Sep 29 2016

Override of Veto on 9-11 Lawsuit Law Exposes US to Massive Litigation

This Congress is considered by pundits on both sides of the aisle as one of the worst and most ineffectual Congresses ever. They have not been able to pass a single piece of major legislation in years. So now they finally decide to act in a bipartisan manner and what do they accomplish? Overriding President Obama’s veto of a feel-good but ill-advised law allowing families of 9-11 victims to sue countries that “didn’t do enough to stop terrorism.” The bill is called
The Justice for State Sponsors of Terrorism Act (JASTA) — which for the first time would allow suits in American courts against state sponsors of terrorist attacks inside the US.

I know, it sounds great. Why shouldn’t victims families who suffered tremendous losses be allowed to sue the foreign nations that financed or supported or outright committed the attacks? Lots of reasons. But the most important reason is retaliation which puts our armed forces and our resources abroad at risk. The US has set up what is called “status of forces agreements” that ensure that when the US deploys troops, they’re not vulnerable to these kinds of private lawsuits. Other countries agree to do this because the US reciprocated with them. Now that the US has opened the door to these private lawsuits, all bets are off. That means we can be sued in a foreign country for alleged acts of terrorism or harm caused by the US abroad. And if you are thinking to yourself “But the US doesn’t commit terrorism so what do we have to worry about” Well the other nations may make their law more flexible and allow suits for any kind of violent act that causes harm. More likely is that it will be foreign courts that will decide what acts allow for compensation and one man’s “police action” or “freedom fighting initiative” or “support for our allies” is another man’s “war” or “terrorist attack.”

This is political grandstanding at its worst. It’s pandering and its nonsensical. Of course, Trump henchman Rudy Giuliani proclaimed it a huge victory for 9-11 families and it passed the Senate 97-1 with Harry Reid voting to uphold the veto and Tim Kaine being absent but later stating he would have joined in voting to override. Hillary Clinton has stated that she supports the bill. Here is what the President had to say in defense of the veto:

Enacting JASTA into law … would neither protect Americans from terrorists attacks nor improve the effectiveness of our response to such attacks. Doing so would instead threaten to erode sovereign principles that protect the United States, including our U.S. Armed Forces and other officials, overseas.

Senate Foreign Relations Committee Chairman Bob Corker, R-Tennessee, said he would watch for possible “blowback” from the law to determine if Congress should rewrite portions of it in the near future. It may be too late by then Corker.(He voted for it besides his “misgivings”). He also wrote a letter to John Cornyn of Texas, the chief sponsor of the bill before the vote, asking Cornyn to consider the consequences of the law to US interests and the concept of sovereign immunity in general. Cornyn responded to him and the President by saying:

How can anyone look at the families in the eye and tell them that they shouldn’t have the opportunity to seek justice against a foreign government responsible for the death of their loved one? At the end of the day, this vote is about doing what’s right for the American people.”

Abandon All Hope Ye Who Enter Here

Abandon All Hope Ye Who Enter Here

No its not. Its about an upcoming election and a legislative body without the spine to make the hard call. And as to how we can look the families in the eye and tell them they can’t sue? That’s also easy. Explain the harm it can do to US interests abroad including the men and women we consistently put in harm’s way in countries that would love to sue us as terrorists and seize our assets abroad. Explain to them that the US will not be open to suit in countries all over the world. Tell them that the concept that sovereign nations cannot be sued in this fashion is as old as civilization itself practically. You might also remind them (as harsh as it may sound) that 9-11 families are the best compensated victims in the history of civil law. This country stepped up and did right by them. Huge amounts of money poured in from the private and public sector. Dozens and dozens of lawyers volunteered to manage the claims through a one-of-a-kind compensation system. So this is not a pool of people that did not receive compensation for their loss and who are in need of finding someway to get justice. So please don’t tell me, Congressmen, that you did this “for the families.” The money the families and victims received far-exceeded what they would have gotten in a traditional court of law. In fact, its a fair question to ask whether a US court would allow them to be “doubly-compensated” for the same loss. If I am harmed by five different people, and my losses are $10 Million I get $10 Million, I don’t get $50 Million.

Wouldn’t it be nice if we could see this kind of bi-partisanship to pass much needed legislation that would help countless Americans with no other remedy than help from the Federal government. Hundreds of good bills and ideas just sit and gather dust while this moribund Senate and this political buffoonery we call a House of Representatives filibuster and take endless vacations or simply just stall. For God’s sake they won’t even vote on the President’s nomination to the Supreme Court!

Yet, wave that flag, let them get a photo op with a 9-11 family, and they all show up regardless of historical precedent, treaties, agreements, and the real and frightening potential for retaliation.

Sep 20 2016

Pirate Trials Offer Insight Into Today’s Crimes

With the arrest of Ahmad Khan Rahami, Donald Trump was quick to lament that Rahami would get medical care and due process. His assertion was that our nation had gone soft and was not willing to deal with terrorism harshly enough. In prior elections, it would be shocking for a Presidential candidate to express being upset that a US citizen would be getting Constitutional due process, but it is clear that nothing Trump says or does matters much to his supporters. But this last policy position should matter, especially since so many of them propound to be strict Constitutionalists and believe that the Founding Fathers’ vision should guide us to this day.

So I did some research online and found two interesting trial records of two separate trials we held in piracy cases from the 19th Century. Throughout the 19th Century, piracy was one of the largest threats to the American economy and safety on the high seas. Many of the pirates were Muslims coming from the Barbary Coast and many were from Spain, ravaging the Caribbean and US shores. We fought two wars against the Barbary pirates in the 1800s and formed the US Navy, the US Coast Guard and the Marines in large part to combat piracy. So I thought it would be interesting to see what the trials of these early terrorists looked like. It ends up the Library of Congress has dozens and dozens of trial transcripts of pirate trials from that era. Here’s a quick summary of two I found:

Us v. Pedro Gilbert et al In 1834, in Washington DC, twelve men were charged with piracy on the high seas. Their boat, The Panda had waylaid The Mexican an American merchant ship laden with goods and currency heading to Rio De Janeiro from Salem Massachusetts. They not only beat the crew and stabbed the captain, but they locked all of them in the hold and set the ship on fire leaving them all to die. But the crew were able to get out, extinguish the fire, and sail on. The Mexican was then able to get back to port and crew members were able to tell their tale in court after The Panda was caught by a British ship and its Captain, named Ruiz, and the crew brought to the US for trial in Federal Court in Washington DC. The record reveals that the court took great pains to treat the pirates fairly. Understanding the community’s feeling about piracy, the court brought in 150 jurors (all men of course) to make sure that twelve could be sworn to hear the matter fairly. Three different interpreters were brought in to make sure the accused could understand what was being said in their native languages. Two prominent criminal defense lawyers were appointed to represent the men and they pulled out no stops. They made a motion for a separate trial for each defendant, which was denied. They successfully demanded that articles about the case and about piracy be cut out of the daily newspapers given to the jury. They moved that the jury should not be allowed to drink alcohol, but because the DC water was of such poor quality, the judge allowed them to do so in moderation. The government paid for the defense to call two experts to say that it would be nearly impossible for the two ships to have met at the latitude and longitude that the Captain of The Mexican had claimed they met at. They called character witnesses on behalf of the first mate, Bernardo DeSoto, who had single-handedly saved the lives of over 70 people from a burning ship earlier in the year. The defense was allowed to sum up for over eight hours over a period of two days using words that ring true today:

The lives of twelve men are in your hands. By your verdict will it be determined, whether the individuals who now sit before you, in the fullness of life and strength, continue to exist, or whether they shall taste the bitterness of death. These men are accused of the crime of Piracy, and are consequently viewed with horror as robbers and murderers. Let me entreat you to lay aside all prepossessions of this kind, and not suppose, because the prisoners are accused, that they are guilty. I venture, however, to say that the men before you differ only in the color of their skins, from the most respectable crew that ever sailed out of the port of Boston

Even scalliwags like this pirate band got a fair trial

Even scalliwags like this pirate band got a fair trial

The emotional appeal failed to save all of them as five were acquitted and seven, including DeSoto were found guilty. The jury sent out a special note asking for mercy on behalf of DeSoto, but the judge condemned all the guilty to death by hanging saying it is now my painful duty to pronounce the sentence of the law upon each of you, for the crime whereof you severally stand convicted that you, and each of you be severally hung by the neck until you be severally dead.

Condemned Captain Ruiz’s wife began a campaign to seek a pardon for him and for DeSoto in light of DeSoto’s prior bravery and the minor role he played in The Mexican case. She received a private audience with President Andrew Jackson where she begged for a pardon. While he was deciding what to do, Jackson received a letter from the most prominent and successful actor in the country, Junius Brutus Booth. The letter stated:

To His Excellency, General Andrew Jackson, President of the United States, Washington City,
You damn’d old Scoundrel if you don’t sign the pardon of your fellow men now under sentence of Death, De Ruiz and De Soto, I will cut your throat whilst you are sleeping. I wrote to you repeated Cautions so look out or damn you. I’ll have you burnt at the Stake in the City of Washington.

It was one of the first recorded assassination threats in the Nation’s history. Jackson did not take it seriously but pardoned DeSoto nevertheless. Captain Ruiz was hanged a few days after his crew. Booth’s son John Wilkes Booth would go on to assassinate Abraham Lincoln.

US v. Josef Perez This case arose in 1822 and involved the piracy of the merchant ship called The Bee. The trial was held in the Southern District of New York in 1823. Perez allegedly boarded the vessel with his crew, imprisoned the captain and crew and took several barrels of rice, crackers and flour; sixteen boxes of codfish and twenty-four gold watches. Perez denied it was him and stated that he was the wrong man – misidentified by a member of the crew who had spotted him months later on a different boat. Once again, a translator was provided and two lawyers assigned since the defendant “established himself incapable of acquiring counsel in the usual manner.” The full transcript of the trial is available for free on the Library of Congress website HERE and it is fascinating – well at least to me as a trial lawyer and a trial junkie. Witnesses had identified Perez by a long scar on his left hand; but some witnesses put the scar on his right hand. Perez had scars on both hands. Through cross-examination on this issue, the witnesses were forced to admit that they could not be morally certain that Perez was the pirate that sacked The Bee. The lawyer, while arguing innocence, also argued that because the crime had occurred in an inlet of a bay in Havana Cuba, the crime did not occur “on the high seas.” It was that element that made it piracy and therefore a capital crime. Perez mounted an alibi defense as well trying to establish that he was on a different boat at a different time. At the end of the case, Perez’s lawyer also made a lengthy and impassioned speech to the jury recounting a recent case in Vermont where a man had been tried and convicted of murder only to have the alleged victim walk into town very much alive on the day before the defendant’s scheduled execution. He then adding words that would fit well for a jury hearing a terrorism case in the same courthouse today:

[I rest] on a jury of Americans, who in the midst of a general horror of the crime of piracy, and themselves feeling that horror in the strongest degree, could nevertheless exert so much strength of mind as to divest themselves of prejudice – to separate the crime from the person accused of it – and judge with a dignified impartiality his guilt or innocence.

The jury was deadlocked after several hours 6-6 and after receiving several charges from the court to keep deliberating, finally announced themselves hopelessly deadlocked 7-5 in favor of acquittal. The jury was disbanded and Perez held for several months until the US attorney’s office decided not to re-try him.

What we learn from those cases is that at the infancy of our country, at a time when piracy was the scourge of the world, we held our values more dear than our passions. We were able to fairly and impartially try the accused under our rule of law; affording them attorneys;providing translators and experts; and being guided by the principle, as the US Attorney Robert Tillotson said in his summation in the Perez case that if the jury condemns or acquits the defendant, as long as they have done so following the law and the evidence, they have performed their duty as Americans. We need to make sure that nearly 200 years later, we are not too far removed from those guiding principles and from the wisdom and understanding those men showed when they crafted our Constitution. Nothing could be more patriotic than making sure Rahami and any others who area accused in these most recent attacks gets competent counsel and a fair trial. We need to show the terrorists that no matter what, America will not be cowed into giving up the core founding principles of our nation.

Follow me on Twitter @oscarmichelen

Aug 29 2016

Top Six Things the Public Should Take Away From HBO’s “The Night Of”

HBO’s excellent short series “the Night Of” concluded last night. If you haven’t seen it all I warn you that this post may contain spoilers. Lots of my friends in the legal community are complaining about many inaccuracies in the way trial, prosecutors and criminal defense were portrayed. My answer to them has generally been – its a TV show not a documentary. Are lawyers allowed to lean on the witness stand and get so close to the witness? No, but the director needs the tight two-shot so that’s how its always been done. Do lawyers start their cross-examination sitting down and then rise after a few questions for effect? Depends – in some states I believe lawyers must do their exams sitting down. In NY, you must stand when questioning a witness and addressing the court or jury. So this style of the sitting then standing is a TV creation done for dramatic effect (though the effect is lost on me frankly). Is Riker’s Island so lawless and corrupt that an inmate can have a suite of cells for him and his crew to openly do drugs and run an empire with impunity? Close but no. Sure guards get paid off to allow drugs. Every day heroin, cocaine and marijuana enter the prison and are used by inmates. Yes gangs run protection rackets on newcomers. But it still has not reached the blatant level portrayed by the always excellent Michael Kenneth Williams.

Not perfect, but insightful

Not perfect, but insightful

I could go on but the point is the show was not made for lawyers. And I think the producers tried to encapsulate in 8 episodes numerous broad, sweeping issues within the criminal justice system so of course they had to take some liberties to raise those issues in eight hour-long episodes. But what should non-lawyers take away from the show? What are the main themes addressed by the program that people should think about?
Here’s my top six list:

6. A trial is not a ‘search for the truth’:This is the common language used to describe a trial but any practicing trial lawyer will tell you that’s for law school classrooms. You are not litigating against what actually happened – you are litigating against what the government says happened. And the government is litigating what they feel is the best case they can prove beyond a reasonable doubt. Evidence is nuanced, exaggerated, downplayed or sometimes wholly ignored if it doesn’t fit the narrative your side is presenting to the jury.

5. Some lawyers trawl (or troll) for clients It was eye-opening to see a TV show reflect on how John Turturro’s John Stone character got clients. He would hang around the police precinct and try to pick them up. That happens in just about every jurisdiction – in Nassau County there’s at least one practitioner whose whole career is based on the practice. And if you have a sharp eye you can see it happening most nights in the arraignment parts of 100 Centre Street in Manhattan (Where The Night Of takes place). But what was truly eye-opening and refreshing was the portrayal of the high-profile lawyer with the big expensive office also trawling to get the case. Most lawyers in big firms would look down their noses at what John Stone does even though they and their own firms do pretty much the same thing except in more expensive suits to get big cases away from small lawyers. Many of my high-profile clients and cases have had larger, allegedly more prestigious firms, contact them to try and get the case away from me. Most times they are not successful, but now and again they are. It was great to see that shown on the TV screen.

4.You gotta go to the locus quo One of the first things John Stone does is go with a camera to the crime scene and take his own pictures. Now I would normally bring a third party to take the pictures to not make sure I won’t have to be a witness but Stone got it right. You need to visit where it happened for yourself. Its one of my Top Ten Tips For Young Lawyers You cannot rely on pictures and you certainly can’t rely on pictures taken by the other side. Stone then went back with his expert as well, which is also the right course of action. So often, its detailed investigation and not fancy lawyering that shows the way to a client’s freedom. Also, you can show the jury and a witness that you know the details of the case by asking questions that reflect that you’ve been to the scene of the crime (or accident). The show overall really emphasized how these cases are won or lost on tough, boring, repetitive work analyzing the details and leaving no stone unturned. Detective Box exemplified that by his continued pursuit of evidence and his repeatedly going over the minutiae of paperwork that he got from subpoenas (and other not so legal) sources. I wish there was a substitute in trial work for over-preparation but after more than 30 years I still haven’t found it.

3.Getting wrapped up in the criminal justice system is a nightmare One of the best things the show did is portray the ripple-effect of having a person close to you be accused of a crime. Obviously, the defendant is the most directly impacted by the process – he gets manhandled by the police; thrown into the lion’s den that is Riker’s Island; exposed to drugs and violence to which he has to adapt to survive; loses his job and standing in his school and his community; faces the stress of losing his liberty; dealing with stigma of being accused even after he is released;etc etc. But its not just the defendant whose life is turned upside down. His family suffers as well; his parents are bankrupted; they face the indignity and unknown of the process; his father’s business partners suffer; his brother is attacked. The victim’s family is also deeply effected: constantly having to go over the events leading up to the crime or having to explain their conduct or behavior; having the victim’s life put on display including whatever sordid details the defense may come up with to help their cause. Everyone’s life gets put on hold and their focus has to turn on “the night of” the crime its as if time stops and you have no capacity to think or plan about anything else.

2. Despite our great Constitution, the system is broken The show highlighted so many of the failings of our system. How hard it is for poor defendants to get quality representation. The way that police can form a quick opinion on guilt and then never be moved off of that opinion regardless of the evidence to the contrary. (In almost all of the wrongful conviction cases I have been involved with, that initial bias formed by law enforcement – itself usually based on some shoddy or mistaken premise – is the main cause of the conviction of an innocent person.) The way judges and courts are more concerned with finality and expediency than the rights of the accused. John Stone’s summation was a great reminder of the founding principles of this nation and how important it was to the Founding Fathers that our criminal justice system be fair and be geared not toward convicting the guilty but rather toward protecting the innocent. Look at how much of the Bill of Rights is focused on providing protection to the accused. Yet, somewhere along the way we got overwhelmed by the numbers and the cost and lost that focus. And many folks- some guilty, some innocent, some somewhere in between – are paying the price for that. Which leads me to the number one take away from the show:

1. Don’t dodge jury service Every month or so some friend of mine calls me or emails me or sends me a message asking “Oscar how can I get out of jury service?” My usual reply is to ask why they are trying to get out of jury service. Most of the people who cal me also regularly ask me to comment about lawyer and crime shows they watch and to which they are addicted. So why not do it in real life – here is your chance! While not every case will be nearly as interesting as The Night Of case, every criminal trial is important because every criminal trial (as John Stone reminded us) involves those important concepts referred to in the previous paragraph. We need jurors to serve who are committed to upholding those values and making sure that the government is kept to its burden. Hopefully this show raised the level of awareness of the role a jury plays in upholding those Constitutional rights that we supposedly care so much about. Most of the time we don’t think about them once we graduate high school and then pay general lip service to them. At least until someone we know and love is accused of a crime.

Kudos to HBO and the entire cast who were all excellent. John Turturro as John Stone, the everyman version of Atticus Finch, was simply incredible and is sure to get an Emmy nod.

Follow me on twitter @oscarmichelen

Aug 24 2016

Judge Dismisses Suit Against Starbucks Over Iced Drinks

A lawsuit brought against Starbucks in Federal Court in California over the amount of liquid in their iced drinks has been dismissed by the court as baseless. A plaintiff claiming to be a Starbucks consumer brought a class action lawsuit against the coffee giant alleging that its iced drinks contain less liquid in it than advertised because of the presence of ice. Of course, in reality, the claim was not brought because the consumer was upset that he missed out on an ounce or two of iced coffee; the case was brought in the hope that it would be certified as a class action, meaning big bucks for the lawyers who brought it and perhaps a Starbucks coupon for a few free drinks for the class plaintiffs.

starbucksBut Judge Percy Anderson made quick work of the case throwing it out at the pleading stage. The plaintiffs had claimed that due to the presence of ice the cups did not contain the amount of liquid they were supposed to contain. For example, the “Venti” did not actually contain 24 ounces of liquid it contained about 14 ounces and the “Grande” did not have 16 ounces, it had 12. In order to win, they would have to prove that a reasonable consumer would be fooled or defrauded by the cup size and amount of liquid received. After noting that most children know that if they want more liquid in their cups, they simply ask for “No Ice” Judge Anderson stated:

If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will
include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.

After all, he went on – its called iced coffee. You get it in a clear cup. You can see that it has ice and if it has too much ice you need only ask the barista to make you another one with less ice. The Starbucks menu does not say you get 24oz of liquid in a Venti, the court stated, but rather is a referral to the overall cup size whose content is clearly visible when you receive the product. He even mocked the claims noting: Plaintiff also appears to ignore that a reasonable consumer understands that depending on how warm the liquid is when it is mixed with the ice, and how long it takes to drink the beverage, some portion of the ice will melt and be drinkable. For all of these reasons, the court stated, the complaint has no merit and must be dismissed.

Its nice to see that common sense prevailed and that this attempt to troll money out of Starbucks failed miserably. A similar case is pending in Chicago and one can expect the same result there as well. But a Federal judge in San Francisco recently allowed a case to move forward that alleges that Starbucks’ lattes are also ripping off consumers because they contain only about half the amount of liquid reflected in the cup size with the rest filled with foam. The complaint also argues that Starbucks changed its recipe in 2009 specifically to add more foam to its lattes to save money on milk. The lattes are also not served in clear cups so this lawsuit has a better chance of succeeding since consumers would not be able tell how much product and how much foam is in each cup and since Starbucks purposefully increased the foam amount to reduce the latte amount. Expect Starbucks to begin changing how its menu reflects its drink sizes to avoid problems in the future. I would not be surprised to see a disclaimer saying that size values are estimates and may not necessarily reflect the amount of liquid in your cup. Yeah, its come to that.

Aug 23 2016

Of Mice and Men and Death in Texas: SCOTUS to Review Use of “Lennie” Standard in Death Penalty Cases

In 2002, the Supreme Court of the United States in Atkins v. Virginia ruled that executing an intellectually disabled person was a violation of the Eighth Amendment to the Constitution which prohibits “cruel and unusual punishment.” Here’s what Justice John Paul Stevens wrote in his opinion:”Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” But the Court refused to define “mentally retarded” or “intellectually disabled” leaving it to the States to decide.

So when the first case wound its way to the Texas in 2004, the trial court ruled that a man with an IQ of 70 who met the definition for “intellectually disabled” used by the American Psychiatry Association should not receive the death penalty. It went up to the Texas Court of Appeals and landed on the desk of Judge Cathy Cochran to write the opinion, and she came up with a doozy. It seems Judge Cochran was a huge fan of John Steinbeck, having lived in Monterey, California for a spell and even above the Cannery Row building which became the title for one of Steinbeck’s novels. She said that the medical community’s opinion was a factor, but that it was always evolving and subject to change. She agreed with Supreme Court Justice Alito who has written that it should be left to juries to decided who is intellectually capable enough to be killed by the State. But she knew that SCOTUS wanted States to set the standard so she decide to invoke one of Steinbeck’s most famous characters – Lennie, the slow-witted farmhand in the classic novella Of Mice and Men. Published in 1937, it tells the story of George Milton and Lennie Small, two displaced migrant ranch workers and best friends who move from place to place in California in search of new job opportunities during the Great Depression in the United States. George is a clever, sharp man and Lennie is his dull-witted companion who is a gentle giant but occasionally harms the things he holds due to his strength and mental incapacity. I won’t spoil it in case you haven’t read it(and you should)but let’s just say it doesn’t end well for poor Lennie. Citing Lennie, Judge Cochran came up with seven factors a jury should use to determine if a person should be killed once it was already determined that they met the clinical definition of intellectually disabled. Here they are in plain English:

[1.] Did those who knew the person best during the developmental
stage—his family, friends, teachers, employers, authorities—
think he was mentally retarded at that time, and, if so, act in
accordance with that determination?
[2.] Has the person formulated plans and carried them through or is
his conduct impulsive?
[3.] Does his conduct show leadership or does it show that he is led
around by others?
[4.] Is his conduct in response to external stimuli rational and appropriate,
regardless of whether it is socially acceptable?
[5.] Does he respond coherently, rationally, and on point to oral or
written questions or do his responses wander from subject to
subject?
[6.] Can the person hide facts or lie effectively in his own or others’
interests?
[7.] Putting aside any heinousness or gruesomeness surrounding the
capital offense, did the commission of that offense require forethought,
planning, and complex execution of purpose?

Should fiction ever be how we  choose who we kill?

Should fiction ever be how we choose who we kill?

While Texas courts call these factors Briseno factors for the case in which Judge Cochran set them forth, they are better known as the “Lennie factors” or the “Lennie standard.” And Texas has regularly applied the Lennie Standard in ruling that intellectually disabled people could nevertheless be killed by the State. Three examples: (1)Texas killed Marvin Wilson in 2012. Wilson was a man who sucked his thumb and who couldn’t make change or use a phone book. His IQ was 61, but he had also held a job, married and had a child. Despite his low IQ the court system found that he should be executed using the Lennie test since he was able to hold a job and marry. An IQ level of 71 is defined as Borderline Intellectual Functioning and 61 rates as Mental Retardation. (2)Just last year Texas killed Robert Ladd, with an IQ of 67, whose last words were “It stings my arm, man” as the lethal injection entered his body. The court found he had sufficiently planned his assault to make him fit to die under the Lennie test. (3)Juan Lizcano had IQ scores ranging from 48 to 62 and had been removed from school at age 15 because he had not advanced past the sixth grade. He could not read a clock, dress himself appropriately or perform simple jobs. The state relied on the testimony of Lizcano’s ex-girlfriend and a used-car salesman who had sold Lizcano a car, both of whom stated that Lizcano did not seem that impaired to them. The jury voted to execute him.

Here’s a strange thing BTW: Lennie would have failed the Lennie test with flying colors. Lennie held a job, in fact he held several. He communicated easily with George and others. He was able to keep secrets.He tried to hide the body of his victim. He and George planned to buy a farm together and raise Lennie’s precious rabbits. And what of this twisted use of one of the greatest pieces of American fiction? Can you imagine what John Steinbeck would say about it? Well when his son Thomas learned of the Lennie standard he stated that his father was vehemently opposed to the death penalty adding “To judge anything based on a piece of fiction, I think, is a stretch. And I think it would’ve made my father extremely angry.The character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic.” It’s not just a stretch, its too subjective and unclear and adds to the arbitrariness of the application of the death penalty. Why choose a fictional formula over a medically accepted definition? As Brian Stull, Ladd’s attorney stated, “Instead of sticking to the standards set by science, they refer to a character in Of Mice and Men. [My] client’s fate should not have depended on a novella.”

There are deeper problems with the Lennie test. For one thing, they turn the SCOTUS decision in Atkins on its ear. The Lennie factors can undo almost any legal acknowledgment of intellectual disability, making Atkins essentially worthless in preventing a mentally disabled person who may not entirely understand what they’ve done from being killed by the State. Then just last year, the Supreme Court made a more narrow decision on the issue in Hall v. Florida, directly ruling that states have to actually stick to the clinical definition of intellectual disability when measuring who can and can’t be executed. However, this ruling has had virtually no apparent effect on how judges in Texas handle these cases as they continue to apply the Lennie standard as shown above.

Judge Elsa Alcala

Judge Elsa Alcala

So this fall, SCOTUS will decide the fate of the Lennie Standard and one Bobbie J. Moore, a resident of Texas’ crowded death row. Moore was convicted of the murder of a grocery clerk. At his trial, it was established that his IQ ranged from 57 to 70. In addition to the scientific proof, the defense showed that Moore cannot tell time; doesn’t know the days of the week; or the relationship between addition and subtraction. The State proved he knew how to mow lawns and play pool. The trial judge, applying the IQ tests primarily, ruled him too incompetent to be executed. The Appeals Court disagreed and chided the judge for using only the psychological tests and not the Lennie standards. It cited that Moore had worn a wig during his crime and had tried to hide his shotgun which showed forethought and planning. Judge Elsa Alcala, alone dissented. She stated, “The Lennie standard does not meet the requirements of the federal Constitution. I would set forth a standard that does not include any reference to a fictional character.” Thank you Judge Alcala for stating what should be obvious

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