Thomas C. Brandstrader Chicago Criminal Defense Attorney
He didn’t laugh at lawyer jokes
He didn’t laugh at lawyer jokes
By Peter S. Stamatis
Last month, this column lamented the current state of American politics, a blood-sport that seems to attract mostly people who are not qualified for positions of public trust, characters oftentimes more interested in celebrity or power rather than self-sacrifice and service.
When the wrong people, again and again, are put into leadership positions and make the decisions and policies the rest of us are bound to live by, bad things inevitably happen — taxes go up to pay for pet projects used to ensure re-election; kickbacks are paid; bribes are accepted; contracts are rigged; nepotism becomes the norm; etc.
In other words, it’s garbage in, garbage out. So it’s no surprise that politicians today enjoy some of the lowest approval ratings ever. This week alone, RealClearPolitics.com, which averages the country’s major political polls, showed a national congressional disapproval rating of just over 76 percent.
So what really are the effects of, time and time again, putting the wrong people into such important positions? Generally speaking, it is the consistent directing of our society towards its fall.
Merely by way of example, consider for a moment our nation’s financial mess. With the exception of several years during the Clinton administration (Democrat President, Republican Congress), our elected officials have consistently spent more than they have taken in each year. And those deficits have added, year after year, to the national debt, a number which currently sits just shy of $13 trillion, a staggering and incomprehensible figure. How long can we go on like this?
Another way our society is harmed is through relentless swipes at the legal profession. We have all heard these people claim again and again, and in one lame platitude after another, how lawyers are a scourge upon our society. In recent years, lawyers have been blamed for everything from doctors leaving the practice of medicine, to excessive insurance premiums, to high jury verdicts (as if the defendants who have been ordered to pay them were unrepresented and blameless victims). One of the more popular and offensive canards is that lawyers clog our courts day in day out with “frivolous lawsuits.” Is a “frivolous lawsuit practice” really a popular and profitable business model?
All too often, we lawyers stand by and allow these prevarications to be emitted into the public consciousness. And while it certainly harms our reputations, it harms our nation’s legal system even more, the indispensable place where over disputes are peacefully resolved. Our inaction amounts to what Cicero called in his “De Officiis, On Moral Duties,” the great fault of “passive injustice,” remaining silent because of our own interests or inattention.
So we shrug off lawyer jokes when what we should be doing is getting more involved, using our skills and training to boil down problems and direct our fellow-citizens towards solutions. I recently heard one caller on a talk show say that lawyers were the “problem” with government, that because we bill by the hour, we have been trained to perpetuate problems, not to solve them. A ridiculous statement to which no one responded.
So it’s time to step it up. We should treat over-reaching attacks upon attorneys as what they are, attacks upon our judicial system. Consider the late Francis A. Nolan. I had the privilege, for a time, to be Frank’s mentee. He was one of the best criminal trial attorneys to grace the courtrooms of Illinois. A former Cook County state’s attorney and the son of a courtroom clerk in Brooklyn, Frank was the gentleman’s gentleman. He was eloquent in a 1940s sort of way; he cared about his clients and he loved, I mean loved, our profession.
Frank wasn’t a litigator — he was a trial lawyer. And boy, he was as brilliant at it as he was proud of it. He tried more cases than he could count. He could pick a jury, deliver an opening statement, conduct direct and cross examinations, and then close like no one else. Clients and their families came to him when they were in trouble, real trouble. And he gave them comfort and then he gave it his all. He cared for his clients in a way that showed only the utmost esteem for our profession.
Frank never laughed at lawyer jokes. He didn’t think they were funny, but even more so, he didn’t want to dignify them. Frank used to talk about how after he was diagnosed with Hodgkin’s lymphoma, the lawyers in his life answered the call. When he was undergoing chemo and radiation therapies and was too tired to work and said he “looked like something from outer space,” he proudly told me about how his landlords, lawyers mind you, waived his rent; and how his friends, lawyers as well, not only covered his cases and court appearances, but continued referring him cases, kept him in the loop, took control of the wheel when he couldn’t. “Lawyers are some of the best people I know. I love being a lawyer. I’m proud to be a lawyer.” He said these kinds of things over and over.
So what about us? Should we lawyers continue to remain quiet pawns to the self-serving ends of others? Should we continue to allow politicians to transform the term “trial lawyer” into an epithet, as if lawyers who try cases are the cause of society’s ills? On the contrary, perhaps we should follow Frank’s example and remember what a privilege it is to be a lawyer, to eschew mocking it and to respond when an unjustified criticism is launched.
After all, as the judicial systems’ caretakers, isn’t it our job to protect it?
Good Article on Difficult subject…
Stephen I. Vladeck (American University – Washington College of Law) has posted Terrorism Trials and the Article III Courts after Abu Ali (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
To say that it is difficult to divorce the debate over the suitability of trying terrorism suspects in the Article III courts from the politics of the moment would be an epic understatement. Especially in light of the Obama Administration’s decisions to (1) try the “9/11 defendants” in the civilian courts and (2) subject Umar Farouk Abdulmutallab to civilian – rather than military – jurisdiction, recent months have witnessed a renewed barrage of objections to subjecting such extraordinary cases to the ordinary processes of our criminal justice system. These critiques have included claims that such trials make the city in which they occur a target for future attacks; that they provide the defendants with a platform from which to spew anti-American propaganda; that they risk publicly revealing information about intelligence sources and methods; that they are enormously costly both with regard to the security measures they require and the judicial resources they consume; and, most substantively, that they put pressure on the courts to sanction exceptional departures from procedural or evidentiary norms that will eventually become settled as the rule – what we might characterize as either a “distortion effect” or a “seepage problem.”
Although these arguments are not new, they do raise fundamental questions about whether the civilian courts are able effectively to function in certain high-profile terrorism cases and to balance the rights of the defendants with the very real practical, logistical, and substantive difficulties that such prosecutions tend to raise. And while any number of groups have attempted to answer these questions at the macro level, there have been few concerted studies of individual trials. This symposium article attempts a different approach, focusing on the specific procedural and evidentiary issues confronted in one of the more legally significant of the post-September 11 criminal prosecutions completed as of this Article – the trial of Ahmed Omar Abu Ali.
As this article suggests, Abu Ali is a microcosm both of the unique difficulties these cases present and the ways in which such issues have generally been resolved by federal trial judges exercising creativity and flexibility. Moreover, Abu Ali provides particular proof of the extent to which advancements in courtroom technology may well mitigate at least some of the practical obstacles that courts face in transnational terrorism cases. Finally, whatever difficulties Abu Ali may have presented for the civilian criminal justice system, it is not at all clear why the same difficulties wouldn’t also be present had Abu Ali been tried in a military commission. The claimed errors at trial that were analyzed by the Fourth Circuit were all constitutionally grounded, and there is little in the way of precedent for the proposition that either the Fifth Amendment’s privilege against self-incrimination or the Sixth Amendment’s right to confrontation have less force before a military tribunal – especially where the defendant is a U.S. citizen.
To be sure, like this Article’s conclusions, its aim is modest. There are a host of reasons why it would be wrong to draw sweeping lessons from the story of one particular case, no matter how significant that one case may be. In addition, even an assessment just of the Abu Ali litigation is lacking for any appreciation of the myriad problems that government or defense counsel likely encountered behind the scenes; the story told here is one reconstructed entirely from the public record, a record that could also be read with a far more skeptical eye. Nevertheless, my hope is that a candid discussion of the Abu Ali litigation – including its triumphs and its shortcomings – will add meaningful substantive content to a conversation that, for the moment, seems awash in unsubstantiated (and largely partisan) rhetoric.
Hit the delete button…..because….
Ari B. Fontecchio has posted Suspicionless Laptop Searches Under the Border Search Doctrine: The Fourth Amendment Exception that Swallows Your Laptop on SSRN. Here is the abstract:
The Department of Homeland Security recently set forth a new policy allowing suspicionless searches of the data inside the laptops of international travelers upon entry into the United States. The government has justified these searches under the border search and special needs doctrines, which render constitutional any “routine” search performed at the international border. The logic behind the special needs doctrine is that the government can operate outside the traditional confines of the Fourth Amendment because there is something “special” about the border. However, where data is concerned, the special needs and border search doctrines do not apply, because data travels electronically via cyberspace, not through the United States’ physical borders such as airports and highways. Therefore, the government has no special need to search data at these physical borders separate and apart from searching data in computers already inside the country. In fact, suspicionless data searches compromise border security by allowing officers to engage in time-consuming data searches instead of preventing the entry of weapons that can cause immediate harm. Since such data searches hurt rather than help to achieve border security, the government’s interest in performing suspicionless data searches at the border does not outweigh an individual’s interest in privacy. On balance, an individual’s privacy interests should prevail. Consequently, the Policy allowing suspicionless searches of laptop data violates the Fourth Amendment.
April 20, 2010 | Permalink
ON Justice Ginsburg…
Slobogin on Justice Ginsburg’s Gradualism in Criminal Procedure
Christopher Slobogin (Vanderbilt University – School of Law) has posted Justice Ginsburg’s Gradualism in Criminal Procedure (Ohio State Law Journal, Vol. 70, No. 4, p. 870, 2009) on SSRN. Here is the abstract:
This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she has exhibited in other areas of the law – involving incremental steps rather than sweeping pronouncements – is apparent in this area as well. After describing in some detail the major trends in Justice Ginsburg’s voting patterns in criminal procedure cases, the article investigates the effects of this gradualist approach in the Fourth Amendment area, focusing in particular on her decision-making in drug testing and car stop cases.
Do what I say not what I do….
Notable comment on sentencing from Chief Justice of the United States ……Tony Mauro in this post at The BLT has this remarkable sentencing-significant snippet from Chief Justice Roberts’ comments yesterday when speaking to a law school crowd in Indiana
Trial judging: Asked by a trial judge in
the audience if he would consider presiding
over a trial in federal court, Roberts said
flatly, but with a smile, “I wouldn’t do it
in a million years.” Roberts explained that
his predecessor William Rehnquist once
presided over a trial in Virginia while a
justice, only to have the U.S. Court of
Appeals for the 4th Circuit reverse him in
an unsigned opinion. Roberts added that
from his appellate experience with
sentencing issues and mandatory minimum
sentences, he would find sentencing in a
criminal case particularly distasteful. “I
wouldn’t like doing it,” he said with a
frown.
April 8, 2010 in Who Sentences? | Permalink |
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Supreme Court Justice John Paul Stevens retiring
By MARK SHERMAN
Associated Press Writer
WASHINGTON (AP) — Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, is retiring. President Barack Obama now has his second high court opening to fill.
Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed “well in advance of the commencement of the court’s next term.”
Stevens’ announcement leaves ample time for the White House to settle on a successor and for Senate Democrats, who control a 59-vote majority, to hold confirmation hearings and a vote before the court’s next term begins in October. Republicans have not ruled out attempts to delay confirmation.
Stevens’ announcement had been hinted at for months. It comes 11 days before his 90th birthday.
Throughout his tenure, which began after President Gerald Ford nominated him in 1975, Stevens usually sided with the court’s liberal bloc in the most contentious cases – those involving abortion, criminal law, civil rights and church-state relations. He led the dissenters as well in the case of Bush v. Gore that sealed President George W. Bush’s election in 2000.
Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Obama’s presidency.
Obama planned to address Stevens’ retirement with a 1:20 p.m. EDT statement in the Rose Garden.
Chief Justice John Roberts said in a written statement that Stevens “has enriched the lives of everyone at the Court through his intellect, independence, and warm grace.”
Senate confirmations of Supreme Court justices have increasingly become political battles and this one will come amid the added heat of congressional election campaigns.
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, appealed for civility. “I hope that senators on both sides of the aisle will make this process a thoughtful and civil discourse,” Leahy said.
Looking toward those hearings, Senate Republican Leader Mitch McConnell of Kentucky said, “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law.”
Stevens informed Obama in a one-paragraph letter addressed to “My dear Mr. President.” It was delivered to the White House by court messenger at 10:30 a.m. EDT, two minutes before the court’s public announcement. The news came on a day when the court wasn’t in session.
White House counsel Bob Bauer telephoned the news to Obama on Air Force One, as he returned from a trip to Prague.
The leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, in Washington and Diane Wood, 59, in Chicago.
Stevens’ departure will not change the court’s conservative-liberal split because Obama is certain to name a liberal-leaning replacement, as he did with his first nominee, Justice Sonia Sotomayor. But the new justice is not likely to be able to match Stevens’ ability to marshal narrow majorities in big cases.
Stevens was able to draw the support of the court’s swing votes, now-retired Justice Sandra Day O’Connor and Justice Anthony Kennedy, to rein in or block some Bush administration policies, including the detention of suspected terrorists following the Sept. 11, 2001, attacks, its tilt toward protecting businesses from some lawsuits and its refusal to act against global warming.
But after the arrival of Roberts and Justice Samuel Alito, President George W. Bush’s appointees, Stevens more often was among the four liberal justices in dissent.
Stevens’ recent dissent in a major case involving campaign finance laws showed both the eloquence of his writing and, in his stumbling reading of his opinion in the courtroom, signs that his age might at long last be affecting him, though he remains an active tennis player and swimmer.
He is the court’s last World War II veteran and that experience sometimes finds its way into his writings, recently in a reference to Tokyo Rose, the English-speaking Japanese radio announcer who addressed U.S. soldiers in the Pacific.
Stevens had a reputation as a bright and independent federal appeals court judge when Ford, acting on a recommendation by Attorney General Edward Levi, nominated him to the Supreme Court.
His friendly manner of questioning lawyers who appeared before the court could not hide Stevens’ keen mind. His questions often zero in on the most telling weaknesses of a lawyer’s argument and the case’s practical effect on everyday people.
A pleasant, unassuming man, Stevens has been a prolific and lucid writer. For many years, he wrote more opinions each court term than any other justice.
Most justices let their law clerks write the first drafts of opinions, but Stevens has used his clerks as editors.
He’d write the first draft and submit it to the clerks for comment. “That’s when the real fun begins,” Stevens once told a visitor. “The give and take can get pretty fierce.”
As a result, his opinions have reflected his personal writing style – a conversational one that contrasted sharply with the dry, dull efforts of some other justices.
He had said that one sign of his time to retire would be an inability to churn out those first drafts. But he insisted in recent days that he was still writing them.
A member of a prominent and wealthy Chicago family, Stevens spoke proudly of being a Cubs fan who was at Wrigley Field for the 1932 World Series game when Babe Ruth supposedly pointed to the spot where he would hit a home run. He met many celebrities of the day when they stayed at his family’s hotel in Chicago, including aviation pioneer Amelia Earhart.
Stevens graduated from the University of Chicago. After serving in the Navy during World War II, he earned a law degree from Northwestern University, finishing first in his class. He later taught antitrust law at both schools.
In 1979, Stevens became only the second justice to divorce while serving on the court. Stevens and his first wife, Elizabeth Jane Sheeren, had four children. He later married a former Chicago neighbor, Maryan Mulholland Simon.
An avid bridge and tennis player, Stevens also is a licensed pilot. From autumn through spring, he and his wife routinely travel to his condominium in Fort Lauderdale, Fla.
“I lead an average life, just like anybody else,” Stevens once told an acquaintance. “I play bridge, play tennis, try to play better golf. I’m very comfortable here.”
Even in his late 80s, Stevens said he swam every day and continued playing tennis several times a week. He described reading legal briefs on the beach, noting his colleagues’ jealousy when in court one day he opened a brief and grains of sand spilled out.
Illinois Appeals & Post Convictions 
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