Getting Creative In Court

Lawyers, in general, write a lot in their work. I write even more, given that I specialize in appeals and other sorts of post-conviction cases. Over the two-plus decades I’ve been doing this, I like to think I’ve developed a good skill with words, with creation of sentences and paragraphs that convey meaning and argument while still being a pleasant read. The days of legal writing filled with “heretofore”s and meaningless Latin phrases (seriously, if you see any sentence with “inter alia” in it, cross it out and tell me how that sentence is any different) are long gone, thankfully.

Still, there’s only so much creativity you can squeeze into legal writing. For one thing, you’re limited by the realities of the facts in your case (particularly in an appeal) and you can’t really beef up the plot or characters of you brief to make them more persuasive. For another, you have to consider the audience. The truth of the matter is that judges (and their clerks) are busy, have countless things to read on a daily basis, and are interested in being persuaded as quickly and clearly as possible. An appellate brief is no place to play with the form of words and sentences, to be coy about meanings, or to roll out mysteries for readers to ponder.

That’s one of the reasons I started writing fiction, especially fantasy. What better escape from the horrible facts of real life cases than worlds where I get to make up anything I wanted to? Strange new worlds! Interesting creatures! Cultures and histories never before imagined! This is where my creativity gets to thrive, not in court.

Right? Maybe not, if I could draw anything beyond a stick figure.

Third Planet Sci-Fi and Fantasy Superstore is a comic book and related merchandise business in Houston. From the Google Street View image you can see that it’s a wide, one-story building next to a busy street. You may also notice that it’s next-door neighbor is a high-rise Crowne Plaza hotel that towers over the place.

Third Planet is suing its neighbors because . . . well, because there tend to be a lot of assholes staying there. According to a third (!) amended petition filed in state court, hotel guests frequently make use of the hotel’s open-air balconies and fire escape to “throw all manner of projectiles off those landings and onto Third Planet’s roof and parking lot. It goes on to describe one particular day:

On or about March 3, 2019, matters escalated to a new level of destruction. Hotel guests, residents, tenants, patrons, customers, or visitors launched at minimum fourteen large metal-canister fire extinguishers from the Hotel onto Third Planet’s roof and parking lot. The canisters landed on the roof with explosive impact. This caused significant compromise to the structural integrity of the roof. In sum, the roof was irreparably damaged.

The next paragraph simply says: “Then came the rain.”

Pretty compelling stuff, right? Nonetheless, according to the petition, the defense “has previously filed special exceptions, complaining that it could not sufficiently understand the claims and allegations against it.” So what does Third Planet’s counsel do? They write a comic book to lay out everything.

Over the next 13 pages, the comic tells the story of Third Planet, its bowling champion owner TJ Johnson, and the store’s history in Houston. As for those flying fire extinguishers? Well . . .

The whole complaint is here, with the comic part starting at page 6. It’s a bold brilliant move and, without knowing anything about the actual legal merits (property law is not my specialty), I hope Third Planet wins and wins big.

Bold as it is, Third Planet’s resort to visual aids in a pleading is not unprecedented.

A comment to the Volokh Conspiracy post that brought this to my attention pointed to an article from the ABA Journal in 2012 where a lawyer did something similar in federal court.

The case involved the United States’ antitrust complaint against numerous publishers for fixing ebook prices and an attorney wanted to file an amicus (friend of the court) brief taking issue with some of the Department of Justice’s positions. He originally filed a 24-page motion with a 29-page proposed amicus brief attached. The court said he could file an amicus brief, but it could be no longer than five pages.

Which he did, taking a more comic strip approach:

The comic complied with all the usual formatting rules for pleadings in that district (font size, margins, etc.), but that didn’t keep the US Attorneys working on the case from dealing with it without a lot of effort (and the settlement they were seeking was eventually approved). Still, it was pretty clever (you can read the whole five pages here).

Like I said, making your argument in pictures is a pretty bold gambit (easier to do when you’re not actually representing a client). If it works, it’s brilliant. If the judge takes offense, thinks somebody’s diminishing the process, it can be a disaster. Come to think of it, probably for the best that I steer my wilder impulses into fiction.

The Correct Answer Is Always “It Depends”

Law school is all about answering questions – usually when randomly questioned by a professor in front of the entire class. It can be intimidating, to say the least. So, imagine my relief/horror when one of my first-year professors explained that the correct answer to any legal question is “it depends.”

That’s not a cop out, at least for actual live legal issues (dumb stuff like this, not so much), since they turn on factual details unique to particular cases and the application of established law that is almost, but not quite, determinative. Angels may dance on the head of a pin, but lawyers play the tune.

Turns out that writing fantasy is a lot like that.

I’ve been thinking of “it depends” a lot in the discussions I see on one of the fantasy writers groups I’m on at Facebook. It’s a very helpful group of people, tightly moderated to keep it from being flooded with “buy my book!” posts. Generally, people ask good questions about writing problems, publishing options, and that kind of thing.

Lately, however, there’s been a few questions that have really rubbed me the wrong way. Not because they’re bad questions in general, but they’re odd questions to ask when you’re writing fantasy. Here’s an example:

Now, I’ve written before about research in fantasy and how helpful it can be and wondering about how border controls have worked through history is right in line with that advice. History is stranger than you might imagine and can provide great fodder for world building. The problem I have is the word “accurate.” After all, what does “accurate” mean when you’re writing fantasy? Not much. Hence, my bottom line advice:

Similarly, someone asked a question about a fundamental background piece of their world:

And, likewise, my answer:

But the one that really got me, and made me want to throw things across the room, was this one:

I didn’t answer this one, as I feared I’d be entirely too snarky. The question is just . . . odd. “Immortals” are not real. Everyone, and everything, dies. The only limit on an immortal character in a story – a classic trope for a reason – is (to quote Frank Zappa) “the imagination of the imaginer.” What possible answer could there be to a question like “can immortals have children?” Why the fuck not? Or, if you want it to be so, why not that instead?

All of this is to say that the great thing about fantasy – what really distinguishes it from its cousin science fiction – is that there are literally no limits. Whatever universe you build should make sense internally and not seem like a giant game of world building Calvinball (unless that’s the point!), but outside of that, go nuts! You don’t need for it to follow the real world or be a logical extrapolation of reality. That’s the entire point and joy of writing fantasy – the rules are yours to make.

So, next time someone asks whether they can do something particular in their fantasy story, remember there are no “yes” or “no” answers – as with the law, the right answer is always “it depends.”

On Pardons and Admissions of Guilt

I’ve almost written this post several times, but I’m only just getting around to it. I’ve gotten plenty of opportunities, at least.

Over the years, every time Trump has pardoned one of his cronies – as he recently did with Michael Flynn – one of the reactions (mostly on the left) has been that by accepting the pardon the recipient admits his guilt to whatever offense he is being pardoned for. I think this rests on a misreading of the relevant Supreme Court case. More than that, any quick thought about how pardons normally work show that one doesn’t really have anything to do with admissions of guilt at all.

The Supreme Court case at issue is Burdick v. United States, 236 U.S. 79 (1915). And to be fair, in Burdick the Court did say this, in distinguishing between pardons and legislative immunity:

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

Case closed? No quite, for two reasons. First, there is absolutely no citation to any other case or source to support the idea that accepting a pardon means confessing guilt. Second, no court, even the Supreme Court, proclaims on law in a vacuum. So what was it that was the actual issue in that case?

Burdick was the editor of a New York City newspaper that had published leaks from inside the Treasury Department. The local US Attorney convened a grand jury to investigate and called Burdick, hoping he would name his sources. Instead, Burdick invoked the Fifth Amendment and his right to remain silent. To get him to talk, the US Attorney went to President Woodrow Wilson and obtained a pardon, which would extinguish the ability of Burdick to plead the Fifth (which, coincidentally, is where Flynn is now). Burdick refused to accept the pardon, continued to refuse to testify, and was eventually convicted of contempt for doing so.

When the case reached the Supreme Court the issue was, in the Court’s words, a “narrow question, is the acceptance of a pardon necessary?” Ultimately, the Court held that it was and that the person to whom the President wants to give a pardon doesn’t have to accept it (this is one hook upon which hangs the theory that Trump cannot pardon himself). It was in discussing why someone might not accept a pardon that the Court noted that it can be perceived as an admission of guilt. Thus, what a pardon means to the person accepting it wasn’t the issue before the Court – it was whether the person could reject the pardon in the first place. To my reading, that doesn’t to a clear legal basis for saying that the acceptance of a pardon is an admission of guilt.

But beyond what Burdick actually says (and about what), the idea that parsons require admissions of guilt just doesn’t make sense in a lot of cases and would create some real perversity in other cases.

For one thing, posthumous pardons exist, though they’re rare. In 1999, Bill Clinton entered the first federal one for Henry Flipper, the first African-American to graduate from West Point. It came 118 years after Flipper’s court martial and almost 60 years after he died. Trump did something similar with heavyweight champion Jack Johnson, granting a pardon in 2018 for a bogus Mann Act conviction that occurred in 1913 – Johnson died in 1946. There are countless other examples of posthumous pardons at the state level. Needless to say, the dead cannot admit to anything (they can’t accept anything, raising questions of whether these pardons actually mean anything) or confess to a crime in order to receive pardons. Whether posthumous pardons make any kind of sense, they are a thing, and they argue against the act of pardoning involving any kind of admission of guilt.

For another thing, some pardons are issued in anticipation of prosecution, not after a conviction. The most notable example is Gerald Ford’s pardon of Richard Nixon after his resignation, not for specific crimes for which he’s already been convicted, but for any crime for which he could have been charged. Notably, while Ford apparently carried hunk of Burdick around with him as proof that an acceptance of a pardon was a confession of guilt, Nixon’s own statement accepting the pardon didn’t confess to any particular crime (although he apologized for the “anguish” his actions had caused – the prototypical “I’m sorry because you’re sad” nonpology). What would the recipient of such a pardon confess to without having been convicted of something?

A related concern is mass pardons, which cover entire classes of people and aren’t concerned with the particular facts of any one case. Such pardons include Andrew Johnson’s mass pardon of ex Confederates after the Civil War (notably, the oath required to get one was all about allegiance going forward, not confessing to past crimes) and Jimmy Carter’s pardon of Vietnam War draft evaders.

Finally, requiring those who are offered pardons to admit guilt in order to receive them would lead to perverse results. Convicted people who are actually innocent may be loath admit to something they don’t believe – that they’re guilty of a crime – in order to get a pardon. This is the same dynamic that sometimes plays out with parole boards – they want some sign that the inmate at issue is remorseful and reformed, but if you’re wrongfully convicted how can you provide that? Furthermore, the use of the pardon power to spare the innocent is, arguably, it’s primary function. Thus, when the Governor of Illinois issue a pardon to Oscar Neebe and his codefendants (convicted in 1886 for taking part in the Haymarket bombing) in 1893, because they were innocent. In 2011, the Governor of Colorado posthumously pardoned a man who had been executed in 1939 because his conviction was based on “a false and coerced confession.” Other examples of similar pardons abound. If, as we’re often told, pardons are supposed to be a kind of safety valve in the criminal justice system, to allow executives to give relief to those who did not commit the crimes of which they were convicted, reading the acceptance of a pardon to mean a confession of guilt makes no sense. Pardons, as well as commutations of sentences, are acts of executive grace, the last vestige of the absolute power once granted to kings. They can be granted for good reasons, bad reasons, or no reason at all. That’s the point – this is the one area where the executive gets to make that decision themselves. Maybe that’s an idea whose time has passed, but it would require Constitutional amendments to change. The very nature of pardons is that they don’t come with strings attached (unless they specifically do), certainly not the requirement of admitting guilt from the one being granted the relief.

Weekly Read: The Feather Thief: Beauty, Obsession, and the Natural History Heist of the Century

One of my favorite semi-recent films is David Fincher’s Zodiac, about the lengthy hunt for the Zodiac Killer (made before everybody agreed it’s Ted Cruz). While that’s an apt description of the film, it’s also pretty shallow. What the movie is really about is obsession, about the need to find answers, and what it does to people who dedicate their lives to trying to find them, yet don’t.

I thought a lot about Zodiac while reading The Feather Thief. Not because the crimes involved are in any way similar or because The Feather Thief is a gripping whodunnit. In fact, there’s no doubt whodunnit – on June 24, 2009, an American flautist-in-training (!) named Edwin Rist, studying at the Royal Conservatory in London, travelled to the nearby village of Tring and stole nearly 300 specimens of rare tropical birds from a branch of the Natural History Museum. This is hardly a spoiler, as it’s right there in the prologue. If the story is that simple, why is The Feather Thief worth reading? For several reasons.

First, Kirk Wallace Johnson does a really good job of laying out why anyone would bother to steal a bunch of birds. This starts with a history of these birds themselves, many of which were captured and cataloged by Alfred Russel Wallace, Darwin’s rival in developing the theory of natural selection. Then there’s the late-Victorian fashion fad of using rare birds (not just their feathers, either!) as status symbols and the backlash that produced one of the first animal conservation movements. Laws and treaties followed and the birds were generally relegated to becoming museum specimens at places like the Natural History Museum. They were in a small-town outpost in 2009 because they had been relocated there for safekeeping during World War II.

That these kinds of birds were basically illegal to possess, or at the very least sell on the open market, led to them becoming particularly valuable to a particular community – that of expert fly tiers. These are not folks that tie flies in order to use them fishing, but rather out of artistic drive and the desire for historical accuracy. Rist was not only a member of this community, but a leading light of it, even as a teenager. He was, broadly speaking, in the right place at the right time to know the value of these birds and have access to them.

The second thing that makes The Feather Thief compelling is Johnson’s role in this tale. He was once responsible for trying to rebuild parts of Iraq after the war, then transitioned into helping Iraqis who had worked with the United States seek asylum in the US.  Although he wants to know why Rist did it (which is pretty obvious), he’s more interested in trying to right the wrong and locate the birds that hadn’t been recovered via the usual process of Rist’s criminal prosecution (he got no time, thanks to a shaky autism diagnosis by – no shit – Sasha Baron-Cohen’s cousin). This began with a stray comment from a buddy while fly fishing and, well, the rest is history.

This is where the Zodiac connection really comes in. Almost everyone in The Feather Thief is driven by an obsession that border on all-consuming. Wallace spent years in the Asian jungles in pursuit of specimens (while Darwin jumped in front of him with the whole evolution thing). Rist took to fly tying the way an addict-in-waiting takes to heroin. The ecosystem in which he swam online was obsessed with these birds as a means to creating the perfect fly. And, finally, Johnson himself nearly let his life get away from him as he tried to track down all of Rist’s birds.

None of these obsessions really end well, which returns us to Zodiac. There is no happy ending here, except maybe for Rist – yes, he’s a convicted felon, but he got his degree from the Conservatory and is making a living as a professional flautist. Johnson doesn’t find a trove of stolen birds. He can’t make the museum, and science itself, whole. Instead, he has to walk away before it consumes him, unsatisfied that he wasn’t able to make a difference.

The Feather Thief isn’t the knottiest whodunnit. The bad buy here isn’t really that inscrutable (whatever he convinced a court about his motivations). It’s more about the impact of a crime and the need to try and set it right. Along with the realization that, a lot of the time, that’s a hopeless crusade.

The Mouse That Didn’t Roar

A lot has been written in the past few days (and will be written in the foreseeable future) about the legacy of the late Ruth Bader Ginsburg, both as an advocate before the Supreme Court and as a long-serving Justice. I wanted to highlight something that might get overlooked in all that (although at least one other commentator mentioned it), an instance where she made a huge impact on an important part of federal law without any explanation of why she made the decision she did.

Sentencing in federal criminal cases changed dramatically in the 1980s. Up until then, judges had great leeway to impose a sentence within a broad statutory range, with release on parole at the back end further mitigating potentially harsh sentences. Confronted with great disparities in sentencing, a bipartisan law, the Sentencing Reform Act (passed in 1984) gave birth the US Sentencing Guidelines (which went into effect in 1987).

The Guidelines are a mechanistic system that converts not just the defendant’s offense of conviction but related conduct into an “offense level” that goes from 0 to 43. Many of the facts related to that calculation comes from judges, not juries, and can even include conduct for which the defendant was acquitted at trial. The Guidelines do a similar thing with a defendant’s criminal history, placing them in a Criminal History Category from I to VI. Where those two values meet is the Guideline range, where the sentence is supposed to be imposed.

Starting in 1987 judges, for the most part, were required to impose sentences within that range (exceptions were largely controlled by the Guidelines, too).

From the get go, defense attorneys argued that the Guidelines (and various state equivalents) violated the Sixth Amendment because they increased punishment for a defendant based on facts beyond those found by a jury (or admitted during a guilty plea). Judges finding facts, the argument went, shouldn’t be the basis for ratcheting up punishment. Courts weren’t interested, however, and the Guidelines helped to drive the country’s overincarceration problem for the next two decades.

Things started to change in 2000, when the Supreme Court held that a New Jersey statute that allowed a judge to increase the statutory punishment for a defendant based on a judicially-found fact violated the Sixth Amendment. Ginsburg was in the majority in that case, but the cause of the revitalized Sixth Amendment was really championed by her opera buddy, Justice Scalia. With that case in hand, defense attorneys once again began to argue that the Guidelines were unconstitutional. Now the issue was whether an increase in those Guideline ranges were an increase in the statutory maximum for a particular offense.

Nothing came of those arguments until 2004, when the Supreme Court decided Blakely v. Washington. Blakely involved a sentencing guideline scheme in Washington state that was very similar to the federal Guidelines. In a 5-4 decision, the Court held that those guidelines violated the Sixth Amendment. Notably, the Court didn’t prescribe any kind of remedy, instead remanding the case and letting Washington deal with it. Ginsburg was, again, in the majority.

After Blakely it was only a matter of time before the Court had to consider what this all meant for the federal Guidelines. In 2005 the Court finally dealt with the matter in United States v. Booker. The facts of the case lay out the starkness of the issue – Booker was convicted of a drug offense that carried a statutory range of 10 years to life in prison. His Guideline range, on the other hand, bulked up by judicially found facts about the amount of drugs involved, was 30 years to life in prison. Two decades in a cage is a hell of a thing to require based on facts found by a single person (and not even beyond a reasonable doubt).

Booker, as it turned out, was actually two decisions for the price of one. In the first, the 5-4 majority followed Blakely and held that the US Sentencing Guidelines violated the Sixth Amendment. In the second, a different 5-4 majority held that rather than leave it at that and let lower courts and Congress sort it out, the appropriate remedy to resolve the issue was to strike down the statutory language that made the Guidelines mandatory in the first place. Thus were the advisory Guidelines born, which we’ve had ever since.

What made for these two conflicting opinions? After all, most of the majority for the remedial opinion were dissenters from the other opinion (led by Justice Breyer, who helped draft the initial Guidelines). It was Ginsburg – she was the fifth vote in both majorities. But in a rare instance of opaqueness, she didn’t write an opinion explaining her decision. Sure, she joined the ones written by Stevens and Breyer that were the majority opinions, but she didn’t write separately to explain why she had a foot in both camps.

In a career that made a lot of impact on peoples’ lives, Ginsburg’s decision in Booker may be her most important. Since the Guidelines became advisory in 2005 hundreds of thousands of people have been sentenced as part of a system she basically created (for some idea of the numbers, in its last report to Congress on the impact of Booker, the Sentencing Commission noted that more than 85,000 defendants had been sentenced in the past year). Yet there was no sweeping opinion, no reading from the bench to spur Congress into action. Just a decision, made thoughtfully I’m certain, but without any transparency.

Are we – or, should I say, are federal criminal defendants – better off with the advisory Guideline scheme rather than whatever else Congress might have created? Hard to say, given how little experience the system has with juries finding sentencing facts. I will say that judges have seized their authority under Booker (and its progeny) to vary from and, in some cases, completely ignore the “advice” provided by the Guidelines. Still, they exert a kind of gravitational pull at sentencing and are pretty central to most proceedings. It’s the irony that gets me, I suppose. Ginsburg was arguably the Court’s most public face over the past few years. That she has had such a major impact without doing much more than casting a vote seems out of whack, but such is life. And the law.

Why Do I Love Bad (Fictional!) Lawyers?

Popular culture is full of lawyers. As both a lawyer and a writer, I apologize for that, but the legal profession is a pretty rich vein of drama (and even comedy) for writers. There’s crime and deceit, business dealings and family squabbles. The law touches every area of life (for good or for ill), so it’s a great way to examine life itself.

There are plenty of heroic lawyers in pop culture. Perry Mason’s having a kind of resurgence with the new, gritty, noir-flavored HBO series. Atticus Finch is a popular choice for crusader who launched a thousand earnest legal careers.* There are countless others, of course, lawyers who fight for the little guy (or gal) or justice or law in the abstract. They’re fine, of course, but when you always win, things can get kind of stale.

Which is why some of us – or maybe just speaking for myself here – have more of an affinity with the legal bad boys, the ones who work on the edges of professional ethics, for whatever reason. There’s a quite a rogue’s gallery and I pretty much love every one of them. They’re the patron saints of the legal profession, in my eyes.

Front of mind at this point can be none other than Jimmy McGill, aka Saul Goodman, of Breaking Bad and his own prequel spinoff, Better Call Saul (which is better than the original, I think):

Saul2

The “patron saint” thing is kind of a joke, but the fact that Saul is about a struggling criminal defense lawyer makes it instantly more relatable to me, even if I never find myself nearly dead in the desert hauling two duffle bags full of drug cartel money (let’s hope). He is a sleaze, no doubt, and it eventually gets him into serious trouble, but at least early on he’s willing to use that sleaze to help the underdog and generally fuck with “law and order.” While I can’t say I approve of Jimmy’s methods, I appreciate the attitude. It’s one that sustains long-time public defenders like me.

Of more long standing in the pantheon is the one, the only “law talking guy,” Lionel Hutz:

Hutz2

Voiced by the wonderful Phil Hartman on The Simpson, Hutz is just a master class in legal incompetence. He marvels at how useful law books can be. He changes the terms of his retainer by marking up his own business cards. He shudders at the otherwise happy thought of a world without lawyers. He requests “bad court thingies.” And, most notably, he’s always looking out for himself:

Deep in the heart of every lawyer lurks the certainty that, if nothing else, they’re better than Hutz.

He’s not the only cartoon lawyer with a hold on my heart. How can I not love Harvey Birdman?

Harvey

Harvey’s less an idol for his legal acumen that he is for his ability to keep a calm head on his . . . wings, while everything else falls apart around him. It’s an important skill for an attorney, especially a criminal defense lawyer. Besides, who wouldn’t want to have an eagle for an assistant?

But if we’re going old school, there’s one sleazy lawyer that was lodged in my brain long before I was anywhere near a law school – Steve Dallas:

SteveDallas

Looking back I’m a little appalled at my love for Bloom County’s legal scholar. He’s a loud mouthed, rude, misogynistic, frat boy – precisely the kind of person I’d loathe if I met him (or saw him online) today. I mean, he did have cool cars, so that counts for something. And he was, come to think of it, the only professional in Bloom County (among the regular cast, at least). He had credentials and never let anybody else forget it. Like Harvey, he also recognized the value of good help:

SteveOpus2SteveOpus1

When it comes to all these guys (and they are all guys – I’ve noticed) I’m reminded of that idea, from Tolstoy, that all happy families are the same, but dysfunctional ones are unique in their dysfunction. I think that’s true for fictional lawyers, too. Good-hearted crusaders are important and uplifting, but they’re not always much fun. Bring on the bad boys!

* Years ago I went to a legal writing seminar where, for the session on issue spotting, we used the facts of To Kill a Mockingbird. A mere 45 minutes later he was facing a lengthy ineffective assistance of counsel charge.

Weekly Read: Freedom’s Detective: The Secret Service, the Ku Klux Klan, and the Man Who Masterminded America’s First War on Terror 

This is an interesting book (more interesting than compelling, sadly, given its detached, journalistic style) to think about in these times. I actually read it a couple of months ago, but it’s crept back to relevance over the past couple of weeks. How could it not, given that it tells the story of the United States’ first concerted effort to deal with racial terrorism, which also gave rise to an unprecedented expansion of police power and tactics?

It’s the story of Hiram C. Whitley, who from 1869 to 1875 was the chief of the Secret Service. At that time, the Secret Service’s primary job was dealing with counterfeiters (it’s Presidential protection role didn’t come until ??) – which it still does, by the way (one of my great Fourth Circuit victories involved a counterfeiting case). When Whitely took over he broadened the Service’s mandate (via bureaucratic slight-of-hand and without Congressional authorization) into a broader criminal investigative unit with its sights trained the Ku Klux Klan.

Not that Whitley was particularly a crusader for human rights. Before the Civil War he did some work as a slave hunter and he essentially bought his first child. During the war he led a Union regiment in New Orleans with such brutality that his men nearly mutinied. He was a shameless self promoter who wasn’t above working outside the law when he thought it was justified. He tortured prisoners. He arrested men and executed searches without warrants. He was even involved in a Watergate-style burglary and scandal later in his career.

His most lasting contribution, however, is introducing the concept of the undercover work to American law enforcement. The idea that you had to use bad people – or at least good people pretending to be bad – to catch other bad people was scandalous. In fact, the book recounts how in one counterfeiting trial, where the case was built on undercover work, the judge actually gave the jury a cautionary instruction about how unreliable undercover officers were! If only we could get an instruction like that now.

If anything, Whitley seems like the archetype of a character we’ve become familiar with over the years from all kinds of police fiction – the cop who can’t follow the rules, but it still celebrated in the end because he gets the bad guys (a trope that’s getting some fresh looks these days). You can’t argue that Whitley’s targets were evil – not just the Klan by political machines in New York City were targets – but, as this review points out, none of those resulted in convictions, partly due to Whitley’s overreaching. One of my chief criticisms of the book is that author Charles Lane doesn’t really examine what Whitley’s legacy was or how he was an exemplar of lots of cops that came after him.

That’s why the book had come back to mind in the wake of the police killing of George Floyd and the related protests. As a society we’ve been conditioned to give cops the benefit of the doubt (there’s even a “good faith” exception the exclusionary rule for Fourth Amendment violations), mostly on the expectation that if they cross the line they’ve got a damned good reason. But lines are drawn for a reason and not everybody the cops cross the line to get are “bad guys” and, even if they are, they deserve the due process of the law, too.

I won’t say we can draw a direct line from Whitley’s abuses to Derek Chauvin’s knee on George Floyd’s neck 150 years later, but there are definitely echoes there. If Whitely really was “Freedom’s Detective,” it’s worth wondering what kind of freedom it was and whether, too often, it’s been the freedom to behave badly in the name of doing good.

FreedomDetective

Dear US Soccer – Please Shut Up and Settle

I practice criminal law, criminal defense to be precise. I’m glad I do, because there’s a clarity of focus in it that can be a bit hazy in other legal areas. My job is to do the best for my client in court, period – whether that means an acquittal, a better sentence, or (as in my practice, for the most part) a successful result on appeal. Very very rarely are the other considerations to worry about. That the public doesn’t like the process is irrelevant – I’m trying to keep my guy out of a cage.

Civil law is different, particularly civil defense. People who get sued are often really determined to prevail on court, to prove to the world that they’re right. But part of their lawyer’s job is to suggest that winning in court is not necessarily going to solve their problem. A criminal defendant is rarely made worse off by a bold defense in court. A civil defendant, by contrast, particularly a corporation without any real personality – well, sometimes the big machine gets it right:

WinningMove

That went through my head when I read about US Soccer’s pleading last week in its ongoing litigation with the US Women’s National Team (USWNT) over equal pay. I don’t know enough about employment law to know if the arguments made in it are legally sound or have a chance of success, but I’ll assume they do. Question is, what does US Soccer think a “win” would look like at this point?

This article at SI breaks down the federation’s latest argument, which basically has two parts. The first is one familiar to anyone who has brushed up against the legal system – non fregit eum, et emit eam (aka “you broke it, you brought it”):

Stolzenbach first asserts that the fundamental flaw of the players’ legal theory is that they compare a pay system that their own labor union, the U.S. Women’s National Soccer Team Players Association, negotiated with the pay of players who aren’t in their bargaining unit—players on the men’s team.

To that end, U.S. Soccer stresses that courts have consistently rejected attempts by unionized employees to compare their employment terms to employees who are outside of their bargaining unit.

This is the kind of procedural argument I’d expect any lawyer to make. It appears to be the equivalent to how plea bargains are treated in criminal law – once you sign one, you’re stuck with it. Assume A and B are charged in an indictment and A decides to get a good early plea bargain. B sticks it out and, later, either gets a better deal or goes to trial and is acquitted. Can A back out of his plea? Not a chance. Courts routinely hold that so long as you weren’t misinformed, mistaken, or misled into making a guilty plea then you won’t be able to back out of it later. Whether this is a winning argument in the context of the USWNT case I don’t know, but it seems fairly standard.

The other one, though . . . yikes. It has to do with whether the job of USWNT player is “roughly equal in terms of effort, skill, and responsibility” to that of US Men’s National Team (USMNT) player. It was bad enough to point out that in terms of “responsibility” that the USWNT may not have the same earning potential as the USMNT (while eliding the fact that the USMNT choked and missed out on its last big earning opportunity – the 2018 World Cup).

From there it got worse:

Stolzenbach attempts to supplement this argument, even wading into some territory that could be described as misogynistic.

He insists that men’s players face much more demanding working conditions and thus have fundamentally different—and, by implication, harder—jobs. He contends that men’s players encounter ‘opposing fan hostility’ in road environments, particularly in Mexico and Central America, that is ‘unmatched’ by anything experienced by women’s players. Stolzenbach stresses that the women don’t play in Mexico, Central America or the Caribbean when trying to qualify for tournament play. Further, Stolzenbach maintains that ‘science’ confirms there are different levels of speed and strength required for men’s and women’s players. He insists it is not a ‘sexist stereotype’ to recognize this distinction.

 

Now, if US Soccer was fighting to stay out of jail I might question this strategy, but you do what you have to do. But at the end of the day, US Soccer is going to have to continue to do business with the USWNT (and the USMNT, who have publicly supported the drive for equal pay) and, more importantly, the American public. Why on Earth would they want to denigrate about the only good thing coming out of American soccer at the moment?

Let’s recap. The women are undefeated in more than a dozen matches, just swept through the She Believes cup against quality competition, are the two-time defendant champions of the world (with two other World Cups prior), and are gearing up to try and win their fifth gold medal at this summer’s Olympics. By contrast, the men failed to qualify for the last World Cup (to be fair, so did traditional powers Italy, Chile, and the Netherlands), their furthest progression in the Cup came before the Second World War, and they’ve ceded the pole position in the region to Mexico. Oh, and the Olympics? The men haven’t qualified since 2008.

Whether those comparisons are apples to oranges or not is irrelevant. In the public eye, US Soccer has precisely one broadly loved group whom people outside of soccer fanatics care anything about – the USWNT. Building the game in the United States – at all levels, men’s and women’s – requires public support. Pissing off a large swath of the public with arguments like this – even if it’s a winner legally – is a long-term losing proposition. It’s not just my criminal law mind that thinks this is a bad play (in response to this tweet):

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Indeed, the backlash from this filing has been swift and fierce. US Soccer eventually apologized, but the players weren’t buying it. The president of the federation resigned and, apparently, the law firm responsible was fired.

Ultimately, as to what comes next, I think Alexi Lalas has it about right:

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This really isn’t a legal fight. It can’t be won in a courtroom. It’s only going to be won in the court of public opinion and that’s going to require some serious groveling on US Soccer’s part. So, let’s get to it, US Soccer – shut up and settle this thing already!

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What Censorship Isn’t

For a while, back when The Water Road was finished, I tried to shop is around to agents as a first step in trying to get it published. The entire process put me off (a topic for another day) and I decided to self publish, a decision I’ve been very happy with. Still, if I’d known I had some kind of Constitutional right to a publisher, maybe I would have stuck with it a little longer.

The big literary news last week involved a new memoir by Woody Allen. Allen is, of course, a legendary director of such classics as Annie Hall and Sleeper. He’s also been accused of sexually abusing his daughter, Dylan. It doesn’t help perception that he wound up marrying a woman who was practically, if not technically and legally, his step daughter. Oh, and Manhattan, too. Suffice to say, in a #MeToo world, Allen has become a bit of a pariah.

It’s not surprising, then, that when Hachette Book Group announced the release date for Allen’s memoir Ronan Farrow, Allen’s son and one of the leading #MeToo journalists, decided to cut ties with the publisher. More surprising was that, a few days later, there was a walkout by a bunch of Hachette employees over the memoir. As a result, late last week, Hatchette announced it would not be publishing Allen’s memoirs after all. The rights revert to Allen, who’s free to find another publisher or jump into the world of self publishing.

When the news broke last Friday it was the talk of Twitter. In particular, there were lots of people complaining that Allen was being “censored” by losing his publishing deal. Comments like this (screen capped from responses to this Tweet):

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Putting to one side any breach of contract action Allen might make against Hatchette, let’s make one thing very clear – this is not an act of censorship.

Here’s the thing – so long as you’ve got some kind of outlet for the speech you want to make, you’re not being censored. Everyone has a right to speak, but nobody has a right to use any particular platform or amplification for your talk. If the government swoops down and shuts you up, that’s censorship. If private individuals decide they don’t want to be in business with you, that’s just business.

I’m open to being convinced that actual censorship can be exercised by private companies, but I’ve yet to see an example that really went beyond a private entity wanting to not do business with a particular speaker – which the private entity has a right to do as part of its own free speech. In fact, usually when people complain about companies like YouTube or Twitter taking action against hate speech or what have you and wrap themselves in the First Amendment, they’re the ones demanding state action to compel speech (as well as generally showing a poor grasp of the First Amendment).

The bottom line is this –if Woody Allen has some sort of right have his memoir published by a major publishing house, than there are thousands (if not more) of writers out there who are being repressed daily by not being given publishing deals. One cannot be true unless the other one is, which should make things pretty clear.

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Weekly Read: “A Problem From Hell”: America and the Age of Genocide

There is no such thing as a magic word.

As a writer, much less a writer of fantasy, that’s a hard thing to remember some times. But the reason words can hold sway in fantasy is precisely because the story being told isn’t set in the real world. Here in reality, even that most magic of all words – “Abracadabra!” – only has power because the magician uttering it has convinced the audience to buy into the trick their performing (as someone in The Prestige points out, the audience wants to be fooled).

Pro se litigants in the criminal justice system often think words have some kind of magic power. If only they can find the right sentence in a Supreme Court decision then the judge will have to overturn their conviction or vacate their sentence! I’ve seen it over and over in my years practicing law. That the law is rarely that clear and that their ultimate fate is left in the hands of another human being, with all their flaws and biases, can be hard to accept.

I thought about that a lot while reading A Problem from Hell. Samantha Powers’ 2003 Pulitzer Prize winner is an exhaustive examination of how the United States did (or, more often, did not) respond to genocidal crises that arose in the 20th Century, from the Armenian Genocide during the First World War through the multiple rounds of horribles in the former Yugoslavia.

Power spends a good amount of time on Raphael Lemkin, a Polish Jew who fled at the earliest inklings of the Holocaust. He eventually came to the United States and made it his life’s work to create some international law that would address the systematic destruction (or attempted destruction) of an entire people. It was Lemkin who coined the term “genocide” and helped shape the Genocide Convention that was passed by the newly formed United Nations in 1948.

Make no mistake – this was a big deal. After the Holocaust and the Nuremburg Trials it wasn’t a given that the international community would make a fairly unified statement that genocide was a crime against humanity. And yet, the fact that there was a name for such horrors (along with a legalistic definition) didn’t magically change behaviors. Not only did further atrocities occur, but the international community, now committed to the idea of “never again,” nonetheless let it happen repeatedly.

One reason is that once the atrocity has a name, it gives the parties involved a way to argue that this particular set of killings or expulsions doesn’t rise to that level. In other words, if it’s not “genocide,” then there’s much less incentive to do something about it. That’s because, very often, there are other considerations in play than just stopping someone from doing evil. At best there’s the fact that exactly how to deal with genocide while it’s underway is always hard to figure out. In fact, Powers, for all her catalogs of what the United States didn’t do, doesn’t offer many alternatives, aside from the use of military force. That can be a hard ask in the 21st Century (not for nothing, but Powers’ book was written just as 9/11 happened and before US quagmires in Iraq and Afghanistan). At worst, the people doing all the killing are allies, even if we’re reluctant about calling them that (US policy towards the Khmer Rouge was basically driven by “yeah, but they hate the Vietnamese, too” thinking).

As a result, a lot of time is wasted on terminology. So long as perpetrators can drag out the question of whether something is genocide or not, the killings go on and their plan comes closer to fruition. Since there are no magic words, what’s the point in wasting time making sure we’re using the right one? That dance of nomenclature is one of the themes of Powers’ book.

One of the others is how bipartisan US politics was when it came to dealing with genocide. The champions of ratifying the Genocide Convention – which the US didn’t do until 1988 – came from both parties. Indeed, in classic American fashion, the final ratification wasn’t a triumph of principle, but a political gambit to deflect from a scandal.

The other thread that I found really interesting in all of these genocides is how unready the world is to believe it’s happening. Part of that is down to people just not wanting to believe something so horrible is going on. There’s an anecdote about Lemkin trying to convince a Supreme Court Justice (I forget who, specifically) that the Holocaust is happening and the Justice’s response is, basically, “I can’t believe you – I just can’t wrap my head around the barbarity of it.” Beyond that, though, there’s two related lenses through which people look at these situations that keep prompt responses from happening.

The first is that information about atrocities often comes first from people who survive them, mostly refugees fleeing to other places. Repeatedly, authorities downplay the reports of refugees until they reach such a critical mass that they can’t be ignored. While we know more and more about how unreliable eyewitness accounts can be, it can be all too easy to let prudence and caution roll over into dug in skepticism. The second is that there are repeated examples of the outside world doubting atrocities are taking place because it’s not a logical thing for the perpetrators to do. Who would risk the opprobrium of the international community by trying to kill off or otherwise destroy an entire population? But, of course, history shows that perpetrators usually get away with it, at least to a certain extent. And for true believers, what’s the big deal about after-the-fact punishment if you succeeded in your goal?

Ultimately the problem of how to deal with genocide is the problem of international law at its most acute. Put simply, international law only works as well as the nations committed to it allow it to work. There is no outside force, no world police, to enforce promises nations make to one another if those nations aren’t willing to enforce them. One of the provisions of the Genocide Convention was to allow one state to take another to an international court to stop an ongoing genocide. It took until 2019, when The Gambia took Myanmar to the International Court of Justice on behalf of the Rohingya, for that to happen and it’s still not clear whether the court’s ruling will really have any impact.

It would be great if words were magical, but the hard truth of history is that they aren’t. It takes more than a label to get people and nations to do the right thing, even if it should be as simple as stepping up and saying, “stop killing defenseless people.” That’s why something like genocide really is a “problem from hell.”

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