Editors and Innocence
Shannon Underwood’s short article in the November Bar Bulletin, “Thankful for Not Having to Plead Innocent,” struck a resonant chord with me. I think it was back in law school (1969 - 1972), when I was Editor of my law school’s newspaper/magazine (The Willamette Lawyer) that I learned this lesson.
I, too, bristled at what I read in the newspapers and often (though with less frequency than in the print medium) heard on news broadcasts (radio and TV [the latter having just been invented!]) about people pleading innocent. “There is NO SUCH PLEA!” I would silently yell to myself, all wrapped up in the righteousness of the knowledge gained in my First Year Criminal Law course.
I confess that I only heard this from one source, but it made (and continues to make) such profound common sense that I never seriously questioned the verity of the practice. As explained to me, news writers are loathe to use the technically correct “Not Guilty” when reporting the entered plea of an accused for this very simple reason: An editing error, or a compression of the article to fit limited space, could drop, misplace, or lose the “Not” with obviously disastrous results.
Fear not, dear Shannon, the erosion of our jurisprudence (although the practice does tend to misinform or uneducate the non-lawyer, news-reading public [witness the remarks of Shannon’s friend]) by this convention of the press. We still have the presumption of innocence and the entry of NOT GUILTY pleas in our courts. They just don’t necessarily get reported that way.
Ron Mattson
Renton
I was hoping that Shannon Underwood’s “Thankful For Not Having To Plead Innocent” (November) would finally clear up this issue which so many both in and out of the profession manage to botch constantly. Well, no such luck.
She got it wrong, not once but twice. First, she wrote: “Thus, one doesn’t plead innocent, one is (her italics) innocent until a jury of one’s peers or judge reaches a different verdict”. Later, she wrote “... you cannot Ôplead innocent’--you are innocent until proven otherwise”.
Now, let’s all take a deep breath and read carefully: Our system presumes a defendant innocent. But that does not mean that he is innocent. A person is guilty as soon as he commits the crime. I can personally testify to that . I’ve committed lots of crimes, but like Big Julie in “Guys & Dolls”, “No convictions”.
So, if Shannon is concerned that so many non-legal types get this wrong so often, it’s because legal types like her leave out that very, very important “presumed” time and again. As Pogo said, “We have met the enemy and they is us”.
PS to Bob: I capitalized all the words in the headline quoted above because I hold that that’s the right way to do it. Newspapers today usually only capitalize the first word. But you are using the insane system of arbitrarily capitalizing some but not all. Get a clue: Choose one or the other.
Brian Templeton
Des Moines
Justice Chambers and Feedback from the Bench
Thanks to Justice Chambers for the intriguing comments about his first day on the bench and his gratitude for his position. Such a peek at the pros and cons of being a judge, including his perspective on the awkwardness of what to call a judge away from the courtroom, is valuable. Perhaps the Bar Bulletin can solicit similar views from our new Justices once they take the bench.
I hope, however, that if Justice Chambers ever thinks I am missing the point or wasting his time, he will let me know. Despite the years I have spent with the case before it gets to his Court, I would prefer in oral argument to address his concerns with my case rather than my own.
Henry E. Farber
Bellevue
CR 11 Debate
It is hard to respond tactfully and briefly to Roger Ley’s letter condemning CR 11. Reading his letter would lead us to believe that CR 11 grants power to Washington judges to impose unlimited monetary sanctions on lawyers when a judge finds that a lawyer “files a pleading without making an adequate investigation of the truth of the pleading or files a pleading for an improper purpose.”
CR 11 does not do what Roger claims it does. No mention is made in the rule about any “adequate investigation of the truth” of a pleading. The rule provides that to impose sanctions the court must find that a lawyer signed and filed a pleading and disobeyed one of three requirements: (1) that he read it, (2) that he determine that it was, to the best of his knowledge, information, and belief--formed after reasonable inquiry--well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (3) that he not interpose it for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. The monetary sanctions suggested are what it cost the innocent party to defend against a pleading violating the rule.
Roger also claims that CR 11 is unconstitutional for several reasons:
First, he says that “litigants are entitled to bring their claims into court [and] should not be required to withstand a preliminary Ôhearing’ by their own lawyer before they can get into the courthouse. .... A lawyer cannot be trusted to determine if their client’s cause meets some test of being Ôwell grounded in fact.” Roger cites no case or constitutional provision to support this claim. But more significant is that Roger’s argument is, in essence, that a lawyer is obligated to bring his client’s claims to court even if the lawyer has determined that there is no legal basis in fact or law for making such a claim. Note (1) that any client unhappy with his lawyer’s determination has the right to go to every lawyer in the state to bring it, and (2) that every judge in the state has the power to determine on a motion for summary judgment or to dismiss that the claim has no basis and the client has no right to go to any other judges except those on the court of appeals for his district. These judges are lawyers too and why should they be trusted by Roger any more than any other one of us? This makes no sense at all.
Second, Roger argues that “the award or denial of a CR 11 motion aligns the court with one party or another.” Again Roger cites no case or constitutional provision to support this argument. Moreover, this argument logically would render any decision of a court in favor of one of the parties an alignment of the court with one party or another rendering our entire court system unconstitutional and preventing courts from deciding any issues in favor of any party. This is a ridiculous argument.
Third, Roger argues that CR 11 is unconstitutional because a lawyer who is also a defendant loses loyalty and probably objectivity if the lawyer is a defendant as well as an advocate. However, a lawyer is always subject to being held in contempt for his conduct in representing his client and, therefore, becoming a defendant so Roger’s argument, if accepted, would bar all representation of clients.
Finally, Roger argues that our state Supreme Court has unilaterally, without review by anyone, awarded itself a vast amount of power over lawyers and their clients and not all judges will use this power fairly. The short answer is that this statement is not true for it is our state Constitution, not the court, that has given the Supreme Court this power and the people of the state of Washington, together with our state legislature, can adopt an amendment to our Constitution whenever they want to curtail this power. Moreover, judges may use unfairly any power they have so that argument results in absurdity.
Roger ends by noting that many lawyers file frivolous, dilatory and noxious pleadings; but that the cost to consumers would be far less if CR11 were rescinded. It seems clear to me that this rule prevents many lawyers from taking claims to court that are frivolous, dilatory and noxious and that discouraging this conduct actually protects clients from having to pay lawyers’ fees for pursuing such baseless claims, thereby reducing costs to consumers.
Bert L. Metzger, Jr.
Seattle
