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Archive for June, 2010

Elena Kagan- The Show Down Begins

Monday, June 28th, 2010

Elena Kagan’s confirmation hearing questioning begins Tuesday, June 29, 2010. Will it be a show down or a blow off? Many conservatives argue about Kagan’s lack of judicial experience. It is not her lack of judicial experience that concerns me, although, it couldn’t but help her. I’ve written before that many Supreme Court justices were not former judges. That list includes some of the best legal minds on the high court including former justices William Rehnquest and Earl Warren, both nominated by a Republican and also Justice Felix Frankurter.

It is not her lack of experience in the court room as a trial lawyer that concerns me. Yet, trial experience would be a plus factor. I also take no issue with her ivy tower educational background from Princeton, Oxford and Harvard. Her work background has largely come from academia in the halls of University of Chicago and as Dean at Harvard. Until last year when she became Solicitor General, she never had any appellate court experience. These will definitely be issues for Republicans. These factors alone do not concern me. But, the combination of all these things, her lack of any judicial experience, lack of trial lawyer and court room experience, mostly academia work and her ivy league background is what gives me pause. To her credit, she has worked in all three branches of government during her career, as Senate staffer, Clinton white house lawyer and law clerk to Justice Thurgood Marshall.

The cases coming before the Supreme Court involve and affect the lives of everyday people. Having more of the common touch in her background couldn’t but help her to understand the cases coming before her. While it will be her job to interpret the Constitution, it is also her job to apply constitutional law to the facts of the case. No doubt she is qualified to understand the issues involved in the cases that will come before her. But does she lack the common touch or what was referred to as the “empathy factor” by President Obama in the selection of Justice Sonia Sotomayor? Despite the ripping that President Obama and Justice Sotomayor received regarding the “empathy factor” statement, it is a needed component to fully compliment a justice’s qualifications. The cases before the Supreme Court do not come out of a vacuum. They involve people of all walks of life. Having a diverse background which touches upon the diversity of all persons is what is also needed.

Kagan has been assailed by conservatives for her politics during the Clinton era. As a lawyer, she offered legal and political advice in Whitewater, Paula Jones and other issues. As a Supreme Court justice, she will be required to put politics aside and judge the law. This is where it gets tricky. If the Supreme Court justices really did set aside politics, would George Bush have become president? Let’s not forget Gore v. Bush, where the Supreme Court justices all but decided the 2000 presidential election. Putting politics aside would mean a different decision in the recent Supreme Court case of Citizens United v. Federal Election Commission where the high court blocked the ban on big corporate political spending. She will fare as well as the other justices on the political issue.

So, is Elena Kagan qualified to serve as the next Supreme Court justice? The American Bar Association gave her its highest rating of “well qualified”. The National Bar Association stopped short of that rating and found her “qualified” to serve on the US Supreme Court. She did not receive the National Bar’s rating of “well qualified” which it reserves only for those found to merit the strongest affirmative endorsement.

Should Elena Kagan be confirmed? The simple answer is yes, barring any unforeseen circumstances during the hearing. Will she be confirmed? Again, the simple answer is yes. Elena Kagan makes for a good political choice for Supreme Court justice. My concern is what will happen after her confirmation. That’s the hard answer. With her background and a scant paper trail, no one knows the answer. That’s also the scary part.


Michael Jackson: Never Can Say Good Bye

Thursday, June 24th, 2010

One year ago on June 25, Michael Jackson, the King of Pop died in a now controversial case involving his doctor. Remembering growing up with Michael Jackson, it’s still surreal for me that he’s gone. The announcement of his death was one of those moments in history where I will always remember where I was and what I was doing when I heard of his death. I was in Gold’s gym about ready to start a spin class. The pronouncement of his death came for me on CNN. One year later, I think of what could have been his greatest tour.

Despite Jackson’s troubled life, his music will reign supreme for a life time and perhaps, even longer. No doubt he will surpass all records even in death. It has already been reported that he is now making more money dead than alive in his last years. No one in our life time will leave the musical legacy that he’s left. It’s hard to imagine in his words that “This is It”. But his memory will always be here with us. I will remember all that he accomplished in just 50 years. Most notable for me are:

1. His Thriller album sales of over $100 million. No one before and no one after has surpassed those record sales. Not even Elvis, the Beatles, Madonna could match his sales. Thriller is still the best selling album of all times.

2. Michael broke down racial barriers with his appearances on MTV. He appeared on MTV at a time almost unthinkable now but worth remembering when black artists did not appear. He was the first one.

3. The carton show “The Jacksons” which appeared in the early 1970’s was on TV at a time when blacks were rarely seen. It was a cartoon that black children could embrace seeing characters that looked like them.

4. His social justice themes in his music resonated with all. Such tunes as “Ebony and Ivory” living in perfect harmony spoke of a world he wished existed.

5. His Thriller video set the stage for all future videos to come. He started what became the trend of using videos to promote new albums and now CD’s.

6. Lastly, I remember just the way his music made you feel.. “It really turned you on”

The manslaughter trial surrounding his death still hangs in the balance. Justice moves slow. But no matter what, for Michael Jackson, I can never say good bye…”No no no I never can say good bye”….


Who Wants To Be a Millionaire Pt 2

Wednesday, June 9th, 2010

I recently wrote an article about an Ohio man who was cleared by DNA evidence after spending 18 years in jail. He received a monetary settlement for his time spent in jail by the State of Ohio. Now New York state settled for $1.9 million with a man who spent 19 years in prison for a murder he did not commit. A key witness recently recanted his testimony asserting the lead detective, with mob ties, forced him to lie to protect the real killer. Sounds like a made for TV movie. Yet, it’s for real.

New York city settled for an additional whopping $11.9 million, the largest individual settlement in the city’s history, according to the city’s law department. Barry Gibbs had been in jail since 1986, framed by a crooked Mafia cop. He sued the city after being exonerated and his trial was scheduled to begin this month.

In 1986, Barry Gibbs, a porter, received a sentence of 20 years to life. When new facts surfaced indicating his innocence, the investigation began which led to his original file being found in the former corrupt cop’s house. Stuff like this usually only happens on TV. Barry Scheck of the Innocence Project helped to get Mr. Gibbs’ criminal verdict overturned. Then Scheck’s law firm sued the city which resulted in the settlement.

As for the crooked Mafia cop, he received a sentence of life plus 100 years. Justice finally prevailed. Barry Scheck called Mr. Gibbs’ case a “horrible injustice”. No words nor money can repay Mr. Gibbs, the real victim for taking away 19 years of his life. So did justice really prevail? Would you want to spend 19 years in jail in exchange for $11.9 million. So who wants to be a millionaire?


You Have The Right To Remain Silent If You Talk First

Wednesday, June 2nd, 2010

In the criminal justice system, everyone thinks a suspect has the right to remain silent and seek an attorney even if he/she cannot afford one as one will be appointed. We hear those words on Law and Order and every other TV police drama. On television, the police stop interrogating when the suspect invokes the right to remain silent. But in the real criminal world, things are not as easy and clear cut.

The Supreme Court ruled on June 1, 2010 that in order to remain silent, suspects must now break their silence to tell the police they want to remain silent to stop an interrogation. The Supreme Court’s conservative majority ruled that a suspect cannot invoke the right to remain silent by merely staying silent. Isn’t that like an oxymoron?

In the case before the Supreme Court, the suspect remained mostly silent for 3 hours except for a word or two. Finally, the police hit a nerve after 3 hours and the suspect answered with a “yes” incriminating himself. The statement was used to convict the defendant of murder. Now according to the recent Supreme Court conservatives’ decision, suspects must verbalize they want to remain silent or do not want to talk to the police in order to cut off all questioning. The police and prosecutors are partying now over this decision.

The Court’s decision is in stark contrast to the case of Miranda decided over forty years ago and standing for the proposition that the police must tell a suspect they have a right to remain silent and that a lawyer will be appointed if one cannot be afforded. Justice Sotomayor, a former prosecutor, wrote a scathing dissent recognizing that the court’s ruling is counter productive to decades of Miranda case decisions. Miranda indicates that in any manner, at any time prior to or during questioning that a suspect wants to remain silent, the police interrogation must stop. In stark contrast to Justice Sotomayor, Solicitor General Elena Kagan wrote a brief siding with the police. Is this a hint of things to come if Kagan receives confirmation?

So now in order to invoke the right to remain silent after arrest, silence is not enough.

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Women Lawyers Still Lag Behind Their Male Counterparts

Tuesday, June 1st, 2010

Recently I attended a lawyer’s event in Washington, DC where I met a female lawyer in private practice. In the course of our discussion, I learned she is the only female attorney out of over 35 lawyers in her department at a major law firm in Washington, DC. There are no women partners in her department. I was shocked to discover that in 2010, women are still not well represented at the law firm table.

Are women lawyers on the decline? More women are graduating from law schools than ever before. So why the disparity in the hiring practices of some law firms? There’s no shortage of intelligent and talented women lawyers in the nation’s capitol. Per capital, DC has more lawyers than most other cities with over 7 law schools in the immediate Washington, DC vicinity alone. Yes, some women choose government work and corporate work over law firms. But that still does not account for the disparity of hiring at some firms. Despite talk of diversity, diversity managers and workshops at law firms, women lawyers are still being overlooked in hiring practices.

I was recently asked during a radio talk show on Elena Kagan if diversity matters in terms of women. We’ve come a long way from the days of Charlotte E Ray. Charlotte Ray upon graduating in 1872 from Howard University Law School became the first black female attorney in the US and the first practicing female lawyer admitted to practice in Washington, DC. She was forced to close her practice due to racial and gender discrimination. While much progress has been made since the days of Charlotte E. Ray, we still have a long way to go. Gender bias still exists in hiring.

As long as we are still counting our numbers, diversity matters.