Tuesday :: Oct 4, 2005

Harriet Miers update - 10/4/05

by eriposte

[NOTE: All updates I post on Miers will be recorded subsequently in my one page compilation: "Who Is Harriet Miers?"]

Hesiod (formerly of Counterspin and now at The American Street) kindly forwarded a bunch of articles relating to Myers. Some of these are interesting and I will highlight the relevant portions here.

Two of the articles (one from the ABA Journal quoting Miers and another being something she wrote in Texas Lawyer) suggests she recognized (back in 1992/1993) that there was a need for more adequate representation of criminal defendants. In one of her writings, she actually claimed that we should not get rid of our fundamental freedoms and liberties just because there are vile criminals who exploit those very freedoms and liberties to commit terrible crimes. (Since 9/11, of course, she became part of the Bush cult - so that may not be saying much.)

Let's take a closer look.

1. ABA Journal, July 1993 (79 A.B.A.J. 32)

This report in the ABA Journal suggests that back in 1993 Miers took the view that Texas' horrendous death penalty system needed reform and defendants should be provided with better quality lawyers.

Some extracts, with bold text being my emphasis:

A scathing new report on death penalty representation in Texas has confirmed what many on both sides of the issue already suspected.

The state can't continue to rely almost exclusively on private lawyers to handle death penalty cases for indigent defendants and go on paying them little or nothing for their work, the report concluded.
Worst in the Nation

The report, based on a two-year study by the Spangenberg Group of West Newton, Mass., and released in March, describes the situation in Texas as "desperate," and says the problems there are worse than in any other state with the death penalty.

Texas is one of only seven states that provide no funds for capital representation for the indigent, the report said. Private lawyers are appointed to defend death penalty defendants through trial and direct appeal, but compensation under the county-financed system varies widely and is often inadequate, it found.
Douglas Robinson, a Washington, D.C., lawyer who handled the post-conviction appeals of one Texas death row inmate, said the report's findings mirror his experience with the system.

"It's extremely time-consuming, very costly and quite an emotional strain," he said of the work. "You can understand why you're not going to get many people to do it for nothing."

His client's 1984 conviction was reversed in 1991 by a federal judge in El Paso on the ground of ineffective trial counsel. The ruling was affirmed last year by the 5th U.S. Circuit Court of Appeals, which noted in its decision that the defendant's court-appointed trial lawyer was paid $ 11.84 an hour. "Unfortunately, the justice system got only what it paid for," the appeals court said. Martinez-Macias v. Collins, 979 F.2d 1067.

The State Bar of Texas, which commissioned the study, accepted the report at its March meeting without taking a position on its findings and recommendations.

But Bar President Harriet Miers, a member of the ABA Journal's board of editors, said the state's reliance on volunteer lawyers in life and death matters is "unacceptable."

"There are some [good] lawyers out there doing some awfully fine work, but we're using a Band-Aid approach when the system needs an overhaul," she said.

2. Her article in Texas Lawyer on July 27, 1992

Her opening statement:

In the wake of the Fort Worth shooting spree that left two lawyers dead and [t?]wo judges wounded, criticism of the justice system, judges and lawyers has flowed. Some viewed the maniacal act of one man as an opportunity to emphasize the failings of the rule of law in our country. Some even suggested the heinous act was the product of frustration shared by many with the manner in which the justice system works.

Such an implication from the Fort Worth occurrence is regrettable, and we as the legal community must protect against misguided or erroneous analysis of the devastating events.

OK, so, Sen. John Cornyn (R-Corruption) and Rep. Tom DeLay (R-Corruption and High Crimes) and their assorted band of Far Right extremists must surely be disappointed that she doesn't advocate assassinating judges if you simply don't like their rulings.

She also makes this cryptic comment (bold text is my emphasis):

How does a free society prevent a man from climbing to the top of a tower on a university campus and randomly killing whoever is in sight? How does a free society prevent a man from driving a truck into a cafeteria and executing patrons? How does a free society prevent a man from entering a courtroom and opening fire? We are loath to hear the answer to these questions as it comes from our lips, because the suggested solutions usually infringe on precious, constitutionally guaranteed freedoms.

The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties religion*, access to public places, the right to bear arms and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.

[*Jim Lindgren at Volokh Conspiracy has posted an update indicating that the term "liberties" was an error in the online database.]

Does this mean she will be willing to give up her Bush-sycophancy and actually uphold the American Constitution rather than rubber stamp Bush's torture-loving, civil liberties-busting, power grab under the excuse of his (unending) and egregiously incompetently waged "war on terror"? I doubt it, but at least she's made a modicum of a statement indicating she might have a wee bit of sense.

The next statement is in similar vein (bold text is my emphasis):

In years of financial stress, talk about increased government spending is unwelcome -- but funds for increased security measures for court safety now will be found.

If it is, then why become a propaganda tool and say that Bush's 2005 budget represents "a restoration of fiscal discipline"?

Next, she talks about criminal defense and root causes of crime (bold text is my emphasis):

All lawyers, not just those involved in the criminal justice system, should have an interest in efforts to improve the functioning of the criminal justice system. The State Bar and the Texas Young Lawyers Association conducted 15 hearings across the state concerning pro bono issues. These hearings provided a clear picture that inadequacies exist in the resources available to provide constitutionally required indigent criminal defense.


The hearings also underscored that the lack of resources in some areas of the state not only has a dramatic impact on the courts' performance of all of their obligations, but also unduly burdens the ability of lawyers to maintain a private practice. Lawyers must, in the interest of the administration of justice, be aggressive advocates for increasing the resources available for the representation of indigent defendants.

Additionally, we are reminded that success in fighting crime in our nation is more than treating symptoms. We will be successful in solving our massive crime problems only when we attack the root causes. All of us, men and women, young and old, must pledge ourselves to address the ills that surround us in our communities.

We all can be active in some way to address the social issues that foster criminal behavior, such as: lack of self-esteem or hope in some segments of our society, poverty, lack of health care (particularly mental health care), lack of education, and family dysfunction.

...Our sense of helplessness and inability to understand why tragedies like these have to occur should not cause anyone to attempt to explain Fort Worth shootings as expressions of frustration with judges, lawyers or the justice system. Plain and simple, they are despicable acts -- examples of the worst nature of man. The rest of us are challenged even more to demonstrate the best.

3. Texas Lawyer, March 1, 1993

This third article indicated that Miers took exception to strong brief filed on behalf of a teenage woman (19 years old) whose boyfriend videotaped their sexual encounter without her knowledge and then broadcast it to a number of his friends in school (Bold text is my emphasis). Among other things, the woman faced significant emotional distress due to the publicity the videotape received in her social circle and she filed a lawsuit asking for damages. Although the woman initially won, the Texas Supreme Court overturned the verdict and asked for a new trial - which prompted a strong brief in response from some lawyers of the Texas State Bar. Miers, for whatever reason, did not entirely feel comfortable with the brief.

Bar Section Blasts Sex Tapes Ruling

The Women and the Law Section of the State Bar pulled no punches in its Feb. 8 amicus brief to the Texas Supreme Court, accusing the majority of sexism in its Dec. 2 ruling in the Houston sex tapes case, Dan Boyles Jr. v. Susan Leigh Kerr, No. D-0963.

"Characterizing and dismissing Boyles' conduct as nothing more than 'rude, insensitive or distasteful behavior,' and Kerr's emotional distress as 'hurt feelings, embarrassment, or even humiliation,' is stereotypically gender biased, callously insensitive to the emotional distress the Plaintiff has suffered, and blatantly offensive both to women and men of this State," the brief states in its main point.

Boyles secretly videotaped a teenage sexual interlude with Kerr and showed it to his friends. Kerr sued, winning $ 1.1 million from a Harris County jury in 1989. The court, in a 6-3 majority opinion written by Chief Justice Thomas Phillips, remanded the case for a new trial, saying negligent infliction of emotional distress is not an intentional tort.

The brief supports Kerr's motion for rehearing and notes that the court created a Gender Bias Task Force in 1991. "The majority on this case might be well advised to look for gender bias in its own backyard," it states.

"What happened to Susan Kerr falls little short of rape," the brief states, and later adds, "Your Amicus cannot help but believe that if the tables had been turned, and Kerr had peddled the videotape as a vignette of Boyles' sexual performance, complete with a lewd commentary by some of her female friends about his anticipated virility vel non, the all-male majority in this case would have reached a decidedly different result."

The strong wording of the brief has unnerved some Bar leaders. President Harriet Miers said the section did not follow procedures and should have submitted the brief for the Bar board's approval before filling it.

The brief was signed by two Lubbock attorneys, Ralph H. Brock, a section member, and Carolyn F. Moore, past president of the section, and Houston's Beatrice Mladenka-Fowler, secretary of the section. Mladenka-Fowler said she does not agree that the section needed the board's approval to file the brief. She said section members discussed and voted to prepare the brief at a Jan. 23 meeting.

I'm not quite sure what to make of Miers' complaint against the brief. On the one hand it is a strange thing to feel offended by considering that the woman who was subject to the vile act was the Plaintiff that the brief was supporting. Supporting sexually "harassed" women shouldn't be a problem, right? On the other hand, perhaps she was just reacting to the fact that it was an official brief from the Texas State Bar (which she held a senior position in) and perhaps wanted to have reviewed it further before putting the judges of the Texas Supreme Court directly in the cross-hairs of the brief. In other words, was she objecting only to the strong language or the brief itself?

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