Saturday, January 30, 2010

At risk: my right to be a KSM juror

Images: U.S. Courthouse, Foley Square, below left; Governor's Island, right

I want to be a juror in the trial of Khalid Shaikh Mohammed.  Like all New Yorkers I think I am  tough on terror.  I watched the twin towers burn with fright that my son might have gone to work early that day.  

But now the professional toughs on terror want to take that opportunity away from me.  South Carolina Senator Lindsey Graham has announced he will introduce legislation to bar civilian trials for the accused 9/11 planners.  Disparagement of our civilian justice system - which people like Rudy Giuliani used to celebrate when the 1993 WTC bombers were convicted - has now become de rigeur among those like him who pose as toughs on terror for Rupert Murdoch's outlets.

The Constitution says that people like me should judge those who violated the peace of our City:

Amendment VI, Constitution of the United States of America

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

"Obama blinked" the New York Daily News said today of the Administration's decision to abandon the plan to try Khalid Shaikh Mohammed and other accused 9/11 planners in downtown Manhattan.  After the police Commissioner Raymond Kelly described security plans that would have disrupted life in lower Manhattan for months, Mayor Michael Bloomberg reversed his stance and opposed the Foley Square venue.  
Don't do me any favors.  I don't mind giving up lunch at my favorite places in Chinatown.  I'll go to Governor's Island or even out of district to Fort Hamilton.  But I will very much mind if I, a citizen of the "state and district wherein the crime (was) committed",  am deprived (by statute or  failure of political nerve) of the chance to judge those who are accused of sending suicide commandos to destroy the towers and the thousands who were there that dreadful morning.  I want to make sure they have got the right guys.  And if the defendants are guilty I want the privilege of passing judgment on them.

Friday, January 29, 2010

Obama with the Republicans

Amazing event.  It is the Obama equivalent of the Prime Minister's Q&A at Westminster - but here he meets only with the the opposition.
The link to CSPAN for the whole event is HERE and HERE at
Best line: "The way you guys went after this you would think this was some sort of Bolshevik plot...We have got to close the gap between rhetoric and reality."

Rhetoric: James Fallows annotates the SOTU address

James Fallows
James Fallows, the prolific journalist and National Book Award winner (for National Defense - 1981) is an acute student of  Presidential rhetoric.  He was Jimmy Carter's chief speechwriter - at the age of 26 - like Jon Favreau, the Holy Cross grad who is Barack Obama's chief speechwriter.

Fallows has published his annotated version of President Barack Obama's 2010 State of the Union address.  The full annotated text is HERE.  An excerpt follows:
One year ago, I took office amid two wars, an economy rocked by a severe recession, a financial system on the verge of collapse, and a government deeply in debt. Experts from across the political spectrum warned that if we did not act, we might face a second depression. So we acted -- immediately and aggressively. And one year later, the worst of the storm has passed.  
But the devastation remains. One in 10 Americans still cannot find work. Many businesses have shuttered. Home values have declined. Small towns and rural communities have been hit especially hard. And for those who'd already known poverty, life has become that much harder.

Thursday, January 28, 2010

Obama's shout out to the Supreme Court

My favourite moment in the bloom is off the rose State of the Union address was when President Obama departed from the conventional veneration of Supreme Court Justices as if they were vestal virgins guarding the Republic.  Umpires calling balls and strikes John Roberts claimed in his confirmation hearings - denying the obvious ideological divides that often determine outcomes.

Every first year law student in America is steeped in the contrary idea.  The dominant perspective - Legal Realism -  takes its cue from Oliver Wendell Holmes, Jr., who in his famous 1881 lectures The Common Law wrote
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.
I don't think any President has confronted the Justices this way.  Of course Al Gore did not get the chance.  Obama, face to face, bluntly if impotently said:
It's time to put strict limits on the contributions that lobbyists give to candidates for federal office. Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong. 
Impotent, because, as I wrote last week, Justice Kennedy warned the Congress that the Court majority would not be reticent about overturning legislation its majority felt incompatible with its view of the Constitution.  Their view was simple: artificial persons (corporations) are like real people.  They have rights including the right to speak anytime anyplace about whatever they want (constrained minimally by the duty not to waste corporate assets).   Justice Kennedy declared for the 5-4 majority:
Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfer-ing with our duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
 As Rutgers-Camden law professor Robert Williams said of legislation - one day it's the law of the land, the next moment it's waste paper.

Tuesday, January 26, 2010

Looking backwards - to the Lincoln Memorial - January 19, 2009 - Janteenth

I expect tomorrow night's State of the Union address to be a downer.   Feeling  like Van Morrison singing There Stands the Glass, lamenting an old, lost flame, I went back to look at the photos I took on Inauguration Day 2009.  The moment of pride and joy is captured in the faces in the crowd at the Lincoln Memorial.  Have a look HERE at mine and HERE at Susan Sermoneta's photos of that day - Janteenth.

The dangers of getting to 60

Images: Senators Edward Brook (R-MA), Charles Percy (R-IL), Jacob Javits (R-NY), Charles Mathias (R-MD)

Not age.  60 votes in the Senate.

On November 8, 2008! I posted this message on Talking Points Memo under the headline The Filibuster-proof Senate Trap

60 democratic votes in the Senate is a potential trap when we have a Democratic majority in both houses.

What we want to do is move the center left.
We have just succeeded that way.
We need to rehabilitate the Republican center, thereby isolating the right.
We need to focus on bringing Republicans with us.
The super majority required to close debate in the Senate is thus a valuable tool because it requires that we work to broaden areas of agreement and of respectful disagreement.
In other words we want to work with the party of Lincoln against the party of DeLay.
Two days before that, under the headline cock-eyed optimist, I posted this:

“I think this is going to be very liberating for Republicans in Congress.”
With Democrats firmly in control of both chambers of CongressRepublicans have a chance “to get back on offense.”
- Sen. John Thune, a South Dakotan who is eyeing a leadership role in the new Congress and is seen by some in the party as presidential timber.  

Now we haven't done too well in separating the Republican center (such as it is) from the right.  Of course all that remains that could be called centrist Republican is Olympia Snowe, Susan Collins, and Joseph Lieberman. And a gaggle of "centrist" democrats like Ben Nelson, Blanche Lincoln and Mary Landrieu.
But, as Justice William Brennan said, the most important ability of a Supreme Court judge is the ability to count to five.  And as Louise Halper used to say the head of the Junta is the last guy to sign on with the coup planners.  All of which is to say that the deciding vote always has the most leverage.
Barack Obama hoped to restore an era which he personally never saw: a day when Charles Percy, Edward Brooke, Charles Matthias, and Jacob Javits were Republican senators for whom a Democrat could vote without pinching the nostrils. What is missing this time is the key to success in negotiations:  the desire to reach an agreement.
Unfortunately Republicans found John Bethune and the tea-baggers to be liberators, and lost any desire to agree.

Sunday, January 24, 2010

Pass the Senate Bill, Leading Health Care Experts say to House leaders

Clockwise from left: Nancy Pelosi, Charles Rangel, Henry Waxman, George Miller
They are the intellectual leaders of the health care reform movement - historian Paul Starr (Princeton),  public health policy analyst Ronald Bayer (Columbia), political scientist Jacob Hacker (Yale), and union leader Celia Weislo (1199/SEIU) among four dozen others.  The message:  Pass the Senate bill, work out kinks via the reconciliation process (which needs only 50 votes plus the Veep's.  Otherwise millions more will become uninsured as health care costs continue to rise and insurance premiums grow higher.
Abandoning health care reform--the signature political issue of this administration--would send a message that Democrats are incapable of governing and lead to massive losses in the 2010 election, possibly even in 2012. Such a retreat would also abandon the chance to achieve reforms that millions of Americans across the political spectrum desperately need in these difficult times. Now is the moment for calm and resolute leadership, pressing on toward the goal now within sight.
The full text, with commentary is available at Talking Points Memo HERE.

Filibuster Update

Thanks to James Fallows at The Atlantic (again) for this update, explaining the wikipedia graph above

Saturday, January 23, 2010

60 is the new 50: House Resolution 1018 calls on Senate for change in filibuster rule

Making the point that the Constitutional presumption was that the Senate would function by majority rule (the V.P. is the tie-breaker),  and that the 60% super-majority  Rule 22 requires to close debate frustrates majority rule,  27 Members of Congress (including Jerrold Nadler - Fordham Law graduate) have moved that the House call on the Senate to "adjust its rules".  
Sen. Harkin has proposed a declining super majority: 1st vote 60 vote, 2 days later vote again, 58, vote, declining further in successive votes.  
I suppose it all has a snowball's chance in hell, but there are some valuable public points to make:
* the Bush tax cuts - of huge consequence - avoided filibuster by using the budget reconciliation rule - which requires only a majority vote
* the filibuster used to be rare (mainly used to block civil right measures by southern Democrats) and now it is the norm, thanks to the Republican decision to pursue a strategy of obstruction rather than negotiation.
HR 1018
.  Whereas the procedural filibuster rule of the Senate effectively removes the Vice President’s constitutional right to cast a vote when the Senate is equally divided; 
Whereas the Senate’s filibuster rule, Rule 22, extends the power of individual Senators and the minority in the Senate beyond the power intended by the Constitution;
Whereas the Constitution does not contemplate in letter or spirit allowing a single member of Congress in either house, or the party in the minority in either house, to prevent votes from being taken on bills and amendments; and
Whereas the Senate’s filibuster rule prevents the majority from governing and, therefore, distorts the outcome of elections: Now, therefore, be it
    Resolved, That the House of Representatives requests the Senate to adjust its rules to reflect the intent of the framers of the Constitution by amending the Senate’s filibuster rule, Rule 22, to facilitate the consideration of bills and amendments.

Friday, January 22, 2010

Wood v. Allen - another ineffectiveness case

In the current term of the United States Supreme Court Holly Wood is the fifth capital defendant to challenge his death sentence on the ground that he had  the ineffective assistance of counsel.  Only one succeeded - George Porter, a multiple murderer whom the Justices spared because he had the misfortune (30 years before he killed), as an already deeply disturbed young man, to be engaged in heavy combat during the Korean War.  

Holly Wood, a murderer who exhibits "significantly subaverage general intellectual functioning", failed in his claim.  In the  Wood v. Allen majority opinion authored by Sonia Sotomayor [over the dissent of Justice John Paul Stevens (Kennedy joining)] the Court declared that

Reviewing all of the evidence, we agree with the State [of Alabama] that even if it is debatable, it is not unreasonable to conclude that, after reviewing the Kirkland report, counsel made a strategic decision not to inquire further into the information contained in the report about Wood’s mental deficiencies and not to present to the jury such information as counsel already possessed about these deficiencies.
Like the other three aggravated murderers whom the Supreme Court did not spare this term Wood was represented by a lawyer whose skills and judgment left much to be desired.  But since the court found the representation met the constitutional minimum the death sentences stand.  

Justice Stevens, however, concluded
"There is a world of difference between a decision not to introduce evidence at the guilt phase of a trial and a failure to investigate mitigating evidence that might be admissible at the penalty phase… the only reasonable factual conclusion I can draw from this record is that counsel’s decision to do so was the result of inattention and neglect."

I cannot but note the contrast between these defendants and those in New Jersey who were represented by the statewide Office of the Public Defender, none of whose clients was executed, in the twenty five years between the 1982 restoration of capital punishment and its 2007 legislative repeal.  

The Public Defender's efforts were matched by the New Jersey Supreme Court, which believed death is different and afforded capital defendants what Associate Justice Alan Handler called "super due process".  I asked in my introductory essay to the symposium which examined the repeal if New Jersey would be a Herald of Change.  Thus far the United States Supreme Court has not heard the trumpet's call.

The complete file on the Wood case on Scotus Wiki can be found HERE.

The Least Dangerous Branch?

Citizens United sacramento Anthony Kennedy ...
Citizens United v. Federal Election Commission will go down in infamy - unless we all get completely rolled over by the corporate steamrollers a 5 member majority of the Supreme Court has licensed to hit the roads.

The White House promptly declared:
With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington--while undermining the influence of average Americans who make small contributions to support their preferred candidates.
That's why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.
They are going to "talk with bi-partisan Congressional leaders".  Like who?  John McCain, I suppose, whose campaign is flooding Arizona with robo-calls from Scott Brown - the new Anti-Kennedy Senator from Massachusetts.  Certainly not Mitch McConnell - Minority Leader and relentless opponent of campaign finance reform.  In fact who among the Republican representatives does not think that unrestricted corporate "independent" spending will benefit Republican candidates much more than the trickle of union spending will benefit Democrats.

Hope is hard to find these days.  Obama's vision of hope dissolved into earnest pretty please and let's make a deal - which has been falling on deaf ears.  In any event it is hard to see that anything other than a change in the court's composition will accomplish much.  A change that would likely have to await  the now less likely event of a second Obama term.  The language of Justice Anthony Kennedy, embracing with Hugo Black-like absolutism free speech for corporations makes clear that the majority will not hesitate to strike down any restrictions of which they (and their acolytes in the District and Circuit Courts) disapprove:

Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfer-ing with our duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

Wednesday, January 20, 2010

The Second Coming - thoughts on the Republican resurgence

A year ago we were in Washington for the inauguration honeymoon.  The atmosphere was of harmony and hope.  Now we have a voter rebellion taking from the Democrats the seat that Ted Kennedy held .  Massachusetts - which Obama  captured  by 26 % a year ago!  Stung by a guy who posed nude in Cosmo, who has a pickup truck, and thinks waterboarding is OK.  The knots in my stomach are tight.  Torn between blaming the voters, the candidate, and the President for not knowing how to be a populist in a populist moment.

Barack Obama is a conciliator.  That has been clear from the first.  The hope was that his thoughtfulness could transform the atmosphere.  Even I joined that hope - though I expected he would be subject to the same kind of vicious attacks as Bill and Hillary suffered.  And they came.

Obama’s instinct to compromise has hobbled him.  He wanted to be practical - so he didn’t ask for too much.  But anything was too much for a Republican Party that reminds me of  Yeats.  The center cannot hold, the best lack all conviction, and the worst are full of passionate intensity.

TURNING and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Surely some revelation is at hand;
Surely the Second Coming is at hand.
The Second Coming! Hardly are those words out
When a vast image out of Spiritus Mundi
Troubles my sight: somewhere in sands of the desert
A shape with lion body and the head of a man,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Reel shadows of the indignant desert birds.
The darkness drops again; but now I know
That twenty centuries of stony sleep
Were vexed to nightmare by a rocking cradle,
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born? 

William Butler Yeats

Jon Stewart on the night they buried Ted Kennedy

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Tuesday, January 19, 2010

Senator Menendez - making sense of Massachusetts

Democratic Senatorial Campaign Committee Chairman Robert Menendez (DNJ) just issued the following statement regarding the special election in Massachusetts. Here's the full text.
I have no interest in sugar coating what happened in Massachusetts. There is a lot of anxiety in the country right now. Americans are understandably impatient. The truth is Democrats understand the economic anger voters feel, that's in large part why we did well in 2006 and 2008.
In the days ahead, we will sort through the lessons of Massachusetts: the need to redouble our efforts on the economy, the need to show that our commitment to real change is as powerful as it was in 2008, and the reality that we cannot take a single thing for granted and cannot afford even a second of complacency.
We must be aggressive in defining our opponents and framing the choice voters face. We cannot be timid about staking out our ground and we must be strong in reminding voters the cost of what the Republicans did on their watch and that they remain on the side of Wall Street, and the special interests.
But it is important to keep in mind that today's special election in Massachusetts was just that: a special election, with a whole host of circumstances that are unique. I would caution against taking a single unique election and extrapolating what it means for the midterms ten months away.

Massachusetts voters fail in Senate race

“I’m hoping that it gives a message to the country,” said Marlene Connolly, 73, of North Andover, a lifelong Democrat who said she cast her first vote for a Republican on Tuesday. “I think if Massachusetts puts Brown in, it’s a message of ‘that’s enough.’ Let’s stop the giveaways and let’s get jobs going.”
Appalling is what I have to say for the voters of Massachusetts.  To replace Ted Kennedy with a militant opponent of health care reform?  What motivates them?  We have health insurance - why should we pay for them? What kept minority turnout low?  Short-sightedness.  Labor?  More of the same. Democrats on the left whose complaint was the health care bill didn't go far enough.  And didn't vote in high numbers?

Whatever it is, the voters lost the election, set the country back, energized the wrong forces.  Those who call themselves progressive need to grow up and recognize how complicated it all is, how fearful people are, and re-commit themselves to the fight.  Did they think change would be easy?

On the big question: the House should approve the Senate bill.  Let the majority rule.

Tuesday, January 12, 2010

Most Federal Clerkship Applicants are law grads now

1,200 jobs - 400,000 applications.  That is the tangle created by the ease of online application for federal judicial clerkships - and the disruption of the market for high-scoring law school graduates, according to a recent article in the New Jersey Law Journal.  Most applicants now are graduates - not students in their final year.

One reaction of judges is to withdraw from the OSCAR system, according to Judge Nicholas Garaufis, who heads up the federal judiciary's OSCAR committee and sits in the Eastern District of New York.

Garaufis is one of a growing numbers of federal judges who no longer hires clerks directly out of law school. His clerks come from the ranks of young lawyers who have worked in firms. Garaufis says that restricting his hiring to experienced lawyers reduces the pile of resumes to be reviewed.
The OSCAR system allows a judge to sort applications by law school, law journal experience, specific areas of legal experience and numerous other criteria.
Even so, it's hard to get a sense of an applicant's suitability from raw data, says U.S. District Judge Dennis Cavanaugh in Newark. Even a valedictorian might not be the best person to hire, he says.
He says he can't come close to reviewing all 1,000 or so resumes he receives. Instead, he finds many of his clerks from recommendations and also has selected from a number of judicial interns who have shown their mettle.
Noel Hillman, one of six federal judges in New Jersey who do not accept online applications, says he has cut the number of applications from 1,500 to about 500 by accepting mail queries only.
Cavanaugh and Hillman are examples of judges who are benefiting from the emergence of practitioners as applicants on the district court level.
One of Cavanaugh's current clerks is a former law firm associate. And Hillman has no 2009 graduates among his three clerks. One has held the job permanently since 2006, one clerked for a year for another judge, and the other had a prior stint as a clerk and had worked in private practice.

Sunday, January 10, 2010

National Catholic Reporter: Health Care Bill Must Pass

Catholic swing voters, backed by the U.S. Conference of Catholic Bishops, have upped the ante on health care: not just neutrality but no complicity on abortion has become their demand.  I generally mistrust the "right to life" movement, seeing it as a wedge issue of the right - like the racism and militarism that have driven the post-Civil Rights sun belt Republican "southern strategy" the past 40 years.  But it is clearly more than that.  A religion with rituals of birth and resurrection at its center certainly will place life on the highest pedestal. 

So there has been a great tension among Catholics: can we advance health care and reduce abortion at the same time? 
The editors of National Catholic Reporter think so.  
The Health Care Bill Must Pass, they say.

Friday, January 8, 2010

Krugman: Keeping it simple on healthcare

KISS, as we used to say about building your case for trial:

One health care reform, indivisible

by Paul Krugman
(so nice he won the Nobel as the Chicago School sinks into the dustbin, after incalculable damage to the economies of the world - not to mention their desiccation of legal theory. -gwc)
Jonathan Chait reads Peggy Noonan, so I don’t have to:
The public in 2009 would have been happy to see a simple bill that mandated insurance companies offer coverage without respect to previous medical conditions. The administration could have had that—and the victory of it—last winter.
Instead, they were greedy for glory.
Chait explains why this is nonsense. But let me explain at fuller length, because this is one of the great misunderstood keys to the whole health care debate.
Start with the proposition that we don’t want our fellow citizens denied coverage because of preexisting conditions — which is a very popular position, so much so that even conservatives generally share it, or at least pretend to.
So why not just impose community rating — no discrimination based on medical history?
Well, the answer, backed up by lots of real-world experience, is that this leads to an adverse-selection death spiral: healthy people choose to go uninsured until they get sick, leading to a poor risk pool, leading to high premiums, leading even more healthy people dropping out.
So you have to back community rating up with an individual mandate: people must be required to purchase insurance even if they don’t currently think they need it.
But what if they can’t afford insurance? Well, you have to have subsidies that cover part of premiums for lower-income Americans.
In short, you end up with the health care bill that’s about to get enacted. There’s hardly anything arbitrary about the structure: once the decision was made to rely on private insurers rather than a single-payer system — and look, single-payer wasn’t going to happen — it had to be more or less what we’re getting. It wasn’t about ideology, or greediness, it was about making the thing work.
from Paul Krugman's blog The Conscience of a Liberal,  New York Times online, January 8, 2010

Thursday, January 7, 2010

Ineffectiveness of Counsel: 4 Capital Cases - Coherence or Incoherence?

Four capital cases - each a gruesome crime - presenting ineffective assistance of counsel claims - have been decided (three without without argument)  by the U.S. Supreme Court. In two the death penalty is reinstated - in the third it is vacated.

Looking at the cases through the narrow lens it set in the landmark case Strickland v. Washington, 466 U.S. 668 (1984) the Court uses the harmless error approach.  The Court asks not whether the sentence is just - but whether the defense lawyers did enough to meet the constitutional minimum required by its understanding of the 6th Amendment.  It then asks whether an "error by counsel, even if professionally unreasonable" had an "effect on the judgment", that is the defendant must "affirmatively prove prejudice".  

In a larger frame questions arise:

What principle, if any, unites the three decisions?
Or do they reflect the biases, passions, and prejudices of the nine?
Is the Court improperly denying the right to a fair trial with a competent defense lawyer, interposing its own judgment for that of a jury?

Are the practice guidelines of the American Bar Association entitled to any particular weight - or do they reflect the views of an excessively protective minority as Justice Alito's concurrence in Van Hook seems to suggest?

Does service in combat really warrant decisive consideration as a mitigating factor when 40 years later a gruesome crime is committed, as the Court's opinion in Porter says it does?

In the first, Van Hook, the killer was the alcoholic child of abusive parents, who had been expelled from the military. The Court reversed the 6th Circuit Court of Appeals and reinstated the death penalty.

Is the court right to disregard the ABA's much more stringent practice guidelines developed after Van Hook's conviction? Is Van Hook's waiver of a jury trial irrelevant here?

In Wong v. Belmontes the killer experienced a religious conversion after the offense and made positive contributions to a youth rehabilitation program - but at the time of trial only evidence that mitigated the severity of the crime could be considered by the jury under California law. The Court reversed the 9th Circuit and reinstated the death sentence.

Is Justice Stevens right that since the evidence was inadmissible at the time in California there was no prejudice?

In Porter v. McCollum the court was moved to vacate the 11th Circuit decision which upheld the death sentence because George Porter, who shot his ex-girlfriend and her boyfriend,
is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.
Is the fact that Porter's "horrible" family life - which led him to join the Army at 17 - was compounded by the ordeal of combat so important that it should be given decisive weight in mitigation of a crime that occurred 35 years later - as the Supreme Court does?

Are there really any consistent standards at work here?

Smith, Warden v. Spisak
Decided January 12, 2009
Merits Briefs

The Supreme Court unanimously reversed the 6th Circuit and reinstated the death sentence of Frank G. Spisak, Jr. (who has been in jail over a quarter century for three murders committed at Cleveland State University).  Spisak's attorney had argued at closing, according to Justice Stevens's concurring opinion:
“Sympathy, of course, is not part of your consideration. And even if it was, certainly, don’t look to himfor sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at Frank Spisak, don’t look for good deeds, because he has done none. Don’t look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different.

And then the strategy really broke down: At no point did counsel endeavor to direct his negative statementsabout his client toward an express appeal for leniency. On the contrary, counsel concluded by telling the jury that “whatever you do, we are going to be proud of you,” which I take to mean that, in counsel’s view, “either outcome, death or life, would be a valid conclusion”.
Leading trial lawyers and teachers of trial advocacy (including Steven Lubet, Michael Tigar, and Herbert J. Stern) wrote as amicus curiae:

Amici are unsurprised that the Sixth Circuit commented that the same argument, if made by a prosecutor, “would likely have been grounds for a successful prosecutorial misconduct claim.” Spisak v. Mitchell, 465 F.3d 684, 706 (6th Cir. 2006)... See generally JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT §§ 9.14-9.15, 9.19, 9.21 (3d ed. 2003) (typical prosecutorial abuses in a closing argument include “appeals to the * * * prejudices of the jury,” “[a]ttacking the defendant—name calling,” and “express[ing] his personal opinion as to the * * * guilt of the defendant”).

If a fair trial requires the effective assistance of counsel, which includes zealous advocacy for one's client, not being a "friend of the court" and Spisak didn't get such a defense, wasn't the 6th Circuit right - and the Supreme Court wrong - that the courts have failed in their constitutional duty to assure a fair trial?

Wednesday, January 6, 2010

Securities Reform: Dodd Measure Would Restore Aiding & Abetting Liability

Last September Sen. Arlen Specter introduced S. 1551 which would overturn the Supreme Court's Stone Ridge Investments decision which barred "aiding and abetting" liability in securities fraud cases, as we reported here. Specter held hearings but as a free-standing measure it had little chance of passage.

K. Stewart Evans of Pepper Hamilton reports that [retiring] Sen. Christopher J. Dodd (D-Conn.)’s draft Restoring American Financial Stability Act of 2009 contains a provision (page 795 of 1,136) that amends Section 21D of the Securities Exchange Act of 1934 (15 U.S.C. 78u-4) to overruleStoneridge. It provides:

(g) PRIVATE CIVIL ACTIONS.—For purposes of any private civil action implied under this title, any person that knowingly or recklessly provides substantial assistance to another person in violation of this title, or of any rule or regulation issued under this title, shall be deemed to be in violation of this title to the same extent as the person to whom such assistance is provided.

Evans laments that

the proposed amendment 15 U.S.C. 78u-4 would allow plaintiffs to pursue secondary actors such as accountants, underwriters, lawyers, customers, and suppliers without having to prove they relied upon their statements or representations when purchasing or selling securities.

In an action under Sec. 10(b)(5) of the Securities and Exchange Commission Act a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.See Dura Pharms., Inc. v. Broudo, 544 U.S. 336 (2005)."

Evans's alarm is overstated because the reliance element was eased by the Supreme Court in Basic v. Levinson, 485 U.S. 224 (1988). the Court said

“Requiring a plaintiff to show a speculative state of facts, i.e., how he would have acted if material information had been disclosed, or if the misrepresentation had not been made, would place an unnecessarily unrealistic evidentiary burden on the Rule 10b-5 plaintiff who has traded on an impersonal market.”

Thanks to Kevin LaCroix, D & O Diary for the update. Kevin's latest is always available on my blogroll on the right.

Friday, January 1, 2010

Linda Greenhouse: Judges and the political art of compromise

Published: December 31, 2009
Why it's unfortunate that more politicians don't become judges.

A Place in Between - Russ Hoyle on Rory Stewart's stance on Obama's Afghan Surge

above: Rory Stewart - Kabul; below: Russ Hoyle - NYC

Rory Stewart is a wunderkind who has managed to find a place neither plainly right nor left without being centrist. He is a darling of the left as the New York Review of Books' in-house commentator on Iraq (where he served as colonial provincial governor for the Coalition Provisional Authority - writing Prince of the Marshes), and Afghanistan (where his legendary solo walk in 2002 yielded The Places in Between). Yet he has also appealed to the political right. He is trekking the remote Penrith and The Border constituency as the Conservative Party candidate for House of Commons. He is now Director of the Carr Center at Harvard's Kennedy School of Government. Stewart's recent opinion pieces include "Afghanistan - a war we cannot win" in the London Telegraph, July 10, 2009.

Russ Hoyle, guest writer and veteran editor, is the author of Going to War - a history of how the Bush-Cheney administration drove the country to invade Iraq on premises all now acknowledge were, to be charitable, factually incorrect.

I have determined that it is in our vital national interest to send an additional 30,000 US troops to Afghanistan. After 18 months, our troops will begin to come home.
- Barack Obama, West Point, December 1, 2009

I felt as though I had come to hear a fifteenth-century scholastic and found myself suddenly encountering Erasmus: someone not quite free of the peculiarities of the old way, and therefore haunted by its elisions, omissions, and contradictions; but already anticipating a reformation.
Obama's central—and revolutionary—claim is that our responsibility, our means, and our interests are finite in Afghanistan. As he says, "we can't simply afford to ignore the price of these wars." Instead of pursuing an Afghan policy for existential reasons—doing "whatever it takes" and "whatever it costs"—we should accept that there is a limit on what we can do. And we don't have a moral obligation to do what we cannot do.
- Rory Stewart, New York Review of Books, January 14, 2010

For a guy who's been contemptuous of military action in Afghanistan, utterly dismissive of counterinsurgency, and whose opening six paragraphs are at best idiosyncratic and hard to figure, I find "Afghanistan - What Could Work" - Rory Stewart's new New York Review of Books essay to be a hard right lurch from the left that lands him in moderate, pro-Obama territory.

In the larger political circus, it may also be a measure of how effectively Obama's Afghan policy has mollified the Democratic left, at least for now.

Perhaps more than anything else, Stewart is accommodating himself to the reality that Obama's Afghan policy has gotten at least tepid approval from the policy world. The essay appears to be his bid, as the director of the Carr Center at Harvard's Kennedy School of Government, to come in from the cold and position himself as a serious analyst among the policy-making elite, using his long critical stance to bolster the persuasiveness of his newly conciliatory views.

Stewart sees Obama's view of limited U.S. means, interest, and responsibility in Afghanistan as "revolutionary" and appears to mean it. Obama, in his view, has avoided key traps, most importantly, not using the language of counterinsurgency, which allows him freedom from its strictures (such as the 1-counterinsurgent-for-every-50-population rule), and avoiding Bushesque cliches like "defeat is not an option" or "victory whatever the cost."

Though true enough, these seem to me windy abstractions that are largely meaningless except to allow Stewart to maneuver around his own objections to the U..S. escalation of armed force. He more or less winds up embracing Obama's policy as holding out the possibility of "the responsible exercise of limited power and knowledge in concurrent situations of radical uncertainty" (pg. 63, col.3), abetted by smart regional diplomacy -- which this former British diplomatic officer (and artillery officer) always has been comfortable with. Born in Hong Kong, his “smart imperialist” roots run deep.

In short, Stewart has twisted his antiwar views like a pretzel to come up with a position essentially agreeing with Obama's escalation, which IS counterinsurgency, IS nationbuilding, DOES link Afghanistan and Pakistan, and, as Stewart clearly grasps, WILL take a helluva lot longer than 18 months -- but probably without further escalation.

That, at least, is what Obama is gambling on, and, because of what he sees as Obama's careful but probably as-yet incomplete articulation of the policy, Stewart pretty much buys it hook, line, and sinker.

- Russ Hoyle
January 1, 2010