Sunday, October 31, 2010

Justices Still Saying No to Cameras in Courtroom

      Anyone following the contentious arguments over immigration policy is in for a real treat on Monday: a carefully organized debate, broadcast nationwide on C-SPAN (9 AM PDT), over Arizona’s controversial new law aimed at cracking down on illegal aliens.
      The participants will be two experienced lawyers: John Bouma, chairman of a big Phoenix-based law firm, representing Arizona, and Edwin Kneedler, a deputy U.S. solicitor general for the federal government. The forum will be a federal courtroom in San Francisco before a three-judge panel of the Ninth U.S. Circuit Court of Appeals.
      One month later, the U.S. Supreme Court on Dec. 8 will be the forum for a similar debate over an earlier Arizona law that seeks to raise the penalties, for workers and employers alike, of hiring undocumented aliens. On that day, however, the only members of the general public who will be able to hear the arguments in real time will have to line up hours beforehand to claim one of the coveted 300 seats inside the courtroom.
      Thirty years after the Supreme Court gave a green light to television coverage of state court trials, the court continues to close its doors to cameras. Whatever other courts may think about this no-longer-newfangled medium, the justices will have none of it, at least not yet.
      The resistance continues despite the justices’ awareness of the interest in the issue across in the street in the U.S. Capitol. The Senate Judiciary Committee in June approved a bill (S. 446) that would require the court to allow television coverage of oral arguments. A companion resolution (S. Res. 339), approved by the same, bipartisan 13-6 vote, would skirt separation-of-power issues by expressing “the sense of the Senate” that the court should allow TV coverage.
      Both measures were sponsored by Sen. Arlen Specter, the Pennsylvania Republican-turned-Democrat now in the final months of his 30 years in the Senate. Specter has been dogged on the issue for years and has raised it at confirmation hearings for Supreme Court nominees.
      With their confirmations at stake, Supreme Court nominees profess open-mindedness on the subject. “I don’t have a set view on that,” the future chief justice, John G. Roberts Jr., told Specter during his confirmation hearing in September 2005. “It’s something that I would want to the listen to the views of — if I were confirmed — to my colleagues.”
      Less than a year later, however, Roberts had listened to his camera-shy colleagues and come around. “There’s a concern about the impact of television on the institution,” Roberts said in July 2006 to a conference of federal judges. “We’re going to be very careful before we do anything that might have an adverse impact.”
      In fact, the justices are not unanimous on the subject. Stephen G. Breyer says cameras will “inevitably” come to the court. Like Breyer, two other justices — Samuel A. Alito Jr. and Sonia Sotomayor — supported television coverage when they were serving on federal appeals courts.
      The newest justice, Elena Kagan, voiced enthusiastic support for the idea in her confirmation hearing in June. “I think it would be a terrific thing to have cameras in the courtroom,” Kagan said. “When you see what happens there, it's an inspiring sight.”
      With David H. Souter gone — he promised that television cameras would come in over his dead body — the avowed opponents on the court number three: Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. Kennedy fears some unstated negative effect on the court’s “dynamic.” Thomas too says it would be bad for the court without saying how. For his part, Scalia simply mocks the idea of open government by saying that the court’s arguments should not become fodder for “entertainment.”
      Despite those views, the court opened the term with what seemed to be a major step into media sunshine. The court announced that audio recordings of oral arguments would now be available on the court’s Web site by the end of the argument week. Previously, recordings were available only through the National Archives after the end of the term.
      The move turned out, however, to be a head-fake. Without saying so, the justices at the same time discarded the practice of making arguments in major cases available on the same day. That practice, which originated with Bush v. Gore in 2000, had allowed radio and TV news outlets to air expanded, same-day coverage of big cases just when the public was paying close attention.
      Ostensibly, the justices wanted to skirt the problem of deciding which cases warranted same-day release. The effect, however, has been to eliminate any news media interest in excerpting arguments a few days after. One suspects that at least some of the justices are pleased with that result.
      With a lame-duck congressional session approaching, a coalition of open-access groups led by the American Civil Liberties Union is urging Congress to move on the issue after the election. “Allowing cameras to broadcast Supreme Court arguments will bring a crucial part of our government’s proceedings to the vast majority of the American public for the first time,” says Michael Macleod-Ball, the ACLU’s legislative chief of staff and First Amendment counsel. With many other issues demanding lawmakers’ attention, however, the prospects for action this year seem very slim.

Sunday, October 24, 2010

Remembrances of Things Past, Best Forgotten

      “The past is never forgotten; it’s never even past.”
— William Faulkner

      Clarence Thomas is a Supreme Court justice with a long, but selective, memory. Apparently, the same is true of his wife, Virginia Thomas, who made front-page news this month not only as a Republican/Tea Party activist but also as a loyal spouse seeking vindication for her husband nearly two decades after accusations of sexual harassment nearly derailed his appointment to the high court.
      In interviews and in his memoir, My Grandfather’s Son, Justice Thomas can recall slights as far back as his childhood. But he conveniently forgets the role that his unappreciated Yale law degree and the Republican Party’s racial politics played in advancing his career from Senate staffer to head of the Equal Employment Opportunity Commission (EEOC) and eventually as the second African American to serve on the Supreme Court.
      Similarly, Ginni Thomas apparently still feels the pain from having listened in October 1991 to law professor Anita Hill accuse her husband of sexual harassment while she worked for him at the EEOC. But in her bizarre voice mail message this month [Oct. 9] asking Hill to recant, Ginni Thomas conveniently forgets that Hill’s accusation before the Senate Judiciary Committee was buttressed by significant, if admittedly circumstantial, corroborating evidence.
      The recapitulation of evidence by two reporters-turned-columnists who covered the hearing — Ruth Marcus of the Washington Post and Bloomberg’s Ann Woolner — provides a good reminder that this is no “he said, she said” swearing contest. Yes, as Marcus writes, only Thomas and Hill can know “the full truth” of what happened between them. But Marcus and Woolner both make clear that this is a “he said, they said” swearing contest with the weight of the evidence supporting Hill’s explosive accusation.
      Hill, then in her mid-30s at the University of Oklahoma’s College of Law and now at Brandeis University, had more to lose than to gain from coming forward, reluctantly, with her allegations against Thomas after the presumed close of his confirmation hearing. Under oath, she testified that while working as Thomas’s assistant at the EEOC, he made a variety of sexually provocative and tasteless remarks to her, including the infamous reference to a pubic hair in a Coke can. Thomas, also under oath, vehemently denied the allegations and provocatively labeled himself as the victim of a “high-tech lynching.”
      Thomas’s supporters then and now point to the difficulty of proving a negative. It was also difficult, of course, for Hill to prove an affirmative about events that only the two of them witnessed. But corroborating evidence was in fact produced. Two of Hill’s friends, Ellen Wells and Susan Hoerchner, testified that Hill told them about the alleged sexual harassment in 1982. John Carr, a boyfriend in a long-distance relationship in 1983, also testified that Hill told him of the alleged conduct. And Joel Paul, a law professor at American University, testified that when the school was recruiting Hill in 1987, she cited sexual harassment as the reason for her resignation from the EEOC.
      As Woolner points out, prosecutors often use evidence of “outcry” to support rape accusations in a criminal case. In addition, another of Thomas’s employees at EEOC, press secretary Angela Wright, told the Senate staff that he had pressured her for dates, to the point of an uninvited late-night appearance at her apartment. She did not testify publicly because the then-Senate Judiciary Committee Chairman Joe Biden limited testimony to Thomas’s conduct in the workplace. Biden also ruled out as an invasion of privacy any evidence about Thomas’s reported interest in pornography.
      As Marcus recounts, journalist-authors found more supporting evidence afterward. Jane Mayer (now at the New Yorker) and Jill Abramson (now news managing editor of the New York Times) include in their book, Strange Justice, accounts from two others at the EEOC of similar pubic hair/Coke can remarks. In their biography, Supreme Discomfort, the Washington Post’s Kevin Merida and Michael Fletcher quote a college classmate of Thomas’s as describing “an almost identical episode.”
      History must judge the episode as inconclusive. Thomas won confirmation, with several pivotal senators saying before the 52-48 vote that they had to disregard the allegations as unproven. With interest renewed by Ginni Thomas’s phone call, however, one more corroborating witness has emerged. Lillian McEwen, a now retired government lawyer who dated Thomas for five years in the 1980s, told the Washington Post that Thomas constantly sized up female employees as “potential partners.” In the interview and in a forthcoming memoir, McEwen also describes Thomas as avidly interest in pornography.
      Ginni Thomas has previously called on Hill in interviews to recant and apologize, but the phone message at Hill's office unnerved her enough to turn it over to campus police. Ginni Thomas’s motivation is unknown, beyond her stated belief that it was time for Hill to pray about doing the right thing; she reportedly canceled some scheduled media interviews last week, avoiding questions. In his memoir three years ago, Justice Thomas again denied wrongdoing and depicted the accusations as a politically motivated attack on him as a black conservative.
      Hill and many of us who covered the hearing believe with her that she has nothing to apologize for. Hill’s supporters have been forced to get past it, but for Clarence and Ginni Thomas the past is not forgotten; it is not even past.

Monday, October 18, 2010

Lady Justice’s Blind Eye Toward Prosecutorial Misconduct

      Tea Party types who want to strike a blow against governmental abuse and constitutional violations need not travel to Washington, D.C., to find a target for their protests. They can go instead to the nearest state or federal courthouse, where prosecutors are quite likely to be committing negligent mistakes or willful misconduct far more often than commonly acknowledged.
      The incidence of prosecutorial misconduct is unknown and unknowable. Even more than police, prosecutors commit their wrongdoing — most commonly, withholding evidence from defense lawyers — behind closed doors. This much is known: The few offending prosecutors who are caught are rarely punished in any meaningful way.
      These conclusions reflect long-held beliefs among defense lawyers, civil libertarians and many criminal justice experts. They gain confirmation now from two critical studies: a six-month investigative project covering federal prosecutors by USA Today and a decade-long review of state cases in California by the Northern California Innocence Project at Santa Clara University Law School. Both find statistical evidence of prosecutorial wrongdoing, often linked to wrongful convictions, with hardly any of the errant D.A.’s suffering any form of punishment.
      The two studies were published in September just as the U.S. Supreme Court was preparing to hear arguments in a notorious case of prosecutorial misconduct, Connick v. Thompson. John Thompson spent 14 years on death row in a Louisiana prison — and came within hours of execution — for a murder that he did not commit. He was convicted in part because a prosecutor knowingly withheld crucial evidence from the defense lawyer, evidence that the prosecutor was ethically and legally obliged to turn over.
      Now freed from prison, Thompson wants some compensation for the years of freedom that the criminal justice system wrongfully took from him. But the Supreme Court has made it virtually impossible to sue an individual prosecutor. Prosecutors are immune for any official actions directly related to a criminal trial. In any event, the trial prosecutor, who surreptitiously removed forensic evidence from the storage room, died a few years back. He had confessed his misconduct to a colleague, but had taken no other action to right his wrong.
      With personal liability foreclosed, Thompson instead is trying to hold the New Orleans district attorney’s office itself responsible for failing to train assistant D.A.’s properly about the so-called Brady rule. The rule, established by the Supreme Court in Brady v. Maryland (1963), requires prosecutors to turn over any potentially exculpatory evidence to the defense.
      Thompson’s federal civil rights lawsuit runs into an obstacle. The Supreme Court's decision in another case, Monell v. Dep’t of Social Services of New York (1978), allows a municipality to be held liable for a constitutional violation by one of its officials only if the plaintiff proves “deliberate indifference” on the municipality’s part. In Supreme Court arguments on Oct. 6, the justices got tied up in knots over the question of whether a single egregious instance could show “deliberate indifference.” They also pressed the former inmate’s lawyer to specify exactly what training the district attorney’s office should have been required to provide to new prosecutors.
      Legally, it may be a close case. In real-world terms, it is not. New Orleans’ longtime district attorney, Harry Connick Sr., appears to have fostered a lopsided attitude toward Brady in the office: Disclose nothing unless you absolutely have to; don’t worry about being called on the carpet for withholding. The training manual for the office actually misstated the Brady rule.
      Impunity for Brady violations and other prosecutorial misconduct appears to be the rule in other jurisdictions. In the USA Today package, reporters Brad Heath and Kevin McCoy documented 201 federal criminal cases since 1997 in which judges “blasted prosecutors for ‘flagrant’ or ‘outrageous’ misconduct” such as “hiding evidence,” “lying to judges or juries,” or breaking plea bargains. (Disclosure: Heath is a former student of mine at Georgetown University Law Center.)
      The Justice Department’s internal watchdog investigates such cases: 42 in 2001, 61 last year. But the department refuses, on privacy grounds, to say whether any of the prosecutors was punished. Using state bar records, however, Heath and McCoy found that since 2001 only one federal prosecutor has been suspended even temporarily from law practice because of misconduct. In the flagrant example they used to start the story, the federal prosecutor who concealed unfavorable information about the government’s major witnesses got a slap on the wrist: a one-day training session on ethics.
      In the California study, the Santa Clara law school project combed state appellate court decisions from 1997 through 2009 and identified 707 cases in which courts “explicitly found that prosecutors committed misconduct.” The vast majority of convictions (548) were nevertheless upheld: no harm, no foul, apparently.
      More troublingly, an examination of state bar records found public disciplinary actions against only 10 state prosecutors during the period, only six of them for trial-related violations. As Professor Kathleen Ridolfi and visiting journalist Maurice Possley conclude, judges, prosecutors, and the California State Bar are “casting a blind eye to prosecutors who place their thumbs on the scales of justice.”
      The Supreme Court could play a role in changing the lax attitude toward errant prosecutors, but the justices’ questions in Thompson’s case point in the opposite direction. One more sign of the justices’ solicitude toward government attorneys came today (Oct. 18) when they agreed to hear former Attorney General John Ashcroft’s appeal in a case, Ashcroft v. Al-Kidd, testing whether he can be held individually liable for alleged misuse of the federal material witness statute during the post-9/11 roundup of hundreds of wrongfully accused individuals.

Wednesday, October 13, 2010

No First Amendment Exception for Military Funerals

      A cardinal tenet of First Amendment law teaches that any regulation of speech or the press is likely to deter some forms of expression on the legal side of the restriction. This “chilling effect” requires that executive officials, legislative bodies, and, above all, courts take care to regulate First Amendment-protected expression only with lines that are either so clear or so stringent that speakers will not risk punishment by accidentally straying across them.
      Supreme Court justices seemed to have forgotten this teaching during parts of the arguments last week (Oct. 6) in the case that pits the family of a deceased U.S. serviceman against the pastor and other members of the fundamentalist Westboro Baptist Church of Topeka, Kan. Driven by the emotions of the case, the justices appeared to be looking for a way to rule against the Rev. Fred Phelps and his family member congregants for demonstrating at Matthew Snyder’s funeral to voice their belief that U.S. war deaths are divine punishment for America’s tolerance of homosexuality.
      Snyder’s father, Albert, won an $11 million award from a federal court jury in a suit against Phelps and his church for, among other claims, intentional infliction of emotional distress. The judge cut the award down to $5 million, including $2.9 million in punitive damages, but the federal appeals court in Richmond, Va., threw the case out on First Amendment grounds.
      Hearing Snyder’s appeal, the justices left no doubt about their disgust with Phelps’ tactics. They recoiled at Phelps’ targeting of a Marine killed at age 20 in Iraq only to be vilified at his funeral as an evil doer. “God hates you,” one of the Phelps’ signs read. Another: “You’re going to hell.”
      The Supreme Court’s rule in the case, however, will be the rule not only for the Westboro Baptist Church but also for other unpopular speakers in the future. As Phelps’ lawyer-daughter Margey Phelps put it, Snyder was asking to punish the Phelps’ “little church” because “they came forth with some preaching that [he] didn’t like.”
      The court faced an analogous situation some 50 years ago when Alabama courts were using libel suits by public officials to punish civil rights groups and national news media for agitating or writing about conditions in the racially segregated South. The New York Times faced so many trumped-up libel suits in Alabama that the newspaper pulled its reporters from the state for a while to avoid being served with papers in the cases.
      The Supreme Court stopped the litigation-driven intimidation in its tracks with one of its most important First Amendment rulings ever: New York Times v. Sullivan. Under the ruling as later expanded, a public official or public figure can recover damages for libel only if the defendant published or uttered a false, defamatory statement knowing that it was false or with reckless disregard as to its truth or falsity. That strict rule, the justices said, was necessary to afford the breathing space that the First Amendment requires.
      The temptation in Snyder’s case, of course, is to think that military funerals could be carved out as one small exception to what the court in Times v. Sullivan called the “profound national commitment” to “uninhibited” debate on public issues. The actual facts in Snyder’s case belie that solution, however. Albert Snyder did not actually read any of the signs at the funeral, in part because Phelps’ group was standing 1,000 feet away from the entrance to the church — as approved by the local police. Phelps actually read the signs only afterward; it was also afterward that he saw the Phelps’ Internet production that depicted Matthew Snyder as having been raised in a godless home.
      Even if the facts supported the jury’s verdict, however, the military-funeral exception is one the First Amendment cannot comfortably countenance. Anti-war activists might choose to protest at military funerals that service members are dying in vain in an unjust war. Free speech would suffer if the courts were free to punish such a protest because the message is upsetting to the survivors. Justices complained to Margey Phelps that other venues were available for the church’s protest and that the funeral was picked solely to maximize publicity. As Phelps aptly responded, all speakers want maximum exposure for their message — and are entitled to seek just that.
      In her questioning, Justice Elena Kagan, the court’s newest member, emphasized the inevitable subjectiveness of the tort of intentional infliction of emotional distress. As one of the elements, the plaintiff must prove “outrageousness” on the defendant’s part. That ill-defined term would invite jurors to impose liability on speakers simply because they dislike the speaker’s point of view.
      The law is not powerless to protect the sensitivities of the families of the fallen. Maryland’s legislature is one of many that have enacted laws requiring protesters to keep a minimum distance away from a military funeral. As long as the speech-free zone is not too extensive, those are probably constitutional. Targeted, individual stalking also may be punishable either civilly or even criminally. But the ruling that punishes the Phelpses today may punish more worthy speakers tomorrow. As Justice Oliver Wendell Holmes Jr. put it 80 years ago, the First Amendment requires “freedom for the thought that we hate.”

Sunday, October 3, 2010

The Liberal Lions Who Overstayed Their Welcome

      Brennan and Marshall. Their names were linked while on the Supreme Court and remain lastingly connected years after their deaths. William J. Brennan Jr., the affable Irishman and architect of the Warren Court’s most important decisions. Thurgood Marshall, the gruff African American crusader against racial segregation and first of his race on the Supreme Court.
      Democratic presidential contenders — Al Gore in 2000, Barack Obama in 2008 — cited Brennan and Marshall as the models for their possible Supreme Court nominees. Liberal advocates regularly lament the lack of a comparable liberal on the court today.
      Marshall’s work in directing the litigation strategy leading up to Brown v. Board of Education has already been lionized in several creditable biographies. Brennan’s life and work are now being told in a new, exhaustive biography: Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermeil. (Disclosure: Stern, a Congressional Quarterly reporter, and Wermeil, a professor at American University’s Washington College of Law, are colleagues and friends.)
      The Brennan biography, written by Stern and based on Wermeil’s extensive interviews with the justice and access to his voluminous files, is touching off a new round of debate over the Warren Court’s burst of liberal activism from the late 1950s until Warren’s retirement in 1969. Today’s conservatives answer criticism of the Roberts Court’s reversals of precedent by likening them to the Warren Court’s.
      The comparisons are inapt, as this biography makes clear. With Brennan the mastermind behind the scenes, the Warren Court overturned old and poorly reasoned precedents that had allowed systematic injustices to go uncorrected. No one today would seriously argue against the decision in Baker v. Carr (1963) to use federal judicial power to establish the “one person, one vote” principle in legislative redistricting or the ruling in Gideon v. Wainwright (1962) to require appointment of counsel for indigent defendants in state criminal cases.
      History has already judged those rulings and many other activist decisions of the Warren era as both necessary and beneficial. Eight months after the Roberts Court’s ruling in Citizens United, it is reasonable to predict that history’s judgment on freeing corporations to spend unlimited sums in political campaigns will be, at best, ambiguous.
      The Brennan biography, however, supports a different line of criticism of both him and his fellow liberal Marshall. Both justices arguably stayed on the court too long.
      By the mid-1970s, Brennan the private conciliator was becoming the public scold. His dissents were becoming, as he acknowledged later, “much too sharp and acid.” For years, Brennan had made a point of taking new justices under his wing — helping orient them and laying the groundwork for gentle persuasion in future cases. But not long after Sandra Day O’Connor joined the court in 1981, Brennan made the unseemly and unwise decision to mock one of her early opinions in his dissent.
      As for Marshall, Brennan privately considered his performance a disappointment. “What the hell happened when he came on the Court, I’m not sure,” Brennan is quoted as saying, “but he doesn’t seem to have had the same interest.” As with Brennan’s dissents, Marshall was an occasional scold in the justices’ internal deliberations — sometimes addressing his colleagues as “massa” in a deep slave dialect, according to the book.
      Both men had health problems in the late 1970s, but both chose to stay on the bench. Brennan was persuaded in part by his family, who wondered what he would do with himself in retirement. Although unmentioned in the book, Marshall is famously reported to have bluntly rebuffed an inquiry from the Carter White House about his possible departure.
      With a Democrat in the White House and a Democratic majority in the Senate, either or both of the justices might have retired with an expectation of a compatible successor. Both stayed on for a combination of personal and institutional reasons; their contributions over the next decade are in some sense negligible. Brennan lived long enough to see his successor, David H. Souter, emerge as an often likeminded justice; Marshall regretted his successor, Clarence Thomas.
      The episodes buttress the arguments made for the proposal to modify justices’ tenure by limiting their active service on the court to 18 years. As previously suggested here (“Supreme Court Tenure: Too Much of a Good Thing?,” March 2, 2009), the proposal would promote healthy turnover at the court and defuse confirmation battles somewhat by reducing the stakes (the risks) of each new appointment. Despite support from a range of legal experts, however, the proposal is a dead letter politically. Neither party wants to give up the chance for a president to appoint a justice — a Roberts or a Kagan — who can serve for decades.
      In his farewell letter this year, John Paul Stevens offered a mild apology to his fellow justices for his 34-year tenure. “If I have overstayed my welcome,” he wrote, “it is because this is such a wonderful and unique job.” Stevens was both sharp and collegial to the end, but his example is the proverbial exception that proves the rule. Age and wisdom may sometimes go hand in hand, but sometimes the better part of wisdom may be recognizing when they do not.