Hate. A Bullet. What Makes a Criminal?

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It was the middle of the night and Mr. James, (a fictional name) an African American man, was asleep in bed with his wife. Their baby was asleep in another room of their rented house. A man and some of his friends stood outside and shouted racial slurs and menacing taunts to scare the family. It continued for some time. When Mr. James reached his breaking point, he got his handgun and fired in the direction of the men outside from his second story bedroom window.

A few days later a friend of Mr. James who was helping him raise money for a lawyer called me and asked whether I would represent him. One of the bullets Mr. James fired had hit one of the men and damaged his spinal nerves. He was now paralyzed from the waist down, maybe forever. Mr. James had been charged with attempted murder and other lesser charges.

I had known Mr. James casually for over 10 years. He was a big man with a reputation for being kind, cheerful, respectful and hardworking. Why didn’t he call the police instead of firing his gun? Did he intend to kill or injure one of the men or just scare them away?

During the first ten years of my general practice of law, I handled criminal cases. The people I represented were children, men, women, white, black, bi-racial and ethnically diverse. The cases ranged from minor offenses to felonies. The clients were alcoholics, drug addicts, smart, intellectually challenged, mentally unstable, mean, victimized, hateful, repeat offenders and average people who made a single bad decision. Their actions were hurtful, dangerous, damaging, sometimes devastatingly so and often to themselves. They stole and destroyed. Many seemed sorry only that they had been caught.

Mr. James went to prison but not for attempted murder. Lives and families were destroyed that night. I have never been in a situation like the one Mr. James and his wife faced and I never will be as a result of my genetics or my birthplace.  I am a white male firmly rooted by birth, education and genetics in the middle class without mental disease or addiction, except for nicotine addiction for twenty years.  I had little in common with most of the people I represented in criminal cases.

At the time I did not understand what caused or motivated these people to do these things.  I admit that privately I often negatively judged them and their actions. That was counterbalanced and, I hope, overcome, by my competitive desire to obtain the best possible outcome in each case and my belief that every person deserved effective legal counsel. My inner struggle eventually led me to stop handling criminal cases.

At the time I lacked any significant knowledge of how poverty, racial and ethnic prejudice and genetics can stack the deck against a person’s success in our country’s educational, economic, judicial and political systems. Over the years our legal system and I have gained more knowledge about the effects of these conditions on people. Looking back I realize that my personal judgments were formed, in large part, out of ignorance. I never stood in their shoes. Practicing law has taught me that I will never know enough to be anyone’s judge.

The Supreme Court Attacks Racial Bias in the Jury Room

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The Supreme Court, ruled on March 6, 2017 in the case of Pena-Rodriquez v. Colorado, that where a juror makes a clear statement during deliberations indicating that he or she relied on racial stereotypes or animus (hostility) to convict a criminal defendant, the Sixth Amendment guarantee of trial by an impartial jury allows the court to determine if the defendant’s rights were violated. With this decision the Court has created a constitutional exception to the evidentiary rule prohibiting a juror’s testimony after trial disclosing improper juror considerations during deliberations (no-impeachment rule) in cases where clear racial bias is evident.

The jury convicted the defendant of harassment and unlawful sexual contact. Following discharge of the jury, two jurors told defense counsel that during deliberations juror H.C. had expressed anti-Hispanic bias toward the defendant and his alibi witness. They stated that juror H.C. made numerous statements of bias such as, “I think he did it because he’s Mexican and Mexican men take whatever they want and H. C. further pronounced that, in his experience (in law enforcement), ‘nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.’” The trial judge allowed defense counsel to present juror affidavits of these facts during a hearing for retrial.  The judge acknowledged the apparent bias based on defendant’s Hispanic background but refused to grant a new trial because Colorado’s no-impeachment rule does not recognize evidence of racial bias as one of the rule’s exceptions. The ruling was upheld on appeal in the Colorado courts and was then appealed to the U.S Supreme Court.

The Supreme Court stated in past decisions that the purpose of the no-impeachment rule is to promote full and vigorous discussion by jurors and provide assurance that after being discharged jurors will not be summoned to recount their deliberations or be harassed. The Court notes that currently at least 16 jurisdictions recognize an exception to the no-impeachment rule for evidence of racial bias during deliberations. Justice Kennedy, writing for the five to three majority, states that “It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.”  The opinion further states that, “racial bias, unlike other misconduct in past cases, implicates unique historical, constitutional and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice” and is “antithetical to the functioning of the jury system.”

This case is significant not only because it establishes a constitutional exception to the no-impeachment rule for racial prejudice, but, in doing so, it reaffirms the Court’s commitment against racial discrimination in the judicial system reiterating its prior pronouncement that, “discrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’”

Justice Alito, dissenting, expresses concern that the majority’s holding cannot be limited to evidence of racial prejudice alone and therefore should be rejected. He writes that the Equal Protection clause of the Constitution would arguably open the door for attacking verdicts where evidence of juror bias is clear based, “on any suspect classification…such as national origin or religion, …sex…or the exercise of the First Amendment right to freedom of expression or association.” He may be right. The idea of purging discrimination from jury verdicts in the criminal trial system may become contagious.

 

Dangerous Words

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After only one week in office President Trump has shown his contempt for the media and declared them his opposition party. On January 21, 2017, while speaking to the CIA he stated,

“I have a running war with the media. They are among the most dishonest human beings on earth and they sort of made it sound like I had a feud with the intelligence community.”  On January 27, 2017, during an interview on “The Brody File” a program on the Christian Radio Network he stated, “I think the media is the opposition party in many ways.  I’m not talking about everybody but a big portion of the media, the dishonesty, total deceit, and deception. It makes them certainly partially the opposition party, absolutely.”  This was following a very similar statement by his chief White House strategist, Stephen K. Bannon, on January 25, 2017, when he also stated, “The media should be embarrassed and humiliated and keep its mouth shut and just listen for a while.”

I hope the news media not only listens to what is being said to them by the government and its politicians but questions and researches for facts – not alternative facts. The media should never keep its mouth shut. Keeping the public informed is the news media’s job. Having the freedom to speak and report verifiable facts is what protects democracy. In 1823 Thomas Jefferson wrote, “The only security of all is in a free press. The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary to keep the waters pure.”

In addition to demanding a free press, it is our job as citizens to take in as much of that information as possible. In today’s world of fake and half-truth new stories it is not enough to accept what we read (often only headlines) on social media, even if posted there by friends. It is easy to find multiple sources of news stories. In minutes we can read at least several versions of a story from the most recognized news sources. I prefer to read news outlets that are doing first hand reporting and not just repeating stories or some of the facts on a blog. James Madison advised that, “The advancement and diffusion of knowledge is the only guardian of true liberty.”

Equally important is reading stories from publications on both the right and the left. It’s easiest and most comfortable to have our own viewpoints reinforced but knowledge is not always comforting.  If I constantly look left while on my journey for information I will walk in a leftward circle. If I look only right then I’ll walk in a rightward circle. Round and round. But if I look right and left as I journey forward, I will cross from one side of the road to the other and back again. I will meet neighbors on both sides of the street and learn their stories. And with each conversation I will understand more fully how we might find ways to move forward together.

A free press was so valued by the framers of the Constitution that it was included in the First Amendment.  It is not an enemy of free people. We can never let it be silenced nor its voice(s) ignored.

November 5 is National Love a Lawyer Day-Really?

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Did you know that November 5 is National Love a Lawyer Day? Well, neither did I until recently while looking at a calendar of “national” something-or-other days.  Love a Lawyer Day sure has not caught on so far. I think I know why.

In 2014, Princeton social scientists Fiskel and Dupree published a report showing the results of their poll measuring the perceived competence and warmth (friendliness and trustworthiness) of a number of occupations. Lawyers fell into the group of perceived high-competence, low-warmth professionals which also included chief executive officers, engineers, accountants, scientists, and researchers. Sadly, when you look at this grouping of these less-than-warm folks, lawyers were at the bottom.

A Gallup poll conducted in December 2015, asked participants to rate the honesty and ethics of a number of occupations. Lawyers finished in the bottom half, right below building contractors and bankers and just above real estate agents, labor union leaders and business executives.  In this poll nurses finished at the top followed by pharmacists. At the bottom were lobbyists just below members of Congress, telemarketers and car salespeople.

So, when you consider that part of the warmth component in the Princeton study was also trustworthiness, it appears that the legal profession has a way to go until it is well trusted by the public.  That’s troubling to me.

While some of the participants in the Princeton study and the Gallup poll may have been responding based on their experience with their own lawyers, I suspect that many people’s view of lawyers is influenced by TV shows featuring sleazy lawyers because it makes for better drama.

But let’s dig a little deeper into what leads someone to trust (or not) a lawyer. In a legal text titled, Psychology for Lawyers, authors Robbennolt and Stearnlight explain it this way, “Clients experience trust in their attorneys when they rely on the attorneys to act in ways that are consistent with the clients’ well-being; that is, acting with fidelity to their interests and acting competently in doing so.” Maintaining client confidentiality is an important way that lawyers act in their clients’ best interests.  In addition lawyers are obligated to advocate for their clients by presenting facts and legal arguments in the light most favorable to their clients.

It is important to remember that hundreds of years of legal cases have shown that people often perceive facts or the “truth” very differently. The legal ethics of confidentiality and advocacy which guide attorneys likely have the effect of causing people on the other side of a dispute or negotiation to perceive the other lawyer as less trustworthy because the lawyer is advocating for the “other side.”

Lawyers are ethically forbidden from lying or urging their clients to lie. But, a lawyer’s role is not that of a journalist who is telling both sides of a story. A lawyer’s role is to make sure her client’s well-being is protected within the bounds of the law.

So, maybe if we celebrate lawyers at all we should change November 5th, to “Love Your Own Lawyer Day – the Other’s Guy’s Lawyer Not So Much.”

How Does the Consumer Financial Protection Bureau Help People?

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People have the right to be treated fairly and honestly by banks and other financial institutions. Rules for bank accounts and borrowing terms should be easy to understand. When customers have questions or concerns banks should respond to them in a reasonable time and try to resolve issues.  When banks and other lenders don’t follow these simple rules who can we turn to?

Congress enacteed The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) in 2010.  Part of Dodd-Frank created the Consumer Financial Protection Bureau (CFPB) to protect consumers from illegal and misleading banking and lending practices. The CFPB website explains its goals this way: “We aim to make consumer financial markets work for consumers, responsible providers, and the economy as a whole. We protect consumers from unfair, deceptive, or abusive practices and take action against companies that break the law. We arm people with the information and stepstools that they need to make smart financial decisions.”

Many big banks, lenders, debt collection companies and their advocates in Congress want to dismantle the CFPB. But, are consumers being helped? Let’s look at the numbers. On July 21, 2016, the CFPB celebrated its fifth anniversary and published its report card.

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Since it was founded, the CFPB has:

Provided $11.7 billion in relief to more than 27 million consumers. The CFPB made banks, credit card companies, payday lenders, for-profit colleges and debt collectors pay back to exploited consumers.

Handled nearly one million consumer complaints. Consumers have the right to be heard when they have a problem with a financial product or service. A consumer can submit a complaint to the CFPB about a financial company and it contacts the company for a response. In five years over 3600 companies have responded to the complaints filed by consumers with the CFPB. Not only does the CFPB contact the company and get a response, it publishes all complaints on its website. Having an advocate to get answers and a public forum to air complaints empowers consumers.

Assessed $440 million in civil penalties. When the CFPB finds that abuses have occurred, the wrong doers are made to pay up. Part of these assessments funds the CFPB. It is not funded by taxpayer money.

Clarified and simplified loan disclosure forms. Consumers have the right to clear, reliable information about financial products and services so they can make informed decisions. The CFPB simplified and reduced loan disclosure forms for mortgages, student loans, auto loans, and other financial products and services to help consumers. Believe me, they are much better.

The CFPB is attacking abusive debt collection tactics. On July 28, 2016, the CFPB proposed new rules that would curb abusive debt collection practices. The CFPB reports abusive practices generated some 85,000 consumer complaints last year alone, more than any other issue. Many consumers report being harassed repeatedly to pay debts they don’t owe or have already paid. Older adults file more complaints about abusive debt collectors than any other issue.

Consumers now have an advocate with enough clout to make a difference. People can rely less on private attorneys to address disputes with lenders and debt collectors. The CFPB saves people money, opens the door for many who otherwise could not get help and gives people the power to stand up for their rights against big companies.

One Good Thing Emerged from the 2008 Financial Crisis…

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financial-crisis-544944_640…the Dodd-Frank Wall Street Reform and Consumer Protection Act was enacted.

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What Happened?  In 2008, financial markets crashed due to a number of causes. Millions of people lost their jobs. Real Estate values plummeted. Homeowners went “under water” with their mortgages. Many financial companies who were deemed “too big to fail” were given a taxpayer-funded bailout to prop them up. As is always true, the average person got hurt the worst. People wanted changes because no one was bailing them out of their financial troubles.

What Changed?  It was in this bleak atmosphere that Congress responded by enacting The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) in 2010 to help prevent this type of financial crisis from happening again.  It was the most comprehensive financial reform since the 1930’s.

How Does Dodd-Frank Help? Here are a few of the key ways Dodd-Frank protects consumers, taxpayers and small investors.

  1.  Looking for Early Signs of Financial Institution Failure. Dodd-Frank created The Financial Stability Oversight Council as a central monitor looking for excessive risks in the entire financial industry.
  2. Limiting Banks’ Investments with Depositors’ Money. Dodd-Frank contains the Volcker Rule which prohibits banks from owning, investing in, or sponsoring hedge funds, private equity funds, or proprietary trading operations for their own profit. These now-prohibited investment operations were the kind that put depositors’ money at risk in 2008 and a big reason why some of the institutions on the brink of failure were bailed out with taxpayers’ money.
  3. Protecting Consumers from Unfair, Abusive Financial Practices. Consumers could not fully understand the loan terms being offered because of confusing disclosure forms. There was no way to clearly compare loan terms from one lender to the next. Some lenders, including some mortgage lenders, credit card companies, payday lenders and others broke laws, lied to and took advantage of people any way they could. Dodd-Frank created an independent agency, The Consumer Financial Protection Bureau (CFPB), to set and enforce clear and consistent rules for the financial marketplace to assure that lenders followed the law and treat borrowers honestly and fairly.
  4. Keeping an Eye on Wall Street. Dodd-Frank also:
  • Regulates Risky Derivatives: Dodd-Frank requires that the riskiest derivatives, like credit default swaps, be regulated by the Securities Exchange Commission or the Commodity Futures Trading Commission. In this way, excessive risk-taking can be identified and brought to policy-makers’ attention before a major crisis occurs.
  • Brings Hedge Funds’ Trades Into the Light: One of the causes of the 2008 financial crisis was that hedge funds and other privately held investment funds weren’t regulated so no one knew what they were investing in or how much was at stake.
  • Oversees Credit Rating Agencies: Dodd-Frank created an Office of Credit Ratings at the SEC to regulate credit ratings agencies like Moody’s and Standard & Poor’s. Many blame the agencies for over-rating some bundles of very risky and complex investments contributing to the financial crises.

If you would like to learn more about what happened in the 1990’s that helped set the stage for the financial crisis, read about the repeal of the Glass-Steagel Act. If you would like to read a summary of how the CFPB helps consumers, you ‘ll  find it here. .

 

 

 

 

 

 

 

It’s summer.Kick back.Unplug. Think slow.

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It’s summer and a great time to kick back, unplug and think slow. Life moves a little slower in the summer. We all need our mental batteries recharged from time to time. Summer is a good time to give our minds and bodies relief from work stress.

When you take time off what do you do?  Do you stay plugged into the office because the place can’t run without you?  Does your boss think that you don’t need or deserve to get away and unplug from work for a week or two? If this is your life then this reflection may not be for you.

If, on the other hand, getting away and unplugging is something that you control, that you enjoy, then you might find this interesting.

In his book, Thinking, Fast and Slow, Nobel Prize winning economist, Daniel Kahneman, lays out his work and theory about how the human mind works. He explains that the mind has two systems.

System 1 (thinking fast) operates automatically and quickly, with little or no effort and no sense of voluntary control. The vast majority of things we do and decisions we make each day utilize fast thinking. Our brains have adapted to make quick, efficient decisions about routine situations.

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System 2 (thinking slow) allocates attention to the effortful mental activities that demand it. This is focused concentration; blocking out distractions to tackle a challenging issue or idea.

Kahneman determined that the automatic operations of fast thinking generate surprisingly complex patterns of ideas, but only the slower circumstances in which slow thinking operates can construct thoughts in an orderly series of steps. Solid analysis and planning require slow thinking.

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Slow thinking burns loads of mental energy. It is tiring. Getting away for a few days from the decisions that fill our usual work hours conserves energy. It is the perfect opportunity to think about significant life issues and plan for the future. When you get away and unplug, you set the stage to slow think your way to some answers.

As of this month I’ve logged 39 years as a lawyer.  This summer I am using my slow thinking time to work on our firm’s succession plan. Who will take over when I and the other older partners phase out of the law firm? How will things change? It’s challenging. It’s important. When I have it figured out, I am looking forward to the same sense of accomplishment I experienced when we hiked to the peak of a 14,000 foot mountain in Colorado.

So, what do you need to do some slow thinking about?  A big life issue? The wonder of the universe around us?  You’ve got an amazing brain. Give it a workout.