Justices Thomas attacks press freedom and right to counsel. ~ Chemerinsky

https://www.latimes.com/opinion/op-ed/la-oe-chemerinsky-supreme-court-clarence-thomas-opinions-20190305-story.html

A Century Later, a Little-Known Mass Hanging of Black Soldiers Still Haunts Us - Progressive.org

A Century Later, a Little-Known Mass Hanging of Black Soldiers Still Haunts Us - Progressive.org: 100 years after one of the least-known and saddest chapters in American history, families of executed black soldiers have petitioned Trump for justice. Sixty-three black soldiers were represented by one lawyer in the largest court martial in U.S. history, the first of three that followed the Houston riot of 1917. In total, 110 men out of 118 were found guilty, and nineteen were sentenced to death by hanging.

In Defense of Weinstein's Lawyer, Ronald Sullivan Jr. - The Atlantic

In Defense of Weinstein's Lawyer, Ronald Sullivan Jr. - The Atlantic
by Conor Friedersdorf

No right is secure: Thomas , Gorsuch and Alito disparage right to counsel set in Gideon v. Wainwright

The breadth of the threat to well established rights is stunning.  In the past few weeks Justice Clarence Thomas has reportedly directly lobbied Senators to place a former clerk on the Court of Appeals for the D.C. Circuit; questioned Times v. Sullivan; disparaged Times v. Sullivan;and declared that Roe v. Wade and Dred Scott v. Sanford are among the worst decisions of the court and the fruit of the same constitutional doctrinal defects.  The targets have expanded to include a joint Thomas/Gorsuch attack on the right to effective counsel beginning with Powell v. Alabama which reversed the nine notorious death sentences in the Scottsboro cases, the injustices of which are described in this contemporaneous ACLU report.

Fifty five years ago the United States Supreme Court appointed a future member Abraham Fortas to argue for Clarence Gideon, an indigent petty thief who demanded a lawyer in a hand-written petition to the high court.  The landmark decision in Gideon v. Wainwright embedded in constitutional doctrine the proposition that if a criminal defendant anywhere in United States faced criminal charges he/she is entitled to appointed counsel if the defendant cannot afford to hire a lawyer.  The principle of adequate representation was embedded in our jurisprudence, if not always in our practice.Last week in Garza v. Idaho the Supreme Court boldly reaffirmed the heart of the Gideon mandate, saying:

The Sixth Amendment guarantees criminal defendants “the right . . . to have the Assistance of Counsel for [their] defence.” The right to counsel includes “‘the right to the effective assistance of counsel.’” Strickland v. Washington, 466 U. S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970)). Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) “that counsel’s representation fell below an objective standard of reasonableness,” 466 U. S., at 687–688, and (2) that any such deficiency was “prejudicial to the defense,” id., at 692. “In certain Sixth Amendment contexts,” however, “prejudice is presumed.”

 But not so fast...Thomas, dissenting, joined by Neil Gorsuch and in part by Samuel Alito, opened an attack on the Court's use of the principle of due process to afford competent counsel to nine African American men facing charges for alleged rapes of two young white women in Alabama. Three trials consumed a single day and all nine were sentenced to death. In an absurd gesture the trial judge had appointed every lawyer in the crowded courtroom to represent the young men in a capital trial about to unfold a week after the men were arrested traveling north in freight cars.   The "Scottsboro Boys" were the subject of a national, then international campaign drawing attention to Jim Crow justice.  But for Justices Thomas and Gorsuch it was the beginning of an unwarranted departure from the original understanding of the Sixth Amendment's declaration of the right to counsel.  Thomas laments:

The Court began shifting direction in 1932, when it suggested that a right to appointed counsel might exist in at least some capital cases, albeit as a right guaranteed by the Due Process Clause. Powell [v. Alabama, 287 U.S. 45 (1932)], supra, at 71. Soon thereafter, the Court held that the Sixth Amendment secures a right to court-appointed counsel in all federal criminal cases. Johnson v. Zerbst, 304 U. S. 458, 462–463 (1938). And in 1963, the Court applied this categorical rule to the States through the Fourteenth Amendment, stating “that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon, supra, at 344. Neither of these opinions attempted to square the expansive rights they recognized with the original meaning of the “right . . . to have the Assistance of Counsel.” Amdt. 6.

 In the Thomas and Gorsuch view things got worse as the Court "recognized the right to effective assistance of counsel,[McMann v. Richardson, 397 U. S. 759, 771 (1970)] and in Strickland v. Washington provided a remedy to those prejudiced by a defense lawyer's incompetence. ... Then, in Strickland [v. Washington, 466 U. S. 668, 687 (1984)], the Court crafted the current standard for evaluating claims of ineffective assistance of counsel. Without discussing the original meaning of the Sixth Amendment...".

Thomas and Gorsuch object to the remedy as lacking constitutional grounding.  Notably they complain that 

Strickland does not explain how the Constitution requires a new trial for violations of any right to counsel....our precedents seek to use the Sixth Amendment right to counsel to achieve an end it is not designed to guarantee. The right to counsel is not an assurance of an error-free trial or even a reliable result. It ensures fairness in a single respect: permitting the accused to employ the services of an attorney.

 The six member majority to whose opinion Thomas, Gorsuch and Alito dissent, had decided, as the Clerk's Syllabus explains that 

[W]ithin the division of labor between defendants and their attorneys, the “ultimate authority” to decide whether to “take an appeal” belongs to the accused. Jones v. Barnes, 463 U. S. 745, 751.  Garza’s attorney rendered deficient performance by not filing a notice of appeal in light of Garza’s clear requests. Given the possibility that a defendant will end up raising claims beyond an appeal waiver’s scope, simply filing a notice of appeal does not necessarily breach a plea agreement. Thus, counsel’s choice to override Garza’s instructions was not a strategic one. In any event, the bare decision whether to appeal is ultimately the defendant’s to make.

 Though framed as an appeal for caution in expanding rights with weak doctrinal foundation, the attack seems to me to be fundamental. Wielding the sword of original understanding the dissenters disparage the idea of a "reliable result".  Only Roberts, Kavanaugh, and Alito votes prevent that attitude from becoming the law of the land.  The Thomas Gorsuch dissent would leave the problem to the tender mercies of state governments.  From north to south many states, e.g. New York and Lousiana have failed to provide an adequate public defender system.

An excellent way to track such issues is to follow Brooklyn Defender @scotthechinger on Twitter.  This recent thread highlights the threat to access to justice posed by the Thomas/Gorsuch/Alito axis.  As with so much else today we are reminded that freedom is a constant struggle.  A luta continua!

The Cohen of Silence Breaks: What to Make of Wednesday’s Testimony - Lawfare

The Lawfare summary of Michael Cohen's day of Testimony before the House Oversight Committee.
The Cohen of Silence Breaks: What to Make of Wednesday’s Testimony - Lawfare: Despite the spectacle, Cohen’s testimony revealed a lot.

A liar, a cheat, a racist,and a conman - Michael Cohen Opening Statement_Oversight Committee_02.27.19.docx

Microsoft Word - Michael Cohen Opening Statement_Oversight Committee_02.27.19.docx

A Harvard Law Professor Is Representing Harvey Weinstein. Students Say This Makes Them Unsafe, Demand His Resignation. - Hit & Run : Reason.com

Harvey Weinstein, the former Hollywood producer and
co-owner of Miramax films has been accused of sexual misconduct by dozens of women.
He is awaiting trial for sexual assault in New York.
RPC 1.2 (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
A Harvard Law Professor Is Representing Harvey Weinstein. Students Say This Makes Them Unsafe, Demand His Resignation. - Hit & Run : Reason.com

Ronald S. Sullivan Jr. is a law professor at Harvard University and faculty dean of Winthrop House, one of the college's 12 residential houses. He was the first black man to serve in such a position, and also directs Harvard's Criminal Justice Institute and Trial Advocacy Workshop. In 2008, he advised the campaign of then-Sen. Barack Obama on criminal justice issues. He represented Michael Brown's family in their suit against the city of Ferguson, Missouri, and his work has led to the release of over 6,000 wrongfully incarcerated people.

You might expect Sullivan to be in good standing with the progressive activist community at Harvard. You would be wrong.

Earlier this month, more than 50 students attended a protest demanding that Sullivan resign his position as dean over alleged #MeToo failings. The Association of Black Harvard Women also wants him gone. "What has been made especially clear is that you have failed us," they wrote in a letter. "You have failed the Black women in this community, not only as one of the few Black Faculty Deans on campus but also as a community leader—someone who we respected and looked to for guidance."

Why Trump's Emergency Declaration is Illegal - Volokh Conspiracy : Reason.com

 Why Trump's Emergency Declaration is Illegal - Volokh Conspiracy : Reason.com: 

by Ilya Somin

The strongest legal argument raised in the various lawsuits against President Trump's attempt to use emergency powers to build his border wall is that declaring an emergency does not authorize him to spend money and condemn private property to build the wall. That's the conventional wisdom among most legal scholars and commentators. But it is also important to recognize that it is illegal to for Trump to declare a "national emergency" over this issue in the first place. That point is important for reasons that go far beyond the the specific case of the border wall. If the president can declare an emergency and tap a vast range of special emergency powers anytime he wants for any reason he wants, that makes a hash of the whole concept of an emergency, raises serious constitutional problems, and creates a dangerous concentration of power in the hands of a single person.

It makes much more sense to interpret the National Emergencies Act as only allowing an emergency declaration in a situation where an emergency actually exists - defined as some sudden crisis that cannot be addressed swiftly enough through ordinary political processes. By that interpretation, the situation at the border doesn't even come close to qualifying.

KEEP READING

Seven MPs leave the U.K.’s Labour party, citing anti-Semitism – ThinkProgress

As the once United Kingdom country walks the plank the British Labor Party has been hobbled by incompetence, narrow-mindedness, and now antisemitism.  Like much of the American white working class, the English working class has been hobbled by the racism ingrained by their years of serving the empire from which they gained table scraps. - gwc
Seven MPs leave the U.K.’s Labour party, citing anti-Semitism – ThinkProgress

Seven members of the United Kingdom’s left-wing Labour party have announced that they are leaving the party, owing, they said, to widespread anti-Semitic sentiment within the party.

One of the departing MPs, Luciana Berger, told reporters that she could not “remain in the party that I have today come to the sickening conclusion is institutionally anti-Semitic.”

The septet of MPs — which in addition to Berger include Chuka Umunna, Chris Leslie, Angela Smith, Mike Gapes, Gavin Shuker and Ann Coffey — have stated their intention to form an independent party, and have called upon other members of the Labour Party to join them.

In recent years, the Labour Party has had to to undergo something of a gut check as the party had continued to be dogged by claims of anti-Semitism within its ranks. Party leader Jeremy Corbyn has himself been called to task on this repeatedly. It’s unclear what, if anything, has been done to root out these elements from the party.

2 Liberal Democrats Are Promoting A Twist On 'Medicare For All' | HuffPost

2 Liberal Democrats Are Promoting A Twist On 'Medicare For All' | HuffPost: It would create a big government plan but keep a role for private insurance.

The legislation, which DeLauro and Schakowsky are calling “Medicare for America,” would create a comprehensive, government-run insurance program that would replace the big existing federal programs as well as the private insurance policies that people today buy on their own. But large employers would get to keep offering private coverage, leaving employees with the choice of sticking with their company plans or moving to the new public option, where they could potentially get much lower premiums and out-of-pocket expenses. 

Like any health care initiative, the DeLauro-Schakowsky bill would entail real and complicated trade-offs.

Ken Starr ~ the witch hunt NYRB

https://www.nybooks.com/articles/2019/03/07/kenneth-starr-hillary-clinton-presumed-guilty/
Sean Wilentz

Tribe: Pelosi has standing to sue Trump

https://www.rawstory.com/2019/02/nancy-pelosi-standing-sue-trump-federal-court-compelling-case-harvard-law-professor/

Pushing women’s issues at the Supreme People’s Court | Supreme People's Court Monitor

Pushing women’s issues at the Supreme People’s Court | Supreme People's Court Monitor: Outside observers reading Chinese official media, including reports on the Supreme People’s Court’s website, need special skills to identify significant developments. 

China: Courts recognize new causes of action for sexual harassment and employment discrimination // Supreme People's Court

China's civil justice system has inched ahead on recognition of women's rights.  The Supreme People's Court 关于增加民事案件案由的通知 (December 12, 2018 No. 344) gave notice to all courts - even the military courts - to recognize two causes of action for 1) disputes regarding right of equal employment opportunity   [平等就业权纠纷] in actions based on personal dignity and 2) for harm due to sexual harassment [性骚扰损害责任] in tort actions involving educational institutions. 

China's legal system is derived from the continental Codes, largely the German Civil Code which was, a century or more ago, imported via Japan.  China lacks a broad, express recognition of personal civil rights as found in the U.S. Civil Rights Act of 1964 specifying freedom from discrimination by race, color, sex, or national origin.   But China  has adopted laws that declare broad personal rights.  The SPC's notice shows it is satisfied that there is an adequate basis in law for the newly recognized employment discrimination and sexual harassment actions.

The SPC presumably grounds its action in the General Principles of Civil Law (2017).  That measure states at Article 109 "[t]he personal liberty and human dignity of a natural person is protected by law. [第一百零九条　自然人的人身自由、人格尊严受法律保护.]  These rights are, in Article 110, specified in language drawn from the 2009 Tort Law to include "life, bodily integrity, health name, reputation, honor, and the freedom to marry. [第一百一十条　自然人享有生命权、身体权、健康权、姓名权、肖像权、名誉权、荣誉权、隐私权、婚姻自主权等权利.]  

The General Principles establish a right of action at Article 120  that if one's "civil law rights and interests are infringed"  there is a "right to demand the tortfeasor bear tort liability".  [第一百二十条　民事权益受到侵害的，被侵权人有权请求侵权人承担侵权责任。]

Similarly the Labor Contract Law (2007) in Article 77 provides that if a worker's legal rights and interests are harmed there is a right to demand the relevant department to handle it according to law or demand arbitration or bring a lawsuit.  [第七十七条　劳动者合法权益受到侵害的，有权要求有关部门依法处理，或者依法申请仲裁、提起诉讼。]

This action assures that Courts will accept filings in such cases.  [China's courts had long stymied change by not accepting for filing cases that did not fit into recognized categories or that pose special management problems.  In 2014 the Communist Party's Central Committee directed that failures to accept cases for filing must change.  A new filing and registration system was adopted by the legislature and a plan went into effect in May 2015.  By December 2016 the Supreme People's court announced great progress had been made in that regard.]

Goldsmith on the emergency

https://www.lawfareblog.com/what-and-isnt-big-deal-trumps-executive-actions-related-border
These are not “whataboutism” points. I am not saying Trump’s emergency proclamation is just like past ones—it is not. I have not yet done a serious enough legal analysis to determine whether what Trump has done is lawful or unlawful. Nor have I done adequate analysis to determine whether Trump’s emergency proclamation combines precedents in ways that are more threatening to the constitutional order than the precedents themselves, though I tentatively do not believe it does. Nor am I saying Trump’s action will or should be upheld by courts

I simply wish to put Trump’s actions in context by emphasizing these points: (1) Congress has delegated enormous power to the president and given him enormous effective discretion about how to spend funds; (2) presidents have for many, many decades viewed these delegations expansively, especially in contexts touching on foreign relations, and in those contexts courts almost always agree; (3) the president’s statutory emergency powers are not materially different from other delegated powers that presidents have construed broadly and that courts have almost always upheld; (4) finding imaginative ways to act to achieve important public policies on which a president was elected, in the face of a recalcitrant Congress, is what modern presidents do, often to celebratory applause. 

William Barr’s Remarkable Non-Commitments About the Mueller Report - Lawfare

Robert Mueller had better continue his patter of reporting via detailed indictments and sentencing memoranda. - gwc
William Barr’s Remarkable Non-Commitments About the Mueller Report - Lawfare
by Jack Goldsmith and Maddie McMahon

Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts – Legal Ethics in Motion

Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts – Legal Ethics in Motion:  
by Michael Zilber, Editor - Legal Ethics in Motion

The Louisiana Supreme Court has disbarred a former Assistant United States Attorney for posting anonymous, online comments about cases being handled by his office.

From November 2007 through March 2012, Sal Perricone, an Assistant United States Attorney for the Eastern District of Louisiana, used five anonymous pseudonyms to post over 2,600 comments on the New Orleans Times-Piscayne website. On 100 to 200 of those posts, Perricone offered his strong opinion on cases with which either he or his office were affiliated. 

In one case that involved the prosecution of police officers over the shooting of unarmed civilians in the aftermath of Hurricane Katrina, Perricone wrote: “NONE of these guys should have ever been given a badge.” The officers were convicted but, the district court judge reversed the police  convictions, in a 129 page opinion that cited “grotesque prosecutorial misconduct,” referring in part to Perricone’s comments. 

In turn, the Office of Disciplinary Counsel filed a formal complaint against Perricone to the Louisiana Bar Disciplinary Board. The Disciplinary Board found that Perricone violated Louisiana Rules of Professional Conduct 1.7(a)(2), 3.6, 3.8(f), 8,4(a), and 8.4(d). Specifically, the Board found that Perriconeacted knowingly and intentionally, and that he had violated duties owed to his clients, his office, the public, and the legal system. The Board also found that Perricone’s misconduct caused actual harm to the perception of the legal profession and the reputation of the United States Attorney Office. On these grounds, the Board recommended Perricone’s disbarment. 

***

Read the full opinion here.

Is Threatening To Publish Bezos' Nude/Lewd Pics Criminal Blackmail? - Volokh Conspiracy : Reason.com

Is Threatening To Publish Bezos' Nude/Lewd Pics Criminal Blackmail? - Volokh Conspiracy : Reason.com: When is a threat to reveal something embarrassing blackmail, and when is it permissible? Plus a special Bill Cosby (but non-sexual-assault) connection.

Yale Law Journal - An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

Torts Today: Yale Law Journal - An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act: Yale Law Journal - An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act by Kate Andrias

ABSTRACT. There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law.

By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes—one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.

AUTHOR. Professor of Law, The University of Michigan Law School. 

John Dingell: My last words for America - The Washington Post

As John Dingell (D-MI), the longest serving member of Congress lay on his death bed - knowing the moment to be just that - he dictated a farewell message to his wife Rep. Deborah Dingell.  Read it.

John Dingell: My last words for America - The Washington Post: February 7, 2019 
Much as I have found Twitter to be a useful means of expression, some occasions merit more than 280 characters.
****

In my life and career, I have often heard it said that so-and-so has real power — as in, “the powerful Wile E. Coyote, chairman of the Capture the Road Runner Committee.”

It’s an expression that has always grated on me. In democratic government, elected officials do not have power. They holdpower — in trust for the people who elected them. If they misuse or abuse that public trust, it is quite properly revoked (the quicker the better).

I never forgot the people who gave me the privilege of representing them. It was a lesson learned at home from my father and mother, and one I have tried to impart to the people I’ve served with and employed over the years.

As I prepare to leave this all behind, I now leave you in control of the greatest nation of mankind and pray God gives you the wisdom to understand the responsibility you hold in your hands.