Mar 29, 2011

Posted in Legal Profession, Uncategorized

Does going to law school and passing the bar teach you anything about Criminal Procedure?

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In Connick v. Thompson, Justice Thomas writing for the majority answers this question in the affirmative; Justice Ginsburg answers with a resounding no, especially if you go to Tulane University (Benchslap!).

This case considered whether a District Attorney’s failure to train his prosecutors about Brady v. Maryland constituted deliberate indifference,and permitted the imposition of 1983 liability.

Justice Thomas argued that unlike police officers, who lacked training in the law, prosecutors possess many of the legal tools and knowledge of the Constitution to figure out Brady. Simply put, by going to law school and passing the Bar, an attorney has all of the skills needed to be a prosecutor:

Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass asubstantive examination; attorneys in the vast majority ofjurisdictions must do both. See, e.g., La. State Bar Assn. (LSBA), Articles of Incorporation, La. Rev. Stat. Ann. §37,ch. 4, App., Art. 14, §7 (1988 West Supp.) (as amended through 1985). These threshold requirements are de-signed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Cf. United States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting that the presumption “that the lawyer is competent toprovide the guiding hand that the defendant needs” ap-plies even to young and inexperienced lawyers in their first jury trial and even when the case is complex).

Beyond law school, attorneys must take continuing legal education:

Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements. See, e.g., LSBA, Articles of In-corporation, Art. 16, Rule 1.1(b) (effective 1987); La. Sup. Ct. Rule XXX (effective 1988). Even those few jurisdic-tions that do not impose mandatory continuing-educationrequirements mandate that attorneys represent theirclients competently and encourage attorneys to engage incontinuing study and education. See, e.g., Mass. Rule Prof. Conduct 1.1 and comment 6 (West 2006). Before Louisiana adopted continuing-education requirements, it imposed similar general competency requirements on itsstate bar. LSBA, Articles of Incorporation, Art. 16, EC 1–1, 1–2, DR 6–101 (West 1974) (effective 1971).

And what about the Character and Fitness exam and ethical requirements of the profession:

In addition, attorneys in all jurisdictions must satisfy character and fitness standards to receive a law license and are personally subject to an ethical regime designed toreinforce the profession’s standards. See, e.g., LSBA, Articles of Incorporation, Art. 14, §7 (1985); see generally id., Art. 16 (1971) (Code of Professional Responsibility). Trial lawyers have a “duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland v. Washington, 466 U. S. 668, 688 (1984). Prosecutors have a special “duty to seek jus-tice, not merely to convict.”

In light of all of these skills, District Attorneys can rely on their prosecutors’ ability to learn the law, and are different from police officers:

Prosecutors are not onlyequipped but are also ethically bound to know what Bradyentails and to perform legal research when they are uncer-tain. A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations in the ab-sence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent futureconstitutional violations in “the usual and recurring situa-tions with which [the prosecutors] must deal.”9 Canton, 489 U. S., at 391. A licensed attorney making legal judg-ments, in his capacity as a prosecutor, about Brady mate-rial simply does not present the same “highly predictable”constitutional danger as Canton’s untrained officer

Justice Ginsburg is not so sanguine about the prospects of law students, you know, learning in law school.

On what basis can one be confident that law schools acquaint students with prosecutors’ unique obligation under Brady? Whittaker told the jury he did not recall covering Brady in his criminal procedure class in law school. Tr. 335. Dubelier’s alma mater, like most other law faculties, does not make criminal procedure a required course.21

21See Tulane University Law School, Curriculum, http://www.law.tulane.edu (select “Academics”; select “Curriculum”) (as visited Mar.21, 2011, and in Clerk of Court’s case file).

Ouch for Tulane University. What does RBG think about the Bar Exam?

Connick suggested that the bar examination ensures that new attorneys will know what Brady demands. Tr. 835. Research indicates, however, that from 1980 to the present, Brady questions have not accounted for even 10% of the total points in the criminal law and procedure section of any administration of the Louisiana Bar Examination.22 A person sitting for the Louisiana Bar Examination, moreover, need pass only five of the exam’s nine sections.23 One can qualify for admission to the professionwith no showing of even passing knowledge of criminal law and procedure.

What about CLE and internal training?

Louisiana did not require continuing legal education at the time of Thompson’s trials. Tr. 361. But cf. ante, at 12–13. Primary responsibility for keeping prosecutors au courant with developments in the law, therefore, residedin the District Attorney’s Office. . . . The 1987 Office policy manual was a compilation of memoranda on criminal law and practice circulated toprosecutors from 1974, when Connick became District Attorney, through 1987. Id., at 798. The manual contained four sentences, nothing more, on Brady.15

So law school is useless. The bar is useless. Training is non-existent. But aren’t lawyers “trained in the law and equipped with thetools to interpret and apply legal principles, understandconstitutional limits, and exercise legal judgment?” Nope.

The majority’s suggestion that lawyers do not need Brady training because they “are equipped with the tools to find, interpret, and apply legal principles,” ante, at 17– 18, “blinks reality” and is belied by the facts of this case. See Brief for Former Federal Civil Rights Officials and Prosecutors as Amici Curiae 13. Connick himself recognized that his prosecutors, because of their inexperience, were not so equipped. Indeed, “understanding and complying with Brady obligations are not easy tasks, and theappropriate way to resolve Brady issues is not always selfevident.”

Justice Ginsburg also cites to several lines in the record stressing the fact that rookie Prosecutors fresh out of law school don’t know jack.

In 1985, Connick acknowledged, many of his prosecutors“were coming fresh out of law school,” and the Office’s “[h]uge turnover” allowed attorneys with little experienceto advance quickly to supervisory positions. See Tr. 853– 854, 832.

By 1985, Dubelier and Williams were two of the highest ranking attorneys in the Office, id., at 342, 356– 357, yet neither man had even five years of experience as a prosecutor. . . . Brady obligations,” on the job or otherwise.

Whittaker agreed it was possible for “inexperienced lawyers, just a few weeks out of law school with no training,” to bear responsibility for “decisions on . . . whether material was Brady material and had to be produced.” Id., at 319.

But Connick acknowledged that he had “stopped reading law books . . . and looking at opinions” when he was first elected District Attorney in 1974.

So law school is not helpful. The bar is not helpful. CLE is not helpful. Internal training is not helpful. Lawyers cant learn by themselves. Where the heck are lawyers, prosecutors in particular supposed to learn how to do their job?

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  • counsel

    Was the question seriously posted? Law schools try to teach, but students must…learn. Teaching /= learning all of the time-in any field… I don’t see the slap to Tulane-many law schools don’t force you to take courses you may need.

  • http://Website steve rappoport

    When did the person/lawyer who posted this blog topic learn about Brady?

    • Josh Blackman

      I learned about Brady during my legal ethics course during 3L. I don’t recall studying it in criminal procedure. I am virtually certain it was not on the bar exam.

  • http://Website non-criminal lawyer

    I learned about Brady from Law & Order. Seriously. How can you be a prosecutor and not know it? (Never took crim pro; I’m a civil litigator so never needed it.)