Monthly Archives: November 2016

Moore v. Texas

Next Tuesday the Supreme Court will hear arguments in Moore v. Texas. Bobby Moore is a person with intellectual disabilities sentenced to death in Texas; his story is neatly summarized by Tim Shriver in a recent Time magazine editorial:

“When Bobby Moore, a person with an intellectual disability, was 14-years old, his father became enraged that Moore couldn’t read and threw him out on the street. As a teen, Bobby did not understand the days of the week, how to tell time, and other basic information and skills.

Bobby ate out of trash cans, mowed lawns for money, and eventually lived in the back of a pool hall where he sometimes played pool. Like every person, including those with intellectual disability, Bobby was better at some things than others. With the help of others, he managed to survive.

But at the age of 20, Bobby was involved in a bungled robbery with two other people in which an employee was tragically shot and killed. He was convicted and sentenced to death. After a lower court found that Bobby had an intellectual disability and was therefore exempt from execution, Texas’s highest criminal court ruled that Bobby’s ability to play pool and mow lawns proved he never had an intellectual disability and could therefore be executed.”

Shriver argues that the standard applied by the Texas Supreme Court is incorrect and dangerous:

“The inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be “good” at anything. The reasoning is dangerous and flawed: if you can mow a lawn, you can’t have an intellectual disability. If you have an intellectual disability, therefore, you can’t do anything. Both are wrong—dangerously wrong.”

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Jed Rakoff on Access to Courts

Judge Rakoff talks about access to justice and access to the court system, primarily in civil cases, in a new article in the New York Review of Books. Here is the elevator speech:

There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.

“The Desperate and the Dead”

The Boston Globe takes on the issue of mental health courts and mental health services in a “Spotlight” story, “The Desperate and the Dead”, finding that:

“Court personnel are, in the main, poorly equipped to deal with those with mental illness. Judges, probation officers, and lawyers alike admit they often lack the expertise, the resources, or the time to help people whose conditions can be hard to diagnose and can complicate the assessment of their intent in alleged criminal acts.

The state has been slow to launch special courts designed to address these defendants’ circumstances and needs. That consigns many of those with mental illness to regular courts or sessions designed primarily to deal with defendants addicted to drugs.

“I don’t think we as a court have a sophisticated understanding or protocol when it comes to dealing with people with mental illness,” said Judge Mark Coven, the first justice of the Quincy District Court, one of the few in the state to hold sessions specifically for defendants with mental illness.”

“Trial or Deal?”

That is the title of an article from the AP discussing the number of innocent people who plead guilty, usually in order to avoid the extraordinarily high consequences of mandatory minimums and over-charging. According to the AP, quoting the National Registry of Exonerations, more than 300 of some 1,900 people who have been exonerated in the U.S. since 1989 pleaded guilty. Last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty, more than any previous year.

Critics say the numbers reflect an overwhelmed criminal justice system with public defenders who have more cases than they can handle and expedience on the part of court officials, who can save the government money with plea bargains compared with costly trials.

“Our criminal justice system has lost its way,” said David O. Markus, a prominent Miami defense attorney. “For a long time, it was our country’s crown jewel, built on the principle that it was better that 10 guilty go free than one innocent be wrongfully convicted. Now sadly, the system accepts and even encourages innocent people to plead guilty.”