whether he has accepted responsibility for his conduct, and what he has been doing since he was released from prison. We are, at bottom, making a prediction about whether he can be trusted.

Another consideration should be the reputation of the bar. If the crime is truly shocking, a court should deny admission—even if it concludes that the applicant has completely turned around—out of a decent respect for public opinion. The mass murderer Ted Bundy was once a law student. If he had won release from prison instead of being executed, are there any circumstances under which he might have been admitted to the bar? I hope not.

A juvenile court judge in Florida faxed the names, addresses, and birth dates of illegal immigrant children who had come into his courtroom to the U.S. Border Patrol. Did he act appropriately?

UNLESS THE LAW REQUIRED THE JUDGE TO DO THIS, he should have refrained. Of course, I believe a judge should report evidence of crime even if he is not legally obliged to do so. Judges are in the "rule of law" business, and crime is its antithesis. If judges discern perjury or fraud in the course of their work, they should tell the appropriate law enforcement agency.

Why is this different? Because the judge's actions may undermine the rule of law in another, more fundamental way. If judges report illegal immigrants who enter their court, illegal immigrants will be less likely to seek protection from the justice system. Women whose partners beat them will be unwilling to ask for orders of protection. Exploited workers will suffer in silence rather than risk deportation.

The judge here is in juvenile court, and presumably some of the illegal immigrant children who come before him are brought forcibly, as defendants in delinquency or criminal matters. So an argument can be made that his action will not deter these children from seeking the law's protection. But that's shortsighted. The practice can have a broader impact. The message will be that going to court can get you deported. Rather than go to court, civil defendants may accept default judgments. Criminal defendants may become fugitives.

Nor will this ripple effect be limited to illegal immigrants. The practice will discourage legal immigrants who are unsure whether they can prove their status as well as those who fear job loss (and possible agency mistakes) if they are forced into immigration proceedings. Writ large, this judge's practice could frustrate the main business of the courts: the administration of justice.

In the course of defending an African-American client in court in 1990, Dan Brawley mentioned that he sometimes didn't like black people. The defendant was accused of murdering a white woman; during his closing argument, Brawley warned the all-white jury to be "especially vigilant" that race not be a factor in their deliberations. He later explained that he wanted the jurors to acknowledge their hidden feelings about race. Brawley's client was convicted of murder. The Florida Supreme Court overturned the conviction. Was that excessive, absent actual proof that the verdict was racially motivated?

THE FLORIDA SUPREME COURT PROPERLY OVERTURNED THE CONVICTION. Most stunning is that the lower courts tolerated the defense lawyer's so-called strategy. Even if we accept counsel's odd tactical explanation, his comments could hurt his client and undermine confidence in the verdict. Of course, we may never succeed in making race irrelevant in the courtroom. But we have better ways to try to uncover bias: Lawyers and judges can and do question potential jurors about their racial attitudes, and judges can and do admonish jurors not to let racial considerations influence their verdicts.

As Florida's high court wrote in this case, "the manner in which counsel approached the subject unnecessarily tended either to alienate jurors who did not share his animus against African Americans 'just because they're black,' or to legitimize racial prejudice without accomplishing counsel's stated objective of bringing latent bias out into the open."

The possibility that race might have been a factor in the verdict, even if remote, is so repugnant that the benefit of any doubt should go to the accused.

Stephen Gillers teaches legal ethics at New York University School of Law.

Questions for the Prudent Jurist can be sent to prudentjurist@legalaffairs.org.

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