My Idea of Patriotism

People who read this blog regularly question why I write so much about political issues. My answer is twofold. First, it’s in my blood. I am genetically engineered to be an activist-lawyer. My mother organized unions and my father was a civil rights attorney. I grew up in the 60’s at the height of the anti-war, civil rights era and the need to agitate for change was a daily conversation at our kitchen table.

Secondly, I am a trial lawyer and it is my calling is to find and declare the truth and fight injustice. You cannot study the US Constitution or the men who wrote it and not have a sense of responsibility for the liberties we enjoy. My parents taught me that a true patriot is not a sunshine patriot OR a silent patriot. We have a duty to agitate for liberty and fight against the gravity of despotism. Thomas Jefferson famously said that the tree of liberty must be nourished with the blood of tyrants and patriots. He even suggested that a little revolution now and again is good for a democracy.

I think that a true patriot treats his country the way a parent treats their child. He nurtures and praises it when it does well and corrects it when it does not. It is a responsibility we all have, but few are willing to speak out and to act. A patriot is not afraid to act or to speak.

Rigging the Jury

For more than 100 years, the United States Supreme Court has overturned criminal convictions handed down by juries that excluded blacks from the jury pool. As early as 1881, the Supreme Court has considered whether “by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color” Strauder v. West Virginia, 100 U.S. 303 (1880).

In the 100 years following Strauder, the Supreme Court has thrown out conviction after conviction where it was discovered that black jurors were not fairly represented within the jury pools. Congress eventually codified the Supreme Court’s decisions into the Jury Selection and Service Act, 18 U.S.C. § 1861 et. seq. Under this Act, the federal courts must ensure that its jury pools are representative of the community and that the counties within each federal district are “substantially proportionally represented in the master jury wheel” 18 U.S.C. § 1863(b)(3). If these provisions are violated, a criminal defendant can ask that the indictment against him be dismissed, or that the proceedings be stopped until the problem is fixed.

According to a physical inspection of the master jury wheel for the Eastern District of Michigan, the federal court is employing a jury selection plan that is grossly unconstitutional. Court records reveal that black jurors and Wayne County residents are being systematically excluded and under represented on the court’s jury pools in favor of white jurors from the district’s predominately Caucasian counties. The inspection also revealed that almost 10% of the master jury wheel contains the names of dead people some of whom died as long ago as 1991. This is a serious problem, and it needs to be fixed.

Without a legitimate jury selection process, any and all indictments and convictions coming out of the court are constitutionally infirm. As the United States Supreme Court stated in Glasser v. United States, 315 U.S. 60 (1942):

The proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a ‘body truly representative of the community.

So I agree with Scalia, for once

The United States Codes is filled with laws, both civil and criminal. Some of the criminal laws are just downright scary. Many times, we lawyers cannot even understand what these criminal laws mean, and yet the Justice Department is running around putting people in prison under these laws. I’m talking about George Orwell and Franz Kafka kind of stuff. Many of these laws fall into a category that is commonly referred to as “public corruption.” Within these “public corruption” statutes, there is one that is particularly mysterious and it criminalizes public officials who deprive citizens of the “intangible right” to their “honest services.” Did you get that? Perhaps you should read it again.

At one time or another, I bet every one of us thinks that our elected officials have deprived us of their “honest services.” And while each of us may think that our public officials have deprived us of their “honest services,” nobody has a clue as to what this really means. So who gets to decide? The Justice Department and its “Public Integrity Section” which is currently led by William Welch (if you read my previous post you’ll know that Welch and other members of his Public Integrity Section were recently held in contempt of court for lying playing dirty in a “public corruption” case. This gives me great discomfort. So we have laws to put people in prison based on the deprivation of “honest services” and worse yet we have federal prosecutors from the Justice Department who can’t seem to provide their own “honest services” to our courts of law.

This past Monday the Supreme Court turned down an appeal from three former Chicago City officials. Sorich v. United States, 08-410 (decided February 23, 2009). Federal prosecutors charged the three men for depriving citizens of their “honest services” because they hired politically favored individuals. As you can see, there isn’t much of a standard here. Basically, the Public Integrity Section of the Justice Department just picks who they want to go after and then they simply pull out the old “honest services” book and throw it at the helpless victim. The victim will, of course, hire lawyers, go to court, file motions, cry, whine, and scream about the law but nobody will hear him.

So the three Chicago officials were convicted and sent to prison. They appealed all the way to the United States Supreme Court who turned down their case. Justice Scalia was the only member of the Supreme Court who wanted to hear their appeal. In his dissent from the denial of certiorari, Scalia said this law is so vague and broad that it makes criminals out of a public employee who calls in sick “to go to a ball game.” Scalia is right on point when he says

what principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials . . .

This law is definitely dangerous, to say the least. And perhaps it is for congress to re-write the law, but in the meantime it is the role of the judiciary to stop this madness. Or, as Justice Scalia wrote in the final sentence of his dissent, “it seems to me quite irresponsible to let the current chaos prevail.”

So I agree with Scalia, for once.

Legacy

Every once in a while I take on a case that has even more meaning than the suffering of my client alone. Last week we took on such a case and it really brings home the cost of the war in Iraq and an incredible injustice that is being done to our veterans.

I was contacted about a Marine who had returned from Iraq (he had done multiple tours) with his unit. He was what is called “squared away” – multiple citations for valor, a really outstanding Marine. He was the kind of guy who volunteered for check points because he didn’t want his friends to pull dangerous duties.

He was best friends with a man who suffered from PTSD (Post Traumatic Stress Disorder) and who eventually committed suicide after he got back. His senior NCO had my client clean up his friend’s brains from the walls and floor because, he was told, he was responsible for his friend.

The adjustment of being back in the States became very difficult, especially after the suicide of his friend. My client became depressed, had nightmares, etc. – all of the classic symptoms of Post Traumatic Stress Disorder. He threatened suicide with a pistol and the police were called. He surrendered to the police and emptied the clip to his pistol onto the street. The police took his pistol and were in the process of arresting him when he was shot in the neck by one of the officers with the same pistol he had surrendered to them. He is now a quadriplegic. I am representing him and trying to prevent the University of Michigan Hospital from transferring him to a V.A. Hospital, where he is likely to get substandard care.

None of the Armed Services recognizes the diagnosis of PTSD, even though it has been a recognized medical illness for decades. They do not want to take on the costs of treating service men and women traumatized by war. This is unjust. I will take care of my client, but what about the thousands of others who are suffering? Last month we lost more servicemen and women to suicide than we did to combat. That is a disgrace and I hope everyone reading this will write their Congressperson and demand action on this serious problem.

The Justice Department Caught Playing Dirty, Again

You may have read my previous posts about how dirty the Justice Department has become in recent years. Glenn Fine has provided us with some interesting reading materials to substantiate the taint that is growing in the “Halls of Justice.” Well the DOJ just got caught again playing dirty. Remember, these people are the highest, most powerful federal prosecutors in the United States and they are supposed to be investigating crimes and protecting us from bad people. And don’t forget that while they are doing this, they themselves are supposed to be abiding by the same laws and rules which they are enforcing. Too much to ask? Probably.

Last week, William Welch, the head of the DOJ’s “Public Integrity Section” (whatever that means) was held in contempt of court by a federal judge in Washington DC. Why? Because his team of federal prosecutors decided to withhold favorable evidence from former Alaskan Senator Ted Stevens during his criminal case on “public corruption” charges. Translation: the prosecutors played dirty to win the case. And what exactly did Welch’s team keep from the defense? A report by an FBI agent who was complaining that the feds were covering up information and trying to hide a witness who would have offered favorable testimony in support of Stevens who was, by the way, convicted. So the DOJ’s Public Integrity Section lacks some integrity, apparently. I was actually surprised to find out that a federal judge held Welch and his gang in contempt of court. Don’t get me wrong, the judge was right to hold them in contempt. I mean, they held themselves out as the symbol of justice and the rule of law, and yet they trampled on these rights in order to win their case. What do you think would have happened to the rest of us lawyers (non-DOJ attorneys) if we would have lied to a federal court?

The New York Times is reporting that Welch and Co. are no longer going to handle the case. Maybe Eric Holder should call Glenn Fine and see if he has some time to hose down the “Public Integrity Section” of the DOJ.

Selling Out Our Clients

I came across a disturbing story about a lawyer who is running for election to the Wisconsin Supreme Court. The lawyer, Randy Koschnick, was a former public defender who represented a “cop killer” and now the “cop killer” is endorsing Mr. Koschnick in his bid for a seat on the state’s highest court. So what’s the problem? Well I guess I don’t see one, but Mr. Koschnick does. Apparently, Koschnick wants to distance himself from his former client who is now supporting his candidacy to the state supreme court. Koschnick said of his former client, “He is free to say whatever he wants, but his endorsement is no honor to me.” I don’t like this, at all. So now lawyers are supposed to have shame for their work, but only if the work is unpopular (i.e., defending “cop killers”). I guess I understand the public relations problem for Mr. Koschnick having previously defended a “cop killer,” but I don’t agree with how he handled the matter. In my opinion, he should own up to his work rather than trying to hide from it. As lawyers, we all take an oath to defend and uphold the constitution. This includes defending it even for those accused of crimes. Perhaps it is nice for the corporate lawyers to get their endorsements for representing companies and banks. Maybe their oath is different than mine. I don’t think so. It never ceases to amaze me how people AND OTHER LAWYERS react when I tell them that I’m helping a convicted felon, a murderer, or a rapist. Why would you do that, they wonder? Well, its really easy for me, because those unpopular people are entitled to lawyers too. We don’t give constitutional rights to just some people, and we don’t selectively decide whose constitutional rights to protect. Mr. Koschnick was doing just that when he was a public defender, and that is admirable indeed, or at least in my book which may not be read by all but should be. I hope somebody smacks me the day that I feel shame for representing the unpopular client. Isn’t that why lady justice is blind?

Let them eat… cardboard.

As Congress debates, while Rome burns, the level of rhetorical absurdity from congressional Republicans is really getting weird. One Republican (John Thune) spent a half hour talking about what would happen if you stacked, piled or wrapped the stimulus money around the world (he even had visual aids consisting of a 600 mile high stack of dollar bills and another that wrapped around the world dozens of times). They talk, we suffer. It’s bad enough that we have to listen to the same guys who got us in this mess of massive unemployment, record deficits and the verge of a depression (after unrestrained spending and tax breaks for millionaires) complain about… unrestrained spending (and no tax breaks for millionaires).

The rhetorical rubbish I like best is from the Republicans from Texas and South Carolina, who say they would rather not accept any of the money in their home states and go it alone. Sweet! I love that idea. Make sure that those Senators’ states don’t get a cent of stimulus money and explain to their unemployed constituents why they refused the money for jobs. In many counties of Texas and South Carolina the unemployment rate is over 10%.

Why not start a campaign of e-mailing every Republican every hour on the hour and give them an update of how many more Americans have lost their job since the last hour?

WTF?

I’m not pleased with Congressional Democrats. If you have been reading my blog you know I’ve been railing at the hypocrisy and obstructionism of the House Republicans with regard to their obstruction of the Stimulus Bill. But as I started to learn more of the details, I began to realize that Pelosi and crew have managed to put us in a position where Republicans appear to be winning the spin game by “claiming” to be safeguarding the tax payers. How, in God’s name, could House Republicans manage to make themselves appear to be fiscally responsible while unanimously voting against a Bill we obviously need? Especially when America is losing over 100,000 jobs a week? How did the Democrats allow Republicans to have any kind of wiggle room when it’s the Republicans who created the problem and offer no solutions?

By loading up the Bill with Democrat-only pork, the House Democrats may have rescued defeat from the jaws of victory. When Republicans started to point at millions for condoms and subsidies for over-budget Hollywood movies, the Bill became a pork-barrel instead of a job stimulus. Democrats should have sectioned the bill into infrastructure, investment in new industries, and preservation of existing jobs. And then, justified each expenditure. Republicans would have had a much harder time attacking increasing Medicare funding to States to preserve health care services (and jobs) if they didn’t have money for condoms to belittle.

Now, if Obama wants a bipartisan bill he has to alter it. The Republicans will then claim more concessions and a political victory. After what the House Republicans did (i.e. get concessions and then vote unanimously against the Bill), some people argue “screw them”, take out the concessions and ram the Bill through. That’s old school. I guess the name of the game is triangulation. Republicans praise the President for trying to be bi-partisan and “claim” that they are trying to help him. Maybe Obama is playing a smart game in the Senate by cutting House pork but holding the line on Republican tax breaks. Cut the pork, but don’t give them anything significant. Now, Mr. President… that would be smart.