Law posts

The New York Times Magazine has a good piece by Jonathan Mahler entitled “All the President's Lawyers.” It's not only on Donald Trump's current plethora of lawyers, and not only some of his past lawyers, but the type of lawyer (and law) he prefers:

Trump Law does not concern itself with how you're supposed to do things. ''Donald would say, 'I hate lawyers who tell me that I can't do this or that,''' Goldberg told me. And so Trump Lawyers don't. It was an arrangement that worked for Trump and his legal teams for years. And so it continues in Washington. Under Trump Law, it is perfectly fine for the president of China to stay as a guest at Mar-­a-­Lago, for the lobbying arm of the Saudi government to spend hundreds of thousands of dollars at Trump's Washington hotel, for Trump to have a private dinner with the director of the F.B.I., James Comey, even as his agency was investigating Trump's campaign. Under Trump Law, it is O.K. for Trump not to divest himself of his assets or place them in a blind trust, and for the drafting and rollout of his Muslim travel ban to be overseen not by experienced government lawyers but by his 31-year-old senior adviser, Stephen Miller. Under Trump Law, Trump can appoint a national security adviser, Gen. Michael Flynn, who had worked secretly as a paid lobbyist for Turkey, and fire Comey, as he himself explained, to relieve the pressure of the Russia investigation.

Expect more of the same with this administration. Me, I think the law trumps Trump Law. I'll take David Boies.

In my day job, I talk to top attorneys around the country, and one of the questions we often ask is, “What’s the best advice you’ve received?” Here’s one of my favorite answers, which came to us from multiple sources:

Take the work seriously but don’t take yourself seriously.

It’s advice I wish I’d heard 30 years ago. The first part I’m fine with—I’ve always worked hard—but I think I've always taken myself a little too seriously.

I kept flashing back to this piece of advice while watching Netflix’s 10-part documentary series, “Making a Murderer,” which Patricia and I binge-watched, like so many of you, during the final days of 2015. We watched one episode Tuesday last week, six episodes on Wednesday, the final three on Thursday. It has relevance to my work, but we kept going because Patricia couldn’t stop. She had to find out more; I already knew. I knew because, as editor of our Wisconsin magazine, I kept coming across the story.

“Making a Murderer” is about Steven Avery, a Manitowoc County, Wisc. man convicted of sexual assault in 1985 who was exonerated by DNA evidence in 2003. Two years later, in the midst of a $36 million lawsuit against the county and its police department, and weeks after key figures had been deposed in that lawsuit, Avery was arrested again, this time for the rape/murder of photographer Teresa Halbach. He was ultimately tried for her murder—all rape charges stemmed from a suspect confession from Avery’s 16-year-old nephew, Brendan Dassey, on March 2, 2006—found guilty, and sentenced to life in prison without the possibility of parole.

The 10-part documentary suggests this was a miscarriage of justice.

And it was a miscarriage of justice despite the excellent representation Avery had. I was in an odd position watching the doc because I knew the players. Once Avery was arrested for the Halbach murder, for example, his appellate lawyer, Stephen Glynn, recommended two criminal defense attorneys, and with each name, I went, “Oh yeah, he’s good.” I knew their reputations. I knew they represented the profession well. And they do here, too. 

Of Avery’s four main attorneys, in fact—two civil, two criminal—our publication has featured three of them, and, oddly, not because of their involvement in the Avery case. Robert Henak first came to our attention because he collected “drug tax stamps.” Glynn was our cover subject in 2007 because he was top-ranked, and has a long history of big cases, including representing (and exonerating) Native-American activist Leonard Peltier on a murder charge in Wisconsin. We ran our 2012 Q&A with criminal defense attorney Jerome Buting initially because he was a cancer survivor; he’d actually been diagnosed on, of all days, Sept. 11, 2001.

Each of these features, of course, also spends a good deal of time on the Avery cases. Together, they almost represent a timeline of his cases.

Henak’s story ran in 2005, and ends this way: “When Avery was set free [on the 1985 charge], Henak cried. Justice had been a long time coming—too long coming—but finally it had been done.” As we went to press, Avery was about to be arrested for the Halbach murder.

Glynn’s story ran in 2007 after Avery’s trial and conviction, and we focus on the emotional effect all of this had on the attorney who helped set him free: “Glynn never got over the feeling of guilt he felt the day Avery was arrested for the photographer’s murder.”

The Buting Q&A, from 2012, starts with a presumption of innocence. “I think his fight for justice is going to go on,” Buting says at one point. “It may take a long time before the truth comes out.”

The one attorney we’ve yet to feature is Avery’s other criminal defense attorney, Dean Strang. We’ll rectify this soon, I’m sure.

All four of these attorneys made me think of the above quote—the above piece of advice. Because they all take the work seriously but they don’t take themselves seriously. They’re advocates; they don’t grandstand or bask in the limelight. They know it’s not about them; they know it’s about something bigger.

Sadly, this can’t be said for every lawyer in “Making a Murderer.” There’s a lot of sad takeaways about our criminal justice system here, but one of the saddest to me is this: Attorneys who represent the profession well could not, in the end, win a case against those who don’t.

“What's placed now in high relief by many of the current disputes is the tension inherent in religion clauses of the First Amendment. The amendment prohibits the ”establishment“ of religion while also protecting ”the free exercise thereof.“ When does government solicitude for religious exercise cross the line into establishment? When does policing of the Establishment Clause's prohibition go too far and stifle free exercise? There is no easy or obvious answer, and the Supreme Court has never given a consistent one. The relative weight the court has accorded each of the religion clauses shifts over time, reflecting in broad strokes the concerns of the general culture as the tension between the two principles comes to the fore in different ways.”

-- Linda Greenhouse, “Drawing the Line Between Civil and Religious Rights,” in The New York Times. And yes, she digs into the Kim Davis controversy.  

Here's what the Washington state constitution reads:

“It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.”

Here's what King County Superior Court Judge John Erlick wrote in Feb. 2010 in the case of McCleary v. State of Washington, which held the state to that constitutional promise:

“State funding is not ample, it is not stable, and it is not dependable.”

Here's what the Washington state supreme court wrote in January 2012 upon affirming that ruling and maintaining jurisdiction over the case:

“This court cannot idly stand by as the Legislature makes unfulfilled promises for reform.”

Here's a prescient prediction from Thomas Ahearne, the winning attorney for McCleary, whom I interviewed for a feature, “Paramount Duty,” in the 2012 issue of Washington Super Lawyers magazine:

“Our Supreme Court has ordered our Legislature to do something that's hard, very hard, with their public schools, and we'll see if they do it promptly or if they drag their feet and stall. [Smiling] I have a good guess as to what they're going to do.”

And here's what the Washington state supreme court ordered today:

Effective today, the court imposes a $100,000 per day penalty on the State for each day it remains in violation of this court's order ...

Who said the law was dull? 

Recommended reading: Rachel Aviv's latest New Yorker piece, “Revenge Killing,” about Rodricus Crawford, a young black man in Shreveport, Louisiana, which is part of Caddo Parish, who was charged, convicted and sentenced to death for the death of his own 1-year old son. It includes this paragraph:

Juries in Caddo Parish, which has a population of two hundred and fifty thousand, now sentence more people to death per capita than juries in any other county in America. Seventy-seven per cent of those sentenced to death in the past forty years have been black, and nearly half were convicted of killing white victims. A white person has never been sentenced to death for killing a black person.

The assistant D.A. (and now D.A.) who prosecuted the case, Dale Cox, “has been responsible for more than a third of the death penalties in Louisiana,” Aviv writes. She interviews him. He seems straightforward. He is a very effective lawyer who used to be against the death penalty and is now, in his 60s, in favor of it in Biblical proportions.

Reading, I wondered if the last sentence in the above quote meant that no white person had been executed for killing a black person in Shreveport or in the whole of the United States, but it must be the former because I've found evidence of the latter —although it's exceedingly rare. Some numbers from the Death Penalty Information Center:

Persons Executed for Interracial Murders in the U.S. Since 1976

• White Defendant / Black Victim (31)
• Black Defendant / White Victim (294)

As for Crawford? Much of the evidence that convicted him was determined by the Parish's forensic pathologist, but that evidence has been refuted by others around the country. One coroner says he finds the autopsy results so wrong he's “horrified”; another pathologist thinks Shreveport's pathologist "did not seem willing to consider the facts of the case. From the article, it seems a monumental injustice is taking place. 

“I think of the gay kids in the future who, when they figure out they are different, will never know the deep psychic wound my generation – and every one before mine – lived through: the pain of knowing they could never be fully part of their own family, never be fully a citizen of their own country. I think, more acutely, of the decades and centuries of human shame and darkness and waste and terror that defined gay people's lives for so long. And I think of all those who supported this movement who never lived to see this day...”

-- Andrew Sullivan, “It Is Accomplished,” The Daily Dish

“Ultimately, though, the case is pretty simple. The government confers a bundle of rights on individuals who choose to marry. The constitution's guarantee of equal protection forbids any state from withholding those rights from the class of people who happen to be gay. End of story.”

-- Jeffrey Toobin, “God and Marriage Equality,” The New Yorker. 

“Abbott, Jindal, and their allies are positing a right to discriminate—for local officials to refuse to conduct same-sex weddings, for photographers and bakers to refuse to do business with gay people, for wedding planners to advertise that no gay couples need apply. Their actions are the linear descendants of the Virginia officials who claimed divine guidance for their prohibition on interracial marriage. The First Amendment allows individuals to believe anything they want, but it does not allow them to use their beliefs as a license to discriminate in ways that would otherwise be limited by law. No one, at this late date, would claim a religious inspiration for a florist to refuse to sell flowers to an interracial wedding or for a magistrate to perform one; they should not have the right to refuse to do business for a same-sex wedding, either.”

-- Jeffrey Toobin, “God and Marriage Equality,” The New Yorker. 

“I think the main issue now will be protection of religious liberty. Many of us have no problem allowing religious institutions to run their own organizations as they see fit, as long as they are sincere and in good faith. I don't think they have anything to fear. What we need to express at this point is magnanimity. We've got to let people who genuinely find [same-sex marriage] disconcerting the space and time to deal with it. That's what I would caution and urge.”

-- Andrew Sullivan, “A Word With: Andrew Sullivan,” The New York Times

The week that was: This made the rounds early on Friday after the Obergefell decision was announced. I wish you could see the artist's name more prominently.  

Seattle, December 9, 2012: Ahead of the curve, but not by much.

Q: The shift [to supporting marriage equality] is rather startling, isn’t it? States are approving or refusing to defend something that they banned less than 10 years ago.

Boies: I don’t think either one of us has ever seen, in our lifetime, where an issue as contentious as this, as much of a wedge issue as this, has changed as rapidly. When we started the case, there were two or three states, [representing] less than 5 percent of the population of the United States, that permitted marriage equality. Now, more than half of all American citizens live in a state that permits marriage equality. When we started, a substantial majority of American citizens opposed marriage equality; today, less than five years later, a substantial majority of American citizens favor marriage equality.

Q: So why now? What caused the change?

Boies: I think the single most important factor is that, starting in the ‘60s and ‘70s, gay and lesbian couples and individuals began to come out and be honest about their sexuality and their sexual orientation.

When I grew up, I didn’t know anybody who I knew was gay. I’m certain that I knew a lot of people who were gay, but you didn’t know they were gay because the extent of discrimination and hostility caused people—just as a matter of protectiveness—to try to deny, at least openly, their sexual orientation. What that meant was the field was wide open to caricature. [But] as more and more people had the courage, and it really took courage in those days, to acknowledge their sexual orientation openly, everybody else began to know people—members of their family, teachers, students, doctors, lawyers, engineers—who were gay. They realized that the myths they had grown up with just weren’t true. I think that as a whole new generation of people grew up knowing, sometimes from a fairly early age, people of differing sexual orientations, it became harder and harder, and for most people impossible, to use that as a basis for discrimination.

We’re both good at what we do, in part because we’re good at figuring out the argument the other side’s going to make so we can rebut them. This is a case in which we can’t figure out what the good argument is on the other side. The other side doesn’t have an argument.

Q: When you argued Prop 8 before the U.S. Supreme Court, Justice Scalia asked you, “When did this become a federal constitutional right?” Is that still a legitimate question?

Olson: It’s a question. I said, “When did it become unconstitutional to prohibit people from different races of getting married? When did it become unconstitutional to make children go to different schools based upon their race?” Well, the Supreme Court decides cases when they get there, and when they understand the damage that discrimination does when it’s against classes of our citizens based upon their characteristics—the color of their skin or, in this case, their sexual orientation—then the Supreme Court decides it. But it’s because we realize that there are a class of people that are distinguished because of who they are—their immutable characteristics.

We accepted slavery and we accepted discrimination and we accepted putting Japanese citizens in concentration camps in California. When did that become unconstitutional? That’s a rhetorical question that gets asked in Supreme Court arguments, and Justice Scalia, and I admire him enormously, is very good at it. But I think the answer is that it’s right now, here before your eyes, and you can declare it for the United States.

Q: Do you think your Virginia case, or another of the marriage equality cases, is going to wind up with this court? They seem to not want to decide the matter.

Olson: You never can predict which case the Supreme Court is going to take. We don’t know when it will come. But it’s going to come.

-- from my conversation with David Boies and Ted Olson in January 2014. Posted after today's momentous decision in Obergefell v. Hodges, Director, Ohio Department of Health. The Q&A also includes the following, which, yes, is still true today: 

Q: And Justice Scalia? Can you win him over?

Olson: We try to win over everybody.

Boies: Some are harder than others.

Jill Lepore has another much-recommended article in The New Yorker, “To Have and to Hold,” this one on the history of both reproductive rights for women and marriage-equality rights for gays and lesbians. Lepore's conclusion: 

There is a lesson in the past fifty years of litigation. When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened. But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.

Basically: Equality is greater than privacy, particularly in the digital when there is very little of the latter. 

Related: Way to go, Ireland!

If Keith Olbermann still did his schtick he might make Michael Greve today's “worst person in the world.” From Jeffrey Toobin's “Hard Cases,” about King v. Burwell, which is being argued before the U.S. Supreme Court on Wednesday:

Shortly after the A.C.A. passed, in 2010, a group of conservative lawyers met at a conference in Washington, D.C., sponsored by the American Enterprise Institute, and scoured the nine-hundred-page text of the law, looking for grist for possible lawsuits. Michael Greve, a board member of the Competitive Enterprise Institute, a libertarian outfit funded by, among others, the Koch brothers, said, of the law, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

I've heard nothing but arguments against King v. Burwell, and the arguments are getting more blistering. The Editorial Board at the New York Times, which doesn't exactly make waves, calls the lawsuit “a marvel of reverse-engineered legal absurdity” and its central claim “baloney.” Others, including in the Wall Street Journal, have argued that the plaintiffs don't even have legal standing in the matter—they haven't proven they were injured by the ACA—so the case should be dismissed on those grounds. An Indiana law professor suggests it would be “embarrassing” if the court didn't dismiss King v. Burwell. 

Toobin, in his piece, mostly argues against the smallness of the lawsuit: the four words in dispute (“established by the state”), and how, in better times, the confusion over the four words (if it's even confusion) would be dealt with. Which is to say: not this way. 

As for who would be harmed if the ACA is upended? Toobin doesn't exactly mince words:

If the Justices rule for the plaintiffs, the seven and a half million people on the federal exchange who receive tax subsidies will lose them immediately, which means that most of them will also lose their insurance, because they can no longer afford it. Insurance companies will then likely raise rates for the remaining policyholders, many of whom would drop their coverage, leading to even higher rates, and so on; this sequence is known as the A.C.A. death spiral. A remarkable coalition of state officials, insurance companies, hospitals, physicians, and nurses—many among them less than friendly to the Obama Administration—have filed briefs in the case warning of the consequences if the subsidies are withdrawn. A brief written by the deans of nineteen leading schools of public health states with bracing directness that, if the plaintiffs win this case, nearly ten thousand Americans will die unnecessary deaths each year.

Critics of the ACA have always railed on about Obama and his “death panels” but this may be another case of GOP projection.

Wednesday.

Q: Over the course of your career, have the kinds of cases that come to you shifted? If so, does it represent a change in the larger culture?
A: You know what I’ve noticed? The mentality that you used to see only in drug cases is the same mentality that you see in many white-collar cases.

Q: Meaning?
A: Meaning that at some point, the people who do business in this country adopted the ethic of gangsters. Except that the drug dealers are far more honest and straightforward.

-- from my Q&A with San Diego criminal defense attorney Eugene G. Iredale. The whole interview is worth reading even if you don't care about the law but do care about any of the following: nuance, literature, battling against bullies, and “lessons of common human decency and politeness.”

The Scalia dog is a no-brainer but I thought the Ginsburg was inspired.

Not only hilarious but a real public service in a country where two-thirds of its citizens can't number one member of the high court.

I love the lede to (if not the import of) Adam Liptak's story today:

The Supreme Court on Saturday allowed Texas to use its strict voter identification law in the November election. The court’s order, issued just after 5 a.m., was unsigned and contained no reasoning.

The dissent, at least, was signed by Justice Ginsburg, and condemned the Court's conservative branch, as well as Texas, for actions that risk “denying the right to vote to hundreds of thousands of eligible voters.” It's actually more like half a million, she says later in the dissent: 600,000, or 4.5 percent of all registered voters.

Texas' 2011 voter I.D. law went into effect after SCOTUS, in Shelby County v. Holder (2013), struck down Section 5 of the 1965 Voting Rights Act, which required states with a history of disenfranchisement to, as Liptak writes, ”obtain federal permission before changing voting procedure." Since then, the South has been all yee-ha about changing its voting procedures. But legitimately, you understand.

Their argument: voter fraud is so rampant (despite no evidence, and particularly not in-person at the polls) that voters should be required to show a photo I.D. at the polls. Sadly, 600,000 registered voters in Texas don't have a driver's license, gun license, passport or military I.D. But ... SOL. Most of these folks, of course, are minorities. 

But it sounds reasonable, doesn't it? Until you realize that, for example, no one in Washington state has to show a photo I.D. to vote, since we‘re entirely an absentee ballot state now. We must be crawling with fraud. 

To me, what Texas and many southern states are doing these days is Jim Crow dressed up. It’s James Crow. Too bad the Court doesn't see it that way—or give a reason why they don't.

Conservative court backs James Crow laws in Texas. No reason necessary. 

While P and I were in Europe, super lawyers David Boies and Ted Olson, who argued opposite sides of Bush v. Gore before the U.S. Supreme Court in December 2000, and who became friends afterward and teamed up on the Prop 8 case, were on Stephen Colbert's show. You should watch the whole interview, but this part cracked me up:

Olson: I think that [Bush v. Gore] was a solid decision. Of course, I may be a little biased. But I think David agrees actually.
Colbert: I'm afraid we don't have time for his answer.
Boies: That's exactly what the Court said.

Even Colbert, master of the quick-witted response, was impressed.

I got to interview both men in January in New York, which was a great if nervewracking pleasure, and even got to correct Mr. Boies on his baseball knowledge. (My wheelhouse, apparently.) He used Babe Ruth as a metaphor for someone who hits a lot of homeruns but still strikes out a lot —more than anyone else in baseball history, he added. I had to tell him that the Babe was usurped in strikeouts long ago, and that Reggie Jackson holds the mark now. In fact, and obviously I didn't have this knowledge at the time, but the Babe is currently 107th on the career strikeout list with 1330—about half of Reggie's total.

That was a small sidebar, of course. Most of our interview was about the law in general, and the push for the federal constituational right for same-sex marriage in particular. Read the whole interview here.

Let me add that I could listen to David Boies talk about almost anything. He has a moment on “Colbert,” and it comes at about 4:40 in the above link, where I just fall in love with him all over again. Not that there's anything wrong with that.

I love this SCOTUS nugget from Ryan's Lizza's post, “Barack Obama, Left Conservative,” on the Obama administration's new stance on the dangers of, and regulation of, carbon dioxide.

According to Lizza, it all began with a lawsuit from James R. Milkey, who sued the federal government on behalf of the state of Massachusetts, whose coastlines were eroding due to global warming. Initally people thought Milkey was daft for his lawsuit. Five years later, he was arguing before the U.S. Supreme Court, where this exchange took place:

“Your assertion,” Justice Antonin Scalia, who was skeptical about the link between greenhouse-gas emissions and Massachusetts’s disappearing coastline, said, “is that, after the pollutant leaves the air and goes up into the stratosphere, it is contributing to global warming.”

“Respectfully, Your Honor, it is not the stratosphere,” Milkey responded. “It’s the troposphere.”

“Troposphere, whatever. I told you before, I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.”

Milkey won, 5-4. Now we are where we are. Which is way behind but at least in the game.

In the wake of last week's U.S. Supreme Court decision in McCutcheon v. Federal Election Commission, in which the 5-4 majority struck down a cap on total donations that can be made to individuals during federal elections, here's a song by Leonard Cohen. Lyrics first:

Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That's how it goes
Everybody knows

Thanks, Justices Alito, Kennedy, Roberts, Scalia and Thomas, for fixing the fight a little further. And for not knowing what everybody knows.