Today's New York Times 4/29/07) reports that minor crime offenders can obtain "pay-to-stay upgrades" at a number of city jails in California. The accommodations ranging from $75 to $127 per day are cleaner and safer and allow for the right to bring certain electronics as contrasted with the those provided the non-paying clientele. The system is justified by the income it generates and sells itself to prospects on the basis "that you are isolated and you don't have to expose yourself to the traditional county system." You don't enter the jail by the same means as the non-paying guests. In other words, even though you have been adjudged a criminal, you don't have to be treated as one, if you can afford it.
Rubin "Hurricane" Carter describes life in prison as being locked in "an iron cage**** I was a prisoner, a number, ******Not a person. Not a human being. But a body to be counted fifteen or twenty times a day." Of course, his confinement followed convictions for murder, not some minor offense. But it is important to recognize the harshness of any jail or prison time and that some offenders should be treated differently--should be isolated from the repeat and violent offenders. However, that selection and segregation should not depend upon the wealth of the offender. The concept is valid but the criterion is not. Just because a criminal can afford to be a frequent flier should not result in a jail upgrade.
Sunday, April 29, 2007
Tuesday, April 17, 2007
NATIONAL REVIEW RE-TRASHS ME
Someone forwarded me an article which recently appeared in the highly respected National Review (Online). It was a re-trashing of me, based upon an opinion that I had written while on the United States District Court some 15 years ago in the Haines case. Also, I haven't served as a judge for 11 years. What a proud moment in journalism that must be! But in all fairness, putting aside the venom in the article, most of it is true. I was criticized by the Court of Appeals, reversed and was removed from the case, and nonetheless, despite my obvious shortcomings was nominated and confirmed for a seat on the Third Circuit Court of Appeals.
The language which prompted my dismissal from the case (after several failed tries by the tobacco defendants) was the following:
"All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!
As the following facts disclose, although there may be some rising pretenders to the throne, the tobacco industry may be the king of concealment and disinformation."
At my Senate confirmation hearing, I even conceded that if given the opportunity I would probably take that language back if I could (although convinced then and now of its accuracy), because I recognized that despite its truth, it might not be appropriate language for a court opinion, and certainly not, if it was going to cause my removal from cases that I had presided over for almost 10 years.
But in retrospect, strangely enough, though criticized, reversed and causing my removal, I think the decision in the Haines was probably the most important decision of my career. I was informed by Dr. David Kessler that it launched the FDA's investigation into tobacco; a TV documentary suggested that it was the basis of the federal government's case against the industry, and many lawyers representing the states in their claims against the industry (resulting in the largest settlement in history) credit my decision with being the catalyst for their suits.
My decision is characterized by NR as a historical example of "liberal judicial activism". The Court of Appeals found it to be wrong, and I agree with its decision in every respect, except the basis for my removal. But I fail to see what makes it either "liberal" or "activist", unless rulings against the tobacco industry automatically fall under those labels. Also, fairness might have prompted NR to include the following quote from the appellate opinion---although admittedly inserted to soften the blow of my removal:
The district judge in this case had been a distinguished member of the federal judiciary for almost 15 years and is no stranger to this court; he is well known and respected for his magnificent abilities and outstanding jurisprudential and judicial temperament. On the basis of our collective experience, we would not agree that he is incapable of discharging his judicial duties free from bias or prejudice.****
Finally, the judge who authored that opinion removing me from the case was the staunchest supporter of my subsequent nomination to be a member of the very court upon which he served. Surely NR can find some active judges engaged in activism. If not, they might want to review the opinions of the Rehnquist Court which declared unconstitutional more acts of Congress than any Supreme Court in history.
The language which prompted my dismissal from the case (after several failed tries by the tobacco defendants) was the following:
"All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!
As the following facts disclose, although there may be some rising pretenders to the throne, the tobacco industry may be the king of concealment and disinformation."
At my Senate confirmation hearing, I even conceded that if given the opportunity I would probably take that language back if I could (although convinced then and now of its accuracy), because I recognized that despite its truth, it might not be appropriate language for a court opinion, and certainly not, if it was going to cause my removal from cases that I had presided over for almost 10 years.
But in retrospect, strangely enough, though criticized, reversed and causing my removal, I think the decision in the Haines was probably the most important decision of my career. I was informed by Dr. David Kessler that it launched the FDA's investigation into tobacco; a TV documentary suggested that it was the basis of the federal government's case against the industry, and many lawyers representing the states in their claims against the industry (resulting in the largest settlement in history) credit my decision with being the catalyst for their suits.
My decision is characterized by NR as a historical example of "liberal judicial activism". The Court of Appeals found it to be wrong, and I agree with its decision in every respect, except the basis for my removal. But I fail to see what makes it either "liberal" or "activist", unless rulings against the tobacco industry automatically fall under those labels. Also, fairness might have prompted NR to include the following quote from the appellate opinion---although admittedly inserted to soften the blow of my removal:
The district judge in this case had been a distinguished member of the federal judiciary for almost 15 years and is no stranger to this court; he is well known and respected for his magnificent abilities and outstanding jurisprudential and judicial temperament. On the basis of our collective experience, we would not agree that he is incapable of discharging his judicial duties free from bias or prejudice.****
Finally, the judge who authored that opinion removing me from the case was the staunchest supporter of my subsequent nomination to be a member of the very court upon which he served. Surely NR can find some active judges engaged in activism. If not, they might want to review the opinions of the Rehnquist Court which declared unconstitutional more acts of Congress than any Supreme Court in history.
Thursday, April 12, 2007
MALPRACTICE MEANS NOT SAYING YOU'RE SORRY
I learned for the first time today that there are laws in many states prohibiting the use of a doctor's apology as an admission in a malpractice claim against the doctor. (AP, R.I. 4/12/07) According to the report, at least 28 states already have the legislation and 8 other states are considering adopting it. Furthermore, the article reveals that insurers warn doctors against the dangers of apologizing or using words such as "error", "mistake", "fault", or "negligence" in talking to their patients.
Is this what our legal system has wrought? Have we so intimidated the medical profession that its members fear admitting their mistakes and offering to correct them; that we need legislation to protect them against the consequences of apologizing? Concededly, doctors are faced with baseless malpractice claims, exorbitant insurance premiums, the expenditure of time and emotion in defending suits and the possibility that their mere threat causes them to practice and prescribe in a manner that they would not do otherwise.
But likewise, there are legitimate malpractice claims. Do we want our medical profession to be more concerned with potential liability than being candid and caring for the health and well-being of their patients. And if morality and principle do not suffice, practically, who is more likely to be sued, the doctor who admits his mistake to the patient and offers to correct it or the doctor who conceals and avoids confessing the error.
I had a doctor for years who had a sign in his waiting room: I HAVE NO INSURANCE. IF YOU PLAN TO SUE ME, PLEASE GO ELSEWHERE. If he made a mistake, I know he would tell me, because he was more concerned with my health than his liability. If we in the legal profession have reversed that then I hope none of us ever gets sick.
Is this what our legal system has wrought? Have we so intimidated the medical profession that its members fear admitting their mistakes and offering to correct them; that we need legislation to protect them against the consequences of apologizing? Concededly, doctors are faced with baseless malpractice claims, exorbitant insurance premiums, the expenditure of time and emotion in defending suits and the possibility that their mere threat causes them to practice and prescribe in a manner that they would not do otherwise.
But likewise, there are legitimate malpractice claims. Do we want our medical profession to be more concerned with potential liability than being candid and caring for the health and well-being of their patients. And if morality and principle do not suffice, practically, who is more likely to be sued, the doctor who admits his mistake to the patient and offers to correct it or the doctor who conceals and avoids confessing the error.
I had a doctor for years who had a sign in his waiting room: I HAVE NO INSURANCE. IF YOU PLAN TO SUE ME, PLEASE GO ELSEWHERE. If he made a mistake, I know he would tell me, because he was more concerned with my health than his liability. If we in the legal profession have reversed that then I hope none of us ever gets sick.
Thursday, March 22, 2007
PUNITIVE DAMAGES v. THE DEATH PENALTY
The Supreme Court recently decided that the due process clause prohibits calculating punitive damages based upon harm caused to strangers. (Philip Morris USA v. Williams). In other words, when punishing a corporation with money damages, a jury must engage in individualized decision-making, but maybe not so in deciding the imposition of the death penalty. (In re William Weaver, NY Times 3/22/07)
I suggested in an earlier post (Punishing Punitive Damages) that it might not be inappropriate in awarding punitive damages to consider that the corporate defendant had a history of the same wrongful conduct and knowingly continued it, and that an award based upon that history would serve to punish the defendant and deter it and others from doing the same. But the Court having confined a jury's consideration to the individual claimant where only money is involved, it is difficult to reconcile that with the argument that a jury can consider the effect upon "strangers" where life is involved. True, in the punitive damage case the "strangers" were other victims, and here they are potential perpetrators, but in each instance, we are talking about persons not before the court.
It can be debated whether or not the death penalty actually deters anyone. But assuming, as Justice Kennedy stated that "Deterrence is one of the reasons we have the death penalty", the question remains whether or not that policy should be presented to a jury as a reason to execute a particular individual. Assuming a jury is undecided, should the possible effect upon unknown others tip the scales and result in the imposition of the death penalty?
Of course, all of this is played out against the unfortunate and almost insurmountable barrier to habeas corpus imposed by the Antiterrorism and Effective Death Penalty Act. In effect and logically, it permits the prosecutor (and others) the opportunity to claim that the state court decision was not contrary to "clearly established federal law as determined by the Supreme Court of the United States" (as the statute requires), if the members of the Court themselves cannot agree on the resolution of the underlying question!
I suggested in an earlier post (Punishing Punitive Damages) that it might not be inappropriate in awarding punitive damages to consider that the corporate defendant had a history of the same wrongful conduct and knowingly continued it, and that an award based upon that history would serve to punish the defendant and deter it and others from doing the same. But the Court having confined a jury's consideration to the individual claimant where only money is involved, it is difficult to reconcile that with the argument that a jury can consider the effect upon "strangers" where life is involved. True, in the punitive damage case the "strangers" were other victims, and here they are potential perpetrators, but in each instance, we are talking about persons not before the court.
It can be debated whether or not the death penalty actually deters anyone. But assuming, as Justice Kennedy stated that "Deterrence is one of the reasons we have the death penalty", the question remains whether or not that policy should be presented to a jury as a reason to execute a particular individual. Assuming a jury is undecided, should the possible effect upon unknown others tip the scales and result in the imposition of the death penalty?
Of course, all of this is played out against the unfortunate and almost insurmountable barrier to habeas corpus imposed by the Antiterrorism and Effective Death Penalty Act. In effect and logically, it permits the prosecutor (and others) the opportunity to claim that the state court decision was not contrary to "clearly established federal law as determined by the Supreme Court of the United States" (as the statute requires), if the members of the Court themselves cannot agree on the resolution of the underlying question!
Monday, March 12, 2007
HOW MUCH ARE WE WILLING TO SACRIFICE IN THE WAR AGAINST TERROR?
How much are we willing to sacrifice in the war against terror? Any criticism of the erosion of our civil rights is met with the argument that it is necessary and it is working. We haven't had an attack since 9/11! The questionable wire taps, secret foreign CIA interrogation prisons, possible torture, prolonged detentions without counsel or hearings, rejection of the Geneva Convention, the gathering of information by the FBI about American citizens and companies (revealed just today), the elimination of habeas corpus for certain categories of persons, etc. are all justified in the name of fighting terror and I believe, although I have nothing to substantiate it, that most of the country approves.
But since when have we tested constitutional violations by asking whether or not they produce favorable results? Do we condone beatings of suspects because they produce confessions? Do we condone unlawful searches because they disclose the whereabouts of illegal weapons or incriminating evidence? Do we condone the concealment of exculpatory evidence because it might aid the guilty defendant? Would we condone any of these practices on the grounds that they were necessary and were working! Or is the fear of terrorism so great that we are willing to sacrifice many of our cherished ideals and rights?
When Prof. Markel invited me to post to his blog and told me his readership was primarily law professors, I told him that my blog (X-Judge) was not "academic", and frankly, with but one exception, I hope never to cite a case again. But I leapt at this opportunity because I would be interested in knowing how law professors feel about these issues; what they are teaching in their classrooms, and what they are they learning from their students. I fear that we are in a constitutional crisis and what we give away now we may never get back.
This post was the result of an invitation to PrawfsBlawg.
But since when have we tested constitutional violations by asking whether or not they produce favorable results? Do we condone beatings of suspects because they produce confessions? Do we condone unlawful searches because they disclose the whereabouts of illegal weapons or incriminating evidence? Do we condone the concealment of exculpatory evidence because it might aid the guilty defendant? Would we condone any of these practices on the grounds that they were necessary and were working! Or is the fear of terrorism so great that we are willing to sacrifice many of our cherished ideals and rights?
When Prof. Markel invited me to post to his blog and told me his readership was primarily law professors, I told him that my blog (X-Judge) was not "academic", and frankly, with but one exception, I hope never to cite a case again. But I leapt at this opportunity because I would be interested in knowing how law professors feel about these issues; what they are teaching in their classrooms, and what they are they learning from their students. I fear that we are in a constitutional crisis and what we give away now we may never get back.
This post was the result of an invitation to PrawfsBlawg.
Saturday, March 3, 2007
THE INJUSTICE DEPARTMENT
Federal judges and prosecutors are concededly political appointments. In concept, judges were to be appointed based upon their competence, experience, integrity and fairness. Unfortunately, judicial philosophy has become the overwhelming criteria. The current administration decries "activist" judges, and then seeks to appoint those who will carry out its conservative agenda. (If that is not activism, I don't know what is.) However, those judges who disappoint by not fulfilling the expectations of their nominators cannot be terminated. President Eisenhower would have loved to discharge Justice Brennan for his liberal decisions, but thanks to life tenure and its guaranty of judicial independence, he could not-----all to the benefit of this country and its citizens.
But not so for federal prosecutors. During my judicial career, I have had the opportunity to see hard-working U.S. Attorneys and their assistants perform their duties in a dedicated and impartial fashion. That seems to be the general consensus regarding those appointees who are now to be replaced by the administration. As abhorrent as I find the practice, I am opposed to requiring the prosecutors to testify before Congressional committees. They should not be put in the awkward position of defending their choices as to past prosecutions and will be prohibited from speaking of pending ones. Few even seem to know why they are being replaced. According to the press, the main complaint does not involve competence, but rather the exercise of their discretion in whom to prosecute or not prosecute. Apparently, they are being removed either for their failure to do the bidding of the administration in prosecuting some or in choosing to prosecute others whom the administration preferred they did not; or merely to replace them as a patronage reward.
Although I am in favor of the Justice Department being called upon to explain and justify these dismissals, I fear that those hearings, as well, will be demeaning to the discharged U.S. Attorneys. The government will parade out a litany of faults and failures to justify and excuse its decision to discharge them. When the hearings are over, we will know what we know today:
The decision to discharge and replace these dedicated public servants was based upon political not personnel considerations.
But not so for federal prosecutors. During my judicial career, I have had the opportunity to see hard-working U.S. Attorneys and their assistants perform their duties in a dedicated and impartial fashion. That seems to be the general consensus regarding those appointees who are now to be replaced by the administration. As abhorrent as I find the practice, I am opposed to requiring the prosecutors to testify before Congressional committees. They should not be put in the awkward position of defending their choices as to past prosecutions and will be prohibited from speaking of pending ones. Few even seem to know why they are being replaced. According to the press, the main complaint does not involve competence, but rather the exercise of their discretion in whom to prosecute or not prosecute. Apparently, they are being removed either for their failure to do the bidding of the administration in prosecuting some or in choosing to prosecute others whom the administration preferred they did not; or merely to replace them as a patronage reward.
Although I am in favor of the Justice Department being called upon to explain and justify these dismissals, I fear that those hearings, as well, will be demeaning to the discharged U.S. Attorneys. The government will parade out a litany of faults and failures to justify and excuse its decision to discharge them. When the hearings are over, we will know what we know today:
The decision to discharge and replace these dedicated public servants was based upon political not personnel considerations.
Friday, February 23, 2007
PUNISHING PUNITIVE DAMAGES
The Supreme Court has decided (in the case of Philip Morris USA v. Williams) that the due process clause prohibits calculating punitive damages based upon harm caused to strangers to the litigation. The closeness of the vote reflects that there are valid arguments on both sides of this issue.
Let us assume that someone has been killed as the result of a defective tire. In the first law suit, the manufacturer learns that the tire is defective. Nonetheless, it continues to manufacture the tire and 100 more persons are killed as a result. Should not the company suffer a greater punishment with each new death? The more deaths; the more egregious the conduct to be punished. Therefore, it would be wrong not to consider harm to others so long as there was adequate proof of the prior deaths and their cause. The purpose of punitive damages is to punish past and deter future wrongful conduct. The continuance of that outrageous conduct in the face of knowledge as to its harmful consequences should certainly serve as one of the bases for calculating punitive damages. The prior conduct and record of a criminal defendant is considered in deciding the severity of punishment, even though the defendant may have already suffered punishment for those prior crimes. Why should it be any different in meting out punishment in a civil matter in which punitive damages are warranted?
But now let us assume that at several trials brought on behalf of those who have died from the defective tire, each jury is told about the 100 deaths as a basis for calculating punitive damages. Each then would be punishing the manufacture for the same 100 deaths. Therefore, it would be wrong to consider harm to others if it resulted in repetitive punitive damage awards for the same conduct and harm.
I wrestled with this very issue in 1989 in the case of Juzwin v. Amtorg Trading Co., 705 F. Supp. 1053, and concluded that multiple awards of punitive damages based upon injuries to others violated the due process clause, the only decision I ever made that was praised by the Wall Street Journal. Despite that praise, I eventually and unilaterally withdrew the decision, concluding that I did not have the power or authority to effectuate such a decision---that it required the Supreme Court or the Congress to do so. The Supreme Court has now spoken, but I continue to have the same concerns expressed above. The ability of citizens to punish others for outrageous conduct in instances in which government cannot or will not is a power worth preserving, but it is essential that guidelines be established so as to lead courts through this current quagmire.
Let us assume that someone has been killed as the result of a defective tire. In the first law suit, the manufacturer learns that the tire is defective. Nonetheless, it continues to manufacture the tire and 100 more persons are killed as a result. Should not the company suffer a greater punishment with each new death? The more deaths; the more egregious the conduct to be punished. Therefore, it would be wrong not to consider harm to others so long as there was adequate proof of the prior deaths and their cause. The purpose of punitive damages is to punish past and deter future wrongful conduct. The continuance of that outrageous conduct in the face of knowledge as to its harmful consequences should certainly serve as one of the bases for calculating punitive damages. The prior conduct and record of a criminal defendant is considered in deciding the severity of punishment, even though the defendant may have already suffered punishment for those prior crimes. Why should it be any different in meting out punishment in a civil matter in which punitive damages are warranted?
But now let us assume that at several trials brought on behalf of those who have died from the defective tire, each jury is told about the 100 deaths as a basis for calculating punitive damages. Each then would be punishing the manufacture for the same 100 deaths. Therefore, it would be wrong to consider harm to others if it resulted in repetitive punitive damage awards for the same conduct and harm.
I wrestled with this very issue in 1989 in the case of Juzwin v. Amtorg Trading Co., 705 F. Supp. 1053, and concluded that multiple awards of punitive damages based upon injuries to others violated the due process clause, the only decision I ever made that was praised by the Wall Street Journal. Despite that praise, I eventually and unilaterally withdrew the decision, concluding that I did not have the power or authority to effectuate such a decision---that it required the Supreme Court or the Congress to do so. The Supreme Court has now spoken, but I continue to have the same concerns expressed above. The ability of citizens to punish others for outrageous conduct in instances in which government cannot or will not is a power worth preserving, but it is essential that guidelines be established so as to lead courts through this current quagmire.
Saturday, February 17, 2007
COURT TV OR NOT TO BE
One of the fans of my blog (maybe the only one) suggested that I write about the Anna Nicole Smith case, and I responded that I could not conceive that there was anything left to say about it, but I was wrong. Justice Anthony Kennedy recently appeared before the Senate Judiciary Committee making the repeated and wholly justified (and usually ignored) plea for greater compensation for federal judges. He was diverted from his topic by Senator Specter who again raised the spectre of televising Supreme Court arguments.
Over the years I have been ambivalent about the televising of court proceedings. I recognize the usual arguments about the potential effect upon witnesses, jurors and possibly judges, but I have seen studies that suggest that the presence of the courtroom camera is soon forgotten and its effect minimal. On the other hand, although not a regular watcher, I have caught glimpses of the TV judges---rude, impolite, snide and impatient, rendering decisions from the hip, and fear that the public has come to conflate them with our real judicial system.
I can certainly understand Senator Specter's position. Wouldn't it have been marvelous for the country to see and hear live the arguments in a case that decided who would be President of the United States? Justice Kennedy is properly concerned about the single sound bite at the end of a session, but doesn't that same risk exist with the print media? And at the trial level, the country should be able to observe the "Scooter" Libby trial, one that so clearly demonstrates the workings of the current administration. But I also thought that showing the O.J. Simpson trial was the right decision, so that when he was convicted, the African-American community would have had the opportunity to observe the fairness of the trial.
Televising court proceedings might also serve to deter the real judges who are rude, arrogant and impatient and at the same time demonstrate the respect and fairness usually displayed by most judges serving throughout this country. I have always believed that how the litigants and lawyers are treated is as important as the decision reached. Every case will have its losers. How they feel about their treatment during the process is the true test of the system.
And that brings me back to where I started---the Anna Nicole Smith case. All of the positives things that I thought televised court proceedings might bring to educate the public and engender respect for our judicial system were eradicated watching the Florida proceeding, which was to determine where Ms. Smith was to be buried. I don't doubt the Florida judge's good intentions, but I thought that I was watching a poker game in someone's basement. Lawyers were arguing directly with each other. Witnesses were testifying from a variety of chairs or standing. It was difficult to tell who were the witnesses and who were the lawyers. The judge, despite his oft repeated desire to maintain the dignity of the deceased and the proceeding, seem to do everything to accomplish the opposite while expanding the scope of the proceedings well beyond the issue presented and probably beyond his jurisdiction as well. I suspect to the public this case is already part fact and part fiction, but for the dignity of our court system, I would love to see that TV plug pulled.
Over the years I have been ambivalent about the televising of court proceedings. I recognize the usual arguments about the potential effect upon witnesses, jurors and possibly judges, but I have seen studies that suggest that the presence of the courtroom camera is soon forgotten and its effect minimal. On the other hand, although not a regular watcher, I have caught glimpses of the TV judges---rude, impolite, snide and impatient, rendering decisions from the hip, and fear that the public has come to conflate them with our real judicial system.
I can certainly understand Senator Specter's position. Wouldn't it have been marvelous for the country to see and hear live the arguments in a case that decided who would be President of the United States? Justice Kennedy is properly concerned about the single sound bite at the end of a session, but doesn't that same risk exist with the print media? And at the trial level, the country should be able to observe the "Scooter" Libby trial, one that so clearly demonstrates the workings of the current administration. But I also thought that showing the O.J. Simpson trial was the right decision, so that when he was convicted, the African-American community would have had the opportunity to observe the fairness of the trial.
Televising court proceedings might also serve to deter the real judges who are rude, arrogant and impatient and at the same time demonstrate the respect and fairness usually displayed by most judges serving throughout this country. I have always believed that how the litigants and lawyers are treated is as important as the decision reached. Every case will have its losers. How they feel about their treatment during the process is the true test of the system.
And that brings me back to where I started---the Anna Nicole Smith case. All of the positives things that I thought televised court proceedings might bring to educate the public and engender respect for our judicial system were eradicated watching the Florida proceeding, which was to determine where Ms. Smith was to be buried. I don't doubt the Florida judge's good intentions, but I thought that I was watching a poker game in someone's basement. Lawyers were arguing directly with each other. Witnesses were testifying from a variety of chairs or standing. It was difficult to tell who were the witnesses and who were the lawyers. The judge, despite his oft repeated desire to maintain the dignity of the deceased and the proceeding, seem to do everything to accomplish the opposite while expanding the scope of the proceedings well beyond the issue presented and probably beyond his jurisdiction as well. I suspect to the public this case is already part fact and part fiction, but for the dignity of our court system, I would love to see that TV plug pulled.
Sunday, February 4, 2007
WHAT? NO SOFT ON CRIME CHARGE?
My conservative, former college roommate wrote to express his enjoyment at reading my blog, but suggested that I should try to be a little less critical and focus on some of the more positive things happening in the world. I conceded to him that my current writings were somewhat motivated by the years of mischaracterization and misinformation that were frequently used to describe my opinions, while I served on the court. Indeed, the same old chestnuts were roasted the day my first blog entry was published. Senator Obama in his new book, The Audacity of Hope, relates an incident where the mere change of a line in a speech about Lincoln brought down the wrath of the conservative world---suggesting that he was comparing himself to Lincoln.
In that same vain, I had intended to write today about the Supreme Court's decision in the case of Cunningham v. California, but I couldn't help but consider what the famous conservative voices would have done to me or any other judge they considered liberal in a decision that overturned the sentence of a man "tried and convicted of the continuous abuse of a child under 14".
But that aside, and following my roommate's advice to look on the bright side, the Cunningham decision, which requires a jury rather than a judge to find facts beyond a reasonable doubt in order to enhance a sentence under California law, is a recognition by a number of conservative Justices (including Chief Justice Roberts, Justices Scalia and Thomas) of the continued power and viability of the Sixth Amendment. Their presence in the majority may account for the lack of outcry from the conservative world, its failure to focus on the heinous nature of the crime or charge "soft on crime"---its usual practice when the Constitution serves to protect those charged or guilty as evildoers.
How the decision will play out remains to be seen. Many defendants will not want facts relevant to sentencing only presented during the guilt phase for fear of its spillover effect. Bifurcation may be needed frequently; thus extending the length of trials and jury service.
In that same vain, I had intended to write today about the Supreme Court's decision in the case of Cunningham v. California, but I couldn't help but consider what the famous conservative voices would have done to me or any other judge they considered liberal in a decision that overturned the sentence of a man "tried and convicted of the continuous abuse of a child under 14".
But that aside, and following my roommate's advice to look on the bright side, the Cunningham decision, which requires a jury rather than a judge to find facts beyond a reasonable doubt in order to enhance a sentence under California law, is a recognition by a number of conservative Justices (including Chief Justice Roberts, Justices Scalia and Thomas) of the continued power and viability of the Sixth Amendment. Their presence in the majority may account for the lack of outcry from the conservative world, its failure to focus on the heinous nature of the crime or charge "soft on crime"---its usual practice when the Constitution serves to protect those charged or guilty as evildoers.
How the decision will play out remains to be seen. Many defendants will not want facts relevant to sentencing only presented during the guilt phase for fear of its spillover effect. Bifurcation may be needed frequently; thus extending the length of trials and jury service.
Friday, January 19, 2007
WHY WE SHOULD CARE ABOUT THE GUANTANAMO PRISONERS
When law students ask me what was my greatest case in the 25 years that I was a trial lawyer, I tell them that during the 1967 race riots in Newark, New Jersey, a group of lawyers was organized to represent African-Americans who were arrested during the riots, and I was among those who volunteered. I represented a man who had been swept up with a group of rioters and looters, spent 5 days in prison without being able to tell his family where he was, 7 days without legal representation and a total of 15 days before he had a hearing. At the hearing, he testified that at the time he was arrested, 5 A.M. in the morning (during a curfew) he was waiting for a bus---the same bus that he had taken for the last 16 years to go to his job. Although surrounded by the riots and the fires, he did not want to miss a day's work, because he needed the money to support his family. He was acquitted and released. That was my finest hour.
No one suggested to the Newark merchants that they should not do business with the many law firms that were representing the very persons who were charged with burning their stores and looting their merchandise. It would have been unthinkable. This is what lawyers do and did. For us in the legal profession, it was our proudest moment. It is what one dreams about while in law school.
By now everyone has heard and read about the statements by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, suggesting that clients should consider ending their ties with law firms that were representing detainees at Guantanamo, the outrage that followed his statements (except from the President) and the purported apology that he offered. But, in truth, despite the outcry over his outlandish threats, no one should be surprised by the statements. They were uttered in a comfort zone and atmosphere which invited them.
The administration has dealt with any and all criticisms of its erosion of civil rights by charging that they are "unpatriotic", "aid or give comfort to the terrorists", or "injure the morale of the troops". Any judge who upholds the constitutional rights of the accused is pounded with being "a liberal", "an activist", or "soft on crime" (an expression that appears 6,720,000 times in a Google search). With an administration that engages in illegal wire- tapping, the unlawful detention of an American citizen, secret foreign prisons, disregard of the Geneva Convention and hints at permissible torture, ignores Congressional oversight and avoids judicial scrutiny for its actions, is it any wonder that one of its officials would feel free and comfortable suggesting that the pro bono representation of suspected terrorists should warrant sanctions from their clients?
There, indeed, may be be some real terrorists imprisoned at Guantanamo, but as we already know, many are there based upon false accusations, acts of personal or tribal vengeance or other misinformation. Many have been released. But no matter what their guilt or innocence, to threaten those who seek to represent them is to repudiate one of the most basic and fundamental rights now recognized in our democracy. Although we all want to wash Mr. Stimson's mouth out with soap, we should remember that the foul language he used---he learned at home---the White House.
No one suggested to the Newark merchants that they should not do business with the many law firms that were representing the very persons who were charged with burning their stores and looting their merchandise. It would have been unthinkable. This is what lawyers do and did. For us in the legal profession, it was our proudest moment. It is what one dreams about while in law school.
By now everyone has heard and read about the statements by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, suggesting that clients should consider ending their ties with law firms that were representing detainees at Guantanamo, the outrage that followed his statements (except from the President) and the purported apology that he offered. But, in truth, despite the outcry over his outlandish threats, no one should be surprised by the statements. They were uttered in a comfort zone and atmosphere which invited them.
The administration has dealt with any and all criticisms of its erosion of civil rights by charging that they are "unpatriotic", "aid or give comfort to the terrorists", or "injure the morale of the troops". Any judge who upholds the constitutional rights of the accused is pounded with being "a liberal", "an activist", or "soft on crime" (an expression that appears 6,720,000 times in a Google search). With an administration that engages in illegal wire- tapping, the unlawful detention of an American citizen, secret foreign prisons, disregard of the Geneva Convention and hints at permissible torture, ignores Congressional oversight and avoids judicial scrutiny for its actions, is it any wonder that one of its officials would feel free and comfortable suggesting that the pro bono representation of suspected terrorists should warrant sanctions from their clients?
There, indeed, may be be some real terrorists imprisoned at Guantanamo, but as we already know, many are there based upon false accusations, acts of personal or tribal vengeance or other misinformation. Many have been released. But no matter what their guilt or innocence, to threaten those who seek to represent them is to repudiate one of the most basic and fundamental rights now recognized in our democracy. Although we all want to wash Mr. Stimson's mouth out with soap, we should remember that the foul language he used---he learned at home---the White House.
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