Please look around the page while I’m gone. Here’s my personal favorite post of the last year.
Please look around the page while I’m gone. Here’s my personal favorite post of the last year.
A brotherly difference of opinion about cake portions presents the same type of issue that the Supreme Court will soon decide in an important case. They both involve examples of inequity.
Nicholas Kristoff reports that scientists have found that monkeys are very sensitive to unequal treatment. If you give one monkey tastier food, the others resent it. https://www.nytimes.com/2017/06/03/opinion/sunday/what-monkeys-can-teach-us-about-fairness.html?_r=0 But Kristoff also gives us a lot of examples of situations where humans protest unequal treatment. Whether it turns on preferential treatment for first class air travelers or the sky-high salaries paid to corporate CEOs, those left out resent it.
This Jared Bernstein article raises the fairness issue of income inequality.
https://www.nytimes.com/2017/06/05/opinion/democratic-party-inequality-child-allowance.html He tells of a growing feeling that something should be done about the enormous wealth differentials between Americans. The top 1 percent of Americans now own more wealth than the bottom 90 percent. Bernstein also sketches out a legislative program that would decrease economic inequality in America. A family allowance for children, a government jobs program, and expansion of the earned income tax credit are all on his list.
In Wisconsin in 2012, there was a State Assembly election where Republican candidates were elected to a majority of the seats statewide even though the Democrats won a majority of the votes. They accomplished this remarkable feat by artfully drawing the election boundaries in a way that minimized the success of Democratic candidates. The Seventh Circuit ruled that this political gerrymander violated our constitutional provision against inequity, the Equal Protection Clause.
The Supreme Court recently agreed to hear the Wisconsin case and other alleged political gerrymanders in state and Congressional elections all over the country. A decision is expected before the 2018 elections. Of course, political gerrymanders have been used by the Democratic party as well as the Republican in the past. They are unfair no matter which party prevails, but in today’s America that party is almost always the Republican. And there is no doubt that the Republicans will use the political power the gerrymander gives them to defeat the equality enhancing reforms Bernstein proposes.
Most people dismiss the political gerrymander as too complex an issue to understand, much less care about. That’s why I want to insist that the current Supreme Court case raises the same basic moral issue as the brothers’ dispute. Have the portions been allocated fairly? And like the cake argument — and that over a family allowance for children- – how that issue of fairness is decided will have a very concrete effect on the lives of very real people.
Here is a video of the monkey experiment. It’s great.
If you had to choose a law partner from the characters in Better Call Saul, who would you choose? I’d pick Kim Wexler (Rhea Seehorn). When you consider the alternatives it’s really an easy decision, When he’s not busy playing sycophant, Howard (Patrick Fabian) is a tyrant. Chuck (Michael McKean) is paranoid, arrogant, and more than a little weird. And then there’s charming Jimmy (Bob Odenkirk), the one with a moral screw missing.
But Kim also has many virtues in her own right. From the first season she has demonstrated intelligence, hard work, and the ability to get along with others. When we first met Kim she was an associate at Hamlin, Hamlin, and McGill, extremely grateful to the firm for financing her legal education. She hoped to be a partner some day, but it became clear that managing partner Howard Hamlin did not think she had the “right stuff” to be a partner in his prestigious firm. Perhaps he felt that Kim’s reserve did not signal the necessary “killer instinct.” Kim didn’t complain; instead she showed self-confidence in not only striking out in solo practice, but also savvy in successfully attracting a big client.
But the virtue that most impresses me is one Kim has demonstrated in the last few episodes of Better Call Saul. Let’s call it “grit.” You will remember that Kim was able to wrest the valuable Monte Vista bank business away from her old firm, only to discover that her friend, occasional lover, and current office partner Jimmy McGill had engaged in dubious behavior in order to improve her chances of prevailing.
We know Kim well enough to realize she would find the fact that Jimmy had intervened on her behalf without her knowledge deeply offensive, not only because of the impropriety involved, but also because it showed a lack of confidence in her ability to prevail on her own. I must confess that I thought that Kim might terminate her relations with both Monte Vista and Jimmy in order to separate herself from any possible scandal.
But Kim is made of sterner stuff; she does not retreat; she advances. She first reminds herself that she has done nothing illegal or unethical; she is not responsible for the actions of her office mate. But she does have a duty to disclose the situation to her client and warn them of the public relations problems that could arise. She does just that, adding that she would understand if they decided to retain new counsel. They tell her they want to stick with her.
Then she had to decide what role she should play, if any, in the disbarment proceedings brought against Jimmy by the victim, his older brother Chuck. Kim not only decides not to abandon her friend, but actually volunteers to serve as his co-counsel in the disbarment proceedings.
There is both a heroic and a pragmatic dimension to this decision. It’s heroic because she is coming to the aid of a friend in need, even though this will tie her more closely to his misdeeds in the court of public opinion. But since the repercussions of Jimmy being disbarred will impact her career as well as his, it makes good sense for her to make sure that he has good representation.
I think here she has made an admirable distinction between the roles of judge and advocate. It would be improper for her to decide whether Jimmy violated ethical rules or not, but she does have a right to make sure he puts on the best possible defense.
I won’t spoil your pleasure in watching the ethics hearing itself (Season 3, episode 5 “Chicanery” ) by revealing all that transpires, other than to note that the unorthodox but extremely persuasive case Jimmy and Kim present limits the discipline imposed to a year’s suspension of Jimmy’s law license. So Kim comes out a winner, not only as an advocate, but as a friend, and also helps avoid a scandal that would probably lose her a valued client.
Of course, Better Call Saul is at heart a soap opera. As we begin to see in the latest episode (Episode 6 “Off-Brand”), Kim’s friendship with the irrepressible and irresponsible Jimmy McGill will continue to cause her problems. Jimmy’s cynical and amoral alter ego Saul Goodman makes his first appearance.
Future events are sure to test Kim’s relationship with Jimmy. But I am confident she will show the same poise and good judgment she has exhibited up to now. Kim’s evolution from compliant associate to confident professional teaches us that practicing law is more than an intellectual exercise; it’s also a test of character.
I would say the moral of the story of Kim’s transformation is that while you always have to stand up for your client, and sometimes you choose to stand up for a friend, you should never forget to stand up for yourself.
James Lorenz died earlier this year. In the late 1960s Lorenz showed himself to be one of the most important social entrepreneurs of the second half of the Twentieth Century. A 26 year old associate in a Los Angeles corporate firm, Lorenz not only dreamed up the idea of a network of local legal services offices placed all over rural California to serve its farmworkers, but also attracted the political support necessary to get his proposal funded, and then supervised the placement of its offices and the hiring of its staff. The result was California Rural Legal Services (CRLA), what many believed to be the premier legal services program in the United States.
I decided to attend Lorenz’s memorial service, not only to honor a former colleague, but also to see what I could find out about the back story behind Lorenz’s success. I wasn’t disappointed. Much of the service understandably consisted of memories of Lorenz’s glory days as a golden boy on the playing fields and seminar rooms of the elite Phillips Academy, and later at Harvard College and Harvard Law School. But two speakers helped me understand how this young lawyer from a privileged background demonstrated not only the creativity to come up with the idea of CRLA, but also the political and organizational skills to make it a success.
The first bit of information came from a friend of Jim’s who had done a little research to help in writing Jim’s obituary. My ears perked up when he mentioned that Lorenz wrote his senior thesis at Harvard College on the creation of the Tennessee Valley Authority (TVA). The TVA was one of the New Deal’s most innovative and successful programs, It brought electricity to Appalachia, but Lorenz’s thesis emphasized how one of TVA’s Directors, a young Harvard Law School alumnus named James Lilienthal, believed that the TVA’s real mission was not electrical power, but the jobs and political power it would provide the impoverished citizens of Appalachia.
After graduation from Harvard Law Lorenz took what seemed a very traditional career path, accepting an associate position at the prestigious Los Angeles law firm of O’Melveny & Myers. Like many young associates, Lorenz signed up to do pro bono work; the group he volunteered for provided free legal assistance to farmworkers. Soon Lorenz got a call from an individual asking for his help, but he had to refuse because he was too busy with firm work. A little later Lorenz got another call, and again had to beg off because of firm commitments.
That’s when I imagine the “Eureka!” moment occurring. Lorenz saw that what farm workers in California needed was not a list of one-shot volunteer lawyers, but a law firm that could provide them the broad array of legal services that O’Melveny & Myers provided its corporate clients. And he also realized his vocation was to create such a firm.
Another talk by retired California Supreme Court Justice Cruz Reynoso showed the savvy and determination that Lorenz brought to the task of making his dream a reality. Reynoso recalled his first meeting with Lorenz. It was in Washington D.C where Reynoso had recently moved to take a position at the Equal Employment Opportunity Commission (EEOC). But Lorenz knew Reynoso as one of the premier Mexican-American lawyers in California, a man who had earlier established a successful practice in the small rural town of El Centro, California. So Lorenz flew in from California, even wheedling an invitation to stay in the Reynoso family home in order to improve his chances of persuading Reynoso to join the CRLA Board of Directors. Cruz Reynoso later succeeded Lorenz as CRLA’s Executive Director.
CRLA has won a lot of victories on behalf of farmworkers; a ban on the use of DDT in fields, the end of discriminatory placement of Spanish-speaking children in Special Education classes, and a ban of the use of the notorious “short-handled” hoe in the fields are three of many possible examples. Perhaps its success is most eloquently witnessed by the enemies it made. Governor Ronald Reagan made a concerted effort to de-fund CRLA for alleged unlawful activities, charges that were later unanimously rejected by a panel of state supreme court justices.
Legal Services for the Poor nationwide has been fighting a rear-guard action against reduced financial support and crippling restrictions for the last 45 years. The fact that his creation, CRLA, has continued to flourish in this hostile environment (serving over 40,000 clients every year) is strong evidence that Lorenz had not only the right idea, but but also built a organization that had staying power when times got tough.
But I hope we do more than celebrate Lorenz. We should also emulate him. Too often people think of lawyers as rear view-oriented– focused only on resolving past disputes. The story of Jim Lorenz reminds us that lawyers can also help create the future.
Donald Trump has ushered in the era of “fake news.” The only question is whether we should view Trump himself as its creator or its victim. Now we see a parallel problem with Trump’s Attorney General Jeff Sessions– Is Sessions the enemy of “fake evidence” or its champion? This NYT article by Jim Dwyer suggests he is its champion. https://www.nytimes.com/2017/04/11/nyregion/dental-molds-forensic-dentistry-research-bite-marks.html
By “fake evidence” I mean prosecution testimony that purports to be backed by scientific expertise, but in fact is junk science. “Bite mark ” evidence is one example. Dwyer points out that twenty-one defendants nation-wide have been convicted on the basis of testimony by “experts” that their tooth impressions matched those found at a crime scene, only to later have the conviction overturned when DNA proved the defendant innocent. There is also “hair sample” analysis. A FBI study found that the expert testimony on hair matches in their sample was false in 96% of the cases. Ninety-six percent!!
And other formerly well-respected types of forensic evidence, like handwriting identification and tire tread matching, have also come under suspicion The Justice Department had until recently been working with nonpartisan groups to improve the quality of “expert” testimony on forensic science. They seemed to be making good progress until President Trump named Jeff Sessions as his Attorney General. Sessions promptly disbanded the nonpartisan National Commission of Forensic Science and suspended an ongoing internal Justice Department review of the use (and misuse) of forensic science in closed cases.
The key issue here seems to be who should decide what constitutes good science in the use of forensic evidence– the scientists or the police and prosecutors? Sessions, a former prosecutor, has made clear where his loyalties lie. When a Senator, his reaction to a scathing report by the National Academy of Sciences (NAS) on the misuse of forensic evidence was disquieting: “I don’t think we should suggest that those proven scientific principles we have been using for decades are somehow uncertain.” But the NAS report had concluded that the hallowed “principles” Sessions was defending were in fact mostly junk science.
I link this issue to a larger malaise that I think has infected our justice system. Even though we mouth the principle that every defendant is innocent until proven guilty, the reality is a conviction-driven system where the presumption of guilt attaches as soon as the police convince themselves they have the “bad guy” in custody. From that point on, the system uses a variety of techniques to get a conviction– denial of bail, over-charging to induce a plea to a lesser offense, aggressive interrogations aimed at confessions, and questionable eye witness identifications are all available tools. And now we find “fake evidence” also allows prosecutors to put a sophisticated veneer on what may be little more than a policeman’s “hunch.”
We can talk about systemic reforms all we want, but I have come to think that the problem goes beyond shoddy procedures; the deeper problem may be that police and prosecutors feel they are infallible in identifying guilty defendants.
In a recent post I told the story of the Norfolk Four, four sailors who made coerced confessions to a rape and murder DNA later showed they did not commit. https://guileisgood.com/2017/02/22/to-err-is-human/ The police started with one defendant who confessed after 9 hours of aggressive interrogation, but later DNA testing showed him innocent of the rape. So the police decided, not that he was innocent, but that he must have had an accomplice. A second sailor was arrested and he too eventually confessed, but his DNA also proved him innocent. The police reacted by arresting another “accomplice.” And so the story continues. What shocked me most about the case was that, even though the Norfolk Four were all finally released from prison, no official– police officer, prosecutor, trial or appellate judge– ever admitted that an error had been made. Police and prosecutors have to own up to the reality that they are not infallible.
Of course, it’s somewhat presumptuous to believe that intelligent police and prosecutors are not aware of the human propensity to make mistaken judgments. This realization, however, suggests a more sinister explanation for prosecutor use of unreliable evidence to convict defendants of crime– one that emphasizes the similarity between “fake evidence” and “fake news.” Maybe it’s not a question of a misguided prosecution confidence that they are using shaky evidence to convict defendants they feel are guilty, but a callous lack of concern about convicting the innocent so long as someone is held responsible for the crime. Better that we punish the guilty than the innocent, but even more important that someone be found guilty so the system will appear to be doing its job.
It just might be that the era of “fake justice” has begun.
Constitutional law expert Cass Sunstein has just given the Democratic Senators some advice on how to handle the Gorsuch vote. http://www.newsday.com/opinion/commentary/the-best-strategy-for-democrats-on-neil-gorsuch-1.13322437
Sunstein outlines five options before choosing the one that suggests they vote against any nominee who they feel puts in jeopardy basic constitutional protections, a description he believes Gorsuch warrants; but that they shouldn’t go so far as to filibuster his confirmation if he has the support of a majority of the Senate.
I myself would prefer Sunstein’s option 3; it holds they should not only vote against Gorsuch but , if necessary, also filibuster to prevent his confirmation. Sunstein thinks this stance has its strengths, but finally rejects it as imprudent because it would further encourage the public perception that the Supreme Court is a political rather than a legal institution.
Sunstein agrees that “it is perfectly appropriate for senators to oppose nominees on the ground that they disapprove of their likely judgments, above all if those judgments would be destructive to liberty and equality.” He even admits that this position “is refreshingly candid.” But he rejects it because “it acknowledges that confirmation wars are here to stay, which would be pretty terrible news.”
I too shudder when I hear Supreme Court justices routinely described as “Republican appointees” or “Democratic appointees.” But I think the way to end this embarrassment is to render these terms less relevant in describing the opinions of the individual justices. We need a tacit truce between the parties that provides that Democratic presidents will appoint Democratic moderates to the Court and Republican presidents moderate Republicans. The goal should be a Supreme Court of centrists their opponents think they can live with. Caving in to Mitch McConnell’s “take no prisoners” approach last year is not the way to achieve a centrist court.
Here’s why I part ways with Professor Sunstein. I don’t think that rewarding a bully is ever a good negotiation tactic ; and Senate Majority Leader Mitch McConnell has shown himself to be just that. When President Obama attempted to cool down the nomination wars by choosing the highly respected Democratic centrist judge Merrick Garland as his nominee, McConnell refused to hold hearings on the Garland nomination, urging Republican colleagues not to even meet with him.
Yet now the Republicans choose Neil Gorsuch to serve in Garland’s place. Neil Gorsuch is much like other recent Republican nominees– impeccable academic background, soft-spoken, and adept at giving non-responsive answers to questions that would reveal his views on key constitutional issues. But we know from his opinions and speeches that his confirmation would only tighten the Federalist Society’s grip on the Court.
What will happen if the Democrats accept Gorsuch’s ascension to the Court without a full out fight? Sunstein appears to think that a statesman-like surrender will end the political polarization of the confirmation process, but I think it will only encourage the Republicans like McConnell to be even more aggressive in the future. Why change what has proved a winning strategy?
The way to change the public’s perception of the Court as a hyper-political institution is to appoint justices who are not perceived as hyper-political. And that will only come about when Democratic presidents nominate centrist Democrats and Republican presidents nominate centrist Republicans. And the first step necessary to bringing about this new truce is not rewarding McConnell for his hyper-partisanship.
Some may fear that appointing moderates will rob the Court of input from justices who are willing to push the constitutional envelope. But I think study of the Court’s history shows this to be a false fear. No one expected former Republican District Attorney Earl Warren to lead a constitutional revolution in the due process protections afforded criminal defendants. But Warren did exactly that. And no one ever expected Roman Catholic Reagan counselor Anthony Kennedy to cast the deciding vote in the gay rights case. But he did.
When you give a judge life tenure you must recognize that he or she may “evolve'” to embrace positions we– and even he or she– never foresaw. This intellectual fluidity is good for the Court. Ensure that they start in the mainstream and let time, the responsibilities of the job, and the quirks of human nature give us all the constitutional flexibility we need.
Back in 1969 I worked in a legal services office in the Imperial Valley on the California-Mexican Border. Most of our clients were Mexican-Americans who had the usual poor people legal problems–rent arrears, welfare, and consumer debt. For instance, I found I had a large number of clients who were being dunned for unpaid bills at the County Hospital.
Since my employer, California Rural Legal Assistance (CRLA), believed that we should not only represent individual clients, but also impact the larger problems that affected the poor, I started thinking about how we might improve access to medical services in the county. Most of our clients could not afford doctors and had to go to Mexico for treatment. And those who went to the County Hospital ended up with large debts.
I discussed the problem with my bosses in San Francisco, but at first no solution came to mind. Then one of my supervisors called to tell me I might look into new grants that HEW was awarding for medical clinics for migrant farmworkers. That sounded promising, so I contacted HEW and was told that the first step was to find a neighborhood organization that could apply for the grant.
I immediately thought of Casa de Amistad, a community group in Brawley that had good rapport with the farmworker community. Once Casa de Amistad agreed to sponsor the clinic, a year of great excitement and suspense began. We had many small victories and almost fatal defeats before HEW finally approved a grant of about 400,000 dollars, only to see the local medical society file a lawsuit in federal court to block the grant.
Finally we were victorious in that suit and the Clinica de Salud opened its office in Brawley, California with four doctors. It was the first federally funded migrant health clinic in the United States. And while only a drop in the bucket of the unmet need, it was the most satisfying accomplishment of my short career as a practicing lawyer.
Fast forward forty-five years. I am returning to the Imperial Valley to witness the enrobing ceremony for a new Superior Court judge. His name is Marco Nunez, and the courthouse overflows with people of all ages celebrating the success of this local boy who everyone seems to admire and love. It is a special occasion for me too since Marco is a graduate of the University of San Francisco School of Law where I taught for many years, and also because his mother, Mary Ellen Nunez, was one of my favorite co-workers at CRLA so many years before.
I decided to also use our visit to the Valley to show “la clinica” to my wife Miriam who has patiently listened to the story of its birth many times. But I wasn’t sure I could find the clinic on my own so I googled its website to get directions, and learned a lot I didn’t know.
“La clinica” has morphed into “las clinicas”– it now operates twelve medical clinics all over Imperial County, as well as three dental centers, and three women, infant and child nutritional centers. It employs 340 people and has annual revenues of 34 million dollars a year. And it not only treats migrants, but also a wide range of patients from medicare, medicaid, and private insurance plans. Patients without insurance are billed on a sliding scale based on income. It sounds like our little clinica has become the Kaiser of the Imperial Valley, only better.
I should emphasize that I was only one of a group of people who worked to make la clinica a reality. Al Kovar and Cesar Enriquez of Casa de Amistad and Lou Giancola of HEW quickly come to mind. And I had no role in the clinic’s terrific growth since its inception. Still I think I can safely say that without me the clinic would not have happened.
While not denying that there is an element of shameless self-promotion in my telling the clinic’s story, I think it also highlights a larger truth. CRLA was part of the federal Legal Services Program within the often maligned “War on Poverty.” The time I worked at CRLA was the high point for federal support of legal service programs for the poor, and CRLA was one of the best financed of those programs . We had the time and resources to do our jobs well. But soon thereafter Legal Services came under vicious political attacks resulting in drastic budget cuts and restrictions on the cases it could take.
Who knows what legal services for the poor might accomplish today if it was generously funded once again? A legal system where only the corporations and the wealthy are represented by lawyers hardly qualifies as as system of justice.
I also think my personal story supports one of this blog’s primary messages– the practice of law can be an exciting and socially helpful profession if individual lawyers choose to make it so. So If any young lawyer or law student should ever ask my career advice again, I plan to say, “Do something you find interesting that may make the world a little less unjust– preferably something that someday might afford you an opportunity for shameless self-promotion.”
I really think you should take time to view the PBS documentary The Confessions. It tells the shocking story of the grave injustice done to four sailors in Norfolk, Virginia in 1997. (http://www.pbs.org/wgbh/pages/frontline/the-confessions/)
A young navy wife, Michelle Bosko, had been found raped and murdered in her apartment. Based on the “hunch” of one of her friends, the police started investigating a Navy enlisted man, Daniel Williams, for the crime. Williams at first denied any involvement, but after an interrogation that started late at night and ended 9 hours later, he signed a confession to the rape and murder of Michelle Bosko. The police had found their man and further investigation stopped, at least until months later when a DNA test showed that Williams’ DNA did not match the blood found at the murder scene.
Instead of releasing Williams, the police decided that Williams must have had an accomplice. So a second sailor was arrested. He too at first denied any involvement, but after another long interrogation, he also signed a confession, one which implicated Williams. But then the DNA report for the second defendant also proved negative. The police response was to look for a third and finally a fourth perp. And, since each new confession contradicted the earlier ones, they too had to be reworked to appear consistent.
All four defendants eventually were either convicted or pleaded guilty. Williams and two others were sentenced to life without the possibility of parole. The fourth was sentenced to 20 years for rape.
Why did the police continue to believe Williams was involved even when that conclusion became more and more implausible? Social science can help us with that question. Michael Lewis’new book The Art of Unknowing tells how two Israeli psychologists, Amos Tversky and Daniel Kahneman, upended conventional wisdom by showing that the maxim “To err is human, to forgive divine” is at least half right. Their basic message is that human beings tend to decide many important issues by relying on intuition and human intuition is often wrong.
Take the initial judgment that Williams was the murderer-rapist. It turns out that when we consider the truth of a hypothesis like “Williams did the murder” our minds tend to automatically focus on information that supports its truth, thereby making it appear more probable than it actually is. This “confirmation bias” would have led the police to convince themselves of the truth of Michelle Bosko’s friend’s “hunch” and led them to elicit a confession from Williams to provide support for that conclusion.
And once they had a firm belief they had their “bad guy,” the police were, like most experts, quite good at creating scenarios that reconciled that belief with later evidence, like the negative DNA tests, that undermined it. There must have been an accomplice– or, if necessary, three.
But it wasn’t only the police who erred; there was also the prosecutor who handled the case; he seems to have had no problem with the DNA evidence contradicting the prosecution theory. Then there was the judge who refused Daniel’s lawyer’s motion to suppress the confession, and the appellate court that denied his appeal. Our legal system seems to have a systemic commitment to resolving cases that sometimes outweighs its fear of convicting innocent people.
I don’t doubt that all the officials involved wanted to convict a guilty person, but the system seems to have a greater need to convict someone. The overworked police want to close the case and move on. The prosecutor looks to his or her “conviction rate.” The judge tries to clear a crowded docket. And the appellate courts are too busy to carefully review every allegation of error, and therefore assume that serious errors have been corrected below.
There are also practical reasons for turning a blind eye to questionable convictions. Every admission of error encourages more charges of misconduct, leading to lawsuits and a growing loss of public confidence in the criminal justice system.
I recognize that what happened to Williams and his co-defendants represents an extreme example of a system run amok, but sometimes dramatic cases highlight problems too ignored in less extreme circumstances. If you have any doubt about whether police convinced of a defendant’s guilt are willing to use coercion to get a confession, just take a look at the recent Netflix documentary Making of a Murderer.
Unfortunately involuntary confessions are not the only fallible tool used to get convictions. Eyewitness identifications are also often mistaken. And let’s not forget that the plea bargains involved in the vast majority of all convictions can easily be improperly induced by over-charging or refusal of bail.
Our criminal process sees itself as a well-oiled machine producing correct decisions, but the truth is that it relies heavily on judgments, like which witness to believe, that are based on intuitions that Tversky and Kahneman warn us are often wrong.
It is time to rethink our approach to crime and punishment in our world of uncertainty. There are reforms that can reduce errors in confessions, eye witness identifications, and the plea bargain process, and we should adopt them. But I think we must also face a larger problem. “Guilty” really only means labelled so by a system quite capable of error. So while we should attempt to improve the process, we should also soften the consequences of a mistaken verdict.
A good place to start would be the death penalty. As the the PBS documentary makes clear, the threat of the death penalty induces false confessions. More importantly, it just doesn’t make sense in a world of uncertainty to impose a penalty that can never be corrected if later proven to be mistaken.
If you want facts, go to Wikipedia; for truth sometimes you have to read a novel. All the traditional differences that divide Democrats and Republicans are there in Lawrence Joseph’s non-fiction novel Lawyerland– plus an important new truth neither Hillary or Donald ever bothered to mention.
I am talking about the book’s chapter “Cerriere’s Answer” which features two New York labor lawyers showing us “what lawyers really talk about when they talk about law.” One is Martha Tharaud, the lead partner in a boutique firm that represents employees with grievances against their employers. The other, Robert Cerriere, is a young partner in the employment law department of an old line Wall Street firm.
Labor and management lawyers are known for not much liking one another, and Tharaud and Cerriere fit that description to perfection. At first it doesn’t seem like a fair fight. Martha is a member of the profession’s aristocracy whose representation of the downtrodden is legendary. Robert, on the other hand, is only a upwardly mobile drone in a giant organization.
Still Robert proves himself be an able adversary. He sees Martha as more cynic than saint, reaping big fees by filing lawsuits against corporations that view them only as minor costs of doing business. She pretends to be the workers’ savior, but actually is just one more lawyer angling for a fee. At least Robert is more honest about his motives. Martha in turn dismisses Robert’s professional role as “teaching corporations how to fire people.” Her disdain for him is palpable.
But it’s at the end of their conversation that things really get interesting. Martha has been needling Robert about the employer practices he defends. When he suggests that the settlement she attained in a sexual harassment case against a client of his firm was a “nuisance” suit, she wonders aloud whether he would feel the same way if the victim had been his own management consultant wife . What if one of her superiors suddenly asks her “what color her panties are?” What if this same “nice fellow” later inquires if she gets “moist between her legs when she’s around him. ” Nuisance suit? Robert is silent.
But Martha’s comments about a young worker mopping the floor of the upscale cafe where they are meeting finally gives Robert an opening. Martha rhetorically asks “Do you wonder what that young man’s life is like?” But before she can paint her picture of innocence under perpetual fear of unemployment and deportation, Robert gives us another take on the situation.
He starts by moving the discussion from Martha’s morality tales of employer abuse to bulletins from the “real world.” “A Bosnia Serb forced a Muslim prisoner to bite off the testicles of another prisoner who wouldn’t stop screaming. Well, he stopped screaming. Don’t cringe, Martha. It’s the real world.”
Then Cerriere situates Martha’s young man in the “real world” economy. He suggests the young man might be a Brazilian or a Honduran; in either case, most likely an illegal. “You think Mop Boy wants to go back to Honduras? What happens to a mop boy in Honduras? Look at him– he’s eating an apple Danish and drinking a latte.”
“Mop boy”, like all of us, must fit into the “real world” economy. Technology has transformed the world into a vortex of endless innovation. Industries bloom and become obsolete in a generation. “Everything is up for grabs.” And the people with the knowledge and intelligence to do so are grabbing whatever they can get. That’s the ethic of the “real world.”
In Robert’s telling, the world economy has morphed into a game of musical chairs with one difference; the chairs are no longer allotted by chance. Instead they go to the workers with the most marketable skills, a metric that correlates closely with race and class. How will “Mopboy” do in that competition?
Or, more btoadly, how will most workers fare as technology gets smarter and the number of workers needed smaller? Maybe Robert was anticipating this recent article on lawyers and automation on the website Legal Productivity. http://www.legalproductivity.com/featured/much-lawyers-worry-automation/ It appears that lawyers’ much prized analytical skills no longer protect them from competition with computers. Martha’s lawsuits won’t be of much help to workers who never get hired.
Like a skilled short story writer, Joseph ends the chapter with Robert’s bombshell. Martha does not reply. Robert is not defending the morality of the scenario he describes; perhaps he deplores it. He only insists it is the present reality and likely to continue. It’s also the professional arena that shapes how Martha and Robert talk when they talk about law.
I must admit that to my ears Robert’s tale has the ring of truth, a truth that both Hillary and Donald ignored last Fall as each sketched his or her own upbeat picture of the future.
They say ‘You can’t stop progress!” But what some call “progress” others may see as a form of social suicide. Maybe it’s time for a new “real world.”
Last Spring Senate Majority Leader Mitch McConnell embarked on a risky plan to deprive President Obama of the chance to appoint a Supreme Court Justice during his last year in office. McConnell won that bet; now it’s time to consider what the final consequences of that victory will be. Some say it gives the Republicans control of the Supreme Court for the foreseeable future. But turning the Supreme Court into an overtly partisan institution may not serve anyone’s long term interests, especially those of the Republicans.
It’s true that Trump pulled off an upset in the electoral vote, but this was accomplished against a weak opponent after eight years of Democratic rule that had started to sour many Americans. Still the demographic trends that everyone was touting a couple of months ago were not bogus; they make clear we are becoming more and more a multi-racial nation just at the time the Republican party has branded itself as defender of the grumpy white male.
The demographic future belongs to the Democrats and, if they show some attention to their traditional “average American” base, they should win the presidency convincingly in 2020 and long thereafter. What happens to McConnell’s Supreme Court then?
McConnell’s attempt to create a “Republican” Supreme Court may come to an ironic conclusion. Democratic presidents till now have tended to appoint leftish centrists (Breyer, Kagan ) while Republican presidents have chosen conservative ideologues (Scalia, Alito). But the new polarized political environment McConnell has created will change that; Democratic presidents will appoint more ideological justices, tilting the court more and more to the left.
Of course, so long as they control the Senate, Republicans will still be able to try the same tactics McConnell used so successfully last year to stymie Obama. But I don’t think that strategy will have much success, at least in the first 3 years of a presidential term. The public has learned the reason we have an odd number of justices; an even number is a recipe for stalemate.
I also think that most Americans feel that a presidential nominee to the Supreme Court has a right to be considered and voted on by the Senate; defying the conventional procedure will not be considered fair play. So too the public feels that the President’s choices deserve some deference. It is not likely that the public would uphold the routine Republican rejection of the nominees of Democratic presidents. Every time a qualified nominee is rejected, the next nominee will be harder to stop.
Once a Democratic majority on the Court is in place, the Republicans will reap the consequences of McConnell’s cleverness. A permanent democratic majority will feel entitled to dismantle the conservative constitutional structure that has endured since Nixon was elected. One of the first things to go will be the partisan gerrymanders which are the source of Republican majorities in the House.
I recognize that predictions of the political future are often wrong, as mine might also be. In truth, I hope I am wrong. I would welcome the new doctrine, but it would come at too high a price. An overtly partisan Supreme Court is a bad idea no matter which party holds the whip hand.
The Court’s legitimacy comes from the people’s belief that the justices are impartial judges, not politicians in robes. A good example is the Warren Court. The Warren Court’s decisions were controversial, but its legitimacy could never be challenged because its two most influential members- Warren and Brennan– were appointed by a Republican president. It was a “political” court in the sense that its decisions had serious political impact, but that is true of any Supreme Court. It was never a politically partisan court.
The two most controversial cases of the 70’s were Roe v. Wade (abortion) and Bakke (affirmative action); Justice Blackmun wrote the majority opinion in Roe, and Justice Powell wrote the controlling opinion in Bakke. Both were appointed by President Nixon. More recently, the Court settled the controversial question of same-sex marriage in the Obergefell case. Justice Kennedy, a Reagan appointee, wrote the majority opinion.
Unfortunately, we also have a good example of a politically partisan case. It is, of course, Bush v. Gore where a Republican-appointed majority gave the 2000 presidential election to the Republican candidate by adopting a interpretation of the Equal Protection Clause none of them would have supported if the names of the appellants and respondents had been reversed.
The Supreme Court’s political strength comes from the public’s acceptance of it as as bi-partisan institution. It is not a good sign when the news media feel the need to identify the justices by the party affiliation of the presidents who appointed them. A Supreme Court perceived as the tool of a partisan ideology cannot perform its constitutional role as constitutional referee.
I hope that President Trump will nominate a Republican Merrick Garland — a moderate, middle-aged judge who commands respect of all his or her colleagues. Unfortunately, that’s not going t to happen. . And, if Trump appoints a conservative ideologue, the Democrats will be guided by what might be the only universally accepted principle in American politics–“turnabout is fair play.” In designing their tactics, they will learn from McConnell’s clever strategy in the Garland fight.
Let the games begin!
I believe that imagination, not logic, is the essential ingredient in good legal reasoning. But imagination need not be vague or dreamy. Sometimes the imaginative solution to a thorny legal problem can be as clear and simple as 1,2,3.
A good example is found in a recent case involving the recurring evil of political gerrymanders. This NYT editorial tells the story well. http://www.nytimes.com/2016/12/03/opinion/where-unfair-voting-practices-begin.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region®ion=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=0
“Gerrymander” is a term most people have heard of, but few understand. It’s the name history has assigned to the dishonorable tradition of political parties in power drawing the lines for election districts to favor their chances of winning.
Here is a simplified example of political gerrymandering. The State of Dairyland has a total of 100 voters, 60 Democrats and 40 Republicans. They are to be divided into 10 election districts of 10 voters each. If the Republicans are in power, they can decide how many Democrats and how many Republicans will be in each district by use of sophisticated computer programs. By clever drawing of the district lines they can turn their 40% of the total vote into the election of 60% of their candidates. Let’s be clear—when Democrats are in power, they do the same.
Here is how it works in my fictional Dairyland. The Republicans draw district lines so that the Democrats “waste” votes in a few landslide victories—they might draw the lines in Districts 1-4 so the Democrats win all four races by a 9-1 vote. That means that there are only be 24 Democratic votes (60-36)) left for the other 6 districts. This will enable the Republicans to win the six districts 6 votes to 4 by also gerrymandering those districts.
The Republicans have transformed their 40 % of the votes into victory in 60% of the races. The reason the Republicans can perform this magic is that they have designed the system to ensure that the Democratic voters cast 12 “wasted” votes. These are the 12 votes in Districts 1-4 that they did not need to win. They needed six to win, but got 3 surplus votes in each of the four districts, 12 votes that would have brought them victory in two or more of Districts 5-10. The voters voted democratic, but the gerrymandered system created Republican legislators who will enact Republican policies.
This is not an occasional freak occurrence in the United States, but pretty much business as usual. My Dairyland example is a simplified hypothetical, but it does show how Republican-controlled state houses can and have in the recent past drawn election district lines that permit them to transform a minority of the votes into a majority of elected state representatives in states all across the country. Wisconsin is a good example. Wisconsin Republicans in 2012 were able to create the election districts that allowed them to elect over 60 percent of the members of the Wisconsin Assembly even though they received only 49% of the votes.
This sad situation exists despite the fact that partisan gerrymandering clearly violates the basic democratic principle that each voter should have equal voice. But persuading courts to mandate effective remedies for partisan political gerrymanders has proved difficult because it is impossible to draw districts that in no way favor one party or the other to some degree, and therefore you get into messy arguments about how much unfairness is too much.
That’s where the creative math comes in. Democrats in Wisconsin challenging the 2012 Wisconsin election were represented by University of Chicago law professor Nicholas Stephenopolous who made an argument that was not in the least “messy”; it introduces a mathematical formula that quantifies the discriminatory effects of the Republican gerrymander and provides the court a simple numerical answer to when the discriminatory effects violate the Equal Protection Clause.
The Democrats’ lawyers argued that that court should take all the “wasted” Democratic votes in the districts Democrats won and subtract from this number all the votes Republicans “wasted” in the districts they won. Here’s the math. The Democrats received 3 more votes than the 6 they needed to win in each of districts 1 -4 while the Republicans got only the six votes they needed to win in Districts 5-10. The Democrats “wasted” 12 votes and the Republicans didn’t waste any. Subtract 0 from 12 and you get 12. That is the total number of “wasted votes.” If you want to find out how great a percentage the “wasted” votes were of the total votes cast, you divide that 12 by 100, the total number of votes cast. You arrive at an “efficiency gap” of 12%. a percentage well above what could be explained by factors other than intentional gerrymandering.
I want to emphasize the creative aspects of Stephenopolous’ argument. One is its ability to identify and isolate the constitutional evil perpetrated by political gerrymanders. Twelve Democratic voters in those heavily democratic districts had no real voice in the election, and their silence was a direct and intentional consequence of how the Republicans set the district lines. These votes were not so much “wasted” as nullified by design. Twelve percent of Wisconsin voters (and 20% of the Democratic voters) in the election were silenced by gerrymander, a result completely out of synch with our constitutional ideal of “one person, one vote.”
Stephenopolous’ second creative move was to translate the constitutional injury into a simple numerical formula easy to apply and difficult to ignore. Judges in these cases are faced with scores of varying fact situations. The “equity gap” formula provides them a simple formula that focuses on the constitutionally relevant factors.
I am happy to report that a three judge U.S. District Court panel in Wisconsin has agreed with plaintiffs in the Wisconsin case by a 2-1 majority– both on the methodology and the conclusion. It’s important to note that all three judges were Republican appointees. The case might be appealed to the Supreme Court which has been looking for an objective norm to decide partisan gerrymander cases. The “efficiency gap” argument might just become the law of the land.
If so, we will have to credit a very creative law professor. Of course, Stephenopolous’ argument is also rigorously logical, but it is logic in the service of imagination. That’s the way it is with a good legal argument.
Here is a NYT article detailing the misery of migrant farm workers in California’s Salinas Valley. http://www.nytimes.com/2016/11/23/us/in-a-california-valley-healthy-food-everywhere-but-on-the-table.html?_r=0
The gist of the story is that since the 1930’s Salinas Valley has been famous for the quality of its vegetables and the poverty of the migrant workers who harvest them. And this is one we can’t blame on Donald Trump. Salinas is in the middle of California, a state with a Democratic governor, a Democratic legislature, and which voted lopsidedly for Hillary in the recent election. Maybe we should face the fact that Trump is more a symptom than the cause of our national failings.
So today I am going to enjoy my food, friends, and family; and also add not being a migrant farm worker to my list of things to be grateful for.
Tomorrow I will make a contribution to California Rural Legal Assistance (CRLA), a group of lawyers I know has been fighting for the rights of California farm workers for a very long time. http://www.crla.org/about-us You might consider doing the same.
The first season of Amazon’s Goliath grabs you from start to finish. Billy Bob Thorton is dynamite as Billy McBride, a failed lawyer trying to bring down a vicious corporation; and perennial Emmy winner David E. Kelly has lost none of his ability to write sizzling dialogue. https://www.rottentomatoes.com/tv/goliath/
Still I can’t deny that Thornton’s character bears a strong resemblance to Paul Newman in The Verdict, a down-and- out lawyer with alcohol and marital problems. And the ending echoes the final scene in Michael Clayton, another film where an underdog lawyer prevails. Let’s face it; the “underdog hero bests powerful villain” plot has been with us forever. That’s why even though the show is popular with viewers, 82 on Rotten Tomatoes, I fear some of you may pass on it because of its well-worn plot.
Kelley is not hiding the fact that he is re-telling an old story; the show’s title is “Goliath.” Still we should ask ourselves whether we should fault him for relying on such an unoriginal plot.I don’t think so; no matter how many times we see it, the “David versus Goliath” story raises a question that always intrigues us—-how can a good person cope in a world that so often rewards power over virtue?
The answer is we tell ourselves stories where a virtuous underdog hero vanquishes a powerful villain. This may sound like retreating into a fantasy world, but not necessarily to reside there permanently. Sometimes a little fantasy can do us a world of good.
If you watch a Superman movie and then jump off a tall building in an attempt to fly, the consequences will be disappointing. But less extreme escapes from reality can prove to be quite salubrious. At a minimum the “Goliath” plot reminds us that the most powerful do not always win. This is not only a pleasant thought, but also a true fact. Underdogs do sometimes win. Think of Donald Trump. Whatever you think of his virtue, he was an underdog. This realization that underdogs sometimes win may lead us to model ourselves on our own underdog heroes and start taking a more active role in our own lives.
Some of us may even become heroes ourselves. Consider the case of Edward Snowden. Snowden reminds me not so much of Billy McBride (or Donald Trump) as Jefferson Smith, the underdog hero in Frank Capra’s classic Mr. Smith Goes to Washington. Jeff is an earnest scoutmaster who suddenly finds himself appointed to fill a vacancy in the U.S. Senate. He soon discovers that he is really there as a stooge fronting for an evil political cabal planning a dam that will ruin a pristine river. Jeff decides to fight back. He loses his political innocence, but gains a lot of confidence in discovering he has talents he was unaware of. Jeff eventually conquers his Goliath.
We don’t know whether Edward Snowden ever saw Mr Smith. Certainly he was exposed to a lot of underdog hero narratives growing up in America in the late 20th Century. Snowden joined the U.S. Army Special Forces hoping to fight in Iraq to help the Iraqis to escape from oppression. When a serious injury during training ended his dream of fighting for Iraqi freedom, Snowden decided to serve his country as a computer expert at the CIA. Like Jeff Smith, Snowden discovered that his government was engaged in unsavory activities and lying about them. And, also like Smith, he decided to fight back.
The Golden Oldie finds life in a new telling, and the new version inspires viewers, some of whom may even become real life heroes. So enjoy Goliath , but don’t think of it as a guilty pleasure; it just might be the whisper in your ear that reminds you that maybe you too can be a little bit more the person you always wanted to be. And these are times that call for heroes.
It’s hard for lawyers not to be envious of scientists, fellow professionals who seem to continually come up with discoveries that improve the human condition while law muddles through from one crisis to the next.
Dan Flores’ book Coyote America may help us to better understand why law seems so fallible. http://news.nationalgeographic.com/2016/08/coyote-america-dan-flores-history-science/
The book is about coyotes, not law, but its discussion of “Old Man Coyote”, the mythical beast that is featured in thousands of Native American tales, adds a new dimension to discussions of law. Old Man Coyote is a divinity of sorts, not the creator of the world like the Christian God the Father, nor a paragon of virtue like his son Jesus, but a mixture of the best and worst human qualities—creativity and deceit, altruism and self-absorption, courage and credulity.
Flores argues that Native American tribes all over the West fixated on Old Man Coyote because they felt that they and the coyote had a lot of common traits. Both were mid-sized animals, predators and potential prey, living in a world of larger carnivores. Both species were only able to survive because of their superior intelligence and the capacity to adapt to new situations.
So the Native American tales about Old Coyote Man can be seen as an early a study of human psychology. In some ways it is an attractive picture; Old Man Coyote is an activist eager to live out the possibilities offered by a wondrous world. But human “coyote psychology” also raises serious questions about law’s ability to achieve the goals we assign to it.
Old Man Coyote is not only smart; he is also by nature restless, never satisfied with his current situation, and usually over-confident in his ability to change things for the better. In the stories he spends most of his time careening from success to disaster. If man shares psychological traits with this restless anarchist, running a legal system sounds a lot like trying to herd coyotes.
And Old Man Coyote lives in a bucolic, static society much more governable than our complex, dynamic, and pluralistic world composed of groups with different histories, values, and views on what constitutes an acceptable future. Not only are the people law aims to govern in many ways ungovernable, but the laws that regulate them are made and enforced by men and women sharing the same flawed “coyote” psychology.
While we speak of the “law” as if it were a single actor, in the United States the making and enforcing of law is parceled out to thousands of jurisdictions with different legislative, executive, judicial branches, many with rival views of what the applicable law means. A final irony is that those who wish to evade the law’s sanctions are encouraged to engage the services of highly paid, state-licensed experts charged with an ethical duty to assist them.
I find the “herding coyotes” metaphor very sobering. And it’s true the American legal system is dysfunctional on many fronts, not the least of which is access. Most Americans cannot afford to pay the legal fees that give them meaningful access to the system. Still I think humility is a better response than shame to the realization that our legal system is not an ideal one. By the very nature of its task, law will always fail to some extent. It is better discussed in relative terms like “better” and “worse.”
There are many things for law and lawyers to be proud of. Trial by by jury seems a big improvement over trial by ordeal. Law is the primary way we manage to institutionalize ethical principles into public life. All the ingredients of due process like an impartial judge, the right to cross-examine our accusers, the right to appeal judgments to a a higher tribunal are not only ethical principles made concrete, but also great improvements on what came before. And law has also evolved to protect other ethical principles like freedom of expression, equal protection, and privacy. These are cultural achievements of the first order.
Indirectly, Coyote America supports my thesis. Flores retells the story of how for most of the 20th Century the U.S. government waged a war on predators, including wolves and coyotes. It pretty much eradicated the wolf population, but was never able to subdue the wily coyote, although killing hundreds of thousands of them in the attempt. But in the 1960’s and 1970’s the law intervened to protect animal rights. The crowning achievement was the Endangered Species Act which curtailed the government’s program to infect coyote habitat with sophisticated new poisons. The coyote population and range continues to grow in America today partly because of legal protections, but mostly due to the same superior intelligence and adaptability we see reflected in the Native American tales.
I like this story for more than one reason. First, it supports my claim that law often embodies ethical principles. Here it was “animals have rights too.” We should be proud that law and lawyers turn pretty ideas into enforceable norms.
But I also admit taking some guilty pleasure in noting that the primary weapons in the government’s arsenal against the coyote were deadly poisons concocted by scientists. This fact not only helps cure my inferiority complex about science, but transforms it into a sense of empathy. I realize now that while scientists may inhabit an environment of pure rationality in the laboratory, when it comes to decisions about what products to produce and who to direct them at, they live in the same “coyote” world as the rest of us.
What’s the story behind the story of Chicago police officer Jason Van Dyke shooting 17 year old Laquan McDonald multiple times as the boy was walking away from him, but still claiming he acted in self-defense, a lie several of his fellow officers repeated in their official reports of the killing? And why would police officers lie in official reports, an act that could get them fired? And, finally, is McDonald’s death a tragic error or a symptom of a deeper structural problem in the Chicago Police Department (CPD)?
Jamie Kalven’s four-part essay in The Intercept goes a long way toward answering these questions. Kalven thinks the answers all revolve around the CPD “code of silence”—officers never “rat” on one another. The “code” may sound like an example of admirable loyalty between comrades. “You’ve got my back and I’ve got yours.” But Kalven points out that it plays a more sinister role in the department’s culture. The code of silence is not so much about personal loyalty between comrades as it is an essential cog in a top-down bureaucratic dynamic that forces all police officers to choose between four career profiles: criminal, crime enabler, stooge, or pariah.
Shannon Spalding was young police officer assigned to the housing projects on Chicago’s Southside. She started hearing talk that Sargent Ronald Watts was running a protection racket for drug dealers in the projects. They were required to pay Watts a “tax.” Those who did were left alone; those who didn’t were “busted” and had their drugs confiscated to be sold by Watts’ team. There were even stories of murders of uncooperative drug dealers.
At first Spalding didn’t give much credence to the rumors. She had ridden in a squad car with Watts when she first joined the force, and found him to be a good guy. (This was her “stooge” phase.) But when her partner Danny Echeverria came across more information on Watts’ criminal activities, they decided to report him, and soon found themselves assigned to a joint anti-corruption task force with the FBI.
But just as that investigation was reaching the point where a prosecution against Watts was possible, Spalding and her partner were taken off the case by the head of the Internal Affairs Department, Juan Rivera, the man in charge of investigating “bad” cops. Rivera also let it be known throughout the department that Spalding and Echeverria were working on prosecutions of fellow officers. Suddenly the two young officers became pariahs, not only ostracized socially, but also in physical danger.
Why would the man assigned to stopping police criminal behavior interfere with a promising investigation against an officer believed to be a criminal? Kalven suggests that Watts knew that he was not the only Chicago police officer engaging in illegal activity and that he made clear that, if he was prosecuted, he would bring others down with him. Numerous senior officials were therefore vulnerable to charges of either engaging in criminal activity or enabling others who were by looking the other way. This not only would put a lot of insiders at risk, but also the publicity created by a new wave of police scandals would not be good news for head of the Internal Affairs Division, or the mayor he reported to.
So it made bureaucratic sense for the official whose job is to prevent police crime to act as a crime enabler. Eventually Spalding and Echeverria realized their careers in the police force were effectively over and filed a whistle-blower lawsuit charging top leaders of the CPD with serious retaliatory actions against them. Here’s how things finally played out. Watts was charged with one offense of “theft of government property”, and served a short sentence and paid 5200 dollars in restitution. Upon his release he retired to Las Vegas, presumably with millions of dollars gleaned from his decades of shaking down drug dealers.
Then just before the trial in their lawsuit,, Spalding and Echeverria agreed to a 2 million dollar settlement of their case. This may sound like a partial vindication of their efforts, but Kalven argues that the settlement actually solidified the code. Mayor Rahm Emanuel had once given a speech in which he decried the “code of silence” operating in the CPD. The judge in Spalding and Echeverria’s case had ruled that Emanuel could be questioned under oath about how the code operated. And all the officers who had exonerated Van Dyke in their reports would be also be required to testify under oath. Filing a false report can lose you your job; perjury is a felony. The settlement made it unnecessary for the mayor or the officers to testify. The settlement appears to be not so much a repudiation of the code of silence as an example of the code in action.
But the Spalding and Echeverria’s lawsuit and Kalven’s article do give us a better understanding of what happened in the Laquan McDonald killing. Why did Van Dyke shoot and kill a boy who presented no clear danger to him? While we still do not know all the thoughts in his mind, fear of criminal prosecution does not appear to have been one of them; Van Dyke knew the “code’ would protect him. And why would his colleagues lie to protect him? Whatever role comrade loyalty played, there were more practical reasons for them to corroborate Van Dyke’s version of events. While a false report would violate the rules of their employment, the rules were never enforced in a “code” situation. But telling the truth would have immediate and serious consequences. They would become departmental pariahs in much more danger than either Spalding or Echeverria because they would have had actually violated the code. And, finally, should we view the McDonald killing as a tragic mistake or a symptom of a system out of control? I’ll leave that question for you to answer for yourself.
But there’s one more omnipresent character in this story who we must remember—the victim. Here I mean innocent citizens who have been the been the victims of police conduct the code condones—people like Laquan McDonald and countless other innocent, mostly minority. Chicagoans.
Will this ever end? Probably not until some people who do not wear uniforms take responsibility. Mayor Emanuel certainly is a case in point. He approved the settlement which allowed the cover-up to continue. But let’s not forget the citizens of Chicago who foot the 2 million dollar bill for the settlement. They would appear to qualify both as enablers and stooges. This story will only have a happy ending when the people of Chicago elect a mayor with an explicit mandate to make dramatic changes in how the CPD does business.
Of course, there is one more question to ask ourselves–Is there any reason to believe that this problem is unique to Chicago?
This linked article not only summarizes Kalven’s argument, but also provides links to Kalven’s complete text. https://boingboing.net/2016/10/06/merciless-exhaustive-reportin.html
update 1/1/17 This follow-up article by Jaime Kalven suggests that CPD is living up to our worst fears.https://theintercept.com/2016/12/30/code-of-silence-revisited-an-update-on-the-watts-investigation/
Leyla Martinez is a good example of the problem and its solution. Ms. Martinez, a single mother, had just been evicted from her apartment in the Bronx after a year’s struggle representing herself in the New York Housing Court. Then she was able to contact an attorney at the Urban Justice Center; soon thereafter Ms. Martinez and her kids were back in their apartment. Seventy percent of low-income tenants come to housing court without a lawyer, but those who do have lawyers are 75% less likely to be evicted.
Now the New York City Council is considering a landmark bill that would guarantee low income tenants facing eviction legal representation. An added bonus of the proposed legislation is that the legal expenses incurred by the City will be more than made up for by the savings gained by keeping families out of city shelters.
It turns out that lawyers are not only effective; we are also a bargain.
This excellent NYT article tells the full story. http://www.nytimes.com/2016/09/27/nyregion/legal-aid-tenants-in-new-york-housing-court.html
We all hate Citizens United, but sometimes we don’t remember why. So let me remind you.
To take a nostalgic example, let’s consider Jeb Bush’s campaign for the Republican nomination this past year. Under current law if you wanted to support Jeb, you could make a direct contribution to his campaign, but it would have to be limited to 2700 dollars. On the other hand, you could make a donation of any amount to his Super Pac Right to Rise. The advantage of the Super PAC is that there are no dollar limits on the contributions it receives or the expenditures it makes. They can be in the millions. The disadvantage is that the expenditures must be “independent”, not coordinated with a candidate.
Technically, Right to Rise was independent of the Bush campaign itself, but functionally it was an integral part of it. Guileless Jeb once inadvertently admitted as much. He proudly announced, “We just started to advertise…”– then he corrected himself–“our Right to Rise Super Pac started to advertise, not our campaign.” One of many possible examples of coordination was the fact that his “independent” Super Pac paid political operative Trent Wisecup 16,000 dollars for political strategy services. Wisecup was also the Bush campaign Director of Strategy. And Bush’s approach was the rule, not the exception. The “independent” expenditure exception has made a farce of campaign finance reform.
Lee Fang of The Intercept had the clever idea of asking Justice Anthony Kennedy, the author of the majority opinion in Citizens United, what he now thought of the case’s impact. https://theintercept.com/2016/09/20/justice-kennedy-citizens-united/ Fang reminded Kennedy that in his opinion he had cavalierly rejected the argument that so-called “independent” contributions by large donors would actually be coordinated with political candidates to have a corrupting effect on the election system. Kennedy’s argument had been simplicity itself:–“By definition an independent expenditure is political speech directed at the electorate and not coordinated with the candidate.” Fang pointed out that history seemed to have proved Kennedy wrong; all candidates now were coordinating their campaigns with allied Super Pacs. Kennedy’s reply was “No comment.”
Kennedy’s error was one of fact, not logic. He didn’t foresee the negative impact his decision would have on the democratic process. While maybe we should have judges who are more aware of how life operates in the “mean streets” of political life, we can’t expect a judge to be a factual expert in all the areas that cases present. After all, Kennedy is a judge, not a lobbyist.
But the fact is that, before he was a judge, Kennedy was a lobbyist, presumably aware of how easy it would be for a technically “independent” expenditure to be covertly coordinated with a candidate’s campaign in violation of the law. http://www.biography.com/people/anthony-kennedy-9362868#early-life
Citizens United was a 5-4 decision.
What separates a “great” lawyer from a merely good one? Graham Moore’s new novel The Last Days of Night gives us what I think is a persuasive answer to that fascinating question.
The Last Days of Night tells the story of Paul Cravath, a 26 year old recent law graduate, who in 1888 suddenly becomes lead defense counsel for the industrialist George Westinghouse in one of the most famous patent cases of all time. Thomas Edison had sued Westinghouse for infringement of his light bulb patent. Actually Edison brought 312 individual cases asking for a total of 1 billion dollars in damages. It was one of the biggest cases of all time, but Cravath’s first. The reader gets an extra jolt of pleasure from knowing that this neophyte lawyer will go on to be the name partner in perhaps the most famous law firm in the world.
Moore’s historical novel tells the story of Cravath’s handling of the case and, in so doing, the lessons he learns about the practice of law, and himself. Moore even throws in a romance with a beautiful opera singer who becomes Cravath’s wife. The book also provides the lay reader WITH a comprehensible explanation of the scientific issues behind the case as well as a vibrant portrait of life in New York City at the end of the 19th Century.
One reason that Moore is able to provide us a riveting narrative from start to finish is his liberty as novelist to re-arrange the “facts” to create the most interesting story. He admits that his narrative even presents events as true that may not have happened. This historical fiction may be almost as much fiction as it is history. Still I think his “based on a true story” approach to history does not prevent Moore from providing us not only an excellent entertainment, but also teaching us a lot about how science actually works.
But I recommend the book to you for A different reason– I believe that the qualities that Mr. Moore tells us “make” great scientists are the same ones that make great lawyers like Paul Cravath. Thomas Edison believed that there are three qualities necessary to be a great scientist. First, you have to imagine a new future– a desirable state of affairs that does not presently exist. In the late 19th Century a world where light conquered darkness was such an idea. Then you have TO devise a means to make that hypothetical future a reality. In the “light bulb” case this turned out to be “alternating current”(AC) that allowed electricity to travel long distances. Finally you have to “sell” the idea and the means to the actors who can make things happen. In the “light bulb” case IT was the Wall Street investors who could finance the “wiring” of the world.
I will not spoil your reading pleasure by describing Paul Cravath’s lawyering in detail. But I am confident that readers of Moore’s novel will discover that Cravath’s method in handling of the Westinghouse litigation sounds very much like the idea/ means/, sell triad that Edison ascribes to great science. First, he imagined a “future” that was congenial to his client’s interests. Then he created the legal mechanism that could make that future a reality. Finally, he used his persuasive skills to “sell” both the idea and the means to the parties that had the power to make it a reality.
Albert Einstein once opined that while you have to learn the rules in science, you also have to play the game better than anyone else. In Paul’s case, he had to know the legal rules, but imagination and craft were the weapons that allowed him to play the game to win. Cravath didn’t best his opponents by subtle distinctions of applicable case law. He outsmarted them with creative ideas and clever strategies.
There has always been a temptation to “upgrade” law’s intellectual status by treating it as a “science.” The most recent example is the “law and economics” movement that uses the methodology of economic science to evaluate the “efficiency” of legal rules. Moore’s book illustrates that no matter how we choose to describe the study of law the practice of law remains more an art than a science. Moreover, Moore’s book suggests that the same is also true about the practice of great science.
The new film Don’t Think Twice is my favorite kind of movie; it makes you laugh watching it and makes you think later on. In telling the story of the breakup of an improvisational comedy troupe in NYC, the movie celebrates how a combination of talent and camaraderie can produce infectious excitement. But it is also a cautionary tale about how group success falls prey to individual ambition.
The troupe specializes in taking a random comment from the audience and running with it, each member of the cast riffing on the contribution of the last. The comedic whole turns out to be much more than the sum of the individual contributions. The audience not only feeds off the creativity of the individual contributions, but also shares in the joy the cast members take in their collective enterprise. It’s great to be young, talented, and free to do your own thing, even if the joy is linked to a grad student standard of living and involuntary envy of the stars of hit shows like Weekend Live.
Tensions arise when one member, Jack, receives and accepts an offer to join the cast of Weekend Live. Suddenly this mutual admiration society transforms into a mutual recrimination society. The cast members left behind cannot help but see their colleague’s success as evidence of their own failure. They accuse Jack of selfishness and even plagiarism. He in turn is deeply wounded by his colleagues’ refusal to rejoice in his success, but also finds compensation in the knowledge that he is headed for a larger paycheck and a higher rung on the showbiz status scale.
Watching the film, I could not help but see Jack as a “winner” in moving up the ladder and his colleagues as “losers.” But writer /director Mike Birbiglia is too smart to make it a “winner take all” affair. Gradually the abandoned cast members start to move towards new futures with the knowledge that they had been true to each other and that at least once in their lives they had done something really good on their own terms. Maybe it will happen again.
And Jack finds there is a downside to his success. Not only has he lost his best friends, but he is no longer a creator of original comedy sketches. The head writer of Weekend Live makes clear that he sees Jack as only a small, well-paid cog in a large entertainment machine that has little interest in him beyond his next performance. It doesn’t look like Jack is going to be a new Richard Pryor or Bill Murray. More likely he will end up as the noisy neighbor on some network laugh-tracked sitcom.
That’s where the thinking starts to kick in. Maybe we’ve got the “winners” in Don’t Think Twice all wrong. It turns out that “winner” has more than one definition. In some contexts, it is the person who prevails in a contest. The Cleveland Cavaliers won the NBA title this year. But an alternative definition is “a good or successful person.” In short, someone we admire. By that definition, maybe it’s the abandoned colleagues who stayed loyal to each other and their work who are the winners.
Of course, if they were indeed “winners,” they were very lucky ones because almost all of them would have accepted an offer if they had received it. But that’s my point. We live in a culture that so magnifies the importance of status and income that we might be persuaded to act against our own self-interest more broadly considered. That is not to say that every disappointment you experience is a blessing in disguise, but some may be. And it’s important to recognize them–either at the time or later.
Is Ryan Lochte a “winner?” He has an Olympic medal so I have to say “yes,” but most of us still view him as a “loser.” I’m not suggesting that he became a “loser” at Rio; I think he just revealed his true self there. How about John Turturro’s character, John Stone, in the HBO mini-series The Night of? Stone doesn’t dress well or make much money, and his peers don’t show him much respect. But he’s a smart lawyer who earns enough to support himself and his cat in a modest lifestyle while representing people who really need representation. He’s a “winner” to me.
And then there’s Colin Kaepernick. Are the sports superstars who remain silent about race to protect their advertising contracts the ”winners” and the struggling quarterback who spoke out about racism as a matter of conscience a “loser?” You tell me.
We are all unhappy about continuing stories of widespread police abuse of African-American citizens, but there seems to be no effective remedy available.
One egregious example was the police killing of seventeen year old Laquan McDonald in Chicago. McDonald was shot by officer Jason Van Dyke. Van Dyke claimed McDonald was coming at him with a knife and he only shot in self-defense. Several of his police colleagues filed statements corroborating Van Dyke’s story. Then a police video was released showing that McDonald armed with a knife, but was walking away when Van Dyke shot him sixteen times. Van Dyke will go on trial on homicide charges, but persuading 12 jurors to find a police officer guilty beyond a reasonable doubt has proved to be a near impossible task. Will this ever end?
Maybe it will. Chicago Police Superintendent Eddie Johnson (photo) has recently filed charges against the officers who signed false statements about what they witnessed the night McDonald died. If a civilian review board finds that the officers did file false statements, they will be discharged. The policy is now clear: “If you’re a liar, you’re fired.” http://www.nytimes.com/2016/08/19/us/laquan-mcdonald-chicago-police.html
The moral to this story seems to be “when all else fails, try the law.” The whole idea behind the “rule of law” is that legal rules will be fairly and impartially applied to all citizens. Unfortunately, in our society this simple principle is not honored. The rules are over-enforced against minorities and under-enforced against the politically powerful, a category that includes the police. Superintendent Johnson has made a wise choice in demanding that police officers, like the rest of us, follow the rules if they want to keep their jobs.
Will this strategy work? We will have to wait and see. But I am hopeful. Unenforced rules are ignored. Up to now, an officer who witnessed illegal conduct by a colleague had been placed in an impossible situation. He knew there was no realistic fear of punishment for lying, but a certitude of social recrimination for turning in a colleague. And potential abusers were also aware of this imbalance. Now the incentive structure has been reset. “If you’re a liar, you’re fired.”
I think most Chicago police officers will accept that following the rules is part of the job. The others should find another line of work. Maybe I am guilty of naivete in thinking that fear of loss of a job and pension can prevail over the code of silence we are told is so strong in police culture. Still I am encouraged by some crude, but apt, advice that Theodore Roosevelt once offered: “If you’ve got them by the balls, their hearts and minds will follow.”
Sonia Sotomayor has been a different kind of Supreme Court justice from the beginning. At her confirmation hearing, instead of putting the Senate committee to sleep with platitudes, she told a male Senator that she thought a “wise Latina” might have some valuable insights to offer in constitutional discussions. Then she ignored the tradition for first term justices to be seen but not heard by immediately joining in the colloquies with counsel during oral argument.
But, as Adam Liptak points out in this excellent article in the New York Times, it was only last term that Sotomayor showed how different a justice she could be. http://www.nytimes.com/2016/07/05/us/politics/in-dissents-sonia-sotomayor-takes-on-the-criminal-justice-system.html In so doing, she may have started to change the way we talk about constitutional law. I sure hope so.
Liptak discusses several Sotomayor dissents from last term, but rightfully gives special attention to her dissent in Utah v. Strieff. Let me give you some background on the case before letting you judge Sotomayor’s performance for yourself. Strieff involved a fact situation that has divided the Court for a long time. A police officer stops and searches a citizen without any reasonable suspicion of illegal conduct. This is a clear violation of the Fourth Amendment. But in the course of the illegal search, evidence of illegal conduct is found which the State attempts to introduce at trial. The defense insists that it be excluded because it stems from an illegal stop and search.
In Streiff, the State argued the evidence discovered, illegal drugs, should be admitted because it was not the product of the illegal stop; it came from the officer’s decision after stopping Strieff to check if he had any warrants outstanding and finding there was an arrest warrant outstanding for a minor traffic violation. Only then did he arrest Strieff and search him, finding crack in one of his pockets. The defense replied that this argument was pure sophistry because checking for outstanding warrants is a routine part of the stop procedure. To allow such tainted evidence will only invite police to illegally stop and search innocent people. many guilty of no more than having dark skin.
The Court ruled in a 5-3 decision for the State. Justice Thomas wrote the majority opinion which pretty much tracked the prosecution theory. Justices Kagan and Sotomayor wrote dissents which echoed each other on the law, but differed dramatically in presentation. Sotomayor better understands that the defense position may have logic on its side, but fails on an emotional level because it calls for a guilty person evading punishment. Also what’s so terrible about the inconvenience of being stopped by a police officer just trying to do his or her duty? Sotomayor wants us to understand– to viscerally feel– that, especially for a minority, a police stop constitutes much more than an inconvenience.
Here is Part IV of her dissent. It’s a little long for the internet, but I don’t think you will find it boring:
SOTOMAYOR, J. dissenting
Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873, 886–887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U. S. 1, 4–5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119, 124–125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014). The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This Cite as: 579 U. S. ____ (2016) 1 This Cite as: 579 U. S. ____ (2016) 11 SOTOMAYOR, J., dissenting involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” Id., at 17, n. 13. The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014). This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this 12 UTAH v. STRIEFF SOTOMAYOR, J., dissenting manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015). By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. * * * I dissent.
After reading this dissent, my reaction was quick and clear– “I hear you!” And it was Sotomayor’s skillful use of language that brought me beyond logic to feel the innocent minority suspect’s pain. That’s a great thing about words; they allow us to understand things we have not experienced. In her wonderful memoir “My Beloved World” Sotomayor tells us that she learned as a prosecutor that you need more than logic to win. You need emotion. Now she has employed that same wisdom in writing a judicial opinion.
I am sure some readers may agree that Sotomayor’s prose is persuasive, but still fear that her dissent is not sufficiently “judicial.” Aren’t judges supposed to be above the fray? While this is a reasonable objection I think that it ignores some basic facts about the Supreme Court and the role of dissenting opinions. The Supreme Court is not a court in the traditional sense of one judge doing justice in one case. Rather it looks to the future and decides by majority vote. Any decision can be overruled by a later Supreme Court majority. A dissent allows a justice to show why the present majority is wrong. Sotomayor’s audience here is not just her colleagues; in a democracy it also includes her fellow citizens. Is there any good reason why she should not use all the lawyer’s traditional skills in making the most persuasive argument possible?
Amy Albritton learned the hard way that the American criminal justice system assumes that those charged with crime are guilty, at least until proven innocent, and sometimes even after. This article from the New York Times Magazine sets out Amy’s experience in detail. http://www.nytimes.com/2016/07/10/magazine/how-a-2-roadside-drug-test-sends-innocent-people-to-jail.html) Amy, the divorced mother of two children, had a good job as the manager of an apartment complex in Monroe, Louisiana when she left with a new boyfriend on a get-away to the bright lights of Houston.
The nightmare began when her car was pulled over for changing lanes without signaling. The officer saw a “white crumb” on the floor of the car which he thought looked like crack cocaine. So he performed an on-the-spot drug test by placing the crumb in a vial of chemicals and noting the color change. He quickly determined it was cocaine and announced to Albritton, “You’re busted.”
This portable field test drug kit is commonly used by police all over the United States. Unfortunately, it is highly unreliable, routinely churning out large numbers of false positives, a fact the many arresting officers don’t know. Estimates are as high as one in three. That’s why the roadside tests are not admissible as evidence at trial in Texas or most other jurisdictions.
But they are good enough to be accepted as the basis for a guilty plea, and 99.5% of drug possession convictions in Houston are the products of plea bargains. Amy at first insisted on her innocence, but her court-appointed lawyer showed little interest. He advised Amy that her best course of action was to plead guilty to felony possession. The upside was that she would only spend a couple of weeks in jail instead of the two years she would serve if she went to trial and was convicted of felony possession. Albritton took the deal, served her term, and went back to Louisiana with a felony conviction on her record.
When she returned home she was immediately fired from her job for missing work; this resulted in also losing her apartment and her furniture. Then her newly acquired criminal record prevented her from finding another job as an apartment manager so she settled for a job as a clerk in convenience store.
Most jurisdictions never check whether the drug test that justifies accepting a drug possession plea is accurate. But, to its credit, Houston sends the evidence to a forensic lab to check whether it is really an illegal drug. When the lab tested the “white crumb” in Amy case, they found it was not cocaine or any other illegal drug. Most likely it was food debris. Amy had been wrongfully convicted
The lab emailed the District Attorney’s Office its conclusion, but nobody at the District Attorney’s Office remembers reading the email. Only when a reporter writing a story about drug convictions in Texas found to be based on inaccurate drug tests inquired if there were any such cases in Houston did the District Attorney contact the lab. The lab told them that there were 212 cases where the lab found the sample not to be an illegal substance, including Amy Albritton’s.
So long after her conviction, the District Attorney’s Office sent Amy Albritton a form letter informing her that she had been convicted on false evidence. Unfortunately, Amy never received the letter because it was sent to the address on Amy’s driver’s license when arrested, the apartment complex that had evicted her after the conviction. It was one of the authors of the New York Times story who read Amy’s file and tracked her down to give her the good news. Her immediate response was “I knew it. I told them.”
Amy’s experience is not unique to Houston. Nationally the situation is no better; probably it is even worse. The authors of the NYT article estimate that at least 100,000 people a year plead guilty to drug charges that rely on the same type portable drug test kit used in Albritton’s case. If one third of these tests are “false positives,” the American criminal legal system is inflicting injustice on a mass scale.
I don’t think that it’s sufficient to just feel sorry for the injustice caused Amy. We owe it to Amy and ourselves to understand how so many apparently innocent errors led to this sad result. Let’s review the facts. The officer who conducted the roadside drug test seemed to think it was state of the art science. The court-appointed attorney thought it cancelled out the value of Amy’s declaration of innocence, and the judge who accepted her plea never mentioned that Amy could move for a continuance until the “white crumb” had been tested in a professional lab.
It gets even weirder. The police lab that discovered the test was inaccurate in Amy’s case sent over 200 emails to the District Attorney’s office notifying them of convictions that were based on false evidence, but never checked up on what action had been taken. In turn, the Houston District Attorney’s office apparently does not read its emails, at least those that inform them they have convicted an innocent person. When finally notified of the injustice visited on Amy, the District Attorney sent her a form letter to an address it knew might be obsolete. That letter makes no apology to Amy for the mistake in Amy’s case or mention any action it will take to see that injustice rectified. It’s Amy’s problem what to do.
And yet Houston appears one of the more progressive jurisdictions in the country in criminal justice matters. What conclusion should we draw from this strange tale of incompetence? Here is what I fear has happened. A silent bureaucratic revolution has transformed the American criminal justice system. The system used to be run on a “rule of law“ model; the primary tool was the jury trial and the reigning assumption was that those accused of crime were innocent until proven guilty. Remember the old maxim “better that ten guilty persons escape than one innocent suffer.”
But our national embrace of the “war on crime” has slowly transformed the system. The rule of law model still operates in some cases, like those of hedge fund tycoons and police officers charged with shooting minority suspects, but in the vast majority of cases it has been replaced by a robotic burLAWcracy more interested in generating large numbers of convictions than getting the right result in each case. Now the primary tool for resolving cases is the “voluntary” guilty plea aided by high bail fees and the threat of draconian sentences for those who dare demand a trial. Innocent defendants like Amy feel they cannot afford to ask for a trial. Cases like Amy’s are seen as acceptable “collateral damage” in the larger war effort.
And the innocent victims are the most vulnerable; in Houston almost 60% of the “bad” guilty pleas for drug offenses involved African American defendants, although African Americans only make up a little over 20% of the population. Amy is white, but her car had an out-of-state license plate. I have to wonder if Texas plates might have protected her from being pulled over for changing lanes without signaling, and the ordeal that followed.
You might ask what happened to the old “better that ten guilty persons escape” philosophy. I think it’s been the victim of death by willful ignorance. Houston authorities must have known of the weakness of the portable drug test kit; otherwise they wouldn’t have sent results to a professional lab to be checked for accuracy. But no one spoke of the test’s weaknesses, read unwelcome emails, or checked up on whether errors discovered had been remedied. The system just kept rolling out more guilty pleas.
Some people will call burLAWcracy a modern innovation in pragmatic problem-solving. But I like the ring of the phrase “with liberty and justice for all.” The criminal justice system should work at least as hard at protecting the innocent as it does punishing the guilty.
Let me know what you think.
Better Call Saul’s Jimmy McGill (Bob Odenkirk) has a lot of qualities I admire. Jimmy is smart, funny, and irreverent, both a friend to the underdog, and a plague on the pompous. What’s not to like?
Still I’m starting to have my doubts about Jimmy. Somehow I feel that he is headed for a bad end. Actually, it’s more than a feeling. Since, like many of us, I have watched Breaking Bad, I know that Jimmy later morphs in Saul Goodman, Walter’s White’s outlaw lawyer who uses his creativity and charm to help Walt spread deadly metamfetamines all around the Southwest, violating both ethical canons and criminal laws in the process. It’s evidence of showrunner Vince Gilligan’s genius that Better Call Saul shows Jimmy as more than an apprentice felon.
Instead Gilligan portrays Jimmy as a tragic hero– a good man eventually done in by the very gifts that make him special. In Season 2 of the series the self-destructive side of Jimmy’s personality starts to appear. Take the “bonus” incident from Episode 7. Earlier Jimmy’s legal career had been revived by a generous offer of employment from a law firm whose senior partner Cliff Main (Ed Begley, Jr.) admired Jimmy’s creativity.
But even though the firm gives Jimmy a generous signing bonus, a fancy car, and an expensive apartment, things quickly go awry. Unhappy with a television advertisement Jimmy airs without notice to the partners, the firm puts Jimmy on probation and assigns a junior associate to “babysit” him. Incensed by this disrespect Jimmy decides to resign, but then realizes that if he quits, he must pay back the bonus.
Jimmy nimbly changes course; he campaigns to be fired. He starts by wearing outlandish outfits to work, attire he knows will offend the partners’ sense of propriety. Then he stops flushing the community toilets as part of an alleged campaign to save water, knowing full well that a public discussion about restroom etiquette will embarrass his uptight colleagues. Finally, he buys a second hand bagpipe and starts using the firm’s offices as a rehearsal hall during working hours. This ploy is especially clever since it allows him not only to disrupt business, but also to parody senior partner Main’s own inexpert attempts to play the guitar.
Jimmy wins. Main fires him and Jimmy keeps the bonus. But since he doesn’t really care about money, Jimmy’s only victory is proving that he is indeed smarter and hipper than his conventional colleagues. But even this is a hollow victory because the intended targets of his ridicule don’t even get the joke. They just think he’s a jerk.
Of course, the “bonus” incident is small potatoes, but soon Jimmy goes further, actually doctoring a legal document in order to give his friend/lover/ partner Kim Wexler (Rhea Seehorn) a leg up in a competition for a client. This is clearly unethical and maybe criminal as well. Jimmy claims he only wants to help Kim secure a client she deserves. While Jimmy was protective of Kim, he also had other scores to settle. The firm competing with Kim happens to be one Jimmy feels had mistreated him in the past. And the victim of Jimmy’s ruse was Jimmy’s older brother, a partner in the firm who failed to support Jimmy in his dispute with the firm. It was about more than an injustice to Kim, it was also payback for past wrongs and an opportunity for Jimmy to prove (to himself) he’s the smartest guy in the room. We start to see Saul Goodman appear on the horizon.
In many ways, Jimmy is a good example of what I call in the book Guile is Good a “trickster lawyer.” https://guileisgood.com/guile-is-good-the-book/ The idea is that many talented lawyers resemble the Trickster of myth and fable who uses creativity and guile to best adversaries. I intend the trickster as a positive image for lawyers. The Trickster Brer Rabbit uses wit to escape becoming Brer Fox’s dinner. A trickster lawyer like Gerry Spence showed a similar creativity in crafting his masterful final argument in the Karen Silkwood case.
But sometimes Tricksters are too smart for their own good. They become so obsessed with showing their cleverness that they take self-destructive actions. One example might be doctoring a document that could easily end with the loss of your license to practice law. The legal imagination is a wondrous thing, but you have to know when and toward what ends you want to use it. Our final sighting of Saul Goodman on Breaking Bad finds him working behind the counter at a fast food outlet in Omaha, Nebraska wondering if the next customer will be a DEA agent or a mafia hit man. This is where his cleverness has led Walter White’s brilliant consigliere. And that’s also where Jimmy will end up.
Well-crafted fictions like Beter Call Saul inform as they entertain. There is no scarcity of lawyers in real life who are so delighted with their own deft moves that they have no awareness of how their behavior affects others, or even themselves. And most of them don‘t even have Jimmy McGill’s sense of humor.
Everyone knows that constitutional law is very important, but most people don’t understand why. I think the recent Texas case on abortion teaches us why it is so important– and so controversial. http://www.nytimes.com/2016/06/28/us/supreme-court-texas-abortion.html
Texas passed a law setting out new requirements for abortion clinics. Now clinics would have to employ a doctor with admitting privileges at a local hospital and buy additional expensive medical equipment. Texas claimed it was trying to make abortions safer, but abortion providers responded that the new requirements would in fact force most clinics to close. The number of clinics throughout Texas would drop from over 40 to 8 or 9.
A clinic sued in federal court, claiming that the requirements violated their patients’ “liberty” to choose an abortion under the Due Process Clause of the Fourteenth Amendment. The Supreme Court decided the case by applying a rule distilled from the constitutional text and prior court decisions—Did the new Texas law place an “undue burden” on the patients’ right to choose an abortion?
In answering this question, the Court looked at the goals Texas claimed the law would achieve and how well it achieved them as well as the obstacles it placed in the way of women seeking an abortion and how serious these obstacles were. Balancing these considerations a five member majority decided that the law was a “substantial obstacle” to the women’s right to obtain an abortion which in turn resulted in an “undue burden” on the protected liberty. The Court held the Texas law was unconstitutional.
The decision is controversial because the key terms in the Court’s opinion (“undue burden” and “serious obstacle”) themselves do not appear in the constitution. These vague phrases are the creations of the justices who also decide what they mean in a particular case. The majority could have just as easily determined that only laws creating an “overwhelming burden” on the woman’s choice violate the constitution. If they had, Texas would have prevailed.
No one can deny that, for all practical purposes, the justices decide what the constitution means. We are told this is “undemocratic” and in a sense it is. But the Constitution was passed in part to protect certain rights, like individual liberty, from democratic abuse. So, since the constitution cannot interpret itself, the Founding Fathers came up with a neat compromise. Supreme Court justices do not stand for election like presidents and senators, but they are appointed by presidents and confirmed by senators who are elected.
That is also why the election in November is so important. Different president, different justices. Different justices, different constitutional law. (429 words)
Thomas Thompson was executed by lethal injection eighteen years ago this month at the age of 43. After you read my post from a year ago I think you will agree that there is an excellent chance that Thompson never committed the crime that triggered his death. https://guileisgood.com/2015/06/15/some-judgments-are-too-final/
My brother, Quin Denvir, was Thompson’s lawyer. Shortly before his death, Quin wrote Governor Brown asking that he end executions in California. http://www.sacbee.com/news/politics-government/capitol-alert/article68540477.html I know that, as he wrote that letter, Quin was thinking very much about what had happened to Tom Thompson.
Brown was against the death penalty as a young man. Maybe it’s time he acts to foreclose irreversible errors in the future. You can contact him to tell him that you hope he will commute the sentences of those now on death row. https://govnews.ca.gov/gov39mail/mail.php
A couple of months ago I happened to be walking through San Francisco’s skid row and noticed a beautiful old church. I decided to look inside. At first my eyes were drawn towards the altar, but then I noticed someone sleeping in one of the pews. As my eyes became accustomed to the darkness, I realized that almost the whole church was filled with sleeping bodies.I asked myself “Why are all these people sleeping in a church at 11 o’clock in the morning?” Slowly the answer dawned on me—because the church is locked at night.
This month activists are mounting a campaign in San Francisco to make the homeless more “visible.” My experience in that church not only made the homeless more visible, but also less abstract. They are people who have nowhere to lie down at night and nowhere to hang out during the day.
Here is an article that shows how San Francisco could actually solve the problem. http://projects.sfchronicle.com/sf-homeless/supportive-housing/
“The brain may devise laws for the blood, but a hot temper leaps o’er a cold decree.” (Merchant of Venice,Act I Scene ii, ll. 18-19)
Shakespeare here voices a view of the relationship between reason, passion, and law that still rules our discussions today. Law and reason are partners; passion is their enemy. This image supports the idea of the lawyer as a “cool” technician creating sophisticated legal schemes much like a computer engineer spins out a new algorithm.
But I wish to propose a different image of law, one in which reason and passion are partners in law’s creation. Passion energizes reason which in turn educates and refines passion’s hot temper. The operative word is “synergy,” not opposition. That’s why I believe that the practice of law is most fulfilling for lawyers who feel they are using their skills to accomplish goals their hearts approve. And perhaps that is also why we often hear that highly paid lawyers in elite firms are not as happy in their work as one would expect.
I think this story from Brown v. Board of Education is a good example of the reason-passion partnership in action. Brown is now universally acclaimed as one of our greatest legal and political accomplishments as a nation. But it was anything but a done deal when the Supreme Court heard arguments in the case. One major problem facing Thurgood Marshall and his colleagues as they prepared their briefs was how to answer a question the Court had specifically requested the parties to address: Had the Congress that passed the Fourteenth Amendment intended to ban segregated schools?
It was a difficult question for Marshall and his team to answer because there was some circumstantial evidence that seemed to support the conclusion that the framers had no such intention. John Bingham was the primary author of the text of the Fourteenth Amendment. He also was the author of the original text of the Civil Rights Act of 1866 which outlawed “discrimination” as well as other practices. But when opponents of the Civil Rights Act charged that its “discrimination” language would apply to segregated schools already in existence, Bingham agreed to remove the “discrimination” language from the Act to assure its passage. If Congress, including Bingham, did not intend the Civil Rights Act to apply to segregated schools, why would we think they intended the Fourteenth Amendment’s Equal Protection clause to do so?
At first Marshall and his legal team could not think of a persuasive answer to that crucial question. But they refused to concede it. Marshall insisted that his colleagues find an answer that would reconcile an expansive reading of the Equal Protection Clause, which was necessary for victory in Brown, with Bingham’s concession that segregated schools did not violate the Civil Rights Act passed by the same Congress.
Here’s how one participant said the team saw their task:
“It was not that we were formulating lies; there was nothing as crude or naïve as that. But we were using facts, emphasizing facts, bearing down on facts in a way to do what Marshall said we had to do.” Suddenly, the answer appeared. (“It was like lightning breaking through.”) Bingham agreed to remove the “discrimination” language from the Civil Rights Act because the Fourteenth Amendment’s Equal Protection Clause made it unnecessary. One purpose of the Fourteenth Amendment was to authorize the Civil Rights Act, but another was to go beyond it to ban all state deprivations of equal protection.
Now Bingham’s concession did not undermine a broad reading of the Equal Protection Clause; it supported it. Upon reflection the team came to believe that this argument not only fit their purposes, but was also true.
Passion did not “leap o’er” reason in the Brown case, it directed reason towards a legal conclusion that that satisfied the heart as well as the head.
Note: I discuss Thurgood Marshall and his legal team’s performance in the Brown case at greater length in the book Guile is Good. https://guileisgood.com/guile-is-good-the-book/
You know the well-worn story of the would-be reformer who comes to office only to discover that “real” reform is “unattainable”; the pragmatic decision in the “world of the possible” is learn to accept a half loaf or less. But here’s a new story. Kara Stein, a new appointee to the Securities and Exchange Commission (SEC) either never received the “world of the possible” memo, or has decided to disregard it.
This editorial from the NYT tells how three big banks recently pleaded guilty to felony charges arising out of their attempts to rig the world currency markets, but in reality came out unscathed because the fines imposed were insignificant to these titans of finance compared to the illegal profits they gleaned from their violation of the law. To make things worse, the SEC refused to impose any meaningful administrative disciplinary punishment. The only encouraging sign was that one commissioner wrote a “scathing” dissent. http://www.nytimes.com/2015/05/23/opinion/banks-as-felons-or-criminality-lite.html?ref=opinion
That commissioner was Kara Stein. This article from Bloomberg gives us some more information about Commissioner Stein. It turns out that she helped write the Dodd-Frank legislation that was designed to prevent large corporations from engaging in anti-social activities like rigging currency markets. When “moderates” on the commission told Stein that the Dodd-Frank legislation did not give the SEC authority to rein in banks in cases like these, she politely told them that was not true. The SEC’s problem was not a lack of legal authority, but a weakness of political will. http://www.bloomberg.com/news/articles/2014-07-21/ghosts-of-2008-haunt-sec-s-outsider-pushing-tough-rules
Kara Stein is the type reformer we need today. She knows her stuff and is faithful to her principles. And to top it off, she’s not only a lawyer, but to my delight also a former law professor, a member the law professoriate, that under-utilized army of potential law reformers. Let’s hope that her scathing dissent is the first step on the road to future victories in the war to rein in corporate power.
Social Science tell us that situational pressures, more than personal ethics, drive our decisions. Remember the volunteers in a Yale study who willingly “tortured” people when directed to do so by authority figures.
It seems that almost every day we read of some corporate rip-off of unsuspecting consumers. If we have any hope of controlling these fraudulent practices our laws must put in place incentives for corporations to encourage ethical behavior and prevent illegal acts. It’s all about setting the right reward-penalty structures for corporate actors. The law’s goal should be to encourage low-level employees to disclose illegal acts and impose substantive punishments on those executives who fail to act when they are best situated to stop those acts.
The tricky part is when to use carrots and when to use sticks. I think that “carrots” are the right tool for encouraging lower-level employees to report pressures to engage in fraudulent behavior, but that criminal punishment, including jail time, must become a realistic possibility if we hope to get the attention of the responsible top level executives.
The story of Patricia Williams is a good example of the importance of legal protections encouraging low-level employees to report pressures to engage in unethical practices. http://www.nytimes.com/2016/11/25/business/my-soul-feels-taller-a-whistle-blowers-20-million-vindication.html?_r=0
Ms. Williams worked for the Wyndham corporation, a Fortune 500 company that markets times shares to consumers. She discovered that many of her colleagues were making false statements to clients in order to meet unrealistically high sales goals. Williams first alerted the corporation through approved channels, but that only provoked her supervisors to harass her. So she filed a whistle-blower suit and four years later a jury awarded her $20 million dollars in lost wages, compensation for psychological distress, and punitive damages.
This is all good news as far as it goes. But it’s not clear how much, if any, Wyndham has changed its sales practices. That’s why I think we also need to bring a “stick” into play. It appears that there was a three- level process at play at Wyndham. The top officials set the sales goals; the intermediate supervisors told the sales personnel that, if necessary to meet the goals, they should employ a TAFT strategy with clients–“Tell Them Any Fricking Thing.” The sales personnel made the false claims. To change this corporate culture, the law has to target the guys at the top. You can’t allow them to hide behind claims of ignorance.
Towards this goal, last year’s 8th Circuit opinion in U.S. v. DeCoster may be helpful. It holds that corporate officers can be held criminally liable if they fail in their supervisory responsibilites. http://www.foodsafetynews.com/2016/07/8th-circuit-approves-jail-sentences-for-egg-men-in-2-1-ruling/#.WGpubFMrL3g
DeCoster involved the sale of contaminated eggs by a large company. The officers convicted stipulated that, while they were not aware the eggs were contaminated, they had authority to detect the contamination and prevent the sale of the eggs. The District Court found that lower level employees at the concern had “felt comfortable” ignoring USDA regulations, and might have felt some pressure to do so. Three month sentences were ordered for the responsible executives.
Admittedly DeCoster is a departure from the traditional criminal law approach of only punishing people for acts they take with a “guilty mind.” Now a corporate officer can be imprisoned for negligently failing to prevent actions he or she may not have known of.
Still it seems to be a necessary extension of criminal liability if the law is going to effectively deter fraudulent practices. For law to avert its gaze as officers use the corporate form to immunize themselves from responsibility for predatory practices they at least tolerate undermines confidence in the law’s capacity — or even willingness – to protect average Americans.
The old saying “Justice is Blind” starts to take on a new and sinister meaning.