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Letter From The Editor
VOLUME 30, NUMBER 1 PUBLISHER
Arkansas Bar Association
ARKANSAS BAR ASSOCIATION
Justice for All? By Stacey DeWil/
100 \\ \l.Hkham little Ro,k, \rkama~ -220 I
EDITOR
Stacey De Witt ASSOCIATE EDITOR, LAYOUT & DESIGN
Sara Landis
In the wake of the 0.1. Simpson trial, many are asking does our court system really provide equal justice for all? This
EDITORIAL BOARD
issue of the Arkansas Lawyer attempts to
Thomas M. Carpenter Susan Goldner Sarah James
review in depth some of the struggles of
AJ
Schay
OFFICERS President Carolyn Witherspoon President-Elect
our criminal justice syslem. Retired Supreme Court Chief Justice Jack Holt gives an encouraging perspective. There
Harry Truman Moore President-Elect Designee Jack A. McNulty
are also several in depth articles dis-
Immediate Past President Robert L. Jones III
cussing sentencing guidelines. lhe charg-
Secretary -Treasurer Frank 8. Sewall Executive Council Chair Sand ra Cherry Young Lawyers' Section Chair Stuart Miller Executive Director William A. Martin
Assistant Executive Director Judith Gray
ing process, and the status of death penalty resource centers. Finally, take some time to get to know Phil Anderson who has announced his candidacy for president elect of the
EXECUTIVE COUNCIL Teresa M. Wineland A. Glenn Vasser R. Scott Morgan Don Hollingsworth Charles L. Carpenter, Jr. Stanley D. Rauls Charles L Han-veJ] Robert R. Estes
American Bar Association. He offers an insightful explanation for the current public mistrust of lawyers and the justice system. Even if you don't practice crimi-
Louis B. Jones, Jr. Donald P. Raney
nal law, this issue is for you. For those
Mike Everett
Michael E. Irwin David K. Harp Mark Cambiano Lynn Williams TIlc ArktlPlsas Lawycr (USPS 546-040) is published quarterly by the Arkansas Bar Association. Second class postage paid al Little Rock, Arkansas. POSTMASTER: send address changes to TIlt! Arkallsas Lllwyer, 400 Wesl Markham, Little Rock, Arkansas 72201. Subscription price to non-members or the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not nece>sarily that or the Arkansas B.u Association or 11,e Arkatlsas Lawyer. Contributions 10 Tile Arkallsas Lawyer are welcome and should be sent in hvo copies 10 EDITOR. TIle ArKallsas Lawyer, 400 West Mar1<Jklm, Little Rock, Arkansas 72201. All inquiries regarding advertising should be senl to TIle Arkatlsas Lawyer at the above address. Copyright 1996, Arkans.1s Bar Association. All rights reserved.
who have never been involved in litigalion, which is much more of the general public. media coverage of the criminal process is their only exposure to the courtroom. To regain their trust, lawyers musl stay informed and attempt through legislation and other methods to insure that there really is justice for all.
"...many are asking does our court system really provide justice for all?"
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On the Cover: Shovel detail. An inmate shovel crew marches across bridge to work area as an armed horseman keeps them under guard at Tucker Prison farm. Photo taken by Gary Speed around 1979.
Features PAGE A CONVERSATION WITH PHIL ANDERSON by Stacey DeWitt An interview with Phil Anderson about his candidacy for President-Elect of me American Bar Association.
9
$45,000! A GREAT START fOR THE 3-POINT ATTACK by Steve Quattlebaum The Arkansas Bar continues to shoot the hoop for cancer.
11
A PERSPECTIVE ON THE JUSTICE SYSTEM by Justice Jack W. Holt, Jr. Has OUf justice system gone away?
12
JUDGES WITHOUT PARTIES by Judge Robert L. Brown The l1on-partisian election of judges time has come.
16
CHARGING DECISIONS by Ron Fields A prosecutor's perspective.
20
OLD DOG, NEW TRJCKS by Holly Lodge and Jenifer Sutton
24
The practical effects of new sentencing guidelines.
PERCY'S DEAD! (AND THE
THE ELIMINATION OF DEATH PENALTY
"JUICE" IS LOOSE) Grif Stockley reviews the newest addition to Vic Fleming's literary resume. PAGE 40
RESOURCE CENTERS by AI Schay How they lost federal funding and why.
32
In Every Issue LETTER FROM THE EDITOR,
by Stacey DeWitt
PRESrDENT'S REPORT, by Carolyn Witherspoon EXECUTIVE DIRECTOR'S REpORT, by William A. Martin
1 4 6 7
LAW OFFICE TECHNOLOGIES, by Mac Norton YOUNG LAWYERS SECTION REPORT, by Stuart Miller
41
LAW, LITERATURE AND LAUGHTER,
42
by Vic Fleming
DISCIPLINARY ACTIONS/ADVISORY OI'INIONS
43
IN MEMORIAM
48
President's Report
Representing Systems of Justice by Caralyn WilhersfJoon "If there were no bad people there would be no good
lawyers." Clmrles Dickens, Th. Old ClIriosily Shop, 1841. This issue of The Arkansas lAwyer is devoted to the criminal juslice syslem. The articles will, hopefully, educate you and result in some dialogue between us all. There are many Bar members - judges, prosecutors. and defense attorneys - who de vOle their lives and their careers to ensuring that OUf justice system works properly. We all owe a debt of gratitude to those people. nfonunatcly. our justice system is not perfect. There have been a number of changes proposed to the system over
the years that will improve it and some that will weaken it. The Bar must be ever vigilant lO safeguard our system and ensure that it remains open and available to all. regardless of financial status, racc. or sex. Abusive and violcnt crimes involving membcrs of the same family now constitute a large number of the cases in our criminal courts. The life and death issues surrounding domestic violence impact on our criminal justice system in far too many ways. The cases not only include those obvious ones that involve the batterers who kill or injure their victims, but also the victims who kill their batterers and the violenl custody disputes lhal all too oflen end with lhe death of the child. These viclims are often powerless lo invoke changes that are necessary to protect them. The answers to these issues llluSllx fuund before the ultimate crime is committed. According to the Family Violence Project of the ational Council of Juvenile and Family Court Judges. approximately four women are murdered by their husbands, ex-husbands, or intimate partners every day in the United States. There are no statistics available on how many more women are victims of attempted homicide, aggravated assault, or how many children are left motherless as a result of the murders. "The IllOSt important thing a lawyer can do is to become an advocate of powerless citizens.... Lawyers should represenl syslems of justice:' Ralph ader. excerpl from Newsweek. October 3. 1969. The Arkansas Bar Association will take a leadership role in addressing some of the issues and. perhaps. finding some solutions and proposing changes to improve our syslem when we convene the first State Conference on Domestic Violence on April 11-12 in Lillie Rock. We are planning on bringing together a group of interested individuals. including victim advocates. prosecuting attorneys. judges. educators. medical personnel. prObation officers. and members of the Arkansas Bar. 4
The Arkansas Lawyer
Winter 1996
We are fonunate that there are some resources and shelters for victims of family violence and their families in Arkansas. In Pulaski County, Advocales for Baltered Women has been providing shelter and counseling for a number of years. Their statistics for 1994 are sobering: 1.180 Orders of Protection were received. 371 women and 484 children were provided shelter, and lhey responded to approximately 4,500 crisis calls. Nationally. many resources have been developed that we can utilize to assist us in addressing our problems. "Family violence not The Nalional Conference of State only affects the families Legislatures drafted model legislation on domestic and family vioof the batterers and the lence. The Nalional Nelwork to End victims, it also has a Domestic Violence serves as a profound effect on the resource on federal legislation and policy initialives. The Family friends of these Violence Project provides extensive individuals, their training and technical assistance tools that will assist communities in attorneys, the court their effons to build a framework of system, and the legislation and policy which proworkplace, motes healthy. violence-free communities. Many states have designed and implemented family violence projects and conferences in the last two years. New Hampshire's state conference included all district court judges and clerks. Nevada received grant monies to conduct town hall meetings and to draft a state plan to address and end family violence. Family violence not only affects the families of the batterers and the viclims. it also has a profound effeci on the friends of these individuals. their attorneys, the coun system. and the workplace. According to the Family Violence Project. women are in their greatest danger when they leave lheir baltering partners. Of course, this is also the time when families are more often in coun. We have all read in the news lhat counhouses have become places of vulnerability for lhe victims of family violence. Court personnel. including judges. attorneys. and witnesses, lhen become the next victims in the vicious violent cycle. Since court appearances are necessary for both the victims and the batterer. whether it is a civil or criminal malleI'. we are all See Page 38
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Executive Director's Report
What Motivates You? by William A. Martin mo-ti-vale (roo' te-vfit') tr.v. To stimulate to action; provide with an incentive or motive; impel; incite. American Heritage DicriOlully. What motivates you? Why did yOll go to Jaw school? How do yOll define success? What do your clients think 11100ivates you? What do your peers believe motivates you? Your answers to the first three questions say a 10l about who and what you arc. The answers to the last two say a lot
about how you behave-the face you present
10
the world.
Most of us had lofty ideals when we embarked on a legal career and our definition of success involved something more attuned to helping people and doing good for society than mere acquisition of wealth. From Lime to time we need to lake inventory of our altitudes, beliefs, goals and behavior. Have we held on to our ideals? Do we like what we see, and if not. what are we going lO do about it? Abraham Maslow's hierarchy of needs gives us a framework for thought. Variously defined these needs can be stated as: need for physical survival; need for safety and security: need for belongingness; need for friendship and love; need for respect, esteem and dignity; need for self-esteem and feelings of worth; and need for self actualization which is being the best we can be. Until the first of these needs are met a person cannot be mmivated to any great extent by needs further along the hierarchy. In the context of a law practice we have to earn enough to keep the door open and to satisfy the needs to buy food. Clothing and sheller for ourselves and our family before we can ever pay much attention and be inspired by wha! we might consider the more lony needs. Hence. while law is a profession-and we betray our calling if we forget that it is a profession that demands our beSl efforts-wc cannot ignore that we must operate a law praclice with due consideration for sound business principles. In lhis day of the tyranny of the billable hour and conspicuous consumption there is a danger that in practicing law we never get beyond the motivator of securing a good income to meel our needs for safcty and securily. We act for all the world 10 see as if we consider money more important than anything else. The rccent American Bar Association Hart survey tells us 59% of the public believes lawyers are greedy. The Washington State Bar just did a study of new lawyers in which the majority said they became lawyers to open up career options. help people and do challenging work. Only 17% admitted to money being their motivating factor. but 80% of them belicved money was the main factor for their fellow graduates going to law school. At our 1989 Mid Year Meeting 71 % of our lawyers responding to a sur路 vey there said they consider lawyers to be greedy. The gulf between what we want to believe drives us and 6
The Arkansas L,l\vyer
Winter 1996
what clients and the public feel is our main motivator is a factor contributing to the poor image people in general have of lawyers even the image lawyers have of mher lawyers. If we do not gel beyond money as our primary motivator our quality of life suffers. our relationships with our friends and family deteriorate. we are dissatisfied, we ask ourselves, "Is that all lhere is?" and many of us begin to question our choice of law as our calling. We want to believe thaI we are lawyers because of the good we can do-the help we can provide. The If we do not go motivators are the respect and beyond money as our esteem we can gain. the feeling of primary motivator, self worth. The ultimate is self-actualization-knowing we have develour quality of life oped our abilities to the maximum suffers...and many reasonable extent and are usi ng them for good. Now there is nothing of us begin to wrong with using these legal talents question our choice of zealously on behalf our clients (and law as our calling. indeed we should do so) and being well rewarded as long as what we do is fair, honest. proper. honorable, responsible, just. compassionate and a host of other similar terms we know we would like others to apply to us. In Maslow's writings in The Farther Reaches of Human Nalllre (from the early seventies when he used masculine pronouns to refer to everyone) he says: ''The self-aclUalized persoll is in a Slate of good psychological health; his bnsic needs are satisfied so what is it that motivates him to become such a busy and capable person? For one thing, all self路actualized people have::1 cause they believe in, a vocation they are devoted to. When they say 'my work.' they mean their mission ill life. If you ask a self actualized lawyer why he entered the field of law, what compensates for all the routine and trivia. he will eventually say something like, ;Well. I just get mad when I see somebody taking advantage of somebody else. It isn't fair.' Fairness to him is an ultimate value: he can'ttell you why he values fairness any more than an artist can tell you why he values beauty. Self-actualizing people. in other words. seem to do what they do for the sake of ultimate. final values. which is for the sake of principles which seem illlrillsically worrhwhile. They protect and love these values and if the values are threatened. they will be aroused to indignation. action. and often self-sacrifice. These values are not abstract to the self-<.Ictualizing person: They are as much a part of them as their bones and arteries."
Law Office Technology
Speedtraps, Roadblocks, and Sobriety Checks on the Information Superhighway by Mac Norroll E-Mail, the InterneL, the World Wide Web. all Lhat stuff: It seems Lo be the new threshold in law office technology. now that we've all
got
computers.
Everybody's doin' il or Ihey soon will be. or will Ihey. afler all? And should Ihey. al all? As the only practicing lawyer on the Clinton Administration's alional
constitute "public media advenising" under the applicable Texas rule and
should be submiued for screening by Ihe
mail, which not only enables targeted one-to-many communication, but suppons one-to-one messaging as well. Ironically, in contrast to the above con-
committee. Since any home page. anywhere. wonh a point-and-c1ick is going to
cern Ihal webpages may be slifled by
be accessible in Texas. does the Lone Star
quiltwork regulation. e-mail might actual-
Bar intend to regulale every legal page on
ly need a lillie self-stifling. While few among us would feel comfortable sending
the Web? Surely not. since the Texas rules only apply to lawyers licensed in Texas and to
any sort of unencrypted communication
Infonnation Infrastructure Advisory
Council, I may have had a lillie more
legal work performed there. ThaI's nol an
over the Internet. internal e-mail. espe-
time and a few more occasions than most lawyers to think over some of the implications of the "Information
easy answer. however, because there are a lot of lawyers licensed in Texas practicing mostly. but not necessarily exclusively. elsewhere. There are also several large firms with offices in one or more Texas cities but with principal offices in cities in other states. In these instances can the
cially corporale e-mail. prompts unusual-
Superhighway" for life in the law as we know
it.
Not Ihm I've come to any con-
clusions, but I think I may have spotted some issues along the Info-Bahn that might be of interest to readers of this column. More and morc law firms are starting
homepages on Ihe World Wide Web. Approaches are variable. ranging from
simple "billboard" IYpe displays with some vilal statistics. to multiple point-and click siles relatively rich in content. (0 some pages of truly large firms that have
already spun off sub-pages for specialty practice areas. No matter how much substance a firm's homcpage contains, however, they all embody some element of lawyer advertising. Enter regulation. Lawyer advenising enjoys Firsr Amendment protection, of course, but as "commercial" speech it's arguably nm as protected as anonymous
leaflets in political campaigns. I wre Lucy reruns, or naked pictures. Indeed. lawyer advertising is slill regarded by many lawyers as distasteful per se and fraught wim risk of abuse. if not down-
righl sleazy and dangerous to the public. Down in Texas. the State Bar has a committee, wielding the authority of that state's rules on professional conduct. to preview lawyer advertising. A little while ago the committee deciclecl that webpages
Texas tail wag Ihe dog? Can Texas prescreen communications intended for national or internalional access? Is there an interstate commerce problem here (leaving aside the First Amendment, which the rules survived in the District Coun. Texans Against Censorship v. Slate
Bar of Texas. F. Supp. 1328 (E.D. Texas I995Âť? This extra-territoriality issue is not confined to lawyers. The Minnesota Attorney
General recently posted a "WARNING TO ALL INTERNET USERS AND PROVIDERS" proclaiming that persons who put information on the' et with knowledge that it will reach Minnesota
"ARE SUBJECT TO JURISDICTIO I MINNESOTA CO RTS" criminally and civilly. (See:hltp:/Iwww.slate.mn.uslebranchlag! memo.txl). You can probably gel there from here. 100. see Ark. Code Ann. § 5-1104. So. does one have 10 do a 50-slaleand-DC search of criminal codes before posling anything to cyberspace? Does every state have a nationwide veto over content on the Nil? Is the Internet not yet
ready for bingo? Leaving aside wcbpages. consider e-
beyond "Let's have lunch" to a c1ienl
ly frank exchanges "in the clear," so to
speak. It also records them. And Slores them.
So whal? So Ihink Rule 34, Produclion of Documents, where "documents" includes nm only writings and photos but "other data compilations from which information can be obtained." The potential bonanza here lies in the fact mat on
mOSI e-mail sy tems, "Delete" doesn't really mean "delete" or "trash" or "kill" or any of the other names it may go under. It signifies only that the information in question disappears from your screen. All too often, that information "deleted" last week or last month or even last summer did not go down the cyberspace equivalent of the sewer or into lhe silicon shredder. It went to a disk.
instead. and very well may live there slill. Remember, after all. computers are
sllpposed 10 keep Sluff. That's what we told them- and the people who administer them- we wanted them to do. and they'll pretty much keep on doing it until we tell them to stop. and even then they don't always take us seriously, at least not at first. As much as a design thing. it's a
culture thing in cyberland: backup = good: no backup scary.
=
As a result. to borrow a phrase, there
could be a lot of smoking guns among those spinning disks. And unfortunately, while in theory we should be even more confidentiality-conscious, there's not a lot 7
The Arkansas Lawyer
Winter 1996
of reason to believe that typical law firm networks are much better protected. While hacking many computers is a federal crime (see 18 u.s.c. § 1030. et seq.: 18 u.s.c. § 270 I), the fact that auto theft is illegal is no excuse for leaving your car unlocked. The administration of any computer network should include a system of standards for creating. storing, and retrieving information, and a set of criteria for its destruction; and any system that provides dial-up access (say, for work-athome), and certainly any system connected to the Internet. should have a reliable, centrally-managed ecurity system including frequently changed passwords and a firewall ( ort of a locked ·'gate·· between your system and unknown callers). As lawyers, with both a tradition and an obligation of confidentiality. we should be ahead of our clients in these matters. This costs money, which brings to mind another subject related to all this marvelous technology: Productivity. Most lawyers are well aware that the costeffectiveness of computerized legal research is variable - not only from case to case, but from lawyer to lawyer. Many of liS are also aware that some clients deem Westlaw/Lexis a library cost like any other and don't like to pay us for using it, and perhaps even have the attitude renected in only semi-nip style by Clifford Stohl: Lawyers - think of the troubles that computers have brought to their offices. Since it's easy to collect citations from on-line services. attorneys build legal reports by copying and pasting text- not really creative work. but a great way to slow down the system. The result is a long brief-a most expensive oxymoron, since another lawyer will eventually have to read all those words. Stohl. Silicon Snake Oil 103 (1995). Few of us at all, however. seem to question the notion that computer networking generally enhances productivity. Perhaps we should. Litigation support software such as Summation can make impeachment by prior inconsistent statements an easier process for the lawyer. but all those millions of words in those prior documents have to be converted somehow to billions of bits and bytes, and even with the best scanners that's not an effort that many cases can yet justify. 8
The Arkansas Lawyer
Winter 1996
Moreover, while it's amusing to see so many fony-something lawyers rediscovering long-lost typing skills, composing pleadings and briefs at the WordPerfect keyboard may not be the most cost-effective use of their time. More seriously. to the extent that lawyers do spend time on functions they formerly paid secretaries or associates to perfoml. a productivity increase will result only if output grows or payroll shrinks. For output to grow, staff personnel will likely have to be evolved into different tasks, a prospect whose challenge is only exceeded by the unpleasantness of laying people off. Sometimes. realization of the benefits of technology can require some painful decisions about cost reduction. It also requires some common sense: Are you buying that much less paper since you got e-mail? If not. why not? Could it be because computers, by making marc information more readily available in more convenient formats, actually stimulate the circulation of more paper around the office? Remember "the paperless office?" Frankly, I've yet to see any evidence that paper companies have anything to fear from computers. In addition, there is a tendency to overestimate the benefits of computer network technology by underestimating or overlooking its costs. From considerable observation and some experience in the last few years, rve formulated the general rule that any network consisting of more than two Macimoshes is going to require more people to keep it running than you thought it would. This means payroll. which means benefits and taxes, and often an increase in overhead as well. The '"backroom" and indirect costs of keeping even a moderately sophisticated network not only operating but up-to-dale in a fast-changing software environment. are sometimes easily missed or not fully accounted for in analyzing productivity impacts of computer technology in law practice. Finally, as the late Bob Lindsey used to ask young lawyers infatuated with computers at our firm: "When you get all this information, what are you going to do with itT That. of course. is a fundamental "productivity" inquiry that should be undertaken al the outset of any investment in or use of com pUler technology. The answer will often be a profound "I
don't know:' So, if it's weirdly regulated, indiscreet. insecure, and expensive, should lawyers stay away from cyberspace? No, as a practical matter, regardless of how much we bring it inlo our own offices. we can no more ignore this new medium than we were able to ignore the telephone or the television. Its impaci upon law office management and operations may be as great as the fanner or as slight as the latter. but its impact lIpon the practice of law. because of its impact upon society. will be as significant as thaI of both. Mac
onon mnonon@wlj.com
Partner in the finn of Wright. Lindsey & Jennings. with offices in Lillie Rock, Fayetteville. and Russellville. With the finn since 1983. he is chairman of its Commercial Litigation and Public Law Depanmenl. In 1994. Mr. Nonon was appointed to serve on the National Information Infrastructure Advisory Council. a federal advisory council created by the Clinton Administration to provide private sector input to government policies concerning the development of our information infrastructure resources. The Wright finn's homepagc can be found at http://www.wlj.com.
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AConversation With Phil Anderson ... Phil Anderson, a senior partner at Williams & Anderson in Little Rock, is a candidate for president-elect of the American Bar Association for the 1997-1998 term. Ifhe is nominated by the nominating committee in February of 1997, the American Bar Association's House of Delegates will vote in August 1997 whether to elect him to the position. I recently had the pleasure to sit and talk with Phil Anderson about his candidacy. The following is an excerpt from that conversation.
by Stacey DeWitt "Why did you decide to become a candidate for President-Elect?" It is an opportunity to make a difference. Anyone who is active in the enterprises of an organized bar, whether it is the local or national bar, can make a difference in the quality of justice for Americans. As President, I can give some direction to that process. Lawyers are traditionally leaders in their communities. Service is an important component of practicing law. My partners and clients have understood for a long time that full-time work as the President is a real possibility and they are very supportive.
"As President what goals would you like to accomplish?" I have three basic goals, increasing access to justice, improving the efficiency of the justice system, and, within the association, addressing the problems of declining mem-
bership.
路Access to Justice We must work (0 eradicate a perceived bias with regard to minorities and women that now exists within our justice system. Perception is reality as far as the perceiver is concerned. II is necessary for us to work to eradicate bias in the sys-
tem as quickly as possible. Barriers to the poor are of particular concern and those will be exacerbated by reduction of federal support for legal services to the poor. Most of the work in this area has been in domestic relations maners, battered wives. children and the like. Lack of federal support will mean more limited access.
The system is a trustworthy system. The average middle class individuals and families will get along very well. It is the lower economic end that suffers and is bewildered by lhe system. Local governments should be concerned, because denial of access can raise the level of discontent to a degree that can be very. very uncom-
fortable. The same quality of justice must be available for all.
路Efficiency of Justice There is a greal dissatisfaction wilh the lack of efficiency in the justice system and we should determine ways (0 be more efficient. Lawyers should be encouraged to work wilh the community at large. groups like lhe AARP, the League of Women Voters, and the NAACP, which are made up principally of non-lawyers with the same aspirations and goals as attorneys to find solutions (0 problems of inefficiency. If the issue of efficiency is not addressed, courts will become more clogged, civil litigation will take longer, and lawyers will be disinclined to seek judgeships because of the mean-spiritedness of the arena.
路Problems of Declining Membership One of the major issues inside the American Bar Association is the declining number of members. We have to look at what we offer and value it. One of the most valuable aspects of membership is the opportunity to serve and lhe opportunily (0 make a difference. Another major benefit is the opportunity to improve practice skills lhrough section membership. 9
The Arkansas Lawyer
Winter 1996
"How do we improve the image of Lawyers?" There is not enough money in the
world for a public relations campaign to eradicate a negative public image of lawyers. You can't advertise your way
out of it. Public perception will change when lawyers themselves pay more atten-
tion to clients and participate in morc community service lhan some of them are now doing. Public education in civics
will also go a long way. We are a litigious society that spawns lawyers. It is not that we have litigious lawyers who have turned us into a litigious society. The real core issues of society have not received
the kind of meaningful attention from the legislative and executive branches that they should have. Problems of schools.
racc. and olher social issues have oflen been left to the courts, When court resolution is not satisfactory it is easy to look at the instruments, those who bring issues into court, for criticism, Public education and service will change perception. Sound bites and 30 second SPOIS will not.
Davis, Cox & Wright PLC Attorneys at Law is pleased to announce that Mark. W. Dossett and David L. McCune have associated with the Firm in its Litigation and General Practice; and that Philip H. Fincher (LL.M. in Estate Planning) has associated with the Firm in it Corporate, Tax and Estate Planning Practice. Sidney P. Davis, Jr.' Don A. Taylor Walter B. Cox' Paul H. Taylor TIlden P. Wright [lJ' John G. Trice Constance G. Clark Laura J. Andress Wm. Jackson Butt II Mark W. Dossett (LL.M. Taxation) David L. McCune TIm E. Howell Philip H. Fincher Kelly Carithers (LL.M. Estate Planning) 'Fellow, American College of Trial Lawyers 19 E. Mountain Street, Fayetteville, Arkansas 72701 (501) 521-7600
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10
The Arkansas Lawyer
Winter 1996
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A Great Start For 3-Point Attack
The Three-Point Attack project, sponsored by the Arkansas Bar Associmiol1 for the benefit of the Alnerican Cancer
Society for 1994-1995. was quite successful. Approximately $45.000 was
Three-Point Attack with Ihe Lady
raised for the Arkansas Division of the American Cancer Society by pledges obtained from individuals. law firms and
corporations Ihroughoutlhe state for every three-point shm made by the
Arkansas Razorbaeks or the ALR Trojans. The members of the Arkansas Bar Association contributed morc than
530.000 of the IOta I. While less than ten percent of the members of the Arkansas Bar Association participated in the project. Arkansas was the leading state
among the first year Three-Point Allack stales and was second only to Missouri in overall pledges collected. This year is even morc promising.
its pregame shows and has also agreed to run certain public service announcements regarding the Three-Point Attack. A Fort Smith television station will publicize the
at
Razorbacks. Another lillIe Rock station will publicize the project with the Trojans and a Jonesboro station with the Indians. Several special events are also planned. We are currently obtaining corporate sponsors. and certain corporations are underwriting incentive projects like the presentation of a round-trip for two to the SEC tournament determined by random drawing among those who participate in the Three-Point Attack. We will also give away basketballs with team autographs.
Reeently. a Three-Point Attack workshop was held by the American Cancer Society in Kansas City. Missouri. where I was invited to speak on the subject of
only are the RaLOrbacks and Trojans par-
pledge solicitations. The persons allend-
ticipating. but we also have on board the
ing the workshop were stafr members of the American Cancer Society and volunteers. Many of the attendees were just
Lady Razorbacks and the ASU Indians. The publicity associated with this project will be much stronger than it was last year. We have received a commitmcm
from KATV. Channel 7. in Lillie Rock to air several public service announcements during the weeks of basketball games.
The Arkansas Razorback Sports Network. whieh broadeasts the Razorback basketball games through 88 radio stations throughout the state, has agreed to publi-
cize the Three-Point Attack project during
starting the Three-Point Attack project. In no other state did a bar association act as a sponsor of the project. Those in attendance were impressed with the fact that our bar association exhibited such a commitment to this wOl1hwhile project.
The suceess of the projeci is direetly attributable to the bcnevolence and philanthropic altitude of our members, but it is also aLlributable to the hard work and
dedication of our past president, Bob Jones. Fortunately, Carolyn Witherspoon
is equally devoted to the continued success of this project. and. this year, the Arkansas Division of the American Cancer Socicty has dedicated more staff participation to the project and has organized a structure of volunteers throughout the state to solicit members of other professions. civic organizations and corporate sponsors. We hope to collect in
excess of $1 00,000 in pledges by the conclusion of this basketball season. but 10 do so we must have strong support from
the bar. We are very optimistic about the
prospects for the Three-Point Attack for the coming year. The American Cancer Society has recognized Arkansas as a
leading division of the Three-Poinl Altack and has. on numerous occasions. shown its appreciation for the involvement of the Arkansas Bar Association. The positive exposure the Arkansas Bar Association receives from its participation in the Three-Poinl Attack is continuous and will increase as the prominence
of the Three-Point Allack as a fund-raising project for the American Cancer
Society develops. More importanl. the funds received lhrough the Three-Point
Attack are dedicated to the worthwhile goal of eradicating cancer.
See Page 41 II
The Arkansas Lawyer
Winter 1996
A JP eeJrยง]peecetivee thee
Recent editorials and letters 10 the editor suggest that our legal system is "broke and needs fixin"'" I don"' think so! It is true that public opinion polls report a decline in the level of trust and respect which citizens have in our system of justice. While one might argue that this decline is a direct result of the OJ. Simpson trial or an indirect result of the
public's displeasure with other institutions of government, it is very important thai the judicial system and, specifically, the members of bench and bar, take note
]B), .]fadk 'VV. IllIolt, .]fIr. eh;.,f J'lllst;ce (Re{;ll'ed) :rikansas S'llllPll'ernte
lHJlIl'(
Photographs from On The Courthouse Square In Arkansas by John Purifoy Gill & Marjem Jackson Gill
12
The Arkansas Lawyer
Winter 1996
of the public's feelings and respond appropriately. We are fortunate that 0.1. Simpson is gone from the Los Angeles Criminal Courts Building and, for lhe most part, from the television sets in our living rooms. However, the courtroom scenes and the antics of lawyers both in and out of court during the course of the trial raised legitimate concerns about our criminal justice system which, at times, appears to base its results not on findings of fact and propositions of law, but upon unrelated mailers such as claims of race and prejudice. We are blessed that in Arkansas and in a majority of states, the judicial system serves its people well. We, as members of the bench and bar, do not view the courtroom as a stage for live plays or a platform for sending out messages; nor do our lawyers gather on the courthouse steps for daily commentaries during trial. Rather, our lawyers continue to show due respect for the courts and our juries are, in the main. concerned about the fair and impartial administration of justice and respond accordingly. GralHed. from lime to time we have an erranl judge, a mischievous lawyer or a jury verdict which is suspeCI. Still we should be proud of the quality of work which has been accomplished by Arkansas judges. lawyers, and court employees. in spite of the problems of large caseloads. minimal support staff in some areas. and funding shortages. Our citizens continue to bring their disputes to our stale courts for resolution in record numbers. In the past year more than one million cases were filed in aliI' local, trial, and appellate courts. In response to these growing demands on our judicial system we have. during the past decade. enacted many changes in court procedures. reorganized our adlllill-
istrative structures and integrated new technologies into our system. For example. we have greatly expanded the civil jurisdiction of the municipal courts. thus providing a forum for minor disputes and claims in an expeditious manner while lessening the caseload on the trial courts. Our juvenile justice system has been completely overhauled by removing jurisdiction from the county courts to the trial court level. A system of disciplining errant judges is now in place. At the time of the system's enactment. Arkansas was the only state in the union with no formal process for bringing complainlS against the judiciary. Recently. we have opened a pilot program known as the ST.E.P. (Supervised Treatment and Education Program) Court. The court is a comprehensive, inter-agency project involving various courts. treatment providers and public health agencies at the local. state and federal levels. The court enhances our judicial and public health systems by diverting non-violent. drug addicted defendants charged with felonies in the early stages of the court process into a successful Irearment program. All trial judges in the state now have access to LOIS CD ROM-based legal research materials, complete with on-line access for updating its software. In addition, several other automation projects are tnking place at the limited jurisdiction. trial and appellate court levels as part of an ongoing effort to build a statewide court automation system. A... a part of this effort. the Supreme Court has continued the work of the Supreme Court Forms Committee to standardize the information gathered from all of the courts in the state. Judges have worked with the Governor and members of the General Assembly in restructuring our criminal justice system with the adoption of bifurcated trials. the use of a sentencing grid, and the development "truth-ill-sentencing" legislation. These changes. along with the addition of more sentencing options. have increased the level of public support of the system. Mosl recently. an Alternate Dispute Resolutions Commission was formed to promote and encourage implcmel1lation of the use of ADR. both inside and outside of the court system. Other projects are ongoing. too numerous to mention. While the problems facing our state and nation's courts grow evermore challcng14
The Arkan:.a~ Lawyer
Winter 1996
ing, we must continue to be sensitive and prepared to respond to the public's feelings. At the same time. we should celebrate the enormous improvements which have taken place and the overall soundness of our judicial system. Chief Justice Bradley Jesson, in conclutling his acceptance speech on the 5th of September 1995. opined: "There is no lime in history \\.hen the judiciul system in general and judges in particular hU"c been under more scrutiny than we arc today. The public is showing more interest in "hal judges do than the) have evcr done. It is up to us as judges (0 meet the expectations of the public whether the public agrees with us or not and (0 do what this court has said on so many occasions: Justice not only needs to be fair, it must appear 10 be fair:'
While our present judicial system is sound and we cOlltinue with programs of improvement. quite often these good works go unnoticed by the public. In
many ways, our "third branch" of government is hidden from public view. It is easy, therefore. for Arkansas citizens to assume that what they read about O.1"s trial is somehow relevam lO our judicial system. The best way to dispel this sentiment is for Arkansas lawyers and members of the judiciary to work together by adhering to our rules of professional and judicial conduct in both word and deed. while being ever mindful of the oath we took upon being admitted (0 practice "to uphold the ethical standards of our profession and the precepts of fair play'" In addition. we should continue to search out those aspecls of our system which arc in need of improvement or revision and bring about needed change. We should also stand up and celebrate the things which we do well and of which we should be proud. In this way. both our system and the public's perception of it will be improved.
Arkansas Bar Association Calendar of Events MID·YEAR MEETI G Date: January 25-26, 1996 Location: Peabody Hotel, Memphis House of Delegates Meeting, January 27,1996
Elect
Lamar Pettus
5TH DISTRICT TRIAL PRACTICE Date: February 2, 1996 Location: SAU, Magnolia
FAMILY LAW Date: February 9,1996 Location: Best Western lnntowne, Little Rock
NATURAL RESOURCES LAW I STITUTE Date: February 22-24, 1996 Location: Arlington Hotel, Hot Springs
Chief Justice Arkansas Supreme Court A Voice for the People
TRIAL PRACTICE Date: February 29-March 1, 1996 Localion: Lake Hamilton Resort, Hot Springs
............. e--rt
~t.-'>.
- . . e>w_
APPELLATE ADVOCACY Date: March 29, 1996 Localion: Little Rock
CRIMINAL LAW Date: April 9-10, 1996 Location: Arlington Hotel, Hot Springs
DOMESTIC VIOLE CE CO FERE CE Date: April 11-12, 1996 Location: Litlle Rock Hilton
A
UALMEETI G
Date: June 12-15, 1996 Location: Arlington Hotel, Hot Springs
_
e.o..., PO
1:lt
17m
The
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The Arkans'ls Lawyer
Winter 1996
JB ' Robert L, Brown, ssocill(e JIUIs(ice tn路l,/msas SlUIjpreme
olUlrt
The lime has come for Arkansas to do away with party labels in its election of judges. The justification for this seems clear.
The Arkansas Code of Judicial Conduct has as its paramount objective a judiciary composed of independent and impanial judges. Canun 2 specifically reads that judges must nol permit political relationships 10 influence
judicial conducl or judgment. When judges run as partisans and win. litigants of a differenl polilical stripe queslion lheir ability to receive a fair shake in those tribunals when
the issue presented has political ramifica(ions. The appearance of special interest judges is ample reason to implement the change. Certainly the judges in this State are willing. On (wo occasions in recent years.
the Arkansas Judicial Council. which is made up of lhe Slale's 105 trial judges and 13 appellate judges, has voted overwhelmingly (0 convert to nonpartisan elections. Cases which touch on overt partisan politics are infrequent in the Arkansas Supreme Court but far from rarc. For example. in 1992 thc issue before the Court was the succession to the office of Governor, following then Governor Bill Clinlon's resignation in anticipation of his inauguration as President
of the United States. BOlh the State 16
The Arkansas Lawyer
Winter 1996
Republican Party and the Statc Democratic Pany were panics to the law-
suit. Our Court held that the Lieutenant Governor of the State. Jim Guy Tucker. a Democrat, should succeed to the Office
of Governor. The State Republican Party opposed this and argued for a special election. The decision was that the Arkansas Constitution authorized the Lieutenant Governor to succeed to the office of Governor.' All seven members of
the Court. including myself. had stood for election as members of the Democratic
Party. The appearance of a skewed agenda, though not present in reality. was palpable. In 1994. the Arkansas Supreme Court decided a case concerning whether the Republican Party could remove its own nominee for Attorney General. Dan Ivy.
from the ballot for "good and legal cause:' By a 4 to 3 vote, the Court held that the party could not.' Again, a political issue was the principal component of a suit presented to a court composed of
justiccs of a different political party. In a similar political vein. in 1994 the
Supreme Court decided a case where the issue was whether a candidate for Governor from the Independent Party of Arkansas qualified as a candidate for the
General Election. We held that the candidate did nor qualify as a candidate for Governor in the General Election because there had been no party primary.' Two years earlier in 1992. all members of the Supreme Coun recused. for varying reasons. in a case which involved the appointment of a Republican member of
the State Ethics Commission by then Chief Justice Holt.' Again. the members of the Coun at that time. including
myself. had all run for positions on the Court as nominees of the Democratic Party. In addition to these examples. election disputes and contests between candidates of disparate political persuasions are constant fodder for litigation in our
trial and appellate courts. These cases
bring home the point. The appearance of cooniets looms large so long as partisan
elections hold sway. The popular election of judges. however, continues to be the method of selecting judges which is cminemly preferable. Merit selection. or the Missouri Plan, requiring appOil1ll11Cllt of judges by the Governor simply substitutes a different brand of politics and one that is not as 17
The Arkansas Lawyer
Winter 1996
open and subject to scrutiny as popular elections. By the same token. we long ago made the policy decision in this State and throughout the country lhat proce路 dures be put in place to "depoliticize' election campaigns by judicial candidares to safeguard the independence and impar路 tiality of the winners. To lhat end. Canon 5 of the Arkansas Code of Judicia! Conducl provides the mechanisms for insulating judicial candidates from excessive political involvemem - mechanisms like time limits on fundraising. establishmem of committees to raise money. prohibition againsl solicitation of public suppon or money by judicial candidates. and preclusion from announcing views on
18
The
Arkall~as
Lawyer
Winter 1996
legal or political issues thal might come before judges post-election. By eliminating partisan campaigns. another step is laken toward that goal of depoliticizing judicial elections. ot only do pany labels go by the boards with the attendant suspicion aboul entanglements and agendas, but dual elections may no longer be necessary. Though the matter is up in the air and one for the General Assembly to resolve. judges may only be required to run in the General Election and. thus. avoid two campaigns which primary elections would require. So what does the future hold on this issue? We do have some indication of the altitude of the General Assembly because
of bills introduced in the 1993 and 1995 Regular Sessions. In 1993, a bill providing for nonpartisan elections of judicial candidates and runoffs for lhe two candidates with the highest number of votes was introduced in the House of Representati ve~. It never gal Oul of commillee. In 1995. though. members of the General Assembly were much more receptive to the idea. A Senate Judiciary Commillee bill authorized independent elections with those elections to be held at the time of the preferemial primaries and run-oITs to be conducted at the time of the General Election. This bill passed the Senate by a substantial margin but then languished in the House State Agencies Committee. It never was voted out of committee and. thus. died a natural death at the end of the session. Despite this failure, during the 1995 session one of the greatest obstacles to doing away with party labels was eliminated. Act 901 of 1995 was enacted. which authorized state funding for primary elections and, thereby. removed the need for filing fees which had been a foremost concern of the political parties. Tradilionally, filing fees paid by judicial candidates, and the appellate judges in particular. were among the highest assessed by the Stale Democratic Party. The chance of the General Assembly's enacting legislation for the nonpanisan election of judges now appears to be excellent. If we agree llwl lhe goal of any Democracy is to have the largest number of people vote in a given election. procedures to insure a large voter tumOUI for judicial elections then becomes the issue. Sludies indicate that special elections dedicated to the selection of judges apart from pany primaries and the General Election would undoubtedly allract lillie attention and a disappointing tumoul.~ Studies funher show that there is slippage in the number of votes cast between voters in panisan elections and those who vote in nonpartisnn elections./> BUI slating judicial elections on a biennial basis to correspond with elections of .5. Representatives as well as local elections and election of constitutional officers (every fourth year) should obviate low voter parlicipaliol1 to a great extent. General Elections typically boast a larger voter turnout than the combined VOle ~Il the primaries. 7
At the present lime. Arkansas is one of only twelve states thai select all or nearly all of their judges by partisan election. Prior to the Civil War. with Jacksonian democracy in full nower. this
was the choice for the vasl majority of states. In the aftermath of the Civil War. and by the turn of the century. nonpartisan elections in many slales had come into vogue as part of the Progressive Movement and were touted as a means of eliminat-
ing control of judges by party bosses. But in the minds of some. this reform was unsatisfactory because political party leaders
still selected judicial candidates behind the scenes. and the public was not privy 10 the party affiliation of the candidates. In the twenties and thirties, a clamor for a Commission plan began to be heard where a nonpartisan commission would sub-
mit the names of three to five judicial candidates to the Governor who would then make the selection. After a probationary period. the judge would stand unopposed for retention
by the electorate. In 1940, the State of Missouri adopted a commission plan and the Missouri Plan has since become synonymous with commission plans and merit selection of judges. Seventeen states today use nominating commissions to present a
list of candidates for all or nearly all judgeships initially for gubernatorial appointment.· Fourteen states have nonpartisan elections to select all or nearly all of their judges initially.'o
Party boss control of judges is not an issue today in Arkansas.
take away from the voter a cue for how to vote but that loss of information is more than offset by the necessity that Our judicia-
ry appear to be absolutely impartial. £NDNOT£S I. Br\"all/ 1'. £lIg/ish, 311 Ark. 187.843 S.W.2d 308 (1992). 2. Ivy I'. Repllblicall Party. 318 Ark. 50. 883 S. W2d 805 (1994). 3. Lell'is I'. West, 318 Ark. 334, 885 S.W2d 663 (1994). 4. Sprad/ill 1'. Arkallsas Ethics Comm·lI. 310 Ark. 458. 837 S. W.2d 463 (1992). 5. Dllbois. From Bal/o! to Belich. p. 36 e! seq. (Univ. of Texas Press 1980).
6.ld. 7. For example. in 1990 vOler turnout at the General Election for the elections of Governor and Lieutenant Governor substantially exceeded the combined vote at the primaries for those positions. 8. Alabama. Arkansas. Illinois. Indiana. Louisiana. Mississippi. New York. orth Carolina. Pennsylvania. Tennessee. Texas. West Virginia.
9. Alaska. Arizona, Colorado. Connecticut. Delaware. District of Columbia, Hawaii, Iowa. Kansas, Maryland, Massachusens, Missouri. ebraska, ew Mexico. Utah. Vennont. Wyoming.
However. the perception of a slant toward a particular political point of view lingers so long as judges must run under party
10. California, Florida. Georgia. Idaho. Kentucky. Michigan, Minnesota, Montana. Nevada. orth Dakota. Ohio. Oregon.
labels.
Washington, Wisconsin.
ot knowing a judicial candidates political party may
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The Charging Decisions The C,路itieal Fi,路st I;ew Minutes in the Lire or a C,"iminal Case
by Ron Fields 搂
)
Photography by Gary Speed
OUf society tends to concentrate on the "bolLom linc", The criminal justice sys-
tem has not escaped this type of focusing. with the most intense interest being given to the final decision in a case. neglecting all of the eritical factors that led up 10 that decision. Perhaps no one factor is overlooked more and with less justification than the charging decision. Prosecutors face charging decisions by the dozens on any typical day. The bulk of these are handled by "orrice policy"' or whalCvcr tCfm is used for tradition in a particular office. The remainder of the cases. typically those "tip of the iceberg"' 10
The Arkan ..a'l L<twycr
Winter 1996
high profile cases and other serious offenses. are handled individually. but one cannot overlook the traditional charging policies of the office even in these instances. Office policies are basically driven by two faclOrs. the "'tone" that the Prosecutor wishes to set for his office and the result thal the Prosecutor wishes (0 achieve in an individual case. Balancing these two, at times conflicting interests, is where the rub comes in. The churging decision does in fact affect the "tone" or image of the office as much as the results, in many cases. Want to appear "lOugh" on rape? Charging
rape in each and every allegation of sexual abuse may sound like a get tough policy, but if you lock yourself inro a charge that you're later going to have to reduce or even nolle pros, suddenly you have gone from appearing to have no tolerance for sexual offenders (0 being incredibly soft on these types of offenses. When should you make a common detached decision about what a particular offender and set of circumstances deserves? My advice would be 10 do it 011 the front end of the case and coordinate the charoino o 0 decision with \Vha! you want to have happen at the end of the case and the disposition.
imilarly. at times changing circumstances must cause temporary deviations in the "tone" or office policies that the Prosecutor sels. For example. our office has always Lreated first and even second offense breaking or enterings into vehi-
c1cs as a probation offcnsc. By and largc this policy works wcll for our jurisdiction. Unfortunately. we have gone through sporadic episodes where offenders openly advel1ise this policy among themselves and the number of offenses
gcts totally out-of-hand. In thosc cascs. we temporarily adjust our policy and sentence several of the next offenders to incarceration. I regret that this sometimes has to happen. but it has a tremendous effect on the number of crimes com-
millcd. Thc word quickly gets out and we immediately have break-ins drop dras-
tically. Although it would seem a simplistic situation to continuc this harsh policy at all times and hopefully have thcsc offenses completely disappear. we have found that this is impossible. We are also very cognizant of the fact that if we send every breaking or entering case to the Penitentiary. not only do we run a very
rcal risk of making what could well be salvageable first offenders non-salvageable career criminals. but we also congest the Penitentiary and the bottom line is our rapists. robbers and other serious offenders tend to get out quicker to make room
for these types of offenses. Still. the
illustration is sound in that temporary changes of policies can work wonders for a local prosecutor if they are judiciously used. In these cases. we attempt to separate the "first offenders" from the "first time caught"路 multiple offenders. The charging decision is made easier
(or perhaps more difficult?) by implied or absolute guidelines set forth by the Legislature. A Prosecutor is assisted in making a routine decision in a theft case by looking at the value of the loss. Under
$500.00 (yes, Virginia, the amount has changed) is a misdemeanor. over $500.00 is a felony. Still. there are some exceptions to any rule. For example. the Legislature recognizes that rather than setting a hard and fast rule in concrete that it may be that a continuing scheme exists and the Prosecutor can aggragate
certain types of theft cases that would normally be misdemeanors standing alone
and file a felony charge. By and large. however, the monetary guidelines set forth by the Legislature are of great assistance in determining an initial charge in routine property crimes.
No one should belillie the idea of an office "policy" in charging decisions. In many instances it helps to smooth out the rough spots in our judicial system and
prevents bias. prejudice. and other deletrious factors from being interjected. By setting forth a policy, whether written or unwritten. the Prosecutor is setting
forth guidelines that will ensure that consistency is achieved in the charging process. It is this consistency in charging
across the entire spectrum of Dcfcndants that can greatly add to the credibility of a Prosecutor's Office. not to mention withstanding Federal and ethical scrtltiny over improper motives in charging. Even in routine cases that appear to
clearly fall within a set policy. the policies must be reviewed periodically. The decision seems basic. determining whether or not the case should fall within the policy. but the implications are deep.
Every case filed under an existing policy is an affinnance that the policy is still appropriate and correct. As mentioned above with the breaking or entering
cases. periodically all policies
mUSl
be
reviewed and sometimes adjusted tem-
porarily or permanently. Exceptions can always be made for the "individual" cases. with the recognition that these exceptions must be clearly
delineated. Policy decisions should apply in those instances where at least 80 to 90% of the cases fall within the broad policy. Although exceptions will be made in any policy. exceptions by their very definition should be kept as small as possible. Once the exceptions get to the point that they are approaching 30 to 40'k of the cases. the policy should no longer be considered a policy. Large amounts of exceptions will easily lend themselves to
搂
I 21
The Arkansas Lawyer
Winler 1996
charges of bias, prejudice and other problems unless the ProsecuLOr can very care-
fully point out why the "individual" nature of the cases are so numerous in
these types of mailers. Routine types of crimes such as thens. overdran~. breaking or entering. and the
lower classifications lend themselves easily to a "policy" system of charging.
However. just when it seems lhar it is so ordered that you can do it as easily as falling off a log. the "individual case" concept starts creeping in. Prosecutors can "designer charge" depending on what the goal is in any gi ven case with any given Defendant. umerous concerns will face the
Prosecutor in charging. Possible categories of decisions are: I. Multiple counts versus single count. 2. Juvenile versus adult. 3. Targeting a disposition allowing special lrcaUnent programs. 4. Using the sentencing grid as a guide to potential dispositions. 5. Overcharging versus undercharging. 6. Targeting a specific offense. Multiple counts is a sword the Prosecutor can use that may well cut both ways. A facl of life is lhaL many offenders commit many offenses for each arrest. The Prosecutor may choose to hammer lhis particular offender and charge him with everything committed. This sounds like a good get tough type of stance to take on a multiple offender. However. the Prosecutor needs to recall he will look very soft if he later reduces or dismisses a number of counts. There have been instances where Prosecutors have literally chargcd Defendants with hundreds of counts and turned around and "olle prossfll hundreds of counts in the same case. I believe a good solid approach to the case is to recognize exactly where you want to end up and then make certain that you charge accordingly. Nom13l1y. our jurisdiction docs not charge more than four or five counts on any given Defendant unless there is some overwhelming reason to do so. Charging three or four counts does a couple of wonderful things from the Prosecutor's perspective. (A) It allows virtually any Penitentiary sentence the Prosecutor wishes to be reached by consecutive 22
The Ark.an . . a... L:I\\'yer
Winler 1996
sentences if this is an appropriate case for a long Penitentiary sentence. (B) It makes the Defendant a habitual criminal so that in the event that the Prosecutor does not attempt to "max out'路 the Defendant, and give him a break. the offender knows that the next time he is arrested for anything he is a "super habitual" and can really be slam dunked. One particular problem that I have with numerous multiple counts is giving concurrel1l sel1lences for many offenses. I think that we send a message to our criminals that once you commit the first offense yOll might as well commit several. For that reason. if we are going to do a large number of multiple counts. we always attempt to have some counts run consecutively. The juvenile laws have been amended to allow certain particularly violent juveniles to be charges as adulls. if they commit certain offenses. A thorough research of the juvenile's record and the prognosis
for his behavior if left in Juvenile Court is something lhat the Prosecutor should do before filing adult charges. Although our office attempts to file most juveniles in Juvenile Court (I believe over the years we have hovered right around the 5% rate of transferring juveniles to adult court). there are those juveniles who. for whatever reason. clearly should go to adull court. Make certain that if the defendant is in one of those magic egg groups (a 14 or 15 year old) thaL you charge an offense that can. in fact. he handled in 3dult court if that is what you wish. The Prosecutor may wish to target a specific disposition allowing special treatment programs. This is becoming increasingly important as the State of Arkansas auempts to provide more alternative sanctions in sen路 tencing. The charging decisions may be one of the l11os1 critical factors in determining what actually results from the case. For example. if you charge a certain
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way (such as an armed robbery) then certain potentially benelicial rehabilitative measures sel into place by the Legislature may be precluded (you have lost your chance of sending a person to the "Soot Camp Program"). This program is an ideal one for young offenders. particularly first or second offenders who have committed a serious enough offense that probation is not a plausible disposition, and yet rehabilitation and prevention of future offenses by this Defendant is still the key choice for disposition. The pendulum can swing the other way. I have pled many sex cases where I wanted the Defendant to go through the excellent Sex Offenders Program provided at A.D.C. However. I have found that unless I charge the Defendant with rape I am probably not going to be able to get him enough Lime to get him into the program. The sexual abuse offenders. particularly those who abuse children. habitually are paroled out so quickly that they are not placed in the program (which needs an approximate 9 months incarceration to effectively handle these persons). Therefore. the ultimate disposition goal is kept in mind in sex cases at the time of charging. The Regional Punishment Facility concept now being operated by the State with a "alternative intermediate sanction" to
Penitentiary sentences is affected heavily by the charging decision. The Regional Punishment Facilities will accept certain cia ses of crime and cenain types of crimes within those classes. but not other classes or types of crimes. For example. you may sentence a drug offender to the Regional Punishment Facility for possession of drug paraphernalia. or simple possession of drugs. but you may not send him on possession with intent to deliver a Class I or II controlled substance. Although this seems like a very clear cut delineation. many possession with intent 10 deliver cases could also be charged as mere possession. A Prosecutor who charges drug cases with only an eye to the "presumptive amounts" places his sentencing options at peril. Presumptive weights (another example of Legislative guidelines) may in fact work to the detriment of other Legislative provided rehabilitation programs. An excellent example is the "crack cocaine" cases. Many of the crack cocaine cases hover around the 1.0 grams thaI is the presumptive weighl for possession with intent to deliver cocaine. This is a very minuscule weight. and those cases that do exceed I gram often do so only by milligrams. The Prosecutor should decide on the "front end" of the case at the charging decision whether or
not he will want to explore the use of one of the innovative programs as a potential puni hment in the case. The Regional Punishment Facilities feature an excellent Drug Rehabilitation Program. However, as mentioned above they choose not to allow "dealers" into the program. As most of us in the criminal justice system know. those persons who are heavy users are also "dealers" at one time or other simply to supply their habit. It may well be that we are better served in handling these types of low level dealers as "addicts" in an uttempt to get them rehabilitated lhrough drug programs than sending them to the Penitentiary with the same sentences that we reserve for "major dealers". Another problem with drug cases is that if the Prosecutor "overcharge .. and liles a Class Y possession with intent. it is very difticult to justify to the public not sentencing someone who they believe to be a "major dealer"' to the Penitentiary for a long period or time. There are many reasons why a Prosecutor may choose to not "hammer" a person in a drug case (cooperation with authorities which leads to the shutting down of a major drug pipeline. for example) and yet by filing the possession with intent charge. he has locked himself into a course of aClion that
See Page 30
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23
The Arkansas Lawyer
Winter 1996
Old Dog., New
Tricks New Sentencing Guidelines By Holly Lodge Meyer and Jenifer Su tton Photography by Gary Speed
One veteran trial anorney was overheard saying last year in a Pulaski County courtroom. "criminal law
ain"t what it used to be." Many veteran trial attorneys share that sentiment. The 79th General Assembly enacted a package of legislation in 1993 that provided sweeping reforms in trial procedures. sCl1lcncing procedures, punishment and criminal justice institutions
in the State of Arkansas. This legislation and the subsequent guidelines La implement it by the Arkansas
Sentencing Commission drastically changed criminal justice in
OUf
stale.
The reasons for this reform were touted by its proponents as bringing consistency, genuine rehabilitation and truth in sentencing. Its detractors called it an early release program. Experience proved a little of both to be true. The exercise of judicial discretion is changing. paperwork is certainly up. the number of defendants going to traditional prison has stabilized, consistency between rural and urban judicial districts is improving, and rehabilitation services and intennediate sanctions are expanding.
THE I STITUTIONS The Board of Correction and Community Punishment (BCCP), a newly created governing board. now assumes the duties once exercised by the Board of Correction, and the Aduh Probation 24
The Arkansas Lawyer
Winter 1996
tain criteria. The offense must be within the defined target group which include all Class C or D felonies which are neither violent nor sexual in nature and the following Class B felonies: all theft offenses, hot checks, and forgery in the first degree. The offender must have no prior convictions for a violent or sex-related crime. no record of a mental disorder which would depict a propensity for violence, and no felony detainers. The Arkansas Sentencing Commission was created to "evaluate the effect of sentencing laws, policies, and practices on the criminal justice system; to make appropriate and necessary revisions to the sentencing standards; and to make recommendations to the legislature on proposed changes of sentencing laws, policies and practices." Ark. Code Ann. ยง 16-90-
Commission. This seven-member board is appointed by the Governor in staggered seven-year tenns. Under the supervision and control of the BCCP are departments representing the two approaches to punishment. The Department of Corrections, with amended powers under the new law, represents traditional prisons. The Department of Community Punishment (DCP) represents a new, comprehensive approach to community-based corrections, including the duties formerly vested in the Arkansas Adult Probation Commission. Paula Pumphrey is the Director of the DCP and oversaw the combination of probation and parole services under one depart~ menl. Community punishment encompasses a 26
The Arkansas Lawyer
Winler 1996
wide variety of interim sanctions available to courts short of the penitentiary. It includes non-traditional residential and non-residential punishment centers, boot camps, restitution programs, drug and alcohol education, home detention, community service, mental health services, vocational training. probation. parole. and transfer programs. It is unapologetically designed to save money and save prison beds for the most serious offenders. The regional punishment facilities, one of the intermediate sanctions, are available for a "target group" of offenders and offenses which have been identified as having a significant impact on the use of correctional resources. To be eligible for referral to a regional punishment facility. the offender and offense must meet cer-
802(A)(Michie 1993). This eleven-member commission has nine voting members appointed by the Governor which serve in staggered five-year terms. Leslie Powell, a former prosecutor and assistant attorney general, is the executive director of the commission and supervises a staff of fOUf. The Sentencing Commission's primary responsibility was adopting the "sentencing grid" and the "seriousness reference table" which implement the new voluntary sentencing standards. The commission has the ongoing responsibilities of revicwing and changing the voluntary sentencing standards by the Administrative Procedures Act and reviewing and recommending to the legislature changes lO the "target group." The most formidable challenge for the sentencing commission has been the collection of data from all courts having criminal jurisdiction of felony crimes. The commission has the Herculean task of coordinating and ultimately making sense of data collected from the Administrative Office of the Courts, Arkansas Crime Information Center, seventy-five county clerks and all the various state and local correctional agencies. Because of the lack of uniformity and/or accuracy of the various current reporting
systems. one of the commission's main
knows that unless there are major disci-
of evidence and discovery. Phillips \'.
endeavors has been to encourage and
plinary problems. the defendant will
facilil3te uniform reporting. The State Board of Parole and
serve two years.
Community Rehabilitation became the
THE BIFURCATED TRIAL
State 321 Ark. 160 (1995). One creative judge in Pulaski County. during the delay between the effective date of the new bifurcated trial proccdure and the preparation of the model jury instructions. gave a jury copies of the relevant statutes on parole. good time. or transfer. OU'ells v. State 318 Ark. 61 (1994). The new bifurcated trial procedure has some new options for utilization of jury as well. After ajury determines guilt, the court and the parties may agree to waive jury sentencing and let the judge sentence. Conversely. after a plea of guilty. a defendant may. with the court and the parties' consent. opt to be sentenced by a jury. With this laller option comes the additional bonus of a right to appeal after a plea of guilty - but only as to non jurisdictional issues dealing with the sentencing phase.
Post Prison Transfer Board with redefined
Felony criminal trials are now two
powers and duties. This seven-member
complete trials in one. In the "guilt..
board is appointed by the Governor and must be confirmed by the Senate for staggered seven-year terms. The board's
phase of the trial the jury simply decides
duties arc significantly different from
those of its predecessor. the Parole Board. because of the emphasis on victim impact on the front end of sentencing. Victims now have a voice under Payne Tellllessee. 501 U.S. 08. III S.O. 2597.115 L.Ed.2d 720 (1991) and the bifurcated trial procedure whereby the judge or jury may consider the "victim impact'路 of a crime at the time of sentencing. Theoreticnlly. this allows the sentencing authority to take into account the evidence previously considered at a parole hearing with all other relevant evidence, including the defendant's release date. This new evidence before the sentencing authority obviates the need for a parole hearing on the back end of a sen1'.
guilt or innocence with the admonition
"in your deliberations. the ubject of punishment is not to be considered by you:' AMCI 2d 8103. Sentencing has become a trial in and of itself. After rendering a guilty verdict. the jury hears additional evidence relevant to ~entencing. Evidence introduced in the guilt phase may be considered but need not be reintroduced at the sentencing phase. Evidence relevant 10 sentencing by either a coun or a jury includes. but is not
limited to the following: (I) the law applicable 10 parole. meritorious good time or transfer: (2) prior convictions of
the defendant. both felony and misdemeanor, the nature of the previous con-
THE PUNISHMENT Habitual offender sanctions ollce pro-
victions. the date and place thereof. the
vided that for each of the two levels of
sentence recci ved and the date of release
habitual offenders. there was an increased
from confinement or supervision from all
upper and lower range of punishment.
tence. Hence. with certain exceptions for
prior offenses: (3) prior determinations of
For example. rape. a Y felony. carries a
the most serious crimes. transfer 10 the
delinquency in juvenile court: (4) victim
statutory range of punishment of 10-40
supervision of the Department of
impact evidence: (5) relevant character
years or life. Under the old law. an
Community Punishment (translation:
evidence (6) aggravating and mitigating
offender with two or three prior felony
parole) is automatic. This automatic
circumstances: (7) evidence held inadmis-
convictions would be sentenced to a term
transfer for most felonies is accomplished
sible in the first stage... if the basis for exclusion did not apply to sentencing: (8)
of 20-60 years or life and an offender
rebuttal evidence.
sentenced to a term of 40 years to life.
after the offender has served a statutorily et fraction of the sentence imposed. This new automation affords a previously
Some of the cases reponed since these
with four or more prior felonies would be This last range allowed prosecutors to
absent predictability in the length of a
new sentencing and trial procedures
argue and juries to impose terms in excess of a typical human life span.
prisoner's term of incarceration. The pre-
became effective January I. 1994 dealt
dictability of release along with the new
with the que5.tion of which la\\' governed
These laws began to change in 1993.
mandates that allow prosecutors to tell a
for offenses before January I. 1994. The
jury about parole eligibility and good
Supreme Court answered that the sub-
First. the legislature in 1993 dropped the bollom out of the habitual offender
time provide "truth in sentencing." For
stantive law of penalty range in effect at
ranges. or lowered the statutory mini-
example. a judge or jury knows that a
the lime of tile crime shall govern sen-
mums that habitual offenders could serve.
defendant with a 12-year sentence on a
tencing. State I'. Kil/ard 319 Ark. 360 (1995). but that the bifurcated sentencing laws are largely procedural so the law in effect al the dare of trial shall govern. Willial/ls I'. State 318 Ark. 846 (1994). The Supreme Court held thal the sentencing phase shall be governed by the rules
residential burglary becomes transfer eligible in four years (1/3 of sentence). Good time. a disciplinary system at the Department of Correction. can reduce that sentence further by olle half. Therefore, the sentencing authority
For example. the rapist in the previous example would be sentenced within a
range of 10-60 years or life as a "small" habitual and 10 years to life as a "big" habitual. This law undermined the habitlIal offender enhancement as a prosecutorial hammer. 27
The Arkansas Lawyer
Winter 1996
there is 110 appellate review of the length of sentence imposed under the Arkansas
in cases which ultimately went to trial that certified copies or some form of
guidelines. With the exception of capital
actual evidence of the prior was required.
murder. the grid encompasses all criminal
Because prior convictions are so critical in determining the maximum presumptive
offenses. It creates an array of "presumed" sentences based on the interplay of two factors: seriousness of the offense
sentence under the grid. proving priors
and criminal history of the defendant.
tiation . This new approach to criminal justice
The horizontal axis of the grid represents criminal history points accumulated based on the age and seriousness of prior juvenile. misdemeanor. and felony offenses. Additional criminal history points may be accumulated if the offense was commit-
has become a genuine issue in plea nego-
islation has sent criminal trial practitioners back to the books.
Holly Lodge Meyer is the Senior Depwy Prosecuting Allorneyfor the 6th Judicial District alld Jellifer SUlIOIl is a Deputy Prosecuting Allorney for the 6th Judicial District.
in Arkansas does have many practitioners of criminal law scratching their heads. Criminal law is not what it used to be. but
EXECUTIVE CLERICAL SERVICES
whether one is a proponent or opponent of this new legislation. one thing is cer-
Word Processing • Transcribing •
ted while the defendant was under any type of criminal restraint. such as proba-
attempt to recognize the interests of
Faxing • Copying • Notary
tain: this wave of new legislation is an
tion. parole. or bond. The vertical axis of
everyone involved in the criminal justice
the grid consists of 10 seriousness levels
system. It is an attempt to reconcile the
into which all crimes are categorized by the Arkansas Sentencing Commission.
desire to be tough on crime and the desire to utilize money and resources in the
The grid proposes up to three possible
most efficient manner. The resulting leg-
Kelly Tolbert, Word Processor Suite 700, Centre Place
212 Center Street, Li ttle Rock, AR 72201
SOI/376-4775 FAX SOI/376-4041
sentencing options. For the least serious offenses and the lowest criminal history scores, the grid calls for alternative sanctions. such as probation. For intermediate offenses and criminal history scores, the grid calls for intermediate sanctions. And for the most serious offenses or repeat offenders, the grid recommends a commitment to the Department of Corrections for a term of months. ignificantly. the grid's presumptive
JudgeW. H. "Dub"Arnold will bring to the bendi: • 16 Years as an Elected Prosecuting Attorney • 5 Years as Chairman of the Arkansas Workers
sentence guidelines are voluntary for judges. The coun can deviate +-5% from the presumptive sentence without having
Compensation Commission
to justify its sentence. The court can depan significantly upward or downward from the presumptive sentence with a written form outlining aggravating or mitigating circumstances justifying the departure. There is a non-exclusive list
• I Year as an Elected Municipal Judge • 5 Years as an Elected Circuit-Chancery Judge
of aggravating and mitigating departure
Paid for by tht Committft: to FJea ' W.H. 'Dub' AmoIdOUdJUIlX<.
criteria in the statute. If the court or par-
P.O
ties fail to to complete the paperwork to
713. NbddplUo. AA 71'23
justify a depanure, the Depanment of Corrections will revert to the presumptive sentence. The guidelines place the responsibility for locating and proving prior convictions on lhe prosecution. Although prosecutors have always born this burden, it was only 29
The Arkansas Lawyer
Winter 1996
The Arkansas Bar Association Wishes to Express Its Appreciation to Its Sustaining Members We all owe a debt of thanks to Sustaining Members. Their financial support makes possible speakers like Morris Dees and the Solicitor General of the United States; programs like the ABOTA Masters in Trial and projects such as the Arkansas Bar Association Bar Leaders Guide. Some members choose to join this special category of membership because their busy schedule limits their active participation in the work of the Association ...others who give generously of their time and talent choose this as a means of going the extra mile for the Association. We are grateful to all Sustaining Members and encourage those who would like to join this prestigiolls grollp to simply mail a check for $100 to the Arkansas Bar Association, 400 West Markham, Little Rock, Arkansas, 72201. H. Will iam Allen Philip S. Anderson R. Keith Arman Kenneth B. Bairn Charles W. Baker Anthony Bartels Paul B. Benham Daniel C. Blaney Ted Boswell William H. Bowen Comer Boyett, Jr.
Silas H. Brewc.r,Jr. Clark S. Brewster Fud E. Briner Edward W. Brockman, Jr. John A. Buckley, Jr.
Richard K. Burke Robert O. Cahe John C. Calhoun, Jr. Robe" M. Cearley, Jr. George B. Collins Robert C. Compton Barry E. Coplin Ben Co.-e Willis Cronkhite, II I James D. Cypert Sid C. Dabbs John A. Davis, III Joe. Deacon Jay W. Dickey, Jr. H. Tyndall Dickinson W.H. Dillahunty Philip E. Dixon Darrell O. Dow:r Win Drummond Warren E. Dupwe Davis Duty B. Michael Easley John D. Eldridge George O. Ellis John C. Everen M ike Everett
o.scar Fendler John A. Fogleman Sam E. Gibson John P. Gal W. Dent Gitcbel David M. Glover Nathan G. Gordon Albert Graves, Jr. Michael E. Hale David M. Hargis Willjam D. Haught Willjam R. HoUand Cyril Hollingsworth Don HoUingsworth Cliff H. Hoofman PauJ W. Hoover, Jr. Robert E. Hornberger W. Mu Howell D. Michael Hucka.bay Clint Huey Alan R. Humphries Eugene Hunt Donald T. Jack, Jr. Sherry L Jenkins Alston Jennings Robert L Jones, III W. Wilson Jones Vernon E. Jordan, Jr. PhiJ;p E. Kaplan Judson C. Kidd Warren O. Kimbrougb Milam Mike Kinard Peter G. Kumpe David N. Laser Sam Laser John T. Lavey Ike Allen Laws, Jr. Leland F. Leatherman Charles R. Ledbetter Ronald T. Lemay Robert O. Levi Ruth Lindsey
Philip K. Lyon William A. Martin Everett O. Martindale Gail Matthews Ronald A. May S. Hubert Mayes, Jr. Robin L. Mays P. Douglas Mays Herbert H. McAdams, II Bobby McDaniel Robert McHenry H.H. McKenz.ie James H. McKenz.ie James A. McLarty, III Phmip H. McMath Sidney S. McMath Jack A. McNulty Russ Meeks H. Maurice Mitchell Micbael W. M.itchell Thomas Ark Monroe Richard N. Moore, Jr. Harry Truman Moore Rosalind M. Mouser Wm. Kirby Mouse,r E. Sheffield elson Walter R. Niblock R. Gary Nutter Bobby Lee Odom David L. Osmon Edward M. Penick Donna C. Pettus E. Lamar Petrus John V. Phelps Norwood Phillips David A. Pierce John B. Plegge Odell Pollard William I. Prewen Donald C. Pullen John T. Purtle John I. Purtle
Louis L. Ramsay, Jr. Gordon S. Rather, Jr. Charles B. Roscopf Donald S. Ryan Don M. Schnipper Frank B. Sewall Dennis L. Shackleford James B. Sharp Slephen M. Sharum Ted C. Skokos Ray S. Smith, Jr. Robert D. Smith, IU David Solomon Thomas E. Sparks James D. Sprott Mark Stodola Thomas S. Stone John F. Stroud, Jr. William H. Sutton Denver L Thornton Amber L Trumbo W. Lee Tucker Fred S. Ursery David B. Vandergriff James R. Vandover W.J. Walker Woodson D. Walker limothy F. Warson, Sr. Bernard WhelSlone Bud B. Whetstone John W. Whitehead W. Jack Williams J. Gaston Williamson Mike K. Wilson Carolyn B. Witherspoon Henry Woods Joe D. Woodward lilden P. Wright, III Edward L. Wright, Jr. Robert R. Wright, III Damon Young Robert E. Young
31
The Arkansas Lawyer
Winter 1996
"Old Spartle', The first elecutlon was on September 5, 1913, lee Sims lor lhe Cline of rape.
in a study conducted in 1987 by the
centers were very successful in accom-
Spangenberg Group of Massachusells.
plishing what the bar association set out
According to that study. attorneys who
to do.
worked on federal habeas corpus cases
Of their demise. Ms. Lardent said: 路路It's
put in an average. per casc. of 540 hours
just going to be a nightmare." AssociOfed
at the U.S. di. tricI court level. 471 hours
Press article. July 23, 1995.
Al Schay is the fonner Executive Director of the Arkansas Death Penally Resource Center. which will now operate on a part-time basis under the name of Death Penalty Defense Coordinating Committee, lnc.
at the U.S. circuit court of appeals level and 270 hours at the U.S. Supreme Court level. Indeed, Justice Scalia has referred to ..... the byzantine complexity of the death-penalty jurisprudence..." in Socllor
"Florida. 112 S.C!. 2114, 2130 (1992). HISTORY OF DEATH PENALTY RESOURCE CENTERS Beginning in the mid 19805, the federal court system and the American Bar
Association combined to provide funding
and other resources to cope with a growing problem of inadequate counsel at the
federal habeas corpus level. The result was the creation of state death penalty resource centers. and in June 1992
Arkansas became the 19th stale with such
a center. The primary funding for the Center came from the Administrative
Office of the United States Courts, which funds federal court operations. The impetus for the creation of the cen-
lers was the problem seen by observers thai there were far too many attorneys without capital case experience trying. in POSI conviction proceedings, to meet Ihe unique and complex challenges in death
penalty litigation. Most persons convicted of capital crimes are indigent. at least after conviction. and the death penalty resource centers were seen as a vehicle to help private lawyers who were appointed for post-conviction proceedings. In addition to helping private mtorneys. the resource centers also provided direct client representation in many cases.
Esther Lardenl. chief consultant for the American Bar Association's Post Conviction Dealh Penalty Representation Project. said the death penally resource
35
The Arkansas Lawyer
Winter 1996
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The Arkansas Lawyer
Winter 1996
of victims and service providers. Of course. the inquiry must include the response and input of health, human services. educational, and business communities. II appears Ihal there are a variety of methods and resources that we may call upon to successfully lead our state in developing a coordinated response 10 the crime of family violence. To be successful will. of course, require thai our membership exert our collective strength and wisdom 10 accomplish the many challenges and tasks. We must listen to the victims and be open to the inpul of those in other vocations and professions. I urge those of you who are il1lerested to provide me with your suggestions and COI11ments. Clearly, together we can all make a difference in the lives of others and in our system of justice.
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The Arkansas Lawyer
Winter 1996
Book Review Percy's Dead! (And the "Juice" is Loose)
and an item of expense to his owner. There is no brute in all the animal kingdom more worthless than a Missouri-bred jackass afflicted with lost manhood. He was not as represented and warranted by the defendant, and the plaintiff is entitled to recover." Besides opinions, exchanges during trials, and depositions, Fleming also includes selec-
Young Lawyers Section Report
YLS Half Time Report by Swart Miller By the time you receive this issue of The
Arkansas LalVyer. the Bar year will be half over. The Young Lawyer Section ("YLS")
tions from pleadings, including a wonderful
continues its work on many worthwhile pro-
answer by a lawyer defending a client who
jects supponing the growth and education of
had shot ,he plaintiff's canine, a Tree Walker hunting dog named Little Thunder Jim.
our members. As we move into the second
"I. Little Thunder Jim was an uninvited intruder on defendant's homestead and Little
priate to update the membership on the
Thunder Jim has repeatedly been told to
half of the year, I thought it would be approprogress made by the YLS to date. In October, the YLS sponsored a kickoff
leave. 2. Little Thunder Jim, at the time of the incident, was standing over and attempting to molest a small female, whose name is Baby, that resides at defendant's homestead.
reception in conjunction with its Mentor Program. The reception was well received, and the success of the program has resulted in numerous students from both UALR and
3. Defendant admits tha, the resident female may have led Lit,le Thunder Jim, and o,hers like him, to believe that Baby was a loose female; however, defendant denies that Baby was loose enough for the likes of Little Thunder Jim. 4. Defendant had a right to protect all
program. Under the program, attorneys who
females on his homestead from unwanted suitors." My advice is not to try to read this book in one gulp. Savor it a few pages at a time.
Humor is in the eyes of the beholder, and certainly not every passage will sLrike the
reader as funny, bu, PERRY'S DEAD includes something for most everybody: poetry, puns, and malapropisms to satisfy the grumpiest curmudgeon in your family.
The book is enhanced by John Deering's artwork, and the foreword by federal judge Jerry Buchmeyer of Dallas. Fleming also includes in an appendix the graceful foreword to his firs, book, REAL LAWYERS DO CHANGE THEIR BRIEFS, written in 1989 by Hillary Rodham Clinton and Bill Clinton.
(Grif Stockley, an attorney in Little Rock, is the author of four novels: ÂŁrpert Testimony,
Probable Cause, Religious Conviction, and
Illegal Motion.)
The Young Lawyers Section continues its work on many worthwhile projects supporting the growth and education of our members.
U of A participating in this much needed have been out of school for a few years are paired with a student based on hometown, specific interest in practice and other areas of like interest. It is anticipated that another
function in the Spring will be planned to bring all of the mentors/mentees together. In November, 'he YLS co-sponsored the newly revamped Bridging the Gap Seminar. This year's program, co-chaired by Gwendolyn Hodge and Robert Comp,on, was by all accounts a huge success. In addition to increased attendance, the change in format of the seminar was well received with more emphasis on the "nuts and bolts" issues for new lawyers. The YLS is once again involved in spon-
soring the Three Point Attack. Last year was the first attempt at this project. The American Cancer Society raised over $45,000 statewide which set a record for
en the responsibility of helping with the revisions of The Arkansas Appellate
Handboak. It too should be completed by the annual meeting in June.
$45,0001 3-Point Attack Continued From Page II
first time Three Point Attack events nationwide. It is our goal to double the number of
donors this year. Along with the UALR and
Last year's participation by the Arkansas Bar
University of Arkansas men's program, this
Association was commendable, but it was
year's Three Point Attack has added as participants Coach Dickey Nutt of Arkansas State, Coach Gary Blair, and the University of Arkansas Lady Razorbacks. I hope each member of the Bar will see fit to support
only a start. If you participated in the pledge last year, please repeat your participation. If you did not participate last year, please con-
this worthy cause.
Finally, preparation of the 4th Edition of The Guide to Arkansas Statutes of LimiIatiolls is well underway. The newly revised handbook will hopefully go to press in early Spring. The YLS has also undertak-
tact the American Cancer Society, Arkansas
Division, at 90 I North University, P.O. Box 3822, Little Rock, Arkansas 72203 (phone number: 664-3480), and make your pledge this year. We need greater participation, so please join in the fight against cancer, and, at the same time, support your team and the Arkansas Bar Association. 41
The Arkansas Lawyer
Winter 1996
disciplinary actions JUDGE ROY THOMAS A letter of admonition was imposed on Judge Roy Thomas. Thomas is the Batesville Municipal COurl Judge. The Commission found Thomas' aClions to be inappropriate, and in violation of Cannons I, A judge shall uphold the integrity and independence of the judiciary; Cannon 2, A judge shaJl avoid impropriety and the appearance of impropriety in all of the judge's activities; and Cannon 3, A Judge shall perform the duties of judicial office impartially and diligently. B. of the Arkansas Code of Judicial ConducL. At a probable cause hearing, the Judicial Discipline & Disability Commission considered a number of al1egations which stemmed from the actions of an attorney in Thomas' court chambers. on March 17, 1993. In the presence of legal counsels. police officials, and court personnel, while coull business was to be conducted, the attorney opened his coat in the style of flashing. Over his pants. the attorney was wearing a pair of gag or novelty men's briefs which had a sexual connotation. Comments were then made which implied improper or preferentiaJ treatment should be given to the allorney's cases pending that day. Included in the allegations considered by lhe Commission, was that Thomas improperly dismissed the charges in three cases because of the attorney's actions. After reviewing its file, including the sworn statements of approximately 26 witnesses. Thomas' testimony al the hearing. and other available evidence, the Commission found there was no credible evidence to support that allegation. The Commission believes that as the judge of the Batesville Municipal Court, Thomas is required to maintain order and decorum in the court, to include his chambers, when judicial maLters are being considered. Thomas is also required to act at all times in a manner that promotes the public confidence in the integrity of the judiciary. and he must enforce high standards of conduct of
attorneys and court officials. Thomas' failure to take any timely corrective action of the errant attorney showed a failure to maintain the required order and decorum during judicial proceedings. By his inaction, he also failed to enforce the standards of conduct required of attorneys who come before him in judicial proceedings. Such inaction denigrates rather than promotes public confidence in the integrity of the judiciary and the Batesville Municipal Court. The Commission found Thomas' actions to be inappropriate, and in violation of Canons !, 2, and 3B of the Arkansas Code of Judicial Conduct.
B. FRA K MACKEY, JR. Upon the recolllmendation of the Committee the Court accepted the surrender of Arkansas Law License of B. Frank Mackey, Jr.
A. WAYNE DAVIS A leuer of reprimand was issued to A. Wayne Davis for violation of Model Rule 1.1. Competence, upon the Complaint Before the Commiuee. The de novo hearing held before the Committee on Professional Conduct was based upon the Comptaint Before the Committee arising out of the Supreme Court's Per Curiam of March 27. 1995. The COlirt issued a criminal contempt order against Davis in connection with his representation of Ivan Floyd Pipkin. Pursualll to the criminal contempt order Davis was jailed for five (5) days. The Complaint which was introduced into the record at the hearing sel oul the procedural background which led up to the issuance of the criminal contempt order. A Notice of Appeal was filed on behalf of Mr. Pipkin on May 5. 1994. Thereafter. on June 24, 1994. Davis requested a seven (7) day extension to file the brief. This request was granted. As of October 27. 1994. no brief had been fi led and no further extension requested. On November 21, 1994. an order to show
cause was issued and a Master was appointed to conduct a hearing. At the hearing before the Master, Davis asserted that the brief would be tendered no later than December 27, 1994. The brief was not tendered and on January 9. 1995, Davis was held in contempt and fined $500. A subsequelll show cause hearing was scheduled for February 6, 1995, but Davis did not appear. Another hearing was held on March 13. 1995. Davis appeared at this hearing and told the Chief Justice that the brief would be filed no later than March 17. 1995. As of March 27. 1995 the brief was not filed. Davis was held in contempt and a forthwith order issued that Davis be immediately taken into custody. In addition to the Complaint, the Commillee also had before it the issue of Davis' failure to allend the July 15, 1995 hearing on this mailer. At the July 15, 1995 hearing Davis was temporarily placed on inactive status based upon his attorney's assertion that he was unable to attend the hearing because of his incapacity. Al the hearing. Davis was represented by Richard Hughes, an allorney practicing in Little Rock, Pulaski County. Arkansas. In presenting the matter to the Committee, Mr. Hughes provided certain medical evidence to the Committee which he asked no be placed in the record. In addition. Mr. Hughes asserted that because of the tive days Davis spent in jail. it was Davis' opinion that he already had been punished sufficiently for his conduct. In Davis' te timony to the Committee. he stated thal he knew the responsibility for these matters stopped with him and that what he had to offer to the Committee was merely in the form of mitigation. In offering the mitigation. Davis stated that he had made errors in judgment when delegating duties to his staff. Davis acknowledged that a request for an extension did not get filed in this matter but he also stated that he believed one had been filed because his staff had told him One had been filed. Davis also acknowledged telling the Court that the brief would be tendered by specific dates. 43
The Arkansas Lawyer
Winter 1996
disciplinary actions lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation; and 1.9, Cannier of Interest: Former Client, (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person Iy related matter in which that person's interests are materially averse to the interests of the former client unless the former client consents after consultation. Based on her affidavit and testimony at the de novo hearing, Sue Ann Duffield Slated that, shortly after moving to Siloam Springs, she and her husband began using Elrod's services in 1978 for general guidance including title opinions, drafting documents, negotiations and as a financial consultant. In 1979, complainant's husband purchased a one-half (112) interest in a commercial property known as The Little Mart. The Lillie Man, a convenience store. was leased to a third party. In 1983, the complainant inherited a large estate as her separate and individual property. She averred that Elrod knew of her inheritance. In 1984, Elrod prepared the Articles of Incorporation of Master Key Realty for complainant's husband. In 1985, Ms. Duffield stated that she sought ELrod's advice concerning her intent to purchase the convenience store property. It was her desire to acquire full ownership of the property in her own right and subsequemIy to make a gift of the income producing property to her daughters. In October, 1985. by a deed prepared by Elrod, Mr. Duffield's co-owners of The Little Mart conveyed their interest to Mr. and Mrs. Duffield. Later that month. Mr. Duffield conveyed his interest to the complainant by an instrument which Elrod prepared. According to the Duffields, the consideration for Mr. Duffield's interest in the store property was the cancellation of a $45.000 loan previously made to Mr. Duffield from the complainant's separate funds. By quitclaim deed filed of record on July 30, 1986, Mr. Duffield conveyed his illlerest in several described proper-
ties, of which The Little Mart was one, to Ms. Duffield. This conveyance was made by Mr. Duffield pursuant to a property settlement agreemem in a pending divorce action brought by Ms. Duffield in Garland County, Arkansas. The complainant, by instrumem filed of record on September 25, 1986, conveyed The Little Mart property to her daughter. In 1987, without obtaining the consent of Mr. Duffield, Elrod represented Mike Moss Agency, Inc. and obtained a judgment against Mr. Duffield, individually and d/b/a Master Key Realty. Subsequently, in 1988, as a result of a mortgage foreclosure involving other property, the First ational Bank of Siloam Springs held a deficiency judgment against Mr. and Mrs. Duffield. Elrod represented the bank in that litigation. In 1989, Elrod filed a complaint against Mr. and Mrs. Duffield and their daughter on behalf of the First National Bank of Siloam Springs, Mike Moss Agency, Inc. and another judgment creditor without the consent of the Duffield's. The complaint alleged that the above mentioned conveyances were made with fraudulent intent and should be set aside. Subsequently, the complaint was dismissed for lack of sufficient evidence. The judge found that one of the underlying transactions alleged to be fraudulent was prepared and handled by Elrod, and that that knowledge was imputed to the bank. Therefore, as a result of Elrod's participation in the preparation of the deeds, the bank knew no probable cause existed to bring the fraudulent conveyance action. Elrod's affidavit of response and testimony at the hearing averred that he had never acted as a "financial consultant" to the Duffield's. Elrod also denied having a substantial amount of information about the Duffield's individual financial positions and specifically denied an awareness of the amount of Mrs. Duffield's individual inheritance. With respect to the Master Key Realty transaction, Elrod stated that he did incor-
porate the business. It was his recollection that the corporation was formed for the purpose of purchasing the assets of another realty agency. The subsequent lawsuit he filed against Mr. Duffield was the collect an unpaid insurance premium.
Elrod added that, at the time of the lawsuit, 1987, the Duffields had no complaint of his representation in the matter. Elrod's affidavit averred that in December, 1988, he took a Judgment and
Decree of Foreclosure against the Duffield's in a mortgage foreclosure action on behalf of the First National Bank of Siloam Springs in the amount of $240,000. Subsequently, three (3) tracts of property were liquidated and he had a deficiency judgment. Elrod stated that at
no time during the course of that litigation did the Duffield's complain of his adverse representation. Regarding the Little Mart transaction, Elrod denied any knowledge of what purchase price Mrs. Duffield offered, what her motivation was, or that she discussed all this with him and sought his advice. Elrod denied any knowledge of whether complainant credited $45,000 to her husband. More specifically, Elrod stated that the twO deeds prepared in 1985 were pre-
pared at his office, but the signatures were obtained elsewhere. However, the
1986 deed from Mr. Duffield to Mrs. Duffield was not prepared by his office. Elrod added that he now (his emphasis)
knew that included in that quit claim deed was a substantial amount of other property believed to be all of Mr. Duffield's real property. This deed was prepared by Mr. Duffield himself. It is his belief that this conveyance was "part of a sham divorce in order to cloak the transaction with an aura of legitimacy." Apparently, Mr.
Duffield was experiencing financial difficulties and complainant was not obligated on many of her husband's obligations. A few months following their divorce, the parties remarried without a reconveyance of substantial consequence. Additionally, the subsequent 1986 conveyance of the Little Mart frol11 complainant to her daughter also included a multimillion dol45
The Arkansas Lawyer
Winter 1996
disciplinary actions/advisory opinions medical staff privileges with AMH were
In her affidavil of complaint. Ms. Joyce
terminated on or about December 16,
Barringer sel out various matter involving Morris' representation of her in a bankruptcy matter and also his representation of her son in a personal injury matter.
1991. for whal were described as "a long series of disruptive aCls". According to
Shaw's response, the wilhdrawal of Dr. Schueller's medical privileges and the apparent anticipation of a lawsuit by him were the factors prompting Shaw's inquiries to the Mercy Health Clinic 011 behalf of the Foundation and AMH. Shaw's affidavil of response reflecls that he made a telephone inquiry on
According the Ms. Barringer, she hired ruplcy so she could avoid losing her home. Prior to hiring Morris in the bank-
ruplcy maner, Ms. Barringer had hired him to represent her minor son in a per-
sonal injury malter. When the bankruptcy
November 20, 1991, to the Mercy Health
matter did not go according to Morris'
explanation, Ms. Barringer began
and sent in the same condition as he has received it. All these actions were taken
in regard 10 the defense of AMH 10 pending matters and anticipated litigation by Dr. Schueller. Shaw staled Ihat the inquires to MHC ended on December 30, 1991. when he was advised by MHC's anomey. AI Hughes, Ihal there had been no such litigaLion involving MHC and Dr. Schueller. Shaw characterized Dr. Schueller's complaint to the Committee as "lTjhe latest attempt in a long series of actions by Dr. Schueller to harass and
attempting to obtain her file from him. Ms. Barringer desired to obtain both the
bankruplcy and personal injury files from him. When she was unable 10 accomplish this, Ms. Barringer hired other counsel to
oblain them for her. John Ogles, the other counsel hired by Ms. Barriner, was finally able to obtain Ihe files from Morris. According to Ms. Barriner and
with the perfonnance of judicial duties.
JUDICIAL ETHICS ADVISORY OPINION 95-06
Commission recently issued an advisory
opinion 10 a Judge inquiring if he should disqualify himself in cases wherein a Deputy Prosecuting Altomey who is the uncle of his part-lime secretary, appears
Ms. Barringer.
in court to prosecute a case. Based on lhe
He also stated that he
decisions relating to his representation of her. Further, Morris stated he did act
take steps to the extent reasonably necessary to protect a client's interests. such as... surrendering papers and property to which the client is entitled ..., upon the complaint of Joyce Barringer.
Judicial Conduct provides that judges are in a unique position to contribute to the improvement of the legal system and may leclUre on matters concerning the legal system. The opinion goes on to note that such teaching may be done as time permits and as long as it does not interfere
Ogles' was never provided a complete copy of Ms. Barringer's files. Ln his response. Morris set forth thaI he did handle the bankruplcy as explained 10
Crossett Health Foundation and the Ashley Memorial Hospital.
caution for violation of Model Rules 1.5. Fees (c)...A conlingenl fee agreement shall be in wriling and shall state the mel hod by which the fee is to be determined... : and 1.16. Declining or Terminating Representation, (d) pon terminalion of representation, a lawyer shall
College's Paralegal Program. The opinion nOles Ihat the Code of
Mr. Ogles, there was very linle informa-
complied with all of Ms. Barringer's
Harry C. Morris was issued a letter of
The Arkansas Judicial Ethics Advisory Commission recently issued an advisory opinion to a Judge inquiring as to whether or not he could accept and teach in an adjunct capacity in Shorter
tion contained in either file. A written fee agreement was never executed by Morris in the personal injury matter despite the agreement being contingent on the outcome of the matter. In addition. Mr.
embarrass officials and counsel of the
HARRY C. MORRIS
JUDICIAL ETHlCS ADVISORY OPINION 95-05
Morris to represent her in filing a bank-
Clinic regarding any prior involvement in lawsuits with Dr. Schueller. Pursuant to
the request of Mr. Arnold, general counsel for AM H. on December 13. 1991. Shaw sent a letter to MHC along with a copy of Dr. Schueller's waiver for release of information. Shaw staled Ihat Ihe waiver was obtained from AMH by Shaw
ion. Again, Morris did not address the difficulties Ms. Barringer and Mr. Ogles had in oblaining with file from him.
with diligence in represenling Ms. Barringer and that he in no way acted in such a way as to prejudice the administra-
lion of justice. In responding to Ihe allegalion of a violalion of Model Rule 1.5(c). Morris staled Ihat the allegation seemed inappropriate since he did not charge contingency fees on bankruptcies.
Morris did nOI respond to Ihe allegalion
The Arkansas Judicial Ethics Advisory
facts provided, the committee was of the opinion that Ihe judge should not disqualify under lhese circumstances.
NOling Ihat a judge has an affirmalive obligation to hear and decide all malters assigned, the committee said there were two exceptions to that principle. First where disqualification is otherwise required such as when an attorney represenling a litigant is a close family relative
to a judge. Or secondly. where failure to disqualify under the specific circum-
that he did not have a written contingent fee agreement in the personal injury mat-
ance of an impropriety. As the facts of
ler. In addressing the allegation of a violation of Rule 1.16 (d). Morris, again,
sons for stepping aside. Ihe judge should
state that it appears inapplicable. He
appears
10
base this on Ihe facI that the
stances of a case would cause the appearthis question do not come within the reapreside in those cases when the uncle of this part-time secretary appears in court.
bankruptcy matter was handled to conclu47
The Arkans:'ls L.lwyer
Winter 1996
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