LawClinic.TV

The Process is the Punishment

In this clip I start from the title of Malcolm Feeley's classic study of the lower criminal courts, The Process is the Punishment.  First published in 1979, the book remains a defining text for anyone interested in how minor crimes are treated in America's courts.   It captures a central truth for most of the clients we represent in Fordham's Criminal Defense Clinic.  Whatever happens in the case, most of our clients receive their punishment before their case is resolved.  The night they spend in jail before their arraignment is likely to be the only jail time that results from the case.   Their repeated court appearances are likely to be all the contact they will have with the court, as so many of the cases are eventually dismissed or resolved with dispositions that result in no formal sanction.

Although I don't say this in the clip, I am not sure it is a bad thing that there is frequently no punishment beyond the process of resolving the case.  Some data suggests that almost all the crime control benefits of the enforcement of minor crimes (to the degree there are crime control benefits) come from arrest, with conviction and sanctions flowing from conviction adding very little, if anything.  In this era of serious collateral consequences, when people can lose their jobs, apartments or immigration status after conviction of a minor offense, letting the process be the punishment may make for more proportionate and effective punishment.

But as I go on to note in the clip, the punishment exacted by the process can be very onerous and seem illegitimate.  So many of our clients could receive a summons and a predictable sanction could flow from that summons, but that is not how it is done in New York City.  Many folks spend the night in jail after a minor transgression, which can shift the focus from their transgression to the system's overreaction.  From a teaching standpoint, there is much to be learned from the highly charged hours my students spend with their new clients, soon after their arrest.  From the policy perspective, I am not sure it is the best way to run a criminal justice system.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

Students Reflect on Justice and Guilt

In this clip, Phillip Wells, Doug Cutherbertson, Cheryl Thill and my colleague, Prof. Gemma Solimene, offer reflections on the question that people I have just met at cocktail parties most commonly ask me when I tell them I am a criminal defense lawyer - how can you defend those people.  I think people usually mean, how can we defend people accused of crimes, many of whom are, in fact, guilty?   

Although many of us worried about that question when we first started doing the work, in my case many years ago, almost every criminal defense practitioner soon learns that clients are people in crisis, who have lots of other people working against their interests.  For some of us, there is the thrill of being that person's only partisan; others are motivated by a desire to buck the authority of government officials.  I have always been moved by the very human needs of the person in front of me. 

I agree with Phillip.  Everyone deserves an advocate. I suppose some may speculate on the psychological factors that push some of us toward defense work  and some of us toward prosecution, but whatever gives rise to those differences, the system depends on vigorous lawyers on both sides.  I think most people understand that intellectually, but when they first meet a criminal defense lawyer, their hearts often ask - how can you defend those people - and it is important for those of us who do the work to remember how the experience changes us.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

The History of “Corroboration”

Clinical Legal Education offers the opportunity to learn on so many levels.  In a recent post Ilana Friedman talked about some big issues in criminal justice and criminal defense practice in America. 

In this clip, Cheryl Thill talks about a more technical matter, the requirement in New York law that every misdemeanor charge be supported by a sworn statement from a person with first hand knowledge.  Known in courthouse parlance as "corroboration," this procedural step looms large in our practice in New York County Criminal Court and listening to Cheryl's discussion reminds me how many important legal concepts are embedded in this simple procedural requirement.

The requirement for first person knowledge, as opposed to second hand or hearsay evidence, reflects the long settled distrust of hearsay evidence in Anglo-American law and our broader concern about both the quality and quantity of evidence used to prove a point.  The ancient common law had concerns about hearsay evidence - rules regulating hearsay began to firm up in the late 17th Century, developed through the 18th and took a form familiar to contemporary lawyers by the early 19th Century.

In our cases, New York State Law requires that the state file a charging document with every element of the offense supported by evidentiary facts sworn to by a person with firsthand knowledge.  Person number 1 repeating what person number 2 said about what he or she saw is not good enough.

The legal obligation for the prosecutor to support a criminal charge with some evidence (whatever the quality of that evidence must be) in order to bring a case on for trial is older still, with the grand jury (which must pass on whether there is sufficient evidence to bring a felony case to trial) traceable to 1166, just 100 years after the Norman Conquest of England.  We have long been concerned about the burden of being brought to trial, even if one is acquitted, and we fear the power of an accuser to simply accuse without any substantial proof. 

Cheryl also talks about the time limits within which the prosecutor must file a corroborating affidavit. Time limits are another ancient feature of criminal law, with statutes of limitations, constitutional speedy trial requirements and statutory speedy trial rights each having long pedigrees in Anglo-American law. Time limits loom very large in our practice and in many other busy lower criminal courts in America, where there is often significant pressure to process a large number of cases within strict time limits. 

Although Cheryl is talking about a rather technical point of New York State Criminal Procedure, she is also tapping into a rich vein of learning and ancient tradition in our law.  One of the things I so enjoy about being a lawyer who teaches and practices in a legal clinic is the opportunity to see the law from many different perspectives - in this case from the ground and technical detail up to the heavens and the most abstract and ancient of concerns.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

 

The Criminal Defense Dilemma

Here is Ilana Friedman, reflecting on the challenges in working in an imperfect system. She captures a central dilemma for criminal defense lawyers. Our cases are about our client's freedom. It can sound grandiose, but it is very powerful to stand at the portal between freedom and incarceration - and I don't mean that as a metaphor. Heavy steel doors, metal bars and secure facilities are part and parcel of the criminal defense lawyer's world.

Given what is at stake, we can be all the more frustrated with how imperfect the legal system is. We fight for our clients, but we do it within the bounds of the law and from within the system. In the end, we either believe in the system, or we live very cynical lives.

I think this is a central problem for lawyers and a particularly difficult one for criminal defense lawyers. That is why I think it is a very valuable for law students to have the opportunity to live the role for a semester and grapple with this and other powerful questions. Some will decide this is the right area for them and others will decide that criminal defense work, or criminal law is not for them, but all will have learned something very important about themselves and about the law.

 

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

Step-by-Step: From Client Arrest to Release

In this clip Phillip Wells tells you about how the student lawyers in the Fordham Criminal Defense Clinic meet their clients. 

One of the things that gives that process such power is that all of our clients are in jail when we first meet them and our first goal is to get them released. Walking out the back door of the courtroom with a client who came in from the jail cells behind the judge's bench still gives me a thrill. 

Phillip's comments strike me as admirably concrete and client-centered. I like the way he recognizes the intensity of the arrest and release experience for many clients and the ways that experience can shape a client's behavior. So many of us start out thinking that our clients are responding primarily to us. A clinical legal education experience can be a great way of helping us start to get past our fascination with ourselves and start thinking about things from other perspectives. 

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

How We Handle Cases That Are Not Resolved in One Semester

Here are Philip Wells and Doug Cuthbertson talking about one of the big challenges of running a one semester law clinic. 

We switched from mostly two semester clinics to mostly one semester clinics some years ago, a choice we made so we could offer a clinical experience to more students at the law school. 

I think it was, and is, the right choice.  It keeps students on the steep part of the learning curve and permits them to get a broader legal education, but as Doug and Phil note, most of our cases are not resolved in one semester.  That means that clients usually work with at least two teams of students. 

We are always concerned about the transition from one team to another.  We need to be sure that the first team fully documents the case and there is always the need for the second team to establish the relationship anew.  Of course the faculty are a constant, so we really are not starting from scratch and experience tells me that clients understand the transition and very rarely have a problem with it, but it is an issue for us.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

Reflecting on the Clinic Midway through the Semester

Here are Doug Cutherbertson and Philip Wells talking about their experiences in Fordham's Criminal Defense Clinic at the midway point of the semester. Their comments capture both the predictable sequence of the casework and the unpredictable, indeed unique qualities of each individual we represent. Philip's comment captures the recurring pattern of predictable legal procedures involving always different people and facts.

That aspect of law practice informs one of my central teaching goals in clinical education. I hope to give my students a firm conceptual grounding in legal problem solving so they can focus less on their lawyering and more on the person in front of them. In my experience, technical expertise in a given area of law can be a scaffold upon which creative lawyering and close attention to the unique individual in front of us can stand. I fear that technical expertise is an end in itself for too many of us, rather than the gateway to careful, individualized professional practices.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

Participating in the Criminal Defense Clinic, Whether or Not You Become a Criminal Defense Lawyer

In this clip, Doug Cuthebertson talks about his work in the clinic and closes with the observation that the Criminal Defense Clinic will be a valuable experience, regardless of whether he chooses to practice criminal law.  This is another insightful point from Doug.  Although there is more specialization in law school than there used to be, clinical legal education and legal education overall still aims to graduate lawyers who can go in any number of directions after law school, rather than lawyers with very specific kinds of expertise.  As a clinical teacher, my goal is to offer an experience that will teach my students broadly applicable lessons about the law and lawyering, through the criminal defense clinic. 

Here Doug Cuthbertson also talks about how we come to represent our clients.  As he notes, we work with New York County Defender Services, one of the two trial level public defender groups in Manhattan.  As Doug notes, our clients don't get the initial say in whether we, or a lawyer from County Defender, first interviews them, but of course if a client does not consent to student representation, he or she would be represented by a lawyer from the County Defender or another licensed attorney, rather than a student permitted to practice under supervision.  I have been involved in clinical legal education for more than twenty years and I can count the clients who have refused student representation on one hand.  I think most people are impressed by how prepared the students are and appreciate that my students and I are going to work hard on their behalf.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

Who's Who at Law Clinic TV

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One of the great pleasures of teaching in our law clinic is that every semester I meet a new group of wonderful people. In this clip you meet Cheryl Thill, Douglas Cuthbertson, Ilana Friedman and Phillip Wells, all of whom are enrolled in the Fordham Criminal Defense Clinic this semester. 

I think the clip conveys a bit of how interesting, insightful and smart they are and I can vouch for the fact that they are great to work with.  I can also assure you that my praise for them is not just my effort to validate a choice I might have made to let them into my clinic. 

Enrollment in the Criminal Defense Clinic is open to any Fordham Law student who has completed their first year at the law school and who has also taken our Fundamental Lawyering Skills course.  We give priority to third years over second years and we also favor those who may have applied in previous semesters over those who did not.  Although some students may have to wait a semester for a space to open up, most everyone who wants to take our clinic will have the opportunity in the course of their time at the Law School. 

I am just lucky to have great students.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

Arraignments - Meeting Our Client for the First Time

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Here are Phillip Wells, Doug Cuthbertson and Cheryl Thill, three students in Fordham's Criminal Defense Clinic, talking about the first time they went to court to represent a client at his or her arraignment, which is a person's first appearance in court after he or she has been arrested.

Our clinic meets new clients on Wednesday morning.  Our clients are typically arrested sometime on Tuesday afternoon or evening and have been shuttled through various holding cells for the 12 to 20 hours before we meet with them.  We arrive at the courthouse at about 8:15am, and by 9:00 or 9:15 we are in the interview rooms attached to the holding cell behind the arraignment courtroom, introducing ourselves and starting to interview. 

I very much identify with Phillip's comments about how hard some of us find the time leading up to the experience.  Like Phillip, I often find it easier to be performing than looking forward to the performance.  But my actor friends assure me that almost everyone feels that way and the goal is to come to terms with that feeling because most of us are never going to succeed in banishing it.   

Doug's first comment pivots on the moment when we actually meet our client.  As he notes, we learn some basic demographic information from the court papers, but the magic moment comes when we go in the back and yell out the person's name (yes, you have to yell it out and many first timers find that moment rather indecorous and perhaps inconsistent with the magisterial view of the law that law school offers).  At that moment, the whole abstract enterprise of practicing law becomes very specific.  That is when we begin to learn about the person who is our client. 

Cheryl's comment captures how quickly things move in arraignment.  Once we are in front of the judge, we have less than five minutes, often less than three minutes to work through all the formal notices required by law, accept or reject a plea offer, argue for our client's immediate release and determine the proper procedural posture of the case, if it is going to be further litigated.  It can be quite overwhelming, but Phillip, Doug and Cheryl each did a fine job for our client. They all got their clients released on their own recognizance and each is now at liberty, fighting the charges.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student, Arraignment