Wednesday, June 27, 2012

Postscript to Supreme Court Juvenile Life Sentence Decision

"The Supreme Court's ruling Monday barring mandatory life sentences for juveniles convicted of murder was the sharpest indication to date of a shift in how the American judicial system was starting to view young felons -- from irredeemable predators to victims of circumstance with a potential for rehabilitation," a New York Times analysis began this morning.

"'We are starting to see a very stark and important rethinking of how we treat juvenile criminal offenders,' Marsha Levick, co-founder of the nonprofit Juvenile Law Center in Philadelphia was quoted as saying. 'For years we were trying to convince the courts that kids have constitutional rights just like adults… Now we realize that to ensure that kids are protected, we have to recognize that they are actually different from adults.' That sense of difference has fueled the Supreme Court decisions of the past seven years — first a ruling that barred the death penalty for juveniles in 2005; one that banned life in prison for juveniles convicted of crimes other than homicide in 2010; and now Monday's ruling that rendered invalid state laws requiring youths convicted of homicide as well to die in prison… (the) opinion by Justice Elena Kagan did not outlaw all life sentences without parole for all juveniles but discouraged it, stating that given all that the court had learned in recent cases 'about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.'

The Times article predicted the lower courts would likely be heeding this to some extent, but whether state legislatures would go so far as to change their sentencing laws would remain to be seen. Some, however, believe they will, it said, quoting Irene Sullivan, who recently retired after 12 years as a juvenile and family court judge in Clearwater, Fla., who commented that much of the mandatory sentencing of juveniles had been an unintended consequence of legislation aimed at adults.

Here in Ohio, for instance, back in April our supreme court voided provisions of our sex offender registration statute impose automatic lifelong registration and community notification requirements on juvenile sex offenders who had been tried within the juvenile court system, finding them unconstitutionally "cruel & unusual." Justice Paul E. Pfeifer concluded, in the Court's
summary, that "In sum, the limited culpability of juvenile non-homicide offenders who remain within the jurisdiction of the juvenile court, the severity of lifetime registration and notification requirements of PRQJOR status, and the inadequacy of penological theory to justify the punishment all lead to the conclusion that the lifetime registration and notification requirements in R.C. 2152.86 are cruel and unusual. We thus hold that for a juvenile offender who remains under the jurisdiction of the juvenile court, the Eighth Amendment forbids the automatic imposition of lifetime sex offender registration and notification requirements." this morning noted Monday’s Supreme Court ruling "paves the way for roughly 2,000 inmates nationwide to seek reversal of their life sentences, according to Bryan Stevenson, executive director of the Equal Justice Initiative and the lawyer for the two inmates whose cases were ruled on by the high court. Stevenson said, 'This was an incredibly important step forward in recognizing one of the great tragedies of our time," namely the large-scale incarceration of juveniles under sentences that give them no hope of release after rehabilitation, but warned of a coming crisis in finding enough lawyers to represent the inmates who are entitled to relief because of the ruling in states that do not provide lawyers for indigent defendants on appeal.

At the other end of that spectrum – effective next week, by the way – Ohio Rule of Juvenile Procedure (Juv. R 3) will now allow juveniles to waive their right to counsel only after consultation with an attorney and require such a waiver be determined to have been knowingly and intelligently given after detailed and specific instructions are made by the judge in writing and on the record.

Tuesday, June 26, 2012

Defensible e-Discovery Standards

Law Technology News this morning has an interesting article about a new committee being planned to create defensible standards for processes and audits during electronic data discovery, the lack of which, experts says, currently represents a significant hole in e-discovery methods.

Those standards, proposed in Chicago on June 14 at the Seventh Circuit's Electronic Discovery Committee Workshop on Computer-Assisted Review, would be administered via an organization approved by the American National Standards Institute, and, at minimum, provide guidance to attorneys as to how to perform discovery of electronic information. With state courts accepting the as-yet unwritten standards, they could be incorporated into procedure so attorneys could file a compliance document indicating that methods used or proposed meet the standard instead of having to justify individual processes and/or products used to manage electronically stored information in a case.

"Leading the development of that committee," the article said, "is Jason R. Baron, Director of Litigation at the National Archives and Records Administration. Baron said the group would base its work on
ISO 9001 -- an internationally accepted quality metric that began use in 1987, and envisioned having the workgroup accomplish two principal things: First, to raise consciousness on the subject of what constitutes ISO 9001 best practices as applied in the e-discovery space, and second, to build out a specific e-discovery code of practice standard that could be subject to auditing under an ISO 9001 rubric." [Prepared written text for Jason R. Baron‘s opening keynote talk for the Seventh Circuit Electronic Discovery Workshop on Computer-Assisted Review ]

"The group would base its work on the Sedona Conference document, Best Practices Commentary on Achieving Quality in E-Discovery, which Baron co-edited in 2009, and would probably take at least a year to produce a new standard. Individuals could participate from existing groups such as the ABA's e-discovery committee and Sedona, and from data management trade groups such as ARMA (Association of Records Managers and Administrators) and AIIM (Association for Information and Image Management).

"Ideally," Baron told, "the practice would be noticed by the judiciary, and hopefully narrow ancillary disputes over what constitutes best practices, especially with respect to the use of new software-assisted methods and other technologies of utility in e-discovery."

Monday, June 25, 2012

"Automatic" Juvenile Life Sentences Unconstitutional

The Supreme Court this morning banned "automatic" life sentences without parole for juvenile offenders while leaving open the possibility that judges could, in fact, sentence juveniles to life without parole in individual cases of murder. [ See Miller v. Alabama, 10-9646 ]

"The cases before us," the Court explained, "implicate two strands of precedent reflecting our concern with proportionate punishment. The first has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty. See Graham, 560 U. S., at ___ (slip op., at 9–10) (listing cases).

"So, for example, we have held that imposing the death penalty for nonhomicide crimes against individuals, or imposing it on mentally retarded defendants, violates the Eighth Amendment. See Kennedy v. Louisiana, 554 U. S. 407 (2008); Atkins v. Virginia, 536 U. S. 304 (2002). Several of the cases in this group have specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper held that the Eighth Amendment bars capital punishment for children, and Graham concluded that the Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense. Graham further likened life without parole for juveniles to the death penalty itself, thereby evoking a second line of our precedents. In those cases, we have prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death. See Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion); Lockett v. Ohio, 438 U. S. 586 (1978). Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment…

"We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Cf. Graham, 560 U. S., at ___ (slip op., at 24) ("A State is not required to guarantee eventual freedom," but must provide "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation"). By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider Jackson's and Miller's alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between "the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption."
Roper, 543 U. S., at 573; Graham, 560 U. S., at ___ (slip op., at 17). Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."

ABA Model Rule Technology Revisions's Law Technology News this morning has a report about the American Bar Association's House of Delegates considering proposed amendments to several rules or comments made by its Commission on Ethics 20/20, formed in 2009 to, among other goals, adapt ABA standard model rules to technology innovations in the practice of law, this August in Chicago. observed the amendments appear modest, but their importance significant.

"Model Rule 1.1," it states, "requires lawyers to provide competent representation to a client. To do so, the comment to Rule 1.1 has always required lawyers to 'keep abreast of changes in the law and its practice.' The 20/20 Commission's recommended amendment to Rule 1.1 provides that this mandate will now include 'the benefits and risks associated with technology.' Lawyers who in the past blindly relied on third-party service providers for electronic discovery, search technology, data storage and security, cloud computing, and other technology needs will, to provide 'competent' representation, have to conduct a reasonable level of due diligence about what can go wrong in their use of technology to serve client needs."

ABA has published "model" ethical rules to govern the conduct of lawyers since 1908 and periodically reviews them and their explanatory comments in relation to trends in the practice of law, when necessary or desirable making amendments to them. The states typically follow suit with conforming amendments, but the model rules are not binding on lawyers that state's supreme court adopts them. With variations in some of the rules, 49 states and the District of Columbia have done so…. Ohio initially in 2006, Kentucky in 1989, and Indiana in 1986.

"Technology," the article concludes, "has allowed lawyers to become more efficient at a lower cost. Its benefit to lawyers is incalculable. But technology also has a dark side. Lawyers who embrace it without understanding its vulnerabilities and protecting against them may be in violation of the rules of professional conduct after the technology amendments to the Model Rules take effect across the country. For lawyers, technology due diligence is going to become never ending."

Wednesday, June 20, 2012

Ohio Supreme Court advisory opinion on secret recordings

One of our patrons brought to our attention the Ohio Supreme Court's Board of Commissioners on Grievances & Discipline finding in an advisory opinion issued last week that a legal, but secret, recording of a conversation by a lawyer is not inherently unethical, basing its new approach on the American Bar Association's (ABA) reversing its position on the issue back in 2001, case law from Ohio and other states, and a "diminished expectation of privacy given advances in technology." [ ABA formal opinion 01-422 ]

Opinion 2012-1 centers on Rule 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Ohio Rules of Professional Conduct. A previous advisory opinion issued on the topic (Opinion 97-3 ) has been withdrawn finding the action to have been misconduct.

Tuesday, June 19, 2012

Proposed Ohio Supreme Court CLE Changes

The Ohio Supreme Court last week announced proposed continuing legal education (CLE) changes that would double the number of online credit hours attorneys could earn, allow attorneys to earn a portion of their CLE hours by engaging in approved pro bono activities, and eliminate the requirement to file final reporting transcripts.

The Court's announcement related the proposed changes to Gov. Bar R. X resulted from a year-long study by the Commission on Continuing Legal Education and incorporated feedback from a survey of the state's judges and active attorneys about what changes they would like made to CLE requirements.

Among the changes, attorneys will still be required to earn 24 hours every 2 years and be subject to monetary sanction and suspension for failing to meet the minimum hour requirement, but will no longer would be required to file a final reporting transcript… For pro bono credit, attorneys could receive 1 hour of CLE credit for every 6 hours of pro bono service up to a maximum of 6 credit hours for service performed during a biennial compliance period. To be eligible for such credit, the attorney’s pro bono service must be verified by a bar association or other organization recognized by the commission as providing pro bono programs and services in Ohio.

The Court is accepting public comment on the proposed changes until July 10 which should be submitted to:
Susan Christoff, Director, Attorney Services Division
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
Or via e-mail to:
Text of Proposed CLE Changes

Ohio Supreme Court disciplinary changes

Ohio's supreme Court yesterday adopted rule amendments that refine the existing default judgment process when a lawyer fails to comply with his professional duty to respond to disciplinary charges recommended by the Board of Commissioners on Grievances and Discipline. [ Announcement ]

The amendments to the Supreme Court Rules for the Government of the Bar of Ohio concern Rule 5 Disciplinary Procedure and new Section 6a Default; Interim Default Suspension published for public comment in March.

Taking effect August 1, 2012, the changes are intended to meet two goals:
•to encourage respondents to participate in the disciplinary process and do so more promptly.
•to protect the public from a lawyer who has ignored his or her duty to cooperate with the disciplinary authorities or is attempting to manipulate or delay the process while continuing to practice law.

Text of Amendments

Thursday, June 14, 2012

Advisory Opinion Addresses Identifying Non-Lawyer Employees

Law firm letterhead and websites may list the names of non-lawyer employees if their status is clearly identified, according to a Supreme Court of Ohio Board of Commissioners on Grievances & Discipline advisory opinion.

Opinion 2012-2 departs from a previous advisory opinion issued by the board, so Advisory Opinion 89-16 is withdrawn.

The boards 1989 opinion did not discuss law firms communicating with clients and the public via their websites. The opinion did, however, find that the inclusion of non-lawyers on letterhead was prohibited, but their inclusion on business cards was proper.

In revisiting its 23-year-old advice, the board considered Rules 7.1 and 7.5(a) of the Ohio Rules of Professional Conduct and the standard that “law firm letterhead and websites cannot be false or misleading, or contain a non-verifiable communication about a lawyer or the lawyer’s services.”

The board reiterated that firm business cards may identify non-lawyer employees.
Read the complete text of the opinion.

Advisory Opinions of the Board of Commissioners on Grievances & Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

Contact: Michelle Hall at 614.387.9370 or Chris Davey at 614.387.9250.

Thursday, June 07, 2012

Ohio execution stayed

Ohio Governor John Kasich late Tuesday afternoon unexpectedly used his executive clemency power to postpone the execution of Abdul Awkal just hours before he was set to die for killing his estranged wife and brother-in-law in a Cleveland courthouse in 1992, the Columbus Dispatch reported yesterday morning. That will give Cuyahoga County Common Pleas Judge Stuart Friedman the necessary time to hold another hearing to determine whether Awkal is mentally competent to be executed.

There were varying reports of Awkal's background, marital problems and mental state throughout his trial and during the years he has spent on Death Row, according to the Dispatch's story, along with conflicting reports during and after the trial about his mental condition at the time of the shootings and the trial. Several doctors have recently deemed Awkal fit for execution, but attorneys at the Justice and Policy Center who represent Awkal, located a California-based psychiatrist who said Awkal was unfit. In addition, Phillip Resnick, one of three psychiatrists who originally found Awkal competent, now says he's uncertain.

A New York Times editorial yesterday morning contended "the state trial judge last Monday found there was enough evidence to justify a hearing about Awkal's sanity but that he could not hold one immediately because witnesses were not available. The Ohio Supreme Court should have granted a stay of execution, which it wrongly denied shortly before the governor stepped in because of the trial court's finding.

Kasich denied clemency for Awkal without comment last week. The Governor's office said that the reprieve, requested by Awkal's attorneys, not a court or judge, was an "internal decision" made solely on its own authority.

Ohio's supreme court set a new execution date of June 20 for Awkal, pending the outcome of that hearing.

Tuesday, June 05, 2012

Ohio appeals court considers "castle doctrine" case to girlfriends' car this morning notes the Ohio First District Court of Appeals' hearing a case the paper says "could alter the state's self-defense 'castle doctrine' gun laws which briefly state that there is no duty to retreat before using force to defend your home -- or castle -- yourself, or another in your home... Your car , under this law, viewed the same as your home or castle.

Woodrow Edwards was sitting in a blue Ford Explorer when, he testified, he saw a man he didn't know approach the passenger side door, lift the handle, and try to get in. Edwards, who has a valid Ohio permit to carry a concealed gun, was on the phone and became startled, the article recounts. At the man's advance he showed his handgun, partially lifted from the holster on his right hip to get the man's attention. The man, Eric Taylor, backed off but testified at trial that Edwards pointed the gun at him.

Hamilton County Municipal Court Judge Melissa Powers subsequently convicted Edwards of aggravated menacing, a crime carrying maximum jail time of 180 days, which she suspended, fined him $100 and ordered him to stay away from Taylor.

The odd twist in the story is that the car's owner, Sarah Geers, knows both men – she was Edward's girlfriend and Taylor's ex-girlfriend. Both men testified at Edward's trial in November that they didn't know each other at the time. relates that the key point in the case is whether "castle doctrine" provisions extend to persons legally in the car of someone other than a relative… the first of its kind in Ohio with Edwards arguing the castle doctrine should extend to his girlfriend's car.