I have been away from blogging for a week, but wanted to highlight a few noteworthy pieces from the legal blogosphere. I ran across this ATL article about a D.C. Superior Court judge that declared a mistrial in a murder case because the defense lawyer was horribly incompetent. The attorney was a recent graduate of Touro law school which has been lambasted in the legal blogosphere prior to this performance by one of its graduates. As Elie Mystal writes:

In any event, you know who is really hurt here? Do you know who the real victims are of whatever process involved Touro admitting and graduating this guy, and the state of New Jersey (who else) allowing him to practice law? It’s Dontrell Deaner, and the family of his alleged victim. Those people deserved their day in court; those people deserved a properly functioning justice system. If innocent, Deaner deserved a proper defense, and if guilty, the family of his victim deserved a swift resolution.

But for them, justice has been delayed and deferred, because somewhere along the line the system for preparing people to become lawyers failed. The system became more concerned with making money off of kids who have no business representing people in dire need of counsel than with educating the stately legal professionals of the future. At some point Touro admitted this kid (a kid who was undoubtedly a marginal candidate based on all of our accepted measures of determining preparedness) and encouraged him to enter law school. Then Touro put him through the paces for three years while cashing his checks, somehow getting him to the point that he could regurgitate enough info on an MBE to pass. And that was it; he was unleashed onto an open market back in 2009, when firms were not hiring, and nobody was taking chances on Touro graduates and giving them the “finishing school” nearly all law grads need (since law schools, even top-ranked ones, are shockingly ineffective at preparing people to actually practice). Fending for himself, he managed to find some desperate client who probably couldn’t afford anybody better and didn’t have the skills to distinguish between a good attorney and a crappy one. He had no help and no mentor. He went to a fourth-tier law school and passed a state bar exam, and then found himself in the middle of a first-degree murder trial.

That’s our system, folks.

I do not possess the necessary experience to make a judgment call on schools like Touro. But what I can speak about are cases where defense lawyers didn’t know what they were doing due to lack of experience, legal education or the necessary time to prepare. For ten years I prepared briefs for prisoners alleging ineffective assistance of counsel claims, and more often than not, the judge agreed with the allegations. Scary thought, I know.

On a more lighthearted note, last week Judge Alex Kozinski offered up this concurrence in the denial of rehearing en banc in United States v. Alvarez, where the original 9th Circuit panel concluded that the Stolen Valor Act (a law criminalizing false claims of military heroism) violates the First Amendment right to freedom of speech. Judge Kozinski explained why lying is not only protected speech, but is also an invaluable part of humanity. He stated:

According to our dissenting colleagues, “non-satirical and non-theatrical

[ ] knowingly false statements of fact are always unprotected” by the First Amendment . . . . Not “often,” not “sometimes,” but always. Not “if the government has an important interest” nor “if someone’s harmed” nor “if it’s made in public,” but always. “Always” is a deliciously dangerous word, often eaten with a side of crow.

So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny,” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as “rational basis review.”

In other news, Volokh Conspiracy member Orin Kerr had an observation about the unusual similarities between the Supreme Court’s decision this week in Arizona Christian School Tuition v. Winn and last year’s decision Berghuis v. Thompkins. In both cases, Orin writes, Justice Kennedy chipped away and narrowed significant Warren Court precedent, and in both cases, the most junior Justice wrote a “stirring dissent on behalf of the four liberal Justices pointing out how the majority’s decision is not consistent with past precedent . . . .”

But my favorite piece of the last week goes to Adam Liptak. His New York Times article discusses how the Supreme Court’s oral argument sessions have evolved or devolved—depending upon your viewpoint—into a “verbal roller derby.” Adam recounts the oral argument from Turner v. Rodgers here former Solicitor General Seth Waxman was bombarded with questions from all sides before he could fully answer one of them. My wife, Annie, and I attended argument that day and Adam captures perfectly the way the Court ping-ponged both attorneys.