BeldarBlog

"Don't Tase me, bro!" incident report due today

I haven't previously been able to find any sort of update on the disposition of the criminal charges that were filed against University of Florida student Andrew Meyer after he resisted arrest while being removed from a John Kerry rally. However, the UF student newspaper, The Alligator, reported on Monday that "[t]he investigation by the Florida Department of Law Enforcement into [Meyer's Tasering] is complete, but the report isn't available to the public yet." A university spokesman is credited with predicting that the 300-page report will be made public today (Wednesday).

As for the criminal charges, the article says: "The State Attorney's Office will make the final judgment on Meyer's criminal charges after it reviews the department's findings." Although cryptic, this suggests to me that the charges may have been put on hold pending the release of this report by agreement of everyone concerned. If the report is critical of the campus police's reaction, however, that conceivably might trigger a voluntary reduction or even a dismissal of the charges.

I continue to predict that the use of the Taser will be found to have been appropriate, and that at least the resisting arrest charge will be deemed appropriate for the prosecution to pursue. But I presume that short of a complete voluntary dismissal by the prosecution, "final judgment" will actually be made by a judge or a jury, either pursuant to a plea bargain or the results of a trial.

In the meantime, a Palm Beach newspaper reports that sales of "Don't Tase Me, Bro" merchandise (sporting graphics like the one I've reprinted here from Cafe Express) continue to be "shockingly profitable."

-------------------------

UPDATE (Thu Oct 25 @ 6:20pm): My thanks to commenter rfy for a link to the report, which is actually only 17 pages (presumably the 300 estimate included backup documentation). My prediction was correct:

The report found that the event organizers were within their rights and had ample justification in ordering Meyer to be removed, and that the campus police made reasonable choices in dealing with Meyer's resistance, including in the use of the Taser in "drive-stun" mode (using direct contact, rather than firing the prongs). It provides more detail than I'd previously read about Meyer's previous campus disruptions, along with further circumstantial evidence that he intended to provoke this incident and arrest.

According to the UF student newspaper, "Eddie King and Nicole Lynn Mallo — the two officers who were suspended with pay after the event — are back on duty, UF President Bernie Machen wrote in an e-mailed statement." My guess is that they'll get a fresh round of applause the next time they walk into the campus police station.

This report, of course, will be dismissed by Meyer's defenders on grounds that it's biased as coming from another law enforcement source, and it should indeed be read with awareness of that fact. But that doesn't mean it's wrong, and I don't think it is.

My guess is that Meyer is going to have to do some non-trivial jail time if he wants to plead out; and if he rolls the dice and insists on a jury trial, my prediction is that he's quite likely to be convicted on the "resisting arrest with violence" felony charge, which could mean serious prison time.

Were I Meyer's lawyer, I'd do my best to establish whatever credibility I could for my client's and my willingness to go to trial, and then leverage from that the best plea agreement I could get. I'd try to trade public service and acts of contrition for as much jail time as I could, and I'd try to negotiate for flex-time service that would permit Meyer to serve his sentence on weekends or holidays so that he could stay in school. That done, I might not Taser young Meyer in my private counseling on whether to take that best offer from the prosecutors, but I would indulge in every bit of verbal arm-twisting and brow-beating that I could manage. My guess is that Meyer and his parents would then fire me and get new counsel who's less candid and more publicity-hungry — someone who'll be happy for the TV time as Meyer's led back in handcuffs after the guilty verdict, at which point the lawyer can shake his fist and valiantly vow to appeal "Against These Fascists All the Way to the U.S. Supreme Court!"

What the public needs to know in forming an opinion on whether U.S. District Judge Sam Kent ought to be impeached

I had intended not to blog about the formal reprimand and admonishment delivered on Sep. 28, 2007, by the Fifth Circuit Judicial Council to U.S. District Judge Samuel B. Kent of Galveston, and I had said as much in response to a question from a regular reader in the comments on another post.

But I've changed my mind because of what I perceive to have been a serious campaign of distortion in other publicity about Judge Kent by people who do, or at least should, know better. They say Congress ought to commence an impeachment investigation — but they're not telling you something very important that you ought to know in forming your own opinion on that subject.

*******

The Council comprises Fifth Circuit Chief Judge Edith H. Jones, plus nine other Circuit Judges and nine District Judges, all from the three states that make up the Fifth Circuit (TX, LA, and MS). On the basis of a Special Investigative Committee's investigation of a sexual harassment complaint against Judge Kent made by a court employee — which investigation included the taking of sworn testimony from from the complaintant and other fact witnesses, and in which Judge Kent was represented by counsel — the Council reprimanded Judge Kent "for the conduct that the [Committee's] report describes," the details of which are not in the public record. It also admonished Judge Kent "that his actions described in the report violated the mandates of the Canons of the Code of Conduct for United States Judges and are deemed prejudicial to the effective and expeditious administration of the business of the courts and the administration of justice." The Council "concluded these proceedings because appropriate remedial action had been taken, including but not limited to [Judge Kent's] four-month leave of absence from the bench, reassignment of the Galveston/Houston docket and other measures." The nature of the "other measures" has not been made public, but a fair bet would be that they include sensitivity training; they may or may not include a private apology to the complainant or others. The Council's decision also doesn't foreclose independent civil or criminal proceedings arising out of the same conduct.

Since then, however, there has been a steady drumbeat of self-reinforcing and unrelentingly negative publicity about the reprimand from the Houston Chronicle in a series of news articles mostly written by Harvey Rice and Lise Olsen (e.g., on Oct. 4, Oct. 5, and Oct. 7) and op-eds by columnist Rick Casey (on Oct. 2 and Oct. 3). There have also been a series of six posts on The Volokh Conspiracy (on Sep. 28, Sep. 30, Sep. 30, Oct. 2, Oct. 3, and Oct. 8), the last five by Assistant Law Prof. Ilya Somin of George Mason University's School of Law, who in 2001-2002 clerked for Fifth Circuit Judge Jerry E. Smith of Houston (one of the 19 District and Circuit Judges on the Council).* The consistent theme being promoted by all of these articles, op eds, and last five blog posts is that the Council's punishment was inadequate and that Congress ought to consider impeaching Judge Kent.

I've known Judge Kent by reputation since he was a practicing lawyer at one of Galveston's most prestigious firms, but I can't recall ever having met him, and neither can I recall ever appearing before him; I can't rule out the possibility that I have, but if so, it was on nothing substantial. I know absolutely nothing about this investigation beyond what I've read in the Council's order and the press. I refuse to gossip about the facts underlying the complaint and reprimand myself, and I'll summarily delete gossip (whether about Judge Kent or the complaintant) left in the comments to this post. This isn't about gossip.

Through an entirely unrelated matter from another state, federal circuit, and Judicial Council, I did have occasion a couple of years ago to become very familiar with the structure and workings of the existing system for the making and handling of complaints against federal judges. As a complete bystander to a federal case, having no personal interest other than as a citizen and a member of several unrelated federal bars and the Texas bar, I filed such a complaint, and then appealed the initial determination on it by that federal circuit's chief judge to its judicial council. I ended up being satisfied with the results, which were never made public, and which I won't go into here.

But thus it was, for example, that I knew beyond any doubt that Chronicle columnist Rick Casey was committing a libel when he falsely claimed in his October 3rd column that the Council's decision conclusively established Judge Kent's guilt under a state criminal statute forbidding sexual harassment by a public official "acting under color of his office." Surely even a clown like Casey should have been able to figure out that the Judicial Council wasn't attempting to determine whether any state or federal statutes had been violated, didn't make any findings "beyond a reasonable doubt," and while permitting Judge Kent's limited participation through his counsel nevertheless didn't afford Judge Kent the basic procedural safeguards (like the ability to confront and cross-examine his accuser in public) that are core rights of the criminal justice system.

*******

Apart from Casey's rants, it seemed to me that there was an important aspect to these proceedings which was being ignored in the Chronicle's stories and Prof. Somin's posts. Against my original intention, I started leaving politely protesting comments in Prof. Somin's posts, which he proceeded to utterly ignore. My frustration grew, as did my conviction that either Prof. Somin didn't know what he was talking about, or that he was deliberately obscuring that important aspect for some reason. Finally, by standing atop, and perhaps crossing over, the borderline between civility and rudeness, I was able to provoke a few responses from him in the comments to his Oct. 8th post. (I'll let you, gentle readers, decide what conclusions if any you want to draw about Prof. Somin from those, and about how well or poorly he was able to defend his positions.)

So what's the important aspect? It's highlighted by this quotation from Prof. Somin in the Chronicle's most recent news article (on Oct. 7th) banging the impeachment drum:

Ilya Somin, a law professor at George Washington University who clerked at the 5th Circuit, noted that federal judges have limited abilities to discipline a colleague: They can reprimand and reassign cases, but they cannot take away his salary or force him out.

Somin said the public record on Kent's "long history of ethical problems" is significant enough that Congress should look into it.

Similarly, Prof. Somin had written repeatedly to that same effect in his own blog posts (and in his comments in response to other readers than me), portraying the Council as effectively toothless, with impeachment being the obvious remedy that is justified, but one utterly beyond the Council's power to accomplish or address.

And that, friends and neighbors, is — to use an esoteric, technical legal term of art — an absolute load of crap.

*******

What I'm about to tell you — what Prof. Somin and the Houston Chronicle have systematically failed to acknowledge — is taken directly from Chapter 16 of Title 28 of the United States Code.

This Council was not toothless. Rather, through the Judicial Improvements Act of 2002 (which in turn was a revision of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980), Congress recognized that there's no one better suited, at least in the first instance, than the Chief Judges of each Circuit, their respective Judicial Councils, and the Judicial Conference to determine when a federal judge is so badly misbehaving as to warrant impeachment.

Therefore, Congress deliberately charged Judicial Councils including this one with the statutory obligation to consider whether to recommend the impeachment of judges like Judge Kent. And if the Council decided that impeachment was warranted, the Council could have made a referral to the Judicial Conference of the United States, per 28 U.S.C. § 354(b), with a determination that there are grounds for Congressional impeachment, upon the basis of which the Conference could send the complaint on to the Congress per 28 U.S.C. § 355.

Instead, by a majority vote, and without a single written dissent, the Council concluded that lesser penalties and remedies were indeed adequate. Nineteen federal judges — who've worked elbow to elbow with Judge Kent for years and who've had access to sworn testimony that neither you, I, Prof. Somin, nor the Chronicle's reporters have seen — are thus on record, after having been tasked to make that determination by Congress, as saying that impeachment is not justified here.

Indeed, there were a whole range of harsher penalties short of recommending impeachment that the Council also could have crafted, but declined to impose. The Council could have provided for a longer suspension. At least a couple of cases suggest that suspensions of up to fifteen years might be permissible without creating "quasi-impeachment" problems. See McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 83 F. Supp. 2d 135, 165 & n.18 (D.D.C. 199) (rejecting separation of powers arguments, confirming Congressional power to delegate investigation and imposition of sanctions less severe than impeachment to the Conference, and rejecting "temporary impeachment" characterization of sanction that included one-year suspension from receiving new cases), aff'd in part & vacated in part for mootness, 264 F.3d 52 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002). There's also little question but that the Council's order could have been drafted in much harsher terms without revealing any specific details of the complaint. And the Council could have formally (and publicly) requested, per 28 U.S.C. § 354(a)(2)(B)(ii), that Judge Kent voluntarily retire. While that wouldn't have been binding upon him, it's simply ridiculous to dispute — as Prof. Somin did in response to my pointing this option out — that such a request by the Council would have a devastating effect on sitting federal judge, especially if made as part of a public reprimand.

Prof. Somin also argued that "Issuing a recommendation [to commence impeachment proceedings] that Congress has no obligation to follow is not that powerful a sanction." My response:

[A] complaint that survives the three-step screening process (Chief Judge, Council, Conference) is indeed very likely to get the serious attention of the House Judiciary Committee; indeed, in most instances when a complaint gets that far, the Conference will be passing along a documented, pre-digested case for impeachment that's ready for a committee vote without much further ado.

*******

Whether Prof. Somin knew of (and simply avoided mentioning in all five of his original posts) the Council's statutory responsibility to consider impeachment or not, and the Council's refusal to make such a recommendation in this instance, my email exchange with Chronicle reporters Rice and Olsen confirms that they knew about it. Mr. Rice claimed this wasn't worth mentioning because the legal experts they'd consulted think that judges all protect each other and aren't likely to actually use these powers. To which my response is: Ask impeached former U.S. District Judge (now despicable Congressman) Alcee L. Hastings, whose impeachment by the House and conviction by the Senate took place on the basis of the Judicial Conference's recommendation even after Hastings had been acquitted of corruption by a hometown jury. Mr. Rice correctly noted that Justice Breyer has recommended further revisions to the existing system in a 2006 report prompted by allegations against U.S. District Judge Manuel Real from California. There, however, the House jumped the gun and started hearings before the Judicial Council had completed its work, but then shelved the entire matter in deference to the Council. If anything, all that ought to make it more imperative to report fully on how the current system has handled Kent's situation.

Ms. Olsen, in turn, asserted that this informational nugget was in one of their earlier drafts, but ended up, due to space limitations, on the editor's floor. I have no reason to doubt that, but one wonders about the editorial judgment — and perhaps the bias against judges nominated by a Republican president — of an editor who found room to instead advise Chronicle readers that Judge Kent "has decided cases as diverse as whether a local tavern owner could legally sell brews as 'Star Bocks' — despite a challenge from the soundalike Seattle coffee giant." Let's see: The Starbucks sentence, or one reading (per my suggestion): "Nineteen federal judges who've had access to the relevant sworn testimony  concluded — without anyone writing a dissenting opinion — that he ought not be impeached, in a system in which Congress has expressly set things up for them to make that decision as an initial matter." Yeah, I'm goin' with the public's need to know about Starbucks!

(In subsequent emails, to her considerable credit, Ms. Olsen was very gracious: "Your points are good ones — I also think this would make a good op-ed — a more intellectual treatment of the options. If you're up for it, I'd encourage you to write it." I may give this a try, although it will frankly be hard for me to boil my indignation down to fit the Chronicle's op-ed length requirements.)

*******

Personally, I'm disinclined to second-guess the Council's decision. My own experience both pressing and defending sexual harassment claims has convinced me that they're rarely clear-cut; that credibility determinations are crucial; and that political correctness can acquire a life of its own which, in turn, can ruin actual lives of both accusers and the accused. But I'll wrap up here (boldface mine) with the last comment I left on Prof. Somin's last post, in response to someone who argued: "This isn't just smoke, it's also obviously fire: we just haven't been able to see the fire."

I'm not contending there's "no fire." And the public reprimand will likely affect Judge Kent's standing and public image for the rest of his career, short or long, on or off the bench; I have no reason to think that unjust.

Nor do I dispute that Congress has the right to consider impeachment — notwithstanding the absence of a recommendation that they do so from the people whom Congress has entrusted, in the first instance, with the responsibility to investigate such complaints and to calibrate appropriate remedies and sanctions.

But I do think it's dishonest for anyone who understands (or who should, by virtue of his profession, understand) the nature of the process to fail to acknowledge that lack of a recommendation.

Feel free to say "I think the Council let him off too easy and Congress should impeach him." But be honest, and say simultaneously, "Of course, the Council saw the evidence, and I haven't, and the Council is who Congress designated to handle these complaints and to either make an impeachment recommendation or not, and it didn't."

And then people can who are still forming their own opinions can decide how much to give yours, or Prof. Somin's, versus the majority vote (without written dissent) of the 19 federal district and circuit judges on the Council (including the one for whom Prof. Somin clerked).

-----------------

UPDATE (Tue Oct 23 @ 1:25am): Prof. Somin has belatedly replied to this post. His conclusion: "In sum, Beldar's post distorts 1) the applicable law on impeachment, 2) a judicial opinion, and 3) my posts. That's a pretty neat trifecta." As I said in a comment there, however, I'm content for now with what I've already written.

-----------------

UPDATE (Tue Oct 23 @ 2:30pm): Um-kay, this has gnawed on me enough now that I will make some specific responses, more to vent my own annoyance rather than in the expectation that more than maybe 10 people will be continuing to follow this debate.

In claiming that I misrepresented the "applicable law on impeachment," Prof. Somin wrote:

The federal statute that Beldar claims imposed a "statutory obligation to consider whether to recommend the impeachment of judges like Judge Kent" does no such thing. It merely says that the Council "may, in its discretion" (emphasis added) refer the matter to the Judicial Conference of the United States for consideration of the impeachment option (the Conference can in turn refer the matter to Congress). The Fifth Circuit Judicial Council is not required to consider the impeachment option and we have no proof that it did so in this case.

But when a complaint has survived the initial screen and the Chief Judge has referred it to the Council, the statute does, however, oblige the Council to consider and investigate the complaint — repeatedly using the word "shall" (emphasis mine throughout) in sections 353(a) & (c). Afterwards, if the Council does not dismiss the complaint, then section 354(a) (1)(C) requires that the Council "shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit." Under section 354(b)(2), if the Council has determined "that a judge appointed to hold office during good behavior may have engaged in conduct ... (A) which might constitute one or more grounds for impeachment under article II of the Constitution," then "the judicial council shall promptly certify such determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States." And then under section 355(b)(1), '[i]f the Judicial Conference concurs in the determination of the judicial council, or makes its own determination, that consideration of impeachment may be warranted, it shall so certify and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House of Representatives considers to be necessary."

Here, we know the Council fulfilled its statutory duty to consider the complaint; found it to have at least some merit; and ordered some remedies. We don't know whether the Council took a formal vote on recommending impeachment, nor even whether they specifically discussed that particular remedy. We don't know whether the complainant even suggested it, nor whether anyone on the Council brought it up sua sponte. But it seems extremely improbable to me that the Council authorized some remedies without at least considering the others specifically listed in the statute; and it seems absolutely impossible to me that everyone on the Council was unaware of the existence of the remedy. Of course both the Council and the Conference have discretion under the statute to decline to find that impeachment is warranted. But they may not both (a) conclude that there has been conduct which "might constitute one or more grounds for impeachment" and (b) yet still refuse to forward that recommendation. I think it's absolutely fanciful for Prof. Somin to suggest that while executing their duty under the statute, the Council members deliberately blinded themselves to the impeachment recommendation alternative in order to evade all those "shalls" that would have followed as a result.

In his latest post, Prof. Somin also writes:

In such difficult internal matters as the disciplining of other judges, a judicial conference [sic] is likely to act on a consensus model of decisionmaking. The reprimand issued to Kent (which is a very unusual step in itself) may have been the lowest common denominator that all nineteen Fifth Circuit Council judges could agree on.

     ... [T]he reprimand is a committee document that probably represents the lowest common denominator that 19 people of very different ideologies and temperaments could agree to.

I absolutely agree that reprimands are unusual, but I emphatically disagree with what I interpret as Prof. Somin's suggestion that a judicial counsel is likely to "act on a consensus model of decisionmaking" to the point that it not only rejects harsh alternatives favored by some members, but also suppresses those members' opinions. Getting 19 federal judges to agree on anything is like trying to herd cats. I suppose it's possible that here, as few as ten actually agreed on the remedies contained in Chief Judge Jones' order (and she may not even have been among that ten). But not a single judge went on record, either with or without a separate opinion, in dissent. It at least impliedly insults the members of this Judicial Council to suggest (as I think Prof. Somin effectively has done; again, that's my inference, not his direct words) that for reasons of collegiality or self-interest or otherwise, they all agreed to dispense "lowest common denominator" justice. And we have as a recent, prominent counter-example the Ninth Circuit Judicial Council's consideration of complaints against U.S. District Judge Manuel Real, which resulted in Judge Alex Kozinski issuing a written dissent urging harsher sanctions (but still not urging impeachment). Indeed, in addition to Judge Kozinski's "withering dissent" in that case (which I would also characterize as "brilliant" and "compelling"; Prof. Volokh called it "powerful"), "B. Lynn Winmill, an Idaho district court judge, issued a separate dissent, while David Ezra, a district judge from Hawaii, wrote a concurring and dissenting opinion." That Ninth Circuit Judicial Council was only about half the size of the Fifth Circuit Judicial Council that voted on Judge Kent's punishment — it had only five circuit judges and five district judges in addition to the Ninth Circuit's Chief Judge — and yet it produced four separate written opinions!

In claiming that I misrepresented a judicial opinion, Prof. Somin wrote:

     Beldar further asserts that the Council could have suspended Judge Kent for "up to 15 years" of its own initiative. That extreme claim strikes me as in obvious tension with the Constitution's mandate that judges serve for life unless impeached and removed by Congress. If other judges could suspend a federal judge for as long as 15 years, they could effectively negate his or her lifetime appointment simply by issuing two such suspensions (or even just one, if the judge in question were old enough). It'll take a lot more than a partially vacated district court opinion (the only authority cited by Beldar to support this extreme proposition) to convince me that he is right on this point. Indeed, looking up that opinion, I found that it says nothing of the kind, but instead merely notes that some other judges believe that a 15 year suspension is beyond the power of a judicial conference for precisely the kinds of reasons that I noted above. The opinion states that:

Some jurists have expressed concern that suspension might become equivalent to removal if it extended for an inordinate amount of time, see e.g., Hastings I, 770 F.2d at 1108-09 (Edwards, J., concurring) (using fifteen years as the benchmark), but a one-year suspension does not implicate these concerns." McBryde v. Committee to Review Circuit Council Conduct and Disability Orders, 83 F. Supp. 2d 135, 165 & n.18 (D.D.C. 1999), aff'd in part & vacated in part for mootness, 264 F.3d 52 (D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002)) [Note: The McBryde opinion is slightly misleading when it cites Judge Edwards as stating that fifteen years is "the benchmark." Edwards' wrote that 15 years is beyond a judicial conference's power, but did NOT conclude that any suspension of less than 15 years is permissible].

     Even the one year suspension that the district court decision approved may be constitutionally suspect, though I won't argue the issue here.

I've quoted that exactly as it appeared, but with due respect, Prof. Somin's quotation structure is a bit confusing. It appears to me that his block quote should have ended just before the word "McBryde," and that everything else (starting with the citation to the McBryde case) is his own writing.

The background to this, however, is that in several of his five previous posts, Prof. Somin had asserted his "tension" argument without ever citing any precedents. There is at least one published opinion directly rejecting his arguments — the McBryde case — and affirming a one-year suspension (albeit only from hearing new cases). Now, that holding does only have the authority of a federal district court because the one-year suspension was over, and that issue had become moot by the time the D.C. Circuit ruled on Judge McBryde's challenges. But that's exactly how I cited the case; in other words, I gave my readers not only the district court's ruling, but the information indicating the limits of that ruling's precedential effect. As to the fifteen years, Prof. Somin is simply wrong when he says that I "assert[ed] that the Council could have suspended Judge Kent for 'up to 15 years' of its own initiative." Instead, what I said was that this Council could have chosen a suspension longer than the four months they did specify, which is patently a correct description of the statute, and then I explicitly flagged the dicta: "At least a couple of cases suggest that suspensions of up to fifteen years might be permissible without creating 'quasi-impeachment' problems."

As between Prof. Somin and me, one of us wrote five posts without making any mention of a federal precedent directly on  point on Prof. Somin's "tension" argument. The other of us found and correctly cited one federal precedent that rejects his "tension" argument, while being careful to note that the 15 year figure was a "suggestion," i.e., dicta, and not a holding. Maybe Prof. Somin's correct; maybe McBryde is wrong; maybe Chapter 16 suspensions are unconstitutional; maybe Congress was violating separation of powers doctrine when it delegated that power under the statute; maybe the 19 federal judges on the Judicial Council that suspended Judge Kent for four months were acting unconstitutionally too. I'll readily grant that it's a pretty interesting question, even if the "early returns" (a majority of both houses of Congress, the president, and every one of the federal judges who've so far either expressly or impliedly considered the issue) seem pretty lopsidedly against Prof. Somin. But in failing to cite McBryde at all, for whatever value it may have, in any of his first five posts, I hope Prof. Somin was just being sloppy, and not intellectually dishonest.

Finally, in claiming that I misrepresented his posts, Prof. Somin wrote:

Finally, Beldar mispresents [sic] me as claiming that impeachment is the only and "obvious remedy" for Kent's misconduct. As I explained time and time again in my posts, all I advocate is that "Congress should investigate the issue and give the possibility of impeachment serious consideration" (a direct quote from my first and most detailed post on the subject).

Near the beginning of my original post, I wrote that "[t]he consistent theme being promoted by all of these articles, op eds, and blog posts, is that the Council's punishment was inadequate and that Congress ought to consider impeaching Judge Kent." That seems to me to be exactly what Prof. Somin now says he's been saying, not what he now says I said he said. And note Prof. Somin's careful placement of quote marks in that first sentence I've quoted just above. In fact, I never accused Prof. Somin of saying that impeachment is the "only" remedy for Kent's misconduct, neither using that word nor others with the same gist. Instead, in the passage containing the "obvious remedy" phrase, I quoted the Chronicle article's quotation of Prof. Somin as saying that "the public record on Kent's 'long history of ethical problems' is significant enough that Congress should look into it." (Re-emphasizing what Prof. Somin now says he's been saying, not what he now says I said he said.) And I then said:

Similarly, Prof. Somin had written repeatedly to that same effect in his own blog posts (and in his comments in response to other readers than me), portraying the Council as effectively toothless, with impeachment being the obvious remedy that is justified, but one utterly beyond the Council's power to accomplish or address.

"Portray[al]" and "obviously" are flags to indicate my subjective characterizations, and they include my inferences as to Prof. Somin's motivations and intentions. To the extent that Prof. Somin has intended, in what's now seven separate posts, to only recommend that Congress investigate, and to the extent that he intended to express or even imply no opinion on impeachment itself, then my portrayal and my inference as to what's "obvious" would be inaccurate. Indeed, maybe you, gentle readers, read those six posts as being Prof. Somin urging that Congress investigate and consider impeachment for the purpose of clearing Judge Kent's name. But I think that's silly. He certainly hasn't admitted it in so many words, but the subjective inference which I draw instead (continuing with my politically incorrect "drumbeat" metaphor) is that Prof. Somin, for some reason, is out for Judge Kent's scalp — at least a public investigation, and at least the possibility of impeachment thereafter. If your own interpretation of Prof. Somin's intentions is more benign, such is your right, too.

Review: Stuart Taylor, Jr. and KC Johnson's "Until Proven Innocent"

I should know better than to start a new book after midnight even on a weekend, but upon finishing what I'd been reading last night, I picked up Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, intending to read a chapter or two.

I put it down about twelve hours later to begin typing this review.

I know there are a couple of other books that had already come out this summer about the outrageously fraudulent rape prosecution against three Duke lacrosse players between March 2006 and April 2007. But large chunks of what I already thought I knew about the case came came from my occasional visits over the past year and a half to Dr. KC Johnson's Durham-in-Wonderland blog or, more recently, Johnson's and co-author Stuart Taylor, Jr.'s series of guest posts on The Volokh Conspiracy. I was impressed by their writing there, and by some other reviews I'd read of this book (including Jeralyn Merritt's and Ed Whelan's). So when I received a review copy, it went to the top of my "read-next" stack.

If you care about colleges, or college athletics, or justice and the criminal justice system, or political correctness, or rape and sexual assaults, or race relations, or mainstream media blindness — or any combination thereof — this is an important and worthwhile book. In it you will find much that is educational, shocking, funny, revolting, pathetic, outrageous, courageous, smarmy, and fascinating. It is a genuinely compelling story that, as I read it, frequently alarmed my poor dog (me laughing, me shouting in disbelief, me slamming the book down and then pacing and muttering for five minutes, me getting all choked up with empathy, me racing over to the computer to Google something or someone, me laughing again, and so forth).

*******

The book is far from perfect. The prose is always workmanlike or better, but at least in this first printing the book shows signs of needing a better copy-editor. The first fifty pages occasionally read like the paragraphs were shoveled into position to form a roughly chronological introduction — perhaps because they were drawn in whole or part from blog posts or other writings? or they're new and were whipped up in a comparative hurry? — but without being knitted together very well. But that smooths out as the authors and/or editors hit their respective strides. There were also a distracting number of small proofreading or editing errors (unnecessary commas, unmatched parentheses, and such). My review copy came with a multi-page press release that included a seven-page "dramatis personae" list that I found essential, and that ought to be included in later printings. The index looks awfully thin for the number of text pages and their average indexable facts per page (which is very high). There are neither footnotes nor endnotes (although I would wager that a very large percentage of the source materials are either posted on or hyperlinked from Dr. Johnson's blog). But in context, these are mere nits.

I already knew enough about the case to have drawn confident conclusions about the now-disbarred, disgraced, and genuinely criminally conspiratorial prosecutor, Michael Nifong. If this book hastens by even a day the badly needed criminal prosecution of that man for conspiracy to obstruct justice and other serious felonies, the authors will have done the world in general, and my profession in particular, a great service. He's done one day of jail time for criminal contempt-of-court, and is now a probably judgment-proof defendant in the federal civil rights lawsuit just filed by the three accused players. But the man needs to be prosecuted fairly and aggressively, with all of the scruples minded and due process provided that he honored only in the breach as a prosecutor himself, but with a tenth the pretrial publicity and ten times the vigor he employed. In painting him, this book creates a coherent and thorough narrative that should nauseate anyone who loves the concept of justice. (I had to rinse my mouth after reading that Nifong claims his favorite book is Harper Lee's To Kill a Mockingbird.)

I was also generally acquainted with the despicable performance of the Duke administration, a large vocal minority of the Duke faculty (the "Gang of 88"), and the mainstream media throughout the affair, but the book provides, literally and metaphorically, chapter and verse on their sins of commission and omission. There are many goats, but a surprising and encouraging number of heroes too. (Where, oh where, though, was the rest of the Duke Law faculty besides the conspicuously heroic James E. Coleman, Jr. during all of this? They sat by essentially silent, it would appear, neither reminding their main-campus colleagues of the basic civil liberties they're charged with teaching to law students nor uttering a peep as Nifong proceeded to make mockery of those liberties. For shame, for shame.)

I knew in general that the defendants and their teammates had been badly abused but had kept their heads high and fought back honorably and doggedly. I had no sense before picking up this book, though, of any of the athletes' personal circumstances or characters. The book remedies that deficit, and in the process explodes some stereotypes about them. It also provides a series of vivid vignettes of the various defense lawyers and their complementary strengths and efforts.

*******

But I'll tell you what choked me up, that I did not at all expect to be choked up by: It was the description of, and the quotes from, the women who knew these young men. Their moms and kid sisters. Their classmates among the student body generally, and in particular in the student government and student newspaper (both of which put their "adult" counterparts to shame with their maturity and open-mindedness). And especially their counterparts on the Duke women's lacrosse team (and their coach, Kerstin Kimel), who were themselves formidable NCAA Division I national competitors. They weren't girlfriends or  groupies, but respectful peers who would probably have been among the least tolerant fellow-students imaginable if the male players had indeed been the racist, misogynistic, violent bullies that the prosecution, the PC crowd, and the media insisted on painting them as. Instead:

While the three defendants had been in exile, Yani Newton and her teammates had been advancing to the semifinals of the national championship. In the ACC tournament, all the players had worn blue shoelaces to show solidarity with the men's team. While preparing for the trip to the Final Four in Boston, Coach Kerstin Kimel mentioned to a Herald-Sun reporter, in an off-the-record conversation, that the players might wear "innocent" armbands. By the time the team got to Massachusetts, the tentative plan was all over the news — and was being assailed as scandalous.

The players and coaches discussed the issue before the May 26 semifinal game against Northwestern. Given all the attention, Kimel said, the players could wear the armbands if they wanted but should not if it would be a distraction from the game. Most players settled on armbands displaying the lacrosse-team numbers of Dave [Evans], Reade [Seligmann], and Collin [Finnerty]: 6, 13, and 45, respectively. A few stuck with "Innocent." Midfielder Rachel Sanford wore that message on a headband right across her forehead.

The women lost a heartbreaker in the semifinal, 11-10, in overtime. But many in the media, and on Duke's faculty, were less interested in the game than in trashing the Duke women for having the gall to resist the media-faculty rush to judgment against their friends.

I can just imagine a helmeted, pad-wearing, stick-wielding Ms. Sanford scowling at her opponents from beneath that headband. I would not have wanted to be between her and her team's goal that day.

Allow me to wax old-fartish for a moment (as if I ever don't). Consciously or not, highly motivated, over-achieving college-age young women — despite their own tendencies to be young and irresponsible while they're young and irresponsible — start looking at the boys around them with a critical eye, searching in them to see not just what they are, but the men they are poised to become. Yet for speaking out against the notion that these particular young men were animals that needed caging or tranquilizing or castrating, they were called "stupid, spoiled little girls" (and worse). It was the sudden shock of imagining the male players through the tear-filled eyes of their female classmates — who knew better, who were watching these young men's futures being destroyed, and yet who could do nothing to stop it — that actually yanked my own parental-type reactions into gear.

*******

Co-author Stuart Taylor, Jr. has a law degree from Harvard and spent three years at a superb D.C. firm, Wilmer Cutler & Pickering, and he and Johnson had close cooperation from the defense lawyer teams. As a consequence, there are no significant blunders in their understanding or explaining of the various legal principles and events, and in fact I think they do a commendable job of keeping everything broadly accessible to well-educated non-lawyer readers. In general, they display a solid grasp of prosecutorial responsibilities and ethics. Once or twice, though, I thought their enthusiasm and, well, advocacy for the students and against their foes led them astray.

For example, they do a splendid job of explaining why Nifong's application for a court order compelling all 46 lacrosse team members to surrender DNA samples for testing almost certainly lacked probable cause (some team members had not only not been at the party, but had been in other towns on the night in question, and at least two non-athletes were at the party but not named in the application). They conclusively demonstrate that the application was based on flagrant misstatements and exaggerations of the evidence the prosecutors then had in hand. And from all that, they correctly argue that the order was an unconstitutional intrusion on the players' Fourth Amendment rights. That should be enough, but Taylor and Johnson then proceed to run through all the exculpatory evidence that Nifong's team already had in hand yet didn't mention in their application.

That's a step too far: While obliged to disclose exculpatory evidence, a district attorney isn't ethically obliged to then marshal it against his own arguments in the most persuasive fashion. Part of the exquisite tension inherent in the role of prosecuting arises from prosecutors' obligation to accommodate simultaneous and conflicting roles as evaluators of evidence (to decide whether justice will be served if charges are pursued) and vigorous advocates for the State. The authors clearly understand how badly Nifong abused the first role, and that the second role didn't excuse him in that. But occasionally they seem less than crystal clear on how ethical prosecutors avoid Nifong's abuses while remaining effective advocates.

Similarly, of their three "big picture" wrap-up chapters — on the frequency of prosecutorial abuse generally, age-old tensions in rape law as exacerbated by feminist trends, and the disturbing PC paralysis and intolerance within the academy — it's the first one that I find least perceptive or persuasive. The authors seem ignorant, for example, of the fact that many capital defendants who've been removed from death row or even released from prison don't necessarily receive that relief because they've been proven innocent like the Duke lacrosse players were, but because their convictions and/or sentences have been overturned and, for whatever reason, the state is not quite able to re-establish their guilt beyond a reasonable doubt. (Lots of people who "walk" because their convictions are overturned are not necessarily "innocent.") Nor do I think it's practical to import the British practice of the same barristers prosecuting one week, then defending during the next. And if their assumption is that the British criminal justice system otherwise provides procedural or substantive safeguards for criminal defendants that are better than America's counterparts, they're sadly mistaken.

But overall, this is not just an important book, but a good book. Its authors should be proud of their work. And the rest of us should continue to ponder the lessons the book teaches on a wide variety of topics.

Congratulations to new Fifth Circuit Judge Jennifer Elrod of Houston

I was tickled pink to read (h/t Mary Flood) that by a voice vote late Thursday, the United States Senate confirmed President Bush's nomination of Jennifer Elrod, previously the presiding judge of the 190th Civil District Court in Harris County, to the United States Court of Appeals for the Fifth Circuit.

I tried a week-long jury trial before Judge Elrod in 2006. It was a reasonably complicated commercial case, portions of which she had resolved through partial summary judgment, and the remainder of which she properly submitted to the jury, which returned a verdict in my client's favor. I did not agree with all of her rulings, and indeed, portions of the case are still pending on appeal, and I'm trying to get some of those rulings overturned. I would have blogged previously in support of her pending Fifth Circuit nomination but for the chance that had she not been confirmed, such might have been construed as "sucking up" in the event I'm back in the 190th Civil District Court in that case on remand next year.

But "agreeing with Beldar 100% of the time" is not part of my standard for evaluating a judge's competency (which is good, because I've never yet met such a judge). "Giving Beldar and his client a fair shot when he's before you" is part of my standard, however. And in every instance during that trial, and during its extensive pre- and post-trial proceedings, Judge Elrod carefully and thoroughly considered my and my opponents' written and oral arguments. She displayed a thorough command of trial procedure and the rules of evidence during the trial. Before, during, and after the trial, Judge Elrod's rulings were timely and clear. She works hard. She presided over her court without undue pomp, but with unfailing courtesy and dignity — the sort that can aptly be called "Southern courtly manners" — and with a sure and firm hand. She showed herself to be simultaneously disinterested (she's unbiased) and interested (she paid attention). And she'd know and appreciate the difference between those two words: I have no doubts about her intellectual chops.

The broad and deep experience that Judge Elrod will bring from a big-firm civil litigation practice, and then from the civil trial courts of the nation's fourth largest city, will become a valuable resource for the entire Fifth Circuit. Nan Aron, president of the hard Left "Alliance for Justice" (a/k/a Alliance Against Republican Presidents' Nominees) organization, could find no more persuasive criticism of Dubya's nomination of Judge Elrod than to claim that "[b]y her own admission, Jennifer Elrod has never written a judicial opinion." That's either badly confused, or an outright lie, or more likely an outright lie designed to badly confuse Aron's readers: Trial court judges, of course, generally don't write appellate opinions, and the overwhelming practice in Texas state trial courts is that trial judges review, sometimes revise, but generally sign their names exclusively to orders and judgments prepared by counsel for the litigants. But three mouse clicks away on my own hard drive, I can find multiple examples of detailed written orders that Judge Elrod authored as a trial judge, typically because she was crafting, on her own initiative, a result that wasn't exactly what either side had proposed, or because she wasn't quite satisfied with what either side's counsel had submitted, or simply because her doing the drafting would advance the case in the most expeditious fashion. All of which is to say, she's done more judicial writing than her current job description requires or typically involves, not less.

Will she be a judicial conservative on the federal bench? I think so, based on personal observation of the way she behaved as a trial judge. My case posed no great policy questions and didn't require statutory interpretation. But watching a judge deal with counsel, and then with a jury, over significant periods of time tells one quite a bit about how the judge sees his or her own role in the system. And the best short-hand way I can describe Judge Elrod's judicial demeanor and temperament and self-concept would be "John Roberts-like," which will make perfect sense to those of you who watched much of Chief Justice Roberts' confirmation hearings (and is about the highest compliment I can bestow to a judge, for that matter).

She also reminds me quite a bit of another judge of my acquaintance whose track record went from Baylor to Harvard to Baker Botts to the Harris County District Courts and then beyond: the Hon. Thomas R. Phillips, long-time and recently retired Chief Justice of the Texas Supreme Court, who probably did more than anyone else to restore judicial conservatism and consequent national respect to that bench.

I had been concerned that Democrats might nevertheless try to run the clock out on her nomination. They did not, and to that extent, I will give them due credit for doing their jobs.

Congratulations, Judge Elrod. I wish you a long and productive career on the federal bench.

More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution

After writing my post yesterday, I sent the following email to Austin American-Statesman reporter Chuck Lindell, whose news story Wednesday had been picked up by the AP and others:

Mr. Lindell:

Re your report in Wednesday’s Statesman about the handling of the stay of execution application in the Michael Richard case, you might be interested in some reactions from both left and right among legal bloggers.  You’ll find links and my own take at my blog.

I look forward to your follow-up reporting, but would also appreciate any supplementation you might make or comments you might have via email, either for attribution or not as you prefer.

- Bill Dyer a/k/a Beldar

I received this gracious and self-explanatory reply this morning:

I can answer one of your questions — about the presence of Ed Marty in the story.

The request to remain open past 5 was made to the clerk's office. The clerk asked Marty for an opinion. Marty consulted with Judge Keller, and Marty delivered the news back to the clerk, who called [Texas Defender Service]. In the constraints of space and time (not getting sci-fi on you, but space in the paper and time on deadline) that progression got crunched.

If communication broke down somewhere along that path, it's as yet unexplained.

Also: The term "keep the court open" was used by TDS, so I used it. They also said they asked the court if they would accept a filing after 5 p.m.

I do not know if the term "emergency filing" was used, and (frankly) I did not realize there could be a difference between asking to stay open and asking to accept a late/emergency filing, so I didn't push TDS for a very specific accounting of what they requested.

I can try to answer any specific questions you may have. Feel free to post what you'd like. It's all information, and I'm in the information biz, as we say. One of the pitfalls of writing for a general audience is the omission of minor details that are major details to people who practice law.

Oh, and no more of this "mr. lindell" — I'm Chuck.

Thank you, Chuck! I hereby nominate you for the "2007 Most Cooperative MSM Reporter Conspicuously Lacking Any Chip On His Shoulder When It Comes to Bloggers Award"!

I've also received a reply email tonight from University of Houston Law Professor David R. Dow — who was among the lawyers representing Richard and who's among the most active and widely-quoted scholar-practitioners involved in Texas death penalty defenses and appeals — graciously consenting to my request for a telephone interview. He's traveling over the weekend, and I hope to catch up with him by phone at his convenience as early as Monday morning.

This interstitial information in Chuck Lindell's email response, like that in today's very interesting Houston Chronicle story, nevertheless still leaves me wondering whether Texas Court of Criminal Appeals Presiding Judge Sharon Keller actually made a knowing and deliberate decision to prevent Richard's defense team from filing an emergency stay application outside regular court hours, or whether instead this was a communications breakdown — and if it was the latter, exactly how it happened.

I genuinely would like to know — and not because I've got any stake in defending Judge Keller in particular, nor because I want to divert blame onto anyone on the defense team.

Indeed, I'm yet to be convinced that "blame" is the right word with respect to anyone involved. It bears repeating that everyone in this situation, both at the Texas Court of Criminal Appeals and on the defense team, was necessarily acting under enormous time pressures — caught between an unpredicted SCOTUS cert grant from the Baze case from Kentucky and the Richard execution scheduled for that very same night. There are many ridiculous last-minute stay applications filed without any good excuse for why their arguments couldn't have been raised earlier — but this was emphatically not such a case. The Baze cert grant was indeed a big deal in terms of shifting the balance of factors that courts use to consider those applications in death cases, regardless of whether Baze eventually does or doesn't end up prompting a revamp of execution technology and practices.

That the Richard defense team was able to generate a same-day reaction at all is to their enormous credit; and I didn't previously know that the Texas Court of Criminal Appeals in fact routinely makes detailed preparations in anticipation of last-minute applications in connection with all executions (although I'm not terribly surprised to learn that). At the beginning of my career — not so many years ago — in a pre-fax machine, pre-internet, pre-24/7/365 news environment, assembling a stay application on this sort of time-table, and getting it considered on its merits by not only the Texas Court of Criminal Appeals but then the SCOTUS within a matter of hours after a cert-granted announcement, would have been thought a wild fantasy. Yet today we're seriously asking ourselves if it's a tragedy that all that couldn't be accomplished within those same few hours.

And in terms of the prejudice from the failure to get a consideration of the stay application on its merits, I suppose things certainly could also have been worse: If there were serious alternative grounds for the stay besides the cert grant in Baze, I'm unaware of that; in prior proceedings, Richard almost certainly got full and due consideration on the merits of any other defenses he might have had. The only real consequence was that Richard was executed using the same three-drug "lethal cocktail" that Texas and other states have used in hundreds of executions; and there's no reason to think that Richard's executioners missed his vein and pumped the mix into his muscle mass (as apparently happened in a recent Florida execution, with disturbing results).

But anyone who values due process — and especially the awesome solemnity and responsibility that ought to attend legal proceedings in all capital cases, whether one supports or opposes the death penalty — nevertheless has to be concerned over this situation. There may be important lessons to be learned for at least some, and perhaps many, of the court and defense team personnel involved in this and similar cases. Moreover, in a system in which the AEDPA requires exhaustive presentation of grounds first to state courts before federal courts will consider intervening, the quality of practical access to those state courts is important.

And there may be other systemic implications that merit consideration by the Texas legislature and Texas' highest courts in contexts not limited to death cases: Our federal courts, for example, now almost universally accept — and are coming close to mandating — internet/email filings, whereas the Texas state trial and appellate court systems almost universally forbid them. One can be, like me, a skeptic about the notion of a "living, breathing Constitution" without necessarily also being a Luddite. And when it comes to deciding what "process" is "due," instances like this one should probably prompt us to reconsider whether digital/cyberspace-processes are being short-changed or prohibited without particularly good reason.

-----------------------

Previous posts on the Richard stay application matter, oldest to most recent:

1. Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed?

Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed?

From the right, DRJ at Patterico's Pontifications titles her post "We Close at 5." From the left, Jeralyn Merritt at TalkLeft titles her post TX Judge Closes Courthouse, Prevents Death Appeal.

I like and respect both of these lawyer-bloggers, so I paid close attention when both of them pronounced themselves appalled by linked and quoted* reports of the Texas Court of Criminal Appeals' handling last week of an emergency application for a stay of execution in the case of capital murderer Michael Richard. Jeralyn linked an AP report as reprinted in the Houston Chronicle, and DRJ linked essentially the same AP report as it ran in the Dallas Examiner. The AP report, in turn, appears to rely exclusively on an article from yesterday's Austin American-Statesman, so that's what I'll quote from at length:

The Chi ruling [announcing that the Texas Court of Criminal Appeals was staying Heliberto Chi's execution based on the U.S. Supreme Court's having agreed to hear a Kentucky case, Baze v. Rees, challenging the constitutionality of the three-drug "lethal injection cocktail" used in both states,] came as new details emerged about the Texas court's refusal to stay open past 5 p.m. on Sept. 25 so lawyers could file an appeal on behalf of death row inmate Michael Richard. The Supreme Court had accepted the lethal injection case earlier that day, and Richard's lawyers argued that the extra time was needed to respond to the new circumstances and to address computer problems that delayed the printing of Richard's motion.

Richard was executed later than night, and news of the court's refusal appeared in newspapers, and critical editorials, around the world.

Last week, court personnel declined to say who made the decision to close at 5 p.m.

It was revealed Tuesday that the decision was made by Presiding Judge Sharon Keller without consulting any of the court's eight other judges or later informing them about the decision — including Judge Cheryl Johnson, who was assigned to handle any late motions in Richard's case.

Johnson, who learned about the request to stay open past 5 p.m. in an Austin American-Statesman story, said her first reaction to the news was "utter dismay."

"And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

Johnson said she would have accepted the brief for consideration by the court. "Sure," she said. "I mean, this is a death case."

Judge Cathy Cochran said the Richard case raised troubling questions.

"First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?" Cochran said. "Our courts should be open to always redress a true wrong, and as speedily as possible. That's what courts exist for."

At least three judges were working late in the courthouse that evening, and others were available by phone if needed, court personnel said.

None of the judges was informed of Richard's request by Keller or by the court's general counsel, Edward Marty, who had consulted with Keller on the request.

Keller defended her actions, saying she was relating the court's longstanding practice to close on time.

"I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given," Keller said. "And I know that that is not what other people have said, but that's the truth. They did not tell us they had computer failure.

"And given the late request, and with no reason given, I just said, 'We close at 5.' I didn't really think of it as a decision as much as a statement," Keller said.

[Executive director of the Texas Defender Service Andrea] Keilen, whose organization also handled Richard's appeal, said court clerks were informed about the computer problems.

The clerk's office, asked whether Keller was told of the malfunction, referred questions to Judge Tom Price, who is in charge of court personnel. Price did not respond, and calls to other judges were not returned Tuesday.

"I’m a stickler for law and order but not this kind," writes DRJ. "Outrageous," comments a self-identified former prosecutor at TalkLeft. "Keller's move is ... perilously close to simple murder," accuses another.

So what was my first reaction when I heard this? It was this: "Did they really ask to keep the courthouse open? Or did they instead ask to arrange for an after-hours emergency filing?" Because in deciding whether there was a significant malfunction here, and if so, who was to blame and in what degree, there may be a big difference between those two questions.

*******

Regular readers will know that it's hard for me to express an opinion on something without telling a Beldar war story, and a couple came to mind when I read of this controversy. You can skip them if you're impatient. I've mentioned one of them already in the comments over on Patterico's:

I am a strong proponent of capital punishment. I have been a frequent defender of the Texas judicial system’s administration of the state’s capital punishment laws.

But I was also once a federal appellate court clerk who, from time to time, was “on call” to handle emergency (read: “last minute”) filings in capital cases. And from time to time in that capacity, I had to take extraordinary steps to track down and get in touch with my own judge or one of her fellow judges after hours or on court holidays. I once read an emergency motion aloud over the phone to a Fifth Circuit judge who was standing in his fishing waders on the porch of his East Texas fishing cabin. We hadn’t expected to have to do that, but we’d made plans so that we could if the need arose, and it did; and the judge made a ruling on the merits, which I relayed to a designated deputy clerk of the Fifth Circuit in New Orleans, and thence to the litigants.

I also made a comment there regarding the scope of the potential blunder, if there was one in this instance:

As far as how big a deal this is, overall and in the big picture: Keep in mind that there is no suggestion that because of this communications problem, an "innocent man" was wrongly executed. And there’s no suggestion that Richard’s execution was any more or less painful than any of hundreds of others than have taken place over many years in Texas and many other states.

*******

But this episode also causes me to flash back to Christmas of 1982, when I was a young associate at Baker Botts. On December 21 of that year, our client Burlington Northern had announced a surprise hostile tender offer for some, but not all, of the stock of El Paso Gas Company. The offer was frankly timed to coincide with the holiday season in hopes that might prevent the target from reacting as swiftly and effectively as it otherwise might. But El Paso Gas found a home-town state-court judge who issued an ex parte temporary restraining order ("TRO" for short) purporting to enjoin Burlington's tender offer altogether and — in a nice piece of legal jujutsu — El Paso Gas got that state-court TRO on the morning of Christmas Eve.

Now, we had anticipated just such a lawsuit, and we were fully prepared to dash into federal court to ask a federal judge to enjoin the state-court judge from enforcing such a TRO. In fact, we already had our counter-suit papers (including our TRO motion) drawn up, with just a few blanks remaining to be filled in. And we'd put El Paso Gas' counsel on notice of our representation, meaning that they ought not to have been able to get their state-court TRO without our our first being notified and given an opportunity to appear at least by telephone to contest it. (Their lawyers kind of ignored those ethical rules; funny how situational ethics may become when your largest client is at risk of being swallowed by another company.) And we had frankly expected that El Paso Gas wouldn't be able to get a hearing on their TRO until after Christmas anyway. But instead, suddenly the holidays were working against us.

Thus it came to pass that on Christmas Eve afternoon, I found myself standing on the tarmac outside a private aviation hangar at Houston's Hobby Airport with one of my mentors, the late and truly great John L. Jeffers, Jr. (of whom I've written before, at greatest length here in a post about his triumphs in Pennzoil v. Texaco). None of the commercial flights could get us to El Paso as quickly as we needed to be there, so John had just used his Amex Gold Card to spot-charter a Lear.

And not very long afterwards, a law clerk for U.S. District Judge Harry L. Hudspeth had unlocked the courthouse doors for us, and then proceeded to usher me and John into Judge Hudspeth's chambers library. Judge Hudspeth sat at the end of the conference table in the center of the room, and standing and sitting all along one side of the table were our opposing counsel — at least a dozen of them, as I recall, both from the local firm and from their New York tender offer defense specialists. John and I sat down opposite, with lots of space to spare. ("Looks like you're one wise man short," cracked one of our opponents in a stage whisper. I think that was one of the New York guys.)

There was no heat on in the building, and the City of El Paso was enduring one of its rare, but occasionally brutal, spells of genuine winter weather, so everyone was wearing their overcoats, and many of us were wearing gloves. I could see the moisture condense from Judge Hudspeth's breath as he said, "So, gentlemen, I've read your emergency papers. Let's talk first about Younger v. Harris abstention." And that was my cue to start talking, because the reason Jeffers had brought me along was to argue all of the procedural issues (including abstention).

A few hours later, John and I were back on the Lear, headed for Houston and home. I think Christmas technically came some time while we were in the air, but we may have flown into it as we changed time zones heading back east. I do recall, vaguely, that there was a surprising amount of cold champagne on such a small jet, but it was all gone by the time we landed: We'd prevailed on our emergency TRO and persuaded Judge Hudspeth to order the state-court judge to back off. El Paso Gas' remaining resistance collapsed during the first week in January 1983, some golden parachutes got ratified, and the hostile tender offer turned into a friendly one (that nevertheless generated a SCOTUS opinion a few years later, Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985), with which I had no involvement whatsoever.)

So why — besides the fact that this was one of the quickest, most brutal, and generally coolest and most successful courthouse victories I've ever been associated with in a ginormous case — did this particular war story come to mind?

Because as John was hiring the Lear back in Houston, I'd been on the phone to personnel in the office of the U.S. District Clerk for the Western District of Texas, El Paso Division — which was scheduled to close at noon for the holiday. And I wasn't asking them to "keep the courthouse open." I was asking to arrange an emergency after-hours filing and hearing. It took some persuasion, but I explained how the state-court order was restraining something over $600 million in interstate securities transactions that we believed were protected under federal law, and how the injection of even a few days delay into a tender offer could become outcome-determinative in the marketplace. Eventually, with my arguments being relayed to Judge Hudspeth (probably initially through one of his law clerks at an emergency contact number), in other words, I persuaded them that there was a really good reason why they had to hear us late on Christmas Eve afternoon. Not "life or death," but really important. So they did.

But they didn't keep the whole courthouse open. They didn't need to. Once Judge Hudspeth agreed to hear us, we could have held the hearing anywhere — the El Paso Airport Hilton, the judge's basement recreation room, or on the 50-yard-line of the Sun Bowl. He picked his chambers library, presumably because it was convenient for him, and possibly because it was slightly warmer than the marble-floored courtroom.

*******

So, back to the subject of Michael Richard's emergency application for a stay of execution. I intend to blog further about the merits of the Baze v. Rees case now pending before the SCOTUS. For now, however, let's assume that the grant of certiorari in that case (i.e., the Supreme Court's agreement to hear it) is, by itself, a strong enough reason to justify a temporary freeze on executions here in Texas. That's probably true, although it's not a slam-dunk: The Supreme Court hasn't ordered other states, or even Kentucky, to hold off on lethal executions while Baze is pending, and it's refused to consider many other challenges to lethal injection in the past. But death cases are, indeed, special; stays are sometimes appropriate in them even if there's a low probability of a change in the law, precisely because executions are irreversible.

As Texas Court of Criminal Appeals Judge Cheryl Johnson is quoted as saying, at the very minimum, she "would have accepted the brief for consideration by the court" — on its merits, even if it had been presented after hours and outside normal channels. I'm reasonably sure, in fact, that precisely because the volume of capital convictions and executions has been so much larger in Texas than in any other state, her court probably has more experience in handling emergency applications for stays in capital cases than any other court in the country save, perhaps, for the SCOTUS. And some portion of those will have come outside regular business hours. Indeed, emergency stay applications are so common — not common-place, but common and important — that the judges of the Texas Court of Criminal Appeals have apparently pre-assigned those cases to their individual members so that such applications can be reviewed in the first instance by someone already familiar with the background of the case.

So what did happen here?

I don't think we can tell, yet, nor even draw any confident inferences based on the public reporting so far. But if I were forced to make a wager right now, my wager would be that there was a communications mix-up. That someone downstream — either on the defense team, or else in a subordinate role at the Court of Criminal Appeals — didn't get word to Presiding Judge Keller that this inquiry involved an emergency application for a stay of execution in a capital case in which the execution was to take place that very night.

Presiding Judge Keller's quoted explanation only makes sense if she didn't understand herself to be making a judicial ruling, but to have been asked what was basically an administrative question. Someone — and right now, we don't know who — told her "that the defendant had asked us to stay open." The term "the defendant" can refer to a side generically; it's unclear whether Judge Keller was told, or otherwise knew, who this defendant was, or that he was a capital murder defendant.

And more significantly, "asked [the court] to stay open" is not a phrase I would have expected to be used in connection with an emergency application for a stay of execution. Rather, it's the kind of thing I'd expect someone to use if the speaker were not familiar with the procedural lingo here — perhaps the kind of thing that might be asked, innocently and in good faith, but with tragic consequences, by a paralegal or clerk or secretary or volunteer who'd been tasked by a harried lawyer to "contact the Court of Criminal Appeals and see if we can file after 5:00 o'clock, dammit, we're not going to have the computer glitch fixed before then." It's easy for me to imagine someone on the defense team, acting under incredible time pressures, making that kind of verbal fumble out of inexperience.

But if that phrase were heard by a judge who didn't know that it was from a capital case with an execution set for that night, that judge might well think: "Oh well, sounds like someone's going to be missing a filing deadline, looks like we'll have to be considering a motion to excuse that after the fact in a few days; for their sake, I hope they have a good excuse, but if they're not giving us one now, there's no good reason for me to keep the whole courthouse open and the whole staff here." Because this court, like all trial and appellate courts, deals with blown deadlines all the time; some have big consequences, but most don't.

In short, if it's a life or death situation, most judges would expect that when they ask "Why keep the courthouse open?", someone would say, "Because this is an application to stay an execution that's going to happen tonight, and it's quite literally a life or death situation!"

*******

One of the commenters at TalkLeft (who already had a low opinion of Presiding Judge Keller) thinks that a communications snafu somewhere downstream of Presiding Judge Keller wouldn't explain the quotes from the other judges. About that, I replied:

The other judges' comments certainly indicate dismay and anger.  You're inferring, though, that it's directed at Presiding Judge Keller.  Maybe it is.  Or maybe they're expressing their frustration over a communications breakdown that's attributable to someone else.  I don't think you can tell that from what's been reported so far.

....

Judge Johnson is quoted as saying: "And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings." Well, yeah, but ... asked by whom? Asked by Presiding Judge Keller? Asked by someone downstream in the clerk's staff? Or asked by Richard's lawyers?

What I actually find more troubling than the quotes from the other judges is the obscure involvement of "the court's general counsel, Edward Marty, who had consulted with Keller on the request." How did he get in this loop, unless he happened to be who answered the phone to begin with?

*******

Maybe in refusing to jump to the conclusion obviously intended by the American-Statesman writer, I'm putting too much weight on how odd "keep the courthouse open" sounds to my jaded ear. If it indeed turns out that Presiding Judge Keller's refusal of the request to "keep the courthouse open" was made by her with full appreciation of the fact that it would effectively block an after-hours emergency stay application for an execution scheduled for that night, then I, too, will join DRJ and Jeralyn in being appalled, shocked, and dismayed.

But Presiding Judge Keller has been on the Texas Court of Criminal Appeals since 1994. I've got to think she's considered many, many dozens of emergency stay applications outside of regular court hours in the past. Death penalty opponents who paint that court as being populated by ghouls and demons are, quite simply, full of crap; you may not agree with its results, but they are in business to render justice as they understand that term based on their own precedents and those from the SCOTUS. Why, after all of these years, would she pick the day of a potentially monumental SCOTUS cert grant to gratuitously slam the door in a stay applicant's face?

I want to know more. But for now, I'm unwilling to jump to the single one of several possible explanations for this which presumes either bad faith or incompetence on the part of this or, frankly, any other judge.

-------------------

UPDATE (Fri Oct 5 @ 5:00pm): Today's Houston Chronicle has a very interesting follow-up story that nevertheless leaves unanswered many of the basic factual questions that I think must be addressed before one can be confident that one has an understanding of what actually happened with the Richard stay application — much less why those things happened, who was responsible, and in what degree. The citizen-journalist bug having bitten me again, I've emailed University of Houston Law Professor David Dow with a request for a telephone or email interview, and I'll certainly post again if he gives me a favorable reply.

Minnesota trial court rejects Craig's motion to withdraw guilty plea

Sen. Larry Craig's motion to withdraw his guilty plea has been denied. Here's Judge Charles A. Porter's 27-page order, along with the Metropolitan Airport Commission's one-page press release. I'll have more analysis after reviewing the order.

-----------------

UPDATE (Thu Oct 4 @ 2:40 pm): I've now read the order. Craig is toast.

This is an order written by a judge who is very experienced; who knew that what he was writing is likely to be appealed; and who was therefore being very thorough and very careful to do everything possible to make his ruling bulletproof on appeal. He's almost certainly succeeded.

For example, Judge Porter's order recites (page 2 of the .pdf) that Craig "concedes for the purposes of this motion that the facts contained in the Complaint and in the affidavits and statements of the two Metropolitan Airport Commission ("MAC") Police Department officers are true." That is undoubtedly based on a concession sought and obtained by Judge Porter from Craig's counsel during the oral argument. It's the kind of thing that is incredibly important for purposes of a future appeal — but of course, none of the news media who covered the hearing bothered to mention it. The practical effect is that the prosecution's version of the facts hasn't been challenged at all. And any reviewing appellate court won't even consider any contrary factual arguments.

Similarly, the opinion recites (page 7 of the .pdf file) that Craig's lawyers conceded "that when he accepted the guilty plea, Judge Larson had access to the official court file, which included the Complaint." That's doubtless another concession extracted during the oral argument, and it further bolsters the factual worst-case scenario against Craig, while simultaneously expanding and maximizing the fact pattern from which Judge Larson could have found a basis to conclude that the disorderly conduct statute had indeed been violated. This concession renders moot, in other words, any argument that Craig's lawyers made to the effect that there was an inadequate showing in the written motion to accept his guilty plea, by itself, of facts tending to show a violation of the statute.

Mind you, I'm not faulting Craig's lawyers for making these concessions. As a practical matter, they had to do so if they were to maintain any credibility whatsoever. My point is that by nailing these points down,  first at the hearing and then again in the written order, Judge Porter was adding Kevlar to his ultimate ruling for appellate purposes — anticipating, and then pre-negating, what otherwise might have turned into appellate arguments for Craig.

On two subsidiary points on which he had discretionary rulings to make, Judge Porter actually ruled against the prosecution: First, he refused to reject Craig's motion in its entirety as being untimely; and second, he refused to strike the profoundly silly amicus brief filed by the ACLU. Contrary rulings would have given Craig (or the ACLU) something to complain about in an appeal. But they're deprived now of those arguments, and Judge Porter has also demonstrated that he wasn't just blindly following the prosecution's lead or wholly unreceptive to opposing positions. And yet these subsidiary rulings didn't affect Judge Porter's ultimate ruling in rejecting Craig's motion to withdraw his guilty plea. Though timely, Judge Porter concluded that Craig's motion lacked merit; and he spent a page near the end (page 26 of the .pdf) explaining why the ACLU's arguments also lacked merit.

The rest of the opinion just methodically examines and then demolishes every one of Craig's sprawling, sometimes conflicting arguments — often displaying a light sense of irony in the process. For example, after quoting from the petition to enter a guilty plea that prosecutor Renz prepared for Craig's review and signature, Judge Porter examines Craig's argument that his "guilty plea lacked a sufficient factual basis" (page 12 of the .pdf; emphasis mine):

This factual basis contains the requisite date, location, and elements of the offense, but clearly does not describe, in detail, the conduct that substantively supports each element of the offense. The Defendant argues that because the factual basis in the petition lacks detail, he was therefore not aware of the facts  underlying his conduct coinciding with the elements of the offense, or more importantly, that he was not admitting to having engaged in that conduct. This is illogical. The Defendant admits in his post-conviction affidavit that he pled [guilty] in haste in an effort to avoid the public disclosure of the very facts which he now maintains should have been painstakingly detailed in the petition and therefore of record memorializing his admission to specific facts. This Court believes that the Defendant's plea had a more than sufficient factual basis on the face of the petition.

In effect, this is chiding Craig (my paraphrase, not a quote): "Don't be faulting the prosecutor or the court for not rubbing your face in all the sordid details of your crime, Sen. Craig! We were cutting you some slack." But the opinion then proceeds to go through the rest of the conduct in all its detail as revealed in the complaint, lest there be any doubt.

And of course, by the end, there's really not. There never really has been — except in the minds of well-meaning civil libertarians whose zeal to protect gay rights blinded them to the simpler reality that, whether intended as part of a gay cruising ritual or not, an airport traveler's protracted staring into someone else's bathroom stall, and then poking his hand and foot into it to wave at and then rub against that stall's occupant, is just not acceptable conduct in a public restroom.

The opinion also includes an exoneration of both Sgt. Karsnia and prosecutor Renz from any blame or overreaching. It quite appropriately puts all of the responsibility — first for the crime, and then for the guilty plea — directly where it should be, which is to say, directly on Sen. Larry Craig.

What's missing from the opinion? The same damn thing that was missing — inexplicably to me — from Craig's lawyers' written papers: A focused discussion of Minnesota Rule of Criminal Procedure 15.02(3), as made applicable to mail-in pleas by Rule 15.03. In fact, there's no mention of either rule. That may well reflect the absolutely lousy job that Craig's lawyers did of pointing out that these proceedings didn't strictly comply with those rules. But as a result, what I and other legal pundits thought was Craig's very best argument isn't addressed at all. An appellate court would probably conclude, if asked, that Craig has waived that argument by failing to make it more clearly.

And now it simply remains to see whether Sen. Craig plans to become a professional pariah. His chances of successfully appealing this ruling are somewhere below 1% in my opinion; this motion was a farce, but an appeal from this ruling would be nothing but tragic. Will he add "oath-breaker" to his record by continuing to disregard his pledge to resign?

Just quit, Larry. For the sake of your family, if for no one else. Just ... quit.

-----------------

UPDATE (Thu Oct 4 @ 5:10 pm): He says he's staying through the end of his current term (January 2009). As part of the press release, he says: "I am innocent of the charges against me. I continue to work with my legal team to explore my additional legal options."

Bring on the Senate hearings. Roll in the klieg lights. It looks as though columnist Dan Popkey was right in predicting that Craig actually wanted to lose this ruling because it would permit him to continue appeals through the end of his term while avoiding an actual trial. So: The Senate should force that trial upon him, in the context of an ethics hearing. Those proceedings are likely to be many times more nasty than a criminal trial anyway. Heat the tar, gather the feathers, and strike up the band, boys, the circus is coming to town.

A lawmaker who is a convicted lawbreaker says the law's rulings don't apply to him, and such a man can't be permitted to remain in office.

-----------------

UPDATE (Fri Oct 5 @ 3:15 pm): James Joyner very ably fisks Craig's "not gunna resign nyah-nyah" press release.

-----------------------

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea
9. Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand
10. Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea
11. Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"?

Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"?

It's October 1st, and Sen. Larry Craig's self-imposed resignation deadline has passed without his formal resignation being tendered. Dan Popkey, a columnist for the homestate newspaper whose investigation Craig claims "panicked" him into pleading guilty, the Idaho Statesman, hypothesizes today that the senator may have a new plan — one that not only anticipates, but depends upon Craig losing last Wednesday's trial court hearing on his motion to withdraw his guilty plea (boldface mine):

On Sept. 1, Sen. Larry Craig told Idaho and the world he intended to resign Sept. 30. That's today. Instead, Craig says he plans to stay "for now." ...

... Now, Idaho Republican leaders tell me they've come to believe Craig will likely complete his term in January 2009.

"'‘For now' is permanent," said one. "He ain't leaving."

....

Craig has about $500,000 in the bank for his 2008 re-election campaign. He is authorized to use that to pay lawyers.

....

Craig's bid to complete his term would be best served by heading off a trial. A trial would mean testimony from the arresting officer and experts on the culture of anonymous homosexual sex. That's not something Craig, his family, Idahoans or the GOP want to endure.

So far, Craig's strategy is working. Minnesota's Fourth District Judge Charles Porter was skeptical of the arguments of Craig's lawyers. If Porter rules against Craig, as most legal experts expect, Craig won't face a jury anytime soon.

Porter might surprise us and set a trial date in coming months. But the likely scenario is Craig will head to the Minnesota Court of Appeals. He can expect oral argument within two or three months after filing his challenge to an unsatisfactory ruling. An appellate decision would come within another 90 days, extending Craig's battle to spring.

Next step: the Minnesota Supreme Court, with arguments to come two or three months after a second appeal. The average time between argument and a decision is 4 months. That gets Craig to term's end in January 2009.

Well. That certainly would explain the abysmal quality of Craig's legal team's strategy, tactics, and written work product so far: Maybe their instructions were to get in there and throw the game!

*******

As of today, as on every day since his guilty plea was accepted on August 8, 2007, in the eyes of the law, Craig is a convicted criminal — one conclusively proved by his own admissions to have committed the misdemeanor disorderly conduct offense alleged in the complaint against him. Unless Judge Porter permits him to withdraw his plea, Craig will remain a convicted criminal — subject only to the shall and successively diminishing chances of Judge Porter's decision being reversed on appeal.

I don't know whether Judge Porter will issue a written opinion, or simply issue a thumbs up-or-down ruling granting or denying Craig's motion. But if — as seems likely, given his taking the motion under advisement at the hearing, and waiting until some time this week to announce his decision — Judge Porter both denies the motion and issues an opinion explaining that ruling, the opinion is almost certain to contain language affirming that Craig's guilty plea (and waiver of associated rights as part thereof) was voluntary and uncoerced. In any event, if Craig's planning on "hanging tough" and "holding out," he has to anticipate doing so not only in the face of a continuing legal adjudication of guilt, but also in the face of Judge Porter's public re-affirmation of Craig's guilty plea (either implicitly or explicitly).

It's unlikely that Craig's misdemeanor crime (involving no abuse of his office), his breaking of his pledge to resign, or his general hypocrisy — even when taken collectively — are adequate grounds for his formal impeachment and removal from office. So in that very important sense, it doesn't matter what Judge Porter, the Minnesota Court of Appeals, or the Minnesota Supreme Court ultimately do with Craig's conviction, nor when they do it.

However, for purposes of the entry of a judgment of conviction, the Constitution presumes that everyone's innocent until proven guilty. That presumption of innocence is one of the rights that Craig waived when he entered his guilty plea. And with the waiver of that legal right, Craig also forfeited any moral right to ask his colleagues and constituents to reserve or withhold their own judgments. Asking them to withhold their political judgment for a month, while he asked for a mulligan at the trial court level, was damned presumptuous of him. Asking them to withhold their political judgment for many months, while he exhausts further appeals, would be outrageous, and indeed, insulting.

If Craig insists on staying even if Judge Porter rules against his plea withdrawal motion, the pendency of further appeals ought furnish him with zero political cover. The Constitution may grant Sen. Craig the effective opportunity to make a mockery of his own office, and to poke his thumb repeatedly in the eyes of everyone around him — and that's what he'll be doing if he stays on despite an unfavorable ruling this week. But that doesn't mean anyone whom he's thus abusing has to be nice, or polite, or even minimally respectful to him in return.

Whoever among his senate colleagues is presently shaking his hand and encouraging him, even by acting as though his continued presence is "normal" — and I'm looking directly at you, Sen. Specter, you great sanctimonious buffoon, but also at you, Senators Crapo, Smith, and Lott — is doing neither Craig, his constituents, nor his party any favors at all. You're not even being his "friend" by helping him block out reality; you're just enabling more bad behavior that will ultimately heighten and prolong his disgrace. And even if it's likely to result in no more than a public censure, the Senate should definitely proceed with its threatened open ethics hearing (complete with klieg lights, C-SPAN, and vigorous inquiries into "patterns" of misbehavior), and his office space should be relocated to a post office somewhere in central Virginia or Maryland.

Right now, I mostly still pity the man. Is he going to deliberately earn our contempt as well?

I hope columnist Popkey is wrong, and that "for now" really does mean "for now while my motion is still pending at the trial court level, which will be the immediate end of it when and if my pending motion is denied."

-----------------------

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea
9. Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand
10. Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea

Review: Ron Liebman's "Death by Rodrigo"

Long ago in the spring of 1979, when I was the incoming book review editor for the Texas Law Review, the out-going book review editor told me a secret:

"Book publishers like to see their books reviewed in serious periodicals like ours," he said. "Sells more books. So if you write them a letter asking nicely, most times they'll send us a free 'review copy' of their new books! You can skim the book and see if you think it's worth reviewing. Sometimes, though, you can tell even before you get it that a book is going to be worth our reviewing, so you don't have to wait for the book. You can go ahead and start lining up a reviewer, and then forward the book as soon as you get it."

And thus I learned that part of my job was to scour the pages of magazines and newspapers that mentioned newly-released, or even soon anticipated, books about legal topics, to consider them as possible candidates for which we'd seek distinguished law professors to write book reviews for the Texas Law Review. The professors, of course, got to keep the books, but still: What a deal! Free books — and new ones, in hardback!

*******

Fast-forward twenty-seven years. I get a really polite email from a well-spoken publicist at Simon & Schuster, a serious publishing company on anyone's list of serious publishing companies, asking me if I'd like a review copy of Ron Liebman's new novel, Death by Rodrigo. "Sure," I write back. The book arrives in the mail a few days later with a nice hand-written note on embossed note-card stock from the publicist enclosed. Very classy. No visible strings.

And objectively, this is the kind of handsome book I might have bought out of my own pocket in an airport bookstore somewhere anyway, because I like books, and I like hardbacks, and I like books about courtroom lawyers — and from the jacket blurb raves, this particular one sounds like it will be pretty funny. And I'm not particularly offended by the jacket art. Hey, it's discreet; I've seen truck mudflaps that are much more raunchy. When I'm in airport bookstores, I don't look for books with silhouettes of strippers pole-dancing on inverted gavels, but that's no reason not to buy a book, is it?

I hit the internet before I open the book. Liebman, per his law firm's website and the looseleaf promo sheet also enclosed with the book, is a senior partner in the litigation section of a serious Washington law firm, Patton Boggs. Pretty interesting résumé, even discounting for the puffery inherent in all such online efforts: Among other things, he apparently had something to do as an AUSA prosecuting Spiro Agnew once upon a time, which must have been a hoot (while, of course, being very, very serious business). He clerked for a U.S. District Judge in Baltimore back in the day, which means he'd seen the soup-to-nuts practice even before he arrived inside the Beltway. That's intriguing. War-horse, not show-horse, stuff.

The promo sheet also says he "plays in a rock band," though. Oh. Really? They were smart to leave that off the book jacket.

Nineteen pages into the book, however — at the end of Chapter One — I just hated it. "Wow," I thought to myself, "I'd like to keep getting nice free books from Simon & Schuster, but not at the price of writing a puff-piece review on my blog that I don't really mean." It's funny enough, I'm thinking, but not quite as funny as I'd been led to believe by the jacket blurbs. It doesn't seem very novel, as novels go.

But then the book really surprised me, at the beginning of Chapter Two.

Read more >>  Options >> 

*******

The punch that jolts you is the one you didn't see coming. That's true in the boxing ring, and it's true in fiction, including legal fiction. I'm not going to put any spoilers in this review, but I will tell you that on page 22, Liebman landed a solid left uppercut on me.

Anyone reviewing, or even just reading, this book will not be able to avoid drawing comparisons to HBO's The Sopranos. It's inevitable, because Liebman's protagonist is an Italian-heritage criminal defense lawyer who lives in New Jersey and whose nickname, for Pete's sake, is "Junne," like "Junior," like "Uncle Junior." And for other reasons. But don't assume that you'll be stuck on those comparisons as you work through this novel.

For one thing: Start with David Margulies, the fabulous character actor who played Neil Mink — (still wondering?) — who was Tony Soprano's regular lawyer (oh, him). Make him 20, but not 30, years younger. Then move your map over a few hundred yards culturally, but about 90 miles southwest geographically, from Newark to Camden, N.J., across the river from Philadelphia. Then move your law firm indicator down and diagonally two notches, to the kind of lawyer who's two full steps below Mink but still one step above the barely surviving public defender — to the kind of street-smart, public school criminal defense lawyer who subleases his office space, but who disdains indigent appointments, but who has to keep his continuing reputation among the city's non-mobbed pimps and drug-dealers constantly in mind. An ex-cop criminal defense lawyer who got his law degree from night school and had a really hard time passing the bar, but who has a line of metaphorical notches on his six-shooters from having slain "white-shoe" hotshot opponents in jury trials, and from whom the mighty and powerful may well find themselves well obliged to seek counsel when they need down-and-dirty legal representation. (Meaning, when they're guilty as sin.) The kind of lawyer from whom a basically honest jail guard might borrow $20 until the next payday when he really needs it, not in exchange for anything crooked, but just because they respect each other for working hard in crummy jobs, one of which pays a little better than the other.

Usually I read lawyer fiction in hopes of seeing some really brilliant courtroom riffs that I might steal, or at least profit from. That's not this book. The courtroom scenes are all from pretrial hearings, and while there are winners and losers, heroes and goats, those scenes can best be described as gritty and realistic, rather than glib or instructional.

On the other hand, I don't usually expect lawyer books to leave me rubbing my chin, wondering about the "human condition." Liebman's book is subtly provocative, ambiguous, and thereby ultimately lifelike. Oh, it does have some laugh-out-loud passages. But it's not a collection of war-stories, and it's not a romp.

*******

Bottom-line, it entertained me while I read it, but a day after finishing it, Death by Rodrigo has left me still thinking about it on both personal and professional levels. That's a surprise — a pleasant one, actually. I'll leave you to decide for yourself if my judgment has been compromised by getting it for free, or by the fact that I'll make some fractional portion of a dollar if you choose to order it in hardback from Amazon via the link above. But here's Beldar's thumb — pointed up.

A non-cartoonish discussion of SCOTUS Justices and their rulings

This is a grumpy post, but that's the way I feel tonight. Further to Sunday's post about people who write about the Supreme Court:

If you read these three blog posts by Ed Whelan on NRO's "Bench Memos" blog — here, here, and here — you will get a non-cartoonish understanding of a series of important issues relating mostly to SCOTUS abortion precedents that Jeffrey Toobin's book The Nine treats in a shallow, cartoonish, and demonstrably wrong fashion.

Ed is a smart guy. He writes well and concisely, which means that I often have to read the individual sentences in his blog posts more than once to ensure than I'm grasping what he's said. (This is a good thing; it means that sharper minds than mine can spend less time reading his posts than the ones I write here, which are intended to be mostly understandable on a quick pass-through; but I lack Ed's discipline.) He is a sophisticated observer, and he's not talking through one of his nether orifices to please some editor or any particular audience.

*******

Let me try to come at this another way. I emphatically, fervently believe that the Supreme Court Justice of the last half-century (my life-time) whom I respect least — Mr. Justice Harry Andrew Blackmun, the author of (among many thousands of other opinions) Roe v. Wade — was a hard-working, intelligent, patriotic, admirable man who was doing his human best, as he saw it, to further the Rule of Law and to protect and defend the Constitution of the United States and the country it establishes. If his ghost appears on my doorstep tonight, I will shake its hand and praise its live human predecessor's lifetime of devout service to our country. If the sum total of my life's accomplishments amount to a fraction of his, I will die happy.

Nevertheless, I think he was, relatively speaking, an awful Justice who, by the time he retired, was messing things up as best he could, despite his best intentions, with virtually every vote.

But the explanation for why he was doing that requires a detailed discussion, and a thorough appreciation, of the issues involved in the cases on which he was voting. If I encountered someone in the proverbial bar room in which I'd had maybe one too many, who then said, "Yeah, that Blackmun, he was a real a**hole and a Communist to boot," I'd probably punch that guy's lights out and end up spending the rest of the night in jail. Even Harry Blackmun — in my view the worst Justice of the modern Supreme Court — deserves better than that sort of shallow dismissal.

I emphatically do not think that one has to have a law degree from anywhere, much less one from Harvard, Yale, or Stanford, to formulate and voice a meaningful opinion about the work of the Supreme Court of the United States. Law professors, law review students and editors, and (occasionally) judges engage in those debates in the formal, constipated, useful, and inaccessible pages of law reviews (and less often, in judicial opinions) — thereby self-limiting their audiences very sharply. But the premise of my blog — the reason I write this damned thing — is my conviction that the law is not, and ought not be, inexplicable to a broader audience.

And I'll be damned if I'll try to pander to that broader audience by writing variations of:

• Justice ___ voted ___ because his daddy was falsely accused of insurance fraud in 1934; or
• Justice ___ says ___ was the wrong decision because she was really chapped that Dubya didn't name another woman to the SCOTUS to take her slot; or
• Justice ____ voted ___ because he's in BusHitler's pocket on the war on terror.

*******

Facts matter. Prior precedents matter. Proceedings in the lower courts matter. The quality of the arguments of counsel, and of the arguments among judges, matter.

The law isn't a damned Pachinko machine, and neither Snidely Whiplash nor Dudley Do-Right sit on the Supreme Court.

-------------

UPDATE (Wed Sep 26th @ wee-small-hours): I'm late in finding it, but I endorse and adopt Prof. Ann Althouse's views in this op-ed.

Comma quote Jay period Dee period unquote

Without exception, I think every single law school graduate whom I've ever encountered who signs his or her name "John Doe, J.D." has been a shallow, pompous dimwit. But how much more pompous must one be to sign a blog comment that way?

In my professional correspondence (but nowhere else), in the inside address, I'll append the honorific ", Esq." after the names of both male and female lawyers (other than myself). It's a cost-free sign of respect, but it actually serves a more practical purpose because it's a reminder for me at a later glance if the addressee is a lawyer or a layperson; and there are different ethical rules that govern my communications with each.

I don't really even have a problem with doctors and dentists or even PhDs who engage in the whole cult of "Doctor This" and "Doctor That." Fine, whatever.

And finally, I humbly submit the entirety of this blog as a tribute to my respect and awe for the mystic, ever-revered Rule of Law, the practical and tangible institutions of the law, and the majestic, mysterious challenges and rewards of the practice of law (when done right or reasonably close thereto).

But "J.D." by itself does not denote membership in a very exclusive club. So to my fellow law school graduates who haven't figured it out yet: Signing your name with a ", J.D." after it tells us all a lot about you, and the information so conveyed is probably useful for us to have. It's not, however, likely to create the impression that you intended.

-------------

UPDATE (Wed Sep 26 @ 1:45am): Follow-up comments here and here. On further investigation, I like the commenter — who thinks I'm a smug bastard, to which I plead nolo contendere without prejudice to the reputation of my parents — better, despite our differing political views. Still think she ought to drop the ", J.D." though, for it can lead to over-harsh first assessments (as mine was, for which, although provoked, I apologize).

Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand

Maybe Washington hotshot lawyer Billy Martin has been reading my recommendations to prosecutor Chris Renz that Renz pop Martin's client, Sen. Larry Craig, onto the witness stand at tomorrow's hearing on Craig's motion to withdraw his guilty plea. According to the Associated Press:

Senator Larry Craig won't be there when his lawyers go to court in Minnesota tomorrow in search of a rare legal prize — a do-over.

A spokeswoman for Craig attorney Billy Martin says the Idaho Republican won't be attending the hearing at a suburban Minneapolis courthouse.

And per a CBS News report (actually quoting a blog on Politico.com):

Sen. Larry Craig (R-Idaho) told reporters that he will not attend his hearing tomorrow in Minnesota on seeking the withdrawal of his guilty plea in a men's room sex sting.

"I've been advised not to," Craig said at the Capitol. "I have very competent lawyers."

Craig then slipped into the Senate Republican Conference luncheon and ignored further questions.

In the meantime, Craig continues to be coy on whether he'll go through with his announced intention to formally resign from the Senate on September 30th.

Craig's public announcement of that his lawyers have advised him not to attend the hearing is all the more reason for Renz to make a formal hearsay objection on the record to Craig's affidavit, as attached to Craig's motion.

"Your Honor," Renz should say, "in support of his motion to withdraw his guilty plea, Sen. Craig has asked the Court to venture outside the record that was already on file when the Court accepted his guilty plea. He filed a detailed written affidavit that raises factual questions about his state of mind, his intentions, what was said to him by the arresting officer, and a variety of other crucial facts upon which his entire motion depends. Some statements in the affidavit are conclusory; but some are very detailed.

"The prosecution is perfectly willing to address those facts too, Your Honor," Renz should continue, "But only in the manner prescribed by rules of evidence for the adversary system. Sen. Craig's affidavit is an out-of-court statement. Although sworn, it was not subject to cross-examination. His lawyers are offering the affidavit to prove the truth of the factual allegations in it. The affidavit is, therefore, hearsay. The prosecution therefore objects to the affidavit, and moves to strike it from the record. We will have no objection, however, if — to try to prove the facts as to which he's already attested in his affidavit — Sen. Craig takes the witness stand.

"By filing his affidavit," Renz should say, "Sen. Craig has already waived his constitutional privilege against self-incrimination, if only for purposes of this motion and on the topics he voluntarily addressed in his affidavit. The prosecution disputes some of his factual assertions, and justice requires that we be permitted to cross-examine Sen. Craig on those assertions. The prosecution has submitted a counter-affidavit, my own, to challenge some of Sen. Craig's factual assertions and to add context on factual matters that he ignored. And yes, it is also subject to a valid hearsay objection, if Sen. Craig's lawyers choose to make one. But the prosecution has no objection to being required to prove those facts through my own live testimony, and I have no reluctance to subject myself to cross-examination from Sen. Craig's lawyers. Indeed, I have with me a colleague from my firm to take over as first chair for the prosecution while I'm on the witness stand.

"No doubt as a tactical maneuver," Renz should wind up, "Sen. Craig's counsel has not brought him to this hearing. Sen. Craig has been quoted in the national media as saying he would not attend, and that that decision was based on the advice of his counsel. But if the Court sustains — as it must, under the rules of evidence — the prosecution's hearsay objection to Sen. Craig's affidavit, then the prosecution will have no objection to a one-day adjournment of this hearing in order that Mr. Martin can secure Sen. Craig's personal attendance. The State's interest is not in hiding any facts, but rather, in fully developing them. And we welcome the opportunity to do so — provided that is done in accordance with the rules of evidence, and not through a self-serving piece of testimony drafted for Sen. Craig by his lawyers at the same time they're trying to immunize his testimonial assertions from being tested by cross-examination."

Craig's lawyers are trying to have their cake and eat it too. Craig's non-appearance sends a powerful, if implicit, message that he has a good reason to be scared to come to court. And in fact, he does, because the truth will sink him.

But Renz ought not be content with Craig's non-appearance, and he definitely ought not let Craig's lawyers get away with trying to use Craig's affidavit without Craig being there live for cross-examination. The hearsay objection is an absolutely valid one as a matter of basic evidentiary law. It should be sustained. And then, if faced with the decision whether (a) to take the stand in support of his motion to withdraw his plea or (b) simply withdrawing that motion altogether and letting his guilty plea and conviction stand, Craig might well take the latter option.

-----------------------

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea

Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea

Think of the motion filed by Craig's lawyers to withdraw his guilty plea as a piñata. Now, piñatas are often donkeys, but Craig's a Republican. I can't find a good picture of an elephant piñata, however. So think of Craig's motion as being a clown piñata.

I've been to enough kids' birthday parties and, heck, bought and hung enough piñatas for my own kids, to appreciate that the darned things (the piñatas, not just the kids) can sometimes be tougher than they look. But at least since I read the cover letter under which part-time prosecutor Chris Renz mailed Sen. Larry Craig the proposed motion to enter a guilty plea to disorderly conduct in exchange for the dismissal of a far more serious peeping charge, I've known that this particular piñata is paper-thin. It may be festooned with lots of colored paper and ribbons, but it's poorly crafted. And at its best moment, it was already hanging from a slender, very frayed thread.

To extend the metaphor: Think of prosecutor Renz' 41-page response to Craig's motion (a hefty 2.3 megabyte .pdf file) and 33-page supporting affidavit with exhibits (which weighs in at a comparatively svelte 1.7 megs in .pdf) as large broom handles. They're a bit rough in a few spots; they're workmanlike, functional tools, not works of art. And as wielded, they don't quite knock the piñata all the way out of the park.

But then again, it's just a piñata, after all, and not a horse-hide covered baseball — and these broom handles are far more than adequate to knock it down and pound it repeatedly until nothing is left but dozens of messy little clown piñata pieces.

And the piñata turned out to be empty inside anyway, which I guess really isn't that much of a surprise after all. I think this Wednesday's party hearing is likely to be a grim one for Sen. Craig and his team.

*******

Renz' filings today, now available as part of a handy court website, add more texture and detail that largely confirm the inferences I've previously drawn about the plea negotiation process. Not counting voicemails, Renz spoke with Craig by telephone on three different occasions — on June 25th, just as Sgt. Karsnia and Renz were finishing up the paperwork for the complaint; then again on July 17th, when they discussed in detail the plea bargain terms that Renz had  outlined in their first conversation; and then again briefly on July 31st. In terms of what's new and important, here are the two key paragraphs (from pp. 3-4 of the affidavit; emphasis mine):

     13.     On July 17, 2007, I spoke with the Defendant and explained that in exchange for a plea of guilty to the charge of disorderly conduct, the interference with privacy charge would be dismissed. I told the Defendant that the sentence would be 10 days of jail, all of which would be stayed for a year on the condition that the Defendant have no same or similar violations, and a $1000.00 fine, $500.00 of which would be stayed for one year on the same condition. I told the Defendant that this offer was similar to offers made to other defendants with similar charges. I spoke with the Defendant about the process that would occur for entry of the plea, such as how it would be processed, the people that would see the petition, and the ultimate destination of the petition. I explained that the plea petition would be filed with the court and the petition and conviction would be a matter of public record.

     14.     During the July 17, 2007 telephone conversation, the Defendant expressed that he was in a difficult situation as a result of the nature of the charges and his position as a United States Senator. I responded to the Defendant that I had appreciation for the fact that this was probably a difficult situation and [I] told him that it was a situation regarding which he should seek advice from an attorney. In that phone conversation, the Defendant asked that I send the plea offer to the same address as the Complaint so that he could review it with an attorney. I also told the Defendant that I would continue his arraignment date that had originally been set by the Court for July 25, 2007 for two weeks so as to allow time for him to consider the plea agreement.

Although more detailed, all of this is entirely consistent with Renz' cover letter (Exhibit B at pp. 13-14 of the affidavit; also here) forwarding the proposed plea motion to Craig, which I discussed at length in my September 12th post, and which I concluded then had already effectively sunk Craig's present hopes to withdraw his plea. Unless Craig is willing to take the stand to deny the authenticity of the cover letter or deny that he received it — and I don't think that's going to happen — Craig's unlikely to be able to effectively challenge any of these supplementary factual details from Renz' affidavit either. Craig's lawyers may try to spin the facts and the inferences that flow from them differently than Renz has, in other words, but they aren't likely to dispute them directly.

And that creates even more serious problems for Craig. One of the most effective portions of Renz' memorandum is his argument (at pp. 35-37) that this history shows that Craig took a calculated gamble that the plea wouldn't be discovered by the press — a gamble that turned out to be a spectacularly bad one, but that after the fact can form no proper basis for Craig to withdraw his guilty plea.

Renz also does a decent job, I think, in arguing (at pp. 37-41) — notwithstanding some incredibly pro-defendant, wishy-washy Minnesota precedent creating no effective or even nominal deadlines for motions to withdraw guilty pleas — that in these circumstances, Craig's plea is nevertheless "untimely." He did not argue (as I would have) that it's particularly significant that Craig failed to file a timely motion for new trial (or to set aside the judgment based on the guilty plea); there's none of the "direct attack/collateral attack" distinction that Texas law makes, and that I think the Minnesota cases may permit even if they don't mandate it. Nevertheless, finding Craig's motion untimely is appropriate, Renz argues, "not because the raw amount of time between the plea and motion is itself necessarily substantial," but rather because Craig "appears to be playing games with the plea and its finality" by "announc[ing] that he planned to seek withdrawal of his plea, but wait[ing] in filing his motion to determine the consequences of waxing and waning public opinion, the support of his fellow politicians, and committees of the legislature." 

*******

Otherwise, today's filings do pretty much what I expected they would. They hammer (and re-hammer) the prosecution's obvious strong points, but also touch on a few more subtle ones. They include a good-sized smattering of helpful precedents (which I haven't double-checked, but I have no reason to doubt that they say what they're represented to say, which is all pretty straightforward). Wisely, they don't re-tread the ground already discussed in the prosecution's motion to strike the ACLU's silly amicus brief, which I've previously discussed (here and here).

What's entirely missing is potentially important, but — given how Craig's motion was constructed — no surprise, either: There's no mention, much less discussion, of Rule 15.02 of the Minnesota Rule of Criminal Procedure, as made binding on mail-in pleas by Rule 15.03. Neither is there any mention of Appendix B or Appendix C to Rules 15, which contain forms that at least on their face it would seem that Renz should have followed in drafting the motion to enter the guilty plea. Nor is there any mention of Form 11 — which at least looks like something that either Renz or the court personnel should have insisted that Craig complete before permitting him to represent himself pro se, and that would have certainly cured any alleged Rule 15.02(2) problem with the failure of the plea motion to contain a specific confirmation that Craig knew of, and was making a well-informed and voluntary decision to waive, his right to counsel at every stage of the proceedings, including in connection with the negotiation of his plea bargain and entry of his guilty plea.

But Craig's lawyers did an incredibly poor job of showing the violation of any of those rules or procedures in the first place, or of making any credible argument as to how Craig could have been prejudiced by those violations. And on the whole, Renz' memorandum does a decent if a bit blurry job of at least dispelling the notion that Craig could possibly have been prejudiced by such violations (of the rules Renz' memorandum pointedly fails to discuss).

It may not be too late for Craig's lawyers to remedy their sloppiness, however. Muddled and ineffective as their written motion was, perhaps at the oral argument they can bring laser-like clarity and precision to their showing that these rules were violated. To the extent that Craig has any hope of winning, that, in my judgment, is what they absolutely have to do. And they'd better come up with at least some straight-faced argument — one better than the utterly stupid and implausible "panic" argument from their motion — to show how Craig was actually harmed by the clear violation of those rules.

In fact, to the extent Craig was indeed harmed by failing to have a lawyer, it's not because he necessarily would have fought both charges through trial and won, but because he might well have been able simply to negotiate a much better plea through a lawyer. And thus, if I were Craig's lawyer, I'd pop Renz on the stand specifically to explore the statement in his affidavit that the deal Craig got was "similar" to offers made to comparable defendants (a proposition which the NYT has suggested may be in doubt):

And so, Mr. Renz, did you tell Sen. Craig that in some other 'similar' cases arising out of this same police sting, you'd agreed to pleas involving deferred prosecution or deferred adjudication? You didn't? Oh-ho, I see. And isn't it true that in all those other cases, the defendants did have lawyers to negotiate such a plea on their behalf? I thought so. So the bottom line, Mr. Renz, is that despite all your mouthing of hollow assurances to Sen. Craig about his rights to see a lawyer, you — knowing full well that he was in mortal dread of anyone finding out about this — were content to see him take a 'similar' but really not very good deal, knowing that if he actually did get a lawyer, that lawyer almost certainly would have explored options that didn't necessarily involve any permanent criminal record, much less a guilty plea — isn't that right, Mr. Renz?"

But then again, I also continue to think that Renz ought to pop Craig on the witness stand on Wednesday — and that Craig has far more to lose than the prosecution does if what's scheduled as "oral argument" turns instead into a contested evidentiary hearing. If Renz intends to do that, however, he probably ought to have objected on hearsay grounds to Craig's affidavit as part of his written response to Craig's motion — and he didn't. So maybe his intention is to play it safe, hope that there's no live testimony, and hope his pre-existing advantages from before the hearing carry the prosecution safely through the end of it.

Make no mistake: I continue to think that Craig ought to lose, and that it's overwhelmingly probable that he will lose. But as much fun as I'm having watching and reading about all this from afar, like any real trial lawyer, I wish I were going to be down in the center ring of the circus on Wednesday. And yes, I could have fun representing either side. I'm like an old calvary horse, trained to ride to the sound of the guns. And there will likely be a fair amount of pyrotechnic glory in Minneapolis this Wednesday afternoon (even if it's less than I'd try to set off if I were there in person representing either side)!

-----------------------

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea

SCOTUS members and results as cartoon characters and themes

In response to my short post yesterday on The Jeffrey Rosen's NYT Magazine article about Justice Stevens, one of my commenters, referring to the nine members of the Supreme Court, wrote: "Nobody likes to work with a backstabber and, when the backstabber is one of only nine, relations can't be good."

Here's the thing, though: Yellow journalists masquerading as legal scholars like The Jeffrey Rosen do their very best to persuade us that the Justices view each other in terms like "back-stabbers." In truth, you'll find, for example, Justice Scalia and his wife joining Justice Ginsberg and her husband at the opera several times a year because they like and respect each other despite their very different judicial viewpoints.

Not everyone in this world operates at the schoolyard level of decorum. And in fact, there tends to be a pretty high level of positive correlation between (a) maturity and (b) the set of talents and career histories that can get one appointed to the Supreme Court.

Read Rosen's whole interview with Stevens. Look hard for personal insults toward other Justices that come from Stevens' lips. There aren't any. Instead, you get things like Rosen reporting that Stevens' "eyes [were] flashing" as he talked about Bush v. Gore.

Wow, really? His eyes were flashing? Way cool: John Paul Stevens as Optimus Prime! Pew-pew-pew! That, plus gossip and innuendo, is what Rosen has to peddle.

In July, I wrote a lengthy review of the best book about the SCOTUS I've read in years, Jan Crawford Greenberg's Supreme Conflict. One of the things that made that book better than most is that it relied very little on the notion that personality and personal politics define judicial outcomes. For the most part, Greenberg avoided turning the Justices into cartoons; and she performed a genuinely useful public service, in a genuinely fascinating manner, by helping us get a better sense of the "people inside the robes."

But where her book was weakest was on those occasions when she did fall prey to the perhaps irresistible temptation to presume that amateur psychology and politics can explain or even predict any given Justice's votes. And less disciplined writers offer almost nothing but that.

My friend Patterico, for example, is reading Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court, which I haven't yet read, and he describes it as "entertaining." But he literally can't get through the book without feeling compelled to turn to his blog keyboard to point out an incredibly obvious internal contradiction in Toobin's writing about Justice Thomas — a contradiction so stunning that one wonders just how bad Toobin's editors must have been. Ann Althouse has had similar reactions (e.g., here, here, and here), as has Eugene Volokh (e.g., here and here).

The Justices themselves generally resist efforts to turn them into cartoons, and sometimes these journalists will quote them directly as they do so. From Rosen's piece on Stevens, for example, consider this (emphasis mine):

In general, Stevens said, the idea that a justice can sway his colleagues through collegiality and personal lobbying — a talent often attributed to Justice William J. Brennan Jr. — is exaggerated. He suggested that in most cases, justices cannot be swayed to change their votes once they make up their minds, and when they can be swayed, it is only as a result of legal arguments, not charm or charisma. "I was very fond of Bill Brennan — loved the guy and had great admiration for him," Stevens said. "But it’s simply not right to say that he was able to craft the majority. He just had five votes on his side!"

So what does Rosen do in the very next paragraph? He insists that Stevens sways colleagues other than through legal arguments, by using an "intellectual" method of persuasion — namely, gamesmanship in assigning the writing of majority opinions:

Stevens himself, however, has been notably successful in building majorities by courting his fellow justices — in particular, Kennedy. His methods of persuasion are intellectual rather than personal, and they are closely tied to the court’s procedure for deciding cases. After the justices hear the oral arguments, they meet in a private conference to deliberate. After the chief justice speaks, each of the remaining justices speaks in order of seniority, so that Stevens speaks second. Then the justices vote, and the majority opinion is assigned. The majority opinion later circulates among the justices, and on rare occasions a justice may then change his or her vote, and a majority can become a dissent. But "you very rarely win votes if there aren’t five votes persuaded after our conference," Stevens stressed. "Very rare."

"Oh-ho!" we're expected to chortle, "That clever Justice Stevens! He's got that Justice Kennedy wrapped around his little finger!" Rosen would thus have us believe that the outcomes of decisions at the highest court in the land are based on B'rer Rabbit strategies, instead of the Justices' very best efforts to decide cases fairly and appropriately based on the actual law.

But suckers nevertheless will eat up melodrama like that dished out by Rosen — and think him wise for having written it, and themselves better-informed for having read it. Life is indeed more entertaining, and vastly simpler, if we reduce all the complexities — of which there are many at the SCOTUS — down to a cartoon level. The question is, gentle reader: Do you choose to be one of those suckers?

------------------

UPDATE (Tue Sep 25 @ 7:08pm): Betsy Newmark highlights another part of Rosen's story — regarding Justice Stevens' military service as one of the codebreakers who helped decrypt Japanese communications that, in turn, led to the successful fighter attack on General Yamamato — and one of my commenters asked for my take on it. My reactions were multi-fold: First, as the son of another Pacific Theater veteran from WW2, I respect and honor Justice Stevens' service.

Second, notwithstanding that respect, it strikes me as entirely understandable from a human perspective, but naïve from a military one, to feel any qualms about a leadership decapitation strategy in wartime — a strategy that surely predates recorded history, and that we saw again as recently as 2003's Iraq War strikes hoping to kill Saddam.

Third and finally, this particular bit of reporting by Rosen is just fine insofar as it helps better acquaint us with Justice Stevens as a living, breathing individual inside his robes, so to speak. But Rosen's assumption that it explains, or even significantly influences, Stevens' votes on death penalty cases is another example of the cartoonish treatment the rest of the article gives to Justice Stevens' work on the Court. Rosen wrote: "Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately." Well, okay. Let's assume that's an accurate paraphrase of something Justice Stevens actually said. That's not the same as saying — and I'm sure Justice Stevens would dispute any suggestion — that his war-time experience is equally or more important than the law, the factual record, and the arguments of counsel in influencing Stevens' votes. Unlike Justices Brennan and Marshall, Stevens does not routinely dissent from denials of cert in death penalty cases. There's no question that he's "liberal" or "predisposed" against death sentences, but it's not for reasons as simple as Rosen's piece implies. And ultimately, it's insulting to Justice Stevens' (or other principled death penalty opponents') intellect to gloss over the real, and very complicated, reasons that he votes as he does.

So: My take, boiled down to seven words: "Interesting. But not profound. And potentially misleading."

Best self-debunking line I've read this month

The Jeffrey Rosen, writing in a Sunday's NYT Magazine article about Associate Justice John Paul Stevens, breathlessly informs us:

According to the gossip among Supreme Court law clerks, the level of tension among the justices is higher than at any point since Bush v. Gore in 2000.

And the way these unnamed one-year transient SCOTUS employees (speaking on a not-for-attribution basis) would know this is ...?

De gustibus cerevesiae non scit lex

I'm deeply skeptical of attempts by reporters like the NYT's Adam Liptak to draw broad conclusions about how a nominee for a cabinet post might perform based on the nominee's rulings in a handful of cases he's presided over as a judge. I'm even more skeptical of attempts to compare one such judge's stats against other judges' stats — as if it's meaningful that, in a single particular year,

in criminal cases, he was reversed 20 percent of the time, compared with an overall reversal rate from his court of roughly 15 percent in 2006. But in civil cases, his 24 percent reversal rate compared favorably with the overall rate of roughly 30 percent.

Nonetheless, Liptak's attempt to apply these analytic techniques to Attorney General nominee Michael Mukasey is entertaining, including for the bastardized Latin quote above, a holding that the law does not trouble itself to write about the taste of competing brands of beer. And I'm untroubled by the prospect that the future Attorney General may be "fiercely intelligent, prickly, impatient, practical and suspicious of abstractions." The less polite formulation may be "kicks butt and takes names." For an AG-nominee, that counts as good press. The more I read, the more eager I am to hear from Judge Mukasey at his confirmation hearings. I'm ready to get some cerevesiae chilled down, and I might pop popcorn.

Rather v. CBS: Experts, "boardroom truth" versus "courtroom truth," and settlement values

A premise of the adversary system, as practiced in American civil courts, is that each opposing party, motivated by rational self-interest, will, through its advocates (and the witnesses they call and the evidence they present), make the strongest possible presentations for the propositions that support its case, and against the propositions that support its opponent's case. The system thereby relies on the parties' presumptively opposing self-interests, and the fair and open competition between them, to help promote goals like "truth" and "justice." Factor in a fair judge and jury, the awesome inherent power of cross-examination well performed, and the ability of both sides to compel the production of witnesses and documents via subpoena (both during pretrial discovery and at trial), and you have what is potentially (albeit not always in practice) the greatest engine for the development of the truth ever known to man.

The danger inherent in Dan Rather's new lawsuit against CBS, however, is that neither side's self-interests will necessarily be served by "truth." To the contrary, both sides are undoubtedly guilty of hiding things from the American public in the past, and both are likely to have compelling reasons to continue to hide things — not just from each other, but from the public — as pretrial discovery proceeds.

If, for example, CBS' overriding interest is to defeat Rather's lawsuit by using all the tools of the civil justice system to establish the absolute, objective truth to the satisfaction of a court and jury, then by the close of business today CBS' lawyers will already have at least have attempted to hire Joseph M. Newcomer, PhD as a consulting expert witness, and very likely ultimately as a testifying expert witness. Or if, as is entirely likely, Dr. Newcomer refuses to agree to be engaged by either side, they will nevertheless identify him in due course as a potential non-retained expert upon whose opinion testimony CBS expects to rely at trial.

If you followed Ra^thergate at all as it developed, you will probably recall Dr. Newcomer as having written these very straightforward words at the very beginning and end of his independent initial report on the so-called Killian Memos on September 12, 2004:

First off, before I start getting a lot of the wrong kind of mail: I am not a fan of George Bush. But I am even less a fan of attempts to commit fraud, and particularly by a complete and utter failure of those we entrust to ensure that if the news is at least accurate. I know it is asking far too much to expect the news to be unbiased. But the people involved should not actually lie to us, or promulgate lies created by hoaxers, through their own incompetence.

There has been a lot of activity on the Internet recently concerning the forged CBS documents. I do not even dignify this statement with the traditional weasel-word “alleged,” because it takes approximately 30 seconds for anyone who is knowledgeable in the history of electronic document production to recognize this whole collection is certainly a forgery, and approximately five minutes to prove to anyone technically competent that the documents are a forgery. I was able to replicate two of the documents within a few minutes. At time I am writing this, CBS is stonewalling. They were hoaxed, pure and simple.  CBS failed to exercise anything even approximately like due diligence. I am not sure what sort of "expert" they called in to authenticate the document, but anything I say about his qualifications to judge digital typography is likely to be considered libelous (no matter how true they are) and I would not say them in print in a public forum.

....

It is therefore my expert opinion that these documents are modern forgeries.

And in his original, where my ellipsis appears in this quote, you will find a fabulously detailed, well organized, and inherently credible explanation for how he came to that opinion, and what his qualifications are for doing so. He buttressed those conclusions with no less than ten detailed follow-up reports, the last of which is dated January 11, 2005. During the course of those follow-ups, Dr. Newcomer tackled and, in my opinion, thoroughly destroyed a contrary opinion from a Utah State professor named David Hailey, whose final and still wishy-washy conclusion was: "In the end, I am confident I have demonstrated the memos were typed, but I cannot support the argument they were typed on any specific machine." In other words, despite months of efforts and all his supposed expertise, Dr. Hailey could not duplicate the Killian Memos on any typewriter, anywhere. And Dr. Hailey's flailing efforts were by far the most persuasive attempt to even postulate a way in which the Killian Memos might have been genuine.

That's not to say that there aren't lots of other potential expert witnesses that both sides might consider engaging. But if CBS hired me tomorrow to defend it in Dan Rather's lawsuit (which it won't, although it did seem pretty happy the last time I represented CBS News before the Fifth Circuit some years ago), the very next phone number I'd dial would be Dr. Newcomer's. I've dealt with hundreds of expert witnesses and thousands of expert witness reports over the last 27 years of my commercial litigation practice, and every instinct in my body tells me I'd want CBS to have the benefit of Dr. Newcomer's expertise — just his honest, unshaded opinions, even though they make the entire "60 Minutes II" team look even less competent and more corrupt than CBS has ever yet admitted. I'd want that because I'd be gunning to establish "courtroom truth," not "boardroom truth."

*******

But there is a huge question whether CBS actually does want to take advantage of this splendid opportunity to prove in court, once and for all, that the documents Dan Rather was peddling to the American public were forgeries. It didn't press the Thornburgh-Boccardi Panel to come to a conclusion on that point — just like it didn't press the Panel to go bare-knuckled when it came to assessing Dan Rather's personal share of blame. Until now, CBS has only cared about "boardroom truth" — which often is, shall we say, a more malleable concept by its very nature.

And that's why Rather's case — as incredibly, stinkingly, appallingly, cosmically bogus as it is — nevertheless has some considerable settlement value: Not because CBS is likely to lose to Rather if the truth is confirmed in court, but because individual decision-makers within CBS may have overwhelming vested interests in ensuring that the facts are not thoroughly probed in court.

By failing to fire Rather for cause, by whitewashing his personal responsibility while only firing others, and by enabling the shattered fragments of his journalistic reputation to keep stumbling along for almost two more years before he finally staggered away from the Tiffany Network on his own two feet, CBS has put Dan Rather in a position from which he may very well be able to effectively blackmail the network into a settlement. Rather may be saying to CBS: "I'm going to show how righteous I was, and that you were wrong!" But what CBS may hear (and justly fear) is: "I'm going to make you show how corrupt I was, and that will necessarily also show that you were right there in that corrupt bed with me."

*******

Part of the settlement will be monetary. Rather had a seven-figure annual income as anchor, and so CBS is quite literally used to writing him checks in that order of magnitude, or perhaps the next one up. It's not like it's going to come out of any corporate officers' year-end bonus money anyway, is it? Rather implied at one point during his Thursday night appearance on "Larry King Live" that he's financing this lawsuit out of his own pocket, and he's probably paying his lawyers by the hour rather than through a contingent fee arrangement. His law firm, Chicago-based Sonnenschien Rath & Rosenthal, generally represents blue-chip corporate clients who pay by the hour. In his continuing derangement, Rather probably thinks his case is worth so much on its merits that it would be uneconomical for him to give away any significant fraction of it to his lawyers, and that he'd end up paying them less on an hourly-rate basis. And the sad, sad fact is that CBS is probably going to turn out to be so gutless and litigation gun-shy on this particular matter, he's probably right.

The actual sticking point is likely to be one of draftsmanship and face-saving: What will the negotiated press release say by way of apology? Because that's certainly a great deal of Gunga Dan's motivation here. And thus, as I wrote yesterday, CBS may already be taste-testing several varieties of crow-sandwich to see which ones it can tolerate that might also appease the Rather palate:

Dan Rather was and is a reporter of exceptional integrity and ability whom CBS was proud to have as the public face of CBS News for more than three decades. CBS sincerely regrets the possibility that anything it said or failed to say may have given rise to an inference or appearance of greater personal responsibility on the part of Mr. Rather for the broadcast in question than may or may not have been actually justifiable. CBS hereby reaffirms that it was never CBS' intention to "scapegoat" Mr. Rather, and regrets any words or deeds which might have given that impression. After a frank and professional airing of views, the parties have resolved all misunderstandings between them, and they have agreed to the immediate termination of all litigation on terms that both sides find satisfactory but about which, due to their mutual respect, both sides will refrain from any further comment.

Just about makes you want to puke, huh? But that's how I think it's most likely to end — with a whimper, not a bang, and definitely outside the spotlights that would be focused on a public trial. Because for the civil justice system to establish the objective truth through a public trial, at least one side has to want the truth to come out. And when the side with the money really doesn't, those cases don't very often go to trial.

----------------------

UPDATE (Mon Sep 24 @ 9:39am): NYU Department of Journalism Associate Prof. Jay Rosen's post and comments (especially his in response to various of his readers) are clear-eyed and heartening to those of us who still want to believe in journalistic ethics. Highly recommended.

----------------------

Previous posts about Rather v. CBS, from oldest to most recent:

1. Just tell me when I can get in line for tickets to attend the trial: Rather v. CBS
2. Adjusting Mary Mapes' meds

Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea

Yesterday the prosecution in Sen. Larry Craig's case filed a very short motion to strike the very silly amicus brief previously filed by the ACLU in support of Craig's pending motion to withdraw his guilty plea. The prosecution's supporting memorandum argues that Minnesota law doesn't permit amicus briefs in trial court proceedings, but then goes on to address the ACLU brief's merits, or rather, the lack thereof.

I doubt there will be a formal ruling on the motion to strike before the oral argument scheduled for next Wednesday, September 26th, on Craig's motion. And I suspect that the real point of yesterday's filing was not such much to try to make the judge pretend he hasn't even read the ACLU's brief as, instead, to (a) rebut it and (b) give the judge a ready excuse (if he wants or needs one) for not bothering to address the ACLU's arguments directly if he makes an oral or written explanation for his ruling on Craig's motion.

I didn't see any particular surprises in this filing, but I'm still looking forward to seeing the prosecution's response on the merits to Craig's motion, hopefully next Monday.

*******

In the meantime, Craig continues to leave open the possibility that he might not leave the Senate by his self-imposed September 30th deadline:

U.S. Sen. Larry Craig said Thursday that he's waiting to find out whether a judge dismisses his guilty plea next week before he decides whether he'll step down from the Senate at the end of the month.

"I just don't know yet," Craig said, when asked whether he would resign Sept. 30.

His decision to continue in office past his self-imposed deadline will depend on "the legal issues, and those kind of things I'm working on," Craig, R-Idaho, told McClatchy Newspapers in a brief interview.

I don't suppose Sen. Minority Leader Mitch McConnell (R-KY) has the power to require Craig to file a written motion to withdraw his "intent to resign" announcement. But he may have other remedies in mind to crank up the pressure on Craig to keep his promises at least in that respect, even if Craig is successful at next week's hearing.

I continue to believe Craig won't be, however. And I continue to hope that the prosecution call Craig to the witness stand at the hearing next week — which, as I've previously written, I believe the prosecution is entitled to do based on Craig's having submitted a sworn affidavit with his motion. Faced with a snap decision whether to take the stand to face cross-examination or not, Craig might drop his motion to withdraw his guilty plea on the spot. Of course, that would presume that he and his lawyers have a rational appreciation of their risks and benefits, and there's no evidence yet to support that theory, and considerable contrary evidence.

*******

Finally for now, just in case this case isn't bizarre enough for you yet, there's this:

[T]he American Land Rights Association, based in Battle Ground, Wash., says that Craig's misadventures were actually just another salvo in the "War on the West."

As the ALRA explained in an e-mail to members: "By ambushing Senator Larry Craig, the Minneapolis-St. Paul Airport Police have effectively declared war on the West. They are primarily responsible for greatly weakening private property rights and Federal land use advocates in the Senate Energy and Natural Resources Committee and in Congress. We are urging you to make all your flight arrangements avoiding the Minneapolis-St. Paul Airport for at least the next year and probably longer. We'll keep you posted as the boycott develops."

Oh, yes. Please keep us posted. From there in the second stall on the left, Sgt. Karsnia seems likely to grind all free Westerners under the heel of, umm, Minnesotan hegemony.

-----------------------

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal

Adjusting Mary Mapes' meds

Generalissimo Francisco Franco is still dead. Dan Rather is still nuts. And Mary Mapes is still a fraud:

We reported that since these documents were copies, not originals, they could not be fully authenticated, at least not in the legal sense. They could not be subjected to tests to determine the age of the paper or the ink. We did get corroboration on the content and support from a couple of longtime document analysts saying they saw nothing indicating that the memos were not real.

Instantly, the far right blogosphere bully boys pronounced themselves experts on document analysis, and began attacking the form and font in the memos. They screamed objections that ultimately proved to have no basis in fact. But they captured the argument. They dominated the discussion by churning out gigabytes of mind-numbing internet dissertations about the typeface in the memos, focusing on the curl at the end of the "a," the dip on the top of the "t," the spacing, the superscript, which typewriters were used in the military in 1972.

It was a deceptive approach, and it worked.

It's possible that some of the readers of the Huffpo who are nodding and saying, "Yeah, that's right!" as they read Mapes' op-ed are so ill-informed about the facts that they might be excused for being misled by her. But the only explanation for how Mary Mapes could write that last sentence is that she is a genuinely pathological liar. And having herself been the producer for the broadcast, only someone genuinely, clinically psychotic could deny that CBS' own experts alerted them to massive indicators that the documents were forged before the broadcast. An ordinary liar, one who still has a grasp on objective reality in the world, would surely come up with a better argument than that.

The only remaining question to me, then, seems to be this: Haldol, or something newer like Clozapine?

(Some of you reading that will say, "Wow, that's so snarky as to cross the border into meanness. Beldar's usually not that harsh." If so, you misunderstand me. I really am saying that I literally believe she is psychotic, and that her particular mental illness involves a compulsion to tell and re-tell lies. It's obviously a lay opinion, for I don't have any medical training. But I'm not engaging in any hyperbole.)

--------------------

UPDATE (Fri Sep 21 @ 8:00pm): This is a very measured but detailed reaction to Mapes' op-ed from someone who self-identifies as being "a member of the 'reality-based community'" who aptly concludes: "Mary Mapes' attempt to rehabilitate those forged documents is not based in any kind of reality that I understand." (H/t Eugene Volokh.)

Just tell me when I can get in line for tickets to attend the trial: Rather v. CBS

I haven't seen the complaint yet, but I can hardly wait, and I'd eagerly pay my own way to NYC to watch the trial or even any significant pretrial hearings in this new lawsuit (h/t InstaPundit):

Dan Rather filed a $70 million lawsuit Wednesday against CBS, alleging that the network made him a "scapegoat" for a discredited story about President Bush's National Guard service.

The 75-year-old Rather, whose final months were clouded by controversy over the report, says the complaint stems from "CBS' intentional mishandling" of the aftermath of the story.

The lawsuit, filed in State Supreme Court in Manhattan, also names CBS President and CEO Leslie Moonves, Viacom Inc., Viacom Chairman Sumner Redstone and former CBS News President Andrew Heyward. (At the time Viacom Inc. owned CBS. But Viacom and CBS Corp. split into two different companies in January 2006.)

Rather, the former anchorman of the "CBS Evening News," is seeking $20 million in compensatory damages and $50 million in punitive damages.

My first reaction upon reading this was to wonder whether the appropriate statute of limitations had already run. But I can't answer that question, because I can't tell from this story what type of claim Rather's purporting to make. I don't recall studying the tort of "intentional mishandling of a news story aftermath" in law school, but maybe I was sick that day.

My glee is tempered by my realization that this case is almost certainly going to go away before it gets to any good stuff. But oh! it would be fun to watch CBS be forced to justify its putting of Rather out to pasture in a not-quite-firing by showing all of the grounds it had. Usually in a good juicy family court spat, you find yourself in sympathy with at least one litigant. But here's a case in which I can just cut loose and enjoy the misery and embarrassment of all concerned! (I continue to take pride in the high ranking of this post of mine from 2004 in search engine responses to the words "Dan Rather fired.")

-------------------

UPDATE (Wed Sep 19 @ 10:40pm): One of my regular readers and commenters provided a link to the complaint in a comment below, for which I'm grateful.

The law firm that Rather has retained, Chicago-based Sonnenschein Nath & Rosenthal, is indeed a good firm. The complaint that Sonnenschein's New York office has filed on Dan Rather's behalf, however, is a nicely buffed and polished piece of garbage. The lawyers who wrote it appear to have been infected with Rather's own delusions, as becomes clear when one gets to numbered paragraph 3 on the second page:

The Broadcast incorporated copies of documents written by Mr. Bush's commanding officer, Lt. Col. Jerry B. Killian ("Documents"), corroborating important aspects of the story.

Not "purportedly written" or "allegedly written," mind you, but just "written." Later in the complaint (at pp. 19-21), while not quite affirmatively asserting that the "Documents" are indeed genuine, Rather's lawyers come very close to that by alleging that Erik Rigler, a private investigator hired by CBS, had reported to a CBS executive that "he was of the opinion that the Killian Documents were most likely authentic," but that Rigler's conclusion was covered up in the report of the CBS Investigatory Panel, and that CBS then prevented Rather from having any further contact with Rigler.

This is too funny to be believed, coming from the news anchor who actively participated in the suppression and ignoring of CBS' own experts' reservations about the authenticity of the Killian Documents before the broadcast ever aired.

But put aside the fact that his lawyers have apparently bought into Rather's paranoid schizophrenia on the facts. Let me tell you in a single paragraph why "garbage" is about the nicest term that can be applied to this pleading.

Rather's lawyers allege a claim for breach of contract based on an oral understanding for a contract extension that, by their own admission, was never consummated and never reduced to writing. They ignore what I'm quite sure will be a devastating waiver/estoppel counter-argument by CBS that Rather kept cashing his paychecks for many months until he finally left the network a few months before the scheduled expiration of his written contract. [See revision note below.] They allege that CBS was Rather's "fiduciary" — and I'm sorry, but that's so badly wrong as a matter of law that every one of the Sonnenschien lawyers whose name appears on this complaint ought to be sanctioned for making it (because when it comes to negotiating extensions of your employment contract, your employer is not your fiduciary but your adversary). Their tort claims against the CBS execs in their individual capacity don't even attempt to allege facts to show that they were acting outside their corporate employment capacities — making those another set of claims that are, in my judgment, so wrong as a matter of law as to be sanctionable. And the fraud claims consist of all the other claims repackaged along with an allegation that the defendants' bad acts were deliberate, and that the defendants fooled poor ol' Dan about their true and truly evil intentions for a really long time.

Do not misunderstand me to be saying that CBS did everything, or much of anything, even mostly right or in an even approximately timely fashion. They covered for Rather and his team for far too long, and the Thornburgh-Boccardi Panel was far too timid and equivocal in its findings. Rather and everyone else should have been publicly exposed, condemned, and fired for cause by CBS no later than September 15, 2004. And for trying to paper over Rather and his cohorts' fraud instead of simply calling it what it actually was, and for keeping Rather on the payroll instead of putting him on the street with all his "literally dozens of Emmy Awards" in a stack of cardboard boxes, CBS does, in a sense, very much "deserve" this lawsuit.

But if CBS has the guts to fight it — and that is an open question — CBS will win it. You can bet the ranch on it.

-------------------

UPDATE (Thu Sep 20 @ 6:30am): Yeah, Rather's lead lawyer is just as nuts as he is. From Howard Kurtz in today's WaPo:

[Martin] Gold, Rather's lawyer, maintained that "nobody's proved the documents were forgeries. The way we look at it, it's more than likely the documents are authentic."

Let me give you another indication from the complaint just how entirely out of touch these lawyers are with how this all developed. From paragraph 8 (at page 3), during the introduction to the complaint (emphasis mine):

Central to the defendants' plan to pacify the White House was to offer Mr. Rather as the public face of the story, and as a scapegoat for CBS management's bungling of the entire episode — which, as a direct result, became known publicly as "Rathergate."

But it wasn't "Rathergate"; it was, most emphatically, "Ra^thergate." (On September 10, 2004, as the new name was sweeping across the blogosphere (and doing so with absolutely no prompting from CBS management), I posted instructions for "the html-challenged" on how to do the superscript.) And if Martin Gold knew even that simple fact, and why it's important, he couldn't possibly be quoted in the New York Times as saying "it's more than likely the documents are authentic."

State of Florida v. Andrew Meyer: Spoilt ham faces meaty prison term of up to 5 years

Why is this report so unsurprising?

Police noted that [Meyer's] demeanor "completely changed once the cameras were not in sight" and described him as laughing and being lighthearted as he was being driven to the Alachua County Detention Center.

"I am not mad at you guys, you didn't do anything wrong. You were just trying to do your job," Meyer said, according to the police report.

At one point, he asked whether there were going to be cameras at the jail, according to the report.

As I said in a comment to my own original post on this incident, poor dear Tasered Andrew Meyer is probably the happiest man in America tonight.

But he ought not be:

Meyer was charged with resisting arrest with violence — a felony — and a misdemeanor count of disturbing the peace. He was released without having to post bond Tuesday.

That first charge would be under Fla. Stat. § 843.01:

Resisting officer with violence to his or her person. — Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); ... or other person ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The Florida sentencing statutes are pretty complicated, but the cross-reference to section 775.082 appears to provide that the punishment for such third degree felonies for first-time offenders is "a term of imprisonment not exceeding 5 years." That's probably a worst-case scenario. And given that he didn't slug any police officers, and neither, apparently, did he end up much harming any of them through his thrashing around and other resistance, I suspect there's a good chance that Meyer would actually be convicted of some lesser included offense and/or sentenced to less than the maximum penalty for this one. Nevertheless, this charge ought to be a sparky bite of horseradish when it's properly appreciated by a free-wheeling publicity-hungry 21-year-old student.

While we're tiptoeing through the Florida criminal laws, let's also pause to notice section 776.051:

(1)  A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

(2)  A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest is unlawful and known by him or her to be unlawful.

Meyer thus can have no self-defense/justification defense against these uniformed officers. And their use of force was only unjustified if both the arrest was unlawful in the 20/20 hindsight of the court and it was actually known and appreciated by them at the time to be unlawful. That would be a mega-tough standard for Meyer to meet.

These are just my wild guesses as a lawyer not admitted to practice in Florida. But none of them, even as viewed through the more knowledgeable eyes of a Florida practitioner, is likely to make Meyer feel like such a hot dog tomorrow.

At John Kerry's Florida rally, Andrew Meyer wasn't "shot" by a Taser, but merely shocked by one used in "drive-stun" mode

Michelle Malkin, James Joyner, and lots of other bloggers are posting about University of Florida student Andrew Meyer being "Tasered" (to take a fairly elegant product name and make an inelegant verb out of it) at a John Kerry political rally. Michelle has at least two different videos linked [warning: frequent profanity makes the audios NSFW], and Neocon News has an excellent and very detailed text description (with associated screencaps) of what looks to me to be the longer of the three videos I've seen, hosted from an NBC affiliate in south Florida. Each of the three videos I've seen are from different angles, and one of the shorter, from YouTube (another's also on YouTube, but apparently from CNN; h/t Bill Quick) has clearer sound and a slightly better angle at the key moment — when Meyer was "Tased." Indeed, you can hear Meyer screaming "Don't Tase me, bro! Don't Tase me! I didn't do anything!" And then, with the sizzling sound of the Taser, you can hear him rhythmically screaming "Owwww! Owwww!" while various female bystanders begin to scream too.

Do not fail, however, to pay attention to what was going on just before and during Meyer's "Don't tase me!" screams. Several police officers were doing their utmost to roll Meyer onto his stomach so they could get his hands behind his back to finish handcuffing him. (The version of the video marked "CNN" clearly shows that he resumed struggling as soon as they had the cuff on his right wrist, and didn't get the cuff on his left wrist until after the Tasering; see screencaps in Update below.) He had previously been on his stomach (when taken to the ground by the large black officer who'd propelled him up the aisle away from the microphone area), but he'd squirmed around onto his side and his back. At least some of the time, he can be seen flailing wildly with at least one, and perhaps both arms; other times, he's clearly trying to wrestle his arms out of the grips of the police officers. The officers had not only ordered him to stop resisting and to roll back onto his stomach, they had clearly warned him that if he did not, they would Tase him. He didn't, so they did — and I'll come back to that in a moment.

The important point to take away is that just before he was Tased, Meyer was continuing to disobey the officers and continuing to struggle against them with what appears to have been all of his strength. There was no real danger that he might escape. But there was a danger that he would hurt himself. There was a danger that he would hurt one of the officers. And there was a danger that in trying to physically restrain him, one or more of the officers would hurt him. With him struggling so violently, it's not completely improbable that someone could have been dealt a life-threatening injury — for example, a crushed wind-pipe. Far more likely is that someone — Meyer or the officers — would have suffered a serious, potentially lifetime-disabling injury. If they were lucky, it would have been only a broken rib or broken arm or dislocated shoulder. But it might have been a torn ligament or ripped cartilage somewhere that would have meant no more running for a 21-year-old college brat or a twenty-something police officer. Deliberately or not, Meyer was still out of control, even though he had no chance of escape, no right to resist, and no more time to continue putting himself and others at risk of serious injury.

*******

Tasers are controversial, and they've been much in the news lately. Originally described, at least in the press, as "non-lethal," they're now typically described as "less lethal," and many state and local police forces have reviewed, or are in the process of reviewing, their training and policies regarding Taser use.

Before any of us can even begin to form opinions as to whether these particular campus police officers used a reasonably proportionate amount of force (including the Taser) under the circumstances, though, we need to know what the professional-model Tasers do, at least when they're working the way they're claimed to and they're supposed to. And the quickest place for a primer on that is, reasonably enough, the Taser operator's manual.

In it, we find (at pages 5-6 of the .pdf file) a description of what most of us in the public think of as "Tasering" someone: Shooting them from a distance of several feet with two barbed probes that remain connected to the Taser pistol housing by insulated wires, through which an electrical current is passed. Those probes are intended to cause what the Taser manufacturer refers to as "Neuromuscular Incapacitation" ("NMI"):

The human nervous system communicates with simple electrical impulses. The command center (brain and spinal cord) processes information and makes decisions. The peripheral nervous system includes the sensory and motor nerves. The sensory nerves carry information from the body to the brain (temperature, touch, etc.). The motor nerves carry commands from the brain to the muscles to control movement and can be involuntary in response to the sensory information. An example would be the involuntary muscle reaction to pull a hand away from a hot object.

TASER technology uses similar electrical impulses to cause stimulation that affects the sensory and motor nerves. Neuromuscular Incapacitation (NMI) occurs when a device is able to cause involuntary stimulation of both the sensory nerves and the motor nerves. It is not dependent on pain and is effective on subjects with a high level of pain tolerance. Previous generations of stun guns could primarily affect the sensory nerves only, resulting in pain compliance. A person with a very high tolerance to pain (e.g., a drug user or a trained, focused fighter) might be able to fight through the pain of a traditional stun gun.

The use of TASER technology is designed to cause incapacitation and involuntary muscle contractions, making secondary injuries a possibility. These potential injuries include but are not limited to: cuts, bruises, impact injuries, and abrasions caused by falling, and strain-related injuries from muscle contractions such as muscle or tendon tears, or stress fractures. These injuries are secondary in nature and not directly attributable to the electric stimulation of the TASER device, but are possible consequences of the involuntary muscle contractions the TASER device induces to produce incapacitation. Some of the effects may include:

• Subject may fall immediately to the ground and be unable to catch him/herself.
• Subjects located in the water may drown if their ability to move is restricted.
• Subject may yell or scream.
• Involuntary muscle contractions of varying degrees.
• Subject may freeze in place with legs locked.
• Subject may feel dazed for several seconds/minutes.
• Potential vertigo.
• Temporary tingling sensation.
• May experience critical stress amnesia (may not remember any pain).

There is no doubt that these "secondary effects" can be dangerous. I've read reports of one police officer who had pre-existing bone degeneration in his back and who cracked a vertebrae as a result of the muscle contractions when he agreed, in training, to be shot with a Taser. And although the manufacturer claims that there are other explanations and other causes, there indisputably have been some suspects who've died after being shot with a Taser.

But being shot with a Taser is almost certainly not what happened to Meyer. The longer video clearly shows him in command of his arms and legs, balanced and coordinated, within seconds after the officers finished cuffing him and hauled him back to his feet. He never shuts up, of course, but his "Owww!" screams are replaced again with his "I didn't do anything!" etc. screams within moments, too.

*******

Instead, Meyer was almost certainly  simply shocked by a Taser using something the manufacturer calls (at page 19 of the .pdf file) the "drive-stun mode":

The drive-stun mode will not cause NMI and generally becomes primarily a pain compliance option. Probe deployment is usually considered more desirable, even at close range. Some of the advantages include:

• Drive-stun is only effective while the device is in contact with the subject or the subject’s clothing. As soon as the device is moved away, the energy effect stops.
• Deploying the probes allows the user to create distance between the user and the subject while maintaining control.
• Due to automatic reflex actions, most subjects will struggle to separate from the TASER device. When the TASER device is used in the drive-stun mode and the subject struggles to get away it may be difficult to maintain contact between the device and the subject.

Why do they call it "drive-stun"? When I first saw the term, I first thought "cattle drive!" because I was flashing back to a high-school hazing ritual I underwent in about 1973, in a part of rural Texas where there are still cattle ranches and, accordingly, kids had access to electric cattle prods that operate much like modern Tasers in "drive-stun" mode. Neither my mind nor body was permanently scarred, and neither did I suffer from "NMI," but I can attest that one of those devices applied to a male nipple hurts like the very devil. But the term doesn't come from "cattle drives" at all:

When using the drive-stun, push (drive) the front of the TASER X26C firmly against the body of the subject. Simply “touching” the X26C against the subject is not sufficient. The subject is likely to recoil and try to get away from the stun electrodes. It is necessary to aggressively drive the front of the X26C into the subject for maximum effect.

The drive-stun works more effectively when aggressively applied to pressure points on nerve bundles. This includes the brachial area, common peronial, mastoid, and pelvic triangle. The TASER X26C must be actively depressed or aggressively driven into the nerve bundles in a “drive-stun” manner to be effective in the drive-stun mode.

I can't tell from either video where on his body Meyer was Tasered, nor which officer applied it, nor how hard he or she "drove" the front of the Taser to keep it in contact. But the point of "drive-stun mode" is not incapacitation of a suspect, but rather the infliction of a very intense, localized pain intended to coerce him into dropping his continuing physical resistance and instead cooperating, in order to protect not only the police officers trying to subdue and manipulate him, but the suspect himself. And that's what exactly happened here. The Taseing marked the abrupt end of Meyer's thrashing around and fighting (but not, unfortunately, his yelping, obscenities, self-pity, self-aggrandizement, and slurs upon the police officers).

I don't know enough about any of this to be able to independently evaluate the manufacturer's claims regarding the Taser's general safety, and the operator's manual warns, unsurprisingly, that when vigorously applied to some parts of the body (e.g., the neck or groin), even the "drive-stun" technique may cause crushing injuries that could be permanent or even life-threatening. But it seems fairly obvious to me that the sudden, localized, intense pain Meyer was subjected to might well be justifiable when compared to the risks to him and the police officers from several more minutes of his resisting arrest. At least such a case could be made; and whether it should prevail or not, as a matter of wise long-term police department policy would depend, I suppose, on the marginal risks and benefits from injuries with and without their use. My understanding is that several police departments have policies that permit carefully limited use of "drive-stun" Tasering in precisely the sort of situation in which these University of Florida campus policemen found themselves.

*******

I'm hoping I'll draw some comments from law enforcement types who have training and/or experience with Tasers. I've already read enough just Googling around to confirm that there's an on-going battle of expert witnesses about the manufacturers' safety claims, with at least one prominent critic whom the manufacturer accuses of being a "junk scientist" who does indeed seem to lack certain basic credentials like a bachelor's degree from any college.

In any event, I think it's important that people recognize that, to embrace the Star Trek metaphor, these police officers' phasers weren't even "set to stun." I'm sure it still hurt like hell. But we can all be glad that, apparently, neither Meyer nor any of the police officers were permanently injured. In many other countries today, and in a day and time not too far removed from today in our own, Meyer would have gotten a nightstick to the ribs or the back of his noggin and been carried out on a stretcher; I'm not advocating a return to that, but I hope those who now claim that he was a "victim" in any sense will at least acknowledge that his violent struggle could certainly have resulted in one of today's officer's leaving the scene on a stretcher too.

I'm not inclined to second-guess whoever it was who gave the instructions that Meyer was to be removed from the rally — from what I've read, and from just what I've seen on the longer video, he was clearly abusing the privilege of questioning even a great gasbag like Sen. Kerry, even if Sen. Kerry was encouraging him (and now condemns his arrest). If you don't think this guy went over the line into impermissible public behavior, you are blind to the possibility of there being lines.

And I hope Meyer spends at least several weeks in jail —€” not for anything he said, but for the indisputable crime he committed in vigorously, insistently, and dangerously resisting arrest. He'll probably still sue the officers and the University of Florida. And maybe something will come out that changes my mind. But right now, I think that if he sues, he ought to lose. And personally, I'd sure rather be representing those officers than him.

---------------------

UPDATE (Tue Sep 18 @ 3:25pm): Okay, I've now seen several blogs and MSM resources falsely (but I presume innocently and in good faith) report that Meyer had already been cuffed when he was Tasered. That's only half-true: His right cuff was on, but the officers' attempt to attach the left cuff is what prompted him to begin squirming and resisting again, directly leading to the Tasering. Here are my sequential screencaps from this video, which has the best angle to show the handcuffing attempts, and also very good audio in which you can hear the right cuff click, the left cuff never click, and hear the Tasering. Look at these, note the times, and then watch the sequence on the video again if you have any doubt, because these screencaps are useful mostly as the markers of the key events:

Below (at 2:45) you can clearly see the officer's right hand holding his handcuffs. Neither is attached. Meyer is half-way squirmed around onto his back after having been taken down from his feet onto his stomach originally:

Below (at 2:53) the officers have Meyer rolled back onto his stomach, and although you can't see the officer attaching his right handcuff, you can distinctly hear the metallic click on the audio track, and then see the right cuff in place very briefly in some of the following frames:

Below (at 3:11) you can see that Meyer has half-rolled back onto his right side, having succeeded for the last quarter-minute in keeping his left wrist too far from his right wrist for the two wrists to be cuffed together behind his back. Before this shot, his left arm has been flailing around, flexing and extending. And indeed, in this screencap, you can see the fingers of his left hand fluttering and extended behind another officer's arm, just above the officer's wristwatch — and then those fingers suddenly jerk back in on the video about a half second later just before you hear the Taser begin to fire. Within seconds after that (by 3:29), the officers have finished with the left cuff too, and Meyer's back up and on his feet, headed out of the room with his elbows behind him, no longer a resistance threat.

---------------------

UPDATE (Tue Sep 18 @ 8:45pm): From a blog called "Cop The Truth," a post entitled Been Tased and Confused has the law enforcement perspective I've been looking for — with delicious wit (emphasis and link in original):

Anybody who watches the video with an open mind can clearly see that he violently resisted arrest and the cops there had every right to use the taser on him. I would have handled the entire event differently, especially in front of any mostly anti-police crowd on a university campus, but they covered all the bases: they asked him verbally, then warned him, then went hands on, but, because of poor tactics, were unable to control or handcuff him. When he continued to resist, despite numerous verbal commands, he got zapped. Boofreakinghoo.

He'll probably be kicked off of a Southwest Airlines plane tomorrow for wearing a short skirt....

Sadly, it doesn't look like the university is going to back the cops on this one.

That would be sad, and fiscally very short-sighted. Convicting Meyer of resisting arrest is the key to all future civil claims and proceedings.

Here's another cop's take, from Curt at Flopping Aces:

Now take it from one who has used tasers to subdue combative suspects, this guy could very well have had some long term damage done to him if the police HAD NOT used the taser.  That's what the tool is for.  They receive some zaps and ta da!  They comply.  If they didn't have that tool then they have their fists, their batons, their flashlights.  It's called pain compliance.

If they guy didn't think he should of been arrested the time to fight it is NOT during the arrest.  It's after the arrest in a court of law.  Once we have come to the conclusion that a person needs to be arrested you must comply.  No if's, and's or but's about it.   There is plenty of legal recourse to fight it later but physically fighting the police is not the way to go about it.

Ayup.

ACLU files silly brief in support of Craig's plea withdrawal

After I'd just graduated from Texas Law School, but before taking the bar exam and starting my judicial clerkship, I spent most of the summer of 1980 working in New York City for Sullivan & Cromwell. The firm helped its "summer associates" (a/k/a law clerks) locate housing, and for half of my stay I was very fortunate indeed to be permitted to apartment-sit, rent-free, for one of the firm's litigation associates whose husband's position at Columbia entitled him to a fabulous pre-war apartment on Riverside Drive at about 118th or so, with a wonderful view over the park and the river. I only briefly met the associate as she was leaving for her own summer vacation. But anyone doing any apartment-sitting can't help but feel as if he's gotten to know the regular occupants a little bit, if only from seeing what take-out food menus were on the fridge door and what magazines came in the mail.

As it turned out, the young S&C associate, Nadine Strossen, left the firm not too long afterwards, and since 1991 she's been the president of the American Civil Liberties Union. And my lingering gratitude to Ms. Strossen, along with the vague feeling of unshared intimacy that I had as a long-term guest in her home (but without her present), has probably made me less skeptical than I otherwise would have been of much of the ACLU's activities. Some of them, from time to time, I've even agreed with, and doubtless would have done so whether I'd known Ms. Strossen or not. But far more often, I've thought that the ACLU's causes were ill-advised and naïve, albeit at least mostly well intentioned.

And such is this amicus brief that the ACLU has now filed in support of Sen. Larry Craig's pending motion to withdraw his guilty plea. (H/t Jeralyn Merritt at TalkLeft.) Even if I were to accept all of its legal arguments as being correct and fairly stated (and I don't; many of them are badly overblown and over-simplified to the point of being misleading), I'd still conclude that it's a profoundly silly brief that is very unlikely to have any effect on those proceedings, for at least two reasons.

*******

First, all of its arguments go to the "as applied" constitutionality of the Minnesota disorderly conduct criminal statute to which Craig pleaded guilty. There is no doubt, and the brief properly concedes, that the statute may be constitutionally applied in at least some cases. But arguments of this sort have to be made by the defendant before he pleads guilty. They're waived, along with all of his other potential factual and legal defenses, when he pleads guilty. And they do nothing to show that his guilty plea should be permitted to be withdrawn now, because they have nothing to do with the voluntary, informed, or knowing quality of his waiver of rights when he entered the guilty plea. The brief makes a truly pathetic attempt to sidestep this in its next-to-last paragraph:

The record shows there is a very significant possibility this defendant pled guilty on the basis of conduct that could not constitutionally have been the basis for a conviction. Given that very real possibility, the interests of justice would best be served by allowing him to withdraw his plea so that the Court can determine if a constitutional prosecution was possible at all here, and if so, whether the defendant could constitutionally be convicted.

Beware the brief whose best and most specific argument for its own relevance is that it will serve "the interests of justice." Often, as here, that's code for: "To reach these arguments, you have to ignore all the ordinary rules." There's no reason to think that the judge who hears Sen. Craig's motion will do that.

The brief could have argued, but didn't, that the plea should be set aside unless there is an affirmative showing in the record of a basis in fact for his plea — and that's true, as far as it goes. But in accepting a plea agreement, a court need not — indeed, ought not — go out of its way to figure out and raise on the pleading defendant's part every potential factual or legal defense that he might have asserted. In particular, courts accepting guilty pleas aren't required to independently re-validate the statute that created the crime to which the defendant is pleading guilty. The allegations from the sworn complaint that Craig stared into the officer's stall, then intruded his hand and foot into the officer's stall, by themselves are sufficient to meet the "basis in fact" requirement. (Indeed, even if that conduct was intended as speech, it would be enough to qualify for the "fighting words" exception to the First Amendment protections argued by the ACLU's brief: Staring and then physically intruding one's hands or feet into someone's bathroom stall is indeed a good way to start a brawl, regardless of whether it was specifically interpreted as part of a homosexual "cruising" code or was instead simply interpreted as intrusive upon reasonable privacy expectations.)

*******

Second, all of the ACLU's arguments presume that Craig was arrested and prosecuted for speech, or for conduct that amounts to speech. Its entire premise is that Craig was soliciting sex, and its resulting argument from that premise is that soliciting sex can't be prosecuted as disorderly conduct without violating First Amendment protections for free speech. But Sen. Craig emphatically denies that he was soliciting sex, or engaged in any other kind of expressive conduct that amounts to "speech."

To the contrary, he insists that he was peering into Sgt. Karsnia's stall only to see whether it was vacant yet, and that his foot tapping was meaningless fidgeting (rather than a code), and that his intrusion of his foot into the officer's stall was accidental (due to his "wide stance"), and that his reaching beneath the barrier between the stalls was intended to pick up a piece of paper (rather than send hand signals). A defendant simply can't simultaneously claim to have been engaged in protected speech under the First Amendment while denying that he intended to do any communicating. And as much as it may want to be one of the trial court's chums via this amicus brief, the ACLU can't claim that on Craig's behalf when it's contrary to Craig's own position.

Bottom line: There's no need for anyone to get outraged over the ACLU's position in this case. It's just silly and irrelevant, and therefore harmless. And I think I can say that without feeling at all ungrateful for the use of Ms. Strossen's marvelous apartment twenty-seven years ago.

-----------------------

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"

Beldar's initial reaction to the Mukasey nomination for Attorney General

Let's get something straight right off the bat. I disagree on matters of politics with Sen. Chuck Schumer (D-NY) almost all of the time. But I don't worry that, if given the chance, he'd wire a gas tank to explode my family car or mastermind a plot to crash a jet airliner into the Capitol. He's not my enemy in that sense.To the contrary, I genuinely believe that in his own mind, he says what he says and votes the way he votes because he thinks that's the best way to serve the country that he and I both love. So the mere fact that Chuck Schumer may not be bouncing off the ceiling to oppose new U.S. Attorney General nominee Michael B. Mukasey is no valid reason for me to doubt the wisdom of that appointment.

I'm better acquainted with Ted Olson's history and credentials. It's been funny to watch pundits on the left foam at the mouth at the prospect of him being nominated instead. "Too partisan!" they shriek ... by which they mean, he and his team whipped David Boies and his team during Bush v. Gore in 2000. But there's certainly more than one person in the U.S. who's qualified to be Attorney General. Judge Mukasey looks to me like he's one of them, and probably very near the top of what's not a very large heap.

I'm impressed that Judge Mukasey (pronounced "mew-KAY-see") has not only prosecutorial experience (four years as an Assistant U.S. Attorney in the Southern District of New York), but management experience within the DoJ (two years as Chief of the DoJ's Official Corruption Unit). I'm impressed that he has many years of private practice experience — because yes, it's useful for government attorneys to have gain perspectives from the "real world" outside of government. I'm impressed that he's got judicial experience, again from the Southern District of New York, whose dockets include the richest and deepest mix of civil and criminal matters imaginable. Top that off with more administrative experience, this time as Chief Judge of the Southern District of New York. Altogether, that's an impressive mix and combination of experiences.

And forgive me, but I have very little patience for "Righter-than-thou" skeptics like Mark Levin. Over sixty-two million Americans voted to put the power of nominating cabinet secretaries from January 2005 to January 2009 into George W. Bush's hands. That's the way the system works: He picks, he's accountable. He's accountable for decisions that look bad in hindsight, and if you want to criticize him for the outgoing AG, the buck does indeed stop in the Oval Office. But he's also accountable for nominating Supreme Court Justices — and credit for that is also due, and must be considered when someone's impugning a nominee without much more basis than a lack of sufficient trust in the nominator. Nothing in the system requires the president to pick the potential nominee whom pundits like Levin would like best. And indeed, the system obliges the president to consider factors that Levin may ignore outright. Rabid dog-slobber may well be the best thing for Levin's radio ratings, but that doesn't necessarily coincide with what's best for the Bush-43 Administration, the Republican Party, the DoJ, or ultimately for America. Levin is entitled to express and argue his own opinions. But I am not at all receptive to the suggestion that I'm "insufficiently conservative" if I support the president both in big fights when he picks them, and on those other occasions when he's chosen not to.

In the meantime, Judge Mukasey's record is out there for all to see. Lawyers whose judgment I respect, including but not limited to Andy McCarthy, who have extensive first-hand experience with him praise him highly. He'll run the nationally televised gauntlet in the Judiciary Committee, where perhaps a few Democratic senators will manage to behave like grownups and maybe even nonpartisan Americans for long enough to vote. I'll come to a final opinion based on his performance then, but for now, I pronounce myself well satisfied with this nomination.

Equity time

Long before I started law school in 1977, American law had mostly blurred the distinction between law and equity. Bits and pieces of the distinction persist, mostly in connection with injunctions — civil court orders requiring that someone do or, more often, stop doing something, as opposed to judgments requiring them to pay someone. I still end all my petitions and complaints with a request for "such other and further relief, at law or in equity, to which [my client] may show itself to be justly entitled." But that's actually an affectation, a deliberate use, as a quasi-religious invocation, of archaic language of the sort that I otherwise generally try hard to avoid. The days of going to separate courthouses to obtain distinct remedies "at law" and "in equity" are long since past. (Except, I think, in Delaware — which is why Pennzoil, having established a "probability of success" but not the "inadequacy of its remedies at law" in a Delaware Chancery Court preliminary injunction proceeding, dropped its original lawsuit there against Texaco and refiled in Houston precisely to get a courtroom that included a jury box. Skadden Arps may still be smarting over the black eye it took for permitting that to happen, but that's another war story entirely.)

This week, though, I decided that I needed to buy a new alarm clock/radio — a cheap one that is minimally functional will suffice for the need I had in mind. And I found one at the drug store pharmacy CVS store around the corner. On a corner of its box I find: "Equity Time USA" with a California address. But "Made in China." Well, yeah, for $19.99 I pretty much expected that.

"To locate the product without AC outlet nearly, install 3xAA fresh alkaline batteries in the rear compartment following the polar direction. Note the power of these batteries cannot be lost with connecting the AC power." Duly noted. But there is only room for 2xAA fresh alkaline batteries in the rear compartment, whether I'm facing north or south. I suppose two will work okay. The manual clearly warns me: "Specifications are subjected to change and improve without notice." That's something to hope for, I guess. The radio dial has the highest frequencies at the left side, and the lower ones at the right; maybe they'll switch themselves, without notice. But as soon as I plug it in, it sets the time for itself. That's nice, but not essential: I'm just on the current side of that age/technology divide that separates people whose appliances flash 12:00 from those whose appliances don't.

I'm bemused, though, by the notion of "Equity Time." Will it sound my alarm a half hour later than I've set it for, after I've had a hard day and really needed a good night's sleep? "You deserved an extra half hour, Beldar!" If I tell it, when I go to bed, to wake me at 6:00 a.m. sharp, will it tell me the next morning that I'm estopped from hitting the snooze button? If it notices just how lazy I really am, will it stop working, too, because I'm guilty of laches? And will it care if I have clean hands? God's bodkins, man, if I have a clock radio that uses me after my desert, shall I 'scape whipping?

In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"

As a result of my telephone conversation with him and my follow-up email request yesterday, Patrick Hogan, the director of public affairs for the Minneapolis-St. Paul Metropolitan Airports Commission, graciously emailed to me today the two-page letter dated July 20, 2007, under cover of which part-time prosecutor Chris Renz forwarded to Sen. Larry Craig the three-page written motion to enter a guilty plea that Renz had drafted for Sen. Craig's review and possible signature. Sen. Craig signed the motion on August 1st and returned it for filing with the Hennepin County District Clerk. I had noticed a reference to and short quote from Renz' cover letter in an August 28th Associated Press report, but I had not been able to find the full text or an image of the letter anywhere on the internet.

Renz' July 20th cover letter is a precise, entirely fair, and altogether professional piece of work. The AP reporter who only quoted it briefly obviously didn't appreciate its full significance, because in my opinion, it spells the absolute doom of Sen. Craig's efforts to withdraw his guilty plea.

Of critical importance for purposes of the upcoming hearing on September 26th on Sen. Craig's motion to withdraw his guilty plea: In its very first paragraph, this letter repeatedly reminds Sen. Craig that he still had the right to have the assistance of counsel for the specific purpose of deciding whether or not to enter his plea of guilty to the disorderly conduct charge as part of a proposed plea bargain for the dismissal of the peeping charge (emphasis mine):

Please find enclosed a Petition to Enter Plea of Guilty-Misdemeanor in the above-referenced matter. Please review the document and to the extent that you wish, review the same with legal counsel. If you understand the contents of the Petition and agree thereto, please sign the bottom of pages 1, 2 and 3, as well as sign and date top most signature block on page 3. To the extent that you review the agreement or consult with an attorney regarding the agreement, please enter that attorney's name at paragraph 7 and have them complete the final signature block on the agreement. To the extent that you are not consulting with an attorney or represented by an attorney, please appropriately circle "am not" in paragraph 7.

The letter confirms my previous inference that Renz and Craig had spoken by phone before Renz drafted and sent Craig the proposed motion, and that — far from trying to stampede Craig — Renz had actually arranged for a two-week continuance of Sen. Craig's original July 25th appearance deadline in order that Sen. Craig could have time to consider the plea carefully:

Please return the petition and the [fines and fees] payment so that it is received before August 8, 2007, which is the date to which your arraignment appearance is being continued, as we discussed....

More importantly, however, compare Sen. Craig's attorneys' current spin from his motion (at page 2 of the .pdf file; boldface mine) —

While in this state of intense anxiety, Senator Craig felt compelled to grasp the lifeline offered to him by the police officer [on June 8th after his arrest]; namely that if he were to submit to an interview and plead guilty, then none of the officer's allegations would be made public. Thus, rather than seek legal advice from an attorney to assist him in publicly fighting these charges and potentially protract the issue, Senator Craig's panic drove him to accept a guilty plea, the terms of which offered him what he thought was a private, expeditious resolution of this matter.

— with this sentence from prosecutor Renz' letter that Sen. Craig quite literally had placed into his hands simultaneously with the proposed plea agreement (boldface mine):

Agreeing to the Petition will result in a conviction for Disorderly Conduct appearing on your criminal record.

Point, game, set, match. If you can't hear the fat lady already finishing her warm-ups, it could only be because you've got your fists plugged into your ears and you're singing "LA-LA-LA-I-can't-hear-you" at the top of your lungs. (Or because you're a once-powerful U.S. senator in a serious state of denial.)

I don't know how to say this politely, so I will be blunt: It is inconceivable that when they drafted Sen. Craig's motion, his lawyers did not know of this cover letter. And it is inexplicable to me how any competent lawyer could let his client commit under oath to the notion that he thought his conviction under the guilty plea would not be a matter of public record when he also knew that a letter like this existed. Failing to acknowledge and describe the contents of this letter to the court in their motion borders upon the unethical, and as a tactical decision, it's likely to be about as smart as lighting a barbecue grill aboard the Hindenburg.

Previously, I was guestimating that Sen. Craig had about a 50/50 chance on his motion succeeding. That was based almost entirely on the apparent fact that the motion to enter his guilty plea didn't contain the specific recital required by Minnesota Rule of Criminal Procedure 15.02(3) to establish that "the defendant [knew] there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel." But this letter almost certainly, and almost conclusively, remedies that omission. And it destroys Sen. Craig's remaining tatters of credibility — and frankly, that of his lawyers, too — by exploding their claim that Sen. Craig had pleaded guilty based on some explicit or implicit understanding that this would all be hushed up if he'd only go along with the guilty plea.

My revised estimation is that Sen. Craig's odds of prevailing on his motion are somewhere below 5%. The only kind of judge who could grant this motion would be the kind who elevates procedural form over all substance, who cares nothing about whether procedural violations have even arguably prejudiced the defendant, and who is also remarkably unoffended by lawyers and litigants who lack fundamental candor. Personally, either as a lawyer or a citizen, I find Sen. Craig's and his lawyers' duplicitous effort to mislead the court considerably more disgusting than anything Sen. Craig is alleged to have done in the men's restroom of the Minneapolis-St. Paul airport.

-----------------------

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him

Do you care if national security criminal Sandy Berger is re-embraced by The Triangulatrix?

This is a story about a buffoon who became one of our nation's top national security officials, and then became a confessed national security criminal. His probation ended last week, and he still can't be given access to classified documents or information. But he's once again part of the "triumvirate" of senior officials advising She Who Would Be President on foreign policy matters.

Do you care?

*******

On Thursday, September 8, 2005, former Clinton Administration National Security Advisor Samuel R. "Sandy" Berger pleaded guilty to one count of violating 18 U.S.C. § 1924, "Unauthorized removal and retention of classified documents or material." Section 1924(a) provides:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

Because the maximum term of imprisonment authorized is one year, a violation of section 1924 is considered a "Class A misdemeanor" under 18 U.S.C. § 3359(a)(6), that being the most severe category of federal misdemeanor. (Crimes punishable for more than one but less than five years are Class E felonies.)

Under the terms of the judgment of conviction signed on Tuesday, September 13, 2005, Berger was fined $56,905.52 and "placed on probation for a term of 2 years," with his probation conditioned on his not committing "another federal, state, or local crime," and on his performance of 100 hours of community service. In addition to other standard conditions of probation (such as not associating with persons engaged in criminal activity, permitting visits by probation officers, and so forth), U.S. Magistrate Judge Deborah A. Robinson also approved an unusual plea bargain term as a further condition of Berger's probation: "Defendant shall have no access to any classified material for a period of three (3) years."

Law professor Jonathan Adler sums up Berger's conviction and underlying crime(s) this way (h/t InstaPundit):

Berger repeatedly stole and destroyed classified documents, resulting in the temporary loss of his security clearance. Berger has never provided a plausible explanation for his actions. By voluntarily giving up his law license, he avoided a cross-examination from bar counsel, so we still do not know precisely what he was doing and why. Indeed, the only assurance that Berger did not destroy unique copies of classified national security documents — such as copies of reports containing notations in the margins and the like — comes from Berger himself, something that the 9/11 Commission was not told when it was preparing its report (as I noted here).

Betsy Newmark also has more recent links and quotes about the scope of Berger's thefts and document destruction.

*******

Berger proceeded to show the world just how very, very seriously he took the conditions of his probation. According to the Washington Post, less than 48 hours after his sentencing

Berger was clocked going 88 mph in a 55-mph zone while driving eastbound on Interstate 66 in Fairfax on [Saturday,] Sept. 10, according to court records. Berger told court officers that "he was speeding because he was late to a meeting, and he was not aware of how fast he was traveling," according to a probation violation report filed in federal court.

The charge comes as some judges in Fairfax have begun cracking down on excessive speeding and other reckless driving violations, sentencing violators to jail time in some cases, defense lawyers said.

Reckless driving is a Class 1 misdemeanor in Virginia; it carries a penalty of up to 12 months in jail and a $2,500 fine, although those limits are rarely approached, experts said. At the very least, Berger is likely to be fined and to have his driver's license suspended for several months if he is found guilty, according to traffic lawyers not connected to Berger's case.

An October 5th memorandum from the District of Columbia's Chief United States Probation Officer pointed out to Magistrate Judge Robinson that her options included revoking Berger's probation and re-sentencing Berger to a full one-year custodial term in a federal prison. But apparently, the quality of Magistrate Judge Robinson's mercy was not strained: According to the WaPo story, she "admonished Berger ... for the traffic charge during a brief hearing in U.S. District Court for the District of Columbia but left him on probation as recommended by the federal probation office, according to court records."

The WaPo article closed by reminding us all that "Berger stepped down as an adviser to the presidential campaign of Sen. John F. Kerry (D-Mass.) after the investigation [into his document theft] was disclosed last year [i.e., in 2004]."

As it turned out, Berger was only fined $250 when he pleaded guilty to the reckless driving charge in November 2005. But that guilty plea establishes that within 48 hours after being sentenced to probation for a crime punishable by a year's imprisonment, he proceeded to commit yet another.

According to my check today of the U.S. District Clerk's online docket sheet for Berger's criminal case, he appears to have satisfactorily completed the balance of his two years of supervised probation — that supervision having ended last week on September 7, 2007. But the special condition of his probation — the prohibition on his having access to classified materials — still has another year to run.

*******

Although the accusation that Berger had committed an intentional, shameful abuse of the public trust was sufficient to shame John Kerry into disassociating himself from Berger in 2004, even Berger's guilty plea and conviction are obviously insufficient to similarly shame front-running 2008 Democratic presidential candidate Sen. Hillary Clinton (D-NY). And beating John Kerry in shamelessness is an impressive accomplishment.

Last month, Newsweek's Michael Hirsh revealed, as part of a story about younger Clintonistas who were "defecting" to Barack Obama's campaign, that Berger was indeed functioning as a close adviser to Sen. Clinton (second ellipsis by Newsweek, boldface mine):

Younger former Clintonites ... are also wary of what one describes as Hillary's "closed circle," including her husband and a triumvirate of senior officials from his presidency — Holbrooke, Albright and former national-security adviser Sandy Berger. "There is a sense, consciously or subconsciously, that we don't want to just go back to the same team: Holbrooke, Sandy, Madeleine ... the same people having the same arguments about who's going to be in the room," says the midlevel Obama adviser. The Obama campaign has played on those fears, telling recruits they can rise faster with the Illinois senator. "The Obama pitch is, 'You'll never be in the inner circle' with Hillary," says Gene Sperling, Senator Clinton's top economic adviser.

In a follow-up online-only story this week, Hirsh wrote:

The more experienced Hillary Clinton, meanwhile, has relied largely on her husband and a triumvirate of senior officials from his presidency — former secretary of state Madeleine Albright, former U.N. ambassador Richard Holbrooke and former national-security adviser Sandy Berger (who tries to keep a low profile after pleading guilty in 2005 to misdemeanor charges of taking classified material without authorization).

Oh, how droll is that parenthetical — "tries to keep a low profile"? As of today, a Google search of Hillary's campaign website reveals only one reference to Berger, and that's in a blog comment quoting Berger from 1998 on the likelihood of Saddam having and being willing to use WMDs. By contrast, there are more than two dozen references to Madeline Albright.

*******

Sen. Clinton is, of course, a member of the Senate Armed Services Committee, and serves on its Airland, Emerging Threats and Capabilities, and Readiness and Management Support subcommittees. I presume that as a senator with those assignments, she has regular and routine access to classified documents and information. I also presume that, as a presidential candidate, she has regular and routine meetings with her senior staff to advise her on political aspects of her foreign policy positions.

Golly, I hope she's being careful not to let a shred of classified information slip into her discussions with the Triumvirate. Receiving classified information from Sen. Clinton over the coming year, even if unintentionally and inadvertently disclosed by her, would be a violation of Berger's probation. Him having voluntarily put himself into a situation in which he was likely to be privy to such unintentional and inadvertent disclosures would certainly be something a federal judge considering probation violations could and should consider. And even though he's no longer under active supervision, a violation of this continuing term of his probation could still send him back to prison for a year.

Brave, brave Sandy! I say that because surely he knows that if Hillary were to have a slip of the lips, then honest and ethical Hillary would be the first person to blow the whistle and report the probation violation to the court system and the press.

Wouldn't she?

*******

Sen. Clinton's shamelessness with respect to convicted national security criminal Berger is, of course, entirely unsurprising, given who she chooses to remain married to. And I wrote as far back as July 2005 that the political rehabilitation of Sandy Berger had begun even before his formal sentencing, when the WaPo published an op-ed that Berger co-wrote with Bush-41 National Security Advisor Brent Scowcroft.

Blogging today on Outside the Beltway, Dr. James Joyner wonders whether

maybe we've reached the point where such things [as Berger's conviction and continuing court-ordered non-access to classified documents] don’t matter. Clinton’s husband left office with remarkably high public approval despite impeachment and conduct which led to him being stripped of his license to practice law. Meanwhile, the current administration continues to run war policy despite a string of scandals and near-record low approval ratings. Perhaps fealty to the law is no longer high on the list of public expectations for executive office.

Dr. Joyner's comparison is inapt. Whatever "scandals" surround it in the eyes of its partisan opponents, the only high-level official of the Bush-43 Administration who's been convicted of anything in a court of law is Scooter Libby — and he doesn't still work for Dick Cheney, and hasn't since he was indicted, and almost certainly never will again, even if his appeal succeeds in overturning that conviction. But Dr. Joyner's right on his implied main point — which is that it's only public opinion that can effectively disqualify someone like Sandy Berger from returning to extraordinary public power and influence.

I guarantee you that somewhere in the bowels of the Clintonista Research Room, right now there is someone running Technorati searches on Hirsh's Newsweek articles about Berger; someone's checking Google News; and someone's probably writing questions for the next focus group session or telephone poll to see just how strongly the name "Berger" skews the needle in the window of the public approval meter.

If lying down again with this dog gives her visible fleas that the voters may notice, then The Triangulatrix will drop him in the proverbial New York minute. Otherwise, she won't. If there's no furor now, he'll stay in the inner circle through the election. If she wins and there still hasn't been a public furor, or a very big one anyway, then you can bet the ranch that the U.S. Senate will again be asked for its advice and consent on Samuel R. Berger. In my post of April 2, 2005, which was entitled Beldar on Berger: If he comes back, blame politicians, not the prosecutors, I wrote (emphasis in original):

It's not a felony conviction. The buffoonish schtick — "he stuffed the documents into his pants and his socks, fer pete's sake, har har har!" — is what will stick in the public memory, not the federal criminal conviction for a confessed and indisputable breach of a public trust. And the groundwork has been laid for what suddenly seems to me to be a very likely PR campaign by the once-and-would-be-future Clintonista spinmeisters:

"That crazy Sandy, what a wonk! Yeah, he had that slap on the hand, but hey, he took his medicine like a mensch, Senators — and look at his career in context! Can you let this silly misstep from years ago, during the crazy post-9/11 hysteria, disqualify him from distinguished service in the Hillary Administration? Will you deny the public the benefit of his expertise and his insights for such a trivial matter? Why, that would be crass partisanship, Senators. The President and the public have forgiven him; indeed, the President pardoned him on her first day in office. Onward and upward, Senators!"

... The Constitution requires the Senate either to consent, or to withhold consent. But with respect to Sandy Berger, that future political judgment on the Senate floor ought to be — may not turn out to be, but ought to be, if principle can indeed prevail over spin — preordained by this week's legal judgment in a court of law: GUILTY.

He is guilty. Forever, undeniably — guilty. Pardoned or not, rehabilitated or not, penitent or not, buffoonish or not — self-admittedly guilty of deliberately, intentionally, cynically, cravenly betraying the public trust and the national interest of this country. And then he lied about it to the public, before finally confessing as part of his guilty plea.

Bookmark this post for 2009 — just in case. You might want to email a link to it to your senators then.

Or you might want to leave a blog comment now. Or write a letter to your favorite newspaper's editor, or maybe to the Probation Office for the U.S. District Court for the District of Columbia. Or phone in to your favorite talk radio program. Or mention it to your co-worker at the water cooler or your neighbor over the back fence. Because The Triangulatrix doesn't care herself — but she will care if enough of us care.

Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him

Via Jeralyn Merritt at TalkLeft, here is a 39-page .pdf file containing Sen. Larry Craig's motion to withdraw his guilty plea, including a new three-page affidavit from him in support of it. In it, one finds (at pp. 19-20 of the .pdf file, in paragraph 12) this extraordinary statement under oath (boldface mine):

Deeply panicked about the events [of my arrest and post-arrest interview], and based on Officer Karsnia's representations to me regarding the potential outcome, my interest in handling the matter expeditiously, and the risk that protracting the matter could lead to unnecessary publicity, I did not seek the advice of an attorney on the date of my arrest, and I made the decision on that date to seek a guilty plea to whatever charge would be lodged against me.

Oh, really? Capital murder and treason included? This is a ridiculous statement — one that's not only almost certainly untrue, but that actually undercuts Craig's motion: If Craig had indeed come to an irrevocable decision to plead guilty to whatever they charged him with, and he came to that decision immediately after being Mirandized and with full knowledge that he was entitled to an attorney, then any later violation of or compliance with Minnesota's procedural rules designed to ensure that his waiver of his right to counsel was a knowing and voluntary decision was causally irrelevant, either way, to the actual entry of his plea.

(Christopher P. Renz' name, by the way, isn't on the new pleadings as part of Craig's legal team. But I still haven't heard back from him with a denial that he's been retained by Craig. Maybe I'll phone his office tomorrow.)

Craig's whole "I panicked" argument can be ground firmly into the dust with no more of a cross-examination tool than a calendar. Craig was arrested on June 11th and didn't sign his motion to plead guilty until August 1st.

Nor do I think it's a great idea to lead with an assertion that Craig's "panic" was justifiable because a homestate newspaper was investigating his lifestyle, including rumors of homosexual activities. That's not only not a crime on the part of the press, it's not something that any senator has any basis to claim surprise about. "Boo hoo, poor overwhelmed and picked-upon me" is an emphatically stupid defense strategy for a U.S. senator.

Overall, I am decidedly unimpressed with the motion and supporting exhibits that Craig's lawyers filed today on his behalf. It does a barely adequate job of making what is clearly his best argument — that the written motion to enter a guilty plea, drafted for him by the prosecution, failed to comply with Minnesota Rule of Criminal Procedure 15.02. They have what appears to be a crystal clear violation of an important pretrial rule designed to protect fundamental constitutional rights, and they wait until the seventh page of a sixteen page brief to even cite that rule!

To give you just an idea of the lack of care paid to this argument: At the top of page 8, in an intended explanation for how Rule 15.03 requires mail-in pleas to conform to the standards of Rule 15.02, appears this sentence: "Rule 15.03, which governs 'pleas by mail' such as the petition entered in this case, requires the same protections as Rule 15.03." Now, that's just a typo — they clearly meant to end the sentence with "Rule 15.02." But some typos are less excusable than others, and getting a rule number wrong in the most important portion of your argument is pretty damned sloppy.

The motion does not argue that the sting operation unconstitutionally discriminated against gays — no doubt because to make that argument, Craig would have to admit that he's gay, but also perhaps because it would be a bogus argument. Nor does it focus on the "'or' for 'in' typo," or the Article I, Section 6 "arrest en route to a Congressional session" immunity, both of which would also have been completely bogus. (I discussed all of these in more detail here.)

And indeed, other than the Rule 15.02 point (which can be made solely from the written record as it existed at the time the court accepted the plea), Craig's lawyers' only other argument was that neither the plea agreement nor the complaint make out conduct that even arguably violated the disorderly conduct statute. That's an argument that I think is badly, obviously wrong for all the reasons I explained in my very first post on the Craig matter. It might win with a jury; it's not going to persuade many, if any, judges that the prosecution's complaint didn't even allege a prima facie case from which a jury could find a violation of the statute.

By submitting Craig's sworn affidavit, his lawyers have chosen to attempt to prove his entitlement to withdraw his plea by relying on evidence outside the existing record. The prosecution should object on grounds that even though his affidavit is sworn, his statements in it were made out of court, not subject to cross-examination — and therefore they're hearsay. His motion asks for oral argument, but not an evidentiary hearing; yet without an evidentiary hearing, with live witnesses subject to cross-examination, they ought not be able to rely on anything outside the record when the court accepted the guilty plea. (The court could consider the affidavit for the purpose of deciding whether there have been allegations sufficient to justify having such an evidentiary hearing, without giving any evidentiary weight to the hearsay allegations in the affidavit as substantive evidence.)

Unsurprisingly, as CNN reports, the prosecution intends to oppose Craig's motion:

Patrick Hogan of the Metropolitan Airports Commission said the prosecutor will oppose Craig's motion, according to The Associated Press. The commission runs the airport and handled the prosecution of the case.

"We do feel we have a strong case, and he's already made his plea, and it's been accepted by the court," Hogan told the AP. "From our standpoint, this is already a done deal. Mr. Craig was arrested and signed a guilty plea, and from our standpoint, this case is already over."

I would love the opportunity to cross-examine Larry Craig on the quoted statement above from his affidavit, plus others that I think have a very questionable ring, plus the huge subject areas that his affidavit and motion carefully avoid.

• Does he now claim under oath, for example, that he was unaware that he had the right to counsel to advise him on how taking the plea bargain compared to his other options?


• Does he claim that if the written plea agreement had contained the warnings required by Rules 15.02 and 15.03 to the effect that he was entitled to counsel at every critical stage of the proceedings, including in connection with plea negotiations and the entry of his guilty plea, he would have suddenly decided — inconsistently with what his affidavit swears — not to enter a guilty plea? [Update (Mon Sep 10 @ 9:20pm): This is an awfully important point, and it prompted me to add the additional concluding sentences in the paragraph near the top of this post, just after "treason included?"]


• Does he claim that Sgt. Karsnia promised him to seal the court files so that no one, whether the Idaho Statesman or anyone else, could find out about his guilty plea?


• As a U.S. senator, did he not understand that criminal proceedings, including trials and pleas and court records about them, are generally open to the public? Or was he instead working on the assumption — notwithstanding the dozens or hundreds of votes he's cast as a law-maker — that American criminal justice operates through secret Star Chamber-like trials?

Despite the average-or-less quality of this motion and supporting affidavit, I still think (as I wrote at length last week) that the chances are still fairly good that Craig can get his plea withdrawn — something on the order of 50/50, anyway. Today's New York Times confirms that, as I suspected, some defendants caught up in the same sting that netted Craig had negotiated pleas through their lawyers for "deferred prosecution." If the judge reviewing Craig's present motion takes that into account, he may conclude that Craig was indeed materially harmed by not having a lawyer, and thus pay particularly close attention to whether the record confirmed a knowing and voluntary waiver by Craig of his rights to counsel before his plea was accepted.

But Craig may now have to climb onto the witness stand for what potentially could turn into a very embarrassing evidentiary hearing even to get that far. [Update (Mon Sep 10 @ 10:30pm): I haven't researched it, but I'm reasonably sure that by filing this affidavit, Craig has voluntarily waived any Fifth Amendment privilege against self-incrimination that he might otherwise have asserted to prevent the prosecution from calling him to he witness stand as an adverse witness during an evidentiary hearing (at least on the topics covered in the affidavit and for purposes of the plea withdrawal). If the prosecution's hearsay objection to the affidavit is sustained, it would be stricken from the record, or at least not considered for any evidentiary purpose other than as a proffer to show why an evidentiary hearing would be justified if the Craig team asked for one. But even if the affidavit is stricken, and even if Craig's team is willing to lose the benefit of the affidavit rather than ask for an evidentiary hearing, the prosecution should still insist on an evidentiary hearing. The more I think about it, the more I think that filing that affidavit was a colossally bad idea, and that whoever helped Craig draft it used particularly abysmal legal judgment. — Beldar]

More importantly, as I've said from the beginning, Craig may win this battle only to be thrust back into the larger war — a trial on the merits on both the disorderly conduct and the peeping charges, as a result of which he may well be convicted of both and have to do serious jail time, in addition to incurring considerable expense and subjecting himself and his family to continuing ruthless public scrutiny. From today's CNN story, we hear more from Sen. Arlen "Super-Precedent" Specter:

In a CNN interview Sunday, one of Craig's Senate colleagues compared the guilty plea to a motorist paying an undeserved parking ticket. Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, said Craig should stay in the Senate and fight to overturn his conviction.

"He thought that this matter would not be publicly disclosed, and that was very foolish," Specter said. "Now look here, you have 27 years in the Congress, you have his reputation, you have his whole life on the line. I think he's entitled to his day in court. Maybe he will be convicted, but I doubt it."

Specter said Minnesota law allows a defendant to withdraw a guilty plea "if there is manifest injustice, and that is defined that a plea can be withdrawn if it was not intelligently made," Specter said. "And what Sen. Craig did was by no means intelligent."

Well, yeah, we can all agree that Sen. Craig has been foolish. The problem is, he's apparently not getting any smarter even now that he's lawyered up.

-----------------

UPDATE (Tue Sep 11 @ 11:10am): I phoned the Hennepin County District Courts this morning and waded through the automated messages until I got to a live deputy clerk, who advised me that as best she can tell from her computerized court records summary screen, there was no "Form 11" (or as she called it, "pro se form") on file in Sen. Craig's case. She also advised that an "oral hearing" has been set for 1:30pm on Wednesday, September 26th — which fits with Sen. Craig's announced intention to try to get this "disposed of" before his announced Senate resignation effective date of September 30th. I've got voicemail messages pending for Chris Renz and for the spokesperson for the Airport quoted above, Pat Hogan; maybe one or both will call me back.

-----------------

UPDATE (Tue Sep 11 @ 7:10pm): I received a prompt return phone call from Mr. Hogan, who's the director of public affairs for the Minneapolis-St. Paul Metropolitan Airports Commission, around mid-day today. He confirmed that to the best of his knowledge, Chris Renz has not been hired by the Craig team, contrary to the Congressional Quarterly report; like me, he could only speculate that they got a name wrong somewhere. Mr. Hogan explained that the Minneapolis-St. Paul airport functions like a municipality in many respects, including in hiring Renz' law firm to prosecute its misdemeanor charges. He said that same firm will be responding to Sen. Craig's motion to withdraw his plea, and that they'd make whatever decisions were appropriate about, for example, whether to try to call Sen. Craig to the witness stand, have stand-by counsel if Renz should become a witness, and so forth. Understandably, however, he was unable to discuss specific tactics or positions with me.

The September 26th oral hearing setting came, according to Mr. Hogan, directly from the court. He noted that there's no assurance that the court will actually rule on Sen. Craig's plea right away, however.

Finally, consistent with what the deputy clerk had told me, Mr. Hogan also said that he was unaware of any motions or pleas being filed by Sen. Craig before the motion to accept his guilty plea by mail. So that's some further confirmation that Sen. Craig didn't fill out and file a Form 11, either on his own initiative or at the prompting of prosecution or clerk's office personnel.

Has Larry Craig hired the part-time prosecutor who filed the complaint against him?

[UPDATE (Tue Sep 11 @ 7:40pm): Since writing this post, I've confirmed to my own satisfaction that the answer to the question posed in the post's title is almost certainly: "No." See the updates at the bottom of this later post. — Beldar]

-----------------

The prosecuting attorney who signed the complaint against Craig that was apparently filed on July 2, 2007, was one "Christopher P. Renz."

On August 28th, the AP reported: "[The] judge [who accepted the guilty plea], Gary Larson, and the prosecutor named on the criminal complaint, Christopher P. Renz, did not return phone messages left Tuesday." The Minneapolis Star-Tribune likewise reported on August 29th: "Because the case remains open, Larson's clerk said he couldn't comment. Christopher Renz, the prosecuting attorney, declined to comment." And also reported by the AP on August 29th:

The case was prosecuted by Christopher Renz, an Edina attorney in private practice who also prosecutes cases for the Metropolitan Airports Commission, and Craig was sentenced by Hennepin County District Judge Gary Larson.

But Congressional Quarterly reported on August 29th: "Craig said he did not consult a lawyer before pleading guilty, but this week he hired a local expert: Chris Renz, a former prosecuting attorney for the Metropolitan Airports Commission in Minneapolis."

I've seen this same CQ story reprinted elsewhere on the internet, but no other reports to this same effect. Other, later press reports (for example, here and here) that were contemporaneous with Craig's announcement of his intent to resign didn't mention Renz in describing the members of Craig's legal team.

And then there's this today from the AP — the first part of which is consistent with my post from last night, but in the last part of which attorney Renz' name pops up again:

A defendant who wants to overturn a guilty plea has to demonstrate a "manifest injustice" under the state's Rules of Criminal Procedure, said Steve Simon, a law professor at the University of Minnesota who has run a clinic for defense lawyers for 30 years. That's a high hurdle, he said.

"Very few motions to withdraw pleas are brought," Simon said. "Of those that are brought, few are granted."

He added, however, that in Craig's case "there are some very serious problems with the validity of that plea" because of the possibility that Craig may not have specifically waived his right to an attorney.

The police officer's Miranda warning to Craig covers only the police interrogation — not the later court process. In his plea agreement Craig waived five specific rights, including the right to a trial, but not his right to an attorney. Hennepin County's standard plea petition includes a waiver of a right to an attorney but that wasn't used in Craig's case, Simon said.

A July 20 letter from prosecutor Christopher Renz to Craig laying out the proposed plea agreement made several references to an attorney. "Please review the document and to the extent that you wish, review the same with legal counsel," the letter said. The Metropolitan Airports Commission, which prosecuted the case, declined to make Renz available for comment on Wednesday.

I haven't seen this letter yet, but I'm looking for a link to it somewhere.

Ethically, it would be ... extraordinary, to say the least, for a former prosecutor, whether full- or part-time, to undertake the representation of a defendant whom he helped prosecute. I've got to think that CQ just got the name wrong, but I've emailed Mr. Renz and CQ to inquire.

The fact that Mr. Renz is only a part-time prosecutor, though, is a potentially interesting twist that potentially might shed light on questions regarding how the plea bargain was struck, how the motion to enter the guilty plea was prepared, and how the details of this particular case's progression might have compared to those of comparable cases handled directly by the Hennepin County Attorney's office.

I can't wrestle myself to the ground as your advocate against me in our fee discussions

David Giacalone is a lawyer who hates contingency fees.

Although he and I have never met, David and I have bumped into each other a few times in the blogosphere, most recently through a long-running but very civil discussion, partly here but mostly in the comments section his Overlawyered post about the Rutgers basketball player's defamation case against shock-jock Don Imus.

I became a fan of David's, and silently indebted to him, several years ago in reading through some of his many, many criticisms of the contingent fee structure for lawyer compensation. There was much food for thought on his blog, then called "ethicalEsq." And when I re-entered solo practice last year and was designing the six separate pages in the fees and expenses section of my new professional website, I tried to keep in mind his views, many of which I emphatically agree with.

David's unquestionably correct, for example, in arguing that most lay consumers of legal services don't have a sufficient appreciation for the fact that they can, in theory and usually in practice too, haggle with lawyers over rate structures and fees in pretty much the same way that they can haggle with car salesmen. They can comparison shop. They can improve their odds of making a good decision, and reduce their odds of unpleasant surprises, by doing research before making commitments. If a lawyer tells prospective clients he won't haggle, that's also his right — and maybe the market will sustain him in that, as it sustains the car salesman who's offering next year's new BMW that's restricted for limited U.S. distribution, and therefore insists on a "premium above sticker."

In his most recent post on the subject, however (h/t Ted Frank on Overlawyered), in the midst of many other good points, David makes one argument with which I wholly disagree (emphasis and links his):

Unfortunately, as ethicalEsq wrote in June 2003 at this weblog, when it comes to lawyers who use contingency fee contracts, there appear to be “Fiduciaries everywhere except in the mirror.”   Even worse (and shamefully), lawyers have pushed bar counsel and courts to hold that fidiciary duties do not arise until after a retainer agreement is entered into with a prospective client (see Brickman’s The Continuing Assault, at 1197, which is excerpted below the fold). That’s right: some lawyers are shameless enough to argue that their duty to put the client’s financial interests above their own — and to give clients enough information to make intelligent decisions — does not exist until after the level of fees has been settled.

I agree entirely that lawyers are bound by ethical duties to the profession and to the public generally when they are negotiating their fee arrangements with prospective clients. Those include obligations to make full and fair disclosures and, in general, not to overreach or take advantage of our prospective clients' lack of sophistication. I agree, too, that a lawyer's duties to prospective clients include being candid and reasonably forthcoming in describing his preliminary opinions about the economics of a case, at least in general terms and very broad ranges.

But David is badly wrong in arguing that those duties rise to the level of owing fiduciary obligations to prospective clients with regard to fees: We can't yet be bound by fiduciary duties, because by definition, a fiduciary is obliged to put his beneficiary's welfare above his own. And it's unrealistic — it's impossible — for any prospective client to expect me to negotiate against myself on his behalf in order to get my prospective client my absolute best, lowest, most unfavorable-to-me and most favorable-to-him fee terms.

Instead, here's what I say about that specific subject on my professional website:

I try to deal fairly with my clients on fees both because that's the right thing to do and because it's in my own long-term interests.

Whether you're dealing with me or any other lawyer, however, remember this:

A lawyer whom you haven't yet hired must always be his own advocate with respect to the prospective fee arrangement between you and that lawyer. As a businessman, his interest has to be in getting himself paid — and most lawyers (including me) would rather be well paid than poorly paid. Your interests at that stage are certainly different from his, and in fact, depending on the arrangement under discussion, your interests may be exactly the opposite of his. Hopefully you can find an economic arrangement that will be fair to you both. But you must not rely on your prospective lawyer to put his own interests behind yours during the fee negotiation process.

Once I am retained, then I do indeed have an obligation to put my client's interests ahead of my own  — including on matters that relate incidentally, or even profoundly, to my fees. Knowing that I will be exposed to risks from such obligations is something I do consider up front, in deciding what engagement terms will be satisfactory to me — and that's altogether appropriate, since I have the experience to make informed predictions and evaluate that risk. My clients' interests not infrequently oblige me to do things that would not be cost-effective for me personally, but once I'm their fiduciary, my obligation is to protect and further my clients' interests even at the cost of my own. And I'm fine with that — once I'm hired.

Before then, however, I would be deceiving and misleading my clients if I even suggested to them that I was putting their interests ahead of my own in my evaluation of how I can use their case to help me run a profitable business. Instead, in order to be candid with them, I think I must tell them that I am a businessman, in business to make a profit, and that they cannot and should not expect me to wrestle myself to the ground on their behalf during fee negotiations. Being a fiduciary is a profound responsibility, and it's not one that should be casually thrust upon any professional unless and until he's willing to undertake it for a specific client whom he's agreed to represent.

No amount of well-wishing or hand-wringing or pious virtue can change this. And by suggesting that it can, I think David dilutes the impact of some of his other, better observations.

Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed

On Sunday, I spent a good seven hours doing legal and factual research, all going into a post that would have explained why there was not a chance in hell that Idaho Sen. Larry Craig could succeed in trying to retract his guilty plea.

Law-blogger and real-life criminal defense lawyer Jeralyn Merritt argued last week that that Craig's written motion to enter his guilty plea didn't fully comply with the requirements of Rule 15.02 of the Minnesota Rules of Criminal Procedure as that rule was made applicable to mailed-in guilty pleas by Rule 15.03 — a failure made especially obvious by comparing it to the more much thorough forms provided in Appendix B and Appendix C to Rule 15. Specifically, the form Craig signed and mailed in didn't include a representation that Craig knew of, and was deliberately waiving, his right to counsel at every crucial stage of the criminal proceedings, including specifically in connection with his decision to accept a plea bargain and to enter a guilty plea to the disorderly conduct charge in exchange for the dismissal of the peeping charge.

I agree with Jeralyn that when such arguments are presented in a timely fashion, they can be surprisingly robust, even though they seem awfully picky. There's a good reason that the appendices included the language that was specified in Rule 15.02 but omitted by the Hennepin County prosecutors: Those picky little rules, collectively, both ensure and constitute due process. The more important the value being protected by the rule, the less strict courts tend to be in requiring a direct showing of causation between the violation of the rule and any particular harm to the defendant. And faced with a defendant who was proceeding without a lawyer, who's not a lawyer himself (even if he is a "lawmaker"), whose operative documents were being written for him by the advocates for the State (and they didn't follow the rules), and who's now maintaining his factual innocence and making a timely complaint about a violation of even such a picky little rule, I agree with Jeralyn that Craig would have a reasonably good chance of getting his plea withdrawn.

But I was prepared to disagree with Jeralyn because I was convinced that any attempt by Craig to make that argument now would be deemed untimely — sort of like asking for an instant replay review after the game has been whistled over.

*******

Rule 15.05 of the Minnesota Rules of Criminal Procedure permits withdrawal of a guilty plea "upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." The missing language from Craig's written plea might be enough to satisfy the "manifest injustice" requirement, but I had already confirmed earlier last week that, based on the judgment date of August 8th, Craig had already missed his fifteen-day deadlines under Rule 26.04 for filing either a motion for new trial or a motion to vacate the judgment of conviction in the trial court, as well as missing his ten-day deadline under Rule 28.02 for filing a notice of direct appeal as of right.

Based on those deadlines, I was therefore working on the reasonable assumption that any motion by Craig under Rule 15.05 would therefore be considered "untimely," and that he would therefore be restricted to a so-called "collateral attack" on his conviction. In some states that would be done through a writ of habeas corpus, but in Minnesota, all such collateral attacks are made under Minn. Statutes § 590.01 et seq. I saved until last the task of looking for cases interpreting those statutes, again working on the assumption that they would at least roughly parallel the collateral attack standards I was familiar with from Texas and other states within the old Fifth Circuit.

My intended grand conclusion was that because he'd missed these bright-line deadlines, Craig would have to show something vastly more than the sort of technical defect that Jeralyn had spotted. He'd need to show that a fundamental constitutional right was violated, and not just in some technical way, but in a way that had actual consequences for him. He'd therefore need to show, I assumed, something like (a) a complete failure of anyone to ever advise him of his right to counsel, plus (b) an actual ignorance on his part of those rights, plus (c) a convincing argument that if the missing language had been in the form plea motion sent to him by the prosecutors, it would have tipped him against pleading guilty and instead into seeking a lawyer's advice, plus (d) an argument that on the basis of such advice, he would have reevaluated the charges and evidence against him, and would have decided instead to fight both charges rather than taking the plea bargain. Since we've heard the arresting officer Mirandize him in the post-arrest audiotaped interview, I thought it would be impossible for him to meet that burden in a traditional collateral attack.

My assumptions, though, were wrong. Minnesota law on withdrawing guilty pleas is just damned generous, at least as compared to Texas and other states I'm more familiar with. Minnesota's caselaw treats Rule 15.05 as having no bright-line deadline, and motions to withdraw pleas under it aren't automatically considered to be "untimely" even after new trial motion and notice of appeal deadlines have passed. Instead, the Minnesota courts have engaged in the sort of sliding scale balancing of interests tests that judicial conservatives (including me) so tend to mock. They weigh the magnitude of the right supposedly deprived against the delay in asserting it, with special emphasis on whether that delay will prejudice the prosecution in proceeding to trial if the plea is permitted to be withdrawn. The presumption of validity for final, no-longer-appealable judgments gets mouthed by the Minnesota appellate courts, but sometimes seems to count for very little. My research was far from exhaustive, and of course I'm not admitted in Minnesota, but in an hour or so I came upon a goodly handful of Minnesota cases permitting plea withdrawals months and even years after they'd been made, sometimes without anything approaching the kind of rigorous examination for both violation of fundamental rights and the resulting causation of prejudice that I would have expected.

Surprised and frustrated — partly with the squishy laws of Minnesota, but mostly with my own assumptions that they were probably like other states' laws I was already familiar with — I hit the "Delete Post" button, and went back to Jeralyn's blog to leave a "never mind" comment after the questioning comment I'd left earlier. (She apparently had seen some of the same cases I had.)

(The wild-card: If by chance the Hennepin County prosecutors also had Craig execute and file Minnesota's "Form 11," through which defendants are supposed to ask permission of the courts to exercise their rights to proceed "pro se" (that is, without counsel), then all bets as to whether he can withdraw his plea are off. But I'm working on the assumption that if there were such a document in the court's file, one of the mainstream media sources who've been swarming around this story would have mentioned it by now. If it's not there, its absence is yet another factor that would support Craig in withdrawing his plea.)

*******

Now, though, as Jeralyn and K-Lo have blogged, various MSM sources (including ABC, WaPo, and the Idaho Statesman) are reporting that Craig is "reconsidering" his announcement that he may resign, in part based on encouragement from Sen. Arlen Specter that he ought to fight rather than bow out. Specter is indeed a former state-court prosecutor, which probably gives him just enough credibility that his advice seems to Craig like a life vest thrown to a man who'd already given himself up for drowned.

But that Specter may be right in saying Craig could get his plea set aside doesn't mean Specter's advice to fight is wise. One of Jeralyn's co-bloggers at TalkLeft who's also a criminal defense lawyer wrote a fascinating post last week reporting his/her poor success rate in trying cases like Craig's:

Does he want a trial? Can he win a trial? I don't think so.

I have tried about a dozen cases involving men arrested in bathrooms or in similar situations. My record:  1 and 11. Why? These cases are hard to win because the credibility determination always favors the officer. Judges feel compelled to rid their communities of gay men trolling for anonymous sex in public bathrooms, as a "quality of life" crime.

That record sounds about right to me — and that's presuming that Jeralyn's co-blogger is a capable and experienced lawyer doing a very competent job. There's a very real possibility — one that I'd go so far as to call a substantial probability — that Craig might get his plea withdrawn in the next week or two, withdraw his statement of intent to resign effective September 30, and then still end up being convicted. Indeed, he might be convicted not only of the simple misdemeanor disorderly conduct charge, but of the much more serious "gross misdemeanor" peeping charge. The trial would be, of course, a media circus; the result would likely come down largely to Craig's on-stand credibility as compared to that of the arresting officer, Sgt. Dave Karsnia, and to the jury's sensitivities in their legitimate role as "conscience of the community."

If I had a client in Craig's position and he was genuinely convinced of his innocence, and if he was therefore insistent upon proceeding to trial despite all the potential downsides — not just the criminal penalties he faced, but the expense and distraction, and most of all the intense embarrassment and hardship on him and his family and friends — then I'd certainly have no trouble buckling on my armor and picking up my sword and going to do battle on his behalf in court. To ensure that his decision was well-informed and truly well-considered, however, I would be as brutal as I could be in describing the risks. I'd do an extended and very realistic mock cross-examination of him on videotape, and then go over the playback with him — and with his wife. I'd beat him up in private as badly as I expect the prosecutors will beat him up in public. Because while a trial here would be very interesting for the public, it won't be pretty. And even if he risks it and wins, it still may not solve his political problems.

----------------

UPDATE (Tue Sep 4 @ 11:10pm): This lede gets my vote for "droll reporting of the week":

Just when Republicans thought things could not get much worse for their scandal-stained party, Idaho Sen. Larry Craig leaked word Tuesday night that he is reconsidering his abrupt plan to resign from the Senate in the wake of his arrest in a police sex sting operation.

Top Republican strategists were neither delighted nor amused by the senator's decision to rethink retirement after pleading guilty to disorderly conduct following his arrest in a Minnesota airport men's bathroom.

By way of further explanation of the difference between "direct" and "collateral" attacks on a guilty plea, let me give you an example of just how strict the Texas courts are with respect to the latter.

This past May, in Ex parte Douthit, the Texas Court of Criminal Appeals considered a collateral attack by a capital murder defendant who pleaded guilty as part of a plea bargain in 1987. As part of the plea, he escaped the death penalty and received instead life imprisonment with no possibility of parole. Eighteen years later, he filed a petition for a writ of habeas corpus in which he raised, for the first time, an absolutely valid argument: Prior to 1991, Texas law quite literally did not permit a defendant charged with capital murder to waive his right to a jury trial. Douthit's plea bargain squarely violated the then-existing statutes, and the judge ought to have required the prosecutors to dismiss the capital charge and re-indict him on a non-capital murder charge before accepting his plea. Had that happened, he would have been eligible, eventually, for parole. In effect, the pre-1991 statute prevented over-charging of capital murder by prosecutors who would then be able to plead down to get a life with no parole sentence; so although it looks like a restriction on defendants' rights, it arguably actually expanded them (albeit at the expense of prosecutors' flexibility in the plea bargaining system, which might come back around to hurt at least some defendants).

On similar facts, the Texas Court of Criminal Appeals and the intermediate Texas appellate courts had granted writs in several previous cases, but the Douthit court reconsidered and then overruled those decisions. The "right" in question, it emphasized, was merely one conferred by statute — it was not a fundamental constitutional right guaranteed by either the U.S. or Texas constitutions, and indeed it had been dissolved for capital defendants accused after 1991 by unquestionably valid action of the state legislature. "The Great Writ [i.e., habeas corpus] should not be used to litigate matters which should have been raised on appeal or at trial," said the court.  And more fundamentally, collateral attacks through habeas corpus — those made after the time for a direct appeal has expired, or those that were not included in the original direct appeal — could not be used to correct procedural errors, or even violations of supposedly "mandatory" statutes. Douthit thus reminds courts that habeas corpus actions aren't meant to give unlimited bites, nor late bites, at every apple. Deadlines have consequences; finality is a value; and sometimes bright-line rules are preferable to balancing tests.

-------------------

UPDATE (Wed Sep 5 @ 1:55am): In a new post, besides graciously linking this one, Jeralyn discusses, and I think correctly discounts, the possibility that Craig might have a defense based on his rights under Article I, Section 6 of the Constitution to be free from "arrests" while traveling to and from congressional sessions. And she again mentions the possibility that, if Craig were to succeed in getting his plea withdrawn, he might then, through counsel, try to re-negotiate a better plea bargain — perhaps one for delayed adjudication, in which his case could be placed "on hold" for a year-long probationary period. If he keeps his nose clean, the charges would then be dismissed without his having ever had to enter even a conditional guilty plea. That is indeed the kind of deal that good lawyers often can get for nonviolent clean-record clients, especially if there are other weaknesses in the State's case. It would be the "best case scenario" for Craig: He could maintain his innocence, but avoid both trial and conviction.

But Craig has already very publicly claimed that he's been "railroaded," and he's probably going to have to point more fingers at the prosecution to get his plea withdrawn. Once that's done, I can't imagine the prosecution cutting him any slack in plea negotiations. He shouldn't try to withdraw the plea unless he's really ready and willing to go the distance, all the way to a jury verdict, on both the disorderly conduct and the peeping counts.

Josh Marshall, meantime, gives us partial benefit of his Roll Call subscription in quoting reports which suggest that Craig had actually consulted Washington lawyer Billy Martin many times over the past several weeks — an inference from what seem to have been a large series of mis-dialed phone calls that Craig intended for Martin, and that included a voicemail message in which Craig was coordinating the language of his "intent to resign" announcement with Martin last Saturday. That actually would not surprise me at all; it's always been hard to swallow the suggestion that Craig returned to the airport police station to ask for a "contact person" for his lawyer, but that he hadn't yet consulted a lawyer, and didn't at any point before entering his plea. (On the other hand, he says he didn't tell his wife or his staff, and the mailing address in his motion to plead guilty was for a D.C. residence, presumably to keep them out of the loop.) Confirmation of pre-plea contacts with a lawyer would weaken Craig's arguments for withdrawing his plea, though, to the extent that such a motion is based on the (already ludicrous) suggestion that he really didn't know he had a right to counsel.

Regarding the voicemail message that's now public (and quoted in full at TalkLeft among other places), here's what I left as a comment there:

There's a good chance that Craig could get any evidence of the voicemail suppressed as an unintentional disclosure that didn't amount to a valid waiver of attorney-client privilege — meaning he could keep the prosecution from making any use of it at trial.

Of course, it will be pretty hard to find a jury in Minneapolis who doesn't already know that he pleaded guilty, even if he is permitted to withdraw his guilty plea.

But he's very, very lucky there wasn't anything more sensitive in the voicemail. If he'd said, for instance, "I've got to keep fighting this thing in court or else my wife will realize I'm really gay and divorce me, and I can't afford that," then it would have been cold comfort for him that he might be able to keep that from being formally offered into evidence at a trial.

Moral: When speaking to your lawyer on voicemail, limit yourself to, "Billy, this is Larry, call me back, k thx bai."

Finally: I've updated this post to add, gratuitously, a screencap of Sen. Specter on Fox News Sunday, urging Craig to fight. My question to you is this: Would you take legal advice from a man who matches that tie to that suit? (Or who wears that tie with anything?)

-------------------

UPDATE (Wed Sep 5 @ yes I suffer from occasional insomnia o'clock a.m.): Josh Marshall quotes at length from an unidentified Oregon attorney who says that whether Craig can or can't withdraw his guilty plea "all depends on the transcript of the plea and sentencing [colloquy]." Well, yeah — except there wasn't a colloquy, so there won't be a transcript.

I don't blame this lawyer for jumping to that conclusion, because if this were a felony, or if it were what Minnesota terms a "gross misdemeanor" (like the peeping charge that was dismissed; and no, that's not an intentional double entendre), Craig would have had to show up in person to enter his plea, and there would have been a conversation on the record between him, his lawyer, and the judge. Dr. Marshall's correspondent is just behind the learning curve in failing to have figured out that this was a mailed-in plea.

But that is an important fact here. And frankly, it's hard to tell how it cuts.

One the one hand, the U.S. Supreme Court has been notably reluctant to impose the full range of constitutional requirements and protections for misdemeanors (a term whose meaning varies from state to state, but normally means a crime punishable by fines and a year or less of jail time) as compared to felonies (normally crimes punishable by fines and more than a year of prison time). That's one reason that the Minnesota Rules of Criminal Procedure require a more detailed set of inquiries by a judge who's accepting a guilty plea for a felony or a gross misdemeanor (Rule 15.01) than for a simple misdemeanor (Rule 15.02). That's also why an unsworn plea-by-mail, for the convenience mostly of the defendant, may be okay (per Rule 15.03) for a misdemeanor, with all of the admonitions that would normally be part of an on-the-record colloquy being instead reduced to a written form.

But on the other hand, given the fact that they're already short-cutting the procedures required for more serious crimes, there's an argument to be made that it's particularly important to follow strictly every one of the relaxed rules that have been permitted for the less serious offenses. Arguably, that's where the greatest dangers of prosecutorial abuse lie — in the little cases, where people likely want to just get it over with, and paying a fine that costs less than what a lawyer would bill you in two hours looks pretty damned attractive.

In most of those smaller cases, no one is going to end up fly-specking the written motion to enter a guilty plea. And this is just another simple misdemeanor, sure. But most simple misdemeanors, with no jail time and a $550 fine, don't end up abruptly ending the careers of prominent national figures.

Craig certainly knew — and regardless of what's in the record, the judge will know Craig knew — that he (Craig) had a right to a lawyer. But did Craig know that if he had a lawyer, he might have been able to negotiate a deferred adjudication plea — exactly the sort of thing that a prosecutor might not volunteer to a pro se defendant, even a U.S. senator defendant, but that even a semi-decent defense lawyer would have known to ask for? If I were Craig's lawyer, I'd have minions down at the courthouse this week developing a statistical model to try to establish just how much better similarly situated defendants did on their plea bargains with and without lawyers. But an experienced judge will know that anyway, and bringing him the actual numbers is probably carrying coals to Newcastle. This judge will presumably have seen many, many plea bargains, both mail-in and in-person; he will have a strong sense of what's "normal," and if he has the slightest hint that the prosecution extracted more from Craig than from other pro se defendants, that will help Craig enormously. Even if he senses that the prosecution took advantage of Craig as compared just to defendants who have lawyers, that will help Craig.

On balance, I think the fact that this was a mail-in plea probably makes the odds of getting the guilty plea withdrawn better rather than worse.

And if Craig's attempt to set aside his plea really ought to have been filed within 15 days to be unarguably timely, it will end up being filed no more than a few days after that. The prosecution can't plausibly claim that it's "prejudiced" in the sense of evidence having been lost, or witnesses having died or wandered out of touch, by virtue of the trial taking place in September instead of August.

All of this is what goes into my informed gut hunch about the likelihood of Craig getting his guilty plea withdrawn. The gut hunch of someone who actually practices regularly in the Hennepin County criminal courts would be better, but frankly, I've seen some press reports from people who look like they fit that criterion and yet have been making wilder guesses than Jeralyn or I have.

More retrospective from Greenburg (and Beldar) on the Miers nomination

In further debunking the silly report that then-Chief Justice nominee John Roberts had "suggested" Harriet Miers for the SCOTUS slot being vacated by Justice O'Connor, Jan Crawford Greenburg describes the Miers nomination as

a decision that badly hurt the President with his conservative base, allowed Democrats to unfairly portray Sam Alito as somehow beholden to those interests and, perhaps worst of all, made a laughingstock out of a smart woman who — but for the nomination — would be seen today as an accomplished lawyer who’d served her country with dignity.

"How could Bush have done so well in choosing Roberts and Alito and so many of his circuit and district court nominees," conservatives are still asking, "and yet have nominated Harriet Miers?"

Greenburg is confident that during the research on her book "Supreme Conflict," which I reviewed a length earlier this summer, she had found the true explanation for how the Miers nomination came about. Besides his general interest in naming another woman to the Court,

George Bush believed — because his advisers had told him so — that Miers was qualified for the Court. Just as importantly, he also believed — because he knew her — that Miers would not drift to the left like David Souter did. It’s impossible to overstate how much the last consideration drove Bush: His dad did not know Souter and relied on his closest advisers to vouch for the reclusive New Hampshire judge’s conservative views. But George H.W. Bush’s advisers — chief of staff John Sununu, primarily — had no idea what they were talking about, and Souter soon was showing himself to be almost as liberal as the justice he replaced, William Brennan. Bush was determined not to repeat what conservatives considered to be his father’s greatest blunder.

This is almost exactly what I wrote on the morning the nomination was announced, before the conservative hurricane against Miers had coalesced (emphasis in original):

I think Ms. Miers' nomination is ... mostly a product of two factors. The first factor — the one that became logically precedent to, albeit not more important than, the other key factor — was the unique-to-this-slot "need" to pick another woman to follow Sandra Day O'Connor. The first attribute used to narrow the field was thus whether a potential nominee had a Y chromosome, although being first didn't make an XX pair the most important criterion. No, the second and ultimately determinative factor can be completely summarized in three words: "No more Souters."

To you, me, the Senate, and the public, Harriet Miers may seem as much of a blank slate as David Souter was when Bush-41 nominated him. "Another 'stealth' candidate," many will say, "another blank slate about whom we know too little to make confident predictions!" That's already the official party line of the Dems, and it's something being muttered less loudly among puzzled Republicans as well.

But that is emphatically not the case from the perspective of George W. Bush. And the Constitution does, after all, give him the nomination power — not "the White House," not "the Republican Party," nor "conservatives generally," nor even "us'n who put him back into office." And he knows, and he's always known, that the blame for an appointee who turned out to become "another Souter" would likewise be placed on him. It's a responsibility and an opportunity whose benefits and risks he sought, but that he obviously takes very seriously indeed, because from Dubya's perspective, Harriet Miers was the one prospective female nominee about whom he personally felt that he could be most certain in predicting what sort of Justice she will become.

Further on the subject of Miers' qualifications, Greenburg writes:

Bush had said he wanted to nominate someone outside the "judicial monastery," and certainly the Court could use an experienced lawyer who would bring a real-world perspective. But Harriet Miers was not that person. Her experience dealing with complex commercial litigation was embarrassingly inadequate — as the lawyers in the White House painfully realized when she filled out her Senate questionnaire and was asked to list the top cases she’d handled.

And that's a fair assessment too, as far as it goes. But this passage ignores Miers' total package of credentials — ones which, in fairness to Greenburg, she did take the time to discuss in her book, but that many of Miers' critics then and now have ignored or trivialized.

Miers' record as a top-flight trial lawyer, or even as a "litigator" (who'd handled big cases without necessarily seeing them through to trial) was good. But it was indeed thin for the number of years she'd been in practice. The explanation for that, though, was not that Miers was an all-around light-weight. Rather, she'd also been doing other things outside the courtrooms that a president could reasonably conclude would add valuable perspectives in a SCOTUS nominee: serving the legal profession through local and state bar organizations (including president of the Texas Bar); leading a prosperous and successful major law firm, including through a risky but successful merger, in times of unprecedented change and competition; and serving behind the scenes as a senior legal adviser to the governor of a large state and then to a war-time POTUS.

David Boies, famous among other reasons as Al Gore's lead lawyer in 2000, is the only practicing courtroom lawyer with a national reputation outside legal circles. But beneath the general public's radar screens, of course, there are conservative analogs (e.g., Phillip Beck) who would be equally as well qualified for a seat on the Supreme Court. And Miers indeed wasn't one of those. Not even Dubya thought she was, which is why she wasn't one of the first-team courtroom lawyers standing opposite David Boies in court during the most important aspects of the Bush v. Gore litigation in 2000. She did, however, advise Bush then behind the scenes, and she handled a less famous 2000 election challenge in Texas based on the Twelfth Amendment. More to the point, though, neither those conservative courtroom veterans nor, for that matter, David Boies also had the other non-courtroom credentials for a SCOTUS seat that she had.

The Miers nomination was, in hindsight, a political disaster. But I continue to maintain that's not because of stupidity, nor because of incomprehensible or flawed logic, on the part of George W. Bush in making it. Nor was it at all a case of Bush breaking faith with the voters who'd elected him in part on his assurance that there would be "no more Souters." And the value of Greenburg's current blog post, in addition to confirming Chief Justice Roberts' non-participation in the Miers nomination, is to provide a reminder of both of these points, especially the second one. Conservatives refused to see it, and the White House proved itself utterly, ridiculously, tragically inept in explaining it at the time, but Dubya, from his point of view, was keeping faith.

Miers would have been confirmed without controversy had she been (a) male, (b) less of a crony (read: less of a known quantity) to a  POTUS who is radioactive outside his party and still distrusted by "elite" elements within it, and (c) nominated at any time in our nation's history other than the last 30 years. Based on long, close personal experience with her, Dubya is still confident that she wouldn't have "drifted left." But in every other respect, she'd have been essentially indistinguishable from a nomination like Lewis F. Powell, Jr.'s, whose credentials resembled hers and were, if anything, slightly inferior to hers.

Texas governor Rick Perry accepts Texas Board of Pardons & Paroles' recommendation to commute death sentence of getaway driver Kenneth Foster

The Associated Press is reporting that the Texas Board of Pardons & Paroles has today, by a six to one vote, recommended to Texas Governor Rick Perry that he spare the life of convicted capital murder defendant Kenneth Foster, about whom I wrote at length earlier this month:

Foster was to die in the state death chamber in Huntsville tonight for being the getaway driver in the 1996 attempted robbery and murder of Michael LaHood in San Antonio.

The vote from the seven-member board was 6-1. Perry doesn't have to accept the highly unusual recommendation from the board, whose members he appoints.

From the Board's website:

The governor has the authority to grant executive clemency upon the written recommendation of a majority of the Board of Pardons and Paroles. Executive clemency includes full pardons, conditional pardons, pardons based on innocence, commutations of sentence, and emergency medical reprieves. In capital cases, the Board considers petitions for commutation of sentence to life in prison and for a reprieve of execution. If the Board recommends clemency in a death penalty case, the governor may grant commutation or reprieve. The governor can also grant a one-time thirty-day reprieve of execution in these cases.

That last sentence isn't what's at issue here. In the typical and ordinary case in which a majority of the Board has not made a clemency recommendation, the only power the Texas governor has is to grant one thirty-day reprieve — requests for which Perry, like most other Texas governors, have almost always refused. But what appears to have happened today is a formal, and statistically very unusual, recommendation by the Board in favor of executive clemency. That opens up a whole range of options to Gov. Perry under Texas Code of Criminal Procedure article 48.01 that generally are otherwise foreclosed to him.  Realistically, however, the most generous degree of executive clemency that Perry might be expected to show would be to commute Foster's death sentence to life imprisonment instead.

*******

The Board's recommendation must be in writing. I don't know, and the news reports don't say, whether that's been issued yet. At a minimum, I would presume that the governor will want to read it before making any final decision on it.

Because recommendations like this from the Board are so rare, however, I will also hazard a guess that Gov. Perry will grant a stay of tonight's scheduled execution. He could still thereafter, upon due consideration of the Board's written recommendation and its grounds, decline to follow the recommendation, in which event the execution would be rescheduled and would likely proceed.

Nevertheless, precisely because of the Board's role in the Texas system, Perry or any other Texas governor is far, far more likely to pay attention to, and perhaps to go along with, a recommendation from the Board than he is to be affected by lobbying from the likes of the European Union, Amnesty International, or Jimmy Carter. So to go a bit further out on a limb in my predictions:

If the Board's recommendation is based on a general squeamishness about the propriety of executing someone who wasn't a triggerman himself, notwithstanding this particular jury's affirmative findings on every element that Texas law requires in order to impose a capital sentence on an accomplice like Foster, then I would expect Perry to refuse the recommendation, probably with a statement to the effect that deciding whether Texas law can ever permit capital punishment based on one's status as a non-triggerman accomplice is a question properly for the legislature and the executive to decide, not the Board.

Likewise, Perry would be highly unlikely to go along with the Board's recommendation if it were based on a legal re-review (like my critique of the Fifth Circuit panel's ostensible deference to the state-court record). He is not going to agree that the Board has any business second-guessing the Texas and federal trial and appellate courts who have refused to block Foster's execution.

But if instead, as I suspect is the case, the Board's recommendation is closely tied to the specific facts of Foster's case, then I believe Perry will likely go along with it (as he did, for example, in a recent non-capital case). The Board, and then the governor upon its recommendation, are entitled to consider a variety of factors that were not before the sentencing jury and judge — including, for example, the fact that neither of the other two accomplices was sentenced to death. The members of the Board are hardly "bleeding hearts" or easy marks, and they've seen and heard hundreds of contrived and exaggerated tales of woe in capital and other cases. Moreover, I'm highly confident that the Board wasn't swayed by the gross distortions of the facts of Foster's case from death penalty opponents like The Nation's Peter Rothberg. So it will be interesting to see what the six members of the Board's majority have written here, and what Gov. Perry then does with their recommendation.

*******

Finally, lest you wonder: I'm not a bit distressed by the Board's decision, although I'm certainly intrigued by it. I believe in the system, and in the individuals who do their best to uphold their respective roles in it. The Board has such a role, and I have no more reason to doubt their competency or integrity than I do the prosecution's, jurors', or judges'. I was distressed, and felt that I had an opportunity to influence, the egregious mis-reporting of the facts about Foster's case. That doesn't mean that I would be disappointed were his sentence commuted; and indeed, at the conclusion of my prior post I expressed my position that I would not have joined in the Fifth Circuit panel opinion affirming his conviction and sentence because of a narrow procedural point that I nevertheless believe ought to have been treated more carefully.

-----------------------

UPDATE (Thu Aug 30 @ 12:30pm): And faster than the speed of blogging (but appropriately quickly, given tonight's scheduled execution): Gov. Perry has indeed already accepted the Board's recommendation and has announced the commutation of Foster's death sentence:

"After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment," Gov. Perry said. "I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine."

The TBPP voted 6-1 to recommend commutation, and the governor signed the commutation papers Thursday morning.

The governor’s action means Foster’s sentence will be commuted to life imprisonment as soon as the Texas Department of Criminal Justice can process this change.

Now that is indeed interesting! But best made the subject of a new post. (I've changed the original title of this post to reflect Perry's action.)

Last point for now: This commutation happened despite the media furor and, in particular, the widespread misreporting of the facts about Foster. Failure to deal candidly with unflattering facts, like rampant regional bigotry (both displayed, for example, in this Huffpo op-ed), saps credibility and otherwise detracts from death penalty opponents' legitimate arguments, and pundits who engage in those tactics do absolutely nothing to help anyone on Texas' or any other state's death row.

Second Circuit Chief Judge Jacobs speaks out against the judicial bias toward seeing law as the solution to every problem

In July, I wrote a pair of posts (here and here) defending a remarkable dissenting opinion by Second Circuit Chief Judge Dennis Jacobs in a case called Hussain v. Springer that included these two sentences:

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.

Many folks, of varying persuasions, thought this was an outrageous thing for him to do and say. I disagreed.

Now, though, via the good offices of my friends at Overlawyered, I've found my way to a reprint of Chief Judge Jacobs' equally remarkable lecture at Fordham Law School in November 2006 entitled The Secret Life of Judges. He explains:

This lecture is about bias, the judge’s inbred preference for outcomes controlled by proceduralism, the adversary system, hearings and experts, representation by lawyers, ramified complexity of doctrines and rules, multiple prongs, and all things that need and use lawyers, enrich them, and empower them vis-à-vis other sources of power and wisdom.

He spends the next eight pages poking rapier-sized holes in the judiciary and the legal profession from which it is drawn. For example:

I am not — I repeat, I am not — speaking about a bias based upon politics or agenda, economic class, ethnicity, or para-ethnicity. When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained — by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias.

The result is the incremental preference for the lawyered solution, the fee-paid intervention or pro bono project, the lawyer-driven procedure, the appellate dispensation — and the confidence and faith that these things produce the best results....

He sees grave societal consequences from this hidden bias (emphasis mine):

I sometimes think that the problem at bottom is really a lack of respect by lawyers for other people. Judges live chiefly in a circle of lawyers. Our colleagues are lawyers; happily, our friends are lawyers (and I am hoping to keep some after this lecture); the only outside income a federal judge can earn (aside from royalties) is from teaching in law schools (with the idea, I suppose, that they furnish a nonpartisan environment); and the only political and trade organizations we can join are bar associations.

But outside that circle there are people who are just as fully absorbed by other pursuits that deserve consideration and respect. Judges need a heightened respect for how nonlawyers solve problems, reach compromises, broker risks, and govern themselves and their institutions. There are lawyers on the one hand; and just about everybody else is the competition in the framing of values and standards of behavior.

In that competition, judicial bias has eroded the independence and influence of doctors, medical administrators, insurance underwriters, engineers, manufacturers, the military, the police, wardens and corrections officers, the clergy, employers, and teachers and principals

He offers a prescription (emphasis in original) that if I had to reduce to a phrase, I'd describe as "Don't just get over yourselves, judges — try some healthy self-doubt!"

What can be done to correct this bias and to place the legal profession again on a footing of parity and fair competition with other professionals and activities that have a right to influence in our communities and our culture? In a nutshell, judges should lead the bar in exercising the self-restraint and self-discipline that is incumbent on a profession that has a virtual monopoly on legislative power and a monopoly by patent on the power of the judiciary, and that is largely self-regulating.

....

As a matter of self-awareness and conscience, judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust, even if our friends and colleagues in the legal profession lead us that way. For the judiciary, this would mean a reduced role, but not a diminished one if the judiciary is elevated by considerations of honor, self-restraint, and respect for other influences.

I agree wholeheartedly with Chief Judge Jacobs' observations. About the only thing I would add is that the intrinsic and hidden biases he describes are every bit as common among practitioners as among the judiciary, and that we, too, ought to undertake the responsibility of curbing them.

If you are among the many who are concerned about over-reach by lawyers, judges, and the legal system, you will enjoy reading his speech — perhaps not least for such reassurance as it may provide that at least not every lawyer or judge is blind to these problems. This is an articulate and profound manifesto for judicial conservatism, which is not the same thing as, or necessarily related to, political conservatism at all. But political conservatives certainly ought to want to see judges appointed or elected who harbor this precise sort of self-skepticism.

The answer to the "Why was this a crime?" crowd on the Craig matter

Ed Morrissey, Garrance Franke-Ruta, James Joyner, Dale Carpenter, Jack Shafer, and Radley Balko, among many others, all question whether Sen. Larry Craig actually committed any crime. As Mr. Balko writes,

Craig didn't actually engage in the lewd behavior. Didn't get that far.  Aside from the peeping charge, which was thrown out, the only thing I can see that he's guilty of is looking for a willing sex partner. And I can't see how that is or should be a crime.

Mr. Balko's confusion comes from his assumption that the peeping charge was "thrown out." It wasn't. Instead, the peeping charge was pleaded out — and that's a very, very big difference in this context. In fact, it's the peeping charge that almost certainly explains and makes justifiable Craig's plea to disorderly conduct (even if the latter crime was less obvious or more questionable on these facts).

*******

Prof. Ann Althouse links, quotes, and examines the two statutes under which Craig was charged. Here's the peeping statute:

(c) A person is guilty of a gross misdemeanor who:

(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a ... place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and

(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

The intent requirement is obviously key, since it is what separates criminal peeping from a casual glance to see if a stall is occupied. Was Craig just casually glancing? The prosecution, I'm sure, felt that with testimony at trial which would be consistent with this paragraph from the police report, and with all of the other circumstances, the State could prove beyond a reasonable doubt that Craig intended to "intrude upon or interfere" with the undercover cop's privacy (emphasis mine):

At 1213 hours, I could see an older white male with grey hair standing outside my stall. He was standing about three feet away and had a roller back with him. The male was later identified by Idaho driver's license as Larry Edwin Craig [redacted]. I could see Craig look through the crack in the door from his position. Craig would look down at his hands, "fidget" with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes. I was able to see Craig's blue eyes as he looked into my stall.

Prof. Althouse correctly notes that the peeping statute much more closely tracks the facts alleged in the police report than the disorderly conduct statute, but she goes on to write, also correctly: "I have to suspect that he decided to plead guilty to disorderly conduct to resolve the matter and that if he hadn't agreed to that, he would have faced the peeping charge."

I would take that a step further with considerable confidence: The dismissal of the peeping charge was not because it was improper or because it would be shown to lack evidentiary support. Instead, the peeping charge was dismissed without objection from the prosecution because that was what the State gave up as its key part of the plea agreement. Thus, Sen. Craig was almost certainly given an accommodation here by the prosecution and the court in being allowed to plead guilty to the crime that, of the two charged, has by far less social stigma attached to a conviction.

Yes, disorderly conduct is a broad and vague charge — one that doesn't much seem to fit the facts alleged. And Craig’s presumably intended but uncompleted conduct (some sort of sex in a public men’s room) would certainly have been considerably more disorderly than anything he actually did before he was arrested. But disorderly conduct's very vagueness — encompassing "offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others" — makes it stretchy enough to cover, if barely (and if only for purposes of a plea bargain) what Craig actually did do. Indeed, it's entirely possible that it was charged in the first place as an obvious, attractive basis for compromise, i.e., a charge with at least some factual correspondence to what happened, and upon which a more attractive plea could therefore be negotiated (especially for someone with no criminal record or other indications of dangerousness).

I am not in the least suggesting, either, that the prosecution or the court gave Sen. Craig a better deal than they would have given any non-famous non-senator average citizen. There's no reason to think that Sen. Craig was treated anything but routinely. This sort of plea happens every day in criminal courts around the country, and so long as there's at least some factual basis for the plea, there's nothing exceptional or remotely wrong with it. It's altogether possible that the prosecution would have declined to pursue the disorderly conduct charge if the case had gone to trial; or they might have left it in, figuring that it would give the judge or jury an alternative basis to punish, but less severely. From the prosecution's standpoint too, the peeping charge would have required proof of intent — making it, appropriately, a harder crime on which to secure a conviction. And if the prosecution's case had been objectively less strong, then perhaps the alternate charge (and the resulting plea) would have ended up being, say, "loitering" instead. But since the stigma would have been vastly greater from a peeping conviction, then dropping it — as opposed to dropping the disorderly conduct charge — was a much greater boon to the defendant.

Thus did this plea, like countless others every day, aptly reflect the litigants' well-informed judgments as to their respective risks and benefits from going to trial. This defendant pleading guilty to disorderly conduct, in exchange for the prosecution dropping the peeping charge, made sense for both sides, even if disorderly conduct was not the crime whose elements most obviously and more closely fit the facts. For these reasons, no libertarian ought to be concerned about whether Sen. Craig's been abused by the system, or whether some terrible precedent has been set.

*******

That said: Once Sen. Craig voluntarily pleaded guilty, he became guilty of disorderly conduct — conclusively and irrebuttably — under the Rule of Law as it speaks for our society. Our system of law emphasizes "the particular importance of the finality of guilty pleas, which usually rest on a defendant's profession of guilt in open court, and are indispensable in the modern criminal justice system's operation," United States v. Dominguez Benitez, 542 U.S. 74, 75 (2004). At the moment Sen. Craig's plea was accepted by the court, then, whether he mighta, could, shoulda won if he'd fought all the way through trial became forever irrelevant. It's unproductive even to speculate about. Sen. Craig has deliberately forfeited his right to even hint — ever, to anyone, for any purpose — that he was "really not guilty" of disorderly conduct in that airport men's room.

My sympathies are with his family and with the people of Idaho who find this whole thing terribly embarrassing, and I can even dredge up sympathy for Sen. Craig to the limited extent that he suffers from inner demons that have caused him to engage in such self-destructive behavior (i.e., committing a crime in an airport toilet), regardless of whether he's straight or gay or bi or whatever.

But I have absolutely no sympathy or patience whatsoever with him attempting to weasel out of the fact of his conviction or the consequences for it. His attempts to do so are gutless and pathetic and offensive, completely without regard to whether he really is or isn't gay. Indeed, I know plenty of openly homosexual men who, when under pressure, have displayed vastly more of the so-called (and it's an admittedly sexist construction) "manly attributes" of character and virtue than Sen. Craig has in his attempts to defend and justify himself. His are the sort of arguments that can only be made a scoundrel who thinks he's arguing to fools — arguments that are insulting to us, and only further degrading to himself.

He should simply resign — immediately and without further ado — and then set about salvaging his personal life in such privacy and dignity as he can find.

-----------

UPDATE (Fri Aug 31 @ 11:00am): In an update with a gracious link to this post, Prof. Althouse tweaked me for being overbroad in my arguments about the conclusiveness of Sen. Craig's guilty plea, as have several of my commenters here.

I'm not licensed in Minnesota, but my quick skim of that state's law leads me to conclude that before all this went public, Sen. Craig had already missed his fifteen-day deadline to file a motion for new trial, as well as his ten-day deadline (disorderly conduct being an ordinary instead of a "gross" misdemeanor) to file a notice of direct appeal as of right. My strong hunch, then, is that his conviction is already considered "final." I did not say, and do not wish to be read to suggest, that there are no legal procedures for challenging a conviction after it has become final. But such "collateral attacks" are highly disfavored and rarely successful. Nothing I've heard or read suggests that Sen. Craig has even alleged facts that could possibly support a successful collateral attack.

I therefore reemphasize that unless and until his conviction is overturned — and that's a possibility that now seems very, very remote — he is guilty in the eyes of the law, and he should be so viewed by every element of society that believes in the law.

Of course he can still call press conferences and pound the table and insist that he's "really innocent." Prisons are full of people who express that opinion about their own convictions. Legally, such assertions are absolutely meaningless; legally, while their convictions are still in place, they are conclusively estopped (i.e., forbidden by the law) from disputing their guilt for any purpose. Thus, for example, Sen. Craig can't sue anyone for defamation for saying he is guilty of the misdemeanor crime of disorderly conduct. Every court would treat the truth of that assertion is having been conclusively established; they will not entertain any contrary proposition for any purpose.

Some of my commenters assert that innocent people sometimes plead guilty. That's a logically and linguistically flawed assertion. Everyone who pleads guilty has, until the moment they've entered their plea, been "innocent" in the eyes of the law. And once their guilty plea is accepted, then unless and until it is set aside, they are guilty in the eyes of the law.

What my commenters presumably mean is, "Well, I'm really sure that if the defendant had gone to trial on Charge X, he would have been acquitted." Fine, then. Go to trial; once the defendant is acquitted, he can say that the state has failed to prove him guilty and that his constitutional presumption of innocence remains intact. Otherwise you're just guessing, no matter how confident you say you are, and you're talking about a species of "innocence" in which that word means something different than what it does in our criminal justice system.

"I just couldn't be bothered to go through with the trial," or "I wanted to be spared the publicity," or "I didn't have confidence in my lawyer," or countless other such motivations may in fact have prompted some defendants to enter guilty pleas in cases in which — from an omniscient point of view — one could opine that had they in fact gone to trial, they would have turned out to have been acquitted. But in the eyes of the law, any statement to the effect of "Oh, I was really innocent" after you've entered a guilty plea, while your conviction is still standing, is simply meaningless nonsense. The law doesn't have a category for "guilty (but really innocent)," and your engaging in that pretense still doesn't make you any less guilty in the eyes of the law, no matter how often you or anyone else says it.

And for other purposes — in our consideration as voters and citizens, for example, of a politician like Craig who makes such a statement — we ought, at a minimum, to be extremely skeptical; we're each entitled to reject such a statement altogether (which is my position here and in almost any similar situation); and we have to acknowledge that the statement may only have any persuasive force if it is offered outside a legal context (i.e., outside "the eyes of the law," to repeat the phrase I've used so often already).

-----------

UPDATE (Sat Sep 1 @ 8:40am): Here is a link to the audio tape of the arresting officer's post-arrest interview with Craig. From an Idaho Statesman article about it:

Despite the denials, Steve Simon, a University of Minnesota law professor, said Craig would not want to have such a tape played before a jury.

"There is an extremely damning statement on that tape. If you listen to the tape, at the very beginning there is an explanation of what's going to happen," Simon said. "Then, totally out of the blue, Craig said, ‘You solicited me.'"

Simon said a prosecutor could argue that Craig interpreted the officer's behavior with the feet as soliciting, and that would raise this question: Why would a proclaimed straight person like Craig recognize that?

"It's an extremely powerful piece of evidence," Simon said.

Whether Craig is gay or straight, and whether or not he was soliciting a sexual encounter or not, his apparent knowledge of the foot-tapping and -rubbing protocols certainly would be relevant to show that he "knew or should have known" his own tapping and rubbing would tend to be offensive and to cause alarm or resentment.

Federal prosecutor WLS, guest-blogging at Patterico's, argues  that the police, prosecutors, and judge all abused Sen. Craig, whose conduct couldn't have been "offensive" to anyone:

Question: If a deaf gay guy used sign language to proposition another deaf gay guy in a gay nightclub, would it be a crime?

If not, then why is a toe tap and a hand gesture under the partition of a men’s room stall a crime?

Answer: Because when a citizen goes into a bathroom stall in a public restroom at an airport, he has a different expectation of privacy than he does standing on the floor of a gay nightclub (or any nightclub). WLS asks (ellipsis his):

So, a toe tap and a running one’s hand along the bottom of the men’s room stall ....

Offensive?  To whom?

Answer: The prosecution was counting on it being offensive to the hypothetical average person who doesn't expect to be stared at while sitting in a public bathroom stall, and then to have the offender's hand and foot intrude into that stall, and then have the offender's foot pressed against the hypothetical average person's. And by pleading guilty, Craig forfeited his right to any benefits of the doubt as to whether his conduct was offensive, and as to whether he knew or should have known that it would tend to arouse alarm or resentment. I respectfully disagree with WLS' analysis, especially insofar as he faults the judge, for reasons expressed both here and in Patterico's comments (so far, here, here, here, and here).

Reports are that Craig is expected to resign this morning.

-----------

UPDATE (Sat Sep 1 @ 11:40am): Craig just announced his intention to resign, effective September 30th, in a short and fairly dignified statement. He apologized "for what I have caused" and for his inability to serve out his term. And he said that "to pursue my legal options as I continued to serve Idaho would be an unwanted and unfair distraction of my job [sic] and for my senate colleagues."

Fox News interprets that as him committing that he will indeed "pursue his legal options," but I am not at all sure he intended to make such a commitment. For reasons I discussed above, I think the chances of his setting aside his conviction via a collateral attack are very small — I'd rate his odds at well under 1%. If he were to succeed, he'd again be subject to the more serious peeping charge, which carries a much stiffer potential penalty. Even trying to set the conviction aside will cause this to linger in the press, with the overwhelmingly likely result simply being to further convince any doubters that his plea was voluntary and binding. And but for its potential political repercussions — which now have played out fully — this was a pretty sweet plea bargain. It will not surprise me if he makes no serious effort to get the plea set aside, and in fact were I his lawyer, I'd advise against it.

WaPo sez Obama knew he should vote for Roberts' confirmation, but voted against for purely political reasons

Does the Washington Post not understand that in the rest of the United States outside the Beltway — and at least outside enclaves of refined intellectual disingenuousness like New York and San Francisco — a story like this ought to be headlined "Presidential candidate admits he allowed craven lust for office to override studied judgment on SCOTUS confirmation vote"?

Sen. Barack Obama had hired Pete Rouse for just such a moment.

It was the fall of 2005, and the celebrated young senator — still new to Capitol Hill but aware of his prospects for higher office — was thinking about voting to confirm John G. Roberts Jr. as chief justice. Talking with his aides, the Illinois Democrat expressed admiration for Roberts's intellect. Besides, Obama said, if he were president he wouldn't want his judicial nominees opposed simply on ideological grounds.

And then Rouse, his chief of staff, spoke up. This was no Harvard moot-court exercise, he said. If Obama voted for Roberts, Rouse told him, people would remind him of that every time the Supreme Court issued another conservative ruling, something that could cripple a future presidential run. Obama took it in. And when the roll was called, he voted no.

"Pete's very good at looking around the corners of decisions and playing out the implications of them," Obama said an interview when asked about that discussion. "He's been around long enough that he can recognize problems and pitfalls a lot quicker than others can."

Hypocrisy, thy name is Barack — and yet the WaPo seems to be oblivious to how its reporting of facts compels that conclusion:

"His familiarity with Washington makes him somebody whose judgment I trust," Obama said. And yet this is the Washington of "cheap political points" and "petty" partisanship that figures prominently in Obama's public speeches these days. "I know I haven't spent a lot of time learning the ways of Washington," Obama tells his audiences. "But I've been there long enough to know that the ways of Washington must change."

Unless ....

Could this be a Hillary-inspired venomous bite disguised as a puff-piece about a key Obama staffer? It's a sad state of affairs when a pundit from the heartland like me can't distinguish between simple MSM cluelessness and inspired MSM intrigue in cooperation (or at least sympathy) with a particular candidate. But there you have it, friends and neighbors. Perhaps you can sort this out in my comments section.

Sen. Kerry permits last statute of limitations for defamation to lapse, forever barring any defamation claim against SwiftVet authors O'Neill and Corsi

When I first brought it to his attention in September 2005, I reminded Sen. John F. Kerry that — based on the publication date on or about August 25, 2004, of Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — Sen. Kerry had already allowed the one-year statutes of limitations for defamation to expire in Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and Sen. Kerry has his own regular place of business).

But as I noted then, Sen. Kerry's home state of Massachusetts has a very unusual, extremely generous and pro-plaintiff three-year limitations period for defamation claims. Massachusetts' three-year statute of limitations for defamation claims made it the very last feasible venue in which Sen. Kerry conceivably could file suit and gain his public vindication, if the SwiftVets' allegations about him were false. Those claims were certainly, indeed deliberately, injurious to his reputation; his damages arguably include the loss of the 2004 presidential election, however that might be valued in dollars and cents; and if John Kerry could hope to find a home-town advantage anywhere, surely it would be there. But now he's let the incredibly generous Massachusetts statute of limitations run out, too.

In my 2005 post, I offered this free and helpful legal advice to Sen. Kerry (who may need it, since his own bar membership is still on inactive status):

Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or [to face] document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.

So let's drop the snark and call a spade a spade: The very last thing John Kerry wants is to ever give the SwiftVets the legal tools they'd need to conclusively document their claims, because truth is, of course, a complete defense to defamation claims. Kerry doesn't deserve vindication, and he knows he could never get it in court. In court, there would be compulsory discovery of witnesses and documents, followed by a fair and disciplined adversary process, followed by a definitive determination of the truth or falsity of the SwiftVets' charges — a determination that he damn well knows would go against him. Instead, the haze of time and the near-universal bluster of his mainstream media allies (who continue to insist that the SwiftVets' claims were "debunked" and that Kerry was victimized) has given him a far better result than he could ever get in court.

I'll tell ya what, though, Senator: On the off chance that I'm misreading what's behind your allowing limitations to lapse against O'Neill and Corsi, and you really intended to sue them but just, I dunno, forgot:

You have a standing offer from me: Just sue me here in Houston for defamation. After all, I've republished most of the SwiftVets' claims here on my blog, and I've made many of them again in my own voice. I use a pseudonym for my blog name, but it's not anonymous — my name and address are linked on every page of this blog, and have been since the day it started. I'll waive any statute of limitations defense. I'll waive service of process. Hell, I'll meet you at the federal courthouse doors for the Southern District of Texas, Houston Division (you have diversity jurisdiction), and I'll even pay your filing fee!

You think it will be too expensive to have big teams of lawyers? Fine — since you were once a big-time courtroom lawyer, let's just you and me tangle one-on-one, both of us pro se. (I'll agree not to oppose your application for admission pro hac vice to the federal court here in Texas, and I'll even pay the fees to get your law license reinstated in Massachusetts.) Just me at my table, you at yours, and then a set of jurors good and true in the jury box. (I may need a napkin, though, or maybe even a drool-bucket, because the very notion of going one-on-one with you in court is causing me to salivate.) Or, hell, you can have as many lawyers as you want, and I'll still go pro se. Go fetch David Boies, he might do it for free (unless he's already figured out what a loser your case would be). Whatever. As long as there's a judge who can make you shut up each time your turn is over and who'll then give me a fair turn, I'll be satisfied.

My one stipulation is: No confidentiality orders, and no motions to quash. Everything that's uncovered in pretrial discovery has to become part of the public record without delay. We'll put it all on the internet via a neutral host (say, the WaPo). We'll do the pretrial depos on video, too, and jointly move the court to permit TV coverage of the trial, so that the public (and the jury, eventually) can see who sweats under oath under the bright lights.

Doesn't that sound like fun, Senator? Gosh, it does to me.

Praying to punish Padilla's interrogators?

Jose Padilla and the Unfinished Business of Justice, by New York attorney Scott Horton in the online Harper's Magazine, is far from the worst analysis I've read on the Padilla verdict.

It's a bit windy, but I'm prone to forgive writers for that; it's reasonably well written and well organized. And it even starts off sounding like it was written by a grown-up!

Mr. Horton duly acknowledges that "in some corners there has been a juvenile tendency to heroize anyone who becomes a target of the Bush Administration." And he acknowledges that there was a legitimate criminal case against Padilla, and ample evidence for him to be found guilty as charged:

... Jose Padilla himself is not an appealing character. I wasn’t at the trial and didn’t follow it in great detail, but what I saw of the evidence convinces me that there was a close but fair basis upon which the prosecutors could have brought the case they did. Padilla was consorting with some “really bad people.” With people who wished to harm the United States and its people and who wanted to use Padilla as a tool to that end.

It doesn’t seem unreasonable for a prosecutor to have brought the charges that were brought. Nor does it seem unreasonable for a jury to find against Padilla on the conspiracy charge that was brought. I think those who are saying that the trial of Padilla was a gross miscarriage of justice are going way overboard.

(Given just what I've written so far, however — in particular, "New York attorney" and "Harper's" — you know there's a big "But" coming, don't you?)

But all villains display relative degrees of villainy. It thus will perhaps not surprise you that in Mr. Horton's eyes, the real villains in his story are, of course, not the sort of (we hope) comparatively rare American citizens who are terrorists like Padilla, but the much more common American citizens who've been  acting through the instrumentalities of the American government, and acting on behalf of the American people, to keep us safe from the likes of Padilla:

Quite apart from the guilt or innocence of Jose Padilla, this case is marked by one other extremely troubling fact: the government-sponsored use of torture on an American citizen who had been neither charged nor convicted of any crime. Of course, the use of torture would have been forbidden even had he been convicted of a serious crime. That is the rule the Founding Fathers laid down.

Was it really torture? Yes. At this point there’s very little disagreement on this score among experts who have studied it....

Mr. Horton then quotes an examining psychiatrist on just how horribly, horribly traumatized poor Padilla is:

Number one, his family, more than anything, and his friends, who had a chance to see him by the time I spoke with them, said he was changed. There was something wrong. There was something very "weird" — was the word one of his siblings used — something weird about him. There was something not right. He was a different man. And the second thing was his absolute state of terror, terror alternating with numbness, largely. It was as though the interrogators were in the room with us. He was like — perhaps like a trauma victim who knew that they were going to be sent back to the person who hurt them and that he would, as I said earlier, he would subsequently pay a price if he revealed what happened.

Well, damn. Hand me another box of Kleenex, because I can barely contain all of my tears that flow from the fact that Jose Padilla is no longer his good ole self — that being, I think we may presume, the good old self who was eager to massacre as many Americans as possible, just because they were Americans. The psychiatrist continues:

He had developed really a tremendous identification with the goals and interests of the government. I really considered a diagnosis of Stockholm syndrome. For example, at one point in the proceedings, his attorneys had, you know, done well at cross-examining an FBI agent, and instead of feeling happy about it like all the other defendants I’ve seen over the years, he was actually very angry with them. He was very angry that the civil proceedings were “unfair to the commander-in-chief,” quote/unquote.

Mr. Horton apparently sees no irony whatsoever in citing, as evidence of the horrible effects of "torture" on Padilla, that he began showing hints of being decent and civilized, instead of being a sociopathic barbarian. "Stockholm syndrome," we might recall, was shocking precisely because through it, good people came to identify with bad guys — not the other way around! In another age, this would, of course, have made Padilla a poster-child for the "rehabiliatory effects" of the criminal justice system, including its interrogation and incarceration components.

But it gets better, friends and neighbors, as Mr. Horton continues in his own voice:

[E]ven as Padilla is convicted and sentenced, when will those who perpetrated crimes against him be prosecuted for their misdeeds? The two things are not comparable....

On that last sentence we can certainly agree! But immediately after, Mr. Horton writes:

... Padilla was charged and has been convicted of complicity in a vaguely defined conspiracy, without his having taken any material step towards an act of terrorism. The Gonzales Justice Department will, characteristically, argue for a heavy sentence. The facts won’t justify that. On the other hand, the crime committed against Padilla is extremely serious, involving long term psychological damage. Justice calls out for a prosecution and a severe sentence in such a case.

Thus would Mr. Horton make quite literal the old sarcastic truism, previously seen mostly elsewhere than in criminal law, that no good deed goes unpunished.

The rest of the article trails off into a shamefully disingenuous conclusion wholly at odds with its beginning acknowledgments that I quoted at the top of this post. Mr. Horton proceeds to argue that Padilla was prosecuted solely for "thought crimes," i.e., that the crimes charged and proved against him relied solely upon the fact that he was "accused of thinking bad thoughts about America and the Bush Administration."

I say "disingenuous" because unless Mr. Horton got his law degree via the internet from a Netherlands Antilles diploma factory, he knows full well — as, indeed, he conceded earlier in this same article — that Padilla was found guilty of conspiracies that as defined in the court's charge included not only thoughts or even shared plans, but also preparatory overt acts:

The key piece of physical evidence was a five-page form Padilla supposedly filled out in July 2000 to attend an Al Qaeda training camp in Afghanistan, which would link the other two defendants as well to Usama bin Laden's terrorist organization.

The form, recovered by the CIA in 2001 in Afghanistan, contains seven of Padilla's fingerprints and several other personal identifiers, such as his birthdate and his ability to speak Spanish, English and Arabic.

"He provided himself to Al Qaeda for training to learn to murder, kidnap and maim," said Assistant U.S. Attorney Brian Frazier in closing arguments.

Most of us would consider applying to al Qaeda for training to become a terroristic mass murderer as a fairly significant and specific overt action all by itself. But the conspiracy indictment lists, and the prosecution proved, dozens of other overt acts, including financing and travel conducted to advance the conspirators' plots.

Nor did the criminal acts charged and proved have anything to do with who in particular presently occupies 1600 Pennsylvania Avenue. During virtually all of the time in question, for that matter, that was not Bush-43, but Clinton-42 — the sort of detail which exposes the extreme silliness of Mr. Horton's extended riff on Orwell's 1984. "One of the principal objects of [torture] process, we learn, is to insure that the subject returns to loving Big Brother," writes Mr. Horton of both Orwell's hero Winston Smith and Padilla. Elsewhere in his essay: "[T]hen we have the words out of the Justice Department itself, gloating in triumph, and the right-wing echo chamber which saw in the verdict another opening for the personal adulation of the Great Leader, George W. Bush." You'll look in vain, however, for the name "Clinton" anywhere in Mr. Horton's piece.

More importantly than anyone's name-calling: The goal of Padilla's conspiracies was not merely to leave Americans "changed" or "weird" or "troubled," but dead, dying, or maimed. Indeed, if inflicting "psychological damage" on a single subject is criminal, thereby justifying severe punishment for Padilla's interrogators, then what punishment would be just for Padilla's intention to inflict "psychological damage" on roughly 300 million Americans, plus hundreds of millions of other civilized people throughout the world?

I'm taking this opportunity to offer to buy Mr. Horton a nice meal when and if he ever visits Houston (since I don't often get to New York anymore.) I'm sure I can have a perfectly pleasant debate with Mr. Horton over dinner. At the end of it, we'll shake hands and go home, safely I'd hope, to our respective homes — him thinking me a polite fascist barbarian, and me thinking him an articulate naïve child.

As we travel to our respective homes, however, evil men — men who are indistinguishable from Jose Padilla in every respect except present notoriety and status as a captive — will be plotting and preparing, gathering their will and their financing and their matériel and their opportunities. Their goal is to kill Mr. Horton and me and as many of you, or as many like us all, and our children, as they possibly can. Their goal is to do so in as horrific a fashion, and with as little mercy or remorse, as they can manage. And those men are quite literally praying to Allah, begging to be given the chance to do just those things.

If Mr. Horton will come dine with me, my own prayers that night, as every night, will be for the safety of my sons and daughters against such menaces. Now, I don't know if Mr. Horton prays or not, but if he does, I wonder: Is he praying instead for the punishment of those who captured and imprisoned and interrogated Jose Padilla, and eventually brought him to a very formal justice?

On the Rutgers' player's defamation case against Imus

On Overlawyered, my very ethical and articulate lawyer friend David Nieporent and I have engaged in an extended debate, in the comments to a post of his, regarding the merits (or lack thereof) in Rutgers' basketball player Kia Vaughn's just-filed defamation lawsuit against once-and-future radio shock jock Don Imus. Ms. Vaughn's suit is based on Imus labeling her and her teammates "nappy-headed ho's [whores]" for his national listening and/or viewing audience.

David thinks the case is frivolous. As I argued (from a decidedly minority position) in last night's OTB web broadcast, however, I think it's a very plausible case — indeed one of "defamation per se" under long-established common law.

David ultimately ended up conceding at least my point that "[f]ifty years ago, Vaughn would have won easily on these facts." But at a minimum, he's still unconvinced that in today's coarse world, she was genuinely damaged, or that calling someone a "ho" is anything more than a generalized insult like calling someone an SOB. In any event, I enjoyed the civil back and forth with David, so I commend the post and its comments to your attention there, rather than trying to summarize them further here. As always, gentle reader, it is for you to make up your own mind whose arguments you find persuasive, and to what extent.

Beldar on BlogTalkRadio

Dr. James Joyner and two of his co-bloggers at Outside the Beltway, Alex Knapp and Steve Verdon, were kind enough to host me tonight on their BlogTalkRadio show, talking about the Foster capital punishment case, felony murder more generally, and a couple of other current legal topics. It was fun, and I'm grateful for the invitation. You will not be surprised to read that I hogged far more than my share of the internet airtime, but if you'd like to listen to the hour-long program, it's linked here.

Pants defendants make Pearson an offer he ought not refuse

This is brilliant:

The dry cleaners aren't pressing their case against the Pants Judge.

In a surprise turn yesterday, the small-business owners sued by D.C. Administrative Law Judge Roy Pearson withdrew their demand that he pay nearly $83,000 for their legal bills, saying that enough money had been raised from supporters to cover the expenses and that they want to end the fighting.

The cleaners want Pearson, who could soon be out of a job, to do the same.

In the motion filed in D.C. Superior Court, the owners of Custom Cleaners ask Pearson, who lost his famous $54 million lawsuit two months ago, to call a halt to the legal proceedings. If he intends to appeal a judge's rejection of his lawsuit over a supposedly missing pair of pants, he has until tomorrow to file notice.

"With their losses and expenses now almost completely recouped, all Defendants want to do is make this case go away," Christopher Manning, an attorney for Soo Chung and her family, wrote in the seven-page motion. "Defendants' lives have been devastated and they want nothing more than to quietly return to running their dry cleaning business." ...

In case he does appeal, the Chungs  are reserving their right to seek attorneys' fees for any future proceedings.

The reason this is brilliant, instead of just altruistically admirable, is that the chances that the Chungs ever would have effectively collected on their award of attorneys' fees, assuming their sanctions motion were granted, were very remote. Odds are that Pearson is soon to be unemployed again. Even if he hangs on to his civil service job (meaning that there'd be a ready wage stream for the Chungs to garnish), Pearson undoubtedly would have appealed, dragging things out and inflicting more attorneys' fees on the Chungs that they very likely couldn't collect. And if Pearson's appeals ultimately failed, he probably would have declared bankruptcy.

This move, by contrast, creates a dramatic incentive for Pearson to drop everything and sink back into the slime of his pathetic existence. The Chungs cauterize their own fee bloodflow. And they've made their point in the best dramatic fashion possible. They're already heroes of the tort reform movement. And no appellate opinion is going to do better than restate the bench-slap that the trial judge already administered to Pearson.

Pearson, of course, has the proverbial fool for a client. Not just an ordinary, garden variety fool, but a magnificent, pustulating, gibbering fool. There's still, therefore, a significant chance that he'll reject the Chungs' offer and go ahead with his notice of appeal.

Regardless, though, my hat's off to the Chungs and their lawyer for this move. Is there a German equivalent for "realpolitik" that would apply to litigation? "Realrechtsstreit?" "Realgerichtsverfahren"? Anyway, on the Chungs' part, that's what this is a fine example of.

-----------------------

UPDATE (Wed Aug 15 @ 1:25am): Sure enough, Pearson has proved me right by rejecting the Chungs' offer.

Is Texas about to execute Kenneth Eugene Foster just because he was an "innocent bystander" to a murder? (Important update at end!)

This post by Steve Verdon at Outside the Beltway, like the Radley Balko link he provided, and like the op-ed from The Nation's Peter Rothberg that Balko linked (and Verdon quoted from), all seriously chap my behind. Here's Verdon's entire post:

Kenneth Foster is innocent of murder. Even the State acknowledges this fact, but in three weeks Foster will be executed for the murder of Michael LaHood. Consider this another installment of "Our Stupid Judicial System."

LaHood’s actual killer, Mauriceo Brown, was executed in 2006. Foster, who was in a car about 100 yards from the crime when it was committed, was convicted under the controversial Texas state “law of parties,” under which the distinction between principal actor and accomplice in a crime is abolished. The law can impose the death penalty on anybody involved in a crime where a murder occurred. In Foster’s case he was driving a car with three passengers, one of whom, Brown, left the car, got into an altercation and shot LaHood dead. Texas is the only state that applies this statute in capital cases, making it the only place in the United States where a person can be factually innocent of murder and still face the death penalty.

Now, if someone has principled opposition to the death penalty in all forms no matter the crime, that's one thing. If someone wants the U.S. Supreme Court to re-read the Eighth Amendment (again) to constrict the operation of the felony-murder rule in capital cases, that's at least an honest viewpoint (if, in my view, badly wrong). But these are just gross distortions, originally promulgated by capital punishment opponents, and then willingly swallowed wholesale and republished by people like Verdon and Balko who ought to know better. Instead, they've made themselves chumps for propagandists who are both willing and eager to tell lies by omission.

[Update (Mon Aug 13 @ 11:10pm): Prompted by this post from Patterico, let me make clear that I don't think either Verdon or Balko are "chumps" generally. I agree with the former often, and with the latter more than occasionally, and I respect both as a general matter, but I expect better of them than that they swallow this sort of stuff uncritically, which I think they must have done here. Also, I note that The Nation's online home page links to this op-ed with the blurb (italics mine): "Texas' insane capital punishment guidelines have condemned a man to death for witnessing a murder." One can't really blame whatever editor wrote that, however, since that's the logical reading of the facts Rothberg chose to include. — Beldar]

Here's a couple of hints that the op-ed is written with a bias and by someone who either knows or cares not about an honest discussion of capital punishment law: First, in the first sentence of the op-ed (which Verdon didn't quote), there's a gratuitous reference to the fact that Foster is black. There's no mention of race anywhere else in the op-ed, nor any issue about his race in the case. It's just a gratuitous detail inserted solely to play on regional bigotry and the assumption that, yup, all us Texans are racial bigots, happily convicting and executing our black folks without much regard to anything but their skin color. Second, read the last sentence of that quoted paragraph. What kind of statute could the "this statute" reference be to, such that it even potentially could be applicable nationwide in defining what is or isn't murder? Well, yes — Texas is the only state in the Union that applies the Texas felony murder statute. In Florida and Arizona and a bunch of other states that follow the traditional felony murder rule, they apply their own state statutes (some of which are very comparable, and others less so).

To his credit, OTB top blogger James Joyner added a couple of useful updates to Verdon's post to suggest that there might be more to the story, and for a non-lawyer, he did a fine job — identifying one of the two key SCOTUS precedents on point, and questioning the ridiculous assertion that no other state besides Texas permits executions under the felony murder rule.

I decided to look more deeply, however, and sure enough, the Fifth Circuit's opinion in Foster's case deals explicitly and in detail with all of this: Foster v. Quarterman, 456 F.3d 359 (5th Cir. 2006), cert. denied, __ U.S. __, 127 S. Ct. 2099 (2007).

Let's start with the "Foster was just driving, Brown got out of the car and got into an altercation 100 yards away" version. Here's how the Fifth Circuit describes the actual crime, based on the trial record (boldface mine):

On the evening of 14 August 1996, Foster and three others — Mauriceo Brown, DeWayne Dillard, and Julius Steen — embarked on armed robberies around San Antonio, Texas, beginning with Brown's announcing he had a gun and asking whether the others wanted to rob people: "I have the strap, do you all want to jack?" During the guilt/innocence phase of Foster's trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove. Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by Mary Patrick.

Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster's vehicle turn around and stop in front of Michael LaHood's house; Patrick approached Foster's vehicle to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster's vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood's face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.

Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night's earlier robbery victims.

(Apparently The Nation's Mr. Rothberg thinks that if your very diligent and accomplished armed robbery co-conspirator travels more than a few feet from the getaway car you're driving before he caps your joint robbery victim at point-blank range, that gets you off the hook. Sort of like you can't get XP in World of Warcraft if the other members of your party are too far away.)

Dr. Joyner [update: prompted by comments from Mr. Verdon, see comments below] was correct that Enmund v. Florida, 458 U.S. 782 (1982), is an important part of the governing precedent, but it has to be read against Tison v. Arizona, 481 U.S. 137 (1987). Tison permitted the execution of a capital defendant who was guilty of murder only under a "felony murder" theory, holding that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement."

Under a trio of Supreme Court cases decided between 2000 and 2004 (Apprendi v. New Jersey, Ring v. Arizona, and Blakely v. Washington), a jury — not a judge or appellate court -- is now required to make both of those determinations.  However, those cases were not retroactive, and Foster's crime was in 1996.

The Fifth Circuit searched the entire record of the state-court proceedings to see whether any state court had made the requisite Tison/Enmund findings.  Like the federal district court, it quickly concluded that the trial jury had indeed made a finding of at least recklessness because it had affirmatively concluded, in answering one of the verdict questions, that Foster actually "anticipated that a human life would be taken." There was ample evidence in the record to support this conclusion by the jury. As the federal district court had written:

Foster could not have helped but anticipate the possibility that a human life would be taken in the course of one or more of his co-conspirators' armed robberies. By transporting a pair of pot-smoking armed robbers to and from one robbery after another, Foster clearly displayed the type of "reckless disregard for human life" the Supreme Court had in mind when it employed that term in Tison. Foster knowingly engaged in criminal activities known to carry a grave risk of death ....

So the jury was presented with, and the jury deliberately rejected as a factual matter, Foster's "I didn't realize anyone might be shot" pitch.

As to the "major participant" prong, the federal district court had agreed that there was ample evidence from which a jury could have made such a finding, if it had been asked that question in those words:

[W]hen arrested, Foster had a pair of cellular telephones from robberies committed a few nights before the murder of Michael LaHood; on the night Michael LaHood was killed, Foster drove his co-defendants around neighborhoods with which he was familiar; he shared in the proceeds of the night's earlier robberies; no evidence suggested anyone directed Foster "to take up his extended pursuit" of Mary Patrick's vehicle as she drove to Michael LaHood's house; and Steen believed Foster was in charge that night because he controlled where the conspirators drove and when they stopped.

Moreover, in summarizing the evidence against Foster, the Texas Court of Appeals had written (emphasis mine) that he

(1) actively participated in the group's robberies; (2) knew members of the group were using a gun to commit them; (3) shared the proceeds from them; (4) was the getaway driver; and (5) expressed no remorse when Michael LaHood was murdered. [Additionally,] after Brown shot Michael LaHood, Foster "drove him away ..., all the while telling Brown to hide the gun"; further, when police pulled over the vehicle, Foster encouraged Brown to hide the gun in his underwear.

The Texas Court of Criminal Appeals had also noted that "a day or two before Michael LaHood was murdered, Foster, Steen, Dillard, and Brown had participated in another armed robbery; and, previously, Foster and a friend shot at people in a truck while driving alongside them on a highway."

Given the Fifth Circuit's disagreement with the federal district court as to whether only a specific jury finding of "major participation" was required to uphold the sentence, the Fifth Circuit held that the federal courts are bound by the findings of the Texas Court of Criminal Appeals on that subject.

There are reasonable grounds for argument as to whether, even given the non-retroactive nature of Apprendi and its progeny, the Fifth Circuit ought to have given this deference to the Texas Court of Criminal Appeals' opinion. The Fifth Circuit opinion does a sort of "See, here's how the SCOTUS picked and chose among record facts and appellate-court characterizations of them in Tison, and that's what we're doing too" routine that I find not terribly convincing. My guess, without having read the cert petition, is that that's what Foster's lawyers concentrated on as well, but they obviously couldn't get four votes for SCOTUS review. And if you want to write an outraged op-ed about that, then fine. [Update: See my extended wee-small-hours update below for more about this.]

In the meantime, I wish the opponents of capital punishment like Mr. Rothberg would quit lying by omission, trying to make someone like Foster look like an innocent bystander randomly sentenced to death by those fiends down in Texas just because he's black. Your dishonesty does your cause a disservice, and thereby ultimately makes you into an enemy of those on death row.

And Messrs. Verdon and Balko — grow some B.S. receptors, please? If you're going to post about a case like this one, at least read the danged opinion whose results you're condemning first, okay?

----------------------

UPDATE (Tue Aug 14 @ 2:30am): I'm sufficiently troubled by Judge Barksdale's opinion for the Fifth Circuit panel to conclude that, had I been on the panel, without more than the explanation contained in his opinion, I would not have joined in it.

The problem is this: If you were to ask any of the Texas state-court judges — at the trial-court level, on the Texas Court of Appeals, or on the Texas Court of Criminal Appeals — the following question, I'm concerned that they'd have no answer: "Where exactly in the record is a specific finding, either by the jury, the trial court, or an appellate court, establishing Foster's 'major participation in the felony committed'"? Rather, I suspect they'd say, "Well, actually, we didn't make a finding on that one way or the other. That would have been for the jury to do, if anyone."

Yes, on this record, a jury clearly could have so found. Indeed, it's very, very hard to imagine that any rational jury would have failed to so find. Note that the relevant "felon[ies] committed" were the armed robbery and the conspiracy to commit armed robbery of LaHood — not the murder. Foster was up to his eyeballs in the plan to rob. But Foster's jury didn't find Foster guilty of "major participation in the felony committed" — not in those words — because it wasn't asked to.

On the other Tison component — "reckless indifference to human life" — I'll buy into the panel's conclusion that the jury's determination that Foster "anticipated that a human life would be taken" logically compels the conclusion that he was recklessly indifferent to human life. And according to a dissenting opinion from the Texas Court of Criminal Appeals: "The jury was also expressly instructed that should it find that in killing LaHood, Brown 'was acting independently of [Foster] in the commission of the offense of robbery,' it should acquit [Foster]." That certainly further ties Foster in.

And it's also true that, under the AEDPA, federal courts are supposed to defer to state appellate court factual findings just as they defer to state trial court findings. The bold-faced language from the Texas Court of Criminal Appeals opinion that I quoted above in my original post (before this update) is close. But it's not quite a cigar. It's just barely conceivable to me that a jury might have found that Foster "actively participated," as the Court of Criminal Appeals wrote, and that Brown was not acting independently of Foster, and that Foster anticipated that someone might well be killed — but that, nevertheless, Foster's active and non-independent participation in the armed robbery didn't rise to the status of "major."

The real problem here, of course, is the SCOTUS making stuff up out of thin air, effectively grafting undefined and ill-considered federal constitutional requirements atop all states' widely varying felony murder statutes, all as part of trying to describe the moving target of the Eighth Amendment in a "living, breathing Constitution." Inhale, exhale, sneeze — it sort of comes down to what Anthony Kennedy feels are the sweet mysteries of life in any given SCOTUS Term. But given that Tison and Enmund are on the books, however, Texas and all the other states probably ought to have rewritten their felony murder statutes to track them. And Texas hadn't, at least when Foster was tried.

This seems, I know, like the narrowest of technicalities that I'm arguing. And indeed, it is. I have no doubt that Foster is a very bad man. Personally, I think it is overwhelmingly likely that if this same jury had been asked, "Was Foster's participation in the felony major?" they would have said that it was.

But that's the thing about due process. You have to dot the i's and cross the t's with the real jury, not with the imaginary one that you or I or Judge Barksdale might conceive. My guess and my doubts aren't what count. Neither are yours. Neither, to a considerable degree, are the appellate courts'.  Given that Tison had been on the books for some years before Foster's trial, someone — court or jury — in the Texas state-court system ought to have addressed its two requirements in those exact (if ill-defined) words. And I don't think either the jury nor any Texas state court has yet done so — not directly, not in anything that can fairly be characterized as a "factual finding." (I frankly doubt that Texas criminal procedure would permit the Texas appellate courts to do so, even if AEDPA would require the federal courts to defer to them if they did.)

Does that mean Foster is "innocent," or that he's being railroaded? Of course not. And I stress that (1) I haven't seen the entire record, and (2) this is, at best for Foster, a very close question. The people whose job it is to make these decisions — a category in which I'm not included — don't agree with me, and the odds are overwhelmingly likely that Foster will indeed be executed before this month is out. But there certainly are better, if vastly more technical and boring, arguments to be made in favor of Foster getting a retrial (limited to punishment) than those which Rothberg advanced.

-------------------

UPDATE (Tue Aug 14 @ 9:30am): Steve Verdon has linked this post as part of a follow-up in his original post on OTB. Radley Balko has a new post up responding to this one. Mr. Balko seems immune to the concept of regional bigotry and insists that the death penalty is inherently racist, yada yada — all still without a hint that either race or Texas' history actually played any part whatsoever in any aspect of this case. But both writers have acknowledged that the case isn't as Rothberg described it, and I greatly appreciate their civil reponses. There are also some good comments, and some that are merely entertaining, over at Patterico's. If Mr. Rothberg has reacted — and I've left a couple of comments over on The Nation — I'm as yet unaware of it.

-------------------

UPDATE (Tue Sep 18, 2012 @ 3:00am): I noticed this in the news at the time, but didn't remember to update this post until I came upon it tonight: On August 30, 2007, based on the recommendation of the Texas Board of Pardons and Paroles, Texas Gov. Rick Perry commuted Foster's death sentence to life imprisonment.

Weirdest appellate case name I've seen recently

I'm reading, and pondering blogging at more length about, the D.C. Circuit's decision from August 3rd on U.S. Representative William Jefferson (D-LA)'s challenge to the FBI raid on his congressional office. Lyle Denniston at SCOTUSblog has a good description of the ruling, as part of which he writes:

The D.C. Circuit Court ruled on Friday that the Justice Department and FBI violated the constitutional rights of a member of Congress when it seized paper files from his Capitol Hill office during a bribery investigation, finding that at least some of those documents involved "legislative material." The case has appeared to be destined for the Supreme Court in a major test of separation of powers doctrine. The Justices have never ruled on the constitutional issues at stake; the search of the lawmaker's office was the first ever by the Executive Branch of a sitting member of either House or Senate.

Such "privileged" material is protected by the Constitution's Speech or Debate Clause, the Court found in a 2-1 ruling concluding that FBI agents went too far in carrying out a warrant in an overnight search on May 20 last year of the legislative office of Rep. William Jefferson, Louisiana Democrat.

Editorialists at the Los Angeles Times are concerned that "this decision will provide cover for corrupt members who seek to hide evidence of their wrongdoing among their official papers." By contrast, editorialists at the Wall Street Journal are concerned that "allowing the executive branch to review the documents and make its own judgments about privilege is like allowing Congress to pass judgment on the limits of executive privilege unilaterally — something this newspaper has also long opposed, although Congress is once again trying to do precisely that." (H/t for both to Howard Bashman.)

The one thing I know without further reflection, however, is that the name of the appellate decision is an absolute hoot: United States of America, Appellee, versus Rayburn House Office Building, Room 2113, Washington, D.C. 20515, Appellant. (I'm not quite sure why the D.C. Circuit opinion has the appellee's name listed first, but that's not what makes it such a peculiar case name.)

As silly as it seems, there's actually a reason for the case to have been brought in that name, since that was how the target of the FBI's search warrant was specified. (Law books are filled with similarly odd names, especially from seizure and forfeiture cases, along the lines of "Brown Shoebox Containing $31,021.11 and Four Marbles v. United States.") But do not be confused: Rep. Jefferson is the "real party in interest," meaning his lawyers spoke for, erm, Room 2113, and it was Rep. Jefferson's rights and interests that the D.C. Circuit weighed.

And apparently, there were also several amicus briefs filed, including at least one (on behalf of former House Speaker "Thomas M. Foley et al.") that may have provided a slightly different "take" on the legislative branch's legitimate interests than Rep. Jefferson's own lawyers might have done alone. His interests as an individual congressman, and the House of Representatives' and/or the Senate's interests as institutions, may be out of alignment in very important respects.

Beldar on AG-AG

A fellow attorney, good friend, razor wit and intellect, committed Democrat, and thus frequent informal debating partner — one of the three lunch companions I wrote about in April, when he and I and a couple of other friends hazarded our predictions for the two major parties' 2008 presidential and vice presidential tickets — left the following comment for me this week on another post:

Beldar, I sense a groundswell. Your loyal readers demand to know what you think of the Fredo Gonzales mêlée. Is it perjury, political posturing, or both? What say you?

BTW, we're still very much on track for a Giuliani/Frist ticket in '08.

In reverse order: I think Giuliani is still quite possibly going to be the GOP nominee, but the main change since April is that I'm more certain that McCain won't be. I'm still sticking to my Thompson/Romney prediction, though, at least for now. And I continue to think Frist would bring little besides a theoretical and entirely unnecessary geographic balance to a Guiliani-headed ticket.

I have never written much about Attorney General Alberto R. Gonzales here. If you were to draw an inference from that, you'd probably be at least partly right, but probably only partly.

*******

Attorney General Gonzales and I have some mutual friends at his former law firm, Houston-based Vinson & Elkins, and he and I were rough contemporaries as Houston lawyers at cross-town rival firms in the 1980s and early 1990s. But our practice areas did not overlap, and I never encountered him while he was in private practice. His Hispanic heritage may have made a few preferences available to him that plain old Albert Smith might not have gotten, but I'm relatively certain that on balance, those were far more than outweighed by lingering prejudices that he had to overcome. Beyond what I know or can infer from our common experiences, most of what I know about him comes from reading about him in his various public roles — as Texas Secretary of State, as an associate justice of the Texas Supreme Court, and as a lawyer and adviser in various capacities for first Governor and then President George W. Bush.

Essentially all observers would agree that Dubya values loyalty very highly, and most observers would agree that most of the time, Dubya returns loyalty to those who've been fiercely loyal to him. That AG-AG has generated that loyalty, and that he has maintained it over so many years and through so many different positions, is a remarkable accomplishment in and of itself. Whether, politically speaking, you are a friend or foe of the current occupant of the Oval Office, I think that any thoughtful American has to acknowledge that it is a rare and noteworthy thing to have inspired such long-lasting confidence and trust from any American president.

Nor can anyone plausibly deny that Mr. Gonzales is genuinely motivated by a desire to render public service. He's left quite literally millions of dollars of partnership earnings from Vinson & Elkins behind in exchange for roles with no job security and, quite often, very little visible power. By no one's definition is he a power-monger or an empire-builder. He's undertaken very hard jobs in very difficult times, and for the past several months he's been the Democrats' favorite bogey man and punching bag — to the point that they've virtually canonized John Ashcroft, who was AG-AG's predecessor both as Attorney General and as punching bag/bogey man.

Vast amounts of Alberto Gonzales' public service — all but the tip of the iceberg of it — have taken place out of public sight, and indeed, out of sight of high-placed observers. I place almost no trust in tales from leakers, but even the senior-most of them, or those journalists given privileged temporary seats near the workings of power, aren't truly positioned to assess the relative value, or lack thereof, of his advice and counsel and assistance to his principal, George W. Bush. Cabinet officers traditionally say, when asked if they plan to resign, that they serve "at the pleasure of the president." That is not an empty formal statement, but the quite literal and encompassing truth. And I genuinely respect and support the system by which 62 million popular votes and 286 electoral votes gave Dubya the authority to decide, subject to non-revocable Senate consent, who ought to be the Attorney General. Probably more than most pundits of either political persuasion, then, I genuinely mean it when I say that the fact that the POTUS hasn't fired him is a good and sufficient reason for AG-AG to continue as AG.

There is much about the man that I admire, and for which I think he gets insufficient credit.

*******

Having written all that, and meant it, am I, personally, tickled pink with Alberto Gonzales' tenure and performance specifically as Attorney General of the United States? No, I'm not; to the contrary, I'm disappointed.

Perhaps because I'm a lawyer, my expectations for the holder of that cabinet post may be quite different than President Bush's. There are certainly other executive departments of comparable cosmic importance. Especially at times like the present, when we are at war or immersed in its functional equivalence, State and Defense and, now, Homeland Security are awfully important; Treasury is always important, if mystical; and none of the other departments are unimportant. And I'd have a hard time saying what makes, for example, a really first-rate Secretary of Transportation or Labor or Agriculture. But I have some affirmative expectations of U.S. Attorneys General, and some negative expectations as well.

Affirmatively, I expect a U.S. Attorney General to be a competent manager and CEO — the executive head of what effectively amounts to the world's oldest, largest, and by far most important law firm, serving the world's most powerful and needy client. The Department of Justice has enormous institutional momentum and tradition, and historically it has attracted some of the most talented and dedicated lawyers our nation could produce. I'm concerned that the recent recruitment and retention and promotion of talent from top to bottom in the DoJ may have suffered. But I confess that I lack the appropriate perspective and detailed information to draw confident conclusions about that. Let me just say that if AG Gonzales has been a brilliant and inspiring administrative leader, I'm unaware of evidence to show that.

Affirmatively, I also expect an Attorney General to be a loyal and effective advocate for his principal, the Chief Executive. There is no doubt of AG-AG's loyalty, nor that the substance of what he's been pitching corresponds precisely with what the Administration wants its Attorney General to pitch. And he has been persistent; a thinner-skinned man would have never taken the job, given the hostility he faced at his confirmation hearings (ostensibly due to his work as White House Counsel).That he perseveres in it despite near-universal criticism and considerable calumny is proof of astonishing personal strength.

Nor can there be any doubt that because of those substantive positions, because of the degree of political acrimony, and because of the violent times we're in, it would be extraordinarily hard for anyone to be a thoroughly successful advocate for the Bush-43 Administration before Congress or the mainstream media. To take the simplest example: Congress is rarely, even in wartime, going to want to accept any Attorney General's pro-Executive views on the relative powers among the branches of government. But right now, when the political opposition is more universally characterized by its rabid, personal hatred of George W. Bush than any other attribute, no spokesman for the Administration is going to get many pats on the back and hearty thanks from the likes of Sens. Reid, Leahy, Schumer, Durbin, or Kennedy. The mainstream media, in turn, love nothing better than a good circus, relish poking any presidential administration in the eye with a sharp stick as often as possible, and have their own philosophical disagreements with, and reflexive hostility for, Dubya and his minions in particular.

Nevertheless: AG-AG has been a weak, wishy-washy, inconsistent, stumbling, uncharismatic, inarticulate advocate. I know he has a lot on his plate. But every week, PBS and the commercial networks manage to pull talking head lawyers from the woodwork (well, actually, usually from the Reagan or Bush-41 Administrations) who do a far better job of articulating the Bush-43 Administration's case than it has done for itself. And I watched Fox News' Chris Wallace absolutely tongue-tie and humiliate Russ Feingold last Sunday morning, for example, on whether the Dems have any evidence at all to support the notion that some crime was committed in connection with the firings of the U.S. Attorneys. It's not like the Administration's opponents are intellectual supermen, and it's not like there aren't holes in many of their arguments, and it's not like the Administration is without ammo. But it needs a big gun to fire back. And as a public advocate for the Administration and its policies, AG-AG has been a low-caliber pop-gun.

Worse, he's been a pop-gunner who has far too often shot himself in the foot — which leads me to my negative expectations for anyone holding the role of Attorney General. If you are unprepared, if you are inarticulate, and if you are inconsistent, then you cannot project the probity and integrity that ought to be the shining, obvious, and unquestionable attributes of the Attorney General of the United States. The job position demands an occupant who will not appear to be either a liar or a fool, especially in (but not limited to) his dealings with Congress and the press. For the last several months, AG-AG has fallen short of that standard. Now, I can understand that an old coot like Sen. Arlen Specter might get confused and think someone's been lying when he really hasn't been. But when non-mavericks with no bone to pick like Sen. Jeff Sessions — himself once a prominent victim of a politicized bum rap, and one of the more astute questioners and oral advocates on the floor of the Senate or in committee — start voicing public doubts about you, then you are no longer even arguably serving as an effective advocate of the Administration of which you're a part.

*******

Is Alberto M. Gonzales really a liar and a perjurer? Oh, please. John Hinderaker at Power Line — using as his primary factual source that bastion of conservatism, the New York Times — punctures that thin balloon here. (See also this post, which explains why the Power Line guys are less enthusiastic defenders of AG-AG than even I am, but why they still bother doing so; and this op-ed in the WaPo.)

Taking two steps back for perspective: This entire meme suffers very badly from the internal incongruity that has always affected the Hard Left in its relationship with George W. Bush and his minions: Either they're evil geniuses intent upon, and capable of, subverting the Rule of Law through their wicked schemes, or they're the Keystone Cops. But it's impossible for them to be both. By his own admission, AG-AG has made many mistakes and misstatements, and he's shown poor preparation and no polish. I'm sad to say that he's a Keystone Cop, and he's certainly fed his opponents massive amounts of ammunition as well as blowing off most of his own toes (pop-gun or not). The nature of the job requires him, or any Attorney General, to sometimes be less than forthcoming and perhaps even evasive. But I do think he's basically an honest Keystone Cop, to the extent a consistent tale can be assembled from his many lusterless performances as a congressional witness.

And here's the conclusion I'm most loathe to state, because it's the one that makes me the saddest: I don't think there would be any point at this juncture in replacing him, even though he's become a huge net negative for the Administration. Scanning the list of the 80 Attorneys General in the history of the United States, I don't see a single one whom I'm confident could thoroughly "rescue" this cabinet position for the balance of the Bush-43 Administration. It's unlikely, in fact, that Dubya could get a new AG confirmed who would be at all to his liking: He'd rather have someone loyal and ineffective, even if a negative on the Hill or with the media, than someone whom he doesn't trust and whose loyalty he can't count on to issue the orders that need to be issued day to day at the DoJ. And politically, he's already at rock bottom, so it's entirely possible that the Dems will overplay their hand in a way that would improve things for the Administration.

I think we're all pretty much stuck with AG-AG until January 2009 or the string breaks on his pop-gun.

Do the views of a tangential client who represented 0.5% of Fred Thompson's law practice over two years more than a decade and a half ago disqualify him from the Presidency?

I've been "of counsel" to a couple of law firms, and a partner in a couple of other much larger ones. I've never been a single-issue voter. 

But presumably, some theoretical slice of the potential electorate, large or small, is considering whether to disqualify Fred Thompson from their presidential consideration based on lobbying work he apparently did for an abortion rights group in 1991-1992 while he was "of counsel" to a Washington, D.C. law firm.

If you're trying to assess the relative importance of that three hours of active "lobbying," plus another seventeen or so hours of other consultation during a two-year period — work likely amounting to something like 0.075% and of 0.425% respectively of Thompson's total law practice over that two-year period fifteen years ago — then I'd like to share some of my perspectives.

As hills of beans go, this is a very, very short stack.

*******

First, in thorough and long-winded Beldar style, the background. This story has been bouncing around the mainstream media and the blogosphere intermittently this month, with about half of the furor centering on whether and when Fred Thompson could have acted a part in a cowboy movie.

On July 7, the Los Angeles Times breathlessly reported that Judith DeSarno, then the Executive Director of the National Family Planning and Reproductive Health Association, reported having hired Thompson as a lobbyist in 1991, during the Bush-41 Administration, to advise and represent it in connection with the possible withdrawl or relaxation of a so-called "gag rule" that barred abortion counseling at clinics that received federal money. The LAT published a two-page .pdf file, the second page of which (italics mine) summarized Ms. DeSarno's as having told an NFPRHA board of directors meeting on September 14, 1991, that

Congress was continuing to move forward on legislation affecting the gag rule. The Senate had approved the Labor/HHS appropriations bill by a vote of 78 to 22 but with a parental notification for minors abortion amendment that was very troubling. The bill would now move to a House/Senate conference committee. Judy reported that the Association had hired Fred Thompson, Esq., as counsel to aid us in discussions with the Administration. Negotiations are in progress between Senator Chafee and the White House to try and reach a compromise on the HHS regulations. NFPRHA has played an active, if behind the scenes, part in the negotiations along with PPFA.

She noted that because of the gag rule she had concentrated most of her time on governmental relations. However, since the last board meeting, she [also did some other stuff, including yada yada] ....

I mean no disrespect to Ms. DeSarno in noting that during quarterly board meetings of the sort being reported here, paid executive staff for interest groups like this one are doing their dead-level best to, among other things, justify their salaries and their existence to the board members who hire and theoretically supervise them. In a Washington board meeting of a Washington-based national abortion rights lobbying group, then, it's entirely unsurprising to see that Ms. DeSarno, the group's executive director, claimed to have spent "most of her time on governmental relations" during the preceding calendar quarter.  But let us not therefore jump to the conclusion that she spent most of the preceding calendar quarter, or much of it, or more than a tiny, tiny fraction of it, in consultations with Fred Thompson, Esq.

Rather, this one-sentence reference in these minutes was most likely present as part of the predicate paperwork necessary for the association to eventually cut Thompson's firm, Arent Fox, a check for its fees in due course. Executive directors who report, "I spent the last calendar quarter with not a damn soul on Capitol Hill bothering to return my phone calls, and I couldn't even figure out what staffers had responsibility for the language in the new appropriations bill dealing with the gag rule," don't generate warm fuzzies for their constituencies, and neither are they likely to get salary or expense account increases. So it's also reasonable to infer that Ms. DeSarno — among the champions of a liberal cause during a conservative presidential administration — was reporting to her similarly liberal board members and fellow staffers about what were, in effect, outreach efforts to negotiate with their natural enemies.

To do that, she didn't need a true believer or even a convert. Oh, no! She instead needed a conservative pro-life Republican — one who could tell her about other conservative pro-life Republicans. She didn't need someone who would make outright converts on the Hill on the Association's; that simply wasn't doable, not by anyone. She needed someone who help get her names, phone numbers, and some background information — and who maybe, if she were lucky, could help get a few of her phone calls returned by people connected with the conservative pro-life Republican administration then in power.

I mean, hell, NFPRHA could get free advice and favors and introductions from pro-choice Democratic lawyers by the handfuls. They'd do backflips for NFPRHA simply in exchange for an additional line on their résumés when they made their applications to the next Democratic administration, whenever that was going to come around. So why would NFPRHA agree to pay out good money (that might otherwise go to, I dunno, say, executive staff salaries or bonuses or expenses) to hire someone who already agreed with them?

I therefore start off being pretty skeptical about the idea that NFPRHA hiring Thompson even indirectly supports an inference that he supported their goals.

*******

Nevertheless, the story's latest resurrection comes from a report in today's NYT:

Billing records show that former Senator Fred Thompson spent nearly 20 hours working as a lobbyist on behalf of a group seeking to ease restrictive federal rules on abortion counseling in the 1990s, even though he recently said he did not recall doing any work for the organization.

According to records from Arent Fox, the law firm based in Washington where Mr. Thompson worked part-time from 1991 to 1994, he charged the organization, the National Family Planning and Reproductive Health Association, about $5,000 for work he did in 1991 and 1992. The records show that Mr. Thompson, a probable Republican candidate for president in 2008, spent much of that time in telephone conferences with the president of the group, and on three occasions he reported lobbying administration officials on its behalf....

The billing records from Arent Fox show that Mr. Thompson, who charged about $250 an hour, spoke 22 times with Judith DeSarno, who was then president of the family planning group. In addition, he lobbied “administration officials” for a total of 3.3 hours, the records show, although they do not specify which officials he met with or what was said.

So what should we make of this? The first question probably ought to be: How significant a part of Thompson's legal practice was this engagement?

Well, that's just a matter of doing the math. Most full-time lawyers shoot for 2000 recordable hours (not all of which may be "billable") every year (representing 50 weeks at 40 hours per). If so, then over two years of Thompson's practice in 1991 and 1992, the three hours of actual lobbying amounted to 0.075% of his practice (3/4000 = 0.00075). It might well take three hours of phone inquiries simply to find out who was actually "carrying the ball" on the respective House and Senate committee staffs and within the key Congressional leaders' offices, simply so that he could point Ms. DeSarno in the right direction — because it was she, after all, who was spending "most of her time" lobbying for this organization.

And recall, too, that in politics, the Association's natural enemies among conservative lawmakers would nevertheless want to know who was whom at the Association, and what they had planned, and what their liberal allies on the Democratic side of the aisle had planned. The only way you get information is by trading information. So in the nature of things, some of the time Thompson spent in active lobbying was probably actually being helpful to conservative pro-life Republicans, even though NFPRHA was paying him by the hour. That's just the nature of the beast.

Remember also that at this time, Thompson wasn't a former senator yet, nor a very likely prospective one. He was another lawyer, one who'd had important staff positions at important moments in Congressional history (e.g., during Watergate, when his questions triggered the revelation of the secret White House taping system that brought down the Nixon presidency), and who'd been in a handful of movies and TV shows. But most of his actual law practice was still back in Tennessee, and it wasn't related to lobbying at all. Nevertheless, his inside the Beltway history would mean that he had useful context and information to share with someone like Ms. DeSarno, whose own natural contacts didn't include the conservative Republican side. And as someone with more information than clout, it makes perfect sense that the vast majority of the time Thompson billed to this matter was not for lobbying, but for other consultation — most likely meaning, here, client education.

But even those hours of non-lobbying consultation — let's round them up to 17 — still would have constituted only 0.425% of Thompson's career efforts during those two years. So what's the one thing we can conclude with near certainty from the NYT story and the newly found billing records? The twenty-hour total altogether was likely no more than one-half of one percent (0.5%) of Thompson's total legal work over 1991-1992.

Quantum physics, rocket science, and difficult related mathematical computations (like fractions) being beyond the ken of the average NYT reporter or editor, this percentage figure is missing from the NYT story.

*******

So how much, if anything, does that half of one percent tell us about Thompson's own views on the National Family Planning and Reproductive Health Association? Can we draw any inferences at all, from the fact that he did this work, that he was sympathetic with their goals?

And the answer to that is: No, it would be highly unfair and misleading to try to draw that inference.

Let's start with the proposition that in general, it's unreasonable and unfair to impute to a lawyer the beliefs or attributes of his clients. Sen. Thompson made this point well in an op-ed he published via PowerLine, and I've also chipped in to make the same point at my usual ponderous length and with a personal war story recently.

Some pundits have suggested that that rationale is less persuasive with respect to lobbying clients than with respect to regular clients, but they've got it exactly backwards. When a lawyer undertakes to represent a party in court, he incurs certain ethical obligations to the tribunal as part of that representation. He may not knowingly, for example, put his client (or any other witness) on the stand to adduce testimony that he knows to be perjured. Similarly, a lawyer arguing in court (or in court papers) may not make an assertion of fact without having a good-faith basis to believe that there's a factual underpinning for it, and he may not misstate the existing status of the law in an attempt to mislead the tribunal.

But if Fred Thompson "lobbied" some Capitol Hill staffer to return a phone call from Judy DeSarno at the NFPRHA, that doesn't include any express or implied endorsement, nor any vetting, of anything that Ms. DeSarno might claim or say. And in Washington, D.C. — where even people who aren't obviously identified as selling a viewpoint of a political interest group are conclusively presumed, until otherwise proven beyond a reasonable doubt, to be peddling some idea for somebody, an introduction, or even a summarization of someone's (decidedly unsworn) talking points, is just about the farthest thing in the world from a binding personal endorsement.

*******

Some pundits will nevertheless sputter: But surely the fact that Thompson would align himself with this sort of client, even for purposes of transmitting viewpoints he disagrees with, says something important about him and his lack of principles! But that's also a bogus argument that flies in the face of both theory and the reality on the ground.

As for the theoretical:

Someone thoroughly versed in our system of government, someone thoroughly committed to the Rule of Law and the marketplace of ideas, would have no hesitation in introducing, and then facilitating discussions between, someone whose goals and beliefs he absolutely rejects (on the one hand), and someone whose goals and beliefs he absolutely shares (on the other).

The public image of lobbyists as handing out favors and bags of ill-concealed bribes is odious and hard to combat; but the practical reality is that without some level of civil discussion between sharply opposing interest groups, no compromises would ever be possible, and neither side could ever win in whole or part on anything because the entire system would grind to a halt. Facilitating that dialog — and helping each side understand who the players are on the other side, what their hot-buttons are, what their core values are, and where there is and is not potential ground for compromise — isn't a "sell-out" of either side's position, and instead renders both sides a genuine service.

As for the reality on the ground, can we conclude at least that Thompson was willing to get "in bed" with the abortion rights crowd, at least briefly, based on this engagement?

I don't think so. If Thompson wanted to have an office in Washington, he was going to have to display some flexibility. Being inflexible would have made him essentially worthless to anyone in that town, including not only existing major law firms but himself.

According to an American Spectator article, during 1991-1992,

Thompson, was "of counsel" at the Arent Fox law firm in Washington, D.C. (meaning he was not a partner, but was provided an office for his use, in part because Thompson's own practice was based in Nashville, TN), and was used by the firm's partners as a "draw" for clients and potential clients, according to a source at the firm familiar with the arrangements with Thompson and others with the "of counsel" designation.

"You'd get partners walking people into Thompson's office all the time, none of whom had any business dealings with Thompson, because he wasn't a partner with the firm," says the firm source. "But having Thompson there during a Republican administration helped with business."

Arent Fox is a well-known, heavily Democrat firm with strong ties to the Clinton administration.

The only part of this quote I'm at all skeptical of is whether it's fair to tag Arent Fox as "heavily Democrat." It may well be, but that's actually beside the point. I remember interviewing with Arent Fox when I was a law student at Texas Law School in the fall of 1978 because I was considering spending a summer in D.C. and it was one of the D.C.-based firms large and powerful enough to recruit nationally from schools like UT-Law. The partner who came down to recruit stressed their substantive law practice (mostly in antitrust, if I recall correctly), but also was frank about their lobbying. He told me, in effect, that part of what they and other Washington powerhouse firms offered was the certainty that year-in, year-out — and regardless of whether a Democratic or Republican administration was currently in power — someone at their firm would know someone on the Hill or at the White House who would have something to do with just about any issue then being debated in the federal government.

That's the context which explains this comment, from today's NYT story:

The family planning association became a client of Arent Fox through Michael Barnes, a former Democratic congressman who was then a partner at the firm. The firm’s current chairman, Marc Fleischaker, said, "Regardless of whatever the political ramifications are, Fred was being a good colleague by helping out one of the firm’s partners."

That's a polite way of saying, "You're no damned good to us or yourself if you are only willing to represent the people who are already your friends, and you're also no damned good to us or yourself if you're unwilling to even talk to your friends when the firm's busy representing their political enemies."

So why the reference by Mr. Fleischaker to former Democratic congressman Barnes? Because it's a crucial fact in assessing Thompson's responsibility — or the lack thereof — for this particular engagement. Being "of counsel" meant that Thompson — despite his seniority and prior experience in Washington, which is what made him valuable to the firm — was nothing more than an at-will employee at Arent Fox. He didn't own a piece of the firm; he didn't get a slice of the pie at year-end when the profits were divided; and he had no role whatsoever in any firm management decisions. Obviously, Barnes was the partner-rainmaker who brought the Association in as a client — not Thompson. Barnes was presumably in the NFPRHA's corner any time. And it would have been Barnes' role — not Thompson's, nor any other non-partner's role — to have said, either, "No, our firm is not going to take on this client," or "Nope, this may be a regular client but we're not going to take on this particular matter for them." Any associate or "of counsel" who regularly refused to assist in representing clients whom the partners (like ex-Democratic congressman Barnes) brought in would quickly find themselves unemployed and, in Washington, unemployable.

Indeed — and this will cause mutterings, I know, from those of you who believe that all legal fees are shocking and outrageous — but Thompson's $250 billing rate as reported by the NYT would have been very, very modest compared to rates of major D.C. law firm partners back in 1991-1992. Barnes' or any other partner's time would probably have cost the Association at least twice as much. At a firm like Arent Fox, it might have been quite important to the firm overall to maintain a stable of clients like the NFPRHA — simply because access to, and knowledge about, special interest groups is the flip side of access to, and knowledge about, people in government. But this particular engagement, generating a mere $5k in revenues over two years, would have been at best a footnote to a line entry at the bottom of an appendix to an addendum in a supplementary table contained in an index of the firm's finances, if that. "Drop in the bucket" would seriously overstate the financial importance of this kind of engagement, in and of itself. Much less would the revenues from this engagement get Fred a bonus or a corner office; it would kinda sorta help pay the cost of the electricity he used and the floor space his (likely temporary) office in Washington took up.

*******

To the very, very limited extent that there's actually a "story" here, in my judgment it relates solely to whether the Thompson proto-campaign was slow-footed or lacked candor in reacting to this. As my blogospheric friend Patterico notes, the appearance now of the billing records directly contradicts something that the LAT reported from the campaign earlier this month:

Thompson spokesman Mark Corallo adamantly denied that Thompson worked for the family planning group. "Fred Thompson did not lobby for this group, period," he said in an e-mail.

In a telephone interview, he added: "There's no documents to prove it, there's no billing records, and Thompson says he has no recollection of it, says it didn't happen." In a separate interview, John H. Sununu, the White House official whom the family planning group wanted to contact, said he had no memory of the lobbying and doubted it took place.

But Patterico and others have, from time to time, found occasions in which the LAT has been, shall we say, less than scrupulous in matching up its purported quotes with their fair contexts. When Corallo spoke, he may have been under the genuine impression that no billing records existed, perhaps after making inquiry. Or perhaps he said, or meant to say, or should have said, in the follow-up telephone interview (a notorious source of misquotes and context slippage) that he hadn't yet been shown any bills (which NFPRHA presumably would have had, just like their meeting minutes) or billing records to that point.

If it was indeed White House Chief of Staff Sununu (now famous mostly as the misguided mouthpiece through which Warren Rudman inflicted David Souter on Bush-41 as a SCOTUS nominee) who was the focus of discussions when Corallo made the purported quotes, then in that context, there may still be no conflict today, even after the billing records have appeared, because they certainly don't seem to support any suggestion of active lobbying at anything remotely approaching that high a level. What struck Fred as "lobbying" when he was filling out billing records (if he's who filled them out, which is also just a guess) may be different, in other words, from what Corallo thought he was being asked about or intended to be speaking about a decade and a half later on the phone with the LAT.

However, even if we assume that the LAT was absolutely fair and scrupulous — and truthfully, I don't know of a single damned reason why we should so assume, but let's do so anyway, for purposes of argument — I tend to agree with Ed Morrissey and John Hinderaker that the appearance of the billing records and the NYT's new story is still much ado about nothing much more than a possible mistake or loose misstatement by an ill-informed or insufficiently careful campaign spokeman.

Bluntly: The notion that Fred himself has been engaged in some sort of cover-up or duplicity here is an absolute non-starter — even if you're among the small segment of the population who believes that his half-a-percent one-off representation of this abortion rights group a decade and a half ago somehow affects his current fitness to be President. [UPDATE (Thu Jul 19 @ 11:55am): I'm sorry to see James Joyner among those who seem awfully quick to claim that Thompson himself has told a deliberate "lie," and with due respect, I don't think he's made out a basis for that claim.)]

I'm not sure this hill is even one bean tall. Actually, I tend to doubt it.

---------------------

UPDATE (Thu Jul 19 @ 1:15pm): From my continuing civil discussion with Dr. Joyner in his comments, this from me there:

"Lying" is a very, very serious accusation.

Yet you're making guesses based on press summaries of documents we haven't seen, based on NYT reporting about them (and we all know the NYT never makes mistakes?), and comparisons of those against a mish-mash of written and oral statements by the candidate and others in a variety of settings and contexts (again, assuming scrupulous and thorough reporting).

Even the records themselves don't necessarily provide conclusive answers. I don't hold law firm billing records in quite the same regard that I do gospel, because I know just how often they're screwed up, or compiled second-hand by a secretary or a paralegal making guesses from inconclusive source documents (rather than reflecting personal knowledge).

Some of the terminology here is also incredibly slippery. If the context of Corallo's follow-up phone call with the LAT, for example, was about "lobbying" Sununu or other top officials, then that's something that might well have been categorically denied, truthfully and in good faith, and after checking with the candidate and doing some due diligence.

And yet that might have happened without anyone ever wondering, "Hmm, did perhaps a phone call ever get made to the second assistant junior staffer to find out if the conference committee had transmitted back to the Senate subcommittee the minority report on the supplemental HHS appropriations bill as amended?" Yet exactly that sort of phone call might have ended up as a 0.1 hour entry in Thompson's scribbled work records as "TC lobbying."

This whole episode makes me strongly suspect people are talking past each other. I want to see the records, but producing them may involve privilege issues on which NFPRHA's cooperation might be needed, and they may have reasons to be horsey about that.

Beldar reviews Jan Crawford Greenburg's "Supreme Conflict"

I've read quite a few reviews of Jan Crawford Greenburg's book Supreme Conflict: The Insider Story of the Struggle for Control of the United States Supreme Court, and most have been very favorable, including some by reviewers whom I believe to be tough critics. And I actually bought the book some time last spring, within a few weeks of its late January 2007 release. But it's been sitting on an end-table next to my couch.

I just haven't been able to bring myself to read it before now because I knew it would rip open psychic wounds I still bear from the Harriet Miers nomination.

And it did. I'll review this book because it deserves it. But I'm also gonna close the comments on this post because I don't want someone to re-open mooted old fights in them based on what I say here.

 

*******

One passage, though (at pp. 258-59, boldface mine), made me laugh aloud through some otherwise sad memories, when Crawford described discussions that were going on between the Federalist Society's Leonard Leo, general counsel Wendy Long of the Judicial Confirmation Network, Deputy White House Counsel William Kelley, and White House Counsel Miers. It was at a time when only Kelley, among that group, knew that Miers' name was under serious consideration to for the Sandra Day O'Connor seat (after John Roberts' nomination had been shifted to the Chief Justiceship upon William Rehnquist's death):

In that meeting with Leo and Long, Miers led the discussion, soliciting their views on what Bush should consider in making his decision. "What do you think is most important?" Miers asked at one point.

"Quality, quality. That's all that matters," said Long, whose Judicial Confirmation Network was formed to support Bush's judges and supported by the same donors that contributed to the Federalist Society.... "We can handle the rest if there is quality," Long said.

Miers and Kelley nodded in agreement. The discussion on nominees was brief. Most of the conversation focused on the strategy for getting Bush's nominee through the confirmation process and how to ensure the most widespread support against inevitable attacks by Democrats. Miers in particular was keen to tap into the grassroots groups and influential commentators outside the mainstream press. "I think the blogs will be really important," Miers said.

Later, Ms. Greenburg's book goes on to mention by name a great many of the pundits who opposed the Miers nomination, including David Frum and Ramesh Ponnuru at the National Review, Bill Kristol at the Weekly Standard, and David Brooks at the NYT. I don't know whether that's the sort of "bloggers" that Ms. Miers' mention of "the blogs" corresponded with; I'd instead characterize all of those as mainstream media columnists, even though (for example) Ponnuru contributes regularly to The Corner and Frum has his own kinda-sorta NRO blog. Certainly Ms. Greenburg could also have constructed a long list of more traditional (non-MSM columnist) bloggers who also lined up against the Miers nomination, and whose clamor is widely regarded as having also contributed to the nomination's withdrawal. But she doesn't name those names — much less compile the very short list (comprising mainly me and Hugh Hewitt, who's also of course not just a blogger) who aggressively supported the nomination.

But as she tells the inside story from the White House, it was Dubya alone who made the decision to pull the nomination, and he emphatically didn't give a furry rat's butt about the furor in either the conservative blogosphere or the broader conservative punditocracy at all. He was, according to Ms. Greenburg, persuaded solely and reluctantly by the reports from conservative senators and especially from her confirmation hearings prep team that in the three weeks available, she simply couldn't be adequately refreshed and/or re-educated in constitutional law to a degree sufficient to get her through the hearings.

That seems likely to me — meaning, in keeping with my understanding of Dubya's character and tendencies. And I guess it makes me feel marginally better. I might have been a dim and unsuccessful candle against a hurricane, but it wasn't the hurricane that ended up wrecking the ship, no matter how smug the hurricane was afterwards.

*******

Ms. Greenburg also writes (at page 279):

... [T]he confirmation process had changed since Reagan nominated Justice O'Connor, who was no constitutional law expert herself. The hearings [during the Bush Administration] were so contentious and the questions so focused that nominees without a background in constitutional law — either an experienced judge or a Supreme Court advocate like [Miguel] Estrada or [Maureen] Mahoney — would have a very tough time of it. Gone were the days when a president could nominate a practicing lawyer like Lewis Powell or Byron White and watch him sail through.

And then again (at page 302), in one of the book's occasional examples when an editor could have profitably trimmed some redundancies:

Lawyers like Miers, who haven't spent their lives planning for a Supreme Court nomination, are expected to do the impossible. At one time, there was a place on the Supreme Court for lawyers like Miers, those with practical experience who handled witness interviews and managed law firms and ran bar associations. Lewis Powell was one before President Nixon nominated him. But those days are gone. The job interview is designed for the appeals court judge or the elite appellate lawyer — someone like a Roberts or an Alito.

I can't disagree with those paragraphs as being accurate and penetrating observations of the process at the time of the Miers nomination. But one of the great successes of Ms. Greenburg's book in my view is how vividly it communicates the extraordinary and unusual confluence of contributing factors during the Miers nomination — specifically, (1) the judicial rockstar John Roberts' confirmation hearings having just ended, (2) followed immediately by a soft-spoken and somewhat shy Powell-type practicing lawyer nominee (without a judicial or academic career), who (3) would be taking a "swing seat," combined with (4) harsh time pressures and (5) a president whose political capital was hemorrhaging madly due to a perceivedly bungled response to a uniquely catastrophic hurricane.

What she leaves out, but what I believe was also a huge factor, was (6) a large portion of the President's so-called conservative base (one over-represented on the coasts, inside the Beltway, and among the pundits and "opinion leaders" generally), that is, and actually always has been, deeply suspicious of his own commitment to transforming the Court, and his fitness for making sound judgments in pursuit of that goal. That George W. Bush knew Harriet Miers more thoroughly than almost any other President has known any other Supreme Court nominee counted for nothing in their eyes. Instead they insisted in pre-playing what they claimed would be the broad Democratic charge of "cronyism" based on that thorough personal knowledge. Instead, the Dems, who also reflexively hold Dubya in low regard (but take no effort to conceal that), would have been perfectly willing, even delighted, to let Miers sail through after first embarrassing her and Dubya just for giggles and grins and Bush-hater brownie points.

And thus, it's not entirely clear to me that if some of those factors were absent or even just diluted, the same results would be repeated. If, for example, you had a decidedly non-shy mid-40s female trial lawyer with a strong academic record from a top-25 law school (even if not Ivy League), a somewhat more prestigious judicial clerkship, and a deeper first-chair courtroom record (maybe including a stint as a state or federal trial judge) — one who had a little more time to study up and was, perhaps, both undistracted and a very quick study — who was replacing, say, Justice Scalia ....

Then maybe. I'm not giving up yet on my hopes of getting someone who's actually tried some jury trials and maybe presided over a few up there on the SCOTUS' loft bench.

*******

My intense personal recollections of, and lingering painful emotional investments in, the Miers nomination notwithstanding: I very much enjoyed Ms. Greenburg's book.

It does leak a few minor state secrets — or at least, things roughly comparable to the breathless revelations of intra-Court confidences from Bob Woodward's and Scott Armstrong's "The Brethren" from some years back. And I remain skeptical of the degree to which Ms. Greenburg ascribes to contrasting personality types the various Justices' successes in persuading their fellows to join them on legal rulings. I seriously doubt, for example, that the course of the Nation's judicial history was as seriously affected as Ms. Greenburg suggests by a perceived slight Justice O'Connor received as a rookie Justice at the hands of Justice Brennan. I do not believe that the Supreme Court functions mostly on the principles of a junior high school cafeteria, with the cool kids all at one table on any given case. 

But most mainstream media legal analysts seem incapable of ever exhibiting anything deeper than a junior high-esque understanding of the Court. To them, the idea that Justice Scalia and Justice Ginsberg and their respective spouses can have been steadfast personal friends over many decades just does not compute; they think it's like those "lion and lamb" photographs in which the lion has secretly been shot with a tranquilizer rifle before the photo was snapped, and someone's putting one over on them.

Instead, to her credit, Ms. Greenburg doesn't rely solely, or even mostly, on such shallow psycho-babble, nor exclusively on frenzied interpretation of the number of exclamation points that Justice Blackmun added to the draft opinions from other Justices' chambers. She actually understands, and more amazingly, fairly consistently explains in laymen-accessible language, the substance of a great many issues that the Court's been dealing with over the last thirty years or so. She doesn't view everything through the prism of abortion rights cases (although, inevitably, that is her number one focal point). And she mostly gets the details right.

Without question — as many other reviewers have already noted — Ms. Greenburg takes enormous and, frankly, very courageous strides toward correcting huge injustices in the widespread misperceptions about Justice Thomas, even (and perhaps especially) within the legal community and the ranks of the well-educated and legally-observant laity. It would be the rare individual, lawyer or not, who reads this book without having his perceptions of that cryptic man much affected, and almost certainly for the better. And it's based on solid reporting about the merits of cases and his positions on them and intra-Court communications about them, not just anecdotes and homilies about how he grew up or how he relates on a personal basis to other Justices. The material about Justice Thomas would, all by itself, make this a book worth purchasing.

And best of all, though, from my viewpoint — because I didn't learn any law from reading her book, nor did I expect to, and I already knew the outlines of the changes in the Court's ideology and its members' drift patterns — Ms. Greenburg provides a whole host of genuinely vivid and consistently delightful personal details that aren't state secrets. Here's one, for example (from page 190), that just made me grin:

The morning of his interview with President Bush's selection team, Roberts went to work in his courthouse chambers downtown as usual. Later that day, he drove himself back up Massachusetts Avenue, past the big embassies that line the street, to Cheney's residence in northwest Washington. He got there forty-five minutes early, so he sat in his car until it was time to go in.

Now, see, that just dovetails so neatly with everything else I know of and about John Roberts (and with everything else Ms. Greenburg writes of him, too), that I can practically see him sitting calmly behind the wheel, checking his wristwatch but not very often and without any impatience — assured of not being late, gracious, and indeed grateful for the quiet chance to practice, sotto voce and into the sun visor, more of his anticipated answers to some of the Veep's anticipated questions. I know John Roberts has done that hundreds of times before oral arguments at which he's appeared as an advocate — maybe on a courthouse bench or in a back hallway, if not in his car. And reading that sort of simple detail, thinking of him gesturing into the steering wheel, re-confirms his humanity to me, and helps me relate to him in endearing and important ways.

I grade this book at a solid, unequivocal A. I don't think I've ever given that high a grade to any legal writer affiliated with any mainstream media outlet in the four years I've been blogging. I don't suggest you take its every word as gospel, nor that it be your only source of information and analysis about the modern Supreme Court. But I do recommend it, without any substantial reservation.

(Disclosure and shameless financial self-promotion: buying it via the Amazon link at the top of this post will cost you no more, and save Beldar a few pennies off his own next Amazon purchase, if you're persuaded even in part to buy the book based on this review.)

Terrorists and Wall Street lawyers

Instapundit Glenn Reynolds writes this morning: "Hmm. Now there's a book that will never get written: What Terrorists Can Learn from Wall Street Law Firms."

It's not an idle suggestion, though. As I understand it, terrorists are skilled at creating corpses. In my personal experience, Wall Street law firms are also skilled in picking them clean.

(Just a joke. It's an unfair comparison, of course ... to the terrorists. Aha, another joke. Sorta.)

Beldar's answer to Patterico's question about Husain v. Springer

My blogospheric friend Patterico, who was kind enough to link from his blog to my post from yesterday about the Second Circuit's decision in Husain v. Springer — and in particular about Chief Judge Dennis G. Jacobs' provocative dissenting opinion in which he proclaimed that he's not bothered to read his colleague Judge Guido Calabresi's opinion for the panel majority — asked this question in a comment (hyperlinks inserted by me):

Volokh thinks the majority opinion sets an important precedent. Beldar disagrees.

I'm wondering how to decide which of them is right. Any suggestions, Beldar?

Herewith, my reply. Of course, it's not short. Things are rarely short on BeldarBlog (hence the warning on the masthead).

*******

Patterico, my friend, you could simply wait for the Federal Reporter, Third Series version to come out and see how many headnotes Thomson/West Publishing writes for it. Counting the number of headnotes is one rough way of measuring how much "law" a given written opinion stands for, although they don't put the really important headnotes in boldface or an extra-large font. One tends to generate one new headnote for every declarative sentence followed by a case citation, and it's entirely possible for an opinion to have lots of headnotes and yet not to have made any new law, or even to have repeated much law of much importance.

*******

Prof. Volokh is a renowned (and properly so), tenured, and many-times published constitutional law professor whose specific expertise includes the First Amendment. I'm merely a solo practitioner in a general litigation practice whose last constitutional law credentials were a law school Am Jur award in that subject in 1979 and a successful Fifth Circuit appeal in 1983 upholding a summary judgment in favor of CBS News in a defamation case. So if you're deciding whose opinion is more likely to be correct based on the expertise, experience, and reputation of the person rendering it, Prof. V wins hands down.

On the other hand, you'd think that being such an expert, Prof. V might have been in a position to point to a few recent First Amendment cases and say, "Under the precedents set this past week in Husain v. Springer, these would all have come out the opposite way than they did." He hasn't done that; but perhaps he could, if someone asked him to.

*******

One of my very first posts when I started this blog four years ago was about a Texas case that Prof. V read as a major cut-back in First Amendment protections for pornographic comic books, Castillo v. State, 79 S.W.3d 817 (Tex. App.—Dallas 2002, pet'n ref'd), cert. denied, 538 U.S. 924 (2003). I read that case as an aberration, in which an incompetent defense lawyer had let an aggressive prosecutor trample him, and in which the appellate court had made no new First Amendment law to speak of but rather merely held the defendant accountable for his lawyer's procedural lapses in failing to object.

Prof. V graciously corrected some factual errors he'd made in his original posting about the case, but we agreed to disagree over the case's precedential importance. In the four years since, it's been cited by other Texas courts a total of 10 times — and never in a case that contains the words "obscenity" or "First Amendment," but instead for its purely procedural holdings. If, nevertheless, as a result of that appellate opinion, there are either substantially fewer pornographic comic books available now in Texas or anywhere else, or substantially more comic book pornographers who've been convicted of obscenity, I'm unaware of that. So I tend to think that the passage of time has shown I had the better of the argument about that First Amendment case, anyway.

*******

I suspect Prof. V would agree with me that there are less likely to be important future effects from that portion of the Husain v. Springer majority opinion discussing whether, for purposes of qualified immunity, the college president's actions were clearly illegal given the status of court precedents in 1997. Although I think that portion of the majority opinion is badly written, it's by far the most easily distinguishable in any future case.

We'd probably also agree that the most novel, and potentially sweeping precedent, has to do with the causal remoteness of the supposed chilling effect, which he (and the majority opinion) refer to as the college president having threatened the student editors' intended purposes for the election (as opposed, for example, to threatening to expel them, or to disband the paper, or impound its issues, or cut off its funding).

The majority opinion, though, doesn't itself treat its own holdings as being sweeping or revolutionary or precedent setting. It treats the "chill" as being more or less self-evident on these facts. Accordingly, I read the holding as being not very dangerous. In future cases, instead of a court saying, "Under the new rule of law proclaimed in Husain v. Springer, by which we are bound as a matter of precedent, we must ...," you'll instead have, at most, a court saying, "Under a similar set of facts in Husain v. Springer, the Second Circuit found ...."  The fact that no court — to Prof. V's experience or my own admittedly more limited experience — has been willing to find a "chill" on such weak facts before makes me doubt that many other courts will be eager to find such a chill on similarly (but distinguishably) weak facts again. And because it's fact-specific, I doubt many future courts will find themselves compelled to find such a chill on similarly weak facts. 

In other words, unless the future case is one of a university president "chilling" the First Amendment free expression rights of a college newspaper by having voided and then rescheduled a student election for what the court concludes was an invalid reading of university rules, I just don't think this case is going to have much persuasive power in any future First Amendment litigation. Outside the context of administration interference with college newspapers writing about student government elections, I doubt it will — or even could — have any relevance at all.

My suspicion, in other words, is that when Prof. V wrote that this might be a really important precedent, he actually meant that it pertains to a really important subject — the First Amendment.  But it's rather Chief Judge Jacobs' point — and I agree — that not every dispute that is characterized in a First Amendment analysis is necessarily an important case. This might make a great exam question for Prof. V's First Amendment classes. That doesn't mean it's an important question in real life.

Note that Judge Calabresi and Judge Walker didn't respond directly to the dissent. They did not, in other words, argue that, yes, this is an important case, or that it presented important undecided legal principles of first impression. They never address related questions like: Why was this case on the oral argument calendar? Why was this opinion designated for publication? Or most significantly: Why isn't this a case of de minimis non curat lex? And how (except in a scramble for court-awarded attorneys' fees) can it possibly justify the attentions of eight high-powered lawyers on the brief and the admittedly more limited resources of the federal judiciary — specifically, a federal magistrate, a federal district judge, and a panel of three federal circuit judges who, at $175k each/year, are badly underpaid in comparison to the market? Over a one-week delay in a student election that, when re-run, came out the same way? Over $2?

But now I'm basically re-arguing the point of my original post, which means I've run out of ideas to help you decide whether Prof. V on the one hand, or Prof. B and I on the other, have the better of the argument.

---------------

UPDATE (Mon Jul 16 @ 3:00pm): For an opposing assessment of the importance of the underlying litigation — including, if I understand it correctly, an argument (in comments) that Husain is really not much different in importance than the Supreme Court's decision in Rumsfeld v. Padilla — see S. COTUS' post at a blog called Appellate Law & Practice.

Second Circuit Chief Judge Jacobs' dissent in Husain v. Springer: An opinion worth occupying the minds of people with consequential things to do, albeit arising from an appeal that otherwise shouldn't

First, a long war story. You can skip it (jump down to the first line of centered asterisks) without much consequence to your understanding of the rest of my post, if you'd rather.

In August 1980, during the first week of my year-long judicial clerkship, the United States Circuit Judge who'd hired me was hearing oral arguments at the Fifth Circuit's headquarters in New Orleans. I'd been told to report to her chambers in Houston, though, where a pair of her departing clerks would show me the ropes and get me started. Before the end of the first day, I was up to my elbows in a "screener" — a thin file pulled from the top of a stack of similarly thin files, all of which represented cases in which the staff lawyers from New Orleans had made an initial determination that the appeal could probably be disposed of as part of the Fifth Circuit's "summary calendar," without oral argument. Any judge could bounce a "screener" to the oral argument calendar, and that sometimes happened. But the staff lawyers, who in general had less responsibility than us law clerks but who didn't rotate out every year, had a good feel for the pulse of the then-massive circuit's caseload (appeals from six states, being handled by twenty-five circuit judges). My outgoing co-clerk, whom I'd worked with a year earlier when he was an editor and I was a member of the Texas Law Review, was indulging in a reasonable assumption that whatever he took off that stack to give to me would be a fairly simple case by Fifth Circuit standards, and thus a good way to get my feet wet in a new job.

Seven days and eighty hours later, I'd finished my forty-something page opus that comprehensively reviewed, and then reconciled into a definitive decision matrix, the existing Supreme Court and Fifth Circuit precedent on how to treat qualified immunity defenses to section 1983 and Bivens civil rights claims for purposes of summary judgment consideration. My co-clerk skimmed it, and then rolled his eyes. "She's going to think you're a total dork," he warned me. And he was right: she did, and I was.

The problem was that, in fact, the Fifth Circuit's caselaw (like most circuits') on those subjects was riddled with seeming contradictions back then. The boom in these sorts of cases was still pretty new, but there were already a lot of sloppy opinions out there. Indeed, the staff law clerk who'd marked this case as a "screener" had followed one trail of cases, but he or she had completely ignored a couple of competing trails that were arguably just as applicable and just as valid. The poor district judge and his law clerks had more or less shot up a flare-gun pleading for guidance. And with the absolute confidence that every newly graduated law review editor has — which is to say, the absolute confidence that he or she can discern every interesting cross-current in the law, and then write some dozens of pages of dense, heavily footnoted prose to re-channel them properly — I'd set about to "fix things."

My judge not only rolled her eyes, but audibly groaned when I handed her my work. "Opinions from screeners aren't supposed to look like this," she said. She hefted the manuscript, waggling it in the air between her thumb and index finger. "They ought not weigh this much, literally. Are you sure this couldn't be handled in about a fifth the space?"

I insisted that it could not, and so she read it. Then she started pulling books off the shelf to track through some of the precedential trails I'd laid out in opposition to one another. She moved from eye-rolls to more groans, with occasional sotto voce mutterings; but now it was the other cases she was frustrated with, not my draft opinion. Then we argued about my draft some more, and flagged some weak language, and started testing various hypotheticals against my (mostly procedural) decision matrix. This all took the better part of a day.

"Well," she finally concluded, "I think you're actually right. This is just tough sledding, and the district courts, who are seeing more of these cases every year, probably do need a road-map from us. This might even be the case to do it in. But you just can't make this much law with a screener. It's just not done. I've only been on the bench for a year, but even I know that." She sighed again. "I'm going to make a few revisions based on what we've looked at together, and then run this past the other two judges on our screening panel," she said, "just to ask them if I ought to send your draft opinion along with the file when the case gets bounced to a new panel on the oral argument calendar. I'd hate to see this much work go completely to waste."

I felt duly chastised and downcast.

The other two judges on the panel, however, had a different reaction. They also thought that the draft opinion — which was now genuinely a joint product of our chambers — had done about as good a job as could be done in reconciling the prior cases (short of the freedom to simply overrule prior precedent that only the SCOTUS or the full Fifth Circuit sitting en banc would have). But the gist of their further reaction was that while the precedents in this area were in an ugly mess, this screening panel was nevertheless as well-equipped to sort it all out as any oral argument panel would be. Moreover, not only our chambers, but now also the other two screening panel judges and their staffs had invested a lot of time in the case. All that would mostly be wasted if any of the three judges booted it to a random oral argument calendar panel. And they also pointed out that one of the parties was proceeding pro se; if the case went to the oral argument calendar, only one side would show up to argue through counsel, and we were already highly confident what that side's counsel would say.

There was some more very civil discussion back-and-forth between chambers over the substance and language of the opinion. But thus it was that the very first Fifth Circuit opinion I ever helped write clocked in at 27 pages as published in the Federal Reporter, Second Series, with 34 headnotes (but a mere 27 footnotes) — and with a partial dissent written by one of the circuit's most senior and respected judges. The first footnote read:

No party in this case requested oral argument, and no judge on the summary calendar panel determined that oral argument was necessary. In these circumstances, Fifth Circuit Local Rules 13.6.4 and 18.2 allow us to decide this case without oral argument, despite the fact that one member of the panel concurs in part and dissents in part.

I was, at least in part, redeemed. "But next time," my judge told me, "come get my specific okay before you invest 80 hours in a screener. Any screener. Okay, buster?"

(All the dialog in this war story is based on a loose paraphrase of my dim recollections — except that one word, "buster," which I'm pretty sure is an exact quote. Just another reason that clerkship was the best job I ever had, bar none.)

*******

Fast-forward twenty-six years — during which period there have been lots and lots of circuit court published opinions on how one goes about evaluating qualified immunity defenses to section 1983 and Bivens claims in a summary judgment context. That's not to say that all of those reported cases are entirely consistent, or that applying all this vast body of case-law is a no-brainer for the lawyers and the judges at the trial court level. But no one can plausibly say, "We need a basic road map for how to handle these cases" anymore. Every circuit has long since been there and done that, many times.

Moreover, while some of the cases brought to the federal courts under the rubric of "Defending Our First Amendment Rights!" or "Vindicating the Rule of Law Under Our Constitution!" are genuinely important, a great many of them aren't worth the powder it would take to blow them to hell. We saw the Supreme Court tie itself in knots trying to decide during the Term just past, for example, whether the First Amendment was or wasn't violated when a school principal disciplined a high school student for displaying his "Bong Hits 4 Jesus" banner. The case was almost forced upon them by the Ninth Circuit, who'd concluded that the First Amendment might die tomorrow unless such banners are given constitutional protection by the federal courts. But it was still an eminently silly case.

This summer, however, Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit — a Bush-41 appointee who'd been in private practice for a couple of decades before he was appointed in 1992 — found himself confronted with yet another footnote filled, forty-something paged manuscript, with yet another carefully nuanced treatise on the application of fine principles of constitutional law. Given his tenure, I'm sure he's participated in thousands of appellate decisions before, probably including dozens of appeals that turned on qualified immunity defenses. Some of them were probably important, and the next one that wanders up the appellate chain might be too.

But this latest one, Husain v. Springer, announced on Friday the 13th, just isn't. Instead, it's an over-lawyered pissing match — I'm sorry, I know that's a crude term, but there's no term so apt — over whether there were genuine issues of fact with respect to a qualified immunity defense asserted by a college president who'd ordered a re-run, one week later, of an arguably flawed (i.e., college rule-breaking) 1997 campus election at a Staten Island community college. The alleged harm? In the following year, a "chilled" student editorial board "decided to give their endorsement of the PSA [one slate of student candidates] less prominence than the newspaper’s endorsement of the Student Union slate [another slate of student candidates] had received in Spring 1997." (The editors indulged in this paranoid fantasy despite the fact that this same college president had overruled members of her own staff to ensure that their publication was not impounded, but instead released on the timetable they wanted, and even though the same 37 candidates whom the editors had endorsed for the original election also won in the rescheduled election a week later.) The college never restricted what the editors wrote, nor punished them afterwards for writing it. None of the candidates sued (or had reason to).

"She skeered us," was the student editors' basic claim, "even though she didn't actually do nuthin' to us." (Someone from the northeast will have to translate that into an appropriate Staten Island slacker dialect for me.)

The district court, after extended proceedings and with a thorough written opinion, had granted summary judgment denying any relief. The students, represented (probably pro bono, but possibly with an opportunity to recover legal fees) by a prominent national mega-firm (Akin Gump), appealed. But two judges on the Second Circuit panel — via a 44-page written opinion of U.S. Circuit Judge (and surprise! Clinton nominee! and double surprise! famous Yale Law School Professor Emeritus) Guido Calabresi — reversed in part and remanded for a full jury trial on the merits.

*******

Friends and neighbors, I now give you the vivid prose of Chief Judge Jacobs — a man who is clearly tired of suffering fools gladly, and who is keenly aware that, as the chief judge of one of our nation's most important courts, he certainly has better things to do than to referee every grab and every fall from a college newspaper's 10-year-old self-important opinions about imaginary consequences from a wrestling match student government election from a Staten Island community college (citation omitted):

This is a case about nothing. Injunctive relief from the school’s election rules is now moot (if it was ever viable); and plaintiffs’ counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.

With due respect to my colleagues in the majority, and to whatever compulsion they feel to expend substantial energies on this case, I fear that the majority opinion (44 pages of typescript) will only feed the plaintiffs’ fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island. Contrary to the impression created by the majority’s lengthy formal opinion, this case is not a cause célèbre; it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit.

*******

So who finds this dissent shocking?

Other present or former law professors like Judge Calabresi, I guess — including Profs. Eugene Volokh and Orin Kerr over at the Volokh Conspiracy. But they're not shocked because of Chief Judge Jacobs' characterization of the lack of merits to the student-plaintiffs' case. (Indeed, in a separate post, Prof. Volokh writes that the majority's opinion was "quite odd" and that he's "unaware of any First Amendment case that remotely reaches this sort of 'chill[ing of] speech'; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment." In other words, he suspects that Judge Calabresi is wrong on the merits.) Rather, these fine law professors are shocked by this (deliberately understated) admission from Chief Judge Jacobs at the beginning of his partial dissent:

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why.

I must digress a moment. If you read my blog regularly, you may fall prey to what I think might be called a "sampling error" bias. I hardly ever write about blog posts by law professors with whom I agree. And you might therefore stop taking me seriously when I insist that I like and admire and respect the law professors about whose posts I do write from time to time. I'm not being coy or disingenuous. I probably read 50 posts by Eugene Volokh or Orin Kerr that I wholeheartedly and unreservedly agree with for every one with which I disagree.

But this is one of those times when I fear they're both suffering that sort of academic-induced narcosis that leaves them just flat out of touch with the real world. That real world includes full-time practicing lawyers, and full-time trial and appellate judges (but not necessarily their clerks), most of whom would treat this case as a tempest in a teapot, which is exactly what Chief Judge Jacobs has done here.

*******

Actually, however, I do agree that Chief Judge Jacobs' absolute refusal to even read Judge Calabresi's majority opinion is shocking. In fact, I'm quite sure that Chief Judge Jacobs intended for it to be provocative. He's pretty much saying, "I refuse to even read what my fellow judge has written about this appeal" — and well, that's indeed extraordinary. It's likely to generate controversy, with the effects of that controversy creating their own time demands, all of which is likely to become entirely disproportionate to the fifteen or twenty minutes Chief Judge Jacobs has saved for his schedule by ash-canning Judge Calabresi's majority opinion..

Prof. Volokh and Prof. Kerr and various of their commenters were definitely provoked, but nevertheless seem to have missed Chief Judge Jacobs' point entirely. They seem to think this is equivalent to a judicial abdication by Chief Judge Jacobs, or to the doing by him of a deliberate injustice. "It's too bad that the dissenting judge didn't take the case more seriously," writes Prof. Volokh, because "I think the majority opinion may well be wrong, and certainly sets an important precedent that would benefit from serious, skeptical scrutiny."

Meh. I agree that Judge Calabresi's opinion is wrong, but it looks to me like the majority opinion pretty much turns on the interpretation of City University of New York Bylaw § 15.2(d), on the subjective wobblies claimed by a bunch of student editors over a weird, probably unique set of actions by the college administration, and on the theoretical clarity (or lack thereof) of federal precedents on First Amendment free expression in a university setting as of a specific date in the late 1990s (since that's what the university president's "good faith," and therefore her potential liability, must be measured against, incredibly enough). That's not quite a blockbuster in terms of its precedential effect on other cases, regardless of whether Judge Calabresi's opinion got it exactly right or not quite right or mostly wrong.

More to the point, I disagree with Prof. Volokh's assertion that Chief Judge Jacobs' opinion doesn't take the case seriously. The professoriat may want Chief Judge Jacobs to say, "This appeal isn't worth my time, or any federal appellate judge's time, but nevertheless, here's exactly what I would say if it were worth my time" — and then to either fly-speck every debatable point in Judge Calabresi's opinion or else to concur in it. But he can't do the latter without contradicting the former, and it's the former point which he clearly thinks is more important here.

Chief Judge Jacobs certainly makes it very clear that the district judge got it more than adequately right, such that neither he nor his colleagues needed to write any more about this case. But his far more important point is that the whole damned case isn't worth the paper it will take to print Judge Calabresi's opinion on — much less the tens of thousands of dollars of additional legal fees that will almost certainly be sought, and possibly awarded (at the expense of the taxpayers of New York state) if the students win after a full trial on remand.

Chief Judge Jacobs carefully avoided directly faulting his brethren. But his deliberately provocative conduct was an indictment of more than just their majority opinion in this case — and of more than just the appellants in this case. Indeed, he might have quoted Churchill by writing: "This is the sort of bloody nonsense up with which I will not put!" Or he might have used the phrase "De minimis non curat lex," which I believe translates from Latin into "Get the hell out of my courtroom with that noise, you idiot!" (I'm not sure of the declinations on that translation, but it's a good enough rough approximation.)

This was, in effect, a judicial rallying cry — to district judges, to other circuit judges, even perhaps to SCOTUS justices. And it's a warning — not quite "Who dares disturb the great and powerful Oz?" but definitely something that ought to be heeded by litigants whose claims are, shall we say, lacking in anything but contrived and feigned real-world importance.

Note, however, that Chief Judge Jacobs didn't refuse to do his duty as a federal appellate judge. He presumably read the briefs and the trial court record. He attended oral argument. He participated in the post-argument conference(s). We don't know what, if any, unpublished communications were exchanged between him, Judge Calabresi, and the remaining judge on the panel, (former Second Circuit Chief) Judge John M. Walker, Jr. But these opinions aren't published until every judge on the panel is ready for them to be published based on having finished what he wanted to say to his brethren, whether face to face, on the phone, or in writing. It would have been improper for any of the judges to reverse the district judge based on arguments that hadn't been made in the district court and in the appellate briefs, so Chief Judge Jacobs necessarily had a pretty good idea of what Judge Calabresi's opinion could have said, had he taken the time to parse it. He cast his own vote. And his "admission" aside, it would indeed not surprise me if he skimmed it, and/or had a clerk read it closely — which is to say, he may purposefully have avoided quote-unquote "reading" it precisely so that he could make his rhetorical point as forcefully as possible.

I'm sure Profs. Volokh and Kerr would agree that appellate judges very commonly write dissents along the lines of, "For the reasons stated in the district court's opinion, I would not have reached the merits of the substantive First Amendment issues, and would instead have affirmed on the basis of that opinion's treatment of the qualified immunity issues." Chief Judge Jacobs actually did way more than that, and went through a brief discussion of why he believes the muddled state of First Amendment precedent as of 1997, when the university professor did her supposedly dastardly chilling, should have made it impossible for her to be found liable for a bad-faith violation of the students' rights.

Nevertheless, as Chief Judge Jacobs viewed it, in the circumstances of this case, his duty obliged him to resist the institutional inertia and the demands of silly plaintiff-appellants like these that he give their appeal more time than it possibly deserved. You don't win a pissing match by whirling about, adding your own piss stream to the mix, and then insisting that you're not getting as wet as the others, nor by admitting that you're wet while writing at length about how nice it would be if you were dry and how much you wish the other fellows would stop pissing. The only way to "win" a pissing match is just to jump the hell out of the spray. Only then does it make sense to comment on what you've just gotten out of. And that's what Chief Judge Jacobs did.

And the place he chose to draw the line was in reading yet another 40+ page manuscript, of the sort turned out year after year by, yes, law clerks just like the one I was in 1980-1981. Such a long opinion was barely defensible, and mostly regrettable, even back then. It's simply indefensible now, and from down here in the real world, I applaud Chief Judge Jacobs for saying so — even at the cost of what may have been some "collegiality" with his brethren.

-------------------

UPDATE (Sat Jul 14 @ wee small hours): Prof. Bainbridge and I are in substantial accord, and both join in Chief Judge Jacobs' dissent, with due respect to Prof. Bainbridge's colleague Prof. Volokh. Ted Frank on Overlawyered cites Prof. B and Chief Judge Jacobs with approval, but he's pretty low-keyed in his mockery. Ted quotes another paragraph from the dissent that contains a phrase with a deliciously studied ambiguity (emphasis mine):

This prolonged litigation has already cost the school a lot of money that could better have been spent to enrich course offerings or expand student day-care. If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars.

And see also Above the Law, whose headline notes that Chief Judge Jacobs is obviously "not running for student body president," and whose text aptly urges you to read Chief Judge Jacobs' entire opinion so that you may "absorb the entire spectacle of a full-blown student government p*ssing match in which the stakes could hardly be lower." The comments there are pretty funny too.

-------------------

UPDATE (Sun Jul 15 @ 8:00pm): Prof. Althouse has a short post up about the dissent, but doesn't seem to me to either directly approve or disapprove of it. I've also put up a new post in response to a comment below from my friend Patterico.

Dean Barnett fouls a pitch off his foot in trying to tag lawyers with their clients' views

Former Soxblogger Dean Barnett is a bright guy. None of us gets a hit with every at-bat, but Dean usually avoids fouling pitches painfully off his own feet — which makes it surprising to read something from him that's as profoundly misinformed or ill-conceived as this (emphasis mine):

This week, Fred’s non-campaign made a seamless transition from smooth to bumpy, and his team has looked decidedly not-ready-for-primetime. The story about who he represented as a lawyer and lobbyist resonates. The dodge that lawyers/lobbyists don’t need to share the views of their clients and shouldn’t be held responsible for them is a pile of hooey. Each lawyer, like every other member of society, is the conservator of his own talent. If a lawyer chooses to use his talents to try to spring Khalid Sheikh Muhammad, perhaps other lawyers will salute him and see nothing wrong with the effort. But I know and you know that said lawyer wouldn’t have much of a political career in front of him.

If I were a general contractor and profited from building a Planned Parenthood facility, I don’t imagine that fact would endear me to America’s conservative community. If I sought office as a conservative Republican, I would expect my primary opponent to make an issue of it. Lawyers want to play by a different set of rules, and in the eyes of their fellow members of the Bar, they do. But the rest of the country won’t buy it, nor should they.

Putting aside his criticisms of the Thompson organization's oblique responses to the underlying criticisms (which may or may not have been politically deft and astute), I hope that Dean's naïveté about the unfairness of painting lawyers with their clients' positions comes from the fact that he's never had legal troubles of his own, nor had to put himself in the position of those who do.

General contractors are honorable tradesmen, and I don't mean to disparage or understate the degree of judgment and skill that can distinguish one from another. Just like every other businessman, they certainly should operate within a framework of general business ethics. To my knowledge, however, they do not operate within a system of fiduciary responsibilities in which they agree to be bound to put their customers' interests ahead of their own. (That's one reason why they have "customers" instead of "clients," in the common vernacular.) When one chooses general contracting as a profession, one does not commit to help ensure that constitutionally adequate buildings are available even to the blackest and most evil members of society. Nor does the contractor appear as the public face of his customer, acting on his behalf, speaking out for him in public at the very time when the customer is under the most intense public scrutiny. And while a general contractor's work may determine whether your home or business falls down when the wind blows or leaks when the rain falls, it generally won't determine whether you spend years in prison or get a lethal injection. Dean's oversimplifications notwithstanding, there are excellent reasons why the rules are, and should be, different for lawyers and contractors.

*******

Early in my career, I spent many hundreds of hours representing a convicted capital murderer — the getaway driver on an intended empty-home burglary gone bad in which, while he waited unknowingly outside, his fellow felons had executed a Montgomery County juvenile officer with his own gun in front of his wife and children. I undertook the case at the specific request of a Fifth Circuit judge who discerned, correctly, that the legal issues involved were very important ones, and that the state of the Fifth Circuit's precedents on them was badly muddled — all of which meant that for the good of the entire judicial system, this man needed a first-rate constitutional lawyer to advocate his position.

The work was entirely pro bono, and the firm with which I was then employed — Houston-based Baker Botts — cheerfully ate all of those lost billable hours, along with thousands of dollars in out-of-pocket expenses. My client wasn't as depraved as his accomplices, but neither was he anything approaching innocent; and under any view of the facts, he was vastly more culpable than someone arguing about what may or may not be discussed during counseling on contraceptives!

When I was done with his representation (after two Fifth Circuit decisions with an intervening evidentiary hearing in federal district court), I was proud of the commendation I received from the court and of the service that I had performed to the Rule of Law. I had done my duty to my client, but not out of love for or identification with my client, and certainly not because I approve of cop-killers. As it happened, he ended up serving something over six years, which I thought was at least roughly appropriate, and which the State agreed to accept in lieu of re-trying him when I succeeded in having his original conviction overturned. (Of my client's two cohorts, one was executed by lethal injection, and the other was slain in the midst of another violent crime.)

So tell me, Dean — does that case disqualify me from being a "good conservative"?

*******

Just as we have ethical obligations to attempt to put personal feelings about a client aside, both for the good of that client and for the good of the system, lawyers also have ethical obligations to recognize that we are fallible human beings who sometimes will be unable to succeed in those attempts. If, through chance, I'd been personally acquainted with the slain juvenile officer or his family from the case I just described, then when the Fifth Circuit asked me to represent someone complicit in his execution, I'd very likely have had to decline — not because I lacked faith in the system, nor because I lacked the willingness to support it even at the cost of doing things unpleasant to me, but because I would have such a disabling conflict of interest that I could not expect myself to genuinely represent that particularly client diligently and ably. As it happened, I had no personal connection to his case; but I could still only take it because I was satisfied that I could control my personal reactions to his conduct and therefore I was satisfied that I would not unintentionally throw his case.

Drawing those lines requires a deep look by each lawyer into his own soul and character. I have colleagues whose personal histories or deeply held views are so intense that they could not, despite their best efforts, render diligent service to any defendant accused of a violent crime. Or maybe they hold such rabidly anti-abortion views that they also couldn't defend a general contractor in unrelated commercial litigation simply because that contractor had once built a building to house a Planned Parenthood clinic. I'm equally as loathe to second-guess those self-recusals as I am to second-guess someone for failing to self-recuse.

*******

Most people as smart as Dean grasp all this without much trouble. You don't have to be a lawyer to understand it, and it's frankly disingenuous to suggest that this is all some lawyer game or professional conspiracy. If you think you can't understand these principles, then try to imagine yourself in the hot seat — falsely accused, say, of being a child molester — and then decide whether you want your field of potential legal advocates reduced to those who positively approve of child molestation. What Dean refers to as Fred's "much-discussed essay on PowerLine" includes Sen. Thompson's reference to past political opponents who've badly stubbed their toes by underestimating the voting public, or overestimating their own abilities to fool the public using this kind of argument.

If you genuinely believe in the system, then you must accept that it depends on both sides in any given dispute having the benefit of capable advocates who are representing their respective clients diligently within the bounds of the law and the canons of legal ethics. You cannot dispute that principle without endorsing mob justice — which is, all too often, injustice, and which is never justice under the Rule of Law.

Does Dean realize that his argument about Khalid Sheikh Muhammad would put him right at the front of any mob opposing the Rule of Law? Is that really where he wants to make his stand? Because that's also a popular position to take in the sharia "justice system"— at least in the version favored by Khalid Sheikh Muhammad and practiced in some parts of the Islamic world.

Quite frankly, Dean should know better than this, and I suspect that he actually does (and would so acknowledge were he to give it further thought). I'm absolutely certain that his blogging host for this particular post, Hugh Hewitt, not only fully understands these principles, but has lived them and (as an accomplished legal educator) could more vividly and concisely explain them to Dean than I have.

-----------------------

UPDATE (Fri Jul 13 @ 10:35pm): I'm disappointed to read that Ramesh Ponnuru thinks the argument that a lawyer ought not be tarred with his clients' views is a "very weak argument." I'm genuinely baffled how such smart, principled pundits can have such a poor grasp of the legal system's fundamental precepts, and I genuinely do believe the rank-and-file public aren't so likely to be confused.

If your legal career has been as the general counsel of the A.C.L.U., or if you chose to devote most of your private practice to representing accused Mafia mobsters, that would be one thing. But one client, on one representation? That's so unfair as to be silly.