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Thursday Roundup

Money woes.  In the summer of 2012, when Congress couldn't come up with a budget, they decided to place six congresscritters from each party in a room to do so, with the threat if it didn't happen, sweeping cuts would be made in both defense and discretionary domestic spending  -- which was called "sequestration" -- on the theory that nobody would want that, and the two sides would forge an agreement.  As we all know, that's exactly what happened, along with world peace, and end to hunger, and the televised executions of the Kardashian sisters and Justin Bieber. 

Well, no, it didn't happen, and a number of articles have been written about the disastrous effect sequestration has had on the public defender system.  According to this article in the Washington Times, the government shutdown, which started two days ago, might have a similar effect on prosecutors.

Some FBI agents and federal prosecutors face furloughs if the government shuts down Monday night, and Attorney General Eric H. Holder Jr. said he would take a voluntary pay cut because of political "dysfunction."

That may not be the only source of worry for prosecutors concerned with career longevity:  a few weeks ago, Holder ordered a shift in policy, instructing prosecutors not to indict on mandatory minimum drug cases if the offender met various criteria:  they couldn't have ties to a cartel, didn't have a record of violent offenses, didn't use a weapon, and didn't sell drugs to children.  I'm not sure how strictly the policy has been implemented -- I have one of the nearly six dozen defendants rounded up in the latest drug bust here in Cleveland, and he's 63 years old and sold a total of 7 grams of heroin -- but it could certainly have some effect.  I ran into a federal prosecutor at a seminar recently who told me that his office expects to see 60% fewer drug indictments by next year.

And second prize is three days in Albion and Ord.  Back in the good old days for Cleveland, in the forties and fifties, we had the third-highest number of lawyers per capita in the country, behind only New York and Chicago.  We're farther back in the pack now, the state ranking only 28th in that category, but there are still a lot of lawyers chasing too few clients.

Well, good news, if you're willing to relocate and always had a weakness for Green Acres reruns.  Courtesy of Above the Law, we learn that Nebraska is looking for lawyers.  Why?

While in some areas, the legal market is oversaturated, the number of qualified attorneys in rural areas is shrinking rapidly. Many counties are underserved at the moment, according to the Nebraska State Bar Association. When there are few lawyers available, this limits access to justice for rural dwellers.

In some cases, people must travel up to 200 miles for legal help. In Nebraska, there are 12 counties that have no lawyers at all.

According to the NSBA there were 18 lawyers in Cheyenne County in 2012, while there were four in Deuel County, two in Kimball County and none in Banner County.

South Dakota had the same problem, and sought to remedy it by refunding tuition for lawyers who agreed to work for five years in the state's rural counties.  Nebraska is trying to do it on the cheap:  its "rural practice initiative featured two, two-day tours through Albion, a town of about 1,600" -- or slightly fewer than the number of people trying to get on the Justice Center elevators every morning -- and Ord, a metropolis with 25% more people.

If they'd throw in "and all the corn you can eat," they could probably close the deal.

Riding the Circuit.  As people reading this blog now, I spend very little time on Federal court decisions, other than from the Supreme Court.  I may change that, because they can prove quite entertaining.  Courtesy of Sentencing Law & Policy, we have the story of the 9th Circuit's decision addressing the issue of whether the trial court erred by not reading the last two pages of the defendant's sentencing memorandum, and not viewing a DVD he had submitted in mitigation.  The court found no error, but gently chided the trial judge in a footnote:

We note in passing that the time that the attorneys and this court have spent on the issue of the unread two pages and unwatched DVD was, in all likelihood, far more extensive (and, for the parties, expensive) than if the court had simply read and watched what was before it. As Benjamin Franklin astutely observed, "An ounce of prevention is worth a pound of cure."

But my favorite is the opening paragraph of the 6th Circuit's recent opinion in Bennett v. State Farm Mutual Auto Ins.:

There are good reasons not to call an opponent's argument "ridiculous," which is what State Farm calls Barbara Bennett's principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, "the better practice is usually to lay out the facts and let the court reach its own conclusions." Big Dipper Entm't, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011).  But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

The funny thing is, it was a ridiculous argument.  Bennett was hit by a car while walking her dog, and was thrown onto the hood.  She argued that she was entitled to coverage under the driver's insurance policy because she was an "occupant" of the vehicle while she was on the hood.  Still, the court's warning is apt:  it's better to let the panel figure out exactly how ridiculous an opponent's argument is.

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