The National Law Journal will not publish to The BLT for the next several days in observance of Christmas. We wish you plenty of holiday cheer.
The National Law Journal will not publish to The BLT for the next several days in observance of Christmas. We wish you plenty of holiday cheer.
DADT Repeal: The effort to repeal the Don't Ask Don't Tell policy on gays in the military seemed dead, but a stand-alone measure passed the House on Thursday and could get to the Senate before it quits for the year, The Washington Post reports.
Tea Time: Justice Antonin Scalia will kick off a series of "conservative constitutional seminars" in January in conjunction with the House Tea Party Caucus, The Daily Caller reports. His topic on Jan. 24, aptly enough, will be separation of powers.
Hiring Again: After years of belt-tightening, law firm hiring may pick up in 2011, according to this report from The American Lawyer on a survey of recruiters.
Lady Justice: She's been depicted as shoeless and blindfolded, naked or clothed. Lady Justice, that is, as revealed in a new book Representing Justice by Yale Law School profs Judith Resnik and Dennis Curtis, reviewed here in The New York Times.
Reading List: Heading out of the office for the holidays but can't quite leave the law behind? Here's a good list of top articles, essays, even court opinions from the past year from CBS News commentator Andrew Cohen at The Atlantic blog.
A Justice Department attorney encountered a skeptical panel of judges today in trying to convince the court to allow the government to keep secret the list of people whose clemency applications were denied under the presidency of George W. Bush.
A retired Washington Post reporter who is writing a book on clemency is demanding the list under the Freedom of Information Act. Bush rejected more than 9,200 applications over eight years. Last year, a federal district judge in Washington ordered the government to turn over the names. Background on the case is here.
The Justice Department took the case to the U.S. Court of Appeals for the D.C. Circuit, which heard oral argument this morning. At issue in the case is the extent to which releasing the names invades the privacy of individuals who were denied pardon and commutation requests.
The plaintiff, George Lardner, represented by Public Citizen Litigation Group director Allison Zieve, wants to determine whether ethnic consideration played a role in Bush's rejection of thousands of applications. DOJ will confirm whether a specific person received a pardon; the department will not disclose a blanket list of rejected applications. DOJ publicizes the names of applications the president approves.
Today in court, DOJ Civil Division attorney John Koppel called any public interest in the names “negligible and highly speculative.” Publishing a list of names of rejected applicants brings renewed attention to past crimes and only serves to stigmatize the applicant, Koppel said.
Judge Douglas Ginsburg said the applicant, not the public, is dredging up old crimes. “They do that by seeking clemency,” the judge said. “They bring it to the attention of the president.” Ginsburg said it’s “ordinarily a matter of public interest what the president is doing.”
Ginsburg said the denial of an application could generate as much attention as the grant of one. He noted the “great deal of press attention” surrounding President Bill Clinton’s decision to grant a pardon to fugitive financier Mark Rich. Attorney General Eric Holder Jr., a top official in the Clinton Justice Department, apologized during his confirmation hearing for mistakes in the Rich pardon.
Judge Merrick Garland noted in court that applicants are made aware that their neighbors, friends and employers could be contacted during the investigation of whether to grant a pardon. “They know that there’s a risk,” Garland said in court. “They’re on notice about that.”
Koppel argued that federal officials make every effort not to reveal the nature of the inquiry when talking with employers and others about any application. Applicants do not expect that their request for a pardon will become known, Koppel said.
“We can change that expectation,” Ginsburg said.
Supreme Court nominee Elena Kagan opened her confirmation hearing Monday saying she would make only one pledge: that she would listen to others with an open mind.
"I'll make you another," Kagan told Sen. Tom Coburn (R-Okla.) on Wednesday as her testimony neared an end. "I'll re-read the Federalist papers."
Count that as a minor victory for Coburn, one of the Senate’s most conservative members. He frequently cites passages from the Federalist papers promoting a limited federal government, quoting one of them, James Madison’s No. 44, to Kagan on Tuesday.
Click here for online copies from the Library of Congress.
David Souter, the retired Supreme Court justice long known for his aversion to new technology, may have joined one of the latest electronic trends.
Souter received a Kindle Wireless Reading Device as a gift last year, according to his latest financial disclosure report. The Kindle, sold by Amazon, allows users to download books and read them on an electronic display.
The disclosure report requires judges and other public officials to disclose gifts they receive, with some exceptions. This one came from Federal Communications Commission Chairman Julius Genachowski, who is a former Souter clerk, and from Genachowski’s wife, Rachel Goslins. Estimated value: $349.10.
Souter’s side-stepping of some modern, electronic devices is widely known among Court-watchers.
“It was hard to reach him when he was in New Hampshire because Souter had a telephone and a fountain pen but no answering machine, fax, cell phone, or e-mail,” wrote New Yorker staff writer Jeffrey Toobin in his book “The Nine.” Toobin, who was explaining why Souter did not immediately find out about the death of Chief Justice William Rehnquist in 2005, added that Souter was once given a television but never plugged it in.
But Souter also has a reputation as a bookworm. “He’s got a stack of books, stacked on shelves and on tables and on the floor, that he keeps saying he wants to read. If he reads all the books he says he wants to read, that’s going to fill up his retirement,” longtime friend Bill Glahn told The Associated Press last year.
Last year, Souter moved to a new house in New Hampshire in part because his prior house wasn't structurally sound enough to hold his thousands of books, the Concord Monitor reported in August. Amazon, however, sells hundreds of thousands of e-books.
Neither Genachowski nor Souter was immediately available to comment.
The Administrative Office of the U.S. Courts also released the financial disclosure reports of all nine sitting justices and retired Justice Sandra Day O’Connor. Some of them reported gifts, too.
For the second time in a month, one of President Barack Obama's nominees for a federal appellate post is splitting senators sharply along party lines.
The Senate Judiciary Committee voted 11-7 today to advance the nomination of Judge Robert Chatigny for the U.S. Court of Appeals for the 2nd Circuit. All but one Democrat voted for the nomination and all Republicans against it, similar to the committee’s May 13 vote on the nomination of Goodwin Liu for the 9th Circuit. Sen. Dianne Feinstein (D-Calif.) voted “pass” on Chatigny, adding later in an interview that she needs to review more of the nomination materials before making up her mind.
Both nominations are likely to be drawn-out fights on the Senate floor.
While Liu, a law professor at the University of California, Berkeley, has drawn fire because of his academic writings and advocacy for liberal causes, Chatigny is getting criticism because of a 2005 death penalty case. Chatigny, of the U.S. District Court in Connecticut, delayed the execution of serial killer Michael Ross by four months and threatened the law license of Ross’ lawyer, spurring an ethics inquiry. Our March story here has more details.
Republicans today accused Chatigny of losing his cool in the case. “The record shows that Judge Chatigny did everything in his power to prevent the execution,” said Sen. Tom Coburn (R-Okla.), before the committee’s vote.
Democrats noted that a three-judge committee cleared Chatigny in the ethics inquiry, and they said Chatigny had ample reason to be concerned about the execution, the first in Connecticut in decades, because of questions about Ross’ mental competence.
One of the most powerful and important books on the law published in 2009 is Ordinary Injustice: How America Holds Court, by lawyer and journalist Amy Bach. She visited courts from Mississippi to Chicago to New York, examining how everyday justice works -- or, to be precise, doesn't work.
When she saw things falling through the cracks, she looked into the cracks and found out why, and what happened. She found not only overzealous prosecution but under-prosecution, as well as overworked defense lawyers and judges. Overall, she found chummy courthouse communities where parties who are supposed to be adversaries have little interest or incentive to call attention to the injustice and incompetence they see. Defendants and the public that is supposed to see justice being done are the victims.
In a time when wrongful convictions and exoneration have become almost routine, and the Supreme Court is taking up numerous cases about prosecutorial wrongdoing and ineffective assistance of counsel, Bach's book documents the reality on the ground in an unprecedented way. This week Supreme Court correspondent Tony Mauro interviewed her about the book, which was published by Metropolitan Books. (Photo of Amy Bach by Rachel Gracie.)
Mauro: This has been an eight-year odyssey for you. What got you started, and how did a theme crystallize for you?
Bach: The book began when I was writing a series of stories about civil rights for The Nation magazine. I had the chance to sit in a bunch of courts and watch, including one in Greene County, Georgia. There I saw a public defender plead 48 people guilty in a little over a day. In court, several cases broke down with people crying saying that they didn’t understand what was happening to them as they were pleading guilty. The reason was that their lawyer was doing little more than communicating a plea deal from the prosecutor. He never talked to them or investigated their individual circumstances. One woman said, “I didn’t know I was going to jail” when the judge was meting out a sentence she had supposedly agreed to. When I talked to the prosecutors, defense attorneys and the judge, I asked them how they thought things went. And they all said, essentially, the same thing: fine. The defense lawyer said something I will never forget: “Nobody could say that they didn’t get their day in court.”
What astonished me, and what made me want to write a book is that smart, committed hard working professionals could routinely act in ways that fell short of what it is people in their positions were supposed to be doing. And not even realize that anything is missing. Or that their behavior had devastating consequences for peoples’ lives. This idea became the central notion of ordinary injustice: Mistakes had become routine and the legal professionals could no longer see their role in them.
Mauro: What basic problem did you find in the justice system, and what are the moving parts?
Bach: My book is about professionals -- people like you and me – who become more attached to people we work with than performing the checks that make the adversarial system work. A certain culture develops where attorneys and law enforcement agree to go along rather than push back and say that someone who works in the system is openly violating the law or not doing his job properly. Nobody is standing up to say that what looks like justice is actually not. At times, problems come to light (usually because of an outsider) and the community blames one person, a “bad apple” if you will. But in fact, an entire community helped to keep this individual’s dysfunction in place. Also, the individual is enabled by certain uniquely American failures of how America holds court. These failures are widespread: prosecutors have too much discretion to bring a case; prosecutors don’t have to coordinate with police; defense attorneys can be incompetent and not be reprimanded if they fall down on the job; and a judge can grab power and disregard peoples’ rights in the absence of proper checks.
Mauro: How widespread is the problem? We hear about the sleeping defense lawyer and the innocent people released from death row, but it seems from your book that these are not aberrations.
Bach: Whenever I speak at a law school or an event, someone asks this question, and maybe follows with an inquiry into why I didn’t focus on all the great prosecutors out there. Why are people inclined to think stories of injustice are aberrant or outliers? Do they doubt an account because it doesn’t jibe with some body of evidence about the justice system’s operation? Because right now that body evidence truly doesn’t exist. Organizations like the Innocence Project have given a wonderful window into how justice goes wrong, but DNA evidence does not exist for the millions of people who experience the criminal justice system. Besides DNA evidence, the only other real scorecard we have are the results of the rarest of events: the big trials which show a community that crime is being addressed. In short, because America leaves its local courts completely unmonitored and unmeasured, we don’t have any idea how widespread the problem is.
Mauro: Talk about Miss Wiggs, and the other individuals you found who are aware of the problems, and why they are thwarted in making the system work better.
Bach: My book features many heroes. Miss Wiggs is one. She is a court clerk in Quitman County, Mississippi who kept a list of cases that were supposed to be presented to grand jury but never were. I used her list as a roadmap to find out why the prosecutor wasn’t pursuing many important cases. One of my favorite “upstanders” is a paralegal in Greene County, Georgia who keeps on appearing before the county government to decry the terrible representation that defendants were receiving. And there’s an attorney in Chicago who initiates an investigation in a case he himself prosecuted decades before. Due to his speaking up, two 17 year old boys who had been convicted of raping and murdering a little girl were released on the basis of DNA evidence. Today his former colleagues despise him. One former detective refers to him as “the most despicable human being I know” – really, for breaking rank. While all these people tried to make a difference, for the most part, individual citizens are no match for legal professionals working in league.
Mauro: As a reporter covering the Supreme Court and appellate courts, what struck me as I read your book is the level of abstraction at which those courts deal with issues like ineffective assistance of counsel and abusive prosecution, compared to the real-world situations you detailed so well. If you were writing a brief to the Supreme Court, what would you tell it?
Bach: I would say to the U.S. Supreme Court that the reason it faces some extraordinary issues is because over five years it has devised a set of precedents that tend to prevent attention to the ordinary. Last month, for example, the Court heard arguments in Sullivan v. Florida. The case involved a 13-year-old boy who was given life without the possibility of parole for a rape of an elderly woman and a burglary of her home. The question before the Court was whether such a severe sentence to a child this age violated the Eight Amendment’s prohibition against cruel and unusual punishment. Not at issue is Sullivan’s guilt – just this abstract question of whether giving a child a punishment with no hope of release is constitutional.
I asked for a copy of the original trial transcript. I expected boxes to arrive. Instead, I got a pamphlet less than an inch thick. Sullivan’s attorney, who was later disbarred, gave no opening statement, barely any closing, and didn’t do proper cross examination of two co-defendants who implicated the boy -- one even had a sex crimes record that was never brought out. And when the trial judge said that he planned to make sure Sullivan would not get out of prison until he was a very old man, his lawyer never spoke up to say: Do you realize you are sentencing him with no possibility of parole? Maybe the judge’s sentence was such an outlier because it was actually a mistake. Maybe Sullivan is even innocent. Maybe the entire issue before the U.S. Supreme Court could have been prevented if the boy had had a decent attorney from the start. But the Court has created a set of rules which make horrible representation an ordinary occurrence. The mistakes are foreseeable. If the U.S. Supreme Court required lawyers to make fewer mistakes, we wouldn’t have some of the extraordinary problems that currently make the front pages.
Mauro: You don't single out a single cure like more money to make the system work as it should. What are your suggestions for bringing the system back to what the Constitution demands and the public should expect?
Bach: Money alone will not solve the problem of ordinary injustice, since community oversight is what’s critical. But currently, citizens and communities are not equipped with the tools to accomplish this. As of now, there is no reporting system in place to evaluate the performance and outcomes of legal professionals in a court system as there are for teachers in a schools or surgeons in hospitals. Without raw data, citizens and communities are not, at present, equipped with the tools to monitor their courts. And legal professionals will not be compelled to improve their performance. I am currently launching a pilot project to measure state criminal trial court performance. Pilot data and validated metrics will ultimately serve as the foundation for legislated state run programs. While the leading scholars may disagree on what exactly should be measured, virtually all concur that courts are the least studied public institution in America. Ultimately, the project will educate policymakers and the public about the obstacles to improved justice systems.
The passage of time did not soften Sen. Edward Kennedy's hostility toward Chief Justice William Rehnquist, if Kennedy's memoir is any indication.
Kennedy, in a memoir published posthumously this week, argues that Rehnquist might not have been confirmed as an associate justice in 1971 if the Senate hadn't refused to confirm two of President Richard Nixon’s earlier Supreme Court nominees. The Senate, he writes, had “institutional reluctance to repudiate a president a third consecutive time.”
“The unfortunate result was, in my opinion, a justice whose record was disqualifying on its face,” Kennedy writes in True Compass.
Kennedy (D-Mass.) fought against Rehnquist’s confirmation in 1971. A member of the Senate Judiciary Committee, he continued his opposition when, in 1986, President Ronald Reagan proposed elevating Rehnquist to chief justice. Kennedy lost both battles, and he makes clear that he had no regret over his opposition and no praise — in the memoir, at least — for Rehnquist’s subsequent time on the Court.
If anything, Kennedy writes, he wishes he had opposed Rehnquist earlier in the process in 1971. He writes that he withheld forming an opinion until the confirmation hearing. “In retrospect, given the historic consequences, perhaps I should have pounced right away,” he writes. (Sixteen years later, when Reagan nominated Robert Bork, Kennedy spoke out within an hour.)
Lee White, once White House counsel to Presidents John F. Kennedy and Lyndon Baines Johnson, regaled a packed room yesterday at Politics and Prose, the Northwest D.C. bookstore.
White, 84, has just come out with his memoirs, Government for the People, which covers his life and work in Washington, starting with Kennedy in the 1950s. Johnson appointed White chair of the Federal Power Commission, where he worked from 1966 to 1969. Today, he’s of counsel at Spiegel & McDiarmid.
White (who also happens to be the father of Legal Times’ proofreader Murray White) was modest about his achievements: “I happened to be in the right place at the right time,” he said. Being in the right place meant briefing the press on the afternoon of the Kennedy assassination and being the go-to guy in the White House for groundbreaking civil rights legislation.
Of Kennedy, he said: “He was an extraordinarily quick fellow” whose press conferences were “almost works of art.” Johnson, he said, was “very shrewd, with a tremendous memory” but also “a little bit mean, a little bit vindictive, a little bit ornery.”
And just before White resigned from the Federal Power Commission, he had a long chat with President Richard Nixon. “Aren’t there any Republican guys like you?” Nixon asked him. “I’m sure there are,” White responded. “I just haven’t met any yet.”
Robert Bennett’s autobiography comes out next week. That’s right, Bennett, the Skadden, Arps, Slate, Meagher & Flom partner who has represented President Bill Clinton among other notables, has written a legal memoir called In the Ring: The Trials of a Washington Lawyer.
The book, which is released on Tuesday, might not go into the gritty, backroom details of every court battle or settlement, but Bennett says he tries to take readers inside some of his highest profile cases.
But Bennett, it seems, was not dreaming of being an author. “I never intended to write a book for publication,” says Bennett. Rather, his literary aspirations began as a more personal affair when his daughter Peggy, who is also an attorney in the District, gave him a journal for Christmas in 2002. According to Bennett, she said, “Dad, you’ve had a really interesting life in the law. Why don’t you put it down for us?”
Here’s a review of the book in this month’s Washingtonian. (Notice the lovable pug in the photo. His name is Rocco.)