[blindlaw] Is blindness ever consider an issue in court

[Daniel McBride]

Scott:

Regarding your thought: Now, on another note, although it is generally true
that the criminal defendant is the one with substantial rights during a
criminal process, I would not agree with the concept that the criminal
defendant is the only one with such rights.  Both the state Court and the
prosecutor's office are Title II ADA and very likely Section 504 covered
entities.  One could argue that prosecution of cases is a program or
activity of the state.  Program and activities of the state are subject to
requests for accommodation.
Therefore, a blind criminal defense attorney arguably has some right to
request that the Court or the prosecutor provide some level of
accessibility.  Of course, there is no clear boundry as to what specific
obligations the Court and the prosecutor have.

In Texas, during a criminal trial, if circumstances arise necessitating a
blind lawyer's reasonable accommodation, it is not advisable to say, "I
object your Honor, as a violation of the ADA."  You are likely to be
overruled, unless your client is an American with a disability.

You had best say, "I object your Honor, as to deny me the opportunity to
fully review this exhibit prior to its admission is a violation of my
client's right to effective assistance of counsel, a fair trial and due
process," and then be specific as to your need for accommodation.

And I hate to know how tough it might be in civil trials, because the right
to effective assistance of counsel applies only to criminal matters under
the Sixth Amendment.  In a civil matter, I think one best couch their
objections in terms of their client's right to due process and equal
protection.

I have been involved in dozens of criminal jury trials and the ADA objection
isn't going to get you very far.  I continue to contend that my rights to
reasonable accommodations during a criminal trial must be couched in direct
terms to my client's right to effective assistance of counsel, and not
pursuant to any right I think I might have under the ADA.

Furthermore, when I was a prosecutor, judges constantly pushed me to "move
along counselor."  At times I would object to needing more time and be
denied.  And, from the State's side, this is not an issue that the State can
appeal.

Dan McBride
Fort Worth
-----Original Message-----
From: blindlaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Scott C.
LaBarre
Sent: Thursday, July 11, 2013 11:33 AM
To: 'Blind Law Mailing List'
Subject: Re: [blindlaw] Is blindness ever consider an issue in court

Greetings, this has been a most interesting thread of emails.  I certainly
agree with the concept that  the primary responsibility rests on the blind
attorney in terms of  making sure that he/she has methods in place to get at
information presented visually.  I am also sympathetic with the pressures
put on and lack of resources faced by solo practitioners just starting out.
I have run my own practice now for fifteen years and certainly have the
capacity to bring whatever assistance, human or otherwise, to a trial
setting.  However, this was most definitely not the case when I first
hoisted my shingle.  One resource that those just starting out should
consider is working with your VR program and getting some reader type
services as part of your original IPE or as ongoing post employment services
from VR.  I was able to secure such funding and it helped me out for the
first several months of practice.

Now, on another note, although it is generally true that the criminal
defendant is the one with substantial rights during a criminal process, I
would not agree with the concept that the criminal defendant is the only one
with such rights.  Both the state Court and the prosecutor's office are
Title II ADA and very likely Section 504 covered entities.  One could argue
that prosecution of cases is a program or activity of the state.  Program
and activities of the state are subject to requests for accommodation.
Therefore, a blind criminal defense attorney arguably has some right to
request that the Court or the prosecutor provide some level of
accessibility.  Of course, there is no clear boundry as to what specific
obligations the Court and the prosecutor have.  Is it reasonable, for
example, to ask the Court or someone connected with the DA's office to
describe pictorial exhibits?  Best practice would be to have someone
connected with the Court to do this because of the inherent bius of the
prosecutor etc.  

In the end, your primary obligation is to your client and your capacity to
represent her or him to the best of your ability.  So, one should always
have a plan in place to get the information you need.

Best,
Scott

-----Original Message-----
From: blindlaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Daniel
McBride
Sent: Thursday, July 11, 2013 9:32 AM
To: 'Blind Law Mailing List'
Subject: Re: [blindlaw] Is blindness ever consider an issue in court

Hello Robert:

I am glad to assist you at any time in any way I can.

Regarding the trial setting and judges: the only person in a criminal trial
with any rights is the Defendant.  Remember that trial is all about
preserving the record for appeal in the event your hero is found guilty,
which is about 95% of the time.  Thus, get accustomed to the concept of
effective assistance of counsel (your client's right) and mention the
concept of reasonable accommodations only as they relate directly to
effective assistance of counsel.  Otherwise, the judge could care less about
the ADA and reasonable accommodations.

Simply substitute reasonable accommodation with effective assistance.  And,
to properly preserve error for appeal, you must make it clear on the record
what is occurring in the courtroom and be specific about how it is depriving
your client of effective assistance, as well as being very specific about
what you are proposing to do to provide effective assistance.  For the
record, your objections will always be denial of your client's right to
effective assistance, a fair trial, due process and so forth.  Your
objection should never be your right to reasonable accommodations.

And, regarding your prosecuting brothers at the bar; when you walk into a
courtroom and seat the venire for jury selection, the brother at the bar
disappears.  While in trial, you are the enemy and they will run over you
with a quickness.  In fact, they will pull every dirty trick in the book to
convict your client, including any advantage they might gain due to your
blindness.

In Tarrant County, there are usually three prosecutors present at every
trial.  Two are sitting at counsel table for the State and the other is
sitting on the bench.  My guess is that this is true in Bexar County as
well.  So, as a criminal defense attorney in a jury trial, understand that
you and your client are the only two people in that courtroom who have any
interest in a level playing field.

Again, I am glad to assist at any time.

Your true brother at the defense bar,
Dan McBride

-----Original Message-----
From: blind law [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Dittman,
Robert
Sent: Wednesday, July 10, 2013 11:02 PM
To: Blind Law Mailing List
Subject: Re: [blindlaw] is blindness ever consider an issue in court

Hi Dan,

Well, I filed my first trial setting so I will be calling you for guidance.
Only practicing on my own for two months and the fun is already starting.

Let me make it clear that I completely agree with your points.  The courts
owe me nothing except that they must be reasonable with the requirements of
the ADA and Rehab act of 1974.  It does however owe my client all rights
they are entitled and so must allow me to practice the law in what ever
adaptive way that I do as long as my legal representation is comparable to
any cited attorney that may be representing that same client.

I have been lucky in that the DA (some of them I went to school with and are
ready and willing to extend the idea of brothers and sisters at the bar) has
on occasion read to me the content of an arrest report or other material
located in the states file as long as it does not violate work product in
order that I may be on a  level playing field.

I completely understand this is not always the case, nor do I expect it to
be so, but it is helpful and appreciated as being a new solo practitioner I
cannot yet afford to hire a legal assistant.

It is always good to hear from you, and I thank you for taking time to see
me at my office.

Your brother at the bar.

On Jul 10, 2013, at 8:11 PM, Daniel McBride <dlmlaw at sbcglobal.net> wrote:

> Robert:
> 
> In all cases, civil and criminal, opposing counsel owes us nothing 
> more as blind attorneys than they otherwise owe a sighted attorney.
> 
> As of January 1, 2014, the recently amended discovery statute, Article
> 39.14 Texas Code of Criminal Procedure, takes effect.  Under this 
> statute, the State is going to be obligated to very broad and 
> significant requirements for discovery upon proper request by Defense 
> Counsel.  If requested, the State need do nothing more than provide 
> same to Defense Counsel, blind or not.
> 
> From that point, the central issue is that of the rights of the 
> Citizen Accused; most particularly, the right not only to counsel, 
> but, the right to Effective Assistance of counsel.  As long as a blind 
> attorney insists that his client receives Effective Assistance, the 
> problem then becomes that of the Judge hearing the case.
> 
> When I'm in trial, the Judge can give me all damned day to provide me 
> opportunity to scrutinize any offered evidence, or the Judge can risk 
> reversal for denying the Citizen Accused his right to Effective
Assistance.
> 
> This right is not ours as blind attorneys, rather, the right is that 
> of the Citizen Accused.
> 
> This is probably not so in civil cases to the extent of criminal 
> cases, but I cannot speak to the civil side definitively.
> 
> The first time I had this problem during a jury trial, I was pretty 
> much telling the Judge how the cow would chew the cabbage.  After word 
> got out in the courthouse, the State did all it could, in future 
> trials with me, to pave this road prior to jury selection.  A blind 
> criminal defense attorney can cause the Court major headaches, 
> regarding proper review of offered evidence and the time required to 
> review it, in pursuing his client's right to Effective Assistance.
> That is to say that the Court owes me nothing due to being blind, but 
> the Court sure as hell cannot deprive my criminally accused client of
effective assistance of counsel.
> 
> Always good to hear from you my friend.
> 
> Daniel McBride
> Fort Worth, Texas
> 
> -----Original Message-----
> From: blindlaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of 
> Dittman, Robert
> Sent: Wednesday, July 10, 2013 7:20 PM
> To: Blind Law Mailing List
> Cc: Blind Law Mailing List
> Subject: Re: [blindlaw] Is blindness ever consitter an issue in court
> 
> I agree with your point that the state most likely doesn't have to do 
> anything to accommodate the defense attorney. However, my point was 
> that in many cases if the attorney is collegial the district attorney 
> or assistant district attorney will accommodate the defense attorney.
> Or, at least this is been my experience practicing in San Antonio 
> Texas. I guess I have been lucky. V
> 
> Robert D. Dittman, ESQ.
> Attorney and Counselor at Law
> Sent from my iPhone
> 
> On Jul 10, 2013, at 18:38, "Parnell Diggs" <parnell at sccoast.net> wrote:
> 
>> Hello legal professionals,
>> The state probably doesn't have to do anything to accommodate the 
>> blind
> defense attorney. The defense attorney needs to ask a  cited person to 
> describe the photos to him and determine whether the person depicted 
> therein is indeed the defendant.
>> 
>> At trial, I would suggest that the defense attorney asked the state 
>> to
> present the photos to the defense counsel table just as they would if 
> the defense attorney were sighted. On many occasions, I have made 
> decisions about whether to object to photos I could not see, and the 
> court often has overruled my objections, just as it would with a 
> sighted attorney. In the meantime, the defense attorney may want to 
> come up with an explanation as to why the defendant is depicted in the
photographs.
>> 
>> Parnell Diggs, Esq.
>> President
>> National Federation of the Blind
>> of South Carolina
>> Sent from my iPhone
>> 
>> On Jul 10, 2013, at 7:12 PM, pattichang at att.net wrote:
>> 
>>> I am blind and have served in Illinois on a jury. There was 
>>> pictorial
> evidence. There were also diagrams of the location. The judge asked 
> and I think this is appropriate for most situations that both 
> attorneys verbally describe what they were pointing at and reference 
> verbally anything that related to the evidence. I would also note that 
> most states require a witness to describe what is in the pictures in 
> order to lay a proper foundation.
>>> 
>>> 
>>> Patti S. Gregory-Chang
>>> NFBI President
>>> NFB Scholarship Comm. Chair
>>> Sent from my iPhone
>>> 
>>> On Jul 10, 2013, at 6:05 PM, "RJ Sandefur"
> <joltingjacksandefur at gmail.com> wrote:
>>> 
>>>> John Smith is a blind defence aturney. He is defending Mike shafer 
>>>> on murder 1 charges. The state has photos of the defendant at the 
>>>> crime seen. What should the state do taking into consitteration the 
>>>> defence lawyer is blind and is unable to see the pictures? RJ 
>>>> _______________________________________________
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