Oct 24 2016

In Fear of Trump Libel Suit, ABA Stops Article Labeling Him “Libel Bully”

The Media Law Committee of the American Bar Association commissioned a study to analyze GOP Presidential candidate Donald J. Trump’s history of using lawsuits to stifle criticism. The study was commissioned after Trump issued a series of declarations that he was going to sue several news outlets critical of him. The study was done by Susan Seagar, a First Amendment lawyer and a professor of media law at the University of Southern California. She reported that Trump had filed over 4,000 lawsuits over a 30 year period. She found and discussed seven cases claiming libel filed by Trump and/or his organization against folks critical of Trump: one was filed against an architecture critic and the newspaper he writes for; one filed against labor unions; one against an author and his publisher; one against a network TV executive; one against a political commentator; one against a beauty contest contestant; and one against a former student of Trump University. Ms. Seager reported that the only one he won was that against the beauty contest contestant who decided not to fight the lawsuit allowing Trump to win by default. Trump withdrew two others and lost the remaining four. Ms. Seager obtained all the details for her report strictly from court records and provided 81 footnotes referencing each material item of fact. She also offered a detailed explanation of each lawsuit and its result. Her conclusion was harsh: She called Trump a “libel bully” and she further concluded, “Like most bullies, he’s also a loser, to borrow from Trump’s vocabulary.”

Note to ABA: You may need to change that slogan

Note to ABA: You may need to change that slogan

The ABA advised its own Media Law Committee that it refused to publish the report “due to the risk of the ABA being sued by Mr. Trump.” In the same email, written by James Dimos, the ABA’s deputy executive director, Dimos acknowledged that any such lawsuit would lack merit but added that it was certainly reasonable to try to reduce such a likelihood by removing inflammatory language that is unnecessary to further the article’s thesis.” So they would only agree to publish it if the committee and Ms Seager withdrew the conclusion and changed the title from “Donald J. Trump is a Libel Bully, But Also a Libel Loser” to “Presidential Election Shows Need for SLAPP Laws.” SLAPP stands for Strategic Lawsuits Against Public Participation referring to the age-old process of bringing frivolous lawsuits to stifle criticism. Victims of SLAPP lawsuits can get their legal fees paid and collect monetary penalties if they win. Ms. Seager said one of the prime purposes of her study was to let her media law compatriots know that Trump’s threats of litigation rang hollow and to encourage State legislatures to pass more Anti-SLAPP laws so that wrongly -sued defendants could collect legal fees and penalties. In one of her footnotes, she highlighted one of Trump’s statements at a Presidential rally in Texas in February of this year:

“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Totally protected by the First Amendment, that is, which already does not protect false, defamatory or libelous articles. It is of course ironic that an article about Trump’s use of SLAPP-like litigation to stop Free Speech would be subjected to censorship due to fear of a SLAPP lawsuit being filed against the publisher. It is even more ironic when you think of the battery of accomplished First Amendment lawyers the ABA could assemble on a pro bono basis to defend itself against such a lawsuit. The article was instead published by The Media Law Resource Center and it remains on its website here.

Oct 16 2016

Heavy Issues Await Eight Member Supreme Court This Term

The 2016-2017 term of the Supreme Court of the United States will be heard by an eight member court since the Senate refuses to act on President Obama’s nomination of Merrick Garland to fill the seat vacated by Judge Antonin Scalia’s death. In several media appearances during the summer break, SCOTUS justices expressed concern over deadlock and said they would work hard to avoid that. It looks like Judge Roberts is doing that by only scheduling 45 cases for argument this term. But the issues brought before the Court are rarely cut and dried and deadlock remains a distinct possibility despite these efforts. A 4-4 decision means that the last court’s decision would stay in place. That has already happened on a few very important cases last term. Here are some of the cases that would most likely lead to possible deadlock:

(1)Buck v. Davis: At his sentencing for capital murder, Duane Edward Buck, the petitioner in this case, through his attorney called an expert witness who testified that Buck’s race (African-American) increased the likelihood of Buck’s “future dangerousness.” The jury imposed a sentence of death, rather than life imprisonment, in part on the basis of this testimony. I am not making this up. His defense attorney put on an expert to who said on cross examination that because the defendant is Black, that increases his likelihood for future violence. In seeking federal habeas relief, the district court denied Buck’s motion to bring an ineffective assistance of counsel (IAC) claim in order to challenge his sentence because Buck both failed to show that the outcome of his trial was prejudiced and that his claim did not merit the “extraordinary circumstances” necessary to permit habeas relief. The Court’s conservative core thinks habeas should be granted in only very limited scenarios and pushes the limits of the word “extraordinary”:it also believes and that as long as a lawyer is breathing the defendant has no IAC claim. The Court’s liberal core will likely be outraged at what the lawyer did and will want to overturn the decision below.

US Supreme Court

US Supreme Court

(2)Moore v. Texas: Bobby James Moore was convicted of robbery and capital murder in 1980. In 2001, the Supreme Court of the United States held in Atkins v. Virginia that the Eighth Amendment’s prohibition against cruel and unusual punishment forbade execution of inmates that the court defined as “mentally retarded.” Moore alleges that his IQ and developmental scores bring him within the Atkins exemption, but the Texas Court of Criminal Appeals disagreed, holding that Moore’s mental faculties bring him within the statutory requirement for execution under Texas law. The question is whether a court should apply modern diagnostic tests an analysis or just use a raw IQ score as was done by the Texas Court here.

(3)McCrory v. Harris: A three-judge panel of the United States District Court for the Middle District of North Carolina ruled that two of the state’s 13 congressional districts, District 1 and District 12, constituted illegal racial gerrymanders in violation of the Voting Rights Act. The court determined that state lawmakers had placed disproportionately large numbers of black voters in these two districts, thereby diluting the impact of their votes. North Carolina Gov. Pat McCrory (R-N.C.) and the North Carolina State Board of Elections are challenging the district court’s decision. Under a full SCOTUS, the Court has weakened and held not longer applicable, major parts of the Voting Rights Act so right now this seems like a very likely 4-4 candidate.

(4)Lynch v. Morales-Santana:The U.S. government is seeking to deport Luis Ramon Morales-Santana pursuant to his multiple felony convictions. Morales-Santana argues that he is a U.S. citizen and cannot be deported. He claims that he has “derivative citizenship” through his biological father, a U.S. citizen at the time of Morales-Santana’s birth, and that the statutory provisions which the government believes deny recognition of his citizenship claim violate the Fifth Amendment’s guarantee of the equal protection of the law. Under the statute in effect when Morales‐Santana was born – the Immigration and Nationality Act of 1952 (the “1952 Act”) – a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. But a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years,with at least five of those years occurring after the age of fourteen. Mr. Morales-Santana would be a citizen under the unwed citizen mother section but not a citizen under the unwed citizen father section. He is arguing that is gender discrimination.

All four of these cases address central Constitutional issues and touch on hot-button topics like immigration, the death penalty and voting rights. I think about the frustration the lawyers on both sides of all of these cases will feel if the Court comes back 4-4 and their clients are left with no further recourse and no determination of the status of the law. Even the winners won’t really win because most of the lawyers will want a final resolution on the issue at hand and not have a different challenger come forward with some minor factual differences that may allow another bite at the apple. If the Senate keeps blocking Garland through next year, even if the new President nominates someone on Day One, we won’t have a full court until the middle of the Spring Term at best.

Follow me on Twitter @oscarmichelen

Oct 09 2016

Death of a Champion

Brooklyn District Attorney Kenneth Thompson passed away today at the age of 50 and as result the City of NY – no, the United States of America – lost one of the greatest champions of the wrongfully convicted. Ken was a sharp, brilliant lawyer who went from the US Attorney’s Office to leading a successful and prominent law firm to being the chief law enforcement officer of Kings County, New York. He ran a tough campaign against a long-standing, politically powerful, incumbent District Attorney named Charles Hynes. And he ran it on the promise of cleaning up some of Hynes’ mess. He became the first public official I can ever recall who won an election promising reform and an increased attention to the plight of the innocent people who are serving jail time.

DA Ken Thompson

DA Ken Thompson

Ken’s office continued to fight crime of course – it boasts a strong conviction rate as it deals with some of the toughest areas of New York. But his legacy will always be the establishment of his Conviction Review Unit. Ken’s CRU has become a model for the nation. Why? Because first and foremost, he started it with the understanding that there are wrongful convictions and that a DA’s Office is in the best position to right those wrongs. He did not see his role as upholding the “integrity” of the conviction or of the office. Integrity would come from doing what’s right regardless of consequence. As long as the review was fair and thorough, he did not care what the outcome was. While his CRU has upheld many more convictions than it has overturned, his office has been a shining beacon for the wrongfully convicted. He placed at its head Ronald Sullivan, a distinguished Harvard law professor who never prosecuted a criminal case in his life. His whole legal career was comprised of representing the indigent including serving as head of Washington DC’s Legal Aid Society and being President Obama’s appointee to run the Legal Aid Society in New Orleans following Hurricane Katrina. Ken invested over $1 Million in CRU, putting his money where his mouth is. It remains the best-staffed CRU in the country. He established an Independent Review Board made up of distinguished and experienced former prosecutors and defense lawyers who would then review CRU’s decisions on cases. He was unafraid to let others look under the rug and see what was swept under there.

I had worked on the case of David McCallum and Willie Stuckey for ten years. I had presented a plethora of evidence of their innocence to Hynes’ Conviction Integrity Unit – a one lawyer one investigator operation at the time. It all fell on deaf ears. Time after time our plea for a review of the case went nowhere. Our team was told to come back when we had figured out who actually committed the crime. When I pointed out that I thought that was the DA’s job and that our job was just to establish our clients’ innocence, I was told not to bother them any more. And then Ken was elected. I had known Ken from his days in private practice and were actually adversaries on a very high-profile matter involving my client David Johnson, who was then a top aide to NY Governor David Patterson. While we were on opposite sides of the case and things got very volatile on several occasions, we built a mutual respect and admiration for each other that continued after the case ended. About a week after he won, I told him I was going to call him about a case that needed looking into. He said, “You got it. Call me in February when things settle down.” I told him Hynes had looked at it a few times but we were rejected. He said that did not matter to him and that he would take me at his word that the case needed attention and promised he would give it the attention it deserved. True to his word, he did and on October 15, 2014, I walked David McCallum out of jail after 29 years in jail for murder he didn’t commit. Willie Stuckey had already died in prison). David is now a free man, working at the NY Legal Aid Society and has just fathered a daughter, Quinn Nicole McCallum. Quinn would not be on the planet today with Ken and his CRU team.

At the press conference announcing David’s release, I was asked to say a few words. I pointed out that once a person got elected to the Office of District Attorney, they were bestowed the honorific of “Honorable.” Well Ken earned that title not just by election but the hard way, by being a man of principle and integrity. By being a man of his word. By being someone who understood that sometimes, the system does not get it right. That sometimes, the only people that can redress those wrongs are those that are working within the system. That acknowledging our system’s flaws and errors is not weakness or being “soft on crime” but instead is a reflection of intellect, reason and compassion. I will miss you my friend, but more importantly the criminal justice system will greatly miss you. My heart, thoughts and prayers go out to your wife and children. May you rest in peace and may your legacy be a guidepost for future prosecutors everywhere.

Oct 04 2016

ABC’s New Show “Conviction” Is Guilty of Being Terrible

It would have been impossible to imagine say 5 years ago that the exoneration of the wrongfully convicted has become so mainstream and commonplace that it would be the subject of a network prime-time drama. But tonight, ABC unveiled “Conviction” starring Hayley Atwell in the lead role as a lawyer heading the NY County DA’s newly-formed Conviction Integrity Unit. The show does not pass up on any cliche from the typical TV police procedural show – the love-hate relationship between the DA and his appointee; the trite speeches about justice and “doing the right thing”; and the last minute mystery witness who provides the essential clue to solving the case – right in time for the last commercial break. But it isn’t the old worn out formula that hurts the show, it’s the show’s flippant attitude towards Conviction Integrity Units (and reality) that really sinks the ship.

For starters, Hayley Atwell’s character is selected to run the unit under some – let’s call them unusual – circumstances. She has just been arrested in NY County for possession of cocaine after a night of partying when she is visited by the NY County DA whose apparently an old flame (of course). Here’s the deal he is willing to make: He will drop the charges and make the case go away if she agrees to take on the job of head of CIU. Sure she’s qualified – graduating at the top of her Harvard Law School class and winning 95% of her cases as a defense attorney, a percentage rate unknown by any lawyer in the criminal defense community besides Perry Mason. But the real reason why the politically ambitious DA wants her at the helm is that her father was recently President of the United States and her mother is running for the US Senate. (Sound familiar?) Her Mom informs her that the DA told her that if she fails at the job he will upgrade the charges against her to possession with intent to sell – and he’ll push for jail time. Nothing like being extorted through the use of a wrongful conviction to get you to head the wrongful conviction unit. So to save herself and her mother’s campaign, she reluctantly takes the job. Oh but there’s a catch – the DA told her she has only five (5) days to work on each case because, you know, budget constraints. At the end of the 5 days- 5 days! – she must decide whether to vacate or uphold the conviction.

convictionWhy are you still reading this? That last paragraph should have put you off of this TV show forever. But alright you want more I guess. In typical TV fashion, the next ten minute section is devoted to her just phoning it in. Telling her appointed right-hand-man (who was of course passed over for the job) to do all the legal work as she intends to just be a figurehead; texting through meetings; and leaving briefings in the middle of someone’s sentence because she has to attend a fundraiser. But then, her forensic specialist (a tough gay ex-con with a heart of gold), yells at her for her indifference and it turns her around – cue the crescendo of sappy music as she leaves her mother’s fundraiser to go straight to Riker’s to speak with the defendant in the CIU’s first case. Never mind all the factual errors implicit with that scenario – the defendant would not be at Riker’s Island, he would be in some Upstate prison and of course you can’t just waltz in to a penitentiary at 10PM to chat with an inmate, even if you are wearing Louboutins. The rest of her team is rounded out by a detective who says she sees her role as making sure that cops don’t get disrespected (at least that’s accurate) and a paralegal who, when she was a child, accused someone of a crime only to have that person be exonerated years later. Get it – she’s atoning for her sin.

It is the writers of this show who must atone however. Here is what they do to get you to understand how “wild and crazy” this former First Daughter is: (a) She tries to get herself fired by snorting fake coke in front of her boss;(b) She tells a detective who worked the case back in the day that she will let him feel her breasts if he hands over his notes; (c) she is on probation from her University teaching position for sleeping with several of her students and (d) In the middle of a full team meeting, some lackey brings in a rack of dresses her mother wants her to try on right away for the fundraiser, so she strips down to a bra and panties in the conference room and continues the meeting while she tries on the dresses.

Of course, on Day 5, it all works out. They track down the ex-girlfriend of a guy who used to live with the victim’s mother. Wouldn’t you know it? All these years later she still kept hidden a gun he had tucked away in a drawer. Of course, it was the murder weapon in the CIU case. Cue the sappy music again as the innocent young man is freed and hugs his Mom. Cut to her walking back in the conference room (fully dressed this time) looking over the piles of new case and saying “Who’s next?”

These are just the quick highlights, there are way too many wrong statements and scenarios to mention. To make viewers think that the Manhattan DA would blackmail someone into heading a CIU is ludicrous. To make viewers think its this easy to exonerate a cold case in 5 days is obnoxious. To make viewers watch this on the eve of Wrongful Conviction Day is criminal.

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.” Already several MidEast nations are expressing concern over the law and promising a reciprocal response.

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.

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