Thursday, December 18, 2014

On Legal Education and the Execution and Exoneration of George Stinney, Jr.

For days now I've been meaning to write about the would-be lawyers who claim to be so emotionally wrought over the news that they can't handle law school exams.  And the law schools that find their students' emotional stress over the news sufficient basis to delay exams or grant continuances.  

And the idiot student who thinks that its a mistake to view the students who claim to be too wrought to take exams as being too wrought to take exams.  Rather, they're deeply passionate activists who understand that practicing law will have nothing to do with law but everything to do with making the world a better place which can only be done by activism and that any demand that law school have something to do with law is at odds with legal education which should be about demonstrating.  Or something.

And then there's Harvard law professor Jennie Suk who mourns the fact that law students are insisting that they shouldn't have to learn about parts of the criminal law that deal with crimes of sorts that might upset them, and that, in fact, law schools should probably stop teaching those things and only teach about criminal law as it involves crimes that make everyone happy.  And the misguided members of the law faculty who think that's fine or are too wrought themselves by the risk of offending that they agree.

As I say, I've been meaning to write about those things.  

But I've got an actual job with clients I need to represent - some of whom are said to have done things that are upsetting and some of whom face sentences that horrify me - and with deadlines I have to meet no matter how much I'd rather be out in the street with the folks who are upset about Michael Brown and Eric Garner and Tamir Rice and the fact that Ohio's lethal injection secrecy bill (which its proponents claim is nothing of the sort since it's just about, uh, keeping information regarding lethal injection secret) just made it though both houses of the General Assembly and the Gov will sign it and then they can kill Ron Phillips in February.

Points to make:  
If it's true that the law students are too wrought to take exams or go to class, they're not cut out to be lawyers.  If instead they're too committed to being lawyers who believe that lawyering has nothing to do with actually doing legal work, they should take up some other line of work.  (If it's all bullshit and they're just making up excuses to get continuances and are actually selling them to professors, they're maybe cut out only to be unethical lawyers, which is a somewhat different problem.)

If it's true that law students believe they shouldn't have to learn about parts of the law that don't make them happy and that, in fact, law schools shouldn't teach parts of the law that aren't cheery because it's just too upsetting - well, see the prior bullet point, they're not cut out to be lawyers.  And if it's true that their gutless professors are caving to their demands, well, they're proving the old adage that "those who can't do, teach." But of course, they're also refusing to teach, which leads to the new adage (don't write in, I know) "those who can't do or teach should take up another line of work."

George J. Stinney, Jr.
And then it turns out that George Stinney, Jr., who was executed by the good people of South Carolina in 1944, when he was 14, for a crime he maybe didn't commit, just had his conviction vacated.

It's not, the judge explained, that Stinney was factually innocent.  No, it's that it was all so unfair.  Black kid in small, deeply racist town in the racist South coerced into confession by tough white cops, confession that may have been unreliable; trial counsel who didn't do shit for his client; trial and conviction and death sentence all before an all-white jury in a process that took less than a day.  Less than three months between the murder and the execution. 

Said Judge Carmen Mullen
The extraordinary circumstances discussed herein simply do not apply in most cases.  
Which is true if the extraordinary circumstances are that Stinney was 14. If, though, she was referring to systemic racial issues and coerced confessions and incompetent or unwilling lawyers and rapid trials and . . . . If she referred to those things, she was either horribly misinformed or delusional or lying. 

It's terrible what was done to Stinney. And it's no doubt a comfort to his family and supporters to have his conviction vacated. But the reality is that however much Stinney's execution was wrong (and it was) and however much vacating his conviction rights an injustice (which it does), it falls on me to ask whether the energy and resources that have gone into the fight for Stinney might have been better spent on behalf of those awaiting his fate today.

And whether the real point, that Stinney's case isn't at all unusual except for his age, is where the real focus should be.

Of course, if the real point is that we still kill people we shouldn't and that our systems aren't really much better today than they were in South Carolina in 1944, then it's just depressing.

It'll be important to ensure that law students don't learn any of that and that they aren't trained to fight for clients better than Stinney's lawyer did. You know, too fucking stressful.


Wednesday, December 10, 2014

"No," She Said, Not Without a Warrant

On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that "a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home." Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.
The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their defiance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the "warrant" and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been "belligerent" in resisting their official rescue of the "warrant" from her person. Running roughshod over appellant, a policeman "grabbed" her, "twisted [her] hand," and she "yelled [and] pleaded with him" because "it was hurting." Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.
The charge, when they arrested Dolly Mapp, was obscenity.  They found books and drawings.  She was convicted and sent to prison.

The U.S. Supreme Court cut her loose.  It's not that they said Ohio's obscenity law was unconstitutional.  (Actually a majority of the Ohio Supreme Court did think the law was unconstitutional, but the majority was only 5 of the 7 justices; at the time, the Ohio Constitution required at least 6 of the 7 to declare a statute unconstitutional.)  Rather, they said the search was.

Back in 1914, the Supreme Court had tossed out the evidence against Fremont Weeks who'd been convicted of sending lottery tickets through the mail.  In Weeks v. United States, Justice Day wrote for the Court that that the feds could not use in court of evidence obtained in violation of the 4th Amendment. 
We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States acting under color of his office in direct violation of the constitutional rights of the defendant; that having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed.
But that rule didn't apply to the state prosecutions until 1961.  Which is when the Court ruled on Dolly Mapp's obscenity case.  And ignored the obscenity.  And said, in Mapp v. Ohio, that by god the states can't conduct an illegal search and prosecute you with the evidence, either.

Which was a great rule while it lasted.  

Except that the cops and the prosecutors, and ultimately the judges and justices, and the folks like Kent Scheidegger and Bill Otis* forces of lock-'em-up-until-you-fry-'em for that part about not being able to prosecute people based on the use of illegally obtained evidence.  'Cause it's more important to lock up the bad guys than to obey the Constitution.  

And so the exclusionary rule no longer prohibits use of unconstitutionally obtained evidence.  Unless the prohibition would prevent the cops from violating the Constitution.  Which, of course, it won't if they can use the evidence.

But for a while.

Dollree Mapp's booking photo
Her name was Dolly Mapp.  She just said "No."  For that, and while it lasted, she changed our world.

She died a month and a half ago, on October 31, in Conyers, Georgia.  She was, the Times says in its obit, 90 or 91.

Rest in Peace.

*Their blog, Crime and Consequences, currently has fewer votes than any of the criminal defense lawyers' blogs except Matt Brown's in the ABA's annual beauty contest for blawgs.  Go vote for Matt's to see that his blog, too, gets more votes than theirs.  

Tuesday, December 9, 2014

The Rule of Nine in a Supreme Year

No doubt it seemed a clever idea.  Focus on a single term of the Supreme Court to illuminate how it operates, what its individual and collective constitutional understanding currently indicates about some of the more controversial issues of the day, and how each of the nine justices interprets and applies the Constitution.

Or perhaps the seemingly clever idea was to focus on each of the nine justices interprets and applies the Constitution in order to illuminate what their individual an collective views indicate about some of the more important issues of the day and how the Court operates.

Or perhaps the seemingly clever idea was to focus on one opinion by each of the nine justices, some majority opinions, some dissents to illuminate . . . .

You begin, perhaps, to understand both the virtues and the problems of American Justice 2014: Nine Clashing Visions on the Supreme Court, the new book by Garrett Epps.

Epps is a lawprof with a focus on constitutional law.  He's also a credentialed reporter at the Court who writes regularly for The Atlantic.  It's not a bad combination for a book like this that "tries to give [his] sense one year in the life of the Supreme Court."  That year is the October Term 2013, the term that technically ended at the end of September this year but as a practical matter ended in June with the decision holding that Hobby Lobby would not have to provide birth control in the insurance packages it offered its employees no matter what the Affordable Care Act says.  (And if you come to this blog for my take on Hobby Lobby, you're going to be seriously disappointed.)

As a project, the one Epps set himself isn't bad.  Even though it's no more than a fragment, a moment in time necessarily limited in scope, you can learn a lot from a snapshot taken by a good photographer.  The snapshot provides focus, an opportunity to see and study one thing with care. When it's also well curated, you get context.  

There are, of course, many ways to take that picture of the 2013 Term.  You could look at the data.  How many cases?  What were the votes and who voted with whom most (or least) often?.  Who wrote concurrences and dissents and who just signed on to what someone else did?  You could ask what kinds of cases the Court chose to decide.  Business?  Criminal?  Were the successful petitioners individuals or businesses or government agencies or non-profits?  You could look into which courts got affirmed and which got reversed?  (Hint:  If the case comes from the 6th or 9th Circuit, it's almost certainly going to get reversed.)

Or you could pick, seemingly at random, a single opinion written by each justice and use it to try and reveal something about the justice and the Court as a whole.  Which is what Epps does.  And therein . . . .

Well, like I said, you can sort of see where this is going to go.

Consider the Clarence Thomas chapter.  Thomas is an interesting character.  A conservative African-American, he's deeply hostile to the affirmative action that worked to his advantage and, frankly, secured him a seat on the Court.  His confirmation hearings at the Senate Judiciary Committee were riveting television as he was accused by Anita Hill of graphic sexual harassment.  Epps summarizes.
Hill told the panel that her boss had harassed her in the rawest possible terms, pressured her to view pornography, discussed his own genitalia and sexual prowess, and asked her repeatedly for sex. Supporters of Thomas fought back with a furious attack on Hill's truthfulness and sanity, while Thomas branded the committee's hearing "a high-tech lynching for uppity blacks."

There's much of interest in Thomas, including his backstory.  And there's the curious fact that he simply doesn't speak at the Court.  It's been, quite literally, years since he's asked a question at oral argument.  Some say that indicates that he's just blowing it off.  Epps says he's deeply engaged, which you can tell because he sometimes whispers comments to Stephen Breyer while "grinning broadly."  Hmmm.

Mainly, though, there's his jurisprudence.  He views the law in rigid, cramped terms.  And he's "notoriously unwilling to compromise his own views in order to win over his colleagues."  So he frequently concurs or dissents by himself.  Moreover, he's often not particularly "interested in the narrow issue actually presented by facts of cases," looking instead to find a broader rule he can write or a precedent he can overrule.  Which is interesting.  And raises the question of why Epps chose to have the Thomas chapter nominally be about his narrow opinion for a unanimous Court in Susan B. Anthony List v. Driehaus.

Or take Chief Justice Roberts.  Epps explains that it's obvious to anyone who pays attention that "he was quite sincere in his wish for greater unanimity, greater judicial modesty, and a widely repected Supreme Court quietly calling 'balls and strikes.'"  That quote is from page 19.  On page 22, just three pages later, Epps notes that Roberts' encomia "to Rehnquist and Reagan cut against the promise of humility."  

The case Epps chooses for Roberts?  It's McCutcheon v. Federal Election Commission, in which he "brushes aside" precedent and offers, at "the heart of the opinion," a "view of democracy" that is, at least as far as its logic goes, "demonstrably false."

Here's the thing.  Epps likes the so-called liberals on the Court, none more than Ruth Bader Ginsburg, and he has no particular affection for the conservatives.  While disavowing any prediction for the future, he brands this (not quite with disdain) the "Alito Court" and identifies it as one that adores and supports the rich and powerful while eagerly repressing the poor and powerless.  That's fine (and not altogether wrong). And really, there's much to be said for a book with a point of view.

American Justice 2014 is published by the University of Pennsylvania Press, but don't let that fool you.  It's not an academic book, nor is it for specialists.  But the generalist, the gal who's got an interest in how the Court operates, the guy who wants to know the players? This is for them.

My thanks to the Penn Press for sending me a review copy of the book.

Friday, December 5, 2014

Counting the Days

Anne Boleyn spent the night of May 18, 1536, in the Tower of London.  She'd been there for some 16 days, since her arrest on May 2 on charges of adultery, incest, and plotting to kill her husband, Henry VIII, King of England.  That night was to be her last.

The next day she was taken to the Tower Green and beheaded.  

It is said that she became hysterical during those two weeks in the Tower.  Uncontrollable wailing and crying.  Manic laughter.  She was herself, they say, conniving enough to understand that she'd been a victim of a plot.  She was herself, they say, disbelieving that she could have been so suddenly and unceremoniously ruined.

I've quoted before this passage from Camus' essay "Reflections on the Guillotine."
What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.
I've observed that it's not actually true.  There are, indeed, such monsters in private life.  There are worse.*  Regardless, the wait is horrific.

And so Anne Boleyn, whether in a kind of bipolar hysteria or not, sat in the Tower.  Waiting.  Day by day having hopes raised and dashed, ultimately knowing that at some point, in the not distant future, they would come for her and she would have her head chopped off.

Imagine yourself in her slippers.

Now it is the last night.  In the morning they will come.  Beheadings were often particularly gruesome.  It wasn't just the spectacle.  More than the spurting blood, more than the head falling to the ground.  More than that, there was the all-too-common failure fully to decapitate with the first blow.  This was likely to be better.  Rather than the common executioner with his ax, a special swordsman was, they say, brought in for the occasion.  She is supposed to have expressed relief.
I heard say the executioner was very good, and I have a little neck.
By all accounts, he was very good.  The killing itself was swift and clean, a single blow with the sword.

She was probably 35.  Some scholars say 29.  Not a beauty, they said.  There are stories of sixth finger on one hand, stories of a large goiter on her neck.  Perhaps.  Regardless (or perhaps because), she'd bewitched the king.  Until she no longer did.

It appears she wrote poetry during those days and nights in the Tower.
Defiled is my name full sore
Through cruel spite and false report,
That I may say for evermore,
Farewell, my joy! adieu comfort!
For wrongfully ye judge of me
Unto my fame a mortal wound,
Say what ye list, it will not be,
Ye seek for that can not be found.
And then the night before.  The night of May 18.  In the Tower.  Knowing she would be killed the next day.  Not sure how it would or would not go.  That night, so it is said, she wrote another poem.**
O death, rock me asleep,
Bring me to quiet rest,
Let pass my weary guiltless ghost
Out of my careful breast.
Toll on, thou passing bell;
Ring out my doleful knell;
Let thy sound my death tell.
Death doth draw nigh;
There is no remedy.

My pains who can express?
Alas, they are so strong;
My dolour will not suffer strength
My life for to prolong.
Toll on, thou passing bell;
Ring out my doleful knell;
Let thy sound my death tell.
Death doth draw nigh;
There is no remedy.

Alone in prison strong
I wait my destiny.
Woe worth this cruel hap that I
Should taste this misery!
Toll on, thou passing bell;
Ring out my doleful knell;
Let thy sound my death tell.
Death doth draw nigh;
There is no remedy.

Farewell, my pleasures past,
Welcome, my present pain!
I feel my torments so increase
That life cannot remain.
Cease now, thou passing bell;
Rung is my doleful knell;
For the sound my death doth tell.
Death doth draw nigh;
There is no remedy.
* * * * *

Some 349 years later, in 1995, the Supreme Court decided not to hear an appeal by Clarence Allen Lackey who was under sentence of death from a crime in Lubbock, Texas.  Not a single Justice voted to hear Lackey's appeal, but John Paul Stevens wrote a memorandum "respecting the denial of certiorari."  The claim (known as a "Lackey claim," and despite some interest expressed at one time or another by judges and justices no court has yet found it compelling), stripped to its essence, is that spending decades on death row is itself cruel and unusual punishment in violation of the 8th Amendment.

Portrait of Anne Boleyn
*Which is really beside the point.  We're supposed to be better than the people we kill.  

** The authorship is not conclusively established.  It may have been written by her brother.

Monday, December 1, 2014

See How Far We've Come

Rosa Parks

That's her booking photo.  

It was 59 years ago today, December 1, 1955, that she sat down on that bus.  At the front.  With the white folk.  

Rosa Parks, they say, started a revolution that day.

Michael Brown
That's Michael Brown, though you can't see him, just his casket and a photo from when he was a child.

It was 113 days ago that he was shot by then-Officer Darren Wilson of the Ferguson Police Department.  Like Rosa Parks, he was African-American.

Tamir Rice
That's Tamir Rice.  He was 12 when he died.

It was 9 days ago that he was shot and killed by Officer Timothy Loehmann of the Cleveland Police Department.

Much has changed in the last 59 years.  

In Birmingham, they used fire hoses.

Thursday, November 27, 2014

Because you're lucky

It's Thanksgiving.  Squanto.  Pilgrims in silly hats.  That long table 

Ours was a a small gathering this year, just five of us (and the dog).  We ate well, drank decent wine (there will be more with the leftovers tomorrow, had good conversation, took family photos to send to friends.  (Not posting here, sorry.)

We are I have to say very lucky.  Not so many others.  The poor, the infirm, the homeless. Those in jails and prisons, those living in places and under far harsher than even the worst of the mean streets of greater Cleveland.  

It is worth on this day, thinking about them, remembering that we (and I include in that "we" all of you [any of you?] who read these musings) are all, however much we're inclined to bemoan our circumstance, far better off than so many others.

This is the start (or maybe the heart) of the giving season.  As you go about your business, as you open your mail (snail and e-), you'll likely be bombarded with appeals.  Whatever causes move you, I urge you to be generous.  Because, once again, you are lucky.

Give thanks.  Hug the kids.  Lift a glass.  

Thanks for reading.

Tuesday, November 25, 2014

Close Your Eyes and Pretend Really Hard

Scott Greenfield makes a point, with some regularity, that we shouldn't be in the business of making people stupider.

H.L. Mencken said that "Nobody ever went broke underestimating the intelligence of the American public.

It's not actually P.T. Barnum who said, "There's a sucker born every minute."

And then there's Paul Cassell.  Former federal judge, law professor, scold, and holder of one of the soapboxes at the Volokh Conspiracy.  For several days now, he's been offering a string of misleading claims about the grand jury process and transparency and how when (he always said if, but he meant when) the grand jury did not indict Darren Wilson for the killing of Michael Brown it would be because they did their job properly and concluded that he wasn't actually guilty.  Greenfield's taken him to task for his lies misrepresentation. (Here, for instance.)  So have I (here).  So, I'm sure, have others, but I've been busy and fallen down some on my reading.

Now, of course, we know that the grand jury did what we knew it would do.  No, they said, we're not going to indict Wilson.  And Cassell is back to assure us that they did their job properly and that there's absolutely nothing out of the ordinary that went on.  Specifically, he says this:
A day before the grand jury’s decision was announced, Michael Brown’s family attorney raised the objection that the grand jury process was unfair because it was deviation from the normal process. “When you think about it, if this prosecutor is saying we’re just going to be fair, we’re not going to recommend any charges, that’s different from anything he’s done in his past 28 years with grand juries,” attorney Benjamin Crump argued. It turns out that at least part of this claim is untrue: McCulloch presented to the grand jury the full range of charges, from first degree murder to involuntary manslaughter. The only difference from normal process was, apparently, that the prosecutor did not make any particular recommendation — leaving the issue up to the grand jurors. But it is hard to understand how this had any ultimate bearing on the outcome. Of course, if McCulloch’s recommendation was against filing charges, then he would never have gone to the grand jury in a normal case. And if his recommendation was filing charges, then in the normal course a grand jury (or judge) would have had to review the evidence and would have been thrown out the indictment at the point.
Cassell makes the following points.

  1. Benjamin Crump says that the prosecutor's behavior in this case was unusual because he didn't recommend any charges.
  2. That's not true. 
  3. The only thing unusual is that the prosecutor didn't recommend any charges.

Now, I'm not a former federal judge or a law professor.  But I do know the old theory that if you says something loud enough and long enough people will believe it.  Like the White Queen who managed six impossible things before breakfast.

And then, of course, there's the kicker.  That in the normal case where the prosecutor recommends an indictment to the grand jury that indictment will be dismissed.

Greenfield, Mencken, not-Barnum.  Ah, but Paul Cassell.