Guest Post

  • October 8, 2015
    Guest Post

    by J. Paul Oetken, U.S. District Judge for the Southern District of New York

    Judge Richard D. Cudahy, who served for 36 years on the United States Court of Appeals for the Seventh Circuit, died last month at the age of 89. He was beloved by his family and friends, his colleagues, and his many law clerks. He was also admired as a brilliant and influential jurist whose opinions shaped the development of the law in myriad ways.

    I served as one of Judge Cudahy’s law clerks from 1991 to 1992, and that year was one of the most rewarding and interesting of my career. The judge was not only a kind and generous boss; he was also a great teacher and mentor. We discussed every case in detail, and through that process I gained great insight into how he thought about law and justice.

    Judge Cudahy’s approach to the law was humanistic and pragmatic; he was neither formalistic nor result-oriented. He cared deeply about the judicial craft, taking great care to write opinions that were well-reasoned and principled, while always being particularly sensitive to how legal doctrine affects people’s lives. His sense of fairness and even-handedness pervaded his evaluation of every case, regardless of the background of the litigants involved.  In a prisoner’s appeal in a civil rights case, Judge Cudahy wrote (in response to a colleague’s economic analysis):  “Since the financial net worth of most prisoners is zero and their economic value while incarcerated perhaps less than zero, it is not surprising that efforts to take them seriously as human beings are sometimes scorned. They are not all Jean Valjean, but they are people.”

    The judge was modest as a jurist, just as he was modest as a person. He did not pretend that an outcome was obvious when it was not, nor did he construct fancy theories to dictate results of cases.  He was an honest judge who practiced his craft straightforwardly.

    He was also extraordinarily hard-working and well-prepared. Every night he would carry a heavy stack of briefs home with him.  When we discussed our cases, he had always read the briefs thoroughly and had his own views (and questions) about each of the issues presented.  He had high standards for his written opinions, going over drafts repeatedly until he was satisfied that an opinion was right, both in its result and in its explanation.

  • October 8, 2015
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    The state of Alabama has once again relegated some of its citizens to second-class status.  The confluence of driver’s license office closures and a much maligned voter identification law fosters the dishonoring of Alabama’s black and impoverished citizens in a perpetual cycle of deprivation and struggle.

    The genesis of the recent strife begins with Alabama’s enactment of a voter ID law in 2011, requiring citizens to present a valid, government-issued ID to vote at polls beginning in 2014. One of the most common forms of ID satisfying the state law are driver’s licenses. Pursuant to the state’s own study conducted in 2014, 10 percent of registered voters – 250,000 citizens – lack any form of the required photo ID, and 20 percent of registered voters – 500,000 citizens – lack a valid Alabama driver’s license or non-driver photo ID.

    Ostensibly due to spending reductions in Alabama’s fiscal year 2016 budget, the Alabama Law Enforcement Agency (“ALEA”), of which the Driver License Division is a part, closed 31 part-time, satellite driver’s license offices. As a result of these closures, 28 of Alabama’s 67 counties will not have facilities to issue licenses to first-time driver’s license examinees or out-of-state transplants seeking an Alabama license. Those seeking license renewals may do so at county probate offices or online (yet those options present their own problems).

    Citizens and civil rights defenders decry the closures due to the disproportionate burden massed upon black citizens and the impoverished in the largely rural counties. The closures eradicate eight of the ten counties in Alabama with the highest percentages of non-white, registered voters. Indeed, those eight counties comprise the only counties where more than 75% of the registered voters are black citizens. A refined analysis portrays a more troublesome picture. While 80 percent of the counties with non-white voting majorities suffer the closures, only 35 percent of the counties with white voting majorities bear any consequences (20 of the 57 remaining counties in Alabama), thus leaving 65 percent of the counties with majority-white voters largely unaffected. This disparity in the closures’ impact starkly portrays the inequity in ALEA’s budget cutting.

  • October 6, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    Yesterday, the Supreme Court issued a per curiam ruling in Kulbicki v. Maryland. The ruling was brief but unusual; the Court does not often take certiorari to review state habeas rulings. Here, the Maryland Court of Appeals had granted habeas to a prisoner whose trial lawyer had utterly failed to challenge an FBI agent’s testimony about Comparative Bullet Lead Analysis, or CBLA. The FBI agent did not find an “exact” match but sufficient similarity to conclude that the bullet that killed the murder victim came from Kulbicki’s weapon (and also matched a fragment in his truck). The problem was that this CBLA bullet analysis was flawed science. The National Academy of Sciences concluded in a 2004 report that "The available data do not support any statement that a crime bullet came from a particular box of ammunition.” Fundamental flaws in the assumptions and empirical basis for CBLA analysis led Maryland courts to reject CBLA evidence 15 years later, and the FBI to itself later disavow and discontinue use of the technique in 2005.  

    Should Kulbicki’s lawyer have known back in 1995, at the time of the trial, that this was flawed science? Kulbicki argued that a report co-authored by the analyst showed how the FBI analyst had doubts even in 1991 “that bullets produced from different sources of lead would have a unique chemical composition.” The Court rejected the notion, saying that “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Further, “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial,” it would be asking lawyers to "go looking for a needle in a haystack” to search for such evidence that the forensics were flawed.

    Compare the Court’s ruling in Kulbicki to last year’s per curiam opinion in Hinton v. Alabama, another case examining a lawyer’s failure to adequately develop forensic evidence at trial, including firearms and tool mark analysis. The outcome was different. In Hinton, a death penalty case, the Court found the lawyer to have been constitutionally ineffective. (On remand, Hinton’s conviction was vacated). From the beginning, the tone in the two per curiam opinions could not have been more different. In Hinton, the Court correctly stated the Strickland v. Washington constitutional standard for ineffective assistance of counsel as asking “if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.” In Kulbicki, the Court oddly misstated the standard as “meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” That description of the Strickland test was, at the very least, a casual and imprecise one.

  • October 5, 2015
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    The New York Police Department announced on Thursday that it has established new and unprecedented guidelines governing the use of force, and perhaps more importantly, the reporting and recording of each instance in which an NYPD officer uses force, whether or not it results in an actual arrest. According to The New York Times, not only will the use of force during incidents resulting in lawful arrests be reported and investigated, “but also in other encounters with the public, including the sort of brief, violent detention and release that occurs routinely on the street.” 

    Huh?  This raises at least two questions: In what universe are the police routinely engaging in violent encounters and detentions with the public on the street that result in that one-time “suspect” being released without arrest and criminal charge?  On what legal basis was the stop initiated in the first place?  James Blake, the African American tennis star who was attacked and thrown to the ground by an NYPD officer in September, is an example of just such a “brief, violent detention.” These “encounters” (assaults) apparently occur with such frequency in New York City that it is only now, in 2015, after an attack on a celebrity former professional athlete attending the U.S. Open, that these incidents of “rough police play” are even seen as worthy of being recorded and investigated. 

    Any encounter or stop on the street between a police officer and a member of the public that results in a “violent” detention, no matter how brief, where there is no reasonable suspicion or probable cause that results in an arrest is a de facto instance of excessive force. Without doubt, there will be rare and infrequent instances where officers strongly believe that they have the reasonable suspicion or probable cause required to make a legal stop on the street and in so doing see their suspicions dispelled upon further investigation. The police may even see the need to use some level of force in making the stop. 

    But the routinization of the use of violence by the police in New York City in making street stops of innocent and law abiding citizens like Mr. Blake is troubling, as it should be. The world saw what the NYPD did to Mr. Blake; what we have not witnessed are the no doubt hundreds of thousands of other instances during the past several years of men, women and children of color being knocked down, bundled, tackled, beaten and then unceremoniously sent on their way without arrest or charge by the NYPD.

  • October 5, 2015
    Guest Post

    by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

    On the first Monday in October, the Supreme Court returned from its long summer recess. Thus, the 2014 NLRB v. Noel Canning ruling -- which revoked President Barack Obama’s 2012 NLRB recess appointments – has well passed it first anniversary.

    The high court’s conjuring of an absolutist 3-day Senate recess minimum conjoined with a vague and unworkable “presumptive 10-day” Senate recess rule (with an added “unusual occurrence” complexity) continues to be analyzed.  Some in the academy acclaim Steven Breyer’s majority opinion as reflecting a new “pragmatic formalism” while most others praise it for at-least being opposite Antonin Scalia’s dissenting-concurrence which restated the D.C. Circuit’s uber- textualist ruling.  I continue to think it was a mistake for the judiciary to have involved itself in the political branch appointments battles.

    No reporter, academic, or commentator, however, has yet revealed that Noel Canning also revoked President Lyndon Johnson’s  January 1964 judicial recess appointments of civil-rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovtiz. In a just-published article in the Houston Law Review’s online edition, I expose the unconsidered Noel Canning consequence of the judgeship revocations.  As the recess commission were signed by Lyndon Johnson during an eight day intersession recess of the 88th Senate,  Noel Canning judged the recess 48 hours too short and the judgeships illegal.  The recess appointments  were “rendered illegitimate” for failing the “presumptive 10-day” recess test.  The eight day break was 48 hours too short.

    Six weeks after John F. Kennedy’s murder, LBJ forced the racial and religious integration of three federal courthouses. The new president signaled his administration’s commitment to civil rights and directly challenged racist and reactionary forces in both the Senate and the federal judiciary. The LBJ White House tapes tell the story for Higginbotham, Robinson, (expect a slight delay) and  Rabinovitz,  and as Johnson made sure he secured the most political capital for signing each commission in the coming battle for the Civil Rights Act.