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Call For Papers: National Security Leak Prosecutions

The Association of American Law Schools Section on National Security Law is sponsoring a competition for papers on the topic of national security leak prosecutions in connection with its program at AALS in January. The winning piece will be published in the Journal of National Security Law and Policy and the author will be included on the panel itself. Three page abstracts are due September 5. The competition appears to be open only to law faculty. The Call for Papers is posted at:
http://www.wfu.edu/%7Echesner/NationalSecurityLaw/CallForPapers.pdf.

Posted by Dan_Filler at 03:57 PM | Comments (0) | TrackBack

It's all fun and games until someone dreams about Orin Kerr.

Today ends my guest blogging stint here on concurringops., and I thank my hosts for having me. (I also thank Bill Sjostrom and his truthonthemarket posse for allowing me to cut my teeth guest-posting there. And, to that end, I thank Gordon Smith, Christine, and Vic for being the first to allow me to dip my toes in the blogging pool with Disney blogging.)

Allow me to leave with a few observations:
1. This blogging business is not easy (for me). Kudos to the bloggers here and all over the 'net for churning out some valuable reading. Blogging is incredibly time-consuming, in order to do well (so I am told).
2. To that end, I apologize to those of you who replied to some of my threads but never received a personal response. I am very sorry - I appreciated all of the comments, and my inability to respond to everything has nothing to do with the substance or quality of the comments.
3. To *that* end, blogging strikes me as a lot like waitressing - waitressing was by far the hardest job I have ever had in my life. The average waitress is, at any given time, juggling about 18 different tasks, all of which are time pressured. Moreover, people *care* about what their waitress is doing, such that mistakes are noticed. You can't just spill a tiramisu accidentally on a guest and walk away. (Ask me how I know.) One of the worst aspects of the waitressing job is going home at night and *dreaming* about waitressing and all of the things you did wrong that evening. "Oh, I forgot to refill that fellow's Coke" and "Ohmygosh - that redheaded lady on Table 24 never got her extra dish of ranch dressing with her fries" and "I dropped the *whole* carafe of red wine - I can't *believe* that I did that."
It is for this reason that I knew I was in trouble when I started dreaming about blogging. Indeed, last weekend, I had a dream about a blogging conference, at which I met Orin Kerr. Mind you, I don't know Orin Kerr, I have never spoken with him, I have never spoken about him, I have never e-mailed him, I would not know him if I crashed into him on the street, and he was never even on my radar screen until I started blogging. But now I have dreams about blogging conferences and prolific bloggers, and those sorts of odd-ball dreams just solidify my belief that I do not have the mental stamina to be a Bainbridge-esque blogger.
4. That said, if I can finish in the next couple of hours the paper I am currently grinding to finish, I might whip out one last concurringops post on "sex for money." I have been sitting on this "sex for money" post for quite some time, because I am not quite sure what sort of a reception a "sex for money" post would get.
5. Speaking of which, I would like to thank God for giving me the strength to stay away from this train wreck. A younger Nowicki would have jumped into the fracas. This old and tired Nowicki finally knows enough to stay away from things like that and instead spend her time trying to analyze perhaps meaningless data.
6. For those of you who are still reading, you will be delighted to know that my next iteration of the "Nowicki Not-in-Good-Faith" manifesto will (a) have graphics (thanks to my good friend Benjamin Nelson) and (b) have a deconstructionist and Sartre discussion. To that end, I know very little about either Sartre or the deconstructionists, so, if you ever run out of things to think about, think about both of those things, and e-mail to me your thoughts (enowicki- at - richmond - dot- edu).

Posted by Elizabeth_Nowicki at 02:17 PM | Comments (13) | TrackBack

Green on Hamdan (Part II): Who's the Greatest Clerk Ever?

We've invited my colleague, Temple Professor Craig Green, to comment for us on Hamdan. (More introduction here.)

He has provided two different posts for us. Here is the second:

John Paul Stevens: Best Law Clerk Ever

One “lighter” note about Hamdan.

Recently, a few folks (i.e., John Ferren, Joseph Thai, Diane Amman (74 Fordham L.R.), and li’l old me ) have struggled to draw attention to Wiley Rutledge, for whom Stevens clerked on the Court many years ago. Rutledge confronted lots of “executive detention” issues in World War II, and that experience profoundly affected the pre-Justice Stevens.

Before yesterday, the most remarkable episode in this intergenerational overlap was the fact that Stevens wrote the Rasul majority – extending habeas jurisdiction to GTMO detainees – which vindicated a Rutledge dissent that law-clerk Stevens helped draft almost sixty years earlier. Pretty crazy right?

Well, we now know that the beat goes on. The most “famous” opinion Rutledge ever wrote (no smirking please) was a dissent attacking General Yamashita’s conviction before a procedurally flawed military commission. Yesterday, Stevens and the Court overturned that precedent almost casually. One minute, Stevens explained that Yamashita “has been seriously undermined by post-World War II developments” (not including any S.Ct. decisions, mind you). The next, the “notorious” Yamashita decision “has been stripped of its precedential value.” Just like that.

I think future generations won’t fully appreciate what Stevens accomplished in Hamdan, at least till the conference notes come out. The case was extraordinarily hard, and Stevens assigned himself the opinion, despite knowing that: (i) very talented dissenters would level a slew of pretty good arguments against him, and (ii) Kennedy’s vote has not proven, shall we say, 100% reliable in such cases. Stevens had to be strong enough to fend off the dissents, but not too strong to hold a possibly wobbly fifth vote.

In my own melodramatic way, i think Stevens’s success in Hamdan represents his most important work in thirty years of distinguished service at the Court. The passage of time, combined with the normative power of the actual, may lead us to someday forget how unexpected, even astonishing, Stevens’s accomplishment is. But one may be sure that Rutledge and his generation would not. Never before has a Supreme Court clerk succeeded in converting his former boss’s dissents to majority opinions – much less with such dramatic effect. So let’s celebrate for JPS – the greatest law clerk in U.S. history. Then we’ll just have to wait to see if Chief Justice Roberts gets his own shot at the title . . .

Posted by hoffman at 12:01 PM | Comments (4) | TrackBack

Green on Hamdan (Part I): Who's Afraid of the War on Terror?

We've invited my colleague, Temple Professor Craig Green, to comment for us on Hamdan. Craig has recently written an article on Wiley Rutledge, Executive Detention, and Judicial Conscience at War, and is currently working on a project titled Repressing Erie's Myth. He has provided two different posts for us. Here is the first:

Who's Afraid of the War on Terror?
Not Justice Kennedy, it seems. And (pace Marty Lederman) maybe that’s the biggest lesson from yesterday’s Hamdan decision.

[Readers who haven’t consumed the decision’s 177 pages will find lots of quality background material here. For my part, i’ll ignore interesting (??) disputes over abstention and jurisdiction to focus on the merits.]

The Court’s bottom line is that Congress in 1916 implicitly (and without anyone’s really noticing) forbade all wartime military commissions unless they comply with: (i) the international law of war, and (ii) all "practicable” rules of ordinary courts martial. That rule stands on two statutes: § 821, concerning international law, and § 836 , concerning courts martial directly.

Justice Stevens wrote for Souter, Ginsburg, Breyer, and occasionally Kennedy. In the parts that all five joined, Stevens held only that the procedures for Hamdan’s military commission differed too much from a normal court martial with too little justification. The Five held that President Bush never justified the military commission’s need for the differences in evidentiary standards and abilities to confront inculpatory proof. That failure violated § 836 directly, and also violated § 821 because the Geneva Conventions’ Common Article III required a “regularly constituted tribunal,” which the Court read to presumptively mean a court martial.

In sum, the Court sketched two statutory routes toward one simple result: Military commissions must mirror courts martial, except where a satisfactory reason is offered for the difference.

[Stevens also wrote that Hamdan’s conspiracy count was unprecedented (and illegal) under international law, and that international law itself required allowing Hamdan, at the very least, full confrontation of evidence against him. For these parts, however, Stevens drew only four votes.]

The above interpretation isn’t (yet?) orthodox, and some readers may have to slog through the opinions to decide for themselves. But let me flag something that could be overlooked, using Professor Balkin as a partial foil. Balkin suggests that Hamdan is “democracy forcing” (great phrase) because the Prez has to go to Congress if he wants “more authority,” e.g., by relaxing §§ 821 and 836. Balkin’s obviously right that Congress could change those statutes, and he explains that the democratic consequences of doing so could be salutary. But does Hamdan make statutory change truly necessary? i’ve got my doubts.

If, as the majority says, the problem here is a failure to “explain” or “justify” why departures from court- martial procedures are necessary, why wouldn’t the Prez just take on that task – either in individual cases or perhaps as a general matter? He might succeed, he might fail. But such efforts would test whether the Court’s gestures toward Presidential judgments are serious. (See, e.g., Section VI.C’s “assumption” that Presidents deserve “complete deference” in deciding when normal procedures are inappropriate, and its emphasis that, in Hamdan “[t]here is no suggestion . . . of any logistical difficulty in . . . applying the usual principles of relevance and admissibility.”). If the Court accepted such arguments, it would let almost all the air out of the “democracy-forcing” balloon. No Congress after all, just a better record.

If Hamdan really is so limited in scope, however, we should rethink what Kennedy was doing here. [Kennedy’s the focal point because Stevens & Co. would happily have gone farther.] Hamdan’s not a ringing endorsement of timeless procedural fairness? (See Balkin.) It’s not even a Bickelian spur for democratic dialogue? (See supra.) Then what?

Here’s my shot: The rule in Hamdan matters most if the President doesn’t have “the goods” to prove military necessity; and maybe Kennedy wanted to see those cards on the table. Perhaps some readers recall Hamdi and Padilla? The Prez once claimed that each was a dangerous terrorist who absolutely had to be detained without charges or adjudicative process. The fate of the Republic, evil-doers, etc., etc. Then what happened? If cynics are to be believed, the Court called the government’s “bluffs,” and Hamdi was returned to Saudi Arabia (perhaps sitting on a beach sipping non-alcoholic pina coladas?), while Padilla’s now being tried in federal district court. Where’s all that “military necessity” now?

Maybe these recent experiences, or media events, or freestanding judgment, have made Kennedy’s decreasingly willing to accept claims of executive wartime exigency. If so, and especially if (as seems likely?) Congress and the Prez actually don’t pursue the option of military commissions against Hamdan etc., such a spiraling credibility gap might well damage the government’s arguments in future cases. Can’t you almost hear Stevens’s whisper in the next case – whether it concern interrogation tactics, the Detainee Treatment Act, or some such – “Remember, Tony, that’s what they told us last time. You stood strong, asked for more proof, and look, we’re all still here, safe, and sound.”

Maybe skepticism’s a good thing. Maybe we trust the government too much, especially as to national security. But there’s an obvious cause for concern. Thomas’s dissents, here and elsewhere, surely stand on absolute bedrock in pronouncing that courts don’t know much about military matters. Indeed, the judiciary’s very often (from the Civil War to World War II internment to now) required simply to trust or not to trust executive assertions of need. Maybe some readers think the Court’s doing all right so far. But any of us who would celebrate what the Court has done in Hamdan and other GWOT cases must confront the reality that someday, maybe not today, maybe not tomorrow – but someday – there might be a dangerous wolf after all. Or at least a very fierce-sounding lamb.

Posted by hoffman at 12:00 PM | Comments (1) | TrackBack

Panic! More Private Data Lost

The Birmingham News reported, yesterday, that a computer with private employee data from supermarket chain Bruno's was lost. An employee with Deloitte put his notebook in checked baggage at the airport. Naturally, it did not reappear on the baggage belt. (The story does not clarify whether the bag didn't appear, or whether the bag arrived sans laptop.) Apparently the folks at Royal Ahold (the owner of Brunos) have ongoing problems in this regard. Last May, another Ahold supplier lost a computer containing private employee data. Nobody thinks this is a good thing, but is it really newsworthy?

We have seen several stories, recently, about lost or stolen laptops containing troves of private data. These incidents do introduce a risk that the data will be converted to improper uses - most obviously identity fraud - but I suspect that, in most cases, the ultimate recipient of the computer was seeking, well, a computer. In any case, one thing is clear: the media like to find stories that fit into existing news frames. In particular, they like to find stories that fit with growing social anxieties. Thus, a few years back, a couple of drivers went nuts on the road, taking shots at drivers in other cars. Some savvy writer coined the term "road rage". Suddenly, aggressive acts by drivers - even those that would have been too mundane to report - became newsworthy as proof of surging "road rage."

So it is, I fear, with misplaced computers containing private data. The good news for Brunos employees is that, given baggage handling norms, the compuer is likely inoperable. And even if does work, it's probable that the thief - if there be one - simply wanted some additional computing power. On the other hand, maybe that notebook is for sale this very day in at the nation's lost baggage depot - The Unclaimed Baggage Center - in Scottsboro, Alabama. If so, identity thiefs would be advised to hustle on down before a local farmer buys the unit and accidentally erases pages of highly valuable private information.

Posted by Dan_Filler at 11:55 AM | Comments (1) | TrackBack

Law and Society Ass'n. Conf. Next Week

I hope many of you are planning on attending the Law and Society Ass'n. Annual Meeting in Baltimore next week.

I will be there, and I hope to meet as many readers and bloggers as possible. To that end, Prawfs/Glom are organizing a happy hour for bloggers/readers.

I am lucky enough to be presenting a Director Liability paper on a Corp./Secs. panel on Thursday, at 8:15 a.m., and Jayne Barnard and Erica Beecher-Monas will also be presenting papers at that panel session (I have seen Jayne's paper, and it is incredibly interesting - a bit of a profile on the secs. fraudster). Usha Rodrigues (such a superstar!) will be the discussant, Barbara Black will be the panel chair, and Joan Heminway is the organizer. I am anticipating a great session.

Though I am busily finishing my paper and preparing my presentation, a bigger, more pressing issue looms. To wit, should I run in the 5K Fred Dubow Memorial Fun Run on Sunday? I don't suppose any readers/bloggers are planning to run?. . . . You see, it is one thing for me to be willing to put my academic thoughts out there and risk people saying "Nowicki has no idea what she is talking about." It is entirely another thing to be willing to risk having people walk away from the conference saying "Not only are Nowicki's ideas moronic, she is a painfully slow runner. So slow it hurts to watch." To that end, who are the runners among us, and what sorts of times do you anticipate? . . .

Posted by Elizabeth_Nowicki at 09:55 AM | Comments (1) | TrackBack

Steve Bainbridge on "Evading" Hamdan

In a post titled "Evading Hamdan," Steve Bainbridge notes that there's a different way for the Executive to get the military commissions it wants than to hash out legislation establishing them with our elected representatives in Congress. Congress could instead try to strip the federal courts of all jurisdiction to hear cases out of Gitmo, or, presumably, cases leveling challenges of any sort to military commissions.

An interesting thing to think about, I suppose.

But I'm not sure I see the normative case for trying to give the courts the boot and setting up a standoff between Congress and the judiciary over the scope of Congress's power to strip jurisdiction. Congress can make policy in this area, or it can try to eliminate the courts so as to allow the Executive to make essentially unreviewable policy. Why would it choose the latter over the former?

Steve says he's not advocating the idea of jurisdiction-stripping, but simply mentioning it. I'm not so sure: when you say, as Steve does, that you doubt Congress has "the guts" to strip the courts of jurisdiction, and when you muse publicly about whether "anybody in Congress will have the chutzpah to run it up the legislative flagpole" -- and indeed, when you frame Hamdan as a decision to be "evaded" -- some people might think you believe that jurisdiction-stripping would be a good idea. That's what I'm inferring from Steve's post, in any event. Perhaps Steve can clear things up by explaining his take on the merits of the idea he's floating.

Posted by Eric_Muller at 07:58 AM | Comments (0) | TrackBack

"An era of lawless fascism and rubberstamp courts"

That's what Tennessee law professor Glenn Reynold seems to say would be a fair characterization of our times if Justices Scalia, Thomas, Alito (and presumably the Chief) had prevailed today in Hamdan. They didn't, but it's worth pointing out that Justices Roberts and Alito have nothing but time to consider chinks in Hamdan's armor, and rumors of Justice Stevens' possible retirement continue to swirl.

But Professor Reynolds then offers the following very strange sentence, complete with a link to an intemperate blogger urging further administration defiance:

"[Rebuking those who claim that we're an an era of LFaRC is] (another) good reason for Bush not to follow advice from some quarters to disobey the ruling, a la Andrew Jackson."

Is it just me, or is this comment a little Quattrone-esque? And, why pick on Jackson, whose involvement in lawless rhetoric is probably apocryphal, and has little current political purchase anyway. Why not say: George Bush can try to ignore the consequences of Hamdan just like Dwight Eisenhower tried to ignore the consequences of Brown.

We're going to have a special guest blogger offer some thoughts as to the why and how of Hamdan later this evening or tomorrow morning. In the meantime, check out the latest at SCOTUSblog, essential as always.

Posted by hoffman at 05:16 PM | Comments (1) | TrackBack

Perhaps this empirical dog does not hunt.

I have hit a . . . data analysis sticking point with some empirical work that I am doing, and I thought I’d toss the problem out there to see if any of you see something that I do not see. I am a bit embarrassed, however, to admit that I am having a problem analyzing my data, so please refrain from starting any of your comments with “Did you skip 12th grade calc., Nowicki?” or “when, if ever, have you taken a stats class?”

I have calculated the annual percentage change in pay for the CEOs of ten large, publicly traded corporations. I am then comparing those annual percentage changes to the annual percentage changes in profits for those ten corporations, to see if there is a relationship between percentage changes in pay and percentage changes in corporate profits (such as a 10% increase in annual profit being accompanied with a 10% increase in CEO pay).

My ratios of percentage change in pay as compared to percentage change in profit are not producing what I expected to get, however. I have taken my annual percentage changes in pay and divided them by my annual percentage change in profit (for each CEO, for each year).

I expected to be able to then say “A result of 1 or a number greater than 1 is a bad thing” (because it means that the percentage change in pay is GREATER than any percentage change in profit). But things get confusing when I have percentage decreases – I frequently end up with negative numbers that are sometimes indicative of a “good” relationship (a negative percentage change in CEO pay accompanied by a percentage increase in profit, for example) and sometimes indicative of a BAD relationship (a positive percentage pay change accompanied by a NEGATIVE percentage profit change).

Given that I have negative numbers that are sometimes indicating a “good” pay/profit relationship and sometimes indicating a “bad” pay/profit relationship, I am stymied. What am I not seeing? Why am I not able to say “a number greater than 1 is a BAD thing for shareholders in terms of the CEO pay/profit relationship and a number less than one is a good thing”?

Posted by Elizabeth_Nowicki at 03:17 PM | Comments (11) | TrackBack

Are We Too Obsessed By Capital Cases?

One of the recurring themes in Doug Berman's (incredibly valuable) blog is his concern that capital cases receive too much scrutiny. He doesn't deny the significance of the sanction, but believes that other sentencing issues - e.g., the new guidelines jurisprudence, the incredible overuse of long-term imprisonment, and the sense that a substantial number of innocent people may be pleading guilty to felonies - are of greater overall importance. (Of course, for all his protestations, Sentencing Law and Policy is a go-to address for news about capital punishment issues.)

I think he raises an important matter, and rather than take issue with him, I'd like to thicken the discussion a bit. Why are capital cases important? A few reasons include: their irreversibility (once the sanction is actually imposed); the gravity of the sanction; the degree to which death penalty policy seems even less teathered to good-government/empirically driven analysis than other sentencing policy (I would take substantial issue with John McGinniss's claim that empirical data on crime has produced some clear truths about effective responses to crime - check out Dan Markel's preliminary thoughts here); the degree to which an ongoing desire to empower states to execute twisted broader criminal justice jurisprudence; and the fact that the use of capital punishment has consequences for America's ability to claim moral authority in many international debates and disputes.

That said, Doug is absolutely correct that far more individuals are devastated by other aspects of American criminal justice policy. Whether the issue is racial or economic justice, the over-use of imprisonment, the over-use of criminal laws generally, problematic use of discretion, or the poor quality of counsel (and, in the case of juveniles, the actual absence of counsel in many cases), capital punishment issues are only the tip of the public-policy-problem iceberg.

So why keep harping on it? First, I think that capital cases can provide a starting point for the discussion of broader issues, if only because the consequences are so serious. So, for example, there are real reasons to worry that the Strickland ineffective assistance standard fails to guarantee defendants competent representation. But the case for change can be appear more compelling when you explain that these deficiencies can cost a human life. Second, I think there is a moral imperative to continually interrogate any process that involves intentional killings by government - whether that is capital punishment, torture, or even war. Sometimes the government must kill, but it is essential that citizens continually challenge government to justify and constrain that choice. Finally, and most simply, I think the reasons I set out up front justify serious attention to death.

But I certainly don't think that capital punishment should use up all the oxygen of criminal justice debate. Doug's blog does a great job of highlighting the many other issues worthy of serious attention. All of us who write about criminal law issues try to keep the spotlight on the manifold ways that criminal justice policy needs significant improvement. And I think there is a legitimate critique that many individual lawyers and organizations expend vast resources on capital work, while shortchanging the many other issues worth their attention. (Capital punishment is, in many ways, the abortion issue for the left; just as anti-abortion advocates feel they reach their highest personal calling blocking women from terminating pregnancies, many death penalty abolitionists feel the same way about their habeas corpus work.) But many of these committed abolitionists wouldn't turn their energy to other criminal law injustices, even if the Supreme Court (or the WTO) declared the penalty a no-go. They would find other grand and dramatic battles to fight, probably outside the criminal justice system.

Personally, I'm going to try to keep up a mix of commentary about crime and society. Death penalty is one of many important issues on the table. If I am too obsessed, it is only by a degree - and is perhaps the result of my own present immersion in the issue as a result of the ABA death penalty assessment project. But I do think Doug's caution is well-founded, a good reminder that we should never get lost in any one rabbit hole when we are trying to find a herd.

Posted by Dan_Filler at 12:13 PM | Comments (4) | TrackBack

Vioxx and Corporate Apologies

Every time I see in the WSJ a mention of the Vioxx litigation or the Bausch & Lomb eye solution situation or any similar recent potential mass tort situation, I think back to my clerkship with Judge Jack B. Weinstein, EDNY, and I call to mind his opining about the value of apologies in the mass torts context.

As most of you might know, Judge Weinstein is famous for (among other things) facilitating the resolution of many major mass torts disputes, including those related to DES, Agent Orange, silicone breast implants, tobacco, and asbestos. Judge Weinstein is a wizard at managing the litigation of these sorts of cases, but he is equally masterful at assisting in the settlement process. When talking about some of these cases and about mass torts generally, in speeches, law review articles, and opinions, the Judge has often alluded to value corporate-level apologies might have in the context of resolving mass tort litigation. Indeed, the Judge often references (seemingly favorably) the role corporate-level apologies have had in the Japanese legal realm. While I do not purport to speak for the Judge, my impression is that he thinks that apologizing – by corporate officials to persons injured by the use of the corporation’s product – is something that is perhaps considered too infrequently (either in the absolute sense or in facilitating settlements and/or less costly resolution of mass torts disputes).

As we all know, however, the notion of apologizing publicly for a mass tort situation raises the hair on the back of most corporate litigators’s necks. The job of a litigator, some might say, is to *clear* the corporate name, not impugn the corporation by suggesting that corporate officials take responsibility by apologizing. Indeed, back in my younger days, when everything was black and white, I might have taken exception to the Judge’s comment, when speaking about the ethical dilemmas lawyers face in mass tort litigation when counseling their corporate (tortfeasor) clients:

I do not pretend to have the answers, but I ask you to consider the possibility that the old rules promoting the ideal of the zealous, adversarial lawyer may be stretched beyond their limitations in the mass tort case. If that is so, some new ways must be found to light our way through this dark, uncharted territory.

Now that I am older and wiser, I am beginning to take the Judge’s words more to heart. Every time I read a WSJ article about the Vioxx litigation (for example), I think to myself “if I were a Merck director, what would I do? Would I seriously suggest to my colleagues that we consider apologizing and settling these cases? Would I advocate for continued litigation, even if I suspected that maybe we did drop the ball by not making heart complication disclosures as needed? What am I required to do, to do right by the shareholders while still being a moral person? Would I resign if I did not have the option to apologize on behalf of the corporation?” In hindsight, I see now that Judge Weinstein had been raising a compelling, complex, and critical question all of these years: When *should* corporate counsel suggest that a corporate client essentially roll over and apologize for something such as not recalling a product earlier (Bausch & Lomb), not making forthright medical risks disclosure (Vioxx), overtly concealing critical medical information (Dalkon Shield), or treating the risk of serious bodily harm as a purely economic matter (Ford Pinto)?

Back when I was young and overzealous, when my vision as a lawyer was crystal clear and everything was black or white, I would have taken the position that lawyers for Merck in the current Vioxx litigation should not retreat. The notion that the Merck lawyers might want to consider discussing with the Merck directors an apology to be issued to the users of Vioxx would have made me recoil a decade ago.

I seem to have stepped back from my line in the sand over the past several years, however. No longer is it so clear to me that issuing a corporate apology is always contraindicated. No longer am I clear that it is absolutely indefensible for directors to make that sort of corporate liability . . . concession (for lack of a better word). No longer am I clear that the best interests of the shareholders mandate resolutely denying any notion of liability or responsibility. I am now wondering if there is something to be consistently said – from a shareholder wealth maximization standpoint and from a director fiduciary duty standpoint and from a “good faith” standpoint – for corporate apologies.

Posted by Elizabeth_Nowicki at 12:51 AM | Comments (6) | TrackBack

Is Erroneous Conviction More Likely In Capital Cases?

Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that "among all prosecutions homicide cases suffer an unusually high incidence of false conviction." He explained this phenomenon as due to "the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent". Doug Berman, at Sentencing Law and Policy, takes serious issue with this claim. writing:

Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four "liberal" Justices might actually believe it is true.

Unfortunately, like a couple of his commenters, I think there is a good chance that Souter is right and Doug is wrong. Why? At least six reasons.

1. The plurality, if not majority, of criminal cases involve a crime witnessed by a police officer where arrest followed immediately. In these cases - from drug cases, to DUI, to disorderly conduct - error rates are likely low. This is true for two reasons. First, notwithstanding their competitive urges, officers have relatively little incentive to lie. (This may be a bit less true in officer assault cases, where disciplinary or tort consequences for offender injuries hinge on asserting that the defender was the cause of the problem.) Second, when the arrest follows immediately after the offense, there is very low risk of misidentification. Civilian assaults - including homicides - involve seriously higher risk of jury error. In assault cases involving unknown assailants, identification errors are a significant problem. The incidents are often quick and unexpected, and witnesses have little opportunity to observe what really occurred. Cross-racial identification problems infect the accuracy of ID's in some cases. Poor line-up and photo array techniques further undermine accuracy of these identifications. And despite all these problems, witnesses are typically very confident that their testimony is accurate. Unfortunately, juries often rely on this confidence factor to "believe" eyewitnesses; the problem is that confidence is not a proxy for accuracy. Witnesses are sure they're telling the truth, but they are often wrong. Thus capital cases, and cases lacking officer observation more generally, involve more guilt error than average.

2. Capital juries are likely to be less sympathetic to the defense because they are death-qualified (i.e., only people who are willing to impose death are permitted to be jurors in a capital case.) This eliminates a not insignificant portion of the population that is most attractive to the defense.

3. In capital cases, defense attorneys frequently do not mount serious innocence defenses during trial for fear that, if the defendant is convicted, he or she will appear less remorseful at the punishment phase. This is basic strategy in any capital case. The sentencing tail typically wags the guilt/innocence dog.

4. Lawyers in many capital cases are lousier than the norm. Seem hard to believe? With the exception of public defenders (I've argued the virtues of PD's here), indigent defense does not (on the whole) draw top practitioners. The reasons are simple: compensation is low and social status of criminal defense attorneys is lower. In a place like Philadelphia, most indigent defense work is done by public defenders. But most capital work (in Philly, as well as in many - if not most - jurisdictions with public defenders) is done by appointed counsel. This is because the private bar wants capital cases. They provide an opportunity for lawyers to get their names in the paper. They have the potential to generate business. Sadly, capital cases benefit even more from sophisticated public defense than smaller matters. PD's have an economy of scale, have existing investigation and social work resources, and have a hierarchy that allows the office to direct capital cases to their strongest lawyers. The proof is in the pudding. In Philly, the PD has not had a single client get a death sentence in the roughly 15 years in which it has handled capital cass. But the Philly PD only gets about 20% of these matters; private counsel cannot claim a similar record.

5. Souter's explanations are right. There is is immense pressue for any potential defendant in a capital case to blame another party. There is virtually no downside to doing so. The lack of an actual victim makes accuracy much harder to achieve. And the public puts far more pressure on police and DA's to close these matters than serious non-homicide crimes. This pressure results in both premature action and error-prone investigatory techniques like badly run lineups and photo arrays and high pressure interrogation.

6. Habeas corpus proceedings are not particularly effective at identifying guilt error. They are much better at identifying procedural problems - from bad lawyering to improper policing. For example, it is near impossible to claim ineffctiveness of counsel for an attorney who puts on a watered down case at the guilt phase, when she does so for the purpose of saving the defendant at the punishment stage. And it is near impossible to have a post-conviction court revisit the testimony of an eyewitness on the grounds that there was a cross-racial ID, and data shows that these are inaccurate a shockingly high percentage of the time.

There are aspects of homicide prosecutions that reduce error as well, of course. These include more aggressive search for evidence, more extensive use of DNA testing, and state requirements that indigent counsel be minimally qualified. But in the end, I don't think these things compensate nearly enough for the risks of error otherwise built into capital prosecutions.

This does not mean the death penalty is an unacceptable sanction. But it does mean at least two things. First, society has a duty to work really hard - much harder than it has - to do these cases right. And second, it means that society must accept that inncocent people will be executed. The majority in Kansas v. Marsh is aboslutely right; imperfect systems will produce imperfect results. The only person who can honestly say she's made peace with the death penalty is one who can accept the periodic execution of an innocent person. That risk is not necessarily unbearable, but it cannot be denied.

Posted by Dan_Filler at 12:50 PM | Comments (7) | TrackBack

Iron Maiden: Religious Obscurantists

Q. What do Julio Iglesias and 10cc have in common?

Answer below the fold.

Objectionable neo-fascism.

Or so thought the censors of the Soviet Union, who banned their music on that basis.

Pink Floyd were banned for "distorting Soviet foreign policy." The Village People were too "violent." (!) And Donna Summer was banned for "eroticism," though I would have thought that "basic suckiness" would have been reason enough.

Posted by Eric_Muller at 12:23 PM | Comments (3) | TrackBack

18th Century Venture Capitalists

As I posted earlier, of late I have been reading Virginia history. I have one title to suggest: Charles Royster, The Fabulous History of the Dismal Swamp Company. It is an tremendously detailed history of one of the great 18th century land speculations, the attempt to drain and sell the Great Dismal Swamp on the Virginia-North Carolina border. George Washington was one of the movers and shakers in the company, but other characters in the story include names like George Wythe, Richard Henry Lee, Patrick Henry, and a host of other luminaries from the American Revolution, as well as lesser known names like Christopher Gist, a Virginia merchant who helped to found Lloyd's maritime insurance business.

Royster is a good writer and -- for me at least -- the narrative works nicely. The research represented by the book is awe-inspiring and the result is an enormous wealth of detail about everything from family politics (everyone who was anyone is colonial Virginia was related to everyone else) to imperial politics. At the center of the story, however, is what amounts to a venture capital deal.

To me one of the most fascinating parts of the story is the role that the events of the American Revolution play in it. The Dismal Swamp Company was founded as the Seven Years War (aka the French and Indian War) was coming to an end and its story twists through the years leading up to independence. Furthermore, given the vast scale of the project it inevitably became entangled in colonial and ultimately metropolitan politics. Hence, the events of the Revolution play out in the story, but in a new angle. They are not at center stage. Rather, the Stamp Act and Patrick Henry's fiery speeches in the House of Burgesses are secondary characters who come on and off stage only as they impact the unfolding drama of the deal.

If one sees history in legal terms, the plots are often structured around public law stories in general and constitutional ones in particular. Royster's book is, in a sense, the private law story of the American Revolution. He is not a legal historian, but the law is hardly a bit player in his story. The drama, however, centers less around constitutional arguments about rights and representation than around bills of exchange, maritime insurance contracts, mortgages, debts, collection actions, wrangles over title to land, corporate governance, and the like, all of which propel the characters in the story via various complicated paths to ruin or fortune.

Definitely worth reading.

Posted by oman at 10:28 AM | Comments (3) | TrackBack

"Juicy" Weather?

The torrential rains rode into Virginia on tropical winds that were "very juicy" with moisture and were blocked from blowing out over the Atlantic Ocean, said meteorologist Dave Lawrence of the weather service's Blacksburg [Virginia] office. - Kiran Krishnamurthy, City Braces for Storms, Rich. Times Disp., June 27, 2006

It is raining up and down the east coast, and, not only have I never seen rain like this, I have never heard of weather being described as “juicy.”

Please allow me to back up:
I thought I was used to precipitation and random weather, it all its glorious forms. In upstate New York, where I grew up, it basically snows for a minimum of five months per year. Snow, sleet, freezing rain – wet stuff and lots of it. In Brattleboro, Vermont, where I clerked, it snows for closer to eight months, and I now know how to stop my car without ever touching the brakes (one “coasts” to a stop on perpetually frozen terrain). In California, where I practiced law for a few years, I got used to body-wrenching winds that did not let up for five weeks straight (these winds are lovingly called “the Santa Anas”) and the drenching rains that followed. And, upon moving to Richmond, VA, four years ago, I became comfortable with nine months of unrelenting humidity and a lengthy hurricane/tornado season (always have a case of water on hand; sleep in the hallway).

So, up until recently, I really did fancy myself a bit of a “Renaissance Woman,” in terms of culture, weather, atmospheric sciences, and environmental adaptation. I owned a generator big enough to run my entire home (in the event of a power outage due to rain, sleet, snow, or wind), I had outer-wear appropriate for any and every weather condition, I knew tips for driving safely (as needed) in any sort of weather calamity, and I could have a weather discussion in the local parlance of venues across the nation:
In California, as we peer through the February dust storms, watching the palm trees sway violently to and fro, knowing that soon the daily downpour would clear the dust, we chuckle and say “Well, the weather is perfect the other 330 days of the year!”
In Richmond, when the humidity is stifling and our clothes are glued to our skin, we smile pleasantly and say to each other “It is feeling a bit ‘close’ out there today, isn’t it?”
In upstate New York, when it is snowing for the 18th straight day, and the meteorologists are predicting 11 inches of snow in the next four hours, we say . . . nothing. We pretend we do not even notice the snow. To complain about the piles and piles of snow in upstate New York is to expose your weak underbelly.
In New York City, when we stand body to body on the stifling, smelly, summer subway, we sway sweatily (is that a word?) and ask “Where is your [weekend beach home]share this summer?"
And in Brattleboro, Vermont, when we watch the snow pile up outside our office windows, we ask “Are you cutting out early [to go ski, for the dirt cheap rates that all of the big mountains nearby offer Vt. residents on weekdays]?”

The weather we have recently been having up and down the east coast, however, has me baffled. I am not sure how to casually discuss weather like this. What do I say to:
1. My parents, who are being deluged in New York
or
2. My beltway buddies, who are being flooded off the roads
or
3. My fellow Richmonders, who are feeling a bit . . . *ahem*. . . damp

What sort of casual comment does one make when discussing absurd weather like this? Am I *really* supposed to say “It's good and juicy out there, isn't it?”

Posted by Elizabeth_Nowicki at 02:30 PM | Comments (5) | TrackBack

A Milestone

A brief note to celebrate an artificial milestone. According to Sitemeter, we received visitor number 500,000 sometime during the wee hours of the morning. [My bet: it was Filler, obsessively checking to see who was reading his "very good" Kansas v. Marsh post).]

Not too shabby, considering that we're not even nine months old. Way to go us! [Update:I forgot to mention that we also recently posted our 1,000th entry. Contrary to popular belief, a majority have fit within our motto's constraints of "the Law, the Universe, and Everything."]

And now, back to our regular programming.

Posted by hoffman at 02:04 PM | Comments (0) | TrackBack

Wild KPMG Fees Decision

Barely one day old, and Gonzalez-Lopez is already making waves in corporate law. To see the connection, however, you’ll have to bear with me for a bit of brush-clearing.

Judge Lewis A. Kaplan (S.D.N.Y.) today ruled on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) According to the defendants, their due process rights were violated when the U.S. Attorney pressured their former employer (KPMG) not to advance and reimburse legal fees incurred as individuals defendants. Judge Kaplan found a due process violation, scolded the government, and suggested a new lawsuit against KPMG to recover those legal fees, in which today’s decision would have collateral effect and make the proceedings summary. In short: the decision seems to constitutionalize the right to receive indemnification from your employer.

KPMG had a "longstanding voluntary practice" of paying legal fees where employees required separate counsel in matters arising from the employment relationship, regardless of whether the employee had been charged criminally or civilly with wrongdoing. These arrangements were not memorialized in the partnership agreement governing most of the defendants, nor were there contractual provisions about it. No mention is made in the opinion of the relevant insurance negotiations or provisions.

The background law governing most of the partner-defendants (Delaware) requires neither indemnification nor pre-payment. However, two of the defendants, mere employees residing in California, had a right to indemnification arising out of California statutory law.

Judge Kaplan construed this arrangement as a legal entitlement. At the least, according to Judge Kaplan, the defendants had "every reason to expect that KPMG would pay their legal expenses in connection with the government's investigation." (But this was the sort of expectation, as Judge Kaplan later argued (p.57) that might give rise to a tortuous interference claim). In the alternative, and in a footnote, Judge Kaplan wrote that "arguably" the defendants had a contract "implied in fact from KPMG's uniform past practice and the circumstances of the business." (Fn. 119).

Wow. But how does this contract problem get turned into a Gonzalez-Lopez due process problem? Ah, it turns out that the government has a set of prosecution guidelines to help it determine when to indict a corporation. As a part of those guidelines, the government treated payment of an employee’s legal fees as a blemish on the corporation’s record. And, thus, the U.S. Attorney negotiating with KPMG (itself desperate to avoid indictment) told the Firm that "under the fedaral guidelines misconduct can not be rewarded [by the payment of fees of wrongdoers."]

KPMG got the message. Shortly thereafter, KPMG notified the defendants that their legal fees would be compensated only as long as they cooperated -- they could not take the Fifth, for example. Further, KPMG apparently capitulated to the government's demand by backing away on a recommendation that the defendants obtain counsel.

Judge Kaplan found that this conduct by the government violated the defendants’ right to a fair trial and (I think) to counsel of their choice. In a passage of the opinion I don't really grasp, the court (p. 49) found that the pressure to cooperate exerted by the Thompson memorandum (the relevant prosecutorial guidelines) on KPMG should be subject to "strict scrutiny" because (1) this will be a big trial, requiring "substantial resources"; and (2) the government interfered with the ability of the KPMG defendants “to obtain resources they otherwise would have had." While the government claimed that it only used its guidelines to infer lack of cooperation when the payment of fees was used to impede investigations, the court found that the public perception of such pressure is what matters: "[f]ew if any competent defense attorneys would advise a corporate client at risk of indictment that it should feel free to advance legal fees to individuals in the face of the language of [the guidelines." (p.51) And, under Gonzalez-Lopez, this prejudice creates a per se violation. Judge Kaplan appears to hold that the prosecution guidelines are unconstitutional to the extent that they pressure corporations not to provide indemnification to their employees.

The weirdest part of this interesting decision is the remedy. The court refused to dismiss the indictment (for one, I assume, this would result in an immediate appeal). The government suggested that KPMG be allowed to consider again if it wanted to pay fees, without any threat of retaliation. No go, said the court. Instead, the court said that the defendants must be compensated for all of the expenses they had or would incur. Unfortunately, sovereign immunity bars relief against the government, even though it was the wrong-doer. Instead, the court held that KPMG, a non-party to the proceeding, was obligated to pay. However, the court lacked personal jurisdiction over KPMG. Therefore, the court recommended that the individual defendants sue KPMG. The court would then conduct a “expeditious[]” hearing and provide relief. [There is apparently an arbitration agreement in the partnership agreement which could delay matters, but the court suggested what it thinks of that provision by saying “Assuming that the KPMG Defendants pursue relief against KPMG and that KPMG remains insistent upon its alleged arbitration remedy, the questions whether the arbitration clause properly is so construed and, if so, whether it is void as against public policy [as frustrating the court’s decision] will be addressed . . . .” (fn. 239). Hee.]

To sum up. KPMG, which had no clear contractual obligation to pay these fees, now must do so compelled by a judicial order. The government can not discourage indemnification to criminal defendants as a part of making a decision about the firm's cooprative attitude (or, at least, it can't do so in writing). One possible result of the case: potentially vulnerable firms will draft by-laws or contracts that exclude indemnification absent cooperation, to make clear that the government has the right to demand cooperation from employees.

The prosecutors, scolded by the court as “economical with the truth” (p. 80-81), must be feeling angry. The defendants, 83 pages later, are still going to trial. But the 28 private firms listed in the caption will get paid.

[UPDATE: More at the White Collar Crime Blog.]

Posted by hoffman at 11:49 AM | Comments (8) | TrackBack

High Noon At The Supreme Court On The Purpose Of Criminal Appeals?

Yesterday's SCOTUS decision in United States v. Gonzalez-Lopez is the most recent installment in a fascinating debate about the function of appellate reversal and the value of procedural rights in criminal cases.

Of course, appellate crimlaw folks know all about the "harmless error" doctrine of Chapman v. California and the important distinction (drawn in Arizona v. Fulminante) between "structural errors" in the criminal process (which require appellate reversal of convictions without regard for their impact on outcome) and "trial errors" in the criminal process (which require appellate reversal of convictions unless they are "harmless beyond a reasonable doubt" to the outcome.

The question in Gonzalez-Lopez was whether an appellate court ought to reverse a conviction automatically upon finding that a trial court denied the defendant his 6th Amendment right to counsel of his choice, or whether it ought to reverse that conviction only if the record reflected that the outcome was affected by the defendant's not having his chosen attorney beside him. (There was no question that the trial court actually denied the defendant his 6th Amendment right; the defendant had his own lawyer all picked out, but the trial court wouldn't allow that lawyer to represent the defendant or to participate in the trial at all.)

The issue is a bit technical, but it provides an excellent window into what seems to be a very basic disagreement on the Court about the purpose of appellate review in criminal cases, and about the nature of trial and investigative rights in the criminal process.

Appellate reversal of a conviction is a remedial tool: it's by far the most direct method that an appellate court has to send messages to trial judges, trial lawyers, and the police about what's crucially important at criminal trials and in criminal investigations. Sure, courts can fill their opinions up with dicta about the importance of this or that right or procedure in the trial and investigative process, but reversals are the things that judges, lawyers, and cops really pay attention to.

For this reason, the decision about whether to place a particular trial or investigative error in the "automatic reversal" category or the "reverse-only-if-the-error-made-the-conviction-unreliable" category is a very important decision.

It's a decision about values. In making the call, the appellate court is asking itself a very important question: what are the values in the criminal trial and investigative process that we appellate judges ought to be enforcing?

This is precisely the point on which the majority and the dissent parted company in yesterday's opinion. The 5-Justice majority (led by Justice Scalia) sees the right to choose an attorney as serving a value of constitutional magnitude – choice about representation – whose importance is a constant in all trials, not a function of the facts of a particular case. For the majority, it's a right grounded in autonomy – we might even say a dignitary right of the defendant to control the basic question of who will speak for him, and against the government, in a trial for his liberty.

The 4-Justice dissent (authored by my old boss Justice Alito) sees no point in this. If the lawyer who actually did represent Mr. Gonzalez-Lopez was an effective lawyer, says the dissent, then there's no point in rolling out the big gun of appellate reversal. The conviction was fair, and an accurate reflection of the defendant's guilt. Once an appellate court has assured itself of the fairness and accuracy of the verdict, its function is really at an end. To whatever extent the 6th Amendment protects the defendant's autonomy and dignity interests, the dissent effectively implies, those things aren't our department up here on appeal.

I note two final things.

One of them is the breadth of Justice Alito's position. "The touchstone of structural error is fundamental unfairness and unreliability," he says on page 8 of his dissent. In this part of the opinion he challenges something that I think we had all assumed was settled: namely, that if an error goes in Fulminante's "structural error" rather than "trial error" column, it requires automatic reversal of a conviction. Justice Alito argues here for the creation of a new category: "harmless" "structural" errors. This would be a significant shift in the law. And he has four votes for this proposition; none of the other dissenters expressed discomfort with this portion of the dissent.

The other final thing I note is that lots of precedent contradicts Justice Alito's position about structural error. Consider, for example, race discrimination in the selection of a grand jury. Under current law (Vasquez v. Hillery), a defendant's conviction must automatically be reversed if the grand jury that indicted him excluded blacks on account of their race. It is of no moment that the grand jury had enough evidence to indict, or that a properly selected trial jury convicted the defendant after a fair trial. It's structural error, and the conviction gets reversed. The value that appellate reversal is enforcing in a case like this has nothing to do with the reliability of trial verdicts. It has to do with the value of antidiscrimination in the criminal process.

Or consider the right to a public trial. It is quite possible to imagine trials that would be far likelier to produce "reliable" outcomes (in the sense that Justice Alito means) if they were conducted in private. Yet the denial of a public trial is a structural error requiring automatic reversal; there's a value in the public-ness of a trial that doesn't implicate reliability but that merits appellate policing.

Or consider the right of a criminal defendant to represent himself, established in Faretta v. California. Surely the results of many trials of self-representing defendants would be more "reliable" (in the sense that Justice Alito means) if the defendants were forced to be represented by a competent lawyer. Yet the denial of the right to self-representation is automatically reversible structural error. There's a value to the right to self-representation (grounded, like the right in Gonzalez-Lopez, in the defendant's autonomy and dignity) that deserves appellate policing without regard to outcomes.

Justice Alito seems to have four votes to take the Court in a very different direction on this very important question.

(Hmmm. This blog post ended up feeling suspiciously like a rough draft of a law review article. Especially for me. What has come over me?)

Posted by Eric_Muller at 11:21 AM | Comments (1) | TrackBack

Why I Read History

I mainly read history because it is fun. I do, however, occasionally have other reasons. For example, I think that reading history can be an important part of our moral education. Aristotle argues in his Ethics that one ought not to expect a greater level of certainty from a field than the field can deliver. In context, he was making the point that abstract ethical precepts and concepts will only get one so far when it comes to leading a good life. At some point or another, judgment is inevitable. Judgment is not a matter of deducing conclusions from abstract premises. Rather, it is a matter of making good decisions based on wisdom accumulated by experience. History is useful, I think, because it can be a surrogate for experience. We can only live so much, but by reading about the past we can accumulate a vast fund of particulars from the lives of others that can yield a kind of wisdom.

One might also read history to understand the way that human societies work. One has to be careful with this, however. It seems to me that at its best history is a kind of constrained story telling. One constructs a narrative where the sorts of statements one can make are limited by one’s sources. This is no small task, and those who can do it well have mastered a very difficult skill. Nevertheless, it doesn’t seem to me that the tools that one must become proficient with to do this sort of thing — the collection and interpretation of primary sources — are all that good for making broad generalizations about human societies. To be sure, historians from time to time say good and profound things about human society, but there is a sense in which their insights are serendipitous rather than the yield of a disciplined methodology. In this sense, historical insight into human society is very much like Aristotle’s judgment. It is less a matter of constructing and defending abstract theories than it is about wisdom that emerges from the piling on of particulars.

Of late, I have found another reason for reading history. It helps me to find a sense of place. For the last ten years or so, I have been a fine example of modern American mobility, moving almost annually sometimes within a city or state but often across much larger distances. This kind of mobility can have a corrosive effect on one’s sense of belonging and connection with place. Despite over a decade away from it, I still feel in some sense as though Salt Lake City is home. In large part this is because that’s where my family (or at least a large chunk of it) lives, and it is where I grew up. But it is also because I know the history of Salt Lake. My knowledge of the city is not merely geographic but also temporal and this two-dimensionality binds me to it.

It looks as though we are finally settling down. I don’t anticipate the nearly annual ritual of moving that has characterized my married life thus far. We are now where we are going to live, at least for some time. As fate would have it, we have been cast upon the shores of the James River in the Virginia tidewater. My own roots in America are almost entirely New England and Canadian. I am not descended from Virginians. Hence, I can claim no genetic relationship to my new community. Yet just as history can be a surrogate for experience, it can also be a surrogate for lineage. And so I am reading books about the history of Jamestowne and colonial Virginia, trying to trace out the geography of past events onto my surroundings: I’m two miles from the first English settlement, just down the road from Green Spring, the 17th century plantation of the colonial governor. If I take route 31 into town, I find myself crossing the line that Nathaniel Bacon’s rebels occupied when they besieged the colonial capital in the 17th century. I am learning about Powhatan and Pocahontas, both of whom left their names for creeks that bisect my surroundings. I am not looking for a grand theory of the Virginia tidewater, just a thicker set of particulars in which to live my life.

Ultimately it is the particulars that are the great virtue of history.

(Originally posted on Times & Seasons)

Posted by oman at 12:11 AM | Comments (2) | TrackBack

Scalia v. Souter On The Death Penalty

Today's Supreme Court decision in Kansas v. Marsh, a case involving the constitutionality of Kansas's death penalty statute, delivered more than one might have expected of a (relatively) minor case. At issue was a statute that called for a jury to impose death if the DA proved, beyond a reasonable doubt, that mitigators did not outweigh aggravators. Put another way, the question was: can a state constitutionally impose death where the jury concludes that neither the mitigators nor the aggravators outweigh each other - that is, it's an evidentiary tie. (There's a more complete summary of the case at Scotusblog.) But what makes this case interesting and arguably important so much the legal issues, but the way the justices approached them.

Dissenting, Justice Souter argued that a sentencing sheme must produce morally justifiable results. He did a tour around some of the reasons to question the accuracy of America's death penalty system: exonerations of people on death row, the increased use of DNA to undermine capital sentences, and "the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent." Souter spent a total of three and a half pages making these particular claims about accuracy, and concluded "in the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencing finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure."

Responding to this, and in the pragmatic voice of McCleskey v. Kemp (where the Justice Powell concluded that a racially biased death sentencing system does not violate the Constitution), Justice Thomas wrote that "because the criminal justice system does not operate perfectly, abolition is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system." Put another way: innocent people may be executed, but probably not that many, and there's not much we can do.

Justice Scalia, however, got quite exercised. He attempted to slice and dice the various arguments, studies and reports relied upon by Souter. To Souter's three and a half pages, Scalia offered eleven pages of retort. He also hinted to his real concern: that Souter's opinion would give comfort to foreign abolitionists. He wrote:

There exists in some parts of the world sanctimoniouscriticism of America’s death penalty, as somehow unwor-thy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently - and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to theeffect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

Interesting stuff. Here are a couple of things that came to my mind reading the opinions.

1. The difference Alito makes. Most people will read this decision and conclude that Alito turned the outcome around. This is probably correct. But Souter's opinion changed as well. Had SOC been around for this case, Souter could never have included the recent data about exonerations and innocence in the opinion. I have great difficulty believing she would have signed on to that. This evidence has been hanging around for a few years, and it almost seemed like Souter was looking for a time to trot it out. As the dissent pointed out, this wasn't a case about guilt or innocence, but rather sentencing. It is entirely possible to imagine that an innocent person would get a death sentence even under the most rigorous of sentencing standards. Sentencing standards don't reduce erroneous convictions. Souter's argument only makes real sense - as the dissent notes - if its goal is to reduce the number of people who receive death sentences (and thus the number of people for whom systemic errors would be fatal.) That's not a narrow procedural ruling; that's a whole different attitude towards death as a sanction.

2. Which leads to my second point. This may be a 5-4 decision, but it wasn't even close. Although the media may report it as a tight vote, in fact the majority and dissent were miles apart. If SOC had joined Souter, I think the majority would have written a narrow opinion relying on purely legal claims. Since Souter had no chance of winning a fifth vote, he made a critical move: he introduced empirical data from the real world (but almost certainly not from the trial record) into his analysis. I don't know why he did it. Perhaps he believes it time for these issues to be debated in society, and wanted to use an opinion as a platform to spark debate. Perhaps he believes that these issues must be introduced into the jurisprudence now so that they can flower in 10 or 20 years. Perhaps he worries that there will not even be four votes for this opinion in a year or two, and wanted to make these points while they can still be described as the view of a strong 4-vote minority. Or maybe he thinks that, a couple of years from now, Justice Kennedy will revisit these questions. Whatever the reasons, he can't have thought he'd win any votes with this opinion.

3. Which leads to the next question. Why did Scalia explode? I suspect he did so because he fears Souter's opinion was designed for all these purposes, as well as to spur further international debate on America's use of capital punishment. Indeed, the international dimension of this case - which Scalia highlighted - is surely a big issue for him. Notwithstanding his old world love for American policy independence, the New World Order - discovered by 41 - increasingly calls for America to comply with international norms. The Constitution may not forbid capital punishment, but it's easy to imagine that some future international trade pact will. So maybe Scalia is taking this chance to make the case on behalf of the USA that, with respect to error at least, the death penalty ain't so bad. I agree with MJ, commenting over at Orin's place, though. I suspect that Scalia's opinion was so much of a "smack-down" that the rhetoric may undermine its value. It certainly undermined his ability to garner a second vote.

Posted by Dan_Filler at 06:51 PM | Comments (5) | TrackBack

Internment in the Arizona Desert

One family's story. A tough life, with tough choices.

Posted by Eric_Muller at 02:00 PM | Comments (0) | TrackBack

Scalito No More!

In today's decision, U.S. v. Gonzalez-Lopez, Justices Scalia and Alito broke into separate camps on the issue of counsel choice. Scalia, writing (surely with contrarian joy) for the liberal majority, held that a court's improper denial of an individual's counsel of choice was a constitutional error requiring automatic reversal. Alito, dissenting - and not respectfully either! - argued that there was something wrong with the idea that a person could end up with a better lawyer than he'd have preferred, but still score a new trial.

I'll post at a bit more length in a little while. But I thought it interesting to see these supposed doppelgangers divide so neatly. (And even more so to see a little attitude show through in the opposing opinions.)

Mind you, I'm not holding my breath.

Posted by Dan_Filler at