Chuck Lindell at the Austin Statesman reports ("Death row inmates share identical appeals," Feb. 26) on another black-eye incident for Texas' defense counsel and our system of indigent representation - one I think looks about as bad as the notorious "sleeping lawyer" case. Two death row inmates had nearly identical (and quite minimalist) appellate briefs filed on their behalf 1-1/2 years apart by a Houston lawyer, Leslie Ribnik, who also missed routine filing deadlines that will speed up one client's execution date. Ribnik's briefs were "word-for-word identical, right down to a capitalization error on page 17," Lindell reported, and avoided common death penalty appellate arguments to focus on one narrow claim.
For my attorney friends, how common is this? Are we living in the era of cut and paste lawyering?
You ask, "are we living in an age of cut-and-paste lawyering?" The answer is yes...and no.
ReplyDeleteAs for most of your solo-pratitioner attorneys practicing criminal defense, they do a lot of original work: motions to quash indictments or motions to quash revocations of probation all require specific, detailed information you can't usually 'cut and paste' from somewhere.
However, with software like ProDoc and others readily avaliable and fairly inexpensive, discovery motions and other similar things are usually done by answering a series of questions the software asks you. It then spits out your motion. Of course, some of those also require specialized entry if there is something not covered by the ProDoc templates.
Having worked as an investigator for a criminal defense lawyer, I can tell you that there isn't anything especially bad about cutting and pasting, if and only if, it is on something simple like a motion for leave to file additional motions or a motion for leave to file the election of punishment motion at the time of trial. Things like that are very standard and don't differ much from case to case.
However, I have seen discovery motions done by other attorneys that do seem to have been way too "cut and paste," ie, they're asking for discovery of breath test evidence in a case that isn't a DWI, and the like.
So, yes, it goes on. How much of a problem it is depends on the case, the county, and the attorney, I guess.
I've got no experience in cut-and-paste appeals, though.
Here is what I posted over at Capital Defense Weekly
ReplyDelete"Everyone has done it, cutting and pasting. I have suggested on the weekly & at CLE's that attorneys look at other's briefs and "borrow" unique arguments or something that might improve their briefs. The idea is that in addition to claims specific to a single case there are broader issues that can be "cut & pasted" into a brief so you have case specific issues & "me too" claims that might impact all cases within a given jurisdiction. This story, however, goes beyond that, counsel proffered one issue, cut & paste, in two different briefs with no fact specific issues.
Unfortunately the problem isn't confined to just one writ petition. As Texas Defender Service's landmark 2002 study, titled "Lethal Indifference," found that 39 percent of habeas writs filed from 1995 to 2000 included no appropriate claims, allowing the courts to dismiss them out of hand with another 30 percent being 30 pages or less."
In a word: yes. While it's a good idea to cut and paste in situations like simple motions or borrowing unique arguments from other attorneys' filings (above), there's way too much of this going on in more serious situations. A friend sees writs of habeas corpus on a regular basis as a part of her job and is regularly apalled by the poorly written and cut and paste writing. In fact, Alan Dershowitz addressed just this issue in one of his books telling of a well respected attorney who always used the same legal argument (word for word) in capital murder cases. Dershowitz asked if it had ever worked and the attorney thought about it and, surprised, said "no."
ReplyDeleteBottom line: attorneys often get lazy and set in their ways with age (and the young often cut and paste other motions b/c they don't feel comfortable going it on their own).