Archive: October 2006

The Plot Thickens in South Dakota

Things were looking good for opponents of South Dakota's ballot measure that seeks to ban almost abortions in the State. A major poll revealed over the weekend gave them a 10-point lead over the folks who want to pass the measure so that it may be heard and resolved (in their favor, by overturning Roe v. Wade) by the United States Supreme Court. Then came Monday afternoon-- and a long-ago argued ruling by the 8th U.S. Circuit Court of Appeals which decided by a vote of 2-1 to keep in place a trial judge's injunction that has prohibited state officials from enforcing an existing abortion notification and consent law in the state. The conservative federal appeals court told South Dakota, and Planned Parenthood, that the trial judge had gotten it right; that existing constitutional law, as handed down by the Supreme Court over the past generation, does not at the...

By Andrew Cohen | October 31, 2006; 8:30 AM ET | Comments (2)

Why the Death Penalty Soon Will Be Abolished*

(*But not forever) If you want to understand why more and more judges are becoming concerned, even alarmed, with the many procedural and substantive flaws in the system of capital punishment in America, take a look at what is going on down in Texas, where the courts, the lawyers, and the politicians all have conspired to neglect or undermine the constitutional guarantee that no man may be executed by the state without proper due process of law. As Chuck Lindell reported Sunday in the Austin American-Statesman, 273 men and women have been executed in Texas over the past 11 years during a time when too many court-appointed defense attorneys have failed to meet even minimal standards of legal representation. You may say: "So what. Those murderers got what they deserved." But bad legal work, and a legal system that countenances it, diminishes us all and ultimately is self-destructive. Lindell's piece...

By Andrew Cohen | October 30, 2006; 9:00 AM ET | Comments (8)

The NJ Ruling Was Not "Anti-Marriage"

President Bush Thursday lashed out at the New Jersey Supreme Court for voting earlier this week to give same-sex couples the same rights as opposite-sex couples when it comes to marriage benefits. "Yesterday, in New Jersey, we had another activist court issue a ruling that raises doubts about the institution of marriage," Bush said. The President's message was part of a concerted effort by the GOP to push the ruling onto the political agenda just in time for the election. The Boston Globe this morning reports: "In Pennsylvania, where Rick Santorum , a conservative Republican, is struggling to keep his Senate seat, the Pennsylvania Family Institute mailed fliers to potential voters, warning that 'homosexual legal activists in Pennsylvania and elsewhere will make good on their agenda to exploit rulings like New Jersey's to force homosexual marriages or marriage benefits on our commonwealth.'" These comments are flat-out wrong (on many different...

By Andrew Cohen | October 27, 2006; 9:45 AM ET | Comments (20)

Who Wants to be Ramzi Binalshibh's Attorney?

If you were a lawyer, would you want to represent Ramzi Binalshibh, the high-level 9/11 plotter who both helped the hijackers and tried to be one himself? I didn't think so. The Washington Post has a great story this morning about Binalshibh's so-far-unsuccessful request to have an attorney and to try to challenge his detention at Guantanamo Bay, Cuba. His effort won't just test our new federal law that suspends habeas corpus protections for the detainees, it will test the boundaries of the legal profession's commitment to representing the worst of the worst. Here in part is what the Post's Carol D. Leonnig and Julie Tate reported this morning: "Tina Foster, a civil liberties lawyer who previously helped coordinate the work of dozens of law firms representing hundreds of Guantanamo detainees, said it would be a 'challenge' to find a pro bono lawyer for Binalshibh because he has been virtually...

By Andrew Cohen | October 26, 2006; 9:00 AM ET | Email a Comment

Function Over Form

Regardless of which side of this dividing line you fall, you should know that this is not the end of the line for the same-sex marriage debate in New Jersey. It is just a signpost along the way. Now that the New Jersey Supreme Court has declared that same-sex unions ("marriage" or whatever else it will be called) are permitted under the state's constitution-- or at least aren't prohibited by it-- the battle will move on to the state house. Same-sex marriage foes will try to get around this ruling by pushing to get a proposed constitutional amendment banning same-sex marriage onto the next ballot (perhaps in time for the 2008 presidential election). Same-sex marriage supporters, meanwhile, will lobby those same politicians at the very same time to try to ensure that the rights and privileges recognized today by four state supreme court justices are called "marriage" privileges and nothing...

By Andrew Cohen | October 25, 2006; 12:50 PM ET | Comments (5)

Fair or Not, Skilling Got What He Deserved

Sure, it's unfair that former Enron CEO Jeffrey Skilling just received a federal prison sentence that is four times longer than that of former Enron CFO Andrew Fastow, the fellow pretty much everyone agrees was the prime architect of the collapse of Enron. And sure it is unfair that both of these men will go to prison for years and years while Kenneth Lay, the former Enron Chairman, never had to a spend a day in jail for his role in the massive collapse of the company. But life is unfair sometimes. And certainly no one who knows anything about the life and times of Skilling, until today anyway, could contend that he did not have more than his fair share of good fortune during his meteoric rise to corporate prominence. To the bitter end, and to his sentencing detriment, Skilling refused Monday to demonstrate much regret, or accept much...

By Andrew Cohen | October 23, 2006; 1:10 PM ET | Comments (34)

The Story of Conrad Burns and Wild Horses

Thanks to Kurt Brungardt, writing in the November issue of Vanity Fair, we now know the extent to which Bush Administration officials and key GOP members of Congress have conspired to erode the protections that for a generation have protected wild horses in America. Unfortunately, the article is not available online (at least I couldn't find it. If you can, please post it below and thank you). Trust me when I tell you that it will make you think again about your opposition to the American Horse Slaughter Prevfention Act, which passed the House this fall and might get a vote in the Senate after the election. And if you don't trust me, spend the time (30 minutes or so) and the money ($4.50) to buy yourself an issue of the magazine. Brungardt starts with the story of "Wild Horse Annie" (a horse-saving crusader named Velma Johnson) and the landmark...

By Andrew Cohen | October 23, 2006; 7:00 AM ET | Comments (10)

Don't Cry for Him, John G. Roberts, Jr.

To the surprise of some and the chagrin of others, I was a big booster of John G. Roberts, Jr.'s nomination to the U.S. Supreme Court. Not only is he patently brilliant, I believe that he also has the makeup to evolve over time on the Court and to become more moderate than his current record indicates-- just like Justices Sandra Day O'Connor, David Souter and Anthony Kennedy did or have done during their tenures on the bench. I even went so far during his confirmation hearing before the Senate Judiciary Committee 13 months ago to generally praise his comportment while complaining about the lack of substance in his responses to the Senators. So imagine how disappointed I am today to learn that the Chief Justice is getting all whiny about his four-day long performance before the Committee last September. According to the Associated Press, Chief Justice Roberts told University...

By Andrew Cohen | October 20, 2006; 4:00 PM ET | Comments (4)

Don't Take My Advice-It Belongs to Me

It's come to this in the world of the law. Attorneys now are patenting their novel ideas, in the tax code area, so as to try to prevent or limit their competitors from also using those ideas to better serve their clients. As Floyd Norris tells us in Friday's New York Times, the U.S. Patent Office has issued so far 49 patents for tax strategies since a 1998 appeals court ruling that declared that such patents could be valid. As Norris notes, the trend is a disturbing, almost preposterous one. Taken to its logical next step, never mind its extremes, any novel tax plan, or even any novel corporate law idea, could be patented by the attorney, or paralegal, who came up with it which would prevent that idea from being used by anyone else. Not only would that stunt the growth and development of the law, not only would...

By Andrew Cohen | October 20, 2006; 10:15 AM ET | Comments (3)

One Attack, Two Attack, One Event, Two

More than five years after the Twin Towers fell, a federal appeals court declared that the owner of the property should be paid twice the limit on many of the insurance policies he had in place on September 11, 2001-- and only once on some of the other policies he had in hand. The 2nd U.S. Circuit Court of Appeals affirmed a trial judge's ruling that when the two hijacked planes hit the buildings it was not a single "incident" for insurance purposes but rather two separate incidents, both of which triggered payment clauses in some of the insurance contracts. The net result from this complicated case is that Larry Silverstein will receive $4.6 billion in insurance proceeds for the loss of the World Trade Center instead of the $7 billion he had sought. That may not seem like a wipe-out victory for Silverstein to you, until you consider that...

By Andrew Cohen | October 19, 2006; 9:00 AM ET | Email a Comment

Ken Lay's Judge Got it Right

I know this is difficult for many of you to accept, and I'm not arguing that its logical outside of the bounds of the law, but U.S. District Judge Simeon Lake got it right Tuesday when he vacated the conviction of former Enron Chairman Kenneth Lay as a result of Lay's post-conviction, pre-sentencing death in July. Although federal prosecutors had asked Judge Lake to delay his ruling until Congress could act on a request by the Justice Department to change the law, he refused to do so and simply applied the law as it now stands. Tough luck for the feds. Tough luck for the many victims of Enron who were hoping that they could more easily tap into Lay's already-diminished coffers. Tough luck for headline writers who now can't declare that Lay is a "convicted felon." But it is not a judge's role to make things more convenient for...

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

The Death of a Journalism Icon

Christopher Glenn died today. The veteran CBS News Radio anchorman was 68 years old, had retired early this year from the World News Roundup broadcast (the oldest continuous news broadcast in America), and had just last night been honored with yet another Edward R. Murrow Award for his fine work. You might have seen him on television a generation ago doing "In the News" or "What's it all About"-- series for young viewers. Or you might have heard his deep, graveled, chain-smoking voice coming out of your radio, day in and day out for 35 years. He was until today a living link to a bygone era of journalism. On February 23, the day of his last World News Roundup broadcast, Chris said this on the air: "As this broadcast comes to a close, time for me to say farewell. I've been doing the work I love for nearly 50...

By Andrew Cohen | October 17, 2006; 5:17 PM ET | Comments (2)

The Coalition of the Unwilling

Our national headache, otherwise known as the detainee prison at Guantanamo Bay, Cuba, would be a lot more tolerable if our so-called allies in the war on terrorism were willing to step up and accept custody of some of their own nationals. And, indeed, just yesterday, two detainees were released from Gitmo and returned to their native Pakistan. But as Craig Whitlock writes in this morning's Post we are not getting the sort of help and cooperation we could use in dispersing the detainees- even from some countries that would like to count themselves as some of our staunchest allies. Whitlock writes: "According to documents made public this month in London, officials there recently rejected a U.S. offer to transfer 10 former British residents from Guantanamo to the United Kingdom, arguing that it would be too expensive to keep them under surveillance. Britain has also staved off a legal challenge...

By Andrew Cohen | October 17, 2006; 11:30 AM ET | Comments (7)

The Dog Ate My Jury Summons... How to Fix The System

The Christian Science Monitor has a great story today about the demise of the jury system resulting in jury no-show rates approaching 90 percent (in Miami). The gist of the piece is that more and more people are ignoring jury summonses when they get them. The other gist of the piece is that officials in some places are getting downright creative, and not just a little sucessful, in getting jurors to show up, sober and on time. In Massachusetts, reports Patrik Jonsson, state officials "ran an educational campaign about the jury system and regularly pursues delinquent jurors. The state has cut its no-show rate in half since 1996, from 14 percent to six percent." A Nebraska county, Jonsson tells us, "plans to introduce an e-Jury program using the Internet that aims to be more juror-friendly. It allows people to go online to request deferrals or provide reasons why they're unable...

By Andrew Cohen | October 17, 2006; 7:00 AM ET | Comments (2)

A Good Lawyer Who Did a Bad Thing Gets a Break

Turns out that Monday, October 16 is Lynne Stewart's lucky day. The 67-year-old civil rights attorney and activist today recieved a 28-month prison sentence from a federal trial judge for providing material support to terrorist after she passed along information from a jailed client to his followers. She could have received 30 years, which given her recent cancer would have effectively become a life sentence. Even her most ardent fans, and she has plenty both within and without the legal community, must concede now that Stewart did cross a line when she carried messages from Omar Abdel Rahman, the blind sheik involved in the first attack upon the World Trade Center, to his minions around the world. Why she did it we may never know fully. That in the end she was mortified by her transgression is fairly clear from her letter to her sentencing judge....

By Andrew Cohen | October 16, 2006; 4:45 PM ET | Comments (1)

The Death of a Trial Judge

A former federal trial judge in Denver died this week. Chances are you never knew, or even heard of, Sherman Finesilver, despite the fact that he presided over some of the most important trials of his time in the Rocky Mountain West. I never practiced before him but I heard some great stories about the ways in which he controlled his courtroom and the litigants in it. Federal trial judges are among the most powerful creatures on Earth. Their rulings, especially in the early stages of a case, are rarely reviewable and even more rarely overturned. They hold immense power through their written orders, including the power to hold in contempt any litigant who doesn't do precisely what the judge wants them to do when he wants them to do it. Some judges are light-handed when it comes to exercising this power. Some are not. For example, one judge I...

By Andrew Cohen | October 13, 2006; 8:56 AM ET | Comments (1)

Britain's Libel Laws Finally Join the Modern Age

Big news out of London yesterday-- big news for journalists there and all over the world. The Law Lords, Britain's highest court in the House of Lords, ruled that newspaper publishers, editors and reporters who are sued for libel are not required to prove the truth of the allegations contained in their pieces. The decision represents a sea-change in British law and brings that country's libel standard much closer to where ours is. Not surprisingly, British newspapers were delighted with the news. Me? I was impressed most by the language used by the judges. According to The New York Times' take on the story: "Another member of the panel, Lord Scott of Foscote, defended the right of news organizations to publish material deemed private by the government. 'It is no part of the duty of the press to cooperate with any government, let alone foreign governments, whether friendly or not,...

By Andrew Cohen | October 12, 2006; 9:00 AM ET | Comments (7)

The Making of a Terror Rock Star

I am willing to lay you smooth odds that before today you had never heard of Adam Gadahn; that you never knew he's the American kook who appears in Al Qaeda videos; or that he was raised on goat ranch in California but now spews creepy rhetoric against the country of his birth. But now you and everyone else in the world knows those things, not because I am telling you them, but because our government has chosen to make this insignificant front-man a martyr, a terrorist rock star, another grim face of terror, by making him the first American in half a century to be charged with the capital crime of treason. Here is what the Justice Department said this afternoon about Gadahn when the feds announced the indictment. "Adam Gadahn is a U.S. citizen who made a choice to join and act as a propagandist for al Qaeda,...

By Andrew Cohen | October 11, 2006; 4:15 PM ET | Comments (11)

About Sentences and Periods

The Supreme Court this morning takes up a very important case about sentencing rules for criminal defendants, one that is sure to determine the fate of California's sentencing scheme but also perhaps give much-needed definition to the Court's 2005 landmark ruling that gave back some discretion to federal judges to determine sentences under the Federal Sentencing Guidelines. In Cunningham v. California, the Justices are going to look at a case involving the sexual abuse of a child by a former police officer. The defendant, John Cunningham, was sentenced by a state court judge to a maximum of 16 years in prison but the question in the case is whether that judge based that sentence upon factors other than those found beyond a reasonable doubt by Cunningham's jurors. That appears to be a no-no based upon a few recent Supreme Court decisions which have held that a defendant can only receive...

By Andrew Cohen | October 11, 2006; 8:30 AM ET | Email a Comment

While Congress Implodes, Horses Die

Putting some money where my big mouth is, my friends and I saved a horse from slaughter yesterday but a record number of horses were not so lucky. According to the Humane Society of the United States, a record number of horses are being slaughtered in America in advance of the passage of a law that would ban slaughter for human consumption overseas. The Humane Society reports: "In a rush to kill as many horses as possible before a ban is imposed, the foreign-owned horse slaughter industry in the United States has reached new decade-highs for the number of horses butchered in a single week - 2,463 during the week ending Sept. 16, the latest week available from the U.S. Department of Agriculture and just a week after the U.S. House of Representatives voted to outlaw horse slaughter for human consumption. According to the USDA, 9,163 horses were slaughtered in...

By Andrew Cohen | October 10, 2006; 9:00 AM ET | Comments (8)

Stoking the Fires of the Duke Lacrosse Case

Things have been relatively quiet (at least in public) in the Duke University sex assault case as the parties and their lawyers crank up toward trial. But there is a very interesting story now out in New York magazine that is likely to stir things up a bit for the next week or so. The piece savages both Michael Nifong, the prosecutor who wants to put three Duke lacrosse team players on trial for sexually assaulting a stripper at a party this past spring, and The New York Times, for its coverage of the case. Kurt Andersen, author, journalist and all-around gadfly contends in a piece called "Rape, Justice and the Times" that the paper has blown it by refusing to be critical enough of the prosecution's case and by being too quick to rush to judgment that a rape occurred at the party. For anyone interested in the case,...

By Andrew Cohen | October 9, 2006; 2:00 PM ET | Comments (2)

Go to South Dakota, Madam Justice

Former Supreme Court Justice Sandra Day O'Connor has become a leading voice in the fight to maintain judicial independence in the face of concerted conservative efforts to undermine the authority and power of federal and state judges. And this weekend, that voice sounded in Virginia, where Madam Justice once again warned us that we scorn our judges at our own peril. But the big election-year battle over judges is not back East. It is out West, in South Dakota, where anti-judge zealots are pushing a ballot initiative that would make judges liable for unpopular decisions-- their salary and pensions could be reduced by citizen "grand juries." I just wrote a column about this which you can read here....

By Andrew Cohen | October 9, 2006; 8:40 AM ET | Comments (4)

Making Judges More Accountable (not that they need to be)

In Colorado, as I have mentioned before, there is an election-year fight in process between roiling conservatives who want to impose term limits upon all appellate judges in the state (thus destroying, in one fell swoop, the slim Democratic majority on the state's Supreme Court) and... well, everyone else, who see the measure for the unalloyed waste of time it represents. A bad idea from the start, Amendment 40 has been rejected by most of the state's political and legal leaders and that was before a prestigious new group came out with a series of practical solutions that might ease concerns about judicial accountability without upsetting the entire apple court, I mean, cart, the way Amendment 40ers want. The University of Denver's "Institute for the Advancement of the American Legal System" hasn't been around long enough to yet live up to its exalted name. But it's a serious effort by...

By Andrew Cohen | October 6, 2006; 9:00 AM ET | Comments (4)

Trial By Jury Not Just a Guarantee, Also a Requirement

Here is an issue you don't see every day. The 9th U.S. Circuit Court of Appeals earlier this ruled that prosecutors had the right to veto a request by a group of sex assault defendants to waive their right to a jury and allow their case to be tried by a judge. In doing so, the federal appeals court said the trial judge, who had agreed to try the case himself because he did not believe the defendants could receive a fair trial in front of jury, had made a clear error of law. The bottom line? If prosecutors feel that a jury is likely to be harsher to a defendant the judge would be they have the right to make it happen. Or, from the other perspective, a defendant's guarantee of a trial by jury isn't just a guaranteee-- in most cases, it's a requirement....

By Andrew Cohen | October 5, 2006; 3:00 PM ET | Comments (1)

Yet Another Reason Why Congress Failed Last Week

The New York Times and other newspapers this morning offer mind-blowing detail about a federal appeals court hearing yesterday held to determine whether high- and mid-ranking government officials should receive immunity for their treatment of a Pakistani man named Javaid Iqbal who was swept up in an early terrorism raid shortly after 9/11. Among the defendants in the civil action are the former U.S. Attorney General John Ashcroft, Dennis Hasty, the former warden of the Metropolitan Detention Center in New York where Iqbal was held, and several FBI officials responsible for fingering men like Iqbal in the first place. Here is a passage from Nina Bernstein's piece in the Times: "Mr. Hasty's lawyer, Michael L. Martinez, had argued in his brief that even if everything alleged in the lawsuit were true -- as the appellate judges must assume at this stage of the litigation -- Mr. Iqbal's treatment 'never approached...

By Andrew Cohen | October 5, 2006; 8:00 AM ET | Email a Comment

St. Antonin the Rude

Another Supreme Court term, another reason to wonder why Justice Antonin Scalia says the things he does. The legal world this morning is all agog over a careless and insensitive remark Justice Scalia made yesterday during the first day of oral argument for the Court's new term. In a case about deporation (to Mexico) following a drug conviction, the eternally angry Justice said this to an attorney arguing before the Court: "No one thinks your client is abstaining from tequila for fear of being deported," he said. Supervision "is impossible once he leaves the country," he added. "This is an ingenious exercise of the conceivable." According to Tony Mauro, a dean of Supreme Court reporters, "the comment raised eyebrows in the audience and offended some who were told about the remark afterward on the grounds that it perpetuates stereotypes about Mexicans. Lawyers directly involved in the case could not be...

By Andrew Cohen | October 4, 2006; 11:30 AM ET | Comments (6)

First, Start By Checking their Mail

The government has told us that in order to surveil terrorists it has to infringe upon our fourth amendment rights to be free from "searches" without a prior court order. It has told us that it needs to torture-- I mean, use "alternate procedures" upon-- terror detainees in order to glean information from them. It has refused to allow certain other terrorism suspects to have any due process access to an attorney because that attorney's visit, alone, might interrupt vital interrogation techniques. It has, in short, asked us to make legal sacrifices large and small in the fight against terrorism. So the least it could do, you might think, is figure out a way to open and read the mail of terror suspects currently in prison right here in America. That's right. According to this report by the Office of Inspector General, the Justice Department has "not effectively monitored the...

By Andrew Cohen | October 4, 2006; 7:00 AM ET | Comments (3)

Gitmo Lawsuits: The Next Generation

Even before President Bush has signed the new terror detainee legislation that Congress passed last week, there are two new challenges to the way the Administration is handling detainees all over the world. On Monday, a lawsuit was a lawsuit challenging the detention of about 50 men currently being held at Bagram Air Force base in Afghanistan. And today, just a few hours ago, another lawsuit was filed on behalf of one of the 14 new detainees transferred last month to Guantanamo Bay, Cuba on the orders of the White House. Both challenges are designed to bring to court all of the legal issues raised by the new legislation which, remember, seeks to ban the ability of detainees to make precisely the sorts of arguments they are making now. In the Bagram lawsuit, the detainees, through attorneys, claim they "are innocent men" held unustly and without cause. "They are," their...

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

Gag Me

The good news is that the Supreme Court yesterday declined to come to the rescue of Gloria Allred, the omnipresent television commentator who was "gagged" by a trial judge from speaking to the media last year about a California case in which she represented one of the witnesses. Lord knows the world needs to see and hear less of Allred. The bad news is that the Justices refused to use Allred's appeal to bring some much needed clarity to an area of the law with which I am, unfortunately, all too aware. The "gag order" in its many forms is designed to keep lawyers, witnesses, and litigants from communicating publicly in a way that might impact the fair trial rights of a defendant (or plaintiff in a civil case). They are nearly impossible to enforce but that doesn't stop judges from issuing them with increasing frequency. And each time a...

By Andrew Cohen | October 3, 2006; 11:30 AM ET | Email a Comment

Bad Due Process Begets Bad Due Process

The New York Times Sunday had a fine piece about the tug-of-war inside the Bush Administration over terror detainee policies. What was striking to me, reading the lengthy article by Tim Golden, is the extent to which hardliners within the White House, especially Vice President Cheney and his underlings, fought against Pentagon and State Department experts over what the new policy would be. How nasty the infighting was. How high up it went. How broken seems the system of internal debate within the Administration. How much that might explain how and why the White House has made the political decisions it has over the past few years. Read the piece. And then tell me you don't feel worse about the legislation Congress passed last week. Equally fascinating is the notion, fleshed out by Golden, that some government officials now believe the new legislation "might fail to meet a primary goal...

By Andrew Cohen | October 3, 2006; 7:00 AM ET | Comments (1)

The Journey From Friend to Foe

Some of you might be wondering, reasonably enough, how it came to pass that a fellow (me) who was so in favor of a Congressional compromise over terror detainee legislation would in the end become such a foe of the deal that ultimately became the law. Early on, when news first broke of the so-called "GOP compromise" brokered by Sen. John McCain (R-Ariz) and others, I warned you that the devil would be in the details. When those details finally emerged last week, some of them only days before the voting, it became clear to me that the "compromise" was in fact no such thing and that the legislation unnecessarily (and in my view dangerous) curtails core legal protections. It's as simple as that. The Congress and the White House had a unique opportunity to do the right thing and didn't. And in times like this that just isn't good...

By Andrew Cohen | October 2, 2006; 7:00 AM ET | Comments (2)

 

© 2007 The Washington Post Company