Never Give Up

By Michael Caruso

For all those like me who receive a Treasury check every two weeks, last Friday's passage of the 2023 spending bill came as a welcome relief. And, because this bill is a "must pass" measure, lawmakers were furiously negotiating to include various items in the last few weeks. For example, the Senate failed to include the EQUAL Act—which eliminates the federal sentencing disparity between drug offenses involving crack cocaine and powder cocaine—in the omnibus appropriations bill.

One of our local representatives, however, successfully led a bipartisan effort to correct a different wrong by awarding a Congressional Gold Medal to Benjamin Ferencz—the last living Nuremberg prosecutor.

Ferencz was born in the Carpathian Mountains of Transylvania in 1920. When he was ten months old, his family moved to New York—a small basement apartment in "Hell's Kitchen." After he graduated from Harvard Law School in 1943, he joined an anti-aircraft artillery battalion preparing for the invasion of France. As an enlisted man under General Patton, he fought in most major European campaigns. As Nazi atrocities were uncovered, he was transferred to a newly created War Crimes Branch of the Army to gather evidence of Nazi brutality and apprehend the criminals.

After his discharge from the Army, he returned to New York and prepared to practice law. Shortly after, he was recruited for the Nuremberg war crimes trials. Ferencz became Chief Prosecutor in The Einsatzgruppen Case, which the Associated Press called "the biggest murder trial in history." Twenty-two defendants were charged with murdering over a million people. He was only twenty-seven years old. It was his first case.

According to Ferencz, "Nuremberg taught me that creating a world of tolerance and compassion would be a long and arduous task. And I also learned that if we did not devote ourselves to developing effective world law, the same cruel mentality that made the Holocaust possible might one day destroy the entire human race."

In 1970, Ferencz decided to withdraw gradually from the private practice of law and dedicate himself to studying and writing about world peace. Earlier this year, right after his 102nd birthday, Ferencz said when he publicly presents his life story, he always tells his audience, "There are three important lessons I wish to transmit: One, never give up, Two, never give up, and three, never give up."

We all should be grateful Mr. Ferencz never did.

What should we do about the Supreme Court?

 Erwin Chemerinsky says because the Court's approval rating is so low, it's time for a change to restore legitimacy for the Court.  He says 18-year term limits are the answer:

The United States is the only democracy that gives members of its highest court life tenure. In fact, few states provide such a guarantee to their justices and judges. Life expectancy is much longer now than it was in 1787, when the Constitution was written. From 1787 through 1970, Supreme Court justices served an average of 15 years; justices appointed since 1970 have served an average of 27 years.

Clarence Thomas was 43 years old when he was confirmed, in 1991. If he remains on the court until he is 90, the age at which Justice John Paul Stevens retired, he will have been a justice for 47 years. This is too much power in one person’s hands for too long. Also, too much now depends on accidents of history, namely when court vacancies happen to occur. President Richard Nixon appointed four justices in his first two years in office; President Jimmy Carter picked no justices in his four years. President Donald Trump picked three justices in four years, while the previous three Democratic presidents served a combined 20 years in the White House but selected only four. Staggered, 18-year, non-renewable terms would mean that each president would make at least one nomination every two years. My sense is that there is bipartisan support for this reform, which would require a constitutional amendment. Rick Perry, the Republican former Texas governor, argued for it when he ran for president in 2016. Liberals support it as well. Term limits should be applied to current justices. Otherwise, they wouldn’t be implemented for decades. Amy Coney Barrett was 48 years old when she was confirmed, in 2020. If she remains on the court until she is 87, the age Ruth Bader Ginsburg was when she died, she will be a justice until 2059. The question is whether any constituency cares enough about this issue to do the hard work of getting the Constitution amended. That would mean lobbying Congress to propose the amendment and then mounting a campaign for its adoption by state legislatures.

Happy Festivus

 

 

 It's time to air some grievances: 

1. Prosecutors who still don't turn over all 302s. 

2. Prosecutors who still don't agree to turn over exhibit and witness lists. 

3. Judges who don't force prosecutors to do so. 

4. Corporate surety bonds (instead of signature bonds). 

5. The Sentencing Guidelines. 

6. The Trial Tax. 

7. Harmless error. 

8. Lawyers who claim to be defense lawyers who won't tell you what their client will say at trial. 

9. Judges who deny motions for continuances. 

10. 801(d)(2)(e).

Be careful who you sue....

 By John R. Byrne

This holiday season, a Girl Scout troop took a trip to New York to see the Rockettes perform at Radio City Music Hall. Security instantly descended on one of the moms in the group because Madison Square Garden Entertainment's facial recognition software had "picked [her] up." No, she isn't a terrorist. She's a lawyer. And she's an associate at a law firm that has sued a restaurant owned by MSG Entertainment (no, she's not working on the case). MSG kicked her out of the venue, leaving her to wait outside while her daughter and the rest of the troop watched the show. Nothing to see here, according to MSG:

“MSG instituted a straightforward policy that precludes attorneys pursuing active litigation against the Company from attending events at our venues until that litigation has been resolved. While we understand this policy is disappointing to some, we cannot ignore the fact that litigation creates an inherently adverse environment. All impacted attorneys were notified of the policy, including [the law firm at issue], which was notified twice."

Silly. You can read more about it here.

An oldie, but goodie. Happy Holidays!

 Hat tip: Frank Ramos from Linkedin.  If you don't follow him, you should.

What is fraud?

 This is THE debate in white collar circles over the past few years.  Takhalov (the B-girls case) got the discussion going again in the 11th Circuit.  Interestingly, the Supreme Court keeps reversing convictions based on strange new theories that district judges and appellate courts allow.  The latest question hails from the Third Circuit -- is it federal wire fraud for a college dean to lie in order to increase U.S. News Rankings?  From Law360:

The former dean of the Fox School of Business at Temple University has asked the Third Circuit to throw out his conviction on charges that he falsely inflated the school's stats to boost its ranking in U.S. News & World Report, arguing that students still got a good education in exchange for their tuition.

In an appellate brief filed Friday, Moshe Porat — who was sentenced to 14 months in prison and a $250,000 fine after being convicted on mail and wire fraud charges last year — said the government failed to show how falsely inflating the school's numbers constituted a deprivation of students' "property," as required by federal fraud statutes.

"Imagine that an excellent but unheralded lawyer procures false nominations to be named a 'Super Lawyer.' A client hires the lawyer based on the honor, and the lawyer provides top-notch counsel," Porat's brief said. "The lawyer's conduct is dishonest and morally questionable, but has the lawyer committed federal property fraud? The answer is plainly no—even if the client later learns the truth about the fake honor, and even if the client feels duped and would have hired a different lawyer had he known the truth."

And the response:

Philadelphia federal prosecutors urged the Third Circuit on Friday to reject a bid by the former dean of Temple University's business school to toss his conviction for falsely inflating the school's stats to boost its U.S. News & World Report ranking, slamming his argument that the conduct didn't amount to property fraud.

In its response brief, the government called Moshe Porat's appeal "an exercise in straw man advocacy," rejecting his argument that the falsely inflated stats given to U.S. News didn't deprive students at Temple's Fox School of Business of a good education.

"Porat was charged with and convicted of defrauding business school applicants, students, and donors out of money," the government's brief said. "He accomplished this, in part, by giving false information to U.S. News, knowing that this information would result in false rankings that students and donors valued, and knowing that Fox would then broadcast these rankings far and wide in order to gather tuition money and donations from the people who were the targets of the fraud."

The Definition of Suicide

 By John R. Byrne

More textual interpretation from the Eleventh Circuit and Judge Pryor, this time tackling the meaning of "suicide" in a life insurance policy. The policy at issue, like all life insurance policies, excluded coverage if the policyholder committed suicide. But did "suicide by cop" count? The Eleventh Circuit said "yes." 

No American court had decided the question, so the Court took some time laying out its reasoning. Citing Justice Scalia and Bryan Garner, the Court wrote "The ordinary-meaning rule is the most fundamental semantic rule of interpretation." It then walked through a series of definitions from dictionaries and court opinions. The Court's conclusion--as ordinarily understood, "suicide" is not limited to instances where the decedent delivered the fatal blow himself. In other words, a person can commit suicide "indirectly." Comparing the case of a man throwing himself in front of a train and "suicide by cop," Judge Pryor wrote there was "no material distinction." He explained:

"Police officers are trained to, and have little choice but to, use deadly force to stop a civilian who threatens them, their fellow officers, and the public at large. See FLA. STAT. § 782.02 (2022). A civilian, aware of this fact, threatens the officers to provoke this predictable and lethal response in the same way that the man who throws himself before a train anticipates the predictable, lethal outcome of being run over. In both cases, a person intentionally causes his own death, even if an external force delivers the fatal blow. In other words, he commits “suicide.”

Seems right to me, especially when you think of Jack Kevorkian and physician-assisted suicide which, if you took the other side of the debate, wouldn't qualify as "suicide" either. Anyway...Happy Friday!

Caldwell Opinion by John Byrne on Scribd

Slate interviews Chief Judge William Pryor

Remember when Judge Pryor joked about Slate journalist Mark Joseph Stern at a recent Federalist Society convention?

Well, after that speech, Stern called up Judge Pryor and asked to interview him.

To Judge Pryor's credit, he agreed.  

Here's the interesting interview.  

Some of the back and forth:

In the last couple of years, justices of the Supreme Court who are affiliated with the Federalist Society have made appearances at Federalist Society conventions and delivered speeches that are often received rapturously, with standing ovations. And on the left, the view is often: Well, these people are just applauding a fellow member of their club who is going to help them achieve all their goals; they’re celebrating the elevation of this person to power because they think it’ll help them with their own personal causes. What do you make of the impression created by justices attending these conferences and getting this rapturous reception?

Any group is going to have role models, individuals who a lot of members admire. My guess is that if you went to an American Constitution Society meeting and Justice Breyer or Justice Ginsburg had been introduced, there would be rapturous applause there as well. I think that’s OK. Justice Kennedy would frequently speak at the summer meeting of the American Bar Association following a Supreme Court term and would get that kind of reception there, as well. In our legal culture, there are a lot of organizations of lawyers and law professors and judges where a lot of the leadership and members have role models within the legal culture. What’s different is that a lot of legal conservatives didn’t have that kind of organization and didn’t have those kinds of role models until recently.

One difference is that six justices of the Supreme Court today have some affiliation with the Federalist Society. And especially if you’re a casual observer of the news, and you turn on the TV and see four of them at this convention getting celebrated, you might think: Well, this is just a pack of partisans who are going on the road to receive their due.

When the six justices get a lot of applause and admiration and appreciation from an audience of the Federalist Society because the members admire them, and in a very broad sense, share a philosophy about the judicial role with them—I don’t think that’s unusual at all when you compare it to the ABA or the American Law Institute. I really think the only difference is that it’s now a conservative legal organization that’s a new entrant.

A group called DonorsTrust, which provides lots of dark money to conservative causes, recently gave the Federalist Society $3.7 million. I’m curious what you would say to someone who’s skeptical of the Federalist Society, who sees these figures and says: Well, this is just another way to launder conservative policies through the judiciary. This is another way of building a base of power in the courts that will allow Republicans to impose their ideas from the bench. When the same dark money group that’s giving funds to the Federalist Society is also giving a ton of money to Republicans, it might raise some eyebrows. 

My understanding is the kind of donors you’re talking about tend to be foundations. And I would say if you have a concern about it, you ought to look at what the Federalist Society actually does with the money. And what it does is it sponsors programs that can only fairly be termed as educational. It’s focused on debates and discussions about contemporary legal issues on many topics. And Federalist Society programs have a wide variety of speakers. The panel discussions are very balanced to have a diversity of viewpoints. I’ve had many panel discussion events where I participated and had my biggest disagreement with a so-called conservative on the panel. If the idea is that this money is being used to promote a single agenda, a single idea, it seems to me it’s phenomenally unsuccessful because the programs are just not designed that way.

If you enjoyed that article, you should check out my podcast interview of Judge Pryor from last year, which was a lot of fun.