Give her a chance ......lets talk about the ABC ripoff we paid for.......

• June 5, 2010
• 5:30 p.m.

Wattdoesithave2dowithanelection writes:

You are pretty opinionated too bad i am confident to tell her to her face, the real believes in your statement to her face, some write. I am totally confident in her that she is young but then she is fresh and working, i want to say, i know if I want her hear me out it will be face to face.....How many can say the same?

Why would RIck James Perry hire a worthless liar? Who Fabricates evidence , states on the record I owe him my first born child? Does he whine ?

Assess the risk ~ He is a superfreak.........but you wil find out soon enough.....What do you owe this Evil Malicious Prosecutor"? "your first Born Child?"

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Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them

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THE ELECTRIC CHAIR AND THE CHAIN GANG:

CHOICES AND CHALLENGES FOR AMERICA'S FUTURE

Lecture presented by Stephen B. Bright, director of the Southern Center for Human Rights and J. Skelly Wright Fellow at Yale Law School, at the Notre Dame Law School on February 15, 1996, and published in Volume 71, Notre Dame Law Review, page 845 (1996).

Copyright (c) 1996 University of Notre Dame; Stephen B. Bright

The use of capital punishment in America today presents a number of fundamental moral issues about our society and our system of justice. It is fitting that we address those issues here at Notre Dame Law School, which has a well-deserved reputation for raising moral issues, for a deep commitment to justice, and for responding to human needs with compassion.

Our society and the legal professional are failing to meet the need for legal services of many of those most desperately in need of such services in cases involving the highest stake, life itself. There are, of course, urgent needs in other areas besides capital punishment. Those accused of crimes which do not carry the death penalty, the poor, people of color, homeless people, people with mental impairments, people who are HIV positive, people in prisons and jails and many others are without lawyers to represent them in cases which involve their freedom, their shelter, their survival.

Those needs will be greater when you graduate from law school than they are today. But there could be fewer jobs and less resources for those who respond. And, as you know, you will be saddled with enormous debts. This presents a challenge, but it should not deter you from responding. Indeed, my message to you is that you have no choice except to respond Ä the needs and the times demand it.

Let's examine the needs and how individuals and institutions may respond to them.

Children and the poor are going to have a tremendous need for your services. The states are increasingly passing so-called welfare reform measures and Congress and the President are about to follow suit with a measure that will "end welfare as we know it." The result of these "reforms" will be to put thousands of children on heating grates to live.

This message to "get a job or starve" comes even as America's most prosperous companies are "down-sizing" Ä laying off thousands of workers who dedicated their lives to their companies. You will be practicing law in a world in which your fellow human beings are increasingly looked upon by the corporate structure and the government as disposable, as Charles Reich eloquently describes in his book, Opposing the System.1 A person can work hard all her life and suddenly, one day, lose her job, her health insurance, her home and everything Ä not because she did anything wrong, but because the company does not need her any more. Many of those who lose their jobs in this manner have little prospect of finding employment elsewhere.

Many of those growing up in our country today have little chance of obtaining a job because we have not met the promise of providing a quality education for all of our children. Of course, a quality education is essential for a job in today's world. Silicon Valley did not appear by coincidence in California. The opportunities offered there are the sweet fruit harvested as a result of the country's best system of higher education. But now that system is being raided to pay for unnecessary prisons. California now spends more money on its prison system than on its university system.

As a result of the denial of education, opportunity and even hope for so many of our children and their parents, the choice for many by age sixteen is not the one you had Ä which college to attend, what career to pursue. It is a choice between trying to find a minimum wage job at a fast food restaurant or getting in on the material wealth of the American dream through the only business available, the selling of illegal drugs.

As was pointed out recently by Steven Duke and Richard St. John:

Those who would eviscerate welfare contend that welfare recipients need the threat of severe deprivation to motivate them to seek a job. But all the evidence proves that there are no jobs for most of the people now on welfare . . . . A recent study of fastfood workers found 14 applicants for every opening.

There is another glaring gap in the reasoning of those who want to rescind the war on poverty: They assume that the only alternative a welfare recipient has is legitimate work. This overlooks the omnipresent alternative of crime.2

But America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend up to $30,000 a year on every child in the United States. All that child must do to obtain this government support is to try to medicate his depression or despair with illegal drugs or commit some other crime. The state and federal governments are absolutely committed to having a maximum security prison cell for any child who commits a crime Ä especially if that child is a person of color.

Some of those accused of crimes will be entered in a lottery Ä a lottery rigged by race and poverty. Out of thousands eligible, about 250 will be condemned to be strapped down and shot, hung, gassed, electrocuted or injected with lethal drugs.

Other industrialized nations have abandoned the death penalty. Recently the Constitutional Court of South Africa unanimously found the death penalty to be cruel, unusual and degrading punishment under that country's constitution.3 But we continue to sentence people to death in the United States.

I was in a Georgia courtroom last fall defending an African American facing the death penalty for a crime committed against a white person. We were trying to persuade the judge to remove the Confederate battle flag from the courtroom Ä it is a part of the Georgia state flag. The flag was adopted in defiance of the Supreme Court's decision in Brown v. Board of Education4 that schools be integrated.5 We were also asking the court to bar the state from seeking the death penalty against my client because of racial discrimination in the infliction of the death penalty in Georgia.

As we were litigating those motions, I was struck by several thoughts. The Olympic games are coming to Georgia next year. Georgia, like South Africa, has a long history of apartheid, racial oppression and racial violence. Yet now South Africa has moved ahead, it has joined the rest of the civilized world in abandoning capital punishment. But Georgia is still flying the Confederate battle flag in its courtrooms and burning people up in its electric chair while others celebrate their deaths outside.

But the problems are not limited to Georgia. The sad fact is that, increasingly, our state and federal governments are offering the young not hope, opportunity and equality, but the threat of incarceration and execution. Last summer, President Clinton began running television advertisements proclaiming his support for the death penalty and tough sentencing laws. In 1994, he signed into law a crime bill providing for the death penalty for fifty federal crimes.

The federal death penalty was brought back in 1988. Since that time the Justice Department has approved fifty-four capital prosecutions. All but nine have been against people of color. During the Clinton administration, Attorney General Reno has approved twenty-seven capital prosecutions. Twenty were against African Americans. Yet despite this sorry record, even more capital crimes were adopted last year.

In addition to providing for more death, state and federal governments pass new measures each year to provide for more incarceration. Longer prison sentences, mandatory minimum sentences, unreasonable and inflexible sentencing guidelines and other legislation such as "three strikes and you're out" result in more people serving longer periods of time behind bars at enormous cost. The United States now imprisons more people than ever before Ä over 1.5 million in both prisons and jails Ä and has the highest incarceration rate of any country in the world.6 To keep up with the growth in prison population will require the construction of 1,725 new prison beds each week.

And legislatures are moving to make life even more unbearable for those crowded into prisons and jails. Alabama has brought back the chain gang.7 Its only purpose is degradation and humiliation of human beings for political points. A person cannot get much work done chained to another person. Alabama has also returned to the practice of having prisoners stand in the hot Alabama sun for ten hours a day breaking rocks with ten-pound sledge hammers.8 This activity serves no practical purpose Ä there is no need for the crushed rock Ä but apparently it serves political purposes.

Not long ago such barbarism would be seen as just another aberrational act by Alabama. Today, it starts a national trend. Arizona and Florida have already reinstated the chain gang and other states are contemplating it as well. And the Alabama legislature, continuing its role as the trend setter, is now considering a bill to return to caning as punishment for crime. Children even as young as thirteen are being prosecuted as adults. Not just in Alabama, where fourteen and fifteen year old children are serving sentences of life imprisonment without any possibility of parole, but all across the land.

As prisons and jails become even more overcrowded, conditions deteriorate. Yet legislation proposed in the United States Congress would restrict the ability of federal courts to provide relief for unconstitutional conditions in prisons.9 This legislation is based on irresponsible assertions by the National Association of Attorneys General and members of Congress that prisoner lawsuits are about nothing more important than soggy sandwiches or being deprived of watching football games on television or the use of electronic games.

Nothing is said about the unconscionable degradation and violence in America's prisons that was corrected only by order of federal courts in response to suits brought by prisoners. Judge Frank Johnson ordered the correction of barbaric conditions in Alabama's prisons twenty years ago. Judge Johnson found "horrendous" overcrowding with inmates sleeping on mattresses in the hallways and next to urinals; prisons were "overrun with roaches, flies, mosquitoes, and other vermin"; mentally disturbed inmates were "dispersed throughout the prison population without receiving treatment"; and robbery, rape, extortion, theft and assault were "everyday occurrences" among the general inmate population.10

Prisons in thirty-nine states and the District of Columbia have been put under some form of court supervision because of the failure of state officials to operate constitutional facilities. For example, a federal judge found that residents of the California State Prison at San Quentin were "regarded and treated as caged animals, not human beings."11 At a prison in Pendleton, Indiana, the federal court found that inmates were shackled spread- eagle to metal bed frames for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie in their own filth."12 At the Southern Center for Human Rights, our docket of suits on behalf of prisoners is not about melting ice cream, but about the most fundamental human rights of people, such as the right to safety and security, to basic medical and mental health care.

It is the threat of punishment and degradation, not the promise of hope and opportunity, that we hold out to children who have the misfortune to be born into poverty, the victims of brutal racism, those who have the misfortune to be born into dysfunctional families, those who are the victims of physical, sexual and psychological abuse, and those who have the misfortune to be born with a deficit in intellectual functioning or some other mental impairment.

One would think that if all we hold out to these children is a prison cell, the chain gang and the electric chair, at least we could provide a little process Ä fair procedure with a good lawyer Ä before we take away their lives or freedom and subject them to such suffering and degradation for the suffering and degradation they caused others. And one would think that, at the very least, we would make sure that racial prejudice, which already puts so many at such a disadvantage, would not influence the severity of their punishment. But both fair procedures and the access to courts through competent and experienced counsel are being taken away even from those with the most desperate needs of all, those facing the executioner. And the courts are completely indifferent to the prominent role that race plays in the criminal justice system.

Since 1977, Chief Justice Rehnquist has waged a relentless war on the once great Writ of Habeas Corpus, which the Supreme Court described over thirty years ago as "the common law world's 'freedom writ."'13 It gives a person the right to go into federal court and assert that he or she has been imprisoned in violation of the Constitution. It gives a life-tenure federal judge the power, where there has been a constitutional violation, not to let the defendant go free, but to require the state to provide a new and fair trial. The Supreme Court once said "there is no higher duty than to maintain it unimpaired."14

But the Supreme Court under the leadership of Justice Rehnquist Ä later Chief Justice Rehnquist Ä has placed all manner of technicalities in the way of vindication of violations of the Bill of Rights.15 And now Congress and the President are poised to finish off the Writ. The Anti-Terrorism Bill that has passed the Senate includes provisions which would limit even further the ability of federal judges to set aside an illegally obtained death sentence.16 It will impose time limits that would treat capital cases like small claims cases.

This legislation would leave enforcement of the Bill of Rights primarily to state court judges. This sounds reasonable, but it overlooks that state court judges in all but a handful of states must stand for election.17 Those judges are not independent. In high publicity, high profile cases, enforcing the law may cost them their jobs. In the present political climate, an elected judge who grants relief in a capital case signs his or her own political death warrant. It has happened in California. Three justices of the state supreme court were swept from office because of their votes in capital cases.18 It happened in Mississippi.19 It has happened in other places, but often it does not happen because judges pay more attention to the next election than to the law in making their rulings.

There was an election last year for the Texas Court of Criminal Appeals. Stephen W. Mansfield ran for a seat on the court on a three-plank platform: greater use of the death penalty, greater use of the harmless error doctrine, and fines for lawyers who file "frivolous appeals" in death penalty cases.20 Mansfield challenged an incumbent, a former prosecutor, who had served for twelve years on the court. Before the election, it was revealed that Mansfield had been a member of the Texas bar only a couple of years, that he had been fined for practicing law without a license in Florida, that he had almost no criminal law experience.21 Nevertheless, Mansfield won the election. The Texas Lawyer aptly described him after his election as an "unqualified success."22

Of course the most fundamental element of a fair process is the right to counsel. Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them. I am sure that many of you were inspired to go to law school, as I was, by Anthony Lewis' marvelous book, Gideon's Trumpet. It is the story of Clarence Earl Gideon who was convicted in Florida and then filed his own handwritten petition with the United States Supreme Court saying it just was not fair that he did not have a lawyer at his trial. This ultimately led to the case of Gideon v. Wainwright,23 which held that the poor person accused of a felony is entitled to a lawyer. Anthony Lewis observed after the decision:

It will be an enormous task to bring to life the dream of Gideon v. Wainwright Ä the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.24

Over thirty years after Gideon was decided, this dream has not been realized. There is no public defender office in many jurisdictions; in some jurisdictions, the indigent defense work is assigned to the lowest bidder.25 It was recently discovered that in Putnam County, Georgia, the local sheriff appointed lawyers to the cases of poor defendants and refused to appoint lawyers who would not agree to the plea dispositions proposed by the sheriff.26

Congress cut off all funding in the fall of 1995 for a very modest program to provide some measure of justice to those facing the death penalty Ä the post-conviction defender organizations or resource centers that had existed in twenty states. The resource centers, created in 1987, were a relatively small program for the size of the problem. All together they had about 200 lawyers to deal with the post-conviction representation of over 3,000 people condemned to death. But the young lawyers who were at the resource centers during their eight years of existence proved what a difference you can make if you tackle a problem, work hard at it, build an expertise and are committed to justice.

Some of the resource center attorneys were right out of law school. They were not paid very much by the prevailing standards of the legal profession. But after two or three years, those young lawyers had mastered the complex areas of criminal law, the sub-specialty of capital punishment law, and the procedural maze of state and federal post-conviction law. Besides building their own expertise and applying it, they recruited lawyers from firms to provide pro bono representation. Many lawyers responded to the call. And they, working with the resource center lawyers, provided the highest quality of representation.

And they made a difference. Walter McMillian, who spent six years on Alabama's death row, is a free man today because the Alabama Resource Center proved that he was innocent of the murder for which he was condemned to die.27 Lloyd Schlup is alive today because the resource center in Missouri established his innocence.28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence.29

In addition, these young lawyers, and the pro bono attorneys with whom they worked, exposed constitutional violations in other cases Ä violations such as failure to disclose exculpatory evidence, racial discrimination, and prosecutorial misconduct. These are not technicalities. These are constitutional violations that go to the very integrity and reliability of the system.

And because these lawyers and these programs made a difference, they came under attack by the National Association of Attorneys General, led by the new Attorney General of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.30 Apparently the attorneys general consider it a bad reflection on our criminal justice system that innocent people are being sentenced to death. The House and the Senate responded by cutting off all funding last fall.

Those who depend upon government funding must recognize that a reality of our times is that if they are effective in helping the poor or people of color, there is a very substantial risk that the government will take away or reduce the funding or, as with the federal Legal Services Corporation, which makes legal assistance available to the poor in civil cases, interfere with their ability to help their clients by placing restrictions on their practices. Of course, that has always been the case in many states; the only programs that received funding were the ones that were completely ineffective. But at least the federal government could be counted on for some programs and the federal courts for some measure of justice that could not be obtained in the state courts. But now there is no commitment to access to the courts or to fairness on the part of our national leadership in either party.

The result is that many who most need legal assistance are without it. Many of the 3,000 men, women and children on death rows throughout the country are without counsel. Many of the lawyers from the capital resource centers who would have provided representation have gone to other jobs in other states. This leaves two choices. One is the states can execute the condemned without providing counsel for the post-conviction stages of review. The Supreme Court has held there is no right to counsel in state post-conviction proceedings.31 The other choice is to assign a lawyer who knows nothing about post- conviction practice and pay the lawyer a token amount for providing the appearance of some process. Alabama compensates lawyers $600 for handling post-conviction representation. An attorney who devotes the necessary time will be earning less than ten cents an hour. But the fees in Alabama are better than in Georgia, Mississippi and some other states. They pay nothing.

If the states do provide counsel, we can expect to see the same quality of representation during post-conviction that we see at trial. And the quality of representation at trial in capital cases has been a disgrace to the legal profession.32 For example, judges in Houston, Texas have often appointed to defend capital and other criminal cases a lawyer who occasionally falls asleep during trial.33 When a defendant in a capital case there once complained about his lawyer sleeping, the judge responded that the Constitution guarantees the accused a lawyer, but it does not guarantee that the lawyer must be awake.34 The trial of a woman facing the death penalty in Alabama had to be suspended for a day because the lawyer appointed to defend her was too drunk to go forward.35 The judge sent him to jail for a day to dry out and then produced both the client and lawyer from jail and resumed the trial. She was sentenced to death.

Last month, I handled a post-conviction proceeding in a capital case in Georgia in which the court-appointed lawyers did not make one objection during the entire trial, which lasted only one and a half days.36 Only one motion was filed prior to trial. One of the attorneys appointed to defend the accused had never heard of two important Supreme Court decisions in Georgia capital cases, Furman v. Georgia37 and Gregg v. Georgia,38 which provide the structure for much of the Eighth Amendment law governing capital trials. Another lawyer who has handled a number of criminal and capital cases in Georgia was asked to name all of the criminal law decisions of which he was aware. He could answer only Miranda and Dred Scott.39

The Alabama Supreme Court affirmed a conviction and death sentence in a case after receiving a brief from the lawyer that was only one page long.40 The lawyer did not show up for oral argument. One might have expected the Alabama Supreme Court Ä or the courts in the other cases I have described Ä to call a halt to proceedings where the lawyering was so bad and appoint new counsel, not only to protect the rights of the accused, but also so that the court could do its job. Do these courts care at all about justice? How can a court decide a capital case based on a one-page brief and without oral argument? But the Alabama Supreme Court affirmed without ever having adequate briefing or any argument. The client was eventually executed.

Poor people do not choose their lawyers. They are assigned lawyers by state court judges, many of whom are elected and are more concerned about the next election than the Bill of Rights. We must ask, is it morally right to assign a poor person a lawyer who does not know the law, who does not care enough to investigate, who is incapable of properly handling such a serious case, and then penalize the poor person for errors made by the lawyer?

Another great moral and legal issue that courts continue to ignore is the role that racial prejudice plays in deciding who dies. Edward Horsley was executed in Alabama's electric chair on February 16, 1996. He was the eleventh African American put to death by Alabama of the fourteen that have been executed since the Supreme Court allowed resumption of capital punishment in 1976. He and his codefendant were sentenced to death by all- white juries selected in Monroeville, Alabama.

Two African American men sentenced to death by an all-white jury in Utah were executed even though jurors discovered during a lunch recess a note which contained the words "Hang the Nigger's" [sic] and a drawing of a figure hanging on a gallows.41 No court, state or federal, even had a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by the jurors. William Henry Hance was executed in Georgia without any court holding a hearing on the use of racial slurs by jurors who decided his fate.42 The racial disparities in the infliction of the death penalty are undeniable,43 yet courts refuse even to hold hearings on such ugly racial incidents as I have described here.

But even if our system could provide the person facing the death penalty with a fair and impartial judge, a responsible prosecutor who was beyond political influences, a capable defense lawyer, and a jury which represented a fair cross-section of the community, it would not eliminate the discrimination and unfairness in the infliction of the death penalty. No procedure employed by the court during jury selection or trial can eliminate the centuries of racial prejudice and discrimination in our history. Beyond that, the task of deciding who should live and who should die is simply too enormous for our court system. And our courts do not function best when caught up in the politics and passions of the moment, which is almost always the case when a capital trial is taking place.

I am reasonably confident that this sad situation is only going to get worse because no one in a leadership position speaks out against it. That was not always the case. Over thirty years ago, the Attorney General of the United States, Robert F. Kennedy, observed, "the poor person accused of a crime has no lobby." And he did something about it. He, the Attorney General of the United States, became a lobby for the poor person. He found responsible leaders on Capitol Hill who responded to his call. Together they brought about passage of the Criminal Justice Act to give lawyers to poor people accused of crimes in the federal courts. One opportunity that will be open to you upon graduation is to work at one of the federal defender offices all across the country now in existence thanks to the leadership of Attorney General Kennedy. Attorney General Kennedy supported the Criminal Justice Act not because he was soft on crime Ä Robert Kennedy was a tough prosecutor Ä but because he believed in fairness. It was as simple as that.

But after the election of 1994, as the state attorneys general and politicians in both parties moved to take away funding for the resource centers Ä to remove the small fig leaf of fairness that did not begin to cover the injustices and inequities in the use of the death penalty Ä not a word of protest was heard from the White House or the Department of Justice.

Those of us who remember Robert Kennedy hoped that someone might at least say: "Wait, if we are going to have the death penalty, if we are going to kill our own people Ä even our children Ä at least we must give lawyers to those accused of crimes." And not just a stable of plug horses that would not be accepted by a decent glue factory, but real lawyers who know what they are doing. It is a matter of fairness. We hoped that someone might say: "Wait, we cannot gut the great Writ of Habeas Corpus. Life and liberty are too precious. Even in this material world, life and liberty should have the protection of the federal courts." Our country could have benefitted from a lesson in fairness and due process from the President or the Attorney General or some of the leaders in Congress.

Those are some of the challenges. What can we do about them?

It can be difficult to find a public interest job Ä not as hard as some think, but it is certainly more difficult than finding a job with a law firm. As I said earlier, there are no public defender offices in many jurisdictions where those accused of crimes have the greatest need for competent legal counsel. And it is getting harder. Many of the capital resource centers have closed. The civil legal services programs are also under attack for providing too much justice. They are being cut back and restrictions placed on their work. And of course you have those law school debts.

Law schools and human rights organizations must come to the rescue. The legal profession must respond to the challenge. And you as individuals must respond to the problems I have described.

A number of law schools have responded. The University of Texas Law School now has a capital punishment clinic which provides an outstanding experience for students and desperately needed help for lawyers defending capital cases in that state. The Capital Clearinghouse at the Washington and Lee College of Law has helped improve the quality of representation in Virginia. Loan forgiveness programs are making it possible for law school graduates to take jobs which pay very little but allow them to respond to desperate needs. Yale and New York University are among the leaders in providing full loan forgiveness for students who go into public interest careers. Law students at many institutions have created public interest foundations, through which those who have well paying jobs make contributions to enable other graduates to accept public interest jobs and pay their loans.

Our program, the Southern Center for Human Rights, has benefitted tremendously in the last six years because each year we have had a Skadden Fellow, a new law graduate whose salary and benefits were paid for by the fellowship foundation of the law firm of Skadden, Arps, Slate, Meagher & Flom. Now in its seventh year, the Skadden program provides two-year fellowships for twenty-five law graduates. Thanks to that program, we have had three outstanding lawyers who would not have been with us otherwise. There are clients who are alive today who would be dead were it not for our Skadden Fellows. It is time for other firms to follow Skadden's lead.

Some people concerned about the death penalty created last year the Harry A. Blackmun Fellowship at our office. That fellowship is making it possible for us to put another recent law graduate in the field to respond to these desperate needs.

Judy Clarke, the federal public defender in Spokane, Washington, recently donated her fees for representing Susan Smith in South Carolina, $83,000, to the South Carolina Post-Conviction Defender Organization so it could establish a fellowship to provide representation for condemned inmates.44 This contribution was made by a public defender who is providing representation in the courts to poor people every day. Where is the rest of the legal profession? Lawyers have a monopoly on access to justice; they have a duty to see that it is not only available to those who can pay.

But what is also needed is the response of individuals who are willing to go where the needs are. The legal services offices that survive, the public defender offices that exist, and the various public interest law projects, like my office, are not going to offer you jobs a year before you graduate like the law firms do. The reason is we do not know if we will be cut back thirty percent or eliminated completely.

But those offices will need you at some point. Last year, two of my third-year students at Yale Law School were discouraged in January because they could not find public defender jobs. But by May they were calling for help in deciding between the three public defender offices that had made offers. Another recent graduate worked for a criminal defense lawyer in Atlanta while he waited for his bar results and an opening at a public defender office. He passed the bar and will start practicing with the public defender office in Atlanta next month.

I also urge you to explore creating your own programs, your own non-profit public interest law projects Ä not offices where lawyers get rich, but places where people get justice. But to do that, you must settle for less in material rewards than what other lawyers are receiving for their work.

It is easy to lose perspective. Remember that it is no sacrifice to receive the same income as that received by teachers, farmers, workers on the assembly line and other good, decent working men and women who raise families and contribute to their communities. To the contrary, it is a great privilege to devote one's life to things that are important and about which you care passionately.

You who will someday graduate from law school have the opportunity to become what Martin Luther King, Jr., in one of his many great sermons, called "drum majors for justice." Dr. King described the drum major for justice as one who speaks the truth Ä no matter how unwelcome it may be and no matter how uncomfortable it may make the listener Ä and as one who gives his or her life to serving others: to feeding the hungry, clothing the naked, and Ä particularly important for lawyers Ä to visiting those who are in prison, and to loving and serving humanity.45 He described his goal as a drum major for justice: "I just want to be there in love and justice and in truth and in commitment to others, so that we can make of this old world a new world."46

Follow the example of a young lawyer who graduated from Howard Law School, opened a practice in Baltimore and handled civil rights cases and became a great drum major for justice Ä Thurgood Marshall. Follow the example of a nun who ministered to the poor in the projects of New Orleans and on death row at Angola Ä Sister Helen Prejean.47

I offer my office as an example of what you can do only because it is the one I know something about and we have had some experience in surviving in hard times without much money. We have never received any government money. We must spread very thinly what little money we have to provide justice for those most in need of it. And that requires living a simple life, not letting a lot of material things clutter our existence.

We pay everyone the same, whether secretary, senior lawyer, or junior lawyer. Our annual salaries have been as low as $8,500. Now, everyone makes $23,000. You can live on this amount. I have lived on such a salary for the last thirteen years. But, of course, so have many other people in our society who work at jobs that are not nearly so interesting and fulfilling as what we do.

A law firm may pay one partner $600,000 or even more. At the Southern Center for Human Rights, that is the entire operating budget for a year for nine lawyers, three investigators, one paralegal, three administrative people and a number of law students. With that we provide representation in fifty capital cases and twenty-four cases challenging prison and jail conditions.

There are other possibilities. The new technology of today enables us to practice law from our homes with a computer, a modem, a printer, a telephone and a fax machine. It is possible to maintain very low overhead so you can charge reasonable fees for services or even barter, as William Kunstler often did with his neighbors.

Consider practicing law not in Washington, New York or the Bay Area, but in communities where there has never been a lawyer who would question the status quo, who would give African Americans the same representation as white people, who would give the poor the same representation as the rich. You can change that. Those communities are not hard to find. Get a map of any state in the Union. It will be full of them.

We live in a society where it is possible to isolate ourselves from the poverty, the racism, the injustices that affect the lives of so many people. The culture of becoming a lawyer is one in which there is almost overwhelming temptation to take the job that pays the most money to pay those debts; but then it is so easy to fall into a costly culture of BMWs, big houses, and summer homes. There is so much money available and so many good uses we can think of for it, that it is easy to give in to the twin evils of complacency and complicity.

I urge you to commit yourselves today not to do that. As Elie Wiesel said in accepting the Nobel Peace Prize, "Our lives no longer belong to us alone; they belong to all those who need us desperately."48 I have not had enough time to describe all the desperate needs, only some of what needs to be done to work toward finally realizing the promise of Clarence Earl Gideon's case.

Your time, your talents and your commitment are urgently needed. Let me give you an example of how much you are needed. Cornelius Singleton, a mentally retarded African American youth on death row in Alabama, went eight years without seeing the lawyer assigned to represent him in post-conviction proceedings. Can you imagine what it must be like to be on death row for eight years and not see a lawyer? Not to know whether you are going to be executed the next day, the next week, the next year? To have no idea what is even happening on your case? Do you see what a difference you could make if you had been Cornelius Singleton's lawyer? Just by going to see him, by counseling him, you would have provided a valuable service.

We cannot solve all the problems, but we can lend a helping hand and our professional skills to those who most need us. Like those who helped slaves escape to freedom as part of the underground railroad before the Civil War, we can help people reach safe passage, one at a time, from the injustices which threaten to destroy them.

And what a difference you can make to those individuals whom you help. Last summer, one of my clients, Tony Amadeo, who had been condemned to die by Georgia when he was only eighteen years old, but whose death sentence was set aside due to racial discrimination,49 graduated summa cum laude from Mercer University. Do not let anyone tell you that you cannot make a difference as a lawyer.

And we can bear witness to the injustices we see until we shake our fellow citizens out of the indifference which we see about us.

I leave you with the challenge issued by Justice Thurgood Marshall, six months before he died, in accepting the Liberty Bell Award in Philadelphia. Justice Marshall was frail. He was in a wheelchair. But by the end of his remarks, it was observed that "his voice was as booming as [it had been] in those magnificent times when he argued before the Supreme Court."50 Justice Marshall said:

I wish I could say that racism and prejudice are only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity. But as I look around, I see not a nation of unity but of division Ä Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. . . .

Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?

We cannot play ostrich. Democracy cannot flourish among fear. Liberty cannot bloom among hate. Justice cannot take root amid rage. We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. . . . We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and an absence of leadership. We must dissent because America can do better, because America has no choice but to do better. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.51

That's the challenge. To continue the work which Justice Marshall so nobly advanced in his great career at the bar. Now it's your turn.

I hope to see you in the courts.

. Charles Reich, Opposing the System (1995).

. Steven B. Duke & Richard St. John, Less Welfare: More Crime, Pittsburgh Post-Gazette, Jan. 14, 1996, at B1.

. The State v. Makwanyane, Constl. Ct. of South Africa, June 6, 1995, reprinted in 16 Hum. Rts. L.J. 154 (1995).

. 347 U.S. 483 (1954) (holding that racial segregation in the public schools violates the Equal Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that desegregation of the public schools proceed "with all deliberate speed").

. Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga. 1995) (finding that the flag was adopted "as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings").

. 1,725 New Prisons Beds a Week; Biggest 1-Year Spurt in Inmate Population, Atlanta Const., Dec. 4, 1995, at 1A (reporting a Department of Justice announcement that there are 1.1 million inmates in prison and another 484,000 in jails, giving the United States an incarceration rate of 565 per 100,000, higher than even Russia, which had been the world leader).

. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995, at 16; Brent Staples, The Chain Gang Show, N.Y. Times Mag., Sept. 17, 1995, at 62.

. Alabama to Make Prisoners Break Rocks, N.Y. Times, July 29, 1995, at 5.

. Stop Turning Out Prisoners Act, H.R. 667, 104 Cong., 1st Sess. (1995). After some modification, the restrictions were adopted as the Prison Litigation Reform Act by the Congress as a rider to the Omnibus Rescission and Appropriations Act of 1996, Pub. L. 104-134, and signed into law by President Clinton on April 26, 1996.

. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).

. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant part, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). These are, of course, only a few of the many examples of unconscionable constitutional violations that could be found in America's prisons before they were corrected by federal lawsuits brought on behalf of prisoners. For an excellent and sobering account of conditions in the Mississippi State Pentitentiary over the decades before federal court intervention, see David M. Oshinski, "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996); see also Nils Christie, Crime Control as Industry: Toward GULAGS, Western Style? (1993) (a description of failures of the American prison system by an eminent Norwegian criminologist); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. Pa. L. Rev. 639 (1993) (describing reforms accomplished through corrections litigation).

. Smith v. Bennett, 365 U.S. 708, 712 (1961).

. Id. at 713 (quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939)).

. The Court has limited the availability of the Writ to vindicate constitutional rights by adopting strict rules of procedural default, see, e.g., Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989); by excluding most Fourth Amendment claims from habeas corpus review, Stone v. Powell, 428 U.S. 465 (1976); by requiring deference to fact finding by state court judges, see, e.g., Patton v. Yount, 467 U.S. 1025 (1984); Sumner v. Mata, 439 U.S. 539 (1981), after remand, 455 U.S. 591 (1982), after second remand, 464 U.S. 957 (1983); by making it more difficult for a petitioner to obtain an evidentiary hearing to prove a constitutional violation, Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992); by adopting an extremely restrictive doctrine regarding the retroactivity of constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); by reducing the harmless error standard for constitutional violations recognized in federal habeas review, Brecht v. Abrahamson, 507 U.S. 619 (1993); and by restricting when a constitutional violation may be raised in a second habeas petition, McCleskey v. Zant, 499 U.S. 467 (1991).

. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, 1996, Pub. L. 104-132, requires deference by federal courts to decisions of state courts unless the decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," id. s 104(3); establishes a statute of limitation for the filing of habeas corpus petitions, id. s 101; further restricts when a federal court may conduct an evidentiary hearing, id. 104(4); and adds new barriers to hearing a successive habeas corpus petition, id. s 105; see David Cole, Destruction of the Habeas Safety Net, Legal Times, June 19, 1995, at 30.

. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 779 n.89 (1995) (in 32 of the 38 states that have the death penalty, state court judges must stand for periodic election or retention).

. Governor George Deukmejian announced his opposition to Chief Justice Rose Bird because of her votes in capital cases and warned two other justices he would oppose them unless the death penalty was upheld. Leo C. Wolinsky, Support for Two Justices Tied to Death Penalty Votes, Governor Says, L.A. Times, Mar. 14, 1986, at 3; Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron., Mar. 14, 1986, at 1. He eventually campaigned for the removal of all three justices and the voters responded by voting all three from their positions. Frank Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, pt. 1, at 1 (describing results of election and commercials in the last month of the campaign which insisted "that all three justices needed to lose if the death penalty is to be enforced").

. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1, 15-20 (1992) (describing how Justice James Robertson was defeated by a "law and order candidate" who had the support of the Mississippi Prosecutor's Association). Robertson was the second justice to be voted off the Mississippi Supreme Court in two years for being "soft on crime." Andy Kanengler, McRae Overwhelms Justice Joel Blass, Clarion-Ledger (Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford, McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at A1.

. Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.

. Id.; John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston Chron., Nov. 10, 1994, at A29.

. Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes Case for Merit Selection, Tex. Law., Nov. 14, 1994, at 1.

. 372 U.S. 335 (1963).

. Anthony Lewis, Gideon's Trumpet 205 (1964).

. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1849-55 (1994).

. Judy Bailey, Does Sheriff Run Putnam's Indigent Defense?, Fulton County Daily Rep., Nov. 10, 1995, at 1.

. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1.

. See Schlup v. Delo, 115 S. Ct. 851 (1995).

. Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by the prosecution due to failure to turn over exculpatory evidence).

. Marcia Coyle, Republicans Take Aim at Death Row Lawyers, Nat'l L.J., Sept. 11, 1995, at A1, A25 (describing the effort of South Carolina's Attorney General and other members of the National Association of Attorneys General to eliminate funding for the post-conviction defender organizations even though the organizations had established the innocence of at least four men condemned to die); David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to Cut Capital-Representation Centers, Fulton County Daily Rep., Sept. 8, 1995, at 6 (pointing out that eliminating funding for the capital representation centers would increase the cost of providing representation, but decrease the quality).

. Murray v. Giarratano, 492 U.S. 1 (1989).

. For a more comprehensive discussion of the problems of deficient representation in capital cases and the reasons for it, see Bright, supra note 25.

. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at 1 (describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and has had 10 clients sentenced to death); Ex Parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J., dissenting) (noting testimony of jurors and court clerk that defense attorney slept during trial).

. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said, Houston Chron., Aug. 14, 1992, at A35.

. Record at 846-49, Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 113 S. Ct. 1297 (1993).

. Judy Bailey, A Poor Example of Indigent Defense, Fulton County Daily Rep., Jan. 16, 1996, at 1 (describing hearing in Fugate v. Thomas, Super. Ct. of Butts Co., Ga., No. 94-V-195 (Jan. 10-11, 1996)).

. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia's death penalty statute).

. Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the death penalty statue enacted by the Georgia legislature in 1973 in response to the Court's decision in Furman).

. Transcript of Hearing of Apr. 25-27, 1988, at 231, State v. Birt, Super. Ct. of Jefferson Co., Ga. No. 2360 (1988) (on file with author). The lawyer was referring to Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott was not a criminal case.

. Brief for Appellant, Ex parte Heath, 455 So. 2d 905 (Ala. 1984). The brief is set out in full in Bright, supra note 25, at 1860-61 n.154.

. See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari).

. See Hance v. Zant, 114 S. Ct. 1392 (1994) (Blackmun, J., dissenting from denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment,' N.Y. Times, Mar. 27, 1994, at D17; Bob Herbert, Jury Room Injustice, N.Y. Times, Mar. 30, 1994, at A15.

. For further discussion of the influence of race on the imposition of the death penalty and the failure of legislatures and courts to deal with the problem, see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

. Clif LeBlanc, Smith Lawyer Donates $83,000 in Fees, The State (Columbia, S.C.), Feb. 2, 1996, at B3; Andrew Blum, Defender Proffers Fees, Nat'l L.J., Apr. 15, 1996, at A7.

. Testament of Hope: The Essential Writings of Martin Luther King, Jr. 259- 67 (James M. Washington ed., 1986).

. Id. at 267.

. See Helen Prejean, C.S.J., Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993) (describing her work with death row inmates).

. Wiesel's Speech: This Honor Belongs to All the Survivors, N.Y. Times, Dec. 11, 1986, at A2.

. Amadeo v. Zant, 486 U.S. 214 (1988).

. A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 Hastings L.J. 1405, 1430 (1994).

. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall 453-54 (1993).

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Employers grab accident victims' cash

Wal-Mart's health plan sued an ex-worker, brain-damaged in a crash, to collect money from a settlement she'd received. It's part of a trend in which companies aggressively try to recoup insurance costs.
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By The Wall Street Journal

A collision with a tractor-trailer seven years ago left 52-year-old Deborah Shank permanently brain-damaged and in a wheelchair. Her husband, Jim, and three sons found a small source of solace: a $700,000 accident settlement from the trucking company involved.

After legal fees and other expenses, the remaining $417,000 was put in a special trust. It was to be used for Deborah Shank's care.

Instead, all of it is now slated to go to Deborah's former employer, Wal-Mart Stores.

Two years ago, the retail giant's health plan sued the Shanks for the $470,000 it had spent on her medical care. A federal judge ruled last year in Wal-Mart's favor, backed by an appeals-court decision in August. Now, Deborah's family has to rely on Medicaid and her Social Security payments to keep up her round-the-clock care.

"I don't understand why they need to do this," says Jim Shank on a recent visit to the nursing home, between shifts as a maintenance worker and running a tanning salon. "This girl needs the money more than they do."

Deborah, who needs help with eating and other basic tasks, has spent more time alone since Jim had to let her private caregiver go. At some point, he says, she may have to be moved from a private to a semiprivate room in the nursing home where she lives.

The reason is a clause in Wal-Mart's health plan that Deborah Shank didn't notice when she started stocking shelves at a nearby store eight years ago. Like most company health plans, Wal-Mart's reserves the right to recoup the medical expenses it paid for someone's treatment if the person also collects damages in an injury suit.
Deborah and Jim Shank © Vanessa Fuhrmans / The Wall Street Journal

Two years ago, Wal-Mart's health plan sued Deborah and Jim Shank for the $470,000 it had spent on her medical care.
Going after the money
Until recently, many employers didn't vigilantly enforce the provision, and some states and federal courts didn't think the claim held water. But as the cost of covering workers continues to escalate, employers and health plans are getting more aggressive about going after the money. A U.S. Supreme Court ruling last year also has given them a clearer legal map to suing employees and winning.

In insurance circles, the recovery practice is called "subrogation." Employers and insurers say it's necessary to ensure that medical expenses aren't paid twice. By recovering those costs from someone who's been compensated elsewhere, they argue, they're saving money for everyone on the plan.

Sharon Weber, a spokeswoman for Wal-Mart, declined to discuss the details of the Shanks' case, but she said the company was obliged to act in the interest of the health benefits of its employees as a whole. "While the case involves a tragic situation, our responsibility is to follow the provisions of the (company health) plan which governs the health benefits of our associates," she said.

"Employers are trying to make sure these plans run as efficiently as possible," says Jay Kirschbaum, a senior vice president at global insurance broker Willis Group Holdings. "They also have a fiduciary duty to the plan and the entire group of employees that are covered by it."
The recovery practice
Already, the recovery practice is one of the variables that plaintiffs lawyers are considering as they decide whether it's in their clients' interests to participate in the $5 billion offered by Merck to settle lawsuits over its painkiller Vioxx.

Health plans recovered sizable amounts for medical expenses from other big product-liability settlements, such as for the "fen-phen" diet-drug combination and Sulzer Orthopedics' hip implants. Many insurers and the employer plans they administer are expected to pursue a piece of the Vioxx settlement.

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In cases such as the Shanks', in which injuries and medical costs are catastrophic, accident victims sometimes can be left with little or none of the money they fought for in court. Health plans increasingly are adopting language such as Wal-Mart's, which dictates that it is to be paid first out of any settlement, regardless of what remains for the injured person. Moreover, the victim is responsible for all legal costs in pursuing the suit.

"It's especially in the catastrophic cases that people are almost never fully compensated," says Roger Baron, a professor of law at the University of South Dakota and a specialist in health-plan law. "And then their health plan, that's been collecting premiums from them all this time, wants to take it away?"
Tempting savings
Such recoveries represent a tempting savings for insurers, employers and union-administered plans. The American Benefits Council and America's Health Insurance Plans, a health-insurer lobby, estimate health plans recoup about $1 billion a year in medical claims from accident settlements and other third parties. A cottage industry of auditing firms, benefit-recovery specialists and subrogation lawyers help them. They estimate that 1% to 3% of health-care spending is potentially recoverable from such claims.

"In the past, employers used to think of this as an afterthought," says Tom Lawrence, the chief executive of Benefit Recovery, a Memphis, Tenn., company whose clients include Southwest Airlines and hospital chain HCA.
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HCA says it saw annual savings from recouped claims rise to $1.8 million in 2006 from about $800,000 in 2000 after hiring the firm.

Benefit Recovery contracts directly with employers. It says it's able to recover $12 to $15 per health-plan member a year -- up to $1.5 million for a big plan with 100,000 members -- by recovering medical expenses from injury-suit settlements.
Refusing to pay
Until recently, employers and insurers generally didn't go after small claims. But more-sophisticated claims tracking has made it easier. Recovery companies systematically search claims for certain medical codes -- say, a sprained ankle or head trauma -- that flag a potential accident. Claims examiners then mail a questionnaire and often follow up with calls. If the injured person confirms it was an accident, the firm tracks whether the patient files an injury suit.

If there is a lawsuit settlement, employers may seek to recoup money they paid for medical expenses. In many cases, it's relatively cut and dried: Often medical expenses are just a portion of the overall damages award, or the accident victim's attorney may reach a compromise with the health plan ahead of any settlement.

Continued: Reimbursement agreements

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The youth sent to the Texas Youth Commission (TYC) are the state's most serious or chronically delinquent offenders. In fiscal year 2006 (9/05 - 8/06), 33% of new arrivals had committed violent offenses, the same percentage as in fiscal 2005. Overall, 39% of new arrivals were categorized as high risk offenders.

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89% were boys.
*

11% were girls.
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44% were Hispanic.
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34% were African-American.
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22% were Anglo.
*

34% admitted at intake that they are gang members.
*

Median age at commitment was 16.
*

Median reading achievement level was 6th grade (four years behind their peers).
*

Median math achievement level was 5th grade (five years behind their peers).
*

40% were identified as eligible for special education services.
*

7% of the TYC population were English language learners.
*

83% had IQs below the mean score of 100.
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46% were chemically dependent.
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41% had serious mental health problems.
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76% had parents who never married or who divorced or separated.
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36% had a documented history of being abused or neglected.
*

60% came from low-income homes.
*

74% came from chaotic environments.
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52% had families with histories of criminal behavior.
*

12% had family members with mental impairments.
*

48% were in juvenile court on two or more felony-level offenses before being committed to TYC.

More detailed statistics are available in the TYC Commitment Profile.

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FOIA documents from the Energy Department showed Vice President Dick Cheney tried to help the Texas-based energy giant Enron collect.......

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FOIA in the News - 2002-2003

More FOIA News Stories - 2001 | 2003-2004 | 2004-2006

20 NOTEWORTHY ARTICLES MADE POSSIBLE BY FOIA IN 2002-2003

* State and federal Freedom of Information acts were mentioned in over 6000 news stories in the last 12 months and over 1000 headlines, based on the Archive's review of online databases such as Lexis-Nexis and Factiva/Dow Jones Interactive.

* The total number of Freedom of Information Act/Privacy Act access requests received by all federal departments and agencies during fiscal year 2001, the most recent year for which complete statistics are available, was 2,246,212.

* In fiscal year 2001, the most recent year for which complete statistics are available, the total cost of all FOIA-related activities for all federal departments and agencies, as reported in their annual FOIA reports, was $287,792,041.08, just over $1 per citizen, based on U.S. Census Bureau population estimates for 2003.

[NOTE: The following lists are based on searches of Lexis-Nexis and Factiva online databases.]

1. "Eating well: Second Thoughts on Mercury in Fish"
By Marian Burros, The New York Times, 13 March 2002, p. F5

FOIA documents from the Food and Drug Administration revealed intense pressure from the commercial tuna industry when the FDA recommended that pregnant women avoid shark, swordfish, tilefish and mackerel because of high levels of mercury contamination that could cause brain defects or delays in mental development in their children. After three meetings with tuna industry representatives, the FDA said nothing in its fish guidance about one of the most significant sources of mercury in the American diet, tuna, the best-selling fish in the U.S. accounting for more than a third of seafood sales. The documents were obtained by the NGO, Environmental Working Group; now FDA is revising its guidance to include tuna.

2. "Veep Tried to Aid Firm: Key role in India debt row"
By Timothy J. Burger, (New York) Daily News, 18 January 2002, p. 10

FOIA documents from the Energy Department showed Vice President Dick Cheney tried to help the Texas-based energy giant Enron collect a $64 million debt from the Dabhol energy project in India, by raising the subject with the leader of the Indian opposition party during a Washington D.C. meeting. The White House had maintained that the now-bankrupt Enron, involved in multiple fraud investigations, enjoyed no special favors from the President or Vice-President. Enron's founder had contributed more than $600,000 to President Bush's political campaigns over the years; and the top White House economic adviser had been on the Enron payroll as a $50,000 a year consultant. The documents noted that "President Bush cannot talk about Dabhol" and that the economic adviser "was advised that he could not discuss Dabhol." But top White House staff described Cheney's intervention as "good news" in internal e-mail released through FOIA.

3. "Reagan, Hoover, and the UC Red Scare"
By Seth Rosenfeld, San Francisco Chronicle, 9 June 2002, p. A1
"Feinstein demands answers from FBI: Report on UC activities generates 'deep concern'"
By Seth Rosenfeld, San Francisco Chronicle, 23 June 2002, p. A1

FOIA documents obtained after a 17-year legal battle showed the FBI had conducted unlawful intelligence activities at the University of California, the nation's largest public university, in the 1950s and 1960s, including covert support for movie star Ronald Reagan's first successful campaign for state governor pledging to suppress student protests. The FBI also secretly campaigned to get UC President Clark Kerr fired, conspired with the director of the CIA to pressure the university's Board of Regents to "eliminate" liberal professors, and mounted a covert operation to manipulate public opinion and infiltrate agents provocateurs into non-violent student dissent groups. California's senior U.S. Senator followed up the story with Congressional queries about the current state of FBI political surveillance activities.

4. "Sailors exposed to deadly agents"
By Lee Davidson, The Deseret News (Salt Lake City, Utah), 24 May 2002, p. A1

Seven years after The Deseret News published FOIA documents showing Utah-based U.S. Army scientists had exposed hundreds of sailors to germ and chemical warfare tests in the 1960s, the Pentagon finally and officially acknowledged using actual chemical and biological warfare agents in the tests, including the nerve agents VX and sarin and deadly staphylococcal enterotoxin. The admission will allow the hundreds of affected veterans to receive disability and health benefits previously denied them.

5. "Suit targets mercury-laced vaccinations"
By Margaret Cronin Fisk, The Recorder (American Lawyer Media), 26 March 2002, p. 1

FOIA documents obtained from the Centers for Disease Control by a group of parents of autistic children showed that the amount of mercury contained in a standard preservative (thimerosol) for vaccines given in the first three months of life would dramatically increase the risk of autism in children who received those vaccinations. Dozens of lawsuits are now being filed across the U.S. against vaccine and thimerosol makers.

6. "I-PASS has a new role: I-Spy"
By Robert C. Herguth, Chicago Sun-Times, 7 October 2002, p. 8

Illinois' electronic highway toll paying system has turned over information on drivers' dates, times, locations, and amounts of toll transactions in response to at least 10 subpoenas in crime probes, administrative proceedings and even a divorce, according to documents obtained through the Illinois state FOIA. Drivers deposit money in a highway department account and get a transponder for their windshields that allows for automatic deduction of tolls without even stopping at tollbooths, thus reducing congestion. But now criminal investigators and even divorce lawyers have discovered the database and more subpoenas are expected.

7. "NIH to Give Hormone Maker Data; Researchers Are Worried Wyeth Will Manipulate Findings"
By Susan Okie, The Washington Post, 19 October 2002, p. A10

Under the FOIA, the drug company (Wyeth Pharmaceuticals) that makes the most widely used hormone products obtained from the National Institutes of Health the still-unpublished data from a massive government study of hormone therapy. The researchers had halted part of the study in July 2002, announcing that for healthy post-menopausal women, combination therapy with the hormones estrogen and progestin did more harm than good, with small but statistically significant increases in heart disease, breast cancer, stroke and blood clots. In September, Wyeth released new labeling reflecting the new findings, and says it requested the data for evaluation purposes. Wyeth had supplied the researchers with $20 million worth of the drugs for testing.

8. "History recorded from the messages of victims"
By Alain Delaqueriere and Tom Torok, The New York Times, 26 May 2002, p. 25

The New York state and city FOIAs allowed reporters to obtain the emergency dispatch logs, transcripts of 911 calls, and audio tapes made by the New York Police and Fire Departments on September 11, 2001, and then to find more than 140 people who communicated with individuals on the upper floors of the twin towers of the World Trade Center before they collapsed. New York Times reporters documented 406 instances in which people on the top floors communicated with the world outside after the first plane struck, including cell phone, fax and e-mail messages. One victim's widow called the scrutiny invaluable: "There are so many issues that need to be looked at to understand what went wrong, what happened and what could be done differently."

9. "Embassy documents say Hastert belittled rights concerns in Colombia"
By Ken Guggenheim, Associated Press, 4 May 2002.

State Department documents obtained through the FOIA show that current Speaker of the U.S. House of Representatives, Dennis Hastert of Illinois, told Colombian military officers during a May 1997 visit to Colombia that he was 'sick and tired' of human rights considerations controlling U.S. anti-drug aid, and that the military should bypass the Clinton White House and come directly to Congress for aid. The documents, obtained by the National Security Archive, also show that a key U.S.-trained counternarcotics unit was "bedding down" with a Colombian brigade linked to right-wing paramilitaries and major human rights abuses.

10. "Some fear stronger FBI will return to old abuses"
By Tom Brazaitis, The Cleveland Plain Dealer, 7 July 2002.

The FBI's COINTELPRO (COunterINTELligencePROgram), which targeted civil-rights and anti-war activists in the 1960s and early 1970s and caused thousands of civil-rights abuses, is again the focus of discussion as Attorney General John Ashcroft announced that he was loosening restrictions on the FBI's ability to conduct domestic surveillance. Stories of the FBI's COINTELPRO are disturbing. For three years, the FBI kept a file on Cleveland Mayor Carl Stokes and tried to stop him from granting $20,000 to a "black extremist" group, the Afro Set, which ran community outreach and anti-drug programs. The leader of the Afro Set, Harlell Jones was convicted and sentenced to life in prison for second-degree murder in 1972, but the conviction was reversed and Jones was released in 1978, partly on the basis of FBI documents released by the Freedom of Information Act that outlined an attempt to frame him for the killing. Jones said if it weren't for the Freedom of Information Act, he would still be in prison.

11. "Widespread Water Violations Decried"
By Eric Pianin, The Washington Post, 7 August 2002.

Using documents obtained through the Freedom of Information Act, The U.S. Public Interest Research Group (PIRG) released a report finding that nearly one-third of major industrial facilities and government-operated sewage treatment plants have significantly violated pollution discharge regulations during the past two years, but relatively few are being prosecuted. Using the Freedom of Information Act, PIRG analyzed the behavior of industrial facilities, municipal treatment works and federal installations by reviewing violations between January 2000 and March 2001, as recorded in the EPA's permit compliance system database.

12. "Feds: Morris Brown Misused Student Aid"
By Kelly Simmons, The Atlantic Journal and Constitution,29 September 2002

As federal investigators look into whether or not Morris Brown College illegally used $8 million in student financial aid to pay overdue bills, The Atlantic Journal and Constitution, using U.S. Department of Education records obtained through the Freedom of Information Act document how Morris Brown administrators obtained grants and loans on behalf of students who were ineligible for the money. Many of the students had dropped out or never even attended the school. School officials may have knowingly kept money they received for students who were no longer enrolled. Federal authorities have asked Morris Brown to repay $5.4 million of the aid because the school has not been able to prove that the money went to qualified students.

13. "Former Army Scientist Forged Ph.D. Certificate, School Says"
By Scott Shane, The Baltimore Sun, 9 October 2002

As the media broke the story that Dr. Steven J. Hatfill, a former Army bioweapons scientist had been claiming to have a Ph.D. he never received, Dr. Hatfill defended himself by claiming he had completed the work for the degree at Rhodes University in South Africa and assumed the degree had been granted. When applying for a research job in 1995, Hatfill provided the National Institutes of Health with a handsome Rhodes University Ph.D. certificate in molecular cell biology with his name on it, signed by the university vice chancellor and other officials. A copy of the Ph.D. certificate was obtained by The Baltimore Sun from the NIH under the Freedom of Information Act. Rhodes University officials say the certificate is a forgery. The university seal is not in the right place, the vice chancellor's signature has the wrong middle initial and other names are made up.

14. "The Not-So-Crackpot Autism Theory"
By Arthur Allen, The New York Times, 10 November 2002

New scientific research and documents recently released under the Freedom of Information Act are questioning the safety of thimerosal, a mercury-containing preservative that is found in small amounts in several vaccines commonly administered to American children. Safe Minds, an advocacy group of parents who believe that their autistic children were damaged by thimerosal, used FOIA to obtain records showing that as early as December 1999 the C.D.C. had reason to believe that thimerosal caused developmental delays in some children. An FDA study found that vaccines administered over the past decade have tripled the dose of mercury that infants got in their first few months of life. As many as 30 million American children may have been exposed to mercury in excess of Environmental Protection Agency guidelines -- levels of mercury that, in theory, could have killed enough brain cells to alter brain functioning. Autism is being diagnosed in numbers far higher than ever before, suggesting that a nongenetic cause may be partly to blame.

15. "The Vertical Vision/ Part I: The Widow-Maker"
By Alan C. Miller and Kevin Sack, The Los Angeles Times, 15 December 2002.

Military documents obtained using the Freedom of Information Act chronicled the troubled history of the most dangerous airplane flying in the U.S. military today -- the Marine Corps' Harrier attack jet. The Harrier has suffered the highest major accident rate of any Air Force, Army, Navy or Marine plane currently in service, having killed 45 Marines in 143 non-combat accidents since the Marines began using the jet in 1971. More than a third of the fleet of jets has been lost to accidents. The Marines released documents through FOIA that provided information on Harrier safety, maintenance and combat records, including a breakdown of accidents and fatalities. The Los Angeles Times ran a four-part story on the plane, which some Marine aviators call "The Widow-Maker."

16. "Doomed plane's gaming system exposes holes in FAA oversight"
By Gary Stoller, USA Today, 17 February 2003

Reviewing tens of thousands of pages of government documents, including more than 1,000 pages obtained under the Freedom of Information Act, USA Today connected the Sept. 2, 1998, crash of Swissair Flight 111 with the flight's entertainment system. The system, which allowed passengers to select and watch movies on personal consoles, shop and use credit cards to play computer casino games, was made by Interactive Flight Technologies (IFT), a Las Vegas company that was formed only four years before the crash. The Federal Aviation Administration (FAA) banned all use of IFT technologies a year after the crash, but received heavy criticism for not catching the problems sooner. Documents obtained under FOIA revealed that no one directly employed by the FAA had ever reviewed IFT system's design or installation plans, supervised the installation or signed off on any work. All of that was done by a company that the FAA authorized to approve plane modifications on its behalf. After the Swissair crash, the FAA tightened oversight of private companies and individuals authorized to act on its behalf, but problems remain.

17. "Study details MTA woes; Buses average breakdown every 976 miles of service; Peer agencies more reliable; Report details problems with maintenance, safety"
By Stephen Kiehl, The Baltimore Sun, 21 April 2003

Freedom of Information Act requests to the Maryland State Department of Transportation yielded documents revealing that buses operated by the Maryland Transit Administration are less reliable and more prone to breakdowns than buses in comparable transit agencies. MTA buses break down in the middle of a run once every 976 miles - largely due to poor maintenance and management. Buses in eight peer agencies average 2,700 miles between breakdowns. MTA bus drivers are supposed to inspect their vehicles before each run and fill out a pre-inspection report noting problems. But documents showed that some drivers are known to fill out a week's worth of reports in advance.

18. "'Do Not Call' List Operator AT&T Leads in Complaints"
By Caroline E. Mayer, The Washington Post, 23 April 2003

According to Federal Communications Commission data obtained through FOIA, 5,714 complaints were lodged against AT&T's telemarketing practices in 2001, 2002 and the first three months of this year. It is 22 percent more than the number of complaints received about MCI, which generated the second-highest number of complaints, and more than three times the number received about third-ranked Sprint Communications Co. This fact is notable when placed alongside the news that AT&T recently won a 10-year, multimillion-dollar contract bid put forth by the federal government to set up a nationwide "do not call" to prevent unwanted telemarketing calls.

19. "Wandering weapons: America's lax arsenal"
By Sydney P. Freedberg and Connie Humburg, St. Petersburg Times, 11 May 2003

Documents made public by the Pentagon in response to a Freedom of Information Act request from the St. Petersburg Times, indicate that since the 1991 Persian Gulf War, thousands of pounds of explosives, hundreds of mines, mortars, grenades and firearms and dozens of rockets and artillery rounds have been lost or stolen from U.S. stockpiles and have possibly been misused. In many of the documented 242 cases the lost or stolen munitions were safely recovered, however some remain unaccounted for. And at least four devices have blown up, injuring 15 people. The Army was the most responsive branch of the military, releasing 223 incident reports. The Navy and Marines made public 15 reports of lost munitions, and the Department of Defense released four. The Air Force did not release any reports. Army documents obtained through FOIA indicated that oversight was so lax at a few bases that it was easy to steal almost anything designed to cause death or serious battlefield injuries and elaborated that one case, classified guidance systems for three Stinger missiles disappeared somewhere between Fort Bliss, Texas, and Tucson, Ariz., in 1998 or 1999.

20. "Number of missing DCFS Wards Doubles"
By Chris Fusco, Chicago Sun-Times, 29 April 2003, p. 18.

Prompted by a Freedom of Information Act request from the Chicago Sun-Times, the Illinois Department of Children and Family Services acknowledged that 460 children had been "lost" in the foster care system. The announcement was made by the Governor of Illinois in conjunction with the appointment of a new director for the Department and the release of a taskforce report outlining an ambitious program of reforms. It was further revealed that Department officials and staff had sought to cover-up the large number of missing children by altering their recordkeeping.

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IN THE SUPREME COURT OF TEXAS



════════════

No. 04-0914

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In re Christus Spohn Hospital Kleberg, Christus Spohn Health System Corporation D/B/A Christus Spohn Hospital Kleberg, Relator





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On Petition for Writ of Mandamus

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Argued November 30, 2005





Justice O’Neill delivered the opinion of the Court.





In this medical malpractice mandamus proceeding, the defendant hospital seeks to recover privileged documents that were mistakenly provided to its designated testifying expert witness. We must decide whether Texas Rule of Civil Procedure 193.3(d), known as the “snap-back” provision, preserves the privilege over Rule 192.3(e)(6)’s mandate that all documents provided to a testifying expert are discoverable. We hold that the inadvertent nature of the production in this case preserved the privilege under Rule 193.3(d) and entitled the hospital to recover the documents upon realizing its mistake, provided the hospital’s designated expert does not testify at trial. The hospital has not attempted to name another testifying expert, instead indicating an intent to rely upon the expert to whom the documents were disclosed. So long as the hospital stands upon its testifying expert designation, Rule 192’s plain language and purpose and the policy considerations that surrounded its amendment compel the conclusion that the documents may not be snapped back. Accordingly, we deny the hospital’s petition for writ of mandamus without prejudice to any right the hospital might have to designate another testifying expert and recover the privileged documents.

I. Background

When Mona Palmer notified Christus Spohn Hospital Kleberg of her intent to file a health care liability claim arising out of her daughter Brandi Lee Palmer’s death, the Hospital’s internal investigator, Sandra Northcutt, conducted an investigation. That investigation generated a number of documents, labeled “CONFIDENTIAL COMMUNICATION PREPARED IN ANTICIPATION OF LITIGATION,” which form the basis of this mandamus action. The Northcutt documents include Northcutt’s memoranda summarizing her interviews with Hospital employees and her correspondence to and from Hospital counsel. A paralegal newly employed by the Hospital’s counsel sent the Northcutt documents to the Hospital’s only expert witness on standard-of-care issues, Nurse Kendra Menzies. According to the Hospital’s counsel, the paralegal had recently moved to Texas from California, where she understood that all materials forwarded to an expert witness remained confidential. She assumed the same rule applied in Texas.

Menzies’ expert report on Brandi Lee Palmer listed the documents she reviewed in forming her opinion; the Northcutt documents do not appear on that list. Plaintiff’s counsel sought to depose Menzies, and issued a subpoena duces tecum requesting all documents furnished to and reviewed by Menzies in connection with her consultation in the lawsuit. Among the materials Menzies brought to the deposition were the Northcutt documents. This was the first time that the Hospital’s and Palmer’s counsel learned the privileged documents had been forwarded to Menzies. When questioned about the documents that had been transmitted to her, Menzies testified, “I didn’t read every bit. But, yes, I glanced through everything in the box.”

The Hospital filed an “Objection, Assertion of Privilege, and Motion to Return Privileged Documents” pursuant to Rule 193.3(d) of the Texas Rules of Civil Procedure, known as the “snap-back” provision, seeking to recover the documents mistakenly produced to Menzies. At the hearing on this issue, Menzies testified by affidavit that she did not read the documents but rather “glanced” at them “merely to identify what they were,” and upon determining that they were not relevant to her needs, “tossed them back in the box.” The trial court overruled the Hospital’s claim of privilege, stating it was “unclear that [Menzies] did not see certain specified documents.” The court of appeals denied the Hospital’s request for mandamus relief. We granted the Hospital’s request for mandamus review to consider the application of Rule 193.3(d)’s snap-back provision to the Northcutt documents. Mandamus is appropriate if we conclude that the documents are in fact privileged and have been improperly ordered disclosed by the trial court. See In re Bass, 113 S.W.3d 735, 738 (Tex. 2003).

II. Discussion

A. The Parties’ Arguments

The Hospital claims the Northcutt documents were created or generated in connection with the Hospital’s internal investigation conducted in anticipation of litigation; therefore, the work-product privilege shields them from discovery. See Tex. R. Civ. P. 192.5(a), (b).[1] According to the Hospital, the privilege was not lost when the documents were transmitted to Menzies because waiver can only occur when privileged documents are voluntarily and knowingly disclosed, not when disclosure is inadvertent. The Hospital claims this principle is embodied in Rule 193.3(d)’s snap-back provision, which mandates the return of privileged documents that have been inadvertently produced. Because it properly invoked Rule 193.3(d)’s snap-back provision, the Hospital argues, the trial court erred in determining that the privilege was waived. The Hospital further contends that Rule 192.3(e)(6), which mandates disclosure of all documents provided to a testifying expert, is not implicated because the Northcutt documents were not “prepared by or for the expert,” and even if they were, Menzies did not read them. Tex. R. Civ. P. 192.3(c). Under these circumstances, the Hospital claims, the snap-back rule that protects the work-product privilege against inadvertent disclosure prevails.

For purposes of this appeal, Palmer does not dispute the privileged nature of the documents, nor does she challenge the Hospital’s assertion that it complied with the snap-back procedures that Rule 193.3(d) requires for the return of inadvertently produced documents. Rather, Palmer contends Rule 193.3(d)’s snap-back provision does not apply to information that Rule 192.3 makes discoverable once it is provided to a testifying expert. Palmer further challenges the Hospital’s statement that Menzies did not “read” the inadvertently transmitted documents, arguing a fact issue exists regarding the extent of her review. In any event, Palmer contends, whether or not Menzies actually relied upon the documents in forming her opinion is not dispositive, because implicit in Rule 192.3’s disclosure requirement is the notion that documents an expert chooses to regard and those she chooses to disregard in forming an opinion are both relevant and necessary for effective cross-examination.

We begin by examining the discovery rules in dispute, applying the same rules of construction that govern the interpretation of statutes. See BASF Fina Petrochemicals Ltd. v. H.B. Zachry, 168 S.W.3d 867, 871 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); see also In re Emeritus Corp., 179 S.W.3d 112, 114 (Tex. App.—San Antonio 2005, orig. proceeding) (holding that a rule of procedure is subject to the same rules of construction as statutes). When a rule of procedure is clear and unambiguous, we construe the rule’s language according to its plain or literal meaning. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).

B. Discovery from Testifying Experts

Texas Rule of Civil Procedure 192.3(e), which defines the scope of permissible discovery from experts, provides in pertinent part as follows:



A party may discover the following information regarding a testifying expert . . . :



* * *



(3) the facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;



(4) the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;



(5) any bias of the witness;



(6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony; . . . .



Tex. R. Civ. P. 192.3(e) (emphasis added). We must first decide whether this rule applies to the Northcutt documents; if it does not, the documents retain their privileged nature and may be recovered pursuant to Rule 193.3(d)’s snap-back feature.

Rule 192.3(e)(6) was promulgated in 1999 to replace former Rule 166b, which permitted discovery of only those “documents . . . prepared by an expert or for an expert in anticipation of the expert’s trial and deposition testimony.” Tex. R. Civ. P. 166b(2)(e)(2) (repealed). Under this former rule, privileged work product lost its protected status if the material provided to the expert was, in fact, relied upon by the expert as the basis for his or her testimony. See D.N.S. v. Schattman, 937 S.W.2d 151, 156 (Tex. App.—Fort Worth 1997, orig. proceeding) (noting that privilege is waived when an expert relies on a privileged document as the basis for the expert’s opinion); Aetna Cas. & Sur. Co. v. Blackmon, 810 S.W.2d 438, 440 (Tex. App.—Corpus Christi 1991, orig. proceeding) (holding that an expert witness’s possession of documents did not automatically waive attorney-client and work-product privileges). Thus, under the pre-amendment rule, if an expert did not rely on a privileged document, it was not discoverable.

To avoid the discovery disputes that frequently arose over what material an expert may or may not have relied upon, the rule was amended in 1999 to include more expansive language. In addition to documents “prepared by or for the expert,” the rule now mandates discovery of documents “that have been provided to, [or] reviewed by” a testifying expert. Tex. R. Civ. P. 192.3(e)(6). The Hospital’s argument that the Northcutt documents were prepared by or for the Hospital rather than by or for the expert, and that Menzies did not read them in any event, erroneously ignores the rule’s disjunctive language. Whether or not the documents were actually “read” by or prepared for Menzies, they were clearly “provided to” the Hospital’s testifying expert and thus fall within Rule 192.3(e)(6)’s plain language.

It is true, as the Hospital claims and Palmer does not dispute, that the Northcutt documents constitute work product under Rule 192.5, and that work product is carefully protected from discovery under our rules. Tex. R. Civ. P. 192.5(a)(1), (2). However, Rule 192.5(c)(1) specifically states that work product loses its protected status when it is provided to a testifying expert:



(c) Even if made or prepared in anticipation of litigation or for trial, the following is not work product protected from discovery:



(1) information discoverable under Rule 192.3 concerning experts . . . .



Tex. R. Civ. P. 192.5(c)(1). Because the Northcutt documents were provided to the Hospital’s testifying expert, the work-product privilege does not protect them unless the snap-back provision requires their return.

C. The Snap-Back Provision

The snap-back provision was designed to protect the inadvertent disclosure of privileged material in order to reduce the cost and risk involved in document production. Tex. R. Civ. P. 193 cmt. 4. The snap-back provision states that:



A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if — within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made — the producing party amends the response, identifying the material or information produced and stating the privilege asserted.





Tex. R. Civ. P. 193.3(d). The rule is focused on the intent to waive the privilege, not the intent to produce the material or information. Id. at cmt. 4.

The snap-back provision has typically been applied when a party inadvertently produces privileged documents to an opposing party. See Warrantech Corp. v. Computer Adapters Servs., 134 S.W.3d 516, 525 (Tex. App.—Forth Worth 2004, no pet.) (holding that inadvertent production of privileged letter to opposing counsel did not waive the privilege under Rule 193.3(d)); see also In re Parnham, 2006 Tex. App. LEXIS 8252 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (applying snap-back rule when privileged documents were inadvertently provided to opposing counsel during discovery); In re AEP Tex. Cent. Co., 128 S.W.3d 687, 693-94 (Tex. App.—San Antonio 2003, orig. proceeding) (holding that privileged legal memorandum inadvertently produced to the opposing side must be returned under the snap-back provision). In this case, however, the privileged material was produced by a party to its own testifying expert, invoking Rule 192.3(e)(6)’s overlapping directive that all materials provided to a testifying expert must be produced.

The tension between the snap-back provision that protects privileged documents and the expert-disclosure requirement presents an issue of first impression for our Court. In resolving this tension, we consider the respective interests the rules were designed to protect.

D. Competing Interests

As we have said, the snap-back provision was designed to ensure that important privileges are not waived by mere inadvertence or mistake. Under the rule, a party who is less than diligent in screening documents before their production does not waive any privilege that might attach to them, presuming the party complies with Rule 193.3(d)’s procedures. Tex. R. Civ. P. 193.3(d) cmt. 4. By permitting the recovery of documents inadvertently produced to the opposing side, the rule preserves the important interests that the work-product doctrine was designed to protect, while at the same time visiting no harm upon the recipient for having to return documents it was not entitled to in the first place. Under Rule 193.3(d), the production of documents without the intent to waive a claim of privilege does not waive the claim.

The concepts of waiver and the intent required to effect it, however, do not appear in our testifying-expert disclosure rule. See Tex. R. Civ. P. 192.5(c)(1). Rule 192.5, which governs work product, speaks not in terms of waiver but rather states that documents and tangible things provided to a testifying expert under Rule 192.3, “even if made or prepared in anticipation of litigation or for trial . . . is not work product protected from discovery.” Id. (emphasis added). Thus, it appears from the rule’s plain language that documents and tangible things provided to a testifying expert lose their work-product designation irrespective of the intent that accompanied their production.[2] This makes sense in light of the important interests the expert-production requirement was designed to serve.

The expert witness occupies a unique place in our adversarial system of justice. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553 (Tex. 1995). Considered to have “knowledge, skill, experience, training, or education,” Tex. R. Evid. 702, that will “assist the trier of fact to understand the evidence or to determine a fact in issue,” id., the expert is generally held out to be, and is seen by the jury as, an objective authority figure more knowledgeable and credible than the typical lay witness. See Robinson, 923 S.W.2d at 553. For this reason, juries are prone to rely on experts to tell them how to decide complex issues without independently analyzing underlying factors. See id. As the Supreme Court has noted, “‘[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.’” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993) (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 631 (1991)).

Coupled with the expert’s vast potential for influence is the fact that experts are generally unfettered by firsthand-knowledge requirements that constrain the ordinary witness. While lay witnesses may only testify regarding matters of which they have personal knowledge, Tex. R. Evid. 602, expert witnesses may testify about facts or data not personally perceived but “reviewed by, or made known” to them. Tex. R. Evid. 703. If the facts or data are of a type upon which experts in the field reasonably rely in forming opinions on the subject, the facts or data need not even be admissible in evidence. Id. Thus, in many instances, experts may rely on inadmissible hearsay, privileged communications, and other information that the ordinary witness may not. See id. Moreover, an expert may state an opinion on mixed questions of law and fact, such as whether certain conduct was negligent or proximately caused injury, that would be off limits to the ordinary witness. Tex. R. Evid. 704; Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex. 1987).

Armed with these advantages, the expert witness paints a powerful image on the litigation canvas. And it is typically the hiring attorney who selects the materials that will provide color and hue. Just as a purveyor of fine art must examine the medium used in order to distinguish masterpiece from fake, a jury must understand the pallet from which the expert paints to accurately assess the testimony’s worth. Given the importance that expert testimony can assume, the jury should be aware of documents and tangible things provided to the expert that might have influenced the expert’s opinion. In terms of determining what effect documents provided to an expert had in shaping the expert’s mental impressions and opinions, the attorney’s intent in producing the documents is irrelevant.

In light of these important policy concerns that underlie the expert-disclosure rule, we conclude that Rules 192.3(e)(6) and 192.5(c)(1) prevail over Rule 193.3(d)’s snap-back provision so long as the expert intends to testify at trial despite the inadvertent document production. That is, once privileged documents are disclosed to a testifying expert, and the party who designated the expert continues to rely upon that designation for trial, the documents may not be retrieved even if they were inadvertently produced. Of course, inadvertently produced material that could not by its nature have influenced the expert’s opinion does not evoke the concerns the expert-disclosure rule was designed to prevent and the policy concerns underlying the rule’s disclosure requirement would presumably never arise. In that event, there would be nothing to prevent the snap-back rule’s application, although we note that a party seeking snap-back under such circumstances would bear a heavy burden in light of the disclosure rule’s underlying purpose.

Our holding comports with federal case law interpreting the federal expert-disclosure rule, which is similar to our own.

E. The Federal Rule

Before the federal expert-disclosure rule was amended in 1993, interpretation of the rule’s disclosure requirement was generally mixed. Some courts favored a protective approach, precluding discovery unless the party seeking production could demonstrate a substantial need for the material in preparing the case and show that obtaining equivalent material elsewhere would be unduly hard. See, e.g., Bogosian v. Gulf Oil Corp., 738 F.2d 587, 594-95 (3d Cir. 1984) (holding opinion work product shared with expert witness not discoverable absent a showing of substantial need and undue hardship); see also Hamel v. Gen. Motors Corp., 128 F.R.D. 281, 284 (D. Kan. 1989) (same); Hydramar, Inc. v. Gen. Dynamics Corp., 119 F.R.D. 367, 370-71 (E.D. Pa. 1988) (same); Michael E. Plunkett, Comment, Discoverability of Attorney Work Product Reviewed by Expert Witnesses: Have the 1993 Revisions to the Federal Rules of Civil Procedure Changed Anything?, 69 Temp. L. Rev. 451 (1996). Other courts favored broad discovery of work product provided to an expert. See, e.g., William Penn Life Assurance Co. v. Brown Transfer & Storage Co., 141 F.R.D. 142, 143 (W.D. Mo. 1990) (holding documents produced to a testifying expert not protected by work-product privilege); Boring v. Keller, 97 F.R.D. 404, 408 (D. Colo. 1983) (allowing discovery of all relevant materials shared with an expert witness).

Changes to the federal rules in 1993, like the amendment to our own rule thereafter, significantly increased the scope of permissible discovery from expert witnesses. Federal Rule of Civil Procedure 26(a)(2)(B) now provides for the disclosure of information “considered by” an expert in forming an opinion. Fed. R. Civ. P. 26(a)(2)(B).[3] The Advisory Committee notes state that "[g]iven this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions — whether or not ultimately relied upon by the expert — are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.” Fed. R. Civ. P. 26 (Advisory Committee Notes to 1993 Amendments). At least with respect to testifying experts, "[i]t appears that counsel should now expect that any written or tangible data provided to testifying experts will have to be disclosed.” 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2016.2, 2031.1 (1994).

Since the rule change, the overwhelming weight of federal authority interprets the rule to favor full disclosure, requiring the protections afforded attorney work product to yield to the interests that arise once privileged material is disclosed to the testifying expert.[4] In TV-3 Inc. v. Royal Insurance Co. of America, 194 F.R.D. 585 (S.D. Miss. 2000), for example, the court drew a “bright line” in favor of discovery:



[O]nly the most naive of experienced lawyers or judges could fail to realize that in our present legal culture money plus the proper “marching orders” will get an “expert” witness who will undertake to prove most anything. The courts and the Fifth Circuit Court of Appeals in particular have begun to wrestle with ways to put some bridle on this legal phenomenon. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). It is most consistent with this trend to say that when an attorney hires an expert both the expert’s compensation and his “marching orders” can be discovered and the expert cross-examined thereon. If the lawyer’s “marching orders” are reasonable and fair, the lawyer and his client have little to fear. If the orders are in the nature of telling the expert what he is being paid to conclude, appropriate discovery and cross-examination thereon should be the consequence. Such a ruling is most consistent with an effort to keep expert opinion testimony fair, reliable and within the bounds of reason.





Id. at 492 (citation omitted). While these cases did not involve inadvertent disclosure, the courts’ policy analysis would apply irrespective of counsel’s intent in producing the documents.

F. Other States

State courts, too, have favored disclosure when documents are produced to a testifying expert. In a case factually analogous to the one before us, the Supreme Court of Missouri adopted a “bright line rule” requiring that “[a]ll material given to a testifying expert must, if requested, be disclosed.” Tracy v. Dandurand, 30 S.W.3d 831, 836 (Mo. 2000). There, Farmers Insurance Co. inadvertently sent its expert witness confidential attorney reports and correspondence. Farmers moved for a protective order and/or a motion in limine requesting the trial court to order the documents returned and to prohibit their use during trial. Looking to federal authorities for guidance, the Missouri Supreme Court rejected Farmers’ request. Id. at 835. Noting the strong protection Missouri law affords attorney-client privilege and the generally broad discretion trial courts have to order the return of inadvertently disclosed attorney-client communications, the Court nonetheless concluded the privilege was waived once the documents were produced to Farmers’ testifying expert. Id. at 835-36. As for hardship on the attorney whose work product is inadvertently disclosed, the Court noted the attorney’s option to withdraw the testifying expert’s designation. Id. In that case, however, the expert had already been deposed and provided opposing counsel the disputed documents, prompting the Court to conclude it was too late to withdraw his designation. Id. at 836 (stating “[o]nce the expert’s testimony is taken, the deposition is available for use by any party . . . . The bell has been rung and cannot be unrung.”).

Similarly, in Gall v. Jamison, the Supreme Court of Colorado reviewed federal authorities and held that privileged material loses its protected status once disclosed to a testifying expert. 44 P.3d 233, 234 (Colo. 2002). In that case, Gall’s parents brought a medical malpractice claim against their daughter’s doctor. Id. In response to a discovery request, Gall’s counsel identified a letter sent to the designated expert that included an assessment of how the defendant’s actions may have fallen below the standard of care and contained citations to relevant medical journals. Id. Gall asserted that the letter contained counsel’s mental impressions and opinions and thus was protected from discovery by the work-product privilege. Id. The disclosure in Gall was not inadvertent, but the policy considerations the Court considered are nearly identical to those presented here. The Court determined that, given the authority attributed to expert testimony, the jury is entitled to know what influenced the testimony and opposing counsel must be provided with that information to conduct an adequate cross-examination. Id. at 239-40; see also, Stephen D. Easton, Ammunition for the Shoot-Out with the Hired Gun’s Hired Gun: A Proposal for Full Expert Witness Disclosure, 32 Ariz. St. L.J. 465 (2000). According to the Court, opposing counsel should have the opportunity to determine whether testimony is in fact the opinion of the expert or that of the attorney. Gall, 44 P.3d at 240; see also Easton, 32 Ariz. St. L.J. at 465. As for the “uneasy coexistence” or conflict between the expert-disclosure rule and the protections afforded attorney work product, the Court concluded that, ultimately, policy considerations required full disclosure. Gall, 44 P.3d at 235.

G. The Northcutt Documents

Having determined that our expert-disclosure rules preclude the snap-back of documents inadvertently produced so long as the expert remains designated to testify at trial, we must decide whether the Hospital’s claim that Menzies did not read the documents affects our analysis. According to the Hospital, Menzies did not sufficiently review the Northcutt documents such that Rule 192.3(e)(6) requires their disclosure. In order to waive the privilege, the Hospital claims, the documents must have been used in arriving at the expert’s mental impressions and opinions.

As we have said, Rule 192.3(e)(6) requires the production of “all documents . . . that have been provided to, reviewed by, or prepared by or for the expert . . . .” Tex. R. Civ. P. 192.3(e)(6) (emphasis added). By disjunctively requiring the production of documents “provided to” the expert, our rule appears to be broader than the federal rule, which mandates disclosure of information that is “considered by the witness in forming the opinions.” Fed. R. Civ. P. 26(a)(2)(B). Thus, the Hospital’s claim that Menzies did not sufficiently consider the documents to warrant their production is immaterial.

We note that an expert’s choice not to utilize certain information does not necessarily mean that the information plays no part in forming the expert’s opinion. Materials both accepted and rejected by an expert are indicative of the process by which the expert went about forming his or her opinion and may provide an effective basis for cross-examination. See Plunkett, 69 Temp. L. Rev. at 480 (“[A] litigant can most effectively cross-examine an opposing expert by confronting that expert with a relevant piece of evidence upon which he or she did not rely. Materials rejected by an expert, therefore, also form part of the basis of the expert’s opinion.”); In re Air Crash Disaster at Stapleton Int’l Airport, 720 F. Supp. 1442, 1444 (D. Colo. 1988) (stating that “[i]n forming an opinion, an expert ‘relies’ upon material he finds unpersuasive as well as material supporting his ultimate position”); Eliasen v. Hamilton, 111 F.R.D. 396, 400 n.5 (N.D. Ill. 1986) (noting that documents an expert both relies upon and rejects are important for cross-examination). In Tracy, for example, the Supreme Court of Missouri rejected the notion that an expert must rely on a document for it to be subject to the disclosure rule, stating:



[t]o hold otherwise would allow the expert witness or the party retaining the expert witness to select which documents to produce after the expert has reviewed the documents in preparation for the expert’s testimony. It is appropriate, at deposition or trial, to cross-examine an expert witness as to information provided to the expert that may contradict or weaken the bases for his or her opinion regardless of whether the expert relied upon or considered the information.





30 S.W.3d at 835 (citations omitted); see also Karn, 168 F.R.D. at 635 (stating that “‘[c]onsidered,’ which simply means ‘to take into account,’ clearly invokes a broader spectrum of thought than the phrase ‘relied upon,’ which requires dependence on the information”). Moreover, the fact that an expert chooses to ignore certain materials that have been provided may indicate a bias on the expert’s part, or a proclivity toward a predetermined result. See Easton, 32 Ariz. St. L. J. at 563-64; see also United States v. City of Torrance, 163 F.R.D. 590, 594 (C.D. Cal. 1995) (stating that “the documents considered but rejected by the expert trial witness could be even more important for cross-examination than those actually relied upon by him”).

In this case, when questioned about her review of the Northcutt documents, Menzies testified: “I didn’t read every bit. But, yes, I glanced through everything in the box.” In her Affidavit attached to the Hospital’s First Amended Objection, Menzies attested:



Any other documents or materials contained in that box I glanced at merely to identify what they were and when I recognized that they were not something that I would need or want to read, I tossed them back into the box. I did not, under any circumstances, read or rely upon any of the following in the formulation of my opinions, nor in the preparation of my report . . . .



Frankly, I did not even know that they were in the box until Mr. Todd Taylor, at my deposition, taken on August 16, 2004, took them from my box, showed them to me and asked me if I had read or relied upon any information contained therein. It is my recollection that I testified as testifying here, that I did not.



After considering Menzies’ testimony, the trial court stated that its decision to deny the Hospital’s objection was based not only on delivery of the documents to Menzies, but also on her testimony “that she reviewed and glanced at some of the documents-at the documents in the box.” Based on her testimony, the trial court concluded it was “unclear that she did not see certain specified documents.”

We agree that it is unclear from the record to what extent Menzies reviewed the Northcutt documents, although at the very least she “glanced” at them “to identify what they were.” The plain language of Rule 192.3(e)(6) makes it immaterial whether she reviewed the documents; they were discoverable because they were provided to her. Under these circumstances, the trial court did not abuse its discretion in denying the request of the Hospital, which continued to rely upon Menzies as its testifying expert, for return of the documents.

We are sympathetic to the Hospital’s concerns over losing valuable work-product protections when documents are produced to a testifying expert by mistake. But the producing party in such a situation is not without a remedy. An attorney who discovers that privileged documents have been inadvertently provided to a testifying expert may presumably withdraw the expert’s designation and name another. See Tracy, 30 S.W.3d at 835-36. Although such a course may entail additional expense and perhaps delay, these concerns do not outweigh countervailing concerns that require full disclosure from an expert who will testify. If leave of court is necessary for an alternative designation — when, for example, the expert designation deadline has passed — courts should carefully weigh the alternatives available to prevent what may be akin to a death-penalty sanction for the party forced to trial without a necessary expert. The Hospital did not pursue such a course in this case, however, and we voice no opinion on the trial court’s discretion in that regard.

Finally, the Hospital contends that, even if discoverable for purposes of deposing Menzies, the Northcutt documents should otherwise retain their privilege and not be used for other purposes or at trial. Since Menzies has already been questioned about the documents, the Hospital argues, their discovery should be confined to that context. Specifically, the Hospital seeks to quash Sandra Northcutt’s deposition, which has been postponed pursuant to the parties’ agreement pending the outcome of this mandamus proceeding. We decline to opine on the potential admissibility of the Northcutt documents at trial, as that issue is premature. And in light of Rule 192.5(c)’s provision that information discoverable under Rule 192.3 “is not work product protected from discovery,” we cannot say that the trial court abused its discretion in denying the Hospital’s motion to quash Sandra Northcutt’s deposition.

III. Conclusion

For the foregoing reasons, we deny the Hospital’s petition for writ of mandamus.





__________________________________________

Harriet O’Neill

Justice







OPINION DELIVERED: April 27, 2007

[1] Because the Hospital does not assert attorney-client privilege with regard to the documents, we apply our analysis only to the work-product privilege.

[2] We note that only documents are at issue in this case. No discovery request regarding whether the Hospital’s counsel provided information to Menzies orally is before us, and we voice no opinion on whether such discovery would be permitted.



[3] Our snap-back provision has no precise counterpart in the federal rules. But see Fed. R. Civ. P. 26(b)(5)(B) (establishing procedures to be followed when allegedly privileged documents are produced) (effective Dec. 1, 2006). Despite the lack of any specific rule, however, some federal courts had allowed the recovery of privileged material that was inadvertently produced prior to the adoption of Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure. See, e.g., United States v. Zolin, 809 F.2d 1411, 1417-19 (9th Cir. 1987), aff’d in part, vacated in part on other grounds, 491 U.S. 554 (1989); Mendenhall v. Barber-Greene Co., 531 F. Supp. 951, 954 (N.D. Ill. 1982); United States v. Rigas, 281 F. Supp. 2d 733, 737-38 (S.D.N.Y. 2003).



[4] See Reg’l Airport Auth. v. LFG, LLC, 460 F.3d 697, 714 (6th Cir. 2006) (concluding that a “majority of courts” favor a bright-line rule of full disclosure of documents produced to a testifying expert); In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370, 1374 (Fed. Cir. 2001) (stating “we are quite unable to perceive what interests would be served by permitting counsel to provide core work product to a testifying expert and then to deny discovery of such material to the opposing party”); LaMonds v. Gen. Motors Corp., 180 F.R.D. 302, 305-06 (W.D. Va. 1998) (holding documents produced to a testifying expert are not protected by the work-product privilege); Musselman v. Phillips, 176 F.R.D. 194, 202 (D. Md. 1997) (stating “when an attorney furnishes work product — either factual or containing the attorney’s impressions — to [a testifying expert witness], an opposing party is entitled to discover such communication”); B.C.F. Oil Refining v. Consol. Edison Co. of N.Y., 171 F.R.D. 57, 66 (S.D.N.Y. 1997) (holding that all material a testifying expert considers, including counsel communications containing work product, must be disclosed); Barna v. United States, No. 95-C-6552, 1997 U.S. Dist. LEXIS 10853, at *5 (N.D. Ill. July 28, 1997) (reasoning that a jury is entitled to know about anything, including work product, that influenced an expert witness’s opinion in order to assess credibility); Karn v. Rand, 168 F.R.D. 633, 639 (N.D. Ind. 1996) (holding that the Rule 26(a)(2)(B) disclosure requirements “trump” the work-product doctrine and favoring a bright line rule).