I'm for streamlined writing and efficient machines, but once words are put into operation as law or rule, fine tuning those operations on the fly is no longer a matter of clean blueprint draftsmanship. Instead, it's more akin to working under the hood of a NASCAR vehicle as it circles the track. With that in mind: 1. If it ain't broke, don't fix it. 2. What's the rush? After all, another side of the "no recent cases" argument is that there are no troubled waters to be stilled. Which leads to ... 3. Unintended consequences/Newton's Third Law/Strategic Uncertainty. If you set about to destroy something that you say really isn't there but others say is, you are destroying the equilibrium surrounding the uncertainty and creating the need for a new equilibrium to account for a new and now demonstrably certain vacuum. Judge Cochran's rebuttal acknowledges that a new equilibrium will need to be created around the vacuum. But at the moment, nobody can say what that equilibrium will be. So, 4. let's not jump out of the frying pan into the fire. Unless and until there is agreement that the post-vacuum equilibrium will be better than what we've got now, maybe the best thing to do would be to postpone the deletion of the "rule of special privilege." Doing anything else has the feel of taking away the defense bar's chips before everyone sits down at the table.See also the text of the proposed rule change, Judge Cochran's guest post, TCDLA Treasurer Keith Hampton defending the rule, and a letter from federal public defender Richard Anderson regarding the proposed deletion.
Monday, June 16, 2008
View from the Piney Woods on proposed deletion of privilege rule
Jeff Rambin over at the Tyler Appeals blog summarizes the controversy over the Court of Criminal Appeals proposed deletion of what Judge Cathy Cochran called a "vestigal tail" with "no wag" - the attorney client privilege Rule 503(b)(2), and concludes the CCA shouldn't rush to change it. While most of debate so far has occurred over what the rule meant in the past, Rambin wisely observes that an "equilibrium" has settled around the "vacuum" of cases regarding the rule, and suggests that discussion of any change should center on the future "post-vacuum" equilibrium. He declares: