Archive: July 2006

A High School's Tumult Makes it to Court

Over a sharply-worded dissent, the 9th U.S. Circuit Court of Appeals ruled this afternoon that Poway High School in southern California can ban students from wearing t-shirts "with messages that condemn and denigrate other students on the basis of their sexual orientation." The t-shirt in question? One that included the message: "Homosexuality is Shameful" on its back and a pointed criticism of school officials on its front. Federal and state courts wrestle all the time with these sorts of cases that define and refine the boundaries of what students can and cannot do while they are in public school. The law is quite clear that students, minors, have fewer first amendment rights than do adults. After that, it can be a crapshoot. But what is striking to me about the story of Poway High School is not this ruling by a federal appeals court but the chaos that was taking...

By Andrew Cohen | July 31, 2006; 4:00 PM ET | Email a Comment

The Wisest Word Yet on Signing Statements

Finally, some official sense in the debate over President Bush's use of "signing statements" to undercut the force and scope of Congressional legislation. Walter Dellinger, head of the Justice Department's Office of Legal Counsel during most of the first Clinton term, has chimed in again, this time on the op-ed page of the New York Times this, with a reasonable view of the matter. As he did in 1993 when he defended the use of signing statements, Delliinger says that signing statements are legitimate and necessary uses of presidential authority. But, he says, the whole debate over their widespread use by the Bush Administration misses the larger point-- "which is not the president's right to act on his constitutional views, but that some of this president's constitutional views are fundamentally wrong." Dellinger's op-ed is a big deal because his old memo has been used by many conservative commentators, and bloggers,...

By Andrew Cohen | July 31, 2006; 9:00 AM ET | Comments (4)

Stupid Laws of the Week to Vegas and Orlando

The Stupid Law of the Week Award goes to the cities of Las Vegas and Orlando, both of which have sought to restrict or outright ban people from feeding the homeless in the parks of those cities. You can feed your family at a park in Vegas, and you can feed your friends and neighbors if you have a picnic there in public, but you can't give a sandwich to a homeless person in a park. In Orlando, meanwhile, city officials have required people to pay for a permit for the privilege of giving food to the homeless at a park. I am writing about these ordinances now because they are so blatantly unconstitutional, not to mention stupid and unenforceable, that they won't last long on the books. But of course they will cost both of those cities plenty of time, energy and money defending the effort in court from...

By Andrew Cohen | July 28, 2006; 3:15 PM ET | Comments (2)

Slaughtering a Good Horse Bill

It has worked this way in Congress for as long as there has been a Congress. If you oppose a reasonable piece of legislation, and you aren't sure you have the votes to sink it, you instead "poison" it with amendments that you know will detract from the very gist of the bill. That way, its initial supporters cannot support it either and it dies, twisting in the wind. That's what is happening to a noble piece of legislation that would outlaw the slaughter of horses in America. The House Agriculture Committee Thursday wedged into the American Horse Slaughter Prevention Act a series of amendments that gut the purpose of the act. The three existing domestic horse slaughterhouses, for example, are allowed to continue to sell horse meat for human consumption overseas. Another amendment makes the federal government financiall responsible for the un-slaughtered horses (just what the government needs, more...

By Andrew Cohen | July 28, 2006; 12:30 PM ET | Comments (6)

Feds Should Stop Weaseling on Rules of War

Here is an idea. Instead of spending tons of time and energy and money (and political and legal capital) consistently trying to weasel out from under laws that are desgined to ensure that prisoners of war or detainees are treated decently by our military personnel, why doesn't the Administration instead adopt a zero-tolerance policy with its soldiers that demands they play it straight when acting as captors? Instead of constantly trying to limit the liability and exposure of military officials, why not aggressively prosecute any member of our armed services who crosses the line into abusive contact with any prisoner or detainee? At some point, if our soldiers act atrociously, shouldn't they be punished? I ask because the Post this morning is reporting that the Administration is moving once again to protect its soldiers from prosecution for conduct that many of us would find reprehensible. R. Jeffrey Smith writes: "Senior...

By Andrew Cohen | July 28, 2006; 8:16 AM ET | Comments (2)

With Judges Like This, Who Needs Defendants?

"If you are urging to kill Americans," Saddam Hussein's judge told him yesterday as the former Iraqi dictator's war crimes trial winds down, "let your friends of the mujahadeen attack the American campsand not blow themselves up in the streets and public places and cafes and markets. Let them blow up Americans." Nice, eh? I'll bet that's not exactly the sort of high-handed rhetoric and respect-inducing demeanor that U.S. officials were hoping for from the court when they helped create the tribunal that has stopped and started and hemmed and hawed its way through Iraq's first "Trial of the Century." After today's session, the Saddam trial now is on hold until October 16th, when presumably the court, if it can hold itself together until then, will reveal its verdict. The primary defendant, always one to look ahead, already has told the court that he would prefer to be shot, rather...

By Andrew Cohen | July 27, 2006; 12:00 PM ET | Comments (1)

Finally Fixing the Marshals Service

Nearly 18 months ago, when the husband and mother of U.S. District Judge Joan Lefkow were killed in their home in Chicago, the nation's spotlight shone briefly on the inability of the U.S. Marshals Service to adequately protect the judiciary. And while it became clear then (as it is now) that no security scheme can protect all judges in all circumstances, it also became clear that the Marshals had not done nearly enough with the oodles of money it had been given by Congress in the wake of 9/11. That, finally, may be changing. USA Today this morning is reporting that the Marshals are bolstering their investigative and computer services in order to combat a spike in threats against federal judges (and state judges, too). This is a long overdue expansion of the ability of the service to track threats and to prevent rather than simply react to cowardly (and...

By Andrew Cohen | July 27, 2006; 8:32 AM ET | Comments (3)

Justice for Andrea Yates

It took over four years but the criminal justice system in Texas finally got it right. Andrea Yates, described at the time of the killing of her children as one of the most severely mentally ill patients ever encountered, finally was recognized as such by a jury which took the time to consider what must have happened (or not happened) inside Yates' mind that morning in June 2001 to cause her to seek out and destroy those she loved most in life. There is no victory here. Yates will be sent to a heavily-guarded mental health facility, where she will probably spend the rest of her life. From time to time she will be evaluated. And, if past is prologue, every time her medicine allows her to regain a little bit of sanity she will realize what she did to her beloved children and then descend again back into some...

By Andrew Cohen | July 26, 2006; 2:00 PM ET | Comments (189)

Yet Another Blow For Same-Sex Marriage

Another week, another court ruling against same-sex marriage proponents, who now have been defeated on either coast within the past month. This time, it was the Washington Supreme Court that declared by a 5-4 vote that it would not interfere with a legislative assessment that favors heterosexual marriage over same-sex marriage. The ruling was strikingly similar to one issued a few weeks ago from the New York Supreme Court, which ruled after another sharply-divided vote that it was not the responsibility of the courts to second-guess legislative choices that favor one form of marriage over another. Like the New York court before them, the justices in the Washington state majority directed the defeated plaintiffs to press their case and their cause before the people, and their representatives, saying that if there were a political consensus to permit same-sex marriage the courts would have no problem endorsing the practice. It is...

By Andrew Cohen | July 26, 2006; 12:10 PM ET | Comments (8)

A White House Victory, Sorta, on the NSA Program

Even when the White House wins in court these days on the terror-war front it feels like a loss. So even though U.S. District Judge Matthew F. Kennelly accepted the government's "state secrets" argument and dismissed a lawsuit against AT&T over whatever role it plays in the National Security Agency's domestic surveillance program, surely the feds aren't smiling for real as they review the judge's carefully crafted 40-page ruling. That's because it is full of ominous signs for the government-- signs that the feds are in for trouble as companion lawsuits proceed in federal court in Illinois. First, Judge Kennelly made it clear that there were important factual differences between his case and the case decided last week by a federal trial judge in California, who rejected the same argument offered by the feds. In the Illinois case, Judge Kennelly wrote, the plaintiffs had only "challenged the alleged disclosure of...

By Andrew Cohen | July 26, 2006; 11:00 AM ET | Email a Comment

Save the Next Barbaro From Slaughter

It was a big deal on Capitol Hill, apparently, but not a big deal on teleivsion or online. A House Energy and Commerce Subcommittee held a public hearing Tuesday on the American Horse Slaughter Prevention Act, a rare species of legislation whose titled aptly describes what it does and whose overwhelming appeal ought to be self-evident. The bill would make it illegal for horses to be slaughted here in the States (where there is currently an industry that caters to overseas consumers of horse as meat). Full disclosure: I own two horses. And I have lived around them for most of my life. I support horse rescue efforts, am working on a doozy of life-saving plan for harness horses, and am truly surprised when everyone I know doesn't immediately rush to support the cause as well. So I won't pretend to be unbiased or objective on this one. Most of...

By Andrew Cohen | July 26, 2006; 7:00 AM ET | Comments (8)

Trouble for Andrea Yates' Prosecutors

In most murder cases, I'm the first analyst out there begging anyone who will listen or even pretend to that you can never tell much about the early hours or days of jury deliberations. But in the Andrea Yates case, where the former mother from Houston is on trial again for killing all five of her children, it's pretty clear after the first full day of deliberations came and went without a verdict that things are not going the way that prosecutors had hoped. In Yates I, back in 2002, it took jurors about four hours to unanimously convict. That mark already has been doubled with no apparent end in sight. Just before lunch on Tuesday, jurors asked to review the testimony of a prosecution expert witness who told jurors that there were dozens and dozens of reasons why they should believe that Yates knew right from wrong and therefore...

By Andrew Cohen | July 25, 2006; 8:15 PM ET | Email a Comment

Specter Goes to the Mattresses on Signing Statements

Even as he caves to presidential pressure over warrantless domestic surveillance, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) is threatening to push through legislation that would allow the Congress to sue the White House over the Bush Administration's unprecedented use of presidential "signing statements" to try to undercut the impact of legislation. If the White House seems to be stretching the law to violate your rights or mine, well, it seems that the Congress can live with that in the name of fighting the war on terrorism. But if the White House seems to be stretching the law to intrude upon legislative power and authority, well, that's just not going to cut it for the Committee Chairman. He wants to be able to take the White House to court to get the third branch of government to referee the battle between the legislative and executive branches. Not bad for a...

By Andrew Cohen | July 25, 2006; 1:00 PM ET | Comments (1)

David Cole Has a Lesson to Teach

As someone who has covered the government's legal response to the war on terrorism from its inception, in mid-September 2001, I can tell you that there are only a handful of analysts and commentators and scholars around who have spent the time and the energy and the focus piecing together patterns of executive branch call and legislative and judicial branch response (and I'm not saying that I am necessarily one of them). There are patterns everywhere. From Moussaoui to Lindh to Hamdi to Padilla to Hamdan, from the CIA to the NSA to the FISA, from "material support" to "extraordinary rendition," you can see even from the short distance of a few years or months the arc of the executive branch's efforts and the often-deferential but sometimes fiesty reaction to those efforts. In the current issue of the New York Review of Books, David Cole offers in a few thousand...

By Andrew Cohen | July 25, 2006; 7:00 AM ET | Email a Comment

Andrea Yates' Jurors Get the Case (again)

After several hours of intense and emotional closing arguments today, the jury in Andrea Yates' second murder trial now has the case. It took the first Yates' jury just a few hours back in 2002 to reject an insanity defense and find her guilty of killing her children in the bathtub of their home, one by one. As the court day ends, this panel already is reaching that mark. A surprise? Probably not. First of all, the initial panel took an inordinately short time to convict Yates of murder, probably because they also decided at the same time that they would not vote for death during the sentencing phase. You would think after a trial that lasted a few weeks that the panel would at least want to sleep on things for a night or two. Second, it is conceivable that the six men and six women who are deliberating...

By Andrew Cohen | July 24, 2006; 6:05 PM ET | Email a Comment

Open Warfare on the Bench in a Capital Case

The judges of the 6th U.S. Circuit Court of Appeals have not exactly been known recently for getting along so well. A few years ago, they squared off against one another in a fight over judicial independence. And today, a bitterly-divided panel granted some relief to a murderer even as several of the judges took pot shots at one another for their views on the role and motives of defense attorneys in capital cases. Here's a good blog site that describes the fight but the question for all grownups here is: why can't they all get along? This particular catfight started in an otherwise unremarkable capital appeal with a concurring opinion offered by Chief Judge Danny J. Boggs, a Reagan appointee, who remarked that death penalty laws in the circuit essentially create an incentive for defense attorneys to purposely provide ineffective assistance to their clients at trial, especially when the...

By Andrew Cohen | July 24, 2006; 2:00 PM ET | Comments (1)

No ABA Sign-Off For White House 'Statements'

The American Bar Association this morning is set to release a report critical of the Bush Administration's penchant for attaching executive-branch "signing statements" to legislation in order to memorialize any White House reservations about the constitutionality of the new laws. No surprise there, the ABA has for years now been highly critical of many of the legal positions the Administration has taken in the name of fighting terrorism. And don't be surprised when the White House either completely ignores the ABA's message or downplays it into oblivion. Just a bunch of pointy-headed liberal lawyers, the feds will say. Yes and no to that charge. The task force that came up with the 32-page report is a mix of liberals and conservatives and it includes conservative legal scholar Bruce Fein, who was a darling of the right during the Reagan Administration but who know often sides with civil libertarians against the...

By Andrew Cohen | July 24, 2006; 9:00 AM ET | Comments (6)

On Gitmo, Hard-Line a Hard Sell for White House

Pick a story, any story. There is this. After mulling over a more conciliatory approach during the days and weeks immediately following a Supreme Court setback last month, the Washington Post reported last night that the White House has taken a "harder" line in its approach to prosecuting the Guantanamo Bay detainees. Instead of hewing more closely to the Uniform Code of Military Justice, a position which would almost certainly generate a favorable review at the Supreme Court (and in Congress), the Bush Administration now apparently intends to go ahead with only a slightly modified verison of its own plan to process the men using "military commissions." But there is also this. Reuters is running with a story that puts a decidedly more optimistic spin on things. According to the wire service, the White House "now appeared more willing to negotiate" with key Senators than it was before. Writes Vicki...

By Andrew Cohen | July 21, 2006; 8:30 AM ET | Comments (4)

The Feds Lose Again on Domestic Surveillance

It would be easy to simply dismiss as just another kooky California ruling the 72-page order today from a federal district judge in San Francisco who declared that the United States, and AT&T, could not automatically stop at the outset on "state secrets" grounds a lawsuit alleging that the National Security Agency's domestic surveillance program violates the Constitution and federal law. After all, U.S. District Judge Vaughn Walker is not a true believer, even though he is a Republican appointee, and California's 9th U.S. Circuit Court of Appeals isn't exactly known these days for being on board with the current Administration. But it would be a mistake to underestimate Judge Walker's rationale or conclusions about whether the U.S. and AT&T can dismiss the lawsuit against them before it begins by arguing that its subject matter (the spy program) is so secret it cannot be the subject matter of litigation. The...

By Andrew Cohen | July 20, 2006; 5:10 PM ET | Comments (1)

Bonds Forced to Stay On Deck

Try not to read too much into the fact that prosecutors investigating Barry Bonds announced today in San Francisco that they don't plan to indict him yet but want to keep grand jurors working on the case. The only thing that truly tells us is that federal lawyers don't believe that they have yet cobbled together their strongest possible case against Bonds for perjury and tax evasion-- but that they believe there is more valuable evidence still to be collected from witnesses like Bonds' personal trainer, Greg Anderson, who is in jail on contempt charges for failing to testify. In fact, today's development, or lack of a development, is probably worse news for Anderson than it is for Bonds because it puts in real jeopardy Anderson's ability to get out of jail sooner rather than later....

By Andrew Cohen | July 20, 2006; 3:30 PM ET | Email a Comment

Did I miss anything? Oh, Right

I went to a funeral yesterday and then to a dentist's appointment and I was away from my computer most of the day. So, naturally, Washington decided yesterday to go completely berserk. If someone can explain the logic to me in yesterday's political whirlwind I would be forever grateful. Right now, from where I sit, it makes absolutely no sense at all. There is widely popular support for the Pledge of Allegience even though it is arguable that the words "under God" in the hymn violate the Establishment Clause. So the House of Representatives naturally decides overwhelmingly to try to take the issue away from the Supreme Court with a "jurisdiction-stripping" bill that ought to chill the spine of every supporter of the Bill of Rights. The legislation, which may or may not pass in the Senate, would preclude judicial review by federal courts asked to look at the constitutionality...

By Andrew Cohen | July 20, 2006; 9:30 AM ET | Email a Comment

Lawyers' Group Shouldn't Change Its Name

Part of the reason why so many people hate lawyers-- I'm a "recovering attorney," remember, so I know-- is because lawyers are perceived, rightly in some cases, wrongly in others, as using their considerable intellect to twist and contort not just common sense but the English language as well. It all depends upon what your definition of the word "is" is, remember? That is why it is so silly, and ultimately so self-defeating, for the big plaintiffs-interests group, the American Trial Lawyers of America, to be seriously considering changing its name to, get this, the "American Association for Justice." "Our current name," wrote ATLA President Ken Suggs to members, "is all about us. It describes who we are. In contrast, our proposed new name... is about what we do. And what we do is fight for justice-- for our clients and all Americans each and every day." Putting aside for...

By Andrew Cohen | July 19, 2006; 8:30 AM ET | Comments (3)

Of Course the President Blocked NSA Review

It is not news to me, and it shouldn't really be news to anyone else, that President Bush himself blocked a Justice Department review of the National Security Agency's domestic surveillance program. Of course he did. He is the chief executive officer, he oversees the Justice Department, and he gets to make the rules when it comes to what the executive branch, in all of its various forms, does and does not do. The NSA program is a creature of the executive branch. It was born there, and nurtured there, and it has been defended by executive branch officials. If it is a mistake, legal or otherwise, it's not going to be the executive branch, at least this one, that says so. More surprising to me today, and disappointing, were Attorney General Alberto Gonzales' remarks about last month's Supreme Court decision which limited the president's power to prosecute the hundreds...

By Andrew Cohen | July 18, 2006; 5:30 PM ET | Comments (11)

Rest in Peace, Leonard Campbell

The Association of Trial Lawyers wants to change its name to "The American Association of Justice" because, well, people just don't like lawyers. I will write more about that for tomorrow's postings. In the meantime, however, it's worth passing along the news of a death this weekend of a wonderful lawyer, and a personal friend, whose life in the law ought to remind attorneys and laypeople alike that there can be great humor and kindness and wisdom and joy in the profession. Chance are you did not know or even meet Leonard M. Campbell. He was a Denver attorney who served clients and his community for more than 50 years. He was a mentor for me when I was a young lawyer, just starting out, and his lessons about keeping perspectives while battling through a case remain with me a decade and a half later. It was in Leonard's office--...

By Andrew Cohen | July 18, 2006; 12:00 PM ET | Email a Comment

Pretend You Are the Duke Lacrosse Case Judge

Correction/Clarification: The first paragraph of this blog post incorrectly reports that Durham County Superior Court Judge Kenneth Titus told lawyers "several months ago" to comply with their ethical obligations not to talk publicly about the case in a manner designed to influence potential jurors. He didn't, having only recently been appointed to preside over the case in place of Durham County Superior Court Judge Ronald L. Stephens. The problem was caused by wire reports that indicated that Judge Titus, in July, reminded attorneys of their ethical obligations to gag themselves. He apparently reminded them in a figurative sense, and not a literal one, and it's a distinction I should have caught. I am sorry for the error and will work hard not to let it happen again (or, at least, since we all make mistakes, not to let them make it onto the site). I appreciate the effort of those...

By Andrew Cohen | July 18, 2006; 9:00 AM ET | Comments (35)

Jose Padilla Back in Court

Jose Padilla, the famously former "dirty bomb" suspect who now is a run-of-the-mill alleged terror-camp trainee, was back in federal court in Miami this morning for an important hearing in his criminal case. Padilla, the former "enemy combatant" who now is a plain old defendant, is trying to have his pre-confinement statements to law enforcement officials tossed out of the case. According to the Associated Press, a special anti-terrorism agent for the FBI named Russell Fincher met Padilla's plane at O'Hare Airport in May 2002 because Fincher "believed there was a terrorist act that was going to happen. I believed he had knowledge of that. I needed his help.'' But although Padilla was candid about his past as a Chicago-area gang member and as a recent convert to Islam, he didn't give Fincher whatever information he was looking for (it is still unknown, of course, whether Padilla had any valuable...

By Andrew Cohen | July 17, 2006; 3:20 PM ET | Comments (7)

First Let's Get their Labels Right

Last week, speaking to reporters, U.S. Attorney General Alberto Gonzales kept referring to the detainees at Guantanamo Bay as "killers." But the vast majority of them, by the military's own account, are not. Here is a report done by two attorneys, one of whom is a Seton Hall University law professor and both of whom represent detainees at Gitmo. The men reviewed the U.S. military's "Combatant Status Review Board Letters" (initiated by our government to determine which of the detainees deserved "enemy combatant" status) and discovered, among other things, that 55 percent of the detainees had never committed a hostile act against the United States or its Coalition allies. I have written a full-length column about all this here. Any honest debate over what legal procedures the prisoners ought to receive must start with an honest assessment of what they are alleged to have done, how dangerous (or not) they...

By Andrew Cohen | July 17, 2006; 9:00 AM ET | Comments (2)

Same-Sex Marriage Takes Another Hit

Just one week after the New York Supreme Court upheld a ban on same-sex marriage in that Blue State, a federal appeals court this morning upheld similar laws in the decidedly Red State of Nebraska. When you add into the mix the Georgia Supreme Court's support last week for a ban on same-sex marriage there is no doubt that same-sex marriage proponents are on the legal defensive. In all three cases, a majority of judges were willing, even eager, to defer to the policy choices of legislators and voters because they did not consider a person's right to marry someone of the same sex a "fundamental" constitutional right worthy of a heightened level of judicial scrutiny. And until that part of the legal equation changes, similar efforts by same-sex marriage proponents are likely to fail. Without the "fundamental right" component, judges endorse statutes and laws that are "rationally" related to...

By Andrew Cohen | July 14, 2006; 2:30 PM ET | Comments (1)

NSA Review Must Include the Supreme Court

It looks like the White House and the Senate are on the verge of brokering a deal that would ensure that the constitutionality of the National Security Agency's controversial domestic surveillance program is evaluated by the special secret intelligence courts established as part of the Foreign Intelligence Surveillance Act. That's a good first step. But this judicial review will only be meaningful if the final say on the program's legitimacy is determined by the U.S. Supreme Court. According to this morning's New York Times' piece by Eric Lichtblau (which I can't link to for you), "if the [FISA] court were to rule the program unconstitutional, the attorney general could refine and submit it or, conversely, appeal the decision to the FISA appellate court and ultimately, perhaps the Supreme Court..." But what if the FISA court initially declares the program constitutional? How then does the case get out of the FISA...

By Andrew Cohen | July 14, 2006; 9:00 AM ET | Comments (5)

Wilson v. Lewis, Rove and Cheney, et al

Valerie Plame Wilson and Joseph Wilson filed suit this afternoon in federal court in Washington alleging that their constitutional rights were violated by I. Lewis "Scooter" Libby, Karl Rove, Vice President Dick Cheney. The Wilson's contend that they suffered damages as a result of the leaking of Plame's CIA work by Administration officials. The complaint alleges eight separate claims for relief, including civil conspiracy, civil rights conspiracy, public disclosure of private facts and others. Of counsel for the plaintiffs in the case is noted constitutional attorney Erwin Chemerinsky. My quick read? This is not a frivolous case designed to strong-arm anyone into an apology or a big payday. Nor is it a sweepingly powerful complaint that will send shivers through the spines of federal attorneys. It's a case that will be won or lost upon the law-- of executive privilege, governmental immunity, that sort of thing-- and not upon the...

By Andrew Cohen | July 13, 2006; 4:30 PM ET | Comments (2)

A Brave Judge Makes a Tough Call

Good for Citrus County (Fla.) Circuit Judge Richard Howard who earlier today decided that it was impossible to seat a fair and impartial jury in the capital case against John Couey, who is accused of kidnapping, raping, and then brutally murdering nine-year-old Jessica Lunsford last year. The judge now has ordered the high-profile trial to be moved again, this time even further away from Citrus County, Florida where the crime occurred. Earlier, the judge had moved the case to neighboring Lake County to get away from the massive pre-trial publicity. But apparently Lake County wasn't far enough away from the epicenter of emotion. According to the Sun-Sentinel newspaper, 11 jurors who already had been screened for pre-trial publicity told the judge this morning that they had seen media coverage of the case since Monday. And jurors who honestly told the court that they had heard of Couey's confession-- which was...

By Andrew Cohen | July 13, 2006; 3:00 PM ET | Email a Comment

Ken Lay Was Not "Lynched"

Last week, just after former Enron Chairman Ken Lay died of a heart attack in Colorado, I caught a ton of flak from many ofyou when I suggested that he had not "gotten away with anything" by dying before he reached a federal prison. Today, one day after his memorial service in Houston, I am back to say that by the same token I think it is preposterous to say, as some did at the service, that Lay was the victim of a "lynching" by prosecutors, the press, and the thousands of men and women of Enron who lost it all when the company went bankrupt. There is no contradiction in those two positions. I think Lay died as a direct result of the stress he felt in the wake of his felony convictions following his federal trials in Houston. I think he died at the lowest ebb in his...

By Andrew Cohen | July 13, 2006; 12:00 PM ET | Comments (2)

The Parade of Horribles Travels to the House

In his recent dissent in that HIV case I blogged about last week, California Supreme Court Justice Carlos Moreno wrote about a hypotehetical example offered by the court's majority "which indulges the rhetorical trick of setting forth an extreme scenario to justify a dubious conclusion." I thought about that good line Wednesday evening when I read the Post's account of yesterday's classic encounter between members of the House Armed Services Committee and Administration officials on the topic of detainee rights. The federal lawyers came to the House (on Tuesday they went before the Senate Judiciary Committee) to shore up support for the White House's plan to prosecute the Guantanamo Bay detainees under military rules the U.S. Supreme Court last month said were legally dubious. It is up to Congress now to authorize those rules, or another set of procedures that would give the detainees more due process rights, so that...

By Andrew Cohen | July 13, 2006; 9:00 AM ET | Comments (1)

A Bully on the Links

Thanks to Howard Bashman's "How Appealing" blog, which is one of the best around, I can help report to you that the grand Pebble Beach golf course in California has just lost a major battle in a silly court fight it never should have started. The 9th U.S. Circuit Court of Appeals announced today that it was affirming a lower court ruling that had tossed out Pebble Beach's lawsuit against a fellow named Michael Caddy (no pun intended, I am sure), who operates a small bed-and-breakfast place (without a golf course) near the sea (and pebbly beach) in England called, of course, "Pebble Beach." The big American golf concern had sued Caddy under federal and state trademark law alleging that Caddy's business infringed upon and diluted the famous "Pebble Beach" franchise. Lame, right? I mean, the guy is thousands of miles away, near a beach that actually does have pebbles--...

By Andrew Cohen | July 12, 2006; 3:15 PM ET | Comments (3)

The Gitmo Solution Already Exists

Neal Katyal's voice is one that ought to be heard loudly as the debate over the fate of the Guantanamo Bay detainees is considered in Congress this week. Katyal is one of the lawyers who argued last month's Hamdan case before the U.S. Supreme Court, the one which generated the ruling that blocked the Administration's efforts to try the men without fundamental due process rights. Katyal is out with a new online op-ed in which he argues that courts-martial should be used to prosecute and process the men out of Gitmo. It is as brilliant an idea as it is a simple (and obvious) one and both Congress and the White House could extricate themselves from this whole mess by going that route instead of trying to break new legal ground. Contrast Katyal's sunny optimism with the gloom offered yesterday before the Senate Judiciary Committee by Steven G. Bradbury, acting...

By Andrew Cohen | July 12, 2006; 9:00 AM ET | Comments (1)

After the Turnabout, the Spin

Just hours after the White House confirmed that the U.S. would again comport with an important Geneva Conventions provision in its war against terrorism, Administration officials came before the Senate Judiciary Committee and began to try to weasel their way out from under the letter and spirit of last month's Supreme Court ruling that prompted the stunning change in policy. Not only that, but federal lawyers told Congress that the White House's about-face on the rights of the detainees isn't really an about-face at all but simply a confirmation of the legal position the Justices announced in June when they declared that the Administration's planned military commissions for the Guantanamo Bay detainees violated domestic law and the Conventions themselves. "The memo that went out, it doesn't indicate a shift in policy," Daniel Dell'Orto, principal deputy counsel at the Department of Defense, told Committee members. "It just announces the decision of...

By Andrew Cohen | July 11, 2006; 4:30 PM ET | Comments (45)

A Good Start on Fixing Gitmo

The Pentagon has just decided that it will give detainees everywhere, including those held at Guantanamo Bay, Cuba, protections under the Geneva Conventions, the Financial Times and New York Times reported this morning. This is huge news. It means that the Administration has decided that it no longer can defend the legal position it announced in 2002 that suspected terrorists can be treated differently from prisoners of war. And it means that the Supreme Court's big terror law ruling last month already has shaped government policy for the better. In some ways, the decision, confirmed by White House officials this morning, simply returns U.S. policy about the law of war back to the where it was before the terror attacks of 9/11. But it does so at a time when the world community has been putting significant political pressure on the U.S. to re-commit itself to the letter and spirit...

By Andrew Cohen | July 11, 2006; 9:14 AM ET | Comments (31)

Another Look at the Bus Stop Law

A federal judge in Georgia today will hear from lawyers who are fighting over a new law that would prevent registered sex offenders from living within 1,000 feet of any and every bus stop in the state. State officials say the law is necessary to protect children. Civil rights attorneys say that since there are so many bus stops in the state-- 270,000, by one estimate-- that the new law drastically limits the areas where the approximately 11,000 registered offenders may live. U.S. District Judge Clarence Cooper already has suspended the bus stop provision which is part of a broader effort by Georgia officials to place restrictions upon sex offenders. The point of the hearing will be to determine whether that suspension will continue. It's a terribly complex issue. The law would force registered offenders to move from their homes (if they fall within the space limitation) or else face...

By Andrew Cohen | July 11, 2006; 8:30 AM ET | Comments (16)

No Surprise from the Jefferson Judge

The Justice Department was appropriately subdued Monday afternoon after learning that a federal trial judge had ruled in its favor and against Rep. William Jefferson's (D-La.) in the fight over a search of the politician's Congressional offices. The feds said that they would wait for the inevitable appeal before pouring over the evidence again and that they would continue to work with Congress to come up with a procedure that avoids this sort of a mess in the future. The reason that caution is smart is because the judge who issued the ruling was the same judge who initially approved the search warrant that permitted the feds to sweep into Rep. Jefferson's office in the first place. Chief District Judge Thomas F. Hogan would have turned himself into a legal laughingstock had he effectively overruled himself and declared the fruits of that search off-limits. The real battle in this case,...

By Andrew Cohen | July 10, 2006; 8:00 PM ET | Comments (4)

Carla Martin is Still in Trouble

You probably don't remember Carla Martin. Heck, you probably don't even remember Zacarias Moussaoui now that he has been relegated to history's garbage can (aka the "Supermax" federal prison in Florence Colorado). For those of you whose attention has drifted elsewhere, Martin is the hapless federal aviation attorney who this spring almost derailed the prosecution of Moussaoui, the Al Qaeda conspirator, when she improperly tipped off prosecution witnesses to in-court testimony by providing them with transcripts they weren't supposed to see. Thanks to a good piece today by the Post's Jerry Markon we now know that Martin is still in deep trouble for her transgression-- and that she's apparently not holding up well. Citing Martin's mother, Markon reports that: "The woman at the center of the storm is emotionally distraught, crying when she talks about the criminal investigation and feeling like a prisoner in her own apartment, Martin's mother said...

By Andrew Cohen | July 10, 2006; 4:30 PM ET | Comments (5)

A Really Bad Read on a Really Big Ruling

Want to read the lamest column yet written about the Supreme Court's recent decision to limit an extension of presidential power in the war on terror? Here it is. Written by the eternally angry Charles Krauthammer, the op-ed over and over again mischaracterizes what the Court's majority did and did not do in declaring unconstitutional the White House's current plan to prosecute Guantanamo Bay detainees. Here are just a few examples. Krauthammer starts by saying this: "What the Supreme Court essentially did in Hamdan was to say to the President: Time's up. We gave you the customary half-decade of emergency powers, but that's as far as we go. From now on, the emergency power is over, at least judicially and you're going to have to operate by peacetime rules." That's just plain wrong. The Supreme Court did nothing of the sort-- "essentially" or not....

By Andrew Cohen | July 10, 2006; 1:45 PM ET | Comments (3)

The NSA Fight is Back in Court

This morning in Detroit a federal judge holds a hearing on the National Security Agency's controversial domestic surveillance program. Specifically, federal lawyers and attorneys for the American Civil Liberties Union will argue over whether the feds may properly invoke the "state secrets" privilege to dismiss the lawsuit without any sort of substantive legal review. U.S. District Judge Anna Diggs Taylor already is on the record as being skeptical of the government's claim. And that was before the U.S. Supreme Court refused last month to recognize increased presidential power invoked in the name of fighting terrorism. Will she reject the government's claim and declare the program unconstitutional? Will she rely upon the Supreme Court's recent Hamdan decision in doing so? There is one thing upon which you can make book-- the case will be appealed, perhaps all the way to the Supreme Court, no matter which side prevails in Judge Taylor's...

By Andrew Cohen | July 10, 2006; 9:00 AM ET | Email a Comment

The Kenneth Lay Effect

Wow. We certainly received an overwhelming response to my last post which focused upon the death of Kenneth Lay and my view of it in the larger context of corporate greed. Whether you agreed with me or not, and the vast majority of you did not, your perspectives on the passing of a symbol of excess are a treasure-trove of insight into what America does and does not think about the man who raised up Enron so high and then oversaw its catastrophic fall. I stand by what I said this morning -- that Lay didn't get off easy. I also stand by what I said in columns I wrote about Lay and his co-defendant, Jeffrey Skilling, during their trial this spring: I don't excuse or condone what they did. There is no inherent inconsistency in saying that Lay should have been, and ultimately was, held responsible for what happened...

By Andrew Cohen | July 5, 2006; 6:17 PM ET | Comments (35)

Lay Didn't Get Off Easy

Judging from the amazingly harsh initial reaction from so many of you, there is clearly the perception out there that Kenneth Lay got off "easy"-- if you can call dying of a massive heart attack "easy." Many of you wrote in earlier suggesting that somehow Lay "got away with something" by not having to spend years in a federal penitentiary for his Enron-related crimes. It is both a symbol of how hated he was, and how unforgiving we are as a people, that these comments would be offered in public even before Lay's body has been put into the ground. I do not share these sentiments. I believe that Lay suffered greatly in the years between Enron's collapse and his own. I do not believe that he was the worst among the Enron transgressors. I think the company's demise ruined him, financially and otherwise, and eventually killed him. What more...

By Andrew Cohen | July 5, 2006; 4:49 PM ET | Comments (55)

Kenneth Lay's Legacy: First Thoughts

It will be fascinating now to see whether this tragedy alters the negative perceptions so many people had of Ken Lay and also whether this impacts in some way the sentencing of former Enron CEO Jeffrey Skilling. I doubt the latter but I'm not sure about the former. As for Lay, he came into his criminal trial with a reputation for being a genial guy whose status at Enron put him above the corporate fraud there. But both of those impressions were shattered during the trial when he was fiesty and combative on the witness stand and many witnesses testified that he was quite involved in the daily business of the company. Yet he was steadfast in his own defense and in defense of his beloved Enron, even after it became clear that the company was a mere shell, rotted out by fraud by top executives. Lay becomes the second...

By Andrew Cohen | July 5, 2006; 10:29 AM ET | Comments (66)

Ken Lay Dead of Heart Attack

... reportedly while vacationing up in Aspen. More later....

By Andrew Cohen | July 5, 2006; 10:12 AM ET | Comments (5)

A Sad Story Makes for a New Law

In an important ruling sure to spark debate around the country, the California Supreme Court ruled Monday that a husband may be held civilly liable for infecting his wife with HIV even if the man did not actually know that he carried the diseased. It was enough, a bitterly-divided majority held, that the man's sexual history created for him a reasonable "reason to know" that he might both get the disease and then pass it along to his spouse. Here is the link to the Court ruling and here is the link to my column on the topic. As the Justices described it, the story that generated the lawsuit is horrible. A man convinces his wife to engage in unprotected sex with him. They both become infected with HIV-- later, he gets full-blown AIDS. He accuses her of bringing the disease to the marriage. She then discovers that both before...

By Andrew Cohen | July 5, 2006; 10:00 AM ET | Comments (5)

Summer Reading for Law Nerds

Since there is nothing much happening today, law-wise anyway, and since we are now full-blown into summer, I thought I would take advantage of the lull to throw out the names of a couple of really good law-related books I have been reading lately. No, I don't think by any stretch we could call most of them "beach books" but they still are worth checking out for those of you who are interested in all things legal (and you must be, if you are reading this). "When Courts and Congress Collide" is the well-timed book by Charles Garder Geyh (University of Michigan Press). It is not a light read but it is relevant and interesting, especially in light of the tensions betwen Congress and the Supreme Court this past week in the wake of the Guantanamo Bay ruling last Thursday. Geyh's hypothesis? That there is a "dynamic equilibrium" that keeps...

By Andrew Cohen | July 3, 2006; 3:00 PM ET | Comments (1)

Court Jesting

Like vultures to a carcass, legal commentators swarmed this past weekend over the 2005-2006 Supreme Court term to analyze, discuss, and pontificate about what the Justices' written opinions mean and do not mean. Columnist George Will, for example, wrote a piece in the Post criticizing the Court's majority in last week's redistricting case. Not surprisingly, Will believes the Justices should have stayed away from the "electoral thicket" altogether. Repeating the mantra of the right, he wrote: "Thus does constitutional doctrine become little more than the judiciary's temperament or the temper of the times. But elections, not courts, are supposed to take the nation's temperature." Then there was a piece from Dahlia Lithwick, the superb legal analyst and commentator for slate.com., who also writes for the Post. Lithwick is quite simply at the top of our craft and her piece Sunday about Justice Anthony Kennedy and his role on the Court...

By Andrew Cohen | July 3, 2006; 10:30 AM ET | Comments (3)

 

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