Taunya Lovell Banks
The law professor blogs have been largely silent about the sad and troubling events stemming from the arrest and death of Freddie Gray in Baltimore so I want to thank Dan for giving me this space to comment on Baltimore’s “troubles.” Having lived through the D.C. riots in 1968 while I was in law school I am hesitant to call what happened last Monday a riot, a civil disturbance is a more accurate term. But I prefer to refer to the turmoil surrounding the arrest on April 12th and untimely death of Freddie Gray on April 19th as Baltimore’s “troubles” because, as some commentators point out, what happened Monday April 27th is symptomatic of a larger problem that plagues Baltimore, an old southern industrial city struggling to redefine itself in a post-industrial country. It is a city with large areas of racially segregated housing, concentrated poverty and misery. Many of these neighborhoods have not recovered from Baltimore’s 1968 riot. But Baltimore also is a city with many universities, University of Maryland Baltimore, Johns Hopkins, Morgan State, University of Baltimore, Notre Dame, Coppin State, Loyola and Goucher (in the near suburbs). It is an arts town, home to great writers, playwrights and filmmakers. Too often these two sides of the city never meet.
I live less than two miles from the corner of Pennsylvania and North Avenue where the CVS burned last Monday and where crowds rallied throughout last week. Anyone who tuned into CNN last week saw this corner as the national and international media covered our troubles. I not so jokingly tell my friends that I live five blocks from The Wire, David Simon’s well-regarded show about some of Baltimore’s communities impacted by intractable unemployment, poverty, drugs and violence, including police violence. Despite the proximity of my relatively affluent neighborhood, composed of stately late 19th and early 20th century townhouses and bordered by the Maryland Institute College of Art, I live in a different world from Freddie Gray and his neighbors. It is easy to live in Baltimore, if you are relatively affluent, and not come in contact with the parts of Baltimore that are hurting. As one Baltimore resident wrote in Slate, people like me are complicit in maintaining the environment that resulted in Freddie Gray’s death. But in the end none of us benefit from the way some communities are policed.
When I wrote my most recent post in this series, I thought its subjects—“what [law-graduate] employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation”—were settled, and peripheral to the broader topic of the series. (Those keeping score at home will recall that the broader topic of the series is the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent scholarship on the value and purpose of legal education. The first post is here; the second and more recent one is here.) Unfortunately and surprisingly, my previous post has proved much more contentious than I anticipated, spawning dozens of Comments here and at least two posts on other blogs (Mike Simkovic on the Leiter blog here, and Brian Galle on Prawfsblawg here).
As is so often the case, the contention seems to spring from a few basic but important confusions. Actual common ground having proved too scarce to hope for, in the interest of mutual comprehension I attempt here to untangle the skeins that the combatants seem to be throwing past one another. I hope to clarify where and how we disagree, and why I hold the views I do. If you agree with me, that’s nice too. If you disagree, I invite you to explain clearly how and why.
Advance warning: This post is a bit longer than usual (around 2,800 words). The public discourse on these issues is so mixed up that it takes some doing to untangle it. I beg your indulgence, and thank those who make it to the end for their dedication and patience. The heavy lifting begins after the jump.
Posting at the request of the organizers:
Nova Southeastern University Shepard Broad Law Center and the Nova Law Review seek submissions for the Nova Law Review Symposium being held on September 18, 2015, entitled “Shutting Down the School to Prison Pipeline,” and co-sponsored by Gwen S. Cherry Black Women Lawyer’s Association, American Civil Liberties Union, Miami Dade Public Defender Office, and the Anti-Defamation League.
Abstracts are due June 1, 2015. Download more details here.
The Alan Dershowitz-Paul Cassell-David Boies imbroglio is every gossip columnist’s dream. But I am not a gossip columnist. Dershowitz and Boies are, of course, two of the most prominent and accomplished lawyers of their generation. And there is no indication that they do not fully understand the contours of the latest issue they are fighting about. But public commentary on the latest wrinkle in the story does elicit a sigh from me in my capacity as a teacher of legal ethics.
For those of my faithful readers living under a rock, here’s the background: Lawyers Paul Cassell and Brad Edwards represent Virginia Roberts in a lawsuit against the federal government. The lawsuit challenges a criminal plea agreement the government reached with billionaire Jeffrey Epstein back in 2008 involving Epstein’s proclivities for sex with underage girls. Ms. Roberts asserts she was a victim of Epstein’s and that the plea deal violated the Crime Victims’ Rights Act. The lawsuit included inflammatory allegations that Dershowitz also did bad things to Ms. Roberts when she was a minor. (Dershowitz was never accused of any wrongdoing at the time; in fact, he was one of Epstein’s lawyers in connection with Epstein’s plea deal.) Dershowitz vehemently denies these allegations, says he can prove he’s right, and has accused lawyers Cassell and Edwards of misconduct. Cassell and Edwards have responded by suing Dershowitz for defamation. (Full disclosure: I went to law school with Paul Cassell, who is currently on the law faculty at the University of Utah, and used to be a federal judge. We have not discussed these events, and have talked only a few times in the last 30 years.)
Who’s right? I have no idea. I don’t want to discuss any of that.
What I do want to discuss is the latest turn of events. Superstar trial lawyer David Boies and his firm, Boies Schiller & Flexner, have entered the fray to represent Ms. Roberts. This has prompted a fair amount of posturing by both Dershowitz and Boies about whether Boies and his firm can or should be involved. Specifically, Dershowitz has asserted that lawyers with whom he is acquainted at Boies’ firm reached out to him when the dispute originally broke, expressed sympathy, and raised the possibility of representing him. In the course of these communications, Dershowitz says, the Boies Schiller lawyers elicited, or at least received, confidential information from him—including a memo that Dershowitz had shared with his own lawyers labelled “lawyer-client confidential”—that creates a conflict of interest precluding Boies and his firm from representing Ms. Roberts. Boies and his firm disagree both legally and factually. You can see the parties’ public statements on the issue here.
Nothing improves a juicy sex scandal like a legal ethics issue, not least because it gives me this opportunity to redirect your gaze to the professional strait and narrow. American Lawyer columnist Vivia Chen observes that “there's a meaty legal issue at stake: Was there a client/lawyer relationship between Dershowitz and Boies Schiller?” While Ms. Chen is ordinarily an acute and thoughtful observer of the legal scene, and interesting issues are presented here (at least if you’re an ethics geek like me), that’s not the issue at all: No one contends an attorney-client relationship was actually formed, and no attorney-client relationship need have been formed for Boies Schiller to be disqualified.
Confidential communications with a lawyer in contemplation of possible representation are both attorney-client privileged and subject to the lawyer’s duty of confidentiality whether or not an attorney-client relationship is ever formed, and under appropriate circumstances can disqualify the lawyer from a matter adverse to the prospective client. (I can feel your eyes glazing over. Bear with me.) The parties’ public statements (here) appear to disagree about whether they had communications in contemplation of possible representation, and about whether Dershowitz imparted genuinely confidential information sufficient to disqualify Boies Schiller. (The fact that a memo is legended “lawyer-client confidential” doesn’t necessarily mean that it is. Obviously it doesn’t mean that it isn’t either.) The parties also may disagree about whether the Boies Schiller lawyers elicited any confidential information that Dershowitz did impart, or whether he just delivered it unrequested and unexpectedly, which could affect the disqualification issue. Those are interesting and potentially challenging issues, but so far as I can tell no one contends that Boies Schiller actually undertook to represent Dershowitz, or that Dershowitz thought they did.
But wait, there’s more. (I know; I know—isn’t Professional Responsibility fantastic?) Even assuming that Dershowitz supplied Boies Schiller with confidential information, the law firm still needs to be in a position to misuse those confidences in a manner that is sufficiently “adverse” to the confiding party (Dershowitz) in the engagement the lawyers are taking on for the confidences to be disqualifying. This is a considerably more unusual and difficult issue. Remember, the only party Ms. Roberts is suing is the federal government; there is no current indication that Boies intends to take any part in defending Dershowitz’s defamation case against lawyers Edwards and Cassell. And Dershowitz recently won a procedural victory in persuading the court handling the Crime Victims’ Rights Act case to strike the allegations concerning him. Now, that doesn’t mean that Ms. Roberts won’t try to raise issues regarding Dershowitz’s alleged conduct in the course of the Crime Victims’ Rights Act litigation (the link, if there is one, appears to be that Dershowitz was one the lawyers who advised Jeffrey Epstein in reaching the plea deal back in 2008 that is the subject of the case). But it’s no longer clear that she will try to inject those issues into the case, that Boies Schiller would be involved in any effort to do so, or that the court will allow her to raise those issues if she tries. So we might expect to see Boies Schiller argue that, in addition to and regardless of anything else, they don’t propose to act “adversely” to Dershowitz. Will it work? We’ll see.
Now those are some genuinely interesting Professional Responsibility questions. Given the quality of the lawyers involved, we can expect to see them addressed with verve and skill. I’ll take that over a sex scandal any day.
There's been tremendous public outrage lately over the process of criminal justice and its failure to prevent needless deaths. As illustrated by the recent outcries over the shooting deaths of Walter Scott, Michael Brown, Eric Garner, and Tamir Rice, the public has a growing desire to have their voices heard in matters of local criminal justice.
Today, society, media, and politicians pay close attention to the latest high-profile crime, but the general public usually finds itself at a great remove, watching the system from the sidelines. This is highly frustrating to the average citizen, especially when they want to see wrongdoers go through a public adversarial process.
The public’s growing concerns about the secrecy and the lack of public accountability inherent in our current criminal justice system point to a need for more transparency and a better way to include the local community into adjudications of criminal justice.
In my new book, Defending the Jury: Crime, Community, and the Constitution (Cambridge UP: 2015), I try to provide solutions to some of these problems by focusing on ways to insert the local community back into criminal justice, whether formally or informally. I argue that the people's right to participate in the criminal justice system through the criminal jury - a right that is all too often overlooked - is essential to truly legitimizing the criminal process and ensuring its democratic nature.
Leon Nefakh , who writes about criminal justice at Slate, just reviewed the book here, giving one of its major ideas--inserting a plea jury into the plea bargain process--careful, if somewhat skeptical, consideration.
Ultimately, our system of hidden criminal adjudication is one where decisions concerning life and liberty are made far from the public sphere and the public eye. This book is my attempt to solve some of these seemingly intractable problems. And at only $29.95 a copy ($16 on Kindle), it's a bargain!
"Death sentences are also seen as more final and irrevocable than other punishments."
Daniel Epps, The Consequences of Error in Criminal Justice, 128 Harv. L. Rev. 1065, 1084. Maybe the author couldn't find a cite for a more definitive assertion. (Not a critique of the author, but rather the traditional law review requirement that such a strong assertion would require a footnote.)
I am thankful that individuals assume the responsibility and risks of becoming law enforcement officers. There is no doubt that these people put their lives on the line daily when they wear the uniform and answer the call of duty to protect all of us and ensure a law abiding order. However, the badge does not entitle law enforcement personnel to be above the law. Sure there are often tough calls requiring split second decisions that could mean the difference between life and death for the officer or for one or more members of the public (and this is why there is extensive and ongoing training). Of course in hindsight it is easy see mistakes can be and are made, and sometimes actions are taken that deserve greater public scrutiny. Just like the public sector workforce, who are for the most part, honest and hard-working, so are members of the law enforcement community. But, when errors of judgment happen, whether intentional or accidental, the public must be assured that full, transparent and unbiased investigations occur. This is essential to maintaining the public trust.
Demands for transparency are often thwarted by little known statutes that counter the promise of open government (e.g., open meetings law and freedom of information laws). For example, New York Civil Rights Law 50-a, protects certain police records, including information about internal investigations and discipline, from being disclosed (although when reading the language it appears to apply to the narrow circumstance of personnel records, court interpretations since 1976 have interpreted it more broadly to protect just about anything that could be used to evaluate an officer’s performance). In it's December 2014 40th anniversary report, the NYS Committee on Open Government implored the Governor and the Legislature to make it a top priority in 2015 to reform this law, noting that due to the effect of this statute, “The Freedom of Information Law (FOIL) today affords the public far less access to information about the activities of police departments than virtually any other public agency—even though police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees.” Yesterday’s NYT editorial called for ending the secrecy on police misconduct, fully endorsing the report’s recommendation.
So, what does all of this have to do with law schools? The City of Albany’s Citizens Police Review Board is the only police oversight board in the United States at this time that is staffed by a law school, designated by City Law in 2000. I had the privilege and responsibility of setting this up (see pp 1013-1015). The experience enabled the law school faculty and students to design and implement an oversight body and process that was accepted and supported by all impacted stakeholders (City Hall both Executive and Legislative branches, Police Department, Police Union, the Community – advocacy groups and individuals). Scholarship resulted such as a 2003 issue of the State Bar Government Law & Policy Journal (this may be password protected) and the only book exclusively on police oversight published by the profession. The existence of a research team for the Board that included law students and faculty enabled the development of significant policing policies in the City addressing things such as racial profiling, early warning systems to identify “rouge” officers (very important given the Court’s interpretation of Civil Rights Law 50-a), cameras in police cars, and the negotiation of the implementation of a mediation program as envisioned in the legislation. Above all, the law school created a system of transparency through the posting of comprehensive and detailed minutes, ongoing public outreach well beyond the monthly board meetings, and the school was and still is a neutral, non-governmental office where people in the community can feel safe discussing alleged police misconduct. Working with the independent Board members and contract investigators, excellent working relationships were established with the City, the Police Department and the Union. A former student even served on the Board after having been exposed to it as a law student. With more than 100 oversight agencies in the U.S (and there should be more), it is surprising that there are no other partnerships between law schools and their host communities to work on these issues. I urge interested law schools to reach out to explore potential opportunities.
Recently I had the honor of addressing students at the NEBLSA annual convention. In reflecting on the current events in Missouri and New York that highlighted, among other things, the lack of transparency in the grand jury process, I shared the short story of how law schools could work with communities and law enforcement on oversight issues. More important, attendees were reminded of the important long-lasting power they have to make a difference. Immediately following the Michael Brown and Eric Garner grand jury decisions, rallies were organized at various law schools and people participated in marches and “lay-downs,” but then what? Our advocacy surely can’t begin and end with rallies in December 2014. It is now February 2015. Some law schools have sponsored speakers and organized symposia. This is a start. Students and faculty so inclined could populate the law reviews and journals with legal and policy analysis that points to options for reform. Shorter articles in state and local bar journals and newspapers and op eds and postings on appropriate blogs could help to focus ongoing attention to the issue. Student groups can continue to invite speakers to remind us of the need for reform and to continue to inspire written and verbal advocacy. In certain courses, such as legislative drafting, students may choose to draft proposed laws to address the needed reform, and then rather than being a mere “academic exercise,” the drafting can be shared with key lawmakers. In other courses where aspects of the topic are appropriate, students may choose to complete writing requirements that address these issues, and then use these products to not only publish in outlets described above, but enter them into relevant writing competitions. The above are but a sprinkling of opportunities, and it should be noted, that while my lens in this post is police oversight, the suggestions can more broadly be viewed as ways in which law schools, faculty and students can lead needed reform in myriad areas. This is absolutely an important part of advanced legal education. Lawyers are leaders in government and in the community. People look to us to not only apply the law, but to ensure that when the laws are no longer adequate, we help to refine and reform them.
The Equal Justice Initiative released a major report yesterday on lynching as terrorism, titled Lynching in America: Confronting the Legacy of Racial Terror. Like the EJI report from 2013 on the slave trade in Montgomery, this is a remarkable piece of applied history. It comprehensively documents almost 4000 lynchings of African-Americans as part of the terrorist campaign against blacks to enforce Jim Crow and white supremacy. Lifting from the EJI web page:
EJI researchers documented 3959 racial terror lynchings of African Americans in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia between 1877 and 1950 – at least 700 more lynchings of black people in these states than previously reported in the most comprehensive work done on lynching to date.
Lynching in America makes the case that lynching of African Americans was terrorism, a widely supported phenomenon used to enforce racial subordination and segregation. Lynchings were violent and public events that traumatized black people throughout the country and were largely tolerated by state and federal officials.
Bryan Stevenson and the people at EJI do great work in so many areas. Just based on the summary document available online, there is a lot of important research and analysis in this report. In addition to the painstaking historical research involved, as a piece of history-based advocacy it makes a powerful case for how capital punishment and the criminal justice system more generally today are the direct consequence of the racial terrorism that was lynching. The report also advocates for public history and the use of historical markers to remember the victims and the fact of our own collective responsibilities, something about which Al and others on this blog have written about so effectively. The NYT also has an editorial on the report today that's worth a look.
With so much going on in the news, the details of the Boston Marathon Bomber's jury trial have fallen from the headlines a bit, at least for those of us not in New England. Yet even before the trial starts, a controversy has erupted over whether the trial venue should be changed from Boston to another federal district. I find this issue, one of jury rights and community rights and defendant's rights--fascinating, and so I wanted to share some of what's been published recently:
1) Tsarnaev's defense, having had their motion for removal twice rejected already, is hoping that hopefully third time will be the charm, filing today. (hat tip: Legal Times & Howard Bashman)
2) Leon Nefakh has a fascinating piece in Slate today discussing jury bias in the Tsarnaev, Eton Patz, and Colorado shooting jury trials
3) The New York Times recently held one of their "Room for Debate" online forums on whether Tsarnaev's trial should be moved, featuring Valerie Hans, Jeffrey Abramson, Lincoln Caplan, Richard Lind, Thaddeus Hoffmeister, and myself.
UNC Law School is hosting a day-long program in the wake of Ferguson and Staten Island on Friday, January 23. Cribbing now a little from their announcement:
A full-day program with three separate panels and a keynote speaker will provide a forum for discussion of police violence and the legal system, the history and context of police brutality, and activism in the face of police violence. Panelists will include academics, lawyers, journalists, and community activists. The luncheon keynote speaker is Ms. Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense Fund. The program will take place on Friday, January 23, 2015, in room #5052 of UNC School of Law. It opens at 9 a.m. and will close at 3 p.m. and is co-sponsored by UNC Law Clinical Programs and the UNC Center for Civil Rights. Please contact Prof. Tamar Birckhead with any questions: email@example.com.
Registration is free, but required. (Click on the "register now!" button.) I'm going to be speaking briefly on racial violence in the era of Jim Crow.
The schedule is as follows:
9-9:15 Welcome & Introductions: Dean Jack Boger & Prof. Tamar Birckhead, UNC Law
9:15-10:45 Panel 1 – Police Violence and the Legal System: the current law, the grand jury, civil rights litigation, and police training
10:45-Noon Panel 2 – History and Context of Police Brutality: from slavery and Jim Crow to Ferguson, Staten Island, Durham, and beyond
12-1pm Keynote Speaker: Sherrilyn Ifill, President and Director-Counsel of NAACP Legal Defense Fund
1-2:30 pm Panel 3 – Activism in the face of police violence: experiences of local advocates, the role of protest movements, and changing the dynamic between citizens and the police
2:30-3 p.m. Closing Speakers:
She's got an interesting piece up, The Trouble with Teaching Rape Law, over at the New Yorker. I think almost every crim prof spends some time strategizing about whether, and how, to address the crime of rape. Many don't teach it at all. Suk throws her hat in with the "teach it" crowd, arguing that growing "rape exceptionalism" actually does a disservice to sexual assault victims.
Dissenting in Alvarez v. Tracy, in which a panel upheld the lower court's denial of a habeas petition:
I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, un-counseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly believe is right. But we see the world very differently.
H/T Sonja West
I spent a lot of Thanksgiving day reading a powerful and moving collection, Letters to My Younger Self, which was co-edited by Jayne Thompson and Emily DeFreitas. The book ... consists of letters written as part of an English class that Jayne taught at Graterford Prison; they are written from the perspective of the students giving advice to themselves at a younger age, or sometimes to their children or parents. I highly, highly recommend the volume. The letters are powerfully and beautifully written and set loose a wide range of emotions. You really get a sense of how the students have thought about what set them on the path they're on and how they'd try to redirect others. Many sometimes talk about the extraordinary violence of their pasts and they in no way are making excuses or minimizing their violence -- but you do get a powerful sense of the humanity of the authors, which I don't think often comes through in the academic writing about the prison system in our country.
Several of the letters particularly stuck in my mind -- one is about a child who received a dog (a pit bull, as it happens) for his eleventh birthday. He took the dog with him when he fought other children because it wouldn't run away -- as his friends did; and when he got in serious trouble a few years later and was sent away, his grandmother got rid of the dog. The last line of the letter is "when I realized the dog was gone for good, I realized my heart was gone, too."
Another letter is about life inside Graterford, where the writer observes a flock of canadian geese flying overhead. "Beauty knows no boundaries" is one of the writer's insights from this.
Many people were troubled when a Second Circuit panel - featuring José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr - removed Judge Shira A. Scheindlin (EDNY) from a major civil rights action challenging New York's use of stop-and-frisk tactics. Scheindlin had issued a 198 page opinion holding the City liable for civil rights violations. My colleague Anil Kalhan has an interesting new piece up on SSRN considering this situation entitled Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances.
On October 31, 2013—just days before New York City’s mayoral election—three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that—by their own acknowledgment—they “read [in] the newspapers.”
In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign—based entirely on what they had read in the newspapers—Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.
Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.
I'm reading Joseph Spillane's beautifully written and haunting book Coxsackie, which is nominally about a reformatory for young male offenders but is more generally about the trajectory of prison reform from the New Deal to the Age of Reagan. Damn it's compelling, though unsurprisingly depressing. It's just out from Johns Hopkins University Press. If you're interested in the historical roots of our prison system, you ought to spend an evening with this book. Very little talk of Foucault in here, but a lot of compelling writing about our nation's hopes for reform, the grim reality of prison life, and the cratering of the ideal of reform.
The 11th Circuit held that a defendant's cell phone tower data (i.e., general location of where the defendant was on a certain day and time) obtained by the police from a cell phone carrier is a search within the meaning the 4th Amendment. This puts them at odds with the 5th and 6th Circuits, opening the possibility of the Supreme Court granting cert sometime soon.
The use of generic cell phone tower data appears very similar to the pen register used in Smith v. Maryland (1979). If the police, as in Smith, can request the phone numbers someone dialed from their phone located inside their home, it is not much of a stretch to ask the same phone company for a person's whereabouts on a certain day and time without a warrant.
Do I have a reasonable expectation of privacy in my day-to-day activities based on where my cell phone is located. I certainly do not have a subjective expectation of privacy, and I certainly do not like knowing that I can be tracked. So the real question is whether society, through five justices, will find that we have a reasonable expectation of privacy.
Justice Scalia dissenting yesterday in the Fourth Amendment anonymous tip case, Navarette v. California, posited that the "proportion of the hun dreds of thousands—perhaps millions—of careless, reck less, or intentional traffic violations committed each day...attributable to drunken drivers" is roughly .1%.
Apparently, .1%% accuracy isn't sufficient to make out reasonable suspicion in his mind. He'd seemingly require between 5% and 10% accuracy. Even those numbers strike me as an awfully high tolerance for error. In Philadelphia, the city entered into a consent degree regarding stop-and-frisk policies when the existing procedure yielded an 8.4% arrest rate.
I wonder whether Justices Ginsburg, Kagan, and Sotomayor were in agreement about Scalia's proposed level of suspicion he rates sufficient to be "reasonable."
On the other hand, I was cheered to see Scalia being (what seemed to me) realistic about the odds of a random act of reckless driving being related to drunkeness. The broader social anxiety over drunk driving sometimes threatens to obscure reality. Scalia's point reminded me a bit of Justice Clark's dissent in Taylor v. Supreme Court, 24 Cal.3d 890:
The evil motive requisite to punitive damage is simply not shown by driving while intoxicated. Rarely will the defendant have been drinking for the purpose of injuring someone, with knowledge that his drinking will injure the plaintiff, or even with knowledge that his drinking will probably injure someone. While driving intoxicated is dangerous, injury is not probable. Thousands, perhaps hundreds of thousands, of Californians each week reach home without accident despite their driving intoxicated.
As the Capitol Steps liked to remark, everyone loves a skicious vandal. Schadenfreude sprang up like mushrooms in that springtime many of us are still longing for, first as Dewey & LeBoeuf became the biggest law-firm failure ever; then when stories of secret salary guarantees to the Pigs Who Were More Equal Than Others began to proliferate; then when the firm’s bankruptcy spawned “clawback” claims and widespread settlements with former partners who the Trustee contended had received more than their fair share before they left, or had exposed themselves to “unfinished business” claims by taking work and clients with them to their new firms. Rumors flew that various unhappy partners had taken their displeasures to the Manhattan District Attorney, who was investigating alleged financial improprieties.
And now the DA, having extracted guilty pleas and cooperation from half a dozen underlings, has indicted Dewey’s former Chair (managing partner), Steven Davis; his deputies, former Executive Director Stephen DiCarmine and former Chief Financial Officer Joel Sanders; and (somewhat puzzlingly) a 29-year-old former Client Relations Manager named Zachary Warren. The charges include fraud, theft, falsifying business records and conspiracy. The SEC has filed its own civil complaint, naming Davis, DiCarmine and Sanders as well as former Finance Director Frank Canellas and former Controller Thomas Mullikan. The New York Times’ coverage, with copies of the indictment and related SEC complaint, can be found here.
The widespread glee at the mighty fallen notwithstanding, we would all do well to remember that this is a genuine human tragedy. Dewey employed over 1,000 lawyers and thousands more staff when it crashed. All of them lost their jobs in the midst of the Great Recession. While the legal press has chronicled the soft landings enjoyed by many of the more senior partners, many more were not so fortunate.
All of which should make us want to ask what we might learn here. There will be the usual rash of sanctimony in the comments (you may consider your points made, and save them for another day), reducing the situation to the obvious, simplistic and therefore ineffectual admonition not to lie, cheat or steal. These observations are usually coupled with the much less obvious but theologically entrenched creed that BigLawyers are all just Gordon Gekkos with bar cards, genetically predisposed to or trained from day one for greed, deceit and exploitation of their fellow man, so why is anyone surprised?
Please. There are hundreds of large law firms today, populated with well over 100,000 lawyers, that are not in bankruptcy, never will be, and are not (in the words by which one of the Dewey defendants allegedly described his activities to some of the others) cooking their books. They may be more or less well-managed (a great many less, but that’s for another day), more or less forward-looking and responsive to their environments and clients (same comment), and more or less humane employers and community members, but they are not roiling dens of thieves.
So what was different about Dewey? I want to suggest that, among the lawyers and law firms that have found themselves on the wrong end of criminal and SEC enforcement complaints, there are some unusual and noteworthy things about Dewey, things that illustrate some trends in this sector of the profession and offer a lesson or two more focused than a bare, if emphatic, rebuke of the deadly sins.
Set aside the regrettable population of those who become garden-variety criminals and happen to be licensed to practice. Most lawyers who commit crimes and frauds as lawyers fall into two general categories: Some steal from their clients—many by the simple expedient of taking client funds from their trust accounts, but some of the more ambitious and creative by kiting or otherwise perverting client trust accounts in Ponzi schemes and similar frauds. Marc Dreier and Scott Rothstein are recent rather spectacular examples. Others assist their clients in stealing from others—for example former Mayer Brown partner Joseph Collins, who is currently in federal prison for developing and implementing strategies allowing his client Refco to conceal devastating losses and omit them from a series of securities filings. Neither happens all that much at large firms, not least because there is usually enough infrastructure and oversight to keep most rogue behavior in check.
But Dewey is neither of these. The allegations of the New York indictment are that the defendants, all (except Warren) senior management of a billion-dollar professional firm, developed and implemented a scheme they portentously dubbed the “Master Plan” to manipulate the firm’s accounting records in order to be able to report to their banks and other lenders at a time when firm performance fell well below projections that were probably unrealistic to start with that they had met loan covenants or deserved additional extensions of credit. The SEC complaint focuses on the alleged accounting fraud the firm, through its management, employed in violation of the securities laws to float a $150 million private debt offering to various institutional investors that supplemented the firm’s $100 million revolving bank line. In short, Dewey & LeBoeuf defrauded its own lenders.
This is an all too common story in the business world, but among law firms—whose members regularly rehearse and dispute the details of such stories in which their clients are involved, and put their shoulders to the shovels that excavate the wreckage—it is unusual. I have little doubt that it has happened before, but it is nowhere near as common among lawyers’ frauds as fraud on their clients or on those with whom their clients are dealing. And to the best of my knowledge it hasn’t ever happened with anything approaching the scale or dishonesty alleged here.
It’s often enlightening to look behind the fraud to see what the alleged fraudsters wanted the money for. And that’s where Dewey stands apart from most other lawyer frauds. As chronicled in the most detail by James Stewart in the New Yorker, management was so concerned about keeping old and recruiting new rainmakers that they gave many partners extravagant salary guarantees, guarantees that exceeded the revenue necessary to support them. By definition, then, the firm overpaid many of those partners, and then borrowed to cover the difference between what it had promised them and what they generated. And then allegedly lied to its lenders for the wherewithal to keep the spiral rising. Some of the partners apparently knew about some of the salary guarantees, and some knew about more of them than others. All of the partners knew about the shortfalls when year-end bonus time came, as the firm proved unable to meet most of the guarantees management had made, and then had very little left after other expenses to pay the partners not shrewd, or valuable, or (more to the point) institutionally indifferent enough to have extracted one. How many of the partners appreciated how directly the borrowed money translated to borrowed time is unclear. Though many were deeply sophisticated observers and analysts of business and finance, few seem to have known or guessed that someone might be lying to keep their own thing going well after the clock had actually run out.
So what’s new and what’s different? In an extended time of flat demand for complex legal services—the first in the experience of almost anyone living today—compounded by downward price pressure on the limited pool of available work from (among other things) increasing commodification of much such work in the eyes (and checkbooks) of increasingly sophisticated and aggressive general-counsel consumers, BigLaw managing partners must struggle harder and harder to live within their means. As Dave McGowan and I noted several years ago (see here at pages 14-18, 70), and Bill Henderson argued more recently (see, e.g., here), many law-firm managers today stubbornly cling to the belief that they can somehow earn their way out of an increasingly competitive market by buying revenue (that is, bidding for lateral partners with portable business) for a price equal to or even greater than the profits that revenue will generate. For an astonishingly long time, the limited efficacy of this strategy was masked by the inexorably rising tide of client demand, which lifted even the leakiest and most ill-skippered boats, and allowed the lucky to believe they were smart. But in the current market, if you pay a million dollars for a million dollars in profit, you don’t make it up on volume.
Dewey indulged in the errors of the current age to a greater degree than most. Management hired more laterals at higher prices, and then found themselves forced to overvalue complaining incumbents equally in order to retain them, compounding the problem. They did so in an uncritical belief that the conditions that had generally prevailed from 1980-2007 would go on forever—after all, in the experience of the senior lawyers implementing what eventually devolved into the “Master Plan,” they effectively had—and allow them to earn their way out of any hole they could afford to dig. When the music suddenly stopped, it is alleged that they chose to lie about how many chairs they had—imagining, I would guess, as many who maneuver themselves into this position do, that the band would strike up again momentarily, and no one would ever need to count the chairs.
The pattern is familiar to anyone who studies financial fraud. Management robbed debt (the firm’s lenders) to pay equity (the partners); as owners themselves, management benefited too, though apparently not disproportionately more than their innocent (or ignorant) colleagues. Ironically, the beneficiaries of the alleged fraud (Dewey’s partners) were among its victims. Most of that can be said, to about the same degree, about any Ponzi scheme (though I am not suggesting that the Dewey fraud is a conventional Ponzi scheme, just that it shares the feature that its beneficiaries and its victims overlap significantly). What is unusual here is that the fraud appears to have happened in a large and highly pedigreed New York law firm, the sort of institution people imagine steeped in prudence and restraint. And it happened in the service of mismanagement of a kind that, while not at all uncommon among large law firms today, was uncommonly carried beyond the practical limits that constrain most firms by what is alleged to have been sustained and systematic dishonesty amounting to theft.