POSSIBLE EXAMPLES OF
SOCIOLOGY OF LAW RESEARCH
Donald Black: The Behavior of Law.
(New York: Academic Press, 1976.)
See also:
M. P. Baumgartner, Ed. The Social Organization of Law.
(New York, Academic Press, 1998.)
SOC/CRJ 5810
Prof. M.C. Sengstock
http://users.wowway.com/~marycay910
1
BLACK:
3 SOCIOLOGICAL QUESTIONS
ON ANY SUBJECT
1. What Varies?
2. What Predicts?
3. Who Matters?
2
Q. 1: WHAT VARIES?
A. Quantity of Law
B. Style of Law
3
WHAT VARIES: QUANTITY OF LAW
• Number of Legal Officials – How Many Judges?
..Police? …Prosecutors?
• Rates of Litigation – How Many Civil Suits
Filed? …How Many Criminal Defendants
Charged?
• Reports to Police – How Many? What Is Done
with Them?
• Number of Persons in Prison? (U.S. is Tops!)
• (vs. Decisions NOT to Report, File Suit, etc.)
4
WHAT VARIES: STYLE OF LAW
• “Language & Logic by Which [Law] Defined &
responds to Deviant Behavior.” (D. Black)
1. Penal: Punish Offenders – C.J. System
2. Compensatory: Focuses on Offender’s Debt to
Victim – Receive Compensation – Civil Law
[1 & 2: Zero Sum Games – 1 Winner + 1 Loser]
3. Conciliatory – Focuses on Conflict – Goal:
Restore Harmony; Compromise Preferred
[Considers One-Sided Payments Counterproductive]
4. Therapeutic – Offenders Really Victims –
Treatable Abnormalities
5
Q. 2: WHAT PREDICTS?
A. Social Stratification
B. Social Morphology (Form, Structure)
C. Culture (Expressive Activities, Cultural
Patterns)
D. Organization
E. Other Social Control
6
WHAT PREDICTS?
SOCIAL STRATIFICATION
• Unequal Distribution (Wealth, Power,
Advantage) – Black’s Principles re Law Occurs:
• Most Law Is Used When:
• Low Status Offends High Status >
• High Status Offends High Status >
• Low Status Offend Low Status >
• High Status Offend Low Status
7
WHAT PREDICTS: SOCIAL
MORPHOLOGY (FORM, STRUCTURE)
• Patterns of Association/Connection
• Degree to Which Offender & Victim Were
Integrated into Society (Good Citizen, Employed)
• Kind of Prior Relationship (EX: Family Violence)
More Law When:
• No Prior Relationship … or:
• Marginal Person Offends Integrated Person >
• Participants Are Both Integrated People >
• Well-Integrated Person Offends Marginal Person
8
WHAT PREDICTS: CULTURE
(EXPRESSIVE, CULTURAL PATTERNS)
• Law Is More Involved – or More Severe –
When Opponents Are Culturally Dissimilar
• Cultural Minority Person Offends Conventional
Culture Person >
• 2 Minority Culture Persons Are Involved >
• Conventional Culture Person Offends Minority
Culture Person
9
WHAT PREDICTS: ORGANIZATION
•
•
•
•
•
•
Organizations Are “Legal Persons”
Law Is Greater When:
Organizations Complain Against Individuals >
Organizations Complain Re Organizations >
Individuals Complain Re Other Individuals >
Individuals Complain Re Organizations
10
WHAT PREDICTS:
OTHER SOCIAL CONTROL
• Law Decreases When Other Forms of Social
Control Are Available …
• People Are Less Likely to Invoke Law … & Legal
Officials Are Less Severe: Most Law When:
• Disreputable Person vs. Good Reputation >
• 2 Morally Upstanding People vs. Each Other >
• 2 Disreputable People vs. Each Other >
• High Status Person Offends Disreputable Person
11
Q 3: WHO MATTERS?
People Bring Their Own Social Identities
to Legal Cases:
A. Principals
B. Supporters
C. Legal Officials
12
WHO MATTERS: PRINCIPALS
• Defendants, Plaintiffs, Respondents,
Complainants, Victims, Witnesses
• “Social Structure of a Case Depends on the
Identity of Both Accuser & Accused &
Characteristics in Relation to Each Other”
(Baumgartner, p. 13)
• EX: Rape & Capital Cases: Major Differences
Occur when Low Status Offends High Status
• Offender Status Alone Shows Little
13
WHO MATTERS: SUPPORTERS
• Who Supports the Case?
• EX: Status of Lawyers, Amicus Curiae Briefs,
What Kind of Witnesses Can Principals Gather
to Support Them?
• Do Well Positioned Persons Attract LowPositioned Supporters -- & Vice Versa?
14
WHO MATTERS: LEGAL OFFICIALS
• Judges, Prosecutors, Police, etc.
• Theory of English/American Legal System:
• All Officials in Each Category Are Similar
– They Really WERE Then – All White, Well-Off, Male
• Authoritativeness Increases with Social Distance
from Litigants …
• Low Class: Convict & Punish, Rule Against
• High Status: Order Conciliation (Family Violence)
• When Status Differs, Officials Favor Those Closer
to Them in Status
15
SOCIOLOGICAL VIEWS RE
TRADITIONAL LEGAL CONCEPTS
Discretion
Reasonable Person
“Rule of Law” vs. “Rule of Men”
16
EVALUATING “DISCRETION”
• Deciding Cases “According to Dictates of Own
Judgment & Conscience, Not Controlled by
Judgment of Others (Black’s Law Dictionary, 1968)
• Is This True? Is it Possible?
• Outcomes Unpredictable in Terms of Statutes
• ARE Predictable in Terms of Social Factors!
• Social Influences Not Exceptional – Ubiquitous!
• Cases Almost Never Decided Solely in Terms of
Technically relevant Criteria!
17
EVALUATING “REASONABLE PERSON”
• “Responsible, Knowledgeable, Morally
Sensitive, Good Citizen” Defines Legal Issues
• Does This Wise, Objective Person Exist?
• Or Do People Always Vary Across Gender,
Race, Income, Education, Ethnicity, etc.?
• Does It Ever Make Sense to Assume a
“Reasonable, Objective Person”?
• Or Is Everyone Always Influenced by Culture?
18
EVALUATING
“RULE OF LAW” VS. “RULE OF MEN”
• Is This a Valid Distinction?
• Is Law Really a Confrontation Between the
“Morally Wise ” Who Guide Society …
• Against an “Unreasonable Offender?
• Or Is Law Really an Affair of Human Beings …
• With Different Views of Morality …
• Who View Various Aspects of Behavior
Differently? … Or Perhaps a Little of Both?
19
OVERALL SUMMARY: VIEWS OF
D. BLACK & M. BAUMGARTNER
• Sociology of Law Can Contribute to
Understanding of Law … Through Analysis of:
• Growth in Amount of Law …
• Changes in the Character of Social
Relationships in Society & Legal Structure …
• Kinds of Factors Used by Lawyers, Judges
• Changes in Societal Traditions & Values, etc.
• Can You Think of Other Ways?
20
STATISTICS SUPPORTING
BLACK’S THEORY
• Law As a “Growth Industry” in the U.S.
• “Growth” is a Goal in Many Industries
(Recreation, Leisure, Manufacturing)
• Not True in Medicine, Law, Education …
• Public Resents the Private & Public Costs
• But Is Law a Growth Industry?
• Black Says We Can Use Sociological Statistics
to Find Out (# Lawyers, Law Suits, etc.)
21
LAW AS A GROWTH INDUSTRY:
NUMBERS – LAWYERS, LAW SUITS
• Black Suggests Measuring Quantity of Law:
• # of Lawyers, Law Suits, etc.
• U.S. : “More Law” Than Most Other Nations
22
U.S. LAWYERS vs. OTHER NATIONS
Number of Lawyers/Population Size
Japan: 1/ 10,000
Sweden: 1/ 5,200
Germany: 1/ 2,500
England: 1/ 1,400
U.S.: 1/ 320
23
GROWTH IN LAWSUITS FILED
• Federal Courts:
– 1960: 90,000  1990: 250,000 … 383% Increase
•
•
•
•
•
•
1977-1989:
Auto Industry Grew 40%
Food Industry Grew 91%
Legal Industry Grew 383%
# Law Suits Since 1960:
Mass: Tripled; Los Angeles: Doubled; NY: 50%
24
MORE LAW SUIT STATS (c. 1990)
• Tort Litigation Costs $280 Billion/ Year
• Gross Natl Product Reduced 10% in 1980s Due
to Costs for “Predatory & Frivolous” Law Suits
• Costs Include: Legal Damage Awards,
Increased Insurance Premiums, Time Wasted,
Non-Manufacture of Some Products Due to
Fear of Law Suits
• Cost of Litigation: Adds 30% to Step Ladder,
90% to Cost of Medical Vaccine
25
WHY INCREASE IN LITIGATION?
• More Attorneys (Know System, Possibilities;
Increase Business)
• Contingency Fees (No Loss Penalty – v. Britain)
• Repeat Players (Not Afraid of System)
• Free/Inexpensive Legal Services Available
• Not Just Valued for Dispute Resolution
• Value for Harassment, Publicity, Delay (Q Will)
• Changes in the Law (Change of Venue More
Liberal; Easier to File; “Public Rights” Law Suits)
26
3 CATEGORIES OF REASONS
• Social Development
– More Complex Society – Less Cultural Agreement
• Subjective Cost/Benefit Analysis
– “Getting Even” vs. Tangible Benefits
– Making a Moral Point (EX: Abortion)
• More Legally Actional Behaviors
– New Norms  New Possibilities for Controversy
(Abortion; Gay Marriage; Medical Marijuana)
27
#1 – SOCIAL DEVELOPMENT
• Society Becoming More Complex,
Heterogeneous.
• Less Acceptance Of Common Set Of Values.
• Informal Dispute Resolution No Longer
Accepted.
• CLAIM: Letting In Too Many Newcomers
• BUT: Most People Who Disagree With Ideas
Are American-born, Not Immigrants!
28
#2 - SUBJECTIVE COST/BENEFIT
ANALYSIS OF LITIGATION:
• More Emphasis On Subjective, vs. Objective
Benefits Of Litigation.
• Objective Issues: Look Solely At The Actual
Monetary Costs And Benefits: Likely To Win?
How Much? How Much Will It Cost?
• Subjective Issues: More Intangible: Desire To
Get Even; Create Trouble For Someone? Make
Important Moral Point (EX: Oppose Abortion)?
29
#3 - MORE LEGALLY ACTIONAL
BEHAVIORS HAVE DEVELOPED
• New Norms Have Been Established – Which
Raises The Possibility Of Suits In Whole New
Areas.
• EX 1: Roe V. Wade Generated Whole New
Possibilities For Suits To Allow Abortion …
• Conversely, Prohibit And Restrict Funding For
Abortion
• EX 2: Gay Marriage & Legal Rights Doing the
Same Thing
30
MORE DATA ON THE
BLACK APPROACH
Focus On The Issues:
• “Reasonable Man”
• “Rule Of Law” Approach
Through Focus On Roles In The Legal System:
• Judges & Their Views
• Different Types of Attorney Roles
• Juries & Their Selection
31
DOES RULE OF “LAW” REALLY EXIST?
• In Other Words, Are There Really “Reasonable
Men” …
• Who Can Make Law …
• Without Reference to Personal Value Positions?
32
EX: JUDGES
• There Have Been Numerous Studies of Judges
• At Various Levels (Trial, Appellate, Supreme
Court)
• Q: Do Their Values Influence the Decisions
They Make?
33
ANALYSIS OF SUPREME COURT
• Justices Divided into Categories:
– Liberal
– Centrist
– Conservative
• Liberals: Earl Warren, Hugo Black, Thurgood
Marshall, William Douglas
• Conservatives: William Rehnquist, Samuel
Alito, Clarence Thomas
• Legal Interpretations Based on Personal Values
• Emphasis is Different:
– Protect Individuals’ Rights vs. Rights of Society
– EX: Rights of Offenders vs. Rights of Police
– Rights of Corporations vs. Individual Workers
34
EFFECT OF VALUES ON DECISIONS
• Child Custody Cases:
• Pt. Huron Judge (c. 1970s): Custody of Bi-racial
Child of Mentally Ill Ex-Wife
• Nebraska Judge: Custody of Child – to
“Hippie” Father or Nebraska Grandparents
• Macomb County Judge: Student Mother &
Baby Sitter vs. Father & Grandmother
35
IMPACT OF TEMPERAMENT
ON DECISIONS
•
•
•
•
•
Judges Preside Over Very Tense Situations
Principals Are Very Upset, Excitable
Can an Equally Excitable Judge Keep Control?
EX: “Chicago 7[8]” Trial
Riots at 1968 Democratic Convention – Goal:
Process – Protest Johnson Vietnam Policies
• Judge Julius Hoffman Got Equally Upset …
• Had Bobby Seale Bound, Gagged, Sentenced
to 4 Yrs Prison for Contempt (Near Record
36
JUDICIAL ACTIVISM
• How Far Should Judges Go to Carry Out Law?
• EX: 1968 Detroit Riots: “We Had to Do What
Police Couldn’t – Keep People Off Streets!”
• EX: Voting Rights Cases in South
Vigorous Action
Gradualist
Delaying Action
Reject Delays
Establish Programs
Appoint Referees
Alabama (Johnson)
Reject Delays
Issue Rulings
Order Change
LA (Dawkins)
Accept Delays
Allow Adjournments
Put Off Case
MS (Cox, Clayton,
Cameron)
37
EXAMPLES OF
JUDICIAL ACTIVIST ACTIONS
• Mandated School Busing Plans (CA & AZ)
– Even Ordered Legislature to Institute Income Tax
• 1 Person/1 Vote Apportionment, Detailed Plan
• 3 Trimester Division in Roe v. Wade
• Judge Johnson’s Orders w/ Specific
Requirements & Referees
38
COMPARE: JUDICIAL ACTIVISM or
STRICT CONSTRUCTIONIST?
• Case FOR Judicial Activism?
– Gets Things Done, Prevents Delays, Protect
Minority Rights from Majority Rule
• Case AGAINST Judicial Activism?
– Little Control of Judges (Life Term)
– Hard to Know Signers’ Intent (Even Possible?)
• Caution: Do Not Base View on Specific Case!
– You Might Disagree with the Next One!
– Warren Court v. Rehnquist Court – Most Issues!
39
EX: ANALYSIS: WARREN COURT *
LIBERALS
MODERATES
DISSENTERS
Warren
Frankfurter
Clark
Brennan
Harlan
Stewart
Douglas
Whittaker
(Not a Block)
Black
(Do Not Correlate)
• Liberals & Moderates Agreed A Lot With Each Other
• Clark & Stewart Disagreed With Both & With Each
Other
• * Sidney Ulmer, Former Prof., Political Science, MSU, U Ky
40
[MAJORITY] OPINION OF “COURT”
Chief Justice/Leader of Majority Assigns – How?
1. Pivotal Justice (Hold in Majority)
2. Closest in Views to Assigning Justice
3. Unusual Attraction to Opposition
4. Represents What Majority Had in Common
5. Philosophical – Opposing Person Who Agrees
41
WHEN DO JUSTICES REFLECT OWN
VALUES vs. COMPROMISE?
EX: Hugo Black’s Votes for “Certiorari” (Hearing)
in Labor Dispute Cases (from J. Burton Notes)
1. Reflect Values on Important Personal Issues (2x
More for “Underdog” v. “Overdog”)
2. Want to Be Part of Group, Make Group Look Good
(Compromise If No Point – Vote Makes No Difference)
3. Majority Will Compromise If Necessary
(If 5-4 Vote, Might Give Up Ideas to Get 6-3 Vote)
4. Court Concerned With Appearance to Outside –
Special Cautions When Overruling 2 Lower Courts
42
ROLE OF JURIES – PRESENCE OF
“THE PEOPLE” IN COURT
• Jury Research – Once Common Research Topic
Sociology of Law Topic (Strodbeck, Kalen, Simon)
• Q: Why Have Juries?
• Do Help Outcomes for Defendants?
• Do They Follow the Law (Judge Instructions)?
• Do They Evaluate Testimony Appropriately?
– EX: Expert Witnesses, Psychiatrists?
– Major Issue for Legal Scholars
43
HOW JURIES ARE CHOSEN
• Jury Selection Process:
• Population (a)Jury List(b) Qualified List(c)
 Jury Panel (d)  Jury for Specific Case (e)
• Sample of Population Is Called for Jury Duty
•  Leads to a List for Court to Call As Needed
•  Portion of List Is Called for a Period of Time
– (Day, Week, Month; Varies by Court)
• Case Jury [e] Under Atty Control (Voire Dire)
44
SUPREME COURT REQUIREMENTS
•
•
•
•
•
US Supreme Court: [b, c, d]Must Represent [a]
Declared Mainly in Southern Cases (1960-70s)
Common Practices in Jury Panel Selection:
Jury List: Allow Persons Selected to “Opt Out”
Common Excuses: Disabilities, Occupations
(MD, RN,Police & Relations, Minister), Age
• Court Staff Excused “Inappropriate” Candidates
• Qualified List: Did Not Represent Population
– 1 Day/1 Trial Approach Simplifies Problem
• Some Excuses (Age) Still Remain
45
VOIRE DIRE
• Attorneys (Prosecutor & Defense) – Have
Opportunity to Question Jurors
• Searching for Bias: Pre-determined Views on
Case; Characteristics Making Them Biased
• Relatives, Friends of Principals
• EX: Medical Personnel on Medical Trial
• Use of Social Science to Assist in Voire Dire
• Questionnaires to Jury Panel (Harvey Nussbaum)
46
SOME FINDINGS ON JURIES
Jurors Are Like the “Average Person”:
• High Respect for Printed Word (Media)
• Little Sympathy for “Criminals”
• Have “Fuzzy” Distinction Between “Criminal”
& “Accused”
Some Question Whether Such Individuals Can
Ever Give Defendants a “Fair” Hearing
47
HOW JURIES REACH DECISIONS
• Position Juror Sits In Jury Room Determines
Degree of Influence Over Outcome (Strodbeck)
• 80%: Jury Outcome ~ to Judge Outcome
• 20%: Jury More Lenient re Defendant (Kalven)
• Do Juries Use “Legitimate” Evidence? (EX: Not
Use Size of Atty Fee re Damages) – But Juries
Often Did This (Kalven)
48
HOW JURIES REACH DECISIONS (ctd)
• How Do Juries Handle Expert Testimony?
• Usually Means Psychiatrists – Definition of
Insanity (Medical or Legal?) (R. Simon)
• Are Mentally Ill Responsible for Actions?
– “2 Psychiatrists Examined; I Take Their Word.”
– “2 Over-Educated People Don’t Make it True!”
– “If We Have to Take Their Word, Why Ask Jury?”
• So Juries Generally Make Their Own Decisions
49
FREE PRESS & FAIR TRIAL
• A Common Concern: Does Press Coverage
Limit Right to Fair Trial?
• Most Trials Have No Press Coverage
• Often There Is Time Lapse Before Trial
• Few Cases Actually Go to Trial, Much Less Jury
• So Not An Issue In Most Trials …
• May Be a MAJOR Issue in Some Trials
– EX: O.J. Simpson Trials
50
JURY STUDIES TODAY
• Few Jury Studies Today
• Recognize Prevalence of Judge Trials
• Jury Trials Represent a Decreasing Percentage
of Trials In Federal Courts, Other Courts
51
ATTORNEYS:
IMPACT ON LEGAL SYSTEM
Focus on:
Their Roles In Court
The Process Of Becoming One
What It’s Like to Practice Law
Their Impact on the Legal Process
52
ATTORNEYS’ ROLES IN COURTS
• Attorneys Play 2 Roles in Criminal Court:
– Prosecuting Attorney; Defense Attorney
• Represent Both Sides in Civil Court:
– Present Plaintiff’s Case; Also Represent Defendant
• 2 Types of Practice Settings:
– Solo Practitioner (or Small, 2-3 Person Firm)
– Handle “the Junk” (Evictions, Divorce, Small
Personal Injury, Collections, Too Small for Firms)
– Corporate/Firm Attorney (Big Problems, Clients)
• Categories: Partners, Associates, “Our Black, Woman”
53
PROCESS OF BECOMING A LAWYER
• Obtain Knowledge of Law
– Until c. 1920s: “Read Law” (in Atty’s Law Office)
– 1920s – c. 1950s: LLB an Undergraduate Degree
– Today: Obtain BA  Law School JD
•
•
•
•
Pass Bar Exam
No Criminal Record
Obtain – & Maintain – License to Practice
Maintain Practice in Accord with Bar Assn
Requirements
54
CONCERNS WITH LIMITING ACCESS TO
LAW PROFESSION
• Requirements Discriminate Against Minorities:
– Background in Poorer Schools
– Do Not Do Well on LSAT
– Go to Lower Status Law Schools
– Cannot Pass Bar Exam
– Limits Minority Community Access to Law
• Is There a Justification for Licensing Lawyers?
• Does This Limit Access to the Law?
• …Or Does It Protect the Public?
55
ASSIGNMENTS TO JOBS
Type of Position – Depends on Background:
SOLO PRACTITIONER
CORPORATE or FIRM
(Or Small, 2-3 Person Firm)
“Wall Street Firm”
Minority Race, Religion;
Low Income, Immigrants
Old Family, WASPs,
Wealthy Background,
Less Known Law Schools
Proprietary Law Schools
Ivy League Law Schools
Harvard, Yale, Columbia, U-M
Lower Status Cases
Mainly Represent Individuals
Make Less Money
High Profile Cases
Represent Corporations, Wealthy Clients
Receive Very High Fees
56
WHAT’S IT LIKE TO PRACTICE LAW?
• “The Practice of Law As a Confidence Game”
• Blumberg: Personal Interrelations Among
Court Officers (Judge, Prosecutor, Clerks) …
• With the Defense Attorney …
• Undermines “Justice” by Encouraging “Deals”
57
HOW IS LAW A CONFIDENCE GAME?
A. The Legal Fee Is a Confidence Game
–
–
–
–
Hard to See Lawyer’s Work
Clients Unwilling to Pay (For THAT?!)
Need to Convince Client of Legitimacy of Fee
Keep Clients “Anxious” (Pray to Settle Estate)
B. Court’s Assistance Helps Promote Atty Image
–
Allow Lots of Motions, Objections
C. Negotiating Pleas – Why Do It?
–
–
–
–
Judges, Prosecutors Want It! (Save Court Time, Produce
Good “Convict” Statistics)
Clients Also Want It! (Many Are Guilty, Want “Good
Deal”)
“Non-Regular” Lawyer Doesn’t Do Well in System …
Doesn’t Know People; Doesn’t Recognize a “Good Deal”
58
LAW AS A CONFIDENCE GAME (ctd)
• Who Loses in This System?
– Occasional Defendant Suffers
– Most Defendants Get “Good Deals” (e.g., Shorter
Terms Than Deserved)
– ACLU: “Copping a Plea” Covers Up Sloppy Police
Work
– Society Suffers Most – Justice Is Not Served
59
WHAT DO WE REALLY WANT DEFENSE
ATTORNEYS TO DO?
• Defend the Guilty? (Joann Gillespie Case)
– Defendant Confessed in Middle of Trial)
• Remake a Defendant? (Make Defendant Look Good)
• How Much Can/Should a Lawyer Model Jury?
– Voire Dire; Harvey Nussmaum
• What Happens When Client Settles?
60
TYPES OF REPRESENTATION (CASPAR)
1. The Advocate
– Anything for Client
– Indifferent to Nature of Client, Societal Needs
2. Group Advocate
– Advocate for Atty’s Own Group (Brown v. Bd Educ)
– Client Means to End (Needed to Bring to Court)
3. Civil Libertarian – ACLU
– Goal Is to Establish Legal Point (Church/State, Speech)
– Client Means to End, Secondary Importance
61
WHAT HAPPENS (IN 2,3) IF CASE
SETTLED, WINS ON TECHNICALITY?
• Winning on Technicality:
– EX: Voting Rights Cases: Declared Constitutional
– … But Not Properly Administered (Unfair Tests)
– Was Case “Successful”?
• Client Decides to Settle:
– EX: School Not Fulfilling Promised Placement
– Client Paid for Training, Never Placed in Job
– Client Accepts Settlement From School
– What Happens to Case?
62
PHILOSOPHY OF CRIMINAL JUSTICE:
WHAT SHOULD C.J. SYSTEM DO?
EX: Surveillance, Entrapment, Exclusionary Rule
•
•
•
•
•
•
“Not Paid to Do Justice But Defend Accused” (N.Lippitt)
“Paid to Defend; Not Many Innocent” (E. Hall)
“Defend System for Innocent; Need Prepared Cases” (C.Ziemba)
“Prosecution’s Job to Present Case; Mine to Defend” (E.Hall)
“Law Enforcement Agencies Proven Not Trustworthy” (Lippitt)
“Judges, Prosecutors, Citizens Prejudiced. Defense Provides
Balance” (E. Hall)
63
THE “INNOCENT” CLIENT: WHO IS IT?
•
•
•
•
•
•
•
•
•
EX: Dowagiac, MI, 1922:
Claude Cushing Died, Long Illness (12/31/21)
Widow (Maude) Soon Remarried, Moved
People Gossiped
Maude Arrested for Poisoning Claude (8/23/22)
Requested Lie Detector Test, Refused
Jury: 16 Hour Deliberation Guilty Verdict
Imprisoned Until 1949  Lie Detector Test 
Not Guilty; Claude Died from Bi-chloride of
Mercury (Syphilis Treatment) – Ignored At Trial
64
WHICH ATTORNEYS MORE OBJECTIVE?
FEDERAL? or STATE, LOCAL?
• State, Local Officials Influenced More By Local Politics –
They’re Are of It! (Caspar, Krislov)
• Radical Lawyers – Part of Groups Defended
• Southern Attorneys General:
– Very Conservative; Influenced by Other Local Officials
– Need to Run in Local Elections!
• History: Never Put Western Officials in Charge of
Native American Matters!
• Question: Should Local Programs Be Run By Local
Officials Who Know Area? Or More Objective Federal
Officials?
65