Sunday, May 31, 2009


In case you haven't heard, I'm closing up my solo practice and going to work for the Texas Office of the Attorney General, in the Open Records division. This means you probably won't hear much from me for awhile.

Monday, May 18, 2009

What Was She Thinking?

Perhaps some of you in the San Antonio legal community haven't yet heard about the local attorney busted for marijuana possession as she tried to enter the Bexar County Courthouse. The punchline to this story: She claims she was holding it for a client. (Note that the E-N article calls her a defense attorney, but her State Bar web page lists her primary practice areas as labor law and construction.)
High-profile defense attorney Regina Criswell was arrested Thursday after courthouse officials reported finding a bag of marijuana and a chrome pipe in her purse. Her defense, according to the Sheriff's Office: The items belong to a client.

Criswell, 50, told a security guard that she knew the marijuana and paraphernalia were in her purse and that she was holding it for a client, said Deputy Ino Badillo, a spokesman for the Bexar County Sheriff's Office. Badillo said the items were discovered at a screening station at an entrance of the courthouse.
Walking through a security checkpoint with pot on you isn't too smart, no matter what your profession. But for a lawyer to hold contraband for a client is even more foolish. Local blog Strange in San Antonio also notes the "lack of good judgment, at the very least," while Man O' Law just calls this stunt "pretty stupid."

Criswell, by the way, is the attorney who recently won $175,000 for a UTSA professor whose research notes got trashed when they cleaned out his lab, but the federal judge tossed that verdict. She plans to appeal the judge's decision to overturn that award.

And yes, she's a St. Mary's grad.

Don't Forget

Another San Antonio Young Lawyers Association luncheon coming up this Tuesday at Paesano's at Lincoln Heights (near the Alamo Quarry Market).

This month's CLE speaker is James Ehler of the State Bar of Texas Chief Disciplinary Counsel . He will discuss How to Avoid a Grievance and What to Do When You Get One.

Friday, May 15, 2009

More Trouble for Lawyer in Forgery Case

A Waco attorney charged with practicing law while her attorney's license was suspended and with forging a signature on a court document is under scrutiny for possible document tampering in another case, the Waco Tribune-Herald reports:
The most recent case, from three years ago, probably would have gone undetected had [defendant Deloris] Carroll, 38, not violated the terms of her felony probation for the fraudulent use of identifying information. Files from the district attorney’s office show that an initial plea recommendation from former prosecutor Charissa Sloan was scratched through and changed from serving 12 months in a state jail to 18 months in a state jail but probated for five years.

The original sentence called for no probation.
On a related note, a McLennan County blogger discusses the circumstances of Polk's attempt to turn herself in:
Even though there is supposed to be a jail magistrate setting bonds, Polk was held in jail for 10 hours. Normally, a person who has a bondsman waiting to make their bond waits less than two hours to be processed. The sheriff abused his authority to make an impression on Polk.

Piatt's Discrimination Complaint

It came out a couple of weeks ago, but in case you haven't seen it, Texas Lawyer has a story on Rosanne Piatt's discrimination complaint against St. Mary's university:
A full-time instructor at the San Antonio law school since January 1999, Piatt alleges in a charge of discrimination she filed with the U.S. Equal Employment Opportunity Commission and Texas Workforce Commission Civil Rights Division that St. Mary's University notified her a year ago that her contract would terminate on May 31, the end of the 2008-2009 academic year.

In the charge, which Piatt filed in November 2008, she alleges her belief that St. Mary's law school has discriminated against her because of her age and gender. She is 57 years old.

"If you're an older female at St. Mary's, you're at risk," Piatt alleges in an interview.
There's also this letter to the editor (scroll down) in the Express-News which says the dismissals of Rosanne Piatt and Cheryl George are not because of discrimination, but due to academic politics:
All across the school, faculty and staff members who had any connections to former Dean Bill Piatt are finding themselves without a job. Many of these people have excelled in their jobs and received excellent performance reviews, yet were let go with spurious excuses and little warning.
Finally, here's a question from a member of the academic community on the Legal Writing Prof Blog:
One question that comes to mind is: why is the legal writing community hearing about this for the first time from the TaxProf blog? And what are we doing to help her? Like the Marines, we don't leave our wounded behind. Professor Piatt, if you're reading this and need our help, let us know and we'll spread the word. Semper Fi.

Thursday, May 14, 2009

St. Mary's Law School Professor to Senate: Enhanced Interrogation ≠ Torture

In a hearing this week on the Bush Administration's torture memos, Professor Jeffrey F. Addicot, Director of the St. Mary's law school's Center for Terrorism Law, tells the U.S. Senate's Administrative Oversight and the Courts subcommittee that he does not consider "enhanced interrogation" methods such as waterboarding to amount to torture.

The witnesses at the hearing included two other law professors, a former State Department official, and a former FBI agent and interrogator. From NPR's coverage of the hearing:

Of the five witnesses who testified before the panel Wednesday, only one, Jeffrey Addicott of St. Mary's University School of Law's Center for Terrorism Law, defended the methods approved by the Bush White House.

"In my legal opinion, the so-called enhanced interrogation techniques did not constitute torture," Addicott said.

Politics Daily coverage of the hearing quotes the second law prof calling the torture memos an "ethical train wreck," and the third noting that just like with the World War II internment of American citizens of Japanese descent, "Good people, fearful for the safety of their fellow Americans, made bad decisions."

The former State Department official called the enhanced interrogation program a "collective failure." The ex-FBI agent also testified that these tactics were unreliable and ineffective.

The earliest torture memo sets out ten "enhanced interrogation" methods the CIA wanted to use. They include:

  1. attention grasp: the interrogator grabs you by the collar and pulls you toward him
  2. walling: you're stood against a flexible false wall, yanked forward, then pushed back into the wall
  3. facial hold: he puts a hand on each side of your face, holding your head immobile
  4. facial slap: what it sounds like
  5. cramped confinement: they put you in a dark box and restrict your movement--you can stand or sit in the larger one, where they stick you for 18 hours; you can only sit in the smaller one for up to 2 hours
  6. wall standing: you stand 4-5 feet from a wall and lean against it, putting all your weight on your fingertips; you can't reposition your hands or feet
  7. stress positions: "designed to produce physical discomfort associated with muscle fatigue"
  8. sleep deprivation: keep you awake for up to 72 hours
  9. insects placed in a confinement box: just like No. 5 above, but they tell you they're putting a stinging insect in there, too (relax, it's just a caterpillar)
  10. waterboarding: they strap you to an inclined board (feet up, head down) and put a water-soaked cloth to your face while pouring water on it for 20 to 40 seconds, creating a "perception of 'suffocation and incipient panic'"

Prof. Addicott elaborates on why "enhanced interrogation" is not torture in an op-ed for Jurist Legal News & Research. He cites the 1978 European Court of Human Rights case Ireland v. United Kingdom, which holds that five interrogation techniques (wall-standing, hooding, subjecting to noise, sleep deprivation, and deprivation of food and drink) used by the British government are "inhuman and degrading," but do not sink to the depths of torture. The professor concludes:

Considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques that were authorized – waterboarding – would not constitute torture (the CIA method is similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).

Prof. Addicott refers to the Survival, Evasion, Resistance, Escape training, which he has probably received himself. However, one of the torture memos (on page 6) notes a huge difference between waterboarding military trainees and waterboarding prisoners:

Individuals undergoing SERE training are obviously in a very different situation than the detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.

I have a lot of respect for Prof. Addicott, who taught me Federal Civil Procedure my first semester of law school. He might even be right as far as whether anyone can be prosecuted for any "enhanced interrogation." But leaving aside whether these techniques really are effective (and it doesn't look like they are) and whether the government should prosecute anyone over this, my main fear is that while now these methods are supposedly used only on "the bad guys," unless we put a stop to this immediately, one day we might see our government using them on us.

ADDENDUM: This story by the Washington Independent offers further testimony and additional analysis:

If it were torture, however, the Bush administration officials would be out of luck, Addicott continued. “Those who order, approve or engage in torture must be criminally prosecuted,” he said. “There is no way out of this. We have to prosecute under the torture convention. We can’t say, on the one hand, those people engaged in torture and not do anything. On the other hand, if we say they do not rise to level of torture then we’re not under any international obligation to prosecute.”

Addicott did not mention, however, that the United Nations Convention Against Torture — the same convention cited by Addicott — signed by Ronald Reagan and implemented by U.S. federal law, forbids not only “torture” but “cruel, inhuman and degrading treatment”, which must also be prosecuted under the law. And it was the definition of cruel, inhuman and degrading treatment, in particular, that gave rise to the objections of Zelikow and others.

That’s because, as later OLC memos acknowledged, the cruel, inhumane and degrading treatment, according to the reservations included when the United States signed the anti-torture treaty, is to be interpeted in accordance with the U.S. Constitution. If the actions would be prohibited under the substantive due process clause of the Constitution’s Fifth Amendment, or by the Eighth Amendment’s prohibition on Cruel and Unusual Punishment, then it would be likewise prohibited — and must be prosecuted — under the U.S. anti-torture statute.

Friday, May 8, 2009

Soliciting Plagiarism

I saw this ad on Craigslist from someone in Northwest San Antonio:
I need a two to three page legal opinion letter for a class assignment. I do not have time to do this assignment, so I am willing to pay $40 for a legal assistant, paralegal, or law student to do this assignment for me.
I know it's unethical for students to claim others' work as their own. But what about the ethics of a legal assistant, paralegal, or law student who accepts this work? Seems to me that for a legal assistant or paralegal, as long as they spell out the fact that they're not giving out legal advice and don't commit the unauthorized practice of law, they're (legally, if not morally) in the clear--just like anyone else who took money to perform a class assignment.

Regarding law students, pretty much every law school bans plagiarism and other forms of cheating. For example, Rule 2.02(b) of the St. Mary's law school's Code of Student Conduct (found at page 50 of the Student Handbook) forbids conduct that might give "that student or another an unfair advantage in an academic matter." But does the Code refer just to St. Mary's students, or any student at any institution?

I wonder what sort of class this assignment is for, and what sort of school (high school, community college, or four-year university). And I wonder how many classmates of this Craigslist advertiser--not to mention the instructor--would like to know what this student is up to.

Monday, May 4, 2009

Sponsoring the SAYLA Scramble

If you want to be a sponsor for the 2009 Scramble & Summer Barbecue, presented by the San Antonio Young Lawyers Association, you better act soon. While the golf tournament isn't until June 12, the sponsorship deadline is fast approaching. The event is a fundraiser for the San Antonio Young Lawyers Foundation and Big Brothers Big Sisters of South Texas.

The tournament includes 18 holes of golf at the Silverhorn Golf Club, use of a cart, balls, a chance at prizes, and a barbecue dinner, and costs $100 per golfer. Sponsorship packages include the event title, golf balls, holes, and tee boxes or greens. Organizers note that the entry and sponsorship fees are 20 percent less than last year.

In order for sponsors to get listed in the June issue of the Subpoena newsletter, they must submit their registration and payments by May 20.

Friday, May 1, 2009

Judge Lamberth Says Judicial Nomination System Is Broken

S.A. native Royce C. Lamberth, the chief judge of the U.S. District Court for the District of Columbia, , who spoke to the San Antonio Bar Association in February, returned to the Alamo City this weekend (he and his wife have family here).

The judge spoke at the Bar Association's Law Day luncheon (my thanks again to Burns & Black P.L.L.C. for sponsoring the table where I sat; one of the attorneys there gave James A. Rodriguez some tickets, and he brought me and another classmate).

With the impending retirement of Supreme Court Justice David Souter on lawyers' minds, Judge Lamberth spoke about how the judicial nomination process is broken:
  • He said he was disgusted by how some politicians criticized nominees for the U.S. Attorney General's office positions because of clients they had represented.
  • The judge noted that his confirmation in 1987 took six months; today there are some judicial nominees who have been waiting two or four years.
  • He said these partisan attacks come from both sides of the aisle, and each side needs to acknowledge that the other side has a point about the partisanship.
  • The judge said that the appointment of the most qualified candidates should be the goal of all Americans.
  • He added that this country needs the best and brightest; judge who will set aside their personal views and apply the law and the Constitution.
  • The judge said he's very impressed by President Obama's first three judicial nominations (to the Second, Fourth, and Seventh circuits).
  • He acknowledged the tradition of senatorial courtesy in signing off on the president's judicial nominations, but said that tradition is not absolute.
  • Judge Lamberth said that during the nomination hearings, special interest groups feed questions to their senators and attend the hearings to make sure the senators stick to the script.
  • He noted that the federal judiciary now has more than sixty vacancies--and twenty-two of them are considered judicial emergencies because of the excessive workload placed on their fellow judges.
  • He also mentioned one person unsuccessfully nominated to a judgeship during the Bush administration who asked the President not to resubmit her nomination because the process was so demeaning.
All in all, it was an interesting speech, and I hope Judge Lamberth comes back to town soon for another talk.

Prado's (Indirect) Response

Earlier, I mentioned a four-year-old movement to put Fifth Circuit Judge Ed Prado on the Supreme Court.

Today at the San Antonio Bar Association's Law Day luncheon, one of the speakers was Judge Prado, who took the podium to talk about San Antonio lawyer Gus Garcia, one of the litigators in Hernandez v. Texas, a key civil rights case.

As he stepped up to the microphone, the judge pulled out his cell phone. "Hello Mr. President. Yes, Mr. President. It would be an honor." The audience laughed as he ended the "phone call."

Judge Prado then told us that he had a better chance of singing with The Supremes than becoming one of the Supremes.

Prado for Supreme Court Justice?

With lawyers and policy wonks everywhere buzzing about the impending retirement of Supreme Court Justice David Souter, the big question is, who will replace him on the nation's highest court?

Right now, the leading candidates include Second Circuit Court of Appeals Judge Sonia Sotomayor and Michigan Governor Jennifer Granholm--but there are plenty of other names floating around.

However, there's also one local whose name has been discussed before: Fifth Circuit Judge Ed Prado.

Law Professor Orin Kerr notes over at the Volokh Conspiracy that four years ago a liberal group tried to get President Bush to nominate Judge Prado to the Supreme Court:

With the news that Justice Souter is retiring, and with thoughts turning to his possible successor, I'm reminded of the "independent grassroots campaign" -- headed by a group of liberal activists -- that received some attention in 2005 to urge the President to nominate Fifth Circuit Judge Ed Prado for the Supreme Court.

I admit I was dubious about the effort back in 2005. But I've been thinking about it a lot in last 4 years -- or at least in the last 4 minutes, since learning that Souter is going to retire -- and I think it's high time to take that campaign seriously.
Unfortunately, the old movement and Prof. Kerr's post both seem more like wishful thinking and trying to score political points than an actual desire to see Judge Prado move to Washington. Still, it would be nice if he ends up in the running.