Circuit courts were first established under the reign of King Henry II of England in the mid-12th century, meant to supplement the royal courts in London by having judges travel the countryside (“riding circuit”) to hear cases. In the U.S., circuit courts were established in all 13 colonies. Following Independence from Great Britain, the Judiciary Act of 1789 required Supreme Court justices to ride circuit and personally hear intermediate appeals in addition to the Court’s regular caseload. This was changed by the Judiciary Act of 1891 which established 9 Federal appeals courts and eliminated the requirement for justices to ride circuit.
The Alford plea is a form of alternative plea in which a defendant enters a plea of guilty but still asserts his or her innocence. The defendant entering an Alford plea acknowledges that sufficient evidence exists for the prosecution to likely prove their case beyond a reasonable doubt, and is able to enter into a plea bargain without conceding guilt or making allocution to the crime. This controversial plea is allowed in federal courts and in 47 state courts, but not in Indiana, Michigan, New Jersey, or before the courts of the U.S. armed forces.
Another example of an alternative plea is pleading “no contest”.
Eight states still have laws against adultery on the books, ranging from a $10 fine in Maryland to life in prison in Michigan. Massachusetts is one of those states; under MGL c. 272 s.14, adultery is punishable by imprisonment in the state prison for up to three years, jail for up to two years, or a maximum fine of $500. The last prosecution in MA was in 1980, and the law was upheld by the SJC in 1983.
Until 1828 in the U.K., a wife killing her husband committed petty treason, not murder. The penalty was generally burning at the stake.
Related to my last blog entry on barratry and my ongoing fascination with obsolete and esoteric legal concepts, my current discussion topics are the concepts of champerty, maintenance, and the alluringly-titled concept of embracery.
Barratry, as you may remember, has to do with soliciting lawsuits (aka ‘ambulance chasing’), formally defined as “the offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise” (Black’s Law Dictionary, 6th ed., 1991 at 103–you can tell by the edition that I bought this for use when I was a law student!). Champerty and maintenance are related common law concepts in that they also have to do with frivolous litigation. In maintenance, a non-party to the suit (aka “the maintainor”) interposes him or herself in the ligitation; it is defined as an “officious intermeddling in a lawsuit by a non-party by maintaining, supporting or assisting either party, with money or otherwise, to prosecute or defend the litigation.” (ibid., 658). Champerty is a specific form of maintenance; while maintenance could consist of financial or non-financial help, champerty involves a non-party to a lawsuit (aka “the champertor”) having an agreement with the plaintiff to finance the litigation with an aim to securing some agreed-upon share of the recovery. Black’s defines it as a “bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds” (ibid., 157). Interestingly, the etymology of the word is derived from the Anglo-Norman French word “champartie”, referring to a feudal lord’s share of his tenant’s crops.
Historically, the common law viewed these as a tort and a misdeamnor on the grounds that they encouraged frivolous lawsuits. “But wait, isn’t this what a contingency fee is all about?”, an astute reader might ask. Yes– while historically the common law prohibited such arrangements, now many common law-based jurisdictions do allow contingency fees or conditional fees. In the U.S., their use in personal injury cases is widespread, although it is generally not allowed in criminal law or family law cases. Moreover, many states put limits on the percentage that the lawyer taking the case may recover, but 33 to 45% of the recovery is generally the norm. The American legal system has tended to accept contingency fee arrangements in personal injury cases on the grounds that it fosters accessibility to the courts on the part of plaintiffs who might not otherwise be able to afford to pursue lawsuits. In England, the longstanding prohibition against champerty and maintenance fell into obsolescence by the 19th century, although they remained crimes on the books until the passage of the Criminal Law Act 1967. As a result, in the U.K. conditional fees are a fairly recent phenemenon, having only become commonplace within the last twenty years or so.
Of the three, “embracery” has the nicest ring to it– it even sounds romantic!–but what is its relationship to the others? Well, first of all a word on its etymology– the roots of this word are from Anglo-Norman French “embraser”, meaning to kindle a fire. Still sounds a little romantic, no? Indeed, an “embraseour” was one who kindled a fire, but in the legal context it refered to someone who corrupted the judicial process by juror tampering. Historically, it was punishable under English law by fine and imprisonment, and dates back at least to the mid-14th century. Both the person inducing the juror, as well as the juror himself, was liable. It was rarely prosecuted from the 19th century onwards, and the last recorded English prosecution for enbracery was in 1975 but the conviction was overturned the following year by the Court of Appeal on the grounds of obsolescence. Interestingly, there could be no offense of “attempted embracery”, as of the offense itself consisted of attempting to tamper with a jury regardless of whether it was successful. It was recently formally abolished by virtue of the Bribery Act 2010. Just for fun, I’m going to see how many times I can weave the term “embracery” into everyday conversation this week. My guess is: not many.
So, to recap– maintenance is the meddling or involvement in another party’s lawsuit, for financial or non-financial reasons; champerty is assisting with another party’s lawsuit in order to share in the recovery; and embracery is the unlawful influencing of a party to a lawsuit (usually a juror) . Barratry, in contrast, had to do with the the solicitation of lawsuits. All of these are clearly related and may be subsumed under the rubric of “administration of justice”. Hope you enjoyed this latest foray into legal esoterica!
As part of my upcoming series of blog entries devoted to legal concepts that are esoteric or have fallen into dissuse, my present topic is “barratry”, a common law term that is probably known to few but involves a concept that is immediately familiar–frivolous lawsuits. One common definition of barratry (alternatively spelled “barretry”) is the “vexatious stirring up of quarrels or bringing of lawsuits”, meaning repeated groundless lawsuits with the intent of harrassment or profit. The word was derived from the Anglo-Norman French term “baraterie”, meaning “deception”.
Under the English common law, being a “common barrator” was a misdemeanor but was abolished as a crime in 1967. It has likewise falled into desuetude in a number of other common law jurisdictions, such as Australia. Barratry was essentially the criminalization of an issue that is far from infrequent in our increasingly-litigious society (especially the U.S., but also in other jurisdictions), namely vexatious litigation. This, as the name suggests, consists of meritless or repetitive litigation, often designed to harass an opponent but sometimes also reflects the persistence of a litigant who refuses to accept previous legal defeats. The curtailing of vexatious litigants poses an interesting conundrum of sorts: given the primacy we ascribe to ensuring free and fair access to courts, at what point does it make sense to block an over-zealous litigant’s access to the judicial system? California law defines a vexatious litigant as someone who meets any of several criteria, including having over the previous 7 years having litigated five or more non-small claims cases that were decided against them, repeatedly attempting to relitigate matters already disposed of, filing frivolous motions meant to harrass or delay, or having already been declared a vexatious litigant in state or federal court in a substantially similar matter. In fact, California helpfully updates on a monthly basis its list of vexatious ligitants, meaning people who have been declared to meet this legal definition and have been barred from court access unless they apply for and are granted permission by the court in which they intend to file. So far this law has passed constitutional muster, most recently in a 2007 decision before the Ninth Circuit Court of Appeals .
Barratry also has another, related meaning, and it is in this context that it continues to be criminalized–although I admit to having uncovered this fact quite recently. The public loves to deride lawyers as ‘ambulance chasers’, but the phenomenon does in fact exist–although it is certainly not just the purview of lawyers as physicians, physical therapists, and other profesionals have been implicated in such tactics. When an attorney solicits lawsuits by visiting accident victims, without their previous request, he or she is commiting the offense of barratry. A recent article in The New York Times discusses the attempts to curtail this practice in Texas where it has become more common in recent years. A third-degree felony, it is punishable by 1o years in prison and a $10,000 fine but is rarely prosecuted. In 2011 the Texas legislature passed legislation designed to further clamp down on this practice, with (ironically enough) one representative (State Rep. Ron Reynolds, D-Missouri City) who voted for the new legislation finding himself charged with barratry in April 2012.
And, of course, now some lawyers are advertising services designed to curtail ‘ambulance chasing’ and get clients money, another hint of irony in all this. For an example of a law firm’s advertisement regarding this, see this delicious commercial:
Hope you enjoyed this latest entry! Comments, as always, are most welcome!
Last week I had the pleasure of being invited to participate in a ‘talk back’ session following a performance of Radium Girls with cast members and several trial lawyers who handle worker’s compensation cases. Put on at the Regent Theatre in Arlington by the Burlington Players, and sponsored by the Massachusetts Academy of Trial Attorneys, Radium Girls is a powerful play that traces the events of the mid-1920s as a group of 5 women who were employed by the U.S. Radium Corporation try to recover damages in court as they succumb to horrible ailments caused by radium poisoning. Radium, absorbed into the body in a way not dissimilar to calcium, wrecks havoc with bone tissue, often concentrating in the mouth and jaw. Causing dehabilitating, disfiguring and ultimately lethal injuries to many exposed to this susbtance–not unlike ‘phossy jaw‘ caused by exposure to phosphorus in the manufacture of matches–the legal system generally did not provide redress to workers for these types of injuries.
By way of background, the legal system in the early 19th century was ill-equipped to deal with the rapid technological, economic, social and other advances wrought by industrialization. Beginning in the 1820s in the U.K., and slightly later in the U.S, the advent of textile mills and other forms of industry created a sea-change in the way manufacturing was conducted. The legal system had centuries to adapt rules regarding traditional employee-employer relationships, most often known as master-servant law (you can access my two articles on this subject here, if desired), and these cases contemplated cottage industries where there were close personal working relationships between an employer and perhaps (at most) a handful of servants. There was something in the nature of reciprocal responsibilities between the parties– while tilted towards the employers, servants did have legal recourse for non-payment of wages, breach of the terms of contracts or indentures, mistreatment, and the like. With the advent of industrialization, suddenly there were factories employing hundreds and sometimes thousands of workers, and issues that seldom had to be dealt with before were becoming commonplace. For example, dams burst and flooded fields; steam boilers exploded and scalded or killed workers and steam boat passengers; employees had limbs horribly mangled in the cogs of industry; factories belched pollutants into the air and spewed effluvia into rivers; and locomotives–perhaps the most evident sign of progress–killed cattle, struck pedestrians crossing railway lines, and set fire to fields by spewing sparks into the air. Industrialization was seen as a significant, perhaps an overridding, social good– and Anglo-American legal regimes generally reflected that. So powerful were the forces of progress that they swept away entrenched, centuries-old legal principles that conflicted with them: my favorite example being the now-largely-forgotten law of deodand. Deodand was the ancient legal principle that if an animal or inanimate object occasioned the death of one of the King’s subjects, the item was forfeit to the Crown; over time this rule changed to commonly encompass ascribing a monetary figure to the object or animal instead, with that amount being transferred to the Crown or to the family of the deceased (a marvelous article on this topic, “The Deodand and Responsibility for Death”, may be found here). Somewhat predictably, it was that driver of industrialization known as the ‘railroad’ which was to prove that deodands had outlived their usefulness, as illustrated by the Sonning Cutting accident of 1841 in which 9 people were killed. The law of deodand was abolished formally by Parliament in 1846. It has been said to live on in the U.S. as the basis for the somewhat-related and contentious “civil forfeiture” or “asset forfeiture” principle.
Employees who sustained injuries on the job were generally barred from recovering for their injuries by what has been referred to as the ‘unholy trinity of defenses to compensation’. The first doctrine was assumption of risk— simply put, a worker was assumed to know the risks of employment, and to accept them, by virtue of accepting a wage. In theory, this rule posited, wages were adjusted to compensate for the level or risk and workers were always free to work elsewhere. Employers, for their part, were only required to provide the level of safety measures common to the industry as a whole– a ‘leveling to the bottom’ scenario that meant few safety precautions related to worker safety were taken. Workers were also frequently required to sign employment contracts in which they abdicated their right to sue, known not-so-affectionately as “right to die” clauses. The rule of contributory negligence held that if the worker was in any way responsible for his injuries, than the employer could not be held liable; while the fellow servant rule held that employers were not responsible for the actions of another employee– an injured employee had to seek compensation from the fellow employee directly. Predictably, the effect of these principles was to essentially preclude employees from gaining compensation. A poem that wonderfully captures the injustice of these rules is Edgar Lee Masters’s (1868-1950) poem “Butch Weldy”, found in Poetry of the Law edited by David Kader and Michael Stanford (University of Iowa Press, 2010) at 78:
After I got religion and steadied down
They gave me a job in the canning works,
And every morning I had to fill
The tank in the yard with gasoline,
That fed the blow-fires in the sheds
To heat the soldering irons.
And I mounted a rickety ladder to do it,
Carrying buckets full of the stuff.
One morning, as I stood there pouring,
The air grew still and seemed to heave,
And I shot up as the tank exploded,
And down I came with both legs broken,
And my eyes burned crisp as a couple of eggs
For someone left a blow-fire going,
And something sucked the flame in the tank.
The Circuit Judge said whoever did it
Was a fellow-servant of mine, and so
Old Rhodes’ son didn’t have to pay me.
And I sat on the witness stand as blind
as Jack the Fiddler, saying over and over,
“I didn’t know him at all.”
By the turn of the century, progress in the U.S. was evident. The earliest departures from these rules applied to railroads–which to this day have different statutory schemes governing worker’s compensation—with Congress in 1906 and 1908 passing legislation to soften the contributory negligence rule. Most work remained state-by-state, with the first comprehensive worker’s compensation scheme being enacted in Wisconsin in 1911 and the last in Mississippi in 1948. Meanwhile, injuries continued to mount; it was estimated that in 1900 there were 35,000 work-related deaths per year in the U.S. and some 2 million injuries. A gradual chipping-away at the law by jury awards, some legislative movement and a growing sense of the unfairness of many worker’s compensation regimes–not to mention the rise of the contingency fee structure that made legal services much more accessible to the working class–meant that over time these obstacles to worker’s compensation eroded.
These laws and cases, however, dealt with discrete, tangible, traumatic work injuries– they did not encompass, nor could they predict, the damaging effects of latent workplace injuries as exemplified by the experience of the Radium Girls or those exposed to phosphorus who contracted “phossy jaw” as mentioned earlier. In the later years of World War I and thereafter, companies such as U.S. Radium Corporation produced luminous watch dials and other items, using radium salt mixed with zinc sulfide to form a paint known as “Undark”. Young women moistened their paintbrushes in their mouths to keep a fine point as they painted watch faces, working day after day in poorly-ventilated factories where everything was coated with radioactive dust. To amuse their boyfriends, they painted their teeth and fingernails to produce an enticing glow-in-the-dark effect. And glow in the dark they did! At no time were they told that radium was dangerous, even while technicians and others protected themselves from radium’s effects. Predictably, many of these women succumbed to horrific ailments, including necrosis of the jaw (known as “radium jaw“). Five such women fought a lengthy and high-profile legal battle against the U.S. Radium Corporation in the 1920s, culminating in a settlement in 1928– all along the way U.S. Radium denied liability and even smeared the women’s reputation by publicly claiming they were infected with sylliphus, while also buying off dentists and doctors, using executives to pose as medical specialists, and using delaying tactics in court, among other unsavory practices. None of the five women lived more than a few years after the settlement, but the saga helped shape public and political opinion. In 1949 Congress expanded legislative protections for workers harmed by occupational diseases, and industrial safety standards were ratcheted up in the years following the Radium Girl’s struggle. While radium-based paint was used extensively in the World War II period and as late as the 1960s, further cases of radium jaw were avoided through the use of safety procedures and training– procedures and training that were far from onerous and indicate how easily these tragedies could have been avoided.
And as Eleanor Swanson writes about them in her poem “Radium Girls”: “Now, even our crumbling bones/will glow forever in the black earth”….
Some of my readers will remember that some time ago I wrote about the law and custom regarding broken engagements, including blog entries on the issue of the return of engagement rings, and ‘breach of promise to marry’ lawsuits. In an interesting twist, a NY man, Steven Silverstein, is suing her ex-financée Kendra Platt-Lee for more than $61,000 in expenses related to their planned wedding, what he claims is her share of rent he paid for their joint apartment during the time they were living together,and for funds –they were engaged to each other once before this latest chapter– $2,975 wedding deposits, $13,756.69 for damages to wedding vendors, $19,269.90 in funds she withdrew , $25,668.75 for what he alleges is her half of the rent he paid while they lived together. She returned a $32,000 engagement ring he had given her; while he concedes she returned it, he is alleging that her return of the ring in question indicates her awareness of the “conditioned nature of all gifts” given to her by Silverstein “in contemplation of marriage”.
As they apparently had no written agreeement, I find it unlikely he would prevail for the full amount he is seeking–but of course I do not know what types of records he has kept related to these matters, what other evidence the parties are able to provide, and ultimately what a court would rule. Does considerations of equity mean that she owes him at least some of the amount he is seeking? If so, how much? Is this a breach of contract? Or should Silverstein just be out the money as the price of failed love? Let me know what you think!
Hello, gentle readers! My next blog post will be up in a week or two, but I wanted to mention my latest work. It is a bit surreal to me to mention it, really, since I completed this as a part of my doctoral thesis at McGill in 2003. Several years later I took it up again, began tweaking it, and it went through a lengthy external review and editing process, and following acceptance was in the publication queue for another two years. All this to say that it is a great joy to see it in print and in such good company, no less! I must also acknowledge that the kind folks at the Law and History Review were a joy with which to work. Regretfully, I had taken a few years off from publishing but this begins the process anew, with a book chapter due out next year and a few other projects in the pipeline. The subject, while not great fodder for cocktail conversation, deals with an aspect of 19th century criminal justice in Montreal, namely the legal response to infanticide. Combing through the judicial archives and period newspapers uncovered a great deal of information on these otherwise unknown cases, and I hope I had some interesting things to say about this heavily-gendered area of the law which also reflected one of my favorite themes, namely the intersection between law and custom. Montreal is also, I think, a particularly interesting jurisdiction to study, straddling as it does linguistic, juridical, ethnic and other divides. If you’re so inclined you can peruse the article here, and of course comments are always welcome! http://iancpilarczyk.com/wp-content/uploads/2012/04/So-Foul-A-Deed.pdf
From the introduction to the issue: “Our final article, by Ian Pilarczyk, examines the phenomemon of infanticide and the legal responses to [it] in Montreal from 1825 to 1850, a period marked by significant economic, social, political, and legal flux. Working with thirty-one unpublished case files of infanticide, he illustrates that the legal and social ramifications of this heavily gendered crime were chracterized by complexity, compromise, and conflict. He finds that the Canadian response largely mirrored that of other nineteenth-century Western jurisdictions. This finding suggests that local context matters, but should also remind scholars to consider the significance of transactional patterns in policing.”
My intro, in part: “This article argues that infanticide, and the legal and social responses thereto, exhibited a compromise between conflicting sentiments, realities, and paradigms. As a result, the actions of defendants, prosecutors, judges and jurors, and the public at large were characterized by competing motives and countervailing sympathies. The infant victims were nominally the focus of the law, but in reality these acts were viewed as crimes against social conventions. The issue of infanticide during this period therefore presents a fascinating study in this heavily gendered area of nineteenth-century criminal law, reflecting stark differences between law and custom. This article will provide a brief discussion of the historiography and underlying methodology, followed by the political and historical context for the Montreal experience, before moving on to the issue of infant abandonment, coroner’s inquests, and the legal mechanics of infanticide prosecutions.”
‘So Foul A Deed’: Infanticide in Montreal, 1825-1850, 30 Law & History Review 575-634 (May 2012)
“Infanticide as heinous a crime as there is, even in 1840“, by John Kalbfleisch
Last week in class, I wandered off on a slight tangent related to the Alford plea. Coincidentally, the very next day this fascinating bit of contemporary legal history and criminal procedure made its way into the news, prompted by a fairly unlikely source: a troubled ex-point guard from the University of Washington, Venoy Overton. The many varied ways in which legal history can surface–as well as coincidence–never ceases to fascinate me, and this example is no exception. What makes the Overton story interesting to a legal historian is, in a word, his plea. The Alford plea, Alford guilty plea, or as it is sometimes more colloquially known, the “I’m-guilty-but-I-Didn’t-Do-It” plea, allows a defendant to benefit from a guilty plea while maintaining innocence. But why would anyone do that? How did this plea come to pass? And what prompted Overton to do so?
The Alford plea is a form of “alternative plea”, meaning that it does fit the traditional pleas of either guilty or not guilty. As my students know, the English common law required one to plead, at the risk of suffering a very unpleasant procedure known as the peine forte et dure, or death by pressing. The rule has changed over time that failure to plea is entered as a not guilty plea by the court, but the principle of entering some form of plea is well-entrenched. One such form of alternative plea is the no contest plea, or ‘nolo contendere‘, in which a defendant in a criminal action neither disputes nor admits the charge(s)–particualrly attractive to a defendant at risk for a subsequent civil case for damages, as a no contest plea contains no allocution or admission of guilt that could be used as evidence of wrongdoing. The Alford plea is another variant, premised on the defendant’s acceptance of a plea bargain agreement. In the plea bargain, s/he enters a plea of guilty while continuing to assert innocence. Typically, this involves a defendant’s acknowledgement that evidence of sufficient weight exists to result in a probable guilty verdict. The origins of this eclectic plea are fairly recent, dating to the 1970 Supreme Court case of North Carolina v. Alford. Henry Alford was charged with first-degree murder seven year earlier, and faced an automatic death sentence should two prerequisites be met: first, that the defendant pled not guilty; and secondly, that upon conviction the jury did not recommend a life sentence be imposed instead. Alford felt that, under the circumstances, he was facing a double-bind: only a guilty plea would guarantee he would not face the death penalty, yet he wished to profess his innocence. Alford therefore pled guilty to the non-capital charge of second degree murder, but felt that he was essentally doing so under duress. Alford appealed to the Supreme Court of North Carolina, District Court and the U.S. Court of Appeals; of these, only the Court of Appeals ruled that this plea was not voluntary. The Supreme Court took up the case, with a majority opinion written by Justice Byron White. The Court set out the standard that was to become the basis for the Alford plea, namely that a defendant “concludes his interests require a guilty plea and the record strongly indicates guilt”, having received benefit of advice from a competent attorney.
The record showed that Alford’s explanation of his plea was this: “I pleaded guilty on second degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man….I just pleaded guilty because they said if I didn’t, they would gas me for it, and that is all.” For his part, Overton was facing jail time for the crime of promoting prostitution. In his explanation of his plea, he wrote: “While I believe that I am innocent, I believe that the evidence in this case is such that a jury would likely find me guilty of the crime charged….I am entering into this plea agreement to take advantage of the states (sic)…recommendation.” Based on articles that describe Overton’s past conduct as well as the evidence against him in this case, it is likely (in my opinion) that he holds an overly-charitable view of the degree of his personal culpability in this case…but I digress.
The Alford plea is not without controversy, certainly– some defend it on the grounds that anything that promotes plea bargains is beneficial for a system that relies heavily on their use. Others view it as intellectually (and perhaps morally) bankrupt, arguing that it undermines respect for the criminal justice system. If you believe that acknowledgement of one’s culpability is an important and necessary element in our system of justice, than an Alford plea does seem inimical to that goal. Alternatively, critics also argue that Alford pleas simply don’t make sense–innocent people should have their day in court, while guilty people should allocute to their crimes, while this plea facilitates neither of these things. This latter interpretation is, I think, true, but only if one does not include the category of people who one would most want to benefit from the Alford plea– namely, those who are legitimately not guilty of an offense but face a likely conviction. There will always be people who are in the ‘wrong place at the wrong time’ or against whom a strong (albeit misleading) circumstantial case stands. The strongest criticism of Alford pleas is that they can become a vehicle for corruption,where defendants are ‘railroaded’ into taking pleas they do not fully understand. Conversely, it is true that some defendants taking advantage of Alford pleas are simply in denial about their guilt or have strategic reasons to enter such a plea in court. The West Memphis 3 were controversally allowed to enter this plea in 2011, with the result that their previous murder convictions were vacated, they pled guilty to lesser crimes while maintaining their innocence, and were sentenced to time served plus a suspended sentence of 10 years.
In reality, the Alford plea makes up a small percentage of all plea bargains in U.S. courts, estimated at somewhere in the 5% range for all federal pleas, and 17% of all state pleas, according to the U.S. Department of Justice–although these numbers are misleading as they also include please of no contest as well. They are accepted in virtually all state jurisdictions (Indiana, Michigan and New Jersey remain hold-outs); a full list of its acceptance by states may be accessed here. While the civilian federal courts recognize Alford pleas, U.S. military courts do not.
The Alford plea is morally complex, it is true; it is also difficult to categorize and frankly even pardoxical. One day historians may look back at it as a fascinating historical relic, an esoteric piece of legal anachronism that seems as out of place as trial by battle–or it may become a bedrock aspect of American criminal procedure.