Thursday, July 25, 2013

Justice Alito's Inexcusable Rudeness

Justice Alito's Inexcusable Rudeness
A justice of the Supreme Court should not act like a high schooler on the bench; when the target is a fellow justice, the offense is even greater.
Garrett Epps
The Atlantic
Jun 24 2013

I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito's display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg. Because Alito's mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.

The episode occurred when Ginsburg read from the bench her dissent in two employment discrimination cases decided Monday, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar. In both cases, the Court majority made it harder for plaintiffs to prevail on claims of racial and sexual discrimination. The Nassar opinion raises the level of proof required to establish that employers have "retaliated" against employees by firing or demoting them after they complain about discrimination; Vance limits the definition of "supervisor" on the job, making it harder for employers harassed by those with limited but real authority over them to sue the employers.

The Vance opinion is by Alito, and as he summarized the opinion from the bench he seemed to be at great pains to show that the dissent (which of course no one in the courtroom had yet seen) was wrong in its critique. That's not unusual in a written opinion; more commonly, however, bench summaries simply lay out the majority's rationale and mention only that there was a dissent. (Kennedy's Nassar summary followed the latter model.)

After both opinions had been read, Ginsburg read aloud a summary of her joint dissent in the two cases. She critiqued the Vance opinion by laying out a "hypothetical" (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the "lead worker," who directs the crew's daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.

At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.

The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent--gender equality in society in general and the workplace in particular. Her words are as worthy of respectful attention as were his.

I found it as jarring as seeing a Justice blow bubblegum during oral argument.

A Justice of the Court lives his life in a swaddle of deference most of us cannot imagine. It is not too much to ask that, in return for this power and privilege, he or she should act like an adult.

Sunday, July 14, 2013

Florida Mom Marissa Alexander To Serve 20 Years for Firing Warning Shot, While George Zimmerman Goes Free

Photo from Being

Don't shoot warning rounds. Always shoot to kill. Same reason police never shoot to injure or disable anyone, they shoot to kill. Dead man can't testify. --Gustavo Cortez

Florida Mom Marissa Alexander To Serve 20 Years for Firing Warning Shot, While George Zimmerman Goes Free
By Sarah Rae Fruchtnicht
July 14, 2013

A Florida woman was sentenced to 20 years in prison for firing a warning shot at her allegedly abusive husband. Claiming self-defense, just as George Zimmerman did in the Trayvon Martin shooting trial, a jury convicted Marissa Alexander of Jacksonville of aggravated assault with a deadly weapon.

Alexander, 31, said she feared for her life when she fired a bullet into the wall of her home in August 2010. The Jacksonville mother of three had a protective order against her husband.

No one was hurt in the shooting, but a jury found her guilty on May 11, and she was given the mandatory minimum sentence under the gun law: 20 years.

Alexander had never been in trouble with the law before, but Circuit Court Judge James Daniel said he wouldn’t allow for any circumstances to reduce the sentence below the 20-year minimum.

On Saturday, an all-female jury found George Zimmerman not guilty of second-degree murder and manslaughter in the Sanford, Fla., shooting death of an unarmed 17-year-old, Trayvon Martin. There was no dispute as to whether Zimmerman shot and killed Martin. Instead, the jury considered whether Zimmerman, a neighborhood watch volunteer, was justified in his use of deadly force, which by Florida state law means force "necessary to prevent imminent death or great bodily harm."

Zimmerman waived his right to a “Stand Your Ground” pretrial immunity hearing, CNN reported, and attorneys went forward with the trial as a self-defense case. When Alexander’s attorney made an appeal to reconsider her case under the “Stand Your Ground” law, the judge denied to grant her a new trial.

State Attorney Angela Corey, who oversaw the prosecution of George Zimmerman, stood by the Alexander sentencing, according to Press TV. Corey believes that Alexander aimed the gun at her husband. She argues that the bullet fired could have ricocheted and hit him or others in the room.

Zimmerman was outdoors in a densely populated neighborhood when he shot Trayvon Martin. Zimmerman also had previous run-ins with the law. He was arrested in 2005 and charged with "resisting officer with violence" and "battery of law enforcement officer."

A recording of his 911 call shows Zimmerman said he was following Martin and ignored a dispatcher who told him not to approach the teenager. Zimmerman had no order of protection against Martin. Martin was unarmed.

Is it fair for Alexander to spend two decades in jail for a crime that had no fatalities, while Zimmerman walks? Does race and sex influence a jury's decision?

Friday, July 12, 2013

Cal Western professor gives law students a guide on how not to become jaded

In her article below, law professor Kathryn Fehrman advises law students to go along to get along. "Don't expect anything other than what the world offers," she advises. Of course, what the legal world offers is deceit and trickery, rewarded with large sums of cash. It seems Fehrman wants her students to be successful lawyers, ignoring the rottenness of the legal world. "Just say yes...Accept what is...don't create your own grain for the world to go against".

Basically, her message is "you can't beat 'em, so join 'em." She seems to say that the way not to become jaded is to tell yourself that all the deceit and bullying that lawyers use to obtain unjust outcomes is part of the natural order of things. If you don't question it, she seems to be saying, you won't be disgusted by it and want to quit your job. You just tailor your conscience to suit your profession. You must make a list of all the things that you're going to have to accept, and then don't let doubts creep into your mind each time you catch a whiff of something rotten.

I think that Fehrman believes she has good intentions, but as the old saying goes, the road to hell (or as Fehrman says, "the bad place") is paved with good intentions. Unfortunately, Fehrman herself supports a system that causes decent people to become jaded. I would give students the exact opposite advice. "Be jaded," I would tell them, "Be very jaded."

Here is my email to Kathryn Fehrman.

Kathryn Fehrman

How not to be jaded when the world is going to the bad place in a hand basket
By Kathryn Fehrman
San Diego Source
January 28, 2013

My law students are going to be lawyers -- a double-edged sword for them. On the one hand, lawyers serve in the world; we serve neighbors, communities, governments, institutions. And service may be the most honorable purpose we humans can aspire to.

On the other hand, practitioners see daily the ugliest and most difficult sides of human behavior and events.

Our students were thinking about dealing with neighbors on the verge of losing everything: businesses that took lifetimes to build, families, children, fortunes, futures, lives hanging in the balance. They were thinking of peering through the dark at the soft underbelly of society hidden from most. They were thinking of conversation after conversation with people embroiled in the fights of their lifetimes, or people facing challenges they simply cannot rise to.

So when my students asked, “How can we be in this profession and not become jaded and calloused,” I recognized that they sought a long view that would serve their existence. I wanted to give them a real answer. It’s not easy.

So I hunkered down and came up with a Five-Step Plan. If it can help lawyers, it can probably help pretty much anybody. So here it is.

Lawyers, of course, need to start with definitions. “Jaded” isn’t green, although linguistically much has happened since the word first appeared in our language. But that’s another article. “Jaded” comes from the Old Norse word, “jalda,” meaning “exhausted, tired old horse.” And callous is what you think: hardened and protected from further sensitivity because of being rubbed the wrong way.

Here are the five steps I gave them:

(1) “To thine own self be true.” Being true to yourself means a few things. First, it means that if you want to be a cynical peevish tired old horse, then be that way. This article isn’t for you. Being true to yourself also means you need to know your own personal values, so that when you make the everyday decisions which each moment presents, you have a measuring tool. “Re-examine all you have been told. … Dismiss what insults your Soul.” Walt Whitman.

Do what’s right by your own personal compass in each moment. Listen to Jiminy Cricket chirping in your ear, “Let your conscience be your guide.” Do that, and the ripples you set up with each small decision will be the ripples you intend.

(2) Put in the work. As my colleagues often remind our students, “There is no substitute for excellent preparation.” If we prepare to do the work we need to accomplish, we do a job we can be proud of.

There is no better way to limit the remorse in our lives, and that in turn lightens our loads so we don’t become tired old horses. Preparing for life is part of our work. Every day we have the opportunity to begin again and prepare ourselves to be the best we can be. Forgive yourself and do the work.

(3) Just say yes. Don’t expect anything other than what the world offers. Accept what is, and unless you’ve wisely chosen an important battle, don’t create your own grain for the world to go against.

The surest way to tire yourself out is to create the opportunity for that kind of friction.

(4) Be grateful for everything you receive; you are not entitled to -- nor can you expect -- the next moment. It’s all a gift. Things like Newtown in 2012 reminded us (more often than we’d like) that we are mortal, our children are mortal, the end of the world is around every corner. These reminders all brought us closer to Now, which -- you might already know -- is all we actually have. When we remember that life could end this very moment, we become more grateful for the moment we are experiencing now. And there is much to be grateful for. Once you’re there, see (1) Jiminy Cricket and ripples.

(5) Smell the roses. And you are the rose. A story: Hari was 15 years old when he had a seizure and died on an airplane just as he was exclaiming how beautiful the lights of London looked during landing. His father, a physician, couldn’t revive him.

When Hari’s guru came to speak at Hari’s memorial service at Heritage High School in Saginaw, Mich., she said something like this: “I don’t know why God would take from us the boy with the big white smile that made us all smile back so happy. I thought and thought about this. Why? And this is all I can think: It’s like the rosebush. You take this small bush, roots balled up and cold, and you place it in this dark, dank, cold pit – the earth. And you cover the roots with dirt and with foul smelling decaying shit – the fertilizer. And the roots reach out in the dark, and they suck in this wet decay, the cold dank filth, and the rosebush pulls this all in and processes it, and presses it through its stems and into unfolding blossoms, until it becomes something that is universally accepted as the fragrance of Love. That is all I can tell you. That is all I know.”

[Maura Larkins comment: I have a feeling that this guru wouldn't make a good lawyer. In the legal world, the rottenness doesn't get transmuted into the fragrance of Love.]

And that is how not to become jaded and calloused when the world is going to the bad place in a hand basket. (End of article)

[If this works for you, Ms. Fehrman, then I guess you're a lucky lady. You're a member in good standing of a lucrative profession that broadcasts a subtle but clear message of "don't step out of line and we will take good care of you" to new recruits. I hope some of your students toss out your advice and dig very deeply into the ethical morass of the legal system, and take responsibility for every single wrongful thing they are asked to do.]

Fehrman is a professor of legal skills at California Western School of Law.

Professor Fehrman is a Legal Skills Professor at California Western School of Law in San Diego. She was Deputy Director of the State of Michigan's Department of Human Services, and served as Director of the Bay County Michigan Public Defender's Office. She is an Editorial Board Member of the Michigan Child Welfare Law Journal. Professor Fehrman began her legal career as an officer in the US Navy Judge Advocate General's Corps (JAG). From there, she moved to civil litigation and appeals, representing businesses in real estate, energy, and contract cases at Luce Forward in San Diego. She was an arbitrator for the San Diego Board of Realtors, and wrote legal columns for their magazine. Following a move to Michigan, Professor Fehrman continued to practice business, real estate, and government law.

Legal Writing Professor at Cal Western SPL
J.D. University of Detroit School of Law
B.A. Trinity College, Hartford, CT

Courses Taught: Introduction to Legal Skills Legal Skills I & II, Internship Seminar, STEPPS, The International Trafficking in Humans