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Castle Rock's Disappointing Message

It has long been the case that police officers could not be sued for their failure to protect a person. But it took the Castle Rock decision to extend that doctrine one step further: Officers don't even have a duty when a court imposes one.

The plaintiff sought protection from the courts from an abusive spouse. She obtained a protective order requiring that her husband be arrested if he violated the order. The court granted the order.

Well, the husband violated it. He took the couple's three children. The plaintff called the police, who did next to nothing. The children are now dead, at the hands of the man a court had restrained.

The majority of the court held this was not a property interest giving rise to a claim under the Fourteenth Amendment. The more obvious constitutional route, that the police failure shocked the conscience, was foreclosed by the holding of DeShaney in 1989 barring substantive due process claims in failure to protect cases.

It would not have mattered had the plaintiff plead her case as a liberty interest, I suspect. The analysis would have been largely the same. The deeper policy impulses compelling the conclusion reached favored the "well-established tradition of police discretion," according to Justice Scalia.

The court reasoned that state remedies may well exist. In Connecticut, there is an exception to municpal immunity in cases in which an identifiable victim is in immanent risk of harm. It is a difficult needle to thread.

Given DeShaney, Castle Rock was a foregone conclusion. But it needn't have turned out this way. There was an easy distinction that could have been drawn: The court order in Castle Rock transformed this case from one about mere private expectations to one involving whether the state can be held accountable for breaking its commitment to protect a person who had sought the shelter of the court.

By abandoning the plaintiff in Castle Rock, police officers showed something less than respect for the authority of the court and for the rule of law. The Supreme Court's ruling sends a message to vulnerable people: Trust not the courts. It leaves one wondering whether the hidden message to plaintiffs in cases such as these is that self-help and a hand gun are your only real hope for relief.

Am Law 100

Each year the American Lawyer publishes a list of the 100 higest-grossing law firms - "The Am Law 100."  This year, they're giving a peek of the top 10 largest law firms.

Five Am Law 200 firms posted gross revenue in excess of $1 billion in 2004, the largest number ever. Sidley Austin Brown & Wood broke the billion-dollar barrier for the first time in 2004, while the others did so previously -- Skadden, Arps, Slate, Meagher & Flom in 1999; Baker & McKenzie in 2001; and Latham & Watkins and Jones Day in 2003. Gross revenue figures on this chart are rounded to the nearest $500,000. Firms that tied in the rankings are listed alphabetically. Some firms provided fractional full-time equivalent or full-year equivalent lawyer numbers, which were rounded up to the nearest whole number. Firms marked with an asterisk have more than one partnership tier or some partners who are predominantly on fixed-income status.

The top 10 list is available here.

Quick Thoughts

I'm getting caught up with my legal news, but I have some quick thoughts.

Wow - Kelo was 5-4.  What's funny about Kelo is that although the Fifth Amendment is in the Bill of Rights, the Court treated it as if it was not an individual right.  Show me another right listed in the Bill of Rights that gets rational basis review.

What's up with the Court's granting cert. on so many death cases?  The death penalty is rarely meted out.  If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues.  If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme.  Sure, "death is different," but death is also rare.  The horrors of prison are real and frequent.  Why not ensure that only those found guilty by a jury of their peers spend time in prison?

This Court's Term should be summed up as: The Term of Government Power.  It's a really depressing Court.  The "liberals" on the Court sing the government's tune in constitutional criminal procedure cases, cf., Caballes, Devenpeck, Brosseau, Muehler v. Mena while simultaneously giving the government the power do to anything it wants.  Cf., Raich, Kelo.

I'm admiring Justice Thomas more and more.  Of course I don't agree with him on everything (and since when should our agreeing with someone have anything to do with whether someone is a good judge?), but his opinions seem the least wilful of the justices.  Plus, he's a damn good writer.

Scalia behaves like a spoiled child when he's not in the majority: he needs to grow up.  Or, if he wants to write mean-spirited prose, he should turn to the op-ed pages, or start a blog.

If this were People, I'd say Thomas is up, Scalia is down (after Raich, waaaaaaaaay down).  The rest of the justices are so boring that they're not worth paying attention to.

Hey, Moses! Head Out to the Lawn!

Justice Antonin Scalia is a brilliant jurist, but he is no philosopher; indeed, he is more casuist than thinker. Armed with his prejudices and preconceptions, he is cutting, incisive and provacative in support of his private preoccupations. Sort of like Rush Limbaugh in a robe.

Take for instance today's dissent in the Kentucky courthouse case, in which he contends that the United States, unlike France, was not founded as a secular state.

Just what does that mean?

The sources of the American constitution are not found in Matthew, Mark, Luke and John. No, the founders looked to Polybius for guidance on mixed constitutions. They were familiar with the work of Aristotle. And, like or not, Machiavelli played a pivotal role in our founding conception of republicanism. (Perhaps the best book ever written on the sources of early American political thought is J.G.A. Pocock's The Machiavellian Moment.)

Scalia has all the intellectual appeal of William Jennings Bryan when he argues as a later-day fundamentalist that we are a Christian republic. Do most, even the overwhelming majority of, Americans believe in God? Of course. So what? The Bill of Rights protects minorities. That's the point of republicanism, Nino; or don't members of Opus Dei support that notion?

I can understand why Scalia's frothing at the mouth. Today's rulings does marginalize faith, making it more of a tourist attraction than a national creed. No Ten Commandments in the courthouse? Fine. But OK on the lawn? The only principled distinction must be that the lawn is a fine place for appreciating private conceptions of the good, true and beuatiful. The courthouse, on the otherhand, is no place Moses.

I am not offended by Moses on the statehouse lawn. I am not forced to pray; nor am I compelled to pay obeisance. Beholding such a statute reminds me of a pivotal source of inspiration for many of our founders. There's nothing wrong with that. But it does not make this a "Christian" nation, whatever that is.

The same Englightenment feuled revolutions in France and the United States. No amount of judicial thumb-sucking will change that fact.

Not So Pretty In Pink

My insurance company has more rights than I do.

How can I be so confident? I just lost an appeal in a criminal case that would never have gone to verdict were it a mere fender bender.

The charge? Murder. The defense? Mere presence, an unindicted co-conspirator did it.

At trial the state kept coming up with one late disclosure after another. The trial was delayed a number of times while trial counsel -- me -- regrouped to cope with yet more new information.

Today the Connecticut Supreme Court held there was nothing wrong with trial by ambush.  State v. Pink

Another issue of significance: The Court held that a pretrial detainee has no more expectation of privacy than does a sentenced inmate. Wow!

Finally, the Court ducked altogether an issue: Prior to trial, one judge granted an ex parte restraining order keeping exculpatory evidence under seal. At trial, a different judge disagreed, and gave the information to the defense. We briefed whether the prior judge had abandoned her role as a neutral and detached magistrate by entering the order.

The Court's holding? It was not adequately briefed. Why? No case law in support of the proposition. Perhaps there was no case law on point because no judge had ever made such a grievous error.

Am I disappointed and bitter? Yes. Thoughts on certiorari?

Postscript: Here is a press account of the appeal. Wonder who I pissed off at The Courant? ouch

Nothing New Under the Needle

The law prizes finality, and a host of doctrines have evolved over time to assure it. We want the litigation of a case or controversy to come to an end. We even tolerate a certain amount of error in order to assure finality.

But isn't death different? Suppose we send an innocent man to death? Can we tolerate that?

Surprisingly, David Dow, a law professor at the University of Houston and sometime litigator on behalf of those sentenced to death, seems willing to tolerate the death of a few innocents. He declares that focusing on the killing of a few innocent defendants is the wrong question. No, what really bothers him is the injustice of it all.

His latest book, "Executed on a Technicality: Lethal Injustice on America's Death Row," (Beacon Press, Boston, 2005), treads familiar water. Errors are made in capital cases. A failure to investigate can deprive a jury of key mitigating evidence. Raise the wrong issue in a state habeas, and lose the right to fight the issue in federal court. The book would be a good first-week assignment in a course of post-conviction relief in capital cases. It is a good and reliable summary of leading cases written in clear lay terms.

Beyond that, there is little to recommend the book.

I've not met Dow, but were my life on the line he would not be part of the defense team I would select. In his view, a defendant is guilty at least 90 percent of the time. The real issue isn't guilt or innocence, but mitigation. He sounds less like a lawyer than a mitigation specialist.

Like so many anti-death penalty crusaders he is in love with nothing so much as the clarity of his own convictions.  At some level, he seems to prefer the messianic role of savior of the condemnd to that of advocate for the man presumed innocent.

He is dead on target with his observations about "mob rule," however. We glorify victims and permit them to pollute public prosecutions with private rage and grief. Why? Because it feels good, I suppose. It's good entertainment. Ask Oprah.

I have been involved in only a handful of capital cases, so I lack Professor Dow's experience and his track record. But complaining about the injustice of the criminal process is a little too, well, prissy, for my tastes. Nothing is perfect. Dow's declaration that first this lawyer and then that was incompetent in one caseor another smells a little of the wick. What is it that is said of those who cannot do, i.e., manage a law practice and advocate for clients? They teach.

The best argument against capital punishment is, in my view, its finality and the fact that errors cannot be corrected.  But let's face it, there is nothing new under the Sun, or is that now under the needle?, when it comes to the debate about capital punishment.

Read Dow's book. It won't change your mind. But it is concise and generally readable. It will serve as an arrow in your quiver some dark night when all seems lost and you know not where to turn before facing yet another jury ...

Chapter 29 -- Dark Justice

Home Delivery

Some days the temptation to kill himself was almost overwhelming. He couldn’t say where the urge came from. But there were nights he’d imagine himself sitting on the window ledge of a tall building, back to the street, window wide open, and a pistol in his hand. In one motion he would place the barrel in his mouth, pull the trigger and tumble backwards to oblivion. If lucky, the bullet’s impact would put an end to the pain. Bad luck would leave the finishing touch to the pavement, floors below. He believed enough in divine spite to have planned how best to avoid the cruelty of botching a suicide.

Was Reardon serious? He seemed so those nights he lay silently in bed, pretending to be asleep so that he would not be forced to try to name and sort his feelings. Mornings after such silent nights were better. Having kept his vigil, he need not try to explain the despair. No need to reassure Millie and explain about how much it hurt some days to look at the world and lack the conviction he had actually seen it.

It didn’t help matters that his daughter was home just now from college. He loved her, of that he was more or less sure. But she was becoming foreign, and she was changing more rapidly than he could fathom. And the changes he could understand, he did not like.

"Well, the point is, Dad, that there is no there, there."

All earnest now. A graduate student at New York University strutting her stuff. Fresh from a course on post-modern literary criticism.

"You see, the text itself does not exist. We create the text." Maura’s tone was condescending. She had been released from Greenwich Village for a quick trip to the hinterland, a missionary to the great unwashed.

Reardon felt trapped. She needed something from him, some acknowledgment that she was doing new and great things.

"That sounds about right," he said.

"What sounds about right?" A challenge. The image shouting at the mirror and challenging its reflection.

"That how we interpret things differs."

"That’s not the point at all, Dad." She threw one leg over the back of a high, high horse, and was preparing to gallop.

"Oh? Well, I am afraid I just don’t get it then, Maura."

"I hate it when you are so condescending and arrogant," she puffed.


"Yeah, like when you pretend not to get it and then launch into some, some didactic and improving tone."

Reardon was lost now. A didactic tone?

"Maura, I..."

"You simply don’t take my work seriously," Maura said. She was astride her mount now. She was ready to take on the world, and had forgotten, in this flush of anger, that there was no there, there.

"That’s not really fair, Maura."

"Here we go again. Always the lawyer. What now, a lecture on justice?" He could still see in her the little girl who had snuggled on his lap and lapped at her cocoa while he read her stories about ghosts, goblins and witches. Why must she work so hard to kill that child?

"I’m sorry, Maura."

"Sorry implies fault, dad, and some ontic structure. I am beyond all that."

Silence now from Reardon.

"I’ve got to go, dad."

Reardon rose. Did he dare a hug, or at least a kiss on the forehead?

"I’ll call you and mom when I get back."

And with that, Maura galloped off to Greenwich Village.

That was several hours ago, and Reardon was sitting in a brocade, over-stuffed chair. On his lap, the newspaper and a volume of literary criticism he’d bought from the bookstore. He wanted to try to understand Maura. He was dosing now, trying to find his connection to the places and events described in the newspaper. Millie was out showing a waterfront property to a young doctor. She was excited by the prospect of the sale, and had worked hard to cultivate the trust of the potential buyer.

Marcus Antoine’s case would be his first high-profile criminal trial as a judge. He had not yet laid eyes on Antoine, but he could see his face. Wide nostrils, shiny black skin, tight corn rows clinging snake-like to his head. Antoine was angry. Antoine was scared. He saw the man child weep. And he saw him kill. He saw a powerful limb slashing, again and again, at the corpse of a boy, wild arcs of blood spurting into the night.

This vision of Marcus the killer startled him. The trial had not begun. Reardon had not yet taken possession of the court file in the case. Already he had visions of the man’s guilt? Without evidence, already a story forming in his mind?

The papers, of course, and the television news, they were responsible. They had convicted Antoine already. One paper called the young man another Mike Tyson. Reardon had reviewed a few news stories that afternoon. Motions were already being filed by some of the networks for permission to televise the trial. Court TV’s motion had an appendix containing news stories designed to show how important the case was, and why televising the trial was in the interest of justice.

Marcus had stabbed and slashed the son of a Supreme Court justice to death. The world needed to see that we are governed by law. Evil can strike even at the bosom of the high and the mighty, and it must be returned with the calm and measured cadence of law. Or so the lawyers for Court TV wrote. Why didn’t these lawyers ever seek to televise a bankruptcy hearing? Aren’t the high and the mighty laid low with the calm precision of law in those courtrooms? No blood on display there; no atavistic passion. No ratings, therefore no public interest.

Reardon intended to deny the motions. In fact, he had already done so, with a terse, one-line ruling he’d declared: "Motion denied. No compelling public interest will be served by departing from this state’s long-standing reluctance to televise trials."

The rulings would be handed to the media’s lawyers in the morning. He would do so, that is, unless he found a window ledge on which to sit. There was a stiffness in his head, two shoots of despair reaching up along each side of his head and clamping on familiar blinders. No matter where he looked, he saw futility. Why not put an end to it now? Why tolerate the suspense? Chance’s plaything waiting daily, for what? The jab of a cancerous growth alerting him to the arrival of an excruciating form of decay? Or perhaps the errant thump of an arrhythmia serving as a prelude to the vise that would shut down his chest? Or maybe the head-on collision with the drunken driver, pointed his way by chance?

Nothing satisfied, at least not for long.

He’d graduated high school, then college, then law school. A triumphant trifecta that exceeded his expectations. He’d passed through these challenges almost as though sleep walking. Always memorizing his lines. And then his own law practice. More lines to memorize, the task easier now because he was required to inquire no further than the imperatives of each case. Now a judge. A steady arc of success, all right. A beautiful wife, an enviable home, a daughter foundering through the travails of privilege. He had it all didn’t he?

Always the actor. Always the ability to say the right thing at the right time. Always memorizing his lines. A faithful student of some hidden imperative that was now aching to be set free.

He would put the barrel of the pistol in his mouth. He could feel the cold steel, and smell the acrid oil. The trigger guard belly up, like a whale at the beach. Trip the safety, and then, what? It took but little to trip the trigger. He imagined his mouth filling with gases, and then a hammer releasing the pressure in his mind. Tumbling backward now, he glances off a decorative awning, and falls hard with a welcoming thud.

He put the tumbler of scotch down next to him, and let the book on his lap fall to the floor as he stood up. He was cold now. Starting a fire was too much of a bother. The blinders of his despair narrowed his vision, and he saw only the couch. He lay on his back, with hands crossed, taking grim satisfaction in the image of himself snug in a coffin. There was a roaring in his head, rhythmic and velvet-like. No sorrow now. No anger. No fear. He was becoming numb. And sleepy, so very sleepy.

He never heard the rusty hinge of his mail box opening and then closing. He never saw the man with pock-marked face, and slicked back blonde hair. He never saw the shine of the black leather jacket as it slithered off into the shadows.

Jonathan Reardon had played out another death, reciting the lines just so. While he slept, a package had been delivered. A small package. It was a gift of sorts. It was a gift Peter Petrine had waited a long time to deliver.

Dark Justice -- Chapter 28

Trial Time

"I ain’t doing it," Marcus Antoine’s nostrils flared as he spoke. There was a beauty and dignity to his anger that moved Shamir.

"What do you mean you’re not doing it?" Shamir was speaking from the other side of the cage. "Trial starts Monday. You have to be there."

"I ain’t going to no trial." Antoine sat with arms folded.

Mark Shamir was used to resistance. He had served as a public defender for two decades. He’d lost track of the number of times his clients had derided him for not being a real lawyer, or, he loved this one, for being a "public pretender." But it was a rare client who out and out refused to attend his own trial. Shamir figured that Antoine’s anger would pass, and that they would find common ground. It would take some time. That’s all.

"Well, here is what will happen. It will take maybe a month to pick the jury, a week to hear motions and then the trial will take about two weeks. I figure two months soup to nuts."

"Soup to what?"

"It’s just a way of talking, Marcus. I figure the trial will take about two months."

"I ain’t doing it, man. I ain’t gonna sit up there for two months while everybody stares at me like I’m some monkey on a leash. It ain’t gonna happen."

"Marcus, I called your mom and asked her to bring you a suit and some shirts. You don’t have to go upstairs in your yellows." Even men presumed innocent, but unable to make bond, were subject to all the rules and regulations applicable to sentenced inmates. Marcus Antoine wore a yellow jump suit. His torso strained against the suit. He remained in shape at the weight room while awaiting trial.

"Man, I didn’t tell you to do that. Leave her out of it."

"I’m sorry, Marcus. But time is short."

"Time, man, I ain’t gonna do nothin’ but time. When’s the last time a black man walked out of this courthouse? I read the papers. Every cracker in the state has it in their head that I killed some justice’s son. I even seen a picture of the crying momma on television yesterday. How’m I gonna get a fair trial?"

"That’s what jury selection is all about, Marcus. You’d be surprised how many people don’t read the papers or watch the news. You’ll see. But you have to be there."

"Man, I ain’t going. You can talk from now until your hair falls out. I ain’t gonna go and get lynched."

"Marcus, the trial will go forward with you or without you. If you refuse to show up, how’s that going to look? The jury will think you’re hiding because you’re scared, and that you’re scared because you are guilty."

"I did not kill that kid. I don’t know how many times I got to tell you," Marcus screaming now. "I was there, but I did not know it was going down until that Petrine dude pulled the knife. It was over before I even knew what was happening." Antoine was up pacing now, and breathing hard, trying to keep himself under control.

"I know, Marcus." Shamir believed him. Of course, Shamir learned long ago not to trust his gut on whether a client was truthful with him. By the time a case was reached for trial, Shamir always believed his client. He called it advocate’s disease. Perhaps that was the way the system is supposed to work.

Antoine wanted to believe Shamir. But when had a white man ever believed in Antoine off the football field? Walk into a department store and there are eyes everywhere, always on you. So much as look at something and get some nervous clerk running up to you. "Can I help you, sir?" You know all they want to do is help you out the door.

Or walking down the street at dark. How many times had he seen an old white woman, or even an old white man, glance nervously at him, all the while calculating whether there was still time to cross the street? And let’s not even talk about driving. Every black man knew the code. Driving while black could be a big problem in most neighborhoods. It’s not a crime, at least in so far as the law books are concerned. But drive down some high-rent street about dusk and you better pray the car is in tip-top shape. Turn a corner without signaling? That’ll earn a stop and frisk by the man. Signal too soon? That’s suspicion right there. White men were white devils, at least most of the time.

Antoine trusted The Shark. He was cold. He’d kill his mama if he had to. Every guy on the cell block had heard of him. The Shark had represented some. Sure, he lost cases, but he was straight up, and a cold-blooded killer.

But now Antoine got stuck with some public offender, as he called him. Some lazy ass cracker dude who didn’t know hustle. Didn’t want to know hustle. Content to have his life handed to him like some baby bottle. Nipping at the State’s tit all his life. In bed with the State; a butt-boy to the judge. Antoine needed a warrior, and what did he get? Some dude without enough game to do his own thing.

"I said, I ain’t going." Marcus didn’t want to hear it any more.

"Marcus, you’ve got ..."

"Yo, yo, guard. Get me the fuck out of here. Now." Antoine storming at the door on his side of the interview room, banging shackled fists on the door.

"They can have my black ass for killing that punk. But they ain’t gonna get to stare at me like that." Antoine was screaming now. His cell door opened.

"You tell that judge he can kiss my black ass."

Shamir made a note of the name on the guard’s nameplate. Captain Omar. If he knew Clarence Sterling, Omar’s name would be on the state’s witness list once jury selection began. "Question: And what, if anything did Mr. Antoine say? "Answer: He said, ‘They can have my black ass for killing that punk."

No attorney-client privilege there. Antoine was screaming for a guard, and clearly speaking in such a way that others could not help but hear his despair.

Shamir could keep the odds of that happening low by not letting the judge or Sterling know that Antoine was refusing to attend trial. No would ask questions down in the cell block that way.

Shamir left the jail in better spirits than his meeting with Antoine warranted. There was not much doubt in his mind that Antoine would attend trial. He was just blowing steam. He’d calm down some and do the right thing.

What surprised Shamir, though, was the presence of several news crews outside the courthouse when he returned from the jail. Channels five, seven and nine were already there. And Shamir recognized a couple of print reporters, too. Word had traveled fast. He had only been informed hours earlier that the case had been called in for trial.

"Mr. Shamir, Mr. Shamir," Betsy Harrow was running after him, microphone in hand and cameraman at her heels.

"Will Mr. Antoine testify?"

Shamir chuckled. Should he tell the truth?

"We doubt that will be necessary," Shamir said, suddenly conscious of the fact that he was wearing a white shirt. He’d learned long ago that blue is best for television. White made you look pasty and added weight. Blue somehow softened the hues.

"Will he testify about the others who were involved in the murder?"

Shamir stopped and turned to face the camera lens. Looking into it and mustering all the conviction he could manage, he said: "Mr. Antoine is innocent. He is not a murderer. The state knows this. I know it. Soon a jury will, too."

Shamir let the glass door close behind him as he continued into the courthouse and into his office. The cameramen were not permitted inside the building. Only the print reporters followed him inside.

"How’d you know so quickly that we were set in this case? I only found out this afternoon," Shamir asked a reporter for the Belle Grande Times.

"Press release," said the reporter. Shamir could not remember his name.

"Press release? Who?" He’d never seen a release done prior to trial.

"This once came from the chief prosecutor’s office in Harleton."

"Great," said Shamir. "Just great." The chief’s office wasn’t even handling this one, and still they are hawking the case. Getting the word out to jurors. Turning up the heat.

"You got a copy of the release?" Shamir asked.

"Yeah. Here you go."

"Marcus Antoine case set to begin on Monday. Former football star accused in the killing of Lester Fuchs, step-son of Justice Harmon Fitzgerald."

Nothing inflammatory there. No grounds to claim that the State was trying to tamper with the jury pool. Pure vanilla. But also pure poison. Repeat the accusation often enough and plenty of people, in fact, most people, will accept it as a fact.