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June 5, 2010

"Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts"

The title of this post is the title of this interesting new piece by Ira Robbins available via SSRN. Here is the abstract:

Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights.  They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials.  Even if they had such access, their illiteracy would lessen its effectiveness.  Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants.  As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.

This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them — that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way.  Limited-scope representation — or “unbundled legal services” — is not an anomaly.  Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. N evertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law.  Addressing these concerns, this Article considers the various forms that ghostwriting could take — i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance — and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all.  Indeed, disclosing such assistance may, in some instances, actually violate ethical rules.  While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.

June 5, 2010 at 12:01 PM | Permalink

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Comments

Years ago, pre-AEDPA, As a state public defender, I saw no problem ghost writing objections to a summary dismissal of a former capital client's federal habeas corpus when the district court judge suddenly dismissed it without having appointed counsel. Appellate court then appointed counsel for his appeal, and he got a remand based on the objections, and an order to appoint counsel.

Posted by: nan | Jun 5, 2010 1:38:03 PM

Lawyer language and case law picayune distinctions are themselves great crimes. The law is the chattel of the public, the skanky law technician has criminally converted it so it is unusable without paying. Worse than theft, they were taught this bunko operation by the French in the 13th Century.

Despite this massive criminality and lawyer thievin', the pro se litigant in the criminal trial does as well as the public defender, according to one study. I guess juries hate lawyers and discount their high fallutin' talk for what it really is, thievin'.

Posted by: Supremacy Claus | Jun 5, 2010 3:20:10 PM

I am a University of Virginia Law School grad, and spent 8 years as an inmate in the Federal Bureau of Prisons, during which I ghost wrote "pro se" pleadings and briefs for dozens of semi-literate inmates. The premise of the article is correct. Most inmates couldn't litigate their way out of a traffic ticket, much less a felony. One of the few good things to come out of my years in prison was my ability to help a few men get the legal relief to which they were entitled. In one case, this meant getting an armed career criminal sentence removed, reducing the inmate's time to 10 years from 23. I also prepared 14 Petitions for Habeas Corpus following the Sixth Circuit's decision in Rosales-Garcia v. Holland, which resulted in the release of 14 Mariel Cubans, who had been held in Federal prison by the I.N.S. for years as "detainees", even though they had no Federal criminal convictions. One man had been held for 17 years!

Posted by: Jim Gormley | Jun 5, 2010 8:08:14 PM

Lawyers should commit themselves, as part of the delivery of pro bono legal services, to ghostwrite for pro se litigants, especially where the attorney is unable to enter a notice of appearance.

Posted by: benson weintraub | Jun 6, 2010 10:27:27 AM

A constitutional amendment should get enacted. Any legal utterance rated above the sixth grade in readability is void.

Posted by: Supremacy Claus | Jun 6, 2010 11:00:42 AM

"Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights."

The data here say otherwise. Juries like the sincerity of pro se defendants, and know the lawyers are just whores.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901610

"In state court, pro se defendants charged with felonies fared as well as, and arguably significantly better than, their represented counterparts…of the 234 pro se defendants for whom an outcome was provided, just under 50 percent of them were convicted on any charge….for represented state court defendants, by contrast, a total of 75 percent were convicted of some charge…. Only 26 percent of the pro se defendants ended up with felony convictions, while 63 percent of their represented counterparts were convicted of felonies…in federal court…the acquittal rate for pro se defendants is virtually identical to the acquittal rate for represented defendants. ” [9]"

Taken from this review:

http://en.wikipedia.org/wiki/Pro_se_legal_representation_in_the_United_States

Posted by: Supremacy Claus | Jun 6, 2010 8:10:47 PM

When I clerked, I got the impression that this was pretty common, or at least that many prisoners were writing from some sort of informal brief bank. I found that prisoner pro se pleadings were, on average, considerably less likely to be "crazy" or unintelligible than those of non-prisoner pro se litigants (I mean, for starters, prisoners obviously do have an injury of some sort, since the state is confining them). Also, I was always intrigued at the number of prisoner filings that were written in elaborate, flowery script -- I assume those with good penmanship end up writing others' briefs? May Jim can explain.

Posted by: Jay | Jun 6, 2010 11:19:32 PM

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