Legal services

During the final hours of the lame-duck session, the Senate secured a victory for access to justice, unanimously passing a bill to continue deposit insurance protection for Interest on Loan Trust Accounts (IOLTA).

IOLTAs, where lawyers keep client funds, with interest contributed to legal services to the poor and other legal education programs, are an important source of funding for civil legal services programs.

Under the Dodd-Frank reform bill, Federal Deposit Insurance Corp. protection was extended for other trust and business accounts that do not pay interest, but the bill neglected to include IOLTAs.

The lack of protection for IOLTAs would have created an incentive for lawyers, who have an ethical obligation to protect client funds, to keep these funds in other insured types of accounts, Sen. Jeff Merkley said in a statement prior to the bill's passage. The bill was being held up by Sen. David Vitter, The Blog of Legal Times reported, citing Louisiana columnist Clancy DuBos, with FDIC protection set to expire Dec. 31.

But the bill was passed by the Senate on its final day in session, and was passed by the House earlier this year.

"Each year and in each of our 50 states, hundreds of thousands of low-income Americans benefit from access to essential legal services and legal education programs supported by the IOLTA partnership between law firms and banks," Merkley said after the bill's passage. "I applaud my colleagues for seeing the value in this partnership and preserving the IOLTA program for years to come."

There's a story to be told from the intense media focus on last week's Snyder v. Phelps case in the Supreme Court. To be sure, the case - involving a challenge by the father of a slain serviceman to protests conducted by a fringe religious organization at his son's funeral - is an important one in which the Court may provide importance guidance on the reach of the First Amendment. The protests at the military funerals, in which followers of the Westboro Baptist "church," hold up signs that celebrate the death of U.S. soldiers in Iraq and Afghanistan, which Westboro members regard as a punishment for what they believe is U.S. tolerance of gays in the military - are repulsive by almost any sane standard. Given the lurid facts of the case, and the tension between our sympathy for Alfred Snyder and our traditional robust protection of even repulsive speech under the First Amendment, it's perhaps not surprising that almost every major news outlet and Supreme Court blog reported on last Thursday's oral argument.

But it's telling that on the same day Snyder was argued, the Court also heard oral argument in Connick v. Thompson - a case with considerably more concrete implications for the lives of thousands of criminal defendants. In Connick, the Court will decide whether a man who was convicted of capital murder and held in solitary confinement on death row for 14 years can hold a prosecutor's office civilly liable for violating his constitutional rights by withholding exculpatory evidence from defense counsel and failing to train prosecutors in their obligation to furnish this information to defense counsel. The obligation of prosecutors to turn over such evidence to defense counsel was first established by the Supreme Court in 1963. But the New Orleans district attorney's office argues in Connick that it cannot be held liable for a single incident of violating Brady. Instead, the prosecutor argues that they can only be held liable if it is demonstrated that they engaged in a pattern of withholding such evidence. In other words, only if we repeatedly violated the Constitution can we be compelled to pay for allowing an innocent man to be imprisoned and almost executed.

With the exception of an article I wrote for The Root, and an in-depth treatment by John Hollway in SLATE, (Hollway's book on the Thompson case has just been released) the oral argument in Connick escaped media and Supreme Court blog attention. And this is its own story. Connick (like last year's Pottawattamie, IA v. McGhee case) is a case that peels back the cover on an aspect of the criminal justice system that is too little examined in the mainstream media, and is unfortunately too well-known to many African Americans. The willingness of some prosecutors to withhold evidence that would likely exculpate criminal defendants, or as in the Pottawattamie case, to deliberately fabricate evidence to frame criminal suspects is a reality of our criminal justice system. The fact that these instances are rare compared to the thousands of cases in which prosecutors act ethically, makes them no less corrosive of public confidence in our justice system. That the victims of this kind of misconduct are often African Americans adds yet another layer of ugliness that further complicates the public response. Unfortunately, it may also explain why these stories - even when they make it to the Supreme Court - get so little attention. When the victims are prominent and white - as in the case of the Duke lacrosse team members accused of rape - prosecutorial misconduct makes an intense, but still too-brief appearance on the front pages of our newspapers.