by: Don Samuel
In the previous post, I copied David Markus's argument (printed in the Washington Post) in favor of a prompt dismissal of the Flynn indictment. I disagree. Here are my reasons:
I have some disagreements with David Markus’s post (or maybe “disagreements” is not the right word; maybe I should say that the relationship between the judiciary and the parties is more complicated than he portrays). There are various times that a judge rejects an agreement between the parties. Most notably at sentencing. If, as David suggests, the judge is only on the bench to adjudicate disputes between the parties, then why do judges routinely reject agreements as to sentences? Why are “binding pleas” so rare in federal court. If two lawyers, both of sound mind and discretion have reached an agreement regarding how a dispute should be resolved, then the judge should just say, “thank you” and go back to chambers. But that is not what happens. There are other contexts in which the court does more than just resolve disputes between two parties – that is, when judges reject agreements – such as tolling the speedy trial clock for the “ends of justice.” Why do these things occur? Because judges have a duty to the public to ensure once the court’s jurisdiction is invoked, the proceedings thereafter meet certain standards that are in the public interest, not just the procedures, but also the outcomes. The public has a right to know; the public has a right to understand; the public has a right to be protected (from dangerous people and from dangerous prosecutors who need to be exposed).
I don’t know what Judge Sullivan will ultimately decide. But as a member of the public, I want to know what happened. I don’t trust the current attorney general to provide an accurate dispassionate explanation; I very much trusted the former Administration’s AG and the prosecutors who initiated this case. I don’t trust the defense lawyer in this case (the defense lawyer has no duty to me to be honest, of course). David and I both know that 99% of the time, the court will permit a dismissal pursuant to Rule 48. And that is because there is a good reason to dismiss the case. But I don’t know if there is a good reason in this case. And as a member of the public, I want to know. I want to know if the prior DOJ is as diabolical as Trump portrays ("ObamaGate" he is screaming), or not. (I think I know the answer, but I would like there to be a public answer, not AG Barr’s unreliable and dishonest claims). In the end, perhaps it is right to dismiss the case. But not because the judge is powerless to ask “why?”
David Markus Urges Court to Promptly Permit the Dismissal of Flynn indictment -- Don Samuel Disagrees
by: Don Samuel -- David Markus
There are very few criminal defense lawyers who I admire more than David Markus in Miami. His blog is inspirational. So is his intellect and fierce advocacy. He has written an opinion piece in the Washington Post expressing his view that the judge in DC should promptly permit the dismissal of the Flynn indictment. I am reprinting David's argument below. But I disagree with his conclusion. In the next post, I will explain the basis for my disagreement. Here is David's argument:
U.S. District Judge Emmet G. Sullivan on Tuesday took action to delay the Justice Department’s move to drop charges against former national security adviser Michael Flynn. Sullivan says he expects legal experts and independent groups to weigh in on the department’s decision not to prosecute Flynn for lying to the FBI.
The judge’s ruling was a mistake: He should have immediately dismissed the case. Sullivan certainly should not heed those urging him to deny the Justice Department motion, which would force prosecutors and Flynn to a sentencing hearing or a trial that neither party wants. John Gleeson, a former judge, and two others thoughtfully argued this week that Sullivan should do just that. And on the heels of that opinion, Sullivan has appointed Gleeson to argue against the motion to dismiss and to explore whether Flynn should be held in contempt.
Judges, though, have no special interest in forcing prosecutors to prosecute. The nation’s court system is meant to adjudicate disputes between parties and to protect defendants from overreaching prosecutors. It is an adversary system, meaning that each side is responsible for presenting its own case.
In the case under discussion, the dispute was initiated by the federal government against Flynn. The charge was fairly limited as far as federal prosecutions go, a sole count of making a false statement, which carries a maximum five-year sentence (low by federal standards). Flynn had pleaded guilty to this charge and the prosecution had asked for no jail time.
But Flynn later filed a motion to vacate that plea agreement based on a number of arguments, including that recently disclosed documents show his innocence. After those documents came to light, the Justice Department filed its motion to dismiss. Because that ends the parties’ dispute and because granting the dismissal does not implicate the defendant’s rights, Sullivan should have simply granted the motion without further action.
Instead, now he has appointed a former prosecutor and judge to formally oppose the dismissal and intends to hear from third parties about the government’s decision to dismiss. That sets a dangerous precedent. Do we want judges asking prosecutors about the reasons for dismissal in an ordinary case or going so far as to appoint special prosecutors when a coequal branch has declined a case? There is simply no legal basis to get into the reason why the case is being dropped, even if it appears the reason was political.
Those arguing for Sullivan to force prosecutors and Flynn into a sentencing hearing say that because Flynn already had been adjudicated guilty, the judge should not dismiss the case. Like 90 percent of federal defendants, however, Flynn pleaded guilty instead of proceeding to trial. And not only that, but he agreed to waive his right to appeal, to waive any constitutional defects to his conviction and to become a government informant.
Defendants give in to those demands in the federal system because of the inordinate power that prosecutors have to influence a defendant’s ultimate sentence. If Flynn, who has no criminal record and the ability to hire good lawyers, would sign a deal such as this, imagine the pressure exerted on less-powerful defendants to give up all their rights. The reality is that deals like this are commonly signed in federal courts by the innocent as well as the guilty.
The critical question is not Flynn’s guilt or innocence. The point is that both sides want to vacate his plea deal and dismiss the charges. And no jury ever considered evidence of Flynn’s guilt. The only time that judges should weigh in on prosecutorial decision-making is when the executive branch overreaches in a case. In other words, the judiciary is meant to act as a check on prosecutorial power and to protect defendants, not to act as a check on prosecutors being too lenient.
Consider a recent Justice Department attempt in California to force a defendant to waive his right to later ask for compassionate release. In that case, Allan Funez Osorto and the Justice Department executed a plea agreement in which Osorto agreed not to ask Judge Charles Breyer for compassionate release for 180 days, even though the statute only requires waiting for 30 days.
Breyer rejected the deal, saying, “It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table.”
The judge added that if a defendant doesn’t take an offered deal, “he does so at his peril,” because “on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on.” Breyer was right to check the government’s immense power, and Sullivan would be wrong to compel them to use it.
In the Flynn case, critics of the attorney general’s decision to drop the prosecution say it was likely political. They may be right. But those political issues will play out with the American public. The legal question is pretty straightforward. The Justice Department brought the case. It’s the department’s prerogative to drop the case, especially where Flynn also wants to vacate his guilty plea. That’s how the adversary system works.
Non-Delegation: Who is Actually Writing Criminal Laws and Defining the Elements of Crimes? More Often Than Not, It Is Not The Elected Legislators
by: Guest Blogger BRUCE HARVEY
The unfortunate reality is that we do, indeed, live in a regulatory society. There are fifty volumes of the CFR encompassing some 170,000 pages of federal regulations, covering over 90,000 federal regulations just since 1995.[i] Don’t think they don’t apply to the criminal defense bar, because they do – in every area from environmental regulations to designer drugs.[ii] Several prominent examples should bring this home to all of us. First, the Federal Government has been regularly prosecuting licensed medical doctors (and pharmacists) for being “drug dealers in white coats” based primarily on 21 CFR 1306.04 which prohibits doctors from prescribing controlled substances unless it is for a “legitimate medical purpose” that comes within the “usual course” of medical practice. See, e.g. United States v. Azmat, 805 F.3d 1018 (11th Cir. 2015); United States v. Feldman, 936 F.3d 1288 (11th Cir. 2019). So, now the DEA and the executive branch get to determine, in the first instance, whether a licensed medical doctor is “legitimate” or not.
Likewise, it is the State Board of Pharmacy that is delegated to “add substances to or reschedule all substances” listed in the Georgia Controlled Substances Act. O.C.G.A. §16-13-22(a). This is done through the Administrative Procedures Act in Chapter 13 of Title 50 of the Georgia Code. Id. Examples abound.
These regulations have traditionally been viewed as carrying the full force and effect of law. See Chevron USA, Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 843-44 (1984) (“Chevron”); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979). See also PDK Labs, Inc. v. DEA, 438 F.3d 1184, 1185 (DC Cir. 2006). This much is granted. But have recent decisions sounded the death knell for Chevron deference and the revival of the nondelegation doctrine? Let’s examine.
The Constitution confers the legislative power on Congress. See, Article I, Sec. I, and Sec. 8. Thus, according to the Supreme Court, the nondelegation doctrine forbids Congress from delegating its Article I powers to administrative agencies. See Wayman v. Southard, 23 U.S. 1 (1825). However, that principle is observed more in the breach than in the observance. Since 1935, the Court has consistently affirmed the constitutionality of statutes delegating regulatory powers to agencies.[iii] So, the current reality is that although the Constitution confers the power on Congress, Congress does not make most laws. Instead Congress delegates the power to make laws to administrative agencies.[iv] There is then, virtually no limits on Congress’s ability to delegate lawmaking power to agencies.[v] So, why should we raise this now?
Last year the Court revisited the nondelegation principle in a criminal case. A fractured Court ultimately decided both to uphold the delegation and not to modify the current status of the nondelegation doctrine. But, the opinions strongly hinted that the Court will revisit the doctrine in the future. Justice Kagan’s opinion reaffirming the current doctrine garnered only four votes. Justice Gorsuch’s opinion excoriating the current doctrine as unconstitutional had three votes.[vii] Justice Alito’s concurring opinion explicitly indicated his willingness to revisit the doctrine in a future case: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Id. at 2131
Justice Kavanaugh did not participate in Gundy. However, in a later case, Paul v. United States, 140 S. Ct. 342 (2019), he wrote separately in a denial of certiorari with the express purpose of noting that, “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.”
There it is – the necessary missing vote. Gundy is a classic example of how the make-up of the Court – and the extensive analysis of the nondelegation doctrine in Gundy – lead to an uncertain result hinging squarely on “further consideration in future cases”. With all the analysis in Gundy, none of the opinions addressed whether delegation ought to be assessed differently when the scope of the delegation involves the power to determine what is criminal and what is not.[viii]
That omission is striking because there are many reasons to think that the power to delegate is – and should be – different when it comes to criminal law. Indeed, in previous opinions the Court had explicitly acknowledged the possibility that a different test ought to apply to delegation involving criminal laws. See Touby v. United States, 500 U.S. 160, 165-166 (1991). See also Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 734 (6th Cir. 2013)(Sutton, J. concurring).
A full discussion of the reasons to treat criminal cases differently is beyond the scope of what we can do in a blog post. But a number of legal doctrines distinguish criminal laws from other laws. Examples include:
The vagueness doctrine: See Dimya, 138 S. Ct. 1204 @1212 (stating that the vagueness doctrine is “a corollary of the separation of powers – requiring that Congress rather than the executive branch or judicial branch define what conduct is sanctionable and what is not”);
The rule of lenity: An adjunct to the vagueness doctrine, statutes that delegate criminal rulemaking authority invariably contain ambiguities. But agencies cannot make policy decisions without discretion. What happens then, is a delegating statute sets out goals through an ambiguous statute and leaves it to the agency to decide the rules to implement the goals.
My concern is this. It has always seemed surreal to combine executive and legislative powers. That is, the same institution both writes and enforces the law. Criminal laws are the means by which the government deprives its citizens of liberty. Obviously, the executive branch has the exclusive power to enforce the criminal laws. Congress can dictate what is illegal through legislation, but it cannot enforce the law. The toothless nondelegation doctrine collapses that constitutional wall and allows the executive branch to both make and enforce the law. This is, and has been, a titanic struggle between individual right and liberty and structural protections. We know what side we are on.
[i] For example, in 2016 Congress passed 214 Public Laws, and agencies implemented 3,853 rules and regulations!
[ii] There are, of course, many lists of bizarre federal crimes, many of which are strict liability offenses. I recently read that it is a federal crime “to make an unreasonable gesture to a passing horse” in a National Park. The Author asks, how does the horse determine the reasonableness of the gesture? See Chase How to Become a Federal Criminal, Atria Books, 2019.
[iii] See Barizai, Delegation and Interpretive Discretion, 133 Harv. L. Rev. 164 (2019).
[iv] Indeed, the delegation may be to a “coordinate Branch[es’]” which, in turn, delegates the Legislative task to an administrative agency. See Mistretta v. United States, 448 U.S. 361, 372 (1989) (upholding the Sentencing Reform Act, which delegated to the Sentencing Commission the authority to set binding sentencing guidelines).
[v] The Court has upheld the constitutionality of such delegations as long as Congress provides an “intelligible principle” that guides the exercise of delegated authority. See Whitman v. AM Trucking Ass’n, 531 U.S. at 457, 473.
[vi] Sex Offender Registration and Notification Act.
[vii] Id. at 2131 (Gorsuch, J., dissenting) joined by CJ Roberts and Justice Thomas.
[viii] See Barkow, Separation of Powers and Criminal Law, 58 Stan L. Rev. 989 (2006) (arguing that other administrative law doctrines should apply differently to criminal laws).
by: Guest Blogger, Rafe Banks
Some quick random thoughts prompted by Lawrence Zimmerman’s blog post. Lawrence’s use of the term “grinding wheels” really struck home with me.
I don’t represent as many minorities as a lot of lawyers but I do see a lot of clients who, through circumstance or frankly their own actions, are being ground down by the wheels of the criminal justice system.
Although I come from a relatively affluent background in a small southern town and had a stellar education, I feel for these people. Sometimes you look at a situation and say, “That’s just unfair. I need to help.” For those individuals I can take on a pro bono (or reduced fee) case to assist. Fortunately, I have partners in the law firm that willingly allow me this privilege. But pushing back against the grinding wheels is an uphill battle.
On occasion, I will run across a prosecutor who recognizes unfairness or the downward spiral the system itself creates. Probation. Violation of probation. Jail. Violation of probation again. PDC, etc. I was a prosecutor many years ago and I hope I was able then to see unfairness and the traps the system sets for people. Those prosecutors exist and I salute them - but they are the exception rather than the rule.
Judges. Just as with prosecutors, on occasion I will come across a judge that clearly recognizes unfairness and attempts to do the right thing. Where there is the will there is a way. Unfortunately again, this is the exception rather than the rule. People get plugged into a pre-existing matrix because we have to move our cases along.
However, even with all of it faults and inconsistencies, we still have the finest system in the world and I am proud to do my little part each day.
by: Guest Blogger Lawrence Zimmerman
A video shot from a cell phone captures the sickening moment of another young black man gunned down on the streets of America. Ahmaud Arbery clearly should be alive today, his birthday. Nobody deserves death, even if it is justified. In America, death is not confined to this video. Our culture is a violent one - just flip open your laptop and click on any news website. A free press is vital to our survival as a democracy, but the telling of these stories should be based on vetted facts. Richard Jewell just rebounded into our collective consciousness with a book and a movie, a timely reminder to journalists to report facts accurately.
As criminal defense lawyers, we represent all kinds of people. In my career I have represented a convicted Al Qaeda terrorist, an avowed neo-Nazi, a death penalty case involving the killing of a ninety-year old woman, a confessed murderer of two innocent teenage children. Of course, I have also represented many innocent people including someone who absolutely did not burn a highway bridge down while the media reported that he did.
Have I lost some friends representing the “worst” in society? Yes. Truthfully, I am glad those “friends” walked away and stopped returning my calls since I refuse to maintain a friendship with anyone who lacks moral courage. Our job is not for the faint of heart, which is what drives me to get out of bed every day, or truthfully, what often keeps me under the covers. Thankfully, inspiration is in abundance looking at history and other lawyers who have fought for their clients while the public castigated them. Whether it is Gerry Spence fighting for Randy Weaver’s life against the FBI, Edward Bennett Williams fighting for and acquitting Jimmy Hoffa, or Bryan Stevenson fighting to exonerate Walter McMillan, all of us are inspired by their bravery to fight for the accused. My dear friend. criminal defense lawyer Mike Jacobs, is so inspired that he has the dream of one day only representing the most “heinous” in society. Trust me, Mike is not in it for fame, he is an introvert. Recently, he agreed to take on a death penalty case for a nominal fee because he clearly believes in the cause and his client’s case. It is my understanding Bruce Harvey, of “Contemporary Law Blog” fame, would do the same. So would so many other GACDL members as well as criminal defense lawyers throughout America.
Yet, why do some of our colleagues say “Constitution be damned” in this case? Our rights are not dependent on the nature of the allegation. The presumption of innocence is not a sliding scale. It is an immovable rock designed to protect the least of us, the wickedest of us, the best of us, the richest and the poorest. However, I think I know why cases like this one bother my colleagues and it causes conflict in both their hearts and minds. I have been ruminating on this the last few days.
While we are criminal defense lawyers, in our blood we are really civil rights lawyers and whether you lived the movement or just read about it like me, it inspired all of us to take up this part of the law and fight for justice. We were inspired by protests, we were inspired by the nonviolent movement: the bus boycotts, the sit-ins at lunch counters, Medgar Evers, Schwerner, Cheney, Goodman. We are inspired by the lawyers at the Southern Center for Human Rights who toil year after year to fight injustice and cruelty – even for the felons who are in prison for heinous crimes. We read “To Kill A Mockingbird” over and over and still cried when Tom Robinson was murdered for the color of his skin. We have all experienced to a similar degree Atticus’s pain and suffering.
We are all Atticus Finch, Clarence Darrow, RBG, Gareth Peirce (Gerry Conlon), Thurgood Marshall, Robert Jackson, John Adams combined. We represent in our practices a large share of minorities, observe their struggles, the injustices they face, the institutional racism that still defines the American justice system. Clients come to our office with the last of their savings begging us to save them from the brutal machinery that is the State’s wheels of injustice. We lose sleep nights on end, drive to court on two hours of sleep just so we can stop those grinding wheels of injustice. And many, many, many times, sadly, we watch them run over by the machine and all we can do is pack up our briefcase, walk out of the courthouse and drive home and try to sleep it off. It can take weeks for the sadness to leave us or even years. The trauma may leave our bodies, but you know what I mean when I say, it never leaves our soul.
Yes, we as criminal defense lawyers know all too well the inequities faced by minorities caught up in the system. So when we see a black man gunned down, it reminds us of our clients who did nothing wrong but yet were pulled over. We know as Jewish lawyers that expression on a judge’s face in a rural court when we announce our names, hear the comments made, or that uncomfortable time when opposing counsel discusses the New Testament when you just met; we are innately aware of the prejudice and it is not only confined to a small town. We hear judges in the big city make offhand ignorant remarks in open court or in chambers that make us shudder. In many of our cases, we stand shoulder-to-shoulder with the civil rights activists who are now out protesting in Brunswick. Lots of times we are asked by those same activists to take on a case for free. We have seen many people exonerated from death row which confirms in our minds, without a doubt, that innocent people have been executed. Innocent people executed for crimes they did not commit. Go read “Just Mercy,” or save time and watch the movie. It was not one hundred years ago when minorities were framed or lynched; 1987 was only thirty-three years ago. We are aware a quality lawyer can mean the literal difference between life and death.
But we also represent people who are not heroes. We represent people who are not oppressed. We represent people who are not championed by civil rights groups. I am thinking of my friends, Don Samuel and Amanda Clark Palmer, who represented the police officer in Dekalb County who was charged with murdering the naked unarmed African American who was suffering mental illness. Their client was not a hero; he was not a minority who suffered from decades of mistreatment. Yet, their task as criminal defense attorneys was to fight for their client, regardless of the civil rights protestors who were on the courthouse steps every day, crying for vengeance, demanding the “justice” that the protestors believed was warranted in that case.
When we hear of a case such as Ahmaud’s, it roils us emotionally and we get angered by the outward appearance of an unseemly prosecutor covering for a former police officer and we are angered because our clients end up arrested for much less. It is all of these factors, all of these emotions that make some of our colleagues cheer for an arrest and prosecution because we have the front row seats to watch the worst of the abuses in our justice system.
Understanding these powerful emotions is important and recognizing them allows us to reconcile both viewpoints while still holding onto our core belief about the presumption of innocence. In all of our trials we beg the jury to remember the presumption of innocence from the moment they are empaneled until the moment that foreperson stands up - for what seems like an eternity - to read the verdict form. Two men have been arrested and for our system to stay secure and keep working, these men deserve that presumption of innocence or we really do not believe what we sell. And the presumption of innocence and the necessitating of not making snap judgments, even after seeing a video or reading a newspaper article, applies regardless of whether the defendant is black or white, young or old, Muslim or Jewish or Catholic; and regardless of the ethnicity of the victim.
We have a duty to educate the public when we can and not allow the media machine to cloud the public’s view of the trial process - with their instinct to condemn, convict and move on to another story. By failing to give these men accused of heinous crimes a fair trial, we will deprive the community of the justice that was already denied Arbery. Despite the clamor of the rightfully outraged public for a rush to judgment it is our job to uphold the Constitution. And it may take time.
Surrebuttal: Lawrence Zimmerman Contributes to the Discussion Regarding the Future of Calendar Calls.
by: GUEST BLOGGER, Lawrence Zimmerman
LZ has requested permission to file a surrebuttal to the dialogue between Scott Key and Don Samuel, concerning the future of calendar calls. Permission Granted.
Surrebuttal to Don’s Response About Cattle Calls
I love court but I hate driving to court. I hate it when it is cold, and especially cold and rainy. I hate driving in traffic, and unless I am headed north, there is always traffic coming from Marietta. I love court, but I hate the process of getting to and through and out of court.
While traveling to court in the winter is not great, going to court in the summer is infinitely worse, while I am out sweating to death in a suit, my family is still home sleeping - it is summertime. A linen suit would be much better but does not seem appropriate at the courthouse unless I am in Miami - then a Panama hat would also be fitting, along with a nice pair of sunglasses, if only I had the head and face for that look. The only positive aspect of traveling to court in the summer is that there is much less traffic on the road, everyone is at home sleeping like my family.
On the drive to court, I know where I am going but always have my car GPS activated along with my Apple maps simultaneously running. I always think I left early enough but my arrival time on both of my maps is saying I am due to arrive thirty minutes after my hearing is to start. I need to speed up; however, there is traffic and speeding up is not a possibility. I call my office to ask my paralegal to call the judge to let them know I am stuck in traffic, and I have taken pictures at mile marker 252 with a time-stamp, not to mention my MileIQ App which tracks my mileage and shows the exact times I depart my house. I think to myself, “I will show the judge the map, the picture at mile marker 252 on Interstate 75 South (Northside Drive) and my MileIQ App that proves I left my house two hours early for what is normally a thirty-minute ride.”
Once I get through all the usual obstacles, the hassles, the near collisions on the highway, and the nonstop panic attacks thinking about being late to court and a holding cell, I get off the exit only to discover I cannot find any parking, and of course this is exactly when I realize that drinking six cups of coffee on the drive was a bad idea.
When I finally find a parking spot close to the courthouse, it requires me to pay twenty-five dollars. On days I drink too much coffee, I will pay anything to park close to the courthouse. When I get to the courthouse security line, I hate court even more. I must take my belt off, my watch, and sometimes my shoes and jacket. I then must get dressed again, which makes me think I should next time pack a suitcase and just get fully dressed instead at the courthouse bathroom or phone booth like Clark Kent, since I am in court to save the day, except there are no more phone booths. Finally, once I get through the line, I hurriedly get dressed, barely put my belt on, take care of the “coffee issue” and go find the courtroom. I am outside of the courtroom, there are ninety people, the doors are closed, and everyone looks confused. Outside the courtroom, an agitated deputy with bulging muscles will step in front of me ordering me to produce my bar card for admission. When I ultimately get through the doors of the courtroom, I am told that the judge cancelled court late yesterday and decided nobody needed to be notified.
I see my friend Don Samuel talking to the police officer in my case, laughing it up. I am not sure I like that but whatever works for Don if they are not laughing it up about my client’s case. Certainly, Don is not educating him on how to be a better witness. Don is not that good of a guy, right?
I love seeing my friends at court, it reminds me of why I loved high school, seeing everyone in the hallways and slapping hands, pre-COVID-19 of course. Court is good for me since I am an extrovert, but bad for my time management skills. I will linger all day speaking to everyone. As we move to more videoconferencing, we will be able to still see our friends and have more time for each other by avoiding the endless car journeys and never-ending security lines. We can have more lunches together, be more efficient, and there will still be times when we must appear. Besides, we will always have our GACDL conferences to attend.
by: Don Samuel
This morning, the Supreme Court unanimously – not even a concurring opinion – reversed the Bridgegate convictions. You will remember that in this case, the defendants shut down several lanes of traffic coming to the George Washington Bridge causing a massive traffic jam in Fort Lee, NJ, as “payback” for the mayor’s refusal to support Governor Christie.
As discussed in our earlier blog post, the problem was simple: bad behavior, even corrupt behavior, on the part of public officials is not a federal crime and it is not mail or wire fraud unless the officials take property or money. The Bridgegate defendants did not “take” the lanes of traffic. They did not take money. Rather, as Justice Kagan wrote, the conduct of the defendants resulted in “Drivers from Fort Lee [getting] two fewer lanes while drivers from nearby highways [got] two more. The [defendants] did so, according to all the Government’s evidence, for bad reasons; and they did so by resorting to lies. But still, what they did was alter a regulatory decision about the toll plaza’s use—in effect, about which drivers had a “license” to use which lanes. And under Cleveland, that run-of-the-mine exercise of regulatory power cannot count as the taking of property.”
by: GUEST BLOGGER Nick Lotito
NOTE: In his efforts to cope with sheltering in place, Nick Lotito has been submitting daily posts on Facebook. He dubbed these The Corona Monologues and was at CM 43 at last count. These are some excerpts which he authorized this Blog to reprint:
Waffle Houses are opening today, perhaps a vestige of the same old idiocy. Shouldn't we stay scattered, not smothered? By waffling, we run the risk of being fried. This is not over easy.
This reminds me very little of another random thought with a tenuous link to technology. I still write serious letters for work, but letters, in general, have been run out of town by emails. What effect will this have in years to come. I still have a box of love letters somewhere. Don't think I ever received a love email, certainly don't have any saved. What about songs? "Get me a ticket on an airplane....my baby she wrote me an email." And how do you give an email to a postman, let alone mark it "special d?" Love emails in the sand? C'mon. Letters also had principles, they weren't phishy. Of course, these posts are essentially bulk emails, so never mind.
While I admire all healthcare workers for what they are currently doing, this reminds me of the medical practitioner who had sex with a patient. Part of his conscience said, "don't be so hard on yourself. You're not the first doctor who had sex with a patient." Another part said, "You sick bastard, you're a veterinarian."
About a week or so ago, Meredith and I spoke w/ Bobby Lee Cook who is sheltering at his beautiful Italian style villa on the brow of the mountain in Cloudland, Ga, a sort of high brow response to covid. Cook is 93 and a legend in criminal defense. The show Matlock was inspired by his incredibly successful law practice. He remarked that this is the first time in his life he has felt "completely helpless." Long ago, he lied about his age to enter the Navy, and he then fought in the Pacific theater. He has been a man of action, used to attacking problems head on. Many of us, particularly, lawyers, are problem solvers. You assess the problem and take action. This "problem" is unlike others that lend themselves to that approach. It is invisible, potentially deadly and no one has an actual answer. Cook's comment of helplessness is profound in its simplicity, and it stuck with me. It helps explain some of the protests to sheltering. I think people feel an innate need to do something, and it is frustrating, not that I agree with their actions.
Moving from this serious vein, I am not sure it explains all protests. For example, plastic surgeons are rebelling. They claim the emphasis on flattening the curve is ruining their practices. Consumer product companies are suffering. With social distancing, sales of deodorant, perfume, cologne and similar products are non-essential services. Deodorant manufacturers, in particular, are up in arms over this. Contact tracing is vigorously opposed by drug dealers. It does appear that for every action, there indeed is an equal and opposite reaction after all.
With the blurring of time, I failed to focus on yesterday being Jackie Robinson Day. During a regular season, on April 15, all players wear #42. Vin Scully tells a story about the Dodgers playing in Cincinnati. Jackie received a death threat that he would be shot on the field if he played. He received a number of these. In a pregame meeting, Gene Hermanski, an outfielder said, "I got it! We can all wear #42." Of course, the numbers wouldn't hide skin color, but the thought resonates today. We're all in this together. We all may have some limits on whom we would take a bullet for, but our natural tendency, with notable exceptions, i.e., you know who [Hocus Potus], is to look out for one another. I have always found friends of mine have generally liked other friends when they happen to meet. I take comfort in this, knowing friends make life so much richer. Imagine how much more oppressive this would be w/o FB and Zoom. Meanwhile, Jackie played that day in Cincinnati. Hermanski's 1947 idea eventually took shape years later w/ all players wearing #42. Jackie was one of my heroes. He did more to advance civil rights than many appreciate. Today, he would encourage others to stay home. He stole it 20 times.
by: Don Samuel
A response to Scott Key
Nobody would doubt that calendar calls are terribly inefficient. Traveling to Gwinnett County then waiting for an hour to announce, “Still waiting on Crime Lab report, please put on next calendar,” and then high-tailing it to Henry County to announce, “Need to schedule a discovery compliance hearing,” and then back to Fulton County – all of this is frustrating. And if a brief is due in the Court of Appeals, the quality of the brief will suffer because of the lost time driving on the downtown connector, to say nothing of standing in security lines and sitting in the jury box, watching other lawyers announce, “Still waiting on Crime Lab report.”
So, Scott Key is right: the courts need to learn from the covid-19 experience that we can be more efficient and accomplish a substantial amount of work in 5 minutes, rather than 5 hours (and possibly reduce the pollution that is caused by our endless driving, too).
But I will miss calendar calls. I will miss seeing friends, prosecutors and defense attorneys, the court’s staff, the deputies and bailiffs, the court reporters and the police officers that congregate at these cattle calls. I will miss sitting in the jury box and talking with another lawyer about her case (not just the missing crime lab report) and learning about a tactic she is using that would work in one of my cases, too. I will miss being able to talk to a younger lawyer who is about to announce, “Waiting for a Crime Lab report” and suggesting to him, “Why don’t you insist that the prosecution is the cause of the delay and should be barred from introducing the evidence?” and then watching the ensuing event unfold as the judge looks at the ADA disapprovingly and the evidence is then tossed.
I will miss sitting in the jury box and talking to a police officer about the case (not mine) that has led her to stumble into court after a ten-hour shift. We talk for a while and make fun of the ADA, the defense lawyer in her case, the judge – and a few months later, when I have a case in which that officer is the one who made the arrest, guess what? She remembers our ten minute “date” and we laugh again and then she tells me everything I need to know about my new case in which she is the adversary. She trusts me, I trust her. Never would have happened without that calendar call where we met.
I will miss seeing grumpy judges at the calendar calls. Though when the judge calls me up to the bench and asks, “How is your family?” or “I haven’t seen Ed in a while, how’s he doing?” I realize the judge is a human being who also needs the human interaction.
If I never have to appear on another Zoom call, it will be too soon. I want to see my colleagues and friends and adversaries. I want to stand in line and tell the same joke with the security guard at the metal detector I have been telling for five years. I want to eat some of the terrible food in the cafeteria and drink the coffee that is worse than the brew you get at the convenience store. I want to look around the courtroom when somebody’s phone starts ringing and remember the times it was my phone (“I am sure I turned it off; it must have turned itself back on when the ADA was pushing past me when we were standing in line outside” – that’s the lie I tell the judge). I want to hear a lawyer tell me a war story that is obviously embellished to the point of absurdity.
Ok, I agree that I am not looking forward to the downtown connector. You got me there.
by: GUEST BLOGGER SCOTT KEY
CoVid-19 and the Opportunity to Move Courts Forward
The CoVid 19 crisis, for all of the tragedy and devastation it has brought, has given the court system the push it needed to handle its business more efficiently. If the judges handle things well they will not go back fully to the ways of operating that existed before the virus. In what follows, I will discuss things that are working to make litigation less costly, the courts more available and open to the public, and more efficient through the use of video conferencing. But first a brief history discussion.
The Antiquated Circuit System
The court system as we know it was perfectly innovative for its time— the eighteen and nineteenth century. Before the automobile and even in the automobile era, the local courthouse served as a staging area for court. But the court was a traveling show. One need only read a biography of Lincoln to learn how much sense it made for the lawyers, judges, clerks, and bailiffs to travel throughout a region to hold court on tour. Such a system ensured that transportation costs did pose an insurmountable barrier to meaningful access to the courts. In an era of transportation challenges, the circuit system was the most efficient available model.
Even in an era when an automobile is inexpensive enough to be available to every household, the circuit system no doubt had its utility. However, in an era when video conferencing technology is available essentially for free to everyone with a phone, the circuit system for court is strikingly outdated. If we were building a court system from the ground up today, it likely would not require hundreds of people to be screened through a metal detector, the transportation of inmates to a holding area, and for hundreds of people to be packed into a crowded courtroom to do things like say, "not guilty has been entered,” or “we are asking that this matter be continued until the next trial calendar.”
And yet the way we do court is still based on a system that was in place for the level of technology available when Lincoln was practicing law. We no longer need our judges to ride a circuit.
Matters Easily Handled by Video Conference
When virtually the entire nation was put on quarantine, nearly any parent with school-aged children learned practically overnight to use applications such as Zoom. And so did the Courts. In April of 2020, the Georgia Supreme Court made history when it held two days of oral argument entirely by Zoom. The process went seamlessly. And a case could be made that the level of argument was made better for it. Oral argument has been described as an enlightened conversation among scholarly colleagues. Via a Zoom, with the lawyers and justices joining from their offices, the argument seemed somehow more intimate and less theatrical than in a courtroom with the performers on stage. The highest court in Georgia, in a matter of weeks, figured out how to conduct its important business by Zoom.
What we have learned is that non-evidentiary hearings are perfect for video conferencing. Video conferencing is also perfectly suited for routine housekeeping matters such as scheduling, announcements, and the enforcement of deadlines for things such as the entry of a plea. For civil matters, at least, even evidentiary matters could be handled over video.
Surely They Won’t Make us Go Back
Before the emergency order was put in place, court was set up in a way that seemed to maximize inconvenience. At the average arraignment and pretrial calendar, chaos reigns. Lawyers and parties sit around for hours and await their moment (sometimes that moment is less than a minute), to announce something to a judge or for a motion that takes maybe fifteen minutes to handle. And for all of that, an entire docket’s worth of people are brought into the room to wait their turn. The real fun begins when a lawyer has a conflict of several such matters in various counties to dispose of. The lawyer performs a mini-circuit, sometimes driving hundreds of miles in a day. And if the lawyer cannot make it to all scheduled appearances, then the client waits all day. The missed day of work, the childcare expense, the stress of being in court, amounts to no forward progress in the case. And for the client who is paying the lawyer by the hour, the meter is running for at least part of the lawyer’s drive to the courthouse.
A Matter of Incentives
It does not escape my notice that there is a perverse method to the madness. Much of the inconvenience is by design. Judges often pack in all the mandatory calendars in an effort to force matters to resolve by attrition. Miss enough work, pay enough for childcare, go through enough stress, and parties will be willing to do anything, including plead guilty to a crime, to avoid another court appearance. Such a system brings disproportionate weight upon the working poor, particularly the hourly wage earner.
However, if the goal behind all the coercion is to move the docket in an expeditious manner, then an efficient case management system that allows the attorneys and parties to appear without the need for travel and the expense of the full courthouse security apparatus, would achieve that goal better. And courts can still enter scheduling orders, mandating things such as deadlines for motions and for acceptance of a negotiated plea — using the power of the court to move cases forward toward resolution.
A system that uses video technology can produce other benefits as well, such as a more public court system. There has been a trend in moving courts to the inside of jails and prisons. Many criminal and habeas proceedings take place jailhouse courtrooms. Such places are either intimidating for the public to enter or have limited seating. And even the biggest courtroom can only hold so many people. And while trials are certainly broadcast live, in an era of video technology, the public could watch virtually any courtroom proceeding— not just the most salacious murder trials.
Some Modest Proposals
Arraignments, calendar calls, and non-evidentiary motions should, by default, be set up via video conferencing. Evidentiary proceedings in civil and criminal motions should be by video conferencing if all parties agree to handle matters that way. Jury trials remain in the category of proceedings that should be handled in person— particularly given current caselaw around the Confrontation Clause. Oral argument in appellate cases should be done by video conferencing upon order of the Court or upon agreement by the parties.
The recent Co-Vid Crisis has taken away the biggest impediment to a widespread change in how we do court— the objection that we’ve never done it that way before. When the crisis is finally in the rearview mirror, we should take away a more sensible and efficient manner of handling court. It is worth mentioning that such a system would greatly improve the quality of life for attorneys and make the delivery of legal services more affordable to the public. It would be nice to handle court from the office, from home, or from practically anywhere in the world, with less time driving and more time available to devote to the actual handling of cases.