North Carolina crime lab withheld test results in over 200 cases

Never forget who runs the "crime labs" in most jurisdictions. In most instances they are under the control of a local or state policy agency. In North Carolina they're run by the State Bureau of Investigation.



An audit conducted on the North Carolina crime lab in 2010 found that between 1986 and 2003, there were over 200 cases in which the lab had withheld blood test results. One of those cases involved Mr. Greg Taylor who sat in prison for 17 years for a crime he didn't commit.

According to Chris Swecker, a former FBI assistant director hired to conduct an audit on the North Carolina crime lab:

"There were over 230 cases where reports were not complete. Or reports didn't actually correspond to the laboratory notes, or information was not presented in the report that was in the laboratory notes as to the results of the test. What we saw was ... just not right." 

It may not have been right but it is par for the course in the criminal courthouse.

The state brings charges against an individual through the office of the district attorney following an investigation or arrest by a law enforcement agency. If any tests are conducted on blood, fluids or other substances at a crime scene, those samples are sent to a crime lab operated by (in most cases) either a local law enforcement agency or the state police. The lab technicians were trained by the law enforcement agency, paid by the law enforcement agency and taught to testify by the law enforcement agency. The results of these tests are then accepted as gospel by courts and force fed to juries. Should the defense wish to retest any samples, the defendant must cough up the money for another lab to conduct tests.

This is not unbiased science. This is "science" that is paid for and conducted for the same folks who are trying to lock our clients up. Tests are conducted and reports are written by folks who consider themselves part of the prosecution's team at trial. These same labs then require defense attorneys to issue subpoenas or obtain court orders in order to get copies of reports and test results.

Until these labs are separated from law enforcement and placed under the authority of those not involved in the investigation or prosecution of crime there will be more stories like that of Mr. Taylor.

Death sentence for DUI?

According to this report from WCGL-TV in Atlanta, that's exactly what Willie Sutton received when he was arrested for a second DUI.

Willie Sutton spent 14 hours tied to a restraint chair on the day of his death. And that's just the beginning of this horrible story.

CBS Atlanta has obtained disturbing video from inside the Coweta County Jail that tell the tormenting story of Willie Sutton's death. He was sentenced to 45 days of jail time as a repeat DUI offender. Eight days later, he was dead.

Mr. Sutton, who was suffering from severe delirium tremens as a result of alcohol withdrawal while in the Coweta County Jail, was strapped into a restraining chair that looked straight out of the 1940's for over 14 hours. At the end of the 14 hours, he was dead.

“Well, that's unfortunate there. Death doesn't stop because you come to jail.”  Coweta County (GA) Sheriff Mike Yeager.

While drunk driving is a crime, it's really a symptom of a much deeper problem. Alcoholism is not an issue that our criminal (in)justice system can expect to resolve; it's a medical condition that requires an entire support system. Mr. Sutton may have committed a crime, but he needed to be in a hospital, not in a jail cell.

Sure, there are plenty of folks who are arrested for drunk driving who aren't alcoholics and who don't have drinking problems. For the vast majority of them, a DWI arrest and the subsequent ordeal is enough to change their behavior - that's the reaction of a rational person to the introduction of incentives and disincentives. For the person addicted to alcohol, however, the strongest incentive may not be enough to overcome the addiction.

Willie Sutton needed help. Coweta County decided it would be more efficient to kill him, instead.

Guilty unless proven otherwise

Who among us hasn't commented about the "black-robed prosecutor" sitting on the bench or about having to try a case against two prosecutors - the one at the table and the one at the bench?

On numerous occasions I've sat in the courtroom while the jury was out of the room and listened as the judge advised a young prosecutor how to get a specific piece of evidence admitted or how to lay the proper predicate.  One judge even told a prosecutor while the jury was out to offer our client five days on a second DWI because, as the judge said, the conviction mattered, not the time.

Critics say the judicial system in the Khodorkovsky case worked just the way Prime Minister Vladimir Putin wanted it to. Days before Khodorkovsky's new conviction, Putin said on television that "a thief belongs in jail." It was almost as if he gave the judge a signal, instructing him on what to do.

According to a piece on NPR's Morning Edition, we're not the only ones playing against a loaded deck.

It seems that one is not presumed innocent unless proven guilty in the Russian Federation -- one is merely waiting to see how bad the sentence will be.

[J]udges seem to behave like they are an extension of law enforcement. Prosecutors file charges, and it's a judge's job to convict rather than interfere.

Wander in and out of enough courtrooms at the Harris County Criminal (In)justice Center and you may very well walk away with the same impression. During the recent election it was hard to tell whether some of the judicial candidates were running for the bench or for county sheriff.

One former judge, Alexander Melikov, told NPR that the judges are not bad people. It's just that many have a "mindset that a court is a law enforcement body; it is not an institution there to protect citizens." When he tried to work outside the system around 2003 and '04, his superiors complained that his decisions were too lenient — and he was fired.

It may attract votes to run on a platform of being tough on crime, but it's highly improper and might even be (gasp) unethical. A judge's sole role on the bench is to act as am impartial arbiter. His job is to listen to the arguments of counsel when deciding upon the merits of a motion or determining whether objections should be overruled or sustained.

And, should a defendant come before the bench for sentencing - either on a plea without a recommendation or as the result of a conviction, the judge is obligated to consider the entire range of punishment for that offense -- including probation.

I've asked the question before, and I'll ask it again, when a judge's campaign material says he's "tough," what does that mean? Is he going to hold the state to its burden of proof? Is he going to lend a critical eye to allegations that the police violated a defendant's constitutional rights? Or is he going to act as the second prosecutor in the courtroom?

That's what they do in Russia.

Does the State Bar even care about us?

I sat through three hours of CLE yesterday listening to the pros and cons of the State Bar's proposed changes to the Texas disciplinary rules.

First I listened to Amon Burton, Charles Herring and Jim McCormack tell me what was wrong with the proposed amendments. Well, to be honest, what was wrong with a small handful of them.

According to the State Bar, there will be no material changes to the rules as a result of the amendments. Mr. McCormack then asked the question that every lawyer in Texas should be asking: If you're not going to make material changes, why make the changes?

Just stop and think about that a bit. Let it sink in. So either the State Bar is proposing change for the sake of change or they're just plain lying about the effect of the changes.

As a rule of thumb, we make changes to address problems we encounter. If we're always late in the mornings we wake up earlier. If we think we weigh too much, we make changes in our diet.

In the context of the proposed changes, Mr. Burton wants to know what problem are these proposed changes meant to address. He also wants to know what goals the drafters of the proposed amendments had in mind. Finally he wants to know how much it's going to cost Texas lawyers to comply with the proposed changes.

Mr. Burton estimated that the 88,000 or so attorneys in Texas would each spend an average of 4.33 additional hours making sure they were in compliance with the new rules. He then estimated an average(?) billing rate of $262/hour for a total cost of $99,832.480. I'm not certain where he came up with his estimates, but I'm sure most of my colleagues on the defense bar would love to get a piece of that $262 an hour. It kind of puts into perspective how much counties car about providing quality representation for indigent defendants when the going rate in the Harris County area is anywhere from $50 to $100 an hour for appointed cases.

Then I listened to the State Bar's propaganda piece CLE and my head began to spin as I tried to keep up with the ball as it moved from cup to cup. First you had the State Bar's presenters tell us not to worry that the proposed changes differed from the ABA model rules. No one uses the ABA rules, they insisted. Then later on they said the State Bar used the ABA model rules as a guide or jumping-off point when drafting the rules. Then they told claimed there were no difference between the proposed changes and the ABA model rules.

Oh, lest I forget, the CLE began with an introductory video featuring the State Bar president, Terry Tottenham. And wouldn't you know it, the first thing out of his mouth was that it had been 20 years since the rules had last been changed and that was just too damn long. So that's your main selling point?

One of the presenters told us that some of the rules differed from the ABA model rules because the State Bar wanted the specifics of the rule to be found in the rule itself instead of being hidden in the comments. Then they all spoke of how we needed to read the comments for guidance in how to follow the proposed amendments.

We were told that attorneys who opposed the changes in the conflicts rules were probably acting unethically in the way they practiced. We were told not to worry about the changes in the confidentiality rule because Texas was already less stringent than the ABA on what constituted privileged communication between an attorney and a client.

And we were told it's not a good idea to sleep with a client or condition representation on the willingness of a client to sleep with you. Well, yeah, and if you juggle sharp knives you're likely to cut yourself to shreds.

The presenters also spent a good deal of time telling us how we needed to change the rules so we could show the legislature and the people of Texas that we could govern our profession ourselves. They seemed more concerned with the sunset review of the State Bar in 2015 than with how the rules affected criminal defense attorneys.

Interestingly enough, during the course of the entire three hours there was no one mention of the rules affecting  flat fees or IOLTA accounts. Not a one. Both presentations seemed geared toward attorneys working in large firms who might actually run across situations in which an attorney, or the firm, might be conflicted out of representation.

I really don't care about how large firms run conflicts checks when a prospective client walks in the door. I represent (for the most part) folks who are charged with committing criminal acts; and since I don't assist the state in its efforts to infringe upon the citizenry's rights and liberties, I have very little concern about being conflicted out of a case.

The State Bar of Texas doesn't care about those of who defend those accused of breaking the law. Is the self-governance of the profession really our concern?

I'm from the government and I'm here to help

Now we have a judge in Harris County who is concerned about the amount of time our clients miss from work or school as the result of appearing at court settings in criminal cases. At least that's the story going around.

In order to combat this problem, the Honorable Jay Karahan has decreed that there will only be three pre-trial settings in matters in his court: the initial appearance, a motions setting and a final setting either to plead the case or set it for trial. But will this "rocket docket" actually benefit our clients?

The answer is a resounding no.

Being required to make multiple appearances in court is an inconvenience for most of our clients. They have jobs. Or they're in school. Or they have family obligations. However, in some cases, multiple settings is the only way to obtain the evidence that is necessary to defend the case.

How long will it take to get that blood test result back? What about that lab report on that little rock in the floorboard? What about having to wait for an ALR hearing in a DWI case? How about obtaining maintenance records for a breath test machine?

Will the settings be 30 days apart? 45 days apart? 60 days apart?

Reducing the number of settings will benefit those attorneys who live by "churning and burning" their clients into quick pleas. No longer will they have to pretend to work a case to satisfy a client. Now they can scare their clients into pleading out by telling them that the case is bad and can't be won at trial.

The other result of the "rocket docket" will be more and more cases set on the trial docket. It takes time to prepare a case properly for trial, especially cases in which we're dealing with (pseudo)scientific evidence. It takes time to get an ALR hearing. It takes time to get lab results. It takes time to interview witnesses.

I can think of no reason a client in a criminal prosecution benefits by speeding up the docket - unless they're already in custody (in which case they aren't inconvenienced by multiple appearances). After all, every day that your client is out and about is a victory when you are up against the oppressive power of the state.

If the dockets have become unmanageable, maybe we should look to what's happening on the 6th floor at 1201 Franklin. Harris County District Attorney Pat Lykos operates her office using fear as a motivator. There are prosecutors who are scared to dismiss questionable cases out of fear of retribution by Ms. Lykos.

The "rocket docket" is not being implemented to benefit our clients. Nothing in the criminal courthouse is designed to benefit our clients. The purpose is to coerce more pleas and deprive more citizens of their right to a trial by jury of their peers.

Slow and steady wins the race

I recently handled a dope case in which the police claimed to have found one rock of cocaine in his vehicle. The officer, after cuffing my client and placing him in the back of his patrol car, conducted a warrantless search of my client's vehicle in violation of Gant.

During this illegal search, the officer found what he described as a "small beige piece of rock" on the floorboard of the vehicle. Using his handy Scott Cocaine Test Kit, the officer noted the rock turned blue, indicating the test was positive for cocaine.

According to the Scott Company's website:

Scott Company Drug testing products are Colormetric Field Tests for the presumptive identification of narcotics, illegal drugs and controlled substances.  The chemistry of the reagents found in these tests is of the same type relied upon by forensic chemists in laboratories to detect and identify illicit drugs & controlled substances. We have placed these reagents in better, more accessible packages that allow them to easily and safely used in the field by law enforcement officers. 

Though test accuracy is subjective contingent upon the composition of the substance being tested, we certify our test kits to be no less than 99% accurate. To date, there is no colormetric drug test kit (suitable for field use) produced by any manufacturer that is completely 100% accurate and immune from either inconclusive or false positive readings. 

We were set to argue our motion to suppress some five months after my client was arrested.

On the day of the hearing I got a call from the prosecutor handling the case telling me they were dismissing it. The state wasn't dismissing the case because the prosecutor came to the realization that my client's constitutional right against unreasonable search and seizure, the state was dismissing the case because the lab who tested the rock found in my client's vehicle said it wasn't cocaine.

In the lead up to the suppression hearing, I had another prosecutor tell me that the search was good and that he would offer my client two years in prison in exchange for a guilty plea.

I don't know what disturbs me more about this case: the fact that no one from the DA's office notified me of the lab results until five months after my client's arrest or that a prosecutor was more than willing to send my client to prison for two years without any proof he had broken any law.

The opposition grows

The number of organizations coming out against the State Bar's proposed changes to the disciplinary rules continues to grow:

• Texas Criminal Defense Lawyers Association
• Harris County Criminal Defense Lawyers Association
• Galveston County Criminal Defense Lawyers Association
• Houston Trial Lawyers Association
• State Bar of Texas Council of the General Practice, Solos and Small Firms Section (Props A,B,D and E)

If you know of any other organizations that have announced their opposition to the State Bar's proposals, please let me know so that I can add them to the roll.

Political propaganda disguised as education?

Not to be outdone by those opposing the proposed changes to the disciplinary rules, the State Bar of Texas has decided to bring out of retirement, a free two-hour CLE about the proposed changes. I'm sure that our dues money isn't being used for this propaganda push otherwise passing for continuing legal education.

According to the State Bar:

During this presentation on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct, the panelists will touch on the process of amending the rules but will focus mainly on four of the proposed new rules – Rules 1.00, 1.13, 1.14. 1.17 – and the proposed amendments to four conflict-of-interest rules – Rules 1.06 through 1.09 – that have sparked considerable debate during the amendment process. This webcast is intended to help lawyers understand the current content of proposed rules that will go to a referendum between January 18 and February 17. Take advantage of this opportunity to learn about these proposed rules before exercising your right to vote.

With a panel made up of a former chair of the State Bar's committee on the disciplinary rules, the current chair of the Supreme Court's task force on the disciplinary rules and the Supreme Court's rules attorney, I'm sure you will hear a balanced assessment of the proposed changes.

To the island and back

Here are a couple of interesting photos I took on my way back and forth to the island the other day. Yes, I took them while I was driving. I'm one of those folks who messes around with his cell phone while driving.

I was fascinated with that beam of sunlight making its way through the clouds. This is on my way down to the island.

I found the gradations of grey in the sky had a haunting beauty. This is on the way back to Houston.

Your state bar dues money in action

While killing time at the Galveston County Law Library, I came across this pamphlet on the proposed ethics rule changes. The pamphlet was produced using our dues money and toes the company line on the "need" for reforming the rules. There is no evidence in the pamphlet of any opposition to the proposed changes.

It's telling when the first thing the State Bar president mentions is that it's been 20 years since the ethics rules were last reviewed and changed.

In the January 2011 issue of the Texas Bar Journal Mr. Tottenham notes that "the practice of law has changed significantly over the past 20 years...For example, we did not use technology to the degree we do now." That's all well and good, but what on earth does technology have to do with trying to abolish the flat fee?

Mr. Tottenham, change for the sake of change is not only not a good idea, it's not good policy. If you can't come up with a better argument for changing the rules then I can think of no good reason the rules should be changed.

UT Law offers free CLE on proposed rule changes

For those of you who want more information on the State Bar's proposed disciplinary rules changes, the University of Texas is offering a free one-hour online CLE that addresses issues and problems with the proposed changes.

The CLE is free through January 29, 2011 and again from February 2-18, 2011. There will be a $35 fee for the CLE between January 30 and February 1.

The discussion is hosted by Amon Burton, Charles Herring, Jr. and Jim McCormack who have all spoken out against the proposals.

For more information, click here.

Grievance filed against Judge Killer

The presiding judge of the Texas Court of Criminal Appeals, Sharon Keller, now finds herself the target of a grievance filed by the Texas Civil Rights Project. The grievance alleges that Judge Killer is unfit to practice law (or whatever it is she practices) in Texas.

The group alleges that Judge Killer broke Texas law by failing to disclose her personal finances as required of elected officials. The grievance also accuses Judge Killer of being less than forthright before a tribunal when asked about her role in the execution of Michael Richard.

The text of the Texas Civil Rights Project's press release follows:

GRIEVANCE FILED AGAINST PRESIDING JUDGE OF COURT OF CRIMINAL APPEALS
Alleges Judge Sharon Keller is Unfit to Retain Her License to Practice Law

AUSTIN – A disciplinary grievance against Judge Sharon Keller, Presiding Judge of the Court of Criminal Appeals, the highest court of appeals in the state for criminal matters, will be filed later today with the State Bar of Texas. The grievance challenges Keller’s fitness to retain her license to practice law, citing multiple acts of misconduct by Keller that were revealed in 2010 by the Texas Ethics Commission and the Commission on Judicial Conduct. Keller must be licensed to practice law to remain the Presiding Judge of the Court of Criminal Appeals. Tex. Const. Art. 5 § 4(a).

Texas Ethics Commission
On April 28, 2010, the Texas Ethics Commission (TEC) found that Judge Keller had committed numerous class B misdemeanors in 2007 and 2008 by failing to make personal financial disclosures required by elected state officials in Texas.

Texas state officers and employees must disclose their financial information, swearing under penalty of perjury that each statement is true, to ensure they do not have a direct or indirect interest that substantially conflicts with their duties in the public trust. Tex. Gov’t Code 572.001. However, TEC found that in last two elections years, if not more, Judge Keller failed to disclose a wealth of personal financial information, including:

• Eight sources of income, totaling about $121,500.00;
• Between 100 and 499 shares of stock;
• One money market account, two notes, and 22 certificates of deposit.

State Commission on Judicial Conduct
On July 16, 2010, the State Commission on Judicial Conduct released extensive findings made after a year-and-a-half long inquiry into her conduct leading up to the execution of Michael Richard.

The Commission concluded that Judge Keller knowingly violated Execution-day Procedures of the Court of Criminal Appeals, unlawfully denying Richard the right to be heard, in contravention of the Court’s own rules and Richard’s constitutional rights. Richard was executed at 8:23 p.m. on September 25, 2007.

Lack of Candor to a Tribunal
In addition to the inquiry by the Commission started in the aftermath of Richard’s execution, Judge Keller was sued in federal court by Richard’s next of kin. As the documents included in the grievance demonstrate, Judge Keller’s statements before the federal court and her statements to the Commission were in complete contradiction of each other.

Lack of candor before a tribunal is the most explicit demonstration that an attorney lacks the honesty and trustworthiness to practice law.

Substantial Question as to Honesty, Trustworthiness, and Fitness to Retain Her License Honesty and trustworthiness are the most important requirements for an attorney. The ethical rules governing a lawyer’s conduct prohibit the abuse of positions of public or private trust. This holds even truer for judges, who are “the symbol[s] of both the judicial system and administration of justice.” Texas Lawyer’s Creed, IV.1. Sharon Keller has sullied that symbol.

Public shaming, part deux

First there was the Twitter campaign by the Montgomery County (TX) District Attorney's Office. To refresh your memories, the MCDAO made a big to-do about tweeting the names of motorists arrested on suspicion of drunk driving in Montgomery County. Strangely enough, the MCDAO doesn't seem to tweet the names of those fortunate folks who have been acquitted by Montgomery County juries.

Now it's time for another social media campaign aimed at motorists arrested on suspicion of drunk driving. Now it Huntington Beach, California and Facebook.

City Councilman Devin Dwyer wants to shame motorists arrested for driving under the influence more than once  by posting their mugshots on the police department's Facebook page.

There is a saying: Come to Huntington Beach on vacation, leave on probation. -- Randall Bert, local attorney

Interestingly enough, Huntington Beach Police spokesman, Lt. Russell Reinhart, thinks the idea is a bad one.

We see no value in doing that. Law enforcement is not about public shaming. - Lt. Russell Reinhart

Again, I ask Mr. Dwyer the same question I asked Warrenn Diepraam of the MCDAO: are you going to issue apologies to those folks who aren't found guilty?

Court deems lab reports inadmissible

While standing trial for possession with intent to distribute narcotics, Ronald Johnson objected to the admission of lab reports attesting to the weight of the drugs and to testimony from a supervisor about the contents of the reports in the absence of the lab techs who wrote the report.

The trial court, finding no harm in allowing a witness to parrot the information contained in a lab report written by someone else regarding tests performed by another person, allowed the reports to be entered into evidence and allowed the supervisor to testify to the contents of the reports. Surprisingly enough, Mr. Johnson was convicted.

On appeal (Johnson v. State, No. 09049F (Tex.App.--Dallas, 2011) Mr. Johnson argued that the trial court's decision violated his 6th Amendment right to confront the witnesses against him. The state argued that even if the reports were inadmissible, an expert witness may base his testimony on inadmissible hearsay.

In dismissing the state's contention that the supervisor's testimony was admissible, the court stated that while it was permissible for an expert base his expert opinion on inadmissible hearsay, it was not kosher for a person to act as "little more than a conduit for...testimonial hearsay."

The court found that the reports were testimonial in nature and that Mr. Johnson had not been afforded the opportunity to cross examine either the author or the person who performed the tests. Since the court found the evidence violated Mr. Johnson's 6th Amendment right to confrontation, the court:

should consider several factors: (1) The importance of the hearsay statements to the State's case; (2) Whether the hearsay evidence was cumulative of other evidence; (3) The presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) The overall strength of the prosecution's case.

Having found that the state's case rested entirely on the reports in question, the court reversed the conviction.

Just follow the money

What exactly is the impetus for changing the disciplinary rules in Texas? According to the State Bar, not approving the referendum would embarrass the Texas bar. I don't know how it could embarrass the state more than the Chief Judge on the Texas Court of Criminal Appeals telling the clerk's office not to accept an after-hours filing on behalf of a man scheduled to die at the hands of the state.

Maybe the assault on the flat fee and the attempts to change the rules so that criminal defense attorneys would have to park the money received on flat fees in a trust account is nothing more than a money grab by the State Bar.

The Texas Access to Justice Foundation receives the vast majority of its funding through the interest earned on IOLTA accounts in Texas. For those of you not familiar with this beast - an IOLTA account is a client trust account in which an attorney must place funds that haven't been earned and property received in settling a case. The interest earned on these accounts goes to the Texas Access to Justice Foundation to fund legal aid projects throughout the state.

According to the 2010 report filed by the TAJF with the Texas Supreme Court,

While the continuing effects of historically low interest rates devastate IOLTA revenue, the Texas Access to Justice Foundation continues to work on diversified sources of funding civil legal services for poor and low-income Texans. The Foundation projects approximately $5.5 million in IOLTA revenue for 2010 - a 73 percent decrease in IOLTA revenue from 2007. Current economic forecasts indicate little change in interest rates in the foreseeable future.

The Foundation and its partners in access to justice will be working diligently during the upcoming legislative session to support the Court's request for an appropriation of $20 million for the biennium for civil services to the poor to help fill the gap in funding created by the loss of IOLTA.

And, with a budget crisis looming in Austin as the legislature tries to figure out how to balance a budget without raising taxes, I wouldn't cross my fingers on legislators voting $20 million to aid the poor.

There's the reason for the proposed changes. Force criminal attorneys to park flat fees in IOLTA accounts so the State Bar can siphon the money to fund programs to offer low cost legal services to the poor for civil matters. So the combination of a sour economy and tort reform is behind the State Bar's all out push to change the way criminal defense attorneys conduct business.

Just follow the money, baby.

Let our voices be heard

Fellow counsel,

It's time to cast your vote on the proposed changes to the Texas disciplinary rules. You may vote online at the State Bar's website until 5pm on February 17, 2011. This is your opportunity to let the powers that be at the State Bar know you're upset with the manner in which the criminal defense bar is treated in this state. Let the State Bar know you are tired of the rules governing how we conduct our business being decided by BigLaw attorneys in Houston, Dallas and Austin. Remember that the people proposing these rules don't work in the trenches with those that no one else dares represent.

The State Bar has mobilized a campaign to force these changes down out throats and they're using our dues money to do it. Just take a look at the State Bar's website. Are there any dissenting opinions posted? No. The only information provided on their website is propaganda in favor of the proposed changes. To be fair there is an article from the bar journal that does include the reasons some attorneys plan to vote no to the changes -- but I harbor serious doubts that these responses were from a true cross-section of Texas attorneys.

The State Bar has taken our money (that we are required to hand over to them) and used it to pay for e-mail blasts that take aim at anyone who dares to challenge their orthodoxy. Anyone who undertakes such a campaign makes me want to know what they're not telling us -- or what they're afraid to admit.

Currently Rule 1.04(a) says that an attorney may not charge an unconscionable fee:

(a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable. 

According to the commentary on the current rules,

A lawyer in good conscience should not charge or collect more than a reasonable fee, although he may charge less or no fee at all. The determination of the reasonableness of a fee, or of the range of reasonableness, can be a difficult question, and a standard of reasonableness is too vague and uncertain to be an appropriate  standard in a disciplinary action. For this reason, paragraph (a) adopts, for disciplinary purposes only, a clearer standard: the lawyer is subject to discipline for an illegal fee or an unconscionable fee. Paragraph (a) defines an unconscionable fee in terms of the reasonableness of the fee but in a way to eliminate factual disputes as to the fees reasonableness. The Rules unconscionable standard, however, does not preclude use of the reasonableness standard of paragraph (b) in other settings. 

Under the proposed changes, Rule 1.04(a) would read:

A lawyer shall not enter into an arrangement for, charge,or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a reasonable lawyer would be left with a firm belief or conviction that the fee is in excess of a reasonable fee.

The commentary for the proposed change states:

A lawyer in good conscience should not charge or collect more than a reasonable fee, although a lawyer may charge less or no fee at all. Thus, paragraph (a) subjects a lawyer to discipline when a reasonable lawyer would be left with a firm belief or conviction that the fee is in excess of a reasonable fee. But this paragraph’s “clearly excessive” standard does not preclude use of the “reasonableness” standard of paragraph (b) in other settings.

So, here's the rub. In the commentary to the existing rules we learn that it can be difficult to determine what is or isn't a reasonable fee and that such a standard would be "too vague" to use in disciplinary procedures, but the new rule talks about fees that are "clearly excessive" and the commentary indicates that a reasonableness standard should be applied to determine if the fee arrangement violates the rules.

That, my friends, is a tremendous change and a scary one at that. Who determines what's reasonable? Will it be other criminal defense attorneys in the area? Will it be other criminal defense attorneys who handle a particular type of criminal case on a routine basis? Will it be attorneys from BigLaw who have no idea of what goes down in the criminal courts or what is involved in defending a person accused of committing a crime?

In the course of less than six years, how did we get to a point where a reasonableness standard isn't too vague anymore?

The State Bar attempts to answer concerns from criminal defense attorneys that the new rules will change the way attorneys have to handle flat fee arrangements (or if such arrangements are even allowed). According to the State Bar

The proposed rule does not change this law (and it could not) and puts criminal defense lawyers in no worse or better position than the current rule.

Well, if that's the case, why change the rule at all?

I urge everyone to vote no to the proposed changes and I urge you to express your concerns to attorneys who practice outside the criminal courts.

For more commentary, please see:

• "Why flat fees are good for clients" Defending People (1/14/11)
• "What the State Bar thinks about flat fees" Defending People (1/15/11)
• "Are 10,000 Texas criminal defense lawyers wrong on flat fees?" Defending People (1/16/11)
• "Flat fees and the last Texas criminal defense lawyer" Simple Justice (1/16/11)
• "Shame on the Texas Bar, and us" Criminal Defense (1/16/11)
• "Memo to Texas Bar: Back off" Norm Pattis Blog (1/16/11)
• "Flat fee fight: What's really going on" Defending People (1/17/11)

It it ain't broke, fix it!

One of the purported rationales for the State Bar's decision to rewrite the disciplinary rules is that the ABA model rules have been modified since the Texas rules were implemented. If that's the case, shouldn't the Texas rules more closely mirror the model ABA rules?

Over the past few years I've read countless articles in ABA publications pronouncing the (premature) death of the billable hour. Article after article touts the benefits to clients of "value billing."

Additional ways to price legal fees include value billing and success-based fees. It always makes sense to talk about fees in terms of value. What separates you from your competitor is not simply that you will each do quality legal work, but that you provide a unique understanding of the value this service provides your client. Hourly billing can be the antithesis of value-based services. What is it worth to your client to avoid expensive litigation? What is it worth to your client to operate a business free from worry about meeting legal deadlines and having compliance issues handled in a timely and accurate manner? By providing a value added service you become a trusted advisor focused on your client’s business success, rather than a service provider sending monthly invoices. It is hard to quantify the value of prevention. But any client who has been through costly litigation should have an understanding of the value that a strong partnership with a legal advisor can bring.

That's from a 2005 article in Law Practice TODAY written by Wendy Werner entitled "Alternative billing practices beyond the billable hour."

Sound familiar? Clients come to criminal defense attorneys because they have a problem that needs solving. They need someone who's familiar with the law, the venue and the court. They come in looking for someone who can help them resolve their problem in a way they, and their loved ones, can live with.

Unlike civil attorneys, we don't charge the same amount to every client for drafting routine motions that only require headings, names and dates to be changed. We don't charge clients for the myriad of phone calls we receive and make regarding their cases. We don't charge the trips to the county jail on weekends or at night. We charge for our ability to handle their case and our knowledge of the facts, law and science involved.

We counsel our clients about what to expect as their case moves along. We put together grand jury and pretrial diversion packets when necessary. We negotiate for plea arrangements when that is in our clients' best interest. We stand beside our clients and fight like hell when the state tries to take away their liberty. We are hand-holders, teachers and orators.

In Comment No. 5 to ABA Model Rule 1.05 (the analogue to proposed rule 1.04 in Texas), the authors note that any fee arrangement must not be one that might cause the attorney to curtail services to the client:

An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.

As I have stated before, it is the flat fee arrangement that allows criminal defense attorneys to provide our clients with the best representation we can. According to the comment above, fee agreements should not be written in such a way that limits services when it is "foreseeable" that more is required. It is foreseeable that every criminal case may go to trial. Do away with the flat fee and clients will be forced to pay even more money to a defense attorney as a deposit against future expenses in every representation.

How does that benefit someone accused of a criminal offense? Most of our clients struggle to pay us the fee we quote. Do away with the flat fee and who will be able to afford to put down even more?

Strangely enough, the comments affixed to the proposed change in Texas doesn't contain the language I've quoted above. It would seem to me that if you want the Texas rules to mirror the ABA's rules you would include the same or, at least, similar, commentary.

ABA Model Rule 1.15(c) reads:

A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

Comment No. 3 to the ABA Model Rule reads:

Lawyers often receive funds from which the lawyer's fee will be paid. The lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. However, a lawyer may not hold funds to coerce a client into accepting the lawyer's contention. The disputed portion of the funds must be kept in a trust account and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed.

The ABA recognizes that not all representation is billed by the hour. According to the ABA commentary, a flat fee is reasonable when the lawyer believes the fee charged to be reasonable for the services to be rendered. There is nothing in the commentary to indicate that a flat fee is unearned.

However, the proposal for Texas Rule 1.15(d) - the analogue - reads:

A lawyer shall deposit unearned fees and advanced expenses into a client trust account, to be withdrawn by the lawyer only as fees are earned or expenses are incurred.

And comment No. 12 to the proposed makes it clear that the State Bar has flat fees in its sights:

Paragraph (d) addresses unearned fees. Fee agreements sometimes state that the fee is a flat fee, advance fee, nonrefundable retainer, or some other kind of fee. But without regard to the label, if the fee is a prepayment for services, paragraph (d) requires a lawyer to deposit the fee into a trust account until it is earned. Applicable law, not these Rules, determines when a fee is earned.

See the difference? The proposed change calls a flat fee an unearned fee which requires that an attorney hold that fee in trust until such time as it is earned. What does the State Bar want? Do they want us to bill our clients by the appearance -- thus dragging out cases needlessly or forcing clients to plead because they can't afford continued representation?

There is nothing inherently evil about a flat fee. Insurance companies have flat fee arrangements with some of the attorneys who handle their cases. The State Bar doesn't seem to have a problem with State Farm agreeing to pay a law firm a flat fee in exchange for that firm defending their insured over a car wreck. Of course State Farm will pay that fee after the case is resolved, regardless of the outcome. Just try collecting the balance of a fee after a client has been convicted and sent to prison.

"Injustice anywhere is a threat the justice everywhere"

On April 16, 1963, Martin Luther King penned the following letter to members of the clergy after his arrest in Birmingham, Alabama for leading a nonviolent protest against the segregation laws in the South. The letter was written in response to white ministers who questioned the tactics being used by Dr. King in the struggle  against segregation.

My Dear Fellow Clergymen:

While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms.

I think I should indicate why I am here in Birmingham, since you have been influenced by the view which argues against "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here.

But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city's white power structure left the Negro community with no alternative.

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good faith negotiation.

Then, last September, came the opportunity to talk with leaders of Birmingham's economic community. In the course of the negotiations, certain promises were made by the merchants--for example, to remove the stores' humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained. As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: "Are you able to accept blows without retaliating?" "Are you able to endure the ordeal of jail?" We decided to schedule our direct action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic-withdrawal program would be the by product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.

Then it occurred to us that Birmingham's mayoral election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene "Bull" Connor, had piled up enough votes to be in the run off, we decided again to postpone action until the day after the run off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct action program could be delayed no longer.

You may well ask: "Why direct action? Why sit ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness"--then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I it" relationship for an "I thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God consciousness and never ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber. I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: "All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth." Such an attitude stems from a tragic misconception of time, from the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

You speak of our activity in Birmingham as extreme. At first I was rather disappointed that fellow clergymen would see my nonviolent efforts as those of an extremist. I began thinking about the fact that I stand in the middle of two opposing forces in the Negro community. One is a force of complacency, made up in part of Negroes who, as a result of long years of oppression, are so drained of self respect and a sense of "somebodiness" that they have adjusted to segregation; and in part of a few middle-class Negroes who, because of a degree of academic and economic security and because in some ways they profit by segregation, have become insensitive to the problems of the masses. The other force is one of bitterness and hatred, and it comes perilously close to advocating violence. It is expressed in the various black nationalist groups that are springing up across the nation, the largest and best known being Elijah Muhammad's Muslim movement. Nourished by the Negro's frustration over the continued existence of racial discrimination, this movement is made up of people who have lost faith in America, who have absolutely repudiated Christianity, and who have concluded that the white man is an incorrigible "devil."

I have tried to stand between these two forces, saying that we need emulate neither the "do nothingism" of the complacent nor the hatred and despair of the black nationalist. For there is the more excellent way of love and nonviolent protest. I am grateful to God that, through the influence of the Negro church, the way of nonviolence became an integral part of our struggle. If this philosophy had not emerged, by now many streets of the South would, I am convinced, be flowing with blood. And I am further convinced that if our white brothers dismiss as "rabble rousers" and "outside agitators" those of us who employ nonviolent direct action, and if they refuse to support our nonviolent efforts, millions of Negroes will, out of frustration and despair, seek solace and security in black nationalist ideologies--a development that would inevitably lead to a frightening racial nightmare.

Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to the American Negro. Something within has reminded him of his birthright of freedom, and something without has reminded him that it can be gained. Consciously or unconsciously, he has been caught up by the Zeitgeist, and with his black brothers of Africa and his brown and yellow brothers of Asia, South America and the Caribbean, the United States Negro is moving with a sense of great urgency toward the promised land of racial justice. If one recognizes this vital urge that has engulfed the Negro community, one should readily understand why public demonstrations are taking place. The Negro has many pent up resentments and latent frustrations, and he must release them. So let him march; let him make prayer pilgrimages to the city hall; let him go on freedom rides -and try to understand why he must do so. If his repressed emotions are not released in nonviolent ways, they will seek expression through violence; this is not a threat but a fact of history. So I have not said to my people: "Get rid of your discontent." Rather, I have tried to say that this normal and healthy discontent can be channeled into the creative outlet of nonviolent direct action. And now this approach is being termed extremist. But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: "Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you." Was not Amos an extremist for justice: "Let justice roll down like waters and righteousness like an ever flowing stream." Was not Paul an extremist for the Christian gospel: "I bear in my body the marks of the Lord Jesus." Was not Martin Luther an extremist: "Here I stand; I cannot do otherwise, so help me God." And John Bunyan: "I will stay in jail to the end of my days before I make a butchery of my conscience." And Abraham Lincoln: "This nation cannot survive half slave and half free." And Thomas Jefferson: "We hold these truths to be self evident, that all men are created equal . . ." So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary's hill three men were crucified. We must never forget that all three were crucified for the same crime--the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.

I had hoped that the white moderate would see this need. Perhaps I was too optimistic; perhaps I expected too much. I suppose I should have realized that few members of the oppressor race can understand the deep groans and passionate yearnings of the oppressed race, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action. I am thankful, however, that some of our white brothers in the South have grasped the meaning of this social revolution and committed themselves to it. They are still all too few in quantity, but they are big in quality. Some -such as Ralph McGill, Lillian Smith, Harry Golden, James McBride Dabbs, Ann Braden and Sarah Patton Boyle--have written about our struggle in eloquent and prophetic terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach infested jails, suffering the abuse and brutality of policemen who view them as "dirty nigger-lovers." Unlike so many of their moderate brothers and sisters, they have recognized the urgency of the moment and sensed the need for powerful "action" antidotes to combat the disease of segregation. Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a nonsegregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.

But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church. I felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular.

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Wallace gave a clarion call for defiance and hatred? Where were their voices of support when bruised and weary Negro men and women decided to rise from the dark dungeons of complacency to the bright hills of creative protest?"

Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? I am in the rather unique position of being the son, the grandson and the great grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists.

There was a time when the church was very powerful--in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society. Whenever the early Christians entered a town, the people in power became disturbed and immediately sought to convict the Christians for being "disturbers of the peace" and "outside agitators."' But the Christians pressed on, in the conviction that they were "a colony of heaven," called to obey God rather than man. Small in number, they were big in commitment. They were too God-intoxicated to be "astronomically intimidated." By their effort and example they brought an end to such ancient evils as infanticide and gladiatorial contests. Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church's silent--and often even vocal--sanction of things as they are.

But the judgment of God is upon the church as never before. If today's church does not recapture the sacrificial spirit of the early church, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century. Every day I meet young people whose disappointment with the church has turned into outright disgust.

Perhaps I have once again been too optimistic. Is organized religion too inextricably bound to the status quo to save our nation and the world? Perhaps I must turn my faith to the inner spiritual church, the church within the church, as the true ekklesia and the hope of the world. But again I am thankful to God that some noble souls from the ranks of organized religion have broken loose from the paralyzing chains of conformity and joined us as active partners in the struggle for freedom. They have left their secure congregations and walked the streets of Albany, Georgia, with us. They have gone down the highways of the South on tortuous rides for freedom. Yes, they have gone to jail with us. Some have been dismissed from their churches, have lost the support of their bishops and fellow ministers. But they have acted in the faith that right defeated is stronger than evil triumphant. Their witness has been the spiritual salt that has preserved the true meaning of the gospel in these troubled times. They have carved a tunnel of hope through the dark mountain of disappointment. I hope the church as a whole will meet the challenge of this decisive hour. But even if the church does not come to the aid of justice, I have no despair about the future. I have no fear about the outcome of our struggle in Birmingham, even if our motives are at present misunderstood. We will reach the goal of freedom in Birmingham and all over the nation, because the goal of America is freedom. Abused and scorned though we may be, our destiny is tied up with America's destiny. Before the pilgrims landed at Plymouth, we were here. Before the pen of Jefferson etched the majestic words of the Declaration of Independence across the pages of history, we were here. For more than two centuries our forebears labored in this country without wages; they made cotton king; they built the homes of their masters while suffering gross injustice and shameful humiliation -and yet out of a bottomless vitality they continued to thrive and develop. If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail. We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands. Before closing I feel impelled to mention one other point in your statement that has troubled me profoundly. You warmly commended the Birmingham police force for keeping "order" and "preventing violence." I doubt that you would have so warmly commended the police force if you had seen its dogs sinking their teeth into unarmed, nonviolent Negroes. I doubt that you would so quickly commend the policemen if you were to observe their ugly and inhumane treatment of Negroes here in the city jail; if you were to watch them push and curse old Negro women and young Negro girls; if you were to see them slap and kick old Negro men and young boys; if you were to observe them, as they did on two occasions, refuse to give us food because we wanted to sing our grace together. I cannot join you in your praise of the Birmingham police department.

It is true that the police have exercised a degree of discipline in handling the demonstrators. In this sense they have conducted themselves rather "nonviolently" in public. But for what purpose? To preserve the evil system of segregation. Over the past few years I have consistently preached that nonviolence demands that the means we use must be as pure as the ends we seek. I have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends. Perhaps Mr. Connor and his policemen have been rather nonviolent in public, as was Chief Pritchett in Albany, Georgia, but they have used the moral means of nonviolence to maintain the immoral end of racial injustice. As T. S. Eliot has said: "The last temptation is the greatest treason: To do the right deed for the wrong reason."

I wish you had commended the Negro sit inners and demonstrators of Birmingham for their sublime courage, their willingness to suffer and their amazing discipline in the midst of great provocation. One day the South will recognize its real heroes. They will be the James Merediths, with the noble sense of purpose that enables them to face jeering and hostile mobs, and with the agonizing loneliness that characterizes the life of the pioneer. They will be old, oppressed, battered Negro women, symbolized in a seventy two year old woman in Montgomery, Alabama, who rose up with a sense of dignity and with her people decided not to ride segregated buses, and who responded with ungrammatical profundity to one who inquired about her weariness: "My feets is tired, but my soul is at rest." They will be the young high school and college students, the young ministers of the gospel and a host of their elders, courageously and nonviolently sitting in at lunch counters and willingly going to jail for conscience' sake. One day the South will know that when these disinherited children of God sat down at lunch counters, they were in reality standing up for what is best in the American dream and for the most sacred values in our Judaeo Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence.

Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?

If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me.

I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil-rights leader but as a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.

Yours for the cause of Peace and Brotherhood,

Martin Luther King, Jr.