[blindlaw] Is blindness ever consider an issue in court

Gerard Sadlier gerard.sadlier at gmail.com
Sun Jul 14 17:14:14 UTC 2013


is there any authority on this point?

On 7/11/13, Daniel McBride <dlmlaw at sbcglobal.net> wrote:
> 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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>>>>
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